*3 THOMPSON, Before FISHER and SCHWELB, Judges, and Senior Associate Judge.
THOMPSON, Judge: Associate Pamela Andrews asks us to Petitioner (1) July overturn a 2008 order & Relief Firefighters Police & Retirement (the “Board”) that denied her claim Board annuity ground for a survivor’s on (2) filed, untimely the claim was order pay capacity” her survivor’s benefits. claimed “low mental documented the Board to ruling prior age eighteen, the Board’s first filed a claim for agree We was time-barred application petitioner’s July benefits on March 2001. On stand, and we therefore reverse the cannot the Board issued an denying order however, conclude, Board’s order. We the claim the ground that it was filed matter must remand this ... year outside “three statute of limi- petitioner determine ...” tations established D.C.Code eligible to receive a survivor’s otherwise 12-301(8) (2001) (providing that actions *4 annuity. “for which a limitation is not otherwise specially prescribed” may not be brought
I. expiration years).1 after the of three daughter Petitioner is the of Elmer An- 6, 2008, On June petitioner’s then- drews, a who retired as member of the eighty-nine-year-old step-mother submit- (“MPD”) Metropolitan Department Police Board, again ted letter to the applying 1, 1971, August on March and died on annuity petition- for survivor benefit for 5-716(c) (2001) § pro- 1983. D.C.Code stating er and that “it is clear that pertinent part vides in that surviv- “[e]ach denial of benefits in 2001 was error.” ... ing child former member who The Board once again applica- denied the after ... dies retirement shall be entitled tion, that stating the time of this “[a]t [,]” annuity § to an ... and D.C.Code 5- request current for a annuity survivor it (2001) (5)(A)(iii) defines “child” to in- years has been over 20 since the statute of regardless clude an “unmarried child requests limitations for such expired.” has who, age physical because of or mental The Board did not cite its earlier denial of disability age incurred before the is petitioner’s 2001 claim as a reason for incapable self-support.” Although denying the 2008 claim. copy record does not contain a District of Columbia Police Officers’ and timely appealed Petitioner the Board’s Firefighters’ Summary Retirement Plan as In 2008 order. her initial brief on appeal, may Andrews, have been Elmer issued to alia, argued, she inter that the Board there appears dispute to be no that such concluding erred in that the residual stat- plan provided, Summary as did limitations, 12-301(8), ute of D.C.Code record, Plan that is in the that aif member barred her claim it applies only since died, beneficiary his “survivors must “actions,” not to claims for benefits to ... file with the Retirement Relief eligible which “automatically survivors are Board to receive ... the automatic surviv- entitled.”2 The District of Columbia sub- or’s benefit” and submit of eligi- evidence sequently filed a motion and then a brief bility. remand, urging conceding us to that sec-
Petitioner, 12-301(8) eligibility who asserts her tion inapplicable, arguing survivor benefits on the appropriate basis of her that a remand is so that the (D.C. 1998) petitioner (noting The Board that governing determined "had that August timely until applica- to file a "plainly upon hap statute that indicates annuity!,]” tion for a survivor but filed "near- pening contingency, aof the death of a for ly years fourteen ... and seven ... months retirement, surviving mer member after too late.” [beneficiary] automatically shall be entitled to annuity directly benefits from the District of 2. See v. Jackson District Columbia Police & Columbia”). Bd., Firefighters Ret. & Relief request timely ap may consider in the first instance reconsideration5 Board deadline, (1) order, apply some other peal whether of the Board’s 2001 which and, petition- if the Board determines peti the Board the same claim that denied (2) time-barred, not er’s claim is tioner reasserted 2008. We conclude to receive benefits. qualifies petitioner that while the have cited might its remand, arguing opposes Petitioner non-appealed 2001 order as a basis for record is sufficient for this court to claim,6 denying petitioner’s has by age that she was disabled determine ju- waived claim of administrative res continues, disability that her eighteen and it in invoking dicata not the 2008 ord ... purposes” that the “remedial Bowen, er.7 See Poulin F.2d Police and Fire- the District of Columbia (D.C.Cir.1987) (agency 868-69 waived Disability Act fighters Retirement and application judicata” of “administrative res (“the Act”)3 circum- personal and her appeal assert doctrine she is at risk of stances-she asserts that *5 upholding an alternate basis for its deci on depends because she institutionalization sion); Ngom Dep’t v. District Columbia sup- for care and aged step-mother her Servs., 1266, 1269 Employment expeditious an resolution of port-warrant (D.C.2006) (citing proposi Poulin for the matter.4 this judicata tion that must be “res raised be reviewing apply fore the court can
II.
doctrine”);
NLRB,
see also
v.
969
USPS
A.
(D.C.Cir.1992) (“[Cjourts
F.2d
1069
preclusion pleas
parties
do not force
on
analysis
address
begin
We
our
by
”).
who choose not to make them....
On
briefly an
that we
with the
ing
issue
raised
basis,
that
because there
no
is
issue
argument:
peti
at oral
whether
parties
(we
jurisdiction
our own
are asked to re
claim for relief in this court is
tioner’s
order,
by
timely
peti-
failure
a
view a
final
as to which
barred
her
to submit
Tarlosky,
particular,
second claim.
In
we do not ad-
3. See District
(D.C.1996) ("We
that,
view the Act as
petitioner’s argument
deny-
A.2d
dress
before
legislation
interpreted
claim,
remedial
which is to be
ing her first
the Board failed to meet
liberally
purposes.”).
to achieve its
responsibility
developing
its
her in
assist
(e.g.,
the record
about her diminished mental
urges
approach
follow the
Petitioner
us to
capacity) to
a fair resolution of her
assure
by
Ap-
articulated
the United States Court of
claim,
("The
§
see DCMR 2503.3
Board
peals for the District of Columbia Circuit in
shall,
any
applicant repre-
case in which an
v. FTC: "Notwith-
LaSalle Extension Univ.
herself,
represented by
sents
or
or is
a
himself
having
standing
importance
the [fact-
non-legal representative, take such action as
express
with care and
its conclusions
finder]
may reasonably
necessary
be
to insure that all
adequate
detail ... we will not remand the
developed
information material to the case be
specific findings doing will
case for more
so
possible,
to the fullest extent
commensurate
precious
judicial
consume
time and
resources
sitting
with the
an
Board's function of
serving any purpose.” 627 F.2d
without
(D.C.Cir.1980)
curiam).
impartial body.”);
(per
and that
2008 claim
by
therefore is not barred
the 2001 decision
(1986) ("A petition
§
5. See 7 DCMR 2525.1
(allegedly)
that the Board made on an
under-
reconsideration, rehearing
reargument
for
developed record.
by
may
applicant
filed
an
within fifteen
(15) days
receipt
after the
of the Retirement
otherwise;
suggested
7.The Board has not
it
decision.”).
Board’s
in a
brief that it
states
footnote to its
is not
judicata
pursuing
argument
appeal.
a res
judi-
express
6. We
no view as to
res
actually
petitioner’s
cata
would have barred
review),
timely petition
urge
a
The District continues to
us
tioner filed
Board,
to the merits.
proceed
permit
exercising
we
to remand to
responsibility
authority
its
adminis
Act,
B.
ter the
to determine whether a claim-
limit
If
filing
appropriate.
is
the immedi
Act,
agree
The
that neither the
parties
a claim-filing
ate issue were whether
dead
-724,
§§
the imple-
D.C.Code
5-701
nor
permissible
prospective
line is
as a
rule
menting regulations
provision
contain
general
application,
agree
would
which a
establishing
deadline
survivor
the Board should address the issue in the
file
claim for
must
survivor’s benefits
instance, drawing upon
expertise
first
its
(a
deadline”).
“claim-filing
legislative
necessary
about what
for the effective
history
suggests
angle
of the Act
program
administration of the benefit
would,
arguing
claim-filing
that a
deadline
Act
establishes.9 But the
be
not,
be consistent with the pur-
would
arguen
assuming
fore us is more focused:
poses
statutory
of the statute
and the
do that the
scheme,8
may adopt
guidance
claim-filing
but no definitive
can be
deadline,
way.
may
drawn either
do so
the course of
argument,
provides,
8. As discussed at oral
We also note that
the Act
this court
5-723(c),
recognized repeatedly
beneficiary may
has
D.C.Code
"[w]hen
originally
right
Act was
enacted in
its stated
waive her
to survivor’s
but
benefits
*6
purpose
provide
comparable
begin
to
thereafter
revoke the waiver
[was]
benefits
and
to
given
prospective
to those
under the federal Civil Service
receive benefits on a
basis. This
provision appears
contemplate
Retirement Act
Ridge
Amendments of 1956.”
to
the
Bd.,
Firefighters
may
required
v.
&
pay
Police
Ret. &
be
to
benefits even if
Relief
418,
(D.C. 1986) (citing S.Rep.
potential obligation
pay
A.2d
No.
the
to
could not have
(1957));
also,
Cong.,
any
projected
certainty during
85th
1st Sess. 2
see
been
the
e.g., Martin v.
period immediately following
District
Columbia Police &
a member’s
of
Bd.,
However,
Firefighters' Ret. &
A.2d
provision
death.
the
need not nec-
Relief
(D.C.1987)
J.,
(Rogers,
dissenting)
essarily
117 n. 6
require
be read to
tolerance of the
(same); Coakley
delayed filing
v. Police & Firemen’s Ret. &
of an
claim
initial
for benefits.
Bd.,
(D.C.1977)
370 A.2d
Relief
(and
not)
Although
we need not
do
decide
(suggesting
may
that there
be “merit to th[e]
definitively
may adopt
whether the Board
argument”
analogizing
of
manner
of
to Con
general
establishing
claim-filing
rule
dead-
gress’s intent in the Civil Service Retirement
line,
Board,
recognize
the
Act).
as the
Notably, the Civil Service Retirement
Mayor's designee, may “promulgate such
provides
payment
Act
shall
”[n]o
regulations
necessary
carry
...
rules and
to
application
...
made
unless an
for benefits
Mayor’s responsibilities”
out
under the
employee
on the
based
service of an
or Mem
5-724(b) (2001);
§
Withey
Act. D.C.Code
...
ber is received
before the one hundred
cf.
Perales,
(2d Cir.1990) (up-
trative Procedure 2-505(a) (2001).12 § It D.C.Code further special exper the Board’s not fall within that: provides tise, one that this court but instead is Except emergency the case of rules Mergen in the first instance. See address acts, general or no rule or document of Dep’t time Perini v. District Columbia applicability effect legal adopted or Servs., Employment on or after March enacted shall (D.C.2002). publica- become effective until after its tion in the District of Regis- Columbia The mandates that: DCAPA ter, nor shall such rule or document of Mayor independent agen- and each general applicability legal effect be- shall, cy prior adoption to the rule law, required by come effective it is thereof, repeal or the amendment other than I of subchapter chapter this Reg- publish the District subchapter, pub- this to be otherwise (unless persons subject ister all thereto lished, until such rule or document of personally are either served named and general applicability legal effect is notice thereof or otherwise have actual published required by also such law. law) notice of the accordance with 2-558(b) (2001). Thus, D.C.Code action as to afford interested intended so general DCAPA establishes that a rule of persons opportunity to submit data and *7 applicability may given effect be unless orally writing, may either or in views adopted following it has first been notice- specified in such notice. The notice legal rulemaking publication shall also contain a citation to the and-comment See, Register. e.g., v. authority being under which the rule is D.C. Webb proposed. publication Dep’t or service District Human Columbia of of DCAPA, -562, Dep’t Rights, §§ to 10. The D.C.Code 2-501 District Columbia Human of of 751, (Steadman, "supplements] provisions (D.C.1993) all of law es- other 633 A.2d 2 780 n. tablishing procedures by J., to be observed ("The dissenting) legislative history of the agencies govern- Mayor and of the District District of Columbia Administrative Proce- application ment in the of laws administered although dure Act indicates that it is some- them, supersede any ... such [and] shall what different from the federal Administrative procedure law and to the extent of con- Act[,] generally ... Procedure it is to be inter- (2001). § flict therewith.” D.C.Code 2-501 APA.”). preted akin to the federal interpreting 11. We look to case law the feder any part 12.A "rule” is "the whole or of guidance APA DCAPA re al since "the Mayor’s agency's general or statement of or quirements as and comment are to notice particular applicability and future effect de- closely analogous requirements to the of the signed implement, interpret, prescribe or Federal Administrative Procedure Citizens Act[.]” policy organization, law or or to describe the Georgetown Zoning v. s'n Comm'n As of of procedure, practice requirements D.C., 1027, (D.C. 1978) (en 392 A.2d 1038 banc); Mayor any agency.” § of D.C.Code 2- Craig, see also District Columbia v. of 946, 502(6)(A). (D.C.2007); Timus v. 930 A.2d 967-68 770 (D.C.1992) 148,
Servs., (per deny petitioner 151 benefits to the because the A.2d curiam); eligibility federal statute was “silent on v. District Columbia Rorie of Res., Department’s policies standards” and the 403 A.2d Dep’t Human of (D.C.1979). subject rulemaking were rules to the re- of, quirements promul- but had not been our attention to cases The Board draws with, DCAPA), in gated accordance recog and others have in this court which Rorie, 403 A.2d at may engage adjudi in agencies nized that (reversing agency’s denying appli- decision rulemaking i.e., may adopt a rule cative — Emergency program cation for Assistance through adjudica general applicability of furniture, purchase though funds to even cases, and, apply at least in some tion the Department had discretion to set its resolving the case in which the new rule eligibility own standards under federal However, a rule is first announced.13 program, because decision was based study of the cases in which courts careful departmental policy internal —that application such retroactive of upheld have permitted payments only such when neces- adjudicative rules shows that the rules in sary permit living child outside the (or “interpretive” clarifying) were family replace home to return to the or to (or “legis rules rather than “substantive” catastrophe— furniture lost a natural lative”) Compare, e.g., rules. Lee v. Dis published had not been the D.C. Dep’t Employment trict Columbia of DCAPA). Register compliance with the (D.C.1986) Servs., 101, 103 509 A.2d pause explain We the distinction be- rule, agency adopted through (upholding interpretive tween leg- and substantive or adjudication, permissible that was a inter rules, important islative which is to our 303(a)(1)), § pretation of D.C.Code 36— analysis. v. Washington Hosp. Ctr. District Co Servs., Dep’t Employment lumbia The DCAPA definition of a (D.C.1999) and, face, (upholding “certainly A.2d “rule” is broad” on its rule, agency adopted through adjudication, require could be read to notice and com “represents procedural clarification ment and prior publication any agency statutory thirty policy designed that is consistent with the to implement governing day filing requirement set forth in law. District v. North Columbia Wash. 322(b)(2)”), Inc., (D.C. Neighbors, [D.C.Code] Co. 36— Keefe 1976). held, however, Zoning Bd. Ad District We have that when *8 624, (D.C.1979) justment, n. 2 agency 409 A.2d 625 an “merely rule describes the ef (upholding Zoning Adjustment [statute,] Board of existing fect of an rule or regula determination, tion,” imposed compli without it does not fall within the DCAPA ance procedural require with DCAPA definition of “rule” and “the procedural ments, merely the BZA interpreted unnecessary.” where formalities of the APA are omitted). statutory phrase professional (emphasis the “similar Id. Such a rule is Webb, (or person”), with 618 at 151 A.2d referred to “in “interpretive” as an See, (holding Department’s policies terpretative”) rule. v. e.g., Rosetti Shalala, (3d 1216, governing eligibility for homemaker ser 12 1222 n. F.3d 15 Cir. 1993) (“Interpretive vices under the federal Social Services ... merely rules clari Block program fy explain existing Grant could not be used to or law or regulations.”) adjudicative ap- Reichley Dep’t Whether an rule See v. District (i.e., Servs., 244, retroactively plied Employment in it case which 251-54 announced) (D.C.1987). depends upon is several factors.
771 OSHA, 464, (citation v. quotation internal marks ber Commerce 636 F.2d and (D.C.Cir.1980), omitted); it makes new Family Planning National & 469 law and Sullivan, thereby engages “legis 979 F.2d in “substantive” or Health Ass’n Reprod. (“A (D.C.Cir.1992) rulemaking. Legislative rule that clari lative” or sub statutory example simply clarify term is the classic stantive rules do more than fies a rule.”). term; interpre explain statutory regulatory An or or interpretative of an advisory they interpretations an function ex are not mere of a tive rule “serves meaning given by agency regulation’s meaning, statute’s or but are plaining the imposed in a statute “self controls over the manner particular phrase to a word or administers,” in agency it Batterton v. Mar and circumstances which the will or rule shall, (D.C.Cir.1980), plenary power.” 648 F.2d exercise its Pickus v. Parole, Bd. “simply explainfs] something the statute United States 507 F.2d (D.C.Cir.1974). 1107, 1113 Family Plan already require[s].” Nat’l (citation at and internal ning, 979 F.2d agency an When announces a omitted). marks As the quotation D.C. statutory new interpretation thus en —and explained, interpretive has to be an Circuit gages interpretive rulemaking may—it rule, interpreting a “rule must be some (in through adjudication, do so many thing. proposition It must derive a from cases) may give retroactive effect to the existing meaning an document whose com interpretation the case in which the new pels logically justifies proposition. announced, interpretation is because the proposition The substance of the derived agency really effecting is not change fairly must flow from the substance of the N. Neighbors, law. See Wash. existing document.” Tex. Tel. Central A.2d at (explaining that the rulemak FCC, Coop., Inc. v. 402 F.3d ing “quasi- envisioned the DCAPA is (D.C.Cir.2005) (quoting A. Antho Robert legislative,” and that require DCAPA Rules, ny, “Interpretive” “Legislative” apply govern ments do not “where the Rules, Rules: “Spurious” Lifting agency performs legislative ment no func (1994)) 6 n. 21 Smog, 8 Admin. L.Rev. only tion but describes or refers to the (internal omitted). “If, marks quotation written”). regulation as But when an claim, despite agency’s a rule cannot statute, agency supplements such as interpreting viewed as in fairly be —even adopting requirements new or limits or or a correctly regulation, statute —a the rule imposing obligations, new is inval interpretive exempt rule is not an rule adopted through id unless it had been rulemaking.” from notice-and-comment rulemaking pub notice-and-comment Id.14 compliance lished in with the DCAPA. contrast,
By
agency
(explaining
legislative
when an
See id.
rules
authority
“clearly
“to
are
supplement
exercises its
within
ambit
rule-
[a
*9
DCAPA”).15
statute],
it,”
provisions
to
of
simply
making
not
construe
Cham-
the
(“By
Compare
Aerospace
id. at 210
a ‘substantive
15.
NLRB v. Bell
Co. Div.
14. See also
Textron, Inc.,
267, 290,
it,
rule,'
'legislative
we call
a
a
416 U.S.
94 S.Ct.
rule' —or as
of
APA[,]
1757,
(1974) (holding
petitioners
in the
mean
As we
In
in-
for which the rule is announced.
the
served,
rigid
are no
formulas
“[t]here
case, however,
the
is not a
official action results
stant
an
determining when
effect,
DCAPA[,]”
In
the Board did
of the
close one.
what
purposes
in a ‘rule’ for
(and
sometimes,
possibly
in
to do on
line between an ad
this case
seeks
and,
“the
remand17)
eli-
impose
a ‘rule’
was to
an additional
under
judicative determination
requirement
receiving
for
a surviv-
gibility
thin
Acheson v.
one[.]”16
is a
the DCAPA
(D.C.1987).
Act, i.e.,
318,
annuity
require-
or’s
under the
a
A.2d
320
Sheaffer, 520
reason,
application
a claimant file her
always easy
it is not
to ment
For that
agency
that an
(cid:127)within a certain time after
the deceased
policy
a
decide
But,
asserting
the
adjudication is one member’s death.18
through
announces
759,
1426,
action,
Co.,
22
a
involved here.
U.S.
89 S.Ct.
causes of
situation not
Gordon
(1969) (invalidating adjudicative
See note
L.Ed.2d 709
infra.
general
purported to establish the
rule that
rules,
types
part
16.
because "all
of
That is
employer
provide
principle
must
a list
that an
alike,
legislative
interpretive
inter-
eligible
employees
to vote in a union elec-
of
"
Tex.,
pret
'law.'
Cent.
Articles of petitioner comes issue is (N.D.Ill.1985) (explaining policies that that “child,” statutory within of definition precise, objective “create limitations where i.e., who, an “unmarried [person] because are previously none existed” substantive physical disability or mental incurred rules), moot, 569, 818 F.2d vacated as age incapable before the is of self- Cir.1987). (7th may not im The Board support.” rely Petitioner have us would requirement through a new ad pose such that, on several documents record it, all, in adopt but if at judication, must asserts, indisputably she establish her dis- procedures with the mandated compliance ability age eighteen. and its onset before by the DCAPA. There is a November 1974 letter from reasons, we vacate the foregoing Brandes, M.D., For the stating peti- Herbert that order, ground tioner, Board’s on the Dr. “for patient Brandes’s about apply claim-filing Board a dead- years,” mentality five is “of low and has petitioner’s school,” line to bar claim.19 regular never attended “the has mentality years age,” of a child about 8
C.
“cannot read or write nor
count mon-
[sic]
same,”
an
agency
ey,
When
has denied
nor does she attach
value to
totally
of a
application
dependent upon
parents
for benefits
basis
and “is
care,
legislative
adopted
compliance
support
they
rule
without
and if
were to
DCAPA,
would,
typically
with the
have re-
by necessity,
we
become deceased she
1985) ("Because
adopt
through
period
pro-
the rules of the BZA
tations
established
specific
appeals,
mulgation
regulation.
limit
no
time
on
standard
of a
become eligibility require- into their home.” otherwise meets the were to take her 16, 2001, and April includes ments to receive survivor’s benefits. We record also from Dean April express hope 2008 documents also that the Board will M.D., similarly stating peti- Traiger, upon expeditiously act this matter as mentality of low and has never tioner “is possible. school,” cogna- that “her regular
attended So ordered. are not tive abilities consistent [sic] in fact age,” that she “is childlike SCHWELB, concurring: Senior Judge, adolescent,” family that without her she care she “would need institutional since compelling This is a case of considerable self,” to care for her would be unable I urgency. agree While with most of the of but part society that she “works to be I opinion, separately court’s write to focus manage money.” lacks skills of un- practical consequences However, the record also contains necessary delay in of An- disposing Ms. copy Attorney” of a “Durable Power of case, claim. In this as much drews’ as or 21, 2008, May bearing what purports dated more than in other case that I have petitioner’s signature, possibly to be rais- in over thirty years confronted can in fact ing an issue of whether she bench, justice delayed likely is to prove to in Dr. (contrary write to the assertion justice parties denied. If the cannot letter). Further, the record Brandes’s reach a reasonable far the settlement — copy petitioner’s contains a Social Secu- option most constructive available—then alia, rity showing, earnings report, inter should, view, my the Board move with petitioner earnings had of over an expedition utmost towards immedi- $11,000 in 2006—a fact does not nec- just ate and resolution of Ms. Andrews’ essarily disability, her claim of negate but claim. at as to whether raises least issue she is “capable self-support.” § 5- D.C.Code I. 716(e)(2)(A). Resolving such factual issues proper appellate “is not a function of an father, August On when her Simpson court.” v. District retired Lieutenant Elmer J. Andrews of Rights, Human Office of (D.C.1991). died, Metropolitan Department, Police addition, In presume we thirty Pamela years Susan Andrews was developed body the Board has of inter- death, Upon old. his Ms. Andrews became pretations on when a claimant will be annuity, to receive a entitled survivor al “capable deemed “disabled” and of self- though age eighteen, she was over the support,” another why reason the Board incapable supporting she was herself. opportunity should have an in the first (2001). 5-716(e)(2) See If Ms. D.C.Code instance to make a determination about (or qualified qualifies) Andrews under this petitioner qualifies for survivor’s standard, then, statutory as the District benefits. brief, appropriately acknowledges in its her substantive entitlement to a survivor
III. annuity automatic. See Jackson Dis reasons, foregoing Firefighters’ For the & reverse trict Columbia Police Bd., (D.C. petitioner’s Board’s determination that Ret. & A.2d Relief 1998). claim is time-barred. We remand for the *12 mentality and by Ms. Andrews drews “is of low nev- ha[s] the claim Because regular According not filed attended before us was er school.” presently which is 2008,1 might reasonably Traiger, antici- to Dr. Ms. Andrews is “some- until one functional in assessing independent in Ms. Andrews’ what and soci- pate difficulties years “mentality in the ety,” in 1983 and but her is not consistent condition present major age claims with her fact is childlike or “[S]tale followed. seriously Traiger can In Dr. evidentiary problems which adolescent.” execut- ability to determine a government undermine courts’ ed District in which he An- Compton, explained Farris v. 652 A.2d form Ms. the facts.” (D.C.1994) (quoting Tyson Tyson, learning drews has a “moderate” disabili- (1986) 72, 727 P.2d In ty. response 107 Wash.2d to the banc)). (en instance, however, In “capable earning this Ms. Andrews was a which, livelihood,” “No,” in my responded evidence at least Dr. Traiger there is view, finding that Ms. part makes eventual and he added that “she wants to be (and society manage was in 1983 contin- of but lacks skills to mon- Andrews disabled today), ey.” disabled and thus The record thus reveals that ues to be so Ms. herself, support highly probable, essentially unable to Andrews is unschooled and that, virtually period certain. over the entire of her not adult life, mentally she has functioned like a an evaluation of Ms. The record contains child. Brandes, M.D., by G. Herbert Andrews 4,1974, years nine dated November almost These evaluations do not stand alone. became potentially before Ms. Andrews claim presented Ms. Andrews’ 2008 was on annuity. Dr. wrote eligible for an Brandes stepmother, her behalf her who is now Andrews, twenty- who was then that Ms. ninety years age. very over fact time, years old at the one necessary rely aged that it was on an never mentality is of low and has attend- relative to act on Ms. Andrews’ behalf the mentali- regular ed school. She has provides support common sense her years age. ty of a child about 8 unable, especially claim she is ours, complex society urban like to care for reported further that Ms. An- Dr. Brandes support herself. drews money, cannot read or write nor count My colleagues majority hold that nor she attach value to same. does Board, instance, in the first must de- totally dependent parents She is her is, termine whether Ms. Andrews or has care, support they and if were to been, incapable supporting herself. would, by become deceased she necessi- reluctantly, I agree Somewhat with re- ty, become institutionalized unless a rel- mand for that The record not purpose. were take her into or her] ative [his one-sided, entirely prior and because the home. timeliness, litigation focused on the facts M.D., have not Traiger, fully developed respect In 2001 and Dean been to the of Ms. primary physician, provided Ms. Andrews’ existence extent Andrews’ disability. signed which were Ms. evaluations on her behalf Andrews has du- attorney Dr. largely power consistent with Brandes’ as- rable favor of her stepmother, although ability some three decades earlier. sessment her name Traiger Dr. wrote in 2001 that Ms. An- write does demonstrate the An claim filed and 1. earlier was dismissed *13 herself, whether support question question the the Ms. Andrews is un-
capacity to (2) herself; support we able to could understood what she arises whether she with that complete state assurance further Andrews has also earned signed.2 Ms. of the development record could con- $11,000 in 20063—and she money—over See, ceivably e.g., alter this result. In re in some apparently has contributed thus (D.C.1991) (en Melton, 892, support. to her own limited measure banc) (the require law does not a remand earnings that level of in the living While remanding when would be a case futile challenging would be District Columbia act).4 (and even more so for a genius even for a with the intellectual function of a person we Obviously, dispense cannot with find- child), agree I am constrained to that the in ings by the trier of fact the absence of Board, fact, finder of extraordinary as the and as truly circumstances. Al- agency charged construing though the stat this case is unusual in relation to speed, the need for I required by agree ute which it is law to adminis that it does not preemption by warrant ter, this court of the given opportunity be to should instance, responsibility, Board’s in the first issue, make a on the record and to decide record, facts, to make find the con- first instance Ms. Andrews strue the statute. capable self-support. was or is I so notwithstanding conclude a measure of how,
mystification as to
II.
in the context of a
humanitarian and remedial
statute
in
(and human)
practical
problem
which close calls are to be made in favor of
case, however,
this
is that if the proceed-
claimant, see, e.g.,
District
ings on remand take a conventional lei-
77,
(D.C.1996),
v. Tarlosky, 675 A.2d
an
course,
surely
then even if the
ulti-
impartial
reasonably
trier of fact could
find mately
finds
Ms. Andrews is disabled
apparent
someone of Ms. Andrews’
and,
support
and unable to
as I
herself —
age
capable
supporting
mental
is
her
explained,
finding
probable,
have
such a
is
self.
I would be
inclined
eschew a
any legal
if not
victory that
inevitable—
(1)
unnecessary only
remand as
the rec
may ultimately
likely
Ms. Andrews
win is
or,
ord
before us were conclusive
im
Pyrrhic
to be a
one. Although the Board
perfect
analogy,
but instructive
would war
dispatch
has acted with reasonable
in ad-
claim,
rant a
in a jury
dressing
directed verdict
trial on
Ms. Andrews’
the fact is
power
attorney
2.
replete
might
The durable
appropriate
appellate
is
4.It
be
for an
terminology, e.g.,
with technical
if,
"indemnifica-
e.g.,
physi-
court to decline to remand
attorney-in-fact.”
tion of acts of
reports
cians'
disclosed that the claimant has
quadriplegic
period
been a
for the entire
annuity
Ms. Andrews is entitled to an
if she
claiming
annuity.
which she was
a survivor
not,
not,
engage
is
or was
able to
in “substan-
Melton,
In In re
597 A.2d at
the en banc
gainful
activity.”
tial
42 U.S.C.
Cf.
case,
spite
court
"decline[d]
remand
423(f)(1)(B)
added);
(emphasis
Zwerling v.
judge’s
explicit
of the trial
failure to make an
97-3132,
Mgmt.,
Personnel
No.
Office of
(Fed.Cir.
finding
question
1997).
on which the
WL
admis-
at *3
Nov.
Systems
depended,”
As the Merit
sion of the
Protection Board held
contested evidence
Rajbhandary
futile,
Mgmt.,
Personnel
a remand
because
would have been
Office of
91 M.S.P.R.
"the fact of current
appreciable possi-
because
no
"discern[ed]
employment
disqualify
alone
[does not]
bility"
judge
finding
that the
would make a
applicant.
regulations,
Under SSA
the mere
contrary
plain-
one to which the record
applicant
employed
fact that an
is
is not nec-
ly pointed.
essarily disqualifying.” Id.
bility
high
is
present
In the
even
favorable deter-
litigation takes time.
protect
mination will have come too late to
case,
pat-
the claim on
the Board denied
Ms. Andrews.
limitations
ently erroneous
statute
litigation
and the
grounds5
June
agency may
justi
A trial court or an
whether Ms. Andrews
taking
fied in some cases in
reasonable
yet
herself has not
even
support
unable to
In
Extension
shortcuts.
LaSalle
Univ. v.
*14
period
Comm’n,
the
that has
begun. During
U.S.App.
Federal Trade
D.C.
(1980),
ruling more than
elapsed since the Board’s
627 F.2d
the court
stated,
slightly
in
a
different
discussing
ago,
a half
Ms. Andrews has
year
and
but related issue:
If,
re-
annuity.
upon
survivor
received no
mand,
Notwithstanding
importance
at the
the
proceed
the case continues to
having
express
the district court
before,
its con
likely
years
it is
to be
pace
same
as
in adequate
clusions with care and
de
the evidence has been collected and
before
tail, however, we will not remand a case
made,
findings
the
have been
presented,
if
specific findings
doing
for more
so will
applications
further
for review
and
precious
judicial
consume
time and
re
It
this court have been exhausted.
would
serving any purpose.
sources without
unfair,
least,
say
require
to
the
to
Ms.
be
the record as a whole
When
reveals no
protracted period
Andrews to wait a
concerning
substantive issue
a material
meritori-
apparently
the vindication of an
fact,
we will
elevate form over func
Moreover,
even
ous claim.
we cannot
be
by requiring
tion
further district court
Andrews’ able counsel
sure whether Ms.
proceedings
supplement
findings.
to
the
not,
and, if
compensated
will be
(Citations omitted).
in
As
stated
represent
in a
position
he will be
Hurwitz,
Hurwitz v.
U.S.App.
D.C.
through
litigation.
another round of
Ms.
(D.C.Cir.1943),
supporting
knowledged by person reasonable Al-
Ms. Andrews’ claim is not frivolous.
though my colleagues regard it as so, impolitic say for me to I am confident STROZIER, Appellant, John I. they do not believe Ms. Andrews’ prospects claim has no realistic of ultimate appealing success. Her case is also from a STATES, Appellee. UNITED Surely,
human perspective. has some 05-CF-1002, Nos. 07-CO- appreciable settlement value. 472, 08-CO-643. sides, able counsel on I can- With both District of of Appeals. that some reasonable Columbia Court compro- believe if each party ready mise is unattainable Argued June 2008. If a goodwill. compro- demonstrate fair Resubmitted Nov. 2008.* achieved, might mise is this well result in Decided March 2010. availability kind of care of some which Andrews, quote will Dr. enable Ms.
Traiger, “participate to continue to in soci- recognize only parties negotiate
7. I that this is not case 8. Even if the are unable to Board, an immediate resolution of the entire claim before the and that allocation of the they might explore possibility of interim Board's resources does not fall within the payments keep that would Ms. Andrews at judicial appropriate, I think it function. how- home, prejudice posi- without to their overall ever, to invite the Board's attention to the tions. importance special circumstance which * argument appeal The court heard oral nos. case, namely, dominates this that the claim- 05-CF-1002 and 07-CO-472 on June being by stepmother ant is cared During argument, appellate counsel nineties. represented appeal that he had taken another