DISTRICT OF COLUMBIA v. SIERRA CLUB, No. 95-CV-509

• Docket Nº: No. 95-CV-677
• Citation: 670 A.2d 354
• Case Date: January 19, 1996
• Court: Court of Appeals of Columbia District

670 A.2d 354 DISTRICT OF COLUMBIA, et al., Appellants, v. The SIERRA CLUB, Appellee. Nos. 95-CV-509, 95-CV-676 & 95-CV-677. District of Columbia Court of Appeals. Argued September 20, 1995. Decided January 19, 1996.

APPEAL FROM THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA, SUSAN R. WINFIELD, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

APPEALS FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, SUSAN R. WINFIELD, TRIAL JUDGE.

Donna M. Murasky, Assistant Corporation Counsel, with whom Garland Pinkston, Jr., Acting Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, Washington, DC, were on the brief, for appellants.

James R. Wrathall, Washington, DC, for appellee.

Before SCHWELB and KING, Associate Judges, and GALLAGHER, Senior Judge.

SCHWELB, Associate Judge:

This is an appeal by the District of Columbia and several of its officials (collectively "the District") from three orders of the Superior Court preliminarily enjoining the District from discontinuing or suspending the curbside recycling collection program which, according to plaintiff Sierra Club, is mandated by the District of Columbia Recycling Law (DCRL), D.C. Code §§ 6-3401 et seq. (1995) (as amended).¹ The District contends that the DCRL does not create a private right of action or authorize the Sierra Club's suit, and that the Mayor's discretionary action in suspending the curbside collection program is not subject to judicial review. The District also argues that the 1995 amendments to the DCRL confer upon the Mayor the authority to determine whether funds are available to enable the District to continue curbside collection, and that the preliminary injunction was improvidently issued. We reject the District's first contention but agree with the second. Accordingly, we vacate the preliminary injunction and remand the case for further proceedings consistent with this opinion.

I.

STATUTORY BACKGROUND

The DCRL was enacted in 1988. The legislation was based on a finding by the Council of the District of Columbia that

[m]ethods of solid waste management that emphasize source reduction and recycling are essential to the long-range preservation of the health, safety, and well-being of the public, the economic productivity and environmental quality of the District, and the conservation of resources.

D.C. Code § 6-3401(5). The statute provides, in pertinent part, as follows:

By April 1, 1990, occupants of residential property shall separate from their solid waste and containerize all metals and glass in 1 container as required by the Mayor by rules issued pursuant to § 6-3418. The Mayor shall provide collection services and establish a collection schedule to implementthis subsection pursuant to subsection (e) of this section.

§ 6-3407(d).

On April 28, 1995, the Mayor signed the Omnibus Budget Support Emergency Act of 1995 (OBSEA), D.C.Act 11-44, 42 D.C. Reg. 2217. The OBSEA conditions the operation of the recycling program on the availability of revenues, and provides that the program may be financed either from funds generated by a recycling "surcharge" imposed on solid waste haulers or from the Council's appropriations for solid waste management. § 504, 42 D.C. Reg. at 2217, 2229-30.

II.

THE SIERRA CLUB'S SUIT

In 1990, the Sierra Club instituted this action in the Superior Court. The Sierra Club alleged that the District had failed in several respects to comply with the DCRL, and prayed for injunctive relief. The District filed a motion to dismiss the complaint or, in the alternative, for summary judgment, contending that the Sierra Club lacked standing to sue² and that the injunction sought by the Sierra Club would intrude upon a core executive function in violation of the principle of separation of powers. On September 30, 1992, Judge Stephen S. Eilperin denied the District's motion. On November 10, 1992, the judge, concluding, inter alia, that the DCRL contemplated curbside collection, issued a preliminary injunction. That injunction provided, in pertinent part, that "[t]he District shall provide curbside collection of newspapers, metals, glass and yard waste . . . to all occupants of residential property in the District of Columbia by January 1, 1993, and shall provide for the recycling of such materials." The District did not appeal from the preliminary injunction.

In early April 1995, the Department of Public Works (DPW) announced that, in light of the District's financial crisis, it would be necessary to suspend temporarily the curbside recycling program. On April 28, 1995, the contracts of thirty-six DPW employees assigned to the recycling program were allowed to expire. In lieu of that program, the DPW identified for District residents certain centralized collection points at which they could deposit their recyclables.

On April 26, 1995, the Sierra Club filed a motion for a temporary restraining order (TRO) prohibiting the suspension of the curbside recycling program. Two days later, Judge Bruce Beaudin issued a TRO requiring the District to continue operation of that program. Subsequently, in a series of orders entered in May 1995, Judge Susan R. Winfield granted the Sierra Club's application for a preliminary injunction and ordered that the program be maintained in effect. These appeals followed.

III.

THE SIERRA CLUB'S RIGHT TO JUDICIAL REVIEW

Relying on the Supreme Court's decision in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and Cort's progeny, the District contends that "[t]he Sierra Club may not maintain this action because there is no private right of action for alleged violations of the Recycling Act." We do not agree.

Distilled to its essence, the Sierra Club's complaint seeks equitable relief from adverse and allegedly unlawful action by a public officer. Specifically, according to the Sierra Club, the DCRL requires the District to provide curbside collection of recyclables, and the suspension of curbside collection contravenes this statutory mandate. It is the District's position that, even if the DPW violated the DCRL in this regard, the Superior Court lacks authority to do anything about it. This contention cannot be reconciled with the applicable precedents or with the sound reasons of policy that underlie them.

A. Presumption of Reviewability.

As the Supreme Court explained, almost a century ago, in American Sch. ofMagnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90 (1902), courts

must have power in a proper proceeding to grant relief. Otherwise, the individual is left to the absolutely uncontrolled and arbitrary action of a public and administrative officer, whose action is unauthorized by any law and is in violation of the rights of the individual.

Id. at 110, 23 S.Ct. at 39 (emphasis added); see also Abdullah v. Roach, 668 A.2d 801, 807 n. 9 (D.C. 1995) (quoting McAnnulty). Accordingly, "[t]he actions of government agencies are normally presumed to be subject to judicial review unless [the legislature] has precluded review or a court would have no law to apply to test the legality of the agency's actions." Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C. 1991) (quoting Carlin v. McKean, 262 U.S.App.D.C. 212, 214, 823 F.2d 620, 622 (1987), cert. denied, 484 U.S. 1046, 108 S.Ct. 784, 98 L.Ed.2d 870 (1988)). As Judge Ferren has written,

[t]he strong presumption favoring judicial review of agency action reflects a recognition that review is essential to promoting agency responsiveness to legislative mandates. . . . [U]nreviewability gives the executive a standing invitation to disregard . . . statutory requirements. . . .

People's Counsel v. Public Serv. Comm'n of the District of Columbia, 474 A.2d 1274, 1278 n. 2 (D.C. 1984) (concurring opinion) (citations and internal quotation marks omitted).³

"[O]nly upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (citations omitted). The authority of courts to grant relief from unlawful agency action existed at common law, and it was merely reinforced (and not created) by the federal Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1994), and similar local enactments. See Abbott Labs., supra, 387 U.S. at 140, 87 S.Ct. at 1511. "The presumption of reviewability is not the product of enacted law, it is common law." 5 KENNETH C. DAVIS, ADMINISTRATIVE LAW TREATISE § 28.1, at 254 (2d ed. 1984); see also Abdullah, supra, 668 A.2d at 807-08 (citing DAVIS).

There are two principal exceptions to the presumption of judicial reviewability. First, the legislature may commit the challenged action entirely to agency discretion. Second, it may preclude review, explicitly or implicitly, by statute. See, e.g., Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985). Neither of these exceptions applies here.

A legislative intention to commit an action entirely to agency discretion — a "very narrow exception" to the governing presumption — may properly be inferred only in "those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820-21, 28 L.Ed.2d 136 (1971) (citations and internal quotation marks omitted).⁴ In this case, the statute requires the Mayor to provide collection services, see D.C. Code § 6-3407(d), and the Mayor's acts or omissions can readily be evaluated by reference to that obligation. Furthermore, nothing in the DCRL explicitly or implicitly precludes judicial review. See, e.g., Briscoe v. Bell, 432 U.S. 404, 413, 97 S.Ct. 2428, 2433-34, 53 L.Ed.2d 439 (1977) (requiring a "clear showing of preclusion"); ...