Submitted Oct. 12, 2012.
Elliotte P. Coleman, pro se, for appellant.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for appellee.
Before OBERLY and McLEESE, Associate Judges, and STEADMAN, Senior Judge.
McLEESE, Associate Judge:
Elliotte Coleman, who unsuccessfully applied for employment with the District of Columbia, claims that the District failed to follow applicable statutory and regulatory requirements when it considered his applications. We conclude that Mr. Coleman's suit is foreclosed by the Comprehensive Merit Personnel Act (CMPA), D.C.Code § 1-601.01 et seq. (2012 Repl.).
For purposes of this appeal we assume the truth of the factual allegations in Mr. Coleman's amended complaint. In 2008, Mr. Coleman applied for several positions announced by the District of Columbia Department of Consumer and Regulatory Affairs (DCRA). Mr. Coleman was not selected for any of those positions. According to Mr. Coleman, DCRA acted unlawfully in making its selection decisions, by among other things " preselect[ing]"
candidates and selecting less-qualified candidates without explanation. In making this claim, Mr. Coleman relies upon D.C.Code § 1-608.01(a)(1) (requiring promulgation of regulations providing for " open competition for initial appointment to the Career Service" ), regulations promulgated pursuant to the CMPA, and the D.C. Personnel Manual.
Mr. Coleman complained to officials at DCRA, to the District of Columbia Department of Human Resources, and to the Mayor, but according to Mr. Coleman they did not take appropriate remedial action.
Mr. Coleman then brought suit in Superior Court. The District moved to dismiss the suit, arguing that Mr. Coleman failed to state a claim and failed to exhaust his administrative remedies. The Superior Court dismissed the suit without prejudice, concluding that Mr. Coleman failed to exhaust his administrative remedies, by failing to appeal DCRA's adverse hiring decisions to the Office of Employee Appeals (OEA). The Superior Court stated that OEA likely did not have jurisdiction to consider such an appeal, because Mr. Coleman was an applicant for employment rather than an employee. See D.C.Code § 1-606.03(a) (permitting appeal to OEA by " employee" ). Nevertheless, the Superior Court interpreted this court's decision in Grillo v. District of Columbia, 731 A.2d 384 (1999), to require Mr. Coleman to get a definitive ruling from OEA on the jurisdictional issue before filing suit in Superior Court.
Mr. Coleman appealed to this court, but also filed an appeal with OEA challenging DCRA's hiring decisions. A Hearing Officer dismissed the appeal to OEA for lack of jurisdiction, relying on D.C.Code § 1-606.03(a). Mr. Coleman apparently did not seek further review of that ruling.
In this court, Mr. Coleman argues that the Superior Court erred in holding that he failed to exhaust his administrative remedies. Mr. Coleman also renews his claim that the District failed to follow applicable statutory and regulatory provisions in making its hiring decisions. Reversing the position it had taken before the Superior Court, the District now concedes that Mr. Coleman exhausted the only administrative remedy available to him, by filing a grievance, and was not required to appeal the denial of his grievance to OEA. The District argues, however, that ...