concluding that “Jones & Ar-tis’ failure to raise the quorum issue before the Board was an acquiescence, tantamount to a stipulation under the rules, that the Chairman could act on behalf of the Board ... upon stipulation, irrespective of quorum requirements.”
How later courts described this case
- concluding that “Jones & Ar-tis’ failure to raise the quorum issue before the Board was an acquiescence, tantamount to a stipulation under the rules, that the Chairman could act on behalf of the Board ... upon stipulation, irrespective of quorum requirements.”
- concluding that because a bid protest is not a contested case, a bidder seeking relief from a decision on a bid protest by the Contract Appeals Board must resort in the first instance to the Superior Court
- holding that failure to make timely objection to lack of quorum for agency action amounted to a waiver of the objection on appeal
- noting that "[t]he statute (and certainly the Constitution) does not require a hearing"
Written by the judges who cited it.
The opinion
ROGERS, Associate Judge,
concurring:
The majority opinion states that “no one in this case has questioned the Mayor’s authority to issue Order 86-65.” 1 See majority opinion at 322. That order purported to postpone the effective date of some provisions of the District of Columbia Procurement Practices Act of 1985 (new Act). Appellant Jones & Artis argued only that the Board Chairman exceeded his authority by acting without a quorum. Respondent, the majority states, did not question the validity of Mayor’s Order No. 86-65, but contended only that the Contract Appeals Board dismissing Jones & Artis’ “appeal” was not the Board created by the new Act, and hence was not the Board from which appeals to this court may be taken under the new Act and, consequently, this court lacked jurisdiction under Gunnell Constr. Co. v. Contract Appeals Bd., 282 A.2d 556 (D.C.1971) (concerning Contract Appeals Board established by Commissioner’s Organization Order No. 9 2 ). See majority opinion at 323 n. 7.
That notwithstanding, the court itself raised the issue of the validity of Mayor’s Order No. 86-65 at oral argument. Respondent at that time could offer no authority to support the mayoral action in lieu of amendment of the Act by the Council of the District of Columbia to delay the effective date. Cf. D.C.Code §§ 1-319, -320 (1987 Repl.); Glover v. District of Columbia, 250 A.2d 556, 559 (D.C.1969) (public necessity requiring curfew). Nor has this court subsequently been referred to supporting authority. 3
In addition, the majority opinion acknowledges that “[ijnherent in our reviewing a decision of the Board ... is a premise that the Board itself acted within its own pre *328 scribed powers....” The majority further reasons that because this court will defer to agency interpretation of its enabling statute, the court must be certain that the Board “spoke with the force necessary to elicit our deference.” See majority opinion at 321-322. All this said, the majority proceeds to defer to the Board, see, e.g., majority opinion at 324, 326-327, but nonetheless concludes inplicitly that it need not examine whether the Board established by Mayor’s Order 86-65 may lawfully exercise powers under the new Act. In its view, appellants have “implicitly conceded” the validity of Mayor’s Order 86-65 by seeking review in this court. See majority opinion at 323. Yet a fairly fundamental issue, involving the separation of powers under the District of Columbia Self-Government and Governmental Reorganization Act, 4 potentially makes everything that happened here null and void.
I join the majority in dismissing the appeal for lack of jurisdiction. It is undisputed that the Board that acted here is not the Board entitled to appeal under the new Act, and since parties cannot confer jurisdiction on this court, Gunnell is controlling. Hence, there is no need to reach the issue of the validity of Mayor’s Order No. 86-65.
. 33 D.C.Reg. 3006 (1986) (Order 86-65 amending Organization Order No. 9, as amended by Order 82-224).
. See 1 D.C.Code Appendix (1978 Supp. V); 30 D.C.Reg. 497 (1983) (Order 82-224 amending Organization Order No. 9).
. The court did not request that the parties file supplemental briefs on the issue.
. Pub.L. 93-198, Dec. 24, 1973, 87 State. 774, 1 D.C.Code 175-247 (1981).