District of Columbia v. Jones, 79-705.

• Decision Date: 19 January 1982
• Docket Number: No. 79-705.,79-705.
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Joseph E. JONES, Appellee.
• Court: D.C. Court of Appeals

Page 512

442 A.2d 512

DISTRICT OF COLUMBIA, Appellant, v. Joseph E. JONES, Appellee.

No. 79-705.

District of Columbia Court of Appeals.

Argued November 12, 1980.

Decided January 19, 1982.

COPYRIGHT MATERIAL OMITTED

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., at the time briefs were filed, were on brief for appellant.

Ken M. Gozur, Washington, D. C., for appellee.

Before NEWMAN, Chief Judge, KELLY, Associate Judge, and GALLAGHER, Associate Judge, Retired.^*

NEWMAN, Chief Judge:

The District of Columbia appeals a finding that the procedures followed by the Metropolitan Police Department in determining appellee's right to administrative sick leave were constitutionally defective, and also appeals the trial court's determination that because appellee was forbidden by departmental regulation from mitigating damages during the time he spent on leave without pay, appellee was ipso facto entitled to full back pay for the period of time in question. In Part I we outline the facts and the nature of appellee's right to administrative sick leave. In Part II we conclude that appellee had a statutorily-derived property interest of constitutional dimension in administrative sick leave, and that the procedures followed failed adequately to safeguard this interest.

In Part III we consider the remedy awarded appellee by the trial court. The case was argued on cross-motions for summary judgment. As we find the record entirely lacking in evidence of a departmental regulation prohibiting appellee from mitigating damages during the time he was on leave without pay, we conclude that there remained, following submission of the parties' cross-motions for summary judgment, a material issue in dispute on the question of damages. We therefore affirm in part and reverse in part the decision of the trial court.

I

The facts underlying the instant appeal are as follows. On April 7, 1975, Officer Joseph E. Jones of the District of Columbia Police Department suffered a contusion of the right knee. Following a determination that this injury had been sustained in the performance of duty, Officer Jones was placed on administrative sick leave pursuant to 5 U.S.C. § 6324(a) (1976).¹ He continued in this status until July 26, 1976, when, upon review of the case, Inspector George R. Suter of the Metropolitan Police Department Police and Fire Clinic Division determined by memorandum decision that Officer Jones was in satisfactory condition to report for regular duty.² As a result of this decision, Officer Jones was placed on chargeable sick leave status,³ with the proviso that upon exhaustion of his sick leave he could use his annual leave, and that when this too was spent he would be placed in leave without pay status.⁴ After meeting with Officer Jones on August 6, 1976, Inspector Suter on August 9, 1976, in conclusory terms affirmed his earlier decision.⁵ Assistant Chief of Police Tilmon O'Bryant met with Officer Jones on October 28, 1976. His summary affirmance on November 3, 1976 of the earlier decisions was the final administrative determination of Officer Jones' right to administrative sick leave.⁶ As a result of these determinations, on March 16, 1977 Officer Jones, having exhausted his accumulated sick leave, was placed on leave without pay status. On November 1, 1977, the Police and Firemen's Retirement and Relief Board, having found Officer Jones to be physically incapacitated for further duty by reason of disability incurred in the performance of his duty as a policeman, placed him on disability retirement pursuant to D.C.Code 1973, § 4-527(1).⁷

Officer Jones sought in this action money damages equivalent to the value of his expended sick leave and the income he lost during the time he spent in leave without pay status. The action was argued on cross-motions for summary judgment. The trial court, following Judge Nebeker's concurrence in Money v. Cullinane, D.C.App., 392 A.2d 998, 1000 (1978), concluded that the failure to provide a full, fair, and timely hearing prior to termination of his administrative sick leave had deprived Officer Jones of a cognizable property interest without due process of law, that a new hearing would not rectify the absence of such procedures at a meaningful time, and that Officer Jones was therefore entitled to summary judgment in the amount of the total wages lost while he was on leave without pay.⁸

The petitioners in Money v. Cullinane, supra, sought review under the District of Columbia Administrative Procedure Act, D.C.Code 1978 Supp., §§ 1-1501 to -1510 [DCAPA] of a determination that they were not entitled to administrative sick leave. Holding that such a determination was not a "contested case" within the meaning of the DCAPA, id. § 1-1502(8), we dismissed for lack of jurisdiction and did not address the merits. In a concurring opinion, Judge Nebeker suggested that we ought, at that time, to have reached the merits of the case in the interest of judicial economy. Addressing those questions, he concluded that the constitutional mandate that administrative decisions comply with the requisites of procedural due process is broader than our jurisdiction directly to review administrative cases, and that the procedures followed by the Police Department were constitutionally deficient. Money v. Cullinane, supra at 1000-05.

The issues previously addressed by Judge Nebeker are now squarely before the court for resolution. We turn to this task.

II

A. A CONSTITUTIONALLY PROTECTED INTEREST

Due process scrutiny of administrative procedures is available only where the litigant makes a threshold showing that he has at stake a legitimate property or liberty interest which is subject to protection under the Fifth or Fourteenth Amendments of the Constitution. Mazaleski v. Treusdell, 183 U.S.App.D.C. 182, 190, 562 F.2d 701, 709 (1977); Pinkney v. District of Columbia, 439 F.Supp. 519, 530 (D.D.C. 1977); see Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understanding that secure certain benefits and that support claims of entitlements to those benefits. [Id. at 577, 92 S.Ct. at 2709.]

See also Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). In the District of Columbia, Congress had established for members of the Police Department a statutory right to administrative leave not chargeable to the sick leave account of the officer where absence is due to injury or illness resulting from the performance of duty. 5 U.S.C. § 6324(a) (1976); see note 1 supra. Statutory employment rights have previously been held to fall within the liberty and property concept of the Fifth Amendment. See, e.g., Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 8, 467 F.2d 755, 762 (1972) (a veteran's statutory right under the Veteran's Preference Act, 5 U.S.C. § 7701 (1976), to an open and public hearing prior to his discharge from the Air Force fell sufficiently within the liberty and property concepts of the Fifth Amendment to invoke the protection of the due process clause.) The statutory right due District police officers to administrative sick leave in case of injury or illness incurred in the performance of duty creates for police officers more than a mere "unilateral expectation," and is, we find, a "legitimate claim of entitlement." See Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. As such, the officer's interest in obtaining administrative leave is a property right subject to the protections afforded by the due process clause of the Fifth Amendment.

B. WHAT PROCESS WAS DUE-THE LEGAL BACKGROUND

We are accordingly compelled to consider whether the procedures accorded Officer Jones provide all the process that is constitutionally due before he could be deprived of his protected interest. See Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 901-02, 47 L.Ed.2d 18 (1976). The Supreme Court has consistently held that some manner of hearing is required before a person may be finally deprived of a property interest, see, e.g., id. at 333, 96 S.Ct. at 902; Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975-76, 41 L.Ed.2d 935 (1974), or may be "condemned to suffer grievous loss of any kind." Mathews v. Eldridge, supra 424 U.S. at 333, 96 S.Ct. at 902 (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). The opportunity to be heard, once established, "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). As we have determined that a police officer's right to administrative leave is a property right under the Fifth Amendment due process clause, and as the decision of the Police Department — here, Assistant Chief O'Bryant's memorandum decision of November 3, 1976 — is the final administrative determination of a police officer's right to administrative leave, Metropolitan Police Department General Order 1001.1 Parts II A 7, 8 (revised June 29, 1973), it follows that Officer Jones was entitled to some kind of hearing prior to the final denial of his right to administrative sick leave.

The question remains what process was due. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). See also Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) (quot...