Viviana Sandoval v. District of Columbia Department of Employment Services and Hotel & Restaurant Employees International Union and Companion Property & Casualty

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-AA-535

VIVIANA SANDOVAL, PETITIONER,

v.

DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

HOTEL & RESTAURANT EMPLOYEES INTERNATIONAL UNION and
COMPANION PROPERTY & CASUALTY, INTERVENORS.

Petition for Review of an Order of the
District of Columbia Department of Employment Services
Compensation Review Board
(CRB-002-13)

(Submitted March 20, 2014 Decided June 26, 2014)

David M. Snyder was on the brief and response for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, and Gregory M. Cumming, Assistant Attorney General, filed a
statement in lieu of brief for respondent. Irvin B. Nathan, Attorney General for the
District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan,
Deputy Solicitor General, were on the response for respondent.

James C. Willett, Jr. was on the brief for intervenors. Lauren M. Royer was
on the response for intervenors.

Before FISHER and MCLEESE, Associate Judges, and KING, Senior Judge.
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MCLEESE, Associate Judge: Petitioner Viviana Sandoval challenges a

decision by the Compensation Review Board (“CRB”) affirming a compensation

order issued by Administrative Law Judge (“ALJ”) Anand K. Verma. While the

challenge was pending in this court, Ms. Sandoval advised the court of recent

information indicating that ALJ Verma was not a member of the District of

Columbia Bar or the Bar of any other jurisdiction in the United States, in violation

of 7 DCMR § 221.2 (2014). Ms. Sandoval and the District of Columbia

Department of Employment Services (“DOES”) both ask the court to remand the

case to the CRB for further proceedings, though they disagree about the form those

proceedings should take. Intervenors, Ms. Sandoval’s employer and an insurance

carrier, acknowledge that ALJ Verma was not a member of any Bar but argue that

this court nevertheless should affirm the order of the CRB. We vacate the CRB’s

order and remand the case to the CRB.

In March 2011, Ms. Sandoval was injured in a work-related car accident.

Ms. Sandoval subsequently filed a workers’ compensation claim seeking an award

for 27% permanent partial disability to her right upper extremity and 8%

permanent partial disability to her left upper extremity. After an evidentiary

hearing, ALJ Verma concluded that he was “not convinced” that Ms. Sandoval had

met her burden of establishing entitlement to the claimed relief. Because Ms.
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Sandoval’s employer did not dispute that Ms. Sandoval had suffered a 5%

permanent disability to both upper extremities, however, ALJ Verma issued a

compensation order granting Ms. Sandoval that lesser relief. Ms. Sandoval sought

review before the CRB, which affirmed on the ground that ALJ Verma’s order was

supported by substantial evidence and in accordance with the law. Ms. Sandoval

petitioned this court for review of the CRB’s order.

While the case was pending in this court, Ms. Sandoval moved to stay the

proceedings in light of recent allegations that ALJ Verma was not licensed to

practice law in the District of Columbia or any other jurisdiction in the United

States while he served as an ALJ. In their responses, neither DOES nor

intervenors dispute the allegations concerning ALJ Verma, who apparently has

since resigned. According to intervenors, ALJ Verma was disbarred by the Indiana

Supreme Court in 1998 and made false statements to the Maryland and

Pennsylvania Bars, which both denied his application for admission. Intervenors

also state that ALJ Verma subsequently obtained a position as an ALJ in the

District of Columbia, but was not a member of any Bar during his service as an

ALJ. Nevertheless, intervenors argue that this court should affirm the order of the

CRB, because ALJ Verma “was acting as an ALJ with permission from and under

the protection of the government agency by which he was employed.” In addition,
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intervenors argue that neither the CRB nor this court has authority to overturn ALJ

Verma’s ruling unless that ruling was unsupported by substantial evidence in the

record. We are not persuaded by intervernors’ contentions and conclude that it is

in the interests of justice for this court to vacate the CRB’s order and remand for

further proceedings.

In general, “[o]ur limited role in reviewing the decision of the CRB permits

us to reverse only if we conclude that the decision was arbitrary, capricious, or

otherwise an abuse of discretion and not in accordance with the law.” Washington

Hosp. Ctr. v. District of Columbia Dep’t of Emp’t Servs., 983 A.2d 961, 965 (D.C.

2009) (internal quotation marks omitted). This case, however, presents the unusual

circumstance in which DOES itself asks this court to remand the case to the CRB.

This court is not required to grant such a request. Cf., e.g., Coleman v. District of

Columbia, 80 A.3d 1028, 1030 (D.C. 2014) (“We are not required to treat a party’s

concession as determinative of an issue . . . .”). It is our “general practice,”

however, to accept concessions by the government that affirmance is not

appropriate on the record before the court. Cf. V.C.B. v. United States, 37 A.3d

286, 290 (D.C. 2012) (accepting government’s concession that trial court

committed error requiring reversal). Moreover, the District of Columbia

Administrative Procedure Act, D.C. Code § 2-510 et seq. (2012 Repl.), grants this
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court the authority “to affirm, modify, or set aside the order or decision complained

of, in whole or in part, and, if need be, to remand the case for further proceedings,

as justice may require.” D.C. Code § 2-510 (a). See also D.C. Code

§ 32-1522 (b)(3) (2012 Repl.) (judicial review of CRB orders is pursuant to

District of Columbia Administrative Procedure Act).

It appears to be undisputed that ALJ Verma lacked one of the qualifications

that DOES requires of its ALJs. At a minimum, that raises a legitimate question

about the validity of ALJ Verma’s rulings. Compare, e.g., Rivera v. Illinois, 556

U.S. 148, 161-62 (2009) (noting line of cases “in which federal judges or tribunals

lacked statutory authority to adjudicate the controversy” and Supreme Court “held

the resulting judgment . . . invalid as a matter of federal law”; “Absent a federal

constitutional violation, States retain the prerogative to decide whether such errors

deprive a tribunal of its lawful authority and thus require automatic reversal.”),

with, e.g., Orix Capital Mkts., LLC v. American Realty Trust, Inc., 356 S.W.3d

748, 750-55 (Tex. App. 2011) (denying relief to litigant collaterally challenging

judgment on ground that judge was not qualified to hold office because judge had

failed to comply with bar-licensing requirement); Meza v. Massanari, 199 F.R.D.

573, 578 (S.D. Tex. 2001) (denying collateral attack upon ruling of ALJ on ground

that ALJ failed to maintain active bar status).
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We are inclined to give substantial deference to DOES’s judgment about the

proper response to decisions rendered by an ALJ who lacks the qualifications

required by DOES as the administrator of the Workers’ Compensation Act. See 7

DCMR § 200.3 (2014) (“The Director [of DOES] . . . is delegated the authority to

administer the [Workers’ Compensation] Act.”); Howard Univ. Hosp. v. District of

Columbia Dep’t of Emp’t Servs., 960 A.2d 603, 606 (D.C. 2008) (“we

acknowledge [DOES’s] expertise and . . . responsibility for administering the

Workers’ Compensation Act”); see generally, e.g., Brown v. District of Columbia

Dep’t of Emp’t Servs., 83 A.3d 739, 746 (D.C. 2014) (“our review is subject to

well-established doctrines mandating deference to an administrative agency’s

interpretation of its own rules and regulations”).

In its initial response, DOES requested that the court remand the case to the

CRB with instructions that the CRB remand the matter to DOES’s Administrative

Hearings Division for a new hearing before a different ALJ. In a more recent

submission, DOES reiterates its position that a new hearing should be held in this

case. In light of intervenors’ objection, however, DOES now asks that the court

remand the case, without instructions, for the CRB to determine in the first

instance how to further proceed. Petitioner adheres to the position that this court

should direct that a new hearing be held. In support of that position, petitioner
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provides orders from several other cases in which the CRB has already vacated

compensation orders issued by ALJ Verma. The CRB’s orders, however, do not

indicate whether that relief was opposed and state only that “there may be a legal

problem” with ALJ Verma’s underlying compensation orders.

Under the circumstances, we conclude that it is in the interests of justice for

this court to grant DOES’s request that we vacate the CRB’s order and remand the

case to the CRB for the CRB to determine in the first instance how to proceed and

to explain the reasons for its determination. Cf., e.g., Brown, 83 A.3d at 752

(remanding case so that CRB could resolve matter in first instance, “engage in the

necessary analysis,” and provide “clearer exposition” of its reasoning) (internal

quotation marks omitted); Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d

126, 132 (D.D.C. 2010) (“courts retain the discretion to remand an agency decision

when an agency has raised substantial and legitimate concerns in support of

remand”) (internal quotation marks omitted; citing cases).

So ordered.