David B. GATEWOOD, Petitioner,
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Respondent.
Argued April 11, 2013.
[Copyrighted Material Omitted]
Michael Joseph, Washington, DC, for petitioner.
Emil Hirsch, with whom Steven A. Pozefsky, Washington, DC, was on the brief, for respondent.
Before FISHER and OBERLY, Associate Judges, and FERREN, Senior Judge.
FERREN, Senior Judge:
This matter comes before the court on David B. Gatewood's petition for review of a decision by the District of Columbia Water and Sewer Authority (D.C. Water), rejecting his challenge to a water bill. Gatewood argues that D.C. Water erred by failing to credit his unrebutted testimony that the utility charged him for water he did not use. In response the utility argues, initially, that this court lacks jurisdiction to consider Gatewood's petition for review because Gatewood admittedly failed to comply with the deadline for filing a petition for review established by 21 DCMR § 412.2 (1999), and thus failed to invoke the utility's own jurisdiction to hear his cause. If that argument lacks merit, D.C. Water contends that Gatewood failed to carry his burden to prove that his bill was erroneous.
We conclude that this court has jurisdiction to hear Gatewood's petition because § 412.2 is merely a claim-processing rule, which the agency waived by consenting to a hearing on the merits before a D.C. Water hearing officer. We further conclude that the hearing officer erred in failing to credit Gatewood with presenting a prima facie case that the excessive use of water transmitted by the meter on his property to a " data control unit" at D.C. Water was not attributable to him. We therefore reverse and remand the case for the hearing officer to determine the extent to which D.C. Water rebutted Gatewood's showing, and thus to determine how the matter should be finally resolved.
This case centers on a water bill showing excessive use at Gatewood's property during a single billing period in March 2010. Gatewood purchased the property, located at 137 36th Street, N.E., in 2006 intending to rent out each of its four separate units. The property was vacant when he purchased it and has remained so ever since. Previous water charges had been nominal, reflecting no use, but on March
19, 2010, D.C. Water mailed Gatewood a bill for $6,125.62. This bill reflected water use from February 1 to March 16, 2010, indicating that the property had drawn 683,672 gallons of water during a single forty-four day span.
Gatewood had been out of town when the bill arrived but contacted D.C. Water by phone the following month. According to Gatewood's recollection of that phone conversation, a D.C. Water representative informed him that his bill would be investigated. Then, after receiving a letter from D.C. Water demanding payment for the unpaid balance, he contacted the utility again in May 2011. At that time, the utility informed him that it considered his bill valid and due. The utility reiterated this position in another letter dated August 26, 2011.
Gatewood retained pro bono counsel and petitioned the utility for a formal administrative hearing to challenge the bill. This petition, however, was untimely. D.C. Water's regulations require customers to request a formal administrative hearing within fifteen calendar days of the agency's written notice of ... [t]he results of the investigation of the customer's challenge.  Gatewood's petition, dated October 25, came almost two months after he received the August 26 letter. Despite Gatewood's procedural stumble, on January 31, 2012, the utility proceeded to a formal hearing. There, Gatewood testified that, to the best of his knowledge, there had been no water use on the property, as he had never turned on the valves that supply water there. He added that ever since he purchased the property, it had been boarded-up and padlocked. He further testified that only he and his brother had keys, and that one of them checked the property each week. He also testified that he had never noticed any sign of a break-in, and that after checking around outside the property he had seen " no sign of water." He added that he had never personally repaired any leak, nor had anyone else repaired a leak on his behalf.
Eileen Wright, a customer care associate with D.C. Water, also testified at the hearing. She took the position that Gatewood's bill was per se valid because he had failed to make a timely challenge to the charges. She apparently was relying on agency regulations that require a customer either to pay the bill under protest or to withhold payment and notify the utility in writing within ten working days after receipt of the bill, explaining why the bill is believed to be incorrect. If the customer fails to do either of these things, any subsequent challenge will be deemed untimely, inviting a penalty and possible termination of service.
Ms. Wright further testified that, on March 18, 2010 (two days after the billing period at issue had ended), an agency record reflected that the meter transmittal unit (MTU) attached to Gatewood's water
meter had indicated that there was high water consumption at the property. Therefore, added the witness, a technician had been sent to the property to take a look at the actual meter and verify that the read was correct. Ms. Wright explained that the MTU at each meter " transmits reads to data control units that are stationed ... in the D.C. area. And we have access to the meter reading through incoming pulled report[s]." In short, according to this testimony, D.C. Water had sent a technician to Gatewood's property just after the high-water consumption period to verify that the reading received by the relevant data control unit (from which a water bill apparently is derived) reflected the reading visible from the MTU on Gatewood's water meter. It is inferable from Ms. Wright's testimony, although she did not directly say so, that the technician verified that the meter " reads" at both ends of the transmission were the same.
After the hearing, a D.C. Water hearing officer issued written findings of fact in which she credited Gatewood's testimony that the property was vacant when he purchased it, and had remained so. She also credited his testimony that he had physically inspected the property after receiving the bill, but had detected no sign of break-in or water damage. However, she found " no evidence of meter malfunction" (more on this later). Based primarily on these findings (as well as a finding that the bill for $6,125.62 was due and unpaid), the hearing officer ruled that Gatewood had " failed to carry his burden of proof of showing by a preponderance of the evidence that the DC Water bill in his case was wrong."
More specifically, in her Conclusions of Law, the hearing officer determined that Gatewood had " failed to make a time[ly] challenge to the charges" at issue, citing 21 DCMR § 402, and had " failed to provide any basis as to why the disputed charges are incorrect" ; that Gatewood's " check for the cause of the high water bill resulted in no explanation for the excessive consumption" ; and that " [w]hen no reasonable explanation for excessive consumption exists, there is no basis upon which to adjust the bill," citing 21 DCMR § 408.1.  The hearing officer then explained in her Decision: " Notwithstanding the customer's failure to make a timely challenge to the bill, he presented no basis to adjust the bill. Accordingly, the decision of DC Water that [the] bill is valid and payable is affirmed." Gatewood has petitioned this court for review of the hearing officer's order.
As a threshold issue, we must address whether this court has jurisdiction to consider Gatewood's petition. On appeal, D.C. Water argues that because Gatewood failed to file a timely petition for an administrative hearing, the hearing officer lacked jurisdiction to consider his claim on the merits. Thus, the argument goes, although the officer rendered a decision, that decision was a nullity, and there is no valid final order for this court to review. We cannot agree.
Title 21, § 412 of the DCMR, entitled " Petition for Administrative Hearing," states that " [a] petition for administrative hearing shall be made in writing within fifteen (15) calendar days of the date of the
notice specified by § 409.1 of this chapter."  There is no dispute that, under this section, Gatewood's petition was tardy. D.C. Water informed him in writing on August 26, 2011, that it considered his bill valid and due. Yet, he did not file his petition for review until October 25, 2011— almost two months after the regulatory decision. In that petition, however, Gatewood expressly asked the agency to waive compliance with § ...