Petition for Review of a Decision of the District of Columbia Contract Appeals Board
Before Terry and Farrell, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: The District of Columbia Contract Appeals Board dismissed petitioner's claim for damages against the Department of Human Services (DHS) because of his failure to comply with an order requiring him to answer a series of interrogatories. Petitioner urges us to reverse the Board's order on the ground that many of the interrogatories propounded by DHS were improper. In addition, he contends that the Board violated its own rules by dismissing his claim without first providing him with notice and an opportunity for a hearing. We hold that the Board's own rules require, at a minimum, that it afford parties an opportunity for a hearing before dismissing an appeal for failure to comply with a discovery order. We therefore reverse the Board's final order and remand the case for further proceedings.
On October 3, 1988, petitioner Edwin Abia-Okon, a medical doctor, entered into a one-year employment contract with DHS, under which he was to provide medical services at a facility operated by the Alcohol and Drug Abuse Administration. Barely five weeks later, on November 9, the contracting officer for DHS terminated the contract on the ground that the termination was "for the convenience of the District of Columbia government." *fn1
Thereafter Dr. Abia-Okon and DHS entered into settlement negotiations, in accordance with the terms of the contract and 27 DCMR § 3708.1 (1988). These negotiations lasted almost six months but ended after DHS made a final offer to pay Dr. Abia-Okon $845 as reimbursement for his attorney's fees. Dissatisfied with this offer, *fn2 Dr. Abia-Okon appealed to the Director of the Department of Administrative Services (DAS), arguing that DHS had terminated the contract in bad faith.
After attempts to resolve the dispute through mediation had failed, the Director of DAS ruled that DHS had indeed terminated Dr. Abia-Okon's contract in bad faith and ordered him to file documentation supporting his claim for damages. About a month later, however, after reviewing the claim, the Director of DAS concluded that Dr. Abia-Okon had not "established that any losses were suffered as a consequence of the breach."
Dr. Abia-Okon then appealed to the Contract Appeals Board ("the Board"). In his appeal papers he asserted that DAS had erred in concluding that he had not suffered any losses as a result of the District's wrongful termination of the contract. Specifically, he alleged:
The breach of the said contract resulted in damages (loss of profit) because I had already committed that time span to serve the District. When the District breached the said contract, try as I did, I could not secure another job or participate in any profit-making enterprise during the contract period. The undisputed evidence for this is my tax return for that period (copy attached). [Emphasis in original.]
In its answer DHS offered several defenses to Dr. Abia-Okon's claim, including an allegation that Dr. Abia-Okon had failed to mitigate his damages after the contract was terminated.
On September 19, 1991, after yet another unsuccessful attempt to settle the dispute, DHS served its first set of interrogatories on Dr. Abia-Okon, along with a request for production of documents. The interrogatories consisted of twenty-four separate questions with numerous subparts and inquired about a wide range of subjects. In support of its mitigation defense, DHS posed a series of questions relating to Dr. Abia-Okon's attempts to obtain either alternative employment or unemployment compensation after the termination of his contract with DHS. Several other interrogatories asked about possible additional sources of income in 1988 and 1989, such as real property interests, bank account activity, and income from gifts and trusts. DHS also asked him to submit copies of his 1988 and 1989 federal and local income tax returns. Finally, DHS inquired about (1) the identity and income of other members of Dr. Abia-Okon's household in 1988 and 1989, (2) an allegation made by Dr. Abia-Okon that employees of the District of Columbia government had made harmful allegations about his qualifications as a medical professional, (3) all expenses incurred by Dr. Abia-Okon in 1988 and 1989, and (4) Dr. Abia-Okon's understanding of various provisions of the contract.
Dr. Abia-Okon submitted his responses to the interrogatories and the requests for documents on December 18. DHS then filed with the Board a motion to compel further discovery, asserting that, "for the most part, [Dr. Abia-Okon's] responses are incomplete and in many cases totally unresponsive to the interrogatories and document requests posed . . . ." The Board denied this motion, reasoning that while Dr. Abia-Okon's answers "may not be as complete and comprehensive as would like, the Board can find no prejudice to [DHS's] preparation of its case."
DHS moved the Board to reconsider its denial, arguing that more complete answers to the interrogatories were necessary before it could prepare its mitigation defense. On February 18, 1992, the Board denied DHS's motion for reconsideration, but made the following observation:
In all honesty, the Board is sympathetic to the concerns of in its dealings with an uncooperative, pro se appellant. However, the Board strongly believes, based on the record of this case, [that Dr. Abia-Okon] will remain uncooperative and that discovery in this matter, if ...