stating that a party will “always have access to the 12 trial court for review in an original proceeding” and can argue “that the agency action was arbitrary and capricious”
How later courts described this case
- stating that a party will “always have access to the 12 trial court for review in an original proceeding” and can argue “that the agency action was arbitrary and capricious”
- noting that in administrative proceedings, contested-case procedural requirements apply when decisions directly affect specific parties’ rights
- deciding that because the proceeding involved legislative facts, we lacked jurisdiction to review the proceedings
- "Under well established canons of construction, when a legislative body enacts an amendment in the nature of a substitute to a particular statute but omits an exemption contained in the original statute, such omission is presumed to be deliberate.”
Written by the judges who cited it.
The opinion
*312 REILLY, Chief Judge,
with whom Associate Judges NEBEKER and HARRIS concur (dissenting) :
This is the third in a series of cases in which a majority of this court by a seemingly tortured construction of the District of Columbia Administrative Procedure Act of 1968 (D.C.Code 1973, §§ 1-1501 to 1-1510) has dashed whatever hopes the authors of that statute may have entertained of its bringing some measure of fairness and due process to the actions of local administrative agencies. 1 Until the passage of that act, there was no specific statutory provision for judicial review of actions of the Zoning Commission. In order to make it crystal clear that such act was intended to give persons adversely affected or aggrieved by orders or decisions of the Zoning Commission direct judicial review in this court, Congress included express language to that effect in the Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358. 2
Prior to these enactments, persons aggrieved by Zoning Commission action had some recourse in suits filed in the United States District Court, it being recognized that original jurisdiction was conferred upon such court by D.C.Code 1967, §11-521 [since repealed], even though that section did not mention the Commission, referring only to “civil actions between parties, where either or both of them are resident or found within the District.” Allen v. Zoning Commission, 146 U.S.App.D.C. 24 , 25, 449 F.2d 1100, 1101 (1971). In a case begun before repeal of this section the United States Court of Appeals for this circuit noting that the hearing challenged in that suit had occurred before the effective date of the D. C. Administrative Procedure Act, remarked that the new statute apparently covered the Zoning Commission and that a hearing before such Commission appeared to come within the act’s definition of a “contested case”, § 1-1502(8). Allen v. Zoning Commission, supra at 27 n. 3, 449 F.2d at 1103 n. 3.
Consequently, petitioners here must be somewhat startled to learn that despite this judicial pronouncement and the transfer of jurisdiction over zoning matters from the District Court to this court, they are not parties to a “contested case” and not even entitled to have their grievances reviewed in the i;?'tPy forum designated by Congress in the Judicial Reorganization Act.
To put the instant case in perspective, it should be observed that the harm which petitioners (neighborhood associations representing occupants and owners of residential property in the Dupont Circle area) say they have suffered from the challenged action of the Zoning Commission — a harm for which this court now closes any avenue of redress under the Administrative Procedure Act — is not purely procedural.
A few years ago, without statutory authority, the corrections department of the local government took over a number of residential dwellings in the vicinity of Du-pont Circle and utilized them as “halfway houses.” As the neighborhood was zoned as R-4, 3 this was an obvious breach of the zoning regulations — there being no specific authority in the regulations then in effect permitting penal or correctional institutions in residential districts.
After this became a matter of litigation, the staff of the Zoning Commission recommended an amendment to the regulations allowing halfway houses in R-4, R-5, and less restrictive zones, conditioned upon a hearing before the Board of Zoning Ad *313 justment before any specific halfway house could he established. This proposal at least had the merit of allowing a hearing to discover just how any such proposed institution would be operated and its particular impact upon the immediate neighborhood. In short, it contemplated a series of the kind of evidentiary hearing and Board findings of fact required by § 1-1509 as a necessary preliminary to any given structure being utilized as a halfway house.
The challenged amendment eventually adopted by the Commission, however, eliminated this safeguard. Thus under its terms the government (Federal and District) is free to establish a halfway house, whenever and whereever it pleases in an R — 1 zone, without notice to the neighboring residents and quite irrespective of any considerations of public safety and effect on property values. This amendment was adopted in the face of protests at a public hearing, supported by accounts of how even a limited number of halfway houses had blighted the neighborhoods in which they were situated. Evidence was offered to show that the supervision at such institutions was so lax that numerous prisoners assigned to live in them frequently took to the streets to murder, rape, stab, or rob again. In denying the residents the right to develop such facts by sworn testimony and cross-examination, the Commission took the view that the matter was not a “contested case” within the meaning of the Code. The majority sustaining this position cites the definition of this term in § 1-1502(8) — “a proceeding before any agency in which the legal rights . of specific parties are required by any law . . . to be determined after a hearing . . . .”
As the Zoning Act itself requires a hearing before an amendment can be made effective, D.C.Code 1973, § 5^-15, it is difficult to understand why this definition did not fit the instant case — the residents and property owners of affected R-4 zones being specific parties whose asserted legal right to preserve the purely residential character of such zones from incompatible uses was at issue in the proposed determination.
The majority opinion ignores this aspect of the matter by repeating the questionable thesis enunciated previously by the majority in the Hotel Association and Chevy Chase cases, 4 viz., that the action of the Zoning Commission was “legislative” rather than “adjudicative” — words not used in the DCAPA itself. Hence, not being “adjudicative” — we are told — the procedural safeguards prescribed by the Act for “contested cases” were not required to be followed at the hearing.
It is scarcely necessary to resort to decisions of other courts, or to hornbooks on administrative law, to show that the Commission’s action was not an adjudicatory proceeding. What it obviously was doing was “rulemaking” — a well known function of administrative agencies referred to in § 1-1502(7) of the Code as “agency process for the formulation, amendment, or repeal of a rule”, the term “rule” itself being defined in subsection (6) of this section, as:
[t]he whole or any part of any Commissioner’s Councils, or agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Commissioner, Council or of any agency . . (Emphasis supplied.)
The adoption of a “rule” is exactly the same kind of agency decision which the majority opinion calls “legislation”, viz., a regulation within the guidelines of a statute embodying the agency’s concept of policy, irrespective of whether such regulation is of general (as here) or particular applicability. 5
*314 But regardless- of what an agency’s non-adjudicative actions are called, how the premise ever developed that such actions should be treated differently under the Administrative Procedure Act from the adjudicatory process remains shrouded in mystery. Section 1509 which sets forth the procedures in “contested cases” plainly covers both rulemaking as well as adjudication for subsection (b) thereof expressly refers to the proponent of “a rule or order” — “order” apparently referring there to final action in an adjudicatory case. The term “order” is defined in § 1-1502(11) as “[a] final disposition ... of any agency in any matter other than rulemaking, but including licensing.” By judicial fiat, the majority has read the word “rule” out of the Act, despite its inclusion in the two key sections of the Act, §§ 1-1502 and 1-1509, drawn into issue by the petition for review.
So viewed, the majority’s disposition of the “contested case” issue is contrary not only to the spirit but the letter of the Administrative Procedure Act. Nevertheless it must be conceded that the holding on this point was foreshadowed by the majority opinions in Hotel Association and Chevy Chase, supra.
This cannot now be said, however, of the second part of the opinion, which completely bars petitioners’ right to judicial review of what they justifiably assign as substantial errors in statutory construction of the Zoning Act. 6 They urge that this court should pass upon these questions wholly independently of any consideration of a “contested case.” But by deciding that judicial review is available only in “contested cases”, the majority has not only gone further than any holding of this court in shutting the door to judicial redress, but its conclusion flies in the face of a contrary recent holding in which those same judges concurred, vis.. Hotel Association v. Minimum, Wage and Industrial Safety Board, supra. There, the majority opinion rejected the contention that because the judicial review provision, D.C. Code 1973, § 36-409(a), applicable to Minimum Wage Board action, mentioned the D. C. Administrative Procedure Act, such provision necessarily implied that the wage proceedings amounted to a contested case. It held, however, that even though the matter was not a “contested case”, judicial review was not precluded, for what “ . . . Congress intended in this regard was that our review should be controlled by D.C. APA standards.” Id. at 305. The court then went on to consider such issues raised on review as the scope of the hotel exemption from the statute the composition of the ad hoc committee, a possible conflict of interest on the part of a member of the Board, and the asserted failure of the Board to take into account the statutory guidelines. Such contentions were reviewed under the standards of § 1-1510(3) (E) of the DCAPA; the opinion explaining that the 1970 amendment (part of the Court Reform Act), § 36-409(a), for review of Wage Board orders stated that such review “shall be governed” by the local APA. Id. at 311 n. 24.
Earlier in that same opinion, id. at 304, the majority said:
But what petitioners have apparently overlooked is that the jurisdiction of this court to review orders of the Board was not conferred by the D.C. APA but rather by the Act, as amended (most recent *315 ly in 1970), D.C.Code 1973, § 36-409(a), well after the effective date of the D.C. APA. By this amendment it was provided that:
Any person aggrieved by an order [of the Board] . . . may obtain a review ... in the District of Columbia Court of Appeals by filing a written petition . The review shall be governed by the District of Columbia Administrative Procedure Act.
Thus, the organic act, § 36-409(a), requires review by this court on petition of any person aggrieved by an order of the Board. Significantly enough, the Congress did not condition such review upon the existence of a contested case or require the application of all provisions of the D.C. APA.
In the case now before us, both the petitioners and the majority have also apparently overlooked the fact that the jurisdiction of this court to review Zoning Commission action, if not conferred by § 1-1510 of the DCAPA itself, was expressly conferred by § 11-722, also part of the 1970 Act to which reference has been made. The only difference in wording between these two sections is that § 11-722 (relating to the Zoning Commission and the Board of Zoning Adjustment) prescribes that judicial review shall be “in accordance with” the DCAPA and in § 36-409(a) (Minimum Wage Board) that such review “will be governed” by that Act. Plainly, these phrases mean the same thing as the majority opinion seems to concede sub silentio.
Apparently it is not the intent of the majority to overrule the Hotel Association holding that this court has jurisdiction to review decisions of the Minimum Wage Board even in cases it deems “noncontest-ed” under the DCAPA. Its explanation of why such jurisdiction is not equally present in zoning cases, however, seems to defy all logic. Granted that there was a provision (D.C.Code 1967, § 36-409) for judicial review in the Minimum Wage Act itself before the passage of the DCAPA in 1968, judicial redress of statutory errors in zoning proceedings was also available prior to that date, as I have pointed out in discussing the Allen case, but in the United States District Court rather than this court under another provision of the D.C.Code — § 11-521.
Presumably both these sections of the Code were superseded when § 1-1510 of the DCAPA became effective. Perhaps because of some question on that score, however, Congress, in enacting the comprehensive Court Reform and Criminal Procedure Act of 1970 decided to make it plain that not only was § 1-1510 of the DCAPA to replace § 36-409 on review of minimum wage orders, but was also to supersede the United States District Court’s review of zoning cases by vesting such review in this court.
This was done with respect to the wage agency by the amendment codified as § 36-409, and with respect to the two zoning agencies by the amendment codified as § 11-722 — which can scarcely be described as “general review provisions” as it singles out the Zoning Commission and the Board of Zoning Adjustment for review in accordance with the DCAPA and the Public Service Commission for another kind of review. In other words, Congress in the 1970 Act made no distinction at all between the Minimum Wage Board and the Zoning Commission insofar as direct review by this court was concerned, but because such action by the codifiers of the 1973 Code placed some of the clarifying amendments contained in the 1970 Act under different titles, the majority have evidently decided that the plain words of Congress may be ignored.
In view of the explicit wording of § 11-722 placing judicial review of Zoning Commission orders in this court, how can the conclusion be reached that Congress “did condition such review upon the *316 existence of a contested case”, when the majority held just the opposite with respect to the legal effect of § 36-409 on review of Wage Board orders ? 7
With all deference to Judge Gallagher’s thoughtful and scholarly opinion, it seems to me that his observations tend to disclose, rather than disprove, the impossibility of reconciling the majority result with the plain words of the statute. His thesis, viz., that the “trial type” hearing procedures prescribed by § 1-1509 of the DCA-PA have no application to rulemaking, as distinguished from adjudication, is based not upon any words of limitation in the local APA but upon an express exemption in § 3 of the federal APA, 5 U.S.C. 553.
His opinion assumes- — without citation of authority other than decisions of United States courts construing the federal Administrative Procedure Act — that this court should look first to the organic act creating the particular agency to determine “the type of agency hearing envisaged” before deciding to apply the procedural safeguards prescribed by the DCAPA for “hearings required by law.”
This is precisely the reverse of the original approach of this court to the DCAPA when, shortly after its enactment, we twice vacated orders of the local Unemployment Compensation Board, pointing out to the agency that the detailed hearing and appellate procedures of that agency’s “organic act” (D.C.Code 1973, § 46-311) had been superseded by the all-inclusive later statute. 8 It is also the reverse of what the Allen decision, supra, cited in the concurring opinion, really held. In that case, the circuit court did indeed correctly analyze the informal character of the hearing provided by the local zoning act. But that court was dealing with a proceeding which had occurred prior to the enactment of the DCAPA, and hence felt compelled to point out the distinction between such a hearing and the kind of hearing which the Zoning Commission would have to provide after the effective date of the DCAPA. Apparently it never occurred to the circuit court that because the Zoning Act contemplated a different type of hearing, the DCAPA could not change zoning proceedings, as § 1-1501 of the latter act provided that it would “supersede any [prior] law and procedure to the extent of any conflict therewith.”
It is true that there are many decisions like United States v. Allegheny Ludlum Steel Corp., 406 U.S. 742 , 92 S.Ct. 1941 , 32 L.Ed.2d 453 (1972), construing the federal APA, holding that unless “rules are required by statute to be made on the record after opportunity for an agency hearing”, informal rulemaking procedures are permissible. But those decisions rest upon the quoted exemption from formal rulemaking contained in § 3 of the Act, 5 U.S.C. 533. There is no such broad exemption in the corresponding local act and consequently no basis whatsoever for the notion that the kind of informal rulemaking which devel *317 oped under the District of Columbia Zoning Act is still permissible. 9
To suggest, as the concurrence does, that language omitted by Congress in a later enactment from the “parent legislation in administrative law (the federal APA)” provides appropriate guidance for this court is a novel and startling concept of statutory interpretation. Under well established canons of construction, when a legislative body enacts an amendment in the nature of a substitute to a particular statute but omits an exemption contained in the original statute, such omission is presumed to be deliberate. This same rule of interpretation has been applied in this jurisdiction to District of Columbia statutes modeled in part on national statutes dealing with the same subject matter, e. g., District of Columbia v. Schwerman Trucking Co., D.C.App., 327 A.2d 818, 824 (1974); Williams v. W. M. A. Transit Company, 153 U.S.App.D.C. 183 , 472 F.2d 1258 (1972).
Accordingly there is no ground for the reproach that the dissenting opinion “legislates the result it reaches” simply because such result obliterates the distinction which Congress made in the federal APA — and which textbook writers have noted — between adjudication and “legislative” (i. e., rulemaking) agency proceedings. As I have pointed out, Congress itself obliterated this distinction when it enacted the DCAPA. It is not the proper function of this court, or any judicial body, to undo what Congress did when it chooses not to incorporate into the local statute an exemption it had placed in the federal one.
. The previous ones were Hotel Ass'n v. District of Columbia Min. W. & I. S. Bd., D.C.App., 318 A.2d 294 (1974), and Chevy Chase Cit. Ass'n v. District of Columbia Council, D.C.App., 327 A.2d 310 (1974), the latter quoted with approval in the body of the opinion in the instant ease.
. This particular provision is now incorporated in D.C.Code 1973, § 11-722.
. This classification permits row dwellings for single family use or rooming houses.
. See n. 1 supra.
. The majority opinion treats this case as though it presents solely a policy question of *314 broad, future applicability. This understandably will sorely disappoint petitioners, who have stressed that there are dozens of halfway houses already existing in their neighborhood. The Zoning Commission’s action, while cloaked in terms of general applicability, actually legitimated those existing halfway houses, giving the residents of the area no real opportunity to testify as to their effect on the neighborhood.
. Petitioners contend, inter alia, that the express provisions of the act which created the Zoning Commission prevented that agency from issuing regulations having nothing to do with the purposes of that act — enumerated in D.C.Code 1973, § 6 — 414—but rather for the unrelated objective of authorizing experiments in the field of penal rehabilitation.
. The short answer to the contention (expressed in the concurring opinion) that persons aggrieved by illegal Zoning Commission action may obtain judicial review by a suit in the Superior Court is that no such remedy is provided by statute. Instead, Congress placed whatever judicial recourse is available at all in this court. The cases cited for the proposition are not in point. Abbott Laboratories v. Gardner, 387 U.S. 136 , 87 S.Ct. 1607 , 18 L.Ed.2d 681 (1967), antedated both the DCAPA and the 1970 Act, and District of Columbia v. Green, D.C.App., 310 A.2d 848 (1972), a case tried in the Tax Division of the Superior Court, fell with the statutory exemption of § 1-1502(8) (A) as it involved a “matter subject to a subsequent trial of the law and the facts de novo . . .
. Wallace v. District Unemployment Compensation Bd., D.C.App., 289 A.2d 885 (1972); Woodridge Nursery School v. Jessup, D.C. App., 269 A.2d 199 (1970). Our finding that these proceedings were “contested cases” rested entirely upon our examination of the DCAPA which caused us to deem as repealed, language in the organic act pointing to a different inference.
. Informal rulemaking patterned after the procedures in 5 U.S.O. 553 is indeed authorized under § 1-1005 of the local APA, but only with respect to the making of regulations under a law not requiring a hearing, e. g., D.C.Code 1973, § 1-224, authorizing regulations with regard to storing inflammable substances, keeping of dogs and fowl, littering streets with garbage, using fireworks and explosives, etc. There are many similar local statutes which should not be confused with other enactments mandating a hearing as a condition precedent to agency action. Thus the contention that the dissent calls for the abandonment of all informal rulemak-ing by local agencies is lacking in substance.