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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11-AA-0337

KELVIN JOHNSON, PETITIONER,

 V.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

Petition for Review of a Decision of the Compensation Review Board

(CRB-068-09)

(Submitted October 1, 2014 Decided March 5, 2015)

Matthew Peffer for Petitioner Kelvin Johnson.

Mary L. Wilson, Senior Assistant Attorney General, with whom Irvin B. 

Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor 

General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief for 

Respondent District of Columbia Department of Employment Services.

Before GLICKMAN and EASTERLY, Associate Judges, and PRYOR, Senior 

Judge.

EASTERLY, Associate Judge: Petitioner Kelvin Johnson appeals from an 

order of the Compensation Review Board (“CRB”) vacating a portion of a District 

of Columbia Department of Employment Services (“DOES”) Administrative Law 

Judge’s (“ALJ”) Compensation Order. The DOES ALJ awarded Mr. Johnson, as 

the prevailing party, costs (in the amount of $1,462.00) as well as attorney’s fees,
2

but the CRB determined that there was no basis for an award of costs under the

Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-623.01, et seq.

(2012 Repl.). We review this issue de novo, “recognizing that this court is the final 

authority on issues of statutory construction.” Fluellyn v. District of Columbia 

Dep’t of Emp’t Servs., 54 A.3d 1156, 1160 (D.C. 2012) (internal quotation marks 

omitted). 

To determine if the CMPA permits a DOES ALJ to award costs as well as 

attorney’s fees to a prevailing claimant, we begin with an examination of the plain 

language of the statute, Parrish v. District of Columbia, 718 A.2d 133, 136 (D.C. 

1989), which we assume best reflects the intent of the legislature. Varela v. Hi-Lo 

Powered Stirrups, Inc., 424 A.2d 61, 64-65 (D.C. 1980). “If the meaning of the 

statute is plain on its face, resort to legislative history or other extrinsic aids to 

assist in its interpretation is not necessary.” Parrish, 718 A.2d at 136 (internal 

quotation marks omitted). 
3

The CMPA authorizes only an award of attorney’s fees pursuant to D.C. 

Code § 1-623.27 (b)(2) (2012 Repl.).1 It contains no mention of awards of costs. 

“Attorney’s fee[s],” as the term is generally understood (i.e., payment to counsel 

for legal work performed), are not the same as costs—here payments to obtain 

medical records ($212.21) and two independent medical examinations 

($1279.71)—and indeed the distinction between the two is reflected in numerous 

provisions of the D.C. Code2including the private sector worker’s compensation 

statute.3 Where, as here, the Council makes express mention of one thing—

attorney’s fees—“the exclusion of others is implied, because there is an inference 

that all omissions should be understood as exclusions.” Howard Univ. Hosp./Prop. 

& Cas. Guarantee Fund v. District of Columbia Dep't of Emp’t Servs., 952 A.2d 

 

1

 Section 1-623.27 (b)(2) states: “[i]f a person utilizes the services of an 

attorney-at-law in the successful prosecution of his or her claim under § 1-

623.24 (b) or before any court for review of any action, award, order, or decision, 

there shall be awarded, in addition to the award of compensation, in a 

compensation order, a reasonable attorney’s fee, not to exceed 20% of the actual 

benefit secured, which fee award shall be paid directly by the Mayor or his or her 

designee to the attorney for the claimant in a lump sum within 30 days after the 

date of the compensation order.”

2

 See, e.g., D.C. Code § 1-615.05 (b) (2012 Repl.) (allowing awards of 

“reasonable attorney’s fees and other costs” in government employee qui tam

actions); D.C. Code § 1-615.54 (a)(1)(G) (2012 Repl.) (allowing awards of 

“[r]easonable costs and attorney fees” in government employee whistleblower 

actions). 

3

 See D.C. Code § 32-1530 (d) (2012 Repl.) (“In cases where an attorney’s 

fee is awarded against an employer or carrier there may be further assessed against 

such employer or carrier as costs, fees and mileage for necessary witnesses 

attending the hearing at the instance of claimant.”).
4

168, 174 n.4 (D.C. 2008) (internal quotation marks omitted). Thus, we disagree 

with Mr. Johnson’s assertion that the CRB’s determination that the CMPA does 

not allow for an award of costs “is both clearly erroneous and inconsistent with the 

plain language of the statute.”

Mr. Johnson appears to argue in the alternative, however, that the omission

of any mention of costs in the CMPA is ambiguous and that courts ought to

“liberally construe” D.C. Code § 1-623.27 (b)(2) to allow awards of costs as well 

as attorney’s fees. Preliminarily, we note that, even if we were to accept that there 

is ambiguity in this provision of the CMPA regarding the award of costs, the 

question before us would not be whether, starting from a clean slate, a statutory 

provision authorizing an award of attorney’s fees to a prevailing claimant could or 

should be interpreted also to allow for an award of costs, but rather whether the 

agency that administers the CMPA, here DOES, has reasonably resolved this 

ambiguity. See Chevron, U.S.A, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 

842-44 (1984); Nunnally v. D.C. Metro. Police Dep’t, 80 A.3d 1004, 1010 (D.C. 

2013). “Recognizing agency expertise, . . . we accord great weight to any 

reasonable construction of a[n ambiguous] statute by the agency charged with its 

administration.” Fluellyn, 54 A.3d at 1160 (internal quotation marks omitted). 

“We will sustain the agency’s interpretation even if a petitioner advances another 
5

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.” Id.

(internal quotation marks omitted). 

In a Chevron analysis, “[c]onsistent and longstanding agency interpretations, 

such as those enacted in regulations, merit the most deference.” Nunnally, 80 A.3d 

at 1012. Looking to the CMPA regulations, we find no mention, much less 

authorization, of costs. Instead, like the CMPA itself, the regulations allow only an 

award of “fees for representation of a claimant,” 7 DCMR § 132.1, and are thus 

reasonably understood to exclude an award of costs. Mr. Johnson points us to the 

regulations for the private sector worker’s compensation statute, which, like the 

statute it implements, expressly allow awards of fees and costs. See supra note 3; 

7 DCMR § 269.2 (allowing “an attorney’s fee (including, where appropriate, 

request for reimbursement of costs) for legal work”). But the private sector 

regulations do not apply to District government employees like Mr. Johnson for 

whom the CMPA is their exclusive remedy.4 Mr. Johnson’s reliance on Federal 

 

4

 See Jackson v. District of Columbia Emps.’ Comp. Appeals Bd., 537 A.2d 

576, 577 n.1 (D.C. 1988) (“District of Columbia government employees are not 

covered by other workers’ compensation laws. Instead, a comparable system for 

providing disability benefits has been established under the [CMPA].”) (internal 

citations omitted); cf. District of Columbia Dep’t of Mental Health v. District of 
6

Employee Compensation Act’s (“FECA”) regulations is similarly unavailing: 

these regulations expressly authorize costs to be paid by the claimant.

5

 Indeed, 

FECA does not authorize fee-shifting awards to the prevailing claimant6as does 

the CMPA. 7

The conclusion we reach by examining the plain language of the CMPA and 

its regulations is not undermined by Mr. Johnson’s arguments about the legislative 

history of D.C. Code § 1-623.27 (b)(2) or the “purposes of the attorneys’ fees 

provisions” generally.8 While the Committee Report reflects that the Council 

 

Columbia Dep’t of Emp’t Servs., 15 A.3d 692, 694 n.1 (D.C. 2011) (explaining 

CMPA’s exclusive remedial scheme).

5

 20 C.F.R. § 10.702 (a) (“A representative may charge the claimant a fee 

and other costs associated with the representation before [the Office of Workers’ 

Compensation Programs].”).

6

 5 U.S.C. § 8127 (b); Owens v. Brock, 860 F.2d 1363, 1369 (6th Cir. 1988) 

(“5 U.S.C. § 8127 (b), . . . is a fee approval provision, as opposed to . . . a fee 

shifting statute.”).

7

 Beyond the agency regulations, this court also considers the CRB’s 

interpretation of the CMPA, acknowledging its expertise in administering the 

statute, and “we ordinarily must defer to the [CRB’s] reasonable interpretations of 

ambiguous provisions in that legislation.” Howard Univ. Hosp. v. District of 

Columbia Dep’t of Employment Servs., 960 A.2d 603, 606 (D.C. 2008). Here, the 

CRB’s reversal of the DOES ALJ’s award of costs simply aligns with our 

understanding of the plain language of the CMPA and its regulations.

8

 We are particularly unpersuaded by Mr. Johnson’s assertions that the 

attorney’s fee provision of the CMPA should be interpreted with reference to an 

entirely unrelated federal statute, Title VII of the Civil Rights Act, where Title VII 
7

wished to make it easier for injured government employees to obtain representation 

in these matters,9it also reflects that the Council was concerned about the financial 

burden of requiring the District to pay the attorney’s fees of a prevailing claimant 

under the CMPA.10 It is thus reasonable to conclude that the Council decided to 

authorize payment by the District of fees, but not costs.11 

 

expressly provides for an award of costs to the claimant that includes attorney’s 

fees. See 42 U.S.C. § 2000e-5 (k) (“[T]he court, in its discretion, may allow the 

prevailing party . . . a reasonable attorney’s fee . . . as part of the costs . . . .”).

9

 COUNCIL OF THE DISTRICT OF COLUMBIA, COMM. ON GOV’T OPERATIONS,

REPORT ON BILL 16-238, District Government Injured Employee Protection Act of 

2006, at 2 (Nov. 6, 2006) (“Many employees[ ] who are injured on the job[ ] and 

are forced to seek legal representation find it extremely difficult to obtain legal 

services.”).

10

 Id. at 3 (“DOES would see a sharp increase in the litigation hours spent 

on public sector work activities associated to the disposition of appeals. As such, 

our fiscal budgets would have to be increased in order to address the additional 

personal resources that would be needed to handle more claimant appeals 

responsibly.”); DISTRICT OF COLUMBIA OFFICE OF THE CHIEF FINANCIAL OFFICER,

FISCAL IMPACT STATEMENT ON BILL 16-238, District Government Injured 

Employee Protection Act of 2006, at 1 (June 16, 2006) (“Conclusion: Funds are 

not sufficient in the FY 2007 through FY 2010 budget and financial plan to 

implement the proposed legislation. The proposed legislation would result in a 

negative fiscal impact on the local General Fund of $1.0 million in FY 2007 and an 

overall impact of $4.1 million for FY 2007 through FY 2010.”).

11

 The costs for a CMPA claim generally relate to obtaining medical 

evidence to support the claim—evidence which presumably already exists in large 

part and need not be generated in order to bring the claim.
8

Of course, this opinion does not foreclose the Council from amending the 

statute to expressly allow for awards of costs, but unless and until it does, we will 

not interpret D.C. Code § 1-623.27 (b)(2) to authorize costs, particularly where the 

agency, in its regulations, has not done so. For the foregoing reasons, the order of 

the Compensation Review Board is

Affirmed.