(a) An employee may appeal a final agency decision affecting a performance rating which results in removal of the employee (pursuant to subchapter XIII-A of this chapter), an adverse action for cause that results in removal, reduction in force (pursuant to subchapter XXIV of this chapter), reduction in grade, placement on enforced leave, or suspension for 10 days or more (pursuant to subchapter XVI-A of this chapter) to the Office upon the record and pursuant to other rules and regulations which the Office may issue. Any appeal shall be filed within 30 days of the effective date of the appealed agency action.
(b) In any appeal taken pursuant to this section, the Office shall review the record and uphold, reverse, or modify the decision of the agency. The Office may order oral argument, on its own motion or on motion filed by any party within 15 days, and provide such other procedures or rules and regulations as it deems practicable or desirable in any appeal under this section.
(c) All decisions of the Office shall include findings of fact and a written decision, as well as the reasons or basis for the decision upon all material issues of fact and law presented on record, and order; provided, however, that the Office may affirm a decision without findings of fact and a written decision. Such decisions shall be published in accordance with the rules and regulations of the Office, and shall be published in the District of Columbia Register. Any decision by a Hearing Examiner shall be made within 120 days, excluding Saturdays, Sundays, and legal holidays, from the date of the appellant’s filing of the appeal with the Office. Within 45 days, excluding Saturdays, Sundays, and legal holidays, after the appeal is filed with the Office, the Office shall determine whether, in accordance with this section and the Office’s own rules, the Office has jurisdiction. Any decision shall include a statement of any further process available to the appellant including, as appropriate, a petition for review or a petition for enforcement and judicial review. Copies of the decision shall be immediately transmitted to the Office and all parties to the appeal, including named parties and intervenors. The initial decision of the Hearing Examiner shall become final 35 days after issuance, unless a party files a petition for review of the initial decision with the Office within the 35-day filing period. In accordance with § 1-604.04, the Office may promulgate rules to allow a Hearing Examiner a reasonable extension of time if extraordinary circumstances dictate that an appeal cannot be decided within the 120-day period. After issuing the initial decision, the Hearing Examiner shall retain jurisdiction over the case only to the extent necessary to correct the record, rule on a motion for attorney fees, or process any petition for enforcement filed under the authority of the Office. If the Office denies all petitions for review, the initial decision shall become final upon the issuance of the last denial. If the Office grants a petition for review, the subsequent decision of the Office shall be the final decision of the Office unless the decision states otherwise. Administrative remedies are considered exhausted when a decision becomes final in accordance with this section.
(d) Any employee or agency may appeal the decision of the Office to the Superior Court of the District of Columbia for a review of the record and such Court may affirm, reverse, remove, or modify such decision, or take any other appropriate action the Court may deem necessary.
(Mar. 3, 1979, D.C. Law 2-139, § 603, 25 DCR 5740; May 15, 1990, D.C. Law 8-127, § 2(d), 37 DCR 2093; June 10, 1998, D.C. Law 12-124, § 101(d)(1), 45 DCR 2464; June 19, 2001, D.C. Law 13-313, § 2(b), 48 DCR 1873; May 18, 2004, D.C. Law 15-162, § 2(a), 51 DCR 3628; Sept. 30, 2004, D.C. Law 15-189,§ 2(b), 51 DCR 6734.)
1981 Ed., § 1-606.3.
1973 Ed., § 1-336.3.
Effect of Amendments
D.C. Law 15-162, in subsec. (a), substituted “reduction in grade, placement on enforced leave,” for “reduction in grade,”.
For temporary amendment of section, see § 101(d) of the Omnibus Personnel Reform Amendment Act of 1998 (D.C. Act 12-326, April 1, 1998, 45 DCR 2464).
For temporary amendment of § 401 of the Omnibus Personnel Reform Amendment Act of 1998 (D.C. Law 12-124), see § 2 of the Personnel Reform Technical Amendment Emergency Act of 1998 (D.C. Act 12-520, December 4, 1998, 45 DCR 9049).
For temporary (90-day) amendment of section, see § 3 of the Safe Teenage Driving and Merit Personnel Technical Amendment Emergency Amendment Act of 2000 (D.C. Act 13-430, August 14, 2000, 47 DCR 7459).
For temporary (90 day) amendment of section, see § 3 of the Safe Teenage Driving and Merit Personnel Technical Amendment Legislative Review Emergency Amendment Act of 2000 (D.C. Act 13-489, December 18, 2000, 48 DCR 43).
For temporary (90 day) amendment of section, see § 3 of Safe Teenage Driving and Merit Personnel Technical Amendment Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-30, April 2, 2001, 48 DCR 3336).
For temporary (90 day) amendment of section, see § 2(a) of Technical Amendments Emergency Act of 2001 (D.C. Act 14-108, August 3, 2001, 48 DCR 7622).
Applicability of § 101(d) of D.C. Law 12-124: Section 401(a) of D.C. Law 12-124, as amended by § 60 of D.C. Law 12-264, provided that § 101(d), (k), (p), (s), and (x) of the act shall apply upon the enactment of legislation by the United States Congress that states the following:
“Notwithstanding any other law, section 101(d), (k), (p), (s), and (x) of the Omnibus Personnel Reform Act of 1998, effective June 10, 1998 (D.C. Law 12-124; 45 DCR 2464) are enacted into law.”
Section 134 of Title I of Division C of Pub. L. 105-277, 112 Stat. 2861-596, provided that “Notwithstanding any other law, sections 101(d), (k), (p), (s), and (x) of the Omnibus Personnel Reform Amendment Act of 1998, D.C. Law 12-124, effective June 11, 1998, are enacted into law.”