Petition for Review of a Decision of the District of Columbia Rental Housing Commission
Before Terry, Farrell, and King, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: This case involves a landlord's effort to obtain a rent increase through two hardship petitions. The case raises two issues: first, whether the tenants may, in an appeal from the granting of a hardship petition, challenge rent increases obtained under a prior hardship petition that ultimately was withdrawn, and second, how a rent increase granted under a hardship petition should be calculated. We affirm in part, reverse in part, and remand.
The landlord, Mellon Property Management, filed two hardship petitions for rent ceiling increases at an apartment house which it owns at 5912 14th Street, N.W. *fn1 The facts are best summarized by describing the later petition first.
On July 29, 1987, the landlord submitted to the Rent Administrator hardship petition (HP) 20,382, seeking a rent increase of twenty-four percent. On May 16, 1988, HP 20,382 was administratively dismissed without prejudice because of a discrepancy in the application: the landlord had claimed more than $7,000 in interest expenses but did not list any encumbrances in the petition. The landlord filed a motion for reconsideration, which was granted on June 17. *fn2 A few months later an auditor's report concluded that the requested increase was unwarranted. *fn3 After the landlord filed exceptions and objections to the auditor's report, a hearing examiner held a two-day hearing on those objections.
The other hardship petition involved in this case, HP 20,100, was filed by the landlord more than a year earlier. HP 20,100 has a murky history in the record. *fn4 What is clear, however, is that the Rental Housing Commission (RHC) issued a decision and order in HP 20,100 on July 15, 1988. According to that decision and order, which is in the record, the landlord filed HP 20,100 on February 28, 1986, seeking a rent increase of forty-five percent. On June 1, 1986, the landlord conditionally implemented a forty percent increase, but three months later, on September 12, the Rent Administrator reduced the increase to seventeen percent on the ground that the notice to the tenants was defective. After the landlord appealed, the RHC affirmed in part, reversed in part, and remanded the case to the Rent Administrator. On December 7, 1988, the Rental Accommodation and Conversion Division (RACD) of the Department of Consumer and Regulatory Affairs *fn5 granted the landlord's motion to withdraw the hardship petition and dismissed it without prejudice. *fn6
At the close of the hearing on HP 20,382 on March 1, 1989, the tenants moved to dismiss the hardship petition because the rent ceilings submitted in the petition were improper." The hearing examiner initially ruled that the seventeen percent increase authorized under HP 20,100 was no longer valid because, on remand after appeal, the landlord had withdrawn that petition. However, after the landlord filed a motion for reconsideration, which the tenants did not oppose, the hearing examiner rescinded that ruling. He concluded that his invalidation of the rent ceiling increase allowed under HP 20,100 was erroneous because it was beyond the jurisdictional scope of the hearing in HP 20,382, which the examiner said "was limited to the exceptions and objections that were filed to the [auditor's] report," and because the tenants had failed to oppose the landlord's motion to reconsider. The landlord's request for a rent ceiling increase sufficient to provide a twelve percent return on equity was granted. *fn7
The tenants appealed to the RHC, which affirmed the RACD's decision. The tenants then filed the instant petition for review of the RHC's final order. We reverse in part and remand.
We first consider the effect of the landlord's withdrawal of HP 20,100 on the seventeen percent rent ceiling increase granted by the Rent Administrator in that case. The tenants argue that that seventeen percent increase should not be taken into account when calculating the twenty-four percent increase under HP 20,382 because the first increase was nullified when the landlord withdrew HP 20,100 after the matter was remanded to the Rent Administrator by the RHC. The landlord responds with two arguments. First, it contends that the hearing examiner (on reconsideration) and the RHC correctly ruled that the tenants could not raise any issue relating to HP 20,100 -- including a challenge to the seventeen percent rent ceiling increase -- for jurisdictional reasons. Second, the landlord maintains that the withdrawal of HP 20,100 affected only those issues that had been expressly remanded to the Rent Administrator for further proceedings. For these reasons, the landlord says, it is improper for the tenants to "challenge old rent ceilings."
The landlord misses the point. The tenants are not trying to relitigate HP 20,100. Their argument addresses the more fundamental fact that the landlord withdrew not the appeal of HP 20,100, but HP 20,100 itself The tenants correctly conclude (and the hearing examiner, in his initial ruling, correctly concluded) that because the landlord withdrew HP 20,100 while it was pending before the Rent Administrator on remand, the rent ceiling increase authorized in HP 20,100 is a nullity.
The RHC, in the order now before us on review, based its analysis on the assumption that the landlord had withdrawn only the administrative appeal in HP 20,100. This assumption was erroneous. The record makes clear that the landlord withdrew not its appeal in HP 20,100, but the hardship petition itself in its entirety. The decision and order of the RACD dated December 7, 1988, states that counsel for the landlord "filed a motion requesting that her petition be withdrawn" on July 8, 1988, a week before the RHC issued its decision and order in the landlord's appeal. Accordingly, the December 7 order stated that "Hardship Petition # 20,100" -- not merely the appeal in HP 20,100, which by then was over -- "is DISMISSED WITHOUT PREJUDICE." *fn8
Because the landlord withdrew HP 20,100 but then increased the tenants' rent as if the seventeen percent increase it had obtained in HP 20,100 remained valid, the rent ceiling under HP 20,382 must be determined anew. If an initial rent increase is improper (or is rescinded or nullified) and a later increase builds upon the first, the amount of the second increase must be recalculated. Guerra v. District of Columbia Rental Housing Commission, 501 A.2d 786, 791 (D.C. 1985); see Kitchings v. District of Columbia Rental Housing Commission, 588 A.2d 263, 264 (D.C. 1991). We remand this case to the RHC for such ...