TERRY, Associate Judge:
Todd Zirkle appeals from the denial of his motion for a preliminary injunction. In that motion, appellant sought to prevent his employer, the District of Columbia Office of Tax and Revenue ("OTR"), from terminating his employment pending the outcome of his suit brought under the District of Columbia Whistleblower Protection Act, D.C.Code §§ 1-615.51 et seq. (2001) ("WPA").
From February 2, 1998, to September 5, 2001, appellant was employed as the Supervisor of Major Property Tax Assessments in OTR, an agency within the Office of the Chief Financial Officer of the District of Columbia. Thomas Branham, after serving as the Chief Assessor for a period of time, became the Chief of Real Property Tax Assessments in OTR on August 1, 2001, and as such he became appellant's immediate supervisor. Above Mr. Branham was Henry Riley, the Director of the Real Property Tax and Assessments Division. Mr. Riley in turn reported to Herbert Huff, the Deputy Chief Financial Officer ("DCFO"). As DCFO, Mr. Huff was in charge of all personnel involved in the taxing function of OTR.
As Supervisor of the Major Properties Section, appellant was responsible for (1) directing the work of five assessors in connection with the annual appraisal process for "major properties" — i.e., those valued in excess of $2 million — located principally in downtown Washington; (2) overseeing the informal first-level appeal process for major property taxpayers (described in detail hereafter); and (3) advocating OTR's position in taxpayer appeals before the District of Columbia Board of Real Property Assessments and Appeals ("BRPAA") and also before the Superior Court.
A. The Tax Assessment Process
Under D.C.Code § 47-820(a)(3),
Following a first-level appeal hearing, a Decision Form was prepared which would set forth each contention by the taxpayer and OTR's response. Once this form was completed, appellant would review it for edits and judgment revisions. He would then circulate it among the assessors who took part in the hearing, and thereafter, unless there were additional edits proposed, the form would be signed by appellant and each assessor, entered into the Appeals Tracking System database, and then mailed to the appropriate parties or their representatives.
B. Appellant's Termination
In February 2001 the Committee on Finance and Revenue of the Council of the District of Columbia held oversight hearings, in which it heard testimony from representatives of the Apartment and Office Building Association of Metropolitan Washington ("AOBA"). AOBA's testimony was very critical of the first-level appeal process. It focused, in particular, on the perceived unfairness of OTR's practice of basing increases on information not considered when determining the initial assessment. This practice, according to AOBA, had a chilling effect on appeals. Soon after this hearing, DCFO Huff and Mr. Branham discussed ways to eliminate this perceived unfairness.
Months later, on August 15, 2001, at the direction of DCFO Huff, Mr. Branham approached appellant and expressed the view that increases on first-level appeals resulting from consideration of information which the assessors initially missed were "not a good idea," and that if the assessors missed the estimated market value in one tax year, they should leave it alone and increase it in the following tax year. Appellant disagreed with this philosophy, opining that a greater number of appeals would result because a taxpayer could now bring an appeal without risking an increase. Nevertheless, appellant and Mr. Branham agreed that the assessors should be permitted to continue with the first-level appeal process, make their decisions on estimated market value, and then sit down with Mr. Branham to review the evidence that supported the decisions.
Just over a week later, on August 23, appellant and Mr. Branham met again, this time to discuss three specific cases for which an increase appeared warranted after a first-level appeal hearing. One of the cases involved a significant assessment increase for a downtown office building. Mr. Branham acknowledged that the building had been underassessed, and that the first-level appeal decision would result in an increase in property taxes for that building. He then instructed appellant to contact the attorney who filed the first-level appeal to inform him of the increased
Some time later, appellant and Mr. Branham met again to discuss two other properties — one at L'Enfant Plaza North and the other at Hamilton Square — for which a first-level hearing had also resulted in increased assessments. Referring to the attorney for the Hamilton Square property, Mr. Branham said to appellant, "Why don't you call her? ... Maybe I'll just call her." In response to Mr. Branham's call, the attorney sent a withdrawal letter for the Hamilton Square property. Appellant understood that he was supposed to consider the appeal as "withdrawn" at that point, but he testified that he believed doing so would be illegal.
On September 4, 2001, appellant informed Mr. Branham that he did not comply with the August 23 order to call the taxpayer's representative and refrain from issuing an increase, since he believed that to do so would have been illegal. Appellant also revealed that earlier that day he had reported Branham to the Office of the Inspector General ("OIG") for the "illegal" August 23 order and other "unethical and/or illegal" conduct (apparently referring to Mr. Branham's call to the representative for the Hamilton Square property). Finally, appellant told Mr. Branham that on August 31 he had mailed out increase notices to nineteen taxpayers without discussing their cases with Mr. Branham or getting his approval to mail the notices (as appellant had agreed to do at their August 15 meeting). The trial court found this action to be "in knowing violation of Branham's directives." Mr. Branham responded, "Well, I'll have to let you go. I thought we could work this out, but if you want to do things your way, I'll have to let you go." Later that day, DCFO Huff, Director Riley, and Mr. Branham decided to place appellant on administrative leave, pending his termination, because he had been insubordinate and had violated a direct order not to issue increases on first-level appeals.
C. Proceedings Below
On September 18, 2001, appellant filed a complaint in the Superior Court, along with a motion for a temporary restraining order ("TRO"). The complaint alleged a violation of the WPA, and the TRO motion sought to prevent the Chief Financial Officer from exercising his at-will authority to terminate appellant's employment. On September 19, after an in camera hearing, the court issued an order temporarily restraining the defendants from terminating appellant for a period of five days. The TRO was later extended pending an evidentiary hearing on appellant's motion for a preliminary injunction. In due course an evidentiary hearing was held on that motion, and on February 14, 2002, the motion was denied in a written order, accompanied by a twenty-three-page memorandum opinion containing findings of fact and conclusions of law. This appeal followed.
"The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the trial court." Stamenich v. Markovic, 462 A.2d 452, 456 (D.C.1983) (citations omitted). "A proper exercise of discretion requires the trial court to consider whether the moving party has clearly demonstrated: (1) that there is a substantial likelihood that he will prevail on the merits; (2) that he is in danger of suffering irreparable harm during the pendency of the action; (3) that more
When this court reviews the granting or denial of a preliminary injunction, "it is not our task to resolve the overall merits of the dispute between the parties .... Rather, our role is confined to (1) examining the trial court's findings and conclusions to see if they are sufficiently supported by the record; (2) assuring that the trial court's analysis reflects a resolution of all the issues which necessarily underlie the issuance of an injunction; and (3) inquiring into any other claims of an abuse of discretion by the trial court." Id.
A. Irreparable Harm
In considering whether to issue a preliminary injunction, "the most important inquiry is that concerning irreparable injury." Wieck, 350 A.2d at 387. "An injunction should not be issued unless the threat of injury is imminent and well-founded, and unless the injury itself would be incapable of being redressed after a final hearing on the merits." Id. at 388 (citations omitted); see also Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) ("the basis of injunctive relief ... has always been irreparable harm and inadequacy of legal remedies" (citations omitted)).
At the hearing below, the only tangible harm to which appellant could point was the loss of a potential job offer.
Virginia Petroleum Jobbers, supra note 4, 104 U.S.App. D.C. at 110, 259 F.2d at 925 (emphasis in original); see also, e.g., District of Columbia v. Group Insurance Administration, 633 A.2d 2, 23 (D.C.1993) ("economic loss does not, in and of itself, constitute irreparable harm, unless the loss threatens the very existence of the movant's business" (citations and internal quotation marks omitted)); District 50, United Mine Workers v. International Union, United Mine Workers, 134 U.S.App. D.C. 34, 36, 412 F.2d 165, 167 (1969) (embarrassment and inconvenience are not irreparable harm). Should appellant prevail on the merits of his suit, we have no doubt that reinstatement with back pay would certainly be an adequate remedy. See Sampson, 415 U.S. at 90, 94 S.Ct. 937 ("the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury").
Appellant relies heavily on Bonds v. Heyman, 950 F.Supp. 1202 (D.D.C.1997), in which a preliminary injunction was granted to prevent a federal employee from being fired pending the outcome of her discrimination suit. Unlike this case, however, Bonds presented "a truly extraordinary situation," id. at 1216, because it was unlikely that the plaintiff, who had worked for the same employer for nearly forty years and was nearing retirement age, "could ever find work approaching what she now does, if she could find work at all." Id. at 1215. Comparable factors are not present here, and the record reveals no reason to expect that appellant would have difficulty finding work. See Nichols v. Agency for Int'l Development, 18 F.Supp.2d 1, 5 (D.D.C.1998) (plaintiff "says nothing about ... how someone with his talents will incur difficulty locating employment").
Appellant also argues that even if he were to be rehired and made whole financially, his experience would have a chilling effect on other employees in that they would be dissuaded from exercising their rights under the WPA. This argument is not without some support.
B. Likelihood of Success
To make a prima facie showing of a WPA violation, the plaintiff must establish by a preponderance of the evidence that he was the subject of a "prohibited personnel action" because of his refusal to comply with an "illegal order" or because he has made a "protected disclosure." See D.C.Code § 1-615.53.
1. Legality of the order
An "illegal order" is "a directive to violate or to assist in violating a federal, state, or local law, rule, or regulation." D.C.Code § 1-615.52(4). The trial court ruled that Mr. Branham's August 23 directive was not illegal, but "merely an exercise of the administrative discretion entrusted to OTR in the proper exercise of its agency function." Before this court appellant stresses that the "assessed value of all real property shall be the proposed estimated market value," 9 DCMR § 306.1 (1998) (emphasis added), and that the assessed
D.C.Code §§ 47-825.01(f-1) and (f-2), which codify the first-level appeal process, are completely silent as to how such appeals are to be conducted. Thus OTR's policy in no way contradicts any statutory language. As for the regulations, the DCFO is granted very broad discretion in deciding how to determine a property's estimated market value. See 9 DCMR § 307.2 ("the Deputy Chief Financial Officer may apply, when appropriate, one or more of the generally recognized approaches to valuation ... or any other method the [DCFO] deems necessary to arrive at estimated market value"); see also Wolf, supra note 11, 611 A.2d at 48. This broad discretion in determining methodology is granted because, as even appellant's expert testified, establishing the estimated market value is by no means an exact science. Consequently, it cannot be said that the estimated market value arrived at during the first-level appeal hearing is the only possible assessment based on the "most current, accurate, and conclusive evidence." On the contrary, we think it was quite reasonable for OTR to conclude, in light of its expertise in this area, that the initial assessment likewise met that requirement. Thus we are satisfied that OTR acted within its discretion in allowing a taxpayer the option to withdraw the appeal if it appeared, after the first-level hearing, that an increase would be justified.
2. Reasonableness of the belief
A "protected disclosure" is defined, in relevant part, as "any disclosure of information ... by an employee to a supervisor or a public body that the employee reasonably believes evidences ... [a] violation of a federal, state, or local law, rule, or regulation ...." D.C.Code § 1-615.52(6)(D) (emphasis added). Appellant contends that he was fired because he disclosed to the OIG Mr. Branham's August 23 order, as well as Branham's telephone call to the attorney for the Hamilton Square property, both of which he believed were illegal. To determine whether his belief was reasonable, the "proper test" is as follows:
Lachance v. White, 174 F.3d 1378, 1381 (Fed.Cir.1999).
The trial court found that appellant's belief was not that of an objectively reasonable person, "but rather that of a rigid partisan whose beliefs and conduct were being challenged by his superiors." We discern no error in this finding. Because OTR's new policy was, for reasons explained above, so clearly a proper exercise of discretion, we conclude that someone with appellant's background and expertise could not reasonably believe that Mr. Branham's order, made pursuant to that policy, was illegal. See Haley v. Department of the Treasury, 977 F.2d 553, 557 (Fed.Cir.1992) ("The relevant statutes clearly granted broad discretion .... Petitioner's experience as an Examiner and the clear language of the relevant authorities make Petitioner's claim [of a reasonable belief] untenable").
The unreasonableness of appellant's belief is compounded by the fact that he never raised any objection to—and indeed helped to create—OTR's "five o'clock rule." Appellant tries to distinguish the two policies from each other on the ground that OTR's new policy allows a taxpayer to withdraw an appeal after learning that an increase appears warranted, whereas under the five o'clock rule the taxpayer had to exercise the withdrawal option on the day of the hearing, which of course would be before a formal decision had been issued. This is not a meaningful distinction. As we have pointed out, 9 DCMR § 306.2 requires assessments to be made "on the basis of the most current, accurate, and conclusive evidence of market value." Under the five o'clock rule, even though a decision had yet to be reached, more recent information was adduced at the hearing, thereby creating a more "current" and perhaps "accurate" body of information. Thus, if appellant's reasoning were followed to its logical conclusion, no withdrawal could be allowed under either policy. It was inconsistent, and therefore unreasonable, for appellant to believe that the new OTR policy was illegal, while at the same time endorsing the previous five o'clock rule. The trial court was correct when it concluded that "the five o'clock rule on which plaintiff relies is no more than a different policy choice in the exercise of that same discretion."
3. "Contributing factor"
Even if appellant could establish that his belief was objectively reasonable, we would still be unpersuaded that appellant has a substantial likelihood of success on the merits of his WPA suit. The WPA requires an employee to demonstrate "by a preponderance of the evidence that an activity proscribed by § 1-615.53 was a contributing factor in the alleged prohibited personnel action against [the] employee." D.C.Code § 1-615.54(b). The trial court found that appellant's termination did not result from his "disclosure" to the OIG,
Finally, and perhaps more seriously, appellant failed to adhere to OTR's Code of Conduct insofar as it required compliance with the local tax laws. The trial court noted in its findings that in 1994 appellant purchased a house on First Street, N.W. He applied for, and was granted, a "homestead exemption" which entitled him to a reduction in his tax obligation for that property.
A few days later, Mr. Huff sent a memorandum to all OTR managers alluding to this incident and reminding all managers "to set an example of excellence in regard to meeting their tax obligations." The next day appellant confronted Mr. Huff in
The record thus fully supports the trial court's finding that Mr. Branham's decision to place appellant on administrative leave, pending his termination, "was a proper exercise of legitimate supervisory authority over an employee for cumulative acts of poor judgment that reached the stage of willful insubordination." The court concluded, and we agree, that appellant failed to prove by a preponderance of the evidence that he was entitled to a preliminary injunction.
Appellant has failed to establish that he is likely to suffer irreparable harm if a preliminary injunction is not granted. On this point we find no material difference between this case and the Supreme Court case of Sampson v. Murray, and accordingly we follow Sampson. We also hold, for the reasons stated in part II-B of this opinion, that appellant has not shown that he is likely to succeed in his litigation based on the Whistleblower Act. The order denying his motion for a preliminary injunction is therefore
All references to the D.C.Code in this opinion are to the current (2001) edition.