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01/09/92 NELSON RAMOS v. DISTRICT COLUMBIA

January 9, 1992

NELSON RAMOS, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, RESPONDENT



On Petition for Review from the District of Columbia Department of Consumer and Regulatory Affairs.

Before Rogers, Chief Judge, and Ferren and Steadman, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: Petitioner, a merchant who prevailed as respondent in an administrative action brought by the Department of Consumer and Regulatory Affairs (DCRA), claims the administrative law Judge (ALJ) erred as a matter of law when she denied his motion for attorney's fees and punitive damages because she concluded that she did not have authority to impose such a remedy. We agree with the ALJ. The DCRA enabling statute does not authorize ALJ's to grant attorney's fees or punitive damages in favor of DCRA respondents, and ALJ's have no inherent authority to authorize such relief. We therefore affirm.

I.

Petitioner (the merchant) is a shoe and leather goods repairman and the owner of Corrective Shoe Repair. DCRA, acting on behalf of a disgruntled customer (the complainant), filed an eight count claim against the merchant alleging unlawful trade practices in violation of the Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq. (1991) (CPPA). The ALJ dismissed the complaint with prejudice after concluding that the claim was baseless and that complainant had willfully disobeyed the ALJ's order to refrain from communicating with the merchant's witnesses. Both because of the complainant's behavior and because of the ALJ's dissatisfaction with DCRA's investigation and handling of complainant's allegations, the ALJ invited the merchant to submit a motion "for further relief." In her Decision and Order Re Costs, however, the ALJ denied the merchant's motion for attorney's fees and punitive damages and concluded that "the only relief the empowers the Administrative Law Judge to order on behalf of the innocent is the dismissal of the case with prejudice." *fn1

II.

"The Consumer Protection Procedures Act is a comprehensive statute designed to provide procedures and remedies for a broad spectrum of practices which injure consumers." Atwater v. Dept. of Consumer and Regulatory Affairs, 566 A.2d 462, 465 (D.C. 1989). "The legislative history of the Act reinforces the straightforward reading of the statute itself as a measure designed to provide procedures and sanctions for violations of consumer protection statutes generally." Id. at 466. The statute, at D.C Code § 28-3903 (a) (13), authorizes DCRA to "provide full remedy for [trade practice] violations by:

(A) damages in contract, and orders for restitution, rescission, reformation, repair, and replacement,

(B) stipulations, conditions, and directives, both temporary and permanent, of all kinds,

(C) enforcement of orders and decrees, collection of civil penalties, and other activities, in the courts,

(D) and other lawful methods . . . ."

The DCRA's Office of Adjudication and its ALJs "may use any power granted to in section 28-3903," including the powers to provide the remedies listed above, but may not dispose of any case "in a manner not expressly authorized in this section." Id. at § 28-3905 (l). Of relevance here, the Office of Adjudication may order remedies against the merchant, "including punitive damages, treble damages, or reasonable attorney's fees, as are reasonable and necessary to identify, correct, or prevent the conduct which violated District law." Id. at § 28-3905 (g) (5). *fn2 But the CPPA does not expressly authorize an ALJ to grant attorney's fees or punitive damages in favor of a respondent-merchant.

In addition to enacting the comprehensive and explicit statutory language both granting and restricting the ALJ's remedy powers *fn3 -- which do not include an express power to award merchants attorney's fees or punitive damages -- the Council of the District of Columbia has authorized the Superior Court, not an ALJ, to award attorney's fees to merchants under the CPPA in specified situations not involved in this case. Section 28-3905 (i) (3) (B) allows the respondent-merchant, as well as the consumer-complainant and the DCRA, to bring a cause of action in the Superior Court "for a remedy, enforcement, or assessment or collection of a civil penalty, when any violation, or failure to adhere to a provision of a consent decree [between the parties], or an order has occurred." The Superior Court "shall levy the appropriate civil penalties, and may order, if supported by evidence, . . . damages, treble damages, reasonable attorney's fees, consumer redress, or other remedy." Id. The District Council, therefore, has addressed the question of attorney's fees and extra damages for respondent-merchants and has expressly authorized them only in connection with a Superior Court adjudication under the CPPA, not as part of an administrative adjudication.

By expressly providing that ALJs may award punitive damages and attorney's fees against merchants for trade practices violating District law, D.C. Code § 28-3905 (g) (5), and by further expressly providing that the Superior Court may award treble damages and attorney's fees to merchants in other circumstances, id. § 28-3905 (i) (3) (B), the Council indicated it knew how to authorize and withhold damages and fees for merchants depending on the situation. The Council made even clearer its intention not to permit such fees and damages in unspecified situations by providing that "no case may be disposed of in a manner not expressly authorized in . . . section" 28-3905. We accordingly conclude that the Council left no room for awards of attorney's fees and punitive damages to merchants in unprescribed circumstances. The enabling statute is clear and unambiguous: there is no statutory authority granting ALJs the power to award a victorious merchant any relief beyond dismissal of the consumer's complaint. See, e.g., Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) ...


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