# Timus v. District of Columbia Department of Human Rights

> District of Columbia Court of Appeals · November 8, 1993 · 633 A.2d 751

URL: https://www.frixlaw.com/law-library/cases/9731470

## Case

- **Full name:** Carrie J. TIMUS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF HUMAN RIGHTS, Respondent. William J. Davis, Inc., Intervenor
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 8, 1993
- **Citations:** 633 A.2d 751; 1993 D.C. App. LEXIS 273; 1993 WL 463268
- **Precedential status:** Published
- **Opinion:** Dissent by Steadman
- **Judges:** Rogers, Ferren, Terry, Steadman, Schwelb, Farrell, Wagner, King, Sullivan, Mack
- **Cited by:** 37 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/9731470

## How later opinions describe it (automated extraction)

- noting that “every court has judicial power ‘to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction’” (internal citation omitted)
- acknowledging the by now “familiar” two-part Chevron test and noting that “[t]his court employs the same analysis”
- noting that for contested case, hearing must be "compelled" by statute or Constitution

## Opinion text

STEADMAN, Associate Judge,
dissenting:
For reasons that I will briefly set forth, I believe that this court does not have jurisdiction to hear this direct appeal and the case should therefore be dismissed. 1
I start with the basic tenet of administrative law that an individual who is aggrieved by an action of an administrative agency can almost invariably obtain judicial review of such action. See generally Bernard Schwartz, Administrative Law 436-37 (2d ed. 1984) (“there has never been any question of the propriety of judicial review”). The jurisdictional question before us, however, is not whether judicial review of the agency action challenged here is available. The issue is whether the District of Columbia Court of Appeals (“DCCA”) is the proper forum for judicial review in the first instance. At bottom, the question is this: when the legal dispute is whether the petitioner has a right to an agency hearing, has the proceeding yet become a “contested case.” I think the answer is no.
The District of Columbia Administrative Procedure Act (“DCAPA”) has never provided for initial DCCA review of all agency actions. On the contrary, ever since it was first enacted the DCAPA has provided that the DCCA is the proper forum in which to first challenge only one specific type of situation, viz, a “contested case.” See D.C.Code § l-1510(a) (1992); Dupont Circle Citizen’s Ass’n v. District of Columbia Zoning Comm’n, 343 A.2d 296, 298-99 (D.C.1975) (en banc). This is not a general grant of jurisdiction to the DCCA to review ab initio all agency action; it gives only a limited power of such review. See Lee v. District of Columbia Bd. of Appeals & Review, 423 A.2d 210, 215 (D.C.1980). All other judicial challenges to agency action must be brought in the first instance in Superior Court, the District of Columbia’s court of general jurisdiction. 2
*781 The only type of agency proceeding subject to initial review in the DCCA, a “contested case,” is defined as
a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this subchapter), or by constitutional right, to be determined after a hearing before the Mayor or before an agency,
D.C.Code § 1-1502(8) (1992), and has been construed by this court to refer only to situations in which the hearing that is required is a trial-type adjudicative hearing. See, e.g., Chevy Chase Citizens Ass’n v. District of Columbia Council, 327 A.2d 310, 314 (D.C.1974) (en banc) (“trial-type hearing where such is implicitly required by either the organic act or constitutional right”). This is squarely in accord with the nature of an appellate tribunal. The prime role of the DCCA is to review decisiqns resulting from or relating to an adjudicative hearing, whether the appeal is from a judicial or an administrative trial tribunal. But until that point, the normal judicial forum to which disputes are first addressed is the trial court of general jurisdiction. 3
In the instant case, there was no hearing, nor does anyone argue that there was a hearing. Nevertheless, petitioner argues that this is a contested case based on the proposition that the statute does not require that a hearing actually have occurred, only that in petitioner’s view a present right to a hearing exists. I do not think that contested case status has yet been reached when the very issue in dispute is whether the conditions prerequisite to a right to a hearing have been satisfied. If on appeal we answer that issue in the negative, then indeed the matter was not yet a contested case. The question of whether we have jurisdiction should not depend upon the answer to the ultimate issue; the jurisdictional issue should be determined at the outset. Furthermore, the determination whether a right to a hearing has accrued — such as whether probable cause exists or conciliation has failed — may very well depend upon a factual inquiry, for which a trial court is plainly fitted and an appellate court not at all. This indeed is an important reason why direct appellate review is limited to contested cases, where normally a factual record has already been made by the agency.
I reiterate that lack of jurisdiction in the DCCA to directly review agency actions negating “contested case” status does not mean that the action of the agency cannot be judicially reviewed. We are addressing the question of which court is the appropriate forum for initial judicial review. In my view, the type of preliminary question of which petitioner seeks review does not fit within the carefully defined direct appellate jurisdiction of this court.
. On the merits, I would agree with the analysis in part IV of the majority opinion.
. The legislative history of the District of Columbia Administrative Procedure Act indicates that although it is somewhat different from the federal Administrative Procedure Act ("APA"), it is generally to be interpreted akin to the federal APA. Lee, supra, 423 A.2d at 216 . A challenge to a federal agency action is heard in the District *781 Court under the general “federal question jurisdiction” of that court, unless the agency's statute or some other statute specifically provides for review in the circuit court of appeals. Five Flags Pipe Line Co. v. Dep't of Transp., 272 U.S.App.D.C. 221, 222 , 854 F.2d 1438, 1439 (1988); see also 28 U.S.C. § 1331 (1988). Congress “may freely choose the court in which judicial review [of agency actions] may occur,” Five Flags Pipe Line Co., supra, 272 U.S.App.D.C. at 222 , 854 F.2d at 1439 , and with certain exceptions, Congress has chosen the court of general jurisdiction. While the DCAPA differs in that it itself specifically provides for direct appellate review of agency actions in certain cases, viz, contested cases, its basic structure is nevertheless similar to the federal APA.
. I do not mean to suggest that if the general right to a hearing is not in dispute, a trial-type hearing must necessarily have taken place in order to be an appealable "contested case,” any more than in some appeals from trial courts. See, e.g., Debruhl v. District of Columbia Hackers' License Appeal Bd., 384 A.2d 421, 425 (D.C.1978) (adjudicatory proceeding before an agency does not lose its character as a contested case merely because there are no disputed facts requiring trial-type hearing).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731470. Public record. Not legal advice.