Tuesday, May 17, 2011

D.C. Court of Appeals -- Petition for Rehearing (1994-1995)

In September 1993 the D.C. Department of Human Rights (DHR) determined that there was no probable cause to believe that my job termination by the law firm of Akin, Gump, Strauss, Hauer & Feld in October 1991 was discriminatory in violation of the D.C. Human Rights Act of 1977. I thereupon filed a Petition for Review with the D.C. Court of Appeals.  The Court dismissed my Petition without prejudice for lack of jurisdiction.  Under case law, a DOHR no probable cause determination must first be reviewed in a civil action filed in the D.C. Superior Court; an unfavorable ruling by the Superior Court may then be reviewed in the Court of Appeals. The following is my Petition for Rehearing filed January 24, 1995.  The Court denied the Petition and, later in 1995, I filed a civil action in D.C. Superior Court.

The following Petition argues that the DHR engaged in the ultra vires act of engaging in a de facto adjudication of my mental competence by finding that a psychiatrist in consultation with my employer (senior attorney managers of a law firm) diagnosed me with a symptom frequently found in severe (psychotic) mental disorders and cautioned that I might become violent.

According to the D.C. courts DHR's finding that attorneys (licensed professionals whose craft is based on the assessment of facts) found  credible a psychiatrist's opinion that I suffered from a symptom characteristically found in psychotic disorders -- and further, under Burdine, found that an attorney-employer's sworn statements as to his beliefs and motivations were worthy of credence -- only goes to the issue of the mental state of the attorney managers and does not signify that I in fact suffer from a psychiatric disorder.

When President Obama states that American forces killed Osama bin Laden, it does not mean that Osama bin Laden is dead.  It simply means that a rational and intelligent adult believes that American forces killed Osama bin Laden and that the President's statements as to his beliefs are worthy of credence. I find that proposition ridiculous.  Our judicial system is based on the assumption that when twelve individuals who are rational and intelligent adults form the belief after careful assessment of the facts -- based on the credible statements as to the beliefs of witnesses -- that an individual is guilty of a crime, it means that that individual did in fact commit a crime.


Gary Freedman





No. 93-AA-1342


Pursuant to Rule 40, Petitioner, Gary Freedman, hereby files this Petition for Rehearing of the Court’s Memorandum Opinion and ORDER, filed January 10, 1995, dismissing, without prejudice to the timely filing of an appropriate civil action in the Superior Court, Petitioner’s Petition for Review for lack of jurisdiction.


The Court’s determination that the decision by the District of Columbia Department of Human Rights (DHR) dismissing Petitioner’s discrimination complaint did not constitute an adjudication of Petitioner’s mental competence, thereby conferring “contested case” status to this matter, and hence jurisdiction in the Court, is erroneous as a matter of law.

Admittedly, the clear language of DHR’s ultimate decision, quoted by the Court, “that there is no probable cause to believe that discrimination has occurred in this matter” fully disposes of Petitioner’s discrimination complaint. See DHR Initial Determination, dated June 30, 1993 (Initial Determination) at

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10. DHR’s general and nonspecific conclusion neither expressly adjudicated Petitioner’s mental competence nor did it refer in any manner to Petitioner’s mental competence.

DHR’s ultimate conclusion dismissing the complaint, however unspecific as to Petitioner’s mental competence, nonetheless incorporates, as a matter of law, each of DHR’s seven particularized findings, including Finding of Fact No. 6 that Petitioner’s employer had consulted two mental health professionals, including a psychiatrist who advised the employer that Petitioner suffered from a mental disorder that rendered him potentially violent. Initial Determination at 7.

An agency’s particularized findings of fact are as a matter of law and logic necessarily subsumed in the agency’s ultimate conclusion, regardless of how general and nonspecific the ultimate conclusion. Cf. generally Citizens Ass’n of Georgetown, Inc. v. District of Columbia Zoning Comm’n, 402 A.2d 36, 42 (D.C. 1979) (an agency’s ultimate decision must rest on findings of basic facts). An agency’s ultimate decision, resting as it does on particularized factual findings, logically incorporates, or subsumes, those factual findings. Cf. generally Brewington v. Board of Appeals & Review, 299 A.2d 145, 147 (D.C. 1973) (quoting Burlington Truck Lines, Inc., v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)(there must be a “;rational connection between the facts found and the choice made’”).

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DHR’s Finding of Fact No. 6 sets forth the agency’s specific findings with respect to Petitioner’s mental competence:

[The employer] also sought outside professional guidance because of the emotional and psychological nature of [Petitioner’s] allegations and his coworkers responses. [The employer] contacted an unnamed counselor from his Employee Assistance Program and an outside psychiatrist. Both agreed that [Petitioner] should seek counseling. Dr. Gertrude Ticho [M.D.] identified [Petitioner’s] behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. . . .” Initial Determination at 7.

DHR’s Finding of Fact No. 6, which sets forth the conclusions of a psychiatrist regarding petitioner’s mental state and employs the clinical terminology appropriate to the description of mental disorder 1/ represents a definite

1/ The term “ideas of reference,” employed in Finding of Fact No. 6, is a psychiatric term of art, which is defined as “the assumption by a patient that the words and actions of others refer to himself or the projection of the causes of his own imaginary difficulties upon someone else; called also delusion of reference.” DORLAND’S MEDICAL DICTIONARY 814 (27th ed. 1988). “Ideas of reference” are prominent in the severe (psychotic) mental disorders. R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA & THE PSYCHOTIC DISORDER 169 (New York Facts on File 1992). “[Ideas of reference are] [o]ne of the most common symptoms of the psychotic disorders. It is an idea that certain events or people in a person’s immediate environment have a magical “special meaning” for that person. For example, a song heard on the radio may be interpreted by a psychotic person as having been specifically played at that time to convey a special meaning to him or her.” Id. at 169.  DHR’s additional findings that Petitioner’s purportedly disturbed cognition rendered him potentially violent is strongly suggestive of a mental disorder of considerable severity.

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determination on a disputed issue of fact, namely, Petitioner’s mental competence. See Bakers Local 118 v. District of Columbia Bd. Of Zoning Adjustment, 437 A.2d 176, 180 (D.C. 1981) (an agency’s finding represents a definite determination on a disputed issue of fact).

DHR’s final action dismissing Petitioner’s discrimination complaint, though stated in language that does not refer to any factual basis for the dismissal, incorporates as a matter of law each of DHR’s particularized Findings of Fact, including Finding of fact No. 6 that represents DHR’s definite determination regarding Petitioner’s purportedly pathological mental state and his potential for violence. DHR’s action functions as a de facto adjudication of Petitioner’s mental competence. The adjudicative nature of DHR’s action therefore confers “contested case” status to this matter, and hence, jurisdiction in the District of Columbia Court of Appeals.


For the foregoing reasons, it is respectfully submitted that this Court has jurisdiction to consider this case on direct review under the District of Columbia Administrative Procedures Act, D.C. Code Sec. 1-1510(a).

Respectfully submitted,

Gary Freedman
3801 Connecticut Avenue, NW
Apartment 136
Washington, DC 20008
(202) 362-7064 or (202) 363-3800

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Certificate of Service

I HEREBY CERTIFY that a copy of the foregoing Petition for Rehearing was mailed, first class, postage prepaid, this 24th day of January, 1995, to the following addresses: Charles L. Reischel, Esq., Deputy Corporation Counsel, 6th Floor, 441 4th Street, NW, Washington, DC 20001, (202) 727-6248; and Dennis M. Race, Esq., 1333 New Hampshire Avenue, NW, Suite 400, Washington, DC 20036 (202) 887-4000.