Vilean STEVENS & Ike Prophet, Appellants, v. DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, Appellee.
No. 14-CV-315
District of Columbia Court of Appeals.
Argued October 4, 2016, Decided December 15, 2016
150 A.3d 307
Accordingly, for the foregoing reasons, we affirm the trial court‘s judgment relating to Mr. Hughes‘s convictions on the Lopez charges. However, we reverse the trial court‘s judgment with respect to Mr. Hughes‘s convictions on Sanchez count 16, and his convictions on Mohamud counts 19, 20, and 21, and remand those counts to the trial court for a new trial.
So ordered.
David A. Branch for appellants.
Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.
Thompson, Associate Judge:
Appellants Vilean Stevens and Ike Prophet appeal from a judgment of the Superior Court that affirmed decisions by the District of Columbia Office of Employee Appeals (“OEA“) upholding the abolishment, through a reduction-in-force (“RIF“), of positions that appellants held at appellee District of Columbia Department of Health (“DOH” or the “Agency“). For the reasons that follow, we agree with the OEA (and with the Superior Court) that the RIF was governed by the Abolishment Act,
I. Background
Until the RIF that is the subject of the parties’ dispute, appellants worked in the Commodity Supplemental Food Program (“CSFP“) of the DOH Community Health Administration, Nutrition and Physical Fitness Bureau.1 By letter dated December 29, 2008, the Director of DOH sent each of the appellants a notice of separation by RIF. The letter stated that it “serve[d] as official notice of at least thirty (30) calendar days” that appellants would be separated from service effective January 30, 2009, “in accordance with Chapter 24 of the District‘s Personnel Regulations[.]” The letter further informed appellants that, inter alia, they had a right to appeal to the OEA.
Appellants appealed to the OEA, contending that DOH (1) undertook the RIF pursuant to the general RIF statute,
In substantially identical initial decisions on appellants’ appeals, the OEA concluded that its decision was “guided solely” by the Abolishment Act, which limited the issues appellants could bring to whether they were afforded the thirty days’ prior written notice of separation required by the Act and whether each was afforded one round of lateral competition within his or her competitive level. The OEA found that both appellants were properly afforded thirty days’ written notice, that “the entire unit in which [appellants‘] position[s were] located was abolished,” and that DOH also “was in compliance with the lateral competition requirements of the law.” In addition, the OEA ruled that it lacked jurisdiction to determine whether the RIF was “bona fide or violated any [other] law.”
Appellants sought review by the Superior Court, which consolidated their cases and affirmed the OEA‘s initial decisions in part and remanded in part. The court affirmed, as supported by substantial evidence, the OEA‘s determination that no lateral competition was required because appellants’ “entire unit was RIFed.” The
In an “Addendum Decision on Remand,” the OEA ruled that it was “primarily guided” by the Abolishment Act for “RIFs authorized due to budgetary restrictions.” It asserted that the Act “was enacted specifically for the purpose of addressing budgetary issues resulting in a RIF” and observed that the Act “is a more streamlined statute for use during times of fiscal emergency.” Citing this court‘s decision in Washington Teachers’ Union, Local # 6 v. District of Columbia Pub. Sch. (“WTU“), 960 A.2d 1123 (D.C. 2008), the OEA noted this court‘s statement that the RIF involved in that case, which was implemented “to ensure balanced budgets,” “triggered the Abolishment Act provisions.” Id. at 1132. The OEA also reasoned that the “notwithstanding” language of the Act‘s third paragraph,
In the instant appeal, appellants contend that the RIF was not conducted due to a lack of funds or budgetary constraints and that the OEA therefore erred in concluding that the RIF was governed by the Abolishment Act rather than by the procedural requirements of the general RIF statute and its implementing regulations. Appellants argue in the alternative that even if the cause of the RIF was a “budgetary concern,” the OEA erred in assuming either (1) that the Abolishment Act replaced the general RIF statute, such that the Act governs all government agency RIFs, or (2) that any RIF undertaken because of a budgetary concern is an Abolishment Act RIF. Appellants contend that the OEA was required to consider the “intent and procedures used” in the RIF, factors that they assert show that the DOH RIF “was clearly intended to be conducted under the [general] RIF statute.” Appellants also argue that the case should be remanded because the OEA failed to hold an evidentiary hearing and make factual findings resolving what they contend are material issues of disputed fact. Appellant Stevens argues in addition that the OEA erred in holding that there was no violation of the one-round-of-lateral-competition requirement. We address each of these claims in turn.
II. Applicable Law
A. This court‘s standard of review in OEA cases
This court “review[s] agency decisions on appeal from the Superior Court the same way we review administrative
B. The general RIF statute and the Abolishment Act
Both the general RIF statute,
The general RIF statute authorizes the Mayor (and the District of Columbia Board of Education) to “issue rules and regulations establishing a procedure for the orderly termination of employees[,]”
The Abolishment Act provides as follows:
§ 1-624.08 . Abolishment of positions for fiscal year 2000 and subsequent fiscal years.(a) Notwithstanding any other provision of law, regulation, or collective bargaining agreement either in effect or to be negotiated while this legislation is in effect for the fiscal year ending September 30, 2000, and each subsequent fiscal year, each agency head is authorized, within the agency head‘s discretion, to identify positions for abolishment.
(b) Prior to February 1 of each fiscal year, each personnel authority (other
than a personnel authority of an agency which is subject to a management reform plan under subtitle B of title XI of the Balanced Budget Act of 1997) shall make a final determination that a position within the personnel authority is to be abolished. (c) Notwithstanding any rights or procedures established by any other provision of this subchapter, any District government employee, regardless of date of hire, who encumbers a position identified for abolishment shall be separated without competition or assignment rights, except as provided in this section.
(d) An employee affected by the abolishment of a position pursuant to this section who, but for this section would be entitled to compete for retention, shall be entitled to one round of lateral competition pursuant to Chapter 24 of the District of Columbia Personnel Manual, which shall be limited to positions in the employee‘s competitive level.
(e) Each employee selected for separation pursuant to this section shall be given written notice of at least 30 days before the effective date of his or her separation.
(f) Neither the establishment of a competitive area smaller than an agency, nor the determination that a specific position is to be abolished, nor separation pursuant to this section shall be subject to review except that:
(1) An employee may file a complaint contesting a determination or a separation pursuant to subchapter XV of this chapter or
§ 2-1403.03 ; and(2) An employee may file with the Office of Employee Appeals an appeal contesting that the separation procedures of subsections (d) and (e) were not properly applied.
(g) An employee separated pursuant to this section shall be entitled to severance pay in accordance with subchapter XI of this chapter, except that the following shall be included in computing creditable service for severance pay for employees separated pursuant to this section:
(1) Four years for an employee who qualified for veterans preference under this chapter, and
(2) Three years for an employee who qualified for residency preference under this chapter.
(h) Separation pursuant to this section shall not affect an employee‘s rights under either the Agency Reemployment Priority Program or the Displaced Employee Program established pursuant to Chapter 24 of the District Personnel Manual.
(i) With respect to agencies which are not subject to a management reform plan under subtitle B of title XI of the Balanced Budget Act of 1997, the Mayor shall submit to the Council a listing of all positions to be abolished by agency and responsibility center by March 1 of each fiscal year or upon the delivery of termination notices to individual employees.
(j) Notwithstanding the provisions of
§ 1-617.08 or§ 1-624.02(d) , the provisions of this chapter shall not be deemed negotiable.(k) A personnel authority shall cause a 30-day termination notice to be served, no later than September 1 of each fiscal year, on any incumbent employee remaining in any position identified to be abolished pursuant to subsection (b) of this section.
(l) In the case of an agency which is subject to a management reform plan under subtitle B of title XI of the Balanced Budget Act of 1997, the authority provided by this section shall be exercised to carry out the agency‘s management reform plan, and this section shall otherwise be implemented solely in a manner consistent with such plan.
In April 1996, Congress enacted the District of Columbia Appropriations Act of 1996 (“the 1996 Budget Act“), Pub. L. No. 104-134, 110 Stat. 1321 (1996), “to deal with the District‘s financial crisis[.]” Washington Teachers’ Union Local # 6 v. Bd. of Educ. (“BOE“), 109 F.3d 774, 776 (D.C. Cir. 1997). The 1996 Budget Act temporarily amended District law governing reductions-in-force by adopting provisions identical to those of the Council-enacted reduction-in-force legislation described above, except that the date before which each agency head was to make a final determination about positions for abolishment was changed from February 1, 1996, to August 1, 1996. See § 149 (b), 110 Stat. at 1321-98; see also BOE, 109 F.3d at 777. Congress enacted the temporary provision “to provide the District with greater flexibility to manage its workforce and control costs[.]” Board of Trs. of Univ. of District of Columbia v. American Fed‘n (“UDC“), 130 A.3d 355, 359 (D.C. 2016); see also Fowler v. District of Columbia, 122 F.Supp.2d 37, 38 (D.D.C. 2000) (explaining that “[o]perating deficits, cash shortages, management inefficiencies, deficit spending, and an overall ‘fiscal emergency’ led Congress to enact [the Abolishment Act]“).
Thereafter, beginning in June 1996, and again in 1997, 1998, and 1999, both the Council and Congress passed legislation that updated the language of the reduction-in-force legislation. The Council added a new section, § 1-625.7, to the D.C. Code that tracked the language of the earlier legislation, but that changed the date in the opening paragraph from the phrase “for fiscal year ending September 30, 1996,” to the phrase “for the fiscal year ending September 30, 1997,” and also
Thereafter, during each of the next three years, Congress passed appropriations legislation that continued the update process: it substituted the phrase “for the fiscal year ending September 30, 1998,” Pub. L. No. 105-100, § 150 (d), 111 Stat. 2160, 2183 (1997); the phrase “the fiscal year ending September 30, 1999,” Pub. L. No. 105-277, § 144 (b), 112 Stat. 2681, 2681-144 (1998); and then the phrase “for the fiscal year ending September 30, 2000,” Pub. L. No. 106-113, § 140 (b), 113 Stat. 1501, 1522 (1999), for the originally enacted phrase “for the fiscal year ending September 30, 1996,” and it changed the date by which a final decision was to be made on the identification of positions to be abolished to February 1, 1998; then to February 1, 1999; and then to February 1, 2000. See § 150 (d), 111 Stat. at 2183; § 144 (b), 112 Stat. at 2681-144; and § 140 (b), 113 Stat. at 1522.5
In November 2000, Congress made (what is to date) its final amendment to the Abolishment Act, substituting the phrase “September 30, 2000, and each subsequent fiscal year” for the originally enacted phrase in subsection (a), and inserting, in subsection (b), “[p]rior to February 1 of each year” in lieu of February 1 of a specified year. See Pub. L. No. 106-522, § 129 (b), 114 Stat. 2440, 2467 (2000); Pub. L. No. 106-553, § 129 (b), 114 Stat. 2762, 2762A-29-30 (2000) (emphasis added). The Council subsequently amended the heading of the Act (which had been recodified as
The permanent legislation described above added a new section (§ 1-625.7, later recodified as
C. Statutory construction principles
“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used.” Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation marks omitted). This court therefore begins its process of statutory interpretation “by looking at the statute on its face, and if the meaning is clear from the face of the statute, we must give effect to that plain meaning.” Rupsha 2007, L.L.C. v. Kellum, 32 A.3d 402, 406 (D.C. 2011). A “cardinal rule [of statutory construction is also] that a statute is to be read as a whole[.]” Corley v. United States, 556 U.S. 303, 314 n.5 (2009) (internal quotation marks omitted). “[O]ne of the most basic interpretive canons” is that “a statute should be construed so that effect is given to all its provisions, so that no part will be
III. Analysis
A. The reach of the Abolishment Act
For the reasons that follow, we agree with appellants that the Abolishment Act did not supersede the general RIF statute and that a RIF may be governed by the general RIF statute and regulations rather than by the Abolishment Act even if it was based on budgetary constraints. We also conclude, however, that the Abolishment Act currently affords District of Columbia agencies an opportunity each fiscal year to use a streamlined procedure to
1. The February 1 deadline for RIFs under the Abolishment Act
We begin with the fact, emphasized by appellants, that “[t]he Abolishment Act did not state that it repealed the [general] RIF statute.” As we have often observed, “repeals by implication are not favored.” Owens v. District of Columbia, 993 A.2d 1085, 1088 (D.C. 2010) (internal quotation marks omitted) (quoting Morton v. Mancari, 417 U.S. 535, 549 (1974)). Our first task is therefore to determine whether the statutes involved here, the Abolishment Act and the general RIF statute, can be harmonized and deemed to have “concurrent operation.” Mazanderan v. District of Columbia Dep‘t of Pub. Works, 94 A.3d 770, 774, 781 (D.C. 2014).
We conclude that the two RIF statutes can be harmonized and that the general RIF statute has not been diminished by the Abolishment Act‘s “notwithstanding” clauses.6 To be sure, this court
As already described, the Act states (in
Given the foregoing history, we see no reason to think that the February 1 date as retained in the statute functions any differently than it did as originally enacted: it is the annual deadline by which an agency must identify positions to be abolished through an Abolishment Act RIF.
To put it differently, we construe the “each subsequent fiscal year” language of
2. Fiscal emergency vel non
As already discussed, in explaining in its January 2013 Addendum Decision on Remand how the Abolishment Act operates in relation to the general RIF statute, the OEA reasoned that the Act “was enacted specifically for the purpose of addressing budgetary issues resulting in a RIF.” It also reasoned that the Act is a more appropriate statute “for use during times of fiscal emergency[,]” and is “the more applicable statutory provision in order to conduct RIFs resulting from budgetary constraints.” It therefore announced a rule, which it has since followed in numerous cases,13 that it is “primarily guided” by the Abolishment Act for “RIFs authorized due to budgetary restrictions.”
This court “routinely accord[s] great deference to [the OEA‘s] interpretation of ... the statute which it administers,” Dupree, 132 A.3d at 155 (internal quotation marks omitted).14 On that basis, we can accept the OEA‘s interpretation that it is to be “primarily guided” by the Abolishment Act (rather than “solely guided” by the Act, as the OEA said in its initial decisions on appellants’ positions) when it is asked to consider a RIF. We can do so because it is not unreasonable for the OEA, when considering a challenged RIF, to assume that the District of Columbia employing agency has exercised its each-fiscal-year opportunity to identify positions for abolishment under streamlined procedures—unless the agency asserts otherwise or the timing of the agency‘s final decision to abolish the positions in question precludes that conclusion.
That said, our deference must end there, because the OEA did not consider the significance of the February 1 date (part of the plain language of the Act) by which an agency must make a final determination identifying positions to be abolished during
At the same time, and as the foregoing discussion implies, nothing in the Act supports a conclusion that a RIF undertaken in response to a fiscal emergency will always qualify as an Abolishment Act RIF. Our interpretation in this regard may at first glance appear to be at odds with the analysis in WTU, but we are satisfied that there actually is no conflict. The RIF in dispute in WTU had been announced in a Board of Education resolution dated May 11, 2004, and the affected school personnel were notified in the same month. See 960 A.2d at 1125, 1126 n.5. We said variously that “[t]he abolishment was conducted in accordance with the Abolishment Act,” id. at 1126; that “the Abolishment Act procedures, imposed for budgetary reasons, appear to apply to the 2004 RIF, rather than the general RIF provisions of the CMPA[,]” id. at 1125; that because “[t]he Board‘s May 11, 2004 resolution authorized the 2004 RIF at issue ... to ‘address and eliminate a longstanding structural budgetary problem,’ ... the 2004 RIF triggered the Abolishment Act provisions,” id. at 1132; that “[t]he procedures established in
We made all the foregoing statements in WTU without reference to the timing of the RIF decision involved in that case, i.e.,
To recap what we have concluded in this section: In the beginning, the political and financial context made it clear that the Abolishment Act was meant to address the fiscal crises that continued to confront the District each time Congress updated the Act in connection with District of Columbia appropriations and each time the Council passed similar emergency or temporary legislation. Until late 2000, the Act applied only year-by-year, while the District was regaining its fiscal health. However, the actual language of the Act never required that it be triggered by a fiscal emergency, and when the statute was amended to apply to “each subsequent fiscal year,” the provisions of the Act became equally available in years when there was no fiscal emergency. Thus, the Abolishment Act affords agencies a once-per-fiscal-year opportunity to use a streamlined procedure to abolish positions that they have identified before February 1 of the fiscal year, without regard to whether there is a fiscal emergency or budgetary crisis.
B. Whether the DOH RIF was an Abolishment Act RIF
With the foregoing parameters in mind, we analyze the DOH RIF in dispute here on the basis of the record evidence.
The documentary record that was before the OEA discloses that during the final quarter of fiscal year 2008, the City Administrator directed DOH to reduce its fiscal year 2009 local-funds budget by $2.919 million. In response, DOH requested approval from then-Mayor Adrian Fenty, in a memorandum dated December 15, 2008, to implement a RIF and recommended that twenty-four positions be abolished across four DOH departments, including sixteen from the CSFP unit. The memorandum noted DOH‘s intention to save $600,000 per year by outsourcing the program and called the transition “a priority for DOH.”19 On December 29, 2008, Mayor Fenty signed an administrative order identifying and abolishing the recommended positions “due to [l]ack of [f]unds.” As described above, the DOH Director sent appellants a notice of the RIF by letter dated December 29, 2008, telling them that they would be separated from service effective January 30, 2009.
Thus, the foregoing undisputed record that was before the OEA established that, prior to February 1, 2009, DOH made a final determination that certain identified positions, including the positions held by appellants, were to be abolished during fiscal year 2009. Accordingly, the RIF counted as an exercise of the opportunity created by
Appellants resist that conclusion for two reasons. First, they point out that, in announcing and implementing the RIF, DOH followed various procedures required under the general RIF statute, an approach that they argue shows that DOH intended the RIF to be a RIF under the general RIF statute rather than under the Abolishment Act. We agree with the observation by the reviewing Superior Court judge that it is “irrelevant” that DOH completed some of the procedures called for under
Second, appellants assert that the Mayor did not, as required by the Act (specifically,
We also note that the Act does not specify the form of the required notice to the Council, and it seems possible that, when signed by the Mayor on December 29, 2008, the Administrative Order listing (by position number, job title, and organization location code) the positions that had been identified for abolishment served as a notice to the world, including the Council, “of all positions to be abolished by agency and responsibility center by March 1 of [the] fiscal year[.]”
For the foregoing reasons, we reject appellants’ contention that the OEA erred in treating the DOH RIF as an Abolishment Act RIF.
C. Whether the OEA erred in concluding without an evidentiary hearing that the Abolishment Act procedural requirements were satisfied
Because the OEA properly treated the DOH RIF as an Abolishment Act RIF, the only question properly before the OEA (aside from the question of the bona fides of the RIF, which we discuss below) was whether DOH gave appellants, as RIFed employees, the written 30-days’ notice required by
Appellants were entitled to “one round of lateral competition ..., which shall be limited to positions in the employee‘s competitive level.”
Stevens also argues that she was entitled to a hearing to determine whether she was “in the proper competitive level[.]” However, she proffered no reason supporting a plausible inference that she belonged in a different competitive level within the Nutrition and Physical Fitness Bureau. Accordingly, we cannot say that the OEA erred in determining that there were no material facts in dispute on the issue of lateral competition and that appellants were not entitled to an evidentiary hearing on the issue.25 Cf. Anjuwan v. District of Columbia Dep‘t of Pub. Works, 729 A.2d 883, 886 (D.C. 1998) (holding that no OEA hearing was required where the employee offered nothing but “[m]ere allegations without more” to support his claim).
We also defer to the OEA‘s interpretation that where an employee‘s entire competitive level is eliminated, there is no one against whom he or she could
D. Whether appellants were entitled to a hearing on their claim that the RIF was not a bona fide RIF
Appellants assert that the OEA erred by concluding it had no jurisdiction to consider whether the RIF was a “sham.” This is actually a non-issue because, in its Addendum Decision on Remand, the OEA exercised jurisdiction and determined that appellants’ claims that the RIF was not a bona fide RIF were frivolous. We address instead appellants’ argument that the OEA erred by failing to recognize, as appellants contend was required by Levitt v. District of Columbia Office of Emp. Appeals, 869 A.2d 364, 366-67 (D.C. 2005), that a hearing was required for the OEA to properly assess their claims that there was no shortage of funds and that the RIF was contrived to cover up DOH‘s desire to outsource.
The facts of Levitt were that the employing agency transferred Levitt, who had served the District of Columbia government for nineteen years, to a newly created Grade 15 position with no supervisory responsibilities (a circumstance that Levitt alleged was “extremely unusual” for a Grade 15 position), and then, less than a
Thus, in Levitt, we recognized that a hearing was warranted because the employee had made substantial allegations to the effect that the employing agency had targeted him, rather than a bona fide position he occupied, for elimination, without affording him the procedural protections that apply to terminations for cause.29 Appellants’ allegations are not at all analogous to those in Levitt (and likewise are not analogous to the allegations in Anjuwan that “the agency-wide RIF was a sham to retaliate against him for his whistleblowing activities,” 729 A.2d at 885-86). The undisputed evidence in this case was that the RIF was directed at all or most of the positions in a program area; no evidence was proffered that DOH targeted appellants or other employees individually (and, indeed, as Stevens avers, she and other RIFed employees were rehired by the outsourcing contractor to perform the same functions they had performed as DOH employees, albeit at lower salaries). Further, the short answer to appellants’ argument that the RIF was implemented for a contrived reason is the point we have discussed above: that no shortage of funds and no other particular factual predicate was required to justify what we have concluded was an Abolishment Act RIF. For that reason, even if the statement in the Mayor‘s Administrative Order to the effect that the reason for the RIF was a “[l]ack of [f]unds” was incorrect30 and/or was a
E. Whether there were other material issues of fact that necessitated an evidentiary hearing
Finally, appellants argue that a hearing was required to resolve their various other claims. However, the matters that they assert require an evidentiary hearing either relate to claims that the OEA reasonably determined were frivolous (e.g., that the RIF was a sham of the type involved in Levitt), or else are pure legal issues (e.g., whether an agency may conduct an Abolishment Act RIF to address a shortage of local funds); legal issues that could be resolved on undisputed facts (e.g., whether the DOH RIF qualified as an Abolishment Act RIF); mixed issues of law and fact that are irrelevant to an Abolishment Act RIF (e.g., did the Retention Register satisfy the requirements of 6B DCMR § 2412); or factual questions the answers to which are, for reasons we have explained, immaterial (e.g., what general-RIF procedures did DOH follow, whether DOH “intended” to conduct the RIF pursuant to the Abolishment Act, whether there was a shortage of funds or a fiscal emergency in fiscal year 2009, whether appellants were RIFed to pay for outsourcing the CSFP or for other “improper” reasons, or whether the RIF saved any money). Accordingly, the OEA did not err in ruling that there were no material facts in dispute and that no hearing was required.
**
For the foregoing reasons, we uphold the OEA‘s decision, and the judgment of the Superior Court is
Affirmed.