O'Rourke v. D.C. Police & Firefighters' Retirement & Relief Bd., 10–AA–1193.

Citation46 A.3d 378
Decision Date21 June 2012
Docket NumberNo. 10–AA–1193.,10–AA–1193.
CourtCourt of Appeals of Columbia District

46 A.3d 378

Joseph G. O'ROURKE, Petitioner,

No. 10–AA–1193.

District of Columbia Court of Appeals.

Argued June 14, 2011.
Decided June 21, 2012.

[46 A.3d 380]

Robert E. Deso, Washington, for petitioner.

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

Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

GLICKMAN, Associate Judge:

The question in this case is one of statutory interpretation: whether a police officer who has applied or been recommended for a disability retirement pension under the District of Columbia Police and Firefighters' Retirement and Disability Act (the “Retirement and Disability Act”),1 loses his eligibility for such a pension if, for any reason, he is terminated from the police force before the Police and Firefighters' Retirement and Relief Board (the “Retirement and Relief Board” or the “Board”) finally adjudicates his entitlement to the pension. Petitioner O'Rourke was an officer of the Metropolitan Police Department when he was injured while on active duty. As a result, he was recommended for a disability retirement annuity. While the recommendation was still in the administrative pipeline, the Department commenced a separate and unrelated disciplinary proceeding against O'Rourke. This disciplinary proceeding culminated in a decision to terminate his employment. Upon learning of O'Rourke's termination, the Retirement and Relief Board ruled that he was no longer eligible to receive a disability pension because he was no longer a “member” of the Metropolitan Police. In his petition for review of that ruling, O'Rourke contends that his termination did not sever his right to be considered for a disability pension.

We agree with O'Rourke. We hold that his active membership in the Metropolitan Police Department at the time his retirement on disability was recommended to the Board was sufficient to preserve his

[46 A.3d 381]

right, upon a determination that he was otherwise eligible, to a disability annuity. As we interpret the Retirement and Disability Act, O'Rourke's subsequent disciplinary termination did not render him ineligible for that annuity. In reaching that conclusion, we depart from our usual deference to an administrative body's construction of the legislation it administers, because we conclude that the Board's interpretation is incompatible with the broader statutory framework and the primary purpose of the Act. We therefore reverse and remand for further proceedings before the Board.


After serving for twenty-six years with the New York City Police Department and for brief stints thereafter with the U.S. Mint Police and the U.S. Federal Protective Service, Joseph O'Rourke joined the District of Columbia Metropolitan Police Department in 2001. He was then fifty-two years old. O'Rourke was assigned to the Third District, where he served for the next several years as a patrol officer. In July 2007, O'Rourke sustained injuries to his head, hands, and left elbow when he fell onto a concrete walkway while chasing a suspected carjacker. O'Rourke was placed on medical leave; the Director of the Department's Medical Services Division (the “Director”) classified his injuries as having been incurred in the performance of duty. A year later, after O'Rourke had undergone various unsuccessful medical treatments, the Police and Fire Clinic, with the Director's approval, recommended to the Retirement and Relief Board that O'Rourke be retired on disability because his “ongoing pain and weakness of his left hand preclude him from carrying out the full duties of a police officer.” [App. 28] Accordingly, the Board held a hearing in February 2009 to determine O'Rourke's eligibility for a disability retirement pension.

A decision by the Board was not soon forthcoming. Meanwhile, in September 2009, the Police Department served O'Rourke with notice of a proposed disciplinary action, namely termination of his employment. O'Rourke was charged with having secured his appointment to the force in 2001 by falsely stating in his Personal History Booklet that he never had been examined by a physician for “a disease or incorrect functioning of any part of [his] body, when [he] in fact underwent a series of tests to determine [his] qualification for disability” on account of a heart condition after he retired from the New York City police force. [S.A. 1A] In March 2010, following a hearing before a Police Department disciplinary panel, O'Rourke was found guilty of this charge, and the Police Department terminated his employment effective May 7, 2010. 2 The notice of termination informed O'Rourke of his right to receive a deferred annuity under the Police and Firefighters' Retirement Plan.3 It said nothing, however, about his eligibility for the disability retirement annuity for which he had been recommended. That recommendation still was pending before the Retirement and Relief Board.

The Board took note of the disciplinary proceedings. On May 27, 2010, it convened in executive session to consider the impact of O'Rourke's dismissal. Thereafter,

[46 A.3d 382]

in a decision dated August 26, 2010, the Board concluded that because O'Rourke was no longer a “member” of the Metropolitan Police Department, he was no longer eligible for a disability retirement pension.


The Retirement and Disability Act provides that police and firefighters may be eligible for two types of disability retirement annuities: one for disabling injuries or diseases incurred or aggravated in the performance of official duty (“POD”), as set forth in D.C.Code § 5–710, and the other for disabilities due to injury or disease not received or contracted in the performance of duty, as set forth in § 5–709. The main difference between the two annuities is the rate of compensation.4 (An additional difference is that a police officer or firefighter must have completed at least five years of service to retire on non-POD disability, while there is no length-of-service condition for POD-disability retirement.5)

As the Retirement and Relief Board said in its decision, §§ 5–710 and 5–709 provide for the retirement of a disabled “member.” The term “member” is defined, somewhat circularly, to include “any officer or member of the Metropolitan Police force.” 6 The sections say that a “member shall be retired” on disability only with the approval of the Mayor.7 The Board, acting in its capacity as the Mayor's agent,8 construed this statutory requirement to mean that an officer cannot receive a disability annuity unless he is still a “member” of the Police force when the Board has completed its evaluation and is ready to render a decision—regardless of how long that administrative process may take. Therefore, the Board reasoned, an officer becomes ineligible for a disability annuity if he is discharged from the Police force while the Board is still considering his case—even if he would have been entitled to the annuity

[46 A.3d 383]

had the Board acted more promptly. The Board noted that this conclusion was consistent with an unpublished 1997 opinion of this Court.9


Our review of the Board's construction of the Retirement and Disability Act is de novo, for this court is “the final authority on issues of statutory construction” 10 and “the ultimate interpreter of the statutory provisions from which the Board, as a creature of the legislature, derives its powers.” 11 Ordinarily, we have good reason to respect an administrative agency or board's informed interpretation of the statute it administers, and we will defer to it “as long as that interpretation is reasonable and not plainly wrong or inconsistent with [the statute's] legislative purpose.” 12 But those caveats are important. We owe no deference where the administrative body has not considered the policy underlying the statute and has reached a result that is contrary to the purpose of the legislation and not reasonable.13 Because we perceive that to be the basic flaw in the Board's interpretation in this case, we do not defer to it and we must reject it.

“The first step in construing a statute is to read the language of the statute and construe its words according to their ordinary sense and plain meaning.” 14 If the statute is “clear and unambiguous, we must give effect to its plain meaning.” 15 But our focus cannot be too narrow, for “[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself,” but also by considering “the specific context in which that language is used, and the broader context of the statute as a whole.” 16 “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.” 17 In short, we must construe

[46 A.3d 384]

§§ 5–709 and 5–710 “not in isolation, but together with other related provisions,” and derive their meaning “not from the reading of a single sentence or section, but from consideration of [the] entire enactment against the backdrop of its policies and objectives.” 18

The Retirement and Relief Board reads the word “member” in §§ 5–709 and 5–710 restrictively, to include only someone who is a “current member”—as opposed to a “current or former member”—when the administrative decision finally is made whether to retire him on disability. If our analysis not only started, but also ended, with the words of the two statutory sections in question, this would be a possible reading. It is not an obvious or necessary reading, however. “[T]here is no temporal...

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