Coleman v. Dist. of Columbia, 11–CV–937.

• Decision Date: 12 December 2013
• Docket Number: No. 11–CV–937.,11–CV–937.
• Citation: 80 A.3d 1028
• Parties: Elliotte Patrick COLEMAN, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

80 A.3d 1028

Elliotte Patrick COLEMAN, Appellant,

v.DISTRICT OF COLUMBIA, Appellee.

No. 11–CV–937.

District of Columbia Court of Appeals.

Submitted Oct. 12, 2012.

Decided Dec. 12, 2013.

Elliotte P. Coleman, pro se, for appellant.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for appellee.

Before OBERLY and McLEESE, Associate Judges, and STEADMAN, Senior Judge.

McLEESE, Associate Judge:

Elliotte Coleman, who unsuccessfully applied for employment with the District of Columbia, claims that the District failed to follow applicable statutory and regulatory requirements when it considered his applications. We conclude that Mr. Coleman's suit is foreclosed by the Comprehensive Merit Personnel Act (CMPA), D.C.Code § 1–601.01 et seq. (2012 Repl.).

I.

For purposes of this appeal we assume the truth of the factual allegations in Mr. Coleman's amended complaint. In 2008, Mr. Coleman applied for several positions announced by the District of Columbia Department of Consumer and Regulatory Affairs (DCRA). Mr. Coleman was not selected for any of those positions. According to Mr. Coleman, DCRA acted unlawfully in making its selection decisions, by among other things “preselect[ing]” candidates and selecting less-qualified candidates without explanation. In making this claim, Mr. Coleman relies upon D.C.Code § 1–608.01(a)(1) (requiring promulgation of regulations providing for “open competition for initial appointment to the Career Service”), regulations promulgated pursuant to the CMPA, and the D.C. Personnel Manual.

Mr. Coleman complained to officials at DCRA, to the District of Columbia Department of Human Resources, and to the Mayor, but according to Mr. Coleman they did not take appropriate remedial action.

Mr. Coleman then brought suit in Superior Court. The District moved to dismiss the suit, arguing that Mr. Coleman failed to state a claim and failed to exhaust his administrative remedies.¹ The Superior Court dismissed the suit without prejudice, concluding that Mr. Coleman failed to exhaust his administrative remedies, by failing to appeal DCRA's adverse hiring decisions to the Office of Employee Appeals (OEA). The Superior Court stated that OEA likely did not have jurisdiction to consider such an appeal, because Mr. Coleman was an applicant for employment rather than an employee. SeeD.C.Code § 1–606.03(a) (permitting appeal to OEA by “employee”). Nevertheless, the Superior Court interpreted this court's decision in Grillo v. District of Columbia, 731 A.2d 384 (1999), to require Mr. Coleman to get a definitive ruling from OEA on the jurisdictional issue before filing suit in Superior Court.

Mr. Coleman appealed to this court, but also filed an appeal with OEA challenging DCRA's hiring decisions. A Hearing Officer dismissed the appeal to OEA for lack of jurisdiction, relying on D.C.Code § 1–606.03(a). Mr. Coleman apparently did not seek further review of that ruling.

In this court, Mr. Coleman argues that the Superior Court erred in holding that he failed to exhaust his administrative remedies. Mr. Coleman also renews his claim that the District failed to follow applicable statutory and regulatory provisions in making its hiring decisions. Reversing the position it had taken before the Superior Court, the District now concedes that Mr. Coleman exhausted the only administrative remedy available to him, by filing a grievance, and was not required to appeal the denial of his grievance to OEA. The District argues, however, that this court should nevertheless affirm the judgment of the Superior Court on the alternative ground that Mr. Coleman's suit is foreclosed by the CMPA.

We are not required to treat a party's concession as determinative of an issue that the Superior Court resolved in the party's favor. Cf. Lawrence v. Chater, 516 U.S. 163, 170–71, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (Supreme Court “should not mechanically accept any suggestion from the Solicitor General that a decision rendered in favor of the Government by a United States Court of Appeals was in error”) (internal quotation marks omitted). In the present case, we assume without deciding that Mr. Coleman was not required to appeal to OEA, and resolve the case on the alternative ground that Mr. Coleman's suit is foreclosed by the CMPA.²

II.

Generally, those who are aggrieved by an unlawful action of the District government “may initiate an appropriate equitable action in the Superior Court to seek redress.” District of Columbia v. Sierra Club, 670 A.2d 354, 359 (D.C.1996) (internal quotation marks omitted). By statute, however, some actions taken by the District government or its agencies are reviewable in the first instance by this court rather than the Superior Court. See, e.g.,D.C.Code § 2–510(a) (2012 Repl.). Although there is a “strong presumption” that agency action will be subject to judicial review, that presumption can be “rebutted by clear and convincing evidence of a contrary legislative intent.” Sitcov v. District of Columbia Bar, 885 A.2d 289, 295 (D.C.2005) (internal quotation marks omitted).³ “Whether ... a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” District of Columbia v. Thompson, 593 A.2d 621, 632 (D.C.1991) (on rehearing) (quoting Block v. Community Nutrition Inst., 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984)). Similarly, “[w]hen a statute creating new rights and remedies does not expressly exclude common law remedies or declare new remedies exclusive, we decide whether such remedies remain available by looking initially at ‘the purpose of [the statute], the entirety of its text, and the structure of review that it establishes.’ ” Id. (quoting United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988)).⁴

The District argues on appeal that the CMPA forecloses Mr. Coleman's suit challenging the District's hiring decisions. We agree.

III.

The CMPA was enacted in response to perceived shortcomings of the District's preexisting personnel system, which the Council of the District of Columbia described as “disjointed, decentralized,” “in disarray,” and an “inefficient hodgepodge.” Thompson, 593 A.2d at 632 (quoting D.C. Council, Report on Bill 2–10 at 24, 26 (July 5, 1978)). The CMPA was intended to replace that system with a “uniform” and “comprehensive merit personnel system.” Id. at 632–33.See alsoD.C.Code § 1–601.02(a) (purposes of CMPA include to “[c]reate uniform systems for personnel administration”).

Although the CMPA focuses primarily on employees, several of its provisions relate to applicants for employment. See, e.g.,D.C.Code § 1–601.02(a)(7) (CMPA intended to ensure District government has “means to recruit [and] select” “effective and responsive work force consistent with merit principles”); D.C.Code § 1–608.01(a) (directing Mayor to promulgate regulations relating to merit selection for positions in career service).

In addition to its substantive provisions, the CMPA has detailed provisions addressing administrative and judicial review of agency actions relating to employment. In its current form, the CMPA provides that certain such actions may be challenged through a grievance process. D.C.Code § 1–616.52(a) (reprimand or suspension of less than ten days may be contested as grievance); D.C.Code § 1–616.53(a) (directing Mayor to issue rules and regulations providing procedures for prompt handling of grievance “of employees and applicants for employment”). See also6–B DCMR §§ 845, 1630.1, 1631.1, 1699 (2013) (outlining circumstances in which applicants for employment can file grievances). More serious employment actions, such as removal, reduction in grade, or suspension for ten days or more, may instead be appealed to OEA. D.C.Code § 1–606.03(a); D.C.Code § 1–616.52(b). ⁵ The OEA's determinations are then subject to judicial review. D.C.Code § 1–606.03(d).

The parties now appear to agree about the proper application of the express provisions of the CMPA: Mr. Coleman was permitted to file a grievance challenging at least some aspects of the District's decisions not to hire him, but the CMPA does not permit Mr. Coleman to obtain review by OEA of the denial of such a grievance.⁶ Moreover, the CMPA does not expressly provide for judicial review of the denial of such a grievance. The parties disagree, however, about the further implications of these provisions. The District contends that Mr. Coleman has no judicial remedy, whereas Mr. Coleman contends that he was free to seek relief in Superior Court, invoking that court's general authority to direct agencies to conform their conduct to the requirements of the law. For the reasons that follow, we conclude that the strong presumption in favor of judicial review has been rebutted and that the CMPA forecloses Mr. Coleman's suit challenging the District's decisions not to hire him.

IV.

This court has not previously had occasion to decide whether the CMPA forecloses judicial review of a particular claim arising under the CMPA. The court has, however, decided numerous cases addressing a related question: whether the CMPA forecloses employees of the District from filing suit in Superior Court asserting various causes of action arising out of their employment. This court has frequently found that such suits are foreclosed by the CMPA, and that such employees are limited to the administrative and judicial remedies provided by the CMPA. See, e.g., District of Columbia v. American Fed'n of Gov't Emps., Local 1403, 19 A.3d 764, 771–74 (D.C.2011) (CMPA foreclosed labor union's action in Superior Court under Arbitration Act to enforce arbitration award against District); Washington...