People's Counsel v. Public Service Commission

NEBEKER, Before FERREN and PRYOR, Judges. Associate NEBEKER, Judge: Associate (“OPC”) of People’s Office Counsel challenge filed appeal this lawfulness several actions of the District Public Columbia Service Commission (“Commission”). These actions related agreement settlement between General (“GPU”) Public Pennsylva- Utilities and the Jersey-Maryland nia-New Interconnection (“PJM”) designed which was to alleviate problems by prolonged power caused outages of GPU’s Three Mile Island Units 1 and 2. The Potomac Electric Com- Power pany utility is a member of PJM. agreement, Pursuant the settlement approved which by Energy the Federal Regulatory (“FERC”),1 Commission PJM electricity members sell to GPU member utilities equal rate mar- seller’s ginal production plus per- cost ten cent of the difference between cost and the purchaser’s decremental cost of production. agree- Under this settlement ment, utility selling companies to GPU apparently will realize less revenue than previous under pricing arrangement. Pepeo ratepayers would therefore be met expensive utility with more bills. Choosing pursue not to reconsideration (see FERC’s or review thereof (1976)),2 U.S.C. 825 filed the OPC instead Jay petitioner. D. Pedelty for Brian Led- Declaratory Ruling Motion for before erer, Noel, Schell, Elizabeth A. T. John protect seeking rate- D.C. Beasley Michael W. L. Roderic Wood- payers assertedly impact adverse appearances petitioner. son also entered ruling agreement. the settlement respondent. effect, Michael E. Geltner sought declaration, Pepco’s Moore, Jr., Lloyd N. Michael deHaven ratepayers would utili- be shielded from the Lawson, ty Newsom Warner Jr. also en- engendered by cost increases the settle- appearances respondent. tered agreement. ment denied The Commission Opinion why 1. See FERC did Docket No. EL 2. We are unable to determine the OPC pursue approval 80-22. of FERC's agreement. settlement any party hereto for- ruling the to customers motion.3 From this the OPC’s appeal. negate modify mally proposes has taken its OPC interchange results means and suc Pepeo was allowed to intervene proposes are reflected rates and/or appeal, cessfully urg moved to dismiss cost of rate- adjust service for requested the OPC relief indi- making purposes, as a direct or preempted by federal law. See Narra was Agree- this Settlement rect result Burke, Electric v. 381 A.2d gansett Co. ment, objectionable manner any in denied, 972, (R.I.1977), cert. party [Agree- hereto. the affected L.Ed.2d 63 See 98 S.Ct. Compromise, and ment of Settlement Washington Light Co. v. Public also Gas p. Comm’n, 452 A.2d 385 n. 15 5.] Service 21, 1982, (D.C.1982). granted April On we (3) of the impact If allocation ground. People’s the motion that Pepeo share- settlement to the aforesaid Comm’n, 444 v. Counsel Public Service a matter of precluded as holders is not (D.C.1982). 22, 1982, July

A.2d 975 On show the record preemption, federal does receiving petitions rehearing and after (in request People’s Counsel’s light of rehearing en banc from the Commission otherwise), strictly as matter of law— Counsel, People’s pre vacated and we our Com- regard without Service Public reargued vious order. case before expertise and discretion—wheth- mission 5, 1982. the division on On No November precluded as a mat- er allocation is parties asked all vember we ratemaking principles in general ter of questions Supplemental in a four address proceeding? this or another questions were: Memorandum. The (2), (3) (4) (1), presently Are issues (1) of Rhode Supreme Given Court added.) (Emphasis this Court? before opinion Narragansett Island’s Elec Now, Supplemental review of the after Burke, (R.I.1977), A.2d tric Co. upon parties, all Memoranda filed denied, rt. 435 U.S. ce 1614, record, per- we are reconsideration (1978), and footnote L.Ed.2d 63 are not suaded the substantive issues that opinion Washington 15 of this Court’s we dismiss before and that must us Light Co. Public Service Com Gas appeal. (D.C.1982), mission, 452 A.2d ap no argues of the settlement approval does FERC’s The Commission (FERC EL peal in its docket number from the denial may lie instant 97, 10/1/80) Opin. preclude No. the Pub This matter declaratory agree. relief. We Commission, as a matter of denial purported appeal lic Service from a involves a order, preemption, ordering alloca federal for a motion the settlement impact (1981) tion of the ex quite D.C.Code 1-1508 states part Pepeo inor sharehold mayor whole plicitly refusal of the that “[t]he proceeding, and any in this or other ers of an to issue to bear the entire require ratepayers (Emphasis shall review.” not be of the settlement? added.) brunt appeal, order on the Com In the ruled, People’s following clause the set- “that the Counsel’s Does mission be, question declaratory ruling and the affect the answer motion tlement Formal Case hereby same denied.” See (1)?: 1981), p. (Order July No. No. 733 Agreement shall The Settlement ... re null, Ordinarily, this would be sufficient withdrawn, void, and deemed ar intervenor’s sponse petitioner’s in the whatsoever without effect empowered are to reach guments that we hav- any regulatory commission event Broadcasting Sonderling charged rates the merits. ing jurisdiction over the Cf. 10, 1981), (Order July p. 7. 3. Formal Case No. 733 Corp. v. District Columbia Minimum District of Columbia Administrative Proce- Board, (DCAPA), Wage dure Safety and Industrial Act D.C.Code (D.C.1974). However, (1981), jurisdiction A.2d removes two which from this contentions must court to “refusal briefly addressed. Despite issue a order.” First, petitioner several derives as- significant fact 1-1508 reflects sertedly rulings substantive from the Com curtailment power court’s mission’s order. These are offered inde of agency decisionmaking, certain forms pendent grounds review. We we important have never addressed several persuaded. argument are not only questions in applying provi- inherent obfuscates the central sion of DCAPA. case on which whether have statutory authority we relies, principally this division Sonderling pertinent review the agency action. That Corp. Broadcasting v. District Colum- provided the expla a detailed Wage bia Minimum and Industrial Safe- ruling nation for its does’not allow for our ty Board, (D.C.1974), 315 A.2d review. It is the within sound discretion of provides such analysis. Accordingly, no the Commission to issue a or although agree majority’s I with the con- der upon applicant’s proposal. Yale Cf. § precludes clusion that 1-1508 review in F.C.C., Co. v. Broadcasting U.S.App. case, separately this I write to address D.C. important questions, these the answers not, however, The required Commission is are necessary fully fairly to deal and with § to make one. See D.C.Code 1-1508 arguments petitioner, of the Office of (1981)(“the mayor any agency may People’s (OPC). Counsel ” (emphasis issue a order .... concerning reviewability issues § added)). 554(e) (1976). See also U.S.C. of agency complex decisions are and have Second, urged it has been that the great received a deal of attention in the refusal a declaratory Commission’s to issue courts, federal where we must look for § independent is reviewable of 1- guidance. my place reading In order to § 43-905(a) because D.C.Code context, DCAPA 1-1508 Part I sum- (1981) (“The District of Columbia Court of marizes the law reviewabili- Appeals jurisdiction shall have to hear and ty, including given statutory pro- effect any appeal determine from order or expressly preclude judicial visions that Commission.”). decision of the We disa policies view. Part II discusses the under- gree. In Chesapeake & Potomac Tele lying preclusion provision 1-1508’s P.S.C., (D.C. phone Co. v. 339 A.2d 710 types defines the action to which 1975),we held that the District Columbia provision applies. III Part discusses (“DCAPA”) Administrative Procedure Act present- particular arguments facts and applicable “except to the Commission ed in appeal. appellate procedure the area of scope of Id. at review.” 712. Reviewabili Reviewability Agency I. Action here, ty, which is at issue concerns the reviewability The doctrine deals with availability scope of review and not question legisla- whether the threshold procedure by which it is secured. Sec permit judicial ture review of a intended controlling tion therefore in this 1-1508 is particular of administrative action. form appeal case. is distinguished inquiry This must be from Dismissed. related doctrines that restrict availabili- timing ty of an of review because of the

FERREN, concurring: Judge, Associate (exhaustion appeal of administrative reme- dies, jurisdiction), the nature of appeal, primary In its motion dismiss this alleged injury or the Public Commission relies on the Service mootness), I read ripeness, inap- or the of the Commission.” the broad (finality, parties strong section create propriateness language before of this (standing, sovereign immunity). jurisdiction Re- presumption court this court’s viewability distinguished also must be to review action taken may be invoked analysis governing court’s standard presumption the Commission. action— scope of review of reviewability may only upon overcome analysis only relevant af- becomes convincing showing of clear and evidence legislature it ter is determined that legislative preclude judicial intent reviewability. authorized some level of generally Abbott Laborato- review. motion dis- addressing the Commission’s Gardner, 136, 140-41, ries v. therefore, grounds, miss on 1507, 1510-11, (1967) 18 L.Ed.2d 681 S.Ct. necessary solely to focus on whether (reading Procedure federal Administrative Congress permit intended to this court law, (APA), pre-APA as case Act as well petitioner’s entertain Com- presumption establish “basic mission No. 7364. Order Jaffe, review”); L. Judicial CONTROL (1965).2 43-905(a) (1981) on D.C.Code confers Action court, I question “jurisdiction to before the this court hear deter- it, pro- is whether DCAPA any appeal mine from an order or decision see provisions 1-§ stat- contained DCAPA 1. D.C.Code 43-905 the exclusive utory jurisdiction Consequently, grant at 713. while to review decisions of 1510. 339 A.2d Chesapeake provides & Potomac Tele- this court with § Commission. DCAPA 1-1510 Comm’n, phone Co. v. Public Service 339 A.2d to review the deci- affirmative authorization (D.C.1975). agencies, n. 9 Unlike most Dis- 712-13 of most District affirmative sions orders, agency authority trict the orders and of Columbia to and decisions of the review orders Commission—including scope of the are not made re- decisions the standard and 1-1510, by solely by D.C.Code 1- § § viewable DCAPA Id.; to of review be used—is established (1981). 1510(1981). act, 11-722 organic § see D.C.Code D.C.Code Title 43. that by Contrary argument 43-905, (1981). to an the Poto- advanced Chesa- D.C.Code -906 §§ See (PEPCO), however, Company on, mac Electric ever, how- Power peake Telephone went & Potomac Chesapeake & the decision in Potomac “except appellate that in area of to hold way Telephone, supra, applica- [i.e., no in affects scope procedure of review DCAPA and § tion of DCAPA 1-1508 to this case. 1-1510], of the intended [DC] the drafters § APA A.2d apply to to the Commission.” 339 the Act Chesapeake opinion Tele- As the in & Potomac (footnote omitted). out, fact original at 712-13 phone points version of DCAPA to re- affirmative authorization "gave jurisdiction that this court's this court review § 1-1510 comes agencies orders and decisions view Commission over and of all District orders decision DCA- rather than from agencies.” from D.C.Code Title except 339 A.2d at five enumerated 1-1510, ig- permit this does not court §PA one of the five 712 n. 9. Commission was juris- (1967 placed on its review nore the restrictions agencies. & excluded D.C.Code 1-1510 § 1970). Supp. diction DCAPA 1-1508. Columbia Court Ill The District of Act of 1970 Reform and Criminal Procedure favoring judicial strong presumption 2. The completed and eliminated these five exclusions recognition that agency view of action reflects consolidating authority process to review agency respon- promoting review essential agencies in of District the orders decisions E.g., Ralpho v. legislative mandates. siveness 111, 162, 91-358, No. §§ this court. Pub.L. 368, 378, Bell, 569 F.2d Al- Stat. D.C.Code 11-722 (1977) gives ("unreviewability executive brought though Court Reform Act the other standing disregard invitation agencies previously within this four excluded powers con- requirements to exceed the amending jurisdiction by DCAPA court’s Schwartz, ferred”’) (quoting B. Administrative pro- invoking the DCAPA’sreview § 1-1510 Law, (1976)). construing a In visions, orders was review of the Commission’s language presumption from the pursuant to the Com- to this court transferred (1981), merely recognize act, I of D.C.Code 43-905 organic chap- Title D.C.Code mission’s oversight judicial to ensure the need for that ters 1-10. strong responsibility at the is as recognized Chesapeake Telephone & Potomac agen- respect to is with federal jurisdiction local level as it Congress that chose to transfer exempt See F. Cooper, State cies. it wanted to this manner because Law 81-82, 31-32, 42-44, scope 676-77 the standard and Commission from required legislative vides the evidence of ercises of discretion. Littell intent to the presumption Morton, overcome of re- (4th Cir. viewability judicial and thus to bar review 1971). court accordingly evalu- must OPC’s Commission Order ate the extent legislature’s which the No. 7364. judicial directive of deference to expertise supersedes its directive principal There are two methods judicial protect society branch from abuse legislature which can signal its intent to of administrative discretion. negate review an action: (1) by committing such entirely Citizens Preserve Overton Park v. discretion; by precluding Volpe, 401 U.S. review, either expressly implicitly, by (1971), Supreme L.Ed.2d Court § 701(a). See 5 Although statute. U.S.C. general proposition announced the clearly DCAPA falls the sec- very wholly there are few matters so com- category, ond it is critical to an under- mitted to discretion that standing of this case to manner precluded. review is The Court concluded first, in which courts have dealt with the that, light strong presumption second, well as the restricting method of reviewability, judicial review should be review; for the applicable case law only completely withheld “in those rare in- provides significant first policy method rea- agency’s organic] stances ‘where stat- [an applicable sons also are when courts utes are drawn such broad that in terms statutory provisions confront expressly ” given apply.’ case there is no law to Id. precluding review. See Part II infra. (quoting S.Rep. Cong., 79th 1st (1945)). stated, Sess. 26 Alternatively A. Review Precluded: Committed to n legislature provides whenever the stan- Agency Discretion and “No Law to guide agency dards to discretion—and Apply” against an agency’s decisions or deci- expressly When statute entrusts deci- process sion-making can measured —the sion an agency’s discretion, implicitly presume courts to that legislature are the some withholds measure of reviewing the permit judicial intended to in review order authority court’s to set aside agency that compliance to ensure with standards. decision. Put way, another to the extent test, however, The apply” “no law to has that a decision is agency’s committed to an been sharply providing for little discretion, criticized reviewing the court cannot re- guidance or no distinguishing useful for place agency’s the judgment its own. with between reviewable exer- court, and unreviewable reviewing hand, on the other agency of K. Ad- discretion. frequently charged by separate Davis, statute to cises (Supp. 28.16 ensure that an does not abuse ministrative Law Treatise 1982). shortcoming, Because of this by acting its arbitrary discretion in an supplemented with “courts have the test capricious or 5 E.g., manner. U.S.C. of of pragmatic analysis more the effects 706(2)(A); l-1510(a)(3)(A) D.C.Code (1981); (1981). judicial agency, on plaintiffs D.C.Code review the the 43-906 agen- when a statute entrusts a to the courts.” American Friends Ser- decision discretion, Webster, cy U.S.App. usually there is need to vice 231 Committee -, -, 29, reconcile that with F.2d n. 10 reviewing statute D.C. 720 40 statutory (1983).3 specifically, pragmatic court’s mandate to scrutinize ex- More — U.S.—, 728, denied, 1982), 3. A number of the other federal circuit courts of 103 S.Ct. cert. Webster, appeal (1983); adopted pragmatic ap have also such a 74 952 Bullard v. 623 L.Ed.2d denied, 1042, determining (5th 1980), proach reviewability to F.2d cert. 451 dis Cir. 907, 1975, cretionary action. American U.S. 68 L.Ed.2d 295 Employees, Federation Government Local Local American Federation Government Brown, States, (11th Employees 2017 v. 680 F.2d 725-26 Cir. v. United 602 F.2d 578-80 tors, “inquire should whether determining reviewability court approach to nonreviewability to in of actions “committed discre- considerations favor refined in recent decisions compelling tion” has been sufficiently are thus identified agen- dealing with strong judicial presumption to rebut cy’s a new rule. promulgate decision not review.” Id.4 Council, E.g., National Resources Defense policies implicated applying the SEC, Inc. v. appeal challeng- factors to three NRDC case) (1979) (leading [hereinafter agency’s of an decision the substance cited as NRDC]. promulgate a rule are instructive not to NRDC, par- the court identified “three court. The first the case now before this ticularly important factors” should plain- safeguard NRDC factor need guide balancing need a court “rarely present un- tiff’s interests —will decision-making flexibility policy for calling compelling circumstances usual or against society’s to have such exercis- need judicial review” of decision (1) “the es controlled: need of discretion Id. at at adopt a rule. 606 F.2d safeguard supervision to does not “alter the such a decision Because (2) plaintiffs”; impact “the interests of the ante,” quo any inflict status seldom will agen- of review on the effectiveness of plaintiff in- specific detriment on congressionally cy carrying out as- fringe any constitutional role”; appropriateness “the signed Id.5 right. review.” the issues raised of the second factor —the (citation Consideration Id. at 606 F.2d at omit- ted). impact of on the effectiveness considering After these three fac- Court, Inc., reviewability generally (3d Cir.1979); as- Langevin Chenango tors. Discussions Moreover, (2d Cir.1971). all administrative action either sume "that reviewable;" i.e., relied, "that Supreme at reviewable or Court has least in itself particular is either within or without reviewability" case "practical part, on effects of of review.” 4 K. entirely area deciding com- action so Davis, Law 28.02, (1958). A careful exami- discretion to be unreviewa- mitted Treatise law, however, reveals that of the case nation Railway Co. v. Seaboard Allied ble. Southern reviewa- have been held certain actions Milling S.Ct. Corp., 442 respect types but ble with some See also Safer- L.Ed.2d 1017 to others. Id. unreviewable stein, Analysis Nonreviewability: A Functional 28.01, 28.02, merely say This is 28.08. §§ Discretion," Agency 82 Harv.L. "Committed to Congress been under- in some cases Rev. preclude judicial certain chal- review of stood per- lenges particular while factors, applying three court Before these mitting challenges to that same review of other types distinguished between the in NRDC reviewability respect, doc- the action. petitioner. challenges presented the scope merges with doctrine of trine the falling challenges as into two court viewed the Robison, generally v. 415 view. Id. See Johnson first, allegations categories: the SEC failed that 361, 1160, (1974); 389 39 L.Ed.2d U.S. comply statutorily mandated with certain to System Local Bd. Selective Service Oestereich v. and, second, agen- procedures; that the claims 414, 11, 233, 21 S.Ct. L.Ed.2d 393 U.S. 89 partic- judgment to the cy’s not substantive 402 at 1282-1283. discussed infra arbitrary capri- requested ular rules was 137, U.S.App.D.C.at at Id. 606 F.2d cious. 196 agency points out the mere fact 5. NRDC that Although to conclude the court able not, changed quo in the status does has not difficulty” procedural "little that the chal- itself, U.S.App. judicial preclude review. Id. 196 review, subject judicial lenges proper for awere 16, (citing 16 F.2d at 1045 n. D.C. at 138 n. 606 require challenges to it found the substantive States, Corp. Telephone v. United Rochester involved re- "quite and much more different” L.Ed. 1147 S.Ct. viewability analysis. Id. doctrine”)). "negative (rejecting What the however, suggest, that By making opinion the re- is there this distinction between does the judicial to viewability types generally to an less need for of different is action, plaintiff opinion implicitly protect when agency rec- the interests the NRDC continue, analysis agency rather reviewability at issue serves ognized aspect of alter, existing than standards. and commenta- seldom discussed courts is agency provide based, agency inevitably both for decision “is in —can nonreviewability reviewability. and for On measure, large inherently on factors not the one hand: susceptible judicial in e.g., resolution — Requiring an agency defend court management ternal considerations as adopt its decision not to proposed rules budget personnel; evaluations of will divert scarce institutional resources [agency] competence; weighing compet agency expert into area that in its policies within a broad frame judgment already has determined is not agency “may work.” Id. Moreover an already expended. even worth effort lying spe determine reasons within its danger of throwing good af- money expertise cial that the time action has bad, moreover, ter also exists a more yet arrived.” Id.7 form the very prospect subtle because litigation may give cause the Having pragmatic conducted this calcu proposal more elaborate consideration lus, the it court NRDC concluded that might actually than merit. possible per to formulate a se rule Id. permit- inherent drawback to regarding discretionary ting judicial review of an decision agency adopt decisions not rules. act upon request not to that the Courts the pragmatic must evaluate effects expend will forced to building resources reviewing case-by- a decision aon developing a record and arguments that case Even in basis. cases where “the rele judicial will scrutiny.6 withstand against reviewability,” vant factors incline hand, judicial On other review could “strong presumption reviewability” improve decision-making process by en- generally will not be rebutted —and thus couraging agencies give serious consid- proper review will “the cases where —in response eration and reasoned to citizen held rulemaking pro fact petitions. “Judicial review of deci- ceeding compiled narrowly a record adopt sions not to help rules would ensure particular focused on suggested rules the agency gives due consideration adopted.” but not at Id. F.2d participation, citizen and in this sense (footnote omitted). The NRDC deci might actually agency’s enhance effec- sion, therefore, interpreted has been to cre in furthering public tiveness interest.” greater the following ate test: “the (footnote Id. at 606 F.2d at omit- agency’s in con investment resources ted); Stewart, see generally The Reforma- sidering raised by the issues rulemak- Law, [a tion American ing] petition, complete and the more Harv.L.Rev. compiled during record the course of the Finally, appropriate the third factor— consideration, likely ‘the it is more ness the issues raised for re ultimate decisionnot to take action typically presents strongest “the ar view— proper will be a review.’ gument against reviewability” agen anof ” WWHT, FCC, U.S.App. cy’s adopt NRDC, refusal Inc. a rule. 218, 227-28, 606 type at 1046. of D.C. SEC, Railway See Southern Co. v. Seaboard Allied 7. See Kixmiller 444, 457, 2388, Milling Corp., 379, 641, curiam) 442 (1974) (per U.S. 99 S.Ct. 492 F.2d 645 2395, (An (1979) 60 L.Ed.2d 1017 "no ("even ICC inves- judicial the boldest advocates of review tigation" subject judicial decision is not to recognize manage- agencies’ internal view, part because such review would lead to priorities ment and allocations of are decisions “disruptive practical consequences." “If the courts") subject by proper inquiry carefully analyze Commission ... must and ex- Rights (quoting Committee Human Medical for plain its increase the number [and] 226, 659, SEC, 241, U.S.App.D.C. v. 432 F.2d 139 conducts, investigations all in order to avoid 403, moot, (1970), 92 674 vacated as 404 U.S. reversal, judicial review its workload would 577, (1972)). S.Ct. L.Ed.2d 30 560 tremendously.") increase 1282 95, NRDC, 297, 301, 97, (1943), 88 L.Ed. 61 supra

(1981) (quoting U.S.App. 196 64 S.Ct. 1047).8 140, D.C. at 606 F.2d at purports on its face a statute which to judicial generally review should foreclose by B. Review Precluded Statute Briscoe, accomplish just that. be read to direct, second, 412-14, A more method supra, 432 U.S. at 2432- 97 S.Ct. at may legislature judicial foreclose 34; Wilmington Neighborhoods United v. preclude scrutiny action is to States, 112, (3d 118 Cir. United 615 F.2d legislation em- review statute. Where 1980). restricting bodies a “clear command” ac- statutory provision, how- As with review, judicial general pre- cess to ever, pre- unambiguously worded even sumption of is overcome and interpreted with provision must be clusion authority chal- the courts’ to entertain purpose. history and statutory to reference lenges to action is with- administrative 229, 233, Barber, 73 Heikkila v. 345 U.S. Collins, 159, v. Barlow drawn. 397 U.S. (1953); Ralpho 605, 603, 972 97 L.Ed. S.Ct. 167, 838, 832, 25 L.Ed.2d 192 90 S.Ct. 378, Bell, 368, Bell, 404, U.S.App.D.C. 569 F.2d v. 413, 186 Briscoe v. (1970); U.S. 432 2428, 2433, (1977). Indeed, 607, to statu- 97 S.Ct. 53 L.Ed.2d 439 recourse 617 Although most courts have been reluctant history statutory to tory and other aids to construe such “clear command” from frequently led courts to construction has statutory provisions that are silent9 or am- exceptions seeming- to imply limited certain 10 review, biguous they id.; preclusion provisions. ly absolute give have been less hesitant effect Davis, 4 K. Law Treatise in D statutory language as that CA- —such Cooper, (1958); F. 28.02 Adminis- State expressly PA 1-1508—that bars review. excep- These Law trative See, Briscoe, e.g., supra, 432 U.S. at 412- legislative permit intent tions reflect 14, light 97 S.Ct. at of Con- 2432-34. specific types review of authority gress’ well-recognized to restrict action, express despite an bar to altogether eliminate review of reviewability. action, only to administrative con- example, consistently have For courts restraints, Switchmen’s Union stitutional Board, per- implicitly to v. National preclusion provisions Mediation 320 U.S. read WWHT,Inc., may supra, U.S.App.D.C. presumption derived Compare 211 in favor of review 228, (limited South than text. 656 F.2d at 817 substantive sources other 3, 444, 457, Co., Railway permitted agency, U.S. ern n. 442 review where "after some 2388, 2395; Gressette, rule,” proposed v. 432 U.S. preliminary 99 S.Ct. Morris consideration of the 491, 2411, 2426, 517, rulemaking) 53 L.Ed.2d 506 denies a with Center 97 S.Ct. Note, (1977); Statutory Safety Highway Preclusion Judicial Auto National v. Traffic 431, 331, 341-43, APA, Admin., Duke L.J. 437- Safety Review Under the 1976 have, nonetheless, (1983) curiam) reluc (per remained 710 F.2d 42. Courts J., (McKinnon, (no concurring) agen- tant infer a bar review in absence language statute. cy pro- some decision to withdraw advance notice Bachowski, 95 S.Ct. posed rulemaking Dunlop fo- "decision was not v. where 1851, 1857, (1975); rule). any particular Environmen L.Ed.2d 377 cused” on Harden, Fund, U.S.App. v. tal Inc. Defense contrary Despite support 391, 396, (1970) in dicta from D.C. cases, Supreme Data lightly Court Association (”[p]reclusion two review is Processing Camp, Organizations, inferred"). Inc. Service 827, 831, L.Ed.2d S.Ct. 397 U.S. 48, 51, Pedreiro, Laboratories, 10.E.g., Shaughnessy 349 U.S. supra, 387 U.S. Abbott (both (although opinions 99 L.Ed. 868 n. 87 S.Ct. at 1511 n. deportation H.R.Rep. expressly decision legislative history, makes quoting statute by APA "final,” (1946), Secretary "con- court Cong., Labor Sess. 41 79th 2d ambiguous as refer- word ‘final’ ... may preclude proposition strue[s] ring statute finality procedure rath- "upon expressed only preclusion is where right cutting judicial review face”), than as off the the "clear er it is well established that now part”). convincing required in whole or in to rebut the and evidence"

1283 judicial mit 238, review constitutional chal- 393 U.S. at 89 at S.Ct. 416. The Robison, E.g., Johnson v. lenges. Military 415 pre- U.S. Selective Service Act of 1967 361, 366-74, 1160, 1165-69, judicial pre-induction 94 S.Ct. 39 cluded review of such Cleland, (1974); v. Carter judicial L.Ed.2d 389 207 decisions follows: “No 6, 1, 8-10, shall pro- be made of classification 643 F.2d 3-5 (1980).11 Thus, cessing any registrant except even when a as a pro- statute prosecution.” that defense a criminal 50 agency’s vides decision “shall be § 460(b)(3) (1964 ed., IV). app. U.S.C. Supp. final and conclusive and no other official or Despite preclusion any provision, the Court court the United States shall have power jurisdiction permit pre-induction construed the Act to to review decision,” judicial 211(a) challenges, review of (1976), 38 U.S.C. such as Oes- courts tereich’s, allege agency have that the act- challenges entertained constitutional ed in “blatantly underlying both to the statute lawless manner.” 393 Johnson, decision, 238, supra, and U.S. at 89 S.Ct. at ad- decision-making ministrative process itself. Courts have been cautious to limit this Carter, supra. Only when statute ex- exception pur- so as not to undermine the pressly attempts jurisdiction to remove pose provisions statutory barring over constitutional awill con- provision view. a preclusion Where is in- gressional attempt off cut such claims give tended to dis- unreviewable id. 9-10, be honored. 643 F.2d at regarding cretion findings factual 4-5. application thereto, of legal standards complaint A will second area be reviewable under this ex- which courts often have ception only alleges legislative refused to find a insofar as it pre intent to that invalid, i.e., review, despite agency’s conduct is express facially clude statutory preclusion provision, action can un- is where the chal be declared lenged lawful without questioning action is “clear departure” findings of unambiguous judgment.12 from an fact or statutory exercise mandate. Moreover, E.g., plain Oestereich v. meaning, where histo- Sys Selective Service Board, ry, purpose tem Local act 393 demonstrate U.S. 414, Congress prohibit intended all S.Ct. forms L.Ed.2d 402 judicial challenge, including Manges Camp, claims (5th invalid, facially conduct is Ralpho Bell, Cir.1973); even this see U.S.App. exception limited cannot authorize 383-86, D.C. Briscoe, supra, review. at 412- Oestereich, U.S. In supra, instance, 13, 97 S.Ct. at 2432-34. a Selective Service Board reclassified a di vinity report student and ordered him to Summary Review Precluded: C. for induction in the “plain face unequivocal” exempting statute divinity analyzed Courts have types the two military training students from provisions and service. that call 11. This Limit the Jurisdiction see Johnson, relief ercise off an S.Ct. ordered lective Service Local rious cerning Compare generally questions" that permitted where injured party's ability approach petitioner supra, 415 U.S. at Dialectic, 24 L.Ed.2d 653 constitutionality Oestereich, unconstitutional Hart, allows courts to avoid the “se- The Power otherwise Board, report Harv.L.Rev. supra, Selective Service Board Federal Courts: (1970) (pre-induction for induction de- 396 U.S. and Breen v. Se- would to seek statute that cut S.Ct. Congress arise con- An action. 1165; Ex- involves determination of fact and an exercise 256, 258-59, classification"), spite Service 75, tion review is foreclosed "where the vice Board’s decision because it thoritatively, (distinguishing the "unusual circumstances” of (1968) (no pre-induction review of Selective Ser- to a student Oestereich, supra, judgment”). 92 S.Ct. fact that he was System 1062, 1068-69, has used its discretion deferment), Local and Clark v. admittedly Board, 424, 426, 21 holding with Fein v. Selective 31 L.Ed.2d 298 405 U.S. Gabriel, entitled "inescapably L.Ed.2d 418 arriving at board, au- pre-induc- 373- law request its for a quite mere denial of different manners. question into rulings” to it “substantive provision ruling; a decision includes a commits Where discretion, to judicial subject judicial is review. that should be maintains, contrary, range of very but a narrow permitted all Only purpose rare cases where of Order No. 7364 was cases. those that the ruling, apply” i.e., request to where for deny there is “no law OPC’s simply — of review pragmatic analysis of the effects in the order the statements made that legislature in- that must have reasoning reveals set forth the do no more than delegate unreviewable discre- tended to its decision.13 an be found unre- tion—will action of addressing specifics Before contrast, it is deter- once viewable. pur issue, necessary is to consider it mined an action falls within pro preclusion poses underlying 1-1508’s statutory express preclu- of scope precisely define more vision in an effort to ordinarily necessary provision, is not sion that were in types of ef- pragmatic court to evaluate pre scope of the within the tended fall generally is judicial fects review. It of legislative history of clusion. While the legislature understood here,14 insight little provides the DCAPA per- weighed the benefits and detriments of may guidance derived contrast some its and has made intent mitting review § 1- under reviewability permitted plain meaning provision of the clear in the comparable provided under 1508 with respect Only with precluding review. origi APA and sections the federal excep- narrowly-drawn small number of Administrative nal Model State and revised tions, including constitutional the National (adopted by Procedure Acts departure” from and claims of “clear on Uniform Commissioners Conference of mandate, have unambiguous respectively). Laws in 1946 and 1961 State willing to deviate from courts been APA and the the federal Comparisons with preclusion provisions and plain meaning of particularly are use two Model Acts State legislative permit review. read intent the drafters light ful in the fact that II. ORDERS AND REVIEWABILI- DECLARATORY heavily from these the DCAPA borrowed TY: DCAPA 1-1508 Association three-sources. See Citizens ap- Columbia Georgetown, of this Inc. v. District seeks to avoid dismissal OPC (D.C. Commission, 402 A.2d arguing Zoning Order peal by that Commission 1979). guidance may be culled Further a “refusal No. 7364 commentary meaning from the sizeable amount of declaratory order” within use published proper on the and, is not that has been consequently, DCAPA 1-1508 de con- of administrative OPC review. sheltered claratory goes beyond orders.15 that Order No. 7364 tends Counsel, Commissioner, purports “A to be refusal of the fact that Order No. 7364 13. The declaratory] would order [a to issue merely a of a motion for denial review, subject but not be ruling this issue. determinative review.” descriptive agency applies to its acts issued would terms (1968); Cong., S.Rep. No. 90th 2d Sess. a court’s determination do not control Cong., H.R.Rep. Sess. 6 J. see 90th 1st J. & abo Stein acts. See B. nature of those Mezines, 43.01, (1967). Gruff, Law do, however, signifi generally accord "a Courts Declaratory degree to an charac 15.Report credence" the Subcommittee cant British Cale Commit- own actions. See the Adminbtrative Procedure terization Orders of Board, Airways, Section Ltd. v. Civil Aeronautics tee the Adminbtrative Law donian ABA, (1969); Hickey, Declar- 21 AdminL.Rev. NLRB, atory and the Orders Notre Dame Law. (1969); Declaratory Reilly, Orders Under the legislative history with DCAPA 14. The Legblation, 52 Iowa lan- APA —The Need than reaffirm the does little more § 1-1508 L.Rev. 240-44; Cooper, reviewability provision: note F. guage of that section’s

1285 Except unique for its provision, agency’s decision to issue such an order.18 § § 1-1508, The composite directing the text of DCAPA final sentence of 1-1508 is a agencies prescribe rules facilitate the of the federal APA and the two Model processing petitions, of declaratory order sentences, The State Acts.16 first two appears inspired by to have been the re- govern binding the issuance and the Act.19 vised Model State orders, declaratory effect of were modeled closely original after Model State respect provision, With to its review how- APA, APA.17 From the federal draft- ever, ground. 1-1508 breaks new Al- §of ers 1-1508 language specify- borrowed though provi- the first half of the review purposes issuing declaratory merely explicit implicit sion makes what is i.e., controversy orders —“to terminate a ... or declaratory the other or- acts — “[a] remove uncertainty” well as a subject clause is der to review”20 —the second —as half, emphasizing discretionary precluding nature of an a review of “refusal Note, Orders, Declaratory Administrative 13 Model State 17. Administrative Procedure Act (1961); 307 (1946) W. & C. 7 Byse, reads: StanL.Rev. Gellhorn (4th Law 699-708 ed. Cases on Administrative petition any any person, On of interested 1960); 1 K. Davis, Law Treatise may agency declaratory ruling issue a Mullen, (1958); 4.10 Should Broader Use Be respect applicability any person, Declaratory Findings Made and Orders Under of property, any or state of facts of rule or stat- APA, (1956); 24 156 I.C.C.PracJ. Task Force by declaratory ruling, ute enforceable it. A if Legal Services on and Procedure of the Hoover argument issued after and stated to bind- Organization on Executive ing, binding is between the and the Report Legal Servic- Government, Branch of the petitioner alleged, on the state of facts unless 181-91 [hereinafter cited es and Procedure by it is altered or set aside a court. Goldner, Declaratory as Hoover Commission]; tions, Cath.U.L.Rev. Ac- (1952); Blanchly 1 & Oat- 554(e): 5 U.S.C. § man, Act, The Federal Administrative Procedure agency, with like effect as in the case Gellhorn, (1946); Declar- Geo.LJ. orders, discretion, may other and its sound atory Rulings by Agencies, Federal 221 Annals declaratory issue a order to a terminate con- (1942); Vogeler, Declaratory Rulings in Ad- troversy uncertainty. or remove Agencies, Ky.L.J. ministrative At- torney General’s Committee on Administrative 19. Revised State Model Administrative Proce- Procedure, Administrative Procedure in Govern- (1961) provides: dure Act 8§ Agencies, Cong., ment S.Doc.No. 77th 1st Sess. (1941); Oliphant, Declaratory Rulings, provide by Each shall rule for the A.B.A.J. 7 filing prompt dispositions petitions and rulings declaratory applicability as to the provides: 16.DCAPA § 1-1508 any statutory provision any rule or or- any On person, interested agency. Rulings disposing peti- der of the discretion, Mayor agency, within their tions have the same as status decisions may declaratory issue order with or orders in contested cases. rule, applicability regulation, Coun- DCAPA 1-1508 also followed the lead resolution, by cil act or or statute enforceable by dropping provi- Act Revised Model State it, by controversy them or to terminate a original sion included in the Model Act which (other case) than a contested or to remove declaratory binding only made orders "if issued order, uncertainty. provided declaratory A argument binding.” and stated after section, binding in this Mayor shall be between the change expand was intended to the usefulness be, agency, may or the as the case and declaratory petitioners. See orders to F. Coo- petitioner alleged on the state of facts supra note at 242. per, established, is unless order altered or set declaratory aside a court. A sub- consistently recog- federal courts have ject provided to review in the manner nized the of administrative declar- subchapter for the review of orders deci- atory orders since 1939. 1 K. note Davis, cases, except sions contested refus- 21.07; Telephone Corp. see Rochester Mayor al or of an to issue States, 307 U.S. United declaratory order shall not be to re- original Both the and the L.Ed. Mayor pre- view. The and each shall revised State Acts have been read Model petitions scribe rule the form for such F. authorize orders. Coo- submission, procedure for considera- the tion, their supra note at 240-44. per, disposition. order,” discretion” represents “sound the decision

issue respond petition. APAs. or not to significant departure earlier whether § 554(e). agency, A federal give agencies unreviewable there- The decision to U.S.C. petitions fore, requested deny may de- discretion to decline particularly surprising claratory conducting orders when after in- order —either proceedings context. on vestigation viewed its historical the matter dismissing petition without dis- or passage APA in Before federal but, does the federal APA cussion — 1946, repeated calls for the es- there were judi- such decisions expressly shield encourage procedures to tablishment recog- approach has been cial review. This declaratory orders as use of administrative between unre- position middle nized “[a] “letting a means of the citizen valuable to issue de- to decline viewable discretion government expects of know what jurisdic- compulsory claratory orders and 15, 7; supra Oliphant, note at him.” Gell- 15, supra note Davis, to do 1 tion so.” K. supra supra horn, 15; Voegeler, note note position” at a “middle 4.10 277. Such 15; on Attorney General’s Committee Ad- drafters adopted by also supra note Procedure, 15, at ministrative CoopeR, supra F. Model APA. 1946 State 30-33. Several of these commentators felt 2, note at 241. permitting strongly the value of so about interpreta- binding agency to citizens solicit approach, position” “middle Under this they rules that advo- tions statutes and reviewability must be ad issue procedure require a which would cated “committed with the dressed accordance clarifying declaratory agencies to issue a analysis discussed discretion” requested. ruling whenever one was earlier, supra at 1279-1281. Association, Proposed Feder- American Bar declaratory or agency’s refusal Act, 30 al Procedure A.B. Administrative on in most cases der will be reviewable 226, (1944); Attorney General’s A.J. 227 Mol abuse of discretion basis. Climax Procedure, Committee on Administrative Labor, Secretary ybdenum v.Co. 703 15, supra note (Report Minority at 234 447, Cir.1983); Yale Broad (10th F.2d 452 Members). Although these recommenda- 390, FCC, casting Co. v. 155 declaratory mandatory order tions denied, cert. 398, 414 478 F.2d legisla- some in the rule received attention 914, 211, 152 38 L.Ed.2d 94 S.Ct. U.S. hearings leading to enactment of the tive Party v. Michi Rights see Human 15, 663, Reilly, APA, federal note Commission, 76 Mich. gan Corrections rejected. they ultimately were (1977).21 256 N.W.2d App. nega Instead, Only those rare cases where of the federal APA the drafters permitting judicial review effects of the issuance of tive simply decided authorize outweigh pre- strong they declaratory and to leave each are so orders 1.7(c) 554(e) simply right APA that of review of —like — declaratory "in declaratory places order order filed the issuance of dismissal Commission,” 554(e) supported been pursuant discretion of to APA history upon "sole legislative APA: "... dis of the federal read to confer may where the phrase means a reviewable not be reviewed ‘sound discretion' cretion” that agencies declaratory prevent from either order. and will to issue a discretion refuses declaratory FERC, (5th giving improvident orders arbi- Cir. v. 688 F.2d Tenneco trarily withholding proper 1982); orders in cases.” Co. v. Federal Power Continental Oil Cir.1961) Commission, (5th History, (per Legislative Act, Procedure (1949). Cong., 2d 79th Sess. curiam); S.Doc. Pipe Gas Line Co. Federal United 1953); Comm’n, (5th Cir. however, courts, Power given have dif The federal Public Service Comm'n contrast Louisiana declaratory to the dismissal ferent treatment (5th Cir.) Comm’n, 1.7(c) 359 F.2d 525 Power Federal petitions pursuant to Section filed order declaratory or (granting review of issuance Commission's Rules of the Federal Power denied, 1.7(c)), 1.7(c) pursuant cert. to § der 18 C.F.R. Practice and Procedure. language L.Ed.2d Despite the that the fact sumption required respond in favor of will the discre- be every petition tionary decision not to issue a ruling interpret- order with ques- order be deemed issue, unreviewable. clarifying the rule at reviewability ultimately tion of on will turn Model drafters Revised Act conclud- enough whether the has invested ed such procedure “went too far” in sufficiently resources and compiled a com- removing flexibility plete permit meaningful record to review of judgment. Id. 242-43. The Revised reasoning. Supra at 1281. however, did, Model Act move the di- mandatory declaratory rection of a order A decade after enactment of the federal by requiring agencies respond rule APA, the Hoover Commission Task Force every petition with a fi- Legal reported very Services few nal ruling if that developed reviewable rul- agencies procedures federal had —even ing effectively declaratory par- the declines to resolve the for issuance of orders and question presented by petition. that the use of ticular declaratory administrative the “negligible.” orders remained Id. 243-44. A decision not to address an Hoover 188-89; supra note at Commission, supported by see issue must be written reason- Goldner, supra note at 10-15. The ing will to and review in the Task many agencies Force concluded that manner same other order. Id. In upon discretionary had seized language the short, agency refusing to decisions § 554(e) of federal APA and refused to declaratory orders are “the same accorded give petitions serious consideration to for status as decisions or orders in declaratory orders. of Id. Because contested cases.” Revised Model State § 554(e) promote failure of to the use of § 8, APA supra requirement note 19. This orders, declaratory the Task Force recom- fully of a reasoned reviewable re- mended that the federal APA be amended sponse represents compromise a between to make the issuance of such man- orders provided reviewable discretion datory, at least justiciable where a contro- Original unqualified Model Act versy proposals existed. Id. at 191. While compulsory jurisdiction by many advocated per- for type amendments of this commentators in the 1950’s 1960’s. during 1960’s, sisted see S. 89th consideration, Drafting, and enactment § Cong., 6(k), 13,- 2d Sess. Cong.Rec. place during the DCAPA took 729, 13,732 (1966); Report Subcommit- twelve-year period between 1956 and 1968. Orders, 15; on Declaratory supra tee note Inc., Georgetown, Citizens Association Reilly, 554(e) note federal APA supra, 402 A.2d the decision retained has its “sound discretion” clause provide to unreviewable position” approach agen- and its “middle to declaratory peti- discretion to dismiss order cy discretion. growing tions in the face of was made experience pat- under state statutes support greater restrictions on original terned after Model State APA discretion this area. The drafters of “was similar to which obtained only to heed recom- refused agencies.” case federal F. su- CoopeR, mandatory declaratory mendations for 2, at pra Recognizing note the reluc- rule, rejected they order also the estab- many agencies tance state to offer bind- position” lished “middle dis- reviewable standards, ing interpretations legal “the preclude They cretion. chose to instead draftsmen of the Model Act Revised State altogether. move reflects sought an to devise amendment negative legislative judgment clear that the hopefully would lead to the fuller realiza- authorizing this court to review effects procedure.” tion this beneficial Id. leading agen- process deliberative “[cjareful cy’s declaratory peti- giving After consideration” to dismissal of a widely supported consistently outweigh proposal agencies tion will the benefits review, Second, imposition controlling agency discretion and ensur- agen- petitions. consequent narrowing of such of an serious consideration declaratory withhold or- cy’s discretion to leg- attempting specific to uncover the ders, agency’s ability impair could purposes unique islative behind 1-1508's effectively. 1 K. su- function Davis, provision, it to make helpful use 276; Note, pra 4.10 at note Adminis- NRDC, supra, framework set forth Orders, supra, Declaratory note trative 1044, i.e., U.S.App.D.C. at only Not would an at 319. pragmatic effects of examine defending seeking required expend resources persons on the interests orders, court, agencies, reviewing and on the it decision before a also Indeed, policies courts.22 upon act compelled to each de- would be grant of unreviewable discretion dis- petition in a manner calcu- claratory order petitions miss orders are review, i.e., to build an lated withstand against the same as those that inclined record. When promul- of a decision promulgated a rule and has built gate rule in context. An the NRDC written, supports record that the rule as agency's clarify or not to decision whether to force the continu- is undesirable existing rule or statute means develop support for its decisions not ally to similar in several im- order is particular modify rule in a clarify portant respects to a decision whether agen- Placing a manner. burden promulgate new rule.23 a savings nor- greatly cies would reduce the First, simple petition of a dismissal mally associated with the issuance of rules declaratory for a order does not bind the problems deal policies or intended to with parties any particular agency or the general in a manner. way law and in no interpretation Finally, an administrative decision wheth- quo Consequently, alters status ante. petition declaratory er a order merits re- any specific it will detriment seldom inflict sponse presents issues that often are a deci- disappointed petitioner. on the Such a well-suited resolution. Such merely petitioner oppor- an sion denies the frequently turn on decision will whether interpretation a tunity to an stat- obtain presented particular factual situation respect utory/administrative with standard sufficiently is well-devel- Any particular a set facts. burden on agency oped, important enough to warrant petitioner resulting from uncertainties attention, by way of dealt with a best unchanged. left inherent the standard is ruling case-by-case declaratory rather than Moreover, existing an standard is so when adjudication. Reilly, supra note provide petitioner with no unclear as to generally Because a court will be 663-64. ambiguity guidance, or when its ef- useful guess agency judg- ill-equipped second act in a fectively permits party third agency man- ment on matters internal independent an manner which contravenes will little norm, agement, judicial review be of challenge legal to the exist- possible. value in this area. is standard NRDC, types pragmatic analysis action were intended to be unreviewa- supra, this legislative purpose ble. behind used to discern provision an effort to determine provision properly un- should Airways, whether that v. Civil British Caledonian Ltd. 23. Cf. 1, 8-13, agency Board, provide with unreviewa- derstood Aeronautics Here, legislature (1978) (noting it is clear the ble discretion. similarities 989-94 discretion, problem but agency intended to confer unreviewable decision to address a between analysis declaratory useful "interpretative” the NRDC is nonetheless order by way anof why legislature understanding "legislative” to dele- promulgate chose a new and decision to rule). and, consequently, gate what such discretion If, I background, cally dispositive. From this draw two con- example, in set- § proper scope clusions as to the 1- ting issuing forth its reasons for not First, preclusion provision. 1508’s 1- order, requested declaratory is- precludes court from reviewing this sues an alternative —albeit unsolicited—de- an agency’s declaratory refusal to issue a order, claratory review of that alternative regard order without the extent of the declaratory appropriate. agen- order An investigation undertaken or the record com- cy’s reasoning will not constitute an “alter- piled making decision. this Unlike the order, however, unless native” position” approach “middle dis- existing it clarifies or adds to under- APA, adopted by cretion federal D CA- standing legislative or of a §PA permit this does court to binding standard in a manner on the dismissing petitions examine orders for de- rights obligations and affects the claratory rulings case-by-case aon basis to parties agen- involved.24 meaningful determine whether cy’s a declaratory refusal to issue order would be The fact that feasible. effectively will be reviewable when alters provide petitioner has chosen to with quo the status reasoning extensive the dismiss- interpretation rule; statute but petition, provide al of the or to no reason- agency merely when the sets forth its rea- all, ing at is not relevant to reviewability soning rejecting under 1-1508. petition and discloses the nature of its de- say any type This is not to of agency process, precludes liberative during action of denying peti- the course view.25 tion for a order is sheltered Second, purposes underlying 1- provision from preclusion review. The preclusion 1508’s provision suggest do not 1-1508 was not intended to immunize legislature preclude intended to that otherwise taking jurisdiction reviewable; court from over would be the fact the action is announced in the claims that an acted unconstitution- dismissing context a declaratory petition ally withholding declaratory order not automati- in order.26 prerequisites dismissing declaratory 24. These are the traditional decision order declaratory reviewable order. altering quo See D.C.Code without the status is unreviewable Express § 1-1508 Food jurisdiction United in this it fails Frozen not because to rise to States, 43-44, 40, 569, action, 76 351 U.S. S.Ct. 100 the level of administrative but rather (1956). L.Ed. 910 because such an exercise of discretion is by made unreviewable 1-1508. By requiring change quo 25. in the some status dismissing declaratory before an order order preclude read to 26.Even if 1-1508 were this reviewed, petition may judicially be I do not reviewing challenges, court from constitutional "negative reject- subscribe to the order doctrine” bring petitioner could such in still by Supreme Telephone ed in Rochester Court court, long they "wholly federal were not as States, Corp. v. United note 20. That "obviously insubstantial” or frivolous.” See Sil judicially-created illusory embodied an doctrine (D.C.Cir. Barry, 1121 verman v. 727 F.2d at 1124 distinction between orders resulted in "ac- 1984). availability this alternative forum tion" and those that constituted “non-action.” reading reduces the constitutional barriers to Id. 307 U.S. S.Ct. at 762. at 59 When an preclude review of constitutional § 1-1508 quo, order failed to alter status it was Weinberger challenges. Salfi, 422 U.S. “negative" deemed to be and was unreviewable 2457, 2465, L.Ed.2d 95 S.Ct. any for lack of affirmative action. Id. at (1975); American Councils Association of My reading 140 n. 762 n. 24. 59 S.Ct. at Hospitals, Medical Inc. v. Private Califa Staffs of metaphysi- § 1-1508 does not turn such no, (5th Cir.1978), cert. cal distinction action and inaction. An between denied, S.Ct. L.Ed.2d 439 U.S. declaratory issue a decision not to order Nonetheless, I do not believe no less an involves no more and agency exercise of preclusion provision was intended to 1-1508’s does a decision to issue discretion than responsibility supervisory remove this court's Moreover, such an both of these order. deci- agencies constitutional viola over District when action, by changing one the sta- sions result in tions are claimed. quo reaffirming it. An tus and the other they fluctuation and the date Nor do conclusion that date of such when adjusting re- an 1-1508 was intended shield from enters order -Commission decisions made in direct contravention charged During view the rates consumers. Briscoe, aof mandate. Contrast regulatory lag, utility rates will not time 410-13, supra, at 2431- 432 U.S. at accurately production reflect costs of appellant Consequently, insofar as an return on investment. and the authorized alleges that a dismissal will paying the consumers be too Either or on its order is unconstitutional utility temporarily reap will much and contrary legal face unambiguous to an return, higher-than-expected rate of or the quirement, outside the appeal falls utility will low and the rates will too scope provision preclusion 1-1508’s rate of re- to earn authorized unable jurisdiction. may and this court take Although can ulti- turn. imbalance Reviewability III. general rate mately after a be redressed of Public SeRvice significant may hearing, lag the time cause Commission Order No. rating difficulties for cash flow and credit No. Commission 7364 dismisses Order in utility inequitable delays in result petition asking OPC’s order to consumers.28 rate reductions interpretation fuel ad- of the automatic (“FAC”) justment adopted clause in adopting FAC Formal Case No. Commission Formal Case No. 651. See recognized per- the Commission 5849, D.C.Reg. Commission Order No. through mitting pass of fuel automatic (1976); Proposed Opinion and costs, supervi- prior without Commission 30-34, (1976). A Order No. of such sion to ensure the reasonableness summary background of the factual lead- costs, “potential inevitably to a would lead ing up request to OPC’s for a management to minimize lack incentive understanding helpful the re- Opinion and Proposed fuel Order costs.” viewability here. at 31 The Commission adjustment An clause is a automatic fuel that, light nevertheless concluded utility rate authorizes a mechanism that costs, an FAC in fuel erratic fluctuations pass along to its customers increases accurately equita- more would “more specified operating costs decreases with- fuel bly significance costs” reflect evidentiary resorting out first to a formal of these period than test treatment would hearing, generally required as is before also costs. Id. changes the rate base used recover that, purchases and concluded because mechanism is used utility costs.27 This energy PEPCO sales of electrical between that fluctu- operating costs in the and PEPCO’s members Penn- fellow unpredictable ate to such extensive sylvania-New Intercon- Jersey-Maryland degree period that a rate- traditional test (PJM) directly power pool varied nection making approach is an means of unsuitable fuel, the “net results” of with the cost of recovery. cost arrangements with PJM interchange Id., through pass the FAC. should also period approach, Under a test when D.C.Reg. at supra, 23 Order No. utility experiences an unforeseen rise or periods PEPCO during when operation, a substantial fall in its costs of power elapse supplier a net electrical necessarily between was time will 2625(e)(3) (1982), generally 1984); defining Leafier, Automatic Fuel Ad- see 27. See 16 U.S.C. Regula- Hearing, justment in the Public Utilities Time the term use Clauses: 30 Case 95-617, tory Policies Act of Pub.L. The Fuel Comment, W.Res.L.Rev. 228 of Columbia The District Regulatory Stat. 3119 Adjustment in and Its Role Clause Code does not define the term. Process, (1976); Foy, Cost 47 Miss.L.J. Schedules, Adjustment Utility Rate 13 Vand.L. in Peoples Service Com- 28. See Counsel Public Rev. mission, (D.C.App. 860 at 863-865 A.2d PJM, profits from these sales would be its request OPC filed for a immediately passed through in the form of order with the Commission in March 1980. rate reductions to the District of Columbia asked interpret OPC the Commissionto ratepayers; periods in when PEPCO awas provision authorizing FAC pass PEPCO to buyer PJM, net from PEPCO would imme- through to consumers the “net results” diately recover actual cost of these transactions, require PJM pass purchases. compiled The Commission through ‘split-savings’ “calculated as if the in extensive record Formal Case No. 651 pricing formula still applied were to sales support its decision to establish FAC interchange power.”29 short, In included PJM interchange transac- price of electricity fell within pool the PJM tions. and OPC asked the make Commission to shareholders, PEPCO rather than District adopted, At the time the FAC was of Columbia ratepayers, the loss absorb price electricity bought or.sold resulting from the fall in PEPCO’s sale group PJM members by was determined price. Implicit in request OPC’s is an alle- “split-savings” method. Under this meth- gation that in unreasonably PEPCO acted od, electricity priced was midway between agreeing agreement to the PJM settlement production the incremental cost of incurred and that PEPCO should therefore bear by selling utility and the alternative resulting loss. production by cost buyer. avoided words, utility other when a determined that After conducting investiga- an extensive cheaper purchase it was electricity from holding tion and hearing a sunshine —first another group member the PJM than to position an effort to determine what produce electricity itself, more buying agreement take the PJM settlement dur- selling and the evenly split utilities would proceedings FERC, before and then “savings” by purchasing incurred rath- considering request OPC’s Commis- —the er generating than power. additional sion dismissing issued Order No. 7364 setting OPC’s forth reasons In March the sudden failure of doing so. generating facility Island, at Three Mile Pennsylvania, large resulted loss of PJM, output capacity for a member of Gen- A. Order No. Is Not A Reviewable Corporation (GPU). eral Public Utilities Declaratory Order incident, Because of this the members of argues OPC that Order No. 7364 should agreed PJM to amend their pooling agree- be treated as an unsolicited provide

ment to electricity GPU with order reviewable this court. of- OPC prices “split lower savings” than the rate grounds two posi- fers for this (incremental plus cent). per cost ten tion. agreement approved PJM settlement First, Energy Regulatory argues the Federal Com- OPC that Order No. 7364 (FERC) in mission rulings” order issued Octo- contains “substantive and that ber 1980. it into a or- this transforms Although parties ques- (adding of none the raised the tive Act the Procedure word tion, argued interpretation agency properly it could that of "orders” to the list of actions subject declaratory proper subject rulings); a the FAC was not for a declara- the see F. Cooper, Nonetheless, tory order under That § 1-1508. section autho- note at 242. I read declaratory broadly availability encourage issuance of rizes orders "with re- the § 1-1508 rule, spect applicability any regulation, declaratory they rulings whenever would be resolution, clarifying agency policy act It Council or statute...." an efficient method of declaratory expressly permit not does authorize the use of declara- and would the issuance of orders, tory interpret prior agency respect general rulings orders to all that orders with 5849, supra, establishing prospective application. such as Order No. FAC at issue the have general ruling. prospective a FAC. Contrast revised Model State Administra- here is such quo regarding that alters the status misapprehends the distinction ment

der.30 OPC interpretation legislative/adminis- non- a declaratory between a order reasoning a by agency offered an standard will reviewable declara- reviewable trative support tory did a refusal to issue a order arise. Order No. 7364 not quo. status Every a It not legal order. decision to dismiss declara- alter the did rule tory petition will turn on substantive on the reasonableness PEPCO’s assent order agreement; nor judgments by agency, unless the to the PJM settlement did made totally arbitrary approve acts in a fashion it rate at which new PEPCO merely electricity and without consideration of the merits sold to PJM. It stated petition. not, preclusion provision at of the that the Commission would this time, clarify meaning was 1-1508 intended to shield these sub- add to or review, pass in judgments judicial provision authorizing through stantive from FAC a part interchange “net agencies because should not be forced of the results” of transac- support judgments precluded detail and from these with tions. court is review- part ing grant in every petition, be- the Commission’s decision not to OPC, judgments requested by of- cause such substantive most order special reviewing any expertise precluded ten are and it is within judicial judgments expressed and ill-suited to review. substantive Supra of that decision.31 1288-1289. related, second, pressed A

The fact chooses to dis- contention that reasoning judg- is 7364 should be close its substantive OPC that Order No. —its simply dismissing the “con- ments —rather than found reviewable because it contains way findings comment no affects of law or of fact” without clusions reasoning against reviewability. Only this estab- when the court could “review ... binding Although offered state- lished standards.” is true that constitutes pointed following petition, 30. OPC has "substan- dismissal of a order but rulings” reviewing made it claims are contained in Order also from substantive decisions tive during investigation leading course of an No. 7364: the substantive deci- dismissal—unless was that no Commission decision official binding change legal sion in a in the results Hearing" on June rendered the "Sunshine beyond quo effects dismissal of status 17, 1980 petition. agreement approved by that the settlement on This same basic result has been reached substantially FERC was different from grounds by slightly federal courts deal- different agreement at issue in Formal Case No. propriety reviewing decisions with the position adopted by the Commis- investigations during do made the course of after the "Sun- sion in Docket EL80-22 result reviewable orders. Where or- controlling Hearing" Case in Formal shine proper der is found not to be No. 733 judicial (usually on some basis other au- that the Commission no express preclusion provision), decisions than affecting thority to PEPCO’s order during preceding investi- made the course evidentiary hearing con- rates based on the gation finality necessary to are held to lack the in Formal Case No. 733 ducted Tele- warrant review. See International comprehensive evi- that FERC conducted phone Telegraph Corp. & Interna- v. Local hearings approving dentiary the PJM- before Workers, 419 tional Brotherhood Electrical agreement GPU settlement 609-10, 428, 442-44, failure to use For- that the Commission’s FERC, Tenneco, L.Ed.2d 558 Inc. v. position mal 733 to formulate Case No. Cir.1982); (5th EL80-22, North Caroli- F.2d express despite its inten- Docket No. FERC, unreasonable, 413- so, na Utilities v. arbitrary, tion do (1981). Although my and unlawful. 1-1508, reading analysis solely turns findings protect both was intended to its effect on the 31. Section 1-1508 during a de- an inves- decision not to issue made the course of the ultimate conclusions tigation process very claratory of the doctrine of and the deliberative similar Consequently, finality, emphasis on a leading with its to such a decision. reviewing aggrievement. only requisite precluded not level court is from weigh present form, these considerations in favor of uninterpreted and unclarified viewability position” ap- under the “middle legal some Commission—violates proach to the review of orders standard, constitutional this must be deter- adopted by embodying the federal by reviewing operation mined of the APA— apply” the “law to for determin- standard developed FAC and the record ing reviewability they are irrelevant un- adoption, reviewing — the Commis- preclusion der express provi- 1-1508’s refusing sion’s decision to issue a declara- § 1-1508, legislature sion. struck tory order. Counsel v. People’s Pub- the policy balance between need for Commission, lic 472 A.2d Service society’s administrative discretion and need (D.C.App.1984). does Because OPC not ar- to control that discretion. court need gue that the Commission violated the con- not evaluate dismissals of declaratory or- unambiguous stitution or an statutory petitions der case-by-case on a basis to by deciding ruling mandate refrain determine whether there exists a record case, in this completely precluded review is applicable legal standards sufficient to and the Appeal properly Petition of dis- make meaningful.32 missed. B. Challenges to Order No. as Un- Facially constitutional or Invalid

Having determined Order No. 7364 go

does not beyond “refusal to issue declaratory order,” only I need determine

whether of OPC’s fall with- exceptions one of the two 1-1508’s

preclusion provision, supra at 1289-1290.

I they conclude do not. TURNER, Appellant, I. Gilbert

Although Appeal OPC’s Petition of argues this court pass the direct through prices of the new PJM violates the STATES, Appellee. UNITED regu- Commission’s mandate to rates, late process, as well as due No. 82-498. argument properly is not characterized as a challenge Rather, Appeals. District of Court of to Order 7364. Columbia it is FAC, argument that the with its unsu- Re-Argued 1984. Jan. pervised pass through ratepay- costs to ers, statutorily constitutionally de- 8,May Decided opinion I express fective. no on this issue validity note that

but the FAC must by way challenge

be determined of a direct

to that If rate mechanism. the FAC—in its Although price through ratepay- passed need for the new there is no this court to to be policy implications permitting evaluate time ers. The Commission would forced here, present again provides develop support for its case decisions wheth- change through policies pass price an excellent of the er or not to illustration un- provision. purpose preclusion derlie FAC. § 1-1508’s In the This would undermine preclusion provision, unnecessarily absence of de- FAC and burden Commission § 1-1508’s appropriate claratory requested, orders and this court. it is for the could While compelled investigate, clarifications or modi- Commission could be every change consider light paid particular price in the PEPCO for fuel fications of the FAC in interchange interchange changes transactions, price fuel or received for transactions. Each price change bring policy supports a new sound 1-1508’s could or- preclusion petition asking decides der the Commission to deter- of review where change policy. permit mine whether be read to not to established the FAC should

Case Details

Case Name: People's Counsel v. Public Service Commission

Court Name: District of Columbia Court of Appeals

Date Published: Mar 28, 1984

Citation: 474 A.2d 1274

Docket Number: 81-1309

Court Abbreviation: D.C.