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Kamerow v. District of Columbia Rental Housing Commission

February 2, 2006


The opinion of the court was delivered by: Reid, Associate Judge

On Petition for Review of Decisions of the District of Columbia Rental Housing Commission (TP 24470 and 24471).

Argued January 12, 2006

Before SCHWELB, REID and GLICKMAN, Associate Judges.

This case arises out of tenant petitions filed with the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") by intervenors Flora Baccous and Donzello Crank in 1998, alleging, inter alia, that their housing providers, including petitioner William A. Kamerow, charged rent above the last registered rent ceiling. A DCRA hearing examiner found in their favor. On September 17, 2004, after additional agency proceedings, the District of Columbia Rental Housing Commission ("the RHC") determined that William A. Kamerow's appeal of DCRA's final decision was untimely and dismissed his appeal. Mr. Kamerow filed a petition for review with this court. The RHC contends that this court lacks jurisdiction to review Mr. Kamerow's petition on its merits. We agree and affirm the agency's September 17, 2004, decision and order.


The record before us shows that a hearing examiner in DCRA's Office of Adjudication determined in October 2001, that Mr. Kamerow, owner of a small condominium housing accommodation, located at 1211 Holbrook Terrace, in the Northeast quadrant of the District of Columbia, failed to register his property, and charged rent in excess of the lawful rent ceiling. Hence he was liable to the intervenors for damages, including treble damages based on bad faith.*fn1 Mr. Kamerow appealed to the RHC. The RHC issued a decision in September 2002, "den[ying] the issues that the housing provider raised on appeal," vacated the treble damages award and remanded "the decision for findings of fact that support the hearing examiner's decision to award treble damages," and imposed a fine of $500.00 for failure to register the housing accommodation. Mr. Kamerow filed a petition for review in this court on October 31, 2002. However, his petition was dismissed on December 10, 2002, "for lack of jurisdiction as having been taken from a non-final order."

In response to the RHC's 2002 remand decision, the hearing examiner made findings of fact in support of the award of treble damages, and issued his findings on April 9, 2004. Mr. Kamerow appealed to the RHC. However, the RHC dismissed Mr. Kamerow's appeal on the ground that it was untimely, noted that it had "affirmed the underlying judgment against the housing providers" in its September 2002 decision, and ordered Mr. Kamerow to "pay rent refunds to [the intervenors] in accordance with the hearing examiner's decision and order issued on October 12, 2001," as well as the $500.00 fine imposed on Mr. Kamerow in its 2002 decision and order. The section on appeal rights, set forth in the April 9, 2004 decision of the hearing examiner, stated that the appeal had to be filed on or before April 28, 2004. RHC regulations specified that its offices were required to be open from 8:30 a.m. to 4:30 p.m., except on Saturdays, Sundays and legal holidays. Mr. Kamerow sought to file his appeal after 4:30 on April 28th. In its order dismissing his appeal, the RHC determined that when he found the doors locked, Mr. Kamerow "stood visibly and persistently at the locked door." Upon advice from one of the RHC commissioners, a staff member opened the door, advised Mr. Kamerow that the office was closed but, in accordance with RHC's regulations, "date-stamped the notice of appeal at 4:49 p.m." The RHC determined that it lacked jurisdiction to hear Mr. Kamerow's appeal because he "did not file [it] within the required time period." See 14 DCMR § 3800.2 (2004).


The RHC maintains that Mr. Kamerow's appeal was untimely because he failed to meet the 4:30 p.m. deadline on April 28, 2004, for the filing of his appeal. Mr. Kamerow argues that his notice of appeal was due on April 28, 2004, that "[t]here is no statutory limitation" and "no after-hours filing system." He asserts that he followed the practice of calling the RHC to ascertain whether a late filing could be made and "staff advised that they would be present to accept a notice of appeal until 5:00 p.m." Intervenors contend that the RHC reasonably interpreted its regulations, and that "one who chooses to file a brief after ordinary business hours runs the risk that the filing will be rejected."

Mr. Kamerow urges us to reach the merits of the issues he has presented for review, but jurisdiction is a threshold issue, and if we have no subject matter jurisdiction, we "should so hold and dismiss the proceeding, without attempting to resolve the substantive questions presented." Tenants of 1255 New Hampshire Ave., N.W. v. District of Columbia Rental Hous. Comm'n, 647 A.2d 70, 75 n.5 (D.C. 1994) (citations omitted). We have jurisdiction to review the RHC's jurisdictional decision and order, dismissing Mr. Kamerow's "notice of appeal" as untimely filed, because it was filed within the thirty-day deadline of this court's rules governing petitions for review of agency orders, see D.C. App. R. 15 (a)(2). However, if we uphold the RHC's jurisdictional decision and order, as we do, we have no jurisdiction to review either the RHC's order of September 26, 2002, or its order of September 17, 2004, on the merits.*fn2

We have previously held that the RHC has the authority to dismiss appeals. See Mullin v. District of Columbia Rental Hous. Comm'n, 844 A.2d 1138, 1141 (D.C. 2004) ("the RHC ha[s] inherent authority to dismiss [an] appeal [for] failure to comply with an order of the Commission"); see also Stancil v. District of Columbia Rental Hous. Comm'n, 806 A.2d 622, 625 (D.C. 2002) ("no flaw in the RHC's reasoning" "that it possessed an inherent power to dismiss an appeal as part of its general power to hear and dispose of motions").

The question we now confront is whether the RHC's interpretation of its regulations relating to filing of pleadings, particularly the rule specifying its official business hours, was unreasonable or arbitrary. Under the applicable standard of review, "[a]lthough we are vested with the final authority on issues of statutory construction, we must defer to an agency's interpretation of the statute [and implementing regulations] which it administers . . . so long as that interpretation is reasonable and consistent with the statutory [or regulatory] language." Mullin, supra, 844 A.2d at 1141 (citing Franklin v. District of Columbia Dep't of Employment Servs., 709 A.2d 1175, 1176 (D.C. 1998) (quoting District of Columbia v. Davis, 685 A.2d 389, 393 (D.C. 1996) (internal quotation marks and other citations omitted)).

As the RHC recognized in its dismissal order, we have declared previously that "[t]he time limits for filing appeals with administrative adjudicative agencies, as with courts, are mandatory and jurisdictional matters." Zollicoffer v. District of Columbia Pub. Schs., 735 A.2d 944, 945-46 (D.C. 1999) (citation and internal quotation marks omitted). "A failure to file a notice of appeal within the required time period divests the agency of jurisdiction to consider the appeal." 946 (citation and internal quotation marks omitted). In its general regulatory provisions the RHC specifies that "[t]he office of the Commission shall be open daily from 8:30 a.m. to 4:30 p.m., except Saturdays, Sundays, and legal holidays."

14 DCMR § 3800.2. Pleadings must be filed "in person" or "by mail." See 14 DCMR § 3801.1 ("All pleadings and other documents to be filed with the Commission shall be filed by delivering [them] in person to the Commission staff . . . , or by mail . . . , unless otherwise directed."). Section 3801.2 of 14 DCMR explicitly states that "[n]o pleading or other documents shall be deemed filed until actually received at the Commission's office and compliance with time requirements shall be calculated from the date of actual receipt." Regardless of whether a pleading is timely or not, 14 DCMR § 3801.3 provides in full: "All pleadings and other documents filed with the Commission shall be promptly date-stamped by the Commission staff and entered into the Commission's daily log." And, 14 DCMR § 3801.6 makes clear that acceptance of a late document for filing is not a waiver of the RHC's rules: "The receipt of a pleading or other document which is not timely . . . shall not constitute a waiver of the requirements of this title; and any such pleading or document may be rejected by the Commission." Not only do the RHC's statute and rules inform the parties that an appeal must be ...

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