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District of Columbia Court of Appeals.

Marc JONES, Appellant, v. Mayor Anthony WILLIAMS, Appellee.

No. 03-CV-252.

Decided: November 24, 2004

Before WAGNER, Chief Judge, REID, Associate Judge, and NEBEKER, Senior Judge. Gregory L. Lattimer, Washington, DC, for appellant. Michael F. Wasserman, Assistant Attorney General for the District of Columbia, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia, and Edward E. Schwab, Deputy Attorney General, were on the brief, for appellee.*

 This appeal came on for decision and was argued by counsel.   On consideration thereof, and of the record on appeal and the briefs of the parties, it appears that appellee agrees that the stated basis for the trial court's dismissal of the complaint (failure to exhaust an administrative remedy) was error.   Appellee argued to the trial court that the Comprehensive Merit Personnel Act provided a necessary avenue for initial administrative relief.   In his brief in this court, and for the first time, appellee states that, since appellant is an exempted employee, the Act has no application to him. Since appellee relied on that Act in his motion to dismiss, and failed to recognize the exemption for exempted employees until his brief was filed in this court, we are unpersuaded by his argument that appellant, who likewise overlooked that provision, has thus waived and is precluded from reliance on the exemption.

 Appellee, nonetheless, argues that he possessed absolute immunity from suit, and that we should affirm the dismissal on that ground-a ground argued to the trial court along with four other grounds-none of which were addressed in the order of dismissal.

We decline appellee's invitation to decide the question of absolute immunity in the first instance. Accordingly, the judgment dismissing the complaint for failure to exhaust an administrative remedy is reversed and this case is remanded for consideration and action as the trial court deems appropriate on the remaining issues presented in the motion to dismiss.  D.C.Code § 17-306(2001).

So ordered.


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