Petition for Review of a Final Order of the District of Columbia Office of Administrative Hearings (ESP100085-04).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FARRELL and FISHER, Associate Judges,and SCHWELB, Senior Judge.*fn1
The District of Columbia Department of Employment Services ("DOES") determined that respondent Maritza Vilche had received unemployment compensation benefits to which she was not entitled and ordered her to repay $6,358. She sought review, and an administrative law judge ("ALJ") reversed those determinations after concluding that DOES was not prepared to present its case at the scheduled hearing. DOES petitions this court to review that administrative order. We reverse and remand for further proceedings.
DOES claims examiner Vernell Dodd made an initial determination disqualifying Ms. Vilche from receiving unemployment compensation benefits for a specified period in the future because she "willfully and knowingly failed to disclose [her] earnings." See D.C.Code § 51-119 (e)(1) (2001) (section of the Unemployment Compensation Act prescribing penalties for "knowingly fail[ing] to disclose a material fact"). Ms. Dodd also issued Notices of Determination of Overpayment requiring Ms. Vilche to repay $6,358 in benefits that she had wrongfully received. Exercising her appeal rights, Ms. Vilche requested a hearing before the Office of Administrative Hearings ("OAH") to dispute those determinations.
Ms. Vilche and her attorney, as well as two claims examiners from DOES, Monica Madison and Ms. Dodd, attended a scheduled hearing on November 3, 2004.According to DOES, this was one of the first occasions on which the newly-established Office of Administrative Hearings reviewed an initial determination in an unemployment compensation case. See D.C. Code § 2-1831.03 (b)(1) (2007 Supp.) (authorizing OAH, as of October 1, 2004, to review determinations made by DOES in unemployment compensation cases). Early in the proceeding, the ALJ informed Ms. Dodd that, as the claims examiner who made the initial determination, she was "not allowed to give testimony about the deliberative process that she went through in making her decision." However, the ALJ offered Ms. Madison the opportunity "to explain to this court why the determination was made and how it was made." Ms. Madison began to testify but was interrupted when she offered exhibits that had not been disclosed to Ms. Vilche in advance of the hearing. The ALJ postponed the hearing for one week so that Ms. Vilche and her counsel would have time to review the exhibits.
When the hearing reconvened on November 10, Ms. Dodd was present but explained that Ms. Madison had been "unavoidably delayed." After waiting "12 minutes to start the hearing," the ALJ determined that "[t]he representative from [DOES] who is responsible for presenting this case is not present. . . . [Ms. Dodd] can't offer testimony [because she is] . . . the claims examiner in this case . . . . Therefore, [DOES] cannot carry the burden which they have to carry to demonstrate that there was an overpayment to Ms. Vilche . . . [and] the determination is going to be reversed." On December 9, 2004, the ALJ issued a written final order ruling that Ms. Vilche "is not ineligible for benefits for the period September 12, 2004 through September 10, 2005 and she is not liable for alleged overpayments of $6358." DOES promptly filed a motion for reconsideration and new trial, which was denied.
Attached to the motion of DOES was an affidavit from Ms. Dodd, who stated that on November 10 she informed the ALJ "that it was I who knew the case and was prepared to go forward and present the case. The Administrative Law Judge declined to allow me to proceed."The ALJ denied a new trial because DOES "ha[d] already been given two chances to come to a scheduled hearing and litigate this matter." The ALJ also rejected DOES's argument that she should not have precluded Ms. Dodd "from prosecuting and testifying at the second hearing." The administrative judge explained that the claims examiner is "a neutral adjudicator deciding the facts and applying the law" and "cannot prosecute or testify in an appellate hearing in the same case."
Ms. Vilche has moved this court to dismiss DOES's petition for lack of jurisdiction. She asserts that the petition for review is ineffective because it was filed prematurely on January 11, 2005, after DOES had moved for reconsideration on December 20, 2004. "As a general matter, this court has jurisdiction to review only agency orders or decisions that are final," Warner v. District of Columbia Dep't of Employment Servs., 587 A.2d 1091, 1093 (D.C. 1991); see D.C. Code §§ 2-510 and 11-722 (2001), and OAH Rules provide that when a motion for reconsideration is timely filed, the previous order "shall not be deemed final for purposes of judicial review until the motion is ruled upon by [the ALJ] or is denied."
1 DCMR § 2832.3 (2004). The motion for reconsideration was denied on January 19, 2005, only days after DOES filed its petition to this court. DOES did not file a new petition for review on or after January 19.
Ms. Vilche relies on two cases to support her contention that DOES was obliged to file a separate petition for review after the January 19, 2005, decision. Natural Motion by Sandra, Inc. v. District of Columbia Commission on Human Rights, 726 A.2d 194, 197 (D.C. 1999), recognized that "an agency decision is not final for purpose of appeal to this court until all motions for reconsideration have been acted upon by the agency." However, this court held in Natural Motion that the Commission on Human Rights properly had considered a fee petition that was filed before the pending motions for reconsideration were denied. Id. Natural Motion clearly did not overrule a previous decision where we exercised jurisdiction although the petition had been filed before a motion for reconsideration had been denied. See Kenmore Joint Venture v. District of Columbia Board of Zoning Adjustment, 391 A.2d 269, 274 (D.C. 1978)("[C]onsiderations of finality do not require us to withhold our jurisdiction to review [an] administrative order, where, as here, the Motion for Reconsideration was ultimately denied . . . ."); see also Robinson v. Howard Univ., 455 A.2d 1363, 1365-66 n.1 (D.C. 1983) (although notice of appeal in civil case had been filed prematurely, this court exercised jurisdiction where order had become final by the time the appeal was submitted to the panel). DOES's petition for review may have been filed prematurely, but it became effective when the ALJ denied the motion for reconsideration on January 19.
Ms. Vilche principally relies upon TeleSTAR, Inc., v. Federal Communications Commission, 281 U.S. App. D.C. 119, 121, 888 F.2d 132, 134 (1989),which held that "the filing of a challenge to agency action before the agency has issued its decision on reconsideration is incurably premature" and that "the challenging party must file a new notice of appeal or petition for review from the now-final agency order." In other words, "a prematurely-filed petition does not ripen . . . ." Id. Interestingly, however, the court gave this rule ...