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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13

- CV

- 790
K ARLEANE J OHNSON , A PPELLANT ,

v. D ISTRICT OF C OLUMBIA D EPARTMENT OF H EALTH , et al ., A PPELLEES
.

Appeal from the Superior Court of the District of Columbia ( C AP

- 278

- 12 ) (Hon. Judith N. Macaluso, Trial Judge) (Argued April 20, 2017 D ecided July 6, 2017)
David A. Branch for appellant. Holly M. Johnson , Assistant Attorney General, with whom Karl A. Racine , A ttorney General for the District of Columbia, Todd S. Kim , Solicitor General, Lor e n L. Ali K

ha n , Deputy Solicitor General, and Donna M. Murasky , Senior Assistant Attorney General, were on the brief for appellee District of Columbia Department of Health

. Before M C L EESE , Associate Judge , and W ASHINGTON and F ARRELL , Senior Judge s . F ARRELL , Senior Judge : Karle a ne Johnson appeals from the Superior Court‟s affirmance of a decision by the Office of Employee Appeals (OEA) upholding her sepa ration from the District of Columbia Department of Health2

(DOH) as part of a July 2009 reduction in force (RIF)

. Appellant challenges both
the OEA‟s determination t hat the RIF was conducted pursuant to the Abolishment Act, D.C. Code § 1

- 624.08 (2012 Repl.) , and t he legality of the RIF under the general RIF statute, D.C. Code §§ 1

- 624.01 to .04 . S pecifically , appellant argues that the RIF was not based on a n actual budgetary crisis and that DOH fail ed to meet procedural requirements of the stat ute. We affirm

.

I.

Appellant worked for DOH as a clerical assistant in the Addiction
Prevention and Recovery Administration (A PR A). On July 28, 2009, the director of the District of Columbia Department of Human Resources (DCHR) proposed a “realignment” of DOH . O n July 31 t he director authorized administrative orders dated July 27 implementing RIFs for various parts of DOH because of “ Lack of
F unds.” DCHR also c reated a retention register on July 31 that included appellant‟s position among those to be abolished and a ppellant received notice o n the same day o f the impending RIF , listing her effective termination date as September 4, 2 009

. On August 13, the DCHR director i ssued an amended
administrative order for the RIF i n which, i nstead of selecting DOH as a whole as3

the subject of the RIF, the director s elected particular areas within the agency, thereby creating “ lesser competitive areas ,” see 6

- B DCMR § 2409.2 (2008) , including the APRA

. The RIF applied to all nine clerical assistant positions in the
APRA

. The amended order , like the July 31 orders , stated that the RIF was based

on a “Lack of F unds.”

Following he r termination, appellant appealed t o the OEA and challenged numerous aspects of her termination , namely that : 1) DOH had not adequately
shown that the RIF was due to a lack of funds ; 2) appellant‟s separation was invalid bec a u s e appellant had been notified of her termi nation before the RIF approval ; 3) DOH had not consider ed job sharing or other alternatives to the RIF ; 4) DOH had not properly provide d appellant with one round of lateral competition ; 5) DOH was not authorized to define a lesser competitive area ; and 6) DOH had erroneously asserted that the RIF was conducted under the Abolishment Act. The
OEA , although providing appellant with limited relief because DOH had not given
her proper notice of her termination , 1 conc luded that the alleged d efects in the RIF

1 Appellant continues to argue that DOH “failed to give a thirty

- day notice,” but does not explain why the back pay and benefits the OEA awarded her failed to remedy the defect in notice. The remedy appellant sought before the OEA

— (continued ...)4

pro cedure s , 2 chiefly the failure to provide a round of lateral competition , entitled appellant to no relief because all positions within appellant‟s competitive area at
her competitive level had been abolished

. Further, the OEA rule d that it did not
have authority to “decide whether there was in fact a bona

- fide budget crisis” giving rise to the RIF. Appellant unsuccessfully petit ioned the Superior Court for
review of the OEA‟s decision , then filed this appeal.

II.

This court “review[s] the OEA‟s dec ision, not the decision of the Superior Court, and we must affirm the OEA‟s decision so long as it is supported by substantial evidence in the record and otherwise in accordance with law.” Stevens v. District of Columbia Dep’t of Health , 150 A.3d 307, 312 (D.C. 2016) (internal quotation marks omitted).

________________________ (...continued) reinstatement to an abolished position

— was wholly disproportionate to any harm the defective notice might have caused her.

2 The OEA understood the RIF to have been conducted under the Abolishment Act. See discussion in text, infra

.5

The District in light of the decision in Stevens , supra , r ightly concedes error in the OEA‟s determination that the RIF was governed by t he Abolishment Act , not t he general RIF statute. See Stevens , 150 A.3d at 317

- 18

. A ppellant argues , accordingly, that at the least we should remand this case to the OEA to determine
whether DOH complied with the general RIF s t atute

. A remand would be warranted, however, only if this court found facial merit in appella nt‟s c hallenge to the OEA‟s refusal to review DOH‟s determination t hat the RIF was justified by a
lack of funds or appellant‟s claim that DOH did not follow correct procedures in conducting the RIF

. We find no such merit.

A.

A ppellant first argues that DOH “ failed in its burden to show that there was a shortage of fu nds justifying the RIF ” under the general RIF statute

. T he OEA , however, correctly recognized its lack of authority to review the agency‟s contrary
d etermination. Although e ach personn el authority must abide by the general RIF procedures when a RIF is required by “[l]ack of work,” “[s]hortage of funds,” or “[r]eorganization or realignment , ” 6

- B DCMR § 2401.1 (a )

- (c) (2008) , “the OEA lacks „authority to second

- guess the mayor‟s decision about the shortage of6

fund s , ‟ ” whe ther that decision is made under the Abolishment Act or the general
RIF statute. Stevens , 150 A.3d at 325 n.30 (quoting Anjuwan v. District of Columbia Dep’t of Pub

. Works , 729 A.2d 883, 885 (D.C. 1998)). 3 Further, th e RIF was ordered not only for “Lack of Funds” but as part of an agency

- wide

“ realignment ,” another lawful justification for a RIF. See 6

- B DCMR § 2401 .1 ( c). Given the personnel authority‟s right to “determine . . . [t]he number, types, and
g rades of po sitions of employees assigned to an agency‟s organizational unit,”
D.C. Code § 1

- 6 17.0 8 (a) ( 5)(B) , appellant offer s no valid reason why t he OE A
erred in not second

- guess ing DO H ‟s realignment decision

. 4

B.

Appellant further contends that DCHR could not establish a lesser

3 Moreover, the District asserts in its supplemental brief that DOH was indeed facing a serious shortfall of funds when it conducted the RIF in qu estion.

4 Appellant ‟s reliance on Levitt v. District of Columbia Office of Emp

. Appeals , 869 A.2d 364 (D.C. 2005) is misplaced. There, the appellant complained of “unusual personnel actions” that culminated in the agency “abolishing the very position it had specifically created for him.” Id. at 366. The RIF in this case, by contrast, was aimed at all of the positions within appellant‟s competitive level and did not target her specifically. See Stevens , 150 A.3d at 325 (distinguishing Levitt on similar grounds).7

competitive area without first receiving a request from DOH for it to do so

. Appellant th us argues that she was entitled to one round of lateral competition at the agency

- wide level. We reject the premise of this argument.

Under the g eneral RIF statute , employees subject to a RIF shall be given “[o]ne round of lateral competition limited to positions within the employee‟s competitive level.” D.C. Code § 1

- 624.02 (a)(2). Competition within an employee‟s competitive level is restricted to the designated competitive area. See
6

- B DCMR § 2410.4 (2012)

. Although in g eneral each agency is designated as “a single competitive area , ” 6

- B DCMR § 2409.1 , “ l esser competitive areas ” may be established in two ways: 1) “by the personnel authority, ” and 2) pursuant to a written request from the agency head to the personnel authority. 6

- B
DCMR § 2409.2 to .3. The role of personnel authority here had been d elegated to the director of DCHR in 2008, D.C. Code § 1

- 604.06 (b), and the director , exercising her initiative under 6

- B DCMR § 2409.2, established the APRA as a lesser competitive area.

A p pellant ‟s argument t hat a lesser competitive area can only be established in response to a request from the agency head thus r uns counter to the plain8

language of the regulation. But e ven if the regulatory scheme were less clear on th is point, appellant does not persuade us that the outcome of a remand f or the
OE A to opine on the issue

— and of any resulting appeal to this court on the point

— wou ld be more than a foregone conclu sion

. See Barnette v. District of Columbia Dep’t of Gen

. Servs ., OEA Matter No. 2401

- 0332

- 10, slip op. at 9 n.24 (June 9, 2 0 15) (in rejecting the “claim[] that Agency was required to submit a written request to establish competitive areas,” the OE A explains that “ [t]he use of the word „may‟ [in 6

- B DCMR § 2409.3] indicates that such a request [by the agency head ] is not a requirement to establish a competitive area”) ; 5 see also
Nun n ally v. District of Columbia Metro. Police Dep ’ t , 80 A.3d 10 04, 1010 (D.C. 2013) (“ W here we determine that a statutory term is ambiguous, . . . we must defer

to a n agency‟s interpretation of that ambiguity that is reasonable and not plainly wrong or inconsistent with the legislat ure ‟s intent

. ”) (citing Chevron, U.S.A. , Inc. v. Natural Res. Def. Council , 467 U.S. 837, 842

- 43 (1984) )

. Consequently, appellant was enti tled to a single r ound of lateral competition only within her designated lesser competitive area, and because all positions in that area at her competitive level had been abolished, the lateral competition requirement posed no

5 The Barnette case is pending before this court on appeal and cross

- appeal from the Superior Court‟s decision on a petition for review.9

obstacle to her separation

.

Our conclusion as to the competitive area also leads us to reject appellant‟s argument that a remand is necessary for the OEA to decide whether DOH failed to
establish an appropriate retention register

. The regulat ions governing
establishment of a retenti on register, see 6

- B DCMR § 2 4 12 (2012) , presuppose th at positions for which employees may compete have been retained at the relev a nt competitive level and area

. See, e.g. , 6

- B DCM R § 241 2. 7 (a) (“The retention register shall include

. . . [t]he name of each competing employee in the competitive level [.] ” (emphasis added) )

. E limination of all positions in appellant‟s competitive area at her competitive level thus made the establishment of a retention register moot.

Finally, appellant arg ues that DOH failed to consider the alternative measures of job sharing and reduced hours before imposing the RIF. The trial court understandably did not consider this point , because appellant failed to argue it at all in h er petition to the Superior Court. 6 We consider it forfeited, cf

. Miller v.

6 A ppellant, without further discussion, merely cited the point to the trial (continued ...)10

A virom , 384 F.2d 319, 321

- 22 ( D.C. Cir. 1967), and our unwillingness to entertain
it nonetheless is increased by its debatable merit: I n concluding that budget ary and
related exige ncies required a RIF of all employees across the competitive area at appellant‟s level, DOH arguably may be assumed to have found the lesser

measures such as job sharing and reduced hours inadequate to address the need ; and the OEA‟s authority to look behi nd that agency judgment would be open to significant question.

For the foregoing reasons, the decision of the Superior Court is

Affirmed

.

________________________ (...continued) court as one of the issues s he had raised before the OEA.