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Dupree v. District of Columbia Dep't of Corr.

Court of Appeals of Columbia District

February 18, 2016

WILLIAM H. DUPREE, APPELLANT,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS AND DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, APPELLEES

         Argued November 5, 2015.

          Appeal from the Superior Court of the District of Columbia. (CAP-1495-13). (Hon. Brian F. Holeman, Trial Judge).

         James F. Wallington for appellant.

         Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellees.

         Before GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

          OPINION

Page 151

          Stephen H. Glickman, Associate Judge:

          As part of a mandated reduction-in-force (RIF), the District of Columbia Department of Corrections (the Department) released William H. Dupree from his employment as a criminal investigator in August 2001. Dupree's first appeal of that decision eventually reached this court, and we remanded the case to the Office of Employee Appeals (OEA) for its interpretation of the RIF regulations[1] and an evidentiary hearing on certain of Dupree's

Page 152

claims.[2]

         On remand, an OEA administrative judge took evidence and again upheld Dupree's separation in the RIF, and the Superior Court affirmed that decision. Dupree appeals once more to this court. He argues that the OEA judge erred in interpreting and applying the RIF regulations. For the following reasons, we disagree and affirm the OEA decision.

         I.

         Appellant was released from his employment as a criminal investigator with the Department on August 3, 2001, in one of several RIFs connected with the closing of the District's correctional facilities in Lorton, Virginia. The Department abolished several hundred positions in this RIF, including five of its ten criminal investigator positions.

          Under the provisions of the Comprehensive Merit Personnel Act (CMPA)[3] pertaining to RIFs and the regulations in effect in 2001, government employees subject to a RIF had the right to a single round of lateral competition for remaining positions within the employee's competitive level.[4] The competition was seniority-based: For each competitive level, the District of Columbia Office of Personnel (DCOP) determined " retention standings" by assigning each competing employee a " service computation date" (SCD) based on length of government service with credits for District of Columbia residency, prior military service, and outstanding performance.[5] The credit for outstanding performance is the only one at issue in this case. An employee who, at the time of a RIF, had received a " current performance rating" of " outstanding" was credited with four years of additional service.[6] The term " current performance rating" was defined to mean " the performance rating for the year which ended on the March 31 preceding the date of the reduction-in-force notice," [7] and for the credit to be available, " the performance rating must have been officially acted upon with all the necessary approvals [and] received in the appropriate personnel office" no later than thirty days before the RIF notice is issued.[8] The regulations specified that a performance rating received after that date " shall not change the employee's retention standing." [9]

          The competing employees were ranked by their SCDs in a " retention register" used to identify the employees who would be released from service due to the abolishment of their positions. Employees selected for separation in the RIF were given thirty days' written notice of the effective date of their release.[10] The notices also informed the released employees of their rights, which included the rights to inspect records pertaining to

Page 153

their cases and to appeal.[11]

         The RIF in which appellant was released was authorized by the Mayor in May 2001. Appellant and nine other criminal investigators " competed" for the five remaining criminal investigator positions. That is to say, the DCOP generated a retention register, ranking the criminal investigators by their SCDs in order to identify the employees who would be released from service. The DCOP issued the criminal investigator retention register on June 27, 2001. Based on his SCD, appellant was ranked eighth out of ten and hence was slated for release. He received notice on June 28 that the effective date of his separation would be August 3, 2001.

         He appealed. In Dupree I, we directed the OEA on remand to construe the regulations governing two of appellant's contentions and provide him with an evidentiary hearing on them. Each contention was a challenge to appellant's ranking in the retention register.

         First, appellant argued that the Department should have revised the June 27 register to reflect the voluntary retirements of three criminal investigators after the register was issued and before the RIF effective date.[12] The retiring investigators all were ranked ahead of appellant, and one of them was ranked in the top five, so if the Department had issued a new retention register excluding all three retirees, appellant would have ranked fifth instead of eighth and would not have been released in the RIF. Instead, by not revising the register, the Department effectively left one of the five retained criminal investigator positions unfilled even as it separated Dupree and two other investigators. In remanding for further consideration of appellant's argument, we noted that the CMPA and the RIF regulations were " silent regarding the effect, if any, of retirements on the RIF procedures," and that when confronted with such silence, we look " in the first instance" to the administrative agency charged with administering the law to interpret its requirements.[13]

         Second, appellant argued that the Department violated the RIF regulations by using prior-year performance ratings, instead of current-year ratings, to adjust the criminal investigators' SCDs, while simultaneously denying him a service credit for his own " outstanding" prior-year rating. The Department used the performance ratings for the prior year (i.e., for the year ending March 31, 2000) because the current-year ratings (for the year ending March 31, 2001) were not properly approved and received before the thirty-day deadline set by the regulations. Appellant was not credited for his " outstanding" prior-year rating because he had been a criminal investigator for only nine months that year. Because the RIF regulations were " silent as to what happens when the current year's performance ratings have not been completed prior to the RIF," we directed the OEA in Dupree I to determine on remand whether the regulations permitted use of the prior year's ratings in that situation.[14] We noted that appellant's ranking in the retention register would not change if the prior-year ratings were not

Page 154

utilized.[15] But if it was proper to use the prior-year ratings, then, we held, appellant should have been given credit for his " outstanding" rating that year, which could improve his ranking by one position.[16]

         On remand and after an evidentiary hearing, an OEA administrative judge again upheld appellant's release in the 2001 RIF. In construing the RIF regulations, the judge relied, in part, on the testimony of Lewis Clark Norman, who was employed by the District government in the Department of Human Resources as a Human Resource Specialist in Classification. The judge found Mr. Norman qualified to testify as an expert on the subject of District of Columbia government personnel policies and RIFs. Accepting Mr. Norman's explication of the regulations, the judge concluded that when a position in a retention register is vacated by a retiring employee between the announcement of a RIF and its effective date, the regulations leave it to the agency's discretion whether to allow another competing employee (who otherwise would be released in the RIF) to fill the vacancy. Based on Mr. Norman's testimony and the other evidence before him, the judge held that the Department did not violate the law or abuse its discretion in this case by leaving the positions of the three retiring criminal investigators unfilled instead of moving appellant (and other employees) up in the ranking.

         In line with the expert testimony, the judge also concluded that the RIF regulations precluded the Department from using the prior-year performance ratings to adjust the criminal investigators' SCDs. However, in agreement with our analysis in Dupree I, the judge ruled that the error did not entitle appellant to relief because even if the register were reissued with no competing investigator receiving a performance rating credit, appellant would still occupy one of the positions eliminated in the RIF.

         After the Superior Court affirmed the administrative judge's decision,[17] appellant sought timely review in this court.

         II.

         As we set forth in Dupree I, we review agency decisions on appeal from the Superior Court the same way we review administrative appeals that come to us directly.[18] " Thus, in the final analysis, confining ourselves strictly to the administrative record, we review the OEA's decision, not the Superior Court's, and we must affirm the OEA's decision so long as it is supported by substantial evidence in the record and otherwise in accordance with law." [19] Questions of law, including questions regarding the interpretation of a statute or regulation, are reviewed de novo.[20] Although we routinely " accord

Page 155

great deference to an agency's interpretation of its own regulations or of the statute which it administers" when there is an ambiguity to be resolved,[21] neither party argues that we should defer to the administrative judge's interpretation of the RIF regulations in his decision below--an interpretation not reviewed and validated by the OEA Board on intra-agency appeal.[22]

         A. Voluntary Retirements During the RIF Process

         We begin with the OEA administrative judge's determination that the Department permissibly left unfilled the open positions in the retention register created by the voluntary retirements of three criminal investigators after the register was issued. Appellant objects to this determination for three reasons. First, he argues that the CMPA and the RIF regulations require agencies to move lower-ranking employees up into positions vacated by voluntary retirees so as to minimize the impact of the RIF. Second, he argues that even if agencies generally may be permitted to leave such vacated positions unfilled, the Department was under an obligation to revise the retention register to fill them in this instance by virtue of its commitments to the Mayor and ...


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