CHARLESTON – The West Virginia Supreme Court of Appeals ruled that the state's Division of Motor Vehicles should have appealed to Wayne Circuit Court instead of requesting for an agency to exceed its authority.



The state Supreme Court ruled that the circuit court was correct in finding that the Office of Administrative Hearings was without authority under statute or administrative rules to reconsider, revoke or amend its original final order.


Justice Menis Ketchum authored the majority opinion. Justice Allen Loughry dissented and authored a dissenting opinion.


Patricia S. Reed, the commissioner of the West Virginia Division of Motor Vehicles, appealed an order of Wayne Circuit Court, according to the April 24 opinion.


The circuit court reviewed two final orders by the Office of Administrative Hearings, one that was an original final order reversing the DMV's revocation of Jason L. Thompson's driver's license; and one that was a revised final order reversing the original final order, and affirming the DMV's revocation of Thompson's driver's license.


The circuit court found that the OAH had no authority to revoke its original final order.


The circuit court also found that there was insufficient evidence showing that 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," the opinion states. "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."


The dispute arose out of the DMV's revocation of Thompson's driver's license on June 8, 2012, because he was arrested and charged with DUI. Thompson requested a hearing before the OAH to contest the DMV's revocation of his license.


On May 16, 2013, the chief hearing examiner of the OAH issued a final order reversing the DMV's revocation of Thompson's driver's license and nine days later, the DMV filed a motion for reconsideration with the OAH requesting that it revoke the original final order.


On June 28, 2013, the OAH granted the DMV's motion for reconsideration, but it did not conduct a hearing on the matter and the stated in its revised final order 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 and effectively reinstated the DMV's revocation of Thompson's driver's license.


Thompson appealed the OAH's revised final order and 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 Thompson's license and the DMV appealed the circuit court's order to the State Supreme Court.


The State Supreme Court stated that an administrative agency may have authority to reconsider, revoke or amend its own final order when authorized to do so by its administrative rules.


"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," the opinion states. "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, according to the majority opinion.


In his dissenting opinion, Loughry stated that the majority wholly fails to recognized that the May 16, 2013, order of the OAH was "clearly wrong in view of the agency's disregard of critical evidence in the administrative record of this case."


Loughry also stated that he disagreed with the majority's conclusion that the OAH lacked the implied authority to timely correct its own order.


"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," his dissenting opinion states.


Reed was represented by Elaine L. Skorich of the Office of Attorney General.


Thompson was representing himself.


W.Va. Supreme Court of Appeals case number: 14-0214

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