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Johnson v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

March 5, 2015

KELVIN JOHNSON, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT

Submitted October 1, 2014.

Petition for Review of a Decision of the Compensation Review Board. (CRB-068-09).

Matthew Peffer for Petitioner Kelvin Johnson.

Mary L. Wilson, Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief for Respondent District of Columbia Department of Employment Services.

Before GLICKMAN and EASTERLY, Associate Judges, and PRYOR, Senior Judge.

OPINION

Page 10

Easterly, Associate Judge :

Petitioner Kelvin Johnson appeals from an order of the Compensation Review Board (" CRB" ) vacating a portion of a District of Columbia Department of Employment Services (" DOES" ) Administrative Law Judge's (" ALJ" ) Compensation Order. The DOES ALJ awarded Mr. Johnson, as the prevailing party, costs (in the amount of $1,462.00) as well as attorney's fees, but the CRB determined that there was no basis for an award of costs under the Comprehensive Merit Personnel Act (" CMPA" ), D.C. Code § 1-623.01, et seq. (2012 Repl.). We review this issue de novo, " recognizing that this court is the final authority on issues of statutory construction." Fluellyn v. District of Columbia Dep't of Emp't Servs., 54 A.3d 1156, 1160 (D.C. 2012) (internal quotation marks omitted).

To determine if the CMPA permits a DOES ALJ to award costs as well as attorney's fees to a prevailing claimant, we begin with an examination of the plain language of the statute, Parrish v. District of Columbia, 718 A.2d 133, 136 (D.C. 1989), which we assume best reflects the intent of the legislature. Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64-65 (D.C. 1980). " If the meaning of the statute is plain on its face, resort to legislative history or other extrinsic aids to assist in its interpretation is not necessary." Parrish, 718 A.2d at 136 (internal quotation marks omitted).

The CMPA authorizes only an award of attorney's fees pursuant to D.C. Code § 1-623.27 (b)(2) (2012 Repl.).[1] It contains no mention of awards of costs. " Attorney's fee[s]," as the term is generally understood (i.e., payment to counsel for legal work performed), are not the same as costs--here payments to obtain medical records ($212.21) and two independent medical examinations ($1279.71)--and indeed the distinction between the two is reflected in numerous provisions of the D.C. Code[2] including the private sector

Page 11

worker's compensation statute.[3] Where, as here, the Council makes express mention of one thing--attorney's fees--" the exclusion of others is implied, because there is an inference that all omissions should be understood as exclusions." Howard Univ. Hosp./Prop. & Cas. Guarantee Fund v. District of Columbia Dep't of Emp't Servs., 952 A.2d 168, 174 n.4 (D.C. 2008) (internal quotation marks omitted). Thus, we disagree with Mr. Johnson's assertion that the CRB's determination that the CMPA does not allow for an award of costs " is both clearly erroneous and inconsistent with the plain language of the statute."

Mr. Johnson appears to argue in the alternative, however, that the omission of any mention of costs in the CMPA is ambiguous and that courts ought to " liberally construe" D.C. Code § 1-623.27 (b)(2) to allow awards of costs as well as attorney's fees. Preliminarily, we note that, even if we were to accept that there is ambiguity in this provision of the CMPA regarding the award of costs, the question before us would not be whether, starting from a clean slate, a statutory provision authorizing an award of attorney's fees to a prevailing claimant could or should be interpreted also to allow for an award of costs, but rather whether the agency that administers the CMPA, here DOES, has reasonably resolved this ambiguity. See Chevron, U.S.A, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Nunnally v. D.C. Metro. Police Dep't, 80 A.3d 1004, 1010 (D.C. 2013). " Recognizing agency expertise, . . . we accord great weight to any reasonable construction of a[n ambiguous] statute by the agency charged with its administration." Fluellyn, 54 A.3d at 1160 (internal quotation marks omitted). " We will sustain the agency's interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance." Id. (internal quotation marks omitted).

In a Chevron analysis, " [c]onsistent and longstanding agency interpretations, such as those enacted in regulations, merit the most deference." Nunnally, 80 A.3d at 1012. Looking to the CMPA regulations, we find no mention, much less authorization, of costs. Instead, like the CMPA itself, the regulations allow only an award of " fees for representation of a claimant," 7 DCMR § 132.1, and are thus reasonably understood to exclude an award of costs. Mr. Johnson points us to the regulations for the private sector worker's compensation statute, which, like the statute it implements, expressly allow awards of fees and costs. See supra note 3; 7 DCMR § 269.2 (allowing " an attorney's fee (including, where appropriate, request for reimbursement of costs) for legal work" ). But the private sector regulations do not apply to District government employees like Mr. Johnson for whom the CMPA is their exclusive remedy.[4] Mr. Johnson's

Page 12

reliance on Federal Employee Compensation Act's (" FECA" ) regulations is similarly unavailing: these regulations expressly authorize costs to be paid by the claimant.[5] Indeed, FECA does not authorize fee-shifting awards to the prevailing claimant[6] as does the CMPA.[7]

The conclusion we reach by examining the plain language of the CMPA and its regulations is not undermined by Mr. Johnson's arguments about the legislative history of D.C. Code § 1-623.27 (b)(2) or the " purposes of the attorneys' fees provisions" generally.[8] While the Committee Report reflects that the Council wished to make it easier for injured government employees to obtain representation in these matters,[9] it also reflects that the Council was concerned about the financial burden of requiring the District to pay the attorney's fees of a prevailing claimant under the CMPA.[10] It is thus reasonable to conclude that the Council decided to authorize payment by the District of fees, but not costs.[11]

Of course, this opinion does not foreclose the Council from amending the statute to expressly allow for awards of costs, but unless and until it does, we will not interpret D.C. Code § 1-623.27 (b)(2) to authorize costs, particularly where the agency, in its regulations, has not done so. For the

Page 13

foregoing reasons, the order of the Compensation Review Board is

Affirmed.


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