Timus v. District of Columbia Department of Human Rights

Petitioner, TIMUS, Carrie J. OF DE

DISTRICT COLUMBIA

PARTMENT HUMAN OF

RIGHTS, Respondent. Davis, Inc.,

William J. Intervenor.

No. 90-AA-465. of Appeals. Court

Argued Oct.

Decided Nov. validity proce- a rule of

lenge facial govern adopted dure its applica- as to process, as well conciliation hold that complaint. We petitioner’s tion to Barr, P. L. with whom Thomas Karen petitioner’s jurisdiction to consider we have DC, Reiman, Washington, P. Olson and John rule, and validity of the challenge to the brief, petitioner. for were on the implementation proper as a the rule sustain mandate; statutory we but that Schwab, Counsel, of OHR’s Corp. E. Asst. Edward jurisdiction to review ease” Reid, Sr., Corp. lack “contested Herbert O. Coun- with whom application of filed, claim of erroneous petitioner’s and sel at the time brief Counsel, Reischel, case. For the reasons stated Corp. the rule to her Deputy L. Charles brief, petition for DC, we opinion, for re- this dismiss Washington, were on the review. spondent. Brand, DC, Washington, for

Michael E.

intervenor. I. ROGERS, FERREN, Judge, Before Chief 5, 1986, petitioner filed On December SCHWELB, TERRY, STEADMAN, alleging that intervenor complaint with OHR

FARRELL, WAGNER, KING, and Davis, Inc., manage- real estate William J. MACK, SULLIVAN, Judges, and Associate against her company, had ment discriminated Judge. Senior family (specifi- responsibilities basis child) year old cally, had a two that she PER CURIAM.* apartment. an denying application to rent Rights Human of Columbia District l-2515(a). Pursuant See D.C.Code (1992) (the Act, §§ 1-2501 to -2557 D.C.Code 1-2545, investigated the OHR Act), “provides avenues re alternative and, initially prob- judicial” or dress—administrative —for February cause, able 1988 determined claims unlawful discrimination. Brown probable cause to believe there was (D.C. Club, 1309, Capitol 425 1313 Hill A.2d engaged in unlawful had discrimi- intervenor 1981). purpose An obvious adminis petitioner. 1- against nation persons claiming trative avenue is to afford 2545(b). immediately endeavored to expensive discrimination less formal and claim, l-2546(a), by asking conciliate obtaining through means of relief than court “pre- writing whether was intervenor key component A proceedings.1 the ad of this matter.” pared pursue conciliation process ministrative conciliation settle affirmatively replied and asked Intervenor auspices ment of a under the and for a conference with OHR Act, agency administering at the times case. discuss the here, relevant the District of Columbia Office (OHR).2 12,1988, Director of Rights petition July On the Associate of Human that, writing petitioner in dur- brings ease us chal- OHR notified in this before * entities, I, II, Columbia Office of opinion Parts IV and V au- 2. District of of this were Two Rights and District Columbia Human part thored III was authored Judge Farrell; Rights, administered the on Human Commission chiefly by Judge Ferren relevant here. See Act for most of time handling 1. The benefits of administrative of civ- of Human 1-2541. The Office D.C.Code Rights provide opportunity il law are to for settle- been functions has since abolished voluntarily complaints ment of before the hear- assigned Depart- of Columbia to the new District ing bring rapid compliance about more Minority Rights and Business ment of Human by offering law an alternative to with the Reorganization Plan Development, created lengthy proceedings. 13, 1989), We believe the es- (July D.C.Reg. 6305 No. of 36 1 hearings tablishment of administrative to be D.C.Reg. Mayor’s Order No. sake, enforcing 1, 1989). Title (Nov. vital the success of For convenience Report, to the Office of shall refer Committee Council, opinion, as “Office” Report throughout this abbreviated Legislative on Title The Human (October 1973), at 2. "OHR.” Law conciliation, you ing as to whether or not intervenor had “offered the following remedy Respondent’s, to resolve this matter”: offer settlement matter; Complainant would be considered for your 2. The Office has reviewed letter of given apartment at the same August 1988 and has determined gotten

rental rate that she would have questions contained therein she been discriminated already sufficiently against, provided Complainant updates have either been Office, application her rental and is found to answered or do not re- currently qualified quire response by apart- for the the Office order you ment. rental will to make a decision as to wheth- Said rate remain you accept Respondent’s that rate for at least consecutive er or not will months; offer. and Respondent pay Complainant’s will At- 11, replied August in a letter of Petitioner fees, torney Complainant provided sub- 1988, in which she stated in substance: legal mits an itemized statement for I until will not be able to make decision regarding mat- services rendered 6, my questions August an- 1988 are ter. only, request- in I writing swered as have my I it in ed. have made clear letter of explained that Associate Director OHR 22,1988[:] July “Before I can consider this had determined that this offer would make it, accept ques- that, offer there are some petitioner if whole and she did not and/or tions that must have answered.” 22, 1988, I by July advise the Office it, accept whether she would sending copy correspondence I am of the subject would under dismissal you for review and determination on 22, procedure.3 July of OHR’s rules of On 5, August my questions whether petitioner sent the Associate Director a letter legitimate questions for one to 1988 are questions in which she asked twelve about ask and warrant answers. do not believe 29, 1988, .July the intervenor’s offer. On 5, my questions August have been replied writing Associate Director sufficiently by your office nor answered do questions answers to each of the twelve and they require response I believe that do not by August asked to advise him by your office. whether she the offer. Peti- only, provide your reply writing Please responded August tioner on 5 with letter original.] you. [Emphasis Thank telling the are Associate Director “there record, unexplained in the For reasons your some of answers that must be clarified” transpired in the nothing further case for posing approximately questions. seven February year and a half. On almost 8, 1988, August Director On Associate 7, 1990, again February intervenor’s petitioner explaining: wrote requesting com- counsel wrote OHR that the telephone our conversa- This confirm will dismissed,” “administratively point- plaint be 5, August in which I advised tion of ing long delay since the settlement you that: fact offer had been made and the that inter- time, given longer managed property, venor no 1. You are an extension of Nevertheless, 12, 1988, in which had been sold. on Feb- August until which to seek 26, 1990, regarding ruary intervenor transmitted new advice of counsel possible of offer of settlement to OHR which differed not the Office’s dismissal only your Complaint you from the former one that the rental will bar “from su- (rather ing Respondent.” rate would now be the current 1990 You must advise 1986) 7, 1990, 12, rent level.4 March August not later than than On Office sign {e.g., opinion, employ Governing In this the section 3. Rules Procedure and Practice for 716.9) regulation. anticipated of the Alleging Complaints Private Sector Unlawful Dis- Practices, Reg. seq. criminatory 33 D.C. 6917 et provided view of the sale 4. The offer also that in (1986), seq. to be codified at 4 DCMR 700 et applied property, apartment for would completed setting untarily investigation is before the wrote the Director of OHR concerning jurisdic- stating: findings made offer and are forth modified l-2544(b), cause, § tion and attempt resolve making are one last We investigation to a determination leads Depart- prior exercising this matter found) jurisdiction is either (assuming our 716.9 of option ment’s under Section probable cause to believe there is Thus, you do Rules. not advise engaged discrimi- respondent unlawful March the close business Office cause, in nation or there is you accept Respon- 1990 as whether will § 1- is dismissed. which case July in our dent’s offer as was outlined (c). 2545(b), subsequently condi- and as 1988 letter rates, regard to rental tioned with current complaint by concili- Efforts resolve your subject will be to DIS- Complaint it may begin as soon as is filed. Sec- ation MISSAL. l-2546(a) “[i]f, judg- in the provides replied in a March Petitioner letter of Office, the circumstances so war- ment of the 1990, in which insisted that the Office’s she rant, may, filing time attempt letter of March 7 “does even complaint, to eliminate such endeavor my expressed petition- address concerns” discriminatory practice confer- unlawful letter, why August asking er’s ence, conciliation, persuasion.” terms or in “change[d] position again the Office had may pro- agreement include of a conciliation Peti- favor of’ offer. intervenor’s modified hibitory affirmative action relief and “such “being tioner’s letter asserted she Office, as, judgment in of the will effectu- agreement railroaded into this settlement § chapter_” 1- purposes of this ate [intervenor],” asked: your office and and 2546(b). And, agreement par- all “[u]pon of your finding are this last reason[s] “What agree- complaint ... a conciliation ties to a 1990, 7, your offer in letter of March stated be an order of the Com- ment shall deemed indeed, a make whole offered reme- suitable guch.” mission, and shall enforceable as be 22, 1990, dy my March' acceptance.” On l-2546(c). provides, § further how- The Act writing the Director informed ever, that case of failure of conciliation “[i]n “administratively being case was efforts, efforts, inor advance of conciliation § pursuant to 716.9 of rules of closed” OHR’s Office, by the and after determined as procedure of her to advise because failure cause, shall Office acceptance the Office of her of the settlement served in the name cause to be issued and 19, offer March 1990.5 Commission, requir- ... a written notice charges of ing respondent to answer the II. 1 hearing complaint public at a before [the] summary statutory A brief relevant or be- more members of Commission or regulatory necessary to un- provisions and § 1-2550. examiner-” fore including presented, derstand the issues event, hearing tribunal of the Commis- objection jurisdic- OHR’s threshold to our appointed to make a determi- sion “shall outset, person tion. As we stated at l-2551(a). complaint.” upon nation such believing dis- herself the victim of unlawful Act, authority delegated by the initially may, under the elect Pursuant crimination Act, l-2541(c), adopted rules file to sue court or to an administrative process See D.C.Code governing §§ 1- the conciliation procedure with OHR. (see 3, -2556(a). swpra) 2544(a), specifically constru- If note and she elects the second route, of concilia- investigation. ing phrase case failure “[i]n OHR commences an 1-2550. Section complaint is vol- tion efforts” D.C.Code Provided the not withdrawn attempted managed by answer currently which it had to be or her in one owned why explaining offer questions, intervenor. and modified change Office’s 7 entail a March did not previous day, March the Director orig- regarding reasonableness of the position reviewing previ- written to the Office's offer. inal settlement telephonic communications ous written “[cjoncilia- Mayor agency in provides that or an a contested case-” 716.11 of the rules l-1510(a).6 A during to have failed if “contested case” shall be deemed period respon- proceeding “a thirty day conciliation is defined the DCAPA as participate Mayor any agency or in which the dent refuses to conciliation or before the duties, respondent’s remedy legal rights, privileges specific that it or offer of is such parties required by any ... complainant will not make whole and com- are law By right, plainant accept refuses to such an offer.” constitutional to be determined after a contrast, § provides Mayor agency of the rules before the or before an 1-1502(8). prin “The follows: ....” cipal a ‘contested case’ is its manifestation of during efforts, respondent conciliation If process quasi-judicial character as a based remedy place that would com- offers information, upon particular facts and plainant position in the same that com- specific immediately affecting the interests of plainant been in had the al- would have parties proceeding.” Ass’n Citizens occurred, leged discriminatory practice not Washington, Georgetown v. 291 A.2d refuses (D.C.1972). “quasi-judicial process” This offer, if the Director determines “trial-type” hearing, Chevy consists of a such offered would make com- Chase Citizens Ass’n District Columbia whole, plainant order the Director (D.C.1974) (en Council, [Emphasis added.] dismissed. banc), “statutorily constitutionally which is importance Of final to our discussion is compelled....” A.N. W.C. & Miller Dev. 2556(a), dealing with election of reme- 1— Comm’n, Zoning Co. v. District provides part: dies. It (D.C.1975). A.2d To establish Any person claiming aggrieved by to be court, jurisdiction in this there direct review discriminatory practice unlawful shall have fore, “a must overcome two obsta any competent a cause of action in court of cles”: jurisdiction damages for other such ... the first is that an administra- obstacle appropriate, remedies as unless hearing statutorily or tive must be either person complaint a hereun- such has filed second, constitutionally compelled; Provided, der: that where the Office has hearing adjudicatory that such a must be grounds dismissed such on the opposed legislative in ñatee. convenience, or where Donnelly Assoc. v. District Columbia His a has withdrawn com- Bd., 520 toric Preservation Review A.2d plaint, person rights such shall maintain all (D.C.1987) Co., (quoting Dev. 276 Miller 340 bring suit as had been 422). A.2d at filed. parties disputes nor intervenor Neither

III. hearing prescribed a tribunal that the before objection by Rights on Human is a first the of the Commission We consider hearing upon particular jurisdiction “trial-type” hear the “based OHR to this court’s information, immediately af- petition The District of Columbia facts and for review. (DCAPA) fecting specific parties in the Administrative Procedure Act con interests Georgetown, judicial agency proceeding.” Citizens Ass’n fers the review of hand, upon “[a]ny person 291 A.2d at 703. On the other no one action this court suf determina- fering legal wrong, adversely a affected or contends that OHR’s antecedent or not there has been a “failure aggrieved, an order or decision of the tion whether ... provision of the District of Columbia in accordance 6. The of the Human 1-2554, Act, provides of Columbia Administrative Pro- for re- with the District cedure Act....” Since Office of view in this court of “an order or decision of " added). indisputably "agency” (emphasis as defined The decision is Commission DCAPA, 1-1502(3) -1502(4), §§ presently sion, under review is not one of Commis- However, jurisdic- parties are in accord that this court has but of OHR. this court also has petition provided it the con- over the meets under D.C.Code 11-722 any agency requirements of the DCAPA. ... tested case review "orders and decisions of

757 analysis efforts,” jurisdiction on court. If made this of conciliation is confer a hearing. party not entitled to following trial-type evidentiary reveals that a a all, reason, hearing after we must deter- contested case For asserts agency’s for appeal order mination that conciliation had not failed dismiss See, jurisdiction. e.g., Artis to ac- lack of Jones & this case —because refused offer, cept a settlement that would have made Constr. Co. v. Columbia Contract (D.C.1988); Bd., A.2d Du Appeals a case. 315 whole —does create contested considerably complex v. District Co pont But the more Circle Citizen’s Ass’n issue (D.C. Comm’n, Zoning A.2d 296 than that. lumbia 1975) (en banc) (citing Chevy Chase Citizens principal Petitioner’s line of attack Ass’n, however, supra). Critically, on the that, Act, to a under the she entitled is, deciding in aid way to—that whether of— formal before the Commission once had, to, a party or is entitled contested has probable cause had found there had been deciding hearing, and thus we case been a “failure of conciliation efforts” for jurisdiction, 010* have had to have decisions Her reason at all. contention is that definitively; legal more issues resolve one or agency’s dismissal under 716.9 of its rules legal rulings preclusive we have made she was unauthorized and that was denied in the case hand and future effect both hearing compelled in the cir the statute Artis, & at 317- cases. See Jones A.2d Ordinarily, juris cumstances. this court has short, juris 327.7 In we have exercised (trial- only when diction not a contested case juris diction determine whether we have type) hearing has place, taken but also when diction, have rulings and we made all neces party made “an effort obtain such sary E.g., to that determination. note erroneously agency which the de analysis supra. consequence, As once Auger nied.” v. District Columbia Bd. petitioner had confirmed that not either (D.C. Review, Appeals & ease received been entitled to contested 1984). is, authority That to order jur hearing, we have “dismissed” lack pre hearing, contested case or at least “affirmed,” isdiction rather than even when hearing, serve when definitively deciding legal various issues erroneously right. withholds that Cf. process. id. Capitol Hosp. Hill v. District Planning Agency, rulings State Health Dev. Such merits inher & issues Yeldell, (D.C.1991); jurisdictional analysis justified are A.2d 799 Dillard v. ent in (D.C.1975). course, least, courts, “always very A.2d it is at 334 579 Of because jurisdiction jurisdiction.” enough petitioner merely not for the to as to their have determine Engineers, Antigua sert the to a ease Ila Ltd. contested n-Gat sought, in the 7. In & Artis Co. v. Co- Board’s action would have to be Jones Constr. District of Bd., instance, Appeals supra, Superior lumbia Contract the Contract first from the Court. See Appeals proffered "appeal” Society, Capitol Board dismissed a [v. Hill Restoration Inc. Moore), [(D.C.1979)]. ground petitioner [184,] actually filed a on had A.2d 188 410 satisfy “protest” We, course, and had filed it too late jurisdiction have determine ten-day question on statute limitations. jurisdiction, our own and thus—like court, therefore, appeal to this whether was "ap- an Board—we must determine whether timely "appeal” Jones & had or an Artis filed a peal” "protest” Board is at issue. untimely "protest” with the Board. If it was jurisdictional will In this sense our evaluation former, likely jurisdiction then we because resolution, exploration, entail an and virtual "appeal" an an director’s decision of Jones & Artis’ case. merits appeals commonly an administrative board cre- Artis, eventually We Jones & 549 A.2d at 318. requiring trial-type ates a case hear- contested held: ing. "protest" lodged appeals A with an bid correctly "pro- that a The Board concluded board, however, typically does not. See id. test," "appeal,” at the an administrative is Accordingly, we said: proceeding. Accordingly, the heart of this presented with a Board "contested” “appeal” was with the [I]f & Artis filed an Jones jurisdic- Board, are we. We are without may case. Nor jurisdiction we have to review But, & tion here. decision. if Jones Artis filed Board’s ruled, "protest," we do not APPEAL DISMISSED. Board itself Artis, any jurisdiction, Jones & 549 A.2d at relief from 758 Bank, 188, 193, U.S.App.D.C. 212 659 IV.

Int’l (1981); Artis, F.2d see Jones & su primarily Petitioner contends that OHR Indeed, every pra, 549 A.2d at 318. authority lacked to condition her to a judicial power questions, “to decide all post-probable cause the Commis fact, whether of law or the decision of which upon sion a determination that intervenor necessary question to determine the had failed to offer her a in concilia (cit jurisdiction.” C.J.S. 104-05 tion that would have made her whole. Peti Gottlieb, 165, 171-77, ing Stoll v. 305 U.S. argues question— tioner rule in that OHR’s (1938)). 134, 137-40, 83 L.Ed. 104 Ac S.Ct. an 716.9—runs athwart asserted clear stat cordingly, jurisdiction in some situations “the utory hearing mandatory intent to make a ... depend of the court to hear the case (as once cause has been found and upon ultimately reaches the decision which case) in this there has been a “failure of on the merits.” Larson v. Domestic & For efforts,” 1-2550, conciliation reason 682, 690, eign Corp., Commerce 337 U.S. points whatsoever. Petitioner 1- 1457, 1461, (citing S.Ct. 93 L.Ed. 1628 2546(c), provides “[u]pon agree which Dollar, 731, 739, Land v. 330 U.S. 67 S.Ct. parties all to a ... ment of 1009, 1013, (1947));8 91 L.Ed. 1209 see Jones agreement conciliation shall be deemed Artis, juris supra, & 549 A.2d at 318. The added); (emphasis order of the Commission” issues, occasion, may dictional and merits language to make clear that if is said turn out to be coextensive. rejects party concilia either tion, then conciliation efforts have “failed” Applying principles, we con these complaint (probable under and the jurisdiction clude that this court has to con found) having proceed cause been must petitioner’s promul sider contention that stage. are not at all the Commission We gation §of OHR contravenes the petitioner’s only per persuaded that is the authority delegated govern to OHR reading statutory phrase “fail missible ing If in her statute. is correct ure of conciliation efforts.” contention, authority then OHR lacked that, It now familiar law deny trial-type hearing Hu her a before the man cause Commission once agency’s con- a court reviews [w]hen deciding was found. struction of the statute which it adminis- erroneously hearing, ap ters, was denied questions. two it is confronted with jurisdiction propriately First, neces question exercise always, is the whether Con- sary directly spoken precise to decide whether contested case hear gress has ing improperly the other question withheld. On If the intent of at issue. Con- hand, V, clear, part discussed in gress reasons that is the end of the mat- court, ter; agency, infra, that we lack as the we conclude for the as well directly petitioner’s challenge give unambiguously the ex- to review to must effect to however, If, Congress. application pressed §of to her case. intent of OHR’s Dollar, sovereign immunity, supra, and thus the In Land v. stockholders of a because steamship company jurisdiction delivered shares of the com- have lacked to District Court would stock, blank, pany’s If, however, endorsed in to the United the shares had entertain the suit. Commission, Maritime which in turn re- States merely pledged, the stockholders could been leased obligations the from certain some of stockholders public properly individuals for sue the officers as agreed grant company their to authority, acting beyond scope the of their loan, operating subsidy, to make it a jurisdic- would have had thus the District Court arrange government for another loan from a Accordingly, the stockholders' tion. both corporation. company paid When the all its jurisdiction turned recover and the trial court’s indebtedness, the stockholders demanded return whether the on resolution the same issue: stock, claiming merely of their it had been outright. pledged had been or transferred stock refused, pledged. The Commission Maritime Supreme Court Court held "that the District claiming that the shares had been transferred jurisdiction its has to determine law, outright. the if the had been Under shares Id., proceeding the merits.” 330 to a decision on States, transferred to the United the stockholders 739, at 1013. U.S. at 67 S.Ct. government could not sue for their return the

759 or reasonable construction of Congress the has not even the most court determines Chevron, directly precise question point. addressed the the the 467 words is beside issue, impose simply 11; the court does n. 2782 n. U.S. at 843 104 S.Ct. at statute, as own construction on the would Smith, say it supra.9 This court cannot necessary be in the absence of an adminis- reading of Act. unreasonable the Rather, interpretation. if the trative stat- First, strong policies obvious ambiguous respect ute or is silent with favoring compliance and underlie settlement issue, question specific the for the OHR, Act, any permits which “at time agency’s court is whether answer filing complaint” (emphasis after the of the permissible on a construction of the based added), i.e., or after cause before statute. found, to eliminate been “endeavor Chevron, U.S.A. v. Natural Resources De discriminatory practice such con- unlawful Council, 837, 842-43, 104 467 U.S. S.Ct. fense conciliation, ference, persuasion” or if “in the (foot 81 L.Ed.2d 694 judgment of the the circumstances so Office” omitted). Hosp. accept interpretation only plaint it. is dismissed for refusal Whether OHR’s may impose repeatedly conceded fact that OHR 9. As we stated in Smith and have said elsewhere, agreement parties agency’s without conciliation ”[W]e must sustain the inter- consent, l-2546(c) (indeed, § without their pretation even if a advances another their very "agreement”), be no interpretation of or if we consent there would reasonable the statute authority agency might saying the lacks persuaded by in- from have been the alternate different rejected complainant has terpretation construing when the had we been the statute dismiss adequate offer. make whole the first instance.” 548 A.2d at of her whole offer. We observed at the out sist with administrative resolution make provides right Act alternative avenues complaint petition set retains the discrimination, alleged quoting of redress for grounds Superior Court for review of OHR’s Club, Capitol supra. v. Brown Hill Thus hearing for denial of a the Commission. person claiming injury through unlawful dis initially crimination has total control over Y.

whether to seek relief in court or administra l-2566(a). Only § tively. when D.C.Code petitioner’s turn then to chal We the latter course has been chosen has the lenge application of make OHR’s person remedy “elected” her is recourse specifically, her con whole rule to her case— Id.; Brown, to the trial court barred. see agency erroneously tention that the conclud then, however, A.2d at 1312. Even adequate her an ed that intervenor had made provides Act has dis “where Office whole”) (a genuine “make offer which she complaint grounds missed on the ad [a] rejected. jurisdictional had its OHR renews convenience, person ... ministrative argument, contending that we lack contested if rights bring shall maintain all suit as no application ease 1-2556(a) (em § complaint had been filed.” rule we conclude to individual cases. Here added).11 phasis litiga concedes in this footing. analyzing In OHR is on sound tion that a dismissal under 716.9 of its unqualified statu had grounds “on the rules is dismissal of ad tory right to a once cause ministrative convenience.” That concession found, perforce have had to exercise unavoidable, for otherwise the Office would III, jurisdiction. supra. part our authority statutory have no to dismiss the analysis of that has been our conclu outcome 1-2545(c), complaint. §§ See D.C.Code § 716.9 is autho sion that a dismissal under -2556(a) (specifying grounds on which OHR 1-2556(a) rized as dismissal complaint). Honig dismiss Dist grounds “on the of administrative conve Rights, rict Office of fact, however, nience.” The this dis (D.C.1978), 388 A.2d 887 a division of this complainant rights missal leaves the with “all recognized on the dismissal bring complaint suit as been ground “administrative convenience” id., filed,” squarely question calls into our “plainly envisages authority to exercise is, authority directly to review on con prosecutorial Id. at discretion.” 888. We —that application tested case review—the agree analysis, regard a with that and we any particular 716.9 in case. The reason is prose- decision OHR not commit scarce DCAPA, § 1- specifically that the trial-type cutorial resources to a be 1502(8), expressly excludes from the defini Commission, judgment fore the when “[a]ny subject tion of a contested ease matter can be made whole informal subsequent trial of law and the facts ly, prosecutorial disc as classic exercise de novo in court.” This exclusion is Thus, person complaint retion.12 whose not, deny unqualified; example, does grounds has been dismissed on of adminis jurisdiction only a trial de this court when convenience retains the “to trative remedy for asserted bring filed.” novo is “exclusive” suit as if no had been Moreover, V, though it part infra, improper agency action —as were holding as our clear, complainant desiring per inoperative where direct review this court makes in OHR’s rules of 11. The is available where the com for "administrative dismissal” same plainant Procedure, voluntari Governing has withdrawn procedure. See Rules su- 1-2544(a). ly accordance with 1- provided pra note 708.1. Petitioner was 2556(a). by § unmistakable notice 716.9 that refusal subject whole a make reject petitioner’s argument 12. We that OHR’s dismissal; complaint to the fact that the rules do present characterization of dismissal heading ground of "ad- not list that under the upon grounds based of administrative conve- not bar the ministrative dismissals” does impermissible simply because dismissal nience is characterizing §a 716.9 dismissal as from now complainant's refusal to a make for the inherently among the enumerated reasons what it is. whole offer is not FERREN, Judge, concurring in as Associate otherwise be established could somehow 1-1502(8) part: dissenting and part has option. Section an available the unmistakable effect that some opin- majority III of the agree I with Part § 1- including dismissal under jurisdiction action— this court has to decide ion that 2556(a) directly by this unreviewable 716.9, —is § legal validity of 4 DCMR general may deprive though erroneously it court even “jurisdiction our by at n. virtue of see ante complainant trial-type of a jurisdiction.” we have determine whether hearing.13 halfway— I also at 757-758. Ante concur — agree, majority’s Part IV that I jurisdictional § of this bar incorporates The result 716.9 generally speaking, that dissent, judicial review deny petitioner any respectfully is not to approach. a valid action; deprive however, her definitively upholding § instead is to 716.9 of OHR’s from first properly this court in the review time. I believe we cannot at this Simpson Colum instance. In v. District to as- without remand make decision Rights, 597 A.2d 392 procedures bia the criteria and the Office certain Office of (OHR) (D.C.1991), complainant held that a applying division uses in of Human Superior 716.9, may seek review Court OHR’s has § to be sure that OHR order complaint for arbitrary capri- § a discrimination dismissal of into an not built 716.9 probable cause. conclude that respectfully lack of We regime. Finally, I also cious A com same here. majority’s available from Part V. I believe dissent plainant suffering grounds jurisdiction juris- a dismissal on has to determine this court origi may validity applied § administrative convenience file over the of 716.9 as diction Court, case, else she Superior just nal this petitioner’s facts of as to the may propri jurisdic- in that jurisdiction seek review court of to determine court has dismissal; ety if outcome general legal validity of OHR’s of that over the Superior majority’s ap- of such review is affirmance Contrary to the regulation. Court, 1502(8)(A) of that then seek review § she does proach, D.C.Code 1— court in the normal course. play order this come into here. 11-721(a)(1).14 § I. jurisdiction to exercising determine VI. this court has over whether peti- whether appeal, we must determine petition for review is matter of as a law tioner is entitled complaint, her case contested Dismissed. (as given” Judge Ferren Judge separate answer not "a opinion asserts that whose Ferren’s know opines) decide before we effectively explain[] why § but one we must 1- we "never wrongly a contest 1502(8)(A) was denied prevent de from does not this court 716.9, hearing. jurisdiction, have case We therefore termining general legal validity § ed III, supra, decide the part discussed in as merely precluding review of rather than our 716.9, § we proper but once characterization explana applied.” § 716.9 Post 765. The as petitioner’s dismissal of concluded that have provides § an “ad tion is evident: If l-2556(a) (leaving § pursuant ministrative convenience" dismissal—whether court), § pursue 1- a trial de novo in her free to complainant proper on the facts not—then 1502(8)(A) stop. compels tous court, right unqualified to sue de novo in 1502(8)(A). 1-2556(a), thereby triggering § 1— out, reasonably as characterized that, But unless 716.9 is Judge points if Ferren fact 14. (as is), then Supe- such a hold it dismissal complainant pursues post-probable loses, right has an automatic she will lost rior Court only Brown, novo, right supra, a Commission cause does not lead de to file suit —and administra urges inapplicability has elected the since she conclusion he — Club, supra. 1-1502(8)(A) Capitol upon remedy. Hill dismissal tive Brown —because words, l-2556(a), unqualified adoption preserved is a of 716.9 In other OHR’s she under jurisdic- delegated authority deprives of contested case us valid of its exercise pursue a “trial of the law choice to regulation properly a dismiss tion: the classified as 1-1502(8)(A). convenience, question novo in ... court.” facts de al for administrative found, already uphold general probable on after we va- based cause § a lidity is not entitled to such 716.9. ante Part V. I dis- hearing lawfully adopted— because OHR has agree. Part III. See infra lawfully applied agency regula- and has —an 5.If, hand, on the other the answer to tion, 716.9, § 4 DCMR to dismiss the com- question lawfully “no”—if cannot is OHR plaint hearing. without such a In order to adopt specified § 716.9 without criteria and determinations, a make these we confront required findings, subject to this court’s re- questions: series following question present- view—then the is 1. Under the District of Columbia Human specified ed: does the absence criteria §§ Rights Act of 1-2501 to D.C.Code evaluating both the make whole offer and the (1992), claimant, may finding a a -2557 it, response coupled claimant’s with the complaint, cause on her unilater- required findings, effectively nulli- absence of conciliation, ally participate in refuse to or at § fy OHR’s dismissal under 716.9 and thus accept every least refuse to make whole of- hearing a entitle to contested case fer, a and thus force OHR hold contested question, raising while not a OHR? This hearing complaint? agree I case on her jurisdictional issue, presents questions about majority that the answer is “no.” bear, procedures regulatory criteria and unilaterally If a 2. claimant cannot frus- initially, general legal validity of on the conciliation, permit trate does the statute itself, § merely ability on the of a 716.9 adopt regulation allowing OHR to the Di- § reviewing apply 716.9 in this and rector to dismiss a for “administra- majority other instances. The concludes that convenience,” l-2556(a), § tive D.C.Code af- procedures are not re- such criteria and found, ter cause been when quired. Part I See ante IV. believe claimant causes conciliation efforts to fail they Part II. are. See infra refusing an offer the Director rea- sonably believes will the claimant make general legal questions Because about the Again, agree majority; I whole? with the § validity of 716.9 must be resolved before answer, generally speaking, “yes.” questions application are answered about the first, rule, turn, in Part II of that I will regula- If 3. the statute authorizes such a question defer to Part III the 5 and thus tion, (a) may adopt regula- OHR then jurisdictional inquiry posed ques- critical case, § spelling tion —in this 716.9—without applying defining out criteria for it or terms (b) whole,” such as “make dismiss complaint without at an informal hear- least II.

ing explicit findings why as to the offer would make the claimant whole? The Human Act entitles a claimant question If the discrimi- answer to as the contested case 716.9, majority says, “yes” gen- prob- § if nation there is —if proposition, legally despite eral valid able cause and conciliation efforts have failed. (1992). specified required I believe absence of criteria and See D.C.Code 1-2550 findings following may not —be a we confront that OHR’s 716.9 —then —or question: legally implementation statutory provi- §if even 716.9 is a valid lawful regulation appears permitting “administrative and thus on its face to sion dismissal for l-2556(a), convenience,” preclude hearing, when a contested case has OHR applied regulation peti- nonetheless the claimant herself causes failure of concilia- that, unlawfully, majority agree gener- tioner with the that she is tion. with the result ally speaking, incorporates entitled a valid contested case complaint, just approach. on her discrimination as she ante Part IV. Unlike the however, regulation per majority, would be were invalid I believe 716.9 can be initially juris- question presents procedures se? This valid if based on criteria and inquiry. majority functioning dictional in a answers make clear OHR is 1502(8)(A) principled, way bars this court’s consistent that affords care- 1— considerations, the decision- other inquiry ful into facts and the claimant’s and the law, maker, and the decides. proposed right to be heard on a dismissal. discretionary make a deci- Id. The to the specifically, I that Hu- More conclude grants the decision-maker considerable sion itself, given purposes man Act its and reviewable, all, therefore, is if at leeway, structure, approach implies that a only at of discretion.” id. for “abuse casually flexibly applied cannot that be so 363-67. standards are not discernible. Once OHR Act, I the Human As understand to a has found cause believe that prosecutorial exercising discre- the time for sustainable, complaint of discrimination is pre- complaint must to dismiss an OHR willy- complaint that OHR cannot dismiss (the finding probable cause. The idea cede a of nilly convenience for administrative pro- a here). that discrimination Rather, OHR could dismiss possible ground for dismissal of after a ceeding as matter “discretion” only under cri- OHR can dismiss reasonable probable cause antithetical to finding of spelling out whole” teria what “make offer regulation, That the and to 716.9. statute explaining shall how an actual offer be 756, requires findings to see ante at Only will OHR be able to evaluated. then “respondent whether a offers that a claimant caused con- demonstrate has position place complainant in the same by unreasonably ciliation efforts fail re- to in the would have been jecting “make offer to whole” that conforms discriminatory alleged practice not oc- Furthermore, prescribed the criteria. the curred,” findings as well as as to ante at opportunity be claimant must afforded an to “complainant to whether the refuses respond charges evidence on language This such offer.” Ante proposes dismissing which rely OHR to requires objective application the stan- complaint. the judging the and refusal to dards for offer agree majority process I with that this the given accept. The OHR Director is not au- (trial require itself does not case contested thority apply language pending to type) hearing; counterproduc- be that would discretion, eases, way as a the matter But, tive when conciliation is concern. OHR, example, may apply a for discre- least, very faces claimant who dis- jurisdiction tionary policy not to exercise complaint missal of a discrimination after a complaint an insufficient over a when finds cause is entitled to know respondent and the District. nexus between criteria, reply, have a chance Honig v. District Office pulls plug before OHR for unreasonable (D.C.1978). Rights, 388 A.2d 887 cooperate failure with effort conciliation Rather, objec- must held to Director compromise seeks the claimant’s deciding tive criteria whether withdraw rights.1 statutory right to a contested complainant’s respect respectfully by dismissing I this fundamental case disagree majority, pursuant who liken OHR’s 716.9. prosecutorial to the exercise of dis dismissal it, therefore, has As I see once signifies cretion. Ante at 760. “Discretion go ad- accepted a claimant’s election to i.e., choice[, ability to choose from a ] ie., taken once OHR has ministrative route — range permissible conclusions.” Johnson prob- and found States, (D.C. A.2d United statutory able cause—OHR has discretion 1979). specifically: More con- for administrative whatsoever dismiss herself, rely largely upon can the claimant accord- decision-maker venience unless objective unreasonably judgment ing appraisal, choosing

his to an her] own [or cooperate including among Although process, act with the the alternatives. fails choosing guided by legal Consequently, unless will be various conciliation. in her now did include such a claim believe it is too late for required in claim that class-wide relief should be complaint. offer, part a make this case as whole majority rejected judging regulation, has procedures for criteria and held to (B) subparagraph response proposition conciliation I advance complainant’s (with offers), objective juris- immediately “make whole” above: that this complaints juris- statutory process resolving we have diction to determine whether See ante easily applied. can be reduced —arbi- discrimination diction over 716.9 as subjective, trarily capriciously remaining dis- I turn to that and Part V. therefore —to cretionary that oth- jurisdictional resolution of issue. cause, erwise, was headed based on

by statutory command to a contested case III. majority’s analy- hearing. I that the believe arbitrary, subjective re- sis fosters such an A. sult —an unlawful result. majority’s position I understand the to be Accordingly, that at a minimum conclude as follows:

we should remand this ease for OHR to procedures articulate its criteria and under regulation, promulgated OHR § 716.9 so that we can determine whether 716.9, deny petitioner § it has used to which truly made a rational and fair decision OHR (trial type) hearing to a contested case which solely on whether conciliation failed because entitled, been and she otherwise would have petitioner’s proce- fault. Included finding proba- complaint, after to dismiss her a claimant dures must be the ble cause. dismissal, respond proposed to a as well as question whether 2. There is a serious required findings clearly explain OHR’s § the Human 716.9 is lawful under reasoning give reviewing Act, applied peti- general either in or as understanding clear basis for OHR’s action. tioner. analysis following Inherent this are the (A) if, remand, propositions: after the ease jurisdiction under the 3. This court has were returned to this court and we were to Proce- District of Columbia Administrative short, regulation decide that the fell OHR’s (DCAPA), §§ 1-1510 to dure Act petitioner’s complaint dismissal of would not (1992), agency action not -1542 to review appropriate, the claimant would be enti- hearing only a contested case has taken when OHR, hearing tled to contested case place party has made an but also when a “reverse,” jurisdiction, we would thus take hearing which the effort to obtain such again required hearing. and remand for the agency erroneously denied. (B) however, If, remand, we were to therefore, court, juris- will have 4. This § proce- conclude that the 716.9 criteria and (1) if, if, case but diction over this valid, inquire dures are into would wheth- i.e., unlawful, inherently § contra- 716.9 is er, fact, procedures OHR followed those (2) Act, vention of the Human (1) properly applied the criteria. If we inherently § unlawful —is 716.9—while not “yes,” petitioner answered enti- would not be unlawfully petitioner. In either applied to tled to a contested case and we case, jurisdiction grant this court will have jurisdiction.

would lack “dismiss” for to a con- petitioner relief because is entitled If, however, “no,” concluding we answered OHR, hearing at rather than tested case § properly apply that OHR did not 716.9 to subject complaint. to dismissal of her facts, we would hold that entitled to a contested case based on every jurisdiction to 5. Because court has previously found cause. We would jurisdiction, this court has determine its own jurisdiction, “reverse,” then take and remand jurisdiction § to determine whether 716.9 again required hearing. type for the trial reason, and, inherently unlawful for that erroneously majority agree Even if the were to whether denied OHR words, In other hearing. me that a case remand discover OHR’s 716.9 contested question jurisdiction to answer procedures required criteria and before we this court has 4(1) general legal validity immediately can rule on the above. that, however, Initially, If, important it to note but ques- court answers 1-1502(8)(A), 4(1) majority agree by determining that 716.9 is jurisdiction course, court has to determine that this (although, of

inherently unlawful jurisdiction 716.9 as time), we have over whether unlawfully from time to applied can be just jurisdiction to deter- applied, as we when can be occasions then there will general legal our over mine com- lawfully to dismiss the apply 716.9 validity principled §of is no claimant, 716.9. There accordingly, plaint, will anyone has identified for otherwise basis hearing. Af- to a contested case be entitled 4(1) jurisdictional scrutiny limiting our over question making inquiry, ter way stands in the of a con- validity majority general sustained the majority hearing. case accord- tested § 716.9. very clearly ingly obligation explain has an to however, majority that recognizes, 7. The 1-1502(8)(A) jurisdiction § to why bars our jurisdictional question remains: whether jurisdiction halfway through the determine ease the claimant is entitled to contested analysis, permitting appraise gener- us the to unlawfully applied because OHR has validity applica- § not its legal al of 716.9but According majority, § this 716.9. to the tion. jurisdiction jurisdic- court’s determine its analy majority first with the problem precluded by applied § tion over 716.9 as is sis, therefore, effectively that it never ex is 1-1502(8)(A). Specifically, § the 1502(8)(A) §why prevent not this plains does majority that, §a dis- reasons because 716.9 determining general legal from va court the convenience, is missal for administrative 716.9, merely § lidity preclud rather than peti- because that kind of dismissal leaves applied. Why § ing our 716.9 as review statutory right bring tioner with a inherently possibility the unlaw doesn’t Superior Court for a trial de ful dismissal for administrative conve 1-1502(8)(A) (con- novo, any § bars direct ie., per in possibility se nience — ease) tested review this court: term “[t]he validity trigger § § 1- (A) ... 716.9— case’ not ‘contested shall include 1502(8)(A) all, any After for bar? dismissal [a]ny subject subsequent matter to a trial of convenience, according to the administrative any the law facts and the de novo court.” majority, complainant leaves the free under Id. Part See ante V. either trial the statute to elect time judicial Superior novo or in the de review B. Court, see ante at whether majority’s If, jurisdic- majority or bifurcation our dismissal is lawful not. as 1-1502(8)(A) jurisdiction, § allowing inqui- says, tion to determine this bars court’s direct ry general legal validity may may § § into the 716.9 review when a 716.9 dismissal or applied, legally but not validity applied, into its as is not be lawful then I see no sound as 1-1502(8)(A) why turning legislative § defective. Before not bar histo- reason does also law, ry my response § case outline direct when a 716.9 dismissal our review majority’s analysis. per may may or not be invalid se.2 adds, majority response 2. The in a footnote dismissal is for "administrative convenience” dissent, (2) jurisdiction type § that this whether the of dismissal is 716.9 §-716.9, First, general validity legal assumptions review the but valid. Both are fallacious. cause, § validity applied, post-probable not the as is 716.9 because because dismissal only possible there is an immediate whether is "administra- need determine basis dismissal l-2556(a); § § is 716.9 dismissal for "administrative conve- tive convenience.” See D.C.Code Club, Why Capitol nience." See ante 761 n. 13. this imme- Brown v. Hill 425 A.2d Second, Because, (D.C.1981). given. says majority, diate need? That is in order dismissal, valid, right complainant trigger upon kind of de for a to have a trial novo convenience, thereby § to a trial de novo 1- it does erect dismissal for 1502(8)(A) (§ 716.9) regulation review. matter os- barrier this court's direct whether says tensibly response nothing consequence, justifying valid This how- the dismissal is or inval- majority's expla- plain language § ever. in the Under 1- Inherent footnoted id. 2556(a), of D.C.Code judicial assumptions: nation two are there is unless elects dismissal, challenge immediate need to review to the trial determine whether 1-1502(8)(A) justification § second, important believing There is a even more sive though statutory applica- why majority’s position applies is un- even reason 1-1502(8)(A) petitioner tion would force a to surrender a apply, does not sound. Section review) (trial (judicial obtain per invalidity whether this court considers se novo).3 716.9, de invalidity very hoc for one ad simple yet clear reason: is whether sum, reality, majority, uses the pursuing a claim for still is .—who contingent availability of a trial de novo to judicial review of 716.9—will ever have a bar this court’s exercise of remedy. long de novo trial court As as jurisdiction. contingent A determine trial de actively judicial seeking review l-1502(8)(A)’s novo does not meet inherent possibly invalid— and thus still premise actually that a trial de novo must inherently applied so or as tri- below, —the legisla- available. As elaborated “real,” yet “ripe.” option al de novo is not history 1- tive and case law reveal Act, Clearly, a com- under the Human 1502(8)(A) actually irrelevant to this case. plainant pursue cannot both result, authority this court has as much As ; trial “are and a de novo these two remedies validity applied to decide the of 716.9 as mutually Young exclusive.” Arthur & Co. legal we do to resolve the rule’s inherent (D.C. Sutherland, 371 n. 34 validity. Club, 1993); Capitol Brown v. Hill 753, 1309, (D.C.1981); ante 759-760. C. is, course, way petitioner There of one that years by the Bar After of efforts Associa upon

could obtain a trial de novo OHR’s of the to reform the District Columbia § dismissal of her under 716.9: procedures applicable pro to administrative judicial right she could forfeit her to review law, ceedings the Bar under District Associa however, That, ruling. is not a OHR’s tion and the of the House District staff Com saying sound that a trial de novo is basis mittee collaborated on a bill to create the available, § truly meaning 1- within the District of Columbia Administrative Proce 1502(8)(A), (DCAPA). mean this incorporat because would dure Act H.R. jurisdiction DCAPA, would be determined ing proposed court’s was introduced on the (trial imputing petitioners 1,1965, de April election and considered at a subcommit review) judicial July novo over that she never tee on 1965. See Adminis l-2556(a). Hearing § H.R. pursuant made trative Procedure Act: to D.C.Code majority presented any persua- The has not Subcommittee No. Before available, de by pursuing judicial option automatically plaint review. See wheth- alive novo not, l-2556(a) (1992). § § either er the 716.9 dismissal is valid or inherently applied. I do understand cryptic responding In a footnote 14 to this majority, majority therefore, The to claim otherwise. acknowledges majority effectively opinion, its why, has offered no sound reason 1-1502(8)(A) though applies position § even 1-1502(8)(A) jurisdiction § bars our to determine petitioner application means court deems applied, jurisdiction § does over 716.9 as right judicial review of to have abandoned her legal jurisdiction the inherent also bar such over that, By taking position action. OHR's validity §of 716.9. l-2556(a), [pe "upon § OHR under dismissal is, majority’s reasoning here cuts The fact right,” i.e., preserved unqualified titioner] — appeal. novo, against If this court its resolution of this pursuing a trial de ante the "choice”—of jurisdiction general legal determine the majority petitione knows that 761 n. 716.9, r validity because of the need to deter- only surrendering her could done so have petitioner is entitled pursuing judicial mine at the outset right review to continue judicial or to a trial de remedy, plain language review in this court 1- as the of D.C.Code Court, But, course, 2556(a) Superior then there is no less novo in clear. makes right; for this court to have over never tried to reason never surrendered that she too, question, option. majori applied. § resolved, "preserve!]” 716.9 as Until a trial de novo effectively explains why 1- ty to know whether a it deems we will not be able never 1-1502(8)(A) 1502(8)(A) apply by imputing triggering § a surrender of bar—is trial de novo— claimant, petitioner, judicial has never who is available to a like give up. claiming keep com- intended to her OHR instead one lost below would have second shot House Colum who Committee on District of (1965).4 bia, Cong., During 98th 1st Sess. at it.” Id. provision of the that became discussion import remarks clear of Mr. Scanlan’s 1-1502(8)(A), supra see note 1-1502(8)(A) pre- was intended was that Scanlan, Esq. behalf of Alfred L. testified on judicial court of clude review in the direct legisla the Bar Association in favor of the relatively appeals in the few cases which Congress tion. A member of asked Mr. novo, de legislature provided a trial had ..., Scanlan: “Under the definitions section review, judicial the avenue of as instead (A) ... the definition of ‘con excludes from ruling. There relief from an administrative case,’ ‘any subject tested matter to a subse any hint of consideration what quent de trial of law and facts novo might happen- in this case—when —as types you court.’ What cases did party that a was entitled elect concluded you put when that exclusion mind ; either review or trial de novo the replied: bill?” Id. at 66. Mr. Scanlan assumption underlying re- Mr. Scanlan’s where, by present be a case That would 1-1502(8)(A) applied marks was statute, the of the record decision only recognized cover the situation: when again was tried before the court. de legislature provided a trial novo words, you regular other would have challenge way the —the exclusive— trial and evidence would introduced agency action. majority hearings both sides. The in- appeals volve from administrative decisions At hearing, the House subcommittee compiled based on the record before the example of also heard an what Mr. Scanlan agency, but there are few isolated cases Esq., Kneipp, had in mind. F. then Robert provide judi- where the statute would who Corporation Assistant Counsel testi- novo, cial review de which mean the bill, opposition fied in confirmed Mr. in judgment court then would sit and find understanding legislation: of the Scanlan’s disregard the It completely facts. could category very definitely One cases that of findings the of might fact that have been relating is is to the condem- excluded in the proceeding. made insanitary buildings. the nation of Under change We not did want to that because District, existing action con- law in the an particular litigant already there the had demning building subject to a de a trial protection. going get If he was sec- in the of court of novo District Columbia novo, ond at it form of shot a trial de sessions, general but impose then there was need these meaning of the contested case within agency, further restrictions on the since Then, course, of of provision bill. going the court was at it look afresh relating bill contested cases would not anyway. very significant in this matter of apply asked, say Id. “You The same member then insanitary condemning building for rea- many there are of those?” and Scanlan sons. replied, many “There are not of those.” Id. referring Kneipp was Id. at 70. Mr. commented, A “You different member cer- 5-628, (1967), pro- §§ -629 which D.C.Code tainly give up would not want to the few vided, seek respectively, for the ad- you cases have the de where do trial novo.” by the Re- review Condemnation responded: Id. ministrative Scanlan “That correct. of an the Board for the fact, view Board order suggestion As a matter of was made Buildings, Insanitary of fol- go way other and in all Condemnation effect have Superior Court. every- tried a trial de novo de novo. That would mean lowed Judiciary on the of the Subcommittee The District Columbia Administrative Proce- of Before Columbia, (DCAPA), §§ dure (1992), Senate Committee on the District Act 1-1501 -1542 of (1968) (statement Cong., 2d 74-75 Pub.L. 82 90th Sess. is traceable to No. Chair, Scanlan, (Oct. 21, 1968), Law Alfred L. Section, Administrative Stat. 1204 which earlier of the District of Colum- gen- Bar Association been introduced in 1965 as H.R. 7067. bia). 1-1502(8)(A) language today erally Administrative Procedures the District for and 1968 versions. Hearing H.R. the same as Columbia: on S. 1379 and Washington, remedy through precluded, was See Urciolo v. 305 A.2d after (D.C.1973).5 cause, probable finding & nn. 4 & 5 of no “from institut ing proceeding a de novo on the same matter

D. provided in court.” Id. at 1312. The statute remedies, permitting an re legislative history, for election of Consistent with the only today proceeding course to a de novo court development ease law —reflects —until (1) 1-1502(8)(A) if application two situations: had with when a trial de novo, acted, review, agency judicial drawn the before the not direct is the agency if prescribed remedy agency had dismissed the com action. The plaint rely provision Chevy for “administrative convenience.” See first case to on that was Brown, l-2556(a); 425 A.2d at Chase Citizens Ass’n v. District Columbia (en Council, (D.C.1974) banc), 327 A.2d 310 in which we dismissed for lack of Because Brown affirmed dismissal of a petition closing by to review street Superior seeking filed Court Citing Council of the District of Columbia. complaint, trial on a de novo discrimination 1-1502(8)(A), that, although we held appeal seeking whereas O’Neill dismissed compensation phase proceeding con- agency’s court of the review this type hearing, sisted of a trial which would complaint, dismissal of a discrimination case, ordinarily present a contested the fact decisions not inconsistent with each were “subject compensation that the decision was provision of other. Broum dealt with the Court,” Superior to a trial de novo in id. at barring 1977 Act a trial de novo after a 316, precluded direct court. cause; finding probable of no O’Neill focused precisely This case reflected the use of 1- availability on the of a trial de novo federal 1502(8)(A) anticipated by Messrs. Scanlan probable court after a of no cause. Kneipp. Brown, however, years Three incon Our case law then turned to consideration sistency In crept into our case law. Lamont petitions agency lack dismissed (D.C.1984), Rogers, we held what review of that deci- cause: petition under the 1977 Act that a for review sion, any, possible? O’Neill v. agency findings of no cause for Office of complaints sexual discrimination and retal (D.C.1976), Rights, 355 A.2d 805 iation failed for lack of contested case. dismissed, cause, probable for lack a of com- O’Neill, Citing we concluded that 1- plaint job” prejudice for “racial on the 1502(8)(A) jurisdiction precluded because brought under 71-26 Commissioner’s Order petitioner had the to a trial de novo on (Feb. 1971). 2, at than Id. 807. Rather Title of complaints these under VII the Civil dismiss, Corporation urged, as the Counsel Lamont, Rights Act of 1964. See 479 A.2d at ground proceeding on the that the not a was held, however, 1276-77. further that this We required contested case for lack of a trial jurisdiction court also lacked over adminis type hearing, this court dismissed under 1- complaints trative for discrimination based 1502(8)(A) because the had a de personal appearance family responsi on novo trial court under the Civil bilities, for which there was no Title VII Rights Act of which had been amended remedy triggering an O’Neill bar. We rea government employ- in 1972 to cover District that, trial-type hearing soned since ees as well as those of other state and local cause, required upon finding probable a of no governments. See id. at 807-08. there was no contested ease. See id. later, however, years construing Five 1277-78. therefore that “even if We added books, newly adopted Rights Human Act of O’Neill were not on the this court Broum, this court in held that would have no to review the dis complainant pursued any petitioner’s who an administrative missal of of claims. Her law, (1988). appeals 5. Under current from the Condem- See D.C.Code 5-714 directly nation Review Board come court. this however, today, sitting en majority Superior in only is a civil action recourse banc, agree inconsis Id. at 1278. That is where makes clear—-and Court.” —that tency thing It to acknowl is one for administrative surfaced. as to OHR dismissals least cause, sex edge to file her petitioner’s finding probable convenience after under claims discrimination retaliation are judicial and a trial de novo review both 1964; Title of the Civil Act VII available, alternative remedies.7 implicated that. It is anoth Brown is not however, thing, suggest er —after E. petitioner’s

Brown —that other discrimi then, when, question, for “ad- this: claims, cognizable only the Hu nation under convenience,” ministrative OHR dismisses de pursued man Act of could cause, probable complaint after a Superior novo in after dismissal Court concededly op- respect, In that La probable lack of cause. judicial review seeking either tions of any repudiated implicitly mont Brown.6 novo, availability Lamont, Brown, de does event, trial and O’Neill were automatically preclude judicial review agency latter dealing with cases in which (in judicial probable and for which no in this court contrast with review found no cause Court)? judicial Superior any recognized kind was review in the to a trial de novo. available alternative nor addressed Neither Lamont O’Neill proceeded premise All eases from the three question, both cases this not because that, agency ruling was any relief from the probable for lack of with dismissals dealt available, it was trial de novo. court also, importantly, more because cause but Simpson Then came v. District Colum judicial they implicitly assumed that review Rights, A.2d 392 bia Office of simply because a kind was unavailable (D.C.1991). There, held that we Simpson, possible. In trial de novo was Superior in seek Court judi rejected assumption. held that We of a discrimination com OHR’s dismissal Superior available in Court cial review was cause,” though plaint probable “no even for lack when dismissed Brown, Court, Superior trial novo de Act, cause, though the as inter even longer remedy. is no available For Brown, precluded a trial de novo preted time, therefore, first court introduced this Brown, Citing both Lamont and but there. dismissing a action notion inconsistency with one adverting to their judicially discrimination can be re another, Simpson relied both viewable, lack at least when dismissal is for spirit of Lamont them. We used citing By cause. Id. at 397. that, say contested case the absence of Lamont, Brown rather than the court court, Superi there must be review this § 1- Simpson did have to deal with say Brown remedy; we used or Court 1502(8)(A)issue; availability of a possible unavailable, that, de a trial novo because rejected out de trial court was novo Superior remedy must be limited Court Furthermore, dicta, Simpson in of hand. judicial agency action. review possible complication. In refer introduced a case, present two new In the we consider Brown, in ring strongly implied this court First, majority the en banc rec- situations. Simpson convenience administrative that, upon for administra- ognizes dismissal dismissal, a for in contrast with dismissal probable finding a after cause, tive convenience judicial trigger cannot probable lack of cause, two alternative remedies: there are review; only appeared relief available trial novo. Unlike judicial de Simpson, A.2d review be a trial de novo. Simpson remedy analysis did not because rent 6. did not Brown. Lamont cite conve- dismissal administrative consider agree majority about with the conclusion I cause; probable finding in con- nience after a (except, as elab- alternative remedies concurrent text, Simpson hypothetically in this court below, majority’s limitation orated any addressing ruled in dismissal before OHR Court). Superior I do not complaint. way way Simpson concur- in the of a believe stands O’Neill, question, majority answer to that then “no cause” situations Brown, Lamont, is, Simpson, inherently there holds that 716.9 is invalid. case, therefore, type of dismissal—“administra- question remaining, this The narrow governing tive convenience”—that under the whether, concluding 716.9 not complainant limit the to one statute does not invalid, inherently this court also has authori- Second, question avenue of relief. there is a jurisdiction ty, principle under the to de- in this is entitled to a case whether jurisdiction, termine to determine whether misappli- hearing contested case because of a applied petitioner erroneously § 716.9 as 716.9, §of with our other cation contrast right withheld her to a contested case hear- where, four decisions absent ing. cause, suggestion there was never a yes. answer to be Because has we are could have contested case jurisdiction juris- dealing to determine hearing. i.e., jurisdiction to determine wheth- diction — Today, among the en banc court holds hearing er a contested case has been errone- things agree respect— I other this —and 1-1502(8)(A) ously withheld does not — play. majority not even come into As the jurisdiction only this court has when jurisdiction recognizes, court has to de- (trial-type) hearing contested case has tak- jurisdiction, including juris- termine its own place, party en but also when a has made issues, legal, diction to decide all factual and hearing “an effort to obtain such which jurisdiction. necessary to resolve See ante agency erroneously Auger denied.” Thus, jurisdictional at 757-758. that kind of Appeals Columbia Board stopped exercise this court cannot be Review, (D.C.1984). 1-1502(8)(A) pro- its tracks unless this is, authority That we have to order a con- that, means even if vision hearing, preserve tested case or at least to type hearing trial entitled she seeks at right hearing, agen- when an (giving jurisdiction), us contested case cy erroneously right. withholds that very existence of a trial de novo alterna- added).8 (emphasis Ante at 756-757 This the OHR issue is re- tive—before holds, accordingly principle court under jurisdiction. absolutely precludes our solved— jurisdiction jurisdiction, to determine our That cannot be the case. authority see ante at that we have First, legislative history shows that very promul- to determine whether OHR’s 1-1502(8)(A) play gation is intended to come into erroneously peti- withheld hearing. only complainant’s tioner’s to a a trial de novo is a contested case when (D.C. 1982), Judge position scope STEADMANtakes the that this we held “that the of review in trial-type Superior court has if an made Court of decision place. post at 780-81. has taken [Metropolitan Department] Police Trial Board is agree majority rejecting posi with the view scope review of a the same as this court’s Judge ap tion. See ante Part III. parently premises STEADMAN Id. at 1018. contested case under the DCAPA.” " analysis, his in substantial Thus, apply the trial court must the 'substantial taking juris part, on the belief that this court’s reviewing evidence’ standard in decisions i.e., jurisdiction, inquiry diction to determine our Trial Board. It must review case] into "whether a to a hear [contested duplicate agencyproceedings record alone and not accrued[,] ing may very depend ... well (emphasis evidence." Id. add or hear additional upon inquiry, a factual for which a trial court is therefore, ed). Implicitly, Keg we have ruled in plainly appellate fitted and an at all." not court, exercising judicial ley that the trial when problem. Any Post at 781. This is not a fact- review, agency for additional must remand ruling validity essential to our on adequate fact-finding rec in the absence of through § 716.9 can be achieved a remand to judicial Judge preference ord. STEADMAN’s for OHR, way judicial as needed. That is the review court, review the trial based on its traditional agency always place; action this court takes fact-finder, based on a false role as is therefore Furthermore, need not find even when the facts. agency ruling premise; trial court review of an judicial agency trial court conducts review of novo) (in apply a action, with a trial de would contrast that court must remand for the to facts, different from this court’s testimony standard of review no In find rather than take itself. Columbia, Kegley v. 440 A.2d 1013 review. District of invalid, least, inherently remedy or, very § not this at the 716.9 is held exclusive Second, assuredly majority jurisdictional inquiry either court would available. provided concluding no for has basis end until the court resolved whether 1-1502(8)(A) availability applies applied § § on properly when the 716.9 had OHR complainant’s depends of a trial de novo on a (My for OHR proposed facts here. remand judicial right forfeiture of her to procedures asserted and provide criteria under Third, if, supra 716.9, II, judi- review. See note 3. as supra § Part would make see out, reviewing instance, turns court were to con- review, considerably cial the first complainant easier.) that the was entitled to clude question of 716.9 as Until the type hearing trial OHR on the discrimination here, right petitioner’s applied is resolved applied been known, because had given not be a trial de novo will unlawfully, de be then trial novo would judicial I review—she seeks. kind relief— available because the had lawful- right petitioner’s obvious do not believe ly judicial opted for review and thus instead elected, judicial forego review she has continued, in the exclusive involvement rejected, in favor of a trial de novo she has process. 1502(8)(A) on triggers a bar this court’s 1— jurisdiction. jurisdiction Surely to determine sum, argument majority’s In entire legislature for- compelled never this premised contingent availability on the judicial review in feiture of mind. may trial de turn out to be unavail- novo judicial petitioner’s if able review vindicates unlawfully OHR contention that dismissed ROGERS, Judge, Chief with whom complaint. contrary, § 1- her To the MACK, joins, Judge, concurring in Senior 1502(8)(A) play into does come unless dissenting part: part, petitioner, judicial until majority correctly con- my In view the dismissal, right her to a trial OHR’s loses jurisdiction has to de- cludes that the court type assuredly hearing thus of Hu- Department or not the cide whether gains remedy. majori- a trial de novo If the unlawfully Rights has from Ms. man withheld 1-1502(8)(A) ty’s premise were correct —if hearing right Timus before her petition- could bar this court’s review before under Rights Human Commission type hearing er’s to a trial at OHR § 1- (Repl.1992).1 § 1-2560 See D.C.Code definitively

were resolved—then 1- 1510(a)(2) join (Repl.1992). Specifically, I 1502(8)(A) apply way compels in a would majority’s (except opinion Part III of forfeit her re- sentence), supra con- the last see 756-758 I legislature view. cannot believe the intend- jurisdiction cluding the court has ed that result. jurisdiction or not it determine whether view, my Superior In both the Court and Regulation 716.9 whether determine jurisdiction jur- court have determine this (38 (1986)) Reg. is valid.2 D.C. sense, isdiction over this case. both 716.9, limited, Regulation the De- regal'd conceptually concur- With courts share acted, my Rights jurisdiction by of Human partment rent to determine view, authority promulgating it. beyond deciding a claimant is entitled to herein, opin- Judge Mack’s Ultimately, supplemented hearing.9 As contested case decision, course, fice). opinion, all are to the references 9. trial be In this court’s appealable Department. Department to this court. or the of Human hearing before the Commission Because, my Regulation 716.9 is inval- view. who, turn, examiner, before a id, posed by the last I not reach issue need findings report with the Commis- will file majority’s opinion nor address sentence See sion. Stevens Chevrolet v. Commission 111(b)Judge jurisdictional raised in Part issue (D.C.1985); Rights, regarding jurisdiction to consid- opinion Ferren’s 1-2551(a). Timus At time Ms. However, agree regulation applied. er complaint, Department of Human filed Judge critique Judge Ferren’s Steadman’s Minority Development Business Judge supra opinion Ferren at opinion. Mayor's Rights. of Human called Office (renaming n. Of- 8. November Order necessarily reasoning forth deavor entails effort but not for the division sets the suc ion regu- cess; the that the make-whole attempt, conclusion it is an no more and no less. Collegiate opinion is invalid. of Senior lation See See Webster’s Ninth New Dic infra tionary Judge regula- Mack. that the (1985 ed.) To conclude By at 410. use of the valid, supra majori- of the see Part IV “endeavor,” legislature word directed the the ty opinion, grant Department to the is to Department attempts bring to to make about powers beyond rule-making limited au- the complaints the informal resolution of dis thority by delegated legislature.3 to the specified by crimination. It the also means — require develop objec- Department To' the to conference, conciliation, persuasion. application Regulation tive standards for using By These are words of reconciliation. 716.9, Judge proposes, as Ferren would ac- terms, these indicated that the the Council complish give nothing since it could not valid- process resolution should be conducted on ity promulgated to the rule without authori- parties. to agreeable terms that are See ty. supra opinion Judge See Ferren Collegiate Webster’s Ninth New Dictio Moreover, in 763. the rule drafted contra- (“conciliate” nary, “to supra, at 272 means legislative vention to the scheme to encour- (as acts”; gain goodwill) pleasing “to (but age compel) efforts to conciliate reconcile”; compatible: “appease”; make confidentiality protecting the of such efforts.4 assemble, meaning from the Latin word “to Rather, view, my because words used unite, over”). win Rights Act D.C. Human evince the conciliation, voluntary intent authorize legis indicate nothing There is that the Department Rights was of Human without power Department in the lature vested authority regulation promulgate upon penalty complainant, force a of loss deny administrative remedy, to conciliate a dis who declines to a make- complaint Depart crimination for which the respondent during offer concili- whole ment has found cause. The statuto § ation efforts under 1-2546 after D.C.Code ry provision on conciliation refers Department cause to has found placed requirements be on the as believe that the states a claim of 1-2546(b). respondent. § See D.C.Code unlawful discrimination violation of the statutory provision expressly pro The same statute. vides, moreover, only “[u]pon agreement plain apply meaning court must parties of all the ... [shall] statute, language applying used in the ... agreement conciliation be deemed an ordinary the words “their sense and with the Commission, order of the and shall be en meaning commonly to them.” attributed 1-2546(c). forced as such.” Id. Further Columbia, Peoples Drug Stores v. more, giving rule-making authority (en (D.C.1983) banc) (“The legislature Office the Commission primary general statutory con rule authority expressly in order to limited that is that of the lawmaker is struction the intent policies ensure that did not conflict rules language be found in that he [or she] 1-2541(c), supra with the statute. Id. used”) (citations omitted). language concept 2. is a note Forced conciliation provision the Human on conciliation statutory foreign language. Department Act “at authorizes addition, legislative history makes complaint, time filing [to] after the contemplated legislature clear that the volun- to eliminate such unlawful discrimi endeavor forced, conference, tary, Peoples conciliation, conciliation. See natory practice by Columbia, l-2546(a). supra, Drug persuasion.” An en Stores v. District l-2541(c) concerning (Department respondent, sent of the information See D.C.Code of Hu- 2552(d)("[e]fforts "may promul- efforts”); ... man gate Commission conciliation 1— they procedures ... such rules and deem [Department], parties, or the conciliation necessary to which are not in effectuate and before the shall not received evidence” with, provisions chapter”). of this conflict examiner). Commission or l-2546(c) (the Department public, "shall not make the written con- without whole, statutory as a Viewing the scheme report legislative The stat- at 470 A.2d efforts,” as that of conciliation the “failure ed that: mean cannot phrase is used handling of benefits of administrative The parties unable to the were than that more provide opportunity an for law are to civil further agree dispute without to settle them complaints voluntarily before of settlement Peoples See governmental involvement. bring rapid to about more hearing and the Columbia, supra, Drug v. District Stores of by offering an compliance with the law (construe in context statute lengthy proceedings. to alternative scheme) (citation omitted). The legislative of of adminis- believe the establishment We Depart- option that the statute leaves hearings to vital to the success trative issue a notice of whether to ment —to decide enforcing Title 34 as D.C. Code [codified hearing efforts public conciliation before through (Repl.1992 & §§ 1-2501 only conciliation ef- attempted are after Supp.1993)]. attempted and failed —does have been forts voluntary nature the not the transform City Council Commit There no ambi- process itself. conciliation Legis Affairs, and Youth tee on Education legislature the guity Significantly, here. Report Title the Human lative on to a failure of language that refers chose (October 1973). Rights 2at Law, conciliation, a failure of a “efforts” and not to majority ignores this note 13. The also infra l-2546(a), suggesting, distinction legislative intent. statement of recognized the desirabili- legislature the both deny legislature Had the intended to likeli- ty voluntary and also the settlement complainant to a who always suc- such efforts would hood that Department rise, accept ceed, thereby probable to the de- giving refused what where found, it offer after the for a termined was make-whole need cause has been supra hearing cause determina- the Commission. See made favorable before tion, legislature easily note 1. the could have said so. Yet, legislature nothing about a said pursuant dismissal of The Instead, only “make-whole” offer.5 it autho- Regulation accept a make- 716.9 for failure Department rized the to “endeavor” con- dis- offer should be confused whole discrimination; pro- complaints of it ciliate pursu- convenience missals for administrative specifically vided conciliation occurs l-2556(a). legislature gave The ant to agreement parties

when there is authority to Department express determine agreement that when there is no between the probable cause for or not there was whether parties, an administrative should be of unlawful discrimination and alleged of discrimina- afforded victim complaint administra- when to dismiss - conciliation, By defining legisla- l-2545(b), tion. so §§ tive convenience. 2556(a). justify ture indicated that the determination of attempt dismiss- In its its their could complaint, Department’s differences be successful- al of the instant com- ly through weeding lies in the con- out frivolous settled conciliation about concerns controlling have a parties Department plaints workload not the trol Indeed, Department, ring.6 Rights. Human hollow However, 28(b)(2). Human Act legislature simply provided D.C. could may The (as complaint upon instant Department may case) it has in the dismiss tie a accept remedy. complainant’s concilia- a make-whole refusal to an administrative offer, clearly even cause. provision in the District’s statute more like legislature This would make District's statute to fore- did not intend shows that the rights federal civil statute. party engaged in administrative to a close relief scheme, regulations were issued ad- federal did not an offer. who conciliation aggrieved party fails, failure 2546(b). dressed When conciliation D.C.Code 1— accept a "make-while” offer. See C.F.R. required. (1992). crys- regulations make clear, however, Department petition 6. See charge when a was dis- tal 2, 8, ("The reason, rehearing en & 9 banc for such a the federal commission missed alleging panel majority a claimant dis- right-to-sue party allows notice to the must issues a claiming [Department] of Human aggrieved. crimination force to be See C.F.R. 1601.- 774

following legislative the view, directive 1- ing contrary of her Department the 2545, has defined what it has determined to deemed would make her whole. This is clear be a for dismissal administrative conve- Department’s from the correspondence with not, nience.7 Such according dismissals do to Ms. Timus.9 It is also clear from the De Department’s regulation, the include dismiss- partment’s regulation own and its Notice of accept als for failure make-whole offers departmental Conciliation.10 An internal Regulation under 716.9. See Dankman v. memorandum further indicates that the De Elections, District Columbia Bd. 443 partment of of also did not treat a failure of concil 507, (D.C.1981) (en banc) A.2d (agency 513 iation as the conclusion of the administrative obligated to regulations).8 follow its own process.11 The court is bound the reasons Department gave that the Although Department dismissing the for authority has Ms. complaint complaint dismiss a Timus’ agency for and cannot deem an administrative conve- l-2556(a), nience under dismissal purpose that is not what it for one a be dismissal purported dismissing to do in Ms. for another. v. Timus’ See Jones District Colum of complaint. Servs., Department repeatedly Dep’t in- Employment bia 519 A.2d 704, formed Ms. (D.C.1987); Timus that the opinion dismissal of her 709 majority, complaint was based accept supra, on her failure to at 760 n. 12. Under the circum offer, which, respondent’s stances, notwithstand- Department pur- since the did not Rights Rights and the [Department] authority Commission of Human has the to dismiss the commit litigation scarce Complaint Respondent resources to even offers a make-whole though get the claimant can all the relief she Complainant rejects and the the same.” reasonably hope litigation through 12, 1988, could for in July Depart Likewise letter of conciliation”; unnecessarily "[t]he costs in ex- ment had advised Ms. Timus pending [Department] the resources of the ... subject would be to dismissal under Section clearly outweigh and the Commission the bene- rejected respondent's 716.9 if she make- permitting litigation fits of circumstances"; to continue in these whole offer. panel majority require “will government very to waste scarce resources Regulation provide 10. 708.1 does not that a dis complainant, because of the mere whim of a thus missal for administrative convenience includes a claimants”). burdening process for all dismissal for refusal to a make-whole Regulation supra offer under 716.9. See note 7. (33 Regulation (1986)), D.C.Reg. 7. 6912 Process,” The "Notice of Conciliation dated Feb provides that “[a] case shall be terminated with- 11, 1988, ruary stating cause has prejudice complainant out if the submits a writ- found, parties join been "invites the in a request ten complaint, to withdraw the or for the just collective effort toward a (1) resolution of this following administrative reasons”: the com- matter,” provides respondent’s that the plainant “fail is absent or cannot be contacted (2) respond [Department], [Depart ure to ... will result in complainant pro- fails to ceed, (3) processing complainant public hearing ment] the case for a fails to state a claim on granted, [Depart- which relief can be District of Commission on Columbia Human D.C.Code, jurisdiction. Rights, Honig provided ment] lacks v. District in ... Section 1- 887, 2546(a) (1981).” Rights, Human 388 A.2d The Notice further states Office of (D.C.1978) (Department prosecutorial 888 accomplished thirty "if conciliation is not (30) within letter, discretion days receipt whether to exercise over from the date of of this complaint). subject public case will be scheduled for 716.10, (33 hearing.” Regulation D.C.Reg. Dep't See also Carroll v. District Columbia (from (1986)) notice, receipt days 6917 conciliation). 30 for Servs., (D.C. 1985) Employment (party pro before administrative has due procedures cess to notice of rules and 11. The internal memorandum indicates agency); bind the Ammerman District Co Department acknowledged Ms. Timus' to a Comm’n, lumbia Rental Accommodations hearing upon the failure conciliation under (D.C. 1977) (same). A.2d Regulation By 716.11. memorandum Febru- 8, 1990, 22, 1990, ary In a staff member advised the Associate letter of March the Director of Department Department Rights Director of the Minority of Human of Human Development that conciliation Business informed efforts failed because the Ms. Timus that respondent original administratively her case failed to make “the offer "has been closed ... pursuant [D.C.Reg.] apartment” 716.9 ... 33 and the still wanted 6909.” apartment, Department's This letter referred to the and therefore "recommend[ed] March 1990, letter, "pursuant which likewise stated that that the above case certified to the Commis- (1981), added) [D.C.Reg.] hearing.” (emphasis Section 716.9 ... 33 sion for (D.C.1976) (“The Law the Ms. port to dismiss Timus’ no aid convenience and it had au enacted to administrative Columbia was conciliation, penalize thority to there complainant, also the an individual but McLain, the court occasion deference public large”); Motorola Inc. v. interpretation of the statute Cir.1973) (7th (quoting 484 F.2d 1344 Regulation in 716.9. James as reflected See 238, Cong., 2d Sess. H.R.Rep. No. 92nd Comm’n, Housing Parreco & Son v. Rental (1972) in (employment discrimination viewed (D.C.1989) 43, Totz (citing 567 A.2d 48 “systems” and “effects” rather than terms of Housing Rental District Columbia individuals)). of by The ma- wrongs intentional 44, (D.C.1980)); Comm’n, 412 A.2d 46 infra ambiguity, on an jority’s of based creation 15; supra note note 8. complainant to willingness of the assumed Finally, forgotten conciliate, it that the majority ignores must be opinion at see rights construing the en banc court is civil statutory language purpose. and both See statute of the District of Columbia. purpose), (statutory 1-2501 of representatives the District Co elected of -2553(a) -2544(a) (who may complaint), file a elimi expressly determined that the lumbia (scope of relief the Commission of “the nation of unlawful discrimination is order). highest priority.” (Repl. 1-2501 by majority appeal is decided of As 1992).12 Indeed, important legisla so did the however, court, is the en banc Ms. Timus provisions rights ture view the human that it the an administrative before denied Consequently, the twice.13 the enacted law successfully pursues Commission unless she construing great court must take care the costly litigation in which she faces timely and of the words statute in order assure persuading judge a trial court the of burden (and, statutory right Ms. Timus’ to relief Department applying Regu that the erred rights consequently, here of others who That is a formidable 716.9in her ease. lation after seek administrative relief from unlawful light expressed by at discrimination) of the views burden protected in is accordance Alternatively, majority least a of court.14 by the statute enacted Council. Cf. court, she according majority of the can Prop., JBG Inc. v. District of Of Rights, file court.15 Preter Human de novo the trial 364 A.2d suit fice of statutory by Title scheme in See itself Council Columbia Commit- 12. of District of Report "putting] rights legal law a firm our human on Services Consumer Affairs, tee Public and on 1977," explained footing,” at the Committee Rights ofBill2-179, "The Act of Human ("Enactment 1977) provi- (July questions “severely of Title 34’s the effectiveness of weaken Rights Law, Act' regards sions as the 'Human would under- Rights particularly as our Human score the Council’s intent that elimination of general’ by attorney vic- 'private enforcement its discrimination within the District of Columbia questions those are of If tims discrimination. highest priority’....”). have answered, should 'the effectively the District of Columbia position might of thus find itself in the ironic Report See 13. Council of of of widely having is hailed as the most a law which Columbia Committee Services Consum- on Public and yet comprehensive its in the nation kind supra, at 1: Affairs, er Id. lacking in enforcement mechanisms.” Rights 2-179 Act of [The 1977] "Bill Human changes makes no substantive present in the text of majority supra IV V Parts Regula- of the Title 34 D.C. Rules Judge supra opinion opinion. Ferren See also tions, Rights the 'Human Law.’ Its sole effect II. Part to enact that law as a statute and thus make permanent part of it a the District of Columbia clear before the alternative became This pur- Enactment would serve three basic Code. Department advised the en banc court when poses: ... reenforcement the Council’s time, court, interpreted for the first among Human Act is our view Timus’ for failure dismissal Ms. important vigorously laws is to most Regulation under accept a offer make-whole agencies all and officials enforced conve to be dismissal for administrative District Government.’’ 1-2556(a). peti nience under D.C.Code The Committee noted that "in several cases Department rehearing en banc concerning questions arised serious been opinion of Senior at 6. See pre-Home power Rule District Govern- infra ("the majority Judge Mack for the division con- ment to authorize some of remedies for administrative Recommitting was not at 2. dismissal tained in Title 34.” Id. mitting prejudice rights statutory that has accrued to voluntary scheme based parties years delay both aas result of conciliation in the process complaint,16 majori the resolution of the abundantly clear where the intent of the ty clarify does not whether such a lawsuit legislature promote is to the elimination of would be barred the statute of limitations discrimination, unlawful and not more court and, hence, Ms. Timus would be confronted litigation, in capital. my the Nation’s with our decision Anderson v. U.S. view, why Safe this is another reason the Council’s Co., (D.C.1989) Deposit 862-63 Regulation intent is clear and 716.9 is invalid. (statute limitations); see D.C. 1- Code Accordingly, I holding concur in that the 2556(a). therefore, parties, face the court has to determine the validi- prospect delay litigation of still further ty 716.9, Regulation I respectfully dissent before, perhaps, settle that issue in court holding Regulation from the that 716.9 is reaching complaint. the merits of her One valid, and I would remand the case to the judge would also allow Ms. Timus to seek Department with instructions to issue the agency by further relief before the further hearing pursuant notice of 1-2550. challenging Department’s application of case, regulation its make-whole to her there returning again to this court with the APPENDIX subsequent possibility obtaining hearing of Opinion Judge of Senior Mack of March

before the opinion Commission. See infra 1992, before the Division. Judge Ferren at II. Part MACK, Judge: Senior litigants seeking Future relief from unlaw- challenges Petitioner the dismissal on ful similarly discrimination face daunt- 21, 1990, by Department March of Hu- ing prospects delay costly litigation, Rights,1 man formerly the Regulation all Office of Human because 716.9 has recast the (OHR), voluntary provided by of her of discrimi- conciliation the statute 5, 1986, against into a nation filed on denying means of December administrative relief. Davis, Inc., delay experienced by management The administrative a local real estate Ms. respondent company. complaint, Timus and the procedur- triggered and the The which an investigation al road finding by “proba- ahead the courts are far removed OHR of (to statutory Davis, from the contemplated by scheme ble cause” believe Inc. had quotation, supra Council. See indented by committed an act of discrimination refus- rationality at 772-773. The ing of a human petitioner), rental accommodations to see convenience”). division, light Before the Department’s previous position Ms. Timus of the be regulations advised that she promulgated was of the view that her com fore the court and the plaint subject Department. any was not to a de novo ("Director majority opinion court. See at 755 petitioner being informed ... that the case was acknowledged delay The court has 'administratively pursuant closed’ 716.9 ... proceedings may be cause for dis ] accept! because of her failure to ... See, e.g., Nursing missal. WisconsinAve. Home v. offer"). recently settlement This disclosed inter Rights, District Columbia Comm’n on Human pretation give pause. should the en banc court (D.C.1987); Prop., 285-86 JBG Keating Energy Regulatory v. Federal Inc. v. District Office of Comm'n, 344, 354-55, U.S.App.D.C. Rights, supra, Regu 364 A.2d at 1186. See also 716.10, ("argument supra (period F.2d 625-26 [that sec lation note 10 for concilia days controlling receipt tion of statute found tion to be has no is 30 from of notice of invitation conciliate). application permit “per because issued is not a meaning mit” within the statute] comes too late, presents entirely theory for it new of this Department 1. The District of Columbia of Hu- appropriately case which cannot be raised on a Rights Minority Development man Business petition rehearing"; throughout proceed by Reorganization was created Plan No. 1 of ings disputed permit the state never that the was (1989); Reg. Mayor’s 1989. See 36 D.C. statute; hence, argument within 89-247, "the is waived (1989). Reg. Order No. 36 D.C. now”). reopen and we decline to the matter Reorganization Plan abolished OHR and majority’s ignore problem effort to and ra depart- transferred all of its functions to the new Department's convenience, theory, tionalize the new purpose see ma ment. For the the term jority opinion unpersuasive at 760 throughout opinion. n. "OHR” is used

(1987 jurisdic If it lacks Repl.). OHR finds tion, is no cause or that there (b) (1987 l~2545(a), Repl.), was engaged in respondent believe ground on the subsequently dismissed discrimination, Director must unlawful “make- refused dismissing complaint. an order issue offer2 of advanced whole” conciliation (1987 1-2545(c) When, Repl.). court, Davis, specifi- Inc. In this however, the existence the OHR finds cally contends the dismissal cause, concilia in advance of either contrary coun- government to law. The of such upon failure attempts jurisdiction to re- ters that we are without (a discretionary approach with attempts event, and, that in petition view this OHR), the name serve in it “shall” issue and as an act must be affirmed dismissal OHR a notice Rights Commission3 of the Human prosecutorial find that the discretion. We §§ -2550. hearing. Id. at challenged is both reviewa- order dismissal ble and reversible. scheme, Thus, statutory once under the cast or her lot aggrieved person elects to his route, processing with the administrative jurisdictional Any of the discussion pipeline complaint remains must presented substantive issues here be' (1) hearing stage unless the OHR dis- and, statutory light cast in the scheme cause, finding probable a of no misses after course, of the facts. (2) voluntarily aggrieved unless the has or Among discriminatory prohibited acts (3) complaint, or timely withdrawn the and Human the District Columbia for “administra- unless the dismisses (1987 Act, 1-2501, Repl. §§ -2557 (in to num- which case as convenience” tive Supp.), rejecting prospec & 1991 is that of a (2) (3), bring right to bered events and a tive tenant a rental transaction because jurisdiction is competent suit in court of prospective child tenant. resides with such restored). In the instant id. 1-2556. See (1987 §§ -2502 See D.C.Code case, has occurred. not one these events Repl. Supp.). aggrieved & 1991 An individu voluntarily has withdrawn Petitioner not complaint al elect to file with OHR for by OHR was not complaint; the dismissal jurisdiction. any competent court of nor was it one convenience (1987 1-2554(a), §§ Repl. & -2556 finding statute after mandated Supp.). Simpson 1991 v. District See also Rather, probable cause. OHR dismissed Rights, 597 A.2d Columbia Office probable finding of cause complaint after a (D.C.1991). filing complainant refused ground that this on the with an of rem the OHR constitutes election alleged by accept proposal to offered Club, edies, Capitol 425 A.2d Brown Hill remedy.4 as a discriminator 1309, 1311(D.C.1981), may voluntarily be time withdrawn II findings by prior investigation that underlies the basis It is this action respect proba OHR with out, 1-2544(b), pointed As judicial §§ review. -2545 our ble cause. D.C.Code iation, adequate rem- considered an p. which OHR 2. Ill & n. 4 infra. offer, edy was forwarded or a "make-whole” inquiries petitioner. Petitioner made series members, designated Commission Three declined regarding of the offer and the terms Hearing Examiners sit as tribunal accept questions were answered. until her perform adjudicatory service in conformance ques- petitioner’s provided OHR promulgated pursuant answers procedures unsatisfactory Subsequently, her. tions were Administrative Procedure (1987 if Repl.). presented petitioner with an ultimatum: Act. See D.C.Code 1-2551 OHR accept the "make-whole” refused offer, complaint. Peti- would dismiss OHR determining probable existed 4. After cause not inquiries, but did made more tioner petitioner had been discriminated believe Subsequently, OHR dismissed the offer. against, parties notified the that if concilia- OHR petition achieved, complaint. filed this Petitioner then the matter would re- tion was not hearing. judicial by trial-type review. An offer of concil- solved cause exists to believe subject that an individual has been the language of the Human Act man- discrimination. The net result of such a dates that once OHR finds cause to policy deny individual conciliation, initiated, exist and after process right review but the due to a failed, proceed lay the Office must provides.6 trial-like which the statute ground-work trial-type hearing for a in the Instead, name of the Commission. here therefore, Respondent, gain can no mile complaint. OHR dismissed the This it could age argument from the the Human legally “legal do. This dismissal Rights Act is modelled the National La wrong” conferring jurisdiction for review Act, bor Relations therefore the purposes to the District of Columbia Court of courts will not review a decision in which Appeals meaning within the of the Human merely “prosecutorial exercises its dis Rights Act and the District of Columbia Ad- NLRB, (citing cretion.” See id. Hourihan v. Donnelly ministrative Procedures Act.5 See (1952), U.S.App.D.C. 201 F.2d 187 Associates v. District Columbia Historic denied, cert. 345 U.S. 73 S.Ct. Board, Preservation Review 620 A.2d (1953)). L.Ed. 1359 To the extent that OHR (D.C.1987). probable cause, found it has exercised its discretion. It does not have discretion there To hold complain otherwise would leave after to dismiss the unless it had protection against “absolutely ants without (which not) purported to act it did on the arbitrary uncontrolled and action [of ad ground of administrative convenience. See agency] ministration whose action is unautho Club, Capitol supra, Brown v. Hill by any rized law and is violation of the Moreover, argument the broad rights of rejected the individual.” We (and successor) its have total control of approach an Simpson v. District Co of “prosecution” the administratively of cases lumbia Rights, supra, Human 597 Office of filed is antithetical to the enforcement of a (citing A.2d at Mag 398 American School of rights regard, only civil In act. this we need 94, Healing McAnnulty, netic v. 187 U.S. language, history, look to the the and the 110, (1902)). 33, 39, 23 S.Ct. 47 L.Ed. 90 rights case law of our federal civil statute Simpson, in reversing grant the trial court’s (Title 1964, Rights VII of Act 42 the Civil of summary judgment of respect with an to seq., U.S.C. 2000e et as amended the showing finding administrative record a of 1972, Equal Employment Opportunity Act of cause,” stated, “no “We find 92-261, 103), undeniably implausible 86 Stat. the notion that the Council of the Pub.L. No. purposes a model for District of administration and empower of Columbia to intended an enforcement of the local statute. Edu to See perpetual officer doom to Committee, a cation and Youth oblivion Affairs unlawful discrimina tion, Council, Legislative Report without of Columbia being subject his or her order (Octo 34, any judicial Simpson, Rights review whatever.” Title The Human Law at 1 1973). supra, 15, Indeed, original 597 implausibility A.2d 390. The ber under the (the even apparent statutory more in the instant case scheme the federal statute Act), agency where the administrative a Equal Employment Opportuni has made 1964 Rights [a]ny person suffering legal wrong 5. D.C.Code 1-2554 of the Human Act ... an provides that: order ... an or decision of in a contest- [a]ny person suffering legal wrong, or ad- case, judicial [by] ed is entitled to review ... versely aggrieved by, affected or or order Appeals. the District of Columbia Court of matter, pursu- decision of the ant in a Commission provisions chapter of this is entitled It is for this reason—the credible claim that a thereof, in accordance with government agency statutory has exceeded its [i.e., § 1-1510 the D.C. Administrative Proce- authority alternatively, this court could —that Act], upon filing dure in the District of Colum- mandamus, i.e., petition treat this as a Appeals, petition bia Court of a written compel compliance dictates with the stat such review. 21; D.C.App.R. ute. v. Yel See see also Dillard 1-1510 of the D.C. Administrative dell, (D.C.1975). part Procedure Act states in relevant that: 334 A.2d 578

779 indispens- it not an statutes but and local Act, like its part. able Our (EEOC) power to ty Commission conciliation, encourages counterpart, federal charges it prosecute filed with but fails, complainant must but conciliation attempting option investigating charge in an pursue his party conciliation with found cause adjudicatory forum. appropriate discriminatory engaging in a believe was Employment Equal practice.7 generally Ill Opportunity Responsibilities. Rights, — ed.) (John (Prac Pemberton, Jr., Remedies case, part of OHR the error on In this 1975). respon tising Law Institute Once the adoption regulations which stems from agreement with dent failed to reach statutory comport scheme on do not EEOC, aggrieved a EEOC issued Thus, statutory Act. the Human notice,” quickly led to the “right to sue which ... provision places “[i]f with the OHR persons “pri aggrieved characterization of option en circumstances so warrant” attorney generals.” generally Alex vate discriminatory prac deavoring to eliminate Gardner-Denver, 36, ander v. U.S. conference, persua “by conciliation or tice 1011, (1974); New S.Ct. L.Ed.2d 147 see 1-2546(a) (1987 Repl.). sion.” Inc., Enterprises, Piggie man v. Park agreement may The terms of conciliation 964, 19 L.Ed.2d 1263 U.S. 88 S.Ct. com require “respondent” to refrain from (1968). Thus, the federal statute from mitting practices or to take affirmative beginning put ultimate control in the hands action, by the “re include consent complainants and the courts and this entry in court a consent spondent” to the policy continued the statute amend §id. These conciliation decree. See 1-2546. give ed EEOC the sue its own provisions to the com make no reference name. See Occidental Insurance Co. Life plainant. EEOC, 97 S.Ct. U.S. provides the event statute also (1977) (under title, 53 L.Ed.2d 402 conciliation, in advance of of failure of or aggrieved person provisions allow the efforts, and after conciliation remedy in select a the courts where there cause, “a writ- the OHR shall issue inaction, charge dalliance dismissal of the notice, together copy the com- ten with a resolution); agency, unsatisfactory respondent to answer plaint,” requiring the Co., Ry. 406 Dent v. St. Louis-San Francisco at before the charges public (5th 399, Cir.1969), denied, 402 403 F.2d cert. adjudicatory body. sitting as an Commission 2219, 689 91 S.Ct. 29 L.Ed.2d U.S. § at 1-2550. Id. (1971) (in complainant for the to have order court, day his the Commission need contrast, speak By regulations OHR’s conciliation); actually engage parties opportunity to “of an Sciaraf notice to Co., Paper F.Supp. 310 893 “inviting parties to conciliate settle” and fa Oxford (D.Me.1970) (complainants not to de are be D.C.Reg. 33 6917 complaint.” day nied their in court due to administrative (1986) (to 716.1, §§ at 4 DCMR be codified conciliation); inability accomplish delay or respect respectively). 716.10 With Employment Larson, & and 2 A. Larson L. conciliation, regulations de- failure of (1982) § 9A-97 Discrimination respon- occurring failure as when scribe such (“conciliation by-passed proceedings can be remedy offers a participate dent refuses individual”). by an complainant whole not make the that will such an complainant refuses very “and act terms The of “conciliation” (1986) (to be D.C.Reg. codi- 6917 enforcing. offer.” 33 implies pacifying Concilia- —not 716.11). prob- The basic at 4 DCMR integral of both our federal fied part tion is an Act, Department private curiae. Under entered suits amicus Under the 1964 Justice amendments, right bring private of action persons aggrieved the 1972 were authorized to brought preserved; EEOC expressly when in the federal court. In the statute suit moreover, suit, aggrieved had an absolute permit EEOC sue in its own was amended to time, right subsequent intervene. right. this EEOC Prior and 780 authority petitioner’s no to dismiss com- plaint without on the merits. arises, however, promulgation

lem with the Reversed remanded. (1986) (to D.C.Reg. be codified at of 33 6917 716.9) step goes 4 DCMR which one fur- STEADMAN, dissenting: Judge, Associate provide ther forth, briefly that I I For reasons will set efforts, during respondent If conciliation jurisdic- believe that this does not have remedy complain- place offers that would appeal case tion to hear direct and the position complainant the same ant should therefore be dismissed.1 alleged would have been in had the dis- start with basic tenet of administra occurred, criminatory practice not aggrieved tive law that individual who is offer, complainant accept such refuses to agency of an can action administrative the Director that such determines invariably judicial almost obtain review offered would make generally such action. Bernard whole, the Director order com- Schwartz, (2d Law 436-37 Administrative plaint dismissed. 1984) (“there any ques ed. has never been added.) review”). (Emphasis propriety judicial tion of the us, jurisdictional question before howev doing, so upon OHR has conferred itself er, judicial is not whether authority to dismiss a agency challenged action here is available. finding and after cause exists whether the The issue is District of Columbia begun. There conciliation efforts have exists (“DCCA”) Appeals proper is the Court of statutory authority regulation. no for this forum for review in the in first Act authorizes a com- OHR to dismiss bottom, question stance. At this: plaint only upon either legal dispute peti when the is whether the (to cause, D.C.Reg. be codified agency hearing, tioner has a to an 718.1), grounds 4 DCMR or “on the yet proceeding become a “contested Reg. D.C. convenience.” 33 case.” I think the answer is no. (1986) (to codified as DCMR The District Columbia Administrative 708.1). Where conciliation efforts have (“DCAPA”) provid Act Procedure has never failed, proceed OHR must with the issuance ed for initial DCCA review of all hearing. Reg. notice of a of a 33 D.C. contrary, it was actions. On ever since (1986) (to 717.2). be codified as 4 DCMR provided first enacted DCAPA has deny petitioner otherwise To do proper is the forum in which to the DCCA develop proof protective pro- under challenge only specific type one of situa first cedures which the statute affords. tion, viz, a “contested case.” See D.C.Code The statute authorizes to endeavor to l-1510(a) (1992); Dupont Circle Citizen’s disputes through resolve conciliation. The Zoning Ass’n v. to statute does not authorize force set- (en (D.C.1975) Comm’n, A.2d 298-99 complainants by threatening on tlements to banc). juris general grant This is a complaints. dismiss their While OHR all diction to the DCCA to ab initio regulation intended to have further action; gives only power agency it a limited settlements, encourage good intentions are of such See Lee v. District Co review. statutory authority. The no substitute for Review, Appeals & 423 A.2d lumbia Bd. of geared ferreting is out dis- (D.C.1980). statute first judicial All chal other and, second, fashioning reme- crimination lenges agency brought action must be OHR, having Court, for that discrimination. Superior dies Dis the first instance the that existed general jurisdict determined cause court trict of Columbia’s occurred, unlawful discrimination had believe ion.2 merits, agree analysis although feder- I would the is somewhat different from the On with ("APA"), part it is majority opinion. al Procedure Act IV of the Administrative generally interpreted be akin to the federal Lee, legislative challenge history supra,

2. The of Colum- APA. 423 A.2d at 216. A District agency Administrative indicates that to a federal action is heard in the bia Procedure Act negative, then indeed the matter in the only type agency proceeding sub- issue DCCA, question in the a “contest- ject yet to initial review a contested case. The was not case,” ed is defined as of whether we have should Mayor proceeding depend upon or the answer to ultimate is-

a before the duties, legal or agency rights, sue; jurisdictional in which the deter- issue should be specific parties privileges required Furthermore, are the de- mined at the outset. (other by any or subchapter), law than this hearing a to a has termination whether right, be determined constitutional ex- probable cause accrued —such as whether hearing Mayor or before before the may very well ists or conciliation has failed— agency, an inquiry, for which a depend upon factual 1-1502(8) (1992), appellate been plainly and has and an trial court is fitted by this court refer to situa important construed is an court not at all. This indeed required is is tions which that why appellate review is limited reason direct See, adjudicative hearing. e.g., trial-type cases, normally where a factual to contested Chevy Ass’n v. District Chase Citizens agency. already been made record has (D.C. Council, jurisdiction in I that lack of reiterate 1974) (en banc) (“trial-type hearing where agency directly review actions ne- DCCA to or implicitly required is either the gating case” status does not mean “contested is ganic right”). act This or constitutional judi- that the action of the cannot squarely in nature of accord addressing cially are reviewed. We prime appellate tribunal. The role of appropriate question of which is decisiqns resulting from DCCA to review view, judicial my initial review. forum for adjudicative hearing, relating to an wheth type preliminary question of which judicial appeal er the is from a adminis not fit within point, But seeks review does trial tribunal. until that trative jurisdic- disputes carefully appellate forum which direct the normal defined gener are first addressed is the trial court of court. this jurisdiction.3 al case, hearing,

In the instant there was anyone argue does that there was

nor Nevertheless,

hearing. petitioner argues based contested case on require

proposition that the statute does not occurred, only hearing actually petitioner’s present right to a view exists. do not think that contested yet been when the

case status reached

very dispute condi- issue whether the hearing have prerequisite to a

tions appeal If

been satisfied. we answer cases, similar general question juris is nevertheless its basic structure “federal Court under court, agency's unless diction” of statute APA. federal specifically provides for or some other statute Flags appeals. review in the circuit court Five suggest general I do not mean to U.S.App. Pipe Dep't Transp., 272 Co. v. Line trial-type dispute, is not in to a 222, (1988); 1438, see D.C. 854 F.2d necessarily place taken must (1988). “may Congress also 28 U.S.C. case,” any appealable "contested order to be freely review choose court which appeals from trial courts. in some more than occur,” Flags Pipe agency Five [of actions] See, Hackers' e.g., v. District Columbia Debruhl Co., supra, U.S.App.D.C. Line Bd., (D.C.1978) Appeal License exceptions, Con and with certain F.2d agency proceeding does (adjudicatory before gress general jurisdic chosen merely case character as contested not lose its in that it itself tion. While specifically DCAPAdiffers requiring disputed facts are no because there provides appellate for direct cases, viz, hearing). trial-type actions in certain contested notes See Good Samaritan l-2546(a). — Similarly, warrant. 1-2550 —, Shalala, —, v. 113 U.S. S.Ct. may plausibly read to to OHR’s be commit 2151, 2159, (1993). 124 L.Ed.2d This (“as Office”) judgment See, determined employs analysis. e.g., the same (D.C. twin whether conciliation ef- Williams, determinations Schlank v. 572 A.2d 1990); Beverages, begin forts are unwarranted to Superior Inc. v. District of Bd., Beverages statutory This Columbia Alcoholic Control efforts have failed. broad (D.C.1989); (or Depart grant A.2d Smith authority would be undermined Servs., Employment maintain) ment reasonably so the could (D.C.1988). leaving complainant the unilateral with the accept make whole decision statutory phrase regard We offer fact would undo the discrimina- ambiguous. “failure of conciliation efforts” as token, By same and its effects.10 At interpretations least two reasonable interpretation One, adopting petitioner’s would re- phrase come mind. which effect quire investigative prosecutorial re- complainant, looks the action OHR, complainant rejects assume would hold if the sources which to be particular government settlement offer for reason or limited in a time of notorious engage pursue refuses conciliation from the austerity, to be used outset, insisting upon instead stage bé- adjudicatory through the formal even fore the Commission once cause has though a settlement offer has been made that found, been then conciliation efforts have remedy unarguably discrimination. a hearing place. failed and must take l-2552(b) at a (providing interpretation adopted by other one support —the “[t]he before the Commission case willingness OHR —assumes a com by an presented shall plainant to conciliate and holds concilia (emphasis agent attorney Office” (assuming tion has failed has deter added)). warranted) only mined such efforts to be Furthermore, of OHR’s the reasonableness respondent either has refused take interpretation is confirmed one consid when part in conciliation or has offered settle open ers the avenues of redress left alleged ment that will not in fact discrimination, complainant both before and after com rejects and the

Case Details

Case Name: Timus v. District of Columbia Department of Human Rights

Court Name: District of Columbia Court of Appeals

Date Published: Nov 8, 1993

Citation: 633 A.2d 751

Docket Number: 90-AA-465

Court Abbreviation: D.C.