Money v. Cullinane

KERN, Associate Judge:

Petitioners are District of Columbia police officers who unsuccessfully applied to the Metropolitan Police Department (Department) to be placed on administrative leave rather than expend their sick leave for the periods of time they were absent from duty because of illness or injury. 5 U.S.C. § 6324(a) (Supp. V 1975), provides that when District police cannot perform their duties as a result of service-connected injury or illness they are entitled to administrative leave. They have now filed in this court petitions for review of the Department’s rulings denying them administrative leave; the Department has responded that this court is without jurisdiction to review their petitions.

Congress has provided the Department shall act to place its officers on administrative leave “under the regulations prescribed by the District of Columbia Council.” 5 U.S.C. § 6324(b)(1) (1971), as amended (Supp. V 1975). Since the Council has prescribed no regulations, we necessarily turn to the regulations issued by their predecessors, the Commissioners of the District of Columbia, which provide that all absences from duty “must be approved by the Chief” and “he may redelegate to senior *999officials . . . the powers [so] . delegated.” Board of Commissioners of the District of Columbia, Order No. 65-528 para. 2, 5 (April 15, 1965). The Chief has established by general order a procedure for the Department to determine requests for administrative leave when officers are absent because of illness or injury they have purportedly suffered in the line of duty. The Chief’s delegate, who is assigned to the Police and Fire Clinic, reviews (1) the official report of the incident resulting in the officer’s absence from duty, (2) medical reports and records concerning the absent officer, and (3) the officer’s Departmental personnel record. There is a second-stage of this administrative process; if the officer chooses, he may himself review the material considered by the inspector and then (a) submit additional material and (b) meet in the company of his attorney with the inspector. The inspector is then required to render in writing his decision on the leave request.

Petitioners argue that the Department’s decisions on these applications for administrative leave are directly reviewable by this court and the procedure followed by the Department does not comply with the District of Columbia Administrative Procedure Act, D.C.Code 1977 Supp., § 1-1501 et seq. We have jurisdiction to review, however, only if the Department’s proceeding culminating in the grant or denial of their leave requests is a “contested case” within the meaning of the DCAPA and we note that Section 1502(8) provides that a contested case “shall not include . . . (B) the selection or tenure of an officer or employee of the District.”

This court recently discussed the scope of the “selection or tenure” clause of the DCA-PA and found:

[T]he Congressional purpose to exclude “administrative determinations traditionally nonsusceptible to application of the process of adjudication” from the definition of a “contested case.” If every decision to transfer a government employee from one position to another were subject to the “contested case” procedural requirements and direct review by this court, government agencies would be unable to make the daily employment decisions which are an inherent part of efficient administration. The philosophy underlying the employee “selection or tenure” exclusion was summarized by Professor Davis when he asked:
Do we want courts inquiring into personnel management — salary increases, sick leave, office hours, allocation of parking spaces in the basement of the agency’s building? [4 K. Davis, Administrative Law Treatise § 28.16, at 82 (1958).]
[Wells v. District of Columbia Board of Education, D.C.App., 386 A.2d 703, 706 (1978).]

While this court in Wells was dealing specifically with the position transfer of an employee of the executive branch, we are persuaded that leave requests in the instant case are also facets of personnel management and encompassed within the statutory term “selection or tenure.”

Our decision in Johnson v. Board of Appeals and Review, D.C.App., 282 A.2d 566 (1971), does not require us to hold otherwise; there, two former District employees (police officers) challenged a ruling by the Police and Firemen’s Board which fixed the disability allowance to be paid them in retirement. We properly rejected the District’s argument that this court lacked jurisdiction to review such ruling on the ground that the statutory term “tenure” shall be interpreted to include “ ‘tenure of retirement’, that is, the ‘manner or means of holding’ retirement rights.” Id. at 568. The agency in Johnson was determining retired employees’ pensions; here, the Department was deciding employees’ leave requests.1

*1000In sum, the Department’s determination that petitioners were not entitled to administrative leave is a decision of day-to-day-government personnel management which Congress has expressly deemed not a contested case and hence not subject to this court’s review.2

The petitions for review are dismissed since we lack jurisdiction to entertain them.

So ordered.

. It should be noted parenthetically that any District law enforcement officer who, as a result of illness or injury, is ultimately retired on disability and at that time urges his disability was service-connected, receives a complete de novo hearing before the Retirement Board on the cause of the disability. Any prior determination by the inspector on an administrative *1000leave request by that officer would have no effect on the Board’s subsequent decision when the same officer sought disability retirement.

. Our comment in Wells v. D. C. Bd. of Ed., supra at 706, seems also applicable here:

We hold that the exclusion of employee “selection or tenure” matters from the definition of a “contested case” encompasses personnel decisions transferring employees within the agency. This holding does not mean that all such decisions are unreviewable. It does mean, however, that:
individuals considering themselves aggrieved, in a judicially cognizable sense, always have access to the trial court for review in an original proceeding (e. g., prohibitory injunction, mandatory injunction and declaratory judgment). [Dupont Circle Citizen’s Ass’n v. District of Columbia Zoning Commission, D.C.App., 343 A.2d 296, 308 (1975) (en banc) (Gallagher, J., concurring) (footnote omitted).]