Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (PWVK-125359-06 & PWVK-125360-06).
The opinion of the court was delivered by: Farrell, Associate Judge, Retired
Before GLICKMAN, Associate Judge, FARRELL, Associate Judge, Retired, and SCHWELB, Senior Judge.
Opinion for the court by FARRELL, Associate Judge, Retired.
Dissenting opinion by Senior Judge SCHWELB at page 8.
The Department of Public Works (DPW) served petitioner Dion Prime with notices of violation after an inspector observed large amounts of loose trash in an alley behind property petitioner owned at 4633 Hillside Road, S.E. Petitioner denied the violations and a hearing was set for July 20, 2007 at 10:30 a.m. When he failed to appear at the hearing, an Administrative Law Judge (ALJ) of the Office of Administrative Hearings (OAH) conducted the hearing ex parte and, after receiving testimony and exhibits, issued an order finding petitioner liable for two of the violations and imposing a fine of $150 for each violation, plus an additional penalty of $600 for failure to appear. Cf. Washington v. District of Columbia Dep't of Public Works, No. 06-AA-315, 2008 D.C. App. LEXIS 329 (D.C. July 24, 2008) (addressing penalty for late response to notice of violation). Petitioner moved for a new hearing, which the ALJ denied.*fn1 He now asserts that the ALJ erred in denying the motion for a new hearing and in finding him liable for the violations. We affirm.
In his motion for a new hearing and subsequent motion to stay the judgment,*fn2 petitioner asserted as grounds for his non-appearance that he had learned the day before the hearing that he was scheduled to evict a tenant of 4633 Hillside Road at 9:00 a.m. on the hearing date.*fn3 He did not contact the OAH that day to learn the feasibility of a postponement of the hearing or in what manner to request one. Instead, because the hearing was not scheduled until 10:30 a.m., he was confident that he would be able to complete the eviction the next morning and still attend the hearing. On the morning of the hearing, however, a United States Marshal, who was required to be present for the eviction, arrived late. Petitioner called the OAH to "explain [his] situation and to see if the [ALJ] would give [him] more time to arrive for the hearing," but was told that it was too late to stop the hearing. (App. at 32). Petitioner does not contend that OAH erred in conducting the hearing in his absence.*fn4 Rather, he argues that these circumstances constituted good cause for his failing to appear at the hearing, and that the ALJ abused his discretion in not granting him a new hearing.
OAH may grant a new hearing for any of the reasons a trial court may grant a new trial. 1 DCMR § 2831.1 (2001) ("A new trial [before OAH] may be granted . . . for any of the reasons for which rehearings have . . . been granted in the courts of the United States or of the District of Columbia."); Graves v. Nationwide Mut. Ins. Co., 151 A.2d 258, 261 (D.C. 1959) ("A motion for rehearing is in all respects the same as a motion for a new trial."). Thus, a new hearing may be granted where the hearing was "unfair" or where necessary to "'prevent injustice.'" Bell v. Westinghouse Elec. Corp., 483 A.2d 324, 327 (D.C. 1984) (quoting 11 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2805, at 38 (1978)). We review denial of a motion for a new hearing for abuse of discretion. See United Mine Workers v. Moore, 717 A.2d 332, 337 (D.C. 1998).
There was no abuse of discretion here. The ALJ may conduct a hearing in a party's absence when the party fails to appear. See D.C. Code § 8-805 (f) (2001). Moreover, if the party fails to appear without having been granted a continuance and without good cause, the ALJ may grant a default judgment and impose a penalty equal to twice the civil fine, D.C. Code § 8-805 (e); 24 DCMR § 1307.5, 1307.6 (1996), a sanction expressly mentioned in the notice of hearing. These rules reflect OAH's determination that "parties . . . are strictly obliged to appear in timely fashion on the day of [a hearing]" and that "[a] weighty and convincing justification is required to excuse failure to do so." Milton Props., Inc. v. Newby, 456 A.2d 349, 353 (D.C. 1983) (interpreting Superior Court Civil Rule 39-I, which permits a plaintiff to proceed to trial where defendant fails to appear). The provisions for compounded penalties, in particular, reflect the seriousness with which the legislature meant to enforce compliance with the statutory procedures.
Petitioner asserts that the Marshal's late arrival to conduct the eviction caused him to miss the hearing. But, while circumstances outside a party's control may justify relief from the consequences of the party's failure to appear, see Frausto v. United States Dep't of Commerce, 926 A.2d 151, 156 (D.C. 2007) (holding that ALJ abused discretion by failing to consider whether petitioner's displacement from her home by a fire excused failure to attend hearing); King v. District of Columbia Water & Sewer Auth., 803 A.2d 966, 969 (D.C. 2002) (holding that agency erred in denying continuance after hearing where combination of weather and injury prevented petitioner from attending hearing), petitioner's failure to appear was not caused solely by the Marshal. Petitioner admitted that he knew of the potential conflict the day before the hearing, but he took no action at that time because he believed the eviction would be completed in time for him to attend the hearing. The ALJ was unpersuaded by this argument, noting that "even if the Marshal had not been late," it would be "difficult to believe that [petitioner] could attend a tenant eviction at 9:00 a.m. in one part of town and an administrative hearing at 10:30 a.m. in another part of the District" (App. at 26). Petitioner's mistaken belief that he could make it to the hearing did not justify his failure either to appear or to make a timely request for a postponement. See Gardner v. District of Columbia, 736 A.2d 1012, 1018 (D.C. 1999) (holding agency did not err in denying request for reconsideration where petitioner "gave no reason for his absence other than his own mistake" as to the hearing date).
In response to the ALJ's point that he had not moved for a continuance as required, petitioner asserts that he did not do so when he learned of the eviction because there was insufficient time to prepare a motion. He was only required, however, to attempt to contact the other party and to file a written request for postponement stating that he had tried to do so, which he could have done the day before the hearing. Moreover, as explained, he did not attempt even orally to notify the OAH in timely fashion of the eviction and seek postponement. His failure to alert the OAH to the potential conflict was thus properly weighed against him. See King, 803 A.2d at 968 (including "the part[y's] diligence in seeking relief" among factors relevant in determining whether good cause exists for a continuance); Milton Props., Inc., 456 A.2d at 352-53 (noting that trial court, within its discretion, could have rejected motion for reconsideration where landlord failed to appear at trial and failed to seek continuance even though both of landlord's counsel knew the day before trial that one was sick and the other was scheduled to appear in court in Maryland); Fowler v. Safeway Stores, Inc., 156 A.2d 682, 684-85 (D.C. 1959) (holding that trial court did not abuse discretion in refusing to set aside dismissal where attorney failed to notify court until morning of trial that he had a conflicting appellate case). Furthermore, the ALJ considered petitioner's call to OAH on the morning of the hearing and found that it did not justify his failure to appear given his opportunity to notify OAH earlier. Cf. Frausto, 926 A.2d at 155 (finding that ALJ abused discretion in failing to address petitioner's argument that she called clerk's office on the morning of the hearing).
The ALJ also properly considered the prejudice to the government, whose inspector appeared and presented the government's evidence at the hearing. See King, 803 A.2d at 968, 969-70. While petitioner was also prejudiced, arguably, in that he was precluded from presenting evidence, he waived this right by failing to appear without cause. See Gardner, 736 A.2d at 1018. Moreover, he did not proffer in either of his motions evidence he would have presented at trial to support his denial of the violations. Cf. 24 DCMR § 1307.8 (application to vacate default judgment must include defense to the violations). Thus, the ALJ was unable to assess whether he suffered any particularized prejudice. In these circumstances, he did not abuse his discretion in ruling that petitioner lacked good cause for failing to appear at the hearing and, accordingly, that a new hearing was not warranted.
As the dissent points out, petitioner's is not an unsympathetic case. The scheduled eviction was obviously a matter of importance to him, and the ALJ did not find that he willfully or deliberately disregarded his obligation to appear at the hearing. Petitioner nevertheless appeared too late, for reasons the ALJ found insufficient and without having availed himself of the opportunity he had to seek continuance of the proceedings. Administrative tribunals "must be, and are, given discretion in the procedural decisions made in carrying out their statutory mandate." Ammerman v. District of Columbia Rental Accommodations Comm'n, 375 A.2d 1060, 1063 (D.C. 1977). We decline to impose on ALJs what amounts to a duty of forbearance, shaped by "equit[able]" concerns and a need to avoid undue "harsh[ness]," post at 8, 15, toward pro se respondents in these civil infraction cases. At the least, in what all members of the division agree is a "close" case, id. at 8, 14, we cannot find an abuse of discretion by the ALJ in denying petitioner's request for a new hearing.
Finally, petitioner argues that the ALJ erred in determining that he violated 21 DCMR § 700.3 (1998), requiring that "solid wastes . . . be stored and containerized for collection in a manner that will not provide food, harborage, or breeding places for insects or rodents, or create a nuisance or fire hazard," and section 707.3, requiring that a sufficient number of containers be provided to store waste during the usual interval between collections. The ALJ found that on November 29, 2006, the DPW inspector observed "numerous plastic bags filled with trash and cardboard boxes . . . piled approximately four feet high, and loose pieces of debris . . . strewn on the ground near the trash receptacle" (Sept. 4, 2006, Order at 3), and that the lone container present was not large enough to contain the quantity of trash. These findings were supported by substantial evidence, including a photograph taken by the inspector and the inspector's testimony that the photograph represented the conditions in the alley behind 4633 Hillside Road. Based on the evidence presented at the hearing, the ALJ did not err in concluding that petitioner was liable for the two violations. See Rodriguez v. Filene's Basement, Inc., 905 A.2d 177, 180 (D.C. 2006) ("This court must affirm an OAH decision when (1) OAH made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) OAH's conclusions flow rationally from its findings of fact.").*fn5 Petitioner urges us to consider new evidence included in ...