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. 12-CV-195

                    JOHNNIE P. BATTLE, ET AL., APPELLANTS,

                                     V.

                       DISTRICT OF COLUMBIA, APPELLEE.

                        Appeal from the Superior Court
                         of the District of Columbia
                               (CAB-9695-10)

                       (Hon. Michael Rankin, Trial Judge)

(Argued June 4, 2013                                Decided December 12, 2013)

      Donald M. Temple for appellants.

      Richard S. Love, Senior Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for
appellee.

      Before GLICKMAN and MCLEESE, Associate Judges, and REID, Senior Judge.

      Opinion for the court by Associate Judge MCLEESE.

      Dissenting opinion by Senior Judge REID at page 12.

      MCLEESE, Associate Judge: Plaintiffs are former public-school teachers

who filed a lawsuit against the District of Columbia, claiming entitlement to
                                          2

retroactive pay raises and other relief. The trial court dismissed their complaint for

lack of subject-matter jurisdiction, and plaintiffs appealed. We affirm.



                                          I.



      Plaintiffs retired from the District of Columbia Public Schools (“DCPS”)

between October 1, 2007, and June 2, 2010. On June 2, 2010, the Washington

Teachers Union and DCPS entered into a new collective-bargaining agreement.

The new agreement provided retroactive pay raises reaching back to October 1,

2007, to “all [Washington Teachers Union] bargaining unit members who were

separated or retired as a result of the November 2009 Reduction-in-Force.”

Plaintiffs were not affected by the November 2009 reduction-in-force.



      Plaintiffs assert that DCPS violated the District of Columbia Comprehensive

Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01 et seq. (2012 Repl.), by

giving retroactive pay raises to some, but not all, former teachers for work

performed between October 1, 2007, and June 2, 2010. Count I of the complaint

alleges that the pay raises violated provisions of the CMPA that plaintiffs interpret

as requiring that District employees receive “equal pay for equal work.” D.C.
                                         3

Code §§ 1-611.03 (a)(1), 1-611.11 (d), 1-617.17 (a) (2012 Repl.).1 Count II alleges

that the pay raises violated a provision of the CMPA providing that labor unions

“shall be responsible for representing the interests of all [employees in the unit

they represent] without discrimination and without regard to membership in the

labor organization.” D.C. Code § 1-617.11 (a) (2012 Repl.).



                                        II.



      The trial court determined that plaintiffs‟ complaint alleges unfair labor

practices and that the District of Columbia Public Employee Relations Board

(“PERB”) therefore has exclusive primary jurisdiction over the case.         In this

appeal, the plaintiffs have not disputed the trial court‟s characterization of their

claims as alleging unfair labor practices. We therefore assume, but do not decide,

that the alleged statutory violations would constitute unfair labor practices under




      1
         Section 1-611.03 (a)(1) states that “[c]ompensation shall be competitive
with that provided to other public sector employees having comparable duties,
responsibilities, qualifications, and working conditions by occupational groups.”
Section 1-611.11 (d) states that § 1-611.03 (a)(1) applies to employees in the
Educational Service. Section 1-617.17 (a) states that § 1-611.03 applies to
collectively bargained salaries.
                                           4

the CMPA.2



      Plaintiffs have asserted only one theory as to why the Superior Court has

jurisdiction over their claims: that the CMPA does not give the PERB jurisdiction

over this action because the plaintiffs are retired employees and “the cause of

action arose after their retirement.” We disagree with that theory for several

reasons.



      2
          It is not clear that Count I actually does allege an unfair labor practice,
because Count I does not allege that DCPS committed any of the unfair labor
practices listed in the CMPA. See D.C. Code § 1-617.04 (Repl. 2012) (listing
unfair labor practices prohibited by CMPA); Frazer v. Board of Trs. for Univ. of
District of Columbia, No. 11-U-46, 2011 WL 7807219, at *2 (PERB Nov. 30,
2011) (§ 1-617.04 provides “an exhaustive list” of bases for unfair-labor-practice
complaints before PERB); cf. Fraternal Order of Police v. District of Columbia
Metro. Police Dep’t, No. 91-U-18, 1992 WL 12601382, at *2 n.1 (PERB Jan. 10,
1992) (PERB lacks jurisdiction over claimed violation of disciplinary grievance
procedures because claimed violation “does not give rise to an unfair labor
practice”). The plaintiffs, however, have not asserted on appeal a jurisdictional
argument based on the possibility that Count I does not allege an unfair labor
practice. We will not attempt to generate such a theory sua sponte. See, e.g.,
Travelers Prop. Cas. v. Good, 689 F.3d 714, 718 (7th Cir. 2012) (“The court need
not bend over backwards to construct alternative theories to persuade itself that
subject matter jurisdiction exists . . . .”); Eisler v. Stritzler, 535 F.2d 148, 152 (1st
Cir. 1976) (“we normally would be disinclined to note, sua sponte on appeal,
alternative grounds for the district court‟s jurisdiction”); Franson ex rel. v. Micelli,
666 N.E.2d 1188, 1190 (Ill. 1996) (“If some alternative basis existed for invoking
the appellate court‟s jurisdiction, Micelli was obliged to demonstrate it. He has not
done so.”); see generally, e.g., Speights v. 800 Water St., Inc., 4 A.3d 471, 476
(D.C. 2010) (“points not raised on appeal are deemed waived”).
                                        5

      First, this court has already held that the CMPA gives the PERB authority

over unfair-labor-practice claims. See Hawkins v. Hall, 537 A.2d 571, 574-75

(D.C. 1988). Plaintiffs concede, moreover, that the PERB‟s authority covers some

claims of former employees. See, e.g., Cooper v. AFSCME, Local 1033, 656 A.2d

1141, 1142-43 (D.C. 1995) (PERB had exclusive jurisdiction over former

employee‟s claim that union breached duty of fair representation).     Although

plaintiffs argue that the PERB does not have authority over former employees‟

claims if the alleged violation occurred after the employees‟ separation, our

opinion in Hawkins suggests no such limitation. 537 A.2d at 574-75 (“[The

PERB] has primary jurisdiction to determine whether a particular act or omission

constitutes an unfair labor practice under the CMPA.”).



      Second, the language of the CMPA does not support a limitation of the

PERB‟s jurisdiction based on whether the alleged violation occurred while the

claimant was a District employee. The CMPA authorizes the PERB to “[d]ecide

whether unfair labor practices have been committed and issue an appropriate

remedial order.” D.C. Code § 1-605.02 (3) (2012 Repl.). Such unfair labor

practices are defined in D.C. Code § 1-617.04 (2012 Repl.). Neither provision

restricts the PERB‟s jurisdiction based on whether the claimant was a District

employee at the time of the alleged violation. In fact, one of the unfair-labor-
                                         6

practice provisions expressly applies to non-employees.           See D.C. Code

§ 1-617.04 (a)(3) (prohibiting the District of Columbia from “[d]iscriminating in

regard to hiring . . . to encourage or discourage membership in any labor

organization”). In addition, the CMPA provision that authorizes “[a]ny person

aggrieved by a final order of the [PERB]” to seek judicial review further supports a

broader interpretation of the PERB‟s jurisdiction. D.C. Code § 1-617.13 (c) (2012

Repl.).



      Third, the PERB has previously asserted jurisdiction over claims in which

the alleged violation occurred when the claimant was no longer a District

employee. Teamsters Local Union 639 v. District of Columbia Pub. Schs., No. 11-

U-10, 2011 WL 8197549 (PERB Feb. 23, 2011) (resolving claim on behalf of

former public-school employees that District of Columbia had violated their rights,

where alleged violation occurred after employees‟ separation); Doctors Council v.

District of Columbia Dep’t of Youth Rehab. Servs., No. 07-U-19, 2009 WL

8474155 (PERB Sept. 30, 2009) (resolving claim of retired faculty member where

alleged contract violation occurred after retirement); cf. Stockard v. Moss, 706

A.2d 561, 565 (D.C. 1997) (CMPA preempts Superior Court jurisdiction over

former employee‟s slander claim, where allegedly slanderous statement occurred

after employee‟s discharge).
                                        7



      Finally, we see no logical reason for the PERB‟s jurisdiction to turn on

whether the alleged unfair labor practice occurred while the claimant was a public

employee, as long as the alleged violation arose out of the claimant‟s employment

relationship with the District of Columbia.3 The CMPA was enacted to replace the

District of Columbia‟s disjointed, decentralized personnel policies with a uniform,

comprehensive system. See District of Columbia v. Thompson, 593 A.2d 621, 632-

33 (D.C. 1991). In keeping with this theme, the CMPA contains chapters that

govern, among other things, the hiring process, personnel matters, and retirement

benefits. See, e.g., D.C. Code §§ 1-607.01 to 1-607.08 (2012 Repl.) (addressing

equal employment opportunity and employee selection); D.C. Code §§ 1-611.01 to

1-611.21 (2012 Repl.) (addressing employee classification and compensation);

D.C. Code §§ 1-621.01 to 1-623.47 (2012 Repl.) (addressing employee benefits);

D.C. Code §§ 1-626.01 to 1-626.14 (2012 Repl.) (addressing employee

retirement). Given the CMPA‟s objective of uniformity, it would be incongruous

to interpret the CMPA as creating two separate systems of adjudication for the

claims of unfair labor practices, with some unfair-labor-practice claims being


      3
         Plaintiffs‟ claims plainly arise out of their employment relationship with
the District of Columbia. The gravamen of their complaint is that they were
compensated inadequately for work they performed while they were employed
with DCPS.
                                         8

addressed in the first instance by the PERB and others being addressed in the first

instance by the Superior Court. Cf. Hawkins, 537 A.2d at 573 (noting advantages

of having PERB, as expert agency, resolve unfair-labor-practice claims in first

instance).



      Plaintiffs raise two main counterarguments. We do not find those arguments

persuasive.



      First, plaintiffs attach great importance to the CMPA‟s definition of

“employee,” asserting that the CMPA refers repeatedly to employees but does not

refer to former employees. We note, however, that numerous provisions of the

CMPA unambiguously apply to former employees. See, e.g., D.C. Code § 1-

629.03 (2012 Repl.) (establishing procedure for collecting debts owed to District of

Columbia by both current and former employees); D.C. Code § 1-626.03 (“The

District shall provide retirement benefits to all employees . . . .”); D.C. Code § 1-

611.06 (providing retroactive pay for retired or deceased employees); D.C. Code

§ 1-626.14 (“a civil action may be brought by a [beneficiary of the District of

Columbia retirement program] . . . to enjoin any act or practice that violates any

provision of this chapter or the terms of the retirement program”). The numerous

references in the CMPA to the rights of former employees provide further support
                                         9

for the conclusion that the PERB has jurisdiction over unfair-labor-practice

complaints brought by former employees.



      Second, plaintiffs rely on the contrasting definitions of „employee‟ in the

CMPA and the Whistleblower Protection Amendment Act (“WPAA”). Compare

D.C. Code § 1-603.01 (7) (2012 Repl.) (CMPA defines „employee‟ as “an

individual who performs a function of the District government and who receives

compensation for the performance of such services”), with D.C. Code § 1-

615.52 (a)(3) (2012 Repl.) (WPAA defines „employee‟ as “any person who is a

former or current District employee, or an applicant for employment by the District

government . . .”). The definition of „employee‟ in the WPAA sheds no significant

light, however, on the proper interpretation of the scope of the PERB‟s jurisdiction

under the CMPA, which addresses a different issue and was enacted twenty years

before the enactment of the WPAA.4 See, e.g., Mattox v. Federal Trade Comm’n,

752 F.2d 116, 121-22 (5th Cir. 1985) (declining to adopt uniform interpretation of

two provisions because, among other reasons, provisions “were enacted sixty-two

years apart”).


      4
         See Comprehensive Merit Personnel Act, D.C. Law 2-139, § 301, 25 D.C.
Reg. 5740, 5770 (1998) (approved on November 22, 1978); Whistleblower
Protection Amendment Act of 1998, D.C. Law 12-160, § 1552 (a)(3), 45 D.C. Reg.
5147, 5148-49, 5168 (1998) (approved on June 23, 1998).
                                          10



      We therefore hold that the PERB has exclusive jurisdiction over claims of

retired District of Columbia employees alleging an unfair labor practice under § 1-

617.04 that arises out of the claimants‟ employment relationship with the District

of Columbia. Accordingly, plaintiffs‟ jurisdictional argument lacks merit.



                                         III.



      Plaintiffs request, in the alternative, that we remand to the Superior Court

with instructions to remand in turn to the PERB. They contend that remand is

appropriate under Grillo v. District of Columbia, because there is a “substantial

question” as to whether the PERB has jurisdiction over claims of former

employees arising after the end of the employment relationship. 731 A.2d 384,

386-87 (D.C. 1999) (remanding to Superior Court with instructions to remand to

Office of Employee Appeals to afford agency “an opportunity to construe the

statute that it is charged with administering . . . .” because case raised “substantial

question” as to jurisdiction of OEA). For the reasons previously stated, however,

we conclude that plaintiffs have not raised a substantial question on this topic. We

also note that plaintiffs did not ask the trial court to remand to the PERB under

Grillo. Finally, the rationale of Grillo is not applicable here, because the PERB
                                         11

has already asserted jurisdiction over claims of former employees that arose after

the employment relationship ended. See, e.g., Teamsters Local 639, 2011 WL

8197549; Doctors Council, 2009 WL 8474155.              Under these circumstances,

remand is not warranted.5



      The judgment of the trial court is therefore



                                 Affirmed.

      5
          As previously noted, see supra pp. 3-4 & n.2, appellants have not raised
on appeal the question whether Count I is properly understood as an unfair-labor-
practice claim. If that question had been properly raised, it might well have been
appropriately decided in the first instance by the PERB. We decline, however, to
raise the question sua sponte and to direct that the question be decided in the first
instance by the PERB. First, as previously noted, see supra p.4 n.2, this court
generally does not consider questions not properly raised and briefed on appeal.
Second, even if this court were otherwise inclined to overlook appellants‟ failure to
raise the question properly, appellants would face serious procedural obstacles if
they sought to obtain administrative relief at this juncture. Specifically, appellants
failed to exhaust their administrative remedies in the PERB before filing suit, and
the time for seeking administrative relief appears to have long since passed. See,
e.g., District of Columbia Metro. Police Dep’t v. Fraternal Order of Police/Metro.
Police Dep’t Labor Comm., 997 A.2d 65, 80-83 (D.C. 2010) (discussing
exhaustion requirement); 6-B DCMR § 520.4 (2013) (unfair-labor-practice claims
must be presented to PERB with 120 days); 6-B DCMR § 538.1 (2013) (challenges
to arbitral awards must be brought before PERB within 20 days); D.C. Code §§ 1-
616.52 (a) (certain grievances must be presented to Office of Employee Appeals
within 10 days), 1-616.53 (b) (certain grievances must be presented within 45
days). This court has in extraordinary circumstances excused compliance with
exhaustion and timeliness requirements. See, e.g., District of Columbia Metro.
Police Dep’t, 997 A.2d at 82 (citing cases); Grillo, 731 A.2d at 387 n.5. We do
not, however, see such extraordinary circumstances in this case.
                                          12

      REID, Senior Judge, dissenting: Given the nature of this case and this

court‟s precedents, I am unable to join the majority opinion. Appellants, retired

public school teachers, have presented the District of Columbia Courts with a

rather complex case, in which there is a threshold jurisdictional issue.



      The District of Columbia filed a motion under Super. Ct. Civ. R. 12 (b)(1)

and (6) to dismiss appellants‟ two-count complaint. In response, the trial court

dismissed the complaint under R. 12 (b)(1), on the ground that “Plaintiffs‟ claims

in each count are fairly and accurately described as an unfair labor practice and

thus are preempted by the CMPA [Comprehensive Merit Personnel Act].”



      The majority opinion states that “the CMPA gives the PERB authority over

unfair-labor-practice claims.”    It would appear, then, that they assume that

plaintiffs allege an unfair labor practice. The majority conclude that plaintiffs are

still “employees” under CMPA, that their claims arise out of their employment

relationship with the District, and consequently, the PERB has exclusive

jurisdiction over plaintiffs‟ claims. Nevertheless, in footnote 2, the majority assert:

“It is not clear that Count I [of plaintiffs‟ complaint] actually does allege an unfair

labor practice, because Count I does not allege that DCPS committed any of the

unfair labor practices listed in the CMPA.”
                                          13



      The majority also state in footnote 2 that: “The plaintiffs . . . have not

asserted on appeal a jurisdictional argument based on the possibility that Count I

does not allege an unfair labor practice.” In footnote 5, the majority insist that

appellants have not raised on appeal whether Count I “is properly understood as an

unfair-labor-practice claim,” and that “[i]f that question had been properly raised, it

might well have been appropriately decided in the first instance by PERB.”



      In my view the Count I/unfair labor practice claim is properly before us, not

only because (1) appellants challenge on appeal the trial court‟s dismissal of their

claims under Rule 12 (b)(1) on the ground, as the trial court put it, that:

“Plaintiffs‟ claims in each count are fairly and accurately described as an unfair

labor practice and thus are preempted by the CMPA,” but also because (2) the

Count I/unfair practice issue is subsumed under appellants‟ claim that as teachers

who retired when no collective bargaining agreement was in effect they are not

“employees” within the meaning of CMPA.



      I cannot agree with the majority statement and resolution of the

jurisdictional issue, nor with their affirmance of the trial court‟s dismissal of

plaintiffs‟ complaint on the skimpy Rule 12 (b)(1) record before us. For the
                                        14

reasons stated below, I believe that the Superior Court does have jurisdiction over

plaintiffs‟ complaint. But even if the Superior Court does not have jurisdiction, as

the majority hold, it is not clear to me whether the Public Employee Relations

Board (“PERB”), or the Office of Employee Appeals (“OEA”) would have

jurisdiction over plaintiffs‟ complaint; but the question of whether PERB or OEA

would have jurisdiction is an issue that, under our case law, should be resolved in

the first instance by those agencies.



      Plaintiffs‟ complaint, which seeks declaratory relief, and on which the Rule

12 (b)(1) dismissal is based, does not mention D.C. Code § 1-617.04 pertaining to

unfair labor practices. But, the majority read into plaintiffs‟ complaint the unfair

labor practices statute, without a sound basis for doing so at this stage of the

litigation. Count I of the complaint focuses on § 1-611.11, found in Title XI of the

CMPA, which covers “classification and compensation policies and procedures for

educational employees.” The complaint also references D.C. Code § 1-611.03

which addresses “compensation policy.”         Moreover, to the extent that the

complaint must be interpreted within the context of Title XVII of the CMPA,

governing “labor-management relations,” the complaint specifically invokes D.C.

Code § 1-617.17, “collective bargaining concerning compensation,” and does not

invoke § 1-617.04, unfair labor practices. Count I of the complaint also explicitly
                                         15

challenges the District‟s Attorney General‟s June 18, 2010, interpretation of D.C.

Code § 1-611.11 as “merely a classification and salary review process” having

“little or nothing to do with salary increases consequent to a [collective bargaining

agreement].” The gravamen of Count I of plaintiffs‟ complaint centers on the

District‟s compensation policies, specifically, the alleged policy that “similarly-

situated retired employees shall receive equal pay increases.” As the complaint

also states: “Subject to Title XI [of CMPA], Defendant [that is, the District of

Columbia] has a duty to implement compensation systems negotiated under Title

XVII in a manner that is consistent with the principle of equal pay for equal work,

also mandated by D.C. Code § 1-611.03.”            Consequently, plaintiffs seek a

declaratory judgment as to whether the District‟s policy of granting a retroactive

pay increase to teachers who retired because of the RIF, but not those [involved in

this lawsuit] who retired outside of a RIF context, violates the District‟s

compensation policies.



      Not only do plaintiffs challenge what appears to be an official opinion of the

District‟s Attorney General regarding a CMPA statutory provision, but they also

present an issue of first impression, in my view, that is not controlled by our prior

precedents, that is, are District of Columbia teachers “employees” within the

meaning of the CMPA where they (1) retired when no collective bargaining
                                        16

agreement was in effect, (2) continue to pay dues to the union which has

represented teachers, and (3) challenge their exclusion from retroactive pay, solely

because their employment was not terminated by reduction-in-force procedures? I

do not believe that any of our past cases resolve the jurisdictional and the merit

issues presented by this case.



      However, Feaster v. Vance, 832 A.2d 1277 (D.C. 2003) indicates that where

plaintiffs invoke a statutory provision independent of the unfair labor practices

provision, the Superior Court, “a court of general jurisdiction „with the power to

adjudicate any civil action at law or in equity involving local law,‟ has

jurisdiction.” Id. at 1283. Here, plaintiffs invoke D.C. Code § 1-611.03, in Title

XI of the CMPA, concerning compensation policy, and arguably, under the general

principle reflected in Feaster, the Superior Court has jurisdiction over plaintiffs‟

complaint.



      Moreover, the cases cited by the majority for the proposition that PERB has

authority over unfair labor practice claims are not applicable to the instant case

where the complaint does not cite or rely on D.C. Code § 1-617.04. Hawkins v.

Hall, 537 A.2d 571, 574-75 (D.C. 1988), involved an issue of union dues and the

complaint in that case, unlike the complaint here, alleged an unfair labor practice.
                                          17

Cooper v. AFSCME, 656 A.2d 1141 (D.C. 1995), concerned a complaint for the

breach of the duty of fair representation of an employee by a union, whereas the

instant case pertains to the District‟s implementation of a compensation policy. In

addition, the majority try to fit the instant case into two non-appellate court cases

where “PERB has previously asserted jurisdiction over claims in which the alleged

violation occurred when the claimant was no longer a District employee.” But

those cases are quite different and do not control the outcome of this case. The

complaints in both non-appellate court PERB cases, one involving accrued sick

leave and the other, the implementation of a grievance settlement agreement

regarding annual leave and retirement, specifically invoked the unfair labor

practices statute. The third cited case, Stockard v. Moss, 706 A.2d 561 (D.C.

1997), related to a slander claim by a former employee, not a challenge to the

District‟s implementation of a compensation policy. Simply put, then, none of the

cases on which the majority opinion relies address the rather complex jurisdictional

and merit issues presented by the plaintiffs in this case.



      While I believe that the Superior Court has jurisdiction over plaintiffs‟

complaint, even if there is doubt as to whether the Superior Court or one of the

specialized agencies mentioned in the CMPA, has jurisdiction (PERB if the case is

viewed as challenging the District‟s compensation policy under Title XVII of the
                                         18

CMPA, or OEA if the case is viewed as a challenge to the compensation policy

under Title XI of the CMPA), the proper course would be a remand to the trial

court, with instructions to hold the case in abeyance and to transmit the

jurisdictional issue either to PERB or OEA for resolution of the jurisdictional issue

in the first instance. See Grillo v. District of Columbia, 731 A.2d 384, 387 (D.C.

199) (citing Taggart-Wilson v. District of Columbia, 675 A.2d 28, 29 (D.C. 1996)).

The decision of the majority to resolve the jurisdictional issue itself, by declaring

that PERB has exclusive jurisdiction in this case, runs counter to this court‟s

adherence to a longstanding and fundamental principle, “we cannot impose our

own construction [of an agency‟s statute], but rather defer to the agency‟s

interpretation.” Dupree v. District of Columbia Office of Emp. Appeals, 36 A.3d

826, 834 (D.C. 2011) (citation omitted). We also emphasized in Grillo, supra, that

“the trial judge‟s dismissal of the action was premature, for the suit may proceed if

the OEA concludes that it lacks jurisdiction.” Id. at 387. Therefore, as I read our

cases, even if the majority remain convinced that PERB had jurisdiction, the

proper course is to vacate the trial court‟s order and to remand the case to the trial

court, with instructions to stay the proceedings and to remand the case to PERB

“for a determination as to that agency‟s jurisdiction.” Id. Therefore, I respectfully

dissent.
