explaining that the court must conduct a “balancing test to determine whether any prejudice caused by agency delay is outweighed by the interests of another party or the public in allowing the agency to act after the statutory time period has elapsed”
How later courts described this case
- explaining that the court must conduct a “balancing test to determine whether any prejudice caused by agency delay is outweighed by the interests of another party or the public in allowing the agency to act after the statutory time period has elapsed”
- “[W]e cannot affirm an agency decision if we cannot confidently ascertain ... its underlying factual determinations.”
- remanding the case because “we cannot affirm an agency ruling if we cannot confidently ascertain ... its underlying factual determinations”
- “[O]ur cases involving review of PERB decisions have proceeded on the ground that . . . PERB’s legal conclusions are subject to the ordinary amount of deference given to agencies entrusted with implementation of statutes.”
Written by the judges who cited it.
The opinion
FARRELL, Associate Judge,
concurring:
I concur in the remand reluctantly for I do not believe it plausible that the legislature intended the 45-day rule to be mandatory rather than directory, if “mandatory” meant that the agency were foreclosed from disciplinary action by noncompliance without regard to whether the delay prejudiced the employee. In Mannan v. District of Columbia Board of Medicine, 558 A.2d 329 (D.C.1989), involving a proceeding to revoke a physician’s license to practice medicine for willfully making or filing a false report, the physician argued that the revocation was invalid because the Board had failed to render its decision within the sixty days after hearing mandated by D.C. Code § 2-3305.19 (h) (1988). Although declining to address the issue on appeal because the physician had not raised it before the Board, we nevertheless opined:
[I]n view of the governmental interests at stake, § 2-3305.19(h) appears to be more in the nature of a precatory directive than a jurisdictional prerogative. Cf. Hughes [v. District of Columbia Dep’t of Employment Servs.,] 498 A.2d [567,] at 571 n. 8 [D.C.1985] (citations omitted). See also Thomas v. Barry, 234 U.S.App.D.C. 378 , 379 n. 5, 729 F.2d 1469 , 1470 n. 5 (1984) (general rule that statutory time period is not mandatory unless it expressly requires agency to act within a particular time period and specifies a consequence for failure to comply) (citations omitted).
Id. at 334 (emphasis in original). We also cited Harris v. District of Columbia Rental Hous. Comm’n, 505 A.2d 66, 71 (D.C.1986), for the principle that the proper remedy for forbidden delay in administrative proceedings is a court order expediting the same, see D.C.Code § l-1510(a)(2) (1987).
“[T]he governmental interests at stake” would seem to me to dictate the same conclusion here. The adverse action procedures of the District of Columbia Comprehensive Merit Personnel Act apply to a vast range of public employees, many of whom — like members of the Department of Corrections — are involved directly with public safety, emergency response, and the like. The statute expressly permits discipline or removal for cause for conduct by employees in such trust positions that endangers the public welfare. Section 1-617.-1(d). To say that a failure to provide a written decision within 45 days when charges of this kind are brought strips the agency of power to impose corrective measures, without regard to identified prejudice to the employee, would be to emphasize the employee-protection aspects of the Personnel Act at great cost to its equally important purpose of “maintaining] an effective and responsive work force.” D.C. Code § 1-601.2 (7). I think the Board was quite right in implying (if it did not say so expressly) that the legislature did not in *713 tend non-compliance with the 45-day rule to mean per se invalidation of agency action, but rather that the agency must be permitted to demonstrate “that its delay did not substantially prejudice the complaining party.” Vann v. District of Columbia Board of Funeral Directors, 441 A.2d 246, 248 (D.C.1982).
In short, the Board’s task should be an easy one of explaining to this court more fully that the statute it administers did not intend “that the drastic result of forfeiture of the Agency’s right to discipline was to be automatic solely because the agency had failed to act within the 45-day period, wholly without regard to any of the attendant circumstances.” Arbitrator’s Award at 13. The Board’s conclusion already is presumptively correct, for, like the Supreme Court, we should
be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that [the legislature] intended for the agency to lose its power to act.
Brock v. Pierce County, 476 U.S. 253, 260 , 106 S.Ct. 1834, 1839 , 90 L.Ed.2d 248 (1986). *
I agree with the court that, in the process, the Board should explain whether it means to distinguish between burden of persuasion and burden of pleading or production — in a case in which, even now, appellant has asserted no actual harm from the agency's delay.
The Board also should have no difficulty explaining the difference between the two conditions on which extensions may be granted under section 1604.38 of the District of Columbia Personnel Manual and the rule permitting the agency to demonstrate lack of prejudice — thus preserving the validity of its action — when the 45-day rule has been violated, and thus in persuading us why the regulations do not impose greater restrictions than the statute on an agency’s power to act.