D.C. Metropolitan Police Dep't v. D.C. Public Employee Relations Board

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CV-1161

DISTRICT OF COLUMBIA

METROPOLITAN POLICE DEPARTMENT, APPELLANT,

V.

DISTRICT OF COLUMBIA

PUBLIC EMPLOYEE RELATIONS BOARD, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(2018-CA-006737-P(MPA))

(Hon. Robert R. Rigsby, Trial Judge)

(Argued April 27, 2022 Decided September 7, 2023)

Carl J. Schifferle, Deputy Solicitor General, with whom Karl A. Racine,

Attorney General for the District of Columbia at the time the briefs was filed, Loren

L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile,

Principal Deputy Solicitor General at the time the brief was filed, and Graham E.

Phillips, Assistant Attorney General at the time the brief was filed, were on the brief,

for appellant.

Geoffrey H. Simpson, with whom Bruce A. Fredrickson was on the brief, for

appellee District of Columbia Public Employee Relations Board.

Daniel J. McCartin, with whom Anthony M. Conti was on the brief, for

appellee Fraternal Order of Police/Metropolitan Police Department Labor

Committee.

Before BECKWITH and DEAHL, Associate Judges, and FISHER, Senior Judge.

2

FISHER, Senior Judge: The Metropolitan Police Department (“MPD”)

challenges a decision of the Public Employee Relations Board (“PERB”) arising

from MPD’s efforts to terminate one of its officers. Construing D.C. Code § 5-1031

and its tolling provision, an arbitrator found that MPD waited too long to serve notice

of the proposed disciplinary action and ordered that the officer be reinstated. MPD

appealed to PERB, which upheld the arbitration award. In its appeal to this court,

MPD argued that its notice was timely and that the arbitration award should be set

aside, while PERB and the Fraternal Order of Police (“FOP”) defended PERB’s

decision to uphold the award. As we discuss below, recent legislation may have

substantially changed the issues we must address.

On April 21, 2023, the Comprehensive Policing and Justice Reform

Amendment Act of 2022 (“Reform Act”), D.C. Law 24-345, 70 D.C. Reg. 953

(2023), became effective; some of its provisions repealed § 5-1031(a-1)’s “90-day

rule” as it applied to MPD officers and stated that the repeal applies “to any matter

pending[] before any court or adjudicatory body” at the time the act became

effective. Id. §§ 117(a), 301(b). MPD and FOP have submitted supplemental

briefing on the retroactive application of the repeal. We agree with MPD that the

Reform Act is applicable to this case, and we reject FOP’s challenges to the

3

constitutionality of applying it retroactively. Accordingly, we reverse the judgment

of the Superior Court and remand for further proceedings.

I. The Factual and Procedural Background

On March 28, 2010, Officer Paul Lopez was arrested for solicitation of

prostitution and he was arraigned the next day in Superior Court. At a status hearing

on April 12, 2010, Officer Lopez agreed to enroll in “John School” in exchange for

the government’s promise to dismiss the charge if he successfully completed the

diversion program. Officer Lopez completed the program on May 1, 2010, and, after

he provided proof of his compliance at a hearing on May 19, 2010, the charge was

formally dismissed.

On September 23, 2010, MPD served Officer Lopez with a Notice of Proposed

Adverse Action, seeking to terminate his employment based on his March 28 arrest.

MPD held an Adverse Action Hearing on May 17, 2011, and ultimately issued a

Final Notice of Adverse Action recommending termination. Officer Lopez was

informed that he would be terminated effective August 19, 2011. He then appealed

to the Chief of Police, but that appeal was denied.

4

After his unsuccessful appeal to the Chief of Police, Officer Lopez had two

options for seeking further review: by appealing to the Office of Employee Appeals

(“OEA”), see D.C. Code § 1-616.52(b), or by demanding arbitration pursuant to the

collective bargaining agreement, see id. § 1-616.52(e). An arbitrator’s award is

reviewable by PERB. D.C. Code § 1-605.02(6). Decisions by both OEA and PERB

are appealable to the Superior Court, and that court’s decisions may, in turn, be

appealed to this court. Id. §§ 1-606.03(d), 1-617.13(c). 1 Officer Lopez chose to

pursue arbitration.

1

This court has never definitively construed § 5-1031 and its tolling

provision. Since both OEA and PERB hear appeals from employment disputes,

however, each has had to deal with § 5-1031 and its tolling provision, and they

sometimes have done so in disparate ways. See, e.g., Butler v. Metro. Police Dep’t,

240 A.3d 829, 834-35 (D.C. 2020) (describing three different applications of the

statute made by an OEA administrative judge, the OEA Board, and the Superior

Court); Metro. Police Dep’t v. Fraternal Ord. of Police/Metro. Police Dep’t Lab.

Comm. (Glover), No. 18-A-17, 66 D.C. Reg. 6056, slip op. at 5-6 (Pub. Emp. Rels.

Bd. Mar. 21, 2019) (interpreting the plain meaning of § 5-1031(b) to require tolling

of 90-day rule between MPD referral to U.S. Attorney’s Office and subsequent

decision not to prosecute). Some of PERB’s decisions also appear to conflict with

its own prior rulings. Compare Glover, No. 18-A-17, slip op. at 5-6, with Metro.

Police Dep’t v. Fraternal Ord. of Police/Metro. Police Dep’t Lab. Comm. (Fowler),

No. 17-A-06, 64 D.C. Reg. 10115, slip op. at 12-13 (Pub. Emp. Rels. Bd. Aug. 17,

2017) (identifying the conclusion of an investigation under § 5-1031(b) as “a factual

question rather than a legal question” without further interpreting the statute).

Review of those agency rulings by the Superior Court is yet another source for

varying interpretations of the statute. See D.C. Metro. Police Dep’t v. D.C. Off. of

Emp. Appeals, No. 2018-CA-003991-P(MPA), slip op. at 6 (D.C. Super. Ct. Mar.

19, 2019) (concluding that tolling under the statute ceased when pending criminal

charges were dismissed, rather than at the time of arrest); D.C. Metro. Police Dep’t

5

Officer Lopez and MPD presented the matter to the arbitrator “on the

administrative record” without an additional hearing, and the arbitrator ultimately

determined that Officer Lopez should be reinstated. Interpreting D.C. Code § 5-

1031, which required MPD to commence adverse actions within 90 business days of

the time that MPD knew or should have known of the misconduct at issue, the

arbitrator found that MPD’s Notice of Adverse Action was untimely. The arbitrator

based this ruling on his interpretation of the tolling provision in the statute and his

conclusion that tolling had stopped when the government filed criminal charges, not

when the court later dismissed them.

MPD petitioned PERB to overturn the arbitrator’s decision, arguing that the

award on its face was contrary to law and public policy, one of the three statutory

grounds on which PERB may modify, set aside, or remand an arbitration award. See

D.C. Code § 1-605.02(6). PERB denied MPD’s request, and MPD next appealed to

the Superior Court, which affirmed PERB’s decision. This appeal followed.

v. D.C. Pub. Emp. Rels. Bd., No. 2018-CA-006737-P(MPA), slip op. at 5-6 (D.C.

Super. Ct. Oct. 29, 2019) (commenting, in this case, that the arbitrator’s

determination that the criminal investigation concluded when criminal charges were

filed was “fair”).

6

The parties’ initial briefs and oral arguments primarily focused on the standard

under which PERB reviews an arbitral award and, in turn, the standard that we

should apply in reviewing PERB’s decision. While this case was still pending, the

Council of the District of Columbia (“Council”) repealed § 5-1031(a-1) and

expressly stated that the repeal “shall apply retroactively to any matter pending,

before any court or adjudicatory body, as of the effective date of this act.” Reform

Act §§ 117(a), 301(b). Much of the briefing and argument by the parties may have

been obviated by the enactment of this legislation; therefore, we must determine

whether this new legislation applies to this appeal.

II. Discussion

FOP contends that, by its own terms, the Reform Act does not apply to this

appeal and, alternatively, that if the Council intended it to apply, we should decline

to enforce it because doing so would create manifest injustice. FOP also argues that

giving retroactive effect to the repeal not only would usurp judicial power and thus

violate principles of separation of powers, but also would violate the Contracts

Clause of the Constitution by substantially impairing the collective bargaining

agreement between FOP and MPD. We take each of FOP’s arguments in turn.

7

A. The Reform Act Applies to This Appeal

FOP argues that the repeal does not apply here because this appeal is no longer

pending. Noting that the parties had already submitted their briefs and presented

oral argument, FOP asserts, without citation to authority, that “at the time the Reform

Act became law, this appeal had concluded and the parties were merely awaiting the

administrative issuance of a formal opinion by the [c]ourt.” This argument reflects

a woeful misunderstanding of the decisional process. We decline to read into the

statute a definition of “pending” that so radically conflicts with its ordinary meaning:

“[r]emaining undecided; awaiting decision.” Pending, BLACK’S LAW DICTIONARY

(11th ed. 2019); cf. Yovino v. Rizo, 139 S. Ct. 706, 709 (2019) (“[I]t is generally

understood that a judge may change his or her position up to the very moment when

a decision is reached.”); In re Estate of Green, 896 A.2d 250, 253-54 (D.C. 2006)

(“After an opinion has been filed or a judgment entered in an appeal, the Court of

Appeals issues a mandate,” which is what “terminates jurisdiction of the Court of

Appeals, and re-vests jurisdiction back in the Superior Court.”).

We are also unpersuaded by FOP’s argument that our customarily “narrow”

review of PERB’s decisions, see D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels.

8

Bd. (MPD v. PERB II), 282 A.3d 598, 603 (D.C. 2022), insulates this case from the

reach of the Reform Act. By its express terms, the repeal of § 5-1031(a-1) applies

to “any matter pending, before any adjudicatory body.” Reform Act § 301(b)

(emphases added). That PERB does not apply de novo review, nor do we, is

irrelevant in light of the fact that “an arbitral award can be set aside if a ‘clear

violation of law’ is ‘evident on the face of the arbitrator’s award.’” MPD v. PERB

II, 282 A.3d at 604 (quoting D.C. Metro. Police Dep’t v. D.C. Pub. Emp. Rels. Bd.

(MPD v. PERB I), 901 A.2d 784, 789 (D.C. 2006)).

As for FOP’s argument that PERB’s decision was “not clearly erroneous as a

matter of law” at the time it was issued, such a reading would effectively ignore the

Reform Act’s retroactivity provision, and would be contrary to the Council’s clear

statement that the repeal is intended to “preclud[e] any arbitrator, adjudicator,

administrative body, or court from modifying or reversing any disciplinary action—

or affirming such a modification or reversal on appeal—on the basis of an agency’s

failure to comply with the deadlines set forth in D.C. Code § 5-1031.”

Comprehensive Policing and Justice Reform Amendment Act of 2022, Report on

Bill 24-320 before the Committee on the Judiciary and Public Safety, Council of the

District of Columbia at 33 (Nov. 30, 2022) (“Report on Bill 24-320”). Moreover,

“the principle that appellate courts . . . must decide cases according to existing law

9

is so strong that it might be necessary to ‘set aside a judgment, rightful when

rendered, but which cannot be affirmed but in violation of law.’” Scholtz P’ship v.

D.C. Rental Accommodations Comm’n, 427 A.2d 905, 914 (D.C. 1981) (quoting

Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 282 (1969)); see also Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 226 (1995) (“When a new law makes clear

that it is retroactive, an appellate court must apply that law in reviewing judgments

still on appeal that were rendered before the law was enacted, and must alter the

outcome accordingly.” (first citing United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103 (1801); and then citing Landgraf v. USI Film Prods., 511 U.S. 244,

273-80 (1994))).

We need not determine whether the decisions below were “rightful when

rendered.” Scholtz, 427 A.2d at 914 (quoting Thorpe, 393 U.S. at 282). The

arbitrator’s award reinstating Officer Lopez was premised on MPD’s supposed

failure to comply with a statute that the Council has now decided should not apply

to disciplinary matters involving police officers. Therefore, unless the Reform Act

is inapplicable or invalid for some other reason, the award on its face is contrary to

law and must be set aside. We turn now to FOP’s other arguments that we should

not apply the Reform Act to this case.

10

B. Applying the Reform Act Does Not Create Manifest Injustice

Courts recognize a presumption against retroactivity, which “has been

consistently explained by reference to the unfairness of imposing new burdens on

persons after the fact.” Landgraf, 511 U.S. at 270. In Landgraf, the Supreme Court

made clear that this “traditional presumption” against retroactivity applies in the

“absen[ce of] clear congressional intent favoring such a result.” Id. at 280; accord

Holzsager v. D.C. Alcoholic Beverage Control Bd., 979 A.2d 52, 57 (D.C. 2009)

(same). The Court also explained that constitutional restrictions on retroactivity “are

of limited scope,” and that, “[a]bsent a violation of one of those specific provisions,

the potential unfairness . . . is not a sufficient reason for a court to fail to give a

statute its intended scope.” Landgraf, 511 U.S. at 267; accord District of Columbia

v. Beretta U.S.A. Corp., 940 A.2d 163, 174 (D.C. 2008). Here, the Council

“expressly prescribed the [repeal’s] proper reach” by enacting § 301(b) of the

Reform Act; therefore, we do not apply this presumption. Landgraf, 511 U.S. at

280; Holzsager, 979 A.2d at 56.

11

MPD asserts that the combination of Landgraf and the clear legislative intent

of the Reform Act should end our inquiry into manifest injustice. FOP suggests to

the contrary that manifest injustice provides an exception to enforcement regardless

of the Council’s intent, citing Menna v. Plymouth Rock Assurance Corp., 987 A.2d

458, 463 n.15 (D.C. 2010) (“When the legislature makes clear that a new law is

retroactive . . . , an appellate court must apply that law on appeal, unless to do so

would result in manifest injustice or engender substantial due process concerns.”

(citation omitted)). 2 It is not at all clear, based solely on Menna’s footnote, that we

are authorized to probe for manifest injustice when the Council has clearly given a

statute retroactive effect. 3 However, assuming in FOP’s favor that our case law

2

To the extent that FOP’s argument against retroactivity is based on due

process claims, it provides no analysis to support that argument. In any event, “it

cannot be said that lifting the bar of a statute of limitation so as to restore a remedy

lost through mere lapse of time is per se an offense against [due process].” Chase

Sec. Corp. v. Donaldson, 325 U.S. 304, 316 (1945). And FOP has not demonstrated

“special hardships or oppressive effects” arising from the retroactivity provision, or

that Officer Lopez’s conduct would have been different if he had foreseen the

change. Id.

3

The court in Menna “had no such concerns” about manifest injustice, id.,

and the cases cited there do not provide further guidance. See Holzsager, 979 A.2d

at 58-59 (suggesting that prefatory statement of purpose of newly enacted law could

be a “clear indication of legislative intent” but nevertheless assuming that the

Council did not focus on whether repeal of provision would affect pending matters);

Beretta, 940 A.2d at 174, 177-78 (holding that Congress did not violate the Due

Process Clause by barring plaintiffs’ pending cause of action through new legislation

“[u]ndeniably” intended to apply to pending cases).

12

permits us to scrutinize the law for manifest injustice, we conclude that no manifest

injustice will result from giving the repeal retroactive effect in this case.

In evaluating whether a party will suffer manifest injustice, we consider “(1)

the nature and identity of the parties, (2) the nature of their rights, and (3) the nature

of the impact of the change in law upon those rights.” Holzsager, 979 A.2d at 57

(quoting Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 717 (1974)). First,

FOP contends that MPD was acting in a private capacity and, therefore, we should

not retroactively apply the repeal because doing so would affect the rights of “private

parties vis a vis one another.” Scholtz, 427 A.2d at 915. Simply put, we disagree

that MPD acted as a private party by entering into a collective bargaining agreement

with police officers, who hold “critical positions of public trust” within a public

agency. Report on Bill 24-320 at 32-33. Moreover, “the law in effect shall be given

force” when it involves a “great local concern” and is “intended to redound to the

benefit of all, though perhaps at some sacrifice for a few.” Scholtz, 427 A.2d at 915.

The Reform Act undeniably implicates these public interests. Passage of the Reform

Act, including the retroactivity provision here, was part of the Council’s response to

“demand[s for] greater police accountability and transparency,” Report on Bill 24-

320 at 2, and the result of proposed and emergency legislation dating back to 2020,

id. at 2, 47-49 (chronologically listing legislative history). Thus, “the nature of the

13

parties and the importance of the legislative directive weigh heavily” in favor of

giving the repeal retroactive effect. Scholtz, 427 A.2d at 915.

FOP next argues that, in considering the “nature of the rights affected by the

change,” we must refuse to apply “an intervening change to pending petitions where

to do so would violate a right which had matured or become unconditional.” Scholtz,

427 A.2d at 915. FOP’s argument that Officer Lopez’s rights have “matured”

because the arbitrator reached a decision completely ignores the system that the

Council enacted for administrative and judicial review of an arbitrator’s ruling on

disciplinary grievances of public employees. See D.C. Code § 1-605.02(6); see also

Plaut, 514 U.S. at 227 (“It is the obligation of the last court in the hierarchy that

rules on the case to give effect to Congress’s latest enactment, even when that has

the effect of overturning the judgment of an inferior court, since each court, at every

level, must ‘decide according to existing laws.’” (quoting Schooner Peggy, 5 U.S.

(1 Cranch) at 109)). And we disagree that whatever benefits Officer Lopez may

have derived from the now-repealed § 5-1031(a-1) were unconditional, given that

this appeal (at least initially) questioned whether § 5-1031(b)’s tolling provision was

correctly applied. Contrary to FOP’s assertion, no right to reinstatement had

“vested.”

14

Finally, we consider “the impact of the present law on the rights of the

parties.” Scholtz, 427 A.2d at 918. FOP makes no argument that the responsibilities

or substantive obligations of the parties were altered by the repeal of § 5-1031(a-1).

Instead, its argument is nothing more than an expression of its frustrated hope that

the 90-day rule would remain unchanged in perpetuity. But “[t]he continued

existence of local government would be of no value if mere expectations were

permitted to disarm it of power.” Id.

In sum, we reject FOP’s argument that the Council’s repeal of § 5-1031(a-1),

which it expressly made retroactive to all pending cases, cannot be applied to the

current case because to do so would create manifest injustice.

C. The Reform Act Does Not Violate Separation of Powers Principles

Citing United States v. Klein, 80 U.S. 128 (1871), and Bank Markazi v.

Peterson, 578 U.S. 212 (2016), FOP contends that the Reform Act, “[a]s interpreted

by MPD,” “is an unconstitutional attempt by the MPD and the D.C. Council to issue

15

a judicial mandate.” It argues that retroactive application of the repeal to this case

is an attempt to “‘direct the result’ concerning what is clearly erroneous [in this type

of case] ‘without altering the legal standards’ governing PERB’s review of

arbitration decisions.” We agree with MPD that the Council’s directive to apply the

repeal of § 5-1031(a-1) to pending cases does not violate the restrictions imposed on

legislative action by separation of powers principles. 4

FOP correctly states that “the Reform Act neither modifies this Court’s

standard of review nor PERB’s standard of reviewing the Arbitration Award.”

However, it mistakenly asserts that there is no new legal standard to apply. It bases

this assertion on the curious claim that “the law at issue on this appeal is not the 90-

day rule itself and does not concern any legal interpretation of the 90-day rule.”

The arbitrator’s reinstatement of Officer Lopez was squarely based on his

interpretation of the 90-day rule and its tolling provision. By repealing that rule and

directing that the repeal be applied to pending cases, the Council obviously was

changing the substantive legal standards that the arbitrator, PERB, OEA, the

4

The District of Columbia adheres to Separation of Powers principles. See

D.C. Code § 1-301.44(b); see also Hessey v. Burden, 584 A.2d 1, 5-6 (D.C. 1990).

16

Superior Court, and this court should apply. The new legal standard is that no statute

of limitations governs disciplinary proceedings against police officers. Reviewed in

light of this new legal standard, the award directing reinstatement was “contrary to

law and public policy.” D.C. Code § 1-605.02(6).

The Council did not intrude upon judicial power by enacting this legislation.

The Supreme Court has made it clear that “Congress . . . may amend the law and

make the change applicable to pending cases, even when the amendment is outcome

determinative.” Bank Markazi, 578 U.S. at 215. This is not a situation where the

Council was impermissibly attempting to dictate the outcome of a particular case by

compelling “findings or results under old law.” Robertson v. Seattle Audubon Soc’y,

503 U.S. 429, 438 (1992).

The Reform Act’s legislative history reveals that the Council first considered

extending the 90-day rule only for certain conduct (to 180 business days) or further

extending the rule (to 365 days) and eliminating the need for business-day

calculations. Report on Bill 24-320 at 11, 32. By instead repealing the provision in

question, the Council has avoided “creating needless confusion about the timeline

for initiating discipline,” id. at 32; see supra note 1, and opted for no timeline to be

17

applied at all. Retroactive application of the repeal undoubtedly “more fully

effectuate[s]” the Council’s rational purpose, Pension Benefit Guar. Corp. v. R.A.

Gray & Co., 467 U.S. 717, 730 (1984), of increasing the accountability of the

District’s police officers, who hold “critical positions of public trust,” by ensuring

that a “technical obstacle” does not thwart the disciplinary process in cases that have

not been finally adjudicated, Report on Bill 24-320 at 2, 32-33. Retroactive

application also greatly simplifies the legal standard to be applied, in that calculating

the number of business days elapsed and determining when the tolling effect of an

investigation has concluded are no longer relevant for either pending or future cases.

See Pension Benefit Guar. Corp., 467 U.S. at 730 (retroactive application must be

justified by a rational legislative purpose). These changes are the very essence of

“altering the legal standards.”

D. The Reform Act Does Not Violate the Contracts Clause

Finally, applying the repeal of § 5-1031(a-1) to this case does not violate the

Contracts Clause. See U.S. Const. art. I, § 10, cl. 1 (“No State shall . . . pass any . . .

Law impairing the Obligation of Contracts . . . .”); D.C. Code § 1-203.02 (subjecting

“the legislative power of the District . . . to all the restrictions and limitations” of the

18

Contracts Clause of the U.S. Constitution). To establish a violation of the Contracts

Clause, a party must demonstrate “(1) that there has been a substantial impairment

of a contractual relationship; (2) that the impairment is not justified by a ‘significant

and legitimate public purpose’; or if so justified, (3) that the impairment is not based

upon reasonable conditions or ‘of a character appropriate to the public purpose

justifying [the legislation’s] adoption.’” W. End Tenants Ass’n v. George

Washington Univ., 640 A.2d 718, 732 (D.C. 1994) (alteration in original) (quoting

Energy Rsrvs. Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-12 (1983)).

FOP argues, citing MPD v. PERB I, 901 A.2d at 789, that the Reform Act

substantially impairs the collective bargaining agreement because the arbitrator’s

decision, “having already been rendered, has become part of a binding contract

between the MPD and the D.C. Police Union.” As an initial matter, we are skeptical

that the statement to which FOP cites could stand for the proposition that the arbitral

award in this case became part of the parties’ collective bargaining agreement before

a final judgment has been issued on appeal. More fundamentally, MPD v. PERB I

concerned an arbitrator’s interpretation of a provision in a collective bargaining

agreement, rather than a statute. What the cited language attempts to clarify is that

the parties become bound by an arbitrator’s interpretation of the law “[w]hen

construction of the contract implicitly or directly requires an application of external

19

law.” Id. (emphasis added) (quoting Am. Postal Workers Union v. U.S. Postal Serv.,

789 F.2d 1, 6 (D.C. Cir. 1986)). In that case, “the parties [had] bargained for the

arbitrator’s interpretation of Article 12, Section 6” of the collective bargaining

agreement. Id. We, therefore, declined to reinterpret the contract by applying a

presumption that “comes into play in a court’s interpretation of statutes and

regulations.” Id. at 788, 789. We recognized there, as we do here, the arbitrator’s

role as the “contract reader”—that parties who have agreed to arbitrate have

“‘bargained for [the arbitrator’s] construction of the contract,’ not a court’s.” Id. at

789 (alteration in original) (emphasis added) (first quoting United Steelworkers v.

Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960); and then quoting Am. Postal

Workers, 789 F.2d at 6).

FOP claims that the Reform Act “significantly interferes with the MPD’s

decades-old obligation” to take adverse action “only within the strictures of the 90-

day rule,” but it has not identified any portion of the contract which rendered that

obligation contractual rather than (or in addition to) statutory, and neither the

arbitrator’s award nor PERB’s decision so much as implies that the award was

premised on an interpretation of the collective bargaining agreement itself. In fact,

the arbitrator’s award refers to the collective bargaining agreement only twice:

mentioning; (1) FOP’s invocation of the arbitration provision; and (2) the provision

20

governing the costs of arbitration. Here, the arbitrator was interpreting a statute, not

a contract, and his award was not yet final.

But even assuming, as FOP contends, that the collective bargaining agreement

was somehow impaired by the Reform Act, we conclude that the impairment here is

not “substantial.” See Fraternal Ord. of Police, Metro. Police Dep’t Lab. Comm.,

D.C. Police Union v. District of Columbia, 45 F.4th 954, 961 (D.C. Cir. 2022)

(“Retrospective laws violate the Contract Clause only if they ‘substantially’ impair

existing contract rights.” (quoting Sveen v. Melin, 138 S. Ct. 1815, 1822 (2018))).

“In determining the extent of the impairment, we are to consider whether the industry

the complaining party has entered has been regulated in the past,” Energy Rsrvs.,

459 U.S. at 411, and “the extent to which the law undermines the contractual bargain,

interferes with a party’s reasonable expectations, and prevents the party from

safeguarding or reinstating his rights,” Sveen, 138 S. Ct. at 1822.

First, “the D.C. government has heavily regulated collective bargaining for

decades” and, more specifically, has regulated the deadline for beginning adverse

action, which has fluctuated in duration and in how the start and end of the period

are determined, “so [FOP] was on notice that future statutory changes were likely.”

21

Fraternal Ord. of Police, 45 F.4th at 961; see Omnibus Public Safety Agency

Reform Amendment Act of 2003, Report on Bill 15-32 before the Committee on the

Judiciary, Council of the District of Columbia at 14-15 (Dec. 9, 2003) (discussing

the previous 45-day rule, its repeal, and the subsequent enactment of the 90-day rule

in § 5-1031). Second, our conclusion that this litigation remained pending at the

time the Reform Act went into effect, see supra Section II.A, not to mention that

PERB and the Superior Court reviewed the arbitration award, undercuts the

reasonableness of any expectation that the award would not be set aside, regardless

of the Reform Act’s passage. FOP has not demonstrated any other way in which the

collective bargaining agreement is affected by the Reform Act. As MPD points out,

Officer Lopez’s “right to arbitrate his termination [is] a right left intact by the

Reform Act.” We thus are satisfied that the Reform Act does not substantially impair

the parties’ agreement and does not violate the Contracts Clause. 5

5

Our conclusion is bolstered by comparing the impairment FOP asserts in this

litigation to that which the D.C. Circuit held was not substantial. See Fraternal Ord.

of Police, 45 F.4th at 961 (holding that the Council’s act stripping FOP of the ability

to negotiate disciplinary procedures did not violate the Contracts Clause, even

though FOP and MPD had previously agreed that “existing disciplinary procedure

‘shall be incorporated into any successor’ agreement unless changed through a

prescribed process”), cert. denied, 143 S. Ct. 577 (2023).

22

III. Conclusion

The arbitration award ordered that Officer Lopez be reinstated based solely

on the arbitrator’s view that MPD had violated the 90-day rule then embodied in

D.C. Code § 5-1031 (repealed 2023). Because we conclude that the repeal of the

90-day rule must be applied here, the award is on its face contrary to the Reform

Act, and therefore must be set aside. Accordingly, the judgment of the Superior

Court is reversed, and the case is remanded to PERB with instructions to vacate its

decision, set aside the arbitrator’s award, and remand to the arbitrator for further

proceedings consistent with this opinion.

So ordered.