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District of Columbia v. Gould

June 17, 2004

DISTRICT OF COLUMBIA, APPELLANT,
v.
DAVID GOULD, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA4181-00). (Hon. Cheryl M. Long, Trial Judge).

Before Schwelb and Ruiz, Associate Judges, and King, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued May 26, 2004

This class action was brought against the District of Columbia by former officers of the Metropolitan Police Department (MPD), all of whom retired on account of disability prior to February 15, 1980, but none of whom completed twenty years of active service. The retirees allege that they are entitled to a 5% "base retention differential" (BRD) pursuant to the "equalization" provision of the District of Columbia Police and Firefighters Retirement and Disability Act, and, they assert, in*fn2 conformity with a compensation settlement negotiated between the MPD and the Fraternal Order of Police (FOP) and approved by the Council of the District of Columbia. See Resolution 10-48, 40 D.C. Reg. 3674-3679 (June 11, 1993). The parties filed cross-motions*fn3 for summary judgment, and on March 25, 2003, the trial judge granted the retirees' motion and denied the District's. Because, by its terms, the 5% BRD applies only to those retirees who have completed twenty years of service, and because the members of the plaintiff class have not completed twenty years, we must reverse the decision of the trial court and direct the entry of judgment in favor of the District.

I.

Under the equalization provision, a retiree is entitled to each increase in salary granted by any law which takes effect after 1972 "to which he would be entitled if he were in active service." See note 1, supra. The retirees contend, the trial judge held, and we agree, that the 5% BRD is a "salary increase" within the meaning of the statute. See District of Columbia v. Tarlosky, 675 A.2d 77, 79-81 (D.C. 1996). This was essentially the trial court's analysis in granting summary judgment in favor of the retirees; the 5% BRD is a salary increase, so the plaintiff class must be entitled to it.

The difficulty with applying this reasoning to the present appeal, however, is that the specific 5% BRD at issue here was created by the Council's 1993 resolution approving the compensation settlement between the MPD and the FOP. If there had been no compensation settlement resolution, there would be no 5% BRD. By the explicit and unambiguous terms of the compensation settlement resolution, the 5% BRD is available only to a retiree "who has completed or completes twenty years of service . . . ." See note 2, supra. All of the*fn4 members of the plaintiff class retired prior to completing the requisite twenty years. The 5% BRD thus has no application to the members of the plaintiff class. If we were to construe*fn5 the compensation settlement resolution as the retirees urge and as the trial judge did, then the inclusion in the resolution of the words "has completed or completes twenty years of service" would have no effect whatever on the meaning of the provision. Indeed, at oral argument, counsel for the retirees explicitly acknowledged that, under his interpretation, the resolution would have the same meaning without the limiting language. But as we stated in Veney v. United States, 681 A.2d 428, 433 (D.C. 1996) (en banc),

"[a] basic principle [of statutory construction] is that each provision of the statute should be construed so as to give effect to all of the statute's provisions, not rendering any provision superfluous." Thomas v. District of Columbia Dep't of Employment Servs., 547 A.2d 1034, 1037 (D.C. 1988) (citations omitted).

Moreover, it appears to be undisputed that an officer of the MPD who retires today, after serving on active duty for a period of less than twenty years, would not be entitled to the 5% BRD. The rationale of the equalization provision was to prevent those who "retired yesterday" from being treated less favorably than those who "retire tomorrow." Lanier v. District of Columbia, 871 F. Supp. 20, 23 (D.D.C. 1994), followed in Tarlosky, 675 A.2d at 79-81. As the District points out, "this laudable rationale would be utterly defeated if the Gould class, these disability retirees of yesterday, were given entitlement to a 5% pension increase corresponding to the BRD adjustment, when a[n] MPD officer [who] retired on disability today with less than [twenty] years of active service would not have the [5%] BRD adjustment factored into his or her retirement pay." Further, under the terms of the compensation settlement resolution, an officer in active service who has served at least twenty years "is entitled to receive the BRD only as long as he [or] she is in active service." See note 2, supra. Thus, if the retirees were to receive the 5% BRD, they would be in a more advantageous position than active service officers with twenty years of service, as the latter group may lose the benefit upon retirement.

We held in Tarlosky, and we now reaffirm, that the equalization provision is "remedial legislation which is to be interpreted liberally to achieve its purposes." 675 A.2d at 80 (citation omitted). But as Judge Glickman has pointed out for the court in Adjei v. District of Columbia Dep't of Employment Servs., 817 A.2d 179, 184 (D.C. 2003), "liberal construction is not reconstruction"; see also In re Te.L., 844 A.2d 333, 339 (D.C. 2004) (quoting Adjei). We simply cannot read out of the compensation settlement resolution the limitation that the BRD applies only to those retirees who have twenty or more years of service.

The trial judge was apparently of the opinion (though she did not explicitly so state) that the equalization provision somehow overrides the explicit limitation in the Council-approved compensation settlement with respect to the question whether a retiree is entitled to the 5% BRD. We discern no conflict between the earlier statute and the later resolution. Even if there were such a conflict, "the more specific statute governs the more general one, and the later supersedes the earlier." George Washington Univ . v. District of Columbia Bd. of Zoning Adjustment, 831 A.2d 921, 943 (D.C. 2003).

The retirees contend that our decision in Tarlosky and the trial court's decision in Abbott v. District of Columbia, C.A. No. 95-5668 (D.C. Super. Ct., July 23, 1996), support their claim. We disagree. Tarlosky, properly understood, supports the proposition (not here contested by the District) that the 5% BRD is a salary increase, but it takes us no further here. The Tarlosky case did not present at all any question regarding a retiree's eligibility for the 5% BRD, nor did it involve the language in the compensation settlement resolution which defines that eligibility. Tarlosky thus provides no solace to the retirees.

In Abbott, then-Superior Court Judge Henry H. Kennedy, Jr., held, on the authority*fn6 of Tarlosky, that the plaintiffs, a group of individual retirees, were entitled to an increase in their retirement payments equal to the 5% BRD. Judge Kennedy's brief order does not reveal, however, whether the plaintiffs in Abbott had or had not served at least twenty years on active duty, and the court did not analyze or even mention the critical language of the compensation settlement resolution which, in our view, forecloses the claim asserted in this case by the members of the plaintiff class. Indisputably, in Abbott, the "judicial mind" did not pass on the question before us in this case, and the Superior ...


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