District of Columbia v. American University

form is misappropriation tion that enough warrant disbarment.25

serious conclude that the record dem

We

onstrates that Pleshaw was familiar with fiduciary to requiring petition

the rules taking permission

the court for before

compensation agree from an estate. We

with the Board that “the record evidence pattern

as a whole shows a clear of ‘con to ‘the

scious indifference’ [Pleshaw]

security fiduciary.” of funds’ he held as a

Accordingly, adopt the Board’s recom

mendation to disbar Pleshaw.26

So ordered.

DISTRICT OF COLUMBIA University

the American

Dubai, Appellants, UNIVERSITY,

The AMERICAN

Appellee. 08-CV-1625,

Nos. 08-CV-1626. Appeals.

District of Columbia Court of

Argued March 2010. Aug.

Decided 2010. court[;] prior overrule a of this misappropriation, decision stances of intentional only accomplished by such result can be this and the Board’s own recommendation of banc."). effectively respon- court en disbarment admits that degree, dent’s conduct differed kind, Indeed, Bach, from cases in which the rule urged 25. Addams the Board applied unyieldingly. has been court to reconsider the rule in Addams cases Bach, supra note 966 A.2d at 352. attorney's where the misconduct did not con- stitute We find intentional theft. our observa- unnecessary It is for us to determine the dispositive tions in Bach here: appropriate many sanctions for Pleshaw’s Bach, may appear disciplinary supra disbarment “draconi- other [W]hile violations. See conduct, Gil, applied respondent's (citing an” as note 698 A.2d at 353 n. 7 In re (D.C.1995) (decision exception Board has not defined for us an principle attorney rule that Addams' does not must be disbarred makes it unneces- "simply paying lip sary arguments risk to it. service" Dis- to consider Bar Counsel’s re- garding barment disciplinary under Addams is not reserved for additional violations of rules)). egregious the "most and dishonest" in- Jr., McKay,

James Senior Assistant C. General, Attorney with whom Peter J. Niekles, Attorney General for the District Kim, S. Todd Solicitor Gener- al, Murasky, Deputy and Donna M. Solici- General, brief, tor on the appel- were lant the District of Columbia. Cooke, Jr., Frederick D. with whom Wiesenfelder, DC, Leslie H. Washington, brief, appellant was on the The Ameri- University can in Dubai. Handman, T.

Christopher with whom D. William Nussbaum and Liana G.T. Wolf, DC, brief, Washington, were on the for appellee. GLICKMAN, THOMPSON,

Before OBERLY, Judges. Associate PER CURIAM: litigation represents This the continua- by appellee tion of an effort American (“AU”) University stop appellant Ameri- (“AUD”) University can in Dubai from holding a license from the District of Co- lumbia Educational Licensure Commission (“the Commission”) while AUD continues to have the word “American” in its name. underpinning litigation for the is § (Supp.2009), 29-618 D.C.Code generally prohibits an educational institu- tion that organized under District of law or that “shall undertake to do business District of Columbia or degrees to confer or therein” certificates title, in using part from “as its whole or in States, federal, the words United Ameri- can, national, service, any or civil or other might reasonably imply words which official connection with the government States.... For reasons that United f1 Congress opinion special 1. As noted our American act of and is the Univer- sity specifically exempted Univ. in Dubai v. District Columbia Educ. from D.C.Code Comm’n, (2001) Licensure AU “was created and authorized to use the by Congress enacted we conclude AU’s D.C.Code explain, we shall (former) licen- part legislation District in 1929 as known as the challenge to AUD’s affirm, however, the We sure is moot. Mill Act.4 Diploma insofar as it directs the order trial court’s 38-1310(a) describes several D.C.Code to revoke the license of from the of this coverage “exclu[sions] Judge Thompson dissents agent. - [ie., §§ 38-1301 to chapter D.C.Code conclusion. from the latter 1313],” an exclusion for “ed- including organized ucational institution that Background Legal Factual I. chartered outside of the District of Colum- governing laws The District Columbia operate and does not in the Dis- bia educational post-secondary the licensure of 38-1310(a)(6) § trict....” D.C.Code in Title Chapter are found institutions (2001). Thus, an educational institution 13 of Chapter 6 and Title organized that is not under District law §§ See D.C.Code 29-615 to -619 D.C.Code. in the operate and that does not District is (2001 Supp.2009) & and 38-1301 to -1313 Commission, by exempt from licensure (2001 They provide that no Supp.2009). & “except any agent of an institution entity may undertake to confer person or operates who in the District shall not be operate post-secondary or any degree exempt, may apply and the Commission educational institution the District of chapter to the institu- standards obtaining without first a license in determining tion whether to license an See from Commission.2 D.C.Code 38-1302(1) § agent.” Id. D.C.Code de- 38-1309(a) 29-615, (Supp.2009). §§ Com- “agent” “any person owning any fines as of an mission licensure educational institu- in, employed by, representing interest or contingent upon be tion “shall said edu- remuneration, for an educational institu- compliance cational institution’s with all tion, whether such institution is located rules, regulations promulgated criteria and District, within or outside the and who Commission, compliance as well as solicits or offers to enroll in the District with all applicable other D.C. laws and 38-1302(12) institution, § regulations.” students or enrollees for such D.C.Code (Supp.2009).3 applicable One such law is or who himself or out holds herself 70-950, name 'American' in its title.” 930 A.2d 4.Act of Mar. Pub.L. No. (D.C.2007). 586e, f, (now 202 n. 3 45 Stat. 1505 codified as -619). §§ amended at D.C.Code 29-614 to 2. The Commission was established the Ed- (2001), originally Under D.C.Code 29-619 ucation Licensure Commission Act of 1976 part legislation, enacted as of the same 1-104, (“the Act”), Apr. ELC D.C. Law educational institution that undertakes to do (now §§ codified at D.C.Code using business in the District while in its title -1313), postsecondary to "license edu- any prohibited by of the words section 29-618 agents,” cational institutions ... and their may subject penalties. be to criminal and civil authenticity legitimacy and to and “ensure (providing "[a]ny person per- See id. or the educational institutions....” D.C.Code provisions who shall ... violate the sons (Supp.2009). § 38-1303 guilty § 29-618 shall be deemed of a misde- meanor, upon in the conviction thereof (2009) ("The DCMR See also 5-A8003.1 Superior Court of the District of Columbia degree granting Commission shall license in- punished by shall be a fine of not more than give stitutions and institutions that instruction $2,000, imprisonment or for not more than degree, in credit toward a results fines, "[cjivil years, penal- or both" and that that the Commission determines are com- ties, imposed pliance requirements with and fees be as alternative of law and this sanctions....”). chapter."). 1302(12) it maintains the Dis- represent- as of the District residents —unless “facility” through such from or institution trict ing an educational 38-1302(1). given, D.C.Code or edu- purpose.” “education is offered grant- are offered or cational credentials for-profit, a private, Appellee AUD -1302(11). §§ ed.” D.C.Code institution degree-granting accredited Act also added to The 2008 Amendment Dubai, Emi- Arab campus in United of the term section 38-1302 a definition provides has no facilities and rates. AUD the term District, “facility” specifies instruction no educational “a structure located pro- physical information about its means provide does but District, for its housing, and enrolls students grams including Dubai suitable class- agent, Michael campus through laboratories, resources, rooms, library Dubai remuneration, Goldstein, who, acts program required by the nature an office on New behalf from § 38- body.” or the student D.C.Code Avenue, years, past N.W.5 Hampshire 1302(14). directly. licensed AUD the Commission “facility” maintain a does not However, by early Commission meaning of section the District within the that an apply interpretation to began 38-1302(14). 28, 2008, February Mr. Since physical a institution without educational has been licensed as AUD’s Goldstein li- in the District could not be presence and, date, agent,7 effective the same AUD addition, by the censed Commission. application withdrew its for renewal of its 2008, the of the District of

August Council license. Commission the Education Licensure enacted (“the Act of 2008 Amendment Commission Background II. Procedural Act”),6 legislation that 2008 Amendment follows our decision in appeal This Chapter to 13 of Title 38 made revisions Dubai, a American Univ. in case institu- that affect whether an educational a 2003 in which arose out of suit AU whether it is may “operate” thus tion —and complained that had re- Commission the District. As eligible for licensure—in license de- degree-granting newed AUD’s Act, by the 2008 Amendment modified violation alleged what was AUD’s spite AU provides that an edu- D.C.Code prohibition of the set out D.C.Code may “operate” cational institution 29-618, by having “American” in its thus, a not obtain District —and judgment “prohibit- a license, sought name. “ap- AU which constitutes Commission using ‘American’ in its ti- ing 38- AUD from proval operate,” to see D.C.Code degree-granting agents for reported the Commission dress licensure of 5. Mr. Goldstein to 2,858 Compare DCMR 5-A8001.1 none of AUD’s students institutions. in 2008 that ("This chapter apply all educational shall to the Fall of 2007 were District enrolled as of that re- institutions which offer instruction residents. degree, which are sults in credit toward a licensed....”) required with DCMR 5- to be 17-219, 4009-10, Aug. §§ Law 6. D.C. ("This chapter apply pri- to all A8101.1 shall schools, vate, non-degree postsecondary [.]”) added). agents (emphasis their notwithstanding the fact that the 7. This is regulations governing represents April the licen- at AUD that ”[o]n Commission’s institutions, meeting, agents public educational see consid- [Commission] sure of ered, 5-A8099, unanimously granted, Mr. Gold- to 5- 5-A8100 DCMR 5-A8000 (2009) Agent’s Application Renew the Li- provisions that stein’s include address A8199 period agents non-degree-confer- of Michael B. Goldstein for cense the licensure of institutions, ending April ad- 2010.” ring but contain none that suit), tle[,]” days that it was unlawful for within a declaration of the order. This to license as long appeal AUD so followed. Commission remained in violation of section school Analysis III. requiring and an order the Com- mission to revoke AUD’s license. 930 A.2d appeal We address the fol- issues summary trial court entered at 204. The First, lows. we conclude that AU’s chal- in favor of judgment AU and ordered Second, lenge to AUD’s licensure is moot. to revoke AUD’s license with- contrary we argu- to the District’s hold— unless, deadline, days prior to that ability ment —that AU’s obtain review of changed comport its name to AUD the Commission’s licensure of AUD and learning After section 29-618. Goldstein does not hinge on whether the order, changing and instead of its court’s Diploma private right Mill Act creates a name, intervene, a motion to AUD filed Third, reject argument action. denied. Id. at trial court 204- that the trial court should have dismissed compliance OS. In with the trial court’s complaint Super. AU’s under Ct. Civ. R. 19 order, the Commission revoked AUD’s li- join failure necessary parties. court, sought review cense. AUD Fourth, finally, we hold that the Com- and we vacated the trial court’s order and mission by granting abused discretion revoking Commission order AUD’s li- agent. license AUD’s ground cense. so on the We did challenge A. AU’s to AUD’s licensure. indispensable party and that was AU proceed should have been allowed to that, Appellants argue even be naming with its suit without AUD as order, fore the trial court issued its the party. Id. at 210. We directed the trial dispute about AUD’s licensure the court complaint. to dismiss AU’s Id. Commission was rendered moot the Act, 2008 Amendment the legislation filed a that December AU new com- plaint, clarified that an naming both the Commission and educational institution defendants, seeking virtually may AUD as be “operate” licensed the Dis litigation here, same relief as in the earlier ex- trict if it a “facility” maintains i.e., cept that request physical AU did not a declaration “a ... including structure precluded using classrooms, laboratories, that AUD is from housing, suitable library resources, word “American” in its title.8 In Decem- and required by as ber summary the trial court entered program nature of the or the student judgment (14) in favor body.” 38-1302(11), §§ of AU. court rea- D.C.Code 38-1309(a)(2). soned that was in violation AUD of section Both the District and AUD prohibits 29-618 because the “statute take position that the 2008 Amendment ... use of the word ‘American’ in the title Act rendered ineligible licensing, AUD institution[, of an for-profit AUD is a physical presence and] since AUD “has no [ie.,] institution with the word ‘American’ in its the District of ... Columbia has no facilities, title.” The court ordered the Commission employees, space no leases no to revoke both provides AUD’s license and the no educational services [with (who, agent’s Columbia”; license of Mr. Goldstein hav- the District of both ac in] ing obtained the knowledge license months after expired; AU that AUD’s license has filed its complaint, party was not a longer and AUD affirms that it is “no even Act, 8. pursued The record indicates AU also under the federal Lanham 15 U.S.C. through against brought relief a suit qualified Degree Granting for a as prior License to enactment of the 2008 Amendment 16, 2008,” Act, August the effective date of though and even an agency’s changed accept the 2008 Amendment Act. interpretation We of a statute command interp (which interpretation District’s also is less than deference a longstanding interpretation) ineligi- retation,10 AUD is the amendments to Chapter 13 licensure, ble for inasmuch the interpre- effected through the 2008 Amendment Act tation ais reasonable construction of the amply explain justify the Commis statutory language, nothing contravenes sion’s changed interpretation. Those (scant) legislative history,9 and repre- effectively amendments nullified AUD’s li position Commission, sents the cense. We conclude therefore that agency charged with implementing the rel- legislation deprived the trial court of evant statutory provisions. ability See Nova grant, and that this court has sustain, Univ. v. Educational power Inst. Licensure no the initial relief that Comm’n, (D.C. 483 A.2d 1190-91 sought AU order that the Commission —an 1984) (applying, in evaluating Commis- revoke AUD’s license.11 Accordingly, we position, sion’s principle that “when an agree appellants the issue of agency’s decision is ‘interpre- based AUD’s licensure is moot. See Settlemire tation of the regulations statute and it v. District Emp.' Office of administers, interpretation] (D.C.2006) (ex [that will be Appeals, 898 A.2d sustained unless to be shown unreasonable plaining that an event that renders relief contravention of the language or unnecessary moot); renders matter ”) (cita- legislative history of the statute.’ Walker, Thorn omitted). (D.C.2006) (“[I]f tion Although appears AU to be the appellate court correct the Commission rather provide relief, can no effective the ease is abruptly changed moot.”).12 interpretation even Consequently, we vacate that 9. See Committee of the Report Whole on Bill 11. The eligi- issue AU raises as to AUD’s 13, 2008); (May if, Committee bility on Gov- again for licensure could arise (No- Operations Report ernment on Bill 7-86 example, AUD were to establish classrooms 9, 1988); vember Committee on Education begin teaching and courses in the District (June and Libraries Comments on Bill 7-253 However, pursuant ato Commission license. 14, 1988); Opera- Committee on Government we advisory opinion decline to an issue 12, 1988); Report (May tions on Bill 7-253 (which possibility looks to that no one has 611, S.Rep. Cong., No. 70th 1st Sess. 2 suggested horizon). Cropp is on the Cf. (1928). Williams, 328, (D.C.2004) 841 (per A.2d 330 curiam) (rejecting argument that this court Liquors, 10. See Brentwood Inc. v. District of advisory opinion should issue an to "fore- Bd., Beverage Columbia Alcoholic Control 661 hypothetical stall[] future clashes between” 652, (D.C.1995) ("while A.2d agency 656 an parties). may change interpretation over time the term, gives controlling statutory to a agen- an rejected 12. The trial court AUD’sand the Dis cy changing obligated its course supply to arguments ground trict's mootness on the analysis change") (quotation reasoned for the "[t]here no indication in [was] the record that omitted); marks and citation Public Serv. any Wilson, regarding took 27, [Commission] action 849, Comm’n v. 389 Md. 882 A.2d license,” (2005) (considerable reasoning that the issue was 867 deference "is ordi- not moot because "AUD’slicense narily only remains agency's longstanding shown to an effect.” But it is well-established that a mat interpretation” charged of the statute it is may ter administering). by legislation, be rendered moot For a recent debate on see issue, Co., 113, majority United States v. Alaska see the S.S. 253 U.S. dissent in PCC 116, Stations, Inc., - U.S. -, (1920) ("The v. Fox 40 S.Ct. Television L.Ed. 808 1800, 1811, 129 S.Ct. subsequent legislation 173 L.Ed.2d 738 .... renders the case (2009); J., moot.”), (Breyer, dissenting). id. at 1830-31 and this is such a case. 359). against What is true of suits requiring the A.2d at court’s order

portion violations of agencies alleged for license. See federal revoke AUD’s Commission against Dis- duties is true of suits v. Bonner Mall federal Mortg. Co. Bancorp U.S. agencies alleged for violations 130 trict P’ship, 513 U.S. Thus, in (1994) law. imposed by if a District (explaining that duties L.Ed.2d 233 Club, Club, we held that Sierra awaiting Sierra moot while has become judgment right had a organization, environmental review, court not consid- appellate allegation of its merits, judicial vacate review should reverse or but er its recycling program suspended remand with a District judgment below law; dismiss.) following District in violation of direction (and cases), emphatically other NAACP private right B. that a rejected the District’s contention argument. action right analysis of action had private question on the whether the Dis- bearing argument is principal The District’s by private actions were reviewable trict’s obtain review of the Com cannot AU aggrieved by those actions. party that was licensing decisions because mission’s Club, at 357-61. Sierra 670 A.2d pri Mill not create a Act does “Diploma case, Similarly complaint in- AU’s right of action to enforce D.C.Code vate challenge agency volves a routine action. argument This fails for two 29-618.” Thus, ability to obtain review of AU’s reasons. depend actions on Commission’s does matter, the Dis As a threshold of action. private right the existence of a “private right argument trict’s of action” claim that 29-618—the The District’s nearly holding foreclosed our squarely Mill Act that bars edu- Diploma provision “[j]udicial reviewa- years ago fifteen using institutions from the word cational depend bility agency action does not “American” in their titles —does not create private right the creation of a of action rights overlooks privately enforceable also sought the statute be enforced.” Dis suing anybody the fact that is not for AU Club, v. Sierra trict Columbia Rather, violating suing 29-618. AU is (D.C.1996) (citing Japan Whaling violating the ELC Act Commission Soc’y, Ass’n v. Cetacean American by granting a license to and to Gold- n. U.S. S.Ct. True, theory why stein. AU’s (1986)). then-Judge Brey As L.Ed.2d abused its discretion under involving er in a case the federal explained Act is that the could ELC Commission Act, “it Administrative Procedures is diffi a long not issue license AUD so why cult to understand a court would ever in But latter was violation of 29-618. in Congress, enacting hold that statute (how it?) allege does not could AU obligations, implic has creates federal itself violated 29-618. Commission itly private right of action created Therefore, battling a straw- the District is government, for there against the federal man when it claims that 29-618 does hardly any Congress ever need for to do action. private right create a of so. That is because federal action is near brief, the District makes an ly always conformity reply reviewable for In its “private right from its statutory obligations ‘pri argument without such different ” claim; principle vate action.’ v. of action” it relies on the right Secretary of NAACP Dev., not to or agency prosecute 817 152 that decisions Hous. & Urban F.2d of (1st Cir.1987) Club, unreview- presumptively in not to enforce are (quoted Sierra 670

183 Chaney, struggle v. 470 later and the E.g., Heckler U.S. between AU able. instance, 821, 881, 714 105 84 L.Ed.2d For if after our S.Ct. Commission. (1985); v. District Tucci decision in this case the re Commission of (D.C.2008); & Assocs. v. A.2d J.C. vokes AUD’s license but fails to seek other Appeals Bd. & District Columbia AUD, against enforcement the Commis of of Review, (D.C.2001); 778 A.2d Si likely rely on the presumption sion will Club, 670 A.2d at 860. We have no erra attempt order resist AU’s to force its general as a quarrel proposition with this (And further. private hand because “a “ Indeed, we have held that ‘the matter. judicially cognizable citizen lacks a interest and when to insti- determination whether prosecution nonprosecution of against a proceedings tute enforcement another,” D., Linda R.S. v. Richard individual is a core executive re- specific 614, 619, U.S. 35 L.Ed.2d may reasonably which be sponsibility (1973), also will not be able to AU agen- committed to having viewed as been Attorney’s force the Office to prose U.S. cy preclude discretion so as substantive AUD.) however, juncture, cute At this Tucci, judicial review.’” 956 A.2d at 690 presumption unreviewability of does not Club, 360) Sierra 670 A.2d at (quoting bar review of the Commission’s actions. (brackets omitted). Tucci concerned two end, reviewability as far as District residents —the Tuccis—who were concerned, this case is no different from by, among things, other their frustrated challenges agency the host of to District neighbors’ alleged properly failure to dis- Consider, year. actions that we hear each pose garbage. of Id. at 687-88. In re- example, challenges to decisions sponse grievance, to this Tuccis sued District regulators permit new construc- seeking requir- a court order the District tion, variances, sign zoning off on or the ing “more robust enforcement” of the Lit- See, like. e.g., Cathedral Park Condo. against ter Administration Act Control v. Zoning Comm. District neighbors. their Id. at 690. We affirmed of Comm’n, (D.C.2000); grant summary judg- the trial court’s 743 A.2d 1231 Down- claim, ment in favor of the District on this Congregations town Cluster District holding that the enforcement action that Zoning Adjustment, Columbia Bd. sought the Tuccis was “a core executive (D.C.1996); Dupont 675 A.2d Circle function to the discretion” of committed Barry, Ass’n v. Citizens 455 A.2d District, judi- turn meant that (D.C.1983); Brentwood, see also cial review of the Tuccis’ suit was “preclud- (D.C.1995) (holding ed.” Id. liquor “holders licenses the same neighborhood” recipient as a license had presumption that enforcement deci standing “to regu- assert the violation of a inapplicable sions are reviewable is prohibiting lation the issuance of a liquor that, simple for the reason unlike case license an establishment located within Tucci, plaintiffs challenging AU is licensee”). 400 feet of another have We actions that the has taken — to suggested ag- never in such cases that an wit, grants of licenses to Commission’s grieved party’s right judicial to review of Chaney, and Goldstein. See AUD Assocs., 831, 105 1649; agency’s the decision is on the at & conditioned U.S. S.Ct. J.C. (“if private right existence of a of action in the Mayor A.2d at 308 the does choose action, agencies that the are may alleged to take his decision be contest statutes to another”). short, way although ed one or The unreviewa- have violated. In our re- deferential, may bility presumption agency of course resurface view action often is omitted). relies on Rule at all can be had tion marks AUD that no review the notion here, 19(a), says, as relevant that “cannot be reconciled with in this case party an absent “claims an interest or with the sound where precedents applicable relating subject to the of the action and is them.” Si- policy that underlie reasons of disposition situated that the of the ac- Club, so 670 A.2d at 357. erra person’s tion in the absence as a argument. Rule 19 C. The practical impair impede per- matter that have concluded AU’s Although we interest,” the ability protect son’s to that licensure of challenge to the Commission’s I, join party. Citing court that must AUD moot, challenge Com- AUD is AU’s argues that the trial court should AUD live agent mission’s licensure AUD’s failing action for to have dismissed AU’s to hold that agent continues because that, join according certain institutions to below, explain As we shall license. AUD, also stand to lose their licenses as a its dis- that the abused hold Commission per- result of action. We are not AU’s a license to AUD’s by granting cretion suaded. merits, how- agent. discussing Before The difference between I and this AUD ever, argument we must address AUD’s I, case is we held straightforward. AUD by failing the trial court erred joined have as a that AU should AUD to name failing dismiss action for AU’s right defendant because “AUD’s to retain Super. R. necessary parties under Ct. Civ. at the center of the Superi- its license was 19(a). why and the dispute very or Court reason above, mentioned when AU first sued As complaint Superior AU filed a Court AUD, over its licensure of seeking declaratory injunctive relief.” indispensable we held that was an AUD contrast, 930 A.2d at 208. In the licenses not have been party and that AU should rights of the seven institutions whose AUD suit without proceed allowed to with its now seeks to invoke were neither “at the A.2d at 210. naming party. as a AUD Superior dispute” center of the nor Court to the trial court and filed So AU returned very why “the reason” AU sued the Com- complaint a new in which it named AUD as True, Superior mission Court. Id. with the along co-defendant Commission. that the unlaw- holding Commission acted says enough. not Accord- AUD was fully granting licenses to AUD, ing required join also AU was “negative could well create a as defendants seven other institutions— precedent” for a But few host entities. American Petroleum In- ranging from the generis; litigation pro- cases are sui often Housing Corpora- stitute to the National duces decisions that have effects that ex- says Learning tion Center —that AUD will beyond parties tend before the court. agree with be affected AU’s suit. We mean, however, every That does join entities other

AU its failure potentially requires case of broad import require than the trial court to AUD did joinder person under Rule 19 of each dismiss the case. entity gain that stands to or lose from otherwise, necessary parties litigation. “Joinder of the rule Were regulations governed by every challenge gun Rule which makes clear control questions compulsory joinder are to the wake of District — Heller, —, con practical be resolved on the basis of U.S. S.Ct. (2008), require join- would Temple siderations.” Raskauskas v. Real L.Ed.2d 637 (D.C.1991) owners, Co., (quota- gun of millions of would-be ty der by abused its discretion gov- and state and local purchasers, gun granting not the law. Goldstein a license. We conclude That is ernmental bodies. yes. case, question the answer potential impact the Similarly, in this a But because Goldstein obtained license parties not before the litigation of this AUD, must solely represent begin joinder the of those require court did not by analysis explaining why our the Com- parties. grant of a license to mission’s AUD was by the Dis persuaded Nor are we plain language never reconcilable with the required to argument trict’s that AU was Act, Diploma of the ELC Act and the Mill join Goldstein. complaint amend its ineligible even before AUD became to hold (Goldstein agent’s his license af obtained maintaining a license virtue of not a complaint, ter filed its and was not AU “facility” pages in the District. See ISO- action). a in AU’s It named as defendant 82, supra. certainly is notable AUD—which Act, 38-1302(12), § says ELC procedural objections to raise knows how that the Commission’s licensure an edu holding to lose from a and has most contingent cational institution “shall be abused its discretion that the Commission upon said educational compli institution’s agent’s Goldstein an license— granting ... applicable ance with all other D.C. join failure to has not claimed AU’s applicable laws.” One of the laws is 29- moment. And with Goldstein is portion of the Diploma Mill Act good Although plainly reason. Goldstein “any that makes it a crime for individual case, in this his interests has an interest association, individuals, incorporation or or are for all intents and and AUD’s interests outside of the District of Columbia which Therefore, purposes identical. and be shall undertake to do business the Dis adequately represents cause Gold- AUD degrees trict of Columbia or to confer or interest, was not a neces stein’s Goldstein title, certificates therein” to “use as its Bd., sary party. Navajo See Ramah Sch. part, or in whole word American.” Babbitt, Inc. v. 87 F.3d University American in Dubai has the (D.C.Cir.1996) (“If nonparties’ inter By word “American” its name. solicit adequately represented by par ests are a ing clients the District with Goldstein’s ty, impair will not or impede suit help, doing business in the Dis AUD interests, nonparties’ and therefore the (8th trict. See Black’s Law DictionaRY ed. nonparties will not be considered ‘neces 2004) (defining “doing business” as “[t]he ”); sary.’ Ltd. v. Props., see also Vale Can activities; engaging act of in business spe (D.C. Tales, Inc., terbury cif., carrying of a out series of similar 1981) (trial may deny court motion to in acts purpose realizing pecuni a 24(a)(2) tervene under Rule “when an ex benefit, ary accomplishing or otherwise objec the same ultimate isting party seeks goal, doing single act with the inten party]”). tive as the This is not a [absent acts”). starting tion of a series of such party case where the absent “is without a violating AUD thus is and thus litigation.” friend Atlantis Dev. [the] eligible is not for licensure. States, Carp., Ltd. v. 379 F.2d United (5th Cir.1967). The arguments raised AUD and the why reject District as to we should D. The merits. straightforward reading of the statutes are Having procedural persuasive. says cleared under- brush, question says we turn to the whether the cannot mean what it because other-

186 part, will ensue in cases For its District does not results wise absurd as, seriously other entities —such that certain contest AUD comes within involving instance, § the International Graduate plain text of 29-618. The District relevance University. nonetheless, fail to see what We argues, ignore that we should case hypothetical result in a has an absurd plain language because House and hand; here at our task is to in the case Reports accompanying Senate that section the relevant statutes to facts apply allegedly show that the Act was “not de us, not to conduct an overbreadth before signed prevent operation of edu analysis involving hypothetical pat- fact clearly cational that are institutions v. terns. See Everton District Colum defrauding public by using ‘deception of (D.C.2010) bia, 595, (appel 993 A.2d by way implying official connection with ” challenge standing lant no “ha[d] [a] the United States Government.’ But a hypothetical application statute based on “[b]y delving legislative history into the situation”) (citing Leiss v. to a different establishing statutory before that the lan (D.C. States, 364 A.2d United guage is ambiguous, [the vio District] 1976)); Gorgone District principle statutory a fundamental late[s] Adjustment, 973 A.2d Zoning Bd. statute, interpretation. interpreting ‘In (D.C.2009) (petitioner “rely could not plain look meaning we first of its rights of to avoid a on the others result language, unambigu and if it is clear and him”); just as see also Ball v. [was] result, produce ous and will not an absurd ” P’ship/Southern Arthur Winn Gen. Hills we will look no further.’ Beaner v. United (D.C.2006) 905 A.2d Apartments, States, (D.C.2004) (quot 845 A.2d (“courts may statutory not rewrite lan- (D.C. D.H., In re ing 666 A.2d merely pressed because when to an guage 1995)). Thus, to the extent that the legis application yields extreme a seemingly history lative evidences a narrower intent result”). case, there absurd plain language Diploma than the nothing absurd in the conclusion that Act, the statutory prevail. Mill text must University ineligible American in Dubai is stating legislative id. See Cases his prohi- for licensure because it violates the tory may the meaning elucidate of statuto § bition in 29-618 that an education insti- ry language “superficial clarity,” e.g., tution not have word “American” in its Stores, Peoples Drug Inc. v. District of absurd, name. Far from the only it is (D.C.1983) reading of especially defensible (en banc), contrary are not to the because coupled when with the dictate in 38- there is nothing “superficial” about 1302(12)that to obtain a license an institu- clarity of 29-618. comply tion with all applicable must D.C. At the gilding lily, risk of we add laws. To the extent believes plain today long that what is to us has poor policy, that the result makes for its plain applied been to the District —as to all remedy legislative lies with the branch. institutions, is, (“Laws educational Ball, except See 905 A.2d at 152 enacted instance, For the office of intention, test, AUD. good put when Corporation wrote that Counsel “National frequently, surprise and to the of the law- himself, University” mischievous, could not be licensed to do maker turn out to be business in the District because it had the objectionable. absurd or otherwise But in name; such “national” in remedy Corpora- case the lies with the word law explained, tion there was “no au- making authority, and not with the Counsel courts.”) omitted). (quotation thority exemption” on this provide marks

187 in a new 1991, adopting policy such matters” Deputy in the Cor- Similarly point. arbitrary capricious”). “would be advised the Commission Counsel poration University was National Graduate that short, § violating is and AUD by the Commis- eligible “not for licensure follows, licensure. It ineligible thus is ‘national’ in the use of the term sion due to conclude, employ we cannot AUD 2000, Depart- the July And in its name.” indirectly to do what it cannot do Goldstein Affairs Regulatory ment Consumer would render directly. To hold otherwise position the that “American Universi- took essentially meaningless the toothless Inc.,” Asia, 38-1302(12) for licen- eligible § was not ty of in that to obtain a statement “American” “all comply because it had the word license an institution must sure Yet, applicable regulations.” laws and notwithstanding name. how D.C. in its Nothing suggests § in the ELC Act that the respect 29-618 with to oth- interpreted permit Council intended to institutions to ers, ap- the for some reason Commission 38-1302(12) by simple expedi- § the evade Perhaps in 1998. proved AUD’s license course, hiring agents. ent of Of the Coun- absurd, interpretation was sensing cil could have written the Act so as ELC approved in six month twice 2001 ELC to deviate from the “ancient maxim of the license, each time renewals of AUD’s sub- person law that what is forbidden to a “change ject requirement AUD he agency do himself cannot do gamely name.” But AUD informed [its] Deal, Thompson another.” v. 92 F.2d renewal that it the ELC before the second (D.C.Cir.1937); accord J.H. Marshall “unwilling to abandon its name” and was Assocs., Burleson, & Inc. v. 313 A.2d suddenly, never did. So ELC (D.C.1973). nothing But in the lan a three- explanation, approved and without guage supports Act the conclu ELC license, removing renewal of year permit sion that the Council intended to change that AUD its name. the condition Therefore, this counterintuitive result. still, following unex- Curiouser construction,” St. “sensible School As plained despite renewal of AUD’s license v. P’ship socs. Ltd. District of law, the on at its violation of District ELC (D.C.2001) (quotation 764 A.2d two occasions informed the “Ameri- least omitted), Act that it marks of the ELC Academy of Traditional Chinese Medi- can permit grant does cine” and the “American Institute of Busi- license to an of an institution § prohibition Studies” of the 29- ness eligible itself is not for licensure. using 618 of the word “American” The deviation name of their institutions. reject also the Commission’s We (without explanation) long- of the ELC’s grant decision to a license to Goldstein licensing institu- standing policy against brings because it the ELC Act and the solely in violation of 29-618 for the tions Diploma Mill Act into needless conflict exam- quintessential benefit of AUD is the with one another. Under the Commis arbitrary capricious government ple Acts, reading of the two Goldstein sion’s action to which we owe no deference. See may obtain license under ELC Act — Stations, Inc., FCC v. Fox Television violate though helping even he is -, statutory interpretation U.S. 29-618. But (2009) (“a endeavor; explana- possible, L.Ed.2d 738 reasoned a holistic to the extent statutes, facts and read disregarding attempt tion is needed for to harmonize way en- makes them run head underlay circumstances that or were them a See, e.g., another. In re prior policy”; ignore long “to into one gendered by (D.C.2008); 945 A.2d The dissent would read the use of Jacoby, 38-1306(a) G., Jackson, “may” vesting M.M. & Inc. Com (D.C.1992); mission with unreviewable discretion to li Floyd Mortg. E. Davis agents. respectfully cense disagree We Corp. v. District 455 A.2d of analysis. (D.C.1983)13 “Only upon showing this a case, In this the of clear and convincing evidence of a con way to harmonize the ELC Act with the trary legislative intent should the courts Mill Act is to read the former as Diploma judicial restrict access to review.” Sierra grant the a permitting Commission Club, (quotation 670 A.2d at 358 marks agent license to an of institution who is omitted) Gardner, (citing Abbott Labs. the institution violate the helping latter. 136, 141, 387 U.S. 87 S.Ct. Indeed, regulation implementing in a the (1967)). view, L.Ed.2d 681 In our such Act, the itself appears ELC Commission convincing clear and lacking evidence is recognize point. See DCMR 5- Contrary this case. to what dissent (recognizing A8003.2 that the Commission suggests, see Post at the use of the imposing require has some discretion in “may” word is not sufficient to establish institutions, ments on educational but not that the legislature preclude intended to ing “may that the Commission not waive a Indeed, agency review of action. even requirement any of in exercising statute” cases that conclude that a pre statute authority). that cludes review do not their analysis rest sure, recognize To be that 38- “may” the use of the word alone. For 1310(a)(6) says that “in determining instance, Doe, in Webster v. 486 U.S. whether to an agent” license the Commis- (1988), 100 L.Ed.2d 632 “may apply” sion the standards of the Supreme provision Court held that a of the Act governing ELC the licensure of insti- Security National Act of 61 Stat. means, All that tutions. this section how- provided that “the Director of Central ever, is that the Commission use dif- discretion, Intelligence may, in his termi ferent determining standards for whether nate employment officer or to license an opposed institution as employee Agency of the whenever he shall agent. institution’s To give logical one necessary deem such termination or advis example, the requires that in- States,” able in the interests of the United stitutions seeking 403(c), license demonstrate precluded judicial U.S.C. re libraries, they have see DCMR 5- view of a termination decision made A8003, Webster, require but does not the same Director. 486 U.S. at showing agents. follow, It does not rely, S.Ct. 2047. The did Court however, 1310(a)(6) just however, because simply on the fact that the stat 38— permits apply Rather, the Commission to “may.” different ute said concluding agents institutions, standards than “fairly statute exude[d] deference” to Director, Commission also has discretion grant the Court focused on the license to an where the institution statute’s use language “deem ... itself ineligible for licensure on account advisable.” Id. The Court reasoned this being in violation of criminal law. language demonstrated “[s]hort agree 13. We legislatures together,' understand the dissent to on this different enacted them principle, though application not its in this reconciling possible”) (quoting them if United (stating case. See Post at 197 that "we must Noble, States Parole Comm'n v. legis- construe actions an earlier and later (D.C.1997)). subject though lature on the same 'as permitting cross-examination of the Di- analyzing an agent’s eligibility for licen- concerning rector his views of the Nation’s sure under the Act are ELC found in the security discharged and whether the em- standards that apply to the licensure of (ie., interests,” ployee was inimical to those institutions agents entities that represent), seek to there was “no basis on which a the text of reviewing the ELC Acts, Diploma and the Mill properly court could agency assess ter- settled addition, principles statutory mination decision.” Id. In construction. judicial Court reasoned that review of the E. The remaining arguments. dissent’s Director’s decision to terminate an em- We now turn the arguments advanced ployee would unduly undermine the CIA’s in the dissent that we have not addressed “effícacy[ and the Nation’s security,” ] be- already. The begins by dissent suggesting “depend cause both in large measure on (though firmly deciding) that AUD reliability and trustworthiness of the does not do business the District Agency’s employees.” Id. through Goldstein for the purposes of the The Act ELC does not have anything Diploma Mill Act. In reaching this conclu- resembling the language analyzed broad in sion, the dissent places heavy reliance on Nor does Webster. review of the Commis- cases decided around the time that sion’s decision to issue a license to an Diploma Mill Act was enacted that inter- principal ineligible whose is li- for preted the term “doing business” for the implicate weighty policy censure con- purposes of deciding whether service of cerns that the Court identified in Webster process was effective. See Post at 193-94. Therefore, weighing against review. we We do not believe that those provide cases do not believe that the use of the word a point useful for analysis, and not simply 1310(a)(6) “may” §in precludes review 38— because, as the dissent acknowledges, see in this case.14 194, id. at those cases were “implicitly Nor are we persuaded by the rejected” dissent’s by International Shoe Co. v. 830, reliance on Chaney, 470 at Washington, 310, U.S. 105 154, 326 U.S. 66 S.Ct. 90 (1945). proposition S.Ct. for the reason, rather, L.Ed. 95 is Act provide ELC does not “judicially man that the dissent mixing apples and or- ageable standards ... judging how anges. and process service of and personal when an agency should cases, exercise its discre jurisdiction “doing business” is a tion,” thereby making “impossible” art; cases, term of question in those us to evaluate the Commission’s action the words of a decision cited the dis- this case. sent, Post at 198. The “narrow ex is whether the level of business that a ception” that Chaney recognized, 470 U.S. defendant jurisdiction conducts 826,105 at S.Ct. does not change the where it is sued is “of such nature and outcome in this case. Although difficult character as to warrant the inference” that 1310(a)(6), cases arise under “by duly defendant authorized offi- 38 — case is not hard. The “judicially managea agents cers or present within the state standards,” Chaney, ble 470 U.S. at or district attempted.” where service is upon S.Ct. rely in People’s Tobacco v.Co. American Tobacco J.D.C., 14. The dissent reviewability cites In re 594 A.2d 70 of administrative action. In- (D.C.1991), stead, proposition for the that the stat- J.D.C. concerned a trial court's denial "may” use of dispositively ute’s the word aof motion to exclude members of the media shows that the Council preclude intended to factfinding hearing juvenile from a in a mur- nothing review. But J.D.C. had to do with der case. Id. at 74. titles of in the “American” L.Ed. the word Co., 246 U.S. foreign lands learning early- (1918). institutions Late-nineteenth to indicate solely a narrow cases took where the word served century twentieth in this context “American origin, business” such as the “doing place of view of jurisdiction Rome,” notions of “American “traditional at Academy because conception Athens,” territorial on a at were based Studies School Classical against a brought Beirut,” to be actions permitted University at “American in which jurisdiction defendant and col- well-known schools and other personally served he was found 73d Rep. H. No. abroad. leges Wright Miller, process.” Federal (Mar. 23,1934). & Cong, Sess. (3d at 352 Procedure Practioe & that “American Uni- Congress thought If id., 2002); at generally also ed. see reasoning okay, was versity at Beirut” § 29- explain why does The dissent what can be at then goes, see Post reading, crabbed with this 618 comes University in Du- “American wrong with indication the statute we find no bai”? it those enti- to limit to Congress intended cause Report does not The Committee in Dis- doing business that were ties the act. As we reading of us to alter our as meaning of cases such trict within the above, we do not find resort to mentioned Rather, prohibition People’s Tobacco. history helpful in this case be- legislative broadly, applies worded in 29-618 is Mill Act Diploma we think that the cause incorporated that were equally to entities Beaner, face. is clear on its See entities that in the District as well as to Moreover, we do not find the at 534. of the District incorporated were outside Report reading of the Committee dissent’s in to do business” and that “undert[ook] report itself is because the persuasive or certif- degrees “or to confer District (“So the matter far as rather tentative on 45 Stat. ch. 523 icates therein.” determine”). Finally, the committee can 1929). (Mar. 2, sweeping In view of this cor- that the dissent is assuming arguendo import to ser- we see no reason language, Report shows rect that Committee analysis law into the process vice of case unnecessary to amend though it Congress entity undertaking is to do whether an institutions such grandfather the statute to §of 29-618.15 purposes for the business Beirut, con- University as American by the dissent’s persuaded Nor are we shaky strikes us as too gressional inaction discussing analysis legislative history See rely to on this case. a foundation Diploma Mill the 1934 amendment Craft, States v. 535 U.S. United at 194-95. The dissent Act. See Post (2002). L.Ed.2d 437 S.Ct. a following passage from hones Report accompanying suggests that our anal- House The dissent also Committee it would lead to ysis wrong that amendment: is because involving not- determine, results in cases “peculiar” So far as the committee can AUD, at 196. for-profit institutions. Post intent to forbid the use of there was no Kentucky purposes for of service Incidentally, we are far less certain than business” alia, when, defendant was process inter appears be that a court in 1929 the dissent of business doing a course involved in "continuous held that AUD was not would have Kentucky within of orders” purposes in the solicitation the District for the business in authority agent to re- employed process. Harvest- service of See International checks, money, or drafts” "payment in Kentucky, ceive er 234 U.S. Co. (1914) (defendant Kentucky). “doing 58 L.Ed. 1479 was however, institution, and the believe the /or-profit court has an insufficient basis any- that there suggest disturbing dissent does not the Education Licensure thing peculiar licensing about the result we reach as Commission’s decision as to Mr. do not believe that an Goldstein. I also see no to AUD. We thus basis conclud- does, peculiar hypothetical ing, result in a as the court that “the allegedly Commis- sion abused its discretion in involving not-for-profit granting case institution Gold- Therefore, an agent’s stein license.” I especially has relevance here. This is do join Mill Act in the decision to affirm the Diploma so because fact order not-for-profits differently requiring than for- Commission to revoke treats Mr. profits: gives agent’s Goldstein’s Commission license.

discretion, circumstances, under certain A. prohibition”

“waive the of that section for not-for-profits, but not authorize the does According my colleagues in the ma- to make a waiver in re- Commission such jority, problem with the Commission’s spect for-profits. licensure Goldstein is that he is “helping” AUD violate section 29-618.1 I IV. Conclusion majority’s believe that the premise —that

The trial court’s order is vacated insofar AUD is violating section 29-618—is either required as it revoke outright mistaken or sufficiently in doubt license, is affirmed insofar ought that it not to be the basis for court- required the Commission to revoke Gold- ordered revocation of Mr. li- Goldstein’s stein’s license. cense. So ordered. It is evident that has AUD “American” name, legitimately in its raising question THOMPSON, Judge, Associate about whether a violation of section 29-618 concurring part in in dissenting part: and is afoot. answering question But of I agree portion with that of the violating court’s whether AUD is section 29-618 opinion that concludes that requires issue of considerable analysis, additional licensure is moot and AUD’s vacates the both as to the facts of record and the law. requiring order revocation of li- To recap slightly expand AUD’s and upon some of However, cense. I my do not share col- the relevant began facts: AUD as a leagues’ confidence that has campus AUD “under- branch of American InterConti- to do in the University, university take[n] business District of nental incorporat- within meaning Columbia” in the Georgia D.C.Code ed State of and accredited scope because the of that statu- Colleges Commission on because, tory phrase is plain my not and in Colleges Southern Association of and view, (the Association”). legis- best indicators we have of Schools “Southern In lative legislature intent tell us that the did AUD ceased to be a campus branch phrase type not use the to refer to the of of American University InterContinental activities that conducting AUD is in the and separate obtained Southern Associa- through District of Columbia its agent, Mr. tion accreditation. AUD has no classroom indicators, In light Goldstein. of those I or other educational facilities in the Dis- 1937). maxim,” id.., My colleagues accept invoke the maxim that “what I that “ancient But, person applies broadly. is forbidden to a to do himself he a venerable one that agency cannot do explain, inappo- of another.” reasons I shall the maxim is Deal, (D.C.Cir. Thompson v. 92 F.2d in site this case. here, in Du- space opportunities leases no dents for educational trict of teach, instruction, bai. provide or and does in the District Columbia. degrees

confer in section 29- prohibition The contained Rather, educational services provides applicable any is educational institu- Dubai, Arab campus United from its tion chartered the District of Columbia According to the affidavit of Emirates.2 provisions subchapter under the of Title 29 Masi, de AUD retained President seq. 601 et any and to other educational Michael Gold- agent, the services of an that “shall undertake to do busi- institution stein, study- knowledgeable about who ness in the District of Columbia or to prospective degrees to “inform confer or certificates therein.” programs, abroad parents and their within Because AUD is chartered Dis- [the] students not confer de- and its trict Columbia and does District of Columbia about AUD here, grees subject prohibition it is to the offerings Dubai and programs of section 29-618 if it “shall undertake they should decide to enroll enroll students to do business in the District of Columbia” programs offerings while it retains “American” in its name. Mr. Goldstein maintains an office Dubai.” Chapter Chap- Neither 600 of Title 29 nor Avenue, Hampshire on New N.W. his ter Title 13 of 38 of the D.C.Code defines Commission, testimony before Gold- business,”3 the term “undertake to do explained: stein regulations the Commission’s also contain office purpose having agent no definition of the term. To answer things that one of the that the here is question of whether doing AUD is busi- large school has found is there is a District, majority ness in the turns population going Eastern back Middle immediately, exclusively, and forth between countries in the Mid- Dictionary “doing Black’s Law definition of Washington particular, dle East and quickly business” and concludes that AUD finding and ... we are a certain number doing (through business here because enrolling of students with an interest in Goldstein) carrying it is out acts for learning oppor- or in about educational purpose realizing pecuniary the of bene- they tunities in Dubai while here are appropriate rely fit. It often is to provide we would an point and access when, here, dictionary definitions as the for that information. legislature has not defined a term used But, Mr. Goldstein’s card the objec- business states relevant statute. since our always he is “an authorized AGENT to enroll tive must be the legisla- to discern and, in the possible, students District of Columbia on tive intent as far as to read short, behalf of’ In far provisions AUD. as various of a statute harmo- discloses, niously, record what AUD does in the I believe we should be careful not through agent rely dictionary exclusively District of Columbia to on the when provide information leg- about and enroll stu- there are other indicators of what the Masi, According Chap to the affidavit of Lance de 3. We have looked to the definitions in President, Foundation, construing Chapter ter 13 of Title 38 in 600 of "the AUD's Clinton es- Title 29. Nova Univ. v. Licen Clinton, See Educ. Inst. tablished former President Bill Comm’n, (D.C.1984) A.2d sure 483 1179 study-abroad scholarship has established a (looking "operate” to definition of program for American students who to wish (1981) (now D.C.Code 31-1602 codified as spend one or more terms” at AUD. 38-1302) interpret section to D.C.Code 29- (now 29-615)). 815 codified as section

193 ... shown was in sub- business “[t]he the terms it used meant islature nothing more than that of solicita- and when a stance prohibit,4 meant to what it who, employed agent makes it difficult tion”—defendant dictionary definition Pennsylvania, of an exist- from an office in portions working harmonize various money from customers and issued took ing statute. they exchange prepaid orders could prohibition name enacted the Congress to defendant’s rail- for tickets to transfer of section provisions “doing business” Chicago defendant was not road —the many There are court 29-618 in 1929. for “doing Pennsylvania pur- business” vintage roughly of same decisions poses personam jurisdiction.6 of in See company it meant for a addressed what Ry., v. Air also Cancelmo Seaboard Line (for jurisdiction pur- in a “do business” (D.C.Cir.1926) (holding 12 F.2d 169 pro- to service of being of amenable poses company a railroad that had no tracks purposes for of jurisdiction, cess doing within a district was not business compa- foreign that denied state statutes therein where it an office and “hire[d] right in a state the doing nies business merely for the inci- employ[ed] without a certifi- sue in the state’s courts freight of solicitation of dental business business). cate authorization to do of traffic”); passenger Knobel v. Sea- Co., v. Am. Tobacco People’s Tobacco Co. Co., Ry. Air Line 12 F.2d 169 board 233, 62 L.Ed. 587 38 S.Ct. U.S. (D.C.Cir.1926) (same); Bag Chase Co. (1918), example, Supreme Court (D.C.Cir. Line, 295 F. 990 Munson S.S. “practice foreign corporation’s held that a 1924) (citing People’s prop- Tobacco for the in Louisiana and advertising of its wares “it osition that is the settled law that having authority no sending agents into sending soliciting agents into a practice beyond did not constitute do- solicitation” doing not amount to that state does ing pur- within the State for the business subjects corporation business which process.5 In Green v. pose of service Co., Chi, jurisdiction purpose the local Quincy Ry. & Burlington it”) (internal quo- 530, 53233, 534, process upon service of 51 L.Ed. U.S. S.Ct. omitted).7 (1907), marks rulings held that where tation the Court shipment course of of ma- than make a fortress out of the was a continuous 4. "Rather dictionary, Kentucky”). Court should instead at- chines into legislative tempt implement the intent of Gunther, Congress.” Cnty. Wash. v. Line, 40 6. But see Wendell v. Holland Am. 198 n. U.S. (D.C.Cir.1913) (distinguishing App.D.C. X, (1981) (Rehnquist, dissent- L.Ed.2d 751 agent’s Green as a case where the work was ing). "subject by [foreign] to ratification com- holding pany,” that the defendant was Pigg, Int'l Text-BookCo. v. 217 U.S. But see doing subject business in the District so as to 91, 100, 105, 481, 54 L.Ed. 678 30 S.Ct. jurisdiction personam here where it it to in (1910) (holding Pennsylvania company who, agent paid commissions to an from an doing correspondence-school was its business District, passage in sold tickets for office agent employed where it in in Kansas steamships and "com- on the defendant's accepted applica- who solicited and Kansas defendant, plete[d], the contract on behalf of from students and collected and for- tions part transportation, no of said contract money company, for- warded to the which remaining open approval for confirmation or papers apparatus to warded instructional defendant”). by Kansas); in Int’l Harvester Co. v. the students 579, 586, 587, Kentucky, 234 U.S. 34 S.Ct. Columbia, 21 944, (1914) v. District (agreeing 7. See also that com- 58 L.Ed. 1479 Beitzell (D.C.Cir.1903) (discussing a Kentucky App.D.C. doing in where pany was business person that declared that "no agents orders there and "there 1902 statute solicited jurisdiction in intent many personam suggest contrary of these ture’s that a inter- in “implicitly rejected” cases were Int’l pretation likely is more the correct one. Washington, v. 326 U.S. Shoe Co. Congress amended section 29-618 in (1945), Hughes 90 L.Ed. 95 see S.Ct. grandfather, 1934 to thereby exempt Co., Robins 1145 n. A.H. naming from the prohibition, American (D.C.1985), rulings but nevertheless Cairo, University at a District-chartered insight Congress into what provide some institution, educational and any other Dis- in by would have meant “under- trict-chartered educational institutions that in tak[ing] to do business” the District of received their charters April before They questionable make it Columbia.8 1934.10 See 73 Pub.L. 48 Stat. 592 whether, by using the term “undertake to 16, 1934). (Apr. Discussing legis- the 1929 Columbia,” do business in the District of lation, accompanying Committee Re- Congress meant to include within the port of the Committee on the District of reach of section 29-618 an educational in- other, explains why Columbia non-District- presence stitution whose in the District of chartered learning “institutions of in for- Columbia consists of the activities of eign lands” were not in need of relief from agent who advertises the institution’s section 29-618: programs and solicits or enrolls students determine, So far as the committee can for educational services to be delivered there was no intent to entirely forbid the use of outside District of Columbia.9 the word “American” in proceed The cases should make us the titles of cau- institutions tiously concluding learning foreign AUD is under- lands taking to do where the word solely business the District of served to indicate by arrangement place virtue of its of origin, such as the “American agent Rome,” with Goldstein. especially Academy This is so at the “American because other legisla- Athens,” indicators of the School of Classical Studies at engage carry shall pari ... provisions business 618 in materia District for which a li- ("BCA”), Corporation Business Act also codi- imposed by cense tax is the terms of this (and fied Title 29 of the D.C.Code should section, having without first obtained a li- interpret the term "undertake to do business provided cense but to do so" that “a licensed "oper- in the District of Columbia” to mean solicitor, brewer’s whose business is confined facility ate" an educational in the District of soliciting principal, orders his shall not Columbia). particular The District cites in (emphasis be liable license tax" add- (2001), D.C.Code provides 29-101.99 ed)). (a) foreign in its corporation subsection that a procure authority "shall a certificate of from States, 8. See Perrin v. United 444 U.S. Mayor before its transacts business (1979) (looking 62 L.Ed.2d 199 District," (b) but states in subsection that for- ordinary meaning statutory of a term eign corporations need Congress statute”). not obtain certificates "at the time enacted the authority “merely point Because the relevant reason of the is what the 1929 Congress likely appointment would have of an for the understood and solicitation of statutory language meant it chose to business not to be transacted in the Dis- parameters set the and reach of the section trict. ..." prohibition, entirely 29-618 it is irrelevant that early-twentieth-century these cases had a 10.As the first sentence of section 29-618 largely supersed- narrow focus and have been indicates, District-chartered institutions are ed. subject to the statute’s name restrictions with- regard they out to whether otherwise "under- provide 9. The cases thus some reason for take to do in the business” District. accepting appellee sug- District of Columbia’s gestion that we should construe section 29-

195 the Beirut,” understanding understanding of University at “American the —an intent that the 1934 Com- Congress’s 1929 and col- well-known schools and other at a time that was gleaned mittee at abroad. leges from the enactment years most12 five out 1934). (Mar. 28, 1040, 2at H.R.Rep. No. section 29-618 was 29-618 —that of section views recognized that “[t]he court has This learning targeted at “institutions not conclu- legislature are subsequent aof bearing names that indicate foreign lands” one,” of an earlier the intent sive as to The origin.13 institu- their States United (D.C. 569, Ridley, v. A.2d 578 Winters 596 understood that the 1934 Committee tions 1991) J., (Sehwelb, concurring), and so cau- quite names simi- targeted not to be bore in order as we consider again once tion is “American (compare lar name to AUD’s the views of the 1934 accept to whether University in Dubai” to “American Univer- of what the 1929 as indicative Congress Beirut”). And, sity at like the institutions passed when it section intended Congress out, singled the 1934 Committee Nevertheless, the the views of 29-618. institution is a non-District-chartered retro- “carry ‘considerable Congress later degrees and confers provides instruction ” Heckler v. Id. weight.’ (quoting spective campus foreign in a land and from its Turner, 1138, (as 105 S.Ct. 470 U.S. origin a name that reflects its bears (1985)).11 Thus, should university) an in the 84 L.Ed.2d 138 branch of accredited States.14 the 1934 United weight some Committee’s give Ass’n, subject. degree When the is sold ment on v. Indus. also Clarke Sec. See abroad_to ignorant per- 93 L.Ed.2d one to some U.S. that, (1987) son[,] (noting diploma Data Pro- ... with all the Ass'n this comes Orgs. Camp, insignia recognition authority 397 U.S. cessing Serv. (1970), Government.”). Court L.Ed.2d 184 S.Ct. States the United legislative history much of a "relied on the statute, Corpora- ... Bank Service 14.My colleagues majority later in the reason holding [plaintiffs] tion Act of "long plain the District” that it has been of interest’ test” under satisfied ‘zone "applied 29-618 to all educational section statute, Act of AUD,” the National Bank earlier except but the exam- institutions 1934). they proposition ples support cite do nothing prove point. correspon- explains Report that the 12. The Committee Uni- in the record shows that National dence 193) (S. amend- in the 1934 bill resulted by subject opinion versity, the of a 1984 passed the Senate 29-618 had ment section Counsel, Corporation ran afoul of Office Seventy-second Con- Seventy-first and proposed it to have a 29-618 because section Thus, it gresses. H.R.Rep. No. at 1. See Center” location. National Graduate “D.C. (and, possibly, gleaned) held reflected views University, subject opinion of a passage just years after the of section a few Counsel, Corporation ran into the Office of Congress. by the Seventieth 29-618 prohibition it was because section incorporated Columbia law under District of history legislative of section 29-618 13. The offering it was "seminars and also because that, instead, Congress was concerned reveals continuing in the Dis- education courses” institutions, operating with names that about Asia, University Similarly, American trict. government suggested States affilia- United away July Inc. was turned endorsement, selling worthless corre- tion Regulatory Af- Department of Consumer and degrees no aca- spondence for which little or incorporated it under fairs because was required, to individuals in demic work was ap- Corporations Nonprofit Act. And D.C. S.Rep. No. the United States and abroad. See 24, 1928) correspondence that (Mar. ("The pears from Commission degrees are at 23 Academy of Traditional Chinese the American persons resi- by correspondence to sold also abroad, Institute of Busi- Medicine and the American evil had become so dent and this ran into a 29- Studies likewise section foreign governments have ness great that several they incorporat- were Depart- roadblock because State representations made to our step analy- is an additional in the institution from the There section’s name restric- sis—consideration of a 1988 amendment to if tions the institution meets all applicable persuades section 29-618—that me that licensing requirements, which include the majority’s conclusion that is act- requirement that the institution have edu- ing in violation of section 29-618 is incor- cational in facilities the District of Colum- rect. In the Council of the District bia. amended Columbia section 29-618 “to It very peculiar require would be to a permit an educational incor- institution[ ] not-for-profit institution not intending to porated and licensed outside of the District provide educational in courses the District with the word ‘national’ or of Columbia to meet the additional hurdle ‘American’ in its name to offer in courses establishing educational here— facilities Specifically, District Columbia.”15 so as meet requirements just licensure — the 1988 amendment authorized the Com- qualify exemption for an from the name exempt not-for-profit mission to institu- restrictions of pecu- section 29-618. This in incorporated any jurisdiction tion from that, liarity persuades me in addition to the statute’s name if restrictions the insti- applying degrees to entities that “confer or conditions, specified tution meets including certificates” the District of the institution “otherwise meets all 29-618, (1) § prohibi- D.C.Code the name applicable licensing requirements.” tion applies set out section 29-618 in the 29-618(4).16 To D.C.Code obtain a Com- first instance to institutions that can license, which “approv- mission constitutes qualify for Commission licensure because District, see D.C.Code al to operate” (or have) they propose have educational 38-1302(12), an institution must main- (and facilities in the District of Columbia

tain in the District a “facility” from or way in that have undertaken to do busi- through which giv- “education is offered or here); (2) ness prohibition does en, or educational credentials are offered apply AUD, to an institution such as granted.” 38-1302(11), §§ D.C.Code facility has no educational 38-1309. The term “facility” means “a District degrees and confers no or certifi- physical District, structure located short, cates here. the Council’s 1988 classrooms, including housing, suitable lab- oratories, amendment to section resources, provides 29-618 library as re- what I think quired by compelling reason to the nature of the program or the 38-1302(14). reject an body.” interpretation student D.C.Code AUD “does together, Taken business the District of provisions these Columbia” with- establish that, pursuant amendment, to the 1988 in meaning of section merely by 29-618 may exempt a not-for-profit virtue of retaining to provide Chapter ed under gave of Title 29 of the 16. The Council the Commission this D.C.Code. None examples of these shows that authority response proposal by waiver to a previously "plain” District found that in- University Diego pro- National of San i.e., similarly stitutions situated with AUD— vide educational courses members of the law, incorporated under District not hold- District of Columbia National Guard from District, ing classes in the and with no edu- Armory. educational facilities at the D.C. See cational facilities here—violate section 29- Council, Op- D.C. Committee on Government by having "American” or "National” in Report (May erations on Bill 7-253 at 1 their names. 1988); Council, D.C. Committee on Edu- Report cation and Libraries Bill at Council, 15. D.C. Committee on Education (June Report and Libraries on Bill 7-253 at 1 14, 1988).

197 prospective information to students and to B. enroll students for educational programs There is an additional reason why I provided to be in Dubai. One can read the join cannot in the majority’s decision to i.e., statute as an integrated whole— uphold the order directing the Commission they though were together only enacted — to revoke agent’s Goldstein’s license on the

by rejecting that interpretation. See U.S. basis of section 29-618. My colleagues in Noble, Parole Comm’n v. the majority assert that the Educational (D.C.1997) 1087 (recognizing that we must Licensure Commission Act per- “does not by construe actions an earlier and later mit the Commission grant a license to legislature on subject the same “as though agent anof institution that itself is not legislatures the different enacted them to eligible licensure,” they further gether,” if reconciling possible). them assert the Commission “abused its discretion by granting Goldstein a license.” objection that, might be raised I cannot agree with point. either in relying on interpretation reflected in the Council’s 1988 First, amendment to section educational institution licensure is 29-618,1 am improperly relying on the act available if an educational institution later, (ie. of a amending legislature is not chartered the District of Council) to interpret “operates” District; the law enacted if earlier such an legislature institution does (Congress). My operate re- often, District of sponse is that exempt “later law from is entitled licensure, “except weight when it of an comes to the problem of institution who operates in the District Inc., construction.” FHA Darlington, v. shall not exempt....” be D.C.Code 38- 358 U.S. 79 S.Ct. L.Ed.2d 1310(a)(6). words, In other (1958) contrary to the (reasoning that meaning “the majority’s reasoning, the spe- ELC statute a later Congress pointed ascribed” to a cifically contemplates that the Commission conclusion about what an earlier Congress “grant will a license to an agent of an scope intended be the of FHA insur- institution that itself eligible is not ance); Freeman, see also United v. States licensure.” 556, 564-65, 44 U.S. 3 How. 11 L.Ed. (1845) (“The correct rule interpreta- Second, 38-1310(a)(6) section further is,

tion that if divers statutes relate to the provides that the “may apply thing, same they ought all to be taken into the standards of this chapter to the institu- consideration in construing any one of tion in determining whether to license an them”), and Co., United States v. Borden (italics added). agent” The “standards of 188, 198, 308 U.S. 60 S.Ct. 84 L.Ed. chapter” include the requirement of (1939) (“When there are two upon acts 38-1302(12) D.C.Code licensure of subject, the same the rule give is to effect an educational institution “shall be contin- possible”). to both if I believe we should gent upon said educational institution’s reject an interpretation of the reach of the compliance with all other applicable original language of section 29-618 that D.C. including, presume, laws”— “compel would odd result” [the] I have section 29-618. Thus—even if section 29- described above. 618 does not apply on its own terms to Justice, Dep't (1989) Pub. (citation omitted). U.S. Citizen U.S. 105 L.Ed.2d 29-618 of section prohibition screen name apply section may Commission

AUD — the agent a license determining whether to to issue determining to AUD recog have for AUD. We agent an Goldstein.18 license ‘may that “the word repeatedly nized reasons, respect- I foregoing all the For and does permissive,” quintessential^ is fully dissent. re mandate. an enforceable not create (D.C.1991). Ac J.D.C., 1310(a)(6)must be

cordingly, section 38— the Commission conferring upon

read an edu to license

discretion if institution even institution

cational District not do business

itself could section 29-618. running afoul of

without Further, such decision TITLE IN NATIONAL FIDELITY (here, section 29- apply whether to matter NEW OF COMPANY SURANCE determining whether to AUD YORK, al., Appellants, et committed to agent) license AUD’s v. discretion, nothing but also Commission’s 13, the Educational Chapter in Title 38 TILLERSON, III, George E. statute, establishes Licensure Commission al., Appellees. et should for how Commission standard No. 08-CV-1220. judicially no discretion. “[I]f exercise its are available standards manageable Appeals. Court District agency should how and when judging March 2010. Argued discretion, impossible then it is exercise its for ‘abuse of agency action to evaluate Aug. Decided ” Chaney, 470 U.S. Heckler discretion.’ 84 L.Ed.2d (1985); Nat’l Valley Reich v. see also (S.D.N.Y.

Bank, F.Supp.

1993) language (explaining stating that “the Secre- provision

ERISA regula- such

tary may prescribe Labor] [of appropri- necessary finds

tions as he of this title” carry provisions out the

ate to may ac- regulations define

and that “such used in and trade terms

counting, technical per- provisions” “quintessentially

such

missive, Secretary’s action or such that subject is not

inaction under this section omitted). review”) (italics I cannot

judicial majority has on what basis

discern “abused

concluded that subjecting in not

discretion” (or not) may says merely the Commission that the statute to reason 18. It is circular ap- apply to AUD. its discretion choose to Commission abused statutory that the plying standards to AUD

Case Details

Case Name: District of Columbia v. American University

Court Name: District of Columbia Court of Appeals

Date Published: Aug 12, 2010

Citation: 2 A.3d 175

Docket Number: 08-CV-1625, 08-CV-1626

Court Abbreviation: D.C.