WIDMON BUTLER, APPELLANT, v. METROPOLITAN POLICE DEPARTMENT, et al., APPELLEES.
No. 18-CV-1238
DISTRICT OF COLUMBIA COURT OF APPEALS
October 29, 2020
Appeal from the Superior Court of the District of Columbia (CAP-7843-17) (Hon. Anthony C. Epstein, Trial Judge) (Argued January 29, 2020)
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.
David A. Branch for appellant.
Carl J. Schifferle, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for appellee Metropolitan Police Department.
Lasheka Brown Bassey filed a statement in lieu of brief for appellee Office of Employee Appeals.
Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and MCLEESE, Associate Judges.
I.
Except as indicated, the following facts are undisputed. Mr. Butler, who is an attorney, worked as a claims specialist in MPD‘s Medical Services Division. His duties included helping to determine whether MPD employees’ injuries and illnesses arose in the performance of duty. In July 2013, Mr. Butler‘s union asked him to represent another union member and MPD civilian employee, Ms. Josephine Jackson, in a proceeding before the District of Columbia Office of Risk Management (ORM). He agreed. As part of this representation, Mr. Butler emailed ORM in August 2013 to request that ORM reconsider three workers’ compensation claims that Ms. Jackson had filed. Mr. Butler sent the email from his MPD account, identifying himself as an attorney.
On September 12, 2013, ORM‘s General Counsel contacted MPD‘s Human Resources Management Division with concerns about Mr. Butler‘s email. Specifically, ORM‘s General Counsel noted that Mr. Butler had apparently sent the email from his MPD account during work hours, even though he represented Ms. Jackson privately. ORM‘s General Counsel also stated that Mr. Butler‘s position as a claims examiner working in connection with MPD‘s clinic raised conflict-of-interest issues, because Ms. Jackson had been treated at that clinic.
The same day, MPD‘s Human Resources Director contacted MPD‘s Internal Affairs Division (IAD) to request that IAD look into Mr. Butler‘s conduct. IAD assigned Sergeant Paulette Woodson to do so. On September 18, 2013, Sergeant Woodson emailed the United States Attorney‘s Office (USAO) to notify the USAO that she was investigating whether Mr. Butler had “double-dipped,” i.e., handled private matters during his MPD work hours. Later the same day, the Medical
On October 1, 2013, MPD referred the matter to the USAO, asking the USAO to determine whether criminal charges should be brought against Mr. Butler for illegally accessing MPD‘s medical database by viewing Ms. Jackson‘s files for his own personal purposes. Eight months later, on June 2, 2014, the USAO issued a letter declining to criminally prosecute Mr. Butler.
MPD then conducted its own disciplinary investigation. IAD interviewed Mr. Butler in September 2014. Mr. Butler denied accessing or seeing Ms. Jackson‘s medical records, even after being shown a report indicating the date and time on which he had opened her file. On October 6, 2014, MPD served Mr. Butler with a notice of proposed termination, charging him with misfeasance for (1) accessing Ms. Jackson‘s medical records in violation of MPD‘s acceptable-use agreement; (2) misusing government property; and (3) making untruthful statements during an IAD interview.
MPD Commander Keith Williams subsequently recommended that Mr. Butler be terminated, rejecting Mr. Butler‘s claim that the notice of proposed termination was untimely under the “ninety-day rule.” See
MPD subsequently terminated Mr. Butler, who appealed his termination to MPD Chief Lanier, arguing primarily that the ninety-day rule barred the termination. Chief Lanier disagreed, reiterating that MPD had considered Mr. Butler‘s actions criminal since their discovery on September 12, 2013. Chief Lanier further explained that Mr. Butler‘s termination was also based on his untruthful statements to IAD, which were made only six days before the notice of termination was issued.
Mr. Butler appealed his termination to the Office of Employee Appeals (OEA), which conducted an evidentiary hearing before an Administrative Judge (AJ). Sergeant Woodson, the IAD investigator, testified that she determined that Mr. Butler‘s conduct had “criminal overtones,” because of the indications that he had been working on behalf of private clients during his work hours for MPD. MPD introduced evidence at the hearing that Mr. Butler acted unlawfully by accessing the electronic file containing Ms. Jackson‘s MPD medical records, which he had kept open for over fifty minutes. There also was evidence that Mr. Butler had made a false statement to IAD about his conduct.
Mr. Butler testified in his own defense, contending in essence that although he had opened Ms. Jackson‘s file, he had not actually reviewed her medical records.
The AJ found that Mr. Butler had unlawfully accessed Ms. Jackson‘s medical
The AJ issued an “initial decision” upholding the termination. The AJ determined that MPD did not violate the ninety-day rule. On that issue, the AJ indicated that the ninety-day period started running on September 12, 2013, when MPD was first notified by ORM of Mr. Butler‘s possible misconduct. The AJ further concluded that the ninety-day period was tolled from October 1, 2013, to September 25, 2014 -- from the day the matter was referred to the USAO until the day IAD issued its investigative report. The AJ therefore calculated that only eighteen untolled business days had passed when Mr. Butler received the notice of termination on October 6, 2014.
On the merits, the AJ determined that Mr. Butler committed misfeasance by accessing medical records without authorization; that Mr. Butler lied to IAD when he denied doing so; and that Mr. Butler had committed two prior offenses justifying the penalty of termination. Finally, the AJ overruled Mr. Butler‘s objection that the record had closed after the evidentiary hearing and that MPD was thus precluded from introducing new evidence of prior misfeasance on remand.
Mr. Butler appealed to the OEA Board. The Board upheld the AJ‘s determination that MPD did not violate the ninety-day rule, although the Board‘s analysis of that issue differed from that of the AJ. According to the Board, the ninety-day period was tolled starting on the day MPD was alerted about the incident, September 12, 2013. Without specifically addressing the time period from that date until October 1, 2013, when MPD referred the matter to the USAO, the Board stated that the ninety-day period was tolled because the allegations against Mr. Butler were the subject of a criminal investigation by the USAO. After determining that the tolling stopped when the USAO issued its letter of declination on June 2, 2014, the Board concluded that MPD had timely issued the notice of termination within eighty-eight business days of the declination letter. The Board also upheld the AJ‘s authority to keep the record open after the remand order and before the initial decision, confirmed Mr. Butler‘s termination as the proper penalty, and declined to revisit the AJ‘s conclusions as to Mr. Butler‘s credibility.
Mr. Butler then sought review in Superior Court, which upheld the Board‘s ruling. On the timeliness issue, the Superior Court took yet a different approach. First, the Superior Court found that IAD had been criminally investigating Mr. Butler from the time it learned of his conduct on September 12, 2013. On this point, the Superior Court‘s reasoning was as follows: the September 18, 2013, letter to the USAO indicated that IAD viewed Mr. Butler‘s conduct as potentially criminal double-dipping; there was no evidence that IAD learned new and incriminating information about Mr. Butler‘s conduct between September 12, 2013, and September 18, 2013; it was therefore reasonable to infer that IAD viewed Mr. Butler‘s conduct
The Superior Court also relied on an alternative rationale. According to the Superior Court, MPD was not on notice of Mr. Butler‘s unlawful accessing of medical records -- the conduct that ultimately was the principal basis of the finding of misconduct -- until September 18, 2013. With respect to that conduct, the Superior Court reasoned, the ninety-day period did not start running until September 18, 2013, and the clock was tolled beginning on the same day by IAD‘s investigation into that potentially criminal conduct.
Either way, in the Superior Court‘s view, IAD‘s criminal investigation then tolled the ninety-day period until IAD referred the matter to the USAO. At that point, the USAO criminal investigation tolled the ninety-day period until the USAO‘s letter of declination on June 2, 2014. Based on these conclusions, the Superior Court determined that at most eighty-eight untolled business days had run at the time of the notice of termination, which therefore was timely.
On the merits, the Superior Court deferred to the AJ‘s credibility determinations and found that substantial evidence supported the finding that Mr. Butler made false statements during the IAD interview. Finally, the Superior Court concluded that the AJ was not required to explicitly reopen the record before remanding to MPD, and the AJ therefore permissibly considered additional evidence of other instances of misfeasance for penalty purposes before issuing the initial decision.
II.
When reviewing an OEA decision that has been reviewed by the Superior Court, “our scope of review is precisely the same as in administrative [cases] that come to us directly.” District of Columbia Fire & Med. Servs. Dep‘t v. District of Columbia Off. of Emp. Appeals, 986 A.2d 419, 424 (D.C. 2010) (internal quotation marks omitted). We ordinarily defer to OEA‘s reasonable interpretation of statutes “under which [OEA] acts.” Id. (internal quotation marks omitted). OEA‘s “decision must state findings of fact on each material contested factual issue; those findings must be supported by substantial evidence in the agency record; and the agency‘s conclusions of law must follow rationally from its findings.” Id. (internal quotation marks omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). We also “examine the agency record to determine whether . . . OEA‘s action was arbitrary, capricious, or an abuse of discretion.” Id. (brackets and internal quotation marks omitted).
A.
Turning first to the timeliness of the notice of termination, we conclude that this issue must be remanded for further consideration by OEA.
1.
We cannot sustain the AJ‘s analysis of the timeliness issue, because the AJ treated the ninety-day period as tolled until IAD issued its investigative report in September 2014. Under
2.
For different reasons, we also cannot uphold the OEA Board‘s analysis of
MPD argues that all of the time from September 12, 2013, to October 1, 2013, was tolled, because Mr. Butler‘s conduct was under criminal investigation by MPD during that period. That argument runs into a procedural obstacle: neither the AJ nor the OEA Board relied on that rationale. “Generally, an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.” Apartment & Off. Bldg. Ass‘n v. Pub. Serv. Comm‘n, 129 A.3d 925, 930 (D.C. 2016) (internal quotation marks omitted). There are exceptions to the general rule against affirming agency action on grounds that the agency did not rely upon and adequately explain. E.g., id. (affirmance is permissible where remand would be futile because (a) it is clear agency would reach same result or (b) agency could permissibly reach only one conclusion). We conclude, however, that those exceptions do not apply in the present case.
The precise date on which Mr. Butler‘s conduct was first under criminal investigation by MPD may turn on unresolved matters of both law and fact. Section
MPD argues that conduct is under criminal investigation by MPD as soon as MPD (a) is aware of potentially criminal conduct and (b) has taken at least one concrete step to look into that conduct. Mr. Butler, however, appears to contend that in addition someone in MPD would have to subjectively view the investigation as potentially criminal rather than merely civil or disciplinary. We choose to leave to OEA in the first instance the question of how best to interpret the phrase “subject of a criminal investigation” in the current context. See generally, e.g., Brown v. District of Columbia Dep‘t of Emp‘t Servs., 83 A.3d 739, 751-52 (D.C. 2014) (“In accordance with our usual practice, we will not attempt to construe the statutory provisions before the agency charged with administering them has done so; we think it inadvisable for this court to attempt to review the issue on this record without a clearer exposition by the agency of its statutory analysis in light of the facts of this case and the broader considerations presented by the issue.“) (internal quotation marks omitted).
In MPD‘s view, the interpretation of “subject to a criminal investigation” is a pure issue of law as to which we owe no deference to OEA. As we have previously noted, however, this court generally defers to reasonable agency interpretations of ambiguous statutes under which the agency acts. District of Columbia Fire & Med. Servs. Dep‘t, 986 A.2d at 424-25. We have stated that principle not only as to OEA in
In arguing that we would owe no deference to OEA‘s interpretation of
There are circumstances in which deference to an agency‘s interpretation of a statute is not warranted. For example, we will not defer to an agency‘s interpretation of a statute of general applicability. Off. of People‘s Couns. v. Pub. Serv. Comm‘n, 955 A.2d 169, 173 (D.C. 2008). Because MPD has not argued that
MPD contends that in any event its proposed interpretation of the phrase “subject of a criminal investigation” is the only reasonable one, and thus there is no need for this court to hear in the first instance from OEA. We disagree. As this case illustrates, IAD has multiple functions, investigating conduct sometimes for internal disciplinary reasons, sometimes for possible criminal prosecution, and sometimes for both purposes. Consider a case in which (a) MPD is informed of an
Whether Mr. Butler‘s conduct was the subject of a criminal investigation by MPD during some or all of the period from September 12, 2013, to October 1, 2013, thus might turn on how OEA would reasonably interpret the phrase “subject of a criminal investigation.” The answer to that question might also turn on factual and other issues that OEA has not addressed, including most notably at what precise point Sergeant Woodson determined that the matter had “criminal overtones.” For the reasons we have explained, we leave these matters to be determined in the first instance by OEA.
3.
We also are unable to uphold the Superior Court‘s ruling. As previously explained, the Superior Court identified two rationales for finding that the notice of termination was timely. First, the Superior Court inferred as a matter of fact that IAD viewed Mr. Butler‘s conduct as potentially criminal as of September 12, 2013. Drawing such factual inferences, however, was beyond the scope of the Superior Court‘s authority in reviewing an agency decision. See, e.g., Murchison v. District of Columbia Dep‘t of Pub. Works, 813 A.2d 203, 206 (D.C. 2002) (per curiam) (“When an administrative body fails to make findings on material, contested issues of fact, a reviewing court cannot fill in the gap and make its own findings. Rather, the court must remand the case to the agency for it to make the necessary factual determinations.“; remanding case to Superior Court so that Superior Court could remand to OEA for OEA to make factual findings).
Second, the Superior Court reasoned that MPD was not on notice of Mr. Butler‘s unlawful accessing of medical records -- the conduct that ultimately was the principal basis of the finding of misconduct -- until September 18, 2013. OEA, however, did not rest on that rationale. As reviewing courts, neither the Superior Court nor this court can ordinarily uphold OEA‘s decision on a rationale that OEA did not rely upon in making its decision. Apartment & Off. Bldg. Ass‘n, 129 A.3d at 930.
4.
Although Mr. Butler agrees that the decision of the OEA cannot be affirmed, he appears to suggest that this court could reverse OEA‘s timeliness ruling outright, without remanding the matter. We disagree.
First, Mr. Butler argues that the AJ found as a matter of fact that the ninety-day limit was not tolled from September 12, 2013, to October 1, 2013; that reviewing courts are obliged to defer to that finding, which was adequately supported by the record; and that, given that factual finding, the notice of proposed termination was untimely. It is true that the AJ treated the ninety-day period as running from September 12, 2013, to October 1, 2013. The AJ, however, did not explain its reason for doing so and made no finding, factual or otherwise, as to whether Mr. Butler‘s conduct was under criminal investigation by MPD from September 12, 2013, to October 1, 2013. Remand is thus necessary for OEA to further address the timeliness issue.
B.
For the foregoing reasons, we remand the case to OEA for further consideration of the timeliness question. Although the parties have briefed in this court a number of other issues related to the timeliness question, we conclude that those issues are better left to consideration if necessary on remand. See generally, e.g., District of Columbia Metro. Police Dep‘t v. Pinkard, 801 A.2d 86, 90 (D.C. 2002) (declining to reach additional contentions when case was remanded to OEA for further review). We do, however, address two discrete remaining issues.
First, Mr. Butler disputes the AJ‘s finding that he lied to IAD about accessing medical records. We are not persuaded by Mr. Butler‘s argument on this point. The AJ‘s finding was supported by substantial evidence, including that Ms. Jackson‘s medical records were open on Mr. Butler‘s computer for over fifty minutes. Although Mr. Butler continued to deny having actually reviewed Ms. Jackson‘s medical records, it was for the AJ to assess the credibility of that denial. See, e.g., Rocha-Guzmán v. District of Columbia Dep‘t of Emp‘t Servs., 170 A.3d 170, 175 (D.C. 2017) (“Credibility determinations are within the discretion of the [Administrative Law Judge (ALJ)], and typically are entitled to great weight due to the ALJ‘s unique ability to hear and observe witnesses first hand.“) (internal quotation marks omitted); Johnson v. District of Columbia Off. of Emp. Appeals, 912 A.2d 1181, 1185 (D.C. 2006) (“[T]here can be substantial evidence on both sides of a dispute. If the administrative findings are supported by substantial evidence, we must accept them even if there is substantial evidence in the record to support contrary findings.“) (internal quotation marks omitted).
Finally, Mr. Butler argues that OEA acted impermissibly by considering the information provided by MPD after the AJ remanded the matter to MPD. We see no error.
Mr. Butler relies on three OEA rules. First,
In Mr. Butler‘s view, these OEA rules precluded the AJ from considering
For the foregoing reasons, the judgment of the Superior Court is vacated and the case is remanded for the Superior Court to remand the case to the OEA for further proceedings.