Environmental Defense Fund, Inc. v. Mayor-Commissioner

PAIR, Associate Judge: This court is petitioned to review administrative inaction with respect to environmental protection. Petitioners,1 the Environmental Defense Fund, Inc. (EDF), are engaged in activities relating to environmental protection. Contending that a “chronic” air pollution emergency2 existed in the District of Columbia, petitioners requested the Mayor-Commissioner and his designated agents, the Director of the Department of Environmental Services and the Director of the Department of Highways and Traffic (respondents), to take immediate steps to correct by appropriate action the condition complained of. The specific request was for the declaration3 of an “Emergency Episode.”4 Respondents failed to accede to the request and this petition for review followed. Respondents moved to dismiss the petition urging that this court is without jurisdiction because there existed no “contested case” 5 within the purview of the District of Columbia Administrative Procedure Act (D.C. APA) .6 Upon consideration of the motion and opposition thereto, we deferred ruling on the motion pending argument on the merits. We now grant the motion. In their petition for review, EDF relied first upon D.C.Code 1967, § ll-742(a) (11) (Supp. Ill, 1970), which at that time provided : [T]he District of Columbia Court of Appeals has exclusive jurisdiction to review . . . : (11)'any agency action taken by the Commissioner of the District of Columbia or the District of Columbia Council under the District of Columbia Air Pollution Control Act.7 This provision was repealed by the District of Columbia Court Reform and Criminal Procedure Act of 1970,8 which completely revised Title 11 of the District of Columbia Code. The jurisdiction of this court is now controlled by D.C.Code 1973, § 11-722, which provides: The District of Columbia Court of Appeals has jurisdiction ... to review orders and decisions of the Commissioner of the District of Columbia in accordance with the District of Columbia Administrative Procedure Act (D.C.Code, secs. 1-1501-1-1510) Insofar as here pertinent, the D.C.APA provides : Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Commissioner or Council or an agency in a contested case, is entitled to a judicial review thereof in accordance with this chapter upon filing in the District of Columbia Court of Appeals a written petition for review. [Emphasis added; D.C.Code 1973, § 1-1510.] [517] The term “contested case” is defined as . a proceeding before the Commissioner, the Council, or any agency in which the legal rights, duties, or privileges of specific parties are required by any law (other than this chapter), or by constitutional right, to be determined after a hearing before the Commissioner or the Council or before an agency, but shall not include (A) any matter subject to a subsequent trial of the law and the facts de novo in any court [or] (C) proceedings in which decisions rest solely on inspections, tests, or elections .... [Emphasis added; D. C.Code 1973, § 1-1502(8).] In Citizens Ass’n of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699, 703 (1972), this court was petitioned to compel the Zoning Commission to consider amendments to the zoning classifications of the Georgetown Waterfront area. Holding that the court lacked jurisdiction to review because no order or decision had been entered in a contested case, we pointed out that: 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. . We pointed out further that: In a proceeding involving the interim amendments proposed by petitioner, the Zoning Commission must play a role beyond resolution of the legal rights of specific parties. . . . The Zoning Commission’s evaluation of the area would not rest upon the status of any particular property, nor would the peculiar problems of any one individual in the area be of paramount concern. It is difficult to conceive that factual findings would be required on the particular status of specific individuals. . . . [Id. at 704-705.] Thus it is clear that the D.C.APA has limited judicial review by this court to orders or decisions of a District of Columbia agency made “after a hearing before the Commissioner or the Council or before an agency” in a “contested case.” 9 Petitioners do not contend that, any such proceeding was conducted in the instant case; rather, they assert on the authority of Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970) (EDF v. Hardin), that since the subject of their complaint is the inaction of the respondents, they are entitled to judicial review even though there has been no final order or decision. There are several flaws in this argument. Complained of in EDF v. Hardin, supra, was the failure of a federal agency to take action to enforce a federal statute,10 and judicial review11 was accorded pursuant to the Federal Administrative Procedure Act (APA).12 The Federal APA, however, does not apply to the District of Columbia,13 and therefore cannot control judicial review14 by this court of either action or inaction of a District of Columbia administrative agency. Further, any construction given to the statute involved in Hardin, however authoritative, can have little, if any, precedential value in respect to our construction of a statute of purely local application.15 The reason for this is that the D.C.APA was [518] based upon the model act for administrative procedures in the States, ; ,o ed by the National Conference of Commissioners on Uniform State Laws. However, it has been modified and adjusted by the Administrative Law Committee of the District of Columbia Bar Association, and by subcommittees of your committee, to embrace the functions of the District, which operates sometimes as a State, sometimes as a city, sometimes as both. Obviously, all the provisions of the usual model State Administrative Procedure Act may not successfully be applied literally to the varied operations of the many different administrative agencies in the District of Columbia. Hence, the model act has been revised in many respects to meet local conditions, so the reported bill is well developed and provides a comprehensive District of Columbia Administrative Procedure Act.16 The statute does, however, contemplate standards of judicial review similar to those found in the federal APA,17 but only in “contested cases” as defined by statute. See Matala v. Washington, D.C.App., 276 A.2d 126 (1971). The legislative history clearly reflects the correctness of Matala, supra: The District of Columbia Court of Appeals is the local District of Columbia court of . appellate jurisdiction. That court already reviews the actions of a number of local government agencies. It is a local tribunal attuned to the review of local government action. In the committee’s judgment, this is the proper tribunal before which administrative decisions of local government agencies in contested cases should be reviewable. . . .18 The bill establishes definite safeguards and procedural rules respecting “contested cases,” as defined in the bill. A “contested case” means a proceeding in which the legal rights, duties, or privileges of specific parties are required by any law (other than this act), or by constitutional right, to be determined after a hearing. Matters subject to subsequent trial of the law and the facts de novo in any court are excluded from the definition, as are the selection or tenure of an officer or employee of the District, proceedings in which decisions rest solely on inspections, tests, or elections, and cases in which the Commissioner, Council, or an agency acts as an agent of a court of the District. The bill itself affords no right to a hearing, but where such right exists it requires that the parties receive full and timely notice, and that they be afforded the opportunity to present evidence and argument.19 [Emphasis added.] We conclude therefore that petitioner’s reliance upon EDF v. Hardin, supra, is misplaced. In summation, we hold that where, as here, the substantive statute does not provide for a hearing,20 and no record in a contested case in which there has been a final order or decision for the purposes of the D.C.APA is brought to this court for review, the petitioner’s remedy, if any, lies outside of the D.C.APA. Because the conditions precedent to the proper invoca [519] tion of this court’s jurisdiction have not been satisfied, the petition for review must be, and is hereby, Dismissed. Footnotes [1] The petitioners in this ease are eight organizations and one individual. [2] See 8 D.C.R.R. 2:719. [3] 8 D.O.R.R. 2:719(a)(2). [4] 8 D.C.R.R. 2:702. [5] D.C.Code 1973, § 1-1502(8) [6] D.C.Code 1973, § 1-1501 et seq. [7] D.C.Code 1973, § 6-811 et seq. [8] Pub.L.No.91-358, Title 1, § 111 (July 29, 1970), 84 Stat. 481. [9] D.C.Code 1973, § 1-1502(8). See Capitol Hill Restoration Soc. v. Zoning Commission, D.C.App., 287 A.2d 101 (1972). [10] 7 U.S.C. § 135 (1964). [11] 5 U.S.C. § 701 et seq. (1966). [12] 5 U.S.C. § 500 et seq. (1967). [13] See 5 U.S.C. § 551(1) (D) (1966). See also Belsinger v. District of Columbia, 295 F.Supp. 159, 161 (D.C.1969), reversed on other grounds, 141 U.S.App.D.C. 60, 436 P. 2d 214 (1970). [14] See 5 U.S.C. § 701(b)(1)(D) (1966). [15] Compare Paul v. United States, D.C.App., 301 A.2d 226 (1973). [16] H.R.Rep.No.202, 90th Cong., 1st Sess. 4 — 5 (1967). Accord, S.Rep.No.1581, 90th Cong., 2nd Sess. 2 (1968). [17] See Woodridge Nursery School v. Jessup, D.C.App., 269 A.2d 199 (1970). [18] S.Rep.No.1581, 90th Cong., 2nd Sess. 6 (1968). [19] S.Rep.No.1581, supra note 18, at 6. [20] Thus, there is a clear distinction between this case and a case involving, for instance, review of a wage order. With respect to such an order, the Organic Act, D.O.Oode 1973, § 36-401 et seq., specifically requires review by this court on petition of any person aggrieved thereby. See D.O.Code 1973, § 36-409(a). See also H.R.Rep.No.907, 91st Cong., 2d Sess. 165 (1970). In sharp contrast, the statute involved in this case, D.C. Code 1973, § 6-811 et seq., contains no such provision for review. Thus, our jurisdiction in this area is limited to review of “contested cases.” See D.C.Code 1973, § 1-1501 et seq.