# Washington Gas Light Co. v. Public Service Commission

> District of Columbia Court of Appeals · October 8, 2009 · 982 A.2d 691

URL: https://www.frixlaw.com/law-library/cases/9706950

## Case

- **Full name:** WASHINGTON GAS LIGHT COMPANY, Petitioner, v. PUBLIC SERVICE COMMISSION OF the DISTRICT OF COLUMBIA, Respondent. Office of the People’s Counsel, Intervenor
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 8, 2009
- **Citations:** 982 A.2d 691; 2009 D.C. App. LEXIS 502
- **Precedential status:** Published
- **Opinion:** Concurrence by Farrell
- **Judges:** Glickman, Kramer, Farrell
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706950

## How later opinions describe it (automated extraction)

- finding support for the court’s reading of a statute from two subsequent amendments, but cautioning that “ ‘subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.’ ” (quoting Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650…
- holding that agency was not entitled to deference on question whether this court had power to review agency’s decision; issue was whether exhaustion requirements in a certain act were jurisdictional

## Opinion text

FARRELL, Senior Judge,
concurring:
I join Judge Glickman’s opinion — a masterful piece of scholarship — for the court. On the merits, ie., on whether D.C.Code § 34-706(a) empowers the Commission itself to adjudicate the violation that WGLC was accused of here or instead creates a cause of action enforceable in court, the court is undeniably correct. Not only does its historical analysis of the statutory words “forfeit and pay” convincingly favor the latter meaning, but the statute as a whole leaves no room for doubt that even on such mundane (or housekeeping) matters as compliance with a Commission discovery order, the legislature meant the agency to have to seek a court’s aid to enforce its procedures. See, e.g., D.C.Code § 34-905(a) (“Any public utility failing or refusing to comply with any ... subpoena [including for production ... of ... papers ... or records”] shall for each day it shall so fail or refuse “forfeit and pay to the District of Columbia the sum of $100, to be recovered in an action to be brought in the name of said District.”).
I also join the court’s conclusion that we have jurisdiction to consider this question, although that point is an exceedingly close one. Conceptually and as a matter of policy, it is hard for me to imagine why Congress would have conditioned the *723 court’s authority to entertain an appeal on the prior filing of an administrative application to reconsider that need bear no relation to the issue the court then considers on appeal. In the face of statutory language seemingly meant to give the Commission first crack at all issues, it is something of a strain to hold, as we do, that any application to reconsider — even a pro forma one — triggers the court’s power to raise on its own issues of Commission “authority” not presented to the agency. Moreover, the distinction we invoke between “jurisdictional” challenges to that body’s exercise of authority — raisable so long as (unrelated) reconsideration was sought before it — and all others, which must be exhausted, is not reflected in the statute and, as we implicitly acknowledge in the discussion, a slippery one depending largely on judicial self-restraint. What may not impress one panel of the court as sufficiently an issue of wrongful “arro-gatfion of] power” by the agency may impress another, more generously disposed, as rising to that level.
Judge Glickman nevertheless makes a persuasive case for concluding that, if Congress had meant to deny the court all power to ignore a failure to exhaust an issue in Commission cases, it would have said so explicitly, as it has in other contexts. This court’s authority to overlook a failure to present a “jurisdictional” issue to the agency has been affirmed by decisions such as F.W. Woolworth Co. v. District of Columbia Bd. of Appeals & Review, 579 A.2d 713, 715 (D.C.1990), and our analogous authority to review claims not preserved in the trial court to prevent a “miscarriage of justice” is well-settled. Thus, I cannot bring myself to say that, even though WGLC’s appeal is properly before us by reason of the reconsideration it sought, we must close our eyes to an instance of action plainly exceeding the Commission’s power.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706950. Public record. Not legal advice.