19-676#!)!r-\ n
`r
`7 fiu wj d u Jn (1
`UJ ii
`
`No.
`
`r s
`IN THE SUPREME COURT OF THE UNITED STATESSu(
`NOV 2 5 ::;g
`OFFICE o; I Kf CLFRK
`
`Nicole Rena McCrea
`Petitioner
`
`V.
`
`D.C. POLICE AND FIREFIGHTERS’ RETIREMENT AND RELIEF
`BOARD
`Respondent
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT OF
`COLUMBIA COURT OF APPEALS
`
`1 7>c H
`
`(Name)
`
`(Address)
`
`1
`
`!f
`
`f
`
`(City, State, Zip Code)
`
`RECEIVED
`NOV 2 6 2019
`supremTcqurtS^^
`
`09
`—
`
`4
`
`yA
`
`>!
`
`J
`
`r
`
`eta
`CO
`225
`CD
`«C
`CD
`1X0
`rn CD
`t
`cn
`OO.
`“ncr,
`‘0
`__ 0 *~"i O-
`o me:
`ro
`C/5
`cr
`
`1
`t
`
`1
`
`(Phone Number)
`
`

`

`QUESTION(S) PRESENTED
`
`1. Are the provisions of the United States Constitution, Amendment 5. Due Process Clause.
`
`compelled and/or implied as pertains to the expressed statutory guidelines within the
`
`Police and Firefighters Retirement and Disability Act (“PFRDA”), a state law governing
`
`disability and disability provisions of the District of Columbia Police, Firefighters and
`
`Capitol Police, as concerns the property interest in the calculation and/or adjustment of
`
`the Petitioner’s annuity; the Petitioner’s property interest in a disability review for
`
`recovery back to reemployment; the Petitioner’s property interest in the ability to be
`
`employed in any profession; the Petitioner’s property right protected by the Takings
`
`Clause?
`
`2. Is the Petitioner’s challenge to the Constitutionality of the Board’s actions a contested
`
`case subject to the provisions of the United States Constitution. Amendment 5, Due
`
`Process Clause. a hearing to refute charges and/or clear her name?
`
`ii
`
`

`

`LIST OF PARTIES
`
`[X] All parties appear in the caption of the case on the cover page.
`
`[ ] All parties do not appear in the caption of the case on the cover page. A list of all parties to
`the proceeding in the court whose judgment is the subject of this
`petition is as follows:
`
`TABLE OF CONTENTS
`
`OPINIONS BELOW
`
`JURISDICTION
`
`CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
`
`STATEMENT OF THE CASE
`
`REASONS FOR GRANTING THE WRIT
`
`CONCLUSION
`
`1
`
`1
`
`2-4
`
`5-9
`
`10-27
`
`27
`
`iii
`
`

`

`INDEX TO APPENDICES
`
`APPENDIX A - July 03, 2019, Amended Order Sua Sponte Dismissing Appeal of the District
`of Columbia Court of Appeals
`
`APPENDIX B - March 07, 2019 Order from the DC Police and Firefighters’ Retirement
`and Relief Board DENYING the February 04, 2019 Petition for
`Reconsideration
`
`APPENDIX C - August 26, 2019, ORDER of the District of Columbia Court of Appeals for
`DENYING PETITIONER’S PETITION FOR REHEARING and
`PETITIONER’S PETITION FOR REHEARING En Banc.
`
`APPENDIX D - December 06, 2018 ORDER for SHOW CAUSE HEARING from the DC
`Police and Firefighters’ Retirement and Relief Board
`
`APPENDIX E - January 17, 2019 CERTIFICATE OF COMPLIANCE from the DC Police
`and Firefighters’ Retirement and Relief Board VACATING SHOW CAUSE
`HEARING
`
`APPENDIX F - February 04, 2019 PETITIONER’S Petition for Reconsideration to the DC
`Police and Firefighters’ Retirement and Relief Board; request for a hearing
`
`APPENDIX G - April 23, 2019, ORDER to SHOW CAUSE from the District of Columbia
`Court of Appeals
`
`APPENDIX H - May 13, 2019, PETITIONER’S RESPONSE to ORDER to Show Cause
`
`APPENDIX I - May 21, 2019, BRIEFING ORDER from the District of Columbia Court of
`Appeals
`
`APPENDIX J - June 10, 2019, RESPONDENT’S RESPONSE to Petitioner’s Response to
`' Order to Show Cause.
`
`APPENDIX K - June 28, 2019, PETITIONER’S REPLY in Support of the Petitioner’s
`Response to Order to Show Cause
`
`APPENDIX L - July 16, 2019, PETITIONER’S PETITION FOR REHEARING and
`PETITIONER’S PETITION FOR REHEARING EN BANC.
`
`iv
`
`

`

`TABLE OF AUTHORITIES CITED
`
`American Postal Worker's Union v. United States Postal Service, 227 U.S.App.D.C. 351. 707
`F.2d 548.
`Aonde v. Mobil Oil Corp.. 892 F.2d 1115 (1st Cir. 1989)
`Bloch v. Powell. 348 F. 3d 1060 at 1068 - 1070 Court of Appeals. Dist. of Columbia Circuit
`2003
`Bd. of Regents of State Colleges v. Roth 408 U.S. 564. 569-70. 577. 92 S.Ct. 2701. 33 L.Ed.2d
`548 0972))
`Cafeteria and Restaurant Workers v. McElrov. 367 U.S. 886. 895-96. 81 S.Ct. 1743. 6 L.Ed.2d
`1230 0961)
`Campbell v. Pierce Cntv.. Ga.. 741 F.2d 1342. 1345 Olth Cir. 1984)
`Chambers v. U.S. Dep't of Interior. 568 F.3d 998, 1007 (D.C.Cir.2009)
`Chicago & S. Air Lines. Inc, v. Waterman S.S. Corp.. 333 U.S. 103. 112-13. 68 S.Ct. 431, 437 92
`L.Ed. 568 0948)
`Cleveland Bd. ofEduc. v. Loudermill. 470 U.S. 532. 538. 105 S.Ct. 1487. 84L.Ed.2d494
`0985))
`Coddv. Velger. 429 U.S. 624. 627. 97 S.Ct. 882, 51 L.Ed.2d 92 0 977) (per curiam)
`Countv of Sacramento v. Lewis. 523 U.S. 833. 846. 118 S.Ct. 1708. 140 L.Ed.2d 1043 0998)
`Crowell v. Benson. 285 U.S. 22, 60, 52 S.Ct. 285, 76 L.Ed. 598 0932)
`Dodge v. Board of Education. 302 U.S. 74, 58 S.Ct. 98. 82 L.Ed. 57 0 937)
`Doe v. Cheney. 885 F.2d 898. 910 (D.C.Cir.1989)
`Doe v. DOJ. 753 F.2d 1092. 1112 tD.C.Cir. 1985)
`Florida v. Weinberger. 492 F.2d 488, 494 (5th Cir. 1974)
`Gen. Elec. Co. v. Jackson. 610 F 3d 110, 119 (D C.Cir. 2010)
`Goldberg v. Kelly. 397 U.S. 254, 262, 90 S.Ct. 1011. 1017, 25 L.Ed.2d 287 0970)
`Harvev v. District of Columbia. 798 F.3d 1042. 1049 tD.C. Cir. 2015)
`Holmes v. Amerex Rent-A-Car. 710 A.2d 846. 854 (D C. 1998)
`In re APA Assessment Fee Litigation. 766 F.3d 39. 55 (D.C.Cir.2014)
`Ingraham v. Wright. 430 U.S. 651. 672. 97 S.Ct. 1401, 51 L.Ed.2d 711 0977)
`
`

`

`Johnson v. Newburgh Enlarged Sch. Dist.. 239 F.3d 246. 252 (2d Cir. 2001")
`Kartseva v. Department of State. 37 F.3d 1524 ('D.C.Cir.1994')
`Lakeland Bus Lines. Inc, v. NLRB. 347 F.3d 955. 962 (T>.C.Cir.2003J
`Marshall Cntv. Health Care Auth. v. Shalala. 988 F.2d 1221. 1226 (D C.Cir. 1993)
`
`Montilla v. INS. 926 F,2d 162. 167 (2d Cir. 19913
`Morally. PEA. 412F.3d 165. 176 (D.C.Cir.20053
`Morgan v. Graham. 228 F.2d 625 (10th Cir. 1956).
`Morgan v. United States. 298 US 468 - Supreme Court 1936
`Morton v. Ruiz. 415 U.S. 199. 235. 94 S.Ct. 1055. 39 L.Ed.2d 270 (19743
`Nat'lEduc. Ass'n-Rhode Island ex rel. Scigulinskv v. Ret. Bd. of Rhode Island Employees' Ret.
`Svs.. 172 F.3d 22. 30 fist Cir.19993
`NLRB v. Harding Glass Co.. 500 F.3d 1. 7 (1st Cir. 2007)
`Nichols v. Klein Tools. Inc.. 949 F. 2d 1047 - Court of Appeals. 8th Circuit (1991)
`Oliver v. Gramlev. 200 F, 3d 465 - Court of Appeals. 7th Circuit (1999)
`Pope v. Fed. Express Corp.. 974 F,2d 982, 984 (8th Cir. 1992)
`Roberts v. United States. 741 F.3d 152. 161 (DC.Cir. 20143
`Robinson v. Nat'l Transp. Safety Bd.. 28 F.3d 210, 215 (D.C.Cir. 19943
`Rodale Press. Inc, v. Federal Trade Comm’n. 132 U.S.App. D.C. 317. 321. 407 F2d 1252. 1256
`0968})
`Roth v. Kins. 449 F.3d 1272. 1286 (D.C.Cir.20063
`Semi v. City ofN.Y.. 459 F.3d 207, 216 (2d Cir.20063
`Taylor v. Resolution Tr. Corp.. 56 F.3d 1497. 1506 (D.C. Cir.3. opinion amended on reh'g. 66
`F.3d 1226 (D C. Cir. 1995J
`Thompson v. Dist. of Columbia. 530 F.3d 914. 918 (D.C.Cir.2008)
`United States v. Los Angeles & Salt Lake R.R. Co.. 273 U.S. 299. 311-12, 47 S.Ct. 413. 415. 71
`L.Ed. 651 (T927J TBrandeis. J.J
`United States ex rel. Accardi v. Shaughnessv. 347 U.S. 260, 267-68. 74 S.Ct. 499. 98 L.Ed. 681
`U954V)
`
`vi
`
`

`

`Universal Camera Com. v. NLRB. 340 U.S. 474, 487, 71 S.Ct. 456, 95 L Ed. 456 (1951)) page
`13
`IJniv. Med. Ctr. v. Shalala. 173 F.3d 438. 440 n. 3 (D.C.Cir. 19991
`
`STATUTES AND RULES
`United States Constitution, Amendment 5, Due Process Clause
`DC Code §5-571(b)(2).................................................
`DC Code §5-714(a)(1)..................................................
`
`DC Code §5-714(b)......................................................
`DC Municipal Regulation (“DCMR”), 7 DCMR §2515
`DC Municipal Regulation (“DCMR ”), 7 DCMR §2519
`
`vii
`
`

`

`Petitioner respectfully prays that a Writ of Certiorari issue to review the Judgment below.
`
`Petitioner respectfully prays that a Writ of Certiorari issue to review the Judgment below.
`
`For cases from state courts:
`
`OPINIONS BELOW
`
`The opinion of the highest state court to review the merits appears at
`Appendix A to the petition and is
`or,
`[
`] reported at
`] has been designated for publication but is not yet reported; or,
`[
`[ X ] is unpublished.
`
`The opinion of the D.C. Police and Firefighters’ Retirement and Relief Board
`appears at Appendix _B_ to the petition and is
`[
`] reported at_______________________________________
`[
`] has been designated for publication but is not yet reported; or,
`[X ] is unpublished.
`
`or,
`
`For cases from state courts:
`
`JURISDICTION
`
`The date on which the highest state court decided my case was 07-03-2019,
`A copy of that decision appears at Appendix A.
`[X] A timely petition for rehearing was thereafter denied on the following date 08-26-
`2019 and a copy of order denying rehearing appears at Appendix C
`
`[ ] An extension of time to file the petition for a writ of certiorari was granted
`(date)
`(date) on
`to and including__
`in Application No.
`
`The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
`
`Page 1 of 27
`
`

`

`CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
`
`United States Constitution, Amendment 5, Due Process Clause provides, in relevant part(s):
`
`“No person shall... be deprived of life, liberty, or property, without due process of law;
`nor shall private property be taken for public use, without just compensation.”
`
`Police and Firefighters' Retirement and Disability Act ("PFRDA"), D.C. Code §§ 5-714 and 5-
`571 (2017 Supp.), provides, in relevant part(s):
`DC Code §5-714(a)(1) states: “If any annuitant retired under § 5-709 or § 5-710. before
`reaching the age of 50, recovers from his disability or is restored to an earning capacity
`fairly comparable to the current rate of compensation of the position occupied at the time
`of retirement, payment of the annuity shall cease: (A) Upon reemployment in the
`department from which he was retired; (B) Forty-five days from the date of the medical
`examination showing such recovery
`
`DC Code §5-714(b) states: “When an annuitant recovers prior to age 50 from a disabling
`condition for which he has been retired, and applies for reinstatement in the department
`from which he was retired, he shall be reinstated in the same or nearest equivalent grade
`and salary available as that received at the time of his separation from the service;
`provided, that such applicant meets the current entrance requirements of such department
`as to character.”
`
`DC Code §5-571(b)(2) states, “The Mayor shall, by regulation, require any annuitant
`who was an officer or member of the Metropolitan Police force or the Fire Department of
`the District of Columbia ... to undergo, during each 12-month period following the
`effective date of this paragraph, at least 1 medical examination of the disability upon
`which the annuitant’s retirement under § 5-709 or § 5-710 is based. Such annual
`examination shall be carried out by the Board of Police and Fire Surgeons or by a
`physician designated by the Board.”
`
`DC Municipal Regulation (“DCMR ”), 7 DCMR §2515 and 7 DCMR §2519, provides, in
`relevant part(s):
`7 DCMR §2515.2 states, “the Board shall give due regard to the nature of the injury or
`disease; the percentage of impairment; the position held immediately prior to retirement;
`in considering and evaluating percentages of disability; the age and years of service;
`education, training, and special skills; qualifications for wage-earning capacity while in
`
`Page 2 of 27
`
`

`

`retirement shall be reviewed and examined; jobs that the disabled retiree is qualified for
`shall exist; aptitude for acquiring new skills, the ability to adjust to a handicap and other
`personality conditions, and the impact the presence of the injury or disease could have on
`the employability of a disabled retiree shall be considered and evaluated when
`determining the percentage of disability.”
`
`7 DCMR §2515.3(a) states: “The criteria for determining percentages of disability or loss
`of wage-earning capacity shall be considered in the context of the application of §2515.1
`for each individual case. No one criteria shall be considered by the Board as controlling
`or standard. The combined result of the application of §2515.1 shall produce the final
`determination by the Board” [emphasis added].
`
`7 DCMR $2515.3(d) states: “The Board, after weighing the physical and mental
`condition(s) and economic and other factors, shall render a final decision as to the extent
`to which a disability affects a Police Officer's or Firefighter's ability to earn wages while
`in disability retirement, pursuant to §§4-615(b) and 4-616(e), D.C. Code (1981)”.
`
`7 DCMR §2515.4 states: “Once the percentage of disability has been determined by the
`Board's final decision, the percentage shall not be changed unless it is subsequently
`shown, by medical evidence presented at annual reviews, that the degree of impairment
`has increased or decreased, or that the annuitant's actual annual earnings fairly represent
`his or her earning capacity”.
`
`7 DCMR § 2519.1 states: “Each annuitant retired for disability shall appear before the
`Board of Surgeons, or before a medical specialist approved by the Board of Surgeons, at
`least once every year until he or she shall have reached the age of fifty (50) years, for a
`medical examination of the disability for which he or she was retired, to determine his
`or her current physical and/or mental condition, unless excused from the examination by
`order of the Board.” [emphasis added]
`
`7 DCMR §2519.2 states: “The Board shall receive all medical and psychiatric reports
`through and from the Board of Surgeons and, upon review of the reports and
`recommendations made by the Board of Surgeons, determine the current status of the
`annuitant's disability and make a decision as to the disposition of the case.”
`
`Page 3 of 27
`
`

`

`7 DCMR £2519.6 states, in relevant part: “If the Board finds there is sufficient evidence
`that the annuitant has recovered from the disability for which he or she retired, then the
`annuitant may be required to appear before the Board for a hearing.”
`
`Page 4 of 27
`
`

`

`STATEMENT OF THE CASE
`
`The Petitioner is a former Firefighter/EMT of the District of Columbia Fire and
`
`Emergency Medical Services Department (“DCFEMS”). While at work and asleep in her bed,
`
`around midnight, May 30/31, 2013, the Petitioner was the victim of a sexual harassment incident
`
`involving three other members of the DCFEMS. The investigating police officers, Detectives of
`
`the Special Victims Unit of the Metropolitan Police Department (“MPD SVU”) classified the
`
`sexual harassment incident as a misdemeanor sexual abuse. Within one month of the sexual
`
`assault the Plaintiff-Appellant began to experience a variance of stress related somatic
`
`dysfunctions. Within one month, while at work, the Plaintiff- Appellant woke up screaming,
`
`having had a nightmare about the events that occurred during the sexual assault. The DCFEMS
`
`EEOC and Diversity Manager, advised the Petitioner to immediately report to the Police and
`
`Firefighter’s Clinic (“PFC”). The Petitioner was immediately placed on leave due to a variance
`
`of physical and psychological symptoms.
`
`The DCFEMS, in concert with the PFC then Ordered the Petitioner to submit to a
`
`comprehensive forensic sexual harassment psychological assessment, under the color of state
`
`law, in the guise of determining Petitioner’s Fitness for Duty. The Petitioner immediately voiced
`
`her opposition as the DCFEMS, in concert with the PFC, had been Ordering her to report to
`
`forced monitoring every week and then every other week since the assault, therefore knew her
`
`Fitness-for-Duty. Petitioner’s opposition was dismissed and she was Ordered to submit to six(6)
`
`extensive and comprehensive psychological exams: the Minnesota Multiphasic Personality
`
`Inventory- 2 (“MMPI-2”) and/or the Minnesota Multiphasic Personality Inventory- 2
`
`Restructured Form (“MMPI-2 RF”); The Personality Assessment Inventory (“PAI”); the Trauma
`
`Symptom Inventory- II (“TSI-2”); the Beck Hopelessness Scale (“BHS”); the Beck Depression
`
`Page 5 ot 27
`
`

`

`Inventory-II (“BDI-II”); the Beck Anxiety Inventory (“BAI”) and a detailed forensic
`
`psychological interview. The DCFEMS, in concert with the PFC, under color of state law,
`
`recommended the Plaintiff- Appellant for Involuntary Non-POD Disability Retirement, citing
`
`her as permanently disabled. Under color of the Police and Firefighters’ Disability Act
`
`(“PFRDA”), a state law that is a form of Workman’s Compensation for D.C. Police and
`
`Firefighters, the DCFEMS, PFC and DC Police and Firefighters’ Retirement and Relief Board
`
`(“Board”) asserting a psychological diagnosis that the Petitioner was PERMANENTLY
`
`DISABLED, recommended the Petitioner for Involuntary Non- POD Disability Retirement;
`
`citing issues borne out of the Petitioner’s Sexual Harassment complaints of the May 30/31, 2013
`
`Misdemeanor Sexual Abuse. On May 15, 2015, the Petitioner was forced into Involuntary Non-
`
`POD Disability Retirement, due to disability from an alleged psychological disability, with the
`
`District of Columbia citing the Petitioner, without objective data, as a danger to herself and
`
`others.
`
`In 2016, pursuant to DC Code §5-721(b)(2). the Petitioner scheduled her annual medical
`
`evaluation of the disability for which he or she was retired. In November 2016, the Petitioner
`
`attended the scheduled medical evaluation. The Petitioner learned that the PFC had scheduled
`
`the Petitioner for a physical medical evaluation, not a psychological examination for the alleged
`
`psychological disability for which she was involuntarily retired. The Petitioner questioned the
`
`doctor rendering the physical medical evaluation as to why she was receiving a physical
`
`evaluation when she was returned to full physical duty and retired under PFC’s allegations of
`
`psychological disability. The Petitioner was informed that it was the only examination that the
`
`PFC has scheduled for her. The Petitioner did not receive a psychological examination in 2016
`
`for the alleged psychological disability for which she was involuntarily retired.
`Page 6 of 27
`
`

`

`In 2017, pursuant to DC Code $5-721(7))(2). the Petitioner scheduled her annual medical
`
`evaluation of the disability for which he or she was retired. In November 2017, the Petitioner
`
`attended the scheduled medical evaluation. The Petitioner learned that the PFC had once again
`
`scheduled the Petitioner for a physical medical evaluation, not a psychological examination for
`
`the alleged psychological disability for which she was involuntarily retired. The Petitioner, once
`
`again, questioned the doctor rendering the physical medical evaluation as to why she was
`
`receiving a physical evaluation when she was returned to full physical duty and retired under
`
`PFC’s allegations of psychological disability. The Petitioner was informed that it was the only
`
`examination that the PFC has scheduled for her. The Petitioner did not receive a psychological
`
`examination in 2017 for the alleged psychological disability for which she was involuntarily
`
`retired.
`
`In 2018, pursuant to DC Code §5-721(b)(2). the Petitioner scheduled her annual medical
`
`evaluation of the disability for which he or she was retired. (Appendix H, attachment B). On
`
`December 06, 2018, the Board issued an Order for a Show Cause Hearing to the Petitioner, to
`
`appear before the Board on January 24, 2019 under allegations of failure to schedule and/or
`
`complete an annual medical evaluation of the disability for which he or she was retired.
`
`(Appendix D). On December 13, 2018, the Petitioner attended the scheduled medical
`
`evaluation. (Appendix H, attachment C). The Petitioner learned that the PFC had once again
`
`scheduled the Petitioner for a physical medical evaluation, not a psychological examination for
`
`the alleged psychological disability for which she was involuntarily retired. The Petitioner, once
`
`again, questioned the doctor rendering the physical medical evaluation as to why she was
`
`receiving a physical evaluation when she was returned to full physical duty and retired under
`
`PFC’s allegations of psychological disability. The Petitioner was informed that it was the only
`
`Page 7 of 27
`
`

`

`examination that the PFC has scheduled for her. The doctor rendering the physical medical
`
`evaluation presented the document that PFC had provided for her annual medical exam. The
`
`Petitioner was informed, and witnessed by visual examination, that the document that the PFC
`
`provided did not mention a psychological examination or provide questions or guidelines for
`
`assessment for a psychological examination. The Petitioner did not receive a psychological
`
`examination in 2018 for the alleged psychological disability for which she was involuntarily
`
`retired.
`
`On January 17, 2019, the Board issued a Certificate of Compliance certifying that the
`
`PFC issued a medical evaluation report that the Petitioner “did not complete the requirement to
`
`undergo a medical evaluation in calendar year 2018.. .finding a “low likelihood of recovery
`
`based on previous examinations'' .. “EXCUSED the Petitioner from further annual medical
`
`reviews”. (Appendix E). On February 04, 2019, the Petitioner filed, before the Board, the
`
`Petitioner’s Motion for Reconsideration and REQUESTED a hearing to establish her legitimate
`
`claim of entitlement under the Fifth Amendment of the U.S. Constitution as pertains to her
`
`property interest in the calculation and/or adjustment of her annuity; her property interest in a
`
`disability review for recovery back to reemployment is property necessary to support a due
`
`process claim; in addition to establishing a property right protected by the Takings
`
`Clause. (Appendix F). On March 07,2019, the Board, DENIED the Petitioner’s Motion for
`
`Reconsideration and REQUESTED hearing. (Appendix B).
`
`On April 05, 2019 the Petitioner sought Judicial Review of the Board’s Order and
`
`Decision before the District of Columbia Court of Appeals (“DCC A”) (Appendix G; Appendix
`
`H; Appendix I; Appendix J; and Appendix K). On July 03, 2019, the DCCA DISMISSED the
`
`Petition for Judicial Review citing a lack of standing/jurisdiction (Appendix A). On July 16,
`
`Page 8 of 27
`
`

`

`2019, the Petitioner filed, before the DCCA, the Petitioner’s Petition for Rehearing and
`
`Petitioner’s Petition for Rehearing En Banc. (Appendix L). On August 26, 2019, the DCCA
`
`DENIED the Petitioner’s Petition for Rehearing and Petitioner’s Petition for Rehearing En Banc.
`
`(Appendix C).
`
`The Petitioner’s April 05, 2019 Petition for Review of the Decisions and/or Orders of the
`
`Board pertained to the Petitioner’s reemployment and/or the calculation of her annuity, property
`
`interests protected by the Fifth Amendment of the U. S. Constitution. The Petitioner’s April 05,
`
`2019 Petition for Review of the Decisions and/or Orders of the Board, expressly challenging the
`
`constitutionality of the Board’s actions, should not have been dismissed for lack of
`
`standing/jurisdiction. Crowell v. Benson. 285 U.S. 22. 60. 52 S.Ct. 285. 76 L.Ed. 598 (1932) ("In
`
`cases brought to enforce constitutional rights, the judicial power of the United States necessarily
`
`extends to the independent determination of all questions ...of... law, necessary to the
`
`performance of that supreme function.").
`
`The Petitioner asserts that April 05, 2019 Petition for Review of the Decisions and/or
`
`Orders of the Board is within the federal law established by several decisions settled by this
`
`Court’s precedence, in addition to that of several United States Courts of Appeals. The DCCA’s
`
`dismissal for lack of standing/jurisdiction is prejudicial departure from its own precedence,
`
`establishing its accepted and usual course of judicial proceedings concerning claims of
`
`Constitutional rights, adopted from the precedence established by this Court and/or several
`
`United States Courts of Appeals.
`
`Page 9 of 27
`
`

`

`REASONS FOR GRANTING THE PETITION
`
`Generally, "administrative orders are not reviewable unless and until they impose an
`
`obligation, deny a right, or fix some legal relationship as a consummation of the administrative
`
`process." Chicago & S. Air Lines. Inc. v. Waterman S.S. Corp.. 333 U.S. 103. 112-13. 68 S.Ct.
`
`431, 437 92 L.Ed. 568 ('1948') (citations omitted); see also United States v. Los Angeles & Salt
`
`LakeRR. Co.. 273 U.S. 299. 311-12. 47 S.Ct. 413. 415. 71 L.Ed. 651 (T9271 (Brandeis. J.Y
`
`"[W]hen a party seeks review of agency action under the [Administrative Procedure Act] APA,
`
`"The entire case on review is a question of law, and only a question of law." Marshall Cnty.
`
`Health Care Auth. v. Shalala. 988 F,2d 1221, 1226 (D.C.Cir. 1993V When an agency's findings
`
`are
`
`at issue, the question of law is "whether [the agency] acted in an arbitrary and capricious
`
`manner." Univ. Med. Ctr. v. Shalala. 173 F,3d 438. 440 n, 3 (D.C.Cir. 1999). This analysis is
`
`conducted under the substantial evidence standard, which requires that a court "determine only
`
`whether the agency could fairly and reasonably find the facts as it did." Robinson v. Nat'l Transp.
`
`Safety Bd. 28 F,3d 210, 215 (D.C.Cir. 1994] (internal quotation marks and ellipses omitted).
`
`When the constitutionality of an agency's action and not the rationality of its findings is
`
`challenged, the appellate tribunal must [emphasis added] determine for itself whether the agency
`
`based its decision on the appropriate constitutional standard; Crowell v. Benson, 285 U.S. 22, 60,
`
`52 S.Ct. 285. 76 L.Ed. 598 (1932] ("In cases brought to enforce constitutional rights, the judicial
`
`power of the United States necessarily extends to the independent determination of all questions
`
`... of... law, necessary to the performance of that supreme function.").
`
`The Fifth Amendment of the U.S. Constitution, in relevant part states "No person shall
`
`.. .be deprived of life, liberty, or property, without due process of law; nor shall private property
`
`be taken for public use, without just compensation.”. The Petitioner was a 15- year contract
`Page 10 of 27
`
`

`

`Firefighter/EMT of the DC Fire and EMS at the time of her Involuntary Non-POD Disability
`
`Retirement. In addition, as a contract Firefighter/EMT for the DC Fire and EMS, the Petitioner
`
`had a statutory right to not be denied the opportunity to be returned to her public employment
`
`without cause; and the calculation of her annuity due to the Board’s 2015 actions to force her
`
`into Involuntary Non-P.O.D. Disability Retirement. The Petitioner expressly asserts that she has
`
`NOT been afforded her Constitutional Rights to Due Process, substantive and/or procedural.
`
`Morgan v. United States. 298 US 468 - Supreme Court 1936,
`
`In the Petitioner’s Response to the April 23, 2019 Show Cause Order, with supporting
`
`attachments A-G the Petitioner challenged the findings and conclusions of the Board, expressly
`
`asserting that: they constituted a taking of property by the District of Columbia government as
`
`outlined in the Takings Clause of the Fifth Amendment of the Constitution of the United states;
`
`they denied her Constitutional Right to Substantive Due Process as outlined in the Fifth
`
`Amendment of the Constitution of the United states; they denied her Constitutional Right to
`
`Procedural Due Process as outlined in the Fifth Amendment of the Constitution of the United
`
`states; they denied her statutory rights as related to a medical examination of the disability for
`
`which he or she was retired; the calculation of her earning capacity and/or annuity; and they
`
`affixed a legal status that prevents her from being able to enter into or pursue any profession DC
`
`Code $5-571(b)(2): 7 DC Municipal Regulation (“DCMR ”) § 2519.1: 7 DCMR §2519.2: 7
`
`DCMR $2515.2: 7 DCMR 62515.3(a): 7 DCMR $2515.3(d: 1DCMR $2515.4 ; DC Code $5-
`
`714(a)(1)'. DC Code §5-714(b): [Attachment F],
`
`A. The DCCA’s July 03. 2019 Order of dismissal for lack of standing/iurisdiction. as
`pertains to the Fifth Amendment of the U.S. Constitution conflicts with the precedence of
`this Court, several United States Courts of Appeals, in addition to its own precedence.
`
`Page 11 of 27
`
`

`

`The DCCA’s Division Panel’s Amended Order asserts that although “the petitioner’s
`
`original retirement/annuity proceeding under D.C. Code § 5-721(a)(2012 Repl.) was a
`
`“contested case” that this court reviewed directly, see McCrea v. District of Columbia Police &
`
`Firefighters 'Ret. & Relief Bd, 199 A.3d 208 (D.C. 2019)” the Board’s Order(s) and/or
`
`Decision(s) pertaining to the continuance of the Petitioner’s Involuntary Non-P.O.D. Disability
`
`Retirement and the calculation of her annuity for an alleged psychological disability are NOT a
`
`“contested case” directly reviewed to this Court.
`
`The DCCA’s Division Panel’s Amended Order further asserts that “no statute or
`
`regulation entitles [the Petitioner] to a trial-type hearing to dispute the adequacy of the annual
`
`medical examination required by D.C. Code § 5-721(b) and implemented-in 7 DCMR § 2519,
`
`nor can we discern any constitutional right to o«e”(emphasis added). See R.O. v. Pep 7 of
`
`Youth Rehab. Servs.. 199 A.3d 1160, 1164 (D.C. 2019) (specifying that a “contested case”
`
`involves a trial-type hearing required by the agency’s enabling statute, implementing regulations,
`
`or constitutional right). The Petitioner further asserts that DCCA’s Division Panel’s Amended
`
`Order summarily disregarded its own precedent in order to disregard the Petitioner’s arguments,
`
`with supporting authority as to the resolution of whether the Petitioner was aggrieved, after
`
`expressly Ordering briefing on the matter, in two separate Orders, because the Petitioner’s
`
`Constitutional Rights and/or the violation of the Petitioner’s Constitutional Rights compels the
`
`finding that a hearing was required because the facts and issues concerned implicates a contested
`
`case.
`
`The DCC A has jurisdiction not only when a contested case (trial-type) hearing has taken
`
`place, but also when a party has made "an effort to obtain such a hearing which the agency
`
`erroneously denied." Auger v. District of Columbia Board of Appeals and Review. 477 A.2d 196.
`
`Page 12 of 27
`
`

`

`206 fD.C. 1984k Debruhl v. District of Columbia Hackers' License Appeal Bd.. 384 A. 2d 421.
`
`425 (D.C.1978) Transp. Leasing Co. v. Dep't ofEmp't Servs.. 690 A.2d 487. 489 (D C. 1997V
`
`The DCCA’s Division Panel’s Amended Order disregarded the Petitioner’s assertions
`
`that she was adversely aggrieved by the lack of notice that the Board was making a Final
`
`Administrative Decision that directly affected her Constitutionally protected property interests.
`
`The DCCA has held that "[i]n general, an individual is entitled to fair and adequate notice of
`
`administrative proceedings that will affect his [or her] rights, in order that he [or she] may have
`
`an opportunity to defend his [or her] position."
`
`It is undisputed that on April 5, 2019, the Petitioner timely filed a petition for review of
`
`the Board’s March 7, 2019 order denying her motion for reconsideration and exercising her right
`
`to a hearing; which is implicitly tied to the board s underlying January 17 order excusing her
`
`from annual medical examinations. The Petitioner’s Petition for Review asserted actual and/or
`
`threatened ‘injury in fact’ due to several violations of her constitutionally-protected procedural
`
`due process rights and an unconstitutional taking of her private property. The Fifth Amendment
`
`provides, in relevant part, that "[n]o person shall... be deprived of life, liberty, or property,
`
`without due process of law." U.S. CONST, amend. V. To prevail on a constitutional due process
`
`claim, a plaintiff first must show the existence of an interest protected by the Due Process
`
`Clause, and then must establish the government's failure to provide her with the process that she
`
`was due. Terrell v. Dist. of Columbia. 703 F.Supp.2d 17. 22 (D.DC.2010) (citing Cleveland Bd.
`
`ofEduc. v. Loudermill. 470 U.S. 532. 538. 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)).
`
`This Court; several United States Courts of Appeals; and the DCCA have asserted that
`
`" [property interests are not created by the Constitution, they are created and their dimensions
`Page 13 of 27
`
`

`

`are defined by existing rules or understandings that stem from an independent source such as
`
`state law.'" Thompson v. Dist. of Columbia. 530 F,3d 914. 918 (D.C.Cir.2008)
`
`(quoting ClevelandBd. ofEduc. v. Loudermill 470 U.S. at 538. 105 S.Ct. 1487'). A property
`
`interest therefore will arise only when such rules or understandings secure certain benefits and
`
`... support claims of entitlement to those benefits.1" Gen. Elec. Co. v. Jackson. 610 F.3d 110. 119
`
`(D.C.Cir. 2010) (quoting Bd. of Regents of Stale Colleges v. Roth. 408 U.S. 564. 569-70, 577. 92
`
`S.Ct. 2701, 33 L.Ed.2d 548 Q972Y). This Court has recognized that the Petitioner has a property
`
`interest, protected by the Due Process Clau