Barnett v. Dist. of Col. Dept. of Emp. Serv.

• Decision Date: 08 May 1985
• Docket Number: No. 83-1340.,83-1340.
• Citation: 491 A.2d 1156
• Parties: Leon BARNETT, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

491 A.2d 1156

Leon BARNETT, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 83-1340.

District of Columbia Court of Appeals.

Argued November 26, 1984.

Decided May 8, 1985.

Stephanie Forester, Washington, D.C., for petitioner.

Michael A. Milwee, Washington, D.C., for respondent.

Before MACK and TERRY, Associate Judges, and PAIR, Associate Judge, Retired.

MACK, Associate Judge:

On April 30, 1983, petitioner Leon Barnett was discharged from his position as a correctional officer with the District of Columbia Department of Corrections, a position he had held for two and a half years. The Department discharged him because it discovered that he had been convicted of a felony and had not included that information in his January 22, 1980, employment application.¹ Barnett, however, was not obligated to set forth on that application any convictions that had been expunged,² and Barnett did not reveal the conviction in question because he understood that it had been expunged in 1976. Although the conviction should have been expunged automatically under a specific provision of the Federal Youth Corrections Act,³ federal government officials had never acted, and therefore Barnett's statements on his application were not factually correct. When Barnett discovered that his record had not been expunged, he attempted to locate the lawyer who had represented him in 1973, but was unsuccessful, because the lawyer had moved out of this jurisdiction. Unaware that he had been sentenced under the Youth Corrections Act, Barnett did not pursue the matter further, concluding that his lawyer had "lied to him" when he stated that Barnett's record would automatically be expunged.

Barnett filed for unemployment benefits on May 5, 1983. On May 16 a claims deputy determined that he was ineligible for benefits because he had been discharged for "misconduct," D.C.Code § 46-111(b) (Supp. 1984). He appealed this decision, and a hearing was held by an appeals examiner on May 20. On July 8, 1983, the appeals examiner affirmed the decision of the claims deputy, finding that Barnett had been dismissed because he had falsified his job application. Barnett did not seek further administrative review of this decision, as he was entitled to do under agency regulations promulgated pursuant to D.C. Code § 46-112(e) (1981), see 18 DCRR § 4610 (1983), nor did he seek judicial review at that point.

Following the expiration of the 10-day period for second-level appeals to the Office of Appeals and Review, see 18 DCRR § 4610.2 (1983), Barnett discovered that he was in fact entitled to expungement. He filed a motion with his sentencing judge to correct his conviction records, and Federal District Judge Howard Corcoran acted upon this motion on October 28, 1983, expunging the conviction nunc pro tunc to May 21, 1976.

On November 13, 1983, Barnett filed a petition for reconsideration of the adverse unemployment benefits decision with the Office of Appeals and Review (OAR), based on the new information. On November 18, 1983, the agency dismissed his petition as untimely filed. The OAR also stated that its dismissal constituted a "final decision" of the agency and that Barnett could seek review of that decision from this court.⁴ By statute, this court is given jurisdiction over "decision[s] of the Board," i.e., of the Department of Employment Services,⁵ D.C.Code § 46-113 (1981). Barnett filed a timely appeal from the OAR's determination.⁶

The Department of Employment Services (DOES) now argues that this court has no jurisdiction over the appeal, because Barnett failed to exhaust all of his administrative remedies in a timely fashion prior to his appeal to this court. DOES maintains that Barnett's procedural default warrants our dismissal of the petition. We disagree, finding extraordinary circumstances in this case justifying a departure from the normal rule of full exhaustion of administrative remedies as a prerequisite to judicial review. Upon a review of the record, we find no "misconduct" by Barnett within the meaning of the Unemployment Compensation Act, D.C.Code § 46-111(b) (Supp. 1984), and we therefore reverse the decision of the agency.

I.

DOES contends that the three levels of administrative review incorporated within the Unemployment Compensation Act and accompanying regulations—determinations by a claims deputy, an appeals examiner, and the Office of Appeals and Review—are "jurisdictional"; in other words, that this court has no jurisdiction to review the merits of a petition by a claimant who has failed to pursue all three levels of review in a timely fashion.

It is true that we have held that the appeals periods for intra-agency reviews are "jurisdictional," in the sense that the agency may decline to review any petition that is not filed in a timely fashion. Gosch v. District of Columbia Department of Employment Services, 484 A.2d 956, 958 (D.C. 1984); Worrell v. District Unemployment Compensation Board, 382 A.2d 1036, 1038 (D.C. 1978); Gaskins v. District Unemployment Compensation Board, 315 A.2d 567, 568 (D.C. 1974). We have never held, however, that this court has no jurisdiction over a petition by a claimant who has failed to take a timely administrative appeal. We have described the Unemployment Act's three levels of administrative review as an "exhaustion of administrative remedies" requirement, which normally will bar our consideration of a claim not presented to all three levels of the agency. Malcolm Price, Inc. v. District Unemployment Compensation Board, 350 A.2d 730, 733 (D.C. 1976).

Exhaustion requirements, whether incorporated within an agency statute, or created by judicial rule, are "`rule[s] of judicial administration.'" Id. at 733 (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938)). Regular application of the principle that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted," Myers, 303 U.S. at 50-51, 58 S.Ct. at 463-464, serves to promote judicial efficiency by ensuring the development of a proper factual record for our review, and allows us to benefit by the application of agency expertise to the problem at hand. Malcolm Price, 350 A.2d at 733. In addition, recourse to the administrative process may afford complete relief and thus eliminate the need for any judicial involvement; and by pursuing all administrative avenues for relief the claimant affords the agency an opportunity to correct its own mistakes, mooting judicial controversies and eliminating the need for judicial intervention. Moore v. City of East Cleveland, 431 U.S. 494, 525, 97 S.Ct. 1932, 1948, 52 L.Ed.2d 531 (1977) (Burger, C.J., dissenting); Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 817, 31 L.Ed.2d 17 (1972).⁷ Undoubtedly, therefore, in most cases, the failure to note a timely appeal at the administrative level should foreclose both administrative and judicial review of the claim. Seefeldt v. Board of Trustees of the University of the District of Columbia, 487 F.Supp. 230, 233 (D.D.C. 1979).

The exhaustion rule, however, is not carved in stone. The rule has its origins, according to Professor Jaffe, in "`a discretionary rule adopted by courts of equity to the effect that a petitioner will be denied equitable relief when he has failed to pursue an available administrative remedy by which he might obtain the same relief.'" L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 425 (1965) (quoting Smith v. United States, 199 F.2d 377, 381 (1st Cir. 1952)). When faced with a claim in a Title VII context that equity required that the exhaustion rule be waived, the Supreme Court recanted prior references to the statutory administrative prerequisites to a Title VII suit as "jurisdictional," holding that the exhaustion rule is analogous to a statute of limitations, and is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-95, 397, 102 S.Ct. 1127, 1132-33, 1134, 71 L.Ed.2d 234 (1982). Most courts that have considered the issue, in a variety of administrative contexts, follow the analysis of Zipes and hold that exhaustion requirements are not "jurisdictional" at the level of judicial review.⁸ This court has affirmed the principle that there are circumstances in which a court of equity is justified in considering the merits of an administrative action, notwithstanding the petitioner's failure to exhaust administrative remedies. Capitol Hill Restoration Society v. Zoning Commission, 287 A.2d 101, 106 (D.C. 1972). We now adopt and apply that principle to unemployment compensation appeals.⁹

Where, as in this case, the statute demonstrates Congress' intent to require administrative determination in advance of judicial consideration of a claim, the claimant must make a "strong showing" of compelling circumstances justifying equity's intervention in order to persuade us to excuse a failure to exhaust and examine the claim's merits. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773-74, 67 S.Ct. 1493, 1503-04, 91 L.Ed. 1796 (1947); see Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 294 (3d Cir. 1982) (where statute mandates exhaustion, only in "extraordinary circumstances" should courts excuse claimant's failure to exhaust).

It is inappropriate for us, at this point, to attempt to define all of the circumstances in which exhaustion might be excused. We are content to hold that, on the facts presented in this case, the claimant has demonstrated "compelling circumstances," see Moore v. City of East Cleveland, supra, 431 U.S. at 524, 97 S.Ct. at 1948 (Burger, C.J., dissenting), justifying our review of his petition on the merits. Because Barnett was not able to secure a court order expunging his records until after all administrative deadlines had passed, he was unable to...