Wood v. D.C. Department of Consumer and Regulatory Affairs

• Court: District of Columbia Court of Appeals
• Decided: May 18, 2023
• Docket: 19-AA-1113
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-AA-1113

PATRICIA V. WOOD, PETITIONER,

V.

DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, RESPONDENT.

On Petition for Review of an Order of the District of Columbia Office of Administrative Hearings (2018-DCRA-000049)

(Submitted February 4, 2021 Decided March 23, 2023 *)

Patricia V. Wood, pro se.

Karl A. Racine, Attorney General for the District of Columbia at the time, Loren AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General at the time, Carl J. Schifferle, Deputy Solicitor General, and Andrew J. Delaplane, Assistant Attorney General, were on the brief for respondent.

* The decision in this case was originally issued as an unpublished Memorandum Opinion and Judgment. Upon consideration of a motion to publish filed by the District of Columbia Office of the Tenant Advocate, Legal Aid of the District of Columbia, and the Claimant Advocacy Program, and Respondent’s opposition thereto, we grant the motion and publish this Opinion. 2

Before MCLEESE and DEAHL, Associate Judges, ** and THOMPSON, *** Senior Judge.

DEAHL, Associate Judge: Patricia Wood appeals the denial of her motion for

reconsideration after the Office of Administrative Hearings (OAH) fined her $1,527

for violations of several provisions of the housing code. Wood was not present at

the hearing that established these violations, and she claims that she was not properly

served with notice of the hearing date. An OAH administrative law judge (ALJ)

concluded, based solely on a certificate of service indicating that notice of the

hearing had been sent to Wood at her mailing address, that Wood had been properly

served.

We agree with Wood that this was error, warranting vacatur of the ALJ’s

ruling. The ALJ failed to even consider a number of indications that notice of the

hearing date, in fact, had not been sent to Wood’s proper mailing address. Among

those indications are the fact that (1) the certificate of service also asserted that notice

had been sent to Wood’s email address, when in fact it was sent to an errant email

** Judge Nebeker was a member of the division at the time this case was submitted. Following his retirement on December 20, 2021, Judge Ruiz was assigned to take his place on the division. On February 6, 2023, Judge Deahl was assigned to replace Judge Ruiz on the division.

Judge Thompson was an Associate Judge of the court at the time of ***

submission. She began her service as a Senior Judge on February 18, 2022. 3

address; and (2) Wood’s claim that she had not received notice of the hearing was

uncontested (though not affirmatively conceded) and respondent—the District’s

Department of Consumer and Regulatory Affairs, or DCRA—does not in this appeal

seek to cast any doubt on Wood’s claim that she did not receive notice of the hearing.

In light of those indications that notice was not in fact sent to Wood’s proper mailing

address, we conclude that it was error to rely solely on the otherwise faulty certificate

of service in concluding that Wood had been properly served with notice of the

hearing. We therefore vacate OAH’s order and remand for further proceedings.

I.

This case stems from a December 2017 inspection of Wood’s Columbia

Heights row house by DCRA. That inspection identified three housing code

violations: (1) “rotted part(s)” on the house’s roof eaves; (2) “hole(s)” in the roof;

and (3) “peeling paint” on the roof and porch. Citing to 14 D.C.M.R. § 701.1, which

requires structures “be maintained in a sanitary and structurally sound condition,”

and 14 D.C.M.R. § 704.4, which requires all “exterior surfacing materials [] be kept

securely fastened in place,” the inspector issued a Notice of Violation (NOV)

instructing Wood to abate these conditions within 30 days and warning of a $500-

per-violation penalty if she failed to do so. 4

Wood appealed this NOV, requesting a hearing before an OAH administrative

law judge (ALJ). See 1 D.C.M.R. §§ 2802.2, 2808.1. Over the following months,

Wood exchanged numerous emails with DCRA officials explaining that she was

facing “severe financial hardship” and requesting additional time to complete the

required repairs. While DCRA granted Wood several short continuances, it denied

her request to delay enforcement proceedings by one year. The agency informed

Wood that “loan/grant funding” was available to assist in repairing her property, but

Wood indicated that she would not apply for a loan without first having a source of

income.

At a July 2018 status conference, which Wood attended, DCRA informed the

ALJ that the violations remained unabated, and that Wood had taken no steps to

rectify them. The agency stated that it planned to re-inspect Wood’s home the

following month and that, if the damage had not been stabilized, it would issue a

Notice of Infraction (NOI) for the violations charged in the NOV. That deadline

passed and, several months later, DCRA issued the threatened NOI, assessing a fine

of $1,527. Wood contested the NOI and again requested a hearing. After several

continuances, the hearing was scheduled for July 15, 2019. 5

Four days before this hearing, DCRA sought another continuance, citing the

unavailability of its counsel. Stating that it had contacted Wood via telephone and

email and obtained her consent to the continuance, DCRA requested that the hearing

be rescheduled for September 5, 2019. While OAH granted a continuance, its July

15, 2019, rescheduling order set the new hearing date for August 6—just three weeks

away and one month earlier than the date requested by DCRA and consented to by

Wood. That July 15 order rescheduling the hearing was accompanied by a certificate

of service indicating that it had been sent to Wood by both first class mail and email,

and the certificate listed Wood’s correct home and email addresses. The order was

actually sent to an incorrect email address—largely redacted here—which included

a “WoodY” that should have been a “WoodV,” so that Wood never received the

email notification.

Wood did not attend the August 6 hearing, which proceeded in her absence

after the ALJ found that she was provided with adequate notice. See D.C. Code

§ 2-1802.03(b). Based on DCRA’s unrebutted evidence, the ALJ concluded that the

agency had met its burden of establishing the housing code violations charged in the

NOV and NOI. Specifically referencing Wood’s failure to present evidence of

mitigating factors, the ALJ assessed the full fine of $1,527 and sent Wood notice of

the determination and fine via email on August 12, 2019. 6

Eleven days later, Wood sent OAH a “request to change final order,” citing

the agency’s failure to provide “a complete hearing on the issues that have been

cited.” She noted that DCRA’s motion to continue had requested a September 5

hearing, and stated that “[t]hat was the last date that I was provided notice of for

hearing.” She further referenced “erroneous information” introduced at the hearing

in her absence.

The ALJ denied her request, which it construed as a motion for

reconsideration. Stating that “notice of the hearing was mailed to [Wood’s] last

known address and not returned,” the ALJ concluded that she was provided with the

required notice. Moreover, it noted that under the applicable regulations, a motion

for reconsideration on the grounds that a party did not attend the hearing must

“state[] an adequate claim or defense,” which Wood’s motion failed to do.

Wood now petitions this court for review.

II.

We review OAH decisions to determine whether “(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.” 7

Rodriguez v. Filene’s Basement Inc., 905 A.2d 177, 180 (D.C. 2006). Though our

review is deferential, we will reverse if a decision is “[a]rbitary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” D.C. Code

§ 2-510(a)(3)(A).

In this appeal, Wood argues that OAH should have granted her motion for

reconsideration for two reasons. First, she claims that she was never notified of the

August 6 hearing, giving her no “opportunity to present any information regarding

the Notices of Violation.” Second, she argues that the conditions observed by the

DCRA inspector did not constitute violations of the District’s housing code. We

conclude that, because the ALJ’s findings did not address a number of indications

that service was not proper in this case, we must vacate the challenged order based

on Wood’s first contention. We therefore do not reach Wood’s second argument.

District residents are entitled to “fair and adequate notice of administrative

proceedings that will affect [their] rights, in order that [they] may have an

opportunity to defend [their] position.” Carroll v. D.C. Dep’t of Emp. Servs., 487

A.2d 622, 623 (D.C. 1985). To satisfy this requirement, agencies must employ “a

method reasonably calculated to afford the party an opportunity to be heard.” Id.

(quotation marks omitted). In general, mailing notice of a hearing to interested 8

parties is enough to satisfy this requirement, provided the notice is not returned to

the sender. Kidd Int’l Home Care v. Prince, 917 A.2d 1083, 1086 (D.C. 2007). This

is true even if that mailing goes awry, as “[a]dequate notice, rather than actual notice,

is all that the Constitution guarantees.” Id. (internal quotation marks omitted).

However, when an agency elects to proceed in a party’s absence, “the agency has

the burden of establishing that it provided the required notice.” Meriedy v.

Tenleytown Trash, 268 A.3d 1236, 1239 (D.C. 2022). And like all factual findings,

a conclusion that notice was provided to an absent party must be supported by

substantial evidence.

In its order denying Wood’s motion for reconsideration on the basis that she

had been properly served with notice of the hearing, the ALJ seemed to treat the July

15 certificate of service, indicating that notice was timely sent to Wood’s email and

mailing addresses, as conclusive evidence that Wood had been properly served.

While a dated certificate alone may sometimes be sufficient to support a conclusion

that a party was in fact properly served, see Kidd, 917 A.2d at 1087, that is not

invariably true. For instance, in Savage-Bey v. La Petite Academy, we observed that

where a claimant in fact “did not receive the [notice] in the mail,” that “established

the possibility that the [notice] was not actually mailed.” 50 A.3d 1055, 1060-61

(D.C. 2012) (cleaned up). And here, the ALJ never purported to credit or discredit 9

Wood’s unchallenged claim that she, in fact, never received advance notice of the

August 6 hearing. If Wood were to be credited on that point, it would give rise to a

strong inference that notice was not in fact properly mailed to her.

But there is further evidence still that notice was not properly mailed to Wood,

though the ALJ did not give it any consideration when it erroneously treated the

certificate of service as conclusive evidence that Wood had been properly served

with notice of the hearing. There is undisputed evidence that the certificate was

inaccurate in one critical respect—the order was not sent to the email address

indicated on the certificate, but instead to a different and erroneous one. The fact

that there was one material error in the certificate of service is at least some evidence

that there may have been others, affecting if or where the notice was actually mailed.

We thus do not think the certificate of service alone was sufficient to support a

finding that OAH provided Wood with adequate notice of the hearing, given the

above indications to the contrary.

Meriedy, supra, is illustrative on this point. That case involved an

adjudication of a claim for unemployment benefits in which OAH held a hearing in

the claimant’s absence. 268 A.3d at 1237. The claimant moved for reconsideration,

stating that he had not received notice of the hearing until the day after it was held. 10

The ALJ declined to reconsider her ruling, reasoning that based on the certificate of

service, OAH had provided the claimant sufficient notice of the hearing. Id. at 1238.

We reversed, observing that while the certificate of service indicated that notice of

the hearing had been mailed to the claimant’s address, the certificate did not state

when that mailing actually took place. Id. at 1240. As such, we concluded that the

agency had not met its burden of demonstrating that it had mailed the notice with

sufficient lead time to permit the claimant to attend the hearing. Id.

This case presents a similar scenario. As explained, the only evidence that

Wood was properly notified was the faulty certificate of service. The ALJ forwent

any additional fact-finding on this point, conducting no inquiry into either the service

itself or the credibility of Wood’s claim that she never received the notice. In fact,

in defending the ALJ’s ruling before this court, DCRA skips right by Wood’s

principal complaint on appeal that she was not properly served with notice of the

hearing, offering only a bare assertion that Wood received “proper service” without

elaboration. Its failure to contend with the strong indications that Wood was not

properly served, much like the ALJ’s own, contribute to our conclusion that the ALJ

erred in this case. 11

This is not to say, as a matter of law, that service was improper, or that

substantial evidence could not ultimately support a finding that service was proper.

It is possible that the ALJ might discredit Wood’s assertion that she did not receive

notice of the hearing. Or the ALJ might further scrutinize and make factual findings

about how OAH implemented the mailings indicated in the certificate of service, and

conclude that any error in the certificate was isolated to the email address for Wood,

supporting a conclusion that the letter notice went to the proper mailing address. But

we have no factual findings like that in the record before us, and instead we confront

a ruling that seems to take it as a given that certificates of service are accurate even

when there is clear evidence to the contrary. We cannot endorse that reasoning. On

remand, OAH may elect to further probe and make factual findings about whether

service was in fact proper despite these contrary indications, or it might be a more

efficient use of the agency’s resources to allow Wood to state her case at a hearing

that she more clearly has notice of before ruling on the merits.

As for DCRA’s position in this proceeding, it offers no substantive defense of

the ALJ’s finding that Wood was properly served, and instead argues that even if

Wood had not received notice of the August 6 hearing, the ALJ was nonetheless

justified in denying her motion for reconsideration. Pointing to 1 D.C.M.R.

§ 2828.5(a), DCRA claims that a party moving for reconsideration on the grounds 12

that they did not attend the hearing must “state[] an adequate claim or defense,” and

that Wood’s motion failed to do so. But we rejected precisely this argument in

Meriedy, explaining that this regulation applies only to cases where the agency

provided timely notice, but the interested party nonetheless failed to attend the

hearing. 268 A.3d at 1240. Here, where there are insufficient findings to conclude

that proper notice of the proceeding was sent to Wood, Wood’s entitlement to a new

hearing does not depend on “whether an adequate claim or defense has been stated.”

Id.

III.

OAH’s order is vacated and the case is remanded for further proceedings.

So ordered.