VILEAN STEVENS & IKE PROPHET v. DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH , 150 A.3d 307 ( 2016 )

District of Columbia
Court of Appeals
No. 14-CV-315
DEC 15 2016
VILEAN STEVENS & IKE PROPHET,
Appellants,
v. CAP-3345-10
DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH,
Appellees.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: FISHER and THOMPSON, Associate Judges; and PRYOR, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment on appeal is affirmed.
For the Court:
Dated: December 15, 2016.
Opinion by Associate Judge Phyllis D. Thompson.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
12/15/16
No. 14-CV-315 /
VILEAN STEVENS & IKE PROPHET, APPELLANTS,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAP-3345-10)
(Hon. Joan Zeldon, Trial Judge)
(Argued October 4, 2016 Decided December 15, 2016)
David A. Branch for appellants.
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 appellee.
Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.
THOMPSON, Associate Judge: Appellants Vilean Stevens and Ike Prophet
appeal from a judgment of the Superior Court that affirmed decisions by the
District of Columbia Office of Employee Appeals (“OEA”) upholding the
abolishment, through a reduction-in-force (“RIF”), of positions that appellants held
at appellee District of Columbia Department of Health (“DOH” or the “Agency”).
2
For the reasons that follow, we agree with the OEA (and with the Superior Court)
that the RIF was governed by the Abolishment Act, D.C. Code § 1-624.08 (2006
Repl.) (sometimes hereafter referred to as the “Act”), rather than by the so-called
general RIF statute, D.C. Code §§ 1-624.02 – .07 (2006 Repl.). We also conclude
that substantial evidence supports the OEA’s determination that DOH satisfied the
procedural requirements of the Abolishment Act in implementing the RIF. We
therefore affirm the judgment.
I. Background
Until the RIF that is the subject of the parties’ dispute, appellants worked in
the Commodity Supplemental Food Program (“CSFP”) of the DOH Community
Health Administration, Nutrition and Physical Fitness Bureau.1 By letter dated
December 29, 2008, the Director of DOH sent each of the appellants a notice of
separation by RIF. The letter stated that it “serve[d] as official notice of at least
thirty (30) calendar days” that appellants would be separated from service effective
January 30, 2009, “in accordance with Chapter 24 of the District’s Personnel
1
CSFP provides federal commodity food, nutrition education, and related
services to pregnant and post-partum women, children under the age of six, and
seniors over the age of sixty.
3
Regulations[.]” The letter further informed appellants that, inter alia, they had a
right to appeal to the OEA.
Appellants appealed to the OEA, contending that DOH (1) undertook the
RIF pursuant to the general RIF statute, D.C. Code § 1-624.02, rather than
pursuant to the Abolishment Act, D.C. Code § 1-624.08, and (2) did so without
complying with the regulatory requirements applicable to RIFs conducted under
the general RIF statute. Appellants contended in addition that DOH’s stated reason
for the RIF — “[l]ack of [f]unds” — was contrived and a pretext for outsourcing.
Appellants further contended that they were not provided one round of lateral
competition.
In substantially identical initial decisions on appellants’ appeals, the OEA
concluded that its decision was “guided solely” by the Abolishment Act, which
limited the issues appellants could bring to whether they were afforded the thirty
days’ prior written notice of separation required by the Act and whether each was
afforded one round of lateral competition within his or her competitive level. The
OEA found that both appellants were properly afforded thirty days’ written notice,
that “the entire unit in which [appellants’] position[s were] located was abolished,”
and that DOH also “was in compliance with the lateral competition requirements
4
of the law.” In addition, the OEA ruled that it lacked jurisdiction to determine
whether the RIF was “bona fide or violated any [other] law.”
Appellants sought review by the Superior Court, which consolidated their
cases and affirmed the OEA’s initial decisions in part and remanded in part. The
court affirmed, as supported by substantial evidence, the OEA’s determination that
no lateral competition was required because appellants’ “entire unit was RIFed.”
The court remanded the matter to the OEA, however, to explain “why the RIF fell
within the Abolishment Act and not the general RIF provision.” The court issued
an amended order reasoning that the OEA “does have jurisdiction to consider the
question of whether the RIF at issue was a sham” and expanding the scope of the
remand for the OEA to consider “whether [appellants’] sham RIF arguments are
frivolous or non-frivolous.”
In an “Addendum Decision on Remand,” the OEA ruled that it was
“primarily guided” by the Abolishment Act for “RIFs authorized due to budgetary
restrictions.” It asserted that the Act “was enacted specifically for the purpose of
addressing budgetary issues resulting in a RIF” and observed that the Act “is a
more streamlined statute for use during times of fiscal emergency.” Citing this
court’s decision in Washington Teachers’ Union, Local # 6 v. District of Columbia
5
Pub. Sch. (“WTU”), 960 A.2d 1123 (D.C. 2008), the OEA noted this court’s
statement that the RIF involved in that case, which was implemented “to ensure
balanced budgets,” “triggered the Abolishment Act provisions.” Id. at 1132. The
OEA also reasoned that the “notwithstanding” language of the Act’s third
paragraph, D.C. Code § 1-624.08 (c) (“Notwithstanding any rights or procedures
established by any other provision of this subchapter, any District government
employee, regardless of date of hire, who encumbers a position identified for
abolishment shall be separated without competition or assignment rights, except as
provided in this section.”) “suggests that [the Act] is the more applicable statutory
provision in order to conduct RIFs resulting from budgetary constraints.” Further,
the OEA determined that appellants’ “arguments relative to the instant RIF being a
sham are FRIVOLOUS.” It found that appellants had “failed to proffer any
credible argument(s) or evidence that would indicate that the RIF was improperly
conducted or implemented” and that there were no material facts in dispute
warranting an evidentiary hearing. The Superior Court affirmed the OEA’s
Addendum Decision on Remand.
In the instant appeal, appellants contend that the RIF was not conducted due
to a lack of funds or budgetary constraints and that the OEA therefore erred in
concluding that the RIF was governed by the Abolishment Act rather than by the
6
procedural requirements of the general RIF statute and its implementing
regulations. Appellants argue in the alternative that even if the cause of the RIF
was a “budgetary concern,” the OEA erred in assuming either (1) that the
Abolishment Act replaced the general RIF statute, such that the Act governs all
government agency RIFs, or (2) that any RIF undertaken because of a budgetary
concern is an Abolishment Act RIF. Appellants contend that the OEA was
required to consider the “intent and procedures used” in the RIF, factors that they
assert show that the DOH RIF “was clearly intended to be conducted under the
[general] RIF statute.” Appellants also argue that the case should be remanded
because the OEA failed to hold an evidentiary hearing and make factual findings
resolving what they contend are material issues of disputed fact. Appellant
Stevens argues in addition that the OEA erred in holding that there was no
violation of the one-round-of-lateral-competition requirement. We address each of
these claims in turn.
II. Applicable Law
A. This court’s standard of review in OEA cases
This court “review[s] agency decisions on appeal from the Superior Court
the same way we review administrative appeals that come to us directly.” Dupree
7
v. District of Columbia Dep’t of Corr., 132 A.3d 150, 154 (D.C. 2016). “Thus, in
the final analysis, confining ourselves strictly to the administrative record, we
review the OEA’s decision, not the decision of the Superior Court, 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.” Id. (internal quotation marks
omitted). “Questions of law, including questions regarding the interpretation of a
statute or regulation, are reviewed de novo.” Id.
B. The general RIF statute and the Abolishment Act
Both the general RIF statute, D.C. Code §§ 1-624.01 through 624.07, and
the Abolishment Act, D.C. Code § 1-624.08, are found in Subchapter XXIV of the
Comprehensive Merit Personnel Act (“CMPA”), entitled “Reductions-in-Force.”
The general RIF statute “embod[ies] broader RIF procedures than those found in
the Abolishment Act[.]” WTU, 960 A.2d at 1134.
The general RIF statute authorizes the Mayor (and the District of Columbia
Board of Education) to “issue rules and regulations establishing a procedure for the
orderly . . . termination of employees[,]” D.C. Code § 1-624.01 (2006 Repl.), and
sets out a list of RIF procedures. Id. § 1-624.02. The Mayor has adopted
8
implementing regulations that are set out in Chapter 24 of the District of Columbia
Personnel Manual, 6B DCMR § 2400-99.2 6B DCMR § 2401.1 provides that each
personnel authority is to follow these regulations “when releasing a competing
employee from his or her competitive level when the release is required by . . . (a)
[l]ack of work; (b) [s]hortage of funds; (c) [r]eorganization or realignment; or (d)
[t]he exercise of restoration rights [in connection with homeless veterans
reintegration programs].”
The Abolishment Act provides as follows:
2
As summarized by the OEA in its Addendum Decision on Remand,
appellants contend that DOH failed to satisfy the procedural requirements of D.C.
Code § 1-624.02 and its implementing procedural regulations “by not considering
job sharing and reduced work hours and agency reemployment (6[B] DCMR
2403.2 and 2401.1); by not providing justification for a lesser competitive area
than the Agency (6[B] DCMR 2409.3 (c)); by not providing a broader competitive
level (6[B] DCMR 2410.4); and, by not providing a Retention Register after
approval for the RIF (6[B] DCMR 2412).”
We note that the regulations implementing the general RIF statute also
define certain terms used in the Abolishment Act. As reflected in D.C. Code
§ 1-624.08 (d), in the Abolishment Act, “Congress provided as a point of reference
Chapter 24 of the Personnel Manual, . . . because it not only defines [the term] ‘one
round of competition,’ . . . but also explains competitive levels and how they are
established . . . , as well as provides information regarding an agency
Reemployment Priority Program . . . and a Displaced Employee Program[.]”
WTU, 960 A.2d at 1134 (noting, too, that “[r]ulemaking for an Abolishment Act
RIF is not essential because . . . all of the material RIF procedures are
encompassed within § 1-624.08”).
9
§ 1-624.08. Abolishment of positions for fiscal year
2000 and subsequent fiscal years.
(a) Notwithstanding any other provision of law,
regulation, or collective bargaining agreement either in
effect or to be negotiated while this legislation is in effect
for the fiscal year ending September 30, 2000, and each
subsequent fiscal year, each agency head is authorized,
within the agency head’s discretion, to identify positions
for abolishment.
(b) Prior to February 1 of each fiscal year, each personnel
authority (other than a personnel authority of an agency
which is subject to a management reform plan under
subtitle B of title XI of the Balanced Budget Act of 1997)
shall make a final determination that a position within the
personnel authority is to be abolished.
(c) Notwithstanding any rights or procedures established
by any other provision of this subchapter, any District
government employee, regardless of date of hire, who
encumbers a position identified for abolishment shall be
separated without competition or assignment rights,
except as provided in this section.
(d) An employee affected by the abolishment of a
position pursuant to this section who, but for this section
would be entitled to compete for retention, shall be
entitled to one round of lateral competition pursuant to
Chapter 24 of the District of Columbia Personnel
Manual, which shall be limited to positions in the
employee’s competitive level.
(e) Each employee selected for separation pursuant to
this section shall be given written notice of at least 30
days before the effective date of his or her separation.
(f) Neither the establishment of a competitive area
smaller than an agency, nor the determination that a
specific position is to be abolished, nor separation
10
pursuant to this section shall be subject to review except
that:
(1) An employee may file a complaint contesting a
determination or a separation pursuant to subchapter XV
of this chapter or § 2-1403.03; and
(2) An employee may file with the Office of
Employee Appeals an appeal contesting that the
separation procedures of subsections (d) and (e) were not
properly applied.
(g) An employee separated pursuant to this section shall
be entitled to severance pay in accordance with
subchapter XI of this chapter, except that the following
shall be included in computing creditable service for
severance pay for employees separated pursuant to this
section:
(1) Four years for an employee who qualified for
veterans preference under this chapter, and
(2) Three years for an employee who qualified for
residency preference under this chapter.
(h) Separation pursuant to this section shall not affect an
employee’s rights under either the Agency
Reemployment Priority Program or the Displaced
Employee Program established pursuant to Chapter 24 of
the District Personnel Manual.
(i) With respect to agencies which are not subject to a
management reform plan under subtitle B of title XI of
the Balanced Budget Act of 1997, the Mayor shall submit
to the Council a listing of all positions to be abolished by
agency and responsibility center by March 1 of each
fiscal year or upon the delivery of termination notices to
individual employees.
11
(j) Notwithstanding the provisions of § 1-617.08 or
§ 1-624.02(d), the provisions of this chapter shall not be
deemed negotiable.
(k) A personnel authority shall cause a 30-day
termination notice to be served, no later than September
1 of each fiscal year, on any incumbent employee
remaining in any position identified to be abolished
pursuant to subsection (b) of this section.
(l) In the case of an agency which is subject to a
management reform plan under subtitle B of title XI of
the Balanced Budget Act of 1997, the authority provided
by this section shall be exercised to carry out the
agency’s management reform plan, and this section shall
otherwise be implemented solely in a manner consistent
with such plan.
D.C. Code § 1-624.08.
While the permanent legislation known as the Abolishment Act had its
origin in congressional legislation, the language of the Act first appeared in
emergency and temporary legislation enacted by the Council of the District of
Columbia (“the Council”) in 1995 and 1996. 1995 was a year when “financial and
management problems of the District government” had “adversely affected the
long-term economic health of the District,” University of the District of Columbia
Faculty Ass’n v. District of Columbia Fin. Responsibility & Mgmt. Assistance
Auth., 163 F.3d 616, 618 (D.C. Cir. 1998) (internal quotation marks omitted).
Beginning in August of that year, the Council passed several pieces of legislation
that provided that “(a) Notwithstanding any other provision of law, regulation, or
12
collective bargaining agreement either in effect or to be negotiated while this
legislation is in effect for the fiscal year ending September 30, 1996, each
agency head is authorized, within the agency head’s discretion, to identify
positions for abolishment”; and that “(b) Prior to February 1, 1996, each personnel
authority shall make a final determination that a position within the personnel
authority is to be abolished.”3 Through the latter provision, the Council each time
“set a deadline of February 1, 1996, for personnel authorities to make final
decisions on the identification of positions to be abolished through a reduction in
force[.]”4
In April 1996, Congress enacted the District of Columbia Appropriations
Act of 1996 (“the 1996 Budget Act”), Pub. L. No. 104-134, 110 Stat. 1321 (1996),
“to deal with the District’s financial crisis[.]” Washington Teachers’ Union Local
# 6 v. Bd. of Educ. (“BOE”), 109 F.3d 774, 776 (D.C. Cir. 1997). The 1996
Budget Act temporarily amended District law governing reductions-in-force by
adopting provisions identical to those of the Council-enacted reduction-in-force
3
E.g., 42 D.C. Reg. 4219, 4238 (Aug. 11, 1995); 42 D.C. Reg. 4706, 4711
(Aug. 25, 1995); 42 D.C. Reg. 6181, 6186 (Nov. 10, 1995); 42 D.C. Reg. 6569,
6574 (Nov. 10, 1995).
4
See also 42 D.C. Reg. at 4706; 42 D.C. Reg. at 6181; 42 D.C. Reg. at
6181; 42 D.C. Reg. at 6569.
13
legislation described above, except that the date before which each agency head
was to make a final determination about positions for abolishment was changed
from February 1, 1996, to August 1, 1996. See § 149 (b), 110 Stat. at 1321-98; see
also BOE, 109 F.3d at 777. Congress enacted the temporary provision “to provide
the District with greater flexibility to manage its workforce and control costs[.]”
Board of Trs. of Univ. of District of Columbia v. American Fed’n (“UDC”), 130
A.3d 355, 359 (D.C. 2016); see also Fowler v. District of Columbia, 122 F. Supp.
2d 37, 38 (D.D.C. 2000) (explaining that “[o]perating deficits, cash shortages,
management inefficiencies, deficit spending, and an overall ‘fiscal emergency’ led
Congress to enact [the Abolishment Act]”).
Thereafter, beginning in June 1996, and again in 1997, 1998, and 1999, both
the Council and Congress passed legislation that updated the language of the
reduction-in-force legislation. The Council added a new section, § 1-625.7, to the
D.C. Code that tracked the language of the earlier legislation, but that changed the
date in the opening paragraph from the phrase “for fiscal year ending September
30, 1996,” to the phrase “for the fiscal year ending September 30, 1997,” and also
changed the succeeding paragraph to “set a deadline of February 1, 1997, for
personnel authorities to make final decisions on the identification of positions to be
abolished through a reduction in force[.]” 43 D.C. Reg. 4377, 4377 (Aug. 16,
14
1996); 43 D.C. Reg. 5427, 5427 (Oct. 11, 1996). Congress passed appropriations
legislation that contained identical changes. See § 140 (b), 110 Stat. at 2373.
Thereafter, during each of the next three years, Congress passed
appropriations legislation that continued the update process: it substituted the
phrase “for the fiscal year ending September 30, 1998,” Pub. L. No. 105-100,
§ 150 (d), 111 Stat. 2160, 2183 (1997); the phrase “the fiscal year ending
September 30, 1999,” Pub. L. No. 105-277, § 144 (b), 112 Stat. 2681, 2681-144
(1998); and then the phrase “for the fiscal year ending September 30, 2000,” Pub.
L. No. 106-113, § 140 (b), 113 Stat. 1501, 1522 (1999), for the originally enacted
phrase “for the fiscal year ending September 30, 1996,” and it changed the date by
which a final decision was to be made on the identification of positions to be
abolished to February 1, 1998; then to February 1, 1999; and then to February 1,
2000. See § 150 (d), 111 Stat. at 2183; § 144 (b), 112 Stat. at 2681-144; and § 140
(b), 113 Stat. at 1522.5
5
Congress also made corresponding date adjustments in paragraphs (i) and
(k) of the Act, specifying the dates (March 1, 1998; March 1, 1999; and March 1,
2000) by which the Mayor was to submit to the Council a listing of all positions to
be abolished and the date by which termination notices were to be served. § 150
(d), 111 Stat. at 2183-84; § 144 (b), 112 Stat. at 2681-144; § 140 (b), 113 Stat. at
1522.
15
In November 2000, Congress made (what is to date) its final amendment to
the Abolishment Act, substituting the phrase “September 30, 2000, and each
subsequent fiscal year” for the originally enacted phrase in subsection (a), and
inserting, in subsection (b), “[p]rior to February 1 of each year” in lieu of February
1 of a specified year. See Pub. L. No. 106-522, § 129 (b), 114 Stat. 2440, 2467
(2000); Pub. L. No. 106-553, § 129 (b), 114 Stat. 2762, 2762A-29-30 (2000)
(emphasis added). The Council subsequently amended the heading of the Act
(which had been recodified as D.C. Code § 1-624.08) to read “Abolishment of
positions for fiscal year 2000 and subsequent fiscal years” and also substituted the
phrase “each fiscal year” for the phrase “each year” wherever it appeared. 52 D.C.
Reg. 10637, 10645 (Dec. 9, 2005).
The permanent legislation described above added a new section (§ 1-625.7,
later recodified as § 1-624.08) to Subchapter XXIV of the CMPA. None of the
Council or congressional legislation described above repealed or amended the
terms of the general RIF statute.
C. Statutory construction principles
16
“The primary and general rule of statutory construction is that the intent of
the lawmaker is to be found in the language that he has used.” Peoples Drug
Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)
(internal quotation marks omitted). This court therefore begins its process of
statutory interpretation “by looking at the statute on its face, and if the meaning is
clear from the face of the statute, we must give effect to that plain meaning.”
Rupsha 2007, L.L.C. v. Kellum, 32 A.3d 402, 406 (D.C. 2011). A “cardinal rule
[of statutory construction is also] that a statute is to be read as a whole[.]” Corley
v. United States, 556 U.S. 303, 314 n.5 (2009) (internal quotation marks omitted).
“[O]ne of the most basic interpretive canons” is that “a statute should be construed
so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.” Id. at 314 (internal quotation marks and
brackets omitted); see also Adgerson v. Police & Firefighters’ Ret. & Relief Bd.,
73 A.3d 985, 992 (D.C. 2013) (“It is a ‘well-accepted tenet of statutory
construction that, whenever possible, a statute should be interpreted as a
harmonious whole.’” (quoting In re T.L.J., 413 A.2d 154, 158 (D.C. 1980));
Thomas v. District of Columbia Dep’t of Emp’t Servs., 547 A.2d 1034, 1037 (D.C.
1988) (“[E]ach provision of the statute should be construed so as to give effect to
all of the statute’s provisions, not rendering any provision superfluous.”).
17
III. Analysis
A. The reach of the Abolishment Act
For the reasons that follow, we agree with appellants that the Abolishment
Act did not supersede the general RIF statute and that a RIF may be governed by
the general RIF statute and regulations rather than by the Abolishment Act even if
it was based on budgetary constraints. We also conclude, however, that the
Abolishment Act currently affords District of Columbia agencies an opportunity
each fiscal year to use a streamlined procedure to abolish positions that they have
identified before February 1 of the fiscal year, without regard to whether there is a
fiscal emergency or budget crisis.
1. The February 1 deadline for RIFs under the Abolishment Act
We begin with the fact, emphasized by appellants, that “[t]he Abolishment
Act did not state that it repealed the [general] RIF statute.” As we have often
observed, “repeals by implication are not favored.” Owens v. District of Columbia,
993 A.2d 1085, 1088 (D.C. 2010) (internal quotation marks omitted) (quoting
Morton v. Mancari, 417 U.S. 535, 549 (1974)). Our first task is therefore to
determine whether the statutes involved here, the Abolishment Act and the general
18
RIF statute, can be harmonized and deemed to have “concurrent operation.”
Mazanderan v. District of Columbia Dep’t of Pub. Works, 94 A.3d 770, 774, 781
(D.C. 2014).
We conclude that the two RIF statutes can be harmonized and that the
general RIF statute has not been diminished by the Abolishment Act’s
“notwithstanding” clauses.6 To be sure, this court has recognized that statutory
6
See D.C. Code § 1-624.08 (a) (“Notwithstanding any other provision of
law [or] regulation, . . . for the fiscal year ending September 30, 2000, and each
subsequent fiscal year, each agency head is authorized, within the agency head’s
discretion, to identify positions for abolishment.”) and (c) (“Notwithstanding any
rights or procedures established by any other provision of this subchapter, any
District government employee, regardless of date of hire, who encumbers a
position identified for abolishment shall be separated without competition or
assignment rights, except as provided in this section.”).
Our conclusion that the Abolishment Act and the general RIF statute both
continue in effect is not inconsistent with the analysis in UDC. We said there that
the Abolishment Act “establishes the process that is to be used to accomplish any
government RIF[.]” 130 A.3d at 359. Divorced from its context, that statement
might be read to mean that the Act has entirely superseded the general RIF statute
for any RIF a government agency undertakes. When the statement is read in
context, however, it becomes clear that it means that the provisions of the
Abolishment Act apply to the District’s educational service employees (a category
that includes UDC employees) just as they do to employees of any other District
agency. The statement appears in a paragraph that explains that while the CMPA
as originally enacted provided that “educational service employees are exempt
from the provisions of Title 24 of the CMPA, which governs RIFs,” the
Abolishment Act amended the CMPA to give the District “greater flexibility to
manage its workforce,” by making the Act applicable to “any government RIF,” id.
(continued…)
19
“notwithstanding” language “customarily evidences an intention of the legislature
that the enactment control in spite of any earlier law to the contrary addressing the
subject.” Leonard v. District of Columbia, 794 A.2d 618, 626 (D.C. 2002); see
also UDC, 130 A.3d at 360 (stating that the Abolishment Act’s notwithstanding
clause “makes clear [Congress’s] intention to remove all legal impediments to the
government’s ability to conduct RIFs under the Act.”). Nevertheless, in
accordance with the principles of statutory construction discussed above, we are
obligated to consider all of the statute’s provisions, not just the “notwithstanding”
clauses. Doing that, we discern that the language of § 1-624.08 (b) and its plain
meaning are the key to understanding how the Abolishment Act operates in
relation to the general RIF statute.
As already described, the Act states (in D.C. Code § 1-624.08 (b)) that
“[p]rior to February 1 of each fiscal year, each personnel authority . . . shall make a
final determination that a position within the personnel authority is to be
abolished.” As expressly stated by the Council in legislative preambles7 (when it
(…continued)
— i.e., by making the Act applicable to educational service RIFs as well as other
government RIFs. Id.
7
See Clement v. District of Columbia Dep’t of Emp’t Servs., 126 A.3d
1137, 1141 (D.C. 2015) (relying on purposes listed in bill preamble as evidence of
(continued…)
20
introduced the February 1 date in connection with RIFs to be implemented for the
fiscal year ending September 30, 1996, or the fiscal year ending September 30,
1997), February 1 was the “deadline . . . for personnel authorities to make final
decisions on the identification of positions to be abolished through a reduction in
force[.]” E.g., 43 D.C. Reg. at 5427 (emphasis added).8 Congress retained the
reference to February 1 in the temporary updates it made to the Abolishment Act in
1996, 1997, 1998, and 1999, and in the amendment it made in 2000 to make the
Act applicable “for the fiscal year ending September 30, 2000, and each
subsequent fiscal year.”
Given the foregoing history, we see no reason to think that the February 1
date as retained in the statute functions any differently than it did as originally
enacted: it is the annual deadline by which an agency must identify positions to be
abolished through an Abolishment Act RIF.
(…continued)
the Council’s legislative intent); Expedia, Inc. v. District of Columbia, 120 A.3d
623, 636 (D.C. 2015) (“The preamble . . . confirmed [the Council’s] purpose[.]”).
8
See sources cited supra note 4; see also 43 D.C. Reg. 5, 5 (Jan. 5, 1996);
43 D.C. Reg. 777, 777 (Feb. 23, 1996); 43 D.C. Reg. at 4377.
21
To put it differently, we construe the “each subsequent fiscal year” language
of § 1-624.08 (a) together with the “February 1” deadline of § 1-624.08 (b) to
mean that the Abolishment Act establishes a once-per-fiscal-year,9 time-limited
opportunity10 for each District of Columbia agency to effect a RIF to manage its
operations and workforce.11 This interpretation harmonizes the two RIF statutes on
a basis that relies on the Abolishment Act’s plain language without rendering the
general RIF statute superfluous. It means, for example, that if an agency
determines after February 1 of the fiscal year that a RIF during the fiscal year is
9
Cf. Horwitz v. Bankers Life & Cas. Co., 745 N.E.2d 591, 607 (Ill. App.
Ct. 2001) (“[W]e believe that no reasonable interpretation of the words ‘each year’
could find that increases could occur more than once per year for every year of the
life of the contract.”).
Per D.C. Code § 1-204.41 (a) (2014 Repl. & Supp. 2016), the fiscal year of
the District of Columbia runs from October 1 to September 30.
10
It makes sense that an each-fiscal-year deadline for identifying positions
to be abolished during a fiscal year should be set for early in the fiscal year, since,
by definition, a fiscal year is “a 12-month period for which an organization plans
the use of its funds.” American Heritage Dictionary 686 (3d ed. 1992).
11
The fact that the plain language of the Abolishment Act sets a deadline
for each agency to make a determination about positions to be abolished under the
Act as a budgetary measure each fiscal year may explain why there was no dispute
that the RIF discussed in Dupree, 132 A.3d at 152, was governed by the general
RIF statute, not by the Act. We noted in that case that appellant Dupree “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.” Id. at 152 (italics added).
22
“necessary,” see D.C. Code § 1-624.03,12 it must implement the RIF, if at all,
pursuant to the general RIF statute and may not do so under the Abolishment Act.
2. Fiscal emergency vel non
As already discussed, in explaining in its January 2013 Addendum Decision
on Remand how the Abolishment Act operates in relation to the general RIF
statute, the OEA reasoned that the Act “was enacted specifically for the purpose of
addressing budgetary issues resulting in a RIF.” It also reasoned that the Act is a
more appropriate statute “for use during times of fiscal emergency[,]” and is “the
more applicable statutory provision in order to conduct RIFs resulting from
budgetary constraints.” It therefore announced a rule, which it has since followed
in numerous cases,13 that it is “primarily guided” by the Abolishment Act for “RIFs
authorized due to budgetary restrictions.”
12
Section 1-624.03, part of the general RIF statute, states that “[t]he
appropriate personnel authority shall be responsible for making a final
determination that a reduction in force is necessary and for ensuring that the
provisions of this subchapter and rules and regulations issued pursuant to this
subchapter are applied when effecting a reduction-in-force within their respective
agency.”
13
See note 26, infra.
23
This court “routinely accord[s] great deference to [the OEA’s] interpretation
of . . . the statute which it administers,” Dupree, 132 A.3d at 155 (internal
quotation marks omitted).14 On that basis, we can accept the OEA’s interpretation
that it is to be “primarily guided” by the Abolishment Act (rather than “solely
guided” by the Act, as the OEA said in its initial decisions on appellants’ positions)
when it is asked to consider a RIF. We can do so because it is not unreasonable for
the OEA, when considering a challenged RIF, to assume that the District of
Columbia employing agency has exercised its each-fiscal-year opportunity to
identify positions for abolishment under streamlined procedures — unless the
agency asserts otherwise or the timing of the agency’s final decision to abolish the
positions in question precludes that conclusion.
That said, our deference must end there, because the OEA did not consider
the significance of the February 1 date (part of the plain language of the Act) by
which an agency must make a final determination identifying positions to be
abolished during the fiscal year. In addition, contrary to the OEA’s reasoning, the
14
See also Davis v. Univ. of the District of Columbia, 603 A.2d 849, 851
(D.C. 1992) (“OEA is the agency charged by the CMPA . . . with the responsibility
of hearing and adjudicating appeals from District of Columbia agency employees.
As such, it should be accorded deference in its interpretation of these provisions of
the CMPA.”); Harrison v. Bd. of Trs. of the Univ. of the District of Columbia, 758
A.2d 19, 22 (D.C. 2000) (“[T]he [CMPA] . . . is administered by the Office of
Employee Appeals[.]”).
24
“each subsequent fiscal year” language of the Abolishment Act will not support an
interpretation that the streamlined provisions of the Act apply only when there is a
fiscal emergency or budgetary crisis. Quite the contrary, while the Abolishment
Act had its genesis as a tool for the District to deal with fiscal emergencies,
Congress abandoned its previous approach of revisiting § 1-624.08 (a) in
connection with each annual appropriation to the District of Columbia, and instead
inserted language that transformed the Act into a law that applies without regard to
the particular financial circumstances confronting the District in any “subsequent
fiscal year[].”15 Unlike the general RIF statute, the Abolishment Act contains no
language indicating that RIFs pursuant to it must be strictly “necessary,” D.C.
Code § 1-624.03, and Abolishment Act RIFs also are not governed by the general-
RIF-statute regulations that specify that a RIF must be based on lack of work,
shortage of funds, reorganization or realignment, or the exercise of restoration
rights in connection with homeless veterans reintegration programs. See 6B
DCMR § 2401.1. For these reasons, we conclude that the OEA’s interpretation
that ties the Abolishment Act to all RIFs that respond to “times of fiscal
emergency” (or to budgetary “constraints,” “restrictions,” or “issues”), is legally
15
As the District’s brief aptly puts it, the Abolishment Act “does not
impose any requirement for a particular factual predicate before positions are
abolished.”
25
erroneous, and we accordingly do not defer to it.16 See UDC, 130 A.3d at 361
(“[T]he Act was passed to provide the District with what Congress considered to
be a critical tool, not only for addressing its then ongoing financial crisis, but also
to better manage its finances in the future.”).
At the same time, and as the foregoing discussion implies, nothing in the Act
supports a conclusion that a RIF undertaken in response to a fiscal emergency will
always qualify as an Abolishment Act RIF. Our interpretation in this regard may
at first glance appear to be at odds with the analysis in WTU, but we are satisfied
that there actually is no conflict. The RIF in dispute in WTU had been announced
in a Board of Education resolution dated May 11, 2004, and the affected school
personnel were notified in the same month. See 960 A.2d at 1125, 1126 n.5. We
said variously that “[t]he abolishment was conducted in accordance with the
Abolishment Act,” id. at 1126; that “the Abolishment Act procedures, imposed for
budgetary reasons, appear to apply to the 2004 RIF, rather than the general RIF
provisions of the CMPA[,]” id. at 1125; that because “[t]he Board’s May 11, 2004
resolution authorized the 2004 RIF at issue . . . to ‘address and eliminate a
longstanding structural budgetary problem,’ . . . the 2004 RIF triggered the
16
We similarly reject appellants’ argument that the Abolishment Act RIF
“covers [only] shortage of funds in a fiscal emergency,” and their contention that
“if the District wishes to conduct a RIF that is not for a fiscal emergency, then it
must follow the applicable regulations in the general RIF statute.”
26
Abolishment Act provisions,” id. at 1132; that “[t]he procedures established in
§ 1-624.08 appear to have governed that RIF, rather than the regular RIF
procedures found in D.C. Code § 1-624.02[,]” id.; and that “[t]he ordinary and
plain meaning of the words used in § 1-624.08 (c) appears to leave no doubt about
the inapplicability of § 1-624.02 to the 2004 RIF[,]” id.
We made all the foregoing statements in WTU without reference to the
timing of the RIF decision involved in that case, i.e., without discussion of when
(to use the language of § 1-624.08 (b)) there had been a “final determination that a
position within the personnel authority [was] to be abolished.” We did so,
however, on a record in which the parties agreed that the RIF was an Abolishment
Act RIF. Thus, the parties’ dispute was not as to whether the Abolishment Act
applied, but instead related to whether, in implementing the RIF, the Board of
Education should have been guided by its pre-Abolishment Act RIF regulations, or
instead should have rescinded those regulations, issued rules that were consistent
with § 1-624.08, and implemented the RIF in a manner consistent with the
Abolishment Act. See id. at 1127–28.17 Further, notwithstanding our statements
17
We note in addition that the record in that case indicates that even though
the RIF was not publicly announced until May 2004, 960 A.2d at 1125-26, the
Board of Education had determined by December 2003 (i.e., before February 1 of
the fiscal year), to implement the necessary abolishments (but, after the Council
(continued…)
27
quoted above that suggested that the Abolishment Act governs RIFs imposed to
address budgetary problems, we articulated a holding in WTU that was (as
appellants in the instant case emphasized to the OEA) quite tentative: we “h[e]ld
that the Abolishment Act procedures appear to apply to the 2004 RIF, rather than
the general RIF provisions of the CMPA.” Id. at 1134 (emphasis added). We also
said that “the determination whether the OEA has jurisdiction [on the ground that
the RIF was an Abolishment Act RIF] is quintessentially a decision for the OEA to
make in the first instance” because of its “specialty in personnel matters.” Id. at
1131. We “conclude[d] that instead of dismissing appellants’ complaints, the trial
court should have stayed its proceedings and transferred the case to the OEA for a
determination of OEA’s jurisdiction; and for initial resolution of appellants’
claims, if OEA confirms its jurisdiction.” Id. at 1125. Given the tentativeness of
our holding in WTU, we do not believe the opinion in that case is a bar to our
holding in the instant case.18
(…continued)
approved some additional funding for the schools, delayed announcing the RIF and
delayed implementing it until the end of the school year).
18
See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[W]e have adopted
the rule that no division of this court will overrule a prior decision of this court . . .
and that such result can only be accomplished by this court en banc.” (footnote
omitted)).
28
To recap what we have concluded in this section: In the beginning, the
political and financial context made it clear that the Abolishment Act was meant to
address the fiscal crises that continued to confront the District each time Congress
updated the Act in connection with District of Columbia appropriations and each
time the Council passed similar emergency or temporary legislation. Until late
2000, the Act applied only year-by-year, while the District was regaining its fiscal
health. However, the actual language of the Act never required that it be triggered
by a fiscal emergency, and when the statute was amended to apply to “each
subsequent fiscal year,” the provisions of the Act became equally available in years
when there was no fiscal emergency. Thus, the Abolishment Act affords agencies
a once-per-fiscal-year opportunity to use a streamlined procedure to abolish
positions that they have identified before February 1 of the fiscal year, without
regard to whether there is a fiscal emergency or budgetary crisis.
B. Whether the DOH RIF was an Abolishment Act RIF
With the foregoing parameters in mind, we analyze the DOH RIF in dispute
here on the basis of the record evidence. We conclude that the OEA did not err in
determining that the Abolishment Act governed the RIF.
29
The documentary record that was before the OEA discloses that during the
final quarter of fiscal year 2008, the City Administrator directed DOH to reduce its
fiscal year 2009 local-funds budget by $2.919 million. In response, DOH
requested approval from then-Mayor Adrian Fenty, in a memorandum dated
December 15, 2008, to implement a RIF and recommended that twenty-four
positions be abolished across four DOH departments, including sixteen from the
CSFP unit. The memorandum noted DOH’s intention to save $600,000 per year
by outsourcing the program and called the transition “a priority for DOH.” 19 On
December 29, 2008, Mayor Fenty signed an administrative order identifying and
abolishing the recommended positions “due to [l]ack of [f]unds.” As described
above, the DOH Director sent appellants a notice of the RIF by letter dated
December 29, 2008, telling them that they would be separated from service
effective January 30, 2009.
Thus, the foregoing undisputed record that was before the OEA established
that, prior to February 1, 2009, DOH made a final determination that certain
identified positions, including the positions held by appellants, were to be
19
According to the memorandum, while the program is partially funded by
the United States Department of Agriculture (“USDA”), the USDA grant “never
fully covered operational and administrative costs, including personnel, IT support,
rental of warehouse space, and vehicle maintenance.”
30
abolished during fiscal year 2009. Accordingly, the RIF counted as an exercise of
the opportunity created by D.C. Code § 1-624.08 (a) and (b) — i.e., as an
Abolishment Act RIF.
Appellants resist that conclusion for two reasons. First, they point out that,
in announcing and implementing the RIF, DOH followed various procedures
required under the general RIF statute, an approach that they argue shows that
DOH intended the RIF to be a RIF under the general RIF statute rather than under
the Abolishment Act. We agree with the observation by the reviewing Superior
Court judge that it is “irrelevant” that DOH completed some of the procedures
called for under § 1-624.02 and its implementing regulations. We also agree with
the District that the Act did not require District officials to have “intended” to act
under any particular statutory authority and that the fact that DOH afforded
appellants more process rather than the minimally required process was not a basis
for denying DOH the opportunity afforded it under the Abolishment Act.20
20
Further, given that the general-RIF-statute regulations define and explain
certain terms (such as “lateral competition” and “competitive level”) used in the
Abolishment Act, see WTU, 960 A.2d at 1134, we are not persuaded by appellants’
argument that DOH’s references, in the thirty-day notices sent to appellants, to the
RIF being conducted “in accordance with Chapter 24 of the District’s Personnel
Regulations” signaled an intent, or bound DOH, to implement the RIF under the
general RIF statute.
31
Second, appellants assert that the Mayor did not, as required by the Act
(specifically, § 1-624.08 (i)), “submit to the Council a listing of all positions to be
abolished by agency and responsibility center by March 1 of each fiscal year or
upon the delivery of termination notices to individual employees.” The District
responds that nothing in the record supports that assertion. The District’s response
appears to be correct, which is significant because appellants had the burden of
proof on this point. Appellants bore that burden because they needed to show that
the RIF was not an Abolishment Act RIF in order to establish that the OEA had
jurisdiction to entertain their claims about DOH’s noncompliance with various
procedural requirements of 6B DCMR Part 2400. See 6B DCMR § 628.2 (OEA
rule stating that “the agency shall have the burden of proof as to all . . . issues,”
except for issues of jurisdiction); Record at 90 (OEA order deeming appellants’
argument that the OEA could consider a broader range of issues than those
described in § 1-624.08 (d) through (f) “to be jurisdictional in nature”); see also
Johnson v. District of Columbia Office of Emp. Appeals, 912 A.2d 1181, 1183
(D.C. 2006) (upholding the OEA’s decision dismissing the employee’s appeal for
lack of jurisdiction because the employee failed to prove that he was an
Educational Service employee who had a right of appeal).
32
We also note that the Act does not specify the form of the required notice to
the Council, and it seems possible that, when signed by the Mayor on December
29, 2008, the Administrative Order listing (by position number, job title, and
organization location code) the positions that had been identified for abolishment
served as a notice to the world, including the Council, “of all positions to be
abolished by agency and responsibility center by March 1 of [the] fiscal year[.]”
D.C. Code § 1-624.08 (i).21
For the foregoing reasons, we reject appellants’ contention that the OEA
erred in treating the DOH RIF as an Abolishment Act RIF.
C. Whether the OEA erred in concluding without an evidentiary hearing
that the Abolishment Act procedural requirements were satisfied
21
Further, while the Council referred to February 1 as the “deadline” for
agencies to make final decisions on the identification of positions to be abolished
(a “deadline” template carried over by Congress in its updates to the Abolishment
Act), the Council never referred to the March 1 date for submission to the Council
as a “deadline.” See, e.g., 42 D.C. Reg. at 6181 (preamble listing as a purpose of
the legislation “to require the Mayor to submit to the Council by March 1, 1996, a
list of positions to be abolished through a reduction-in-force”); 43 D.C. Reg. at
5427 (same for March 1, 1997). We note, too, that § 1-624.08 (i) states that the
Mayor is to give notice to the Council by March 1 “or upon the delivery of
termination notices to individual employees[,]” indicating that there is no fixed
date by which notice is to be given to the Council.
33
Because the OEA properly treated the DOH RIF as an Abolishment Act RIF,
the only question properly before the OEA (aside from the question of the bona
fides of the RIF, which we discuss below) was whether DOH gave appellants, as
RIFed employees, the written 30-days’ notice required by § 1-624.08 (e) and
satisfied the one-round-of-lateral competition requirement established by
§ 1-624.08 (d).22 Appellants do not dispute that DOH gave “employee[s] selected
for separation[,]” including appellants themselves, “written notice of at least 30
days before the effective date of his or her separation.” § 1-624.08 (e). In
addition, appellant Prophet does not claim that DOH was out of compliance with
the lateral competition requirements as to him. Thus, the issue before us is
whether the lateral competition requirement was satisfied as to appellant Stevens.
Appellants were entitled to “one round of lateral competition . . . , which
shall be limited to positions in the employee’s competitive level.” D.C. Code
§ 1-624.08 (d). Documentary evidence in the record indicates that Stevens and
Prophet were in a competitive level designated as “DS-2005-06-03-N” and that all
22
Under § 1-624.08 (f), appellants were not entitled to challenge before the
OEA their separations or the determination that their specific positions were to be
abolished. Thus, the OEA had no authority to entertain their claim that the
outsourcing that the RIF facilitated violated the (now-repealed) Privatization Act,
formerly codified at D.C. Code § 2-301.05 (b).
34
positions in connection with the CSFP that had that designation (listed on a CSFP
organizational chart as “Supply Clerk,” “Supply Technician,” and “Supplemental
Food Clerk” positions) were abolished. We see nothing in the record that indicates
whether there were positions with that (or an equivalent) designation within the
DOH Nutrition and Physical Fitness Bureau, the “Lesser Competitive Area”
designated in the administrative order approved by the Mayor in December 2008.
In any event, Stevens does not argue that there were other positions at her
competitive level in the Nutrition and Physical Fitness Bureau for which she was
entitled to compete — i.e., that the Bureau had other positions “sufficiently alike in
qualification requirements, duties, responsibilities, and working conditions” to the
position she occupied such that she “could successfully perform the duties and
responsibilities of any of the other positions, without any loss of productivity
beyond that normally expected in the orientation of any new but fully qualified
employee.”23 6B DCMR § 2410.4. Her argument is rather that she was entitled to
“one round of lateral competition at her competitive level throughout the entire
23
As Stevens points out, the documentary evidence does appear to show
that there were three positions connected with the CSFP, occupied by Twanna
Chase Bates (“Administrative Support Staff’), Gregory Foy (“Program Assistant”),
and Ivy Isong (“Public Health Nutritionist”), that were not RIFed. The
documentary evidence also appears to show that only three of the four CSFP
“Nutrition Health Technician” positions (designated as competitive level “DS-640-
06”) were abolished. However, Stevens does not contend that she was qualified to
compete for those positions.
35
Agency.” Appellants’ Br. at 27; Reply Br. at 1, 13 (emphasis added). That
argument is foreclosed by the Abolishment Act.24 The Act specifically provides
that “the establishment of a competitive area smaller than an agency” is a matter
that is not subject to review. D.C. Code § 1-624.08 (f); see also BOE, 109 F.3d at
776 (noting that the Abolishment Act “allow[s] agency heads to establish ‘lesser
competitive areas within an agency’ for purposes of a reduction-in-force” (quoting
§ 1-624.01)).
Stevens also argues that she was entitled to a hearing to determine whether
she was “in the proper competitive level[.]” However, she proffered no reason
supporting a plausible inference that she belonged in a different competitive level
within the Nutrition and Physical Fitness Bureau. Accordingly, we cannot say that
the OEA erred in determining that there were no material facts in dispute on the
issue of lateral competition and that appellants were not entitled to an evidentiary
24
The basis of Stevens’s claim that the “entire Agency” was the
competitive area appears to be the general-RIF-statute implementing regulation
stating that (except when justified by the agency in a written request that is
approved), “each agency shall constitute a single competitive area.” 6B DCMR
§ 2409.1. However, because, as we have concluded, the OEA correctly determined
that the RIF was an Abolishment Act RIF, that general-RIF-statute regulation did
not apply.
36
hearing on the issue.25 Cf. Anjuwan v. District of Columbia Dep’t of Pub. Works,
729 A.2d 883, 886 (D.C. 1998) (holding that no OEA hearing was required where
the employee offered nothing but “[m]ere allegations without more” to support his
claim).
We also defer to the OEA’s interpretation that where an employee’s entire
competitive level is eliminated, there is no one against whom he or she could
compete, and therefore that the one-round-of-lateral-competition requirement of
§ 1-624.08 (d) is inapplicable.26 This is in accordance with “deference [we owe to
the OEA] in its interpretation of the[] provisions of the CMPA[,]” Davis, 603 A.2d
25
Nor are we able to discern any error in the designation of appellants’
competitive level. This is not surprising given that competitive levels have “no
judicially manageable standards[.]” WTU, 960 A.2d at 1134.
26
We note that the OEA has relied on this interpretation in a number of
cases. See, e.g., Thompson v. District of Columbia Pub. Sch., OEA Matter No.
2401-0122-14, at 5–7 (Jan. 20, 2015); In re Lee v. District of Columbia Pub. Sch.,
OEA Matter No. 2401-0251-12, at 5 (Mar. 21, 2014); Smart v. District of
Columbia Child & Family Servs. Agency, OEA Matter No. 2401-0328-10, at 6
(Mar. 4, 2014). Some of these cases applied the interpretation on facts indicating
that the employee/petitioner was in a single-person competitive level that was
abolished. Stevens contends that the OEA erroneously held that she “was properly
placed in a single person competitive level.” The factual premise of that argument
is incorrect. The OEA stated, both in its Addendum Decision on Remand and in its
initial ruling, that, for both appellants, the “entire competitive level was abolished,”
without stating that Stevens was, or should have been, part of a single-person
competitive level.
37
at 851, and the OEA’s “developed . . . expertise in administering and enforcing the
District of Columbia Personnel Regulations[,]”27 including the provisions of 6B
DCMR Part 2400 that address what it means to afford lateral competition. In this
case, that principle dictates deference to the OEA’s interpretation that no more was
required of DOH with respect to the Act’s requirement of one round of lateral
competition if (as substantial evidence in the record indicates) the RIF abolished
appellants’ entire competitive level.28
D. Whether appellants were entitled to a hearing on their claim
that the RIF was not a bona fide RIF
27
Hutchinson v. District of Columbia Office of Emp. Appeals, 710 A.2d
227, 234 (D.C. 1998).
28
We acknowledge Stevens’s argument that because her actual position
was “supplemental food clerk,” rather than “supply technician” as shown on the
DOH Retention Register, she “was not RIF’d from her position of record.” As the
District points out, in her Petition for Appeal by the OEA, Stevens listed her
position title as “Supply Technician,” perhaps suggesting that the terms were
understood to be interchangeable. In any event, nothing in the record suggests that
Stevens’s separation was the result of an erroneous description of what position
she occupied within the CSFP unit; rather, the record evidence is that her position
was abolished in connection with outsourcing of the food program for which she
performed “food clerk” functions. Also, Stevens specifically denies that she
should have been in a single-person competitive level, a circumstance that still
would have triggered application of the OEA’s interpretation that no round of
lateral competition was required because she had no one with whom to compete.
See supra note 26.
38
Appellants assert that the OEA erred by concluding it had no jurisdiction to
consider whether the RIF was a “sham.” This is actually a non-issue because, in its
Addendum Decision on Remand, the OEA exercised jurisdiction and determined
that appellants’ claims that the RIF was not a bona fide RIF were frivolous. We
address instead appellants’ argument that the OEA erred by failing to recognize, as
appellants contend was required by Levitt v. District of Columbia Office of Emp.
Appeals, 869 A.2d 364, 366-67 (D.C. 2005), that a hearing was required for the
OEA to properly assess their claims that there was no shortage of funds and that
the RIF was contrived to cover up DOH’s desire to outsource.
The facts of Levitt were that the employing agency transferred Levitt, who
had served the District of Columbia government for nineteen years, to a newly
created Grade 15 position with no supervisory responsibilities (a circumstance that
Levitt alleged was “extremely unusual” for a Grade 15 position), and then, less
than a month after his new position was created, “abolish[ed] the very position it
had specifically created for him.” Id. at 366. We held that Levitt was entitled to a
hearing on his “detailed allegations of improper employment actions” and that the
OEA’s decision to dismiss Levitt’s position without discovery and a hearing was
not supported by substantial evidence. Id. at 366–67. We quoted Fitzgerald v.
Hampton, 467 F.2d 755, 758–60 (D.C. Cir. 1972): “Although a separation may
39
have been stated by an agency to be by a reduction-in-force, when [there are] non-
frivolous allegations of an illegal discharge, which if proved would constitute an
illegal adverse action by the agency, we think a request for a hearing should be
granted as a procedural right to which [the requester is] entitled[,]” lest the effect
be to “deprive [the employee] of all adverse action procedural rights[.]” Levitt,
869 A.2d at 366 n.4 (emphasis in original).
Thus, in Levitt, we recognized that a hearing was warranted because the
employee had made substantial allegations to the effect that the employing agency
had targeted him, rather than a bona fide position he occupied, for elimination,
without affording him the procedural protections that apply to terminations for
cause.29 Appellants’ allegations are not at all analogous to those in Levitt (and
likewise are not analogous to the allegations in Anjuwan that “the agency-wide RIF
was a sham to retaliate against him for his whistleblowing activities,” 729 A.2d at
885–86). The undisputed evidence in this case was that the RIF was directed at all
or most of the positions in a program area; no evidence was proffered that DOH
targeted appellants or other employees individually (and, indeed, as Stevens avers,
29
Cf. Wilburn v. Dep’t of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985)
(remanding employee’s case to the Merit Systems Protection Board where the
employing agency “strongly appears to have abolished the newly created vacant
position for reasons personal to [the employee]”).
40
she and other RIFed employees were rehired by the outsourcing contractor to
perform the same functions they had performed as DOH employees, albeit at lower
salaries). Further, the short answer to appellants’ argument that the RIF was
implemented for a contrived reason is the point we have discussed above: that no
shortage of funds and no other particular factual predicate was required to justify
what we have concluded was an Abolishment Act RIF. For that reason, even if the
statement in the Mayor’s Administrative Order to the effect that the reason for the
RIF was a “[l]ack of [f]unds” was incorrect30 and/or was a contrived explanation to
30
We note that even when reviewing a RIF implemented under the general
RIF statute, the OEA lacks “authority to second-guess the mayor’s decision about
the shortage of funds[.]” Anjuwan, 729 A.2d at 885. In any event, there was
substantial evidence in the record to support a finding that DOH did have a
shortage of funds. The Community Health Administration’s Fiscal Year 2009
Local Budget Reduction states that DOH was obliged to reduce its baseline budget
by $2.919 million, and the Agency’s response to appellants’ interrogatories reflects
the same information. A Fiscal Year Gap-Closing Plan was created to address the
shortage of funds. It appears that the Agency was able to achieve the necessary
savings by cutting positions funded with local dollars, but that it could not have
accomplished its program goals with only the remaining federally funded
positions.
Further, it appears that the larger context was that the District was facing a
fiscal emergency. This court noted in Washington, D.C. Ass’n of Realtors, Inc. v.
District of Columbia that “[i]n November 2008, facing unexpected revenue
shortfalls and needing to meet its statutory obligation to present a balanced budget
to Congress, the Council . . . declared the existence of a fiscal emergency and
outlined the steps that would be taken to meet it.” 44 A.3d 299, 301 (D.C. 2012)
(footnote signal omitted); see also 55 D.C. Reg. 12119, 12119 (Nov. 28, 2008)
(citing, in Council Resolution 17-856, a shortfall in local fund revenues for fiscal
year 2009 and declaring the existence of a fiscal emergency); 55 D.C. Reg. 12601-
(continued…)
41
cover up the plan for outsourcing, that did not render the RIF and appellants’
resultant separations invalid. Therefore, the OEA did not err in resolving
appellants’ claims without a hearing.
E. Whether there were other material issues of fact
that necessitated an evidentiary hearing
Finally, appellants argue that a hearing was required to resolve their various
other claims. However, the matters that they assert require an evidentiary hearing
either relate to claims that the OEA reasonably determined were frivolous (e.g.,
that the RIF was a sham of the type involved in Levitt), or else are pure legal issues
(e.g., whether an agency may conduct an Abolishment Act RIF to address a
shortage of local funds); legal issues that could be resolved on undisputed facts
(e.g., whether the DOH RIF qualified as an Abolishment Act RIF); mixed issues of
law and fact that are irrelevant to an Abolishment Act RIF (e.g., did the Retention
Register satisfy the requirements of 6B DCMR § 2412); or factual questions the
(…continued)
14 (Dec. 19, 2008) (notice of D.C. Act 17-573, the “Fiscal Year 2009 Balanced
Budget Request Emergency Amendment Act of 2008,” which enacted substantial
budget cuts); Memorandum from the Office of the City Administrator to All
Department and Agency Heads (Oct. 29, 2008) (referring to the “proposed FY
2009 Gap-Closing Plan” that would “resolve a projected revenue shortfall of $131
million,” and describing the allocation of spending rescissions of approximately
$52 million among the various District of Columbia agencies).
42
answers to which are, for reasons we have explained, immaterial (e.g., what
general-RIF procedures did DOH follow, whether DOH “intended” to conduct the
RIF pursuant to the Abolishment Act, whether there was a shortage of funds or a
fiscal emergency in fiscal year 2009, whether appellants were RIFed to pay for
outsourcing the CSFP or for other “improper” reasons, or whether the RIF saved
any money). Accordingly, the OEA did not err in ruling that there were no
material facts in dispute and that no hearing was required.
**
For the foregoing reasons, we uphold the OEA’s decision, and the judgment
of the Superior Court is
Affirmed.