Caryn Hines & Claudia Barber v. DC Commission on Selection & Tenure of Administrative Law Judges of the Office of Administrative Hearings ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 16-AA-735 & 16-AA-867
CARYN HINES
and
CLAUDIA A. BARBER, PETITIONERS,
V.
DISTRICT OF COLUMBIA COMMISSION
ON SELECTION AND TENURE OF ADMINISTRATIVE LAW JUDGES,
RESPONDENT.
On Petitions for Review of Orders of the District of Columbia
Commission on Selection and Tenure of Administrative Law Judges
(COST 1-16)
(Argued April 3, 2018 Decided April 17, 2018)*
Robert J. Baror for petitioner Hines.
Donald M. Temple for petitioner Barber.
Jason Lederstein, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at
the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the
time the brief was filed, were on the brief.
*
The decision in these consolidated appeals was originally issued as an
unpublished Memorandum Opinion and Judgment. It is now being published on
the respondent’s motion.
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Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior
Judge.
GLICKMAN, Associate Judge: In these consolidated matters, petitioners
Hines and Barber ask this court to review decisions by the Commission on
Selection and Tenure of Administrative Law Judges (“COST”) declining to
reappoint Hines and removing Barber as administrative law judges. We dismiss
the petitions for lack of jurisdiction.
This court’s jurisdiction to directly review administrative agency decisions is
restricted by the District of Columbia Administrative Procedure Act (“DC APA”)
to “contested cases.” See D.C. Code § 2-510 (a) (2012 Repl.); Farrell v. District of
Columbia Police & Firefighters’ Ret. & Relief Bd., 151 A.3d 490, 492 (D.C.
2017). Proceedings involving “[t]he selection or tenure of an officer or employee
of the District” are expressly excluded from the definition of a “contested case,”
see D.C. Code § 2-502 (8)(B) (2012 Repl.), and hence are not directly reviewable
by this court. A decision to remove or not to reappoint an employee of the District
falls squarely within this exclusion. See Kennedy v. Barry, 516 A.2d 176, 178
(D.C. 1986); Barry v. Wilson, 448 A.2d 244, 246 (D.C. 1982); Wells v. District of
Columbia Bd. of Ed., 386 A.2d 703, 704-06 (D.C. 1978). As administrative law
judges, petitioners were employees of the District. See D.C. Code § 1-609.08(2012 Repl.) (“The following employees of the District shall be deemed to be in the
3
Excepted Service[:] . . . (15) . . . the Administrative Law Judges . . . .”) (emphasis
added). Accordingly, the proceedings before COST resulting in the removal of
Barber and the non-reappointment of Hines were not contested cases, and this
court has no jurisdiction to consider their petitions for review.1
The petitions for review in these matters are hereby dismissed for lack of
jurisdiction.
So ordered.
1
In general, initial judicial review of decisions concerning the selection or
tenure of District employees is properly sought in Superior Court. See District of
Columbia Hous. Auth. v. District of Columbia Dep’t of Human Rts. & Local
Bus. Dev., 733 A.2d 338, 342 (D.C. 1999); Wilson, 448 A.2d at 246. Respondent
argues that petitioners are not entitled to judicial review at all on the merits of
COST’s personnel actions in their cases. We express no view on that question.