Petition for Writ of Certiorari — Andrew Johnson, Petitioner v. District of Columbia Public Schools, et al.

no. '2^0 ~ 22J4

ORIGINAL

3fri tlje

Supreme Court of tfje ®niteb States

FILED

JUL 0 6 2026

OFFICE

OF THE CLERK

----------SUPREME COURT, U.S.

-------

ANDREW JOHNSON,

Petitioner,

v.

•DISTRICT OF COLUMBIA PUBLIC SCHOOLS, Et Al.,

Respondents.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Andrew Johnson

Petitioner Pro Se

5776 South Lakeview Street

Littleton, CO 80120

(202) 674-3801

andrewjohnson70@hotmail.com

August V, 2026

SUPREME COURT PRESS

(888) 958-5705

Boston, Massachusetts

1

QUESTIONS PRESENTED

1. Whether, in light of Loper Bright Enterprises

v. Raimondo, 603 U.S. 369 (2024), which requires

courts to exercise independent judgment on questions

of law rather than defer to agency determinations, an

appellate court violates the Due Process Clause of the

Fifth Amendment when it applies deferential “sub­

stantial evidence” review—rather than de novo review—

to determine whether an administrative agency complied

with specific legal directives contained in a prior judi­

cial remand order.

2. Whether de novo review is constitutionally

required when an appellate court reviews a govern­

ment agency’s compliance with specific legal findings

contained in a prior judicial remand order, such that

applying deferential review effectively nullifies the

reviewing court’s prior legal determinations and renders

judicial remand orders unenforceable against govern­

ment agencies.

11

PARTIES TO THE PROCEEDINGS

Petitioner and Appellant below

• Andrew Johnson

Respondents and Appellees below

• District of Columbia Public Schools (DCPS)

DCPS was the Appellee before the District of

Columbia Court of Appeals, the RespondentAppellee before the Superior Court of the District

of Columbia, and the Agency-Appellee before the

District of Columbia Office of Employee Appeals.

• District of Columbia Office of Employee Appeals

(OEA)

/

OEA was the Appellee before the District of

Columbia Court of Appeals and the RespondentAppellee before the Superior Court of the District

of Columbia.

iii

LIST OF PROCEEDINGS

District of Columbia Court of Appeals

No. 25-CV-0112

Andrew Johnson, Appellant, v. District of Columbia

Public Schools, et al., Appellees.

Judgment: April 30, 2026

Superior Court of the District of Columbia

No. 2024-CAB-003339

Andrew Johnson, Petitioner, v. District of Columbia

Public Schools, et al., Respondents.

Final order: February 6, 2025

IV

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDINGS.......................... ii

LIST OF PROCEEDINGS.......................................... iii

TABLE OF AUTHORITIES....................................... ix

PETITION FOR A WRIT OF CERTIORARI.............. 1

OPINIONS BELOW..................................................... 1

JURISDICTION............................................................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................................... 2

STATEMENT OF THE CASE..................................... 5

A. Petitioner’s Wrongful Termination and

Decade-Long Fight for Reinstatement

(2011-2021)......................................................... 6

B. The Back Pay Dispute: DCPS Seeks and

Obtains an Evidentiary Hearing on

Mitigation (2021)................................................. 7

C. The Superior Court’s June 8, 2023

Remand Order: Specific Legal Findings of

OEA Error........................................................... 8

D. The OEA’s Post-Remand Decision:

Departure from the Remand Order’s

Directives (March 2024)................................. 9

E. Petitioner’s Threshold Motion and the

DCCA’s Proceedings (2025-2026)................... 11

F. The Irreconcilable Conflict Between the

Superior Court’s Standard and the

DCCA’s Standard............................................. 12

V

TABLE OF CONTENTS (Cont.)

Page

SUMMARY OF THE ARGUMENT........................... 13

REASONS FOR GRANTING THE PETITION....... 16

I.

The Decision Below Directly Conflicts with

Loper Bright Enterprises v. Raimondo and

This Court’s Command That Courts

Exercise Independent Judgment on

Questions of Law..................................................16

A. Loper Bright Requires Courts to Decide

Legal Questions Independently,

Without Deference to Agency

Determinations............................................... 16

B. The DCCA Applied Deferential

Substantial Evidence Review to

Questions That Loper Bright Requires

to Be Decided Independently....................... 17

C. The Conflict with Loper Bright Is

Especially Acute Because the DCCA

Acknowledged De Novo Review for

Some Legal Questions While Applying

Deference to Others Without

Explanation..................................................... 18

II. The Decision Below Creates an Important

Unresolved Constitutional Question:

Whether the Fifth Amendment’s Due

Process Clause Permits Deferential Review

of an Agency’s Compliance with a Specific

Prior Judicial Order......................................19

A. Due Process Requires Meaningful

Judicial Review of Government Action

Against an Individual....................................19

vi

TABLE OF CONTENTS (Cont.)

Page

B. Applying Substantial Evidence Review

to Compliance Questions Renders

Judicial Remand Orders

Constitutionally Unenforceable Against

Government Agencies................................... 20

C. The Constitutional Dimension Is

Heightened Where, as Here, the Agency’s

Conduct Includes Relying on a

Characterization the Reviewing Court

Has Already Rejected....................................21

III. This Case Presents the Questions in an

Exceptionally Clean Posture.................... 22

A. The Standard-of-Review Question Was

Explicitly Raised and Preserved............... 22

B. The Conflict Between the Two Courts’

Standards Is on the Face of the Record... 22

C. The Outcome-Determinative Impact of

the Standard Is Concrete, and

Quantifiable.................................................... 23

D. The Questions Presented Are Purely

Legal................................................................. 23

CONCLUSION................................................................. 23

vii

TABLE OF CONTENTS (Cont.)

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Memorandum Opinion and Judgment,

District of Columbia Court of Appeals,

Case No. 25-CV-0112 (April 30, 2026)........ la

Order, Superior Court of the District of

Columbia, Case No. 2024-CAB-003339

(February 6, 2025)................................................ 12a

Order Granting Respondent’s Motion to Dismiss,

Superior Court of the District of Columbia,

Case No. 2024-CAB-3339 (October 30, 2024).. 25a

Second Addendum Compliance Decision on

Remand, Office of Employee Appeals, Case

No. 1601-0215-11C21R23 (March 26, 2024).... 28a

Order Affirming In Part and Reversing In Part,

Superior Court of the District of Columbia,

Case No. 2022-CA-000506 P(MPA)

(June 8, 2023)......................................................... 44a

Order Denying Appellant’s Motion to Correct

Case Description, District of Columbia

Court of Appeals, Case No. 25-CV-0112

(March 17, 2025).............................................. 83a

Rehearing and Reconsideration Orders

Order Denying Petition for Rehearing,

District of Columbia Court of Appeals,

Case No. 25-CV-0112 (May 15, 2026).......... 85a

Order Denying Motion to Recall the Mandate,

District of Columbia Court of Appeals,

Case No. 25-CV-0112 (May 28, 2026).......... 87a

viii

TABLE OF CONTENTS (Cont.)

Page

Order Denying Appellant’s Motion to Reconsider,

District of Columbia Court of Appeals,

Case No. 25-CV-0112 (April 24, 2025)....... 89a

Order Denying Petitioner’s Motion for

Reconsideration, Superior Court of the

District of Columbia, Case No. 2024-CAB-3339

(November 4, 2024)........................................... 91a

Other Documents

Appellant’s Motion to Correct Case Description,

Filed in District of Columbia Court of Appeals,

Case No. 25-CV-0112 (February 18, 2025).94a

IX

TABLE OF AUTHORITIES

Page

CASES

Board of Regents v. Roth,

408 U.S. 564 (1972)

20

Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984)

16

Goldberg v. Kelly,

397 U.S. 254 (1970)

19

Int’l Union, United Mine Workers of Am. v.

Bagwell, 512 U.S. 821 (1994)

Johnson v. D.C. Pub. Schs.,

191 A.3d 293 (D.C. 2018)

11, 21

6, 14, 21

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024)

i, 5, 13, 16-19, 23

McBride v. Merrell Dow & Pharms., Inc.,

800 F.2d 1208 (D.C. Cir. 1986)

11

Palmore v. United States,

411 U.S. 389 (1973)

2

RFB Props., LLC v. Fed. Nat’l Mortg. Ass’n,

284 A.3d 381 (D.C. 2022)

18

Royal v. D.C. Metro. Police Dep’t,

314 A.3d 67 (D.C. 2024)

12

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. V

i, 2, 16, 19, 20, 23

TABLE OF AUTHORITIES (Cont.)

Page

STATUTES

5 U.S.C. § 706...................

28 U.S.C. § 1257(a).........

D.C. Code § 1-606.03(d)...

4, 16

2, 3

........... 3

JUDICIAL RULES

Sup. Ct. R. 13.3................

Sup. Ct. R. 14.5................

2

2

REGULATIONS

6-BD.C.M.R. § 1149

6-BD.C.M.R. § 1149.1..

6-BD.C.M.R. § 1149.11(c)

9-15, 17, 20, 21, 23

3, 17

4, 9, 17

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certio­

rari issue to review the judgment below.

------ ®-----OPINIONS BELOW

The Memorandum Opinion and Judgment of the

District of Columbia Court of Appeals (DCCA), dated

April 30, 2026, is reproduced in the Appendix at

App.la.

The final decision of the Superior Court of the

District of Columbia, dated February 6, 2025, which

the DCCA affirmed, is reproduced at App.l2a.

The OEA Second Addendum Compliance Deci­

sion on Remand, dated March 26, 2024 (OEA Matter

No. 1601-0215-11C21R23, Senior Administrative Judge

Joseph E. Lim), is reproduced at App.28a.

JURISDICTION

The District of Columbia Court of Appeals issued

its Memorandum Opinion and Judgment on April 30,

2026. App.la. The DCCA denied Petitioner’s Petition

for Rehearing on May 15, 2026. App.85a. The DCCA

denied Petitioner’s Motion to Recall the Mandate on

May 28, 2026. The mandate has issued.

2

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a), which provides that final judgments or

decrees rendered by the highest court of a State in

which a decision could be had may be reviewed by the

Supreme Court where a federal question is presented.

The District of Columbia Court of Appeals is the

highest court of the District of Columbia for purposes

of § 1257(a). See Palmore v. United States, 411 U.S. 389,

395-96 (1973). The petition was timely submitted within

90 days of the May 15, 2026 denial of rehearing, the

date from which the 90-day period runs under Supreme

Court Rule 13.3. By letter dated July 14, 2026, the

Clerk returned the petition for correction and allowed

60 days from the date of that letter for submission of

a corrected petition. Sup. Ct. R. 14.5. This corrected

petition is submitted within that period.

------ ®-----CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Const, amend. V (Due Process Clause):

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

3

law; nor shall private property be taken for public

use, without just compensation.

28 U.S.C. § 1257(a) (Jurisdiction):

Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

by writ of certiorari where the validity of a treaty

or statute of the United States is drawn in

question or where the validity of a statute of any

State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or

laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or

statutes of, or any commission held or authority

exercised under, the United States.

D.C. Code § 1-606.03(d)

(OEA Appeal to Superior Court):

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.

6-B D.C.M.R. § 1149.1 (Definition of Pay):

Pay - the rate of basic pay or basic compensation

as defined under the applicable pay system; pay

increases; within-grade increases; premium pay

(including holiday, Sunday, night, administrative

closing, and local environment pay); on-call pay;

retained rates; and pay adjustments for District

Service supervisors. For the purpose of this section,

4

pay also means annual, sick, court, and military

leave.

6-B D.C.M.R. § 1149.11(c) (Grace Period):

In computing the amount of back pay under this

section, the agency shall not include any of the

following: . . . (c) Any period after one (1) year

from the date of the unjustified or unwarranted

personnel action where it is determined that an

employee has not actively sought employment.

5 U.S.C. § 706

Administrative Procedure Act—Scope of Review:

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the

meaning or applicability of the terms of an agency

action. The reviewing court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre­

tion, or otherwise not in accordance with

law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, author­

ity, or limitations, or short of statutory

right;

(D) without observance of procedure required

by law;

5

(E) unsupported by substantial evidence in

a case subject to sections 556 and 557 of

this title or otherwise reviewed on the

record of an agency hearing provided by

statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo

by the reviewing court.

------------ $------------

STATEMENT OF THE CASE

This case presents a fundamental question about

the constitutional integrity of judicial review of gov­

ernment agency action: whether a court may insulate

an administrative agency’s departure from a prior

judicial remand order by applying deferential “sub­

stantial evidence” review—rather than de novo review—

to questions of legal compliance and statutory inter­

pretation.

The District of Columbia Court of Appeals did

exactly that here, affirming an agency decision that

contradicted specific legal findings of the reviewing

court below. This Court’s recent decision in Loper Bright

Enterprises v. Raimondo, 603 U.S. 369 (2024), which

requires courts to exercise independent judgment on

legal questions rather than defer to agency determi­

nations, makes the error here all the more acute.

6

A.

Petitioner’s Wrongful Termination and

Decade-Long Fight for Reinstatement

(2011-2021).

Petitioner Andrew Johnson served as a School

Psychologist with the District of Columbia Public

Schools (“DCPS”). On August 12, 2011, DCPS termi­

nated his employment based on two consecutive years

of a “Minimally Effective” IMPACT rating. On Sep­

tember 9,2011, Petitioner filed a Petition for Appeal with

the District of Columbia Office of Employee Appeals

(“OEA”), contesting his termination.

The initial OEA proceedings were marred by a

fundamental misrepresentation. DCPS retroactively

dated Petitioner’s removal as a “retirement,” causing

the OEA to dismiss the case for lack of jurisdiction on

the ground that Petitioner had voluntarily retired.

The OEA Board affirmed that dismissal on February

16, 2016. The Superior Court affirmed on February

21, 2017. On August 9, 2018, the District of Columbia

Court of Appeals vacated the dismissal, holding that

Petitioner had not voluntarily retired. Johnson, v. D.C.

Pub. Schs., 191 A.3d 293 (D.C. 2018) (“Johnson Appeal

I”). This ruling—that Petitioner’s separation was

involuntary—was final and binding. It is a critical fact

for understanding the proceedings that followed, because

DCPS and OEA continued to rely on the voluntary­

retirement characterization in subsequent proceedings

despite this appellate ruling to the contrary.

After remand, the OEA issued an Initial Decision

on Remand on June 14, 2019, upholding Petitioner’s

termination on the IMPACT rating grounds. On May

19, 2020, the OEA Board remanded again for an evi­

dentiary hearing on whether DCPS had committed

procedural errors in administering the IMPACT ratings.

7

After a July 23, 2020 evidentiary hearing, the OEA

issued a Second Initial Decision on Remand on Octo­

ber 15, 2020, reversing DCPS’s termination, ordering

Petitioner’s reinstatement, and directing that Petitioner

be “reimbursed all back pay and benefits lost as a

result of this removal action.”

On February 4, 2021, the OEA Board upheld the

reinstatement and back pay order, specifically holding

that DCPS had failed to prove just cause for Petitioner’s

termination. Petitioner accepted DCPS’s job offer on

approximately December 21, 2020, and his reinstate­

ment as a School Psychologist took effect January 4,

2021.

B.

The Back Pay Dispute: DCPS Seeks and

Obtains an Evidentiary Hearing on Mitigation

(2021).

On February 19, 2021—before the back pay

award had been calculated—DCPS moved for an evi­

dentiary hearing to determine whether Petitioner had

mitigated his damages during the nine-year period of

his unlawful separation. Petitioner opposed the hearing,

arguing that the OEA Board’s February 4, 2021 final

order directing payment of all back pay and benefits

was controlling and that the mitigation question had

been superseded.

The OEA granted DCPS’s request. An evidenti­

ary hearing was held June 23, 2021. DCPS presented

expert testimony from a vocational rehabilitation

consultant, Deborah Moreau, who opined that a suffi­

cient job market existed for school psychologists in the

D.C. metropolitan area and that Petitioner had not

adequately searched for employment. Petitioner testi­

fied and submitted documentary evidence—approx-

8

imately sixty pages—showing his job search efforts.

The OEA Administrative Judge (“AJ”) found Petitioner

not credible based on demeanor, despite the fact that

the hearing was conducted virtually via Webex rather

than in person. Petitioner filed three separate motions

to recuse the AJ based on demonstrated bias; all were

denied without explanation.

On September 29, 2021, the AJ issued an Adden­

dum Decision on Compliance, finding that Petitioner

had failed to adequately mitigate his damages from

2011 to 2020 and that his back pay must be reduced by

amounts he could have earned. On December 17, 2021,

the OEA Board declined to review the Addendum Deci­

sion, holding it lacked jurisdiction to review compliance

decisions.

C.

The Superior Court’s June 8, 2023 Remand

Order: Specific Legal Findings of OEA Error.

Petitioner appealed to the Superior Court of the

District of Columbia (Case No. 2022-CA-000506

P(MPA)), before the Honorable Alfred S. Irving, Jr. On

June 8, 2023, Judge Irving issued a 31-page Order

Affirming in Part and Reversing in Part (“the Remand

Order”), which is central to this petition. The Remand

Order is significant for two reasons. First, Judge Irving

explicitly stated the correct standard of review: “The

Court reviews an agency’s legal conclusions de novo,

giving great deference to an agency’s interpretation of

its own regulations.” Remand Order at 6. Second,

applying that standard, the Superior Court made

three specific, binding findings that the OEA had com­

mitted legal errors—not merely factual errors—-in

calculating Petitioner’s back pay:

9

First, the OEA failed to properly apply 6-B

D.C.M.R. § 1149.11(c)’s one-year grace period, during

which Petitioner had no duty to mitigate. The court

held that OEA “failed to exclude from the calculations

the one-year grace period for Petitioner during which

he had no duty to mitigate.” Remand Order at 24.

Second, the OEA “failed to properly apply D.C.

Municipal Regulations in determining whether Peti­

tioner was owed sick or annual leave payout.” The court

held that 6-B D.C.M.R. § 1149’s definition of “pay”

includes sick leave, and the OEA should have considered

sick leave payouts in its calculation. Remand Order at

26.

Third, the OEA “failed to properly apply D.C.

Municipal Regulations in assessing whether Petitioner

was owed retirement annuity.” Because the OEA had

not correctly calculated back pay or included sick

leave, it had “prematurely ruled on Petitioner’s retire­

ment annuity.” Remand Order at 27. The court vacated

the OEA’s calculations and remanded with explicit in­

structions to recalculate back pay under 6-B D.C.M.R.

§ 1149 “and in accordance with this Order.” These

were not suggestions for the OEA to exercise discre­

tion differently. They were legal determinations—the

OEA had erred as a matter of law—accompanied by a

mandatory compliance directive.

D.

The OEA’s Post-Remand Decision: Departure

from the Remand Order’s Directives (March

2024).

On March 26, 2024, OEA Senior Administrative

Judge Joseph E. Lim issued the Second Addendum

Compliance Decision on Remand (“Post-Remand Deci­

sion”). On its face, the Post-Remand Decision departed

10

from the Superior Court’s specific legal directives in

two critical respects. On sick leave: The Superior Court

had found as a legal matter that § 1149’s definition of

“pay” includes sick leave and that the OEA was

required to consider it. The AJ acknowledged this

directive but denied sick leave payout based on the

DCPS Leave and Retirement Policy’s provision that

accumulated sick leave is “not payable upon resignation

or termination,” reasoning that Petitioner had volun­

tarily resigned his reinstated position in January 2021.

Post-Remand Decision at 8.

This relied on the same voluntary-resignation

characterization that the 2018 DCCA ruling had already

decisively rejected as to the original 2011 separation,

and applied it to a contested 2021 separation that

Petitioner disputed as an unlawful second termination.

The AJ substituted resignation-policy analysis for the

mandated regulatory inquiry under § 1149.

On retirement annuity: The Superior Court had

found that the OEA had “prematurely” ruled on annuity

before correctly calculating back pay, and ordered

recalculation. The AJ on remand denied additional

back pay first based on the mitigation finding, then

denied the annuity increase because “the Employee

failed to mitigate his damages, he is no longer entitled

to backpay. As such, no contributions can be made to

his retirement annuity.” Post-Remand Decision at 8.

This is the identical sequencing the Superior Court

had already identified as premature legal error. The

court had ordered the sequence corrected; the AJ

repeated it.

The net result of the Post-Remand Decision was a

back pay award of $68,613.44—one year’s salary minus

retirement annuity received and benefits Petitioner

11

would have paid—rather than the far larger award

Petitioner maintained he was owed under a correct

application of § 1149.

E.

Petitioner’s Threshold Motion and the DCCA’s

Proceedings (2025-2026).

On February 14, 2025, Petitioner filed a Notice

Regarding Case Description with the DCCA, explaining

that the Superior Court had transmitted the case

under the incorrect designation “Appeal of Agency

Decision” and requesting that the court recognize the

appeal as an “Appeal to Compel Compliance with

Superior Court Order Regarding Back Pay.” On Feb­

ruary 18, 2025, Petitioner filed a formal Motion to

Correct Case Description (App.94a) making the same

argument and citing controlling authority for the prop­

osition that courts retain inherent power to enforce

their own orders and that agencies may not ignore

judicial mandates. Int’l Union, United Mine Workers

of Am. v. Bagwell, 512 U.S. 821, 833 (1994); McBride

v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1212

(D.C. Cir. 1986).

This motion was not peripheral. It raised the

foundational question of what legal framework—and

therefore what standard of review—governed the

entire appeal. On March 17, 2025, the DCCA denied

the motion by order, without opposition having been

filed and without addressing the standard-of-review

question the motion raised. App.83a. On April 24, 2025,

the court denied reconsideration. App.89a. On April

30, 2026, the DCCA issued its Memorandum Opinion

and Judgment affirming the Superior Court’s orders.

Johnson v. D.C. Pub. Schs., et al., No. 25-CV-0112

(D.C. Apr. 30, 2026) (App.la).

12

The Opinion stated the governing standard as

follows: “To survive that review, the decision must state

findings of fact on each material contested factual

issue; those findings must be supported by substantial

evidence in the OEA record; and the OEA’s conclu­

sions of law must follow rationally from its findings.”

App.7a (quoting Royal v. D.C. Metro. Police Dep’t, 314

A.3d 67, 74 (D.C. 2024)). The Opinion then applied this

framework across every issue in the case—including

the compliance questions, the legal interpretations of

§ 1149, and the OEA’s departure from the Superior

Court’s specific remand directives.

The Opinion does not discuss whether the appeal

was properly characterized as a compliance enforce­

ment action, and does not explain why deferential

review was appropriate notwithstanding the Superior

Court’s own application of de novo review to the same

legal questions.

On May 15, 2026, the DCCA denied Petitioner’s

Petition for Rehearing per curiam without analysis.

App.85a. On May 28,2026, the DCCA denied Petitioner’s

Motion to Recall the Mandate per curiam without

analysis. App.87a. The same three-judge panel—Judges

Easterly, Deahl, and Shanker—issued all three rulings,

none with any substantive engagement with the standard-of-review argument.

F.

The Irreconcilable Conflict Between the

Superior Court’s Standard and the DCCA’s

Standard.

The structural anomaly at the heart of this case

is stark. The Superior Court—whose order the OEA

was required to comply with on remand—explicitly

applied de novo review to the OEA’s legal conclusions.

13

Remand Order at 6. It used that standard to identify

specific legal errors in the OEA’s application of § 1149

and issued mandatory corrective directives. The DCCA

then reviewed whether the OEA had complied with

those de novo legal findings and applied substantial

evidence review. The result is a system in which an

agency can escape compliance with a court’s de novo

legal determination by generating some evidentiary

support for a different outcome. That is precisely the

deference-to-agencies model this Court rejected in

Loper Bright, 603 U.S. 369, and it is constitutionally

untenable under the Due Process Clause’s guarantee

of meaningful judicial review.

The questions presented go to the structural

integrity of judicial review of government agency

action. When a court issues specific legal directives on

remand, and an agency departs from those directives,

a subsequent court’s application of deferential review

to the compliance question effectively nullifies the

prior court’s legal rulings. It renders judicial remand

orders advisory rather than binding against govern­

ment agencies. This Court’s review is warranted.

------ ®-----SUMMARY OF THE ARGUMENT

Preliminary Statement

This petition presents two interrelated questions

of federal constitutional law that are important,

unresolved, and recurring. They sit at the intersection

of two of the Court’s most consequential recent develop­

ments in administrative law: the Loper Bright directive

14

that courts must exercise independent legal judgment

rather than defer to agency determinations, and the

enduring due process guarantee that judicial review

of government action must be meaningful rather than

nominal. The DCCA’s decision in this case violates

both principles simultaneously—and does so in a way

that, if left undisturbed, gives every government agency

a roadmap to escape compliance with judicial remand

orders simply by generating some evidence for a

different result.

Background

This case arises from a thirteen-year employment

dispute between a public school psychologist and the

District of Columbia Public Schools. The underlying

facts are not complicated: Petitioner was wrongfully

terminated, spent a decade fighting to prove it, and

ultimately prevailed. The OEA ordered his reinstate­

ment and directed that he be “reimbursed all back pay

and benefits lost as a result of this removal action.”

What followed that order—and what this petition con­

cerns—is a series of agency departures from specific

judicial directives, insulated from correction by the

application of deferential review.

Three judicial proceedings frame the questions

presented. First, in 2018, the DCCA held that Peti­

tioner’s 2011 separation was not voluntary. Johnson v.

D.C. Pub. Schs., 191 A.3d 293 (D.C. 2018). That holding

was final and binding. Second, in June 2023, the

Superior Court reviewed the OEA’s back pay calcu­

lations, apphed de novo review to the OEA’s legal conclu­

sions, and identified three specific errors in the OEA’s

application of 6-B D.C.M.R. § 1149: failure to apply

the one-year grace period from the duty to mitigate; fail-

15

ure to treat sick leave as compensable “pay”; and

premature resolution of retirement annuity before

back pay was correctly calculated. The Superior Court

issued a mandatory remand directive requiring the

OEA to recalculate in compliance with § 1149 and the

court’s order. Third, on remand, the OEA acknowledged

those directives and departed from two of them—

denying sick leave payout by invoking a resignation

policy rather than § 1149, and repeating the same pre­

mature annuity sequencing already identified as error

—and was affirmed by the DCCA under a substantial

evidence standard that never asked whether the OEA

had followed the Superior Court’s specific legal com­

mands.

The OEA’s post-remand calculation produced a

back pay award of $68,613.44—one year’s salary, net

of retirement annuity received and benefits Petitioner

would have paid—rather than the materially larger

award mandated by correct application of § 1149. That

figure, however, is not merely inadequate; it remains

entirely unpaid. Despite years of litigation, multiple

remands, and a final compliance decision issued in

March 2024, Petitioner has not received a single

dollar of the back pay award. The DCCA’s affirmance

thus does not represent the end of a long road toward

partial relief—it represents the judicial ratification of

an outcome in which a government employee who

prevailed on the merits of his wrongful termination

claim walks away with nothing.

One further feature of the proceedings below

compounds the error. The OEA’s post-remand sick

leave denial rested on a voluntary-resignation charac­

terization that the 2018 DCCA ruling had already

conclusively rejected as to Petitioner’s 2011 separation—

16

a characterization Petitioner disputed as to his 2021

departure as well.

Against this background, the questions presented

are whether Loper Bright’s mandate of independent

judicial judgment and the Fifth Amendment’s guarantee

of meaningful judicial review require de novo review

of an agency’s compliance with specific legal directives

contained in a prior judicial remand order.

........... ..

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Directly Conflicts with

Loper Bright Enterprises v. Raimondo and

This Court’s Command That Courts Exercise

Independent Judgment on Questions of Law.

A. Loper Bright Requires Courts to Decide

Legal Questions Independently, Without

Deference to Agency Determinations.

In Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024), this Court overruled forty years of

Chevron deference and held that courts must “exercise

their independent judgment in deciding whether an

agency has acted within its statutory authority.” Id.

at 395. The Court grounded this holding in the Admin­

istrative Procedure Act’s command that courts “decide

all relevant questions of law” and “interpret constitu­

tional and statutory provisions.” 5 U.S.C. § 706. The

Court was explicit: courts may not defer to agency

interpretations of law “simply because a statute is

ambiguous.” Loper Bright, 603 U.S. at 395.

17

The principle of Loper Bright—that independent

judicial judgment on legal questions is not optional, it

is required—applies with at least equal force when the

legal question is whether an agency complied with a

specific prior judicial order. If courts must exercise

independent judgment to determine whether agencies

have acted within their statutory authority, they must

exercise that same independent judgment to deter­

mine whether agencies have obeyed the courts’ own

directives. Any other rule would be internally incoherent:

a court that independently determines (as the Superior

Court did here) that an agency made legal errors in

computing back pay, but then defers to that same

agency’s post-remand characterization of its own com­

pliance, has substituted deference for the independent

judgment that Loper Bright requires.

B. The DCCA Applied Deferential Substantial

Evidence Review to Questions That Loper

Bright Requires to Be Decided Independ­

ently.

The Superior Court, acting as the reviewing court

of first instance, correctly applied de novo review and

identified three specific legal errors by the OEA: failure

to apply 6-B D.C.M.R. § 1149.11(c)’s one-year grace

period properly; failure to consider sick leave as “pay”

under § 1149.1; and premature assessment of retire­

ment annuity before correctly calculating back pay. Each

of these was a legal conclusion—how the regulatory

scheme applies to a wrongfully separated employee—

not a factual finding.

On remand, the OEA acknowledged these directives

and then departed from two of them: on sick leave, it

substituted a resignation-policy analysis for the § 1149

inquiry the Superior Court had mandated; on annuity,

18

it repeated the same premature sequencing already

identified as error. Whether those departures constituted

noncompliance with the Superior Court’s legal directives

is itself a legal question—specifically, the question of

what the Superior Court’s remand order required and

whether the OEA did it.

The DCCA applied “substantial evidence” review

to those questions and affirmed. Op. at 5-6. In doing

so, the DCCA asked only whether some evidence in

the record supported the OEA’s conclusions—not

whether the OEA’s conclusions followed the Superior

Court’s specific legal directives. That is deference to

agency judgment on a legal question. Under Loper

Bright, it is impermissible. The reviewing court must

independently determine what the remand order

required and whether the agency complied. The DCCA

did not do so.

C. The Conflict with Loper Bright Is Espe­

cially Acute Because the DCCA Acknowl­

edged De Novo Review for Some Legal

Questions While Applying Deference to

Others Without Explanation.

The DCCA’s opinion is internally inconsistent in

a way that illustrates the error precisely. The court

acknowledged that jurisdictional questions are reviewed

de novo, citing RFB Props., LLC v. Fed. Nat’l Mortg.

Assn, 284 A.3d 381, 385 (D.C. 2022). Op. at 5. It then

applied substantial evidence review to the compliance

questions without explaining why the same de novo

standard does not apply there. The result is that the

court applied stricter review to the threshold jurisdic­

tional question—where it agreed with the lower court—

and deferential review to the substantive compliance

questions—where it affirmed. The structural effect is

19

that the DCCA used de novo review only when it chose

to look beyond the agency’s work, and deference when

it chose not to.

This selective application of review standards—

without explanation of what distinguishes the questions

that receive de novo review from those that receive

deference—is precisely the unprincipled deference

that Loper Bright sought to eliminate. The Court’s

guidance that courts must exercise independent judg­

ment on legal questions means that the category “legal

question” must be defined consistently, not case-bycase at the reviewing court’s discretion.

IL The Decision Below Creates an Important

Unresolved

Constitutional

Question:

Whether the Fifth Amendment’s Due Process

Clause Permits Deferential Review of an

Agency’s Compliance with a Specific Prior

Judicial Order.

A. Due Process Requires Meaningful Judicial

Review of Government Action Against an

Individual.

This Court has long recognized that the Due

Process Clause of the Fifth Amendment requires not

merely the form of judicial review but its substance.

The guarantee of meaningful review is foundational:

a court that reviews government action only nominally—

asking whether some evidence exists rather than

whether the government did what the law requires—

does not satisfy due process. See Goldberg v. Kelly, 397

U.S. 254, 267-68 (1970) (due process requires notice

and a meaningful opportunity to be heard before gov­

ernment deprives a person of a property interest).

20

Petitioner’s interest in his back pay, sick leave,

annual leave, and retirement annuity—compensation

owed for a decade of wrongful government-caused unem­

ployment—is unquestionably a property interest pro­

tected by the Fifth Amendment. See Board of Regents

v. Roth, 408 U.S. 564, 577 (1972). The question this

case presents is whether due process is satisfied when

an appellate court reviews a government agency’s

compliance with a prior court order under a standard

of review so deferential that it cannot identify depar­

tures from specific legal directives—even when the

lower reviewing court using the correct standard

already identified those departures as legal errors.

B. Applying Substantial Evidence Review to

Compliance Questions Renders Judicial

Remand Orders Constitutionally Unen­

forceable Against Government Agencies.

The practical consequence of the DCCA’s approach

is that a government agency can satisfy a judicial

remand order simply by generating some evidentiary

support for whatever conclusion it reaches. If the

reviewing court then asks only whether substantial

evidence exists—rather than whether the agency

followed the court’s specific legal directives—the agency

can relitigate questions the court has already resolved,

substitute different analysis for the mandated analy­

sis, and insulate that substitution from correction

through the shield of deference.

That is exactly what happened here. The Superior

Court held as a matter of law that sick leave must be

considered as “pay” under § 1149. The OEA AJ on

remand acknowledged this holding, then denied sick

leave -payout by invoking a resignation policy—

substituting a different legal framework for the man-

21

dated one. The DCCA affirmed because substantial

evidence supported the resignation finding. But the

DCCA never asked the antecedent question: did the

OEA have authority, after the Superior Court’s ruling,

to use the resignation policy to avoid the § 1149 anal­

ysis? That is a compliance question, and it required de

novo review. Under substantial evidence review, it

disappeared.

This Court has recognized the constitutional

imperative that courts retain power to enforce their

own orders against government actors. Int’l Union,

United Mine Workers of Am. v. Bagwell, 512 U.S. 821,

833 (1994). A standard of review so deferential that it

cannot detect noncompliance with specific judicial

directives is constitutionally inadequate. It transforms

judicial remands into suggestions rather than com­

mands and deprives individuals of the benefit of court

orders obtained through years of litigation.

C. The Constitutional Dimension Is Height­

ened Where, as Here, the Agency’s Conduct

Includes Relying on a Characterization the

Reviewing Court Has Already Rejected.

The due process concern is compounded in this

case by a specific pattern: both the OEA and DCPS’s

counsel repeatedly characterized Petitioner’s 2021

departure as a voluntary resignation—and used that

characterization to deny sick leave—even though the

2018 DCCA decision in Johnson Appeal Zhad conclu­

sively established that Petitioner’s 2011 separation was

not voluntary, and even though Petitioner disputed

the 2021 resignation characterization and submitted

documentary evidence to the contrary that was not

addressed. Reliance on a factual characterization to

deny a judicially-mandated benefit, without engaging

22

with the evidence disputing that characterization,

raises serious due process questions that substantial

evidence review is structurally incapable of reaching.

These due process concerns are not unique to this

case. Any government employee who obtains a judicial

remand order directing an agency to calculate benefits

under a specific regulatory framework faces the same

structural vulnerability: if the agency can evade com­

pliance by invoking a different legal rationale and

deferential review shields that substitution from

scrutiny, the constitutional protection of meaningful

judicial review is illusory.

III. This Case Presents the Questions in an

Exceptionally Clean Posture.

Several features of this case make it an unusually

suitable vehicle for addressing these questions:

A. The Standard-of-Review Question Was

Explicitly Raised and Preserved.

Petitioner’s Case Description Motion raised the

standard-of-review question squarely, and the DCCA

denied it. App.83a. There is no waiver question.

B. The Conflict Between the Two Courts’

Standards Is on the Face of the Record.

The Superior Court stated explicitly that it

applied de novo review to legal conclusions, identified

legal errors, and issued specific directives. The DCCA

applied substantial evidence review to the post-remand

compliance questions without explanation. The tension

requires no inference—it is documented in the opin­

ions themselves.

23

C. The Outcome-Determinative Impact of the

Standard Is Concrete, and Quantifiable.

Petitioner’s sick leave entitlement and retirement

annuity were denied under a standard that asked only

whether evidence supported the OEA’s conclusions—

not whether the OEA followed the Superior Court’s

specific directives. Under the correct standard, the OEA

AJ’s substitution of the resignation policy for the man­

dated § 1149 analysis would have required independent

judicial scrutiny rather than deference. The financial

stakes—the difference between the $68,613.44 awarded

and the additional sick leave and annuity denied—are

concrete.

D. The Questions Presented Are Purely

Legal.

Petitioner does not ask this Court to retry the

factual findings on mitigation. The failure-to-mitigate

finding, however disputed it may be on the merits, is

not the subject of this petition. The questions presented

concern only the standard by which the DCCA evaluated

the OEA’s post-remand compliance with specific legal

directives—a pure question of law that this Court can

resolve without disturbing any underlying factual de­

termination.

------ ®-----CONCLUSION

The petition for a writ of certiorari should be

granted. The questions presented—whether Loper

Bright’s mandate of independent judicial judgment

requires de novo review of an agency’s compliance with

a judicial remand order, and whether the Fifth Amend-

24

merit’s due process guarantee is satisfied by review so

deferential it cannot detect noncompliance with spe­

cific legal directives—are important, recurring, and

unresolved. They go to the structural integrity of judicial

oversight of government agencies and the enforceability

of remand orders against the government. They deserve

this Court’s attention.

At minimum, Petitioner respectfully requests that

this Court vacate the judgment below and remand to

the DCCA with instructions to reissue its opinion

applying the correct standards of review to each

category of claim.

Respectfully submitted,

Zs/ Andrew Johnson_______

Andrew Johnson

Petitioner Pro Se

5776 South Lakeview Street

Littleton, CO 80120

(202) 674-3801

andrewjohnson70@hotmail.com

August 7, 2026