Petition for Writ of Certiorari — Flores v. District of Columbia Rental Housing Commission

& - l g | Suprame Court, U.S,

8 655 . FILED

NO. MAR <7 1989

| JOSEPH F SPANIQOL, JR,

CLERK

IN THE SUPREME COURT OF

THE UNITED STATES

ell COB we -

OCTOBER TERM, 1988

REGINO FLORES,

Petitioner

vs.

DISTRICT OF COLUMBIA

RENTAL HOUSING COMMISSION

Respondent,

and

SANDRA POWELL,

Respondent.

PETITION FOR CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Regino Flores a

724 23th St.., Bz.

Washington, D.C. 20002

(202) 399-5034

Pro Se

QUESTION PRESENTED FOR REVIEW

1) Whether Petitioner's due process

rights under the Fifth and Fourteenth

Amendments to the United States Constitution

were violated when the District of Columbia

Court of Appeals ruled that a D.C. Municipal

Regulation automatically denying a motion

for reconsideration upon the expiration of a

fifteen (1°) day time period, without

written or oral notice, commenced the

running of the time in which to seenei to

the court under its local rule.

a) Whether the Court erred when it

ruled that Petitioner's petition was

untimely because it was not filed within

thirty days of the D.C. Agency's automatic

Genial which gave no actual notice to

petitioner that the thirty day time period

had commenced to run.

22

List of Parties

Regino Flores

Sandra Powell

The District of Columbia

111

TABLE OF CONTENTS

Page

Questions Presented for Review ....... i

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SOULE GE CORGRRCE 6 kes hasta cteeinees 13%, 29

ZOULe OF BUCHOCICIOS sic ceca keene Vv

BOT Ge Oe Gene 6 is 6 eo ee CCA eee vi

JUTISGICELORSL GFOUNGS 226s vecvacnvers vi

Statutes & Rules Involved ............ vi

Statement Of CHE CASE .csccascavsesees 1

Argument and Authorities ............. 8

I. Whether Petitioner's due process rights

under the Fifth and Fourteenth Amendment

to the United States Constitution were

violated when the District of Columbia

Court of Appeals ruled that a D.C.

Municipal regulation automatically

denying a motion for reconsideration

upon the expiration of a thirty (30) day

time period, without written or oral

notice, commenced the running of the

time in which to appeal to the court

under its FOCST Cis x ics kb 0 eos &§

iv

TABLE OF CONTENTS

a. Whether

the Court erred when it ruled

that Petitioner's petition was untimely

because it

of the D.C.

which gave

petitioner

period had

Conciusion ....

Certificate of

was not filed within 30 days

Agency's automatic denial

no actual notice to

that the thirty day time

commenced to run.

TABLE OF AUTHORITIES

Mullane v. Central Hanover Bank &

Truett Co., 239 U.6. 306, 314 (1950)

City of New York v. New York, New

Haven & Hartford Railroad Co.

Bee Ure Bee Rees Carbs Ch hee hk 68 KS

Civil Aeronautics Board v. Delta Air

Dames. ime. 376 Wis. 216 (i960) | iciaes

STATUTES AND RULES

28 U.&.C. 2101

D.C. Code § 1-1509 (c)

D.C. Municipal Regulation

14 DCMR § 3313.1

D.C. Court of Appeals Rule 15 (a)

Fifth Amendment to the United States

Constitution

Fourteenth Amendment to the United States

Constitution

vi

REPORT OF OPINION

The opinion of the D.C. Court of

Appeals is reported as Case No. 86-78.

JURISDICTIONAL GROUNDS

(i) The date of the judgement sought to be

reviewed is September 29, 1988.

(ii) The date of the order overruling

rehearing is January 10, 1989.

(iii) The statutory provision believed to

confer jurisdiction on this Court 28

West. £2204, L2aF Ot BOG.

STATUTES & RULES INVOLVED

The statutes and rules involved in

this case are contained in the body of this

Petition.

vil

The opinion of the D.C. Court of

Appeals is attached as Appendix A.

The opinion of the D.C. Rental Housing

Commission is attached as Appendix lI.

STATEMENT OF THE CASE

A. Course of Proceedings and Deposition in

Court below:

On January 17, 1986, petitioner Flores

filed a petition for review in the District

of Columbia Court of Appeals from a final

agency decision of the D.C. Rental Housing

Commission (hereinafter the "RHC" agency).

The "RHC" filed a motion to dismiss the

petition as untimely. On September 29,

1988, the D.C. Court of Appeals issued a

decision dismissing the petition as

untimely. On October 11, 1988 petitioner

filed a petition for rehearing or rehearing

En Banc specifically requesting a reversal

of the court's decision dismissing the

petition. The D.C. Court of Appeals issued

a decision on January 10, 1989, denying the

petition for rehearing or rehearing en banc.

STATEMENT OF CASE

Tenant-Intervenor, filed a complaint on

November 14, 1984, with the Rental

Accommodations and Conversion Division of

the District of Columbia Department of

Consumer and Regulatory Affairs (hereinafter

referred to as the “RACA"). Intervenor

alleged, among other things that the

Petitioner-Landlord failed to file proper

rent increase forms with the Rental

Accommodation Office. On January 24, 1984,

a decision was issued by a "RACD" Hearing

Examiner dismissing the complaint for lack

of jurisdiction of the intervenor's

claim.+ The intervenor appealed the

lfhe Hearing Examiner ruled that the

petitioner's property (a four (4) unit

building) was exempt from Title II of the

Rental Housing Act of 1980.

decision, and/or requested reconsideration

of the Examiner's decision. The motion was

granted by the Commission on October 24,

1984, and the case was remanded to the

Examiner for reconsideration.

On December 17, 1984, a second decision

and order was issued by another examiner

finding that the petitioner violated the

rent ceiling for the subject four (4) unit

rental property. The Examiner ruled that

the landlord owned a total of ten (10)

rental units, and that said units were

subject to the rent control laws of the

District of Columbia. The Petitioner was

ordered to refund $4,253.00 from the date of

occupancy by the intervenor, March 1, 1982.

| On January 7, 1985, Petitioner filed an

appeal of the December 17, 1984, Examiner's

decision. The Rental Housing Committee

issued a decision on July 11, 1985,

affirming the Hearing Examiner's decision of

December 17, 1984, finding that the

petitioner had violated the rent ceiling on

the subject property. On August 27, 1985, a

compliance order was issued by the D.C.

Department of Consumer and Regulatory

Affairs finding the petitioner liable for

failing to comply with the Examiner's

decision.

Petitioner, Flores filed a Motion for

Reconsideration and/or Issuance of a New

Commission Decision Date on October 24,

1985. On October 29th intervenor filed an

opposition to Petitioner's Motion for

Reconsideration. The Commission granted the

Petitioner's Motion, and re-issued the

subject decision.

On November 4, 1985, the Respondent

("RACA") re-issued its order of July 1985,

notifying petitioner of his right to "seek

reconsideration or judicial review of the

Commission's July 11, 1985 Decision and

Order." On November 12, 1985, the

Intervenor filed a Motion for

Reconsideration of the Commission's Decision

to re-issue its Order of July 11, 1985.

On November 15, 1985, Petitioner Flores

filed a Motion for Reconsideration of the

Commission's July llth Decision (which was

re-issued on November 4th) and Motion to

Stay the Hearing Examiner's Decision Pending

Final resolution of this Case. On

December 11, 1985, the intervenor filed an

opposition to petitioner's Motion of

November 15th.

The respondent issued a written Order on

November 18, 1985 denying the intervenor's

2Petitioner's Motion for

Reconsideration addressed the merits of the

DCRA's decision and to this date, the DCRA

has failed to issue a formal Order or

Decision addressing the issue raised -or

otherwise disposing of petitioner's motion

by written notice.

jessie ssnnenynpsnenes on emepemicounenminese iiss

ee aan eee

6

Motion of November 12th requesting

reconsideration of the respondent's decision

to re-issue the original decision. The

respondent also sent two letters to the

parties dated December 12, 1985 and December

16, 1985 denying the intervenor the

opportunity to file "post-—-hearing

Submissions."

On January 9, 1985, the Respondent

("DCRA") issued a “Notice of Hearing on

Appeal" and forwarded the same to all

parties. Petitioner's Counsel contacted the

respondent immediately after receiving the

January 9th Notice and he was informed that

there would be no hearing in the matter, and

that the letter of January 9, 1986 was sent

in error. He was further advised by agency

representatives to proceed to the D.C. Court

of Appeal.

Petitioner filed a petition for review

on January 17, 1986, nine days after

receiving the Notice of Appeal, and seven

days after being instructed by the

respondent to seek judicial review.

Subsequently, petitioner received a

"Cancellation of Notice of Hearing on

Appeal” dated January 28, 1986.

On February 25, 1986, respondent filed a

Motion to Dismiss the Petition for Review,

and the petitioner subsequently filed

his opposition to respondent's Motion. On

March 19, 1986, D.C. Court of Appeals issued

an Order directing the parties to file

briefs in support of and in opposition to

the aforementioned motions.

ARGUMENT AND AUTHORITIES

I. Whether Petitioner's due process rights

under the Fifth and Fourteenth Amendment

to the United States Constitution were

violated when the District of Columbia

Court of Appeals ruled that a D.C.

Municipal regulation automatically

denying a motion for reconsideration

upon the expiration of a fifteen (15)

day time period, without written or oral

notice, commenced the running of the

time in which to appeal to the court

under its local rule...

The D.C. Court of Appeals decision

violated petitioner's due process rights

under the Fifth and Fourteenth Amendment to

the U.S. Constitution when it ruled that a

D.C. Municipal Regulation (14 D.C.M.R. §

23131) automatically denying petitioner's

motion for reconsideration, (without written

Or oral notice) after expiration of a

fifteen (15) day time period, commenced the

time in which petitioner had to appeal a

D.C. administrative decision to the D.C.

Court of Appeals. As a result of the

Court's error, petitioner's petition for

review was held to be untimely, thus

preventing petitioner's case from being

heard on the merits.

In Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950), this

Court recognized that prior to an action

which will affect an interest in life,

liberty, or property protected by the Due

Process Clause of the Fourteenth Amendment,

a State must provide “notice reasonably

calculated, under all circumstances, to

apprise interested parties of the pendency

of the action and afford them an opportunity

to present their objections." Invoking this

“elementary and fundamental requirement of

due process,” ibid, the Court held that

published notice of an action to settle the

accounts of a common trust fund was not

sufficient to inform beneficiaries of the

trust whose names and addresses were known.

The Court explained that notice by

10

publication was not reasonably calculated to

rovi 1 noti f th ndin

proceeding and was therefore inadequate to

inform those who could be notified by more

effective means such as personal service or

mailed notice.

The Mullane case is distinguished from

the instant proceedings in that Mullane

involved publication of notice through a

local newspaper, while petitioner Flores

received no written or oral notice informing

him of the D.C. Agency's decision

automatically denying his petition for

reconsideration after the expiration of

fifteen (15) days. The respondent argues

that notice was given by publication of the

municipal regulation by virtue of its

declaration that "Failure of the Commission

to act within the fifteen (15) day time

period set forth in § 3320.5 shall

constitute a denial of the motion for

ee

11

reconsideration.” However,

argument is not well taken.

respondent's

There are a

number of reasons by the respondent's

argument lacks merit.

The regulation in

question provides in pertinent part that:

3320.5

The Commission shall

either grant or deny

the motion within

fifteen (15) days of

receipt.

3320.6 Failure of the

Commission to act

within the fifteen (15)

Gay time period set

forth in §3320.5 shall

constitute a denial of

the motion for

reconsideration.

3320.7

If the motion for

reconsideration is

granted,

shall affirm,

the Commission

rescind,

or modify its order.

3320.8

The filing of a motion

for reconsideration

shall act as a stay

upon the effectiveness

of the Commission's

order until such time

as the motion is ruled

on by the Commission,

or denied because of

12

the failure of the

Commission to act under

§3320.6.

First, the regulation states that the

Commission shall either grant or deny the

motion within fifteen days, and it further

provides that failure of the Commission to

act within fifteen days would constitute a

denial of the motion for reconsideration.

Such language indicates the type of final

decision which may be reached by the

Commission regarding its decision on the

pending motion for reconsideration, but it

clearly cannot constitute notice of that

final decision for purposes of triggering

the limitations period in which to seek

judicial review.

Second, the regulation is ambiguous and

misleading in that §3320.7 provides that “If

the motion for reconsideration is granted,

the Commission shall affirm, rescind, or

13

modify its order." The language of §3320.7

leads the reader to presume that some form

of actual notice will be given if the motion

is granted. Further §3320.8 provides that

"a motion for reconsideration shall act as a

stay upon the effectiveness of the

Commission's order until such time as the

motion is ruled on by the Commission. -

Therefore, it is reasonable to assume that

actual notice would be given if the agency's

decision was to automatically deny the

motion.

In the case of City of New York v. New

York, New Haven & Hartford Railroad Co., 344

U.S. 293 (1952), Justice Black, who

delivered the opinion of the court, noted

that, “Notice by publication is a poor and

sometimes a hopeless substitute for actual

service of notice.” The facts in the City

of New York case revealed that the City of

New York failed to file lien claims against

14

the railroad which had reorganized pursuant

to §77 of the Bankruptcy Act. The lien

claims arose from local improvements made by

the city to railroad realty prior to the

reorganization. The District Court issued

an order directing “creditors” to file their

claims by a prescribed bake. The order was

published in five daily newspapers, but the

City of New York received no actual copy of

the District Court order. The District

Court enjoined the City of New York's lien

claims because they were not filed, and the

Court of Appeals affirmed the same. The

City of New York sought and was granted a

writ of certiorari, principally on the issue

of whether in the absence of actual service

of notice on the city, the court was without

power to forfeit the city's liens because of

its failure to appear as a claimant.

The Supreme Court ruled that the

Bankruptcy Act required actual notice of the

15

order to creditors requiring the filing of

creditors claims, and the court determined

that notice by publication was

insufficient. Specifically, the court held

in pertinent part that:

"Section 77 (c)(8) of the

Act states that "The judge

shall cause reasonable

notice of the period in

which claims may be filed,

... by publication or

otherwise." 11 U.S.C. §205

(c)(8). We hold that

publication of the bar order

in newspapers cannot be

considered “reasonable

notice" to New York under

the circumstances of this

- case.

Notice by publication is

a poor and sometimes a

hopeless substitute for

actual service of notice.

Its justification is

Gifficult at best. See

Mullane v. Central Hanover

Bank & Trust Co., 339 U.S.

306. But when the names,

interests and addresses of

persons are unknown, plain

necessity may cause a resort

to publication, See, e.g.,

Standard Oil Co. v. New

Jersey, 341 U.S. 428. The

16

case here is different. No

such excuse existed to

justify subjecting New

York's claims to the hazard

of forfeiture arising from

“constructive notice" by

newspaper. In the first

place subdivision (c)(4) of

§77 is designed to enable

the court to serve personal

notices on creditors."

Here, just as in the City of New York

case, the respondent, D.C. Government was

aware of the home address of petitioner

Flores, but at no time was petitioner Flores

given actual notice of the respondent's

final decision denying petitioner's motion

for reconsideration and lifting a stay of

the agency's earlier decision. Petitioner

was left to decipher the fact that

publication of the city's ordinance

discussing “automatic denials” constituted

notice to affected parties. Petitioner

Flores maintains that the District of

Columbia Court of Appeals decision reaching

17

such a conclusion is violative of the due

process clause of the Fifth and Fourteenth

Amendments to the United States Consti-

tution. The respondent failed to give

actual notice of the agency decision

automatically denying petitioner's motion

for reconsideration, yet the reSpondent

issued a written order notifying the

intervenor that her motion for reconside-

ration had been denied. Failure to provide

such actual notice to the petitioner for

purposes of triggering commencement of the

time period within which to seek judicial

review of the agency's decision was also

violative of the due process clause as it is

applied to D.C. Court of Appeals Rule 15(a).

Third, the D.C. Court of Appeals

decision denied the petitioner due process

because its decision improperly concluded

that the regulation in question (D.C.MR.

§3320.5) provided notice of an automatic

18

Genial through publication of the

government's regulation in the District of

Columbia Register. The D.C. Court of

Appeals decision was in error because it was

in eisiveice of the notice requirements set

forth in the District of Columbia Code,

Title 1, Section 1509(e) (Administrative

Procedure Act), which provides in pertinent

part that:

“Every decision and order

adverse to a party to the

case rendered by the Mayor or

an agency is a contested case

shall be in writing and shall

be accompanied by findings of

fact and conclusions upon

each contested issue of

fact. Findings of fact and

conclusions of law shall be

supported by and in

accordance with reliable,

probative, and substantial

evidence. A copy of the

party or to his attorney of

record. (Emphasis added)

19

In the instant case, the “automatic

Gemial” of the petitioner's motion for

reconsideration represented a decision or

order of the respondent agency. As such,

the agency was required to give a copy of

the order denying the motion to each party

in accordance with law. However, petitioner

was not served personally or by mail with

actual notice of an order automatically

denying his motion. (See and compare a copy

of the order dated November 18, 1985,

denying the intervenor's motion for

reconsideration). Lack of compliance with

D.C. Code 1-1509(e) illustrates the

violation of procedural due process by the

respondent. ;

The agency clearly violated D.C. Code

1-1509(e) when it failed to serve a written

copy of the order on the petitioner or his

counsel. Therefore, the thirty (30) day

time period for filing a petition for review

20

should not have commenced to run.

Therefore, the D.C. Court of Appeals ideas

to ignore the plain language of the D.C.

Administrative Procedure Act which governs

the requirements of agency action, in favor

of the agency's own municipal regulation

(D.CM.R. §3320.5). The D.C., Court of

Appeals acted in complete disregard of the

Gue process standards incorporated in its

own “state” statute or its equivalent, the

D.C. Code.

The above analysis of the D.C. Court of

Appeal's improper action can be summarized

by the Court's holding in a somewhat

different-and distinguishable case, Civil

Aeronautics Board v. Delta Air Lines, Inc.,

376 U.S. 316 (1960). The Court ruled that

once a certificate of public convenience and

necessity granted by the Civil Aeronautics

Board to an air line has become effective

under §401(f£) of the Federal Aviation Act of

21

1958, the Board may not alter it without

formal notice and hearing, even though the

Board, at the time of certification, has

purported to reserve jurisdiction to make

summary modifications pursuant to petitions

for reconsiderations.

The Court summarized its decision by

stating "that the Board is entirely a

creature of Congress and the determinative

question is not what the Board thinks it

should do but what Congress has said it can

do. See United States v. Seatrain Lines,

329 U.S. 424, 433. CF. Delta Air Lines v.

Summerfield, 347 U.S. 74, 79-80." Although

the Civil Aeronautics case relates to a

federal statute, the case is analogous to

the instant case because it declares what

powers a court is vested with at its

appropriate level - be it local, state or

federal. The D.C. Court of Appeals in the

instant case chose to ignore its local

22

legislative intent (D.C. Code §1509(e), in

favor of an agency regulation which was and

is repugnant to and violative of the due

process Clause of the Fifth and Fourteenth

Amendments to the U.S. Constitution.

The Supreme Court further concluded in

Civil Aeronautics Board, supra that:

"Thus a court considering

the timeliness of a

litigant's appeal is

concerned with the wisdom of

exercising its own power to

act, and the result depends

on such factors as fairness

to the appellant and the

intent of Congress in

passing a general statute -

§10(c) of the Administrative

Procedure Act - which

applies equally to almost

all administrative agencies.

a. Whether the Court erred when

it ruled that Petitioner's

petition was untimely because it

was not filed within thirty days

of the D.C. Agency's automatic

Genial which gave no actual

notice to the petitioner that

the thirty day period had

commenced to run.

23

In the instant case, the D.C. Court of

Appeals chose to ignore its earlier

decisions requiring actual notice of agency

decisions, in favor of an agency regulation

requiring no such notice. The Court's

action also clearly ignored the due process

standards built into its own Court Rule

15(a), in favor of an “expedient means" by

which to cut the agency's case load at the

expense and unfairness to the petitioner.

Therefore, the D.C. Court of Appeals

decision not only violated petitioner's due

process rights under the Fifth and

Fourteenth Amendments to the United States

Constitution, but it also violated due

process provisions of the D.C.

Administrative Procedures Act, and it

disregarded formal notice requirements of

earlier Court decisions.

24

CONCLUSION

For the reasons stated, it is

respectfully requested that the Petitioner's

Petition for a Writ of Certiorari be

granted. Petitioner further requests the

Court to reverse and remand the judgement of

the D.C. Court of Appeals, and hear this

case on it merits.

Respectfully Submitted,

REGINO FLORES

714 13th Street, N.E.

Washington, D.C. 20002

(202) 399-5034

Pro Se

APPENDIX I

DISTRICT OF COLUMBIA

RENTAL HOUSING COMMISSION

North Potomac Building, Suite 505

614 H St., N.W.

Washington, D.C. 20001

(202) 727-7400

November 4, 1985

REGINO FLORES

c/o Frazer Walton, Jr., Esq.

555-4th Street, N.W., No. 333

Washington, D.C. 20001

Landlord-Appellant

Vv. In Re: ar issaoe

- SANDRA POWELL

4353 Martin Luther King Avenue, S.W.

Washington, D.C. 20032

Tenant-Appellee

ORDER

The landlord-appellant has filed a

motion requesting the Commission to re-issue

its Decision and Order of July 1l, 1985.

Appellant contends, as the basis for his

TP 11,258

November 4, 1985

Page 2

request, that the July 11, 1985, decision

was not a final, i.e. appealable, decision

because it did not contain a statement of

appellant's right to seek judicial review.

He seeks the re-issuance of the decision to

include such a statement with a new date of

issuance.

We find appellant's contention without

merit. Appellant's right to seek judicial

review of our decisions is established by

1/

statute, ~ and the time period for

seeking such review is fixed by rule of the

1/p.C. Code §45-1530.

2/ Rule 15 of the District of Columbia

Court of Appeals requires that an

appeal of agency decision be filed

“within thirty days after notice is

given. . . If the order or decision is

made out of the presence of the parties

and notice thereof is by mail, the

petitioner shall have five additional

days from the date of mailing.”

TP 11,258

November 4, 1985

Page 3

District of Columbia Court of Appeals.2’

The time of accrual of party's right to

appeal a decision served by mail is

dependent upon the agency's mail

practices .2” But it is nowhere suggested

by statute, regulation or decision#’ that

the Commission is required to give a party

notice of his right to appeal, or that the

accrual of this right must await receipt of

such notice.

Since we find nothing in law which

requires such a notice, or supports

appellant's contention that a decision

lacking this notice is not final or

appealable, appellant's contention, and his

motion based on that contention, must

therefore be denied.

3/ Town Center Management v. D.C. Rental

Housing Commission, D.C.C.A. No.

84-1451 (August 1, 1985).

4 The case law cited by appellant is in

no way controlling.

2" i2,258

November 4, 1985

Page 4

Our review of the record, however,

raises a different defect from that raised

by appellant. It appears that the landlord-

appellant was represented by counsel, albeit

a different counsel, at the Commission's

hearing on March 19, 1985. But the record

also indicates that the decision issued as a

result of that hearing on July 11, 1985, was

not mailed to the landlord's counsel of

record as required by the Commission's

regulations.” Rather, the mail log shows

that the decision was mailed directly to the

landlord as if he had proceeded in this

matter pro se.

Here the landlord had gone to the

trouble and presumably the expense of

obtaining legal representation, and he had

put us on notice of that representation. We

are bound to respect his designation of

2/ 14 DCMR §§ 3115.2, 3315.4.

TP £23,256

November 4, 1985

Page 5

representation; we would require that of the

Opposing party and can require no less from

ourselves.

We are not persuaded that the “actual

notice" given to the landlord can be

construed as “constructive notice" to his

counsel, or that it cures the non-compliance

with the applicable regulations on service.

Among the functions that counsel is retained

to perform is the function of relieving the

landlord of being alert to and receiving

official papers, and noting (or knowing)

deadlines which those papers may trigger.

We cannot deprive the landlord of this

service by by-passing counsel of record.

We are mindful of the D.C. Court of

Appeals' decision in Smith et ux v. D.C.

Rental Accommodations Commission, 411 A.2d

612 (1980), to the effect that the time

period for filing an appeal is

jurisdictional and cannot be extended by the

Te ii,258

November 4, 1985

Page 6

Commission. °/ However, we do not run

afoul of Smith, because the time for appeal

does not begin to run until notice of the

decision is properly given to the parties.

In this case, notice of the decision should

have been given to the landlord's counsel of

record to begin the appeal period. See Town

Center Management, supra, note 3; James S.

Woods v. Ralph D. Kaiser Co., TP 11,937 (RHC

October 23, 1985). This was not done.

Since the appeal period did not begin to

run, we are not extending it.

The defect which we find in the

issuance of the July 11, 1985 Commission

decision is not that urged by appellant,

i.e. that it contained no notice of

6/ In Smith the appeal period in question

referred to a Rent Administrator's

decision and was fixed by statute.

Here the period is set by Court rule,

but is nonetheless jurisdictional and

beyond our authority to alter.

TP i2, 238

November 4, 1985

Page 7

appellant's right to appeal. Rather, the

issuance of that decision was defective

because it was not mailed to appellant's

then counsel of record.

To correct this latter deficiency, it

is by the Commission, this 4th day of

November, 1985,

ORDERED, that the Commission's Decision

and Order, issued July 11, 1985, in this

matter shall be deemed to have been issued

on the date of issuance of this Order; and

it is further

ORDERED, that the service by mail of

this Order on the present counsel to the

parties shall constitute and be deemed as

service of the Decision and Order issued

July 11, 1985; and it is further

ORDERED, that the time for the parties

to seek reconsideration or judicial review

of the Commission's July 11, 1985, Decision

TP 11,258

November 4, 1985

Page 8

and Order shall be computed from the date of

issuance and mailing of this Order.

Isiah T. Cresswell, Jr.

Commissioner

TP 11,258

November 4, 1985

Page 9

Copies To:

REGINO FLORES

c/o Frazer Walton, Jr., ESq.

555-4th Street, N.W. No. 333

Washington, D.C. 20001

SANDRA POWELL

4353 Martin Luther King Avenue, S.W.

Washington, D.C. 20032

Rick Hannibal

1417 Belmont Street, N.W.

Washington, D.C.

APPENDIX A

District of Columbia

Court of Appeals

No. 86-78

REGINO FLORES,

Petitioner,

Vv.

DISTRICT OF COLUMBIA RENTAL

HOUSING COMMISSION,

Respondent

and

SANDRA POWELL,

Intervenor.

BEFORE: *Rogers, Chief Judge; *Mack,

Newman, *Ferren, Belson, Terry,

Steadman, and Schwelb, Associate

Judges.

O 2-2 2

On consideration of petitioner's

petition for rehearing or rehearing en banc,

st is

QRDERED by the merits division*® that

the petition for rehearing is denied; and it

appearing that a majority of the judges of

this court has voted to deny the petition

for rehearing en banc, it is

—E————E

FURTHER ORDERED that the petition for

rehearing en banc is denied.

PER CURIAM

Associate Judges Mack and Schwelb would

grant the petition for rehearing en banc.

Copies to:

Frazer Walton, Jr., Esquire

7600 Georgia Avenue, N.W.

Suite 411l-

Washington, D.C. 20002

Charles L. Reischel, Esquire

Deputy Corporation Counsel

Richard A. Hannibal, Esquire

1417 Belmont Street, N.W.

Washington, D.C. 20009

das

APPENDIX &

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 86-78

REGINO FLORES, PETITIONER,

¥.

;

DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, fot

RESPONDENT, ‘>

and

SANDRA POWELL, INTERVENOR.

Petition for Review of a Decision of the

District of Columbia Rental Housing Commi

(Argued December 17,1987 Decidetl September 29, 1988)

Frazer Walton, Jr. for petitioner.

Donna M. Murasky, Assistant Corporation Counsel,

with whom Fredcrick D. Cooke, Jr., Acting Corporation

Counsel, and Charles L. Reische!. Deputy Corporation

Counsel, were on the brief, for respondent.

Richard A. Hannibal was on the brief for intervenor.

Before MACK, FERREN, and ROGERS, Associate Judges.

Opinion for the court by Associate Judge RoGERS.

Dissenting opinion by Associate Judge MACK at p. 12.

ROGERS, Associate Judge: Regino Flores appeals from

the decision of the District of Columbia Rental Housing

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Commission (RHC) upholding an award of damages to

his former tenant, intervenor Sandra Powell, for rent

charged in excess of the legal rent ceiling for her apart-

ment on the ground that he is within the small landlord

exemption of the Rental Housing Act of 1980. The com-

plex procedural history of this case presents the issue

whether the agency's rule automatically denying a mo-

tion for reconsideration upon the expiration of a set time

starts the running of the time to appeal under D.C. App.

R. 15 (a). We agree with the RHC and Ms. Powell that

this court is without jurisdiction to hear the appeal be-

cause Flores’ petition for review was untimely filed. The

time to file an appeal commenced to run under Rule 15

(a) when, under RHC regulations. Flores’ motion for

reconsideration by the RHC was automatically denied

upon the expiration of fifteen days. Since his petition

for review was not filed until thirty-nine days later,

even granting to him an additional five days because the

denial occurred out of his presence. his petition is un-

timely and, 2ccordinely, the appeal must be dismissed.

I.

Ms. Powell filed # tenant petition with the Rental Ac-

commodations und Conversion Division (RACD) on No-

vember 14, 1933.' Among her complaints was that she

was being charged monthly rent of $275.00 for an epart-

ment with a rent ceiling of $150.00. After a hearing.

the hearing ex:iminer dismissed her petition on the ground

' The law governing the instant case is the Rental Housing

Act of 1980. D.C. Law 3-151, 28 D.C. Reg. 326 (Jan. 23, 1981),

codified us amended, D.C. Code $$ 15-1501 et seq. (1981) (the

Act). This legislation became effective on May 1, 1981, and

expired on April 50, 1985. D.C. Law 3-131, §§ 906, 907, D.C.

Code $§ 45-1596, -1597 (1981).

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that the four-unit building at 400 Melon Street, S.E.. in

Which Ms. Powell's apartment wes located, was exempt

from the rent control act because Flores had filed a claim

of exemption as a small landlord.

Ms. Powell filed a pro se appeal. stating that she had

discovered that Flores owned additional rental units.

On advice of counsel, she subsequently moved to amend

her notice of appeal to a motion for reconsideration. The

RHC granted the motion for reconsideration. and by or-

der dated October 24, 1984, vacated the hearing exam-

iner’s decision and remanded the case for a hearing on

whether Flores was within the small landlord exemption

of the Act.

On December 17, 1984, a second hearing examiner

found that Flores owned two housing accommodations

containing ten rental units and that he had failed to

register them as required by D.C. Code § 45-1516 (d)

(1981). The examiner therefore ruled that Ms. Powell

Was entitled to recover the difference between the rent

she had paid and the “base rent”? for her apartment

plus interest.

Flores appezted from the second hearing examiner’s

decision. and after : hearing, the RHC. by order dated

July 11. 1985, affirmed the examiner's decision on an

alternative ground. It ruled that Flores should have re-

moved his property from the rental housing market pur-

suant to D.C. Code § 45-1561 (d) (1981). which permits

a landlord to recover possession of a rental unit for his

own immediate and persona! use as a dwelling.: Because

° D.C. Code § 15-1503 (2) (1981) (“base rent”).

* D.C. Code § 15-1561 (d) provides in pertinent part:

A natural person with a freehold interest in the rental

unit may recover possession of a rental unit where he or

| 1923]

4

Flores had not done so, the RHC held that he remained

subject to the Act.

On September 30, 1985, Flores’ attorney sent a letter

to the RHC requesting it to reissue its July 11 order so

that he might file a timely appeal. The request was based

on the grounds that the order had contained neither no-

tice of Flores’ right to appeal the RHC’s decision nor in-

formation concerning the time limits on the filing of a

notice of appeal. Flores asserted that he had been un-

aware of his right to appeal until he sought the advice

of his present attorney. His counsel also requested a

copy of the decision within ten days and that the RHC

advise him of the appropriate judicial forum in which

to seek review.

Having received no response to his letter, Flores filed

a motion on October 24. 1985, for reconsideration of the

July 11, 1985, decision or for “issuance of a new com-

mission final agency decision date,” essentially repeating

the arguments made in his letter. The RHC rejected the

arguments relating to lack of notice of the opportunity

for judicial review as meritless, since the right to ju-

dicial review of the RHC’s decision was established by

statute, see D.C. Code § 45-1530 (1981), but nonetheless

granted the motion because the July 11 order had been

sent directly to Flores. rather than to his attorney of

record, in violation of RHC regulations. See 14 DCMR

§§ 3115.1, 3115.2, 3115.4 (1985). Accordingly, the RHC

reissued its July 11, 1985, decision by an order dated

and mailed on November 4, 1985. The new order stated

that the time to seek reconsideration or to petition for

review was to run from November 4, 1985.

she seeks in good faith to recover possession of such

rental unit for his or her immediate and personal use

and occupancy as a dwelling.

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On November 13, 1985. Ms. Powell filed a motion for

reconsideration of the RHC’s decision to reissue its July

11 decision. Two days later, Flores moved for reconsid-

eration of the merits of the July 11 decision. These two

motions tolled the time for filing a petition for review

with this court. See D.C. App. R. 15 (b). The RHC

denied Ms. Powell's motion by order dated November 18,

1985, and mailed the following day. The RHC never ex-

pressly acted on Flores’ motion, however, and therefore

pursuant to its rules, the motion was deemed automati-

cally denied on December 9, 1985, that date being fifteen

business davs after it was filed. See 14 DCMR §§ 3313.1,

3320.5 (1985).' The record does not indicate that writ-

ten notice of the denial was sent to Flores or his attor-

ney, but on January 9, 1986, the RHC issued a Notice of

Hearing on Appeal from the second hearing examiner's

decision of December 17, 1984, advising that a hearing

would be held on February 3, 1986. Flores states in his

brief that upon receipt of the notice his attorney im-

mediately contacted the RHC, was informed that the no-

tice had been erroneously issued and that he could seek

judicial review. He also states that he filed his petition

for review in this court seven days later, on January 17,

414 DCMR § 3313.1 (1985) provides:

In computing any period of time prescribed or allowed

by these rules, only business days shall be counted. Satur-

days, Sundays, and legal holidays are excluded, as is the

day in which the designated period of time begins to run.

14 DCMR § 3320.6 provides:

Failure of the Commission to act within the fifteen (15)

day time period set forth in § 3320.5 shall constitute a

denial ci the motion for reconsideration.

The RHS twice repromulgated these regulations on an

emergency basis in 1985. See 32 D.C. Reg. 4,750 (Aug. 16,

1985) : 32 D.C. Reg. 6,756 (Nov. 22, 1985).

[1925]

6

1986. The RHC filed a motion to dismiss the petition as

untimely, and on March 25, 1987, a motions division of

this court referred the motion to the merits division, di-

recting the perties to consider the effect of Askin v. Dis-

trict of Columbia Rental Hous. Commit, 521 A.2d 669

(D.C. T9871.

I].

At all times relevant to this ease. D.C. App. R. 15 (a)

has required that a party seeking judicial review of an

agency decision must file a petition for review within

thirty davs after notice is given of the agency's decision

or order.” If the decision is made out of the presence of

the parties. the rule grants an additional five days from

the date of mailing of the decision or order. The rule

also provides that the time for filing a petition for re-

view is tolled by filing «a motion for rehearing or recon-

sideration with the agency. D.C. App. R. 15 tb). The

“D.C. App. R. 15 (a) provides in pertinent part:

Petition for review of order; joint petition. Review of

orders and decisions of an agency shall be obtained by

filing with the clerk of this court a petition for review

within thiry days after notice is given, in conformance

with the rules or regulations of the agency, of the order

or decision sought to be reviewed (unless an applicable

statute provides a different time for filing said petition)

and by tendering the prescribed docketing fee to the clerk.

In the event the time prescribed by statute is less than

seven days, intermediate Saturdays, Sundays, and legal!

holidays shall be excluded in the computation unless the

statute expressly provides otherwise. If the order or de-

cision is made out of the presence of the parties and

notice thereof is by mail, the petitioner shall have five

additional davs from the date of mailing... Filing may

be accomplished by mail addressed to the clerk, but filing

shall not be deemed timely unless the petition is received

within the prescribed time period, accompanied by the

appropriate fee....

[1926]

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time for filing a petition begins when the agency gives

notice of the denial of the motion for rehearing or re-

consideration. Jd. This court has held that the time

limits of Rute 15 are mandatory and jurisdictional, and

that ‘‘!o]nce the time prescribed by the rule has passed,

we are without power to hear the case.” Totz v. District

of Columbia Rental Hous. Comm'n, 474 A.2d 827, &29

(D.C. 1984°: see also Glenwood Cemetery v. District of

Columbia Zoning Comm'n, 448 A.2d 241, 242 (D.C.

1982): Convcr v. District of Columbia Bureau of Motor

Vehicle Servs., 442 A.2d 957, 958 (D.C. 1982).

RHC’s regulations require the Commission either to

grant or dery motions for reconsideration within fifteen

days of their receipt. 14 DCMR § 3320.5 (1985). If the

RHC fails to act within the prescribed time limit, the mo-

tion is deemed automatically denied. Jd. $ 3320.6, note 4.

supra. Since Flores’ motion was received by the RHC on

November 15, 1985, it was automatically denied on De-

cember 9, 1985, fifteen business days after its receipt.

See id. $ 3513.1, ncte 4, supra. Even according an addi-

tional five days for mailing under D.C. App. R. 15 (a:."

Flores was required to file his petition for review with

this court by- January 13, 1986, at the latest. However,

this court did not receive his petition until January 17,

1986, and hence it was untimely. ;

In Askin, supra, the court noted, without deciding the

issue, that in cases where the RHC automatically denied

& motion, it might be appropriate to add a mailing period

to the normal time limits of our rules. “The reasoning would

be, perhaps, that it is only after that three-day period in

which no notice granting reconsideration is received that a

party may be confident that there has been a ‘failure of the

Commission to act’ upon the motion, which shall thus ‘consti-

tute’ its denial.” Asin, supra, 521 A.2d at 675 n.15. In its

brief, the RHC also views as appropriate the addition of the

mailing period.

[1927]

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Attempting to avoid the consequences of untimeliness,

Flores maintains that his petition should not be dismissed

for two reasons. First, he argues that his petition for

reconsideration is still pending before the RHC because

the agency has taken no formal action regarding it.

Second, he contends that the erroneous notice of January

9, 1986, created considerable confusion and ambiguity

concerning the status of his motion for reconsideration,

and therefore under Askin, supra, 521 A.2d 669, the

court is required to resolve the ambiguity in his favor.

In Glenwood Cemetery v. District of Columbia Zoning

Comm’n, supra, the court held that under a prior version

of D.C. App. R. 15, which provided in subsection (b!

that the period for filing a petition for review begins on

the date that the party receives “formal notice,” the time

to appeal commences to run on the date formal notice is

received by the parties, and not on the date the order is

effective as a result of publication in the District of Co

lumbia Register. 448 A.2d at 242; see also Johnson v.

District of Columbia Dep’t of Employment Servs., 473

A.2d 398 (D.C. 1984). Askin applied Glenwood Ceme-

tery’s holding to the RHC rule at issue here, holding

that where the agency had issued a formal notice after

the petition had been denied automatically by expiration

of time under the agency’s rules and before the period

to appeal the automatic denial had expired, it was the

formal notice that controlled when time commences to

run under Rule 15 (b). Askin, supra, 521 A.2d at 675.

In that case the formal notice in no way implied that

it was merely a confirmation of a previous automatic

denial. Id. at 674. The court noted that it would re-

solve ambiguity between two orders in favor of the

party seeking review. Jd. at 675. The version of our

Rule 15 (a) that applies in the instant case reads some-

what differently from our prior rule in that it does not

[1928]

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require ‘“forma] notice” and provides only that the notice

must be ‘‘notice in conformance with the rules or regu-

lations of the agency.” This court has not yet had oc-

casion to address whether an agency rule automatically

denying motions for reconsideration by inaction starts

the running of time to appeal under our Rule 15 (a).

The RHC’s regulations concerning automatic denial

of motions for reconsideration make explicit that no for-

mal action is required and that the RHC’s failure to act

upon such a motion within fifteen days shall have the

effect of a denial. Under its regulations, the RHC is

required to act upon a motion for reconsideration within

fifteen days of receipt of the motion. 14 DCMR § 3320.5

(1985). Should the RHC fail to take action, its rules

provide that the motion is to be deemed denied. Id.

$ 3320.6. note 4, supra. Accordingly, even granting

Flores the benefit of the five additional days for mailing,

it should have been clear to Flores’ counsel by December

14, 1985. that the RHC had denied his motion for recon-

sideration and that, therefore, the time for filing a peti-

tion for review in this court had started to run.’

7™In his reply brief, Flores contends that the RHC’s rerula-

tions concerning automatic denial of motions for reconsidera-

tion should be held inapplicable to his case and declared un-

constitutional. In Flores’ view, 14 DCMR § 3320.6 conflicts

with D.C. App. R. 15 (a) because it permits denial of a mo-

tion without “formal notice.” Thus, he contends the RHC’s

regulation is “superseded” by this court’s rule. This argument

_is meritless. Flores misquotes our rule; D.C. App. R. 15 (a)

states only that the time for filing a petition for review begins

to run upon receipt of notice, not “formal notice.” In addition,

the rule specifically states that the time limit for filing a peti-

tion for review begins to run after ‘notice is given[] in con-

formance with the rules or regulations of the agency... .”

Rule 15 therefore requires only compliance with the agency's

procedures regarding notice, and it does not attempt to im-

[1929 |

10

Nor can Flores benefit from the two-order ambiguity

rule of Askin. He argues that he should not be required

to comply with the time limits of D.C. App. R. 15 ‘a!

because the erroneously issued notice of January 9, 1986,

led him to believe that his motion for reconsideration

was still pending before the RHC. However, the RHC

clearly was required by its regulations to act upon

Flores’ motion for reconsideration within fifteen business

days of its receipt. When the agency took no express

action within the prescribed time period, the motion was

automatically denied.* After the expiration of the fifteen

pose anv requirements as to the type of notice an agency is

required to give.

Flores’ argument that § 3320.6 is unconstitutional, because

it was promulgated without due process and procedural safe-

guards, is likewise meritless. The RHC was authorized by

statute to issue implementing regulations. D.C. Code § 15-1515

(a)(1) (1981). It is subject to the notice and comment pro-

cedures of D.C. Code §§ 1-1502 (3) & (4), 1506 (a) (1981),

which include publication of proposed rules in the District of

Columbia Register. See D.C. Code § 1-1582 (b) (1) (1981).

The challenged regulation was dulv published, see 30 D.C.

Reg. 911, 940 (Feb. 25, 1983), and was adopted at a mecting

of the RHC on October 11, 1983, taking effect upon publication

in final form in the District of Columbia Register. Ser 20

D.C. Reg. 6179 (Dec. 2, 1985). Such notice and opportunity

to comment are suflicient to satisfy the demands of due

process. See Williams v. Barry, 228 U.S. App. D.C. 220, 222-

23, 708 F.2d 789, 791-92 (1983).

§ At oral argument, the court sa sponte raised the issue of

whether the notice provisions of D.C. Code § 15-2526 (j) (1986

repl. vol.) were applicable and requested supplemental briefs

from the narties. Havine reviewed those briefs, the court

concludes that the cited provision is inapplicable. The RHC’s

decision from which Flores seeks to anneal was not made under

§ 45-2526, for it was concerned solely with Flores’ eligibility

for the small landlord exemption.

[1930]

11

days, and an additional five days for mailing, the time

for filing a petition with this court began to run. Even

if the RHC had intended to reconsider its prior order,

it is without authority to extend the time limit for seek-

ing review of its decisions in this court. Cf. Smith v.

District of Columbia Rental Accommodations Comm'n,

411 A.2d 612, 614 (D.C. 1980) (intra-agency appeal).

In addition. Flores’ case is not analogous to Askin since

here the RHC never issued a formal order denying re-

consideration: hence the date of the automatic denial

controls our jurisdiction. Under the court’s rules, Flores

was required to file his petition for review no later than

January 13, 1986. He did not do so, and his petition is

therefore untimely.*

Flores was represented by counsel throughout the

administrative preceedings. He missed one opportunity

to file a timely appeal and sought another. The RHC,

acknowledging that it had failed to comply with its

reculations, granted Flores’ request. This occurred not-

withstanding Ms. Powell's contentions that Flores’ re-

quest for a stay of the November 4 order was untimely,

that the RHC did not properly stay its July 11 decision,

and that the RHC had already issued an order of com-

® The dissent rel'cs on decisions that were decided under

the former version of Rule 15, which required “formal notice,”

and, hence, are not of assistance here. See Askin, supra, 521

A.2d at 673 n.9; Gleiwood Cemetery, supra, 448 A.2d at 241.

Jackson v. District of Columbia Employee Compensation

Appeals Bd.. 537 A.2d 576 (D.C. 1988), also involves a Su-

perior Court rule that, unlike our Rule 15(a), requires “for-

ma! notice.” Compare D.C. App. R. 15 (a), quoted supra note

db, with Super. Ct. Avency R. 1 (a). Nor are the rules at issue

misleading, as was contended in Jackson. The complex pro-

cedural history of the instant case arises not from any ambi-

guity relating to the RHC rules but from the failure of Flores’

counsel to follow the rules.

[1931]

prrrramorcecyent Pens ve ve BG

12

pliance and fined Flores on August 27. 1985, for failure

to comply with the RACD’s December, 1984, decision.

At no time has Flores contended either that he did not

receive notice of the RHC’s July 11 decision or that his

counsel was unaware of that decision, of D.C. App. R. 15

(a), or of the agency’s automatic denial rules for motions

for reconsideration. Moreover, given the authority of the

RHC to promulgate rules, counsel cannot avoid the effect

of those rules as a result of ignorance or lack of dili-

gence. See White v. District of Columbia Bad. of Elec-

tions and Ethics, 537 A.2d 1133, 1135-36 (D.C. 1988)

(per curiam) (counsel charged with knowledge of agency

rule concerning timing of election certification). Cf.

Lynch ve. Meridian Hill Studio Apts., Ine., 491 A.2d 515,

518 (D.C. 1985) ‘duty of counsel to be aware of court’s

rules'. Instead, Flores’ counsel has simply been tardy

in following through on his second opportunity to appeal

the RHC’s decision.

Accordingly, the petition for review is dismissed.

Mack, Associate Judge, dissenting: Rule 15 of this

court provides that “[rleview of orders and decisions of

an agency shall be obtained by filing with the clerk of

this court a petition for review within thirty days after

notice is given, in conformance with the rules or regula-

tions of the agency ....” D.C. App. R. 15 (a) (empha-

sis added). The regulations of the Rental Housing Com-

mission provide that a motion for reconsideration is auto-

matically denied if not acted upon within fifteen (15)

days. 14 DCMR § 3320.5 (1985). Today the majority

holds that notice is given upon the “expiration” of a

fifteen (15) day period.

[1932]

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In my view, this holding represents an overly restric-

tive application of our own rule, and a simplistic embrace

of agency language, language that is ambiguous at best.

At the same time, the holding ignores the plain language

of our rule and is totally out of character with the ra-

tionale of our prior decisions favoring ‘formal notice,”

(see Jackson v. Employees’ Compensation Appeals Board,

587 A.2d 576 (D.C. 1988); Askin v. District of Columbia

Rental Housing Commission, 521 A.2d 669 (D.C. 1987) ;

Glenwood Cemetery v District of Columbia Zoning Com-

mission, 448 A.2d 24° D.C. 1982) 1,’ as well as the pre-

cept that it is importai.: that ambiguity be removed from

the notice context. Askin, supra, 521 A.2d at 675.

Without belaboring the point, ‘‘notice” is “‘notice’’; in

the legal sense. it may be “actual,” “constructive,” or

“implied.” I do not think we would argue, nor would it

be desirable for us, jurisdictionally speaking, to suggest

that the notice required by cur rule is other than actual.

Moreover, even if we could accept as a fact that the

regulation in question puts a party on notice and that

this is the notice contemplated by our rule (which it is

not!. the “comp‘ex procedural history’”’ of which the ma-

jority speaks (or more aptly the confusion and ambiguity

in this record! would. and does, present a poor vehicle

for refusing jurisdiction.

There is nothing wrong with automatic denial of mo-

tions as an administrative procedure. However, where

1The majority holding would appear to pose a direct con-

flict with our holding in Jackson. There is no indication, what-

soever, in rulemaking history that the omission of the word

“formal” in the 1985 language was anything but stylistic.

To hold, as does the majority, that our decision earlier this

year (Jackson, supra) and our decision last year (Askin,

supra) are irrelevant, is to say that we intended to make a

substantive change in the rule.

[1933]

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appeal before this court is at issue, our rules should be,

indeed must be, read so as to eliminate ambiguity—not

only for our purposes of administrative ease in fixing

finality, but also to avoid denying to a perty adversely

affected by an agency decision, his day in court. Before

our jurisdictional clock begins to run, notice should be

given. Jackson, supra.

I respectfully dissent.

11934]