concurring:
As I read appellant’s complaint in the trial court (Record at 3), and understand his argument to this court (Appellant’s Brief at 4-6), he is seeking a judicial declaration that on the day the jury acquitted him of the criminal charge against him, upon which the Chief of Police had relied to suspend him without pay on two prior occasions, the Chief was obliged to return the pay and other benefits withheld during his periods of suspension.1
The operative, statute, D.C.Code 1973, § 4-121, permits the Chief, as delegate of the Mayor, to suspend without pay “any officer ... for any offense against the laws of the United States ... whether before or after conviction thereof in any court....”
Appellant’s theory seems to be that the use of the terms “conviction” and “any offense against the laws of the United States” in that statute connotes a Congressional intent that whenever a court ultimately declines to convict an officer of a criminal charge against him, then the justification for any earlier period of suspension ceases and the Chief is required to return the pay and other benefits withheld during the period of time the officer had been suspended.
There may well be merit in appellant’s contention concerning Section 121 and the impact of the acquittal upon his suspensions without pay. However, the record reflects that appellant failed to present this contention for the appropriate administrative review either when the trial court twice dismissed the relevant charge and the chief reinstated him on the police force without return of the withheld pay or later when the jury entered its verdict of not guilty of the charge.
Accordingly, I agree the appeal must be dismissed since appellant’s action in seeking judicial relief comes before he has exhausted his administrative remedies.
. It is not clear to me that appellant specifically invoked the provisions of the so-called Bay Pay Act, 5 U.S.C. § 5596, in bringing his action. Indeed, he makes a point of distinguishing his cause of action from that brought by federal employees challenging suspension by the Civil Service Commission pending the outcome of a criminal prosecution. (Appellant’s Brief at 6.)