Original Opinion Of January 24, 1992,
Before: Rogers, Chief Judge; Ferren, Terry,* Steadman, Schwelb, Farrell, * Wagner, King, and Sullivan, Associate Judges; Belson, * Senior Judge.
The opinion of the court was delivered by: Per Curiam
On consideration of petitioners' petition for rehearing and rehearing en banc, the response and opposition thereto, intervenor's motion for leave to file reply to the response by the respondent, the lodged reply, and the opposition thereto, it is
ORDERED by the merits division* that the petition for rehearing is denied with the exception that the final paragraph of this court's opinion as previously issued on January 24, 1992, is deleted and replaced by the following two paragraphs:
Upon examining the entire record, we have concluded that Issues III, IV, and V, as set forth in petitioners' brief challenging the Commission's order, are groundless under the standard adopted. First, the Commission quite properly rejected petitioners' argument concerning improper allocation of the cost of improvements as "offered no explanation as to what this means and no argumentation" (Issue III). Second, the Commission's refusal to dismiss the petitions for failure of the engineer (an independent contractor) to produce a file pursuant to subpoena to the housing provider was entirely warranted in view of petitioners' failure to object on this ground at the hearing (Issue IV). Third, the Commission was not required to deny the petitions because of asserted defects in notice to a few tenants not shown to be contesting the petitions (Issue V). As to each of these issues, petitioners could not reasonably expect to obtain reversal of the Commission's order.
In light of the supplemental motion for attorney's fees and supporting documentation filed by the housing provider, it shall be awarded attorney's fees in the amount of $1100.
It is FURTHER ORDERED that intervenor's motion for leave to file reply to response is granted and the Clerk is directed to file the lodged reply of intervenor to the response filed by the respondent; and it appearing that the majority of the Judges of this court has voted to deny the petition for rehearing en banc, it is
FURTHER ORDERED that the petition for rehearing en banc is denied.
Statement per Chief Judge ROGERS: I vote to grant the petition for rehearing en banc under Rule 40 (e). Judge Ferren's statement points out the significance of the issue. The District of Columbia's response to the petition for rehearing en banc also indicates the important theoretical and practical implications of adopting the divisions's analytical framework and suggests why a different analysis is preferrable.
Statement per Associate Judge FERREN: I vote to rehear this case en banc: This is a case of exceptional importance. D.C. App. R. 40 (e). A division of this court has awarded statutory attorney's fees to a landlord, not because the tenant's unsuccessful appeal as a whole is frivolous, but because three of eight contentions on appeal are frivolous. Under the circumstances, that is radical stuff! Rehearing en banc is required because the division, in so ruling, has misapplied the Supreme Court authority on which it relies and undermined the purposes of the attorney's fee provision in the District of Columbia Rental Housing Act of 1985. D.C. Code § 45-2592 (1990) (D.C. Law 6-10, § 902).
In this case, the housing provider filed with the Rental Housing Commission "capital improvement petitions for rent ceiling increases in three buildings that form part of a complex known as Columbia Plaza in Northwest Washington, D.C." Tenants of 500 23rd St., N.W. v. District of Columbia Rental Hous. Comm'n, 585 A.2d 1330, 1331 (D.C. 1991) (Tenants I) . A group of tenants -- the petitioners here -- contested these petitions. The tenants prevailed before the Rent Administrator. The Commission reversed and remanded. The tenants prevailed again. The Commission reversed again, ruling "as a matter of law that the housing provider had satisfied the immediate necessity requirement of [D.C. Code] § 45-2520 (g)." Id. The housing provider, as the ultimately prevailing party, asked the Commission to award attorney's fees under D.C. Code § 45-2592. The Commission declined to do so. Tenants of 500 23rd St., N.W. v. District of Columbia Rental Hous. Comm'n, No. 89-AA-1429 (D.C. Jan. 24, 1992) (Tenants II), slip op. at 3 n.6. The tenants then filed a petition for review by this court, presenting eight of the eleven contentions it had argued before the Commission. This court addressed four of them in a substantial published opinion and affirmed. See Tenants I. The housing provider sought attorney's fees in this court under § 45-2592 for successfully defending the appeal. In Tenants II, this court found the four contentions it had not addressed in Tenants I ...