                           District of Columbia
                            Court of Appeals
No. 14-AA-0123
                                                               JAN - 5 2017
SHEILA FARRELL,
                                 Petitioner,

          v.

DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS RETIREMENT
      AND RELIEF BOARD,
                       Respondent.


                     On Petition for Review of an Order of the
     District of Columbia Police and Firefighters Retirement and Relief Board

      BEFORE: GLICKMAN and MCLEESE, Associate Judges; and STEADMAN*,
Senior Judge.

                                 JUDGMENT

            This case came to be heard on the administrative record, a certified
copy of the agency hearing transcript 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 current petition is dismissed for
lack of jurisdiction.

                                 For the Court:




Dated: January 5, 2017.

Opinion by Associate Judge Roy W. McLeese.
      *
         Senior Judge Pryor was originally assigned to this matter but subsequently
recused himself. Senior Judge Steadman replaced Senior Judge Pryor.
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
                                                                  1/5/17
                                No. 14-AA-0123

                          SHEILA FARRELL, PETITIONER,

                                        V.

   DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS RETIREMENT AND RELIEF
                          BOARD, RESPONDENT.

                     Petition for Review of an Order of the
    District of Columbia Police and Firefighters Retirement and Relief Board

(Argued April 2, 2015                                   Decided January 5, 2017)

       Kierstan L. Carlson, with whom Alan M. Freeman was on the brief, for
petitioner.

       Carl J. Schifferle, Assistant Attorney General, with whom Eugene A. Adams,
Interim Attorney General for the District of Columbia at the time the brief was
filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor
General, were on the brief, for respondent.

      Before GLICKMAN and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.*

      MCLEESE, Associate Judge:      Petitioner Sheila Farrell filed a claim for

survivor benefits with respondent District of Columbia Police and Firefighters



      *
        Senior Judge Pryor was originally assigned to this matter but subsequently
recused himself. Senior Judge Steadman replaced Senior Judge Pryor.
                                          2

Retirement and Relief Board.2 The Board denied Ms. Farrell’s claim, and Ms.

Farrell seeks review of that ruling in this court.       We conclude that we lack

jurisdiction, because the Board’s ruling is not subject to direct review in this court.

We therefore dismiss the petition.



                                          I.



      The following circumstances appear to be undisputed.           Ms. Farrell was

previously married to Joseph Novak, a member of the United States Secret Service.

Mr. Novak was eligible for retirement benefits administered by the Board. Ms.

Farrell and Mr. Novak divorced in October 1989, having agreed that Ms. Farrell

would receive the survivor benefits associated with Mr. Novak’s retirement plan.

That agreement was subsequently incorporated into a divorce decree. Mr. Novak

did not, however, formally designate Ms. Farrell as a beneficiary under his

retirement plan, and neither Mr. Novak nor Ms. Farrell submitted the divorce

decree to the administrator of the retirement plan.




      2
          There appears to be some inconsistency about whether an apostrophe
should appear after the word “Firefighters” in the Board’s name. Except when
citing prior decisions of this court, we omit an apostrophe, in conformity with the
Board’s statutory title. D.C. Code § 5-722 (a)(1) (2016 Supp.).
                                            3

      Mr. Novak later married Jane Novak. Following the death of Mr. Novak in

July 2012, the Board awarded his survivor annuity to Ms. Novak as the surviving

spouse. Ms. Farrell applied for survivor benefits in April 2013. The District of

Columbia Department of Human Resources denied Ms. Farrell’s application,

stating that Ms. Farrell had not presented the divorce decree to the administrator of

the retirement plan until 2013, and that the survivorship benefit under the plan had

vested in Ms. Novak as Mr. Novak’s legal spouse at the time of his death. The

Department of Human Resources also stated that the divorce decree did not

comply with certain requirements of the retirement plan and of the Spouse Equity

Act of 1988, D.C. Code § 1-529.01 et seq. (2014 Repl.).



      Ms. Farrell challenged the denial in August 2013 by petitioning the Board.

The Board issued its final decision in December 2013, stating without explanation

that it found no reason to reverse its decision awarding benefits to Ms. Novak. Ms.

Farrell filed a petition for review in this court.



                                           II.



      We first address whether this court has jurisdiction to consider the petition.

Under the District of Columbia Administrative Procedure Act, this court has direct
                                          4

jurisdiction to review agency decisions only in a “contested case.” D.C. Code § 2-

510 (a) (2012 Repl.).     A proceeding is a “contested case” if a party to the

proceeding is entitled by law to an “adjudicative, trial-type hearing” to determine

the party’s “legal rights, duties, or privileges.”    J.C. & Assocs. v. District of

Columbia Bd. of Appeals & Review, 778 A.2d 296, 301 (D.C. 2001) (internal

quotation marks omitted). We look to the Constitution, statutes, and regulations to

determine whether a right to an adjudicative, trial-type hearing exists. Id. at 298,

301. It is evident that the Board’s determinations regarding survivor benefits are

adjudicatory in nature, and neither party disputes that point. Ms. Farrell does not

contend that she has a constitutional right to a trial-type hearing, so whether we

have jurisdiction depends on whether the applicable statutes and regulations entitle

non-retiree applicants such as Ms. Farrell to a trial-type hearing.



      The initial brief filed on behalf of the Board took the position that non-

retiree applicants are not entitled to a trial-type hearing. Ms. Farrell argued to the

contrary. After oral argument, we remanded the record for the Board itself to

address that issue. After receiving the Board’s response and supplemental briefs

from the parties, we remanded the record again, for the Board to further address

the issue.   In its August 18, 2016, response, the Board further explained its
                                           5

conclusion that non-retiree applicants are not entitled to a trial-type hearing. The

parties again submitted supplemental briefs in light of the Board’s response.



      Whether an administrative proceeding is a contested case is a question of

law. Mathis v. District of Columbia Hous. Auth., 124 A.3d 1089, 1098 (D.C.

2015). Although we have said that we decide that question de novo, id., in this

case (as we shall explain) the answer to the question turns on the interpretation of

both a statutory provision that the Board administers and the Board’s procedural

regulations. We defer to the Board’s “informed interpretation of the statute it

administers, . . . as long as that interpretation is reasonable and not plainly wrong

or inconsistent with the statute’s legislative purpose.”        Adgerson v. Police &

Firefighters’ Ret. & Relief Bd., 73 A.3d 985, 990 (D.C. 2013) (internal quotation

marks omitted). Similarly, “the court generally defers to an agency’s interpretation

of its own regulations unless that interpretation is plainly erroneous or inconsistent

with the regulations.” Placido v. District of Columbia Dep’t of Emp’t Servs., 92

A.3d 323, 326 (D.C. 2014) (internal quotation marks omitted). We uphold as

reasonable the Board’s conclusion that the applicable statute and regulations do not

entitle applicants for survivor benefits to a trial-type hearing.
                                         6

      The pertinent statutory provision is D.C. Code § 5-721 (a) (2012 Repl.).

Section 5-721 (a) requires that proceedings before the Board “involving the

retirement of any member, or any application for an annuity,” shall be “reduced to

writing.” With respect to other procedural entitlements, however, section 5-721 (a)

focuses more narrowly on retirees. Specifically, section 5-721 (a) provides that

members under consideration for retirement are entitled to “written notice” to

“appear” and “give evidence under oath.” This court has construed section 5-

721 (a) to afford such members the right “to appear and give evidence.” Johnson

v. Board of Appeals & Review, 282 A.2d 566, 568 (D.C. 1971). Relying on those

procedural entitlements, we further held that proceedings before the Board

involving such members are contested cases reviewable directly in this court. Id.

In the present case, the Board reasonably concluded that the statutory right to a

trial-type hearing under section 5-721 (a) does not extend to non-retiree applicants

such as Ms. Farrell.



      In substantial part, the Board’s regulations also reflect distinctions between

the procedural rights afforded to retirees and the procedural rights afforded to non-

retiree applicants. Under 7 DCMR § 2516.1 (2016), an individual appearing “for

retirement consideration shall be given full opportunity to present the testimony

under oath or affirmation, and to produce the witnesses to give testimony under
                                           7

oath or affirmation, as he or she may desire.” In contrast, 7 DCMR § 2517.1

(2016) states that a non-retiree applicant shall “furnish to the Board satisfactory

evidence” of the necessary information to establish eligibility for a survivor

annuity, “[i]n lieu of personally appearing before the Board.” Moreover, the Board

“consider[s] applications” for survivor benefits “from the documented evidence

furnished.” 7 DCMR § 2517.3. These provisions support a conclusion that the

Board’s regulations, like the applicable statute, afford the right to a trial-type

hearing to retirees but not to non-retiree applicants.



      Ms. Farrell argues, however, that other regulations point in the opposite

direction. First, Ms. Farrell relies on 7 DCMR § 2517.5, which allows an applicant

to “personally appear” before the Board if the applicant “expresses a desire to do

so.” The Board interprets section 2517.5 as affording a limited right to appear and

to make a statement before the Board, not as affording the “full panoply of trial-

type procedural rights.” Singleton v. District of Columbia Dep’t of Corr., 596

A.2d 56, 57 (D.C. 1991) (footnote and internal quotation marks omitted). The

breadth of procedural rights encompassed by the term “personally appear” is not

self-evident, but we conclude that the Board’s interpretation is not “plainly

erroneous or inconsistent with the regulations.” Placido, 92 A.3d at 326 (internal

quotation marks omitted).
                                           8



      Second, Ms. Farrell relies on regulations stating that “[a]ll testimony at

hearings before the Board shall be under oath or affirmation,” 7 DCMR § 2509.1

(2016), and that “[e]vidence shall be taken in conformity with [D.C. Code] §§ 1-

1509(b) [now codified at D.C. Code § 2-509 (b) (2016 Supp.)] and 4-533 [now

codified at D.C. Code § 5-721],” 7 DCMR § 2511.1 (2016). The Board reasonably

concluded, however, that these regulations do not grant non-retiree applicants the

right to a trial-type hearing. Section 2509.1 does not by its terms require the Board

to take testimony, but rather requires that if the Board does take testimony, that

testimony must be under oath or affirmation.          Section 2511.1 refers to two

statutory provisions.    As we have already concluded, the second of those

provisions, D.C. Code § 5-721, is reasonably viewed as according a right to a trial-

type hearing to retirees but not to non-retiree applicants. The first provision, D.C.

Code § 2-509 (b), is part of the District of Columbia Administrative Procedure Act

and provides specific procedural rights applicable to contested cases. Section

2511.1 thus can reasonably be understood to mean that (1) in cases involving

retirees, evidence is to be taken as specified both by the part of section 5-721

relating to retirees and by the procedural requirements of section 2-509 (b); and (2)

in cases involving non-retiree applicants, evidence is to be taken as specified by

the part of section 5-721 relating to non-retiree applicants.
                                          9



      Third, Ms. Farrell relies on 7 DCMR § 2529 (2016), which directs all

persons seeking judicial review to petition this court directly. Because review of

agency action directly in this court is permissible only in contested cases, D.C.

Code § 2-510 (a), section 2529 necessarily implies that all of the Board’s cases are

contested cases. And because a case is a contested case only if a party has the right

to a trial-type hearing, J.C. & Assocs., 778 A.2d at 301, section 2529 necessarily

implies that all applicants, including non-retiree applicants, have a right to a trial-

type hearing before the Board. The Board does not dispute that section 2529,

considered in isolation, implies that non-retiree applicants have a right to a trial-

type hearing. Rather, the Board in essence argues that this implication from

section 2529 is inconsistent with a proper understanding of the provisions directly

addressing the procedural rights of non-retiree applicants.       The Board further

argues that this inconsistency is better resolved by treating section 2529 as

reflecting an incorrect understanding of the applicable judicial-review provisions,

rather than by relying on section 2529 to afford non-retiree applicants procedural

rights not contemplated by the directly applicable statute and regulations. We

agree that the Board’s approach reflects a reasonable interpretation of these

provisions considered as a whole. See generally Long Island Care at Home, Ltd. v.

Coke, 551 U.S. 158, 168-71 (2007) (upholding as reasonable agency’s resolution
                                         10

of conflict between two contradictory regulations).            We further accept as

reasonable the Board’s explanation that its failure to contest jurisdiction in prior

cases brought directly to this court by non-retiree applicants reflects a mistaken

understanding of the meaning of “contested case” under the District of Columbia

Administrative Procedure Act. And because they did not squarely address the

jurisdictional issue we decide today, the decisions of this court in those prior cases

do not constitute holdings binding upon us. See Hobson v. District of Columbia,

686 A.2d 194, 198 (D.C. 1996) (“We have recently reiterated that a point of law

merely assumed in an opinion, not discussed, is not authoritative, and that

principles of stare decisis do not apply unless in the decision put forward as

precedent the judicial mind has been applied to and passed upon the precise

question.”) (citation and internal quotation marks omitted).



      Ms. Farrell raises several additional arguments, but they do not persuade us

that the Board’s conclusion is unreasonable. First, Ms. Farrell appears to argue

that proceedings involving non-retiree applicants are contested cases even if non-

retiree applicants have only the rights (1) to notice of any hearing that is held,

(2) to personally appear before the Board, (3) to representation by counsel, (4) to

submit materials for the Board to consider, and (5) to a written decision by the

Board. We disagree. Such limited rights do not rise to the level of the “full
                                         11

panoply of trial-type procedural rights” needed to meet the requirements of a

contested case. Singleton, 596 A.2d at 57 (footnote and internal quotation marks

omitted) (hearing at which prisoner had right to notice, to call witnesses, and to be

represented by counsel was not “contested case,” because of limits on right to

cross-examine contrary witnesses and on prisoner’s access to information relied

upon by agency); see also, e.g., Mathis, 124 A.3d at 1099 (“[A] trial-type hearing

is one that incorporates due-process protections such as representation by counsel,

cross-examination of adverse witnesses, and fact-finding by an impartial

adjudicator. The right to obtain pre-hearing discovery, and to make opening and

closing arguments[,] are other accoutrements of a trial-type hearing.”) (citation,

brackets, and internal quotation marks omitted).



      Second, Ms. Farrell disputes the Board’s view that voluntary retirees do not

have the same procedural rights before the Board as members who are being

involuntarily placed on disability retirement. The Board explicitly stated, however,

that its view on that issue did not alter the Board’s conclusion in the present case,

which involves a non-retiree applicant rather than a retiree. We therefore have no

occasion to express a view about the issue.
                                          12

      Third, Ms. Farrell points out that the Board in this case appears at times to

conflate two distinct issues: whether applicants have a right to a trial-type hearing

and whether such a hearing is mandatory, so that the Board is required to hold a

hearing even if the applicant does not wish to have one. We agree with Ms. Farrell

that those issues are distinct. Moreover, it is not clear to us that the applicable

provisions ever require the Board to conduct a hearing if an applicant does not

wish to have a hearing. We therefore are doubtful about the validity of the Board’s

concern that interpreting the regulations to entitle non-retiree applicants to a trial-

type hearing would require the Board to hold a hearing in every case involving a

non-retiree applicant, even where doing that would be pointless and no one

requests a hearing. We need not further address this issue, however, because we

are confident that the Board’s interpretation of the provisions at issue would be the

same even without consideration of this policy concern. See, e.g., Apartment &

Office Bldg. Ass’n v. Public Serv. Comm’n, 129 A.3d 925, 933 (D.C. 2016)

(“[R]emand [is] not required where remand would be pointless because it is

apparent the agency would reach the same result . . . .”) (brackets and internal

quotation marks omitted).



      Finally, Ms. Farrell asks where she should properly seek review if direct

review is not available in this court. The Board initially implied that Ms. Farrell
                                        13

should properly have sought review in the Superior Court. District of Columbia v.

Sierra Club, 670 A.2d 354, 359 (D.C. 1996) (in general, “any party aggrieved by

an agency’s decision may initiate an appropriate equitable action in the Superior

Court to seek redress”) (brackets and internal quotation marks omitted). In a more

recent submission, the Board indicated that although “[p]resumably judicial review

would be found in the Superior Court,” perhaps review would lie in federal district

court because Mr. Novak was a Secret Service retiree. Given that the contested

decision was made by a District of Columbia entity, rather than a federal entity, we

share the Board’s initial reaction that review would likely lie in Superior Court.

Cf. Brown v. United States, 356 U.S. App. D.C. 61, 327 F.3d 1198 (2003) (federal

lawsuit challenging Treasury Department decision affecting amount of annuity for

retired Secret Service agents receiving annuity under District of Columbia Police

and Firefighters Retirement and Disability Act, D.C. Code § 5-701 et seq. (2012

Repl. & 2016 Supp.)). We express no definitive view on that issue, however,

because the issue has not been adequately briefed before us. We do note, however,

the Board’s acknowledgement that, because the Board’s regulations incorrectly

directed Ms. Farrell to seek review in this court, it would be inappropriate for the

Board to contend that Ms. Farrell is time-barred from seeking relief in the

appropriate forum. Cf. Mathis, 124 A.3d at 1104-06 (where agency incorrectly
                                         14

advised litigant to seek judicial review in Superior Court, time limit for seeking

review in this court was equitably tolled).



      Accordingly, we dismiss the current petition for lack of jurisdiction.



                                              So ordered.
