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                DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 11-CV-937

                    ELLIOTTE PATRICK COLEMAN, APPELLANT,

                                        V.

                        DISTRICT OF COLUMBIA, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CAB-401-11)

                         (Hon. Joan Zeldon, Trial Judge)
(Submitted October 12, 2012                         Decided December 12, 2013)

      Elliotte P. Coleman, pro se, for appellant.
       Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Mary L.
Wilson, Senior Assistant Attorney General, were on the brief for appellee.
      Before OBERLY and MCLEESE, Associate Judges, and STEADMAN, Senior

Judge.

      MCLEESE, Associate Judge: Elliotte Coleman, who unsuccessfully applied

for employment with the District of Columbia, claims that the District failed to

follow applicable statutory and regulatory requirements when it considered his

applications.    We conclude that Mr. Coleman’s suit is foreclosed by the
                                           2

Comprehensive Merit Personnel Act (CMPA), D.C. Code § 1-601.01 et seq. (2012

Repl.).




                                      I.




      For purposes of this appeal we assume the truth of the factual allegations in

Mr. Coleman’s amended complaint. In 2008, Mr. Coleman applied for several

positions announced by the District of Columbia Department of Consumer and

Regulatory Affairs (DCRA). Mr. Coleman was not selected for any of those

positions. According to Mr. Coleman, DCRA acted unlawfully in making its

selection decisions, by among other things “preselect[ing]” candidates and

selecting less-qualified candidates without explanation. In making this claim, Mr.

Coleman relies upon D.C. Code § 1-608.01 (a)(1) (requiring promulgation of

regulations providing for “open competition for initial appointment to the Career

Service”), regulations promulgated pursuant to the CMPA, and the D.C. Personnel

Manual.
                                           3

      Mr. Coleman complained to officials at DCRA, to the District of Columbia

Department of Human Resources, and to the Mayor, but according to Mr. Coleman

they did not take appropriate remedial action.




      Mr. Coleman then brought suit in Superior Court. The District moved to

dismiss the suit, arguing that Mr. Coleman failed to state a claim and failed to

exhaust his administrative remedies.1       The Superior Court dismissed the suit

without prejudice, concluding that Mr. Coleman failed to exhaust his

administrative remedies, by failing to appeal DCRA’s adverse hiring decisions to

the Office of Employee Appeals (OEA). The Superior Court stated that OEA

likely did not have jurisdiction to consider such an appeal, because Mr. Coleman

was an applicant for employment rather than an employee.             See D.C. Code

§ 1-606.03 (a) (permitting appeal to OEA by “employee”).            Nevertheless, the

Superior Court interpreted this court’s decision in Grillo v. District of Columbia,

731 A.2d 384 (1999), to require Mr. Coleman to get a definitive ruling from OEA

on the jurisdictional issue before filing suit in Superior Court.


       1
           Where administrative remedies are available, an aggrieved person
generally must exhaust those remedies before seeking judicial review. See, e.g.,
Barnett v. District of Columbia Dep’t of Emp’t Servs., 491 A.2d 1156, 1160 (D.C.
1985).
                                          4




      Mr. Coleman appealed to this court, but also filed an appeal with OEA

challenging DCRA’s hiring decisions. A Hearing Officer dismissed the appeal to

OEA for lack of jurisdiction, relying on D.C. Code § 1-606.03 (a). Mr. Coleman

apparently did not seek further review of that ruling.




      In this court, Mr. Coleman argues that the Superior Court erred in holding

that he failed to exhaust his administrative remedies. Mr. Coleman also renews his

claim that the District failed to follow applicable statutory and regulatory

provisions in making its hiring decisions. Reversing the position it had taken

before the Superior Court, the District now concedes that Mr. Coleman exhausted

the only administrative remedy available to him, by filing a grievance, and was not

required to appeal the denial of his grievance to OEA.        The District argues,

however, that this court should nevertheless affirm the judgment of the Superior

Court on the alternative ground that Mr. Coleman’s suit is foreclosed by the

CMPA.




      We are not required to treat a party’s concession as determinative of an issue

that the Superior Court resolved in the party’s favor. Cf. Lawrence v. Chater, 516
                                          5

U.S. 163, 170-71 (1996) (Supreme Court “should not mechanically accept any

suggestion from the Solicitor General that a decision rendered in favor of the

Government by a United States Court of Appeals was in error”) (internal quotation

marks omitted).     In the present case, we assume without deciding that Mr.

Coleman was not required to appeal to OEA, and resolve the case on the

alternative ground that Mr. Coleman’s suit is foreclosed by the CMPA.2




                                         II.




      Generally, those who are aggrieved by an unlawful action of the District

government “may initiate an appropriate equitable action in the Superior Court to

seek redress.” District of Columbia v. Sierra Club, 670 A.2d 354, 359 (D.C. 1996)

(internal quotation marks omitted). By statute, however, some actions taken by the

District government or its agencies are reviewable in the first instance by this court

rather than the Superior Court. See, e.g., D.C. Code § 2-510 (a) (2012 Repl.).


       2
           This court has consistently understood the question whether claims are
foreclosed by the CMPA to go to the subject-matter jurisdiction of the Superior
Court. See, e.g., District of Columbia v. American Fed’n of Gov’t Emps., Local
1403, 19 A.3d 764, 774 (D.C. 2011). The question whether Mr. Coleman‟s claims
are foreclosed by the CMPA therefore is properly before us even if the District did
not raise that specific question in the Superior Court. See id. at 771.
                                          6

Although there is a “strong presumption” that agency action will be subject to

judicial review, that presumption can be “rebutted by clear and convincing

evidence of a contrary legislative intent.” Sitcov v. District of Columbia Bar, 885

A.2d 289, 295 (D.C. 2005) (internal quotation marks omitted).3 “Whether . . . a

particular statute precludes judicial review is determined not only from its express

language, but also from the structure of the statutory scheme, its objectives, its

legislative history, and the nature of the administrative action involved.” District

of Columbia v. Thompson, 593 A.2d 621, 632 (D.C. 1991) (on rehearing) (quoting

Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984)). Similarly, “[w]hen

a statute creating new rights and remedies does not expressly exclude common law

remedies or declare new remedies exclusive, we decide whether such remedies

remain available by looking initially at „the purpose of [the statute], the entirety of

its text, and the structure of review that it establishes.‟” Id. (quoting United States

v. Fausto, 484 U.S. 439, 444 (1988)).4


       3
           The Supreme Court has held that the requirement of “clear and
convincing evidence” to rebut the presumption in favor of judicial review is not to
be applied “in the strict evidentiary sense,” and is met “whenever the congressional
intent to preclude judicial review is fairly discernible in the statutory scheme.”
Block v. Community Nutrition Inst., 467 U.S. 340, 350-51 (1984) (internal
quotation marks omitted).
       4
            Foreclosing all judicial review of constitutional claims can raise
additional issues. See generally, e.g., Ridder v. Office of Thrift Supervision, 331
U.S. App. D.C. 94, 99, 146 F.3d 1035, 1040 (1998). Mr. Coleman does not raise
                                                                     ( continued…)
                                         7




      The District argues on appeal that the CMPA forecloses Mr. Coleman‟s suit

challenging the District‟s hiring decisions. We agree.




                                        III.




      The CMPA was enacted in response to perceived shortcomings of the

District’s preexisting personnel system, which the Council of the District of

Columbia described as “disjointed, decentralized,” “in disarray,” and an

“inefficient hodgepodge.” Thompson, 593 A.2d at 632 (quoting D.C. Council,

Report on Bill 2-10 at 24, 26 (July 5, 1978)). The CMPA was intended to replace

that system with a “uniform” and “comprehensive merit personnel system.” Id. at

632-33.   See also D.C. Code § 1-601.02 (a) (purposes of CMPA include to

“[c]reate uniform systems for personnel administration”).




      Although the CMPA focuses primarily on employees, several of its

provisions relate to applicants for employment.             See, e.g., D.C. Code

(…continued)
constitutional claims.
                                           8

§ 1-601.02 (a)(7) (CMPA intended to ensure District government has “means to

recruit [and] select” “effective and responsive work force consistent with merit

principles”); D.C. Code § 1-608.01 (a) (directing Mayor to promulgate regulations

relating to merit selection for positions in career service).




      In addition to its substantive provisions, the CMPA has detailed provisions

addressing administrative and judicial review of agency actions relating to

employment. In its current form, the CMPA provides that certain such actions may

be challenged through a grievance process. D.C. Code § 1-616.52 (a) (reprimand

or suspension of less than ten days may be contested as grievance); D.C. Code

§ 1-616.53 (a) (directing Mayor to issue rules and regulations providing procedures

for prompt handling of grievance “of employees and applicants for employment”).

See also 6-B DCMR §§ 845, 1630.1, 1631.1, 1699 (2013) (outlining circumstances

in which applicants for employment can file grievances).            More serious

employment actions, such as removal, reduction in grade, or suspension for ten

days or more, may instead be appealed to OEA. D.C. Code § 1-606.03 (a); D.C.

Code § 1-616.52 (b).5 The OEA’s determinations are then subject to judicial

review. D.C. Code § 1-606.03 (d).


       5
           Before it was amended by the Omnibus Personnel Reform Amendment
                                                               ( continued…)
                                          9




      The parties now appear to agree about the proper application of the express

provisions of the CMPA:         Mr. Coleman was permitted to file a grievance

challenging at least some aspects of the District’s decisions not to hire him, but the

CMPA does not permit Mr. Coleman to obtain review by OEA of the denial of

such a grievance.6 Moreover, the CMPA does not expressly provide for judicial

review of the denial of such a grievance. The parties disagree, however, about the

further implications of these provisions. The District contends that Mr. Coleman

has no judicial remedy, whereas Mr. Coleman contends that he was free to seek

relief in Superior Court, invoking that court’s general authority to direct agencies

to conform their conduct to the requirements of the law. For the reasons that

follow, we conclude that the strong presumption in favor of judicial review has

been rebutted and that the CMPA forecloses Mr. Coleman’s suit challenging the

District’s decisions not to hire him.

(…continued)
Act, D.C. Law 12-124 (June 10, 1998), the CMPA did not limit the types of
complaints that could be raised through the grievance process, and permitted “any
employee” to obtain review by OEA of final agency determinations, including
denials of grievances. D.C. Code §§ 1-606.2 (a)(2), 1-606.3 (a), 1-606.3 (d)
(1981).
       6
         Mr. Coleman would not be permitted to file a grievance challenging his
“nonselection from among a group of properly ranked and certified candidates.”
6-B DCMR § 845.4 (2013).
                                        10




                                        IV.




      This court has not previously had occasion to decide whether the CMPA

forecloses judicial review of a particular claim arising under the CMPA. The court

has, however, decided numerous cases addressing a related question: whether the

CMPA forecloses employees of the District from filing suit in Superior Court

asserting various causes of action arising out of their employment. This court has

frequently found that such suits are foreclosed by the CMPA, and that such

employees are limited to the administrative and judicial remedies provided by the

CMPA. See, e.g., District of Columbia v. American Fed’n of Gov’t Emps., Local

1403, 19 A.3d 764, 771-74 (D.C. 2011) (CMPA foreclosed labor union’s action in

Superior Court under Arbitration Act to enforce arbitration award against District);

Washington Teachers’ Union, Local #6 v. District of Columbia Pub. Sch., 960

A.2d 1123, 1131-53 (D.C. 2008) (same as to challenge to discharge of school

employees); White v. District of Columbia, 852 A.2d 922, 923-37 (D.C. 2004)

(same as to claim of fraudulent misrepresentation); Stockard v. Moss, 706 A.2d

561, 564-67 (D.C. 1997) (same as to claim of slander); District of Columbia v.
                                         11

Thompson, 593 A.2d 621, 625-36 (D.C. 1991) (on rehearing) (same as to claim of

defamation and claim of intentional infliction of emotional distress).7




      This court’s previous decisions addressing whether the CMPA preempts

other common-law or statutory claims do not directly resolve the issue currently

before the court, for two principal reasons. First, in our previous decisions, the

parties agreed that judicial review was available under the CMPA, whereas in this

case the District argues that Mr. Coleman’s claim is not subject to judicial review

at all. Second, our prior cases involved the question whether the CMPA preempted

a claim that arose from a separate source of substantive law, whereas in this case

Mr. Coleman’s claim arises under the CMPA itself.




       7
           The CMPA does not foreclose claims arising under the District of
Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq. (2012 Repl.), as well
as claims that are “pendent” thereto. See King v. Kidd, 640 A.2d 656, 662-65
(D.C. 1994) (noting that regulations promulgated pursuant to CMPA exclude
claims within jurisdiction of the District of Columbia Office of Human Rights).
The court also held in Newman v. District of Columbia, 518 A.2d 698, 702-06
(D.C. 1986), that a police officer‟s suit against his supervisor for intentional
infliction of emotional distress was not foreclosed by the CMPA‟s provisions
relating to disability compensation. In Thompson, 593 A.2d at 625-36, however,
the court concluded that such claims are implicitly foreclosed by the CMPA
considered as a whole.
                                          12

      Our previous CMPA-preemption cases nevertheless provide important

guidance.      In those cases, the court has emphasized that the CMPA is a

“comprehensive merit personnel system” intended to create a system of “efficient

administration” that would give courts “a reviewing role . . . . as a last resort, not a

supplementary role . . . as an alternative forum.” Thompson, 593 A.2d at 632-34.

The court also has expressed concern that permitting parties to “seek relief outside

of the CMPA . . . would frustrate the [CMPA]’s aim to achieve order and

efficiency.”    District of Columbia Metro. Police Dep’t v. Fraternal Order of

Police/Metro. Police Labor Comm., 997 A.2d 65, 77 (D.C. 2010); see also, e.g.,

Thompson, 593 A.2d at 634-35. Finally, in resolving CMPA preemption issues,

the court has relied upon the Supreme Court’s decision in United States v. Fausto,

484 U.S. 439 (1988). See District of Columbia Metro. Police Dep’t, 997 A.2d at

78-79; Thompson, 593 A.2d at 631 n.20, 632.




      This court’s reliance on Fausto is significant, because Fausto involved an

issue comparable to the issue in this case. In Fausto, a former employee of the

federal government brought suit in the United States Claims Court under the Back

Pay Act, 5 U.S.C. § 5596, claiming that his dismissal was in violation of applicable

regulations. 484 U.S. at 442-43. The federal government argued that the suit for

back pay was implicitly precluded by the Civil Service Reform Act (CSRA)
                                        13

(codified in various sections of 5 U.S.C.). 484 U.S. at 443. The Supreme Court

agreed. Id. at 443-54.




      The Court acknowledged that Mr. Fausto, who was a “nonpreference

member of the excepted service,” did not have a right under the CSRA to challenge

his dismissal by taking an administrative appeal to the Merits Systems Protection

Board, and thus also did not have a right under the CSRA to judicial review of his

dismissal. Id. at 441 n.1, 444-46. Preclusion of his suit under the Back Pay Act

therefore would leave Mr. Fausto with no judicial remedy.              Id. at 448.

Nevertheless, and even though no provision of the CSRA explicitly precluded suit

under the Back Pay Act, the Supreme Court concluded that the CSRA, considered

as a whole, supported an inference that such suits were precluded. Id. at 443-54.




      The Court drew an inference of preclusion from four primary considerations.

First, the Court emphasized the “comprehensive[]” nature of the CSRA. 484 U.S.

at 443-44 (describing CSRA as “integrated system,” intended to replace previous

system that was “patchwork” and that reflected “haphazard arrangements for

administrative and judicial review”). Second, the Court concluded that permitting

direct judicial review of such personnel actions would frustrate the basic purposes
                                        14

of the CSRA, which included channeling personnel issues through the expert

administrative agency and avoiding multiple layers of judicial review. Id. at 451.

Third, the Court reasoned that Congress’s decision to exclude employees in Mr.

Fausto’s position from obtaining judicial review of their dismissals under the

CSRA reflected a legislative determination that judicial review of such dismissals

should be entirely unavailable. Id. at 447, 455. Fourth, the Court explained that

interpreting the CSRA to permit suits like Mr. Fausto’s suit would create irrational

distinctions among classes of federal employees. Id. at 449-50 (explaining, for

example, that probationary and “nonpreference excepted service employees”

would be able to file suit in federal court to challenge minor adverse personnel

actions, such as brief suspensions, even though more favored categories of

employees, such as veterans, would not be able to obtain either administrative or

judicial review of such actions).




      The Supreme Court’s analysis in Fausto is instructive in this case. First, as

previously noted, the CMPA, like the CSRA, is a comprehensive government

personnel system, designed to generally channel review of government

employment decisions through an expert administrative agency.
                                       15

      Second, much as in Fausto, permitting unsuccessful job applicants to raise

CMPA claims by filing suit directly in Superior Court would tend to run contrary

to one of the basic purposes of the CMPA, which is “to provide for a centralized

and organized personnel system.” American Fed’n of Gov’t Emps, Local 1403, 19

A.3d at 774. See also District of Columbia Metro. Police Dep’t, 997 A.2d at 78

(permitting parties to “seek relief outside of the CMPA . . . would frustrate the

[CMPA]’s aim to achieve order and efficiency”).




      Third, the CMPA, like the CSRA, has detailed provisions specifying the

administrative and judicial review available under its statutory scheme.

Specifically, the CMPA requires the issuance of regulations providing procedures

for the prompt handling of grievances by employees and applicants for

employment. D.C. Code § 1-616.53 (1). See also 6-B DCMR § 845.2, 845.4

(2013) (applicants for employment may file grievance concerning procedures used

to identify and rank qualified candidates, but may not file grievance challenging

non-selection from among group of properly ranked and certified candidates). The

CMPA provides that certain agency decisions may be appealed to OEA, but the

pertinent provisions expressly authorize appeal only by employees, not by

applicants for employment, and also limit the types of agency decision that may be

appealed. D.C. Code §§ 1-606.03 (a) (“employee” may appeal certain agency
                                        16

actions to OEA), 1-616.52 (b) (specifying types of agency action that may be

appealed to OEA). In broad outlines, the CMPA limits OEA review to more

serious adverse actions, such as removal, reduction in force, reduction in grade,

and suspension for ten days or more. Id. The CMPA also provides that an

employee or agency may obtain judicial review of OEA decisions. D.C. Code §

1-606.03 (d). The CMPA does not expressly authorize unsuccessful job applicants

to seek judicial review of claims arising under the CMPA.




      We do not mean to suggest that, by themselves, the considerations just

discussed establish a broad rule that employees or former employees of the District

can obtain judicial review of their employment-related claims only if such review

is expressly afforded by the CMPA.8 We do conclude more narrowly, however,

that Mr. Coleman’s particular claim is not subject to judicial review. In reaching

that conclusion, we rely on three features of Mr. Coleman’s claim: Mr. Coleman is

a job applicant, rather than an employee or former employee of the District; Mr.

Coleman is seeking relief under the CMPA, rather than asserting a claim arising


       8
          To the contrary, the court today holds that a police officer may obtain
review in Superior Court of a determination of the Metropolitan Police Department
regarding the officer‟s sick leave, even though such review is not expressly
provided under the CMPA. Nunnally v. District of Columbia Metro. Police Dep’t,
No. 11-CV-609 (D.C. Dec. 12, 2013).
                                         17

from a distinct substantive source of law; and Mr. Coleman’s CMPA claim does

not rest on a claimed violation of a concrete requirement of the CMPA, but rather

relies primarily on claimed violations of regulations promulgated pursuant to the

CMPA and the District’s Personnel Manual. We have found no prior decision of

this court taking jurisdiction over a comparable claim, either under the CMPA or

outside of it. Moreover, federal courts considering analogous claims under the

federal CSRA have found judicial review to be foreclosed. See, e.g., Khaksari v.

Chairman, Broad. Bd. of Governors, 451 Fed. Appx. 1, *3 (D.C. Cir. Oct. 28,

2011) (job applicant’s claim under federal Administrative Procedure Act was

precluded by CSRA); Taydus v. Cisneros, 902 F. Supp. 288, 292-94 (D. Mass.

1995) (same; citing numerous cases).




                                         V.




      Taken together, the foregoing considerations persuade us that the legislature

did not intend that disappointed applicants for employment with the District would

all be able to file independent actions in Superior Court claiming that the District’s

hiring decisions were in some respect contrary to regulation or to the District

Personnel Manual. We therefore hold that the CMPA forecloses Mr. Coleman’s
                                          18

suit challenging the District’s decisions not to hire him. 9 The Superior Court’s

order dismissing the case is therefore




                                                      Affirmed.

      9
          Under the District of Columbia Home Rule Act, D.C. Code § 1-201.01
et seq. (2012 Repl.), the Council of the District of Columbia may not “[e]nact any
act, resolution or rule with respect to any provision of Title 11 (relating to the
organization and jurisdiction of the District of Columbia courts).” D.C. Code
§ 1-206.02 (a)(4). We asked the parties to file supplemental briefs addressing
whether the Home Rule Act precluded the Council from foreclosing claims such as
those raised by Mr. Coleman. After consideration of those supplemental briefs, we
conclude that the CMPA‟s foreclosure of claims such as Mr. Coleman‟s does not
violate the Home Rule Act.

       Although the foreclosure of a cause of action can certainly be said to affect
the jurisdiction of the courts in a sense, both this court and the United States Court
of Appeals for the District of Columbia Circuit have held that analogous changes
to the substantive law are not precluded by the Home Rule Act. See Dimond v.
District of Columbia, 253 U.S. App. D.C. 111, 121-22, 792 F.2d 179, 189-90
(1986) (upholding statute that eliminated personal-injury tort claims for victims of
car accidents who incurred less than $5,000 of medical expenses; “[a]lthough the
partial abolition of a cause of action inevitably affects the cases a court adjudicates,
this incidental byproduct does not amount to an alteration of the jurisdiction of the
local and federal courts in violation of the [Home Rule] Act”); District of
Columbia v. Sullivan, 436 A.2d 364, 365-68 (D.C. 1981) (upholding statute that
decriminalized certain traffic offenses, thereby eliminating Superior Court‟s
original jurisdiction over those offenses; Council had authority under Home Rule
Act to “classify an act as a crime, or to decriminalize certain behavior”); see also
Umana v. Swidler & Berlin, Chtd., 669 A.2d 717, 724 n.15 (D.C. 1995)
(concluding that D.C. Code § 1-147 (a)(4) (1978 Supp.), which is now codified as
D.C. Code § 1-206.02 (a)(4), “does not . . . limit the Council‟s authority to enact or
to alter the substantive law to be applied by the courts. It simply means that the
Council may not change the manner in which [T]itle 11 operates to prescribe the
jurisdiction of the courts in administering those laws.”) (citations omitted).
