Ware v. District of Columbia Department of Employment Services

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-AA-1295

CONSTANCE WARE, PETITIONER,

V.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

Petition for Review of a Decision of the Compensation Review Board
of the District of Columbia Department of Employment Services
(CRB-98-14 and CRB-143-15)

(Argued February 15, 2017 Decided April 13, 2017)

Harold L. Levi, with whom Robert P. Newman was on the brief, for
petitioner.

Mary L. Wilson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
respondent.

Before GLICKMAN and FISHER, Associate Judges, and WASHINGTON, Senior
Judge.*

FISHER, Associate Judge: Petitioner Constance Ware challenges orders of

the Compensation Review Board (“CRB”) in two separate, but similar,

*
Judge Washington was Chief Judge at the time of argument. His status
changed to Senior Judge on March 20, 2017.
 2

proceedings. In CRB No. 14-098 (“the first proceeding”), the CRB denied the

request of petitioner’s counsel for attorney’s fees incurred during petitioner’s

successful attempt to have her disability benefits and medical benefits reinstated.

In CRB No. 15-143 (“the second proceeding”), the CRB vacated an order of the

Office of Hearings and Adjudication (“OHA”) that awarded attorney’s fees to

petitioner’s counsel for other work done in the same matter.

The issue was complicated by the fact that the statute authorizing an award

of attorney’s fees was repealed from September 24, 2010, to September 14, 2011

(“the gap period”). To address cases in which a portion of the proceedings had

taken place during the gap period, the CRB had developed a test focusing on the

date of the “necessary first event.” See Dixon-Cherry v. District of Columbia Pub.

Sch., CRB No. 12-138 (A), 2013 WL 494505, at *2 (Jan. 23, 2013); cf. Rice v.

District of Columbia Dep’t of Motor Vehicles, CRB No. 08-027, 2007 WL

4712897, at *4 (Dec. 20, 2007). If the necessary first event took place during the

gap period, petitioner’s counsel would not be entitled to fees. Dixon-Cherry, CRB

No. 12-138 (A), 2013 WL 494505, at *2.

Petitioner argues that the CRB wrongly concluded that the “notice of intent”

to terminate petitioner’s benefits (“NOI”) was the necessary first event; that there
 3

is no substantial evidence that the NOI was issued on August 30, 2011, as the CRB

claims; and that the CRB improperly raised an issue sua sponte in order to reject

her request for fees. We agree that the CRB erred in concluding that the NOI was

the necessary first event, and we reverse and remand on those grounds. We need

not reach petitioner’s arguments regarding the date when the NOI was issued1 and

the actions the CRB took sua sponte. However, we also hold that only the CRB’s

order in the second proceeding is properly before us, and thus we remand for

further proceedings in that matter only.

I. Background

In 1991 petitioner suffered a recurrence of a work-related injury that

occurred while she was employed by the District of Columbia Department of

Corrections (the “Employer”). She received disability benefits until 2011. On

August 30 of that year, the Public Sector Workers’ Compensation Program

(“PSWCP”) issued an NOI that stated: “[W]e conclude you are no longer eligible

for workers’ compensation benefits. Payments will be terminated on

September 30, 2011.” The NOI was sent to begin the process outlined in

1
For purposes of this opinion, we will assume without deciding that the
NOI was issued on August 30, 2011.
 4

D.C. Code § 1-623.24 (d)(1) (2012 Repl.). In order to modify a compensation

award, the Mayor must first “provide written notice to the claimant of the proposed

modification[.]” Id. § 1-623.24 (d)(1)(A).

The NOI also informed petitioner that she could either “request[]

reconsideration” by the PSWCP or “appeal[]” to OHA. An attached form warned

petitioner that she would have thirty days to exercise either option. The

reconsideration option corresponded to a statutory requirement that the “claimant

shall have at least 30 days to provide the Mayor with written information as to why

the proposed modification is not justified[.]” Id. § 1-623.24 (d)(1)(B). The appeal

option seemed to draw upon a different statutory provision giving a claimant thirty

days to appeal to the OHA if he or she “is not satisfied with a decision” regarding

modification. Id. § 1-623.24 (f).

Petitioner chose the reconsideration option. However, she did not make her

request within thirty days, and the PSWCP therefore terminated petitioner’s

benefits on September 30, 2011. See id. § 1-623.24 (d)(3). Petitioner protested

that she had not received the NOI in a timely fashion. After extensive litigation

before the PSWCP, the OHA, and the CRB on both the timeliness issue and the

merits, the CRB held that failure to give adequate notice tolled the thirty-day
 5

period for requesting reconsideration and that petitioner was entitled to

reinstatement of her disability and medical benefits. Employer sought review by

this court, but it later voluntarily withdrew its appeal. Petitioner thus had

successfully prosecuted her claim.2

Petitioner’s counsel filed two petitions for attorney’s fees. Since

September 14, 2011, the District of Columbia has provided by statute that a

claimant shall recover “a reasonable attorney’s fee, not to exceed 20% of the actual

benefit secured,” if the claimant “utilizes the services of an attorney-at-law in the

successful prosecution of his or her claim under § 1-623.24(b) or before any court

for review of any action, award, order, or decision[.]” Id. § 1-623.27 (b)(2). That

provision was also in place from March 8, 2007, until September 24, 2010. See

D.C. Law 16-231 § 2 (c), 54 D.C. Reg. 365-66 (Jan. 19, 2007). However—and

importantly for purposes of this case—on September 24, 2010, the Council of the

District of Columbia repealed the original statute authorizing fee awards. See D.C.

Law 18-223 § 1062 (b)(15), 57 D.C. Reg. 6258-59 (July 23, 2010). Thus, from

September 24, 2010, to September 14, 2011—the gap period—there was no

entitlement to attorney’s fees if a claimant successfully prosecuted his or her claim.

2
See D.C. Code § 1-623.27 (b)(1) (2012 Repl.) (defining “successful
prosecution” to “include a reinstatement or partial reinstatement of benefits which
are reduced or terminated”).
 6

In this case, the petition in the first proceeding requested attorney’s fees for

counsel’s work before the CRB and in preparing for the incipient appeal before this

court. The petition in the second proceeding requested attorney’s fees for work

that appears to have been mostly performed before the OHA.

The CRB ruled on the first petition on September 23, 2015. Because the

NOI in this case was issued on August 30, 2011, during the gap period, the CRB

reasoned that it could not award attorney’s fees. Petitioner twice moved for

reconsideration, but the CRB denied both motions. The last of these denials

occurred on October 28, 2015.

The CRB ruled on the second petition on November 23, 2015, vacating an

OHA decision that petitioner was entitled to attorney’s fees for work done before

the OHA. On December 1, 2015, petitioner filed a petition for review by this court

in which she purported to challenge the CRB’s rulings in both proceedings.

II. Analysis

A. Timeliness of Appeal
 7

As an initial matter, respondent argues that the decisions made by the CRB

in the first proceeding are not properly before us. Respondent points to D.C. App.

R. 15 (a)(2), which requires that a petition for review of an agency decision “be

filed within 30 days after notice is given,” with “5 additional days” allowed if

notice is by mail. Respondent emphasizes that the September 23, 2015, decision of

the CRB does not fall within this time period and argues that petitioner did not

successfully toll the time for seeking review by filing her motions for

reconsideration. Respondent concedes that the CRB’s decision in the second

proceeding is properly before us because it was issued November 23, 2015, and the

petition for review was filed on December 1, 2015.

We agree with respondent that, given the number of motions for

reconsideration that petitioner filed and the dates of the CRB’s decisions on those

motions, petitioner did not sufficiently toll the time for seeking review of the

CRB’s decisions in the first proceeding. The relevant dates in that proceeding are:

on September 23, 2015, the CRB denied petitioner’s fee petition. On October 8,

2015, the CRB denied petitioner’s first motion for reconsideration. The CRB

denied petitioner’s second motion for reconsideration on October 28, 2015. On

December 1, 2015, petitioner filed a petition for review by this court.
 8

Because notice of the October 28 CRB decision was given by mail,

petitioner would have timely sought review, if it were an appealable order. 3

However, the dates of the other two decisions—September 23 and October 8—are

well beyond the thirty-plus-five-day period for seeking review by this court. Those

decisions are properly before us only if petitioner’s second motion for

reconsideration continued to toll the time for filing a petition for review. We hold

that it did not.

It is true that “[i]f a party timely files a petition for rehearing or

reconsideration in accordance with the rules of the agency, the time to petition for

review [by this court] runs from the date when notice of the order denying the

petition is given.” D.C. App. R. 15 (b). By referring to “a petition,” the rule

seems to allow only one motion for reconsideration to toll the time for appeal. Id.

However, we need not rely solely on such a close parsing of the rule. There are

3
In the past, we have stated that “we do not have jurisdiction to hear
appeals from denials of motions for reconsideration[.]” Totz v. District of
Columbia Rental Hous. Comm’n, 474 A.2d 827, 828 (D.C. 1984). However, we
have more recently clarified that “if a Motion for Reconsideration has tolled the
timing requirements for an appealable order, and an appeal is timely noted
following the denial of the Motion for Reconsideration, both the appealable order
and the Motion for Reconsideration may be reviewed.” Puckrein v. Jenkins, 884
A.2d 46, 53 n.8 (D.C. 2005). As discussed below, the filing of the second motion
for reconsideration did not toll the time for filing a petition for review.
 9

sound policies behind permitting only one motion for reconsideration to extend the

time for seeking review. Otherwise, a party could defeat the purpose of setting

time limits for seeking appellate review by repeatedly filing motions for

reconsideration. See, e.g., Yates v. Behrend, 280 F.2d 64, 65 (D.C. Cir. 1960)

(holding that a second motion for reconsideration did not toll the time for appeal

because to hold otherwise “would permit dilatory tactics destructive of the finality

of the judgment”); De Foe v. Nat’l Capital Bank, 90 A.2d 242, 243 (D.C. 1952)

(“A party should not be allowed to indefinitely extend the time for appeal by the

filing of successive motions.”). The same logic applies to agency cases. See

Peabody Coal Co. v. Abner, 118 F.3d 1106, 1108 (6th Cir. 1997) (holding that a

second motion for reconsideration of an agency decision regarding disability

benefits did not toll the time for appeal; “[t]he time limit would be a joke if parties

could continually file new motions, preventing the judgment from becoming final”

(quoting Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986))).4

4
We also decline to equitably toll the time for seeking review. See Mathis
v. District of Columbia Hous. Auth., 124 A.3d 1089, 1103 (D.C. 2015) (holding
that Rule 15 (a)(2) is subject to equitable tolling). Equitable tolling should only be
granted under “extraordinary circumstances[.]” Lawrence v. Florida, 549 U.S.
327, 336-37 (2007); see also Norman v. United States, 467 F.3d 773, 776 (D.C.
Cir. 2006) (“only in extraordinary and carefully circumscribed circumstances”).
Petitioner does not develop any fact-specific argument as to why she should
receive this unusual benefit.
 10

Accordingly, the CRB’s decisions in the first proceeding are not properly

before us. We now turn to petitioner’s challenge to the decision in the second

proceeding.

B. The CRB’s Identification of the “Necessary First Event”

We defer to an agency’s decision “unless it is arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” Marriott Int’l v. District of

Columbia Dep’t of Emp’t Servs., 834 A.2d 882, 885 (D.C. 2003). Although we

“must give weight to any reasonable construction of a regulatory statute that has

been adopted by the agency charged with its enforcement,” we will not sustain the

agency’s interpretation if it “is plainly wrong or inconsistent with the statute[.]”

Nat’l Geographic Soc’y v. District of Columbia Dep’t of Emp’t Servs., 721 A.2d

618, 620 (D.C. 1998) (internal quotation marks omitted).

Petitioner argues that the CRB erred when it concluded that the NOI was the

necessary first event. That conclusion led to the denial of attorney’s fees because

the NOI was issued during the gap period. Petitioner argues that the necessary first

event must be found by identifying the decision to deny or terminate benefits and
 11

that the NOI cannot be a “decision to terminate” because it legally is only a

proposal to terminate benefits.5

The District responds that the NOI is a decision to terminate. It points, for

instance, to the language quoted above which announces that petitioner is “no

longer eligible” for benefits. Moreover, the NOI refers to a “New Decision.” It

also states that a claimant has the option of “requesting reconsideration” from the

PSWCP and may appeal to OHA if the reconsideration process “does not change

[the PSWCP’s] decision[.]”

This case was not the first time the CRB had addressed such issues. Rice v.

District of Columbia Dep’t of Motor Vehicles, CRB No. 08-027, 2007 WL

4712897 (Dec. 20, 2007) arose from the termination of benefits previously

awarded. The Compensation Order reinstating those benefits was issued on the

5
Petitioner does not appear to challenge the CRB’s use of a “necessary first
event” framework to determine whether attorney’s fees are authorized in a
particular case. In any event, we do not think that the CRB’s use of such a
framework is unreasonable given the statute’s silence as to how to address cases in
which there has been a “successful prosecution” that includes proceedings during
the gap period. See D.C. Code § 1-623.27 (b) (2012 Repl.); Dupree v. District of
Columbia Office of Emp. Appeals, 36 A.3d 826, 834 (D.C. 2011) (noting that we
“defer to the agency’s interpretation” when “a statute is silent with respect to a
specific issue”). The issue here is whether the “necessary first event” has been
properly identified.
 12

same day the original statute authorizing attorney’s fees became effective. Id. at

*1. When the petitioner requested that attorney’s fees be assessed against the

respondent, the CRB considered whether the statute could be applied retroactively.

Id. at *1-2. Holding that it could not, Rice adopted a test for avoiding retroactive

application. Id. at *2-4. “[I]n order for there to have been a ‘successful

prosecution’ . . . , there must first have been a denial of benefits outright, or an

initial award followed by a reduction or termination thereof, which is in fact the

case before us.” Id. at *4.

Rice reasoned that “[s]uch a decision to terminate Petitioner’s benefits was

the necessary first event which led to the adjudication that was ultimately

successfully prosecuted.” Id. Rice specifically held that the attorney’s fee statute

“shall have applicability only to cases in which the termination or reduction

decision, or the initial determination or award which is successfully challenged for

inadequacy, occurs on or after . . . the effective date of the legislation.” Id. at *5.

Thus, Rice established that in order to determine whether a claimant’s counsel

would be entitled to attorney’s fees, one had to (1) identify the necessary first

event—which Rice equated with a decision to deny or terminate benefits—and

then (2) compare that date to the effective date of the attorney’s fees legislation.
 13

The CRB also confronted the issue in Dixon-Cherry v. District of Columbia

Pub. Sch., CRB No. 12-138 (A), 2013 WL 494505 (Jan. 23, 2013), which involved

a claim for attorney’s fees after a social worker had successfully challenged an

initial denial of benefits. Id. at *1. During its analysis, the CRB cited Rice and

reiterated that “a decision to terminate” or deny benefits was “the necessary first

event[.]” Id. at *2. The CRB denied attorney’s fees in that case because the

government had issued the notice of determination (a denial of benefits) during the

gap period. Id.

We find no reason to fault the decisions in Rice and Dixon-Cherry. In later

cases, however, the CRB seemed to depart from (or misapply) those holdings. In

Abbott v. District of Columbia Pub. Sch., CRB No. 13-130, 2014 WL 8843356

(Feb. 10, 2014), which involved a termination of benefits, the CRB quoted the

passage from Dixon-Cherry that contained the “decision to terminate” language,

but it identified the NOI in Abbott as “the necessary first event[] that led to the

present adjudication[.]” Id. at *2. The CRB did not analyze whether the NOI

actually did (or lawfully could) terminate benefits. Id. at *1-2. Nor did it

acknowledge that it was operating under a different statutory framework than

Dixon-Cherry. See D.C. Code § 1-623.24 (a) (2012 Repl.). Nevertheless, the

misapplication of Rice and Dixon-Cherry had no real impact in Abbott because the
 14

termination of benefits also occurred during the gap period. See Abbott, CRB

No. 13-130, 2014 WL 8843356, at *1.

When the CRB was faced with a similar situation in this case, it simply

relied on Abbott. Because Abbott had held that the NOI was the necessary first

event, the CRB reasoned that the NOI must be the necessary first event in this case

as well. However, it does not appear that the CRB analyzed whether the NOI in

this case (or in Abbott) was in fact a decision to terminate or considered whether

procedural and factual differences among Rice, Dixon-Cherry, Abbott, and this

case made a difference.

Treating the NOI as a decision to terminate is inconsistent with the

governing statute. The NOI is properly issued as a “proposed modification” of

benefits rather than a decision to terminate. See D.C. Code § 1-623.24 (d)(1)(A)

(2012 Repl.). Indeed, the Mayor could not actually terminate benefits until the

later of (1) the expiration of the thirty-day period for claimant to “provide . . .

written information as to why the proposed modification is not justified” or (2), if

the claimant did respond, the completion of the statutorily required process of
 15

reviewing the claimant’s submission and then determining that benefits should in

fact be terminated. See id. § 1-623.24 (d)(1)-(3).6

In sum, Abbott purported to rely on prior cases that addressed this issue, but

it lost sight of their holdings that the “decision to terminate” was the “necessary

first event.” See Abbott, CRB No. 13-130, 2014 WL 8843356, at *2. That

departure was critical for purposes of this case because the CRB followed the

holding of Abbott without considering whether the NOI could be the “decision to

terminate” consistently with the governing statutory scheme.

The District suggests alternatively that the decision in this case “evolved

from” and “flow[s] logically from” those in Rice, Dixon-Cherry, and Abbott. It

urges us to treat the point at which the case “began” or “originated” as “the

necessary first event.” The Notice of Intent fits neatly within this construct, but

this is a different test than the one adopted by the CRB in Rice and Dixon-Cherry.

We are not willing to assume that the CRB intended to alter its test without a clear

explanation that it was doing so. See Springer v. District of Columbia Dep’t of

Emp’t Servs., 743 A.2d 1213, 1221 (D.C. 1999) (“[W]hen an agency departs from

6
The statute contains exceptions to this rule not applicable here or,
apparently, in Abbott. See D.C. Code § 1-623.24 (d)(3)(A)-(E) (2012 Repl.).
 16

its prior practice or rule, it must supply a reasoned analysis indicating that prior

policies and standards are being deliberately changed, not casually ignored.”

(internal quotation marks omitted)).

III. Conclusion

We therefore hold that the CRB’s order cannot stand because it is

inconsistent with D.C. Code § 1-623.24 (d) (2012 Repl.) and with the CRB’s own

decisions in Rice and Dixon-Cherry.7 See, e.g., Nat’l Geographic, 721 A.2d at 620

(we will not sustain an agency interpretation that “is plainly wrong or inconsistent

with the statute”). We reverse the decision of the CRB in the second proceeding

(CRB No. 15-143) and remand for further proceedings not inconsistent with this

opinion.

So ordered.

7
Because we hold that the NOI was not a decision to terminate, we need not
reach petitioner’s argument that it was not in fact issued on August 30. Further,
even though petitioner raises an important concern regarding the CRB’s authority
to raise issues sua sponte, see Brown v. District of Columbia Dep’t of Emp’t Servs.,
83 A.3d 739, 746 (D.C. 2014), we do not need to examine this argument because
any prejudice that petitioner suffered from the CRB’s sua sponte analysis is
remedied by our reversal.