*2 program CON into District of Columbia’s TERRY, Associ- Before NEWMAN and guidelines.2 compliance the federal GALLAGHER, Judges, ate and Associate directs program The federal also Judge, Retired. a State Health Plan- states must establish NEWMAN, Judge: ning Agency Development Associate [SHPDA] administer, among things, other the CON interlocutory cross-appeals These are (1982). program. 42 300m-2 U.S.C. § from an Superior order of the Mari- Court. grants CON dis- District of Columbia’s law Jr., (District Barry, on S. et al. of Colum- the District of cretion to Columbia’s bia) portion seeks review of that regulations “adopt revise SHPDA declaring order it violated the rule- District of Columbia Ad- according to the making provisions of the District of Colum- (D.C.Code, Act 1- Procedure ministrative § (DCA- bia Administrative Procedure Act procedures governing seq.), review et PA), (1981 seq. D.C.Code 1-1506 et & § a minimum which at meet criteria Supp.1984), by failing to file National Health Plan- requirements purposes basis and considered formulat- (1981). ning D.C.Code 32-304 Act....” § enjoined certain published enforcing SHPDA September the District of from On Columbia regulations proposed criminal rules. After notice sanctions in the until a set of period, proposed new rules such a and comment Columbia submitted on October 1982. On published statement of to the were basis were, 17, 1982, rules Hospital court. these The District of December Columbia 3, 1982, September adopted On hospitals (Hospital and 13 As- as final. Association regulations proposed sociation) request also issued appeal the denial their SHPDA relief, establishing filing applica- fees for CON for based on their contention 7, 1983, January regula- are invalid since state- tions. On CON, specific procedures for the modifi- 1. The term "state" includes the District Co- 300n(l) (1982). cation, 42 U.S.C. or of such certificates. § lumbia. sale transfer with Hill-Burton Act obli- Health care facilities 32-301, (1981 seq. 2. Codified at D.C.Code et & § gations fulfillment of these must demonstrate requires Supp.1984), the District’s CON law requirements. without such ob- Those facilities approval health facilities to seek CON care ligations provide a certain volume of free must proposed new health services with institutional and make their services available health care $250,000 operating or costs of more community. $600,000 capital expenditures proposed application process for a more. It outlines the published cited, tions were in final guage form. both above cases, publication rules oc- argues that a contemporaneous statement days prior date, curred 30 to their effective requirement imposed has been by DCAPA, SHPDA, 1- D.C.Code that the court should 1506(a)(1981).3 disputed have invalidated the improper promulgation. due to *3 contends, Hospital
The
Association
ruled,
although
the trial court
that
DCAPA
Hospital
Association’s reliance
express requirement
agen-
contains no
that
I, supra,
on Citizens Association
is mis
general
adopt
cies
a
statement of the basis
placed. Because it was decided after Feb
of
regulations
1,
promulgated
1971,
ruary
is
holding
binding
its
not a
pursuant
rulemaking proce-
to informal
precedent for this
Ryan,
court. M.A.P. v.
dures, the United
Appeals
States Court of
310,
(D.C.1971).
285 A.2d
312
In any
for the District of Columbia Circuit has
event,
major
of
concern Citizens Asso
recognized that such
are none-
statements
reviewing
I was
ciation
that a
court be
required.
theless
Citizens Association
able to discern “some
fact and
basis
law
of
Georgetown, Inc. v. Zoning Commission
justify
the action as consistent with rea
Columbia,
U.S.App.
the District
155
I,
sonableness.” Citizens Association
su
of
of
233,
(“Citizens
(1973)
477 F.2d
D.C.
402
238,
pra,
U.S.App.D.C.
155
477
at
A.2d at
I”).
Association
Zoning
(quoting
407
Shenk
Commission
v.
Columbia,
The District of
U.S.App.
Columbia Administrative
142
the District
of
of
(DC-APA)
Act
expressly
267, 269-70,
295,
Procedure
im- D.C.
440 F.2d
297-98
poses
requirement
a
in “contested
(1971)).
recognize
We
where no state
That,
course,
cases”.
of
does
bar
of
statutorily
ment
basis and
is
requirement
imposing a
of stated reasons
submitted,
voluntarily
or
present
contrary,
context. On the
rulemaking
agency’s
proceedings
record of
legislative history
of the DC-APA must indicate
for the ac
a rational basis
Congress
indicates
assumed
we
Robinson, 139 U.S.App.
tion. Williams v.
would construct such
requirement
a
or
637,
204, 209-10,
D.C.
432 F.2d
642-45
already
believed
courts
had.
(1970). Such a
does not arise in
concern
prescribe
That
was meant only
act
case
is no show
the instant
because there
procedures.
minimum
ing
rulemak
record of SHPDA’s
the statement
proceedings along with
I,
155
supra,
Citizens Association
U.S.
of
240,
purpose in the District
Columbia’s
(footnotes
of
App.D.C. at
219
procedures are
like-
‘best’ most
separate
reasons from the
which
statement of
vague,
pub-
ly to further some
undefined
agency.
Co.
States Box & Basket
Pacific
159,
good.”
186,
lic
White,
176,
296 U.S.
56 S.Ct.
163,
(1935) (There
“pre-
138
is a
L.Ed.
Georgetown v.
Citizens
sumption
justify-
of the existence
facts
Zoning Commission
the District
Co
ing”
adoption
which
lumbia,
1027,
(D.C.1978)(en
392 A.2d
scope
authority
within the
banc) (quoting Vermont Yankee Nuclear
particularly
agency. This
administrative
Corp. v. Natural Resources De
Power
have been
so where
Council, Inc.,
al.,
et
435 U.S.
fense
hearing.)5
adopted
notice
after
L.Ed.2d 460
S.Ct.
(1978)).
Yankee, supra,
Vermont
any
importantly,
More
the absence
Supreme Court held that the federal APA
requiring
provision
Columbia
procedural re
establishes the maximum
agencies
provide
of basis
*4
Congress
quirements
willing
was
regulations being promul-
ageneies,
impose on federal
while
gated
rulemaking provisions of
under the
impose
pro
agencies are free to
additional
l-1506(a) (1981),6
DCAPA,
D.C.Code §
cedures,
only
there are
rare circumstances
Congress
is a
neither
clear indication that
justified “in
in which the courts would be
such state-
City
nor the
Council intended
overturning
of a
agency action because
required District of Colum-
ments to be
procedures beyond
employ
failure to
those
agencies.
rulemaking provisions
The
bia
Yankee,
required
statute.” Vermont
of the federal Administrative Procedure
524,
at 1202.
supra, 435
at
98 S.Ct.
U.S.
Act,
(1977),
5
553
and the
U.S.C.
Revised
§
Act,
Model State Administrative Procedure
regu
We conclude that because
3(a)(2),
as
for the
which served models
promulgated
accordance
§
lations were
DCAPA,
DCAPA,
contain such statement of reasons
in grant
erred
the trial court
requirements. The
a re-
absence
Association’s motion
quirement
rulemaking
from the DCAPA
based on
enjoin their criminal enforcement
provisions
poli-
is
of a
statement of
reflective
deliberate
absence of a
basis
cy
City
so
Congress
choice
reverse much
purpose. We
appealed by the District of Columbia.
Council.
as is
ruling that is
affirm the trial court’s
We
previously
rejecting
We have
held
Hospital Association’s
the basis of
I, supra:
rationale of
Citizens
cross-appeal.
reviewing
court has determined
[0]nce
Ordered.
So
agency complied
whether the
procedures required by the relevant stat-
Retired,
GALLAGHER,
Judge,
Associate
[appellate]
utes: “The
court should ...
dissenting:
beyond
stray
judicial province
appel-
in the
saying
old
explore
procedural
to im-
There
a wise
format or
fairly
stat-
pose
late courts—once
upon
its own notion
facts
l-1506(a)
Supreme
states:
D.C.Code §
5. More recent
Court decisions which
underly-
hold
articulation
Mayor
independent
each
The
necessary
ing agency
judicial re-
action
...,
shall,
any
prior
adoption
rule
involve,
case, adjudicato-
view
unlike the instant
Register
publish
District of Columbia
in the
ry
cerned, Atchison,
dis-
cannot be
determinations whose
as to
the intended action so
... notice of
Bd.
T.
Co. v. Wichita
& S.F.R.
opportunity
persons
to sub-
afford interested
806-07,
Trade,
U.S.
S.Ct.
412
93
orally or in writ-
data and views either
mit
(1973); Burlington Truck
L.Ed.2d 350
37
required
ing_
publication or services
156, 168,
States,
83 S.Ct.
Lines
U.S.
v. United
days prior
than 30
shall be made
less
...
239, 245,
rulemaking
plaintiffs explain views. the SHPDA $10,000 charge approval somebody And, yet, nobody’s explained SHPDA licensing want; application they of some to this Court a statement of views explained nobody’s to me whether it but reasons. isn’t. is or SHPDA, Page meetings 13: The you suggest would What association, hospital are the ac- *6 do? Court develop public trying tions of to servants Honor, Well, put HARLAN: Your MR. complex regulations of with a maximum any representatives one of of public input. regula- Complex Indeed. oath; in two minutes under SHPDA public input. tions with a maximum of you they provide as I’m sure could indeed, if, complex as they are Purpose complete a Basis and State- are, they why again that it once Your would like. as Honor ment nobody’s bothered to explain to this But,— adop- the reasoning Court behind the Pharr’s It’s not Mr. re- THE COURT: regulations? tion these of that, according to to do sponsibility Next, Mr. Pharr’s in Para- affidavit the administra- Judge Bazelon said. It’s graph complex 4: The adopts regulations who’s re- tor that required and detailed and an extensive of rea- quired to furnish the to But period develop. time Indeed. of And, it me that that’s seems to sons. nobody explain wants to the yet to you ask me abundantly clear unless to that can under- so Court Court Appeals across the Court of overrule detailed, complex, and ex- stand do I can’t that. street. tensive I No. under HARLAN: No. MR. impor- Paragraph 6: Because of the that.[2] But it Your Honor can’t do stand complexity regulations, tance and of problem the District of for the mini- does create go beyond decided to SHPDA Statements, relating to government Basis and Apparently, the was under sion too was, nothing contrary concerning in stated to the misapprehension that court as it the trial fact, by prior decision. court deci- bound federal circuit regula tangent none Columbia because of our therefore off on a state af- of —a tions Basis and Purpose have State not especially fairs unknown to judi- ments. ciary. Having factor, this clarified it will apparent become now that it should [Hearing, August (emphasis add- ed).] particular moment unless one were get caught up distraction, for what- From this discussion between court reason. ever government appar- quite counsel it is relating ent the court was apparent When became that the court government government desire its that the going require government file file a in Basis and Statement Purpose Statement, a Basis the follow- understanding to assist the court in ing colloquy place: took detailed, “complex, basis of these and ex- Well, Honor, MR. HARLAN: Your regulations.” Surely, tensive a court going that, Your Honor hold I non-jury case is entitled to much so this just ask would a small continuance may intelligently that it decide the issues purposes: one, this matter for two before it. unmistak- here was provide this Court a Basis and Pur- ably announcing perhaps this need. It is pose Statement or a Statement of Rea- elementary require so as not to comment sons. right that it is an inherent court to agree you give THE COURT: if I Will require memoranda, filings stay imposition you you will findings by parties, etc. to assist plain- criminal insofar as sanctions deciding a case. tiffs are concerned? Having assist- announced need for this Absolutely, MR. HARLAN: Your Hon- government non-jury ance from the in this Criminal sanctions? or. case, argument the oral on the motion then THE COURT: Yes. gov- moved to a discussion on whether putting MR. HARLAN: You mean them ernmental was actually jail? automatically local law have filed fining. And the THE COURT: Yes. contemporaneously issuance of the rules under the amicus4 then entered the Counsel for apparent attack. It later became that the discussion: mistaken, apparently court was were you me. Do THE COURT: Excuse dis- counsel, about the date of decision this Court agree with the fact federal jurisdiction circuit court should have a statement reasons? Citizens Association Inc. Georgetown, believe that MS. ROBERTS: *7 Zoning v. Commission the District of of on which to judge needs a record Court Columbia, U.S.App.D.C. 233, 155 477 F.2d issued were ar- whether (1973). judge stated court bitrary capricious. by was bound that case under doctrine And, I don’t have Right. THE COURT: (D.C. Ryan, M.A.P. v. A.2d 310 that. 1971).3 Actually, the case circuit court was If the Court feels that ROBERTS: MS. years decided in about after two record— have that doesn’t reorganization jurisdiction, in this Well, you show me where consequently, binding no THE COURT: had ensuing effect and the discussion was it is. reorgani- by the United
3. This out of the effect of decisions States doctrine arose Appeals zation in the of Columbia which for the District of Columbia Court jurisdiction removed from the supra. local courts Ryan, is M.A.P. v. Circuit Appeals the United States Court of Dis- of this trict of Circuit. The decision Columbia 1, supra. note 4. See binding nonbind- court which on the or controls 1241, 36 Pitts Well, 93 S.Ct. I that lot U.S. MS. believe [411 ROBERTS: (1973)]. L.Ed.2d in Mr. affida- is laid out Pharr’s what vit— [******] But, post THE that’s hoe busi- COURT: simply suggest I would MS. ROBERTS:
ness.
not the administrator. He’s
He’s
you
that there
to the Court that if
feel
responsible.
City Coun-
not
man
you to
is
record
not
before
sufficient
Mr. Pharr that he was the
regulations violate
cil didn’t tell
whether these
decide
standard,
They
capricious
regulations.
told
arbitrary
adopt
one to
receive testimo-
you
SHPDA, the head of SHPDA.
could indeed
ny
involved.
from
officials
Honor is
I think Your
MS. ROBERTS:
bring
to
going
THE
I’m
COURT:
I think the
being
premature here.
a bit
them down.
to
Is there
question that we have
ask is:
here,
They’re right
MS. ROBERTS:
requirement
DCAPA that a
like
hear
Honor
to
them.
Your
would
pub-
of Basis and
be
Statement
Discovery
rampant
in
THE
regula-
COURT:
simultaneously with the
lished
case,
Iwhy
and I
didn’t
don’t know
tions?
discovery
very beginning
from
stop
ruled
THE
The Court has
COURT:
question
these
because
whether
that,
change my mind on
you
will not
ought
proper
are
accept
Judge
I
that because must
Court on the basis of
determined
says in Georgetown
Citizens As-
Bazelon
filed
the admin-
sociation.
authority
I
under
have no
And,
it.
that’s all there
istrator.
Ryan M.A.P. v.
change
rule
bring
going
that Pm
the notion
law.
high
down here
government officials
[******]
have their
testimony taken
under oath
out,
serve
preme
MS. ROBERTS:
(1971)]
U.S.
situation to
case faced
[******]
Your
402, 91 S.Ct.
Overton
Court
which was decided
Honor,
a similar
Park v.
one,
Secondly, I
situation
Bollpy,
in a
Citizens
1. It was ordered in litigation. “concise, general file a statement of the inquire One it is that must basis and government seeking really then respecting the consideration government, Apparently court. and its were, fact, accorded comments which accompanying appellants, decision wish Depart- considered Director that the of Columbia this court adopting ment Human Services required agencies are not administrative regulations.” Certificate of Need rulemaking accompany law to all with Ba- government 2. was It ordered that govern- sis and Statements. enjoined was applying from or ment that the does not re- states DCAPA enforcing any criminal sanctions on the quire it, done in the that it has not been regulations pending basis of sub- past unduly and it would be burdensome to mission of the statement of reasons. point- require in the future. It practice discovery 3. It ordered that all was was is, all, argument ed after out in oral indefinitely. stayed government, with the city contrast governments, and that it state and federal period During when accompany all the being government should not prepared, filed trivial, relatively simplistic interlocutory appeal in this court from emanating city agencies from the with Ba- the trial court’s order. This was done even government know of no though hearing spe- at the sis and Statements. ruling, rulemaking provisions "Declared” of the DCAPA. Earlier the court to file the failure the statement violated the *9 (a) it thought court would be appellate requiring offieials. The authoritative decision probe minds of these contempo- to the automatically that this done undesirable be raneously rulemaking. under oath in the courtroom all Conse- officials (b) it more beneficial jurisdiction, purpose,7 this and was quently, in this we should get statement result- advisory opinion topic. to a more considered issue an on We calmly ing by working with the questions. the staff are not here to answer academic preparation in their offices only issue the trial officials genuine is whether This is a statement. choice written judge require could the statement in this and not matter for trial court discretion case. court. legitimate concern of this filed, Shortly appeal after the was down there is When this case shaken government complied with the court’s or- (a) appeal from to has no order which der and filed the written statement re- with, (b) been some mistaken complied quired by point, At at the court. least to judge the trial the effect statements things apparent: (a) two since the became that a the federal circuit court decision with, complied order had been order binding on this court—which it was was extant; (b) no since longer was there required state- not—and a simultaneous clearly compliance, injunction had been by the rulemaking ment of with all expired by Consequently, had its terms. government. Columbia One District of no there were then orders to contest. proposition must return always genuine Even there had been a contro- right had the trial court an undeniable versy may be which there consider- —about order the statement of controversy had able doubt—the ended. better understand the At I point, say B. let’s tackle this opposing C. turn now the contention way. case in a sensible What difference (a) does it in these make circumstances wheth- controlling contemporane- law jurisdiction required er the of this law Purpose filing ous of a Basis and State- require did not Basis Statement of ment, done, (b) having this not been Purpose every judge rule? The trial late to do so and these was too stated he needed such to help invalid, agency and the should there- intelligently decide in this issue case. permanently. enjoined fore This would be reasonable, This was a request. sensible unjustifiably harsh result and real- enlightened chose way He the most to first First, there was istically unthinkable here. understand the under attack explicitly requiring the binding decision deciding before enough. case. That is contemporaneously agency to issue Certainly, this court should intrude it- Purpose a Basis and State- with the rule into decision-making self function of Furthermore, me as ment. it would strike the trial dictate what assistance require something of a waste judge may require parties trial from the duplicate already what it go back reaching non-jury before a decision order, done, end- pursuant has us, case. case now before trial another Basis and with still right to judge had the order a Basis and apparently now an Statement when there is Statement, govern- and both result adequate one file as a readily recognized ment amicus I do not see what this would court’s order. hearing. this at the trial court As a matter particular case. in this accomplish fact, judge immediately mean, realistically, is government this would offered substitute What agency would have testimony government the form of oral from the that the Mathews, See, e.g., Foods Ass’n v. National Courier Ass’n v. Board tional Nutritional (2d Cir.1977). System, Governors Federal Reserve U.S. F.2d 331-32 (1975); App.D.C. 516 F.2d Na- *10 226 steps begin again adopt-
retrace its
by
rather than on the
foundation
live con-
8
accompanied
rules
troversy?
new
the same
Purpose
Basis and
Statement. Realistical-
prone
litigation,
“Counsel
shape
are
so
ly,
may
this would be a
It
be true
waste.
control,
as it
far
is within their
in order to
Appeals
that the federal
for
Court
this
comprehensive rulings.
secure
This is true
circuit
some circumstances has re-
both
counsel for
defendants
for the
quired
procedure.
such a
Tabor
See
v. government.
part
Such desire on their
Board
Joint
the Enrollment
Actu-
appreciate.
not difficult to
But the court
40,
aries,
U.S.App.D.C.
185
tions to understand before
decision, certainly may require most
government to file a Basis and
Statement, i.e., a written brief
prepared by explaining concise- rule,
ly the basis and agreeing specific ob- COLUMBIA, Appellant, DISTRICT OF
jections rules, though even v. expressly provide DCAPA does not for it. sense, elementary good It is a matter of PACE, al., Appellees. Carlton et appellate and an should so DAWSON, Appellant, John presumptuous as to intrude itself into the processes judges deciding mental of trial their cases. COLUMBIA, et OF DISTRICT say am bound to I do not know the al., Appellees. reality. effect of court’s here in decision 83-676, Nos. 83-677. helpful to happen What to the most already Appeals. Basis and filed District of Statement Columbia Court of ignored this case? Must it be Argued Feb. 1985. judge, government? returned Sept. 1985. Decided If, suspect, as I put it will be to a useful As Oct. 1985. Amended purpose, and perhaps already has case, deciding trial court before opinion
is the court’s all about? theWill opinion only
court’s relate to some other
case, though some other we do not time— know where or when? And is the court
going path adviso- down treacherous
ry opinions questions, on academic
thereby creating precedent in this fashion Opinions.” Advisory once "adviso- As Justice Frankfurter observed Note Harv.L.Rev. merely opinions. ry opinions advisory (1924). are not Frankfurter, J., They ghosts slay.” "A