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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-CV-872


                          YORDANOS SIUM, APPELLANT,

                                         v.

          OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION, APPELLEE.


                         Appeal from the Superior Court
                          of the District of Columbia
                                (CAP-4119-16)

                     (Hon. Jeanette J. Clark, Associate Judge)
                    (Hon. Robert R. Rigsby, Associate Judge)1

(Argued November 16, 2018                          Decided October 10, 2019)

      David A. Branch for appellant.

      Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. Alikhan, Solicitor General,

      1
         This court has jurisdiction to review agency orders and decisions that are
final. District of Columbia Dep’t of Emp’t Servs. v. Vilche, 934 A.2d 356, 358–59
(D.C. 2007). Although pursuant to D.C. Code § 1-606.03(d) (2016 Repl.) orders
and decisions from the Office of Employee Appeals (“OEA”) are first reviewable
by the Superior Court before they are reviewed by this court, the exclusive focus of
our analysis in this opinion is the OEA Board’s order denying Ms. Sium’s petition
for review.
                                         2

and Stacy L. Anderson, Acting Deputy Solicitor General, were on the brief, for
appellee.

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

      EASTERLY, Associate Judge:       Appellant Yordanos Sium challenges her

termination for cause by the Office of the State Superintendent of Education

(“OSSE”). We first conclude that Ms. Sium’s failure to file an appeal to the Office

of Employee Appeals (“OEA”) within thirty days, as specified in D.C. Code § 1-

606.03(a) (2016 Repl.), did not deprive OEA of jurisdiction to hear her case. We

further conclude that, because the OEA Administrative Law Judge (“ALJ”)

decided not to conduct an evidentiary hearing even though the parties’ briefing

disputed material facts, the OEA Board abused its discretion in denying Ms.

Sium’s petition for review. We therefore vacate and remand.



                                         I.


      Ms. Sium worked as a school bus driver for OSSE. In January 2011, her bus

made contact with an illegally parked vehicle. She did not exit her bus and instead

left the scene. The incident, which was recorded on videotape, was reported to

OSSE, and an investigator interviewed Ms. Sium the following day. According to

the investigator’s report, Ms. Sium initially told the investigator that she had not

made contact with the illegally parked vehicle, but after the investigator informed
                                         3

her that she had been seen making contact, she “changed her story” and

apologized. OSSE cleared Ms. Sium to return to work about a week after the

collision. Almost three months after the incident, OSSE sent Ms. Sium a notice of

proposed termination. 2 It then informed Ms. Sium that she was terminated for

cause in mid-April 2011. 3 By statute, Ms. Sium had thirty days to appeal her

termination to OEA, see D.C. Code § 1-606.03(a), although OSSE did not specify

this in its termination letter. Ms. Sium filed her pro se appeal in August 2013,

using what appears to be an OEA form. No question on the form asked if Ms.

Sium wanted an evidentiary hearing.



      OSSE moved to dismiss Ms. Sium’s OEA appeal, asserting her failure to file

within the requisite thirty-day timeframe deprived OEA of jurisdiction. The OEA

ALJ did not explicitly rule on this motion and instead ordered briefing on the

merits.   In its brief, OSSE explained that the Division of Transportation had

justifiably terminated Ms. Sium after “conclud[ing] that Ms. Sium’s behavior,

including hitting a parked car, fleeing the scene, and lying to the investigator,

      2
           The notice stated that the proposed termination was for “Neglect of
Duty—failure to follow instructions or observe precautions regarding safety;
failure to carry out assigned tasks; careless or negligent work habits.” It provided
no additional detail.
      3
         The April notice repeated the language in the March notice regarding the
reason for Ms. Sium’s termination.
                                          4

presented a threat to the efficiency and discipline of the school system.” The

agency also asserted that this was Ms. Sium’s second “preventable” collision

within twelve months, although it provided no detail about the earlier incident and

engaged in no analysis of why either collision was, in its view, “preventable.” In

her pro se brief in response, Ms. Sium argued inter alia that OSSE had “cleared”

her after the January 2011 collision and permitted her to return to work. She

further asserted that “[c]ritical facts” alleged by OSSE had not been “determined

conclusively” in its investigation; in particular, she challenged the assertions that

she had been aware of the collision at the time, that she had fled the scene, and that

she had lied to the investigator.     Instead, she asserted that she had accepted

responsibility only after she was informed by the investigator that she had made

contact with the other vehicle.



      The OEA ALJ issued a written decision in October 2014 upholding Ms.

Sium’s termination. In one sentence of her decision, the OEA ALJ acknowledged

her ability to hold an evidentiary hearing, but stated that, “[a]fter considering the

parties’ arguments,” she had determined that an evidentiary hearing was

unnecessary.
                                         5

      Ms. Sium then filed pro se a petition for review with the OEA Board.

Among other arguments, Ms. Sium asserted that there were disputed issues of fact

and argued that the OEA ALJ had thus erred in her decision “not to conduct an

[e]videntiary [h]earing.” 4 In its May 2016 order denying her petition for review,

the OEA Board rejected this argument. The OEA Board “relie[d] on OEA Rule

624.2 which provides that ‘if the Administrative Judge grants a request for an

evidentiary hearing, or makes his or her own determination that one is necessary,

the Administrative Judge will so advise the parties . . . ,’” and concluded that

“[t]hus, it is the Administrative Judge’s prerogative to hold an evidentiary hearing

when it is deemed necessary.” Ms. Sium unsuccessfully sought review of the OEA

Board’s decision in Superior Court. This appeal followed.



                                        II.


      “This court reviews agency decisions on appeal from the Superior Court the

same way we review administrative appeals that come to us directly. Thus, in the

final analysis, confining ourselves strictly to the administrative record, we review

the OEA [Board]’s decision, not the decision of the Superior Court . . . .” Stevens



      4
         Nothing in the record indicates that OSSE filed an opposition to Ms.
Sium’s petition for review by the OEA.
                                           6

v. District of Columbia Dep’t of Health, 150 A.3d 307, 311–12 (D.C. 2016)

(citation and internal quotation marks omitted). Before we may consider the OEA

Board’s decision in this case, however, we must address OSSE’s challenge to

OEA’s jurisdiction.



      OSSE asks us to conclude that the thirty-day deadline to file an appeal with

the OEA, contained in D.C. Code § 1-606.03(a), is jurisdictional. If OSSE is

correct, OEA never should have heard this case, and we should remand to OEA to

dismiss this appeal. See Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 17

(2017)   (“[A    party’s   f]ailure   to   comply   with       a   jurisdictional   time

prescription . . . deprives a court of [its power to hear a] case, necessitating

dismissal—a drastic result” (internal quotation marks omitted)).            But as we

explained in Mathis v. District of Columbia Hous. Auth., 124 A.3d 1089, 1102

(D.C. 2015), not all filing deadlines are jurisdictional. Indeed, following Supreme

Court precedent, we presume they are not and treat these deadlines as waivable

claim-processing rules. Id. at 1101, 1102 (explaining our “bright line default is

that procedural rules, even those codified in statutes, are nonjurisdictional in

character” (internal quotation marks and citation omitted)).
                                          7

      The presumption that a filing deadline is a claim-processing rule may be

rebutted if certain criteria are fulfilled. See Mathis, 124 A.3d at 1102. If a

deadline is contained in a statute—not a court rule or a regulation—and its

language is mandatory, it may be jurisdictional. Id. at 1101–02. Section 1-

606.03(a), stating that “[a]ny appeal shall be filed within 30 days of the effective

date of the appealed agency action,” meets both these requirements. D.C. Code

§ 1-606.03(a) (emphasis added). As our cases and Supreme Court precedent make

clear, however, more is required.5        For a filing deadline to be deemed a

jurisdictional bar, the “traditional tools of statutory construction” must also make

clear that the legislature intended it to serve this purpose. Mathis, 124 A.3d at

1102 (internal quotation marks omitted); see, e.g., Hamer, 138 S. Ct. at 20 n.9;

Kwai Fun Wong, 135 S. Ct. at 1632–33. Here, we see no indication 6 that the D.C.



      5
          The Supreme Court has considered comparable statutory language and
repeatedly concluded that it announces a claim-processing rule. See, e.g., United
States v. Kwai Fun Wong, 135 S. Ct. 1625, 1630–33 (2015) (holding that the filing
deadlines in 28 U.S.C. § 2401(b), which provides that “a tort claim against the
United States shall be forever barred unless it is presented to the agency [within the
specified time period],” id. at 1632, are not jurisdictional); Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 438–41 (2011) (holding that the filing
deadline in 38 U.S.C. § 7266(a), which states “a person adversely affected by such
decision shall file a notice of appeal with the Court within 120 days,” id. at 438, is
not jurisdictional).
      6
         OSSE agrees that a legislature “must do something special” to render a
deadline a jurisdictional bar, Mathis, 124 A.3d at 1102 (quoting Kwai Fun Wong,
135 S. Ct. at 1632), and argues that the D.C. Council’s decision to locate the thirty-
                                                                       (continued…)
                                         8

Council affirmatively sought to curtail OEA’s jurisdiction through D.C. Code § 1-

606.03(a).    Thus, we conclude that § 1-606.03(a)’s thirty-day deadline is not

jurisdictional.



      Although our holding means that OEA was not required to dismiss Ms.

Sium’s late-filed appeal outright, OEA was authorized to do so if OSSE

“seasonably” objected to the untimeliness of Ms. Sium’s filing as a defense.

Brewer v. District of Columbia Office of Emp. Appeals, 163 A.3d 799, 802 & n.5

(D.C. 2017) (internal quotation marks omitted).          OSSE did this.       But it

subsequently abandoned its objection;7 and, having done so, it may not resurrect



(…continued)
day deadline in § 1-606.03, a provision which OSSE claims contains other
jurisdictional limitations, provides that indication. We are hesitant to adopt this
characterization of these other provisions in § 1-606.03, which discuss the types of
adverse actions that an employee can appeal, and we note that a separate
subchapter, § 1-606.02, sets out the “authority” of the OEA. See D.C. Code § 1-
606.02 (2016 Repl.) (providing that the OEA has the “authority” to adjudicate
appeals, issue subpoenas, rules, and regulations, and require compliance with its
orders, among others). In any event, we are unpersuaded by this proximity
argument. “In characterizing certain requirements as nonjurisdictional, [the
Supreme Court] ha[s] on occasion observed their separation from jurisdictional
provisions. The converse, however, is not necessarily true: Mere proximity will
not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle.”
Gonzalez v. Thaler, 565 U.S. 134, 146–47 (2012) (citations and internal quotation
marks omitted).
      7
        This conclusion can be reached by one of two routes. If, as OSSE seems
to suggest, the OEA ALJ never ruled on OSSE’s motion to dismiss, then OSSE’s
                                                                   (continued…)
                                           9

this defense in this court. See, e.g., George Wash. Univ. v. Violand, 940 A.2d 965,

977–78 (D.C. 2008). Thus, we need not decide if Ms. Sium’s appeal could or

should have been dismissed on OSSE’s motion or whether the filing deadline

should have been equitably tolled. Instead, we turn to the merits of Ms. Sium’s

appeal.



                                          III.


      Ms. Sium argues that the OEA Board’s decision was not supported by

substantial evidence. Within this argument she makes a more fundamental claim:

that the OEA ALJ was unable to base her factual findings on substantial evidence

because she did not hold an evidentiary hearing to resolve disputed questions of

material fact.




(…continued)
“neglect [in] seek[ing] a ruling on [its] motion” resulted in its “fail[ure] to preserve
the issue for appeal.” Carter v. District of Columbia, 980 A.2d 1217, 1226 (D.C.
2009) (internal quotation marks omitted). As we explained in Carter, this court
“will excuse such a failure only in exceptional situations and when necessary to
prevent a clear miscarriage of justice apparent from the record.” Id. (internal
quotation marks omitted). As in Carter, “[t]hose requirements are not met in this
case.” Id. Alternatively, if the OEA ALJ denied OSSE’s motion when she
acknowledged it in her order, nonetheless determined she had jurisdiction, and then
ruled on the merits, OSSE abandoned this claim by failing to raise the issue—or
even file a brief, see supra note 3—before the OEA Board.
                                        10

      We review an OEA decision to ensure it is not arbitrary, capricious, or an

abuse of discretion. District of Columbia Dep’t of Pub. Works v. Colbert, 874

A.2d 353, 358 (D.C. 2005). For an OEA decision to pass muster, the agency “must

state findings of fact on each material contested factual issue; those findings must

be supported by substantial evidence in the agency record; and [its] conclusions of

law must follow rationally from its findings.” Rodriguez v. District of Columbia

Office of Emp. Appeals, 145 A.3d 1005, 1009 (D.C. 2016) (quotation marks

omitted). “While it is the OEA [Board’s] final decision and not that of the [OEA]

ALJ that may be reviewed by this court,” the OEA Board, and this court in turn,

must accept the OEA ALJ’s findings of fact “unless they are not supported by

substantial evidence.” Colbert, 874 A.2d at 358.



      Ms. Sium, proceeding pro se, sought review from the OEA ALJ using a

form that nowhere prompted her to indicate if she requested a hearing.

Nevertheless, in her pro se filing, she disputed OSSE’s account of the school bus

collision and of her response to questioning by the OSSE investigator. Among

other things, Ms. Sium challenged OSSE’s assertion that security camera footage

established that she was aware that her bus had hit the parked car and, by

extension, knowingly left the scene, chose not to report the collision, and lied to

the OSSE investigator. Moreover, after receiving the OEA ALJ’s decision, Ms.
                                         11

Sium explicitly argued in her pro se petition to the OEA Board that the OEA ALJ

should have held an evidentiary hearing because her disputes of fact were material

to her appeal.8



      The OEA Board rejected this argument on the ground that “it is the

Administrative Judge’s prerogative to hold an evidentiary hearing when it is

deemed necessary,” citing OEA Rule 624.2, 6-B DCMR § 624.2 (2012) (“If the

Administrative Judge grants a request for an evidentiary hearing, or makes his or

her own determination that one is necessary, the Administrative Judge will so

advise the parties . . . .”). 9 To the extent the OEA Board determined that the OEA

ALJ has unfettered discretion to deny a petitioner a hearing, we cannot agree. To

make findings regarding disputed facts in the absence of a hearing is the essence of

arbitrary and capricious decision-making.        Compare Dupree v. District of

      8
          Although Ms. Sium was less explicit in raising this issue in her pro se
petition for review filed in Superior Court, asserting only that the OEA’s decision
was not supported by substantial evidence, the OEA in its brief to this court has not
argued that she abandoned this claim. It asserts instead that her argument that she
was entitled to an evidentiary hearing before the OEA ALJ relates only to
collateral matters, see infra.
      9
          The OEA Board also cited to two prior decisions, but neither clearly
support this broad proposition, and one of those decisions actually undermines the
proposition by acknowledging that an ALJ should hold a hearing when material
facts are in dispute. See DuBuclet v. District of Columbia Pub. Sch., OEA Matter
No. 2401-0245-10, at 6 (Dec. 17, 2013) (citing Dupree v. District of Columbia
Office of Emp. Appeals, 36 A.3d 826 (D.C. 2011)).
                                         12

Columbia Office of Emp. Appeals, 36 A.3d 826 (D.C. 2011) (remanding for an

evidentiary hearing where OEA ALJ should have been aware there were material

issues of disputed facts that needed to be resolved), with Anjuwan v. District of

Columbia Dep’t of Pub. Works, 729 A.2d 883, 885–86 (D.C. 1998) (affirming

OEA ALJ’s denial of an evidentiary hearing where, even after the ALJ ordered the

parties to identify the issues, appellant made no mention of the issue he wished to

be resolved at a hearing). Alternatively, to the extent the OEA Board implicitly

determined that there were no material issues of disputed facts necessitating a

hearing, the record does not support that determination.



      OSSE now seeks to minimize as “collateral” the OEA ALJ’s findings that

Ms. Sium had both knowingly fled the scene of the collision and lied to an

investigator. But these were the grounds for termination OSSE itself set forth in its

brief to the OEA. And these were the grounds the OEA ALJ relied upon to support

its determination that Ms. Sium had “neglected her duties” and could be terminated

by OSSE. See Jones v. District of Columbia Dep’t of Emp’t Servs., 519 A.2d 704,

709 (D.C. 1987) (observing that we limit our review of an agency’s decision to the

grounds the agency relied on at the time it made its decision). By contrast, the

OEA ALJ made little mention of the ground that OSSE now asserts supported its

termination decision—the fact that Ms. Sium had had two “preventable accidents.”
                                        13

The OEA ALJ noted Ms. Sium’s prior alleged collision only to explain that Ms.

Sium, having previously been “in another accident,” could be deemed to have been

aware of the “Accident Policy as listed in the [Division of Transportation] policy

and procedure manual” that required her to report the incident. The OEA ALJ did

not independently analyze whether this incident or the earlier one was

“preventable.”10



      For these reasons, we conclude the OEA Board abused its discretion in

denying Ms. Sium’s petition for review where the OEA ALJ decided this case

without an evidentiary hearing. 11 We therefore vacate the OEA Board’s decision




      10
          Whether an accident is “preventable” is determined by a special entity,
the Accident Review Board. OSSE Div. of Transp. Policy & Proc. Manual
§ 207.1(E) (2010). The record before us does not include information about the
Accident Review Board’s assessment, if any, of either of Ms. Sium’s two
collisions.
      11
          Ms. Sium’s argument that she was denied due process when OSSE did
not affirmatively arrange for a pre-termination hearing is without merit. The notice
of proposed termination letter advised Ms. Sium that she had a right to request a
pre-termination hearing, and Ms. Sium does not contend that she ever tried to avail
herself of this process. See Chase v. Pub. Def. Serv., 956 A.2d 67, 75 (D.C. 2008)
(“Because [appellant] declined to take advantage of [an] opportunity [to appeal his
termination to the Board of Trustees], he cannot demonstrate that he was deprived
of due process.”).
                                     14

and remand this matter to the OEA for further proceedings consistent with this

opinion.12



                                                     So ordered.




      12
         Because we conclude that vacatur and remand is in order we do not
address Ms. Sium’s claim that the OEA failed to consider lesser penalties.
