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September 12, 1990


Petition for Review of a Decision of the District of Columbia Rental Housing Commission

Ferren and Schwelb, Associate Judges, and Reilly, Senior Judge. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Senior Judge Reilly.

The opinion of the court was delivered by: Schwelb

This case had its inception in a dispute over relatively minor repairs to roofs which also serve as patios, and over the effect of such repairs on rent ceilings. It requires us to delve into the mysteries of agency procedure and the scope of judicial review thereof, the reach of the "private attorney general" doctrine, the perils of retroactivity, and that most familiar chestnut of the connoisseur of Rental Housing Act litigation, the Ungar presumption. *fn1

Intervenor Columbia Plaza Limited Partnership (the landlord) filed a capital improvement petition pursuant to D.C. Code § 45-2520 (1986), requesting that the rent ceiling of four apartments at 2301 E Street, N.W. be increased by $40.10 per unit. The hearing examiner dismissed the petition on technical grounds, but denied the tenants' counter-request for a reduction in the rent ceiling and for penalties and counsel fees. On the tenants' appeal, the District of Columbia Rental Housing Commission affirmed the hearing examiner's ruling.

The tenants now ask this court to review the Commission's order, contending that the denial of relief to them was error. We affirm the Commission's decision with respect to the requested rent reduction and penalties, but remand for further proceedings on the issue of counsel fees.


The landlord's petition was based on a claimed need to waterproof the roof and to rehabilitate the roof deck. In October 1986, during the proceedings before the hearing examiner, counsel for the tenants moved to dismiss the petition upon the ground that it had not been signed. The hearing examiner held the motion in abeyance.

The tenants claimed at the hearing that the repairs on which the requested increase in the rent ceiling was based were in reality for the benefit of commercial tenants and had resulted in a reduction of facilities and services to the tenants' units. *fn2 Specifically, they contended that portions of their apartments had become unusable as a result of the work. At the Conclusion of the hearing, the hearing examiner requested (and eventually received) post-hearing submissions with respect to the affected square footage.

In a decision issued in January 1987, the hearing examiner did not address the post-hearing submissions but dismissed the petition on the ground that the filed copy of it was unsigned. *fn3 He declined to reach the tenants' request for a rent reduction or four penalties, holding that these issues were not properly before him in a proceeding generated by the landlord's capital improvement petition. *fn4 The tenants appealed to the Commission. The landlord did not.

On May 8, 1989, the Commission sustained the decision of the hearing examiner. The Commission also denied the tenants' request for counsel fees. In doing so, the Commission cited its own prior decision in Hampton Courts Tenants' Ass'n v. William C. Smith Co., C120, 176 (RHC July 8, 1988), in which it had held that the presumption that prevailing tenants are entitled to an award of counsel fees on a "private attorney general" theory, see Ungar v. District of Columbia Rental Hous. Comm'n, 535 A.2d 887, 892 (D.C. 1987), does not apply in proceedings initiated by the housing provider. The tenants filed a motion for reconsideration, which the Commission denied on June 1, 1989.


The Commission held in its initial decision that the tenants' request for a reduction of rent was not properly before it in the context of a capital improvement petition filed by the landlord. It explained that

the housing provider is not put on notice of any issues not presented in the capital improvement petition. Since the tenants can easily file a tenant petition with allegations of rent overcharges or, as in this case, reductions in services or facilities, no prejudice attaches to these issues by the failure of the hearing examiner to rule upon them in a capital improvement petition. Additionally, [under the procedure proposed by the tenants] the housing provider cannot allege a violation of the notice requirements of the D.C. Administrative Procedure Act, D.C. Code 1-1509 (1987 Repl. Vol. 2). Accordingly, the Commission finds no error in the hearing examiner's refusal to consider issues relating to reductions in services and facilities.

The agency relied on its prior decision in Epstein v. McCampbell, HP 10,165 (RHC Feb. 12, 1985), in which it had reached the same result where a landlord had filed a hardship petition and the ...

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