Debruhl v. Dist. of Columbia Hackers' License, 10847.

• Decision Date: 09 March 1978
• Docket Number: No. 10847.,10847.
• Citation: 384 A.2d 421
• Parties: Paul DEBRUHL, Petitioner, v. DISTRICT OF COLUMBIA HACKERS' LICENSE APPEAL BOARD, Respondent.
• Court: D.C. Court of Appeals

384 A.2d 421

Paul DEBRUHL, Petitioner, v. DISTRICT OF COLUMBIA HACKERS' LICENSE APPEAL BOARD, Respondent.

No. 10847.

District of Columbia Court of Appeals.

Argued June 23, 1977.

Decided March 9, 1978.

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Robert Plotkin, Washington, D. C., for petitioner. Richard Hand, Washington, D. C., filed brief for petitioner.

Dennis McDaniel, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for respondent.

Before NEWMAN, Chief Judge, and HARRIS and MACK, Associate Judges.

NEWMAN, Chief Judge:

Denied a hacker's license by the Department of Motor Vehicles because of a felony conviction and subsequent parole status, petitioner seeks review challenging the constitutionality of the regulations establishing the disqualification. Respondent challenges our jurisdiction to review. Concluding that we do have jurisdiction, we reach petitioner's constitutional contentions; reject them; and affirm.

Convicted of armed robbery, petitioner was sentenced to a term of confinement. In early 1975, he was released on parole. In the fall of that year, he applied for a hacker's license. This application was denied based on Sections 10.201 and 10.202 of the District of Columbia Motor Vehicle Regulations solely because of his particular parole status.¹ Petitioner sought review of this denial by respondent, the appropriate administrative appeals board. Not challenging the fact of his parole status but rather its constitutionally permissible relevance to the issuance of a hacker's license, petitioner waived personal appearance before that tribunal and submitted his case on the written record.² Relief was denied by respondent based solely on his parole status. Petitioner timely filed this petition for review.

By motion to dismiss, respondent challenges the jurisdiction of this court to entertain petitioner's constitutional issues.³ As did the respondent in Berger v. Board of Psychologist Examiners for District of Columbia, D.C.App., 313 A.2d 602 (1973), (hereafter Berger I), respondent here contends that this is not a "contested case" within the meaning of the District of Co-inquiry Administrative Procedure Act, D.C. Code 1973, § 1-1501 et seq. (hereafter DCA-PA), since "under applicable law, the Board had no recourse other than to deny him licensure."⁴ Respondent cites no authority for this proposition other than Berger I. Since our review under DCAPA runs only to "contested cases" as defined therein, we must first resolve this jurisdictional challenge.⁵

I.

In Berger I, the petitioner applied to the Board of Psychologist Examiners for a license, without examination, to practice psychology.⁶ Since he lacked the qualifications established by the statute for issuance of a license without examination, his application was denied after a hearing. Conceding that he lacked the statutory qualifications, Berger sought review, by this court, contending the statute was unconstitutional as applied to him. In dealing with a jurisdictional challenge identical to the one raised here by respondent, this court stated:

It is thus obvious that petitioner expected no relief from the Board. As far as he was concerned, the proceeding before the Board was a formality, used merely as a step to come to this court. Having gotten here by that procedure, in effect he seeks to institute an original action to have this court declare the Act invalid and unconstitutional. Does he have a right to institute such action and do we have a right to entertain it? We think not. [Id. at 604.]

Recognizing that our holding in Berger I was overturned by the United States Court of Appeals in Berger v. Board of Psychologist Examiners, 172 U.S.App.D.C. 396, 521 F.2d 1056 (1975), (hereafter Berger II), respondent urges us to reject the decision in Berger II, and again enunciate the views we expressed in Berger I as the law of this jurisdiction. Noting that subsequent to our holding in Berger I, the judicial review provisions of the District of Columbia Practice of Psychology Act, D.C. Code 1973, § 2-492(C), were amended to divest the United States Court of Appeals of jurisdiction to review subsequent proceedings under the Act, respondent urges that under M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971), we may now simply decline to follow Berger II. We reject this as an overly simplistic approach toward deciding this issue for two reasons. First, since the definition of "contested case" in DCAPA, (save for an exception not here relevant), was intended to be synonymous with that of "adjudication" in the Federal Administrative Procedure Act, (hereafter Federal A.P.A.), 5 U.S.C. § 500 et seq. (1970), Capitol Hill Restoration Society v. Zoning Commission, D.C.App., 287 A.2d 101 (1972), decisions of this court construing such a provision of DCAPA, in so far as feasible, should be harmonious with those of the federal courts construing the corresponding provision of the Federal A.P.A. Secondly, as we noted in M.A.P. v. Ryan, supra, even where we are not bound by a holding of the United States Court of Appeals for this circuit, such holdings are "entitled to great respect." [Id. at 312.]⁷

Our independent analysis of the issue presented leads us to hold that this court properly has jurisdiction over this case and the constitutional issue raised.

DCAPA, as does Federal A.P.A., provides for basically two types of proceedings before administrative agencies — adjudicatory proceedings ("contested case") and rulemaking proceedings. Capitol Hill Restoration Society v. Zoning Commission, supra. The sine qua non of an adjudicatory proceeding is the individual, particular and immediate nature of the action as distinguished from the general and future nature of the rulemaking process. As we said in Citizens Association of Georgetown, Inc. v. Washington, D.C.App., 291 A.2d 699 (1972):

The principal manifestation of a `contested case' is its character as a quasi-judicial process based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding. [Id. at 703.]

The proceedings in this case fully fit this description. The Board was required by law to determine petitioner's application for a hacker's license. As it was required to be, the decision was based on particular facts and information concerning petitioner's background and status. And clearly the decision immediately affected his interest in obtaining gainful employment.

In Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947), the Supreme Court, in a somewhat analogous situation, rejected an argument like that of our respondent. After unsuccessful challenges to the authority of the Civil Service Commission to enforce against certain state employees the political activity ban of the Hatch Act in the lower federal courts, Oklahoma obtained certiorari in the Supreme Court contending the Act was unconstitutional. The Commission challenged the authority of the federal courts to grant relief, contending that Oklahoma could not challenge the constitutionality of the Act where its standing to seek review of the Commission order came from the same Act. The Court noted that the Act gave any party aggrieved a right to federal court review of the Commission order, which order was to be affirmed if the Court determined that the order was "in accordance with law." The Court reasoned that:

Only if the statutory basis for an order is within constitutional limits, can it be said that the resulting order is legal. To determine that question, the statutory review must include the power to determine the constitutionality of [the challenged section of the Act]. [Id. at 138, 67 S.Ct. at 551.]

It has been urged that where there are no disrupted "adjudicative facts" to be determined by the Board, a petitioner should be required to first seek relief in a trial court. No persuasive reason has been advanced for this proposition. An administrative agency, as is the case with the trial court, is competent to establish a record and then grant or deny the relief prayed. The fact that the administrative agency may be without authority to invalidate the statutory or regulatory scheme under which it operates, does not mean that review of such agency decision, including resolution of the constitutional questions raised by a party, is in a tribunal other than here.⁸ Thus, having concluded that we have jurisdiction to review the decision of the Board and to resolve the constitutional issues raised by petitioner, we now turn to those issues.

II

Petitioner alleges that the requirements of due process were not satisfied because the challenged regulations: (1) precluded inquiry into the applicant's present fitness, thereby rendering the right to a hearing barren of substance; (2) embodied an irrebuttable presumption which assumes facts which are neither necessarily nor universally true; and (3) imposed a disability based on a presumption which has not and cannot be demonstrated to bear a constitutionally required direct relationship to qualifications for a hacker's license.

We start with the proposition that a state may not exclude a person from practicing any occupation in a manner or for reasons which contravene due process or equal protection rights. Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 238-39, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). However, licensing statutes, which are primarily designed to protect the public, may regulate those occupations affecting the public interest by setting appropriate standards reasonably related to competency. Goldsmith v. Clabaugh, 55 App. D.C. 346, 6 F.2d 94 (1925). Only those who possess the requisite qualifications are thereby entitled to a license.

Petitioner was free to show that he met the requirements for a license....