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November 8, 1993


Petition for Review of a Decision of the District of Columbia Department of Human Rights. Original Opinion of March 20, 1992,

EN Banc. Before Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb, Farrell, Wagner, King, and Sullivan, Associate Judges, and Mack, Senior Judge. Opinion for the court filed Per Curiam.* Opinion by Associate Judge Ferren, Concurring in part and Dissenting in part. Opinion by Chief Judge Rogers, with whom Senior Judge Mack joins, Concurring in part and Dissenting in part. Dissenting opinion of Associate Judge Steadman.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: The District of Columbia Human Rights Act, D.C. Code §§ 1-2501 to -2557 (1992) (the Act), "provides alternative avenues of redress -- administrative or judicial" -- for claims of unlawful discrimination. Brown v. Capitol Hill Club, 425 A.2d 1309, 1313 (D.C. 1981). An obvious purpose of the administrative avenue is to afford persons claiming discrimination a less formal and expensive means of obtaining relief than through court proceedings. *fn1 A key component of the administrative process is conciliation or settlement of a complaint under the auspices of the agency administering the Act, at the times relevant here, the District of Columbia Office of Human Rights (OHR). *fn2 The petition for review in this case brings before us a challenge to the facial validity of a rule of procedure adopted by the agency to govern the conciliation process, as well as to its application to petitioner's complaint. We hold that we have jurisdiction to consider petitioner's challenge to the validity of the rule, and sustain the rule as a proper implementation of OHR's statutory mandate; but that we lack "contested case" jurisdiction to review petitioner's claim of erroneous application of the rule to her case. For the reasons stated in this opinion, we dismiss the petition for review.


On December 5, 1986, petitioner filed a complaint with OHR alleging that intervenor William J. Davis, Inc., a real estate management company, had discriminated against her on the basis of family responsibilities (specifically, that she had a two year old child) in denying her application to rent an apartment. See D.C. Code § 1-2515 (a). Pursuant to D.C. Code § 1-2545, OHR investigated the complaint and, after initially finding no probable cause, determined in February 1988 that there was probable cause to believe that intervenor had engaged in unlawful discrimination against petitioner. D.C. Code § 1-2545 (b). OHR immediately endeavored to conciliate the claim, § 1-2546 (a), by asking intervenor in writing whether it was "prepared to pursue conciliation of this matter." Intervenor replied affirmatively and asked for a conference with OHR and petitioner to discuss the case.

On July 12, 1988, the Associate Director of OHR notified petitioner in writing that, during conciliation, intervenor had "offered the following remedy to resolve this matter":

1. Complainant would be considered for and given an apartment at the same rental rate that she would have gotten had she not been discriminated against, provided Complainant updates her rental application and is found to be currently qualified for the apartment. Said rental rate will remain at that rate for at least 24 consecutive months; and

2. Respondent will pay Complainant's Attorney fees, provided Complainant submits an itemized legal statement for services rendered regarding this matter.

The Associate Director explained that OHR had determined that this offer would make petitioner whole and that, if she did not advise the Office by July 22, 1988, as to whether she would accept it, the complaint would be subject to dismissal under § 716.9 of OHR's rules of procedure. *fn3 On July 22, petitioner sent the Associate Director a letter in which she asked twelve questions about the intervenor's offer. On July 29, 1988, the Associate Director replied in writing with answers to each of the twelve questions and asked petitioner to advise him by August 5 whether she would accept the offer. Petitioner responded on August 5 with a letter telling the Associate Director that "there are some of your answers that must be clarified" and posing approximately seven questions.

On August 8, 1988, the Associate Director wrote petitioner explaining:

This will confirm our telephone conversation of August 5, 1988 in which I advised you that:

1. You are given an extension of time, until August 12, 1988, in which to seek advice of counsel regarding whether or not the Office's possible dismissal of your Complaint will bar you "from suing Respondent." You must advise the Office by not later than August 12, 1988 as to whether or not you accept Respondent's offer of settlement in this matter;

2. The Office has reviewed your letter of August 5, 1988 and has determined that the questions contained therein have either already been sufficiently answered by the Office, or do not require response by the Office in order for you to make a decision as to whether or not you will accept Respondent's offer.

Petitioner replied in a letter of August 11, 1988, in which she stated in substance:

I will not be able to make a decision until my questions of August 5, 1988 are answered in writing only, as I have requested. I have made it clear in my letter of July 22, 1988[:] "Before I can consider this offer and/or accept it, there are some questions that I must have answered."

I am sending a copy of the correspondence to you for review and determination on whether or not my questions of August 5, 1988 are legitimate questions for one to ask and warrant answers. I do not believe that my questions of August 5, have been sufficiently answered by your office nor do I believe that they do not require response by your office.

Please provide your reply in writing only, Thank you. [Emphasis in original.]

For reasons unexplained in the record, nothing further transpired in the case for almost a year and a half. On February 6 and again on February 7, 1990, intervenor's counsel wrote OHR requesting that the complaint be "administratively dismissed," pointing to the long delay since the settlement offer had been made and the fact that intervenor no longer managed the property, which had been sold. Nevertheless, on February 26, 1990, intervenor transmitted a new offer of settlement to OHR which differed from the former one only in that the rental rate would now be the current 1990 (rather than 1986) rent level. *fn4 On March 7, 1990, the Director of OHR wrote petitioner setting forth the modified offer and stating:

We are making one last attempt to resolve this matter prior to exercising the Department's option under Section 716.9 of our Rules. Thus, if you do not advise the Office by the close of business March 19, 1990 as to whether you will accept Respondent's offer as was outlined in our July 12, 1988 letter and as subsequently conditioned with regard to current rental rates, your Complaint will be subject to DISMISSAL.

Petitioner replied in a letter of March 19, 1990, in which she insisted that the Office's letter of March 7 "does not even attempt to address my concerns expressed in petitioner's August 11, 1988 letter, and asking why the Office had "changed its position again in favor of" intervenor's modified offer. Petitioner's letter asserted that she was "being railroaded into this settlement agreement by your office and ," and asked: "What are your reason for finding this last stated offer in your letter of March 7, 1990, indeed, a suitable make whole offered remedy for my acceptance." On March 22, 1990, the Director informed petitioner in writing that the case was being "administratively closed" pursuant to § 716.9 of OHR's rules of procedure because of her failure to advise the Office of her acceptance of the settlement offer by March 19, 1990. *fn5


A brief summary of the relevant statutory and regulatory provisions is necessary to understand the issues presented, including OHR's threshold objection to our jurisdiction. As we stated at the outset, a person believing herself the victim of unlawful discrimination may, under the Act, elect initially to sue in court or to file an administrative complaint with OHR. See D.C. Code §§ 1-2544 (a), -2556 (a). If she elects the second route, OHR commences an investigation. Provided the complaint is not withdrawn voluntarily before the investigation is completed and findings are made concerning jurisdiction and probable cause, § 1-2544 (b), the investigation leads to a determination by OHR (assuming jurisdiction is found) either that there is probable cause to believe the respondent has engaged in unlawful discrimination or that there is no probable cause, in which case the complaint is dismissed. § 1-2545 (b), (c).

Efforts to resolve the complaint by conciliation may begin as soon as it is filed. Section 1-2546 (a) provides that "if, in the judgment of the Office, the circumstances so warrant, it may, at any time after the filing of the complaint, endeavor to eliminate such unlawful discriminatory practice by conference, conciliation, or persuasion." The terms of a conciliation agreement may include prohibitory relief and "such affirmative action as, in the judgment of the Office, will effectuate the purposes of this chapter . . . ." § 1-2546 (b). And, "upon agreement of all parties to a complaint . . . a conciliation agreement shall be deemed an order of the Commission, and shall be enforceable as such." § 1-2546 (c). The Act further provides, however, that "in case of failure of conciliation efforts, or in advance of conciliation efforts, as determined by the Office, and after a finding of probable cause, the Office shall cause to be issued and served in the name of the Commission, a written notice . . . requiring the respondent to answer the charges of complaint at a public hearing before 1 or more members of the Commission or before a hearing examiner . . . ." § 1-2550. In that event, a hearing tribunal of the Commission "shall be appointed to make a determination upon such complaint." § 1-2551 (a).

Pursuant to authority delegated by the Act, § 1-2541 (c), OHR has adopted rules of procedure governing the conciliation process (see note 3, (supra) ) and specifically construing the phrase "in case of failure of conciliation efforts" in D.C. Code § 1-2550. Section 716.11 of the rules provides that "conciliation shall be deemed to have failed if during the thirty (30) day conciliation period respondent refuses to participate in conciliation or if respondent's offer of a remedy is such that it will not make complainant whole and complainant refuses to accept such an offer." By contrast, § 716.9 of the rules provides as follows:

If during conciliation efforts, respondent offers a remedy that would place complainant in the same position that complainant would have been in had the alleged discriminatory practice not occurred, and complainant refuses to accept such offer, and if the Director determines that such offered remedy would make complainant whole, the Director may order the complaint dismissed. [Emphasis added.]

Of final importance to our Discussion is § 1-2556 (a), dealing with election of remedies. It provides in part:

Any person claiming to he aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate, unless such person has filed a complaint hereunder: Provided, that where the Office has dismissed such complaint on the grounds of administrative convenience, or where the complainant has withdrawn a complaint, such person shall maintain all rights to bring suit as if no complaint had been filed.


We consider first the objection by OHR to this court's jurisdiction to hear the petition for review. The District of Columbia Administrative Procedure Act (DCAPA) confers the right to judicial review of agency action by this court upon "any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case . . . ." D.C. Code § 1-1510 (a). *fn6 A "contested case" is defined by the DCAPA as "a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law . . . or by constitutional right, to be determined after a hearing before the Mayor or before an agency . . . ." D.C. Code § 1-1502 (8). "The principal manifestation of a 'contested case' is its character as a quasi-judicial process based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding." Citizens Ass'n of Georgetown v. Washington, 291 A.2d 699, 702 (D.C. 1972). This "quasi-judicial process" consists of a "trial-type" hearing, Chevy Chase Citizens Ass'n v. District of Columbia Council, 327 A.2d 310, 314 (D.C. 1974) (en banc), which is "statutorily or constitutionally compelled . . . ." W.C. & A.N. Miller Dev. Co. v. District of Columbia Zoning Comm'n, 340 A.2d 420, 422 (D.C. 1975). To establish direct review jurisdiction in this court, therefore, "a petitioner must overcome two obstacles":

the first obstacle . . . is that an administrative hearing must be either statutorily or constitutionally compelled; the second, that such a hearing must be adjudicatory as opposed to legislative in nature.

Donnelly Assoc. v. District of Columbia Historic Preservation Review Bd., 520 A.2d 270, 276 (D.C. 1987) (quoting Miller Dev. Co., 340 A.2d at 422).

Neither the parties nor intervenor disputes that the hearing prescribed before a tribunal of the Commission on Human Rights is a "trial-type" hearing "based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding." Citizens Ass'n of Georgetown, 291 A.2d at 703. On the other hand, no one contends that OHR's antecedent determination whether or not there has been a "failure of conciliation efforts," § 1-2550, is made following a trial-type evidentiary hearing. For this reason, OHR asserts that its determination that conciliation had not failed in this case --because petitioner refused to accept a settlement offer that would have made her whole -- does not create a contested case. But the issue is considerably more complex than that.

Petitioner's principal line of attack is that, under the Act, she was entitled to a formal hearing before the Commission once probable cause had been found and there had been a "failure of conciliation efforts" for any reason at all. Her contention is that the agency's dismissal under § 716.9 of its rules was unauthorized and that she was denied a hearing compelled by the statute in the circumstances. Ordinarily, this court has jurisdiction not only when a contested case (trial-type) hearing has taken place, but also when a party has made an effort to obtain such a hearing which the agency erroneously denied." Auger v. District of Columbia Bd. of Appeals & Review, 477 A.2d 196, 206 (D.C. 1984). That is, we have authority to order a contested case hearing, or at least to preserve the right to such a hearing, when an agency erroneously withholds that right. Cf. Capitol Hill Hosp. v. District of Columbia State Health Planning & Dev. Agency, 600 A.2d 793, 799 (D C 1991); Dillard v. Yeldell, 334 A.2d 578, 579 (D.C. 1975). Of course, it is not enough for the petitioner merely to assert the right to a contested case hearing to confer jurisdiction on this court. If analysis reveals that a party is not entitled to a contested case hearing after all, we must dismiss the appeal of the agency's order for lack of jurisdiction. See, e.g., Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., 549 A.2d 315 (D.C. 1988); Dupont Circle Citizen's Ass'n v. District of Columbia Zoning Comm'n, 343 A.2d 296 (D.C. 1975) (en banc) (citing Chevy Chase Citizens Ass'n, supra). Critically, however, on the way to -- that is, in aid of -- deciding whether a party has had, or is entitled to, a contested case hearing, and thus deciding whether we have jurisdiction, our decisions have had to resolve one or more legal issues definitively; we have made legal rulings with preclusive effect both in the case at hand and for future cases. See Jones & Artis, 549 A.2d at 317-18, 327. *fn7 In short, we have exercised jurisdiction to determine whether we have jurisdiction, and we have made all rulings necessary to that determination. E.g., note 7, (supra) . As a consequence, once the analysis confirmed that the petitioner had not either received or been entitled to a contested case hearing, we have "dismissed" for lack of jurisdiction rather than "affirmed," even when definitively deciding various legal issues in the process. See id.

Such merits rulings on issues inherent in a jurisdictional analysis are justified because courts, at the very least, "always have jurisdiction to determine their jurisdiction." IlanGat Engineers, Ltd. Antigua Int'l Bank, 212 U.S. App. D.C. 188, 193, 659 F.2d 234, 39 (1981); see Jones & Artis, supra, 549 A.2d at 318. Indeed, every court has judicial power "to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction." 21 C.J.S. § 88 at 104-05 (citing Stoll v. Gottlieb, 305 U.S. 165, 171-77, 83 L. Ed. 104, 59 S. Ct. 134 (1938)). Accordingly, in some situations "the jurisdiction of the court to hear the case may depend . . . upon the decision which it ultimately reaches on the merits." Larson v. Domestic & Foreign Corp., 337 U.S. 682, 690, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949) (citing Land v. Dollar, 330 U.S. 731, 739, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947)); *fn8 see Jones & Artis, supra, 549 A.2d at 318. The jurisdictional and merits issues, on occasion, may turn out to be coextensive.

Applying these principles, we conclude that this court has jurisdiction to consider petitioner's contention that promulgation of § 716.9 by OHR contravenes the authority delegated to OHR by the governing statute. If petitioner is correct in her contention, then OHR lacked authority to deny her a trial-type hearing before the Human Rights Commission once probable cause was found. In deciding whether petitioner was erroneously denied that bearing, we appropriately exercise the jurisdiction necessary to decide whether a contested case hearing was improperly withheld. On the other hand, for reasons to be discussed in part V, (infra), we conclude that we lack jurisdiction to review directly petitioner's challenge to OHR's application of § 716.9 to her case.


Petitioner contends primarily that OHR lacked authority to condition her right to a post-probable cause hearing by the Commission upon a determination that intervenor had failed to offer her a remedy in conciliation that would have made her whole. Petitioner argues that OHR's rule in question -- § 716.9 -- runs athwart an asserted clear statutory intent to make a hearing mandatory once probable cause has been found and (as in this case) there has been a "failure of conciliation efforts," § 1-2550, for any reason whatsoever. Petitioner points to § 1-2546 (c), which provides that "upon agreement of all parties to a complaint . . . a conciliation agreement shall be deemed an order of the Commission" (emphasis added); this language is said to make clear that if either party to a complaint rejects conciliation, then conciliation efforts have "failed" under § 1-2550, and the complaint (probable cause having been found) must proceed to the Commission stage. We are not at all persuaded that petitioner's is the only permissible reading of the statutory phrase "failure of conciliation efforts."

It is now familiar law that,

when a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (footnotes omitted). See Good Samaritan Hosp. v. Shalala, 124 L. Ed. 2d 368, 113 S. Ct. 2151, 2159 (1993). This court employs the same analysis. See, e.g., Schlank v. Williams, 572 A.2d 101, 107 (D.C. 1990); Superior Beverage, Inc. v. District of Columbia Alcoholic Beverages Control Bd., 567 A.2d 1319 (D.C. 1989); Smith v. Department of Employment Servs., 548 A.2d 95, 97 (D.C. 1988).

We regard the statutory phrase "failure of conciliation efforts" as ambiguous. At least two reasonable interpretations of the phrase come to mind. One, which in effect looks only at the action of the complainant, would hold that if the complainant rejects a particular settlement offer for any reason or refuses to engage in conciliation from the outset, insisting instead upon a hearing before the Commission once probable cause has been found, then conciliation efforts have failed and a hearing must take place. The other interpretation -- the one adopted by OHR -- assumes a willingness of the complainant to conciliate and holds that conciliation has failed (assuming OHR has determined such efforts to be warranted) only if the respondent either has refused to take part in conciliation or has offered a settlement that will not in fact remedy the alleged discrimination, and the complainant rejects it. Whether OHR's interpretation is the only or even the most reasonable construction of the words is beside the point. Chevron, 467 U.S. at 843 n.11; Smith, supra. *fn9 This court cannot say it is an unreasonable reading of the Act.

First, it is obvious that strong policies favoring compliance and settlement underlie the Act, which permits OHR, " at any time after the filing of the complaint" (emphasis added), i.e., before or after probable cause has been found, to "endeavor to eliminate such unlawful discriminatory practice by conference, conciliation, or persuasion" if "in the judgment of the Office" the circumstances so warrant. § 1-2546 (a). Similarly, § 1-2550 may plausibly be read to commit to OHR's judgment ("as determined by the Office") the twin determinations whether conciliation efforts are unwarranted to begin with or such efforts have failed. This broad statutory grant of authority would be undermined (or so the agency could reasonably maintain) by leaving with the complainant the unilateral decision whether to accept a make whole offer that in fact would undo the discrimination and its effects. *fn10 By the same token, adopting petitioner's interpretation would require the investigative and prosecutorial resources of OHR, which we may assume to be limited in a time of notorious government austerity, to be used to pursue a complaint through the formal adjudicatory stage even though a settlement offer has been made that would unarguably remedy the discrimination. See § 1-2552 (h) (providing that at a hearing before the Commission "the case in support of the complaint shall be presented by an agent or attorney of the Office " (emphasis added)).

Furthermore, the reasonableness of OHR's interpretation is confirmed when one considers the avenues of redress left open to the complainant both before and after a complaint is dismissed for refusal to accept a make whole offer. We observed at the outset that the Act provides alternative avenues of redress for alleged discrimination, quoting Brown v. Capitol Hill Club, supra. Thus a person claiming injury through unlawful discrimination has total control initially over whether to seek relief in court or administratively. D.C. Code § 1-2556 (a). Only when the latter course has been chosen has the person "elected" her remedy and is recourse to the trial court barred. Id.; see Brown, 425 A.2d at 1312. Even then, however, the Act provides that "where the Office has dismissed complaint on the grounds of administrative convenience, . . . such person shall maintain all rights to bring suit as if no complaint had been filed." § 1-2556 (a) (emphasis added). *fn11 OHR concedes in this litigation that a dismissal under § 716.9 of its rules is a dismissal "on the grounds of administrative convenience." That concession is unavoidable, for otherwise the Office would have no statutory authority to dismiss the complaint. See D.C. Code §§ 1-2545 (c), -2556 (a) (specifying grounds on which OHR may dismiss complaint). In Honig v. District of Columbia Office of Human Rights, 388 A.2d 887 (D.C. 1978), a division of this court recognized that dismissal on the ground of "administrative convenience" "plainly envisages the authority to exercise prosecutorial discretion." Id. at 888. We agree with that analysis, and we regard a decision by OHR not to commit scarce prosecutorial resources to a trial-type hearing before the Commission, when in its judgment the complainant can be made whole informally, as a classic exercise of prosecutorial discretion. *fn12 Thus, a person whose complaint has been dismissed on grounds of administrative convenience retains the right "to bring suit as if no complaint had been filed." Moreover, as our holding in part V, (infra), makes clear, the complainant desiring to persist with administrative resolution of her complaint retains the right to petition the Superior Court for review of OHR's grounds for denial of a hearing by the Commission.


We turn then to petitioner's challenge to the application of OHR's make whole rule to her case -- specifically, her contention that the agency erroneously concluded that intervenor had made her an adequate (a genuine "make whole") offer which she had rejected. OHR renews its jurisdictional argument, contending that we lack contested case jurisdiction to review application of the rule to individual cases. Here we conclude that OHR is on sound footing. In analyzing whether petitioner had an unqualified statutory right to a hearing once probable cause was found, we perforce have had to exercise our jurisdiction. See part III, (supra) . The outcome of that analysis has been our Conclusion that a dismissal under § 716.9 is authorized by D.C. Code § 1-2556 (a) as a dismissal "on the grounds of administrative convenience." The fact, however, that this dismissal leaves the complainant with "all rights to bring suit as if no complaint had been filed," id., calls squarely into question our authority to review directly -- that is, on contested case review -- the application of § 716.9 in any particular case. The reason is that the DCAPA, specifically D.C. Code § 1-1502 (8), expressly excludes from the definition of a contested case "any matter subject to a subsequent trial of the law and the facts de novo in any court." This exclusion is unqualified; it does not, for example, deny this court jurisdiction only when a trial de novo is the "exclusive" remedy for asserted improper agency action --as though it were inoperative where direct review by this court could somehow otherwise be established as an available option. Section 1-1502 (8) has the unmistakable effect that some agency action -- including dismissal under § 1-2556 (a) -- is unreviewable directly by this court even though it may erroneously deprive the complainant of a trial-type administrative hearing. *fn13

The result of this jurisdictional bar is not to deny petitioner any judicial review of OHR's action; instead it is to deprive her of such review by this court in the first instance. In Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392 (D.C. 1991), a division held that a complainant may seek review in Superior Court of OHR's dismissal of a discrimination complaint for lack of probable cause. We conclude that the same remedy is available here. A complainant suffering a dismissal on grounds of administrative convenience may file an original complaint in Superior Court, or else she may seek review in that court of the propriety of OHR's dismissal; and if the ...

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