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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 15-AA-381

                         FRANCES JOHNSON, PETITIONER,

                                       V.

                          DISTRICT OF COLUMBIA
             DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

                    On Petition for Review of an Order of the
           District of Columbia Department of Employment Services
                          Compensation Review Board
                                  (CRB 134-14)

(Argued April 19, 2016                             Decided February 21, 2018)

      Robert K. Magovern for petitioner.

      Richard S. Love, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor
General at the time the brief was filed.

      Before GLICKMAN and BECKWITH, Associate Judges, and WASHINGTON,
Senior Judge.**

      
          The decision in the case was originally issued as an unpublished
Memorandum Opinions and Judgment. It is now being published upon the court‟s
grant of the Legal Aid Society‟s motion to publish.
      **
        Judge Washington was Chief Judge at the time of argument. His status
changed to Senior Judge on March 20, 2017.
                                          2

      GLICKMAN, Associate Judge:         Petitioner Frances Johnson challenges a

decision of the Compensation Review Board (“CRB”) in her workers‟

compensation case.     She contends the CRB erred (1) in concluding that her

employer, the District of Columbia Department of Public Works (“DPW”), had

preserved its argument that her request for reconsideration of the initial denial of

her claim for disability benefits was untimely, and (2) in affirming the denial of her

claim by an Administrative Law Judge (“ALJ”) due to the untimeliness of her

reconsideration request. We affirm the CRB‟s ruling that DPW did not waive or

abandon its objection to the timeliness of Ms. Johnson‟s request for

reconsideration. However, we remand for further findings and a determination of

whether the filing deadline for that request was tolled for equitable reasons

identified by Ms. Johnson in her formal hearing testimony before the ALJ.



                                          I.


      Ms. Johnson was injured in a work-related accident on November 17, 2008,

when another DPW employee ran her over with a street sweeper. She filed a

timely claim for workers‟ compensation benefits with the Office of Risk

Management Disability Compensation Program (“ORM”), which administered

such claims for DPW. ORM denied the claim on December 19, 2008, “due to

abandonment for failure to file and return the required claim forms.” The notice of
                                          3

denial informed Ms. Johnson that she had thirty days to request reconsideration of

this decision.


      At the time, the thirty-day deadline for requesting reconsideration by ORM

was contained in 7 DCMR §§ 3134.5 and 3134.6; the latter regulation specified

that ORM would deny a reconsideration request received after thirty days as

untimely without ruling on the merits. 7 DCMR § 3134.7 allowed an employee to

request a waiver of the thirty-day filing deadline for good cause shown, but

provided that “[i]n no event shall a request for a waiver of the deadline be

considered after one hundred eighty (180) days . . . .”1


      It was not until November 13, 2009, however – nearly eleven months after

ORM‟s denial of her claim – that Ms. Johnson made a (handwritten, pro se)

request for reconsideration. On December 16, 2009, ORM denied the request as

untimely and informed Ms. Johnson that she could apply for a formal hearing in

the Office of Hearings and Adjudication (“OHA”) within thirty days. Ms. Johnson

sought such a hearing, which eventually took place before an ALJ in OHA‟s

Administrative Hearing Division (“AHD”) on December 13, 2010.2


      1
          These provisions were repealed in 2012.
      2
          Ms. Johnson requested a formal hearing on January 5, 2010, but misfiled
her application with the Office of Workers‟ Compensation (“OWC”) instead of
filing it with OHA. At some point between January 5 and January 20, 2010, the
                                                                   (continued…)
                                        4

      In its prehearing statements and in the course of the December 13 hearing,

DPW contended that (1) the AHD lacked jurisdiction because Ms. Johnson‟s

application for a formal OHA hearing was untimely,3 and (2) if AHD had

jurisdiction, the only issue before it was whether ORM properly had denied Ms.

Johnson‟s request for reconsideration as untimely. DPW also presented the first of

these contentions in a prehearing motion to dismiss for lack of jurisdiction, to

which Ms. Johnson furnished a written opposition.          Regarding the second

contention (which is the only one at issue in the present appeal), Ms. Johnson

testified in the December 13 hearing that her admitted delay in seeking

reconsideration was due to the fact that her supervisor at DPW and her claim

representative at ORM led her to believe her workers‟ compensation claim was




(…continued)
application was transferred from OWC to OHA. On January 25, 2010, OHA
notified Ms. Johnson that her application was incomplete. She supplemented it on
January 27, 2010. After some delays, a hearing was commenced on September 8,
2010, but the hearing was aborted before the presentation of evidence and Ms.
Johnson was permitted to withdraw her application for a formal hearing without
prejudice to her refiling it, which she did. The formal hearing finally was held on
December 13, 2010.
      3
         D.C. Code § 1-623.24 (b)(1) (2016 Repl.) provides that an employee who
is dissatisfied with ORM‟s decision on her claim is entitled to a hearing before
OHA “on request made within 30 days after the date of the issuance of the
decision. . . .” DPW asserted that Ms. Johnson failed to submit her request within
30 days.
                                        5

being processed and that she could disregard the December 19, 2008, notice of

denial.4


      On March 15, 2011, the ALJ issued a Compensation Order dismissing Ms.

Johnson‟s claim on the sole ground that her request for a formal OHA hearing was

untimely because it was filed on January 27, 2010, which was more than thirty

days after ORM denied reconsideration on December 16, 2009. The ALJ did not

address the timeliness of Ms. Johnson‟s request for reconsideration by ORM of its

earlier denial notice or her testimony concerning that topic.      After the CRB

affirmed the Compensation Order (also without addressing the timeliness of the

reconsideration request), Ms. Johnson sought review in this court. While her

petition for review was pending, the Department of Employment Services

(“DOES”) moved with her consent to vacate the CRB‟s decision and direct the


      4
           As we understand her testimony, Ms. Johnson claims that between
December 2008 and early January 2009, she worked with Ronnie Jackson, her
supervisor at DPW, and Melissa Ecban, her ORM claim representative, to collect
and submit all the documentation required for ORM to process her claim. Certain
required claim forms had to be completed by her supervisor. Ms. Johnson testified
that Mr. Jackson signed and dated the forms in her presence and informed her that
he had faxed them to ORM. Apparently, however, this material was never filed.
Ms. Johnson further testified that after she received the December 19, 2008, notice
of denial, Ms. Ecban “assured” her that she had found her documentation and told
her to “disregard” the notice of denial because it had been issued in “error.” Ms.
Johnson also maintained that in January 2009, after hearing nothing further, she
called ORM again and “they assured me that they were processing my claim,
everything was being taken care [of].”
                                        6

CRB to remand the case to the ALJ for further proceedings focusing on Ms.

Johnson‟s reconsideration request. In that remand, the consent motion explained,


            Respondent[5] intends to request that the Administrative
            Law Judge make findings and render a decision
            concerning the timeliness of petitioner‟s November 13,
            2009[,] Request for Reconsideration. It is petitioner‟s
            position that the issue of the timeliness of petitioner‟s
            November 13, 2009[,] Request for Reconsideration has
            been waived by respondent, litigated, and decided by
            both the Administrative Law Judge and the CRB.
            Petitioner therefore believes that this issue can no longer
            be raised by respondent before the Administrative Law
            Judge. Respondent disagrees. If this issue is resolved
            favorably to petitioner, the Administrative Law Judge
            will then address the merits of petitioner‟s claim for
            public sector workers‟ compensation. If it is not, the case
            will be concluded.

      This court granted the motion, vacated the CRB‟s decision, and remanded

the case “to the administrative agency for further proceedings consistent with the

statements made in respondent‟s motion.”6



      5
        Although the motion identified the respondent as DOES, in this quoted
paragraph the word “respondent” refers to Ms. Johnson‟s governmental employer
and adversary in the administrative proceedings before DOES, i.e., DPW.
      6
          Although the consent motion stated that, if Ms. Johnson prevailed with
respect to the timeliness of her reconsideration request, the ALJ would address the
merits of her workers‟ compensation claim, we do not understand that to be
procedurally correct. See Marsden v. District of Columbia Dep’t of Emp’t Servs.,
58 A.3d 472, 474 n.1 (D.C. 2013) (“We assume that a claimant whose request for
reconsideration is denied by ORM as untimely could obtain review of the
correctness of that denial, by filing a timely request that OHA review the denial.
                                                                     (continued…)
                                          7

      The case returned to the CRB, which issued a decision and remand order on

October 2, 2012. In that order, the CRB declared that “certain legal positions”

identified in the consent motion were “appropriate for determination by the CRB

now” on the administrative record before it. The CRB proceeded to decide those

issues. Specifically, it determined that DPW had not waived its challenge to the

timeliness of Ms. Johnson‟s reconsideration request, inasmuch as “[t]hroughout the

evidentiary hearing counsel for the employer asserted that the claim was not timely

because the claimant did not ask for reconsideration within 30 days.” Further, the

CRB found, this timeliness issue “was not litigated and decided” in the prior

proceedings, either by the ALJ or the CRB; in particular, “the ALJ did not make

any legal findings as to the legal effect of [Ms. Johnson‟s] filing a reconsideration

request 11 months after her claim was denied nor did the ALJ analyze this issue

with respect to the legal precedent.” Accordingly, the CRB “remand[ed] this case

to the Office of Hearings and Adjudication for a determination as to whether the

claim is barred because the claimant did not timely file a reconsideration request.”7



(…continued)
But such review would be limited to the correctness of the untimeliness ruling, and
would not provide a basis for review of the merits of the original order.”).
      7
         Ms. Johnson‟s petition for immediate review by this court of the CRB‟s
decision and remand order was dismissed for lack of jurisdiction because the
decision was not a final order.
                                         8

      Without holding another hearing or inviting briefing by the parties, the ALJ

issued a Compensation Order on Remand on October 30, 2014. The ALJ found it

“undisputed” that Ms. Johnson did not file her request for reconsideration until

eleven months after ORM denied her claim – “well beyond” both the normal

thirty-day deadline for such requests and the 180 days allowed on a showing of

good cause. Her failure to comply with those regulatory deadlines, the ALJ ruled,

“operate[s] as a bar preventing a hearing on the merits of [her] case.” In reaching

this conclusion, the ALJ did not address Ms. Johnson‟s claim that she was misled

into disregarding the December 19, 2008, notice of denial.


      In the March 17, 2015, decision and order now before us for review, the

CRB affirmed the ALJ‟s ruling. The CRB rejected Ms. Johnson‟s contention that,

on remand from this court in 2012, it had improperly determined issues – whether

DPW had waived its challenge to the timeliness of Ms. Johnson‟s request for

reconsideration and whether the timeliness of that request had been litigated and

decided in the earlier proceedings – that should have been presented to the ALJ for

resolution. The CRB explained that it was “beyond question” that DPW had raised

the timeliness issue in the initial OHA proceedings before the ALJ (and hence had

not waived it), and that the issue had not been “litigated to conclusion.” The CRB

said it had made those determinations “as a matter of law,” and that “[a]ny contrary

conclusion by the ALJ would, by necessity, be erroneous and subject to reversal by
                                       9

the CRB.” The CRB noted that this court‟s remand “was to the agency, not the

ALJ,” and that “[n]either the remand order nor the consent motion specified that

any issues that were appropriate for resolution by the CRB should be directed to

the ALJ.”


      The CRB also rejected Ms. Johnson‟s argument that the ALJ and the CRB

should have solicited additional briefing, evidence, or argument before rendering

their decisions on remand.   Such additional input was unnecessary, the CRB

concluded, because the timeliness of Ms. Johnson‟s reconsideration request was

“part of the case” prior to and at the December 13, 2010, hearing before the ALJ,

and “[b]oth parties had the opportunity to present evidence and argument on that

issue at those times.”


      Finally, the CRB affirmed the ALJ‟s determination on remand that Ms.

Johnson‟s request for reconsideration was untimely. This determination, the CRB

said, merely “required fact findings concerning when the Notice of Denial was

issued, and when the Request for Reconsideration was filed,” and the CRB found

that the ALJ‟s factual findings on those particular matters were supported by

substantial evidence and were not even disputed by Ms. Johnson. Like the ALJ,

the CRB did not address the import of Ms. Johnson‟s testimony that ORM and her

employer had led her to believe she could disregard the denial notice. While

acknowledging Ms. Johnson‟s argument that there was “other evidence . . . that
                                          10

should have resulted in a contrary finding,” the CRB stated that because the ALJ‟s

determination was supported by substantial evidence, it was “not permitted to

substitute [its] judgment for that of the ALJ.”


      Ms. Johnson timely petitioned this court to review the CRB‟s decision.



                                          II.


      The scope of our review is limited. In reviewing CRB decisions, our task is

“to determine whether they are „[a]rbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.‟”8 Although “we review the decision of the

Board, not that of the ALJ[,]” in doing so “we cannot ignore the compensation

order which is the subject of the Board‟s review” in assessing whether the CRB‟s

decision stands.9 Thus, we will affirm a CRB decision if “(1) the agency made

findings of fact on each contested material factual issue, (2) substantial evidence

supports each finding, and (3) the agency‟s conclusions of law flow rationally from

its findings of fact.”10 We will not affirm a decision that “reflects a misconception

      8
        Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs., 971 A.2d
909, 915 (D.C. 2009) (quoting D.C. Code § 2-510 (a)(3)(A) (2016 Repl.)).
      9
        Georgetown Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs.,
916 A.2d 149, 151 (D.C. 2007).
      10
           Georgetown Univ., 971 A.2d at 915.
                                          11

of the relevant law or a faulty application of the law[,]” or that does not allow us to

“confidently ascertain either the precise legal principles on which the agency relied

or its underlying factual determinations.”11         Moreover, we may set aside a

determination that we find to have been rendered “[w]ithout observance of

procedure required by law. . . .”12


      Ms. Johnson presents two basic challenges to the CRB‟s decision, which we

shall address in turn. First, Ms. Johnson contends that the CRB erred in deciding

that DPW did not forgo its claim that her reconsideration request was untimely.

She argues that the CRB erred procedurally by resolving this question itself instead

of remanding for additional factual development or at least requesting briefing; and

that the CRB‟s resolution was erroneous because DPW abandoned its claim by

omitting it from its prehearing motion to dismiss for lack of jurisdiction and from

its opposition to her appeal of the ALJ‟s initial decision to the CRB.


      Second, Ms. Johnson argues that the CRB erred in affirming the ALJ‟s

determination that the untimeliness of her reconsideration request barred her claim

when neither the ALJ nor the CRB took account of her testimony explaining that

her request was delayed because she was misled by the actions of her employer

      11
           Id. (internal quotation marks omitted).
      12
           D.C. Code § 2-510 (a)(3)(D).
                                         12

and ORM. Ms. Johnson argues that application of the doctrine of equitable tolling

is warranted in these circumstances.



                                         A.


      We are not persuaded that the CRB reversibly erred either procedurally or

substantively in deciding that DPW did not waive its claim that her reconsideration

request was untimely. First, neither the consent motion for remand filed by DOES,

nor this court‟s order granting the motion and remanding the case “to the

administrative agency for further proceedings consistent with the statements made

in” that motion, precluded the CRB from deciding the waiver issue prior to

remanding the case back to the ALJ for the timeliness determination. Second,

because the waiver issue was (as the CRB said) a question of law on an undisputed

record, it was not inappropriate for the CRB to decide it itself.13 Ms. Johnson

points to no agency rule of procedure requiring the question to be submitted first to

the ALJ or otherwise precluding the action taken by the CRB in this case.




      13
            We previously have recognized that when the CRB has before it a
sufficient record to answer a legal question, “if the CRB [does] not wish to require
the ALJ to do more than make findings of fact, the CRB [may] decide[] the legal
issue itself.” District of Columbia Dep’t of Mental Health v. District of Columbia
Dep’t of Emp’t Servs., 15 A.3d 692, 698 (D.C. 2011).
                                        13

      Third, while we agree that the CRB should have solicited briefing from the

parties before deciding the contested legal issue of waiver, Ms. Johnson was not

prejudiced by its failure to do so because (1) the issue was purely one of law on an

unambiguous record that needed no amplification,14 and (2) Ms. Johnson

ultimately was afforded the opportunity to present her arguments to the CRB when

she appealed the ALJ‟s Compensation Order on Remand.


      Fourth, on the merits, we agree with the CRB that the record clearly shows

that DPW preserved its claim that Ms. Johnson‟s reconsideration request was

untimely. As the CRB observed, DPW pressed this contention repeatedly at all

relevant times prior to and during the December 13, 2010, hearing before the ALJ.

Ms. Johnson responded to it in her testimony at the hearing. We consider it

immaterial that DPW did not include the argument in its prehearing motion to

dismiss for want of jurisdiction.15   Although that motion relied solely on the

purported untimeliness of Ms. Johnson‟s application for a formal OHA hearing,

DPW continued to press its claim that her request for reconsideration also was

      14
          No further testimony or other evidence was required, nor would it have
been relevant, for the CRB to decide the legal question of waiver. Thus, we reject
Ms. Johnson‟s contention that the CRB should have afforded her an opportunity to
present evidence before the CRB decided there had been no waiver.
      15
         See Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724,
734 (D.C. 2000) (holding that the defendant did not waive a statute of limitations
defense by not including it in its motion to dismiss).
                                         14

untimely. Four days after DPW filed the motion to dismiss on October 22, 2010, it

presented both grounds in its prehearing statement, and it reiterated both grounds at

the December 13 formal hearing.


      Moreover, since the ALJ dismissed Ms. Johnson‟s claim on the first ground

(for want of jurisdiction) without addressing DPW‟s second contention that her

reconsideration request was untimely, DPW did not abandon the latter contention

by not presenting it in its opposition to Ms. Johnson‟s appeal to the CRB as an

alternative ground for affirmance. Indeed, the CRB would have been ill-advised to

consider the fact-specific contention at that stage.16    Rather, if the CRB had

reversed the ALJ‟s jurisdictional ruling (instead of affirming it, as it did), that

would have allowed DPW to seek an initial ruling on its remaining ground for

dismissal on remand.


      Accordingly, we hold that the CRB did not act arbitrarily, capriciously, or

otherwise illegally, or abuse its discretion, in ruling that DPW had preserved its

      16
          Cf. 19 MOORE‟S FEDERAL PRACTICE § 205.06 (3d ed. 2017) (“[I]f two
issues were presented to the agency, and the agency found the first issue to be
dispositive without considering the second issue, a court that reverses the agency‟s
decision ordinarily should not proceed to decide the merits of the second issue.
Rather, the proper course usually is to remand to the agency for consideration of
the alternative argument.”); EastBanc, Inc. v. Georgetown Park Assocs. II, L.P.,
940 A.2d 996, 1008-09 (D.C. 2008) (reversing grant of summary judgment and
declining to address “for the first time on appeal” additional arguments that the
appellee made in the trial court because the trial court had not reached them).
                                          15

challenge to the timeliness of Ms. Johnson‟s request for reconsideration of ORM‟s

denial of her claim.



                                          B.


      The contested issue of fact for the ALJ on remand in this case was not

whether Ms. Johnson requested ORM to reconsider its denial of her claim within

the time frames established by the applicable regulations, i.e., within thirty days or,

upon a showing of good cause to justify her delay, 180 days. There was no dispute

that Ms. Johnson did not file her request until approximately eleven months after

her claim was denied. The material contested factual issues related to whether

equitable tolling of the filing deadlines is warranted in this case based on Ms.

Johnson‟s testimony that DPW and ORM misled her into believing ORM was

continuing to process her claim and that she should disregard the denial notice. If

her testimony is credited and the facts are found in her favor, they possibly may

support her invocation of the doctrine of equitable tolling.17 But the ALJ made no


      17
           See, e.g., Mathis v. District of Columbia Hous. Auth., 124 A.3d 1089,
1104-06 (D.C. 2015) (holding appeal filing deadline equitably tolled where delay
was attributable to administrative agency‟s provision of misinformation to
petitioner).    See also Vlaicu v. United States INS, 998 F.2d 758, 760 (9th Cir.
1993) (holding that appeal to the Board of Immigration Appeals should not have
been dismissed as untimely because the agency itself misled the petitioners into
believing that their actions sufficed to comply with appeal requirements); Gates v.
Georgia-Pacific Corp., 492 F.2d 292, 295 (9th Cir. 1974) (statute of limitations
                                                                     (continued…)
                                          16

findings of fact regarding Ms. Johnson‟s testimony and did not address equitable

tolling at all. Neither did the CRB. “[W]e will not „assume that [an] issue has

been considered sub silentio when there is no discernible evidence that it has.‟”18


      The CRB frequently has acknowledged that non-jurisdictional filing

deadlines in workers‟ compensation cases are subject to tolling “when equity so

requires.”19 Respondent does not contend that the deadline for Ms. Johnson‟s

reconsideration request was jurisdictional (though it does argue that the deadline

should be strictly enforced). The CRB itself apparently understood the deadline

not to be jurisdictional; if it were, the CRB presumably would have held on remand

that DPW could not have waived its challenge to the timeliness of Ms. Johnson‟s

(…continued)
tolled because the Equal Employment Opportunity Commission failed to inform
claimant that she had 30 days to file suit and therefore was at fault for her failure to
observe the deadline).
      18
         District of Columbia Dep’t of Mental Health, 15 A.3d at 697 (quoting
Branson v. District of Columbia Dep’t of Emp’t Servs., 801 A.2d 975, 979 (D.C.
2002)).
      19
          Daniels v. District of Columbia Water & Sewer Auth., CRB No. 05-236,
2005 DC Wrk. Comp. LEXIS 153, at *6 (July 27, 2005) (“[T]he filing of a timely
appeal is not a jurisdictional prerequisite to appellate review, but a requirement
that, like a statute of limitations, is subject to waiver, estoppel, and equitable
tolling when equity so requires.”); see also Mendez v. District of Columbia Public
Schools, CRB No. 10-065, 2011 DC Wrk. Comp. LEXIS 472 at *11-12 (Nov. 29,
2011) (filing deadline was equitably tolled because the claimant had “relied upon
the representations of an employee [of the Commission] that a one day extension
would be granted” when she failed to file timely).
                                         17

reconsideration request instead of examining the record to determine that DPW did

not waive this challenge.20 Instead, the 30-day and 180-day deadlines appear to be

“quintessential claim-processing rules” that were promulgated by the agency “for

the orderly transaction of its business.”21 As such, and despite their “emphatic”

and seemingly “mandatory” language,22 the deadlines “may be extended or

waived” when sufficiently compelling equitable considerations warrant doing so.23


      Whether the equities in Ms. Johnson‟s favor are sufficiently compelling to

excuse the tardiness of her request for reconsideration of ORM‟s denial notice

remains to be determined. It is necessary for us to remand this case again to the

      20
          See Gatewood v. District of Columbia Water & Sewer Auth., 82 A.3d 41,
46 (D.C. 2013) (“Jurisdictional rules may be raised at any point in the proceedings
and are not subject to waiver, however late they are invoked.”). “This court
generally defers to an agency‟s interpretation of its own regulations unless that
interpretation is „plainly erroneous or inconsistent with the regulations.‟” District
of Columbia Office of Tax & Revenue v. BAE Sys. Enter. Sys., Inc., 56 A.3d 477,
481 (D.C. 2012) (quoting 1330 Conn. Ave., Inc. v. District of Columbia Zoning
Comm’n, 669 A.2d 708, 714 (D.C. 1995)).
      21
           Gatewood, 82 A.3d at 48 (internal quotation marks omitted).
      22
          “Not all rules stated in „mandatory‟ language, „however emphatic, are . . .
properly typed jurisdictional.‟” Id. (footnote omitted); see also, e.g., Mathis, 124
A.3d at 1102. Thus, although 7 DCMR § 3134.6 provided that ORM “shall” deny
a reconsideration request received after thirty days as untimely, and § 3134.7
provided that “[i]n no event shall a request for a waiver of the deadline [for good
cause] be considered” after 180 days, that does not mean either deadline was
jurisdictional and not subject to equitable tolling in an appropriate case.
      23
           Gatewood, 82 A.3d at 46.
                                         18

agency for the necessary fact finding and legal determinations required by Ms.

Johnson‟s equitable tolling claim. While we will not venture to instruct the agency

on the precise procedures it should follow, we will observe that affording the

parties an opportunity to brief the issue might well prove helpful in reaching a

legally sound resolution.



                                        III.


      The judgment of the CRB is reversed and this matter is remanded for further

proceedings not inconsistent with this decision.


                                       So ordered.
