Kelvin Johnson v. District of Columbia Department of Employment Services

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-AA-0337
KELVIN JOHNSON, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.
Petition for Review of a Decision of the Compensation Review Board
(CRB-068-09)
(Submitted October 1, 2014 Decided March 5, 2015)
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.
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,
2
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).
3
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. Code2 including the private sector 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
1Section 1-623.27 (b)(2) states: “[i]f a person utilizes the services of an
attorney-at-law in the successful prosecution of his or her claim under § 1-
623.24 (b) or before any court for review of any action, award, order, or decision,
there shall be awarded, in addition to the award of compensation, in a
compensation order, a reasonable attorney’s fee, not to exceed 20% of the actual
benefit secured, which fee award shall be paid directly by the Mayor or his or her
designee to the attorney for the claimant in a lump sum within 30 days after the
date of the compensation order.”
2
See, e.g., D.C. Code § 1-615.05 (b) (2012 Repl.) (allowing awards of
“reasonable attorney’s fees and other costs” in government employee qui tam
actions); D.C. Code § 1-615.54 (a)(1)(G) (2012 Repl.) (allowing awards of
“[r]easonable costs and attorney fees” in government employee whistleblower
actions).
3
See D.C. Code § 32-1530 (d) (2012 Repl.) (“In cases where an attorney’s
fee is awarded against an employer or carrier there may be further assessed against
such employer or carrier as costs, fees and mileage for necessary witnesses
attending the hearing at the instance of claimant.”).
4
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 (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
5
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 reliance on Federal
4
See Jackson v. District of Columbia Emps.’ Comp. Appeals Bd., 537 A.2d
576, 577 n.1 (D.C. 1988) (“District of Columbia government employees are not
covered by other workers’ compensation laws. Instead, a comparable system for
providing disability benefits has been established under the [CMPA].”) (internal
citations omitted); cf. District of Columbia Dep’t of Mental Health v. District of
6
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 claimant6 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
Columbia Dep’t of Emp’t Servs., 15 A.3d 692, 694 n.1 (D.C. 2011) (explaining
CMPA’s exclusive remedial scheme).
5
20 C.F.R. § 10.702 (a) (“A representative may charge the claimant a fee
and other costs associated with the representation before [the Office of Workers’
Compensation Programs].”).
6
5 U.S.C. § 8127 (b); Owens v. Brock, 860 F.2d 1363, 1369 (6th Cir. 1988)
(“5 U.S.C. § 8127 (b), . . . is a fee approval provision, as opposed to . . . a fee
shifting statute.”).
7
Beyond the agency regulations, this court also considers the CRB’s
interpretation of the CMPA, acknowledging its expertise in administering the
statute, and “we ordinarily must defer to the [CRB’s] reasonable interpretations of
ambiguous provisions in that legislation.” Howard Univ. Hosp. v. District of
Columbia Dep’t of Employment Servs., 960 A.2d 603, 606 (D.C. 2008). Here, the
CRB’s reversal of the DOES ALJ’s award of costs simply aligns with our
understanding of the plain language of the CMPA and its regulations.
8
We are particularly unpersuaded by Mr. Johnson’s assertions that the
attorney’s fee provision of the CMPA should be interpreted with reference to an
entirely unrelated federal statute, Title VII of the Civil Rights Act, where Title VII
7
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
expressly provides for an award of costs to the claimant that includes attorney’s
fees. See 42 U.S.C. § 2000e-5 (k) (“[T]he court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee . . . as part of the costs . . . .”).
9
COUNCIL OF THE DISTRICT OF COLUMBIA, COMM. ON GOV’T OPERATIONS,
REPORT ON BILL 16-238, District Government Injured Employee Protection Act of
2006, at 2 (Nov. 6, 2006) (“Many employees[ ] who are injured on the job[ ] and
are forced to seek legal representation find it extremely difficult to obtain legal
services.”).
10
Id. at 3 (“DOES would see a sharp increase in the litigation hours spent
on public sector work activities associated to the disposition of appeals. As such,
our fiscal budgets would have to be increased in order to address the additional
personal resources that would be needed to handle more claimant appeals
responsibly.”); DISTRICT OF COLUMBIA OFFICE OF THE CHIEF FINANCIAL OFFICER,
FISCAL IMPACT STATEMENT ON BILL 16-238, District Government Injured
Employee Protection Act of 2006, at 1 (June 16, 2006) (“Conclusion: Funds are
not sufficient in the FY 2007 through FY 2010 budget and financial plan to
implement the proposed legislation. The proposed legislation would result in a
negative fiscal impact on the local General Fund of $1.0 million in FY 2007 and an
overall impact of $4.1 million for FY 2007 through FY 2010.”).
11
The costs for a CMPA claim generally relate to obtaining medical
evidence to support the claim—evidence which presumably already exists in large
part and need not be generated in order to bring the claim.
8
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 foregoing reasons, the order of
the Compensation Review Board is
Affirmed.