Opinion
No. 14–0214.
04-24-2015
Patricia S. REED, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. Jason L. THOMPSON, Petitioner Below, Respondent.
Elaine L. Skorich, Esq., Office of the Attorney General, Charleston, WV, for the Petitioner. Jason L. Thompson, Kenova, WV, pro se.
Elaine L. Skorich, Esq., Office of the Attorney General, Charleston, WV, for the Petitioner.
Jason L. Thompson, Kenova, WV, pro se.
Opinion
Justice KETCHUM :The Petitioner, Patricia S. Reed, Commissioner of the West Virginia Division of Motor Vehicles (“DMV”), appeals an order of the Circuit Court of Wayne County. The circuit court reviewed two final orders by the Office of Administrative Hearings (“OAH”): (1) an original final order reversing the DMV's revocation of Jason L. Thompson's (“Mr. Thompson's”), driver's license; and (2) a revised final order reversing the original final order, and affirming the DMV's revocation of Mr. Thompson's driver's license.
Steven O. Dale was the Commissioner of the West Virginia DMV when the facts giving rise to this appeal occurred. Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the current Commissioner, Patricia S. Reed, has been automatically substituted as the named petitioner herein.
The circuit court found that the OAH had no authority to revoke its original final order. It also found that there was insufficient evidence showing that Mr. Thompson was served with notice regarding the DMV's motion requesting that the OAH reconsider its original final order. Accordingly, the circuit court reversed the OAH's revised final order and reinstated the OAH's original final order.
Upon review, we affirm the circuit court's order. We find that the OAH had no authority
under statute or its administrative rules to reconsider, revoke, or amend its original final order.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This dispute arises out of the DMV's revocation of Mr. Thompson's driver's license on June 8, 2012, because he was arrested and charged with DUI. Mr. Thompson requested a hearing before the OAH to contest the DMV's revocation of his license. The OAH held two hearings as to whether he was guilty of DUI: one in October 2012 and another in February 2013. Both Mr. Thompson and the arresting officer testified before the OAH.
Mr. Thompson's undisputed testimony was that the criminal charges arising out of his arrest were dismissed.
On May 16, 2013, the Chief Hearing Examiner of the OAH issued a final order—what we call the “original final order”—reversing the DMV's revocation of Mr. Thompson's driver's license. In doing so, the OAH considered testimony from Mr. Thompson and the arresting officer. The original final order noted that Mr. Thompson's story conflicted with that of the arresting officer. The OAH believed Mr. Thompson and found that “[he] did not commit an offense involving [DUI]” because he was not driving on the night in question. Pursuant to its obligation to resolve conflicts of testimony by a “reasoned and articulate decision,” the OAH provided an explanation for why it found Mr. Thompson's testimony more credible. Mr. Thompson received a copy of the OAH's original final order (which effectively reinstated his driver's license) on June 1, 2013.
See Syl. Pt. 6, in part, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996) (“[An] agency may not elect one version of the evidence over the conflicting version unless the conflict is resolved by a reasoned and articulate decision[.]”).
However, nine days after the original final order was issued, the DMV filed a motion for reconsideration with the OAH requesting that it revoke the original final order. According to the DMV, its motion for reconsideration was merely “a reiteration of the argument provided in the [DMV's] Proposed Findings of Fact and Conclusions of Law” tendered after the revocation hearing. (Emphasis added). This motion did not state any new facts or allege any newly discovered evidence or fraud in the OAH's proceedings. Mr. Thompson claims to have never received notice of the DMV's motion for reconsideration.
On June 28, 2013, the OAH granted the DMV's motion for reconsideration, but it did not conduct a hearing on the matter. Likewise, the OAH issued a revised final order, revoking its original final order (“revised final order”). It stated, without explanation, that the original final order was “legally deficient and erroneous.” The revised final order did not allude to any newly discovered evidence or fraud in the entry of its original final order. Rather, it concluded that “as a matter of law ... [Mr. Thompson] drove a motor vehicle ... while under the influence of alcohol[,]” on the ground that he failed to advise the arresting officer he was not driving on the night of his arrest. The OAH's revised final order effectively reinstated the DMV's revocation of Mr. Thompson's driver's license.
Mr. Thompson appealed the OAH's revised final order to the Circuit Court of Wayne County. The circuit court refrained from second-guessing the factual determinations made by the OAH. Rather, the circuit court based its decision solely “on the procedures following the [entry of the original] Final Order [.]” The circuit court found that the OAH had no statutory or regulatory authority to revoke its original final order. The circuit court also found that there was nothing in the record and no evidence showing that notice was sent to Mr. Thompson regarding the DMV's motion for reconsideration. Accordingly, the circuit court reversed the OAH's revised final order and reinstated the OAH's original final order. In doing so, the circuit court effectively reinstated Mr. Thompson's license. The DMV appealed the circuit court's order to this Court.
II.
STANDARD OF REVIEW
In reviewing a final order of an administrative agency, we have held:
Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: “(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Syl. Pt. 2, Shepherdstown Volunteer Fire Dep't v. State ex rel. W.Va. Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983). Furthermore, “[o]n appeal of an administrative order from a circuit court, this Court ... reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.” Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
III.
ANALYSIS
In 2010, the Legislature created the OAH and gave it power to hear appeals of certain orders and decisions by the DMV. W.Va.Code § 17C–5C–1 [2010]. The OAH is authorized to conduct hearings over these matters consistent with the statutory provisions in chapters 29A (“State Administrative Procedure Act”), 17B, and 17C of the West Virginia Code. W.Va.Code § 17C–5C–4 [2010]. At the time of the entry of the revised final order, the OAH had not adopted any administrative rules as it was authorized to do by West Virginia Code § 17C–5C–4a [2012]. See W.Va.C.S.R. § 105–1–1 [2013] (setting July 1, 2013, as effective date of OAH's administrative rules).
Chapter 17B governs driver's licenses, and chapter 17C pertains to traffic regulations and laws of the road.
The circuit court found that there was no statutory provision or administrative rule granting the OAH the authority to reconsider, revoke, or amend its original final order. Therefore, the OAH's revised final order exceeded its statutory authority. The DMV contends that the OAH may reconsider, revoke, or amend its original final order, and therefore, the OAH's revised final order was valid.
The circuit court correctly refrained from applying the OAH's administrative rules, Title 105 of the West Virginia Code of State Rules, because the OAH issued its revised order before its rules became effective.
This Court has held that an administrative agency may not exercise authority which is not given to it expressly or impliedly in statute.
Administrative agencies and their executive officers are creatures of statute and delegates of the Legislature. Their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim. They have no general or common-law powers but only such as have been conferred upon them by law expressly or by implication.
Syl. Pt. 2, Mountaineer Disposal Serv., Inc. v. Dyer, 156 W.Va. 766, 197 S.E.2d 111 (1973) (emphasis added). See also State ex rel. Hoover v. Berger, 199 W.Va. 12, 19, 483 S.E.2d 12, 19 (1996) (“An administrative agency ... has no greater authority than conferred under the governing statutes.”).
An administrative agency's reconsideration of its own final order before judicial review is not valid unless the agency was given the authority under a statute or administrative
rule to do so. See Mustard v. City of Bluefield, 130 W.Va. 763, 766, 45 S.E.2d 326, 328 (1947) (holding that, in absence of specific authority in zoning ordinance or in statute upon which ordinance was based, a board of adjustment had no power to rehear and reconsider its final order).
Whether an administrative agency has authority under a statute or administrative rule to reconsider, revoke, or amend its final order entails a two-part inquiry. See Atl. Greyhound Corp. v. Pub. Serv. Comm'n, 132 W.Va. 650, 659–61, 54 S.E.2d 169, 174–75 (1949). The first question is whether an agency's power to reconsider its own final order is expressly or impliedly granted by statute. Id. at 659–660, 54 S.E.2d at 175. If not, the second inquiry is whether the following two conditions are met: (a) the Legislature granted the agency authority to adopt administrative rules of procedure; and (b) the agency adopted an administrative rule allowing it to reconsider its own final orders. Id. at 661, 54 S.E.2d at 175. If an agency has authority to reconsider its own final order under an administrative rule (as opposed to a statute), the scope of the agency's authority is strictly limited to what is contained in the rule. We have held:
[An administrative agency], by rule based upon a statute which empowers it to prescribe rules of practice and procedure and the method and the manner of holding hearings, has the authority to grant, within the time and in the manner provided by such rule, a rehearing of a final order entered by the commission in a proceeding of which it has jurisdiction.
Syl. Pt. 1, Id., 132 W.Va. 650, 54 S.E.2d 169 (emphasis added).
It is clear that the OAH had not been granted express statutory authority to reconsider, revoke, or amend its original final order. While the Legislature has provided that parties to an order by the OAH may appeal to the circuit court, no provision in the West Virginia Code authorizes the OAH to reconsider, revoke, or amend its own orders. See W.Va.Code § 17C–5A–2(s) [2012].
Furthermore, the OAH had no implied authority to reconsider, revoke, or amend its original final order. In making this determination, an agency has only as much authority as is necessary to execute its duties. Furthermore, this Court must presume that the Legislature did not intend to confer upon the agency any greater authority than what is clearly indicated in statutory language. We have held:
Although an express grant of powers will be determined to include such other powers as are necessarily or reasonably incident to the powers granted, the powers should not be extended by implication beyond what may be necessary for their just and reasonable execution. When a court is asked to find implied powers in a grant of legislative or executive authority it must assume that the lawmakers intended to place no greater restraint on the liberties of a citizen than was clearly and unmistakenly indicated by the language they used.
McDaniel v. W.Va. Div. of Labor, 214 W.Va. 719, 727, 591 S.E.2d 277, 285 (2003) (quoting Walter v. Ritchie, 156 W.Va. 98, 108, 191 S.E.2d 275, 281 (1972) ) (citation and quotations omitted) (emphasis added).
We have recognized limited circumstances in which an agency's implied authority allows it to reconsider, revoke, or amend its own final order. See Atl. Greyhound Corp., 132 W.Va. at 660, 54 S.E.2d at 175 (an agency has authority to reconsider its final order when it has continuing jurisdiction over the matter). See also Lane v. U.S. of Am. ex rel. Mickadiet, 241 U.S. 201, 209, 36 S.Ct. 599, 60 L.Ed. 956 (1916) (agency had an implied right to reconsider its final order in cases of newly discovered evidence, fraud, or when agency controls matter to which the order relates). This appeal does not involve any of these narrow circumstances.
An example of an agency controlling the matter to which the order relates is Native American land in the hands of the Department of the Interior. See generally Lane, 241 U.S. 201, 36 S.Ct. 599.
Lastly, an administrative agency may have authority to reconsider, revoke, or amend its own final order when authorized to
do so by its administrative rules. There were no administrative rules which applied to the OAH when it reconsidered its original final order in June 2013. Starting July 1, 2013, Rule 105–1–18.1 of the West Virginia Code of State Rules provides that the OAH may reconsider its own final order when there is a “clerical or administrative error.” The rule contains several examples of “ clerical or administrative error[s],” including typos, failure to consider relevant evidence, or a failure to rule on a pending motion. W.Va.C.S.R. § 105–1–18.1 [2013].
The OAH reconsidered its original final order before its administrative rules became effective, and therefore, the OAH did not derive authority from its administrative rules to do so. Accordingly, the OAH had no expressed or implied authority under statute or its administrative rules to reconsider, revoke, or amend its original final order. Being a creature of statute, the OAH's reconsideration of its original final order is invalid if not supported by some grant of statutory or regulatory authority.
We do not consider in this appeal whether the OAH's administrative rules would have given it authority to reconsider its original final order had it done so after its administrative rules became effective.
Our holding does not mean that an aggrieved party to an order by the OAH is without recourse. West Virginia Code § 17C–5A–2 provides that both the driver and the Commissioner are entitled to judicial review and may appeal to the circuit court as provided in the West Virginia Administrative Procedure Act. See W.Va.Code § 29A–5–4 (1998). Accordingly, the DMV should have appealed to the circuit court rather than requesting the OAH to exceed its statutory authority by revoking its original final order.
IV.
CONCLUSION
For the reasons set forth herein, the circuit court was correct in finding that the OAH was without authority under statute or its administrative rules to reconsider, revoke, or amend its original final order. Accordingly, we affirm the circuit court's order reinstating the OAH's original final order, and in turn, Mr. Thompson's driver's license.
Because we find that the OAH did not have the authority to revoke, reconsider, or amend its original final order, we do not need to address whether there was sufficient evidence to show that the DMV provided Mr. Thompson with notice regarding its motion for reconsideration.
Affirmed.
Justice LOUGHRY dissents and reserves the right to file a dissenting opinion.
LOUGHRY, Justice, dissenting:
The majority wholly fails to recognize that the May 16, 2013, order of the Office of Administrative Hearings (“OAH”) was clearly wrong in view of the agency's disregard of critical evidence in the administrative record of this case. In addition, I disagree with the majority's conclusion that the OAH lacked the implied authority to timely correct its own order. Accordingly, I am compelled to dissent.
Even assuming the May 16th order was the final order, a reversal was required.
The majority has disappointingly engaged in only part of the analysis required for this case. Even if the OAH lacked the implied authority to reconsider its May 16th order, an automatic affirmation of that order is neither required nor warranted. In addition to ruling that the OAH lacked authority to entertain a motion for reconsideration, the circuit court upheld, with very little discussion, the administrative law judge's findings of fact. Courts are to review the agency's order to ensure that it is not clearly wrong in view of the reliable, probative and substantial evidence on the whole record, and is not arbitrary, capricious, or characterized by abuse of discretion. See Syl. Pt. 2, in part, Shepherdstown Volunteer Fire Dep't v. State ex rel. State of W.Va. Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983) (quoting W.Va.Code § 29A–5–4(g) ).
Shepherdstown Volunteer Fire Department was decided under the 1964 version of West Virginia Code § 29A–5–4(g), but the operative statutory language remains the same today.
Had the circuit court, or the majority, performed such a review of the May 16th order and the record on appeal, they would have been compelled to conclude that the May 16th order was clearly wrong, arbitrary, and capricious.
Huntington Police Officer Richard Kern testified that on April 2, 2012, he observed a single cab truck traveling in an area known for illegal drug activity. The officer decided to watch the truck. The officer testified that he personally witnessed Mr. Thompson driving the truck, stopping and parking on the roadside, exiting his vehicle, and begin talking on a cell phone. The officer approached Mr. Thompson on foot and immediately observed the absence of any passengers. The officer testified that Mr. Thompson had the odor of an alcoholic beverage on his breath, glassy eyes, and slurred speech; was unsteady while exiting the truck and while walking and standing on the roadway; and further admitted to the officer that he had consumed six to eight beers. The officer saw two open beers in the cab of the truck; there were also two beers in a cooler and an unknown quantity of beer in an open case inside the vehicle. Mr. Thompson failed the horizontal gaze nystagmus test and refused to take the walk-and-turn and one-leg stand field sobriety tests. Officer Kern then arrested Mr. Thompson for DUI.
After being transported to the police station, Mr. Kern signed an implied consent form acknowledging that his driver's license would be revoked if he refused to submit to the designated secondary chemical test. Nonetheless, Mr. Kern refused to submit to the secondary breath test. Accordingly, pursuant to the requirements of West Virginia Code §§ 17C–5–7 (2013) and 17C–5A–1 (2013), the DMV Commissioner revoked Mr. Thompson's operator's license on two separate grounds: DUI and the implied consent violation. The Commissioner entered a companion order disqualifying Mr. Thompson's commercial driver's license on these same grounds. See W.Va.Code § 17E–1–13 (2013).
Mr. Thompson objected to the Commissioner's orders, and the OAH held an evidentiary hearing on October 12, 2012. Officer Kern was unable to attend that hearing. Mr. Thompson testified and admitted that he had consumed six or seven beers. However, with the arresting officer not present to contradict him, Mr. Thompson asserted that he had not been driving on the date in question. Instead, he claimed that his ex-wife had driven and parked the truck, before she exited the vehicle and walked away. Thereafter, the OAH reconvened the administrative hearing on February 7, 2013. At this second day of the hearing, Officer Kern testified to having personally witnessed Mr. Thompson driving the truck and to having observed no one else at the scene.
In the May 16, 2013, order, the OAH found that the testimony of Officer Kern and Mr. Thompson conflicted on the issue of whether Mr. Thompson had been driving. The OAH resolved the conflict in favor of Mr. Thompson's version, finding “the fact that there were two open beers instead of one beer inside the truck implies that someone else was with [Thompson].” On this basis, the OAH discredited the officer's testimony, finding that Mr. Thompson “did not drive on the night in question,” and overturned the Commissioner's revocation and disqualification orders.
In short, based solely upon the presence of two open beers in the truck, the OAH concluded that the police officer was prevaricating when he testified regarding his personal observations of Mr. Thompson driving. This finding is ludicrous given that Mr. Thompson admitted he had consumed six to eight beers. There is nothing in the record to indicate how much, if any, liquid remained in those two open containers, and Mr. Thompson could have easily consumed alcohol from both of the containers. Furthermore, the presence of two open beers is in no way indicative of who was driving the truck.
Notably, the May 16th order failed to address and consider critical evidence when assessing the credibility of Officer Kern and Mr. Thompson. Where there is a direct conflict in critical evidence, the administrative law judge “may not elect one version of the evidence over the conflicting version unless the conflict is resolved by a reasoned and articulate decision, weighing and explaining the choices made[.]” Syl. Pt. 6, in part,
Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). The OAH did not consider that, on the night in question, Mr. Thompson never told the officer that somebody else had been driving. Logic suggests that a person wrongly arrested for driving under the influence would immediately seek to inform the arresting officer regarding the identity of the vehicle's driver. Moreover, the OAH failed to acknowledge that, despite the opportunity to present evidence at two separate hearings, Mr. Thompson offered no evidence from his ex-wife to support his claim that she was the actual driver on the night in issue.
In its June 28, 2013, order on reconsideration, the OAH did consider that Mr. Thompson never told the arresting officer that his ex-wife had been driving. The OAH also took into account Mr. Thompson's failure to offer any corroborating evidence from his ex-wife. A review of the June 28th order makes clear that this was critical to the OAH's changed ruling upon reconsideration.
The circuit court failed to consider these issues in its order, stating only that there was evidence to support either of the OAH's orders and that it would not substitute its own opinion on the evidence. Because the two administrative orders were diametrically opposed regarding whether Mr. Thompson was driving, the reviewing court was obligated to determine whether the agency's findings of fact on this issue were clearly wrong, arbitrary, or capricious. Just as the circuit court disregarded its duty to weigh the disputed evidence, the majority equally failed to consider the clear evidence in the record that Mr. Thompson was driving under the influence on the date in question. The majority dismisses the OAH's nonsensical finding about the purported meaning of the two open beers by summarily stating that the “OAH provided an explanation for why it found Mr. Thompson's testimony more credible.”
While mindful that findings of fact by an administrative law judge are accorded deference unless the reviewing court believes those findings to be clearly wrong, my review of the record leads inescapably to the conclusion that the OAH's finding in the May 16th order regarding the vehicle's driver was clearly wrong. See Muscatell, 196 W.Va. at 590, 474 S.E.2d at 520, syl. pt. 1, in part. In consideration of the entire record, such a finding could only be reached by overlooking, or perhaps intentionally discarding, pivotal evidence that was introduced in this case. Indeed, the erroneous conclusions reached in the May 16th ruling strike me as being “wrong with the ‘force of a five-week-old, unrefrigerated dead fish.’ ” Brown v. Gobble, 196 W.Va. 559, 563, 474 S.E.2d 489, 493 (1996) (quoting United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993) ). As a result, I am convinced that the May 16th order, if viewed as the “final order,” should be reversed under well-established principles of administrative review and the Commissioner's revocation and disqualification orders should be reinstated.
The OAH had the implied authority to timely correct its own order.
As the majority explains, in May of 2013 when the OAH reconsidered its May 16th order, there was no statute or legislative rule in effect that expressly permitted the OAH to do so. Although a legislative rule allowing the OAH to entertain motions to reconsider on the grounds of, inter alia, the “failure to discuss relevant evidence” had been approved by the Legislature, it did not take effect until July 1, 2013. W.Va.C.S.R. § 105–1–18 (2013). Nonetheless, even before the legislative rule took effect, I believe the OAH had the implied authority to timely correct an order that failed to discuss relevant evidence and was otherwise clearly wrong, arbitrary, and capricious.
According to the OAH's final filing of these legislative rules with the Secretary of State, the rules were approved by the Legislature through S.B. 281 on April 12, 2013.
This Court has repeatedly recognized that in addition to express powers, “administrative agencies also possess ‘such powers as are reasonably and necessarily implied in the exercise of their duties in accomplishing the purposes of the act.’ ” McDaniel v. West Virginia Div. of Labor, 214 W.Va. 719, 727, 591 S.E.2d 277, 285 (2003) (quoting State Human Rights Comm'n v. Pauley, 158 W.Va. 495, 498, 212 S.E.2d 77, 78 (1975) ); accord,
PNGI Charles Town Gaming, LLC v. W.Va. Racing Comm'n, 234 W.Va. 352, 364, 765 S.E.2d 241, 253 (2014). Moreover, “ ‘[a]n administrative agency has, and should be accorded, every power which is indispensable to the powers expressly granted, that is, those powers which are necessarily, or fairly or reasonably, implied as an incident to the powers expressly granted.’Pauley, 158 W.Va. at 497–98, 212 S.E.2d at 78–79 (quoting 1 Am.Jur.2d Administrative Law § 44 and citations omitted).” Walker v. W.Va. Ethics Comm'n, 201 W.Va. 108, 120–21, 492 S.E.2d 167, 179–80 (1997).
We have previously recognized that state agencies have certain implied powers with regard to the “contested case” hearings over which those agencies preside. For example, in PNGI, we held that the Racing Commission had the implied authority to grant a stay of a racetrack's ejection of a permit holder from the racetrack's premises. We reasoned that although the statute did not expressly allow the Racing Commission to order a stay of a racetrack's decision, this authority was implied from the Racing Commission's authority to consider appeals of those decisions. PNGI, 234 W.Va. at 364, 765 S.E.2d at 253. Similarly, in Walker, the Ethics Commission reviewed the hearing examiner's finding that the West Virginia Ethics Act had not been violated and concluded that a critical piece of evidence had not been evaluated. Walker, 201 W.Va. at 113–14, 492 S.E.2d at 172–73. The Ethics Commission remanded the case back to the hearing examiner for further proceedings. On remand, the hearing examiner changed his finding even though no additional dispositive evidence was presented. Id. Although the authorizing statute did not expressly provide for remands, this Court held that such authority was implied from, and necessitated by, the Ethics Commission's statutory authority to commence investigations, conduct hearings, and render final decisions. Id. at 120–21, 492 S.E.2d at 179–80.
With regard to the case sub judice, the Legislature has expressly directed the OAH to hold administrative hearings on appeals of DMV revocation orders. W.Va.Code §§ 17C–5C–3 and –4 (2013) (establishing OAH's jurisdiction and hearing procedures); W.Va.Code § 29A–5–1 (2013) (providing for administrative hearing in contested case); W.Va.Code § 17C–5A–2 (2013) (directing OAH to hold hearing and make specific findings). When rendering a decision, the OAH must consider the record from the administrative hearing. W.Va.Code § 17C–5A–2(a). Moreover, every final order of an agency in a contested case must have written findings of fact accompanied by a concise and explicit statement of the underlying facts supporting those findings. W.Va.Code § 29A–5–3 (2013). I submit that the OAH's authority to timely correct its own erroneous order may be fairly and reasonably implied from these statutory duties. As various federal courts of appeal have noted, “[t]he power to reconsider is inherent in the power to decide.” Ivy Sports Medicine, LLC v. Burwell, 767 F.3d 81, 86 (2014) (quoting Albertson v. F.C.C., 182 F.2d 397, 399 (D.C.Cir.1950) ). Ivy Sports Medicine explains that in the absence of an express provision allowing for reconsideration, and unless Congress has provided otherwise, a federal administrative agency has the authority to reconsider its own orders. Id.
Certainly, an agency's authority to correct its orders is not unending. However, the DMV Commissioner's motion for reconsideration in this case was filed nine days after the initial order was entered, while the case was still within the appeal period. In an opinion frequently cited for the proposition that federal administrative agencies may reconsider their own final orders, the District of Columbia Court of Appeals said that “in the absence of any specific limitation, such a motion [for reconsideration] may be filed within the period for taking an appeal.” Albertson, 182 F.2d at 399. Of course, now that there is a legislative rule in West Virginia recognizing the OAH's authority to entertain motions for reconsideration, the time constraints set forth in the legislative rule must be followed. See W.Va.C.S.R. § 105–1–18.1 (specifying that parties may file motions to reconsider OAH final order within ten days of receipt of final order).
Turning to the cases cited by the majority, in Atlantic Greyhound Corporation v. Public Service Commission, 132 W.Va. 650, 54 S.E.2d 169 (1949), this Court upheld the validity of a Public Service Commission rule allowing the agency to rehear its own final orders, even though there was no statute expressly granting this authority. The Court recognized that “[t]he power of administrative authorities to reconsider or modify their own determinations may exist by reason of
express[ ] provision of statute, or its existence may be inferred from a statutory provision.”Id. at 659–60, 54 S.E.2d at 175. The Court also recognized that denying an agency the authority to rehear a matter over which it has jurisdiction, in view of the agency's express statutory power to prescribe rules of practice and procedure and the promulgation of a rule allowing rehearings, “would disrupt the orderly discharge of the [agency's] duties ... produce confusion and uncertainty, and add to the number and the frequency of unnecessary appeals.” Id. at 661, 54 S.E.2d at 175. Admittedly, the Court in Atlantic Greyhound was not called upon to decide the precise question at issue in the case sub judice, i.e., whether an agency has the implied authority to timely reconsider an order in the absence of a promulgated rule.
Quoting McDaniel v. West Virginia Division of Labor, 214 W.Va. 719, 727, 591 S.E.2d 277, 285 (2003), the majority states that courts “must assume that the lawmakers intended to place no greater restraint on the liberties of a citizen than was clearly and unmistakenly indicated by the language they used.” However, the legislative approval of W.Va.C.S.R. § 105–1–18, with its express provision allowing reconsideration motions before the OAH, suggests that the authority for such motions is statutorily based. By law, administrative rules must have a statutory basis. See W.Va.Code § 29A–4–2(b) (2013) (upon petition for declaratory judgment, court is to declare rule invalid if it exceeds agency's statutory authority). Moreover, the authority claimed by the agency in McDaniel bears no resemblance to the authority asserted here. In McDaniel, this Court held that the Division of Labor had no authority, express or implied, to award monetary damages. By contrast, the OAH possesses the express authority to enter final orders; the only issue is whether it may reconsider and correct those orders.
A party may have legitimate reasons for seeking an agency's reconsideration of an order, rather than proceeding to initiate an appeal—particularly in a case such as this, where the agency's order failed to address relevant evidence. Logic compels the conclusion that providing an agency with an opportunity to rethink or correct its own order could avoid the time and expense of an appeal. In the interests of both judicial economy and ensuring that courts adhere to the obligations inherent to the review of contested cases, there is no sound basis for denying an administrative tribunal the opportunity to alter its ruling when the record warrants, if not compels, such a corrected ruling—as it clearly does in this case.
This Court's ruling in Appalachian Regional Health Care, Inc. v. West Virginia Human Rights Commission, 180 W.Va. 303, 376 S.E.2d 317 (1988), that “[t]he Human Rights Commission had no statutory authority to reopen, sua sponte, a case properly closed” is wholly inapposite. Id. at syl. pt. 4, 376 S.E.2d 317. In that case, the administrative matter was closed for six years before the agency reopened it. Moreover, in clear contrast to the instant case, a timely motion for reconsideration was never filed in Appalachian Regional Health Care.
The majority's reliance on Mustard v. City of Bluefield, 130 W.Va. 763, 45 S.E.2d 326 (1947), is decidedly misplaced. This Court in Mustard did not address the issue of a state agency's authority. See id. at 766–67, 45 S.E.2d at 327–28. There was also no discussion of the concept of implied authority.
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For these reasons, I respectfully dissent.