DeLevay v. District of Columbia Rental Acc., 13960.

Decision Date24 January 1980
Docket NumberNo. 13960.,13960.
PartiesJoseph L. DeLEVAY, Petitioner, v. DISTRICT OF COLUMBIA RENTAL ACCOMMODATIONS COMMISSION, Respondent.
CourtD.C. Court of Appeals

Joseph L. DeLevay, pro se.

Jeffry A. Kappstatter, Asst. Corp. Counsel, Washington, D.C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D.C., at the time the brief was filed, John C. Salyer, III, and Frederick F. Stiehl, Asst. Corp. Counsels, Washington, D.C., were on brief, for respondent.

Before GALLAGHER, NEBEKER and FERREN, Associate Judges.

FERREN, Associate Judge:

Petitioner DeLevay, a tenant, challenges a decision of the Rental Accommodations Commission (Commission) authorizing an overall rent increase in his apartment building. We conclude that, because DeLevay did not challenge the owner's petition for a rent increase before the Rental Accommodations Office (RAO), he is not an "aggrieved party" having a right to appeal the RAO decision to the Commission. D.C. Code 1978 Supp., § 45-1652(g). We therefore hold that it was improper for the Commission to review DeLevay's allegations and, accordingly, that his petition to this court must be dismissed for lack of jurisdiction. See D.C. Code 1979 Supp., § 45-1697.

I.

On June 13, 1977, F. G. H. Associates, the owner of apartments at 2200 19th Street, N.W., filed a hardship petition for a rent increase with the RAO. Upon receiving notice of the proposed increase, several tenants requested a hearing. See Regulations of the District of Columbia Rental Accommodations Commission (RAC Regs.) § 2.31.1 These tenants were then notified of the date, time, and place of the hearing. See RAC Regs. §§ 2.31, 3.11. Subsequently, the tenants formed an organization to represent them, the Shawmut Tenants' Association (STA). Petitioner DeLevay, however, neither sought a hearing on the proposed rent increase nor joined the STA.

The RAO conducted the hearing in August 1977.2 The hearing examiner issued a written decision on December 1, 1977. He concluded that in order to obtain the 8 per cent rate of return permitted under the statute, the owner was entitled to a rent increase of 13.57 per cent above the current maximum rent ceiling. He also found, however, that the building had been cited for a number of housing code violations and that the landlord had decreased services previously furnished to the tenants by $6,765. Accordingly, the examiner conditioned the rent increase on the abatement of the housing code violations and submission to RAO of a plan for payment of refunds arising from decreased services. The examiner also ordered that the rent increase could not be effective without 30 days' notice of the increase to each tenant.3 RAC Regs. § 2.40. Based on this order, the landlord immediately gave the tenants written notice of the approved rent increase.

Both the landlord and the STA appealed the RAO decision to the Commission, which heard the matter on January 18, 1978. The Commission remanded the case to the RAO for three purposes: (1) for the complaining tenants to review the documentation filed by the landlord in support of the hardship petition, (2) for an RAO finding as to whether housing code violations reported in June 1977 had been abated, and (3) for RAO's reassessment of the value of decreased services. In order to make it possible for the owner to implement the rent increase on February 1, 1978, the Commission ordered the RAO to make findings only on the availability of the documents and abatement of the housing code violations; a revised ruling on decreased services was to await the Commission's written decision.

Pursuant to the remand order, the hearing examiner made the documents underlying the rent increase available to the STA.4 He gave the STA until January 27 to make objections to the documents. They made none. The examiner also received a statement from the Office of the Housing Inspector confirming that all housing code violations had been abated. He thereupon concluded that this particular condition for the rent increase had been satisfied.5 Accordingly, on January 31, 1978, the examiner issued a decision on behalf of the RAO, ruling that the owner's rent increase (provided for in the December 1, 1977 order) could become effective as of February 1, 1978.

After receiving notice that his rent would be increased pursuant to the January 31 decision, DeLevay entered this proceeding for the first time by filing a notice of appeal to the Commission on February 10, 1978. One member of the Commission questioned DeLevay's right to bring an appeal, since he had not participated in any of the proceedings that led to the January 31 decision. After considerable discussion, however, the Commission considered DeLevay's appeal on the merits pursuant to RAC Regs. § 5.30, as amended by 24 D.C.Reg. 3589 (Nov. 4, 1977), which provides in part: "Any person adversely affected by a decision of the Administrator may obtain review of the decision by filing a timely notice of appeal with the Commission" (emphasis added).6 The Commission agreed that in amending this regulation it had liberally interpreted the Rental Accommodations Act, D.C.Code 1978 Supp., § 45-1652(g) (authorizing an appeal by the "aggrieved party"), in order to permit an appeal to the Commission by anyone who receives a rent increase, even though he or she may not have participated in an earlier RAO proceeding. See Record at 91-95.7

On July 19, 1978, almost six months after the rent increase, the Commission issued its decision on the appeals filed by STA and the owner, affirming (for the most part) the December 1, 1977, and January 31, 1978, RAO decisions. Consistent with its January 18 remand order, however, the Commission again remanded the case to the RAO for a new finding on the value of decreased services.8

On September 6, 1978, the Commission published an opinion and order denying De-Levay's appeal on the ground that it failed "to state a valid basis for appeal." Specifically, the Commission explained that the January 31 RAO decision which DeLevay had appealed was of limited scope; it was intended only to assure the complaining tenants an opportunity to review the documents supporting the rent increase and to permit the examiner to determine whether the landlord had abated the code violations. Observing that the examiner had resolved both of these problems satisfactorily, the Commission concluded that DeLevay had failed to state a valid basis for appeal.9 On October 3, 1978, DeLevay filed a timely petition in this court for review of the Commission's order. See D.C. Code 1979 Supp., § 45-1697.10

II.

DeLevay alleges nine errors in the proceedings to date, the first five of which he cites for the first time in this court. He claims that (1) he did not receive notice of the landlord's petition for a rent increase, see D.C. Code 1978 Supp., § 45-1652(b); RAC Regs. § 2.31; (2) the landlord failed to meet the registration and licensing requirements for a rent increase, see D.C. Code 1978 Supp., § 45-1644(e)(3), (4); (3) the RAO's decisions were improperly signed by the hearing examiner in the name of the administrator; (4) the landlord's implementation of the rent increase on February 1 1978, 24 hours after the RAO's January 31 decision, violated the 30-day notice requirement, see D.C. Code 1978 Supp., § 45-1652(h); and (5) the RAO erred in concluding that the landlord had developed a satisfactory plan for compensating tenants for the value of decreased services.

DeLevay also reasserts the four errors alleged before (and rejected by) the Commission; specifically, that (6) as a tenant, he was improperly denied notice of scheduled hearings in the STA proceeding, prior to the time he entered the case by filing a notice of appeal; (7) the hearing examiner erred in concluding that the landlord's documents supporting the hardship petition had been made available to the parties; (8) the RAO improperly concluded that the landlord had abated the Code violations in the building, since the parties had not been given an opportunity to rebut the housing inspector's report before the RAO relied on it, see Carey v. District Unemployment Compensation Board, D.C.App., 304 A.2d 18, 20 (1973); D.C. Code 1978 Supp., § 1-1509(b); and (9) the parties had not been given an opportunity to conduct the audit of the landlord's records permitted by RAC Regs. § 2.22.

A. We begin by considering the alleged errors in the RAO proceeding which DeLevay raises for the first time in this court. Chief among these is DeLevay's assertion that he did not receive notice of the landlord's petition for a rent increase — an argument purporting to provide an excuse for his failure to intervene until he received notice of the increase itself. DeLevay, however, does not contend that he lacked an opportunity to raise the notice issue (or any of the others) before the Commission.11 It follows that he cannot properly raise these issues for the first time in this court, since the District of Columbia Administrative Procedure Act, D.C. Code 1978 Supp., § 1-1510, directs this court to "hear and determine all appeals upon the exclusive record for decision before the . . . agency." We have refused to permit issues not raised at the administrative level to form the basis for overturning an administrative decision. Dietrich v. District of Columbia Board of Zoning Adjustment, D.C. App., 320 A.2d 282, 287 (1974); John D. Neumann Properties, Inc. v. District of Columbia Board of Appeal and Review, D.C. App., 268 A.2d 605, 606 (1970).12 We thus feel constrained to evaluate DeLevay's petition on the premise that there was no irregularity in the notice procedure.13

B. The threshold question in considering DeLevay's remaining claims is the one initially considered by the Commission: whether petitioner is an "aggrieved party," D.C. Code 1978 Supp., § 45-1652(g), authorized to appeal the RAO decision of January 31, 1978 to the...

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