Money v. Cullinane

MONEY, Raymond McClellan, Patrick K. Clements, Hillman, Lon

Oliver Norman Turner, Kegley, and Rita

nie James W. Head, Petitioners,

V. Police, C., CULLINANE, Schulze, Washington, D. Maurice J. Chief of Charles H. Metropolitan Department, petitioners. Police et

al., Respondents. Counsel, Hines, Corp. Margaret L. Asst. 10633, 10634, 10635, 10636, 10637, Nos. C., John R. Washington, D. with whom Counsel,

10715 and 10730. Risher, Jr., Washington, D. Corp. filed, C., Louis P. at the time the brief was Appeals. District Columbia Court of Counsel, Robbins, Corp. and Richard Acting Argued Sept. Counsel, Barton, Wash- Deputy Corp. W. brief, C., respon- were on the ington, D. Decided Oct. dents. HARRIS, KERN, NEBEKER and

Before Judges. Associate KERN, Judge: Associate po- are District of Columbia Petitioners unsuccessfully applied lice officers who (De- Department the Metropolitan Police placed to be on administrative partment) expend rather their sick absent periods they of time injury. duty from because of illness 1975), 6324(a) provides (Supp. U.S.C. V perform cannot police that when District result of service-connected their duties as a entitled to admin- illness injury or now filed They istrative leave. have Depart- for review of petitions them administrative rulings denying ment’s leave; responded that has Department review jurisdiction to this court is without petitions. their provided the Congress has on administra- place shall act to its officers regulations prescribed tive leave “under of Columbia the District 6324(b)(1) Council.” U.S.C. (Supp. the Council amended V Since regulations, we necessari- prescribed has no issued ly regulations turn to the of the Dis- the Commissioners predecessors, Columbia, all provide that trict of approved duty “must absences to senior may redelegate the Chief” and “he every If deci- of case.” . tion a “contested powers . . the officials . [so] employee government sion to a of the transfer delegated.” Board of Commissioners to another Columbia, position from one District of No. 65-528 Order re- procedural 15, 1965). the case” 2, 5 The Chief has to “contested (April by this direct review quirements and general procedure established order a by court, agencies would be un- Department requests government the to determine deci- employment the daily are able to make administrative leave when officers ab- of part effi- an inherent illness or have sions which are sent because of un- philosophy The purportedly duty. line of cient suffered the administration. or ten- employee to “selection delegate, assigned The Chief’s who is the the derlying by Clinic, Pro- (1) and the ure” was summarized Police Fire reviews offi- exclusion he report resulting cial of the the fessor when asked: incident Davis duty, (2) officer’s from medical re- absence per- into inquiring Do want courts we increases, and the absent of- ports concerning records management salary sonnel — ficer, Departmental and the officer’s hours, allocation sick office second-stage There a personnel record. of the in the basement parking spaces process; this if the Davis, officer building? Admin- K. agency’s [4 chooses, he himself review the material 28.16, at 82 Law Treatise istrative then inspector (a) considered the and (1958).] (b) submit additional material and meet in Board of v. Columbia [Wells the company attorney the of his with in- Education, D.C.App., 386 A.2d spector. inspector is then (1978).] render in his the writing decision on leave dealing While was Wells request. position specifically with the transfer of an argue Department’s Petitioners that the branch, employee we are of the executive decisions on applications these for adminis- persuaded in the instant requests that leave trative leave directly reviewable manage- case are of personnel also facets court and procedure the followed the statutory encompassed ment and within comply does not with Dis- term “selection tenure.” trict of Columbia Administrative Procedure Ap- Board of Our decision in Johnson v. Act, et Supp., seq. D.C.Code 1-1501 Review, peals D.C.App., A.2d jurisdiction review, however, We have (1971), require to hold other- not us does only Department’s proceeding if the culmi- wise; there, employees two former District nating grant denial of officers) ruling by a (police challenged within requests a “contested case” Board which fixed Police and Firemen’s meaning of DCAPA we note that paid them in disability allowance to be 1502(8) provides Section that a contested properly rejected We the Dis- retirement. (B) case “shall not include . . . juris- that lacked argument trict’s this court employ- selection or tenure of an officer or ground ruling diction review such on ee of District.” shall be statutory that term “tenure” “ scope recently This court discussed of retire- interpreted to include ‘tenure the “selection or tenure” clause of DCA- ment’, is, or means ‘manner PA and found: Id. at 568. holding’ rights.” retirement determining agency in Johnson was Congressional purpose exclude

[T]he here, the De- employees’ pensions; tradition- retired “administrative determinations re- deciding ally partment employees’ was nonsusceptible application adjudication” quests.1 the defini- complete service-connected, parenthetically any de It should be noted receives who, on novo Board re- the Retirement District enforcement officer law Any disability. prior ultimately injury, determi- retired on the cause sult of illness or inspector disability disability urges on an his nation and at that time sum, requisites proc- with Department’s In determination were not entitled to admin- ess. istrative leave is a decision day-to-day- is, In this in Wells District it context government personnel management which Education, D.C.App., Columbia Board Congress has expressly deemed not a con- unnecessary 386 A.2d to our not subject tested case and hence to this reach the issue whether that we court’s review.2 petitioners cases were afforded the in these petitions for review are dismissed process to which were due since we jurisdiction lack entertain them. aside, necessity entitled. how- strict Such ever, ordered. I in the context of these

So believe cases, judicial economy the interest of NEBEKER, Judge, concurring: Associate issue; would that we reach for dictate extensively the issue has been briefed and judgment I in the opin- While concur and, argued result court, before this division ion of the I am constrained to offer decision, First, today’s necessarily will recur two observations. has not court Therefore, whether, Superior decided absent Court.1 exclusion reason my opinion of the “selection or while provision tenure” concurrence with 1973, 1-1502(8)(B), full, D.C.Code these cases the court I offer the following is addi- would have been “contested” cases within tional due respect process views with to the /, e., meaning of that basic section— issues raised. “proceeding[s] legal ... which duties, rights, privileges specific par- I required by any (other ties are law legal present- Before issues discussing the chapter), right,

this constitutional ed, I statement of the believe that a fuller after a hearing determined . . . .” necessary. relevant Petitioners facts Second, 1-1502(8). by construing Id. injured employed by while each sick or “selection or tenure” to include all exclusion Department. By the Metropolitan Police personnel “day-to-day government manage- statute, a member of the the absence of (text accompanying ment” decision note duty-related ill- as a result of ante), necessarily applica- we hold that the chargeable ness or injury is not the leave does bility depend of the exclusion not 6324(a) account of that member. U.S.C. § requirement the absence of a that decisions If, however, (Supp. V a member is scope made within the exclusion be absent for illness or is not accordance with made in the traditional duty-related, member’s accrued sick procedure, forms of fair in the embodied account, up leave augmented by to 240 jurisdiction to DCAPA. Our review admin- leave, hours of decisions, words, charged advanced sick istrative in other is not as 206.2, Order extensive as constitutional mandate absence. General those decisions be made in accordance I.B. 1 this sick (1975). Upon exhaustion request by in an that officer would have no access for review to the trial original (e. proceeding g., prohibitory injunc- effect on Board’s decision when sought disability tion, mandatory injunction declaratory officer the same retirement. judgment). [Dupont Circle Citizen’s Ass’n v. Ed., Commission, Zoning comment in Wells v. Bd. of District of Columbia Our D. C. applicable (en supra banc) D.C.App., at seems also here: 343 A.2d J., concurring) (footnote (Gallagher, omit- employee “se- We hold that the exclusion of ted).] matters or tenure” from the definition lection personnel encompasses case” of a “contested Money, example, is now before 1. Petitioner transferring employees within the decisions appeal this court on from the dismissal for lack agency. holding This does mean that all not subject jurisdiction of his matter action such decisions are unreviewable. It does sought relief the trial court which also mean, however, that: No. adverse decision. Docket considering aggrieved, individuals themselves judicially cognizable sense, always have in a mination, have the assistance counsel ordinary the member’s accrued meeting inspector. account an with the charged. Upon exhaustion informal however, witnesses account, not, confront placed this the member is in a He cause, record made of leave without until able to re- nor is i. pay status adverse to his status, duty. meeting. turn to While in this departmental

member remains II regulations, including prohibition against engaging in other employment. General facts, presented in Upon these the issues (Rev. 12/7/75). Order para. I.E. 8 court) (but not reached appeal were accorded their are whether provides right statute which in the constitutional2 provides leave also and, not, Departmental if what proceedings finding means which the necessary to remedy appropriate. is right injury that in the line of —illness duty to be regulations made: “under form of is that “some —is fundamental prescribed by . the District of Co- an individual is hearing is before ” or, lumbia Council . . . under the for- property a interest.” finally deprived of statute, mer by version of the the Commis- 319, 333, Eldridge, Mathews v. U.S. sioners of the District of Columbia. 5 893, 902, citing S.Ct. 47 L.Ed.2d 6324(b) (1970), (Supp. U.S.C. as amended 539, 557-58, McDonnell, Wolff v. 418 U.S. Commissioners, V acting under 2963, (1974). 41 L.Ed.2d 935 Final S.Ct. statute, provided the former version of the interest, purposes deprivation of the (whether that duty all absences from or not finally need not hearing requirement, duty-related) approved by “must be how- rights parties, determine the of the Chief of that the may Chief [Police]” is for property ever. If the interest denied “redelegate to senior officials of de- [the example, a significant period, a for before partment] powers delegated.” herein adjudication par- of the final Board of Commissioners of ties, there be an process requires that Columbia, 65-528, 2, para. Order No. 5 opportunity hearing meaningful for a “at a (April 15, 1965). Arm- meaningful time and in a manner.” Manzo, 545, 552, strong v. 380 U.S. S.Ct. The Chief of Police has established the 1187, 1191, (1965), quoted 14 L.Ed.2d 62 following procedures by general order. The approval Eldridge, with in v. su- Mathews initial determination of whether an 333, 893. The pra, 424 96 S.Ct. U.S. duty illness was incurred in the line of therefore, are questions presented whether made in writing by inspector assigned an decisions made the Police review of an and Fire Clinic after property deprivations of case effected final official, investigative report police of a hearing a require interests sufficient records, medical and additional reports and and, so, hearing provided if whether the personnel data from the records. member’s adequate purpose. for this Should the determination be unfavorable to member, review of the effect of a decision may typical he seek immediate merely a by inspector, during decision which the of the kind made in this case member is no bookkeeping entry entire file that the may inspect member of data longer certain amount of may submit additional information rel- credited with a the member will have usually evant to the issue. The written bemay sick or annual leave and by inspector is final. General accrued 6, an absence. (Rev. Order No. II.A. 7 at 18 advanced sick leave to cover the same 7/31/72). procedures, precisely these The member receives In addition to custom, that, it received had he appears by the member benefits he would have leave, except may, granted review the initial deter- been seeking assert, practice affording nor have devel- limited before Petitioners do not a demonstrate, oped inspector “required a law.” record to the current employment.6 expenses Although other any medical incurred must be borne Depart- situation, him rather deprivation be oc- atypical an ment.3 Given the general availability proximate curs as a direct and result of government group subsidized health insur- adverse decision. ance, it I think reasonable to conclude Mathews Respondents argue under there is no depriva- substantial immediate Eldridge, supra, v. safe- tion. guards are constitu- accorded An adverse decision in such circumstances is, adequate. Mathews in some re- tionally might, however, deprive the member of Here, spects, case. as in analogous to this property substantial interest the future. Mathews, the immediate effect of typical Thus, example, leave used as a result an decision is not erroneous administrative an adverse decision will be unavailable to “deprive eligible an [claimant] again member should he become ill or live,” very means which to the situation injured again accrued suffi- having 397 U.S. Goldberg Kelly, cient leave cover his resources to absence. (1970). 1011, 1018, S.Ct. 25 L.Ed.2d 287 And should the elect to un- member retire Mathews, Rather, petitioners typically inas der provisions D.C.Code 4-528 e., sick have collateral resources —i. accrued (retirement service), after sick twenty years leave— and annual and advanced sick an deter- used as result of adverse which assure that an erroneous decision to supplement mination will unavailable of a impact does not have immediate 4-528(4). his retirement id. annuity. See § adverse determination of entitle- final and occur, however, deprivations Such will if at ment. all, the only upon occurrence of a subse- quent event, as agree such illness or I for the limited immediate injury case, or an election to retire under the impact safeguards of the the typical provisions of adequate 4-528.4 under accorded are But, noted, potential im- Mathews. as the deprived the be of a Finally, member pact in these type of the made of decision as a property substantial interest direct and bookkeeping mere beyond cases extends the relatively immediate result of such an ad- case. In typical entry involved in the where, verse decision. will occur ei- This issue before the only Mathews ther because of the duration of the mem- prior to the initial was “what is due ber’s incapacity or because of limited leave benefits, pending of review.”7 termination resources, required to take member 333, (emphasis at 902 424 at 96 S.Ct. U.S. part all or of his pay during without added). The claimant’s situation, “[C]onstitutional absence.5 In member his entirely collateral to challenge substantially loses em- all the benefits of [was] at claim entitlement.” Id. remaining subject substantive of ployment while to case, on Departmental against 330, at In the instant prohibition engaging 96 S.Ct. 900. 1001.1, para. (Rev. petitioner No. 5. one in this is asserted 3. General Order I.B.2 At least case pay 3/2/73), provides take without to have been that the shall result an adverse responsible payment as a direct of determination. not be of costs consequences might similarly be direct Other incurred in the treatment of an illness or immediate, appears none of record. but “off-duty,” ap- sustained which is while however, pears, “off-duty,” in that this context it is each While conceded case that duty-related. See id. I.F.2.d. means not disability petitioner duty, was disabled such 1973, (payment 4-525 of See also D.C.Code necessarily imply disability for all need not employment. duty-related). expenses are medical which supple- statutory provision no There is Mathews, termination 7. In the initial of other mentation retirement annuities under novo two subse was quent to review de at 1973, options. 4- §§ retirement See D.C.Code stages, was one of which retirement), (duty-related (disability -527 “non-adversary,” and review the administra retirement). disability judicial proceedings. at 424 U.S. record tive 339, 96 S.Ct. 893. McElroy, 367 U.S. Workers hand, further Cf. Cafeteria there exists no ad- other 1743, 6 L.Ed.2d 81 S.Ct. judicial statutorily provided ministrative disapproved action (where the same claims petitioners’ proceeding by when undertaken approved Greene was Absent such may be reviewed. entitlement of the authority explicit pursuant review, adjudicated by the ad- rights of the President as commander-in-chief situation typical ministrative decision case, how- instant forces). In the armed ripen will a final determination en- into traditional ever, the contraction therefore, challenge, titlement. Petitioners’ undertaken was procedure forms fair directly involves “substantive claim[s] of Police the Chief upon authority the collateral of entitlement” as well as duty, whether “approve” all absences resolved attack the interim decision This duty-related. was or not absence reference to Mathews. pursuant authority delegated the only here, Where, administrative deci- mandate that congressional rights, sion a final determination of effects pre- Commissioners Council Board there of some kind. hearing must be a determining wheth- “regulations” for scribe Eldridge, supra Mathews v. S.Ct. line of injury occurred in the er an illness or 893; McDonnell, supra Wolff v. U.S. at relat- authority To duty. construe 557-58, rights 2963. Where S.Ct. rather of this nature ing to final decisions specific adjudicated, rather parties than simply departmental “approval” there rights legislated, of a class must restriction permit absence would be be a prior type hearing.” Chevy “trial I by implication Greene. condemned in Chase Citizens Association v. Co- the in- necessarily would not conclude Council, D.C.App., lumbia 327 A.2d ex- made procedures, stant had been (1974) (en banc). requirement final determinations plicitly applicable to type hearing” there a “trial does not statute, be inad- would under the necessarily require that in- rights. petitioners’ equate safeguarding panoply clude the full safe- -8128(b) See, 8124(b)(2), g., e. 5 U.S.C. §§ guards their forms.8 in traditional “Due (decision of Labor by Secretary requires type process sometimes a trial of work-relat- compensation or for grant deny the of one hearing but allows relaxation neither ed is hearing.” more K. attributes such a APA reviewable safeguards federal nor Davis, Treatise, Administrative Law 7.01 But, explicit such any court). absent by (1958) (footnote omitted). at 408 action, procedures I hold the would adjudica- for a accorded are not valid final attributes, however, Relaxation of these petitioners’ rights. tion of upon explicit authority must be the In appropriate government. departmental proce- branch of existing Because the 474, 508, 79 McElroy, Greene v. 360 U.S. a final determina- inadequate dures are for 1400, 1419, simi- procedures 1377 the petitioners’ rights, S.Ct. L.Ed.2d tion of DCAPA, Court by held that the lar to those established forms of which to the traditional conform [may] traditional forms of procedure fair procedure, required. fair are not or with- by implication be restricted explicit out the most action Na- Ill lawmakers, in areas where it tion’s even petition- rights of these possible presents I turn now to the the Constitution case has petitioners ers. None of the no inhibition. evidence, er, solely upon procedure in- a based traditional forms fair notice, “opportu- timely adequate Gold- and a statement decision. and an reasoned clude 266-71, nity through berg Kelly, supra, at v. 397 U.S. to defend” cross-examination 1011; Eldridge, supra, witnesses, present opportunity Mathews v. an S.Ct. adverse orally, argue U.S. at 325 n. 96 S.Ct. 893. and to the case as- evidence counsel, impartial an decision mak- sistance duty-related. cases, claimed to be In such procedural safeguards been accorded the necessary adjudication are for final presently prescribed are an procedures “in a meaningful of their interests property safeguard means which to adequate Manzo, Armstrong supra, manner.” respective rights of the member Unless, at upon U.S. 85 S.Ct. But Department pending review.10 further further proceedings, entitle- member, loss of faced with imminent to those rights might ment be redetermined pay, in these be assured must circumstances meaningful time,” id., “at a as well as in a review of the interim decision. timely manner, meaningful petitioners be would review, timely the member’s Absent such entitled to reinstatement former their determined loss of will become positions, for deprivation a without full procedurally his A fair and hear- pay. is, law, in contemplation of the a therefore, ing, required would be Ward, nullity. g., See e. Thomas v. placed in a leave without may member be (4th F.2d Cir. pay status. decisions made records, briefs, apparent It is from the have, II, these cases may as noted in Part and argument this that most of the case supra, upon prop- three effects distinct petitioners only to were affected here erty injured interests of ill or members. entry bookkeeping First, extent of a merely bookkeeping there a may be and unrelated subsequent notation the member’s leave account occurrence of a charged proce- to be an absence. The I am petitioners, to these confi- event. As Department claims, dures established their dent that a redetermination since a fu- adequate purpose only demanded, oppor- if would afford them to be any, reasonably if deprivation, ture meaningful time as heard at a tunity to be Second, may the determination expected. It manner. meaningful well as in when, an in the deprivation effect actual however, that one or argument, asserted at future, require use of member instant case in the more of expended a result of determi- pay to take without effects, nation. As to the Department such result of the adverse administrative direct expected cannot to deter- reasonably be As to ab- petitioners, decision.11 these mine, initiative, point of its own what full, fair, assuring a procedures sence of time, any, if re- might a full be claims, timely redetermination of quired to assure that the member is heard pay, loss constituted a coupled with the would, meaningful “at a there- time.” property deprivation of a substantial inter- fore, reasonable est, of their contracts em- derogation deter- to its initial expect A full process. ployment, without for administrative ineligibility mination of re- their claims on fair redetermination full request a the member would rectify the absence will not serve to mand would be hearing in which his entitlement meaningful time. procedures at a such Third, the redetermined.9 therefore, are entitled to petitioners, These relatively decision immediate have the wages lost as a for all compensation full member, upon ex- requiring effect of allegedly due to the result of their absences resources, to take haustion his leave (cid:127) injuries illness illnesses involved pay duty-related leave without would, course, province No. sick leave. General Order be within the accrued para. 9. III.A.9.b(3). a limitation such to fix by requiring be made claims demand period after initial deci- within reasonable procedures cases existed no 11.In these there sion is rendered. which, prior filing petition for review in court, consequences of an adverse ad- Department, by regulations, is its own 10. be made a matter of ministrative could immediately required to commence record. leading whenever initial determination 160 or fewer hours affected member has 5596(a)(5), (b)(1). this case.12 U.S.C. §§ Ward, supra; Thomas v. v. Board

See Soni Trustees, (6th 1975); 513 F.2d 347 Cir. States, 161

and Saltzman v. United Ct.Cl. (1963). TURNER, Appellant,

Gertrude

AMERICAN MOTORS GENERAL

CORP., Appellee.

No. 12373. Appeals. Columbia Court

Argued March

Decided Oct. employment, ordinary against respecting mitigation outside Order No. General 12. The rule 12/7/75). damages through (Rev. employment has I.E.8 alternative application proscription no here in view of the

Case Details

Case Name: Money v. Cullinane

Court Name: District of Columbia Court of Appeals

Date Published: Oct 11, 1978

Citation: 392 A.2d 998

Docket Number: 10633, 10634, 10635, 10636, 10637, 10715 and 10730

Court Abbreviation: D.C.