District of Columbia v. Thompson

SCHWELB, Bеfore FERREN and *, Judges, BELSON Associate and Judge, Associate Retired. REHEARING

ON PETITION FOR FERREN, Judge: Associate employ- Appellant Thompson, Patricia an of the District ee the Northeast branch the Dis- Library, sued Public Columbia Maury, for Alfred supervisor, trict and her distress, of emotional intentional infliction battery. On defamation, and assault of the court 12,1990, division February Thomp- held, opinion, II of our Part presented the District against son’s claims all her question” whether a “substantial emotional, as alleged injuries—mental under the covered physical well as —were provisions of the compensation disability Personnel Comprehensive Merit District’s 1-624.2 to -624.- (CMPA),D.C.Code Act Thomp- 46(1987). District Columbia (D.C.1990). son, 570 * Retired, Judge, June Judge effective Judge BELSON was an Associate Associate argument. He became an court at the time of for a new trial the an exclusivi- versed remanded

These CMPA sections contain id. at (Part V), l-624.16(c), ty claims for defamation 291- provision, D.C.Code § battery (Part 16, which, applicable, would assault if infra VI), recognized, id. We preclude Thompson’s law claims moreover, if to rule that if that DOES were against the District. We concluded Thompson’s the District disability provisions did cover these claims claims, compensation governed by CMPA’s Thompson could seek were only through provisions, rulings adminis- our on defamation and from the District Maury Department battery applicable assault and proceeding trative before the Id. (DOES). Thompson in be available to renewed Employment Services would seeking proceedings to the trial trial court derivative 288. We therefore remanded 288, Id. against at proceeding liability the District. stay court with directions to the District until 301. against of Columbia time Thompson had had a reasonable opinion After issuance first and of our by filing the reach CMPA test order, Maury and 580 A.2d the District Id. at disability DOES for benefits. granted rehearing.1 for We petitioned

300-301. opinion petition, vacating without our and order, primarily give further considera- opinion III of the we considered In Part (and, consequently, III argument. We tion to Part Parts the District’s alternative VI) that, IV, V, possible opinion. According- and of that held contrast with CMPA’s again on disability provisions, comprehen- ly, we have focused once CMPA’s argument provisions District’s alternative under personnel evaluation sive —more specifically, Subchapter govern- comprehensive those CMPA: “perform- “performance ratings”, provisions covering employee D.C. ing employee 15) (1987), ratings” (Subchapter and those and 1-615.1 to -615.5 ance “adverse Code §§ 17) “grievances” (Subchapter ac- and Subchapter covering “adverse actions” for id. “grievances,” provide 1-617.1 to exclusive remedies tions” and arising employer kinds of preempt Thompson’s claims out of the -617.3 —did against performance and dis- bring сommon law actions evaluation tort activities — subchapters. Maury. Thompson, In cipline District and those —identified short, those CMPA provi- Nor did we reconsider whether A.2d at 289. these CMPA preclude preempt, and thus require sions exhaustion of administrative Therefore, against Maury District and Id. not de- action remedies. had we court on, stay against Thompson’s claims of defamation and proceeding cided to emotional dis- possible preemption of intentional infliction of District because arising employment out we would tress rela- provisions, the CMPA reaching persuaded by the tionship.2 other We are now have found no CMPA bar argument. Accordingly, preemption law claims while the merits Furthermore, parts of our earlier District. be- we reaffirm several against (except for the perceived opinion bar introduction cause we no CMPA —the sentences), two, I id. dispositional Part Thompson’s against Maury, suit last (CMPA (facts proceedings), II dis- on those and Part & n. we reached the merits (reassign- VII doing so, ability provisions), and Part we dismissed claims. judge) to different trial vacate intentional infliction of emotional ment claim for —we IV, V,3 III, (summary id. (Part IV), re- and VIII and Parts distress properly brought indepen- petition re- in court 1. thus are Because the filed its Maury hearing trict, and the Dis- on behalf both actions. dent tort arguments the "Dis- all which we label appellants. both extend tо trict’s” Stockard, Moss v. 3.In (D.C.1990), court incor- & n. 1020-1022 Thompson’s assault District concedes that analysis porated in Part V of and relied on our battery against Maury Dis- and the claims opinion. analysis accordingly earlier That our properly as actions trict are not characterized survives. Subchapters covered Thompson’s emotional distress at 281. modify Part VI to delete Id. disposition) and following actions: also rests on the the defamation claim. claim reference to then [Maury] approved her leave and I. without changed her status to absence leave; her for he refused to consider A. grade next level or to promotion to the damages of jury for; A awarded computer test she asked give her the $35,000 battery, for assault employees; $530 her from the other he isolated defamation, $42,500 inflic- for intentional her doctor requested he statements from distress, $280,000for emotional hours; tion of he memo- as to her limited wrote earning capaci- wages or diminished leave; loss of and he on her excessive randa to the defamation ty attributable either it, resulting and lied about assaulted her emotional to the intentional infliction of job in her loss.4 Thompson, 570 A.2d at distress. Id. at 290. dis- Thompson’s defamation and emotional mem- twenty-two claims are based on tress B. Mau- supervisor, appellant that her oranda addressing Maury’s Before memoranda ry, during Thompson’s had written two- conduct, alleged and other tortious we be- beginning May year employment in helpful to the lieve it would be outline Northeast library technician at that, according scheme to the Library. of the As

branch District’s Public District, provides the exclusive route to opinion: in we noted our earlier resolving Thompson’s claims. es- CMPA memoranda, beginning These in June that, system tablishes a merit 1981, repeatedly advised and warned (1) among things, provides other em- [Thompson] to follow the correct leave including “performance ratings,” ployee request procedures and notified her of (2) necessary; “corrective actions” when problems performance employee discipline through “adverse ac- duties, including conflicts with a summer handling prompt proceedings; tion” employee, inaccuracy putting informa- “grievances.” D.C.Code employee computer, tion into the and insubor- -615.5 and 1-617.1 to -617.3. 1-615.1 to §§ pa- dination and rudeness to staff and rule, public employ- general whether a As a Thompson trons. claimed that all these corrective or adverse action ee defends a false, they memoranda were de- grievance by employer, or initiates a her, that, writing by famed the mem- employer, the mat- proceeding her, harassing Maury oranda and inten- detailed resolved either under ter will be tionally had inflictеd emotional distress. or under a CMPA-sanc- procedures Thompson testified that some of the agreement bargaining be- tioned collective doing memoranda blamed her for not employing agency public and a tween tasks when she either had been told not union—but not both. See employees’ labor to do them or had been asked to do other l-615.3(c), -615.4(d), -617.3(d). id. §§ Thompson work. also testified that subchapter 15 specifically, memoranda either More some mischar- -615.5, CMPA, re- 1-615.1 to disputes Maury acterized her with D.C.Code §§ negotiation Mayor, with “after absolutely quires were false. She felt some of organizations,” to estab- excessively appropriate the other memoranda were labor critical, plan” for evalu- they “performance-rating lish a and she said contained com- 1-615.1. ating personnel. Id. plaints Maury not told her in all covered § had minimum, provide for must person. plan, at a CMPA, 617.1(d),permits dismissal proposed D.C.Code § received a notice of dis- 1— things) charge (among on: for cause on June 1983. The notice other “cause" based stated the reason for her was “Dis- “(11) public, termination su- Discourteous treatment Supervisor." your courteous Treatment of employeesf.]” pervisor, or other Thompson, Subchapter A.2d at charges, copy of the im- to receive a written ratings “used to performance annual answеr, and to performance.” Id. have time to file a written prove days be rated ac- Employees shall “within 45 calendar 1-615.2. receive a decision § scale from cording at least a five-level charges preferred.” date that “may “unsatisfactory;” “outstanding” to l-617.3(a)(l)(D). Id. § 90-day unsatisfactory only after a be rated employee may appeal any adverse may be re- warning period;” and advance employee-initiated decision on an action or proce- by “adverse action” moved OEA, grievance to Subchapter 17 of dures outlined l-606.3(a) Superior Court. Id. review §§ -617.3, “unless oth- 1-617.1 §§ -617.3(b); (d), -606.4(e), see Stokes negotiated contract” provided by erwise Columbia, District of union. Id. public employees labor (D.C.1985)(affirming Superior Court rever- 1-615.3. reinstating electrical sal of OEA’s order impartial employee may obtain an An institu- juvenile correctional foreman rating by the performance of a review tion). However, perform- as in the case of par- or her own of review within his board review, griev- rating “[a]ny system of ance by subject further review agency, ticular of adverse ac- ance resolution or review (OEA), Employee Appeals id. the Office of District and a negotiated between the tions -615.4, l-606.3(a), Superior organization precedence shall take labor l-606.3(d). Employees cover- Id. Court. including Subchapter proсedures, over” agreement, bargaining ed a collective l-617.3(d).7 OEA review. D.C.Code § however, performance may be goes employee grievance to arbitra rating plans procedures and review If an bargaining provided under CMPA collective pursuant differ from those tion to a l-615.4(d), -615.5.5 employee itself. id. and the agreement, the union §§ award to may appeal the arbitration pro- Subchapter establishes CMPA (PERB), Employee Relations Board Public “griev- processing employee cedures for Superior Court. judicial review grievance 1-617.2. “The ances.”6 Id. § (12). 1-605.2(6) Employees dis and Id. §§ provide expeditious for the system shall representation their union’s satisfied with grievances complaints and adjustment of PERB, and then seek may appeal to cor- prompt taking appropriate of and the Court, they if have a Superior review complaint griev- or action when the rective improper conduct. See alleging basis for review, is, justified.” upon found to be ance -605.2(12); -605.2(9), 1-605.2(3), id. Subchapter governs §§ 17 also “adverse Id. (D.C. Hall, 537 A.2d Hawkins v. actions,” removal for cause. Id. such as 1988) (Board employees who of Education 1-617.1, by When confronted -617.3. unlawfully and union with- action, claimed Board employee an is entitled an adverse interest, concern, employees." instance, welfare of by or covered a collec- 5. For 1-603.1(10). might bargaining agreement § not have tive seeking action option review of an adverse of (OEA). Employee Appeals by 7.Any normally represented of a un- employee before the Office nonetheless, regulations recognize griev- lacks present that it may, The OEA’s elect to ion (1) bargaining jurisdiction employer any when a collective time without ance to the negotiated proce- agreement "provides organization provid- exclusive intervention of the labor — action, ratings, performance opportunity given dures for adverse an to be the union is ed review,” grievances "adjustments reduction-in-force present or to offer its views—but agreement permits bargaining the terms grievances when a collective must be consistent with of statutory bargaining agree- employee between the applicable an to choose collective 1-618.6(b). procedures negotiated and an em- from review We know ment.” D.C.Code negotiated procedures. opts employee ployee Regulations to use the once an who OEA 601.2, D.C.Reg. agreement Proposed Regulations bargaining by OEA 4350, a collective covered (1980). D.C.Reg. final, adopted permits as choose between negotiated procedures elects may negotiated procedures, he or she "any broadly grievance as use the 6. CMPA defines procedures employee-initiated govern- not use CMPA’s of the District matter under the control supra appeal OEA. See note 5. adversely that matter to impairs affects the or ment which Thompson’s claims intersect. wages required dues from their scheme and held union the union contract remedies at We discuss not how to exhaust administrative relief); provisions seeking judicial applies but also how the CMPA PERB before Fra- (absent apply a union Employee themselves would ternal Order Police v. Public contract) Bd., (D.C.1986) complaints Thomp- to the kinds of Relations affirming son has made. (upholding trial court order improperly PERB decision that union re- argues, rehearing, The District pay out- agreement scinded member’s Maury’s memoranda can be char- some fees). side counsel direction,” acterized as “letters of 282-283,

Thompson, A.2d at “letters C. id., repri- warning,” see and “written permitted mands” as “corrective actions” Thompson was a member of the by bargaining agreement be- the collective Library employees’ exclusive bar Public Library and tween the District’s Public agent, gaining The American Federation Similarly, agree. AFSCME.8 We some State, County Employees, Municipal provi- these memoranda come within the (AFSCME). Although AFL-CIO authorizing each sions of itself dis claims for defamation and emotional agency measures” such to use “corrective tress, therefore, by must be tested refer “reprimands.”9 as Library’s ence to the contract with AFSCME, oth- applicable principles pre agree ‍‌​‌‌​‌‌‌​​​‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‍also the District that We emption appear to be directed remedy Maury exclusiveness of er memoranda —of —are discipline under employee’s rights the same and at more forms of whether an serious governed discharge an unsatis- obligations a collective such as bargaining agreement factory “performance rating,” see id. at defined, exam- say of CMPA itself. We or for “cause” because ne- ple, “incompetency” CMPA and a CMPA-sanctioned union con or “inexcusable governing glect duty,” tract are alternative documents or “insubordination.”10 memoranda, generally covering similarly, scope the same of em These could serve ployer-employee rights disciplinary action under the and duties. We the basis for a consider, next, Library-AFSCME therefore how the CMPA contract.11 XV, 1, agree- pay, Library’s days, 8. Article Section of the for more than reduced in rank or provides ment AFSCME only for "corrective ac- only or removed ... for cause and "counseling” by employ- tions” that include subchap- provisions accordance with the of this supervisor, reprimand,” ee’s immediate an "oral chapter. subchapter ter and VI of this supervisor’s direction/warning,” a “letter of and аction shall reflect extent of the corrective supervisor’s reprimand.” a “written Contract severity D.C.Code of infraction.” LIBRARY, BETWEEN THE DISTRICT OF COLUMBIA PUBLIC l-617.1(b). to embrace "Cause” is defined § Columbia Government of and American Fed- including: twenty-two categories, "Fraud in se- County Municipal Employees, State, eration of curing appointment of official or falsification Council 20, Locals 1808 and 877 at AFL-CIO, records,” "Inefficiency," "Incompetency,” “Inex- (March 1982) [Library-AFSCME 18-19 Contract]. "Insubordination," duty," neglect cusable of duty,” "On-duty “Dishonesty,” provides: Mayor "Drunkenness 9. CMPA "The ... shall issue regulations establishing agen- drugs prescribed obtained rules and cy internal use of and/or corrective, leave,” punitive, rather than measures. illegally,” without absence "Inexcusable procedures Adverse action shall not be in con- “Engaging felony,” in a strike." of a "Conviction flict with these corrective measures nor with any provisions l-617.1(d) (Supp.1990). See District Id. § subchapter. of this Such rules Un- v. Teamsters Dep't Corrections Columbia regulations may provide reprimands for 319, 246, (D.C.1989) ion Local No. days suspensions and for for 30 or less. The enforced arbi- (affirming order that trial court appropriate personnel authority shall adminis- reinstating employee fired for be- award tration procedures disciplinary ter the established un- express CMPA’sdefi- terms of not within havior subsection, subject der this subchapter to the “cause”.) nition of chapter. this The extent VI of of the severity corrective action shall reflect the of the XV, (“Disciplinary Ac- Section 11.Article l-617.1(a). D.C.Code § infraction.” contract, tions”), Library-AFSCME see of the employer requires to make a supra nonprobationary note provides em- 10. CMPA issuing pro- "may suspended inquiry” before a notice of ployees "careful and certain others be representa- agree— Thompson and her AFSCME again we The District adds —and tive, to defend- a to Thompson Maury was not limited submitted memorandum disciplinary ing Thompson’s grievance. denying herself from corrective AFSCME memoranda; Maury actions based on the process griev- Thompson elected not to grievance pro- was entitled to initiate she beyond step.13 first ance this supra A, ceedings notes 6 under CMP sought her collec- Thompson also to use Library-AFSCME or under the con- challenge pro- bargaining right her tive grievance many, include tract.12 A would August posed termination.14 On all, Thomp- caused if not of the items that grievance for processed a AFSCME example, the denial of son distress: through steps four Thompson three of the leave, inaccurate letters of allegedly bargaining agree- specified the collective warning, charges of excessive and the supra note 13. A hearing was ment. See supra leave-taking. note 6. September held on and а decision was many opportu- Although Thompson had September upholding her ter- issued on challenge perceived she nities to what declined to take the mination. AFSCME treatment, grievances— she filed unfair four, arbitration, step grievance through her union —on two occasions. Thompson appeals.15 took no further 1982, Thompson Library- used the May In sum, employee such as public grievance procedure to seek addi- AFSCME Thompson comprehensive rights to no- has training upgrade and an computer tional tice, hearing, appeal, review of meeting After a job classification. XV, Library posed disciplinary written notice to the Director within action. Article Section step working days provides respect fifteen of the decision at further —with furlough employer proposes whom the three. furlough pay, days, more than fourteen without compensation, in rank or or dis- Library’s July reduction final notice of 14. The charge thirty days' receive right Thompson of her termination informed —that notice, reply, opportunity appeal with an followed Library-AFSCME contract "to under the possible at the “earliest date.” The using appropriate steps decision out- this decision employee of the reason notice must inform the negotiated in the Grievance Procedure.” lined right appeal under for the action and of the complied requirements of with the This notice prescribed steps Proce- supra “the of the Grievance Library-AFSCME contract. See dure.” Id. argues defective The District this notice was it did not inform because XVI, Library- appeal her to the Office of termination 12. Article Section l-606.4(e). “Any employee Employee Appeals. provides: AFSCME Contract District, therefore, effect, Library us to con- has asks the District of Columbia Public who negotiated procedures just clude that the notice cause to believe that under his/her light require- working regulation notice of the District of Colum- defective in l-606.4(e). Library stipulated by Agree- ment of See District Columbia bia Public Daniels, (D.C.1987) (re- adversely 570 been affected shall be enti- ment have manding police depart- grievance...." case to OEA because tled to submit a notify employee ap- ment failed to to Daniels, OEA). peal issue in to The how- XVI, Library- the 13. Article Section ever, inappropriateness an was the claimed Thompson present to AFSCME Contract allows agency employee notice that told an "no further through steps. grievances four The first appeal permitted.” administrative is Id. at 570. employee’s step presentation the is an oral to employee’s right scope The of an to receive days working supervisor immediate within ten a union contract was not аt issue. notice under employer’s allegedly unfair action or the of the case, agency complied Thompson’s In the with knowledge supervisor employee’s The of it. negotiated explicit terms of a contract. Un- the writing days. reply orally five or in within must circumstances, no defect in unresolved, der these there was grievance step provides two If the is notice, especially light of D.C.Code 1- §§ the request, hearing, before the a at the union's -617.3(d), clearly 606.2(b), that ne- which state head, response required department with gotiated procedures for adverse action review days hearing. working If five of the within provi- statutory conform to notice need not hearing, necessary, step the third is a at the l-606.4(e). § sions of request, the Director of the Pub- union’s before respond Library, five work- who must within lic hearing. step Thompson with AFSCME’s ing days fourth 15. If was dissatisfied after the The to file a by representation, permitted her provides union’s CMPA for arbitration invoked ratings personnel and adverse 1-617.1 to -617.3 performance with id. any l-624.16(c)16; under CMPA and under CMPA- Thompson, actions Moreover, endorsed union both revisit, contract. at 289. question The first we must afford the therefore, CMPA and union contract em- is whether failure of the grievances against ployee legislature file provide explicitly for exclu- governmental any employer for matter sive remedies in CMPA 1-615.1 to §§ impairs adversеly “which affects” the or -615.5 and to -617.3 1-617.1 was intend- §§ concern, “interest, employee’s or welfare.” ed to employees pursue leave free to all 1-603.1(10); supra D.C.Code note 6. arising employment claims out of their as employee rights against The also has court, common law actions in unless cover- representation. for inadequate union disability provisions.17 ed the CMPA supra I.B.; Part 15. The District argues Thompson’s complaints that all of A. except battery the one for assault and were cognizable Subchapters under opinion CMPA our earlier we concluded that Library-AFSCME 17 or personnel under the Con- provisions CMPA’s evaluation accordingly urges tract. The District us to did not preempt common law remedies for hold that CMPA’s are remedies exclusive First, three reasons. we indicated that and, as a consequence, that is provisions these disability pro- and CMPA’s precluded bringing from her defamation visions should with be construed reference claims emotional distress to court. that, implied each other. We writing exclusivity provision disability into the

II. act, section of the Council had demon- its familiarity strated the use of such provisions govern The CMPA with language “performance and thus ratings,” actions,” Council’s fail- “adverse (which ure to “grievances” provi- make the evaluation we sometimes re fer to sions collectively “personnel Thomp- as exclusivе was intentional. evaluation son, Second, provisions”) drawing 570 A.2d at 289. —unlike provisions provide they a traditional canon of construc- —do tion, preclude exclusive common law we said “not claims. we would construe a Compare 1-615.1 altering beyond to -615.5 statute as §§ PERB, complaint review of the Civil Service Reform Act of Superior (CSRA), supra Court. See Part I.B. Pub.L. No. 92 Stat. 1111 (codified, amended, in various sections of 5 exclusivity U.S.C.), provision governing disability The federal well as to earlier laws incor- claims, l-624.16(c), provides: porated D.C.Code § into District of Columbia law. See D.C. -242(3). l-213(c), Code courts have liability District of Columbia preempts held that CSRA common law reme- government subchapter ... under ... States, dies. See David F.2d v. United respect injury to the death of an (9th Cir.1987); Morrissey, Lehman employee, is exclusive and instead of all other (9th Cir.1985) curiam). (per F.2d It is liability govern- of Columbia District questionable employ- therefore whether District ment ... ... direct ees have had remedies available action_ common law judicial proceeding, in a civil [or] for defamation or emotional distress actions against analysis premised assumption public employer 17. Our on the their before CMPA. that, however, law, generally applies but for would The common statutory repeal, have common law tort remedies available District of Columbia absent 109, Nelson, public employer, including their their Nelson v. 548 112 & n. 3 A.2d (D.C.1988), supervisors. subchapters parties ques- has The various of CMPA and none of beginning availability became law at different times March tioned the of law remedies 3, reasons, 1, extending January willing 1979 and absent CMPA. For we are as late 1980 these assume, deciding, and in some See to that at the instant cases thereafter. without (1987). Immediately inapplicable public employees, 1-637.1 became § before CMPA CSRA effective, employees such causes of action became were sub- common law remedies for District ject preempted by disability provisions to the became available unless CMPA. Federal Columbia, (FECA), Employees’ Compensation Act Pub.L. Newman v. 518 A.2d District Cf. of 698, 89-554, (1966), (D.C.1986) (exclusivity provision No. 80 Stat. U.S.C. 706 in 532 5 8101-8193, personnel disability compensation and to evaluation CMPA’s scheme does §§ 630 filing require.” provisions grievances of sive for

what the words the statute (citing Employ appeals working of conditions and of ad- Department Id. Dell v. of 102, (D.C. Services, personnel groups 499 A.2d 107 verse actions. These two ment 1985)).18 therefore, although clearly Finally, provisions, “some federal of CMPA altogether subject ad have comprehensive courts have ruled that different matters Although purposes. together by ministrative schemes such as CMPA and knit claims,” id., large piece legisla- dis their in one preempt common law we inclusion of tinguished ground chapter of these сases on the tion—one omnibus the District they on the of federal a “were decided basis Columbia Code—intended cover di- law, array19 public in preemption of state a doctrine verse of issues inherent (foot applicable present provisions governing per- employment, case.” Id. omitted). 17) (Subchapters sonnel evaluation 15 governing disability compensa- and those longer persuaded We are no 24) (Subchapter tion may be treated as previous analysis. place, our In the first separate statutes. sections should not be read specifically, personnel More the CMPA (sometimes reference to each other called pro- disability compensation evaluation and materia) pari respective subject if their visions, altogether respectively, have dif- purposes matters different. See ferent antecedents. We noted in States, 970, 565 A.2d 975 Holt v. United disability provisions Newman that CMPA’s (D.C.1989)(en banc) (“Statutory provisions Subchapter 24 part the most ... subject pari “[f]or relate to the same materia forerunner, track those of its federal purpose matter or have same or ob Compen- Employees’ FECA”—the Federal (citations omitted). Moreover, ject”) al Newman, Act. at sation 518 A.2d though courts have indicated that statutes reaching FECA had antecedents back to adopted likely at the same are more time (1964 ed.) (discus- 5see U.S.C. 751 § pari be in than those enacted materia title). comprehensive- sion of short It was times, compare Crosby, different Tabas v. ly reorganized in 1966 in and revised (Del.Ch.1982), 444 A.2d 255 with State 89-488, Pub.L. No. 80 Stat. 252 and codi- Loscomb, Md. A.2d 768 v. 291 435 (1988). fied 5 Until at U.S.C. 8101-8193 §§ (1981), we said that this doctrine have effective, expressly CMPA became FECA primarily to “does not refer coincidence applied of the District Co- enactment,” Holt, 975; (1988). 5 lumbia. See U.S.C. 8139 FECA purpose. matter focus is exclusivity has provision. See 5 U.S.C. disability compensation id. The (1988). 8173 provisions displace the were intended to compensation contrast, common law with scheme personnel In CMPA’s evalua- fixed, provided immediate benefits provisions tion direct federal have no injuries on-the-job regardless Subchapter (perform- of fault. See source. CMPA’s 15 Columbia, rating) analogous Chapter Newman ance is contrast, (D.C.1986). (performance rating) A.2d of 5 U.S.C. 4301- origins (1988), had in the evaluation established which new, comprehensive, system Ratings Act of Pub.L. merit-based Performance Stokes, evaluating employees, 502 No. 1098. CMPA’s Sub- Stat. chapter (adverse actions; system grievances) exten- at 1009—a includes only personnel in- evaluation not bar common claim for intentional 19. CMPA covers not distress). disability compensation variety but also fliction emotional equal employment other concerns such Co., 7), Pennsylvania Ry. opportunity (Subchapter 18. See also classifications Shaw North ("No 8-11), (Subchapters classifications of 101 U.S. L.Ed. service 12), altering (Subchapter compensation com- statute is to be construed as law, 16), import. responsibilities (Subchapter It is labor- mon farther than its words and management 18), any (Subchapter safety, making not to be construed as innovation relations health, 21-23), fairly (Subchapters upon does and life insurance the common law which it 27). express.”) (Subchapter retirement and to, ratings ac- analogous though substantially differ- formance and adverse from, (adverse actions) which, Chapter ent tions/grievances respectively, had Reform Act of 1978 Civil Service different sources from one another. federal 95-454, 1111, (CSRA), Pub.L. No. 92 Stat. out, adopting As it turned in CMPA the (1988), codified at 5 U.S.C. 7501-7514 FECA, Newman, §§ tracked see Council Chapter (appeals), and CSRA U.S.C. 704, developed quite A.2d at different but (1988). 77, Chapters and 7701-7703 personnel provisions those evaluation from turn, comprehensive in to the traceable Congress adopted employees. federal 1966, revision of Title 5 of the U.S.Code in history showing legislative Given this 532, Pub.L. No. 80 Stat. which also statutes, enacted antecedents different These included revisions FECA. CSRA times, though at different codified in the chapters predecessors expressly their U.S.Code, title of the and further same applied employees, to District see 5 U.S.C. given personnel the fact 4301(1)(F)(1977), and do not contain an § disability compensation evaluation sub- provision. exclusivity chapters altogether pur- reflect different of the Council Columbia matters, poses we conclude adopted legisla- CMPA because home rule subchapters that these CMPA were devel- upon tion had called the Council to estab- oped practical purposes separate for all government system” lish a “District merit pieces legislation, though contained in replace legislation Congress previously disability the same omnibus act. These Columbia, had enacted for the District of personnel provisions, evaluation there- limitation,” “including, legislation without fore, interpreta- do not meet the criteria for “appointments, promotions, to cover disci- pari tion in materia.20 pline, separations, pay, unemployment com- Second, the venerable canon that health, pensation, disability and death bene- strictly would have us construe a statute fits, leave, retirement, insurance, and veter- against altering the commonlaw creates “a 1-242(3) preference.” ans’ D.C.Code § presumption.” (1987). rebuttable Monroe v. Fore Accordingly, the called Councilwas man, 736, (D.C.1988) (con upon to disability compensation legis- enact corresponding preclude lation strued No-Fault Act to long-standing to a fеd- (FECA) negligence eral statute adopt per- personal injuries and also to action for legislation covering per- accident). sonnel evaluation from automobile We have em- limited, dissenting colleague disagrees 1963(a)(1), corporation 20. Our with this or were as in § majority opinion primarily equity enterprise” for three related rea- to an "interest in the —in statutory provisions petitioner's sons: he believes all the which case the evil deeds would not materia; pari issue should be construed in he have been covered 22-23, the statute. See id. at remedy language notes that the "exclusive" 104 S.Ct. at 300. The Court concluded 1963(a)(2) disability compensation provisions, expansive found in the had a more reach § l-624.16(c), 1963(a)(1) supra petition- § note does not than and thus reached the § appear personnel provisions; in the evaluation er's conduct —a classic use of construction closely pari and he therefore concludes that the Council linked subsections in materia. As however, above, incorpo- intended these latter not to we have said in text remedy. subchap- rate an exclusive form of He bases his instant case concerns statute (in materia) premise pari language com- from evaluation and ters— pensation States, pur- altogether cases like 23, different Russello United 464 U.S. have —that (1983), matters, pоses, subject 104 S.Ct. 78 L.Ed.2d 17 ante- Moreover, says glove.” Supreme which he “fits this case like a Post cedents. Court when the Fausto, language at 638. We believe the does not fit at ruled in 484 U.S. United States v. CSRA, (1988), all. Justice Blackmun described Russello 98 L.Ed.2d 830 “yet concerning supra precluded federal another case the Racketeer In- Act, (RICO) Pay Corrupt Organization suing one fluenced and from the Back no under citing chapter Organized argued preclusion by Crime Control Act of such exclusivity specifi- provision, contrast 1970.” Id. at 104 S.Ct. at 297. More absence cally, interpretation presence exclusivity provision Russello of an concerned with FECA, therefore, Respectfully, word "interest” as used in one subsection of the 5 U.S.C. question presented disagree colleague. ‍‌​‌‌​‌‌‌​​​‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‍with our As we under- Act after another. The was we caselaw, "any acquired" subchapters these should not whether the words interest ... stand the 1963(a)(2) "profits” pari could embrace of a be construed in materia. 632 “ statute], purpose of tially rule statutes in “the that

phasized [the ‘[t]he text, entirety are be of derogation of the common law its structure of require not such United States strictly does establishes.” construed review it Fausto, 668, defeat an letter would adherence U.S. 108 S.Ct. 484 lessen the legislative purpose (Civil or 671, (1988) obvious 98 830 Service L.Ed.2d given to the scope plainly to be intended employee’s precludes of 1978 Reform Act ” Id. Jamison Enc (quoting measure.’ Act). Pay under “Whether ... a suit Back arnacion, 635, 440, 640, 50 S.Ct. precludes judicial particular review statute Moreover, 442, (1930)). L.Ed. express not from its determined legislative attempting to ascertain intent also of language, but from structure modern, regulatory comprehensive, for a scheme, objectives, leg- its rights and new reme statute that creates history, and the nature of ad- islative dies, exception to we mindful that “[a]n Block, ministrative action involved.” of construction is customar the rule strict (holding at 2453 con- U.S. at S.Ct. a made in the case of statute which ily obtaining judi- from precluded were sumers complete system of purports provide a Marketing Agricultural cial review under aspects covering all law Act of of milk market Agreement deals_” Singer, it 3 N. which Suther by Secretary Agriculture of orders issued Statutory (4th 61.03 land Construction complex disrupt administra- because would Ry. Co. v. 1986); see Texas and Pacific ed. scheme). tive Co., 204 U.S. Abilene Cotton Oil 440- 350, 355-56, 42, 27 51 L.Ed. 553 S.Ct. Purpose of CMPA (because Act intended Interstate Commerce comprehensive means for redress to afford replace designed to CMPA was wrongs resulting unjust from rate dis ing personnel system “disjointed, decentralized crimination, shipper common cannot sue at alleged frequently was to tolerate] [which rates). freight Accord law excessive abuse, neglect, incompetencе, [p]atterns of appears to ingly, in a situation —which such error, superiors alleged retaliation [and] presumption of be the instant case —the against wronged employees....” Council of repeal com strict construction Columbia, of of District Co District of may easily survive mon law remedies Comprehensive Merit Personnel lumbia legislative in-depth inquiry purpose. into Report Bill No. of Comm. Act Monroe, 540 A.2d at (statu 741-43 (July 5,1978), Report], [Committee language scheme tory and entire Comm, reprinted in House on the Dist. of presumption Act No-Fault rebuts Columbia, Govern District of Columbia negligence remains action Comprehensive Personnel Act ment Merit accident); in case automobile available Report of 1978 and the Council Inst., Community Block v. Nutrition cf. Cong., Columbia, 1st Sess. 96th 2450, 2455-56, 467 U.S. (Comm. then-existing 1979). Print (1984) (“[T]he presumption 81 L.Ed.2d 270 disarray” “in personnel system was favoring judicial of administrative review “chaos”; hodge “inefficient it was an by inferences of may be overcome action rudimen podge system ignore[d] [that] intent drawn from the statu [legislative] “awkwardly meshed” tary merit rules” whole.”) tory scheme as with the apparatus personnel the District personnel system. Committee federal Re port inefficient, “incredibly B. This required system productive” often counter creating new When a statute system truly uniform “the creation expressly exclude does not and remedies Id. administration.” merit new reme сommon law remedies declare CMPA, the Council of the enacting By exclusive, we decide whether such dies mandate looking fulfilled the ini- District Columbia remain available remedies appellate authority Columbia the Office of District of Self-Govern- within Appeals the courts. (Home Rule) Employee develop Act21 to own ment comprehensive personnel system merit Id. at 42. “replace system pre- which the federal had sum, CMPA, in enacting the Council viously govern- the District controlled modern, flexible, to create “a com- intended employees.” with its ment’s relations prehensive city-wide system public per-

Hawkins, Newman, 574; provide would sonnel administration” that American Gov’t 703; Fed’n of A.2d at efficient administration of the Dis- “for the Employees Barry, personnel system impar- trict and establish (D.C.1983). in- recognized The Council independent proce- tial and administrative adequacy existing personnel system resolving employee grievances.” dures for Report encourage[d] only that “not abuse but 40.22 Committee adequate procedures deficient in [was]

protect employees once those abuses Text; Entirety of CMPA Structure of Report occurred.” at 26. have Review Committee com- The Council concerned about was statutory provisions The outlined above plaints of “threats and coercion [used] comprehensive pur- reflect Part I.B. personnel grievances force outlined, pose just including significant em- keep to withdraw them or to them to them- ployee rights only disciplinary Id. at 25. selves.” Council intended process system. also in grievance but remedy CMPA to problems: these Moreover, provides for compre- system of hensive administrative review of —City-wide regulations rules and as- will employer actions —whether under CMPA it- application personnel sure consistent through self OEA or a union con- under policies government agencies. in all tract PERB —and each case provided —Judicial for deci- review all Superior subject to review in Court. Employee sions Public Relations supra Part I.B. Board and of Employee Appeals Office legislative history does not reflect impartial to assure an govern- review of whether, enacting the Council affecting ment administrative decisions intended to foreclose tort remedies. The personnel. however, Report, did Committee stress a opportunity —The for retaliation courts, role a limited role: for the but employees exercising their will be judicial review of decisions. administrative Report minimized the careful See Committee at 42. The Commit- granting employee and responsi- significant called the creation Report tee bilities; independent for authority Appeals, review Employee which is Offiсe “[a]n Counsel; Corporation finally, personnel appeals authority independent 93-198, 422(3), (5) comprehensive impartial 21. Pub.L. No. Stat. Establish (1973) (codified 1-242(3) (1987)). procedures at D.C.Code negotiated administrative resolving employee grievances; incorporates purposes: 22. The statute itself these (6) policy positive of labor- Provide for a Purpose. § 1-601.2. including management relations collective (a) The Council of District of Columbia bargaining of Columbia between the District purpose policy declares that it is the government employees[.] and its chapter this of Co- to assure the District § 1-601.2. government lumbia shall flexi- have a modern system personnel public ble administra- tion, which shall: personnel system; ments and (4)Insure ministration Create uniform ^{[******] [******]} the efficient administration of agencies among systems ...; the executive depart- ad- managers defend- would have to devote to personnel-related em-

which will hear all Report ing dispute-resolving their actions in at two ployee appeals.” Committee added). systems. expresses concern (emphasis language While this employees who lose at the administra- say is exclusive that does not the OEA channel level—with its (in careful tive efficient time frames part the was because Council simplified procedures might compel to and its unions not foreclose the District — undergo to supervisors proceed- lengthy of alternative bargaining from for creation claim, ings a second time over Commit- the same procedures), appears it the review court, telling pos- simply the this time for contemplating the Report tee was not truth. sibility of still other remedies. seem, therefore, from the It would agree not We do that two dis CMPA, including its purpose and text of pute-resolving options re —administrative Council that the provisions, review

judicial litigation necessarily and tort view —would a to create “plainly intended”23 handling of the same duplicative lead virtually addressing every for mechanism preclusion dispute; doctrines of claim among the Dis personnel issue conceivable remedies, example, of for are election trict, their employees, and unions—with usually prevent particular available to a reviewing for the courts as last a role agree But we do that the burdens of evil. resort, for supplementary role not anticipate employer’s having to and deal an forum. an alternative courts as different, two, substantially re often (one protracted of them systems medial III. litigation) at the election of each available testing legis way An additional chilling employee likely to effect are have i.e., CMPA’s com lative whether intent — bargained personnel pro mandated and system should be un prehensive remеdial cedures—an effect that could debilitate for, preclude, or to room derstood to leave personnel sys very foundation of the merit common law tort remedies—is to focus on example, supervisors likely tem. For availability of the continued com whether employee enforce disci to be hesitant damage comple mon law remedies would preferring pline, silence to fear be the statutory ment or scheme as undermine fulfilling into court their ing hauled for Block, U.S. at a whole. See Lucas, statutory duties. Bush v. Cf. S.Ct. at 2455-56. 367, 388-89, S.Ct. (1983) (Court argues L.Ed.2d 648 declines to The District costs associ- 76 supplement comprehensive Civil Service availability of common law ated with creating new, regulations by under- remedies are substantial would Commission damage remedy employ system. merit constitutional mine CMPA’s District, employee’s Amend says violation First specifically, ov- er’s More rights).24 Negotiated procedures for costly not ment erlay of tort remedies would be aggrieved employ directly money, representation but also union only in terms of goal ignored, energy likely to with the indirectly in of the time and ees are be terms Jamison, Monroe, (quoting preempted were available CSRAand thus not 23. 442). and emotional distress actions 281 U.S. at 50 S.Ct. at for defamation public employer. supra note 17. Accordingly, just as the Bush Court was unwill- argues “present case is The dissent that thе remedy aug- ing constitutional to find a new Bush." Our col- the converse of Post statute, regulatory comprehensive we ment a league says the Bush Court refused that because intended to resur- question whether the Council regu- comprehensive supplement civil service supplement law remedies remedy, rect common with a new constitutional ab- lations comprehensive authorization, scheme. But even if CMPA's "es- sent we should were available before rights by common law remedies CMPA, chew the destruction policy evident in Bush for (emphasis original). reasons Post at 640 fiat." likelihood, precluding are consistent with dual remedies We have noted there a substantial however, apparent immediately reliance on courts the Council’s before the Council reviewing exclusively adopted administrative action. remedies had been common law efficient, griev- uniform resolution of doWe not believe the Council accordingly Ultimately, ances undermined. comprehensive would characterize CMPA’s public pay price employee will “performance ratings,” actions,” “adverse morale disciplinary deteriorates from lax employee “grievances” provisions as public enforcement and services conse- affording adequate some, remedies in quently suffer. As the States United all, instances where an Appeals Court of for the District Colum- wrongful claimed cognizable treatment un recognized: bia Circuit has provisions. der those Given the Council’s strong governmental in interest hav- clearly policy goals articulated of uniform ing a frank and honest assessment of ... ity efficiency, carefully and pro crafted performance absolutely work balancing employee rights visions to union proper rendering essential to the of ... representation grievance and processing services to our citizens. A supervisor’s with the needs of a personnel system, merit promotes candid evaluation efficient comprehensiveness and the of CMPA’s government by enabling agency to remedies, we conclude that the in Council identify and reward truly outstanding provide tended CMPA to employ District performance correct, identify and to and ees with their exclusive remedies for claims with, and on dispense occasion to per- arising employer out of conduct in handling formance that is unsatisfactory. ratings, employee grievances, Acree, 16, and adverse actions. U.S.App.D.C. Thompson’s Lawrence v. tort ‍‌​‌‌​‌‌‌​​​‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‍24, 1319, (1981). 665 F.2d claims of defamation and intentional inflic distress, tion of emotional in contrast with The remedies available under claim, her battery assault and supra CMPA are may, substantial and in some 2, disputes arose out of with her su respects, afford more comрlete relief than pervisor, appellant Maury, clearly fall damage remedies at available scope within the of CMPA 1-615.1 to §§ example, law. For under Thomp -615.5 hold, and 1-617.1 to -617.3. We §§ son would have been able to seek reinstate accordingly, provisions that these preclude ment, perhaps and pay.25 back Further litigation Thompson’s emotional distress more, the require CMPA does not an em claims, instance, defamation the first ployee qualified to overcome the immunity Superior Court. government officials as would be re quired in a damage common law action. ruling, express In so opinion we no about Lucas, See 462 U.S. at 103 S.Ct. at Thompson’s how claims partic- under these (Marshall, J., concurring); Rustin v. ular CMPA relate to the same Columbia, District disability claims filed under the CMPA (D.C.), denied, cert. 474 U.S. compensation provisions, 1- D.C.Code §§ (1985). Moreover, 88 L.Ed.2d 290 624.2 to -624.46. procedures speedier are and less costly litigation. sum, than In the benefits IV. procedures CMPA’s administrative cou earlier, pled As indicated we reaffirm the in- review are substantial two, (except disposi- troduction against costs, when balanced the last including sentences), (facts I delays, obtaining proceed- tional Part damage remedies. We (CMPA say ings), disability provisions), cannot Part II advantages clearly these outweighed by (reassignment the one and Part VII to different obvious disadvan tage of jury judge) opinion, CMPA: the lack of a trial of our earlier trial Lucas, option. Thompson, Columbia v. 570 A.2d 277 (Marshall, J., concurring). (D.C.1990). S.Ct. -617.2, l-606.3(b), -617.3(b). power grant Similarly, 25. CMPA defines OEA’s relief very “reinstate, broadly. permits "uphold, empowered The Act OEA to PERB is or with- whole, modify agency” pay, reverse or the decision of the out make back or otherwise "appropriate employment any and to take employee...." corrective actions” and or tenure of l-618.13(a). "corrective or remedial action.” D.C.Code D.C.Code § (CMPA entry of an order performance Part III We also remand We vacate stay proceedings actions, against further ratings, grievance pro- all adverse Thompson has had a reason- visions), District until (intentional Part IY infliction of disability file for un- (defamation),27 able time to benefits distress),26 emotional Part Y bat- der CMPA for claimed assault and (summary of disposition), and Part VIII (without tery. doing so de- we assume including concerning two addi- footnote 23 that, ciding) under circumstances tional, reaffirm minor claims of error. We Thompson pursu- is not from time-barred (erroneous Part VI exclusion evidence administratively. ing this claim post-termination Thompson’s prior and co-workers, threats and assaults If not file her assault does character) peaceful Maury’s and of so a rea- battery claim with DOES within Thompson’s pertains far as it assault time, if file she does and DOES sonable clаim, battery but we vacate the last battery concludes that assault and VI, paragraph pertaining of Part id. at provi- claim falls within CMPA’s to the defamation claim. sions, the trial court shall dismiss claim the District. against But Accordingly, as the District of Colum- to Thompson, 570 at 288 n. 6. bia: If 6. DOES decides that the assault and Thomp- on judgments 1. reverse the We battery the District does not claim of emo- son’s claims of intentional infliction disability provisions, fall within CMPA’s defamation, distress, assault and tional the trial court shall order new trial battery. that claim. to reassignment 2. remand for We Finally, for en- Maury, as to we reverse entry an order judge new trial and for try dismissing the of an order defamation def- dismissing the distress and emotional addition, claims. In and emotional distress subject claims for lack of matter amation Thompson’s and remand assault we reverse jurisdiction. against Maury battery claim for a new ordering Thompson’s 3. dismissal of judge. trial before a different claims, distress and defamation emotional Reversed and remanded. resolve, address, we do not let alone wheth- is, not, er or is time barred from SCHWELB, Judge, Associate administratively pursuing these claims un- dissenting: disability der either the CMPA of this Adopting language one provi- personnel or the evaluation CMPA Supreme eloquent jurists, the nation’s most sions, express opin- an or both. Nor do we capsulized in two recently sentences Court claims, ion, Thompson’s to on whether which, oрinion, ought my principles reme- requires CMPA an election CMPA dispose of this case: dies, Thompson’s or on how claims should is a con- What asks the [District] articulated before a be characterized and statute, but, effect, an of a struction express agency We particular forum. also court, enlargement of it so that by effect, any, if opinion preclusive on the no omitted, by inad- presumably what was raise Thompson’s failure to an emotional vertence, may its be included within claim or defense in distress or defamation supply scope. To omissions transcends employ- proceeding her that terminated judicial function. (assuming argument’s sake that ment Casey, Hosps., might germane Virginia been Univ. Inc. such claim have West — -, -, proceeding). time, therefore, by again to elect or the need Thompson, is free the claim out once administratively against pursue Mau- evalu- this claim between CMPA’s District, subject arguments ry, well as the ation remedies. (on express opinion) that the claim which we no precluded by Thompson’s raise it in is failure to supra notes 3 and 26. proceeding, pursuit or her termination (1991), 113 L.Ed.2d (quoting Iselin v. exist in the absence of the it was States, 245, 250-51, United 270 U.S. destroyed passage as a result of the of that 248, 249-50, (1926) (per S.Ct. 70 L.Ed. 566 statute. I submit that profound there are Brandéis, J.)). At the precipitating position risk of difficulties this and that the a critic’s resort to disposition urged upon Emerson’s old chestnut byus the District is that a consistency hobgoblin legislative foolish is the than rather in character. minds, of little I continue to think that we My colleagues concede that there is not a were the first Accordingly, time. I either in the text of word or in respectfully dissent. history legislative to the effect that the in relation problem presented performance The Act’s remedies by the District’s petition rehearing ratings, adverse actions and easy is not an one. I exclusive, grievances are agree my colleagues that common it would judicial remedies are to have be made sense as a matter of abolished.3 policy legislature’s silence on to include in this provision the CMPA a contrast to its that the stark enactment of administrative remedies created express exclusivity provision governing the statute for dis- aggrieved by ad- actions, ability l-624.16(c) claims. verse performance unfavorable ratings provides: and the like shall be the exclusive means by persons which such may vindi- liability of the District of Columbia rights. cate their The Council of the Dis- government ... under subchapter trict of perhaps Columbia could and should respect injury ... with to the or death of provided, have so but did not do so. employee, an is exclusive and instead of Judges have no authority per- to correct liability all other of the District of Co- and, ceived legisla- errors if the government lumbia ... to the (or intentional) tion contains an inadvertent in ... a direct proceeding, in [or] omission, then I think up it is to the Council a civil action.... and not to this court provide remedy. a Obviously, I, in Thompson as we noted supra, 570 A.2d at the Council knew I take it to be purposes conceded for of how to make administrative ex- remedies appeal that but for the enactment of clusive, provision a and inserted which un- CMPA, the Thompson Ms. would be enti- ambiguously effected that in result one tled to sue the District and Maury Mr. in part of the CMPA but omitted it from Superior the Court for defamation and for part. another intentional infliction of emotional distress.1 If there were no she part would have or section a “[E]ach [of statute] right the to a determination jury a should be construed connection with ev- peers of the issues of ery part fact. If she other or section produce so as to prevailed,2 she would be entitled to the harmonious whole.” 2A N. Singer, Suther- Statutory various remedies 46.05, plain- available to other at § land Construction tiffs brought who have (4th successful tort ac- 90 ed. 1984 Cum.Supp.1990); & tions of this kind. Bank, The apparently Riggs Howard v. Nat’l 432 A.2d contends, and my (D.C.1981). colleagues agree, 709 In determining now the mean- although right ing statute, such a of action would of a the court must not be addressing 1.The District states in to its the introduction I am not here the merits of these petition that regard analysis claims. I adhere in this to our follow, I, the [f]or reasons the 570 A.2d at [CMPA] 289-98. interpreted should be preempting as prop- law actions based that are on activities See, e.g., Gilmer v. Lane Interstate/Johnson erly classifiable as actions. — U.S. -, -, 1647, 1654, Corp., 111 S.Ct. made, my colleagues No other contention is (1991) (where legislature 114 L.Ed.2d 26 intend rely entirely Maj. op. likewise on the CMPA. particular ed to exclude or restrict a forum 17; id. at note 24. I therefore do not cf. claims, resolving "that intention will be de dissenting opinion address question in this (Cita legislative history.”) ducible from text or appellants whether the to sue the in tort omitted). tion prior existed to the effective date of the CMPA. omitted); single supra, 46.06 at guided by part sentence Sutherland, sentence, look the comprehensive but must 104. If the character enactment as a whole. Mastro Plastics CMPA were itself sufficient to render the NLRB, 270, 285, Corp. v. 350 U.S. 76 S.Ct. exclusive, remedies under Act then (1956). 100 L.Ed. 309 “If ... specific exclusivity provision part in the comparison of one clause with the rest of dealing the statute claims proposition the statute makes a certain superfluous. would be undoubted, con clear act must be majority’s interpretation of accordingly_" su strued Sutherland, destroys rights, also common law pra, (quoting Attorney 46.05 at 90 Gen principle cardinal “[t]he 431, -, Sillem, v. 2 H & eral C destroy.” construction is to save and not to 178, - (1864)). Eng.Rptr. specifi More Laughlin Corp., NLRB v. Jones & Steel cally, 1, 30, 615, 621, 301 U.S. 57 S.Ct. L.Ed. Congress particular lan- includes [w]here (1937). repeals Just of statutes guage in one of a statute but section favored, implication Speyer are not v. Bar omits it another section the same (D.C.1991), so ry, 588 1164-65 Act, ‍‌​‌‌​‌‌‌​​​‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‍generally presumed it Con- is intentionally altering gress purposely acts statute is to be construed “[n]o disparate law, inclusion or exclusion. the common farther than words Co., import.” Shaw Railroad U.S. States, 16, 23, Russello v. United 557, 565, (1880); 25 L.Ed. Monroe 78 L.Ed.2d 17 Foreman, (D.C.1988). (citation omitted). one; This rule not an absolute it does quoted language from Russello fits require “such an adherence to letter as glove.4 Application this case like a of its legislative pur would defeat obvious principles CMPA militates pose scope plainly or lessen the intended exclusivity provision the notion that an given to the be to measure.” Jamison may portion be written into the of the 635, 640, Encarnacion, 281 U.S. dealing grievances by judicial statute 440, 442, (1930) (emphasis 74 L.Ed. legislature a “construction” when which Monroe, showed elsewhere in the same enactment added); supra, 540 A.2d see also exactly that it knew how such to write Jamison). (quoting my opinion, In at 739 provision not to so. elected do however, reasonably it cannot be contended legislative purpose that of the an obvious Moreover, statute should not be con- “[a] preempt CMPA wаs to common law tort way in render certain strued such remedies, legislature plainly or that the provisions superfluous insignificant.” Indeed, our intended such a result. unani Reporting v. Acme Columbia Co., (D.C.1987)(citation rejection initial of that notion seems 530 A.2d mous proper spite my colleagues’ place their reliance for the occasion for In extensive discussion materia," differing origins pari of the of the CMPA’s observed that construction "in we they provisions, and adverse action cannot and explicit the of intent inclusion of element that, Russello, deny language do not in the prohibition extort in the extortion legislature particular language "included in suggests legisla- it enacted which was that one section of a statute but it in anoth- omit[ted] specify ture knew how such intent it if Surely act.” Id. com- er section same wished. sponsors mon sense tells us that writers or added). suggest (Emphasis I that this absolute- probably read handi- of the CMPA would their ly proposition, unassailable contained in an stark work and notice the contrast between Judge opinion which Belson wrote which major- parts two of the enactment. I search the Judge joined, and I Ferren has considerable ity opinion in a case that that vain for holds two present my colleagues case. relevance If (even biga different sections the same statute "exclusivity provision” for "intent will substitute one) оught compared not to be with one anoth- (and change couple of other contex- extort” help legislative er where this will to ascertain words), passage from this well-considered tual intent. directly I will lead them to what view Holt States, In v. United Holt appeal. present the correct resolution (D.C.1989) (en banc), my colleagues on which to me to demonstrate that its rectitude is Space National Aeronautics and Adminis- plain less than or obvious.5 tration who claimed to have been demoted public retaliation for criticism of his separate The District relies on two lines agency Supreme asked the Court “to au- authority support interpretation of its nonstatutory damages thorize a new reme- A, of the CMP but neither posi sustains its dy federal whose First First, tion. it cites cases like David v. rights Amendment are violated their States, (9th United 820 F.2d superiors.” Id. at S.Ct. Cir.1987), in which a employee’s federal Supreme unanimously rejected Court against supervisors action for inten judicial that invitation to activism: tional infliction of emotional distress was held to be “a common-law cause of action Because such claims arise out of an em- preempted by (the which is the CSRA” ployment relationship governed Act). federal Civil Service Reform by comprehensive procedural and sub- court did not discuss the reasons for its provisions giving meaningful stantive holding, previоus but cited its decision States, remedies the United we (9th Lehman v. Morrissey, 779 F.2d 526 inappropriate conclude that it would be Cir.1985) curiam). (per Lehman, In supplement regulatory us to explicitly court stated that it result scheme remedy. with a new analogous reached on facts was based ex (emphasis added). Observing Id. that Con- clusively preemption on federal doctrine. gress remedy could have created such a Id. at 526-27 n. 1. Broughton v. Court so, but did not do the Court declined to (11th ney, Cir.1988), 861 F.2d 639 also cited legal “create a new substantive liability District, by the the court unambig likewise without aid and as at the com- uously predicated a similar decision on mon law.” Id. 103 S.Ct. at 2418 identical principles.6 As correctly point we (emphasis added) (quoting United States original ed out in opinion our in Thompson Co., 301, 302, Standard Oil I, 570 A.2d at 289 & n. this doctrine is (1947)). S.Ct. 91 L.Ed. 2067 applicable present case. It is one recognized The Court thing to Congress infer that did not intend policy selection of that which is [t]he to countenance state law remedies when it advantageous most to the whole involves preemptive enacted legislation governing a host of considerations that must be of federal employees, quite weighed appraised. another to That function is ascribe to the legisla District’s appropriately ture an more for those destroy intention to who write common law laws, in the rather any absence of than for thоse who inter- conflict or pret collision with statutory policy. federal them. Lucas, 380,

The District also (quot- relies on Id. 462 U.S. at 103 Bush S.Ct. at 2412 367, 103 2404, 462 U.S. ing Gilman, 507, S.Ct. 76 L.Ed.2d 648 United States v. 347 U.S. (1983), and on other decisions 695, 697-98, which follow 74 S.Ct. 98 L.Ed. 898 Bush, that case.7 In employee (1954)).8 agree majority 5. I with the that supra, (citing the CMPA Pa- 861 F.2d at Howard v. 643 1560, Cir.1987)). "plainly” provides risian, Inc., (11th comprehensive system for a 807 F.2d 1565 actions, employer of administrative review of See, e.g., Fed’n Fed. 7. v. National Karahalios of judicial well as for review. What it does not 527, 536, 1263, Employees, 489 U.S. 109 Local all, provide, plainly, obscurely, or at is that the (1989); 1282, 1288, Spag L.Ed.2d 539 S.Ct. 103 aggrieved employee go cannot to court instead. 247, 10, Mathis, U.S.App.D.C. n. 273 253 nola v. intended, If that is what the drafters then we are 223, curiam) (en (per n. 10 859 F.2d confronted, phrase, in Churchill’s with a "riddle banc). wrapped mystery enigma” in a inside an as to why they say did not so. majority also relies on United States v. 8. The Fausto, 484 U.S. 98 L.Ed.2d giving preemptive fact "[T]he that effect (1988), to a sharply Supreme in which a divided federal statute would leave an individual precludes with- Court held that the CSRA review of remedy Congress out a does not personnel mean that did certain adverse actions under preempt Broughton, Pay explained not intend to state law.” Back Act. The Court that explained As Frankfurter of left out. Justice present

The case is the converse Holly Hill in Addison v. Here, Bush. being not asked for the Court the court is Products, Inc., non-statutory remedy Fruit a new create (1944), how- legislature provide. has failed L.Ed. 1488 which the S.Ct. Rather, demanding ever, District is that we do, has do for it the Council failed what extending a statute it is no warrant namely, right a common law to abolish experience may that it that disclose judicial action. The same canons self-re comprehen- made more should have been persuaded the Court not straint which meaning can- The natural of words sive. judicial remedy conjure up new displaced by reference to difficul- not be in Bush lead us to eschew the de should in administration. ties rights by judicial struction of law (Citation quotation marks and internal legislation not Construction is

fiat. omitted). expansion retrospective must avoid “that meaning properly which deserves majority effectively marshalled The has legislation.” Kirschb stigma judicial arguments against co-existence 617, 522, 62 Walling, aum Co. 316 U.S. in this judicial and administrative remedies (1942). S.Ct. L.Ed. respect that field. I the view sensitive should, possi- if ambiguities legislation argues The associ- costs ble, will availability com- resolved a manner which ated with the continued be inequitable results. mon remedies substantial avoid unreasonable or are think, however, merit I not invocation would undermine ‍‌​‌‌​‌‌‌​​​‌​‌​‌‌‌​‌​​​‌‌​‌‌​‌​‌‌​‌​‌‌​​​​‌‌‌‌​‌‍CMPA's do reading disagrees support system. majority principle our such a will District, something discerns a somewhat different that the Council but into the CMPA problem: did not write. could have written but policy arguments may well be District’s agree do of аn em- we that the burdens persuasive, they are directed to but having anticipate ployer’s and deal call for a two, wrong They forum. substantially different often (one one. I therefore remedy, not a protract- of them systems remedial ap- to our initial resolution of ed at the election of adhere litigation) available peal. likely each to have a chill-

ing bargained effect on mandated

personnel procedures effect —an very could foundation of debilitate the personnel system.

the merit words, op Dis-

Maj. other colleagues my think the statute

trict and not well or will work well

has worked into the Council

unless we write it what be, prece- may absolutely presumption esting has no it not at odds with the decision was legislation, significance. Supreme Court ex- against implicit repeals As dential 507, 511, Fall, being plained Pay was left intact the Court in Back Act Webster disposition implied (1925), overruling legal "a was 69 L.Ed. S.Ct. point text.” Id. at be said that the [the] most that can [t]he case, urged present anyone the construction 676. In the fit to raise in the cases if had seen was abrogates altogether upon us the District merely Questions lurk in the it. which of District record, and remedies brought to the neither attention of this to sue tort in situations upon, con- to be court nor ruled kind. having to consti- been so decided as sidered precedents. "interesting tute My colleagues say also that it is fact, Fausto, Judge was a member sought argue Ferren "no one note” that in quoted most of this which by citing unanimous division preclusion the absence of such dic- language approval, and followed exclusivity provision, contrast an States, tates, provision United exclusivity presence FECA_” (D.C.1988). Maj. op. 423 n. 14 20. However inter-

Case Details

Case Name: District of Columbia v. Thompson

Court Name: District of Columbia Court of Appeals

Date Published: Jun 17, 1991

Citation: 593 A.2d 621

Docket Number: 86-1051, 86-1681

Court Abbreviation: D.C.