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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CV-301
ANDREW JOHNSON, APPELLANT,
V.
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAP-1551-16)
(Hon. Jennifer A. Di Toro, Trial Judge)
(Argued June 18, 2018 Decided August 9, 2018)
Andrew Johnson, pro se.
Richard S. Love, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor
General, Todd S. Kim, Solicitor General at the time the initial brief was filed, and
Stacy L. Anderson, Acting Deputy Solicitor General, were on the briefs, for
appellee.
David Carpman, with whom Jonathan H. Levy was on the brief, for The
Legal Aid Society of the District of Columbia, amicus curiae in support of
appellant.
Before EASTERLY and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.
MCLEESE, Associate Judge: Appellant Andrew Johnson challenges the
Superior Court’s decision that the District of Columbia Office of Employee
2
Appeals (OEA) lacks jurisdiction to hear Mr. Johnson’s wrongful-termination
claim. We conclude that OEA has jurisdiction to hear Mr. Johnson’s wrongful-
termination claim.
I.
The following evidence was presented to OEA. Mr. Johnson was a school
psychologist for the District of Columbia Public Schools (DCPS). He received a
notice of termination, effective August 12, 2011, because he received a low
performance rating for two consecutive years. In September 2011, Mr. Johnson
appealed his termination to OEA. Mr. Johnson’s financial situation worsened
while his OEA appeal was pending. Mr. Johnson therefore met with employees of
the DCPS Office of Human Resources (OHR) to discuss obtaining retirement
benefits. He told the employees that he still wished to pursue his appeal before
OEA and ultimately to return to work at DCPS, but sought access to his retirement
funds because of his financial situation. When Mr. Johnson was provided a
retirement application, he asked how he should fill out the application. In
response, an OHR employee wrote “involuntary” on the application. The
application listed an effective retirement date of August 12, 2011. Mr. Johnson
3
was not told that he could lose his ability to appeal his termination if he filed for
retirement benefits.
Mr. Johnson began to receive annuity payments labeled “involuntary
retirement benefits” pursuant to the District of Columbia Teachers’ Retirement
Plan (Plan), retroactive to his separation date. Under the Plan, former DCPS
teachers can qualify for two separate categories of “retirement benefit[s]”:
“voluntary retirement benefit[s]” and “involuntary retirement benefit[s].” The Plan
states that involuntary-retirement benefits “may be payable if [an otherwise
eligible employee] is involuntarily separated from service (unless the reason is for
cause on charges of misconduct or delinquency).” See generally D.C. Code § 38-
2021.03 (b)(1) (2018 Cum. Supp.) (providing for benefits to employees who have
been “involuntarily separated from the service,” meet certain age and length-of-
service requirements, and were not “remov[ed] for cause on charges of misconduct
or delinquency”).
An OEA ALJ concluded that OEA lacked jurisdiction to reach the merits of
Mr. Johnson’s wrongful-termination claim, because Mr. Johnson had voluntarily
retired. In rejecting the contention that Mr. Johnson’s retirement was involuntary,
the ALJ concluded that Mr. Johnson had not proven that DCPS coerced or misled
4
him. The ALJ also concluded that Mr. Johnson’s retirement was not rendered
involuntary by the facts that (1) an OHR employee wrote “involuntary” on Mr.
Johnson’s retirement application; (2) Mr. Johnson applied for retirement benefits
because he was facing financial difficulties; and (3) DCPS failed to tell Mr.
Johnson that acceptance of retirement benefits would foreclose a challenge to his
termination. The OEA Board and the Superior Court both affirmed, essentially for
the reasons stated by the ALJ.
II.
This court “reviews agency decisions on appeal from the Superior Court the
same way we review administrative appeals that come to us directly.” Stevens v.
District of Columbia Dep’t of Health, 150 A.3d 307, 311-12 (D.C. 2016) (brackets
and internal quotation marks omitted). “Although this court generally resolves
legal questions de novo, the court ordinarily accords deference to an agency’s
interpretation of a statute that the agency administers, unless the interpretation is
unreasonable or is inconsistent with the statutory language or purpose.” Johnson v.
District of Columbia Dep’t of Emp’t Servs., 167 A.3d 1237, 1240 (D.C. 2017)
(internal quotation marks omitted).
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OEA has jurisdiction to decide appeals from certain final agency decisions
that “result[] in removal of [an] employee.” D.C. Code § 1-606.03 (a) (2016
Repl.). It is well settled, however, that if an employee voluntarily retires, either in
lieu of termination or retroactively after termination, the employee can no longer
contest removal. Bagenstose v. District of Columbia Office of Emp. Appeals, 888
A.2d 1155, 1156-58 (D.C. 2005); see also Williams v. District of Columbia Pub.
Sch., OEA Matter No. 2401-0124-10-R13, at 3 (Apr. 22, 2014) (“OEA has
consistently held that it lacks jurisdiction to adjudicate a voluntary retirement.”).
That makes sense, because if an employee has elected to voluntarily retire, then the
employee cannot be said to have been aggrieved by an agency decision that
resulted “in removal of the employee.” D.C. Code § 1-606.03 (a). Conversely, if
the employee can show that the retirement was the result of coercion or agency
misrepresentation, the retirement is rendered involuntary and is treated as a
constructive termination reviewable by OEA. Bagenstose, 888 A.2d at 1158.
III.
Mr. Johnson argues that he did not voluntarily retire and that OEA therefore
has jurisdiction over his challenge to his termination. We agree.
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It is undisputed that Mr. Johnson has been receiving benefits pursuant to
D.C. Code § 38-2021.03 (b)(1), which provides for benefits to employees who
have been “involuntarily separated from the service.” By its terms, that statute
could not properly apply to Mr. Johnson if he voluntarily ended his service with
the District of Columbia. Provision of such benefits thus contradicts, rather than
supports, a conclusion that Mr. Johnson voluntarily retired. Mr. Johnson’s
representations as to his interactions with OHR employees, including the notation
on the retirement form that the retirement was involuntary, also undermine rather
than support a conclusion that Mr. Johnson voluntarily retired. In our view, the
record indisputably establishes that Mr. Johnson did not voluntarily retire. Rather,
he was involuntarily separated and was granted benefits accordingly. We are not
persuaded by DCPS’s arguments to the contrary.
First, DCPS accurately points out that, in arguing that he did not voluntarily
retire, Mr. Johnson did not rely on D.C. Code § 38-2021.03 (b)(1), which was first
brought to our attention by The Legal Aid Society as amicus curiae. We do not,
however, view Mr. Johnson as being precluded from reliance on that provision to
support his clearly articulated contention that he did not voluntarily retire. Cf.,
e.g., In re D.L., 904 A.2d 367, 369 n.2 (D.C. 2006) (“Although counsel did not cite
a particular statute that the judge’s proposed order would violate, the objection was
7
sufficient to preserve the claim that in effectively closing the case, the judge was
exceeding his statutory authority.”); Baker v. United States, 867 A.2d 988, 1001
(D.C. 2005) (“[C]itation to a particular case is not a prerequisite to the preservation
of an objection for appellate review . . . .”). See generally, e.g., Panutat, LLC v.
District of Columbia Alcoholic Beverage Control Bd., 75 A.3d 269, 273 n.5 (D.C.
2013) (“[P]arties on appeal are not limited to the precise arguments they made
previously . . . .”) (citing Yee v. City of Escondido, 503 U.S. 519, 535 (1992)).
Second, DCPS contends that former employees who have been involuntarily
separated must agree to forego any challenge to the separation in order to collect
benefits under § 38-2021.03 (b)(1). We disagree, because neither of the provisions
at issue supports DCPS’s argument. OEA’s jurisdiction to hear a termination
appeal turns on whether an employee was “remov[ed].” D.C. Code § 1-606.03 (a).
Nothing in this provision suggests that OEA jurisdiction is defeated by the receipt
of involuntary-retirement benefits under § 38-2021.03 (b)(1). Moreover, as we
have previously explained, the language of § 38-2021.03 (b)(1) requires that Mr.
Johnson have been involuntarily separated, and thus contradicts DCPS’s
contention that benefits under that provision are only available to those who agree
to voluntarily separate from service as a District employee.
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Third, DCPS relies on Bagenstose, 888 A.2d at 1157-58. We do not view
Bagenstose as contrary to our holding, however, because Bagenstose did not
address the question we decide: whether acceptance of involuntary-retirement
benefits under § 38-2021.03 (b)(1) constitutes voluntary retirement divesting OEA
of jurisdiction to hear a termination appeal.
Finally, DCPS argues that accepting involuntary-retirement benefits under
§ 38-2021.03 (b)(1) must be understood to preclude a challenge to termination,
because there is no statutory mechanism for DCPS to recover benefits awarded to
an employee who successfully challenges termination and thereafter is reinstated.
We express no view as to whether such recovery would be warranted and if so how
it could permissibly be achieved. Rather, we note that if such recovery would be
warranted, we are confident that it could feasibly be achieved. We also note that
the issue of recovering retirement benefits awarded before reinstatement will arise
however we resolve the current appeal, given the undisputed principle that
employees who involuntarily retire due to coercion or misrepresentation by the
employer are not barred from challenging their termination. In such cases, an
involuntary retiree may well have accepted retirement benefits before
demonstrating a right to reinstatement.
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For the foregoing reasons, we vacate the judgment and remand the case to
the Superior Court for further remand to OEA.
So ordered.