Office of People's Counsel v. Public Serv.

• Decision Date: 12 April 1984
• Docket Number: No. 83-947.,83-947.
• Citation: 477 A.2d 1079
• Parties: OFFICE OF PEOPLE'S COUNSEL, Petitioner, v. PUBLIC SERVICE COMMISSION, Respondent. Potomac Electric Power Company, Intervenor. Washington Gas Light Company, Intervenor.
• Court: D.C. Court of Appeals

Page 1079

477 A.2d 1079

OFFICE OF PEOPLE'S COUNSEL, Petitioner, v. PUBLIC SERVICE COMMISSION, Respondent Potomac Electric Power Company, Intervenor Washington Gas Light Company, Intervenor.

No. 83-947.

District of Columbia Court of Appeals.

April 12, 1984.

Brian J.H. Lederer and Elizabeth A. Noel, Washington, D.C., for petitioner.

Lloyd N. Moore, Jr., Washington, D.C., for respondent.

William Dana Shapiro, Washington, D.C., for intervenor Potomac Electric Power Company.

Lewis Carroll, Washington, D.C., for intervenor Washington Gas Light Company.

Before NEBEKER, FERREN, and TERRY, Associate Judges, in chambers.

PER CURIAM:

In its petition for review, the Office of People's Counsel (OPC) asks this court to reverse the refusal of the Public Service Commission (PSC or Commission) to hold a status conference in its proceeding to promulgate rules to govern OPC assessment requests, and to direct the Commission to proceed with formal rulemaking. The Commission and intervenors move to dismiss the petition. We deny the motion to dismiss and hold that D.C.Code § 43-612(a) (1981) does not provide the Commission with authority to assess the utilities for (a) the fees of private attorneys engaged by the OPC to conduct the OPC's legal business before the PSC and the courts, and (b) certain extraordinary episodic operating expenses incurred by the OPC in connection with particular proceedings not provided for in the normal appropriations process. To the extent that the proposed rules would permit such assessments, they would be ultra vires of PSC's authority; therefore, rather than ordering the Commission to go forward with these proposed rules, we order it to revise its rules in accordance with this opinion.

I

On May 6, 1980, in PSC Formal Case No. 718, the Commission asserted its jurisdiction to promulgate rules governing OPC assessments for its expenses against the utilities under D.C.Code § 43-612(a). On July 2, 1982, because of its conclusion "that it is appropriate to develop rules to guide us in determining whether to issue an assessment or deposit order in a particular instance," 29 D.C.Reg. 2818 (1982), the Commission published its Notice of Proposed Rulemaking in this case. The Commission defined the scope of these proposed regulations as to "delineate[] the types of expenses for which OPC may seek reimbursement through an assessment order from an affected utility." 29 D.C.Reg. 2819 (to be codified at 14 DCRR § 801.1) (proposed July 2, 1982). The proposed regulations would permit the OPC to petition for reimbursement of "ordinary" and "extraordinary" expenses arising from a proceeding pending before the Commission, provided they are incurred in connection with that proceeding. The proposed rule defined "extraordinary" expenses as "those that are episodic, and are not provided for by the appropriations process. However, they may in some instances include the cost of services, and equipment which are of the same or similar nature as those covered by appropriations. Such expense[s] may not be established by using cost accounting techniques to allocate basic operating expenses and salaries to various proceedings before the Commission." 29 D.C.Reg. 2819 (1982) (to be codified at 14 DCRR § 801.1(a)(2)) (proposed July 2, 1982). The proposed regulation provided that "[a]n expense is ordinary if: (a) The expense is exclusively for personal services; and (b) The natural person that provides the personal service is a `consultant' within the meaning of this Chapter; and (c) The services provided by the consultant correspond to the expertise or formal training of that consultant." 29 D.C.Reg. 2819 (1982) (to be codified at 14 DCRR § 802.1(a)(1)) (proposed July 2, 1982). It also stated that "[a] consultant is any natural person that furnishes or will furnish services to OPC. A consultant should have either formal training or expertise in a profession including, but not limited to: (a) An attorney who meets the qualifications set forth in § 110.3 or a paralegal working under the direct supervision of such an attorney." 29 D.C.Reg. 2820 (1982) (to be codified at 14 DCRR § 802.2(a)) (proposed July 2, 1982).¹

II

The Commission received comments concerning these proposed assessment regulations, but did not promulgate final rules. Therefore, on April 8, 1983, the OPC filed a motion requesting the Commission to convene immediately a conference about the status of the proposed assessment regulations. On April 29, 1983, the Commission issued Order No. 7811, in which it rejected the request to hold a status conference.

The OPC appeals this denial, and the Commission, supported by intervenors, moves to dismiss for lack of jurisdiction because the refusal to hold a status conference is not a final appealable order. The Commission also claims that it should be awarded damages and double costs because this appeal is frivolous.

It is true, as the Commission argues, that a procedural decision made in the course of administrative proceedings, such as the refusal to hold a status conference, would not normally be immediately appealable. Washington Urban League, Inc. v. Public Service Commission, 295 A.2d 906, 908 (D.C.1972). However, this case fits within a well-recognized exception to the final judgment rule that allows a court to review non-final agency action when such action is clearly beyond the agency's jurisdiction. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). Here, because the Commission clearly lacks authority to promulgate these proposed rules, this court has jurisdiction of this appeal.

Our jurisdictional conclusion follows from our interpretation of D.C.Code § 43-612(a) and its legislative history. It is evident from the legislative history of the 1975 Act that Congress expected the OPC to have a limited, narrowly defined role in the process of utility regulation. We find nothing in either the language or the history of the Act to indicate that Congress intended to single out the OPC among government agencies for preferential treatment and to provide such broad authority for the assessment of OPC expenses outside the usual legislative appropriations process. Thus our examination of that statute leads us to the conclusion that Congress, when it created the OPC in 1975 with specific authority to hire a legal staff, did not intend to allow the OPC to supplement its staff of lawyers by hiring outside counsel and passing on the cost of such counsel to the utilities; nor did Congress intend to permit the Commission to assess the utilities for the OPC's extraordinary incremental operating expenses. Because the proposed rule contemplated both of these actions which are clearly beyond the Commission's authority, we have jurisdiction to rule on the merits of these proposed rules. Therefore, we must deny the motion to dismiss. As we decline the Commission's invitation to dismiss this appeal, we must also reject its request for damages and double costs.

III

The 1975 Act creating the Office of the People's Counsel² consisted of three sections. The first "established within the Public Service Commission of the District of Columbia . . . an office to be known as the `Office of the People's Counsel'" and provided "at the head of such office[,] the People's Counsel," who was "authorized to employ . . . such employees, including attorneys, as are necessary to perform the functions vested in him . . ." Those functions were spelled out in the Act. The People's Counsel must "represent and appeal for the people of the District of Columbia at hearings of the Commission and in judicial proceedings involving the interests of users of the products of or services furnished by public utilities. . . ." The People's Counsel may represent petitioners before the PSC who complain "in matters of rates or services;" may investigate services, rates, and property valuations of public utilities; and may develop means, such as providing technical, consultative, and information services to the public, to assure that the interests of users are adequately represented before the Commission.

The second section of the 1975 Act provided for the amendment of D.C.Code § 43-412 (1973) (now D.C.Code § 43-612(a) (1981)) as follows, in pertinent part, to add reference to the Office of the People's Counsel:

The expenses including the expenses of the Office of the People's Counsel of any investigation, valuation, revaluation, or proceeding of any nature by the Public Service Commission of or concerning any public utility operating in the District of Columbia, and all expenses of any litigation, including appeals, arising from any such investigation, valuation, revaluation, or proceeding, or from any order or action of the Commission, shall be borne by the public utility investigated, valued, revalued, or otherwise affected as a special franchise tax . . . and such expenses with interest . . . may . . . be allowed for in the rates to be charged by such utility. [Emphasis added.]

The final section of the 1975 Act authorized appropriations "to carry out the purposes of [the] act [creating the Office of the People's Counsel]" at a maximum of $100,000 for each fiscal year following 1975.³

It is the meaning of the word expenses, as used in the second section of the 1975 Act (hereinafter "section 612(a)") which we are called upon to construe in this case. The Commission, in proposing a rule to permit assessment of the OPC's outside counsel fees, has apparently concluded that Congress, in enacting the 1975 Act, intended to place OPC on equal footing with the PSC by enabling OPC to have its counsel fees for services related to PSC proceedings borne by the utilities as well.

The Commission and OPC would apparently argue that, because the services of independent attorneys are essential to OPC's vigorous representation of consumer interests, and because expenses is a broad and inclusive term, not expressly limited by Congress in the 1975 legislation...