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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12

- AA

- 1895
T HOMAS K. S TEPHENSON , P ETITIONER ,

V
. D ISTRICT OF C OLUMBIA D EPARTMENT OF P UBLIC W ORKS , R ESPONDENT
.

On Petition for Review from an Order of the Office of Administrative Hearings

( DPWK

- 505545

- 12 ) (Submitted June 12, 2014 Decided November 6, 2014) Thomas K. Stephenson, pro se . Irvin B. Nathan , Attorney General for the District of Columbia, Todd S. Kim , Solicitor General, Loren L. AliKhan , Deputy Solicitor General, and Gregory M. Cumming , Assistant Attorney General, were on the brief for respondent.
B efore B ECKWITH and E ASTERLY , Associate Judges , and N EBEKER , Senior Judge

. B ECKWITH , Associate Judge : The District of Columbia Department of Public Works (DPW) issued p etitioner Thomas K. Stephenson a Notice of Violation (NOV ) for violating 21 DCMR § 700.3 ( 1995 ) , which requires that “all solid wastes shall be stored and containerized for collection in a manner that will not provide food, harborage, or breeding places for insects or rodents, or create a2

n uisance or fire hazard.” After Mr. Stephens on failed to respond during the required period, an administrative law judge (ALJ) from the Office of Administrative Hearings (OAH) found Mr. Stephens on li able for the charge contained in the NOV and imposed an addition al penalty for being in default. The
ALJ denied Mr. Stephens on ‟s motion for reconsideration , finding that Mr. Stephens on had failed to mak e out any of the grounds f or reconsideration provided in 1 DCMR § 2828.5 ( 2011 )

. In particular, the ALJ applied 1 DCMR § 2828.5 (b), pursuant to which reconsidera tion can be granted only where the party that “ did not file a required answer to a Notice of Violation

. . . has a good reason for not doing so, and states an adequate claim or defense.” We reverse and remand for a hearing.

I.
On February 28, 2012, a DPW i nspector observed improper storage of solid waste and signs of a rat infestation on Mr. Stephenson‟s property. On April 12, 2012, the g overnment mailed an NOV to Mr. Stephenson by first class mail, return receipt requested. The letter was returned as un deliverable

. Follo wing the return of the certified mailing, the DPW posted the NOV on the front door of Mr. Stephenson‟s property, providing him with an additional fourteen days in which to respond. Mr. Stephens on again failed to respond to the NOV. On September 12,3

2012, the ALJ issued his final order, which held Mr. Stephenson liable for the violation. The order imposed a fine of $1,000 , and added an additional fine of $1,000 f or the failure to respond

. See D

. C

. Code § 8

- 807 (c) (1) (2001) (a uthorizing OAH to impose a “penalty equal to the amount of the civil fine” for the failure to respond to an NOV ). This time Mr. Stephenson responded, writing a letter dated September 21, 2012 , which the ALJ construed as a motion for reconsideration under 1 DCMR § 2 828.5

. Mr. Stephenson‟s letter advanced three main arguments. First, Mr. Stephenson claimed that he was not responsible for the violation because the trash had been illegally dumped on his property, without his knowledge or consent, in June of 2011. S eco nd, Mr. Stephenson claimed that Investigator Anita Chavis of the Environmental Crimes Division had visited his property and instructed him not to remove the trash until the Environmental Crimes Division had completed its investigation. T hird, Mr. Stephens on claimed he did not have notice of the NOV until he received the f

inal o rder. Mr. Stephenson claimed not to have known about the certified mailing and , while he acknowledge d that a tenant had told him about
some papers posted on his apartment door, sa id he was unable to locate the documents

.4
II.

This c ourt reviews OAH decisions to determine if they are “[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” D

. C

. Code § 2

- 510 (a)(3)(A) (2 0 01 ) . The c ourt “must affirm an OAH decision when (1) OAH made findings of fact on each materially contested issue of fact, (2) substantial evidence supports each finding, and (3) OAH‟s conclusions flow rationally from its findings of fact.” District of Columbia Dep ’t of Emp’t Servs v. Vilche , 934 A.2d 356, 360 (D.C. 2007) (quoting Rodriguez v. Filene’s Basement
Inc. , 905 A.2d 177, 180 (D.C. 2006))

.
III.
In denying Mr. Stephenson‟s motion for reconsiderati on, the ALJ explained that “[m]otions for reconsideration are granted only if the moving party demonstrates the existence of one of the reasons enumerated in OAH Rules 2828.5

. ” 1 The ALJ then applied the two

- part test from 1 DCMR § 28 28.5 (b) ,

1 The reasons are: “(a) The party filing the motion did not attend the hearing, has a good reason for not doing so, and states an adequate claim or defense; (b) The party filing the motion did not file a required answer to a Notice of Infraction, or Notice of Violation or did not file some other required document, has a good reason for not doing so, and states an adequate claim or defense; (c) The final order contains an error of law; (d) The final order‟s findings of fact are not supported by the evidence; or (e) New evidence has been discovered that previously was not reasonably available to the party filing the motion.” 1 DCMR § 2828.5.5

which requires tha t the party that did not file a required answer to a Notice of Violation 1) “ has a good reason for not doing so, ” and 2) “ states an adequate claim or defense.” The ALJ apparently viewed as an “adequate claim or defense” some combination of Mr. Stephenson‟s claims that the trash was dumped on his property by a n unide ntified third party and that Mr. Stephenson was responding to an investigator‟s instructions not to remove the trash pending an investigation

. The ALJ wrote that “Respondent provides a defense to the violation, but this defense should have been offered before the deadline for providi ng a response to the Notice ,” a dding that “ R espondent‟s explanation about instructions from a Government official could have been a defense if he would have offered it before the passing of the deadline.” The ALJ found that Mr. Stephenson did not make out a good reason for failing to answer the NOV, concluding that “[a]lthough Respondent acted after receiving the Final Order, Respondent‟s unexplained failure to act after receiving the Notice outweighs any l ater action.”
Mr. Stephenson ‟s failure to act is only “ unexplained , ” however, because his motion for reconsideration

— which included an explicit request for a hearing at which t o present his case

— was denied. Pet‟r‟s Mot. Recons

. 1 ( “I only became

aware of the NOV when I received the Final Order. In lieu of the above circum stances, I humbly ask the court . . . [to] schedule[] a hearing which will allow me the opportunity to present my case with witness to address the NOV6

charges issued by the DPW.”)

. If Mr. Stephenson‟s contentions are true and he really did not learn about the NO V despite the government ‟s having served the notice in two different ways , 2 then he did not know ab out the violation

— a circumstance that other AL Js have found to constitute good cause for failing to respond. See , e.g., D istrict of Columbia Dep’ t of Consumer and Regulatory Affairs v. Preccious M. Williams , 2011

- DCRA

- S702347, 2011 WL 6122408 at * 2 (“ Because the evidence demonstrates that Ms. Williams did not learn of the Notice of Infraction until July 22, 2011, she has established that she had a good reason for failing to file an answer . . . pursuan t to OAH Rule 2828.5

. ”)

. Mr. Stephenson‟s failure to act after receiving the NOV is not so much “unexplained” as “uncredited.” Th e g overnment acknowledges this in its brief:

“ OAH found, however, that DPW had adequately provided him with notice of the NOV through conspicuous posting, satisfying its obligation under D

. C

. Code § 8

- 803 (c)(2), and it did not credit Mr. Stephenson‟s explanation that he was unable to find the posted NOV.” (Emphasis added). While the government explains at length why service was proper and comported with d ue p rocess whether or not Mr. Stephenson actually received the notice , that is not the precise issue here. T he issue is whether the OAH abused its discretion i n failing to set aside the default

2 The adequacy of the service is not in doubt here.7

judgment and schedule a hearing to consider the merits of Mr. Stephenson‟s position. We conclude that i t did.

In the somewhat a nalogous con text in which this c ourt reviews denials of motions to set aside default judg ments of the Superior Court, our case law recognizes the “„strong judicial policy‟ favoring the decision of cases on their merits rather than by default .” Carrasco v. Thomas D. W alsh, Inc. , 988 A.2d 471, 474 (D.C. 2010). T hat logic might apply with less force here, where OAH is given deference as an administrative agency and, pursuant to D.C. Code § 8

- 804 (f) ( 2001 ) and 1 DCMR § 2805.5, expressly authorized to find a party in default for failing to respond t o an NOV under these circumstances

. T h e contention that “ I didn‟t receive the letter” will not always be grounds for setting aside a default judgment under 1 DCMR § 2828.5

. Here , however, where the A LJ fou nd that Mr. Stephenson “provide[d] a defense to the violation, but this defense should have been offered before the deadline,” and where Mr. Stephenson has co me forward to make his case in a timely motion for reconsideration, t he circumstances warrant a he arin g to test the credibility of Mr. Stephenson‟s claim.
For the foregoing reasons, the judgment of the Office of Administrative Hearings is reversed , and the case is remanded for additional proceedings consistent with this opinion

.8
So ordered.