Petition for Review of a Decision of the District of Columbia Rental Housing Commission (TP 24,709)
Before Terry and Ruiz, Associate Judges, and Nebeker, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Submitted December 18, 2001
Petitioner seeks review of an order of the Rental Housing Commission ("RHC") dated October 20, 2000, which dismissed petitioner's appeal after he and his counsel failed to appear at a scheduled hearing before the RHC. Before this court petitioner contends that the RHC exceeded its authority under the Rental Housing Act and its regulations when it dismissed the appeal, and that it abused its discretion when it failed to consider a lesser sanction. We affirm.
This case began with a complaint filed with the Housing Regulation Administration by a tenant in one of petitioner's apartment buildings. The tenant's complaint alleged various housing code violations. After a hearing on the merits, the Rent Administrator decided the case in favor of the tenant. Petitioner then noted an appeal to the RHC, raising a number of evidentiary issues and contesting the damages award. The RHC affirmed the decision of the Rent Administrator, but remanded the case to correct an error in the damages computation. The Rent Administrator later issued a new order that modified the rent ceiling calculation used in its original order, but preserved the total award of damages against petitioner.
Petitioner again appealed to the RHC. After a hearing was scheduled, the RHC sent a notice of the hearing date to the parties by certified mail. The notice included the following warning: "The failure of either party to appear at the scheduled time will not preclude the Commission from hearing oral argument of the appearing party and/or disposing of the appeal." The notice also warned, "Failure of an appellant to appear may result in the dismissal of that party's appeal." Despite the notice and the warnings, neither petitioner nor his counsel appeared at the hearing. As a result, the RHC issued an order dismissing the appeal.
After the order was issued, petitioner filed a motion for reconsideration which stated that petitioner's counsel had failed to appear because he had not noted the hearing date on his calendar. The RHC denied the motion, and petitioner filed the instant petition for review.
In general, this court reviews an agency decision only to determine whether it is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See, e.g., Olson v. District of Columbia Dep't of Employment Services, 736 A.2d 1032, 1037 (D.C. 1999). However, "the function of the court in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues. The court can only perform this function when the agency discloses the basis of its order by an articulation with reasonable clarity of its reasons for the decision." Dietrich v. District of Columbia Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972). Petitioner argues that the RHC failed to meet this requirement in this case.
The RHC articulated its authority to dismiss an appeal - not in this case, but in its earlier decision in Tenants of 1755 N Street, N.W. v. N Street Follies Limited Partnership, HP 20,746 (RHC June 21, 2000). In 1755 N Street the RHC responded to a remand from this court in Mullin v. District of Columbia Rental Housing Comm'n, 747 A.2d 135 (D.C. 2000). When the tenants in Mullin failed to comply with the RHC's order to establish an escrow account for the payment of rent, the RHC granted the landlord's motion to dismiss the petition as a sanction for the tenants' failure to comply. On review, this court remanded the case and directed the RHC either to determine its authority to dismiss appeals or, if it found no such authority, to address the claims raised by the tenants on the merits. Id. at 137-138 & n.3. *fn1
Addressing our opinion in Mullin, the RHC ruled that it had the power to dismiss appeals, basing its decision on two independent grounds. 1755 N Street, slip op. at 10-14, 22-25. The principal ground was the RHC's construction of one of its own regulations in tandem with the rules of this court. While no specific provision in Chapter 38 of Title 14 of the District of Columbia Municipal Regulations ("the RHC regulations") explicitly grants authority to the RHC to dismiss an appeal for failure to comply with RHC rules, there is a catch-all regulation that invokes the use of the rules of this court and the rules of the Superior Court when the relevant regulations do not provide guidance on a particular matter. The catch-all provision states:
When these rules are silent on a procedural issue before the Commission, that issue shall be decided by using as guidance the current rules of civil procedure published and followed by the Superior Court of the District of Columbia and the rules of the District of Columbia Court of Appeals. 14 DCMR § 3828.1, 45 D.C. Register 687 (1998).
Although this court has never reviewed section 3828.1 of the RHC regulations, we have looked favorably on the RHC's decision to adopt procedures employed by the courts of the District of Columbia when there is no applicable regulation. See Radwan v. District of Columbia Rental Housing Comm'n, 683 A.2d 478, 480 (D.C. 1996) ("Absent a regulation specifically governing the exercise of the Commission's discretion, it is not unreasonable for the agency to look to factors relied upon by the courts under a similar rule and similar circumstances."). In 1755 N Street, the RHC construed section 3828.1 in light of Radwan as authorizing dismissal, concluding that "the Commission derived its authority to ...