District of Columbia

Court of Appeals

No. 14-CV-315 

VILEAN STEVENS & IKE PROPHET,

Appellants,

 v. CAP-3345-10

DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH,

Appellees.

On Appeal from the Superior Court of the District of Columbia

Civil Division

BEFORE: FISHER and THOMPSON, Associate Judges; and PRYOR, Senior Judge.

J U D G M E N T 

This case came to be heard on the transcript of record and the briefs filed, 

and was argued by counsel. On consideration whereof, and as set forth in the opinion 

filed this date, it is now hereby 

ORDERED and ADJUDGED that the judgment on appeal is affirmed.

For the Court:

 

Dated: December 15, 2016.

Opinion by Associate Judge Phyllis D. Thompson.

DEC 15 2016
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CV-315

VILEAN STEVENS & IKE PROPHET, APPELLANTS,

V.

DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH, APPELLEE. 

Appeal from the Superior Court

of the District of Columbia

(CAP-3345-10)

(Hon. Joan Zeldon, Trial Judge)

(Argued October 4, 2016 Decided December 15, 2016)

David A. Branch for appellants.

Holly M. Johnson, Assistant Attorney General, with whom Karl A. Racine, 

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and

Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.

Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

THOMPSON, Associate Judge: Appellants Vilean Stevens and Ike Prophet 

appeal from a judgment of the Superior Court that affirmed decisions by the 

District of Columbia Office of Employee Appeals (“OEA”) upholding the 

abolishment, through a reduction-in-force (“RIF”), of positions that appellants held 

at appellee District of Columbia Department of Health (“DOH” or the “Agency”). 

12/15/16

/
2

For the reasons that follow, we agree with the OEA (and with the Superior Court) 

that the RIF was governed by the Abolishment Act, D.C. Code § 1-624.08 (2006 

Repl.) (sometimes hereafter referred to as the “Act”), rather than by the so-called 

general RIF statute, D.C. Code §§ 1-624.02 – .07 (2006 Repl.). We also conclude 

that substantial evidence supports the OEA’s determination that DOH satisfied the 

procedural requirements of the Abolishment Act in implementing the RIF. We 

therefore affirm the judgment.

I. Background

Until the RIF that is the subject of the parties’ dispute, appellants worked in 

the Commodity Supplemental Food Program (“CSFP”) of the DOH Community 

Health Administration, Nutrition and Physical Fitness Bureau.

1

 By letter dated 

December 29, 2008, the Director of DOH sent each of the appellants a notice of 

separation by RIF. The letter stated that it “serve[d] as official notice of at least

thirty (30) calendar days” that appellants would be separated from service effective 

January 30, 2009, “in accordance with Chapter 24 of the District’s Personnel 

 

1

 CSFP provides federal commodity food, nutrition education, and related 

services to pregnant and post-partum women, children under the age of six, and 

seniors over the age of sixty. 
3

Regulations[.]” The letter further informed appellants that, inter alia, they had a 

right to appeal to the OEA. 

Appellants appealed to the OEA, contending that DOH (1) undertook the 

RIF pursuant to the general RIF statute, D.C. Code § 1-624.02, rather than 

pursuant to the Abolishment Act, D.C. Code § 1-624.08, and (2) did so without 

complying with the regulatory requirements applicable to RIFs conducted under 

the general RIF statute. Appellants contended in addition that DOH’s stated reason 

for the RIF — “[l]ack of [f]unds” — was contrived and a pretext for outsourcing. 

Appellants further contended that they were not provided one round of lateral 

competition. 

In substantially identical initial decisions on appellants’ appeals, the OEA 

concluded that its decision was “guided solely” by the Abolishment Act, which 

limited the issues appellants could bring to whether they were afforded the thirty 

days’ prior written notice of separation required by the Act and whether each was 

afforded one round of lateral competition within his or her competitive level. The 

OEA found that both appellants were properly afforded thirty days’ written notice, 

that “the entire unit in which [appellants’] position[s were] located was abolished,” 

and that DOH also “was in compliance with the lateral competition requirements 
4

of the law.” In addition, the OEA ruled that it lacked jurisdiction to determine 

whether the RIF was “bona fide or violated any [other] law.”

Appellants sought review by the Superior Court, which consolidated their 

cases and affirmed the OEA’s initial decisions in part and remanded in part. The 

court affirmed, as supported by substantial evidence, the OEA’s determination that 

no lateral competition was required because appellants’ “entire unit was RIFed.” 

The court remanded the matter to the OEA, however, to explain “why the RIF fell 

within the Abolishment Act and not the general RIF provision.” The court issued 

an amended order reasoning that the OEA “does have jurisdiction to consider the 

question of whether the RIF at issue was a sham” and expanding the scope of the 

remand for the OEA to consider “whether [appellants’] sham RIF arguments are 

frivolous or non-frivolous.” 

In an “Addendum Decision on Remand,” the OEA ruled that it was 

“primarily guided” by the Abolishment Act for “RIFs authorized due to budgetary 

restrictions.” It asserted that the Act “was enacted specifically for the purpose of 

addressing budgetary issues resulting in a RIF” and observed that the Act “is a 

more streamlined statute for use during times of fiscal emergency.” Citing this 

court’s decision in Washington Teachers’ Union, Local # 6 v. District of Columbia
5

Pub. Sch. (“WTU”), 960 A.2d 1123 (D.C. 2008), the OEA noted this court’s 

statement that the RIF involved in that case, which was implemented “to ensure 

balanced budgets,” “triggered the Abolishment Act provisions.” Id. at 1132. The 

OEA also reasoned that the “notwithstanding” language of the Act’s third

paragraph, D.C. Code § 1-624.08 (c) (“Notwithstanding any rights or procedures 

established by any other provision of this subchapter, any District government 

employee, regardless of date of hire, who encumbers a position identified for 

abolishment shall be separated without competition or assignment rights, except as 

provided in this section.”) “suggests that [the Act] is the more applicable statutory 

provision in order to conduct RIFs resulting from budgetary constraints.” Further,

the OEA determined that appellants’ “arguments relative to the instant RIF being a 

sham are FRIVOLOUS.” It found that appellants had “failed to proffer any 

credible argument(s) or evidence that would indicate that the RIF was improperly 

conducted or implemented” and that there were no material facts in dispute 

warranting an evidentiary hearing. The Superior Court affirmed the OEA’s 

Addendum Decision on Remand.

In the instant appeal, appellants contend that the RIF was not conducted due 

to a lack of funds or budgetary constraints and that the OEA therefore erred in 

concluding that the RIF was governed by the Abolishment Act rather than by the 
6

procedural requirements of the general RIF statute and its implementing 

regulations. Appellants argue in the alternative that even if the cause of the RIF 

was a “budgetary concern,” the OEA erred in assuming either (1) that the 

Abolishment Act replaced the general RIF statute, such that the Act governs all 

government agency RIFs, or (2) that any RIF undertaken because of a budgetary 

concern is an Abolishment Act RIF. Appellants contend that the OEA was 

required to consider the “intent and procedures used” in the RIF, factors that they 

assert show that the DOH RIF “was clearly intended to be conducted under the 

[general] RIF statute.” Appellants also argue that the case should be remanded 

because the OEA failed to hold an evidentiary hearing and make factual findings 

resolving what they contend are material issues of disputed fact. Appellant 

Stevens argues in addition that the OEA erred in holding that there was no 

violation of the one-round-of-lateral-competition requirement. We address each of 

these claims in turn.

II. Applicable Law

A. This court’s standard of review in OEA cases

This court “review[s] agency decisions on appeal from the Superior Court 

the same way we review administrative appeals that come to us directly.” Dupree 
7

v. District of Columbia Dep’t of Corr., 132 A.3d 150, 154 (D.C. 2016). “Thus, in 

the final analysis, confining ourselves strictly to the administrative record, we 

review the OEA’s decision, 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.” Id. (internal quotation marks 

omitted). “Questions of law, including questions regarding the interpretation of a 

statute or regulation, are reviewed de novo.” Id.

B. The general RIF statute and the Abolishment Act

Both the general RIF statute, D.C. Code §§ 1-624.01 through 624.07, and 

the Abolishment Act, D.C. Code § 1-624.08, are found in Subchapter XXIV of the 

Comprehensive Merit Personnel Act (“CMPA”), entitled “Reductions-in-Force.” 

The general RIF statute “embod[ies] broader RIF procedures than those found in 

the Abolishment Act[.]” WTU, 960 A.2d at 1134. 

The general RIF statute authorizes the Mayor (and the District of Columbia 

Board of Education) to “issue rules and regulations establishing a procedure for the 

orderly . . . termination of employees[,]” D.C. Code § 1-624.01 (2006 Repl.), and 

sets out a list of RIF procedures. Id. § 1-624.02. The Mayor has adopted 
8

implementing regulations that are set out in Chapter 24 of the District of Columbia 

Personnel Manual, 6B DCMR § 2400-99.

2

 6B DCMR § 2401.1 provides that each 

personnel authority is to follow these regulations “when releasing a competing 

employee from his or her competitive level when the release is required by . . . (a) 

[l]ack of work; (b) [s]hortage of funds; (c) [r]eorganization or realignment; or (d) 

[t]he exercise of restoration rights [in connection with homeless veterans 

reintegration programs].” 

The Abolishment Act provides as follows:

 

2

 As summarized by the OEA in its Addendum Decision on Remand, 

appellants contend that DOH failed to satisfy the procedural requirements of D.C. 

Code § 1-624.02 and its implementing procedural regulations “by not considering 

job sharing and reduced work hours and agency reemployment (6[B] DCMR

2403.2 and 2401.1); by not providing justification for a lesser competitive area 

than the Agency (6[B] DCMR 2409.3 (c)); by not providing a broader competitive 

level (6[B] DCMR 2410.4); and, by not providing a Retention Register after

approval for the RIF (6[B] DCMR 2412).” 

We note that the regulations implementing the general RIF statute also 

define certain terms used in the Abolishment Act. As reflected in D.C. Code 

§ 1-624.08 (d), in the Abolishment Act, “Congress provided as a point of reference 

Chapter 24 of the Personnel Manual, . . . because it not only defines [the term] ‘one 

round of competition,’ . . . but also explains competitive levels and how they are 

established . . . , as well as provides information regarding an agency 

Reemployment Priority Program . . . and a Displaced Employee Program[.]” 

WTU, 960 A.2d at 1134 (noting, too, that “[r]ulemaking for an Abolishment Act 

RIF is not essential because . . . all of the material RIF procedures are 

encompassed within § 1-624.08”).
9

§ 1-624.08. Abolishment of positions for fiscal year 

2000 and subsequent fiscal years.

(a) Notwithstanding any other provision of law, 

regulation, or collective bargaining agreement either in 

effect or to be negotiated while this legislation is in effect 

for the fiscal year ending September 30, 2000, and each 

subsequent fiscal year, each agency head is authorized, 

within the agency head’s discretion, to identify positions 

for abolishment.

(b) Prior to February 1 of each fiscal year, each personnel 

authority (other than a personnel authority of an agency 

which is subject to a management reform plan under 

subtitle B of title XI of the Balanced Budget Act of 1997) 

shall make a final determination that a position within the 

personnel authority is to be abolished.

(c) Notwithstanding any rights or procedures established 

by any other provision of this subchapter, any District 

government employee, regardless of date of hire, who 

encumbers a position identified for abolishment shall be 

separated without competition or assignment rights, 

except as provided in this section.

(d) An employee affected by the abolishment of a 

position pursuant to this section who, but for this section 

would be entitled to compete for retention, shall be 

entitled to one round of lateral competition pursuant to 

Chapter 24 of the District of Columbia Personnel 

Manual, which shall be limited to positions in the 

employee’s competitive level.

(e) Each employee selected for separation pursuant to 

this section shall be given written notice of at least 30 

days before the effective date of his or her separation.

(f) Neither the establishment of a competitive area 

smaller than an agency, nor the determination that a 

specific position is to be abolished, nor separation 
10

pursuant to this section shall be subject to review except 

that:

 (1) An employee may file a complaint contesting a 

determination or a separation pursuant to subchapter XV 

of this chapter or § 2-1403.03; and

 (2) An employee may file with the Office of 

Employee Appeals an appeal contesting that the 

separation procedures of subsections (d) and (e) were not 

properly applied.

(g) An employee separated pursuant to this section shall 

be entitled to severance pay in accordance with 

subchapter XI of this chapter, except that the following 

shall be included in computing creditable service for 

severance pay for employees separated pursuant to this 

section:

 (1) Four years for an employee who qualified for 

veterans preference under this chapter, and

 (2) Three years for an employee who qualified for 

residency preference under this chapter.

(h) Separation pursuant to this section shall not affect an 

employee’s rights under either the Agency 

Reemployment Priority Program or the Displaced 

Employee Program established pursuant to Chapter 24 of 

the District Personnel Manual.

(i) With respect to agencies which are not subject to a 

management reform plan under subtitle B of title XI of 

the Balanced Budget Act of 1997, the Mayor shall submit 

to the Council a listing of all positions to be abolished by 

agency and responsibility center by March 1 of each 

fiscal year or upon the delivery of termination notices to 

individual employees.
11

(j) Notwithstanding the provisions of § 1-617.08 or 

§ 1-624.02(d), the provisions of this chapter shall not be 

deemed negotiable.

(k) A personnel authority shall cause a 30-day 

termination notice to be served, no later than September 

1 of each fiscal year, on any incumbent employee 

remaining in any position identified to be abolished 

pursuant to subsection (b) of this section.

(l) In the case of an agency which is subject to a 

management reform plan under subtitle B of title XI of 

the Balanced Budget Act of 1997, the authority provided 

by this section shall be exercised to carry out the 

agency’s management reform plan, and this section shall 

otherwise be implemented solely in a manner consistent 

with such plan.

D.C. Code § 1-624.08.

While the permanent legislation known as the Abolishment Act had its 

origin in congressional legislation, the language of the Act first appeared in 

emergency and temporary legislation enacted by the Council of the District of 

Columbia (“the Council”) in 1995 and 1996. 1995 was a year when “financial and 

management problems of the District government” had “adversely affected the 

long-term economic health of the District,” University of the District of Columbia 

Faculty Ass’n v. District of Columbia Fin. Responsibility & Mgmt. Assistance 

Auth., 163 F.3d 616, 618 (D.C. Cir. 1998) (internal quotation marks omitted). 

Beginning in August of that year, the Council passed several pieces of legislation 

that provided that “(a) Notwithstanding any other provision of law, regulation, or 
12

collective bargaining agreement either in effect or to be negotiated while this 

legislation is in effect for the fiscal year ending September 30, 1996, each 

agency head is authorized, within the agency head’s discretion, to identify 

positions for abolishment”; and that “(b) Prior to February 1, 1996, each personnel 

authority shall make a final determination that a position within the personnel 

authority is to be abolished.”

3

 Through the latter provision, the Council each time 

“set a deadline of February 1, 1996, for personnel authorities to make final 

decisions on the identification of positions to be abolished through a reduction in 

force[.]”4 

In April 1996, Congress enacted the District of Columbia Appropriations 

Act of 1996 (“the 1996 Budget Act”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), 

“to deal with the District’s financial crisis[.]” Washington Teachers’ Union Local 

# 6 v. Bd. of Educ. (“BOE”), 109 F.3d 774, 776 (D.C. Cir. 1997). The 1996 

Budget Act temporarily amended District law governing reductions-in-force by 

adopting provisions identical to those of the Council-enacted reduction-in-force 

 

3

 E.g., 42 D.C. Reg. 4219, 4238 (Aug. 11, 1995); 42 D.C. Reg. 4706, 4711 

(Aug. 25, 1995); 42 D.C. Reg. 6181, 6186 (Nov. 10, 1995); 42 D.C. Reg. 6569, 

6574 (Nov. 10, 1995).

4

 See also 42 D.C. Reg. at 4706; 42 D.C. Reg. at 6181; 42 D.C. Reg. at 

6181; 42 D.C. Reg. at 6569.
13

legislation described above, except that the date before which each agency head 

was to make a final determination about positions for abolishment was changed 

from February 1, 1996, to August 1, 1996. See § 149 (b), 110 Stat. at 1321-98; see 

also BOE, 109 F.3d at 777. Congress enacted the temporary provision “to provide 

the District with greater flexibility to manage its workforce and control costs[.]” 

Board of Trs. of Univ. of District of Columbia v. American Fed’n (“UDC”), 130 

A.3d 355, 359 (D.C. 2016); see also Fowler v. District of Columbia, 122 F. Supp. 

2d 37, 38 (D.D.C. 2000) (explaining that “[o]perating deficits, cash shortages, 

management inefficiencies, deficit spending, and an overall ‘fiscal emergency’ led 

Congress to enact [the Abolishment Act]”).

Thereafter, beginning in June 1996, and again in 1997, 1998, and 1999, both 

the Council and Congress passed legislation that updated the language of the 

reduction-in-force legislation. The Council added a new section, § 1-625.7, to the 

D.C. Code that tracked the language of the earlier legislation, but that changed the 

date in the opening paragraph from the phrase “for fiscal year ending September 

30, 1996,” to the phrase “for the fiscal year ending September 30, 1997,” and also 

changed the succeeding paragraph to “set a deadline of February 1, 1997, for 

personnel authorities to make final decisions on the identification of positions to be 

abolished through a reduction in force[.]” 43 D.C. Reg. 4377, 4377 (Aug. 16, 
14

1996); 43 D.C. Reg. 5427, 5427 (Oct. 11, 1996). Congress passed appropriations

legislation that contained identical changes. See § 140 (b), 110 Stat. at 2373. 

Thereafter, during each of the next three years, Congress passed 

appropriations legislation that continued the update process: it substituted the 

phrase “for the fiscal year ending September 30, 1998,” Pub. L. No. 105-100,

§ 150 (d), 111 Stat. 2160, 2183 (1997); the phrase “the fiscal year ending 

September 30, 1999,” Pub. L. No. 105-277, § 144 (b), 112 Stat. 2681, 2681-144 

(1998); and then the phrase “for the fiscal year ending September 30, 2000,” Pub. 

L. No. 106-113, § 140 (b), 113 Stat. 1501, 1522 (1999), for the originally enacted 

phrase “for the fiscal year ending September 30, 1996,” and it changed the date by 

which a final decision was to be made on the identification of positions to be 

abolished to February 1, 1998; then to February 1, 1999; and then to February 1, 

2000. See § 150 (d), 111 Stat. at 2183; § 144 (b), 112 Stat. at 2681-144; and § 140 

(b), 113 Stat. at 1522.

5

 

 

5

 Congress also made corresponding date adjustments in paragraphs (i) and 

(k) of the Act, specifying the dates (March 1, 1998; March 1, 1999; and March 1, 

2000) by which the Mayor was to submit to the Council a listing of all positions to 

be abolished and the date by which termination notices were to be served. § 150 

(d), 111 Stat. at 2183-84; § 144 (b), 112 Stat. at 2681-144; § 140 (b), 113 Stat. at 

1522.
15

In November 2000, Congress made (what is to date) its final amendment to 

the Abolishment Act, substituting the phrase “September 30, 2000, and each 

subsequent fiscal year” for the originally enacted phrase in subsection (a), and 

inserting, in subsection (b), “[p]rior to February 1 of each year” in lieu of February 

1 of a specified year. See Pub. L. No. 106-522, § 129 (b), 114 Stat. 2440, 2467 

(2000); Pub. L. No. 106-553, § 129 (b), 114 Stat. 2762, 2762A-29-30 (2000)

(emphasis added). The Council subsequently amended the heading of the Act 

(which had been recodified as D.C. Code § 1-624.08) to read “Abolishment of 

positions for fiscal year 2000 and subsequent fiscal years” and also substituted the 

phrase “each fiscal year” for the phrase “each year” wherever it appeared. 52 D.C. 

Reg. 10637, 10645 (Dec. 9, 2005). 

The permanent legislation described above added a new section (§ 1-625.7, 

later recodified as § 1-624.08) to Subchapter XXIV of the CMPA. None of the 

Council or congressional legislation described above repealed or amended the 

terms of the general RIF statute. 

C. Statutory construction principles
16

“The primary and general rule of statutory construction is that the intent of 

the lawmaker is to be found in the language that he has used.” Peoples Drug 

Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) 

(internal quotation marks omitted). This court therefore begins its process of 

statutory interpretation “by looking at the statute on its face, and if the meaning is 

clear from the face of the statute, we must give effect to that plain meaning.” 

Rupsha 2007, L.L.C. v. Kellum, 32 A.3d 402, 406 (D.C. 2011). A “cardinal rule 

[of statutory construction is also] that a statute is to be read as a whole[.]” Corley 

v. United States, 556 U.S. 303, 314 n.5 (2009) (internal quotation marks omitted). 

“[O]ne of the most basic interpretive canons” is that “a statute should be construed 

so that effect is given to all its provisions, so that no part will be inoperative or 

superfluous, void or insignificant.” Id. at 314 (internal quotation marks and 

brackets omitted); see also Adgerson v. Police & Firefighters’ Ret. & Relief Bd.,

73 A.3d 985, 992 (D.C. 2013) (“It is a ‘well-accepted tenet of statutory 

construction that, whenever possible, a statute should be interpreted as a 

harmonious whole.’” (quoting In re T.L.J., 413 A.2d 154, 158 (D.C. 1980)); 

Thomas v. District of Columbia Dep’t of Emp’t Servs., 547 A.2d 1034, 1037 (D.C. 

1988) (“[E]ach provision of the statute should be construed so as to give effect to 

all of the statute’s provisions, not rendering any provision superfluous.”). 

 
17

III. Analysis

A. The reach of the Abolishment Act

For the reasons that follow, we agree with appellants that the Abolishment 

Act did not supersede the general RIF statute and that a RIF may be governed by 

the general RIF statute and regulations rather than by the Abolishment Act even if 

it was based on budgetary constraints. We also conclude, however, that the 

Abolishment Act currently affords District of Columbia agencies an opportunity 

each fiscal year to use a streamlined procedure to abolish positions that they have 

identified before February 1 of the fiscal year, without regard to whether there is a 

fiscal emergency or budget crisis. 

1. The February 1 deadline for RIFs under the Abolishment Act

We begin with the fact, emphasized by appellants, that “[t]he Abolishment 

Act did not state that it repealed the [general] RIF statute.” As we have often 

observed, “repeals by implication are not favored.” Owens v. District of Columbia, 

993 A.2d 1085, 1088 (D.C. 2010) (internal quotation marks omitted) (quoting 

Morton v. Mancari, 417 U.S. 535, 549 (1974)). Our first task is therefore to 

determine whether the statutes involved here, the Abolishment Act and the general 
18

RIF statute, can be harmonized and deemed to have “concurrent operation.” 

Mazanderan v. District of Columbia Dep’t of Pub. Works, 94 A.3d 770, 774, 781

(D.C. 2014).

We conclude that the two RIF statutes can be harmonized and that the 

general RIF statute has not been diminished by the Abolishment Act’s 

“notwithstanding” clauses.

6

 To be sure, this court has recognized that statutory 

 

6

 See D.C. Code § 1-624.08 (a) (“Notwithstanding any other provision of 

law [or] regulation, . . . for the fiscal year ending September 30, 2000, and each 

subsequent fiscal year, each agency head is authorized, within the agency head’s 

discretion, to identify positions for abolishment.”) and (c) (“Notwithstanding any 

rights or procedures established by any other provision of this subchapter, any 

District government employee, regardless of date of hire, who encumbers a 

position identified for abolishment shall be separated without competition or 

assignment rights, except as provided in this section.”).

Our conclusion that the Abolishment Act and the general RIF statute both 

continue in effect is not inconsistent with the analysis in UDC. We said there that 

the Abolishment Act “establishes the process that is to be used to accomplish any 

government RIF[.]” 130 A.3d at 359. Divorced from its context, that statement 

might be read to mean that the Act has entirely superseded the general RIF statute 

for any RIF a government agency undertakes. When the statement is read in 

context, however, it becomes clear that it means that the provisions of the 

Abolishment Act apply to the District’s educational service employees (a category 

that includes UDC employees) just as they do to employees of any other District 

agency. The statement appears in a paragraph that explains that while the CMPA 

as originally enacted provided that “educational service employees are exempt 

from the provisions of Title 24 of the CMPA, which governs RIFs,” the 

Abolishment Act amended the CMPA to give the District “greater flexibility to 

manage its workforce,” by making the Act applicable to “any government RIF,” id.

(continued...)
19

“notwithstanding” language “customarily evidences an intention of the legislature 

that the enactment control in spite of any earlier law to the contrary addressing the 

subject.” Leonard v. District of Columbia, 794 A.2d 618, 626 (D.C. 2002); see 

also UDC, 130 A.3d at 360 (stating that the Abolishment Act’s notwithstanding 

clause “makes clear [Congress’s] intention to remove all legal impediments to the 

government’s ability to conduct RIFs under the Act.”). Nevertheless, in 

accordance with the principles of statutory construction discussed above, we are 

obligated to consider all of the statute’s provisions, not just the “notwithstanding” 

clauses. Doing that, we discern that the language of § 1-624.08 (b) and its plain 

meaning are the key to understanding how the Abolishment Act operates in 

relation to the general RIF statute. 

As already described, the Act states (in D.C. Code § 1-624.08 (b)) that 

“[p]rior to February 1 of each fiscal year, each personnel authority . . . shall make a 

final determination that a position within the personnel authority is to be 

abolished.” As expressly stated by the Council in legislative preambles

7

(when it 

 

(...continued)

— i.e., by making the Act applicable to educational service RIFs as well as other 

government RIFs. Id.

7

 See Clement v. District of Columbia Dep’t of Emp’t Servs., 126 A.3d 

1137, 1141 (D.C. 2015) (relying on purposes listed in bill preamble as evidence of 

(continued...)
20

introduced the February 1 date in connection with RIFs to be implemented for the 

fiscal year ending September 30, 1996, or the fiscal year ending September 30, 

1997), February 1 was the “deadline . . . for personnel authorities to make final 

decisions on the identification of positions to be abolished through a reduction in 

force[.]” E.g., 43 D.C. Reg. at 5427 (emphasis added).

8

 Congress retained the 

reference to February 1 in the temporary updates it made to the Abolishment Act in 

1996, 1997, 1998, and 1999, and in the amendment it made in 2000 to make the 

Act applicable “for the fiscal year ending September 30, 2000, and each 

subsequent fiscal year.” 

Given the foregoing history, we see no reason to think that the February 1 

date as retained in the statute functions any differently than it did as originally 

enacted: it is the annual deadline by which an agency must identify positions to be 

abolished through an Abolishment Act RIF.

 

(...continued)

the Council’s legislative intent); Expedia, Inc. v. District of Columbia, 120 A.3d 

623, 636 (D.C. 2015) (“The preamble . . . confirmed [the Council’s] purpose[.]”).

8

 See sources cited supra note 4; see also 43 D.C. Reg. 5, 5 (Jan. 5, 1996);

43 D.C. Reg. 777, 777 (Feb. 23, 1996); 43 D.C. Reg. at 4377.
21

To put it differently, we construe the “each subsequent fiscal year” language 

of § 1-624.08 (a) together with the “February 1” deadline of § 1-624.08 (b) to 

mean that the Abolishment Act establishes a once-per-fiscal-year,

9

time-limited 

opportunity10 for each District of Columbia agency to effect a RIF to manage its 

operations and workforce.11 This interpretation harmonizes the two RIF statutes on 

a basis that relies on the Abolishment Act’s plain language without rendering the 

general RIF statute superfluous. It means, for example, that if an agency 

determines after February 1 of the fiscal year that a RIF during the fiscal year is

 

9

 Cf. Horwitz v. Bankers Life & Cas. Co., 745 N.E.2d 591, 607 (Ill. App. 

Ct. 2001) (“[W]e believe that no reasonable interpretation of the words ‘each year’

could find that increases could occur more than once per year for every year of the 

life of the contract.”).

Per D.C. Code § 1-204.41 (a) (2014 Repl. & Supp. 2016), the fiscal year of 

the District of Columbia runs from October 1 to September 30. 

10

 It makes sense that an each-fiscal-year deadline for identifying positions 

to be abolished during a fiscal year should be set for early in the fiscal year, since, 

by definition, a fiscal year is “a 12-month period for which an organization plans 

the use of its funds.” American Heritage Dictionary 686 (3d ed. 1992).

11

 The fact that the plain language of the Abolishment Act sets a deadline 

for each agency to make a determination about positions to be abolished under the 

Act as a budgetary measure each fiscal year may explain why there was no dispute 

that the RIF discussed in Dupree, 132 A.3d at 152, was governed by the general 

RIF statute, not by the Act. We noted in that case that appellant Dupree “was 

released from his employment as a criminal investigator with the Department on 

August 3, 2001, in one of several RIFs connected with the closing of the District’s 

correctional facilities in Lorton, Virginia.” Id. at 152 (italics added). 
22

“necessary,” see D.C. Code § 1-624.03,

12 it must implement the RIF, if at all,

pursuant to the general RIF statute and may not do so under the Abolishment Act.

2. Fiscal emergency vel non

As already discussed, in explaining in its January 2013 Addendum Decision 

on Remand how the Abolishment Act operates in relation to the general RIF 

statute, the OEA reasoned that the Act “was enacted specifically for the purpose of 

addressing budgetary issues resulting in a RIF.” It also reasoned that the Act is a 

more appropriate statute “for use during times of fiscal emergency[,]” and is “the 

more applicable statutory provision in order to conduct RIFs resulting from 

budgetary constraints.” It therefore announced a rule, which it has since followed 

in numerous cases,13 that it is “primarily guided” by the Abolishment Act for “RIFs 

authorized due to budgetary restrictions.” 

 

12

 Section 1-624.03, part of the general RIF statute, states that “[t]he 

appropriate personnel authority shall be responsible for making a final 

determination that a reduction in force is necessary and for ensuring that the 

provisions of this subchapter and rules and regulations issued pursuant to this 

subchapter are applied when effecting a reduction-in-force within their respective 

agency.” 

13

 See note 26, infra.
23

This court “routinely accord[s] great deference to [the OEA’s] interpretation 

of . . . the statute which it administers,” Dupree, 132 A.3d at 155 (internal 

quotation marks omitted).14 On that basis, we can accept the OEA’s interpretation 

that it is to be “primarily guided” by the Abolishment Act (rather than “solely 

guided” by the Act, as the OEA said in its initial decisions on appellants’ positions) 

when it is asked to consider a RIF. We can do so because it is not unreasonable for 

the OEA, when considering a challenged RIF, to assume that the District of 

Columbia employing agency has exercised its each-fiscal-year opportunity to 

identify positions for abolishment under streamlined procedures — unless the 

agency asserts otherwise or the timing of the agency’s final decision to abolish the 

positions in question precludes that conclusion. 

That said, our deference must end there, because the OEA did not consider 

the significance of the February 1 date (part of the plain language of the Act) by 

which an agency must make a final determination identifying positions to be 

abolished during the fiscal year. In addition, contrary to the OEA’s reasoning, the 

 

14

 See also Davis v. Univ. of the District of Columbia, 603 A.2d 849, 851 

(D.C. 1992) (“OEA is the agency charged by the CMPA . . . with the responsibility 

of hearing and adjudicating appeals from District of Columbia agency employees.

As such, it should be accorded deference in its interpretation of these provisions of 

the CMPA.”); Harrison v. Bd. of Trs. of the Univ. of the District of Columbia, 758 

A.2d 19, 22 (D.C. 2000) (“[T]he [CMPA] . . . is administered by the Office of 

Employee Appeals[.]”).
24

“each subsequent fiscal year” language of the Abolishment Act will not support an 

interpretation that the streamlined provisions of the Act apply only when there is a 

fiscal emergency or budgetary crisis. Quite the contrary, while the Abolishment 

Act had its genesis as a tool for the District to deal with fiscal emergencies, 

Congress abandoned its previous approach of revisiting § 1-624.08 (a) in 

connection with each annual appropriation to the District of Columbia, and instead 

inserted language that transformed the Act into a law that applies without regard to 

the particular financial circumstances confronting the District in any “subsequent 

fiscal year[].”

15 Unlike the general RIF statute, the Abolishment Act contains no 

language indicating that RIFs pursuant to it must be strictly “necessary,” D.C. 

Code § 1-624.03, and Abolishment Act RIFs also are not governed by the generalRIF-statute regulations that specify that a RIF must be based on lack of work, 

shortage of funds, reorganization or realignment, or the exercise of restoration 

rights in connection with homeless veterans reintegration programs. See 6B 

DCMR § 2401.1. For these reasons, we conclude that the OEA’s interpretation 

that ties the Abolishment Act to all RIFs that respond to “times of fiscal 

emergency” (or to budgetary “constraints,” “restrictions,” or “issues”), is legally 

 

15

 As the District’s brief aptly puts it, the Abolishment Act “does not 

impose any requirement for a particular factual predicate before positions are 

abolished.” 
25

erroneous, and we accordingly do not defer to it.16 See UDC, 130 A.3d at 361 

(“[T]he Act was passed to provide the District with what Congress considered to 

be a critical tool, not only for addressing its then ongoing financial crisis, but also 

to better manage its finances in the future.”). 

At the same time, and as the foregoing discussion implies, nothing in the Act 

supports a conclusion that a RIF undertaken in response to a fiscal emergency will 

always qualify as an Abolishment Act RIF. Our interpretation in this regard may 

at first glance appear to be at odds with the analysis in WTU, but we are satisfied 

that there actually is no conflict. The RIF in dispute in WTU had been announced 

in a Board of Education resolution dated May 11, 2004, and the affected school 

personnel were notified in the same month. See 960 A.2d at 1125, 1126 n.5. We 

said variously that “[t]he abolishment was conducted in accordance with the 

Abolishment Act,” id. at 1126; that “the Abolishment Act procedures, imposed for 

budgetary reasons, appear to apply to the 2004 RIF, rather than the general RIF 

provisions of the CMPA[,]” id. at 1125; that because “[t]he Board’s May 11, 2004 

resolution authorized the 2004 RIF at issue . . . to ‘address and eliminate a 

longstanding structural budgetary problem,’ . . . the 2004 RIF triggered the 

 

16

 We similarly reject appellants’ argument that the Abolishment Act RIF 

“covers [only] shortage of funds in a fiscal emergency,” and their contention that 

“if the District wishes to conduct a RIF that is not for a fiscal emergency, then it 

must follow the applicable regulations in the general RIF statute.” 
26

Abolishment Act provisions,” id. at 1132; that “[t]he procedures established in 

§ 1-624.08 appear to have governed that RIF, rather than the regular RIF 

procedures found in D.C. Code § 1-624.02[,]” id.; and that “[t]he ordinary and 

plain meaning of the words used in § 1-624.08 (c) appears to leave no doubt about 

the inapplicability of § 1-624.02 to the 2004 RIF[,]” id. 

We made all the foregoing statements in WTU without reference to the 

timing of the RIF decision involved in that case, i.e., without discussion of when 

(to use the language of § 1-624.08 (b)) there had been a “final determination that a 

position within the personnel authority [was] to be abolished.” We did so, 

however, on a record in which the parties agreed that the RIF was an Abolishment 

Act RIF. Thus, the parties’ dispute was not as to whether the Abolishment Act 

applied, but instead related to whether, in implementing the RIF, the Board of 

Education should have been guided by its pre-Abolishment Act RIF regulations, or 

instead should have rescinded those regulations, issued rules that were consistent 

with § 1-624.08, and implemented the RIF in a manner consistent with the 

Abolishment Act. See id. at 1127–28.17 Further, notwithstanding our statements

 

17

 We note in addition that the record in that case indicates that even though 

the RIF was not publicly announced until May 2004, 960 A.2d at 1125-26, the 

Board of Education had determined by December 2003 (i.e., before February 1 of 

the fiscal year), to implement the necessary abolishments (but, after the Council 

(continued...)
27

quoted above that suggested that the Abolishment Act governs RIFs imposed to 

address budgetary problems, we articulated a holding in WTU that was (as 

appellants in the instant case emphasized to the OEA) quite tentative: we “h[e]ld 

that the Abolishment Act procedures appear to apply to the 2004 RIF, rather than 

the general RIF provisions of the CMPA.” Id. at 1134 (emphasis added). We also 

said that “the determination whether the OEA has jurisdiction [on the ground that 

the RIF was an Abolishment Act RIF] is quintessentially a decision for the OEA to 

make in the first instance” because of its “specialty in personnel matters.” Id. at 

1131. We “conclude[d] that instead of dismissing appellants’ complaints, the trial 

court should have stayed its proceedings and transferred the case to the OEA for a 

determination of OEA’s jurisdiction; and for initial resolution of appellants’ 

claims, if OEA confirms its jurisdiction.” Id. at 1125. Given the tentativeness of 

our holding in WTU, we do not believe the opinion in that case is a bar to our 

holding in the instant case.

18

 

(...continued)

approved some additional funding for the schools, delayed announcing the RIF and 

delayed implementing it until the end of the school year).

18

 See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[W]e have adopted 

the rule that no division of this court will overrule a prior decision of this court . . .

and that such result can only be accomplished by this court en banc.” (footnote 

omitted)).
28

To recap what we have concluded in this section: In the beginning, the 

political and financial context made it clear that the Abolishment Act was meant to 

address the fiscal crises that continued to confront the District each time Congress 

updated the Act in connection with District of Columbia appropriations and each 

time the Council passed similar emergency or temporary legislation. Until late 

2000, the Act applied only year-by-year, while the District was regaining its fiscal 

health. However, the actual language of the Act never required that it be triggered 

by a fiscal emergency, and when the statute was amended to apply to “each 

subsequent fiscal year,” the provisions of the Act became equally available in years 

when there was no fiscal emergency. Thus, the Abolishment Act affords agencies 

a once-per-fiscal-year opportunity to use a streamlined procedure to abolish 

positions that they have identified before February 1 of the fiscal year, without 

regard to whether there is a fiscal emergency or budgetary crisis.

B. Whether the DOH RIF was an Abolishment Act RIF

With the foregoing parameters in mind, we analyze the DOH RIF in dispute 

here on the basis of the record evidence. We conclude that the OEA did not err in 

determining that the Abolishment Act governed the RIF.
29

The documentary record that was before the OEA discloses that during the 

final quarter of fiscal year 2008, the City Administrator directed DOH to reduce its 

fiscal year 2009 local-funds budget by $2.919 million. In response, DOH 

requested approval from then-Mayor Adrian Fenty, in a memorandum dated 

December 15, 2008, to implement a RIF and recommended that twenty-four 

positions be abolished across four DOH departments, including sixteen from the 

CSFP unit. The memorandum noted DOH’s intention to save $600,000 per year 

by outsourcing the program and called the transition “a priority for DOH.”19 On 

December 29, 2008, Mayor Fenty signed an administrative order identifying and 

abolishing the recommended positions “due to [l]ack of [f]unds.” As described 

above, the DOH Director sent appellants a notice of the RIF by letter dated 

December 29, 2008, telling them that they would be separated from service 

effective January 30, 2009. 

Thus, the foregoing undisputed record that was before the OEA established

that, prior to February 1, 2009, DOH made a final determination that certain 

identified positions, including the positions held by appellants, were to be

 

19

 According to the memorandum, while the program is partially funded by 

the United States Department of Agriculture (“USDA”), the USDA grant “never 

fully covered operational and administrative costs, including personnel, IT support, 

rental of warehouse space, and vehicle maintenance.” 
30

abolished during fiscal year 2009. Accordingly, the RIF counted as an exercise of 

the opportunity created by D.C. Code § 1-624.08 (a) and (b) — i.e., as an 

Abolishment Act RIF. 

Appellants resist that conclusion for two reasons. First, they point out that, 

in announcing and implementing the RIF, DOH followed various procedures 

required under the general RIF statute, an approach that they argue shows that 

DOH intended the RIF to be a RIF under the general RIF statute rather than under 

the Abolishment Act. We agree with the observation by the reviewing Superior 

Court judge that it is “irrelevant” that DOH completed some of the procedures 

called for under § 1-624.02 and its implementing regulations. We also agree with 

the District that the Act did not require District officials to have “intended” to act 

under any particular statutory authority and that the fact that DOH afforded 

appellants more process rather than the minimally required process was not a basis 

for denying DOH the opportunity afforded it under the Abolishment Act.20 

 

20

 Further, given that the general-RIF-statute regulations define and explain 

certain terms (such as “lateral competition” and “competitive level”) used in the 

Abolishment Act, see WTU, 960 A.2d at 1134, we are not persuaded by appellants’ 

argument that DOH’s references, in the thirty-day notices sent to appellants, to the 

RIF being conducted “in accordance with Chapter 24 of the District’s Personnel 

Regulations” signaled an intent, or bound DOH, to implement the RIF under the 

general RIF statute.
31

Second, appellants assert that the Mayor did not, as required by the Act

(specifically, § 1-624.08 (i)), “submit to the Council a listing of all positions to be 

abolished by agency and responsibility center by March 1 of each fiscal year or 

upon the delivery of termination notices to individual employees.” The District 

responds that nothing in the record supports that assertion. The District’s response 

appears to be correct, which is significant because appellants had the burden of 

proof on this point. Appellants bore that burden because they needed to show that 

the RIF was not an Abolishment Act RIF in order to establish that the OEA had 

jurisdiction to entertain their claims about DOH’s noncompliance with various 

procedural requirements of 6B DCMR Part 2400. See 6B DCMR § 628.2 (OEA 

rule stating that “the agency shall have the burden of proof as to all . . . issues,”

except for issues of jurisdiction); Record at 90 (OEA order deeming appellants’ 

argument that the OEA could consider a broader range of issues than those 

described in § 1-624.08 (d) through (f) “to be jurisdictional in nature”); see also

Johnson v. District of Columbia Office of Emp. Appeals, 912 A.2d 1181, 1183

(D.C. 2006) (upholding the OEA’s decision dismissing the employee’s appeal for 

lack of jurisdiction because the employee failed to prove that he was an 

Educational Service employee who had a right of appeal). 
32

We also note that the Act does not specify the form of the required notice to 

the Council, and it seems possible that, when signed by the Mayor on December 

29, 2008, the Administrative Order listing (by position number, job title, and 

organization location code) the positions that had been identified for abolishment 

served as a notice to the world, including the Council, “of all positions to be 

abolished by agency and responsibility center by March 1 of [the] fiscal year[.]” 

D.C. Code § 1-624.08 (i).

21

 

For the foregoing reasons, we reject appellants’ contention that the OEA 

erred in treating the DOH RIF as an Abolishment Act RIF.

C. Whether the OEA erred in concluding without an evidentiary hearing 

that the Abolishment Act procedural requirements were satisfied

 

21

 Further, while the Council referred to February 1 as the “deadline” for 

agencies to make final decisions on the identification of positions to be abolished 

(a “deadline” template carried over by Congress in its updates to the Abolishment 

Act), the Council never referred to the March 1 date for submission to the Council 

as a “deadline.” See, e.g., 42 D.C. Reg. at 6181 (preamble listing as a purpose of 

the legislation “to require the Mayor to submit to the Council by March 1, 1996, a 

list of positions to be abolished through a reduction-in-force”); 43 D.C. Reg. at 

5427 (same for March 1, 1997). We note, too, that § 1-624.08 (i) states that the 

Mayor is to give notice to the Council by March 1 “or upon the delivery of 

termination notices to individual employees[,]” indicating that there is no fixed 

date by which notice is to be given to the Council. 
33

Because the OEA properly treated the DOH RIF as an Abolishment Act RIF, 

the only question properly before the OEA (aside from the question of the bona 

fides of the RIF, which we discuss below) was whether DOH gave appellants, as 

RIFed employees, the written 30-days’ notice required by § 1-624.08 (e) and 

satisfied the one-round-of-lateral competition requirement established by 

§ 1-624.08 (d).22 Appellants do not dispute that DOH gave “employee[s] selected 

for separation[,]” including appellants themselves, “written notice of at least 30 

days before the effective date of his or her separation.” § 1-624.08 (e). In 

addition, appellant Prophet does not claim that DOH was out of compliance with 

the lateral competition requirements as to him. Thus, the issue before us is 

whether the lateral competition requirement was satisfied as to appellant Stevens.

Appellants were entitled to “one round of lateral competition . . . , which 

shall be limited to positions in the employee’s competitive level.” D.C. Code 

§ 1-624.08 (d). Documentary evidence in the record indicates that Stevens and 

Prophet were in a competitive level designated as “DS-2005-06-03-N” and that all 

 

22

 Under § 1-624.08 (f), appellants were not entitled to challenge before the 

OEA their separations or the determination that their specific positions were to be 

abolished. Thus, the OEA had no authority to entertain their claim that the 

outsourcing that the RIF facilitated violated the (now-repealed) Privatization Act, 

formerly codified at D.C. Code § 2-301.05 (b). 
34

positions in connection with the CSFP that had that designation (listed on a CSFP 

organizational chart as “Supply Clerk,” “Supply Technician,” and “Supplemental 

Food Clerk” positions) were abolished. We see nothing in the record that indicates 

whether there were positions with that (or an equivalent) designation within the 

DOH Nutrition and Physical Fitness Bureau, the “Lesser Competitive Area” 

designated in the administrative order approved by the Mayor in December 2008. 

In any event, Stevens does not argue that there were other positions at her 

competitive level in the Nutrition and Physical Fitness Bureau for which she was 

entitled to compete — i.e., that the Bureau had other positions “sufficiently alike in 

qualification requirements, duties, responsibilities, and working conditions” to the 

position she occupied such that she “could successfully perform the duties and 

responsibilities of any of the other positions, without any loss of productivity 

beyond that normally expected in the orientation of any new but fully qualified 

employee.”23 6B DCMR § 2410.4. Her argument is rather that she was entitled to 

“one round of lateral competition at her competitive level throughout the entire 

 

23

 As Stevens points out, the documentary evidence does appear to show 

that there were three positions connected with the CSFP, occupied by Twanna 

Chase Bates (“Administrative Support Staff’), Gregory Foy (“Program Assistant”), 

and Ivy Isong (“Public Health Nutritionist”), that were not RIFed. The 

documentary evidence also appears to show that only three of the four CSFP 

“Nutrition Health Technician” positions (designated as competitive level “DS-640-

06”) were abolished. However, Stevens does not contend that she was qualified to 

compete for those positions.
35

Agency.” Appellants’ Br. at 27; Reply Br. at 1, 13 (emphasis added). That 

argument is foreclosed by the Abolishment Act.24 The Act specifically provides 

that “the establishment of a competitive area smaller than an agency” is a matter 

that is not subject to review. D.C. Code § 1-624.08 (f); see also BOE, 109 F.3d at 

776 (noting that the Abolishment Act “allow[s] agency heads to establish ‘lesser 

competitive areas within an agency’ for purposes of a reduction-in-force” (quoting 

§ 1-624.01)). 

 

Stevens also argues that she was entitled to a hearing to determine whether 

she was “in the proper competitive level[.]” However, she proffered no reason

supporting a plausible inference that she belonged in a different competitive level

within the Nutrition and Physical Fitness Bureau. Accordingly, we cannot say that 

the OEA erred in determining that there were no material facts in dispute on the 

issue of lateral competition and that appellants were not entitled to an evidentiary 

 

24

 The basis of Stevens’s claim that the “entire Agency” was the 

competitive area appears to be the general-RIF-statute implementing regulation 

stating that (except when justified by the agency in a written request that is 

approved), “each agency shall constitute a single competitive area.” 6B DCMR 

§ 2409.1. However, because, as we have concluded, the OEA correctly determined 

that the RIF was an Abolishment Act RIF, that general-RIF-statute regulation did 

not apply.
36

hearing on the issue.25 Cf. Anjuwan v. District of Columbia Dep’t of Pub. Works, 

729 A.2d 883, 886 (D.C. 1998) (holding that no OEA hearing was required where 

the employee offered nothing but “[m]ere allegations without more” to support his

claim).

We also defer to the OEA’s interpretation that where an employee’s entire 

competitive level is eliminated, there is no one against whom he or she could 

compete, and therefore that the one-round-of-lateral-competition requirement of 

§ 1-624.08 (d) is inapplicable.

26

 This is in accordance with “deference [we owe to 

the OEA] in its interpretation of the[] provisions of the CMPA[,]” Davis, 603 A.2d 

 

25

 Nor are we able to discern any error in the designation of appellants’ 

competitive level. This is not surprising given that competitive levels have “no 

judicially manageable standards[.]” WTU, 960 A.2d at 1134.

26

 We note that the OEA has relied on this interpretation in a number of 

cases. See, e.g., Thompson v. District of Columbia Pub. Sch., OEA Matter No. 

2401-0122-14, at 5–7 (Jan. 20, 2015); In re Lee v. District of Columbia Pub. Sch., 

OEA Matter No. 2401-0251-12, at 5 (Mar. 21, 2014); Smart v. District of 

Columbia Child & Family Servs. Agency, OEA Matter No. 2401-0328-10, at 6 

(Mar. 4, 2014). Some of these cases applied the interpretation on facts indicating 

that the employee/petitioner was in a single-person competitive level that was 

abolished. Stevens contends that the OEA erroneously held that she “was properly 

placed in a single person competitive level.” The factual premise of that argument 

is incorrect. The OEA stated, both in its Addendum Decision on Remand and in its 

initial ruling, that, for both appellants, the “entire competitive level was abolished,” 

without stating that Stevens was, or should have been, part of a single-person 

competitive level. 
37

at 851, and the OEA’s “developed . . . expertise in administering and enforcing the 

District of Columbia Personnel Regulations[,]”

27 including the provisions of 6B 

DCMR Part 2400 that address what it means to afford lateral competition. In this 

case, that principle dictates deference to the OEA’s interpretation that no more was 

required of DOH with respect to the Act’s requirement of one round of lateral 

competition if (as substantial evidence in the record indicates) the RIF abolished 

appellants’ entire competitive level.28 

D. Whether appellants were entitled to a hearing on their claim 

that the RIF was not a bona fide RIF

 

27

 Hutchinson v. District of Columbia Office of Emp. Appeals, 710 A.2d 

227, 234 (D.C. 1998).

28

 We acknowledge Stevens’s argument that because her actual position 

was “supplemental food clerk,” rather than “supply technician” as shown on the 

DOH Retention Register, she “was not RIF’d from her position of record.” As the 

District points out, in her Petition for Appeal by the OEA, Stevens listed her 

position title as “Supply Technician,” perhaps suggesting that the terms were 

understood to be interchangeable. In any event, nothing in the record suggests that 

Stevens’s separation was the result of an erroneous description of what position 

she occupied within the CSFP unit; rather, the record evidence is that her position 

was abolished in connection with outsourcing of the food program for which she 

performed “food clerk” functions. Also, Stevens specifically denies that she 

should have been in a single-person competitive level, a circumstance that still 

would have triggered application of the OEA’s interpretation that no round of 

lateral competition was required because she had no one with whom to compete. 

See supra note 26.
38

Appellants assert that the OEA erred by concluding it had no jurisdiction to 

consider whether the RIF was a “sham.” This is actually a non-issue because, in its 

Addendum Decision on Remand, the OEA exercised jurisdiction and determined 

that appellants’ claims that the RIF was not a bona fide RIF were frivolous. We 

address instead appellants’ argument that the OEA erred by failing to recognize, as 

appellants contend was required by Levitt v. District of Columbia Office of Emp.

Appeals, 869 A.2d 364, 366-67 (D.C. 2005), that a hearing was required for the 

OEA to properly assess their claims that there was no shortage of funds and that 

the RIF was contrived to cover up DOH’s desire to outsource. 

The facts of Levitt were that the employing agency transferred Levitt, who

had served the District of Columbia government for nineteen years, to a newly 

created Grade 15 position with no supervisory responsibilities (a circumstance that 

Levitt alleged was “extremely unusual” for a Grade 15 position), and then, less 

than a month after his new position was created, “abolish[ed] the very position it 

had specifically created for him.” Id. at 366. We held that Levitt was entitled to a 

hearing on his “detailed allegations of improper employment actions” and that the 

OEA’s decision to dismiss Levitt’s position without discovery and a hearing was 

not supported by substantial evidence. Id. at 366–67. We quoted Fitzgerald v. 

Hampton, 467 F.2d 755, 758–60 (D.C. Cir. 1972): “Although a separation may 
39

have been stated by an agency to be by a reduction-in-force, when [there are] nonfrivolous allegations of an illegal discharge, which if proved would constitute an 

illegal adverse action by the agency, we think a request for a hearing should be 

granted as a procedural right to which [the requester is] entitled[,]” lest the effect 

be to “deprive [the employee] of all adverse action procedural rights[.]” Levitt,

869 A.2d at 366 n.4 (emphasis in original). 

Thus, in Levitt, we recognized that a hearing was warranted because the 

employee had made substantial allegations to the effect that the employing agency 

had targeted him, rather than a bona fide position he occupied, for elimination,

without affording him the procedural protections that apply to terminations for 

cause.

29

 Appellants’ allegations are not at all analogous to those in Levitt (and 

likewise are not analogous to the allegations in Anjuwan that “the agency-wide RIF 

was a sham to retaliate against him for his whistleblowing activities,” 729 A.2d at

885–86). The undisputed evidence in this case was that the RIF was directed at all 

or most of the positions in a program area; no evidence was proffered that DOH 

targeted appellants or other employees individually (and, indeed, as Stevens avers, 

 

29

 Cf. Wilburn v. Dep’t of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985) 

(remanding employee’s case to the Merit Systems Protection Board where the 

employing agency “strongly appears to have abolished the newly created vacant 

position for reasons personal to [the employee]”).
40

she and other RIFed employees were rehired by the outsourcing contractor to 

perform the same functions they had performed as DOH employees, albeit at lower 

salaries). Further, the short answer to appellants’ argument that the RIF was 

implemented for a contrived reason is the point we have discussed above: that no 

shortage of funds and no other particular factual predicate was required to justify 

what we have concluded was an Abolishment Act RIF. For that reason, even if the 

statement in the Mayor’s Administrative Order to the effect that the reason for the 

RIF was a “[l]ack of [f]unds” was incorrect30 and/or was a contrived explanation to 

 

30

 We note that even when reviewing a RIF implemented under the general 

RIF statute, the OEA lacks “authority to second-guess the mayor’s decision about 

the shortage of funds[.]” Anjuwan, 729 A.2d at 885. In any event, there was 

substantial evidence in the record to support a finding that DOH did have a 

shortage of funds. The Community Health Administration’s Fiscal Year 2009 

Local Budget Reduction states that DOH was obliged to reduce its baseline budget 

by $2.919 million, and the Agency’s response to appellants’ interrogatories reflects 

the same information. A Fiscal Year Gap-Closing Plan was created to address the 

shortage of funds. It appears that the Agency was able to achieve the necessary 

savings by cutting positions funded with local dollars, but that it could not have 

accomplished its program goals with only the remaining federally funded 

positions. 

Further, it appears that the larger context was that the District was facing a 

fiscal emergency. This court noted in Washington, D.C. Ass’n of Realtors, Inc. v. 

District of Columbia that “[i]n November 2008, facing unexpected revenue 

shortfalls and needing to meet its statutory obligation to present a balanced budget 

to Congress, the Council . . . declared the existence of a fiscal emergency and 

outlined the steps that would be taken to meet it.” 44 A.3d 299, 301 (D.C. 2012)

(footnote signal omitted); see also 55 D.C. Reg. 12119, 12119 (Nov. 28, 2008) 

(citing, in Council Resolution 17-856, a shortfall in local fund revenues for fiscal 

year 2009 and declaring the existence of a fiscal emergency); 55 D.C. Reg. 12601-

(continued...)
41

cover up the plan for outsourcing, that did not render the RIF and appellants’ 

resultant separations invalid. Therefore, the OEA did not err in resolving 

appellants’ claims without a hearing.

E. Whether there were other material issues of fact 

that necessitated an evidentiary hearing

Finally, appellants argue that a hearing was required to resolve their various 

other claims. However, the matters that they assert require an evidentiary hearing 

either relate to claims that the OEA reasonably determined were frivolous (e.g., 

that the RIF was a sham of the type involved in Levitt), or else are pure legal issues 

(e.g., whether an agency may conduct an Abolishment Act RIF to address a 

shortage of local funds); legal issues that could be resolved on undisputed facts 

(e.g., whether the DOH RIF qualified as an Abolishment Act RIF); mixed issues of 

law and fact that are irrelevant to an Abolishment Act RIF (e.g., did the Retention

Register satisfy the requirements of 6B DCMR § 2412); or factual questions the 

 

(...continued)

14 (Dec. 19, 2008) (notice of D.C. Act 17-573, the “Fiscal Year 2009 Balanced 

Budget Request Emergency Amendment Act of 2008,” which enacted substantial

budget cuts); Memorandum from the Office of the City Administrator to All 

Department and Agency Heads (Oct. 29, 2008) (referring to the “proposed FY 

2009 Gap-Closing Plan” that would “resolve a projected revenue shortfall of $131 

million,” and describing the allocation of spending rescissions of approximately 

$52 million among the various District of Columbia agencies).
42

answers to which are, for reasons we have explained, immaterial (e.g., what 

general-RIF procedures did DOH follow, whether DOH “intended” to conduct the 

RIF pursuant to the Abolishment Act, whether there was a shortage of funds or a 

fiscal emergency in fiscal year 2009, whether appellants were RIFed to pay for 

outsourcing the CSFP or for other “improper” reasons, or whether the RIF saved

any money). Accordingly, the OEA did not err in ruling that there were no 

material facts in dispute and that no hearing was required. 

**

For the foregoing reasons, we uphold the OEA’s decision, and the judgment 

of the Superior Court is

Affirmed.