Petition for Review of a Decision of the District of Columbia Department of Employment Services. (Dir. Dkt. No. 02-110).
The opinion of the court was delivered by: Glickman, Associate Judge
Before SCHWELB, RUIZ and GLICKMAN, Associate Judges.
Petitioner Howard University Hospital (the "Hospital") asks us to review and reverse a workers' compensation decision by the Director of the Department of Employment Services ("DOES") in favor of intervenor and Hospital employee Jacqueline Binns.
Overruling an administrative law judge, the Director found that Binns remained disabled by the indirect sequelae of a severe work-related allergic reaction even after her acute allergic symptoms had subsided. The Hospital contends that the Director exceeded his authority by engaging in a de novo review of the evidence instead of deferring to the contrary findings of the administrative law judge. After determining that we have jurisdiction to consider the Hospital's petition despite initial indications otherwise, we remand for further proceedings in light of our recent and potentially dispositive opinion in Washington Post v. District of Columbia Department of Employment Services, 853 A.2d 704 (D.C. 2004).
A threshold issue we must decide is whether we have jurisdiction to entertain the Hospital's petition for review. The issue is one of timeliness. The Workers' Compensation Act provides that an aggrieved party may petition this court to review the Director's final decision on a compensation order pursuant to the District of Columbia Administrative Procedure Act ("APA"). D.C. Code § 32-1522 (b)(3) (2001). The APA in turn provides that a petition for review shall be filed within such time as this court may by rule prescribe. D.C. Code § 2-510 (a) (2001). Implementing that provision, our rules state that "[u]nless an applicable statute provides a different time frame," -- which is not the case here -- "the petition for review must be filed within 30 days after notice is given, in conformance with the rules or regulations of the agency, of the order or decision sought to be reviewed." D.C. App. R. 15 (a)(2). "If the order or decision is made out of the presence of the parties and notice thereof is by mail, the petitioner will have 5 additional days from the date of mailing." Id. The time limits of Rule 15 (a)(2) are "mandatory and jurisdictional." Flores v. District of Columbia Rental Hous. Comm'n, 547 A.2d 1000, 1003 (D.C. 1988). "Once the time prescribed by the rule has passed, we are without power to hear the case." Totz v. District of Columbia Rental Hous. Comm'n, 474 A.2d 827, 829 (D.C. 1984).
The Director issued his final decision in this case on April 11, 2003. An appended certificate of service, signed by an "authorized clerk" in the Office of General Counsel, states that a copy of the decision was sent to the Hospital's counsel of record on that same day by certified mail. The Hospital did not petition for review of the decision until July 18, 2003 -- over three months after the decision was mailed, and thus seemingly beyond the deadline imposed by Rule 15 (a)(2).
It is conceded, however, that, for unknown reasons, the April 11 certified mailing was never received by the Hospital or its counsel. They did not learn of the Director's decision until intervenor's counsel faxed it to the Hospital's counsel on June 17, 2003 (more than two months after the decision was issued). Upon prompt investigation, the parties determined that the DOES administrative file did not contain a return receipt evidencing that a certified mailing actually was sent to the Hospital's counsel on April 11. Counsel thereupon asked the Director to resend the decision to him by certified mail so that he could file a timely petition for review in this court. The Director complied with this request on June 30. The Hospital's counsel received the decision by certified mail the following day. He filed the instant petition for review seventeen days later, on July 18, 2003.
It is a general APA requirement that a copy of the agency decision in every contested case "shall be given by" the agency "to each party or to his attorney of record." D.C. Code § 2-509 (e). "The time for filing a petition [for review] begins when the agency gives notice" of its decision, Flores, 547 A.2d at 1003, "in conformance with the rules or regulations of the agency." D.C. App. R. 15 (a)(2). The DOES regulations regarding "service, filing and posting" state that notice of compensation orders "shall be accomplished" by hand delivery or by certified or registered mail. D.C. Mun. Regs. tit. 7, § 228.1 (2005). If the Hearings and Adjudication Section of DOES retains evidence of service, such as a return receipt for a certified mailing, "the receipt of the document shall be presumed; provided, that the presumption of receipt may be rebutted by evidence to the contrary." Id., § 228.3. The regulations further state that "[w]henever the [Workers' Compensation] Act or this chapter provides a time period during which an action is to be taken, unless otherwise expressly provided, the time period shall run from the actual receipt of a document." Id., § 228.4.
In their application to this case, these regulations are ambiguous in two respects. First, while § 228.1 expressly sets forth how the Hearings and Adjudication Section of DOES is to give notice of compensation orders, the regulations are silent as to how the Director is to give notice of his decisions on review of such orders. We note, however, that the Director purported to comply with § 228.1 in this case by giving notice of his decision via certified mailing, and we understand such compliance to be the Director's usual practice. Second, § 228.4 arguably does not make clear when the time period begins to run for filing a petition for review in this court, since that time period is prescribed not by the Workers' Compensation Act or the DOES regulations, but by a rule of this court. It is plausible to apply § 228.4 to petitions for review, however, since the Workers' Compensation Act incorporates the provisions of Rule 15 (a)(2) by indirect reference, as explained above.
As a policy matter, we resolve these ambiguities in favor of the party seeking review and against the agency that drafted the language. York Apartments Tenants Ass'n v. District of Columbia Zoning Comm'n, 856 A.2d 1079, 1082-83 (D.C. 2004). Accordingly, construing §§ 228.1 through 228.4 to govern petitions for review of final decisions by the Director of DOES in workers' compensation cases, the Hospital's time to file its petition for review in this case began to run on July 1, 2003, the date its counsel first received a copy of the Director's decision from the DOES by certified mail and thereby was given notice of the decision "in conformance with" DOES regulations. D.C. App. R. 15 (a)(2). The Hospital's petition for review, filed on July 18, 2003, only seventeen days later, was therefore timely.
Notwithstanding its regulations, however, the DOES argues that the Hospital's petition for review was untimely because the Hospital's counsel had received actual, if informal, notice of the Director's decision from intervenor's counsel on June 17, 2003, which was more than thirty days before the Hospital filed its petition. We do not agree that such informal notification satisfies the requirement of Rule 15 (a)(2) of notice "in conformance with" the agency's regulations. Cf. York Apartments Tenants Ass'n, 856 A.2d at 1083 (rejecting argument that time for filing review petition may run from date decision is published in D.C. Register rather than subsequent date of service; "having a uniform filing deadline for all petitioners . . . is preferable"). We decline to adopt an "actual, even if informal" notice rule that would create unnecessary ambiguity in an area where "we have emphasized the importance of eliminating ambiguity." Id. at 1082 (quoting In re D.R., 541 A.2d 1260, 1264 (D.C. 1988)). The case on which DOES relies, Stone v. District of Columbia Department of Employment Services, 707 A.2d 789, 790-91 (D.C. 1998), is distinguishable. In Stone, we merely held that a petitioner was on constructive notice that a compensation order automatically became "a final decision for purposes of appeal" by operation of law after forty-five days under former District of Columbia Code ...