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November 29, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Shuker, Motions Judge)

Before Rogers, Chief Judge, Schwelb, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Richard L. Fleming appeals from the trial Judge's denial on February 4, 1992 of his motion for "reconsideration" of an order issued by the Judge on September 19, 1991. In the earlier order, the Judge dismissed, for failure to exhaust administrative remedies, Fleming's suit for damages. The suit was based on the District's allegedly erroneous attribution to him of approximately $1500 owed in outstanding traffic tickets (rather than the $970 which Fleming at one time concededly owed). According to Fleming, the tickets wrongly attributed to him were actually chargeable to another driver with a very similar operator's permit number. Although Fleming's argument on the merits is not at all implausible, he failed to preserve his right to appeal from the Judge's initial order. Assuming without deciding that the order denying the motion for reconsideration was appealable at all, the Judge did not abuse her discretion in issuing it. Accordingly, we affirm.



In his pro se complaint, which was filed on November 21, 1990, Fleming claimed essentially that, beginning in 1987, he made numerous attempts at the Bureau of Traffic Adjudication and the Bureau of Motor Vehicle Services to have the other driver's tickets removed from his record. He alleged that for a period of approximately three years, he was repeatedly told that he would have to have an administrative hearing, and he was shuffled from office to office and official to official. He acknowledged that finally, in 1990, the other driver's tickets were removed from his record. Fleming claimed that the negligent acts of the District's officials led to the suspension of his operator's permit and forced him "to take jobs in public transportation routes, causing a disruption in his family life," as well as a loss in income. He prayed for damages in the amount of $25,000.

The District filed a motion to dismiss the complaint on various grounds. In a written order docketed on September 25, 1991, the motions Judge dismissed the complaint because

plaintiff has failed to exhaust his administrative remedies. An individual charged with a traffic infraction may request an administrative hearing before a hearing examiner. If aggrieved by the decision of the examiner, the individual may then appeal to the appeals board within fifteen (15) days of the decision. The appeals board's decision can then be appealed to Superior Court within 30 days. D.C. Code §§ 40-631-645 (1981 ed.). Plaintiff did not follow the proper administrative procedure, in that he did not appeal the hearing examiner's decision to the appeals board within fifteen (15) days of the examiner's decision. Thus, he has waived his right to judicial action.

On October 21, 1990, more than ten days after the entry of the order dismissing his complaint, Fleming filed a pro se motion for reconsideration. He did not specify the District of Columbia Rule of Civil Procedure under which he was proceeding. In his motion, he made no significant new factual allegations, *fn1 but argued in effect that the Judge had misapprehended his complaint and that she had ruled incorrectly, presumably as a matter of law. In a brief written order signed on February 4, 1992, the motions Judge denied the motion for reconsideration. On March 16, 1992, Fleming filed a notice of appeal, designating as the subject of his appeal the order of February 4, 1992 "denying plaintiff's motion for reconsideration dismissing the case." *fn2



A. General Considerations.

Fleming's substantive contentions may well strike a responsive chord in the hearts and minds of some readers. *fn3 His suit was for damages, and it is not at all obvious that an administrative remedy existed which could compensate him for the harm that he claims to have suffered. *fn4 Indeed, one might reasonably question, as Fleming did, whether a clerical error of this kind generated the type of issue for which administrative hearings were designed. See District of Columbia v. Group Ins. Admin., 633 A.2d 2, (D.C. Oct. 28, 1993) (noting that in this jurisdiction, "exhaustion of remedies is a flexible doctrine . . . subject to a number of interrelated exceptions, including inadequate remedy, unavailable remedy, and futility . . . ." (citations and internal quotation marks omitted)); Barnett v. District of Columbia Dep't of Employment Servs., 491 A.2d 1156, 1160-62 (D.C. 1985). Moreover, in order to appeal administratively from an order suspending his permit, Fleming would have been required to pay all fines and penalties previously assessed, subject to the "full or partial reimbursement of the fines and penalties in the event of reversal or modification." 18 DCMR § 3014.11 (1987). He would therefore evidently have had to pay the other driver's tickets in order to contest them, all because of an alleged trivial and easily correctable error made by a District employee.

We are unable to reach the merits of these issues, however, because Fleming unfortunately allowed the time to appeal from the Judge's original order to expire. The scope of our review of the order denying reconsideration, from which Fleming did appeal, is ...

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