Petition for Review of an Order of the District of Columbia Police and Firefighters Retirement and Relief Board. (PD1151-01).
The opinion of the court was delivered by: Thompson, Associate Judge
Before FISHER and THOMPSON, Associate Judges,and SCHWELB, Senior Judge.
Opinion for the court by Associate Judge THOMPSON.
Concurring opinion by Senior Judge SCHWELB at page 17.
Petitioner Pamela Andrews asks us to (1) overturn a July 31, 2008 order of the Police & Firefighters Retirement & Relief Board (the "Board") that denied her claim for a survivor's annuity on the ground that the claim was untimely filed, and (2) order the Board to pay her survivor's benefits. We agree that the Board's ruling that petitioner's application was time-barred cannot stand, and we therefore reverse the Board's order. We conclude, however, that we must remand this matter to the Board to determine whether petitioner is otherwise eligible to receive a survivor's annuity.
Petitioner is the daughter of Elmer Andrews, who retired as a member of the Metropolitan Police Department ("MPD") on March 1, 1971, and died on August 28, 1983. D.C. Code § 5-716 (c) (2001) provides in pertinent part that "[e]ach surviving child . . . of any former member who dies after retirement . . . shall be entitled to an annuity . . .[,]" and D.C. Code § 5-701 (5)(A)(iii) (2001) defines "child" to include an "unmarried child regardless of age who, because of physical or mental disability incurred before the age of 18, is incapable of self-support." Although the record does not contain a copy of the District of Columbia Police Officers' and Firefighters' Retirement Summary Plan as may have been issued to Elmer Andrews, there appears to be no dispute that such plan provided, as did the 1985 Summary Plan that is in the record, that if a member died, his "survivors or beneficiary must . . . file with the Retirement and Relief Board to receive . . . the automatic survivor's benefit" and submit evidence of eligibility.
Petitioner, who asserts her eligibility for survivor benefits on the basis of her claimed "low mental capacity" documented prior to age eighteen, first filed a claim for benefits on March 14, 2001. On July 5, 2001, the Board issued an order denying the claim on the ground that it was filed outside the "three . . . year statute of limitations . . ." established by D.C. Code § 12-301 (8) (2001) (providing that actions "for which a limitation is not otherwise specially prescribed" may not be brought after the expiration of three years).*fn1
On June 6, 2008, petitioner's then-eighty-nine-year-old step-mother submitted a letter to the Board, again applying for a survivor annuity benefit for petitioner and stating that "it is clear that the denial of benefits in 2001 was in error." The Board once again denied the application, stating that "[a]t the time of this current request for a survivor annuity it has been over 20 years since the statute of limitations for such requests has expired." The Board did not cite its earlier denial of petitioner's 2001 claim as a reason for denying the 2008 claim.
Petitioner timely appealed the Board's 2008 order. In her initial brief on appeal, she argued, inter alia, that the Board erred in concluding that the residual statute of limitations, D.C. Code § 12-301 (8), barred her claim since it applies only to "actions," not to claims for benefits to which eligible survivors are "automatically entitled."*fn2 The District of Columbia subsequently filed a motion and then a brief urging us to remand, conceding that section 12-301 (8) is inapplicable, and arguing that a remand is appropriate so that the Board may consider in the first instance (1) whether to apply some other deadline, and, if the Board determines that petitioner's claim is not time-barred, (2) whether petitioner qualifies to receive benefits. Petitioner opposes a remand, arguing that the record is sufficient for this court to determine that she was disabled by age eighteen and that her disability continues, and that the "remedial . . . purposes" of the District of Columbia Police and Firefighters Retirement and Disability Act ("the Act")*fn3 and her personal circumstances-she asserts that she is at risk of institutionalization because she depends on her aged step-mother for care and support-warrant an expeditious resolution of this matter.*fn4
We begin our analysis by addressing briefly an issue that we raised with the parties at oral argument: whether petitioner's claim for relief in this court is barred by her failure to submit a timely request for reconsideration*fn5 or timely appeal of the Board's 2001 order, in which the Board denied the same claim that petitioner reasserted in 2008. We conclude that while the Board might have cited its non-appealed 2001 order as a basis for denying petitioner's 2008 claim,*fn6 it has waived any claim of administrative res judicata by not invoking it in the 2008 order.*fn7 See Poulin v. Bowen, 817 F.2d 865, 868--69 (D.C. Cir. 1987) (agency that waived application of "administrative res judicata" may not assert that doctrine on appeal as an alternate basis for upholding its decision); Ngom v. District of Columbia Dep't of Employment Servs., 913 A.2d 1266, 1269 (D.C. 2006) (citing Poulin for the proposition that "res judicata must be raised before the reviewing court can apply the doctrine"); see also USPS v. NLRB, 969 F.2d 1064, 1069 (D.C. Cir. 1992) ("[C]courts do not force preclusion pleas on parties who choose not to make them . . . ."). On that basis, and because there is no issue of our own jurisdiction (we are asked to review a 2008 final order, as to which petitioner filed a timely petition for review), we proceed to the merits.
The parties agree that neither the Act, D.C. Code §§ 5-701 to -724, nor the implementing regulations contain any provision establishing a deadline by which a survivor must file any claim for survivor's benefits (a "claim-filing deadline"). The legislative history of the Act suggests an angle for arguing that a claim-filing deadline would, or would not, be consistent with the purposes of the statute and the statutory scheme,*fn8 but no definitive guidance can be drawn either way.
The District continues to urge us to remand to permit the Board, exercising its responsibility and authority to administer the Act, to determine whether a claim-filing limit is appropriate. If the immediate issue were whether a claim-filing deadline is permissible as a prospective rule of general application, we would agree that the Board should address the issue in the first instance, drawing upon its expertise about what is necessary for the effective administration of the benefit program that the Act establishes.*fn9 But the question before us is more focused: assuming arguendo that the Board may adopt a claim-filing deadline, may it do so in the course of resolving petitioner's claim and apply the deadline to deny her application for benefits? This is a question whose resolution turns on application of the District of Columbia Administrative Procedure Act ("the DCAPA")*fn10 as our court has construed it (and on the interpretation by federal courts of the analogous federal Administrative ...