Nunnally v. Dist. of Columbia Metro. Police Dep't, No. 11–CV–609.

Docket NºNo. 11–CV–609.
Citation80 A.3d 1004
Case DateDecember 12, 2013
CourtCourt of Appeals of Columbia District

80 A.3d 1004

Ronda NUNNALLY, Appellant
v.
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellee.

No. 11–CV–609.

District of Columbia Court of Appeals.

Argued Jan. 17, 2013.
Decided Dec. 12, 2013.


[80 A.3d 1005]


Frederic W. Schwartz, Jr., for appellant.

James C. McKay, Jr., Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.


Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.

EASTERLY, Associate Judge:

Ronda Nunnally,1 a Lieutenant in the Metropolitan Police Department (MPD), made a request pursuant to D.C.Code § 1–612.03(j) (2012 Repl.) that she not be charged with sick leave for work she missed on account of a psychological injury. D.C.Code § 1–612.03(j) provides that “[s]ick leave may not be charged to the account of a uniformed member of the Metropolitan Police Department ... for an absence due to injury or illness resulting from the performance of duty.” Lt. Nunnally alleged that she missed work due to psychological trauma incurred as a result of retaliation by her colleagues after she prevailed in a sexual harassment claim against a supervisor. Lt. Nunnally's request for non-chargeable sick leave was denied by the MPD and that decision was affirmed by the Superior Court because her alleged psychological injuries were not deemed to have been incurred in the “performance of duty” as required by D.C.Code § 1–612.03(j). Examining the statute's plain language, we reach the opposite conclusion. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

In 2004, Lt. Nunnally filed a sexual harassment claim against her supervisor

[80 A.3d 1006]

with the MPD Office of Diversity and EEO Compliance. After an investigation, that office issued a report finding that Lt. Nunnally had been the victim of sexual harassment; MPD subsequently adopted the report and fired her harasser. Lt. Nunnally contends that, over the next three years, her coworkers retaliated against her, causing her psychological trauma.

Lt. Nunnally missed a number of months of work allegedly as a result of this trauma.2 Asserting that she had been injured in the performance of duty under D.C.Code § 1–612.03(j), she requested that her sick leave account not be charged for these absences. After this request was denied by the Director of MPD's Medical Services Section, Lt. Nunnally sought reconsideration of her claim from the Assistant Chief of Police, Office of Human Services. Acting as the Assistant Chief's designee, a Medical Claims Hearing Officer (MCHO) held an evidentiary hearing at which Lt. Nunnally was represented by counsel. Lt. Nunnally testified at the hearing and presented documentary evidence. The MCHO then issued a report recommending that the MPD deny her claim. The primary rationale for the MCHO's decision was that any psychological injury incurred had not been incurred in the performance of duty as required by statute; 3 the MCHO also determined that any psychological injury would not qualify as a compensable injury under MPD's stress protocol. In accordance with the MCHO's report, the Assistant Chief denied Lt. Nunnally's request for non-chargeable leave under D.C.Code § 1–612.03(j).

Lt. Nunnally was informed both that she had a right to judicial review of the MPD's denial of her claim, and that, if she wished to exercise that right, she should file a Petition for Review with the District of Columbia Superior Court. Lt. Nunnally sought review in Superior Court, and the Superior Court affirmed the MPD's denial of her non-chargeable sick leave claim. Specifically, it affirmed the agency's determination that injuries stemming from sexual harassment are categorically ineligible for non-chargeable leave as they do not occur in the performance of duty as required by D.C.Code § 1–612.03(j). This appeal followed.

II. Jurisdictional Analysis

We begin by examining our jurisdiction to entertain Lt. Nunnally's appeal from the Superior Court's order upholding the MPD's denial of her claim for non-chargeable leave under D.C.Code § 1–612.03(j).4 Based on current law, it is not obvious that a challenge to a denial by MPD of non-chargeable leave under D.C.Code § 1–612.03(j) should go first to the Superior Court and, from there, to this court on appeal. For the reasons set forth below, we now hold this is the proper procedure.

In upholding MPD's denial of Lt. Nunnally's claim for non-chargeable leave, the

[80 A.3d 1007]

Superior Court stated that it had “jurisdiction to review a final decision of an agency of the District of Columbia” and cited Super. Ct. Agency Rev. R. 1. But a court rule cannot confer jurisdiction on its own, and in any event, Rule 1 does not purport to confer on the Superior Court jurisdiction over all agency cases or any subset thereof. It merely addresses the procedure for review of agency decisions that arise under the Comprehensive Merit and Personnel Act (CMPA).5

We turn then to the text of the CMPA—the statute under which Lt. Nunnally made her request for non-chargeable sick leave and the statute to which Rule 1 alludes 6—to determine if it specifies the jurisdictional path for review of agency decisions of this sort. See District of Columbia Housing Auth. v. District of Columbia Office of Human Rights, 881 A.2d 600, 608 (D.C.2005); see also Super. Ct. Agency Rev. R. 1(a). The CMPA routes certain types of agency decisions to the Superior Court for review, but denials of requests for non-chargeable leave are not among them. In particular, the category of cases eligible for review first by either the Office of Employee Appeals (OEA) or the Public Employee Relations Board (PERB) and then by the Superior Court does not include Lt. Nunnally's claim for non-chargeable leave under D.C.Code § 1–612.03(j). SeeD.C.Code § 1–606.03(d) (2012 Repl.) (OEA); D.C.Code § 1–617.13(c) (2012 Repl.) (PERB); see alsoD.C.Code § 1–606.03(a) (2012 Repl.) (detailing review by the OEA); D.C.Code § 1–605.02 (2012 Repl.) (detailing review by the PERB).

As a factual matter, Lt. Nunnally's non-chargeable leave claim has never been reviewed by either the OEA or the PERB and, as a legal matter, we see no reason that it should have been. We held in District of Columbia v. Daniels, 523 A.2d 569 (D.C.1987), that “a decision of the MPD denying non-chargeable sick leave is a ‘grievance.’ ” Id. at 570 (footnote omitted). We further held that grievances should be routed to the OEA. Id. But eleven years after Daniels, the Council for the District of Columbia redefined and limited the OEA's jurisdiction so as to exclude non-chargeable sick leave claims. See Omnibus Personnel Reform Amendment Act of 1998, D.C. Law 12–124 (Act “limit[s] employee appeals to the Office of Employee Appeals to disciplinary actions and [reductions in force], or certain disciplinary actions that result in removals, reductions in grades, and suspensions of 10 days or more”); see alsoD.C.Code § 1–616.53(a) (2012 Repl.). Thus, none of the CMPA provisions that address administrative appeals are helpful in determining where Lt. Nunnally should have sought review of MPD's denial of her claim for non-chargeable sick leave.

The same statute that removed grievances from the OEA's jurisdiction delegated to the Mayor the responsibility to promulgate rules and regulations setting forth the grievance procedure. SeeD.C.Code § 1–616.53(a). But an examination of the regulations that were subsequently promulgated also leads to a dead end. The regulations provide that grievances should be sent to a grievance official,

[80 A.3d 1008]

6–B DCMR § 1636.2 (2000), and that “[t]he decision of the grievance official to deny the grievance, in whole or in part, shall be the final administrative decision, and shall not be subject to further administrative appeal,” id. at § 1636.8 (2000). The regulations do not specify a right to petition for review of that final administrative decision to the Superior Court (or anywhere else).

This does not end our analysis, however, because the Superior Court is a court of general jurisdiction, seeD.C.Code § 11–921(a) (2012 Repl.), and there is a “strong presumption of judicial review of agency action,” District of Columbia v. Sierra Club, 670 A.2d 354, 358–59 (D.C.1996) (quoting People's Counsel v. Public Serv. Comm'n of the District of Columbia, 474 A.2d 1274, 1278 n. 2 (D.C.1984)) (emphasizing the importance of judicial review as a check on agency discretion); see also Martin v. District of Columbia Courts, 753 A.2d 987, 991 (D.C.2000) (the Superior Court's general jurisdiction “extends to claims ... for equitable relief from allegedly unlawful actions by public officials ... [including] challenges by public employees of official decisions affecting their tenure”) (internal citations omitted).7

One significant exception to the Superior Court's general jurisdiction is this court's jurisdiction under the District of Columbia Administrative Procedure Act (DCAPA) over those appeals from administrative proceedings that are deemed “contested cases.” D.C.Code § 2–510(a) (2012 Repl.); Capitol Hill Restoration Soc'y v. Moore, 410 A.2d 184, 187–88 (D.C.1979). A contested case is statutorily defined as “a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this subchapter), or by constitutional right, to be determined after a hearing before the Mayor or before an agency.” D.C.Code § 2–502(8) (2012 Repl.). There is an exception to the exception, however: The statutory definition of a contested case excludes certain determinations, like the “selection or tenure of an officer or employee of the District,” with the result that these selection or tenure challenges cannot be appealed directly to this court under the DCAPA. Id. Rather, review in such cases is properly conducted...

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29 practice notes
  • In re Ta.L., Nos. 11–FS–1217
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 8, 2016
    ...v. Harris County , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ; Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1012 & n.17 (D.C. 2013). Indeed, the Permanency Planning Policy explicitly recognizes that "[a]doption by kin may be established as the primary......
  • Eldridge v. D.C. Dep't of Human Servs., No. 18-AA-664
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 8, 2021
    ...v. Harris Cty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ; Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1012 & n.17 (D.C. 2013) ; Wong v. Doar , 571 F.3d 247, 258–60 (2d Cir. 2009) (according so-called Skidmore deference, rather than Chevron deferen......
  • Barber v. D.C. Comm'n on Selection & Tenure of Admin. Law Judges, s. 19-CV-266
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 23, 2021
    ...Loc. #6 v. District of Columbia Pub. Schs. , 960 A.2d 1123, 1132 (D.C. 2008).43 Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1008 (D.C. 2013).44 Coleman v. District of Columbia , 80 A.3d 1028, 1031 (D.C. 2013). "[T]he requirement of ‘clear and convincing evidence’ to......
  • Kelly v. Dist. of Columbia Dep't of Emp't Servs., No. 18-AA-13
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 29, 2019
    ...fees and to direct the CRB to remand so that those fees could be awarded. See Nunnally v. District of Columbia Metro. Police Dep't. , 80 A.3d 1004, 1010-11 (D.C. 2013) (acknowledging that this court is the final authority on issues of statutory construction and owes no deference to an agenc......
  • Request a trial to view additional results
29 cases
  • In re Ta.L., Nos. 11–FS–1217
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 8, 2016
    ...v. Harris County , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ; Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1012 & n.17 (D.C. 2013). Indeed, the Permanency Planning Policy explicitly recognizes that "[a]doption by kin may be established as the primary......
  • Eldridge v. D.C. Dep't of Human Servs., No. 18-AA-664
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 8, 2021
    ...v. Harris Cty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ; Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1012 & n.17 (D.C. 2013) ; Wong v. Doar , 571 F.3d 247, 258–60 (2d Cir. 2009) (according so-called Skidmore deference, rather than Chevron deferen......
  • Barber v. D.C. Comm'n on Selection & Tenure of Admin. Law Judges, s. 19-CV-266
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 23, 2021
    ...Loc. #6 v. District of Columbia Pub. Schs. , 960 A.2d 1123, 1132 (D.C. 2008).43 Nunnally v. District of Columbia Metro. Police Dep't , 80 A.3d 1004, 1008 (D.C. 2013).44 Coleman v. District of Columbia , 80 A.3d 1028, 1031 (D.C. 2013). "[T]he requirement of ‘clear and convincing evidence’ to......
  • Kelly v. Dist. of Columbia Dep't of Emp't Servs., No. 18-AA-13
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 29, 2019
    ...fees and to direct the CRB to remand so that those fees could be awarded. See Nunnally v. District of Columbia Metro. Police Dep't. , 80 A.3d 1004, 1010-11 (D.C. 2013) (acknowledging that this court is the final authority on issues of statutory construction and owes no deference to an agenc......
  • Request a trial to view additional results

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