WILLIAM H. DUPREE, APPELLANT,
DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS AND DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS, APPELLEES
November 5, 2015.
from the Superior Court of the District of Columbia.
(CAP-1495-13). (Hon. Brian F. Holeman, Trial Judge).
F. Wallington for appellant.
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.
GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior
Stephen H. Glickman, Associate Judge:
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 and an evidentiary
hearing on certain of Dupree's
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.
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.
the provisions of the Comprehensive Merit Personnel Act
(CMPA) 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. 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. 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. 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,"
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. The regulations specified that a
performance rating received after that date " shall not
change the employee's retention standing."
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. The notices also informed the
released employees of their rights, which included the rights
to inspect records pertaining to
their cases and to appeal.
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.
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.
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. 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.
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. We noted that appellant's
ranking in the retention register would not change if the
prior-year ratings were not
utilized. 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
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.
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.
the Superior Court affirmed the administrative judge's
decision, appellant sought timely review in
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. " 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."  Questions of law,
including questions regarding the interpretation of a statute
or regulation, are reviewed de novo. Although
we routinely " accord
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, 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.
Voluntary Retirements During the RIF Process
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 ...