O'Rourke v. District of Columbia Police & Firefighters' Retirement & Relief Board

SCHWELB, Senior Judge, concurring in the judgment:

For several reasons set forth below, I find this case substantially more difficult than my colleagues in the majority do. Nevertheless, and especially in light of this court’s decisions in Upchurch v. District of Columbia Dep’t of Employment Servs., 783 A.2d 623 (D.C.2001), and Asylum Co. v. District of Columbia Dep’t of Employment Servs., 10 A.3d 619 (D.C.2010), I *392 agree, albeit with a measure of reluctance, that the Board’s decision should be reversed.

I.

“When faced -with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.” Udall v. Tollman, 380 U.S. 1, 16 , 85 S.Ct. 792 , 13 L.Ed.2d 616 (1965); see also Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984); Howard Univ. Hosp. v. District of Columbia Dep’t of Employment Servs., 952 A.2d 168, 173 (D.C.2008). To be sure, “Ht is emphatically the province and duty of the judicial department to say what the law is.” Harris v. District of Columbia Office of Workers Comp., 660 A.2d 404, 407 (D.C.1995) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 , 2 L.Ed. 60 (1803)); see also United Parcel Serv. (UPS) v. District of Columbia Dep’t of Employment Servs., 834 A.2d 868, 871 (D.C.2003). Nevertheless, in conformity with Udall v. Tollman and its progeny:

We will defer to any agency’s interpretation of a statute that it administers so long as it is not plainly wrong or inconsistent with the legislature’s intent. We must sustain the agency’s interpretation even if a petitioner advances another 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.

Howard Univ. Hosp., 952 A.2d at 173-74 (emphasis added) (citations and internal quotation marks omitted). In other words, regardless of what our own view may be, we must sustain the Board’s construction as long as it is reasonable and consistent with the language and history of the statute. See Asylum, 10 A.3d at 625 .

Moreover, we have repeatedly held that “[t]he deference which courts owe to agency interpretations of statutes which they administer is, of course, at its zenith where the administrative construction has been consistent and of long standing.” Tenants of 738 Longfellow Street, N.W. v. District of Columbia Rental Hous. Comm’n, 575 A.2d 1205, 1213 (D.C.1990); accord, UPS, 834 A.2d at 871 ; Superior Beverages, Inc. v. District of Columbia Alcoholic Beverage Control Bd., 567 A.2d 1319, 1325 (D.C.1989). In this case, as revealed in this court’s unpublished Memorandum Opinion and Judgment (MOJ) in Hart v. District of Columbia Police & Firefighters Relief & Ret. Bd., No. 96-AA-368 (D.C. Oct. 24, 1997), see maj. op., ante, at p. 383 n. 9, the Board has adhered to a construction of the statute which it has applied at least since January 1996, when it entered the order denying benefits to a former employee which this court affirmed in Hart. The apparent consistency of the Board’s construction over a protracted period of time adds to the deference which we are obliged to accord it.

Finally, the question whether O’Rourke is entitled to retirement benefits is one within the specialized expertise of the Board. This case is unlike one in which we review a decision of the Office of Administrative Hearings, which “is vested with the responsibility for deciding administrative appeals involving a substantial number of different agencies,” and cannot be expected to have specialized knowledge as to all of them. Washington v. District of Columbia Dep’t of Public Works, 954 A.2d 945, 948 (D.C.2008). This is an additional reason for heightened deference here. See also Udall, 380 U.S. at 16 , 85 S.Ct. 792 .

*393 My colleagues in the majority do not claim, nor can they, that there is “plain language” in the statute that ordains the result that they reach. The question before us is whether O’Rourke, who had become a former member of the Metropolitan Police Department (MPD) by the time the Board issued its decision, was nevertheless entitled to receive disability benefits. In my opinion, the language of the statute tends to support the Board’s construction rather than the court’s. I so conclude because the provisions here specifically at issue — D.C.Code §§ 5-709 and 5-710 — provide relief to someone who is a “member,” but they are silent as to the rights, if any, of a “former member.” By contrast, as the majority acknowledges in footnote 30, ante, other provisions of the statute make explicit reference to “former members.” See §§ 5-701(7);' 5-701(3), (4); 5-716(b). Our legislators obviously knew how to say “former member” when that is what they meant. Therefore, to quote Justice Brandéis, O’Rourke is arguably seeking “an enlargement of [the statute] by the court, so that what was omitted, presumably by inadvertence, may be included within its scope.” Iselin v. United States, 270 U.S. 245, 250-51 , 46 S.Ct. 248 , 70 L.Ed. 566 (1926); see also Chase v. District of Columbia Alcoholic Beverage Control Bd., 669 A.2d 1264, 1268-69 (D.C. 1995) (quoting Iselin). As the Court added in Iselin , however, “[t]o supply omissions transcends the judicial function.” Iselin, 270 U.S. at 251 , 46 S.Ct. 248 . To insist that “members,” in the present context, includes “former members” is to tread on perilous ground.

It is also my view that by dismissing the Hart MOJ in a footnote, ante n. 9, on the ground that an unpublished MOJ does not constitute binding precedent, 1 the majority overlooks an aspect of the issue before us to which our unpublished decision in Hart is not irrelevant at all. Since we are required to sustain any reasonable interpretation by the Board of the statute that it administers, and since all three members of a division of this court (including the author of this opinion) upheld that interpretation in Hart on the ground that it is consistent with, and even compelled by, the language of the statute, this court should surely be a little cautious about dismissing that interpretation as unreasonable.

As I see it, there is nothing in the language of the statute that is more consistent with the majority’s construction than with the Board’s. There likewise appears to be no legislative history that addresses this specific issue. Although we are dealing here with remedial humanitarian legislation, and although O’Rourke’s injuries in the line of duty (regardless of how he secured that duty) may generate some sympathy for his circumstances, I do not believe that these considerations dictate the result here. In light of the legislature’s use of the phrase “former member” elsewhere in the statute, the apparent consistency over the years of the Board’s construction, and our affirmance of that construction in Hart, I find it difficult indeed to conclude that the Board’s ruling in this case was unreasonable. If reasonable people might either agree or disagree with the Board’s interpretation, then we are ordinarily obliged to sustain it.

II.

, There is an additional reason, not addressed by the parties, for my hesitation in joining the majority’s, disposition of this petition for review. For me, it is important that O’Rourke was not fired because he engaged in misconduct during his service as a member of the MPD. Rather, he *394 was discharged because he engaged in fraud in the process of securing his MPD membership by lying about his medical history. Specifically, O’Rourke falsely denied in his application that he had undergone certain medical tests. It appears that if O’Rourke had told the truth instead of lying, he probably would not have become a District of Columbia police officer at all, and the question whether he is entitled to disability benefits would never have arisen.

The case thus arguably implicates “the maxim that no man may take advantage of his own wrong.” Glus v. Brooklyn E. Disk Terminal, 359 U.S. 281 , 232, 79 S.Ct. 760 , 3 L.Ed.2d 770 (1959). This principle is “[d]eeply rooted in our jurisprudence,” and it “has been applied in many diverse classes of cases by both law and equity courts.” Id. at 232-33, 79 S.Ct. 760 . Specifically, it has been invoked by this court in a case which has much in common with the present one.

In Marboah v. Ackerman, 877 A.2d 1052 (D.C.2005), the plaintiff had been injured in a work-related accident, and he had applied for workers’ compensation. Because he was an illegal alien and was not eligible either to work in this country or to receive workers’ compensation, he had used another man’s name and social security card, both to secure employment and, following his accident, to apply for benefits. He subsequently sued his attorney for legal malpractice after the latter failed to file an action on Marboah’s behalf to challenge the denial of benefits. Relying heavily on Glus, we affirmed the entry of judgment in favor of the attorney on the ground that Marboah’s underlying claim for compensation benefits was lacking in merit. We held, in pertinent part:

Any purported entitlement that Marb-oah could have had to workers’ compensation was founded upon misrepresentation and fraud as to his eligibility for compensation, and this court will not aid Marboah to vindicate that fraud-induced entitlement through this action for legal malpractice. Accordingly we decline to permit Marboah to recover, as damages from his attorneys, “lost” workers’ compensation which the defendants’ negligence allegedly prevented him from recovering, but to which in fact he was not legally entitled at all. If Marboah had not concealed the truth, inter alia, from his employer, from the employer’s carrier, and from the defendants (who were his attorneys in the workers’ compensation claim), his claim would never have been favorably considered, for as a matter of [Virginia] law, ... Marboah’s status as an illegal alien would have disqualified him from any recovery.

Marboah, 877 A.2d at 1059 .

Although there are significant differences between Marboah and this case, and although Marboah’s fraud was far more extensive than O’Rourke’s, there is also a fundamental similarity. Both men were injured on the job. Both men lied to obtain their employment. If either man had told the truth, he probably would not have obtained the job. Marboah was denied relief on account of his lies. O’Rourke asserts that he is entitled to compensation notwithstanding his lie. In my view, the Glus maxim should at least arguably have a role to play in deciding whether O’Rourke should be permitted to receive benefits when he apparently might not even have been working as a police officer if he had told the truth. 2

III.

Having voiced my reservations, however, I am unable to reconcile the agency’s *395 decision with certain binding precedent cited by the majority. In particular, I note our ruling in Upchurch that

[misconduct of the employee, whether negligent or willful, is immaterial in compensation law, unless it takes the form of deviation from the course of employment, or unless it is of a kind specifically made a defense in the jurisdictions containing such a defense in their statutes.

783 A.2d at 627 (quoting 2 Arthur Larson, Larson’s Workers’ Compensation Law § 32.00 (2001)) (internal quotation marks omitted). If, as we held in Upchurch , an employee’s misconduct is irrelevant, then the employer cannot be permitted to circumvent that rule by discharging the employee and then denying benefits on the grounds that the employee is no longer employed. The remedial humanitarian legislation here at issue surely “forecloses sophisticated as well as simple-minded modes of nullification or evasion.” Richman Towers Tenants’ Ass’n v. Richman Towers, LLC, 17 A.3d 590, 602 (D.C.2011) (internal quotation marks omitted); see Lane v. Wilson, 307 U.S. 268, 275 , 59 S.Ct. 872 , 83 L.Ed. 1281 (1939).

We have also held that the fact that a claimant secured his employment by fraud likewise does not affect his right to receive disability benefits. In Asylum, 10 A.3d at 628, 630 , this court held that an illegal alien who used false documents to obtain his job, and whose employment contravened our immigration statutes, was not precluded from pursuing a claim for workers’ compensation benefits. Although there is arguably some tension between our decisions in Marboah and Asylum, 3 the present case is more like the latter than the former, because Marboah’s employment was governed by Virginia law, which rendered him ineligible for benefits, while the claimants in Asylum and O’Rourke were employed in the District of Columbia, where no statute or judicial ruling so provides. Moreover, as I have previously acknowledged, the Board did not decide this case under a Glus theory, nor did it differentiate between former members who obtained their positions by fraud and other former members. Accordingly, and notwithstanding the reservations expressed in this opinion, I concur in the judgment of the court.

. I cannot and do not quarrel with the proposition that an unpublished MOJ is not binding on us, but I do not believe that this makes what we decided in Hart inconsequential.

. I recognize, however, that the Board did not base its decision on Glus, or even on *395 O'Rourke’s deception, but rather on the fact that at the time of its decision, O’Rourke was a former member. We are not free to affirm an agency’s discretionary decision on grounds different from those relied on by the agency. See, e.g., Cooper v. District of Columbia Dep’t of Employment Servs., 588 A.2d 1172, 1176 (D.C.1991).

. In Asylum, 10 A.3d at 627 n. 10, this court distinguished Marboah principally on the ground that Marboah "was ineligible under then-current Virginia law to recover workers' compensation," while the claimant in Asylum applied in the District, where there was no comparable explicit bar to recovery. As the author of the court’s opinion in Marboah , I question whether the result would have been different had the case arisen in the District, for our reasoning was dominated by the Glus maxim. When there is a conflict between two of our decisions, we have held that

[w]here a division of this court fails to adhere to earlier controlling authority, we are required to follow the earlier decision rather than the later one.

Sutton v. United States, 988 A.2d 478, 482 (D.C.2010) (quoting Thomas v. United States, 731 A.2d 415 , 420 n. 6 (D.C.1999)); see M. A. P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). Because Asylum can be distinguished from Marboah , however; because this case falls on the Asylum side of the distinctions; and because the Board did not rely on the Glus maxim, I prefer not to open a Pandora’s box by addressing the question whether the two decisions are consistent.