This subchapter is applicable to proceedings before Police and Firemen s Retirement and Relief Board. Kea v. Police & Firemen s Retirement & Relief Bd., App. D. C., 429 A. 2d 174 ( 1981). No conflict between this subchapter and Traffic Adjudication Act.  There is no conflict between the Administrative Procedure Act and the Traffic Adjudication Act ( Chapter 6 of Title 40), as it is clear that the legislative intent in the latter was to create an exception to the former s definitim of   contested case  in § 1 1502( 8). District of Columbia v. Sullivan, App. D. C., 436 A. 2d 364 ( 1981). Claim must be decided first by Iocal courts of the District of Columbia.  Claim that failure of District of Columbia Department of Corrections to comply. with the public notice and comment requirements of the District of Columbia Administrative procedure Act, D. C. Code 8 1 1501et seq., and the publication requirement of D. C. Code 8 1 1538( b) rendered prison visitation regulations invalid must be decided in the first instance by the local courts of the District of Columbia. Robinson v. Palmer, 841 F. 2d 1151 ( D. C. Cir. 1988). Subchapter inapplicable where agency did not have authority or power to adjudicate dispute.  Where a regulatory agency ( the Educational Institution Licensure Commission had neither authority to adjudicate the dispute between student and regulated institution nor the power to award the money damages the student sought, neither the doctrine of exhaustion of administrative remedies nor primary jurisdiction operates to bar the student s civil action. Goode v. Antioch Univ., App. D. C., 544 A. 2d 704 ( 1988). Award of attorney s fees.  Where tenants caused the commission to rule, for the first time, that landlord s capital improvement petition requesting increase in rent was a contested case within the meaning of the District of Columbia Administrative Procedure Act, and that the landlord had tbe burden of proof, which it could only meet by affirmatively pre205 5 1 1502 ADMINISTUTION senting evidence, and where part of the relief that the prevailing tenants obtained was a refund of the increased rent charged by the landlord as a result of the approval of the capital improvement pecition by the rent udminisuator relief was name type often awarded to prevmling tenants in tenant initiated proceedings and tenants were entitled to presumptlve award of attorneys feen. Hampton Courts Ten ante  Ass n v. District of Columbia Rental Hous. Comm n, App. D. C.. 573 A. 2d 10 ( 1990). aBd, 599 A. 2d 1113 ( 1991). Cited in Jacobs V. District Unemployment Comp. Bd.. App. D. C.. 382 A. 2d 282 ( 1978): Debruhl v. Distna of Columbia Hackers  LIcew Appeal Bd.. App. D. C.. 384 A. 2d 121 ( 1978): Lewis v. Dismc of Columbia Comm n on Licensure to Practice Healing Art. App. D. C.. 385 A. 2d 1148 ( 1978); Kenmore Joint Venture v. Distnct of Columbia Bd. of Zoning Adjustment. App. D. C.. 391 A. 2d 269 11978): Washington Pub. InterestOrganization v. Public Sew. Comm n, App. D. C., 393 A. 2d 71 ( 19781, cert. denied, 4 44 US. 926, 100 S. Ct. 265.62 L. Ed. 2d 182 ( 1979): Jones v. Distnct Unemployment Comp. Bd.. App. D. C.. 395 A. 2d 392 ( 1978); Neer v. Distnct of Columbia Police & Firemen s Retirement & Relief Bd.. App. D. C., 415 A. 2d 523 11980): Citizens Corn. to Save Historic Rhodes Tavern v. Distnct of Columbia Dep  t of Hous. & Community Dev.. App. D. C.. 132 A. 2d 710. cen. denied. 454 US. 1054. 102 S. Ct. 599, 70 L. Ed. 2d 590 ( 1981); Le Jimmy. he. v. District of Columbia ABC Bd.. App. D. C., 433 A. 2d 1090 119811; Barry v. Wilson. App. D. C.. 448 A. 2d 244 8 1 1502. Definitions. As used in this subchapter: I : 1982): Brice v. District of Columbia Dep  t of Emp. Sews.. App. D. C., 472  A. Zd 406 ( 19841: Weinberg v. Barry. 604 F. Supp. 390 ( D. D. C. 1985): Robinson v. Palmer. 619 F. Supp. 34.4 ( D. D. C. 19851; George Hyman Constr. Co. v. Distnct of Columbia Dep t of Emp. Sews.. App. D. C.. 497 A. 2d 103 f 1985); District of Columbia Hoep. Aas n v. Barry. App. D. C.. 498 A. 2d 216 ( 1985); Dell v. Department of Emp. Sews.. App. D. C., 499 A. 2d 102 ( 1985); Robiwn v. Palmer. 631 F. Supp. 52 ( D. D. C. 1986): George Washington Univ. Medical Center v. District of Columbia Bd. of Appeals & Review. App. D. C.. 530 A. 2d 227 ( 1987): Washington Times y Distnct of Columbia Dep  t of Emp. Sews.. App. D. C.. 530 A. 2d 1186 ( 1987): in White v. District of Columbia Bd. of Elections & Ethics. Xpp. D. C.. 537 X. 2d 1133 ( 1988): Brookens v. Committee on L  nauthorued Practice of Law. App. D. C.. 538 A. 2d 1120 ( 1988); Allen v. Ford. 116 WLR 1869 ( Super. Ct.): Alder v. Columbia Histoneal Soc y. 690 F. Supp. 9 fD. D. C. 1988): Committee of Blind Vendors v. District ol Columbia 695 F. Supp. 1234 ( D. D. C. 1988); Council of School Officers v. Vaughn, App. D. C.. 533 A. 2d 1222 f 19891; Schlank v. Williams App. D. C.. 572 A. 2d 101, cert. denied,  US.. 111 S. Ct. 341, 112 L. Ed. 2d 306 ( 1990): Abnev v District of Columbia. App. D. C.. 580 A. 2d 1036 i 1990): Eilers v. Distnn of Columbia Bureau of Motor Vehicles Servs.. Xpp. D. C.. 583 A. 2d 677 ( 1990): Miller v. Distnct of Columbia. App. D. C.. 587 A. 2d 213 ,1991); Simpson v. District of Columbia OfFicg of Human Rights. App. D. C.. 597 A. 2d 392 11991).

( 1HA) The term   Mayor  means the Mayor of the Distnct of Columbia, or his or her designated agent. (  3) The term   Council  means the Council of the District of Columbia established by 0 1 221( a) unless the term   District of Columbia Council  is used in which event it shall mean the District of Columbia Coancil established by subsection ( a) of § 201 of Reorganization Plan No. 3 of 1967 ( 81Stat948 ( 2) The term   District  means the District of Columbia. ( 3) The term   agency  includes both subordinate agency and independent agency. ( 4) The term   subordinate agency  means any officer, employee. office, department. division, board, commission, or other agency of the government of the District, other than an independent agency or the Mayor or the Council. required by law or by the Mayor or the Council to administer any law or any rule. adopted under the authonty of a law. ( 5) The term   independent agencv  means any agencv of the government of the District with respect uo which the Mayor and the Council are not autho3   206 .) ep t of 19841. D DC. JP. 344 co v . . . App lurnbia ? d 216 5ervs.. tion v   jeorge   tstnct . ADP. Ti rnes  em s,

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I nv tjnc : io rized by law, other than this subchapter, to establish administrative procedures but does not include the several courts of the District and the Tax Division of the Superior Court. . ( 6) The term   rule  means the whole or any part of any Mayor s or agency s statement of general or particular applicability and future effect  designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Mayor or of any ( 7) The term   rulemaking  means Mayor s or agency s process for the formulation, amendment, or repeal of a rule, ( 8) The term   contested case  means a proceeding before the Mayor or any agency in which the legal rights. duties. or privileges of specific parties are required by any law ( other than this subchapter). or by constitutional right, to be determined after a hearing before the Mayor or before an agency, but shall not include: ( A) Any matter subject to a subsequent trial of the law and the facts de novo in any court; ( B) The selection or tenure of an officer or employee of the District; ( C) Proceedings in which decisions rest solely on inspections, tests, or ( D) Cases in which the Mayor or an agency act as an agent for a court ( 9) The term   person  includes inhvidunls, partnerships, corporations, associations. and public or private organizations of any character other than : the Mayor, the Council. or an agency. ( 10) The term   party  includes the Mayor and any person or agency named or admitted as a party, or properly seeking and entitled as of right to   be admitted as a party, in anv proceedmg before the Mayor or an agency, but . nothing herein shall be construed to prevent the Mayor or an agency from admitting the Mayor or any person or agency as a party for limited purposes. ( 11) The term   order  means the whole or any part of the final disposition ( whether affirmative. negative, injunctive. or declaratory in form) of the Mayor or of any agency in any matter other than ruiemahng, but including ( 12) The term   license  includes the whole or part of any permit, certifi ate, approval, reestration, charter, membership, statutory exemption, or other form of permission granted by the Mayor or any agency. ( 13) The term   licensing  includes process respecting the grant, renewal, $ enid, revocation. suspension, annulment. withdrawal, limitation, amend

ment, modification. or conditioning of a license by the Mayor or an agency. . > ( 14) The term   relief  includes the whole or part of any Mayor s or t of money, assistance, license, authority, exemption,

excep El) Recognition of anv claim. neht. immunity, privilege, exemption. or exception: and 4c ? 07  , I I   d I .  7 5 1 1502 ADMINISTRATION ( C) Taking of any other action upon the application or petition of, and beneficial to, any person. ( 15) The wrm   proceeding  means any process of the Mayor or an agency as defined in paragraphs ( 6), ( ll), and ( 12) of this section. ( 16) The term   sanction  includes the whoie or part of any Mayor  s or agency s: ( A) Prohibition, requirement, limitation, or other condition affeaing the freedom olh any person: ( B) Withholding of relief; ( C) Imposition of any form of penalty or fine: ( D) Destruction, taking, seizure, or withholding of property; ( E) Assessment of damages. reimbursement, restitution, compensation. costs, charges., or fees; ( F) Reqwmrement, revocation, . or suspension of a license; and ( GITaking of other compulsory or restrictive action. ( 17) The term   regulation  means the whole or any part of any District of Columbia Council statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law. or policy or to describe the organization, procedure, or practice requirements of the Mayor, District of Co! umbia Council, or any agency. ( 18) The Ixrm   public record  includes all books. papers, maps, phob graphs, cards, ta. pes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned. used. in the possession of, or retained by the Mayor and agencies. ( 19) The term   adjudication  means the agency process. other than rule making, for the formulation, issuance, and enforcement of an order. ( Oct. 21, 1968,82Stat. 1204. Pub. L. 90 614. $ 3; 1973 Ed.. S 1 1502: Oct. 8, 1975, D. C. Law 1 19. title 1. 4 1021b)( q), 22 DCR 2048; Mar. 29, 1977, D. C. Law 1 96, 4 31a), ( c), td), 23 DCR 9532b.)

Section references.  This section is referred to in $ § 1: 1192.2. 1 1529. 1 1531. 1 1902. 11 722. and 11 1525. Legislative hismry of Law 1 19.  See . note to P 1 1501. Legislative hisllc~ ryof Law 1 96.  See note to $ 1 1521. District of Columbia Tax Court abolished  The Distnct of Columbia Tax Court. formerly referred to in paragraph ( 5). was abolished by 4 161Lat or Pub. L. 91 358. & 1 Stat. 579. and the functions thereof are now vested in the Tax Division of the Supenor Court of the Distnct of Columbia. Editor  s notes.   District of Columbia Council statement.   referred to in I 17). should probablv appear as   statement of the Council of the Distnct of Columbia  or   Council statp ment.  in view oi I I3iB) and the fact that ths section refen u) cunrent and ongoing Counnl activitv. Board held not PO be   agency .  The Contract Appeals Board for the Dktnct oi CCP lumbia is not an   agencv  within the me of this section. Gunneil Constr. Co. v. Contract Appeals Bd.. App. D. C.. 182 A. 2d 556 ( 1971). The National Capltai Housing Authonw is not an   agency  of the Distnct of Columbi. within the meaninq of this subchapter. Cole man v. United States. App. D. C.. 311 A. 2d 496 ( 1973). The Joint Committee on Landmarks of the Nationai Capital. as an intergnvernmeod agency, is not an agencv of the District of ( 3lumbia Latimer v Joint Comm. on hdmarks App. D. C.. 345 A. 2d 484 ( 1975). Judicial constructions of andogous V visions in federal act are persuasive, a~ ths subchapter is modeled on the federal ad a great extent. panicuiarlv with respect & e definition oi adjudicator?. proceedznga Pendleton v. Distnct of Columbia Bd. of rions & Ethics. App. D. C.. 149 A. 2d 301 ( 1 Implementation of poLicV within ing of parapaph 16, constitu( e9   de .  Where the closure 01  a clinic is an implemaE.

208 5 I I  ADMINXSTRAT  IVE PROCEDURE § 1 1502 icy, within the meaning of paragraph section, it constituted a   rule  within ng of paragraph ( 6). Spivey v. Barry, .& pp. 1093( D. D. C. 1980), rev d on other F. 2d 1222 ( D. C. Cir. 1981). nict between this subchapter and djudication Act.  There is no con wean the Administrative Procedure the Traffic Adjudication Act ( Chapter 401, as it is clear that the legislative in the latter was to create an exception former sdefinition of   confisted case  in h ( 81of this section. District of Columlivan App. D. C., 436A. 2d364( 1981).  . An order of the Mayor which sets evei of public assistance payments is a e   as defined by this section whether it is considered to be an implementing directive or ., w,. wrirrtion nf nolirv. , Junphanp v. npgart ...

merit of Human Resources, App. D. C., 289 A. 2d 17 ( 1972). Food Stamp Operating Manual is not a .   de .  The Department of Human Re umsSocial Services Administration s Food stamp Operating Manual is neither a regulation nor a   rule  within the purview of this  tion. Wolston v. District of Columbia Dep t of Human Resources Social S~ NS. Administration App. D. C., 291 A. 2d 85 ( 1972). Rulemaking envisioned as quasi legislative process.  The Administrative Procedure Act envisions rulemaking as a quasi legislative process, and where government agency performs no legislative function but only de scribes or refers to regulation as it is written, procedural formalities of Administrative Procedure Act are unnecessary. District of Columbia v. North Washington Neighbors, Inc., App. D. C., 367 A. 2d 143 ( 1976): cert. denied, 434 US. 823, 98 S. Ct. 68, 54 L. Ed. 2d 80 ( 1976).   Rdemaking .  The change of the debasement factor for taxation of single family residences by the District s taxing authorities is   rulemaking  within the meaning of this section. District of Columbia v. Green, App. D. C., 310 A. 2d 848 ( 19731, affd, App. D. C., 348 A. 2d 305 ( 1975). District action held not   rutemaking .  The District s letter to a Senator, in which the District outlined its reading of regulations relevant to the repair of water pipes, is not   rulemaking within the meaning of Administrative Procedure Act. District of Columbia v. North Washington Neighbors, Inc., App. D. C., 367 A. 2d 143, cert. denied, 434 US. 823, 98 S. Ct. 68, 54 L. Ed. 2d 80 ( 1976). The implementation of a mandatory federal directive that permits no choice by the District, other than to initiate an administrative or judicial challenge, is not   rulemaking  under paragraph ( 7) of this section. Hamer v. Department of Human Servs., App. D. C:, 492 A. 2d 1253 119853. The Department of Human Services did n@ t engage in   rulemaking  within the context of the Administrative Procedure Act by reducing petitioner s monthly payment under a grant for Aid to Families with Dependent Children until a prior erroneous overpayment was recouped Boyd v. District of Columbia Dep t of Human Servs., App. D. C.. 524 A. 2d 744 ( 1987). Zoning proceeding constituted   rulemaking rather than a   contested case  where the Zoning Commission rezoned at least 50 lots in 6 squares and solicited and received testimony regarding the impact of imminent development on the entire vicinity. The fact that the impetus for the hearings came from cit&! rEwho were concerned with the impact of a high rise structure on a particular piece of property wm of nc consequence in determining whpther the !> rnrpedipr : w=. Q rnntyctnrl qcr Schneider v. District of Columbia Zoning Comm n, App. D. C., 383 A. 2d 324 ( 1978). The Zoning Commission properly proceeded by rulemaking rather than by contested eases in preparing new zoning proposals for waterfront area. Citizens Ass n v. Zoning Comm n, App. D. C., 392 A. 2d 1027 ( 1978).   Contested case  construed.  The principal manifestation of a   contested case,  within meaning of review provisions of Administrative Procedure Act of District of Columbia, is its character as a quasi judicial process based on particular facts and information, and immed, iately affecting the interests of specific parties in the proceeding. Citizens Ass n of Georgetown, Inc. v. Washington, App. D. C., 291 A. 2d 699 ( 1972); District of Columbia v. Douglass, App. D. C., 452 A. 2d 329 ( 1982). Where a proceeding by a quasi legislative body is concerned primarily with the immediate rights, duties, or privileges of specific parties instead of with general policy of future applicability such proceeding falls within the   contested case  provisions of the Administrative Procedure Act. Chevy Chase Citizens Ass n v. District of Columbia Council, App. D. C., 327 A. 2d 310 ( 1974). An administrative proceeding is primarily adjudicatory and is therefore governed by   contested case  procedural requirements if it is concerned basically with weighing particular information and arriving at a decision directed at the rights of specific parties; on the other hand, an administrative proceeding is not subject to   contested case  procedural requirements if the administrative body is acting in a legislative capacity, making policy decisions directed toward general public. Chevy Chase Citizens Ass n v. District of Columbia Council, App. D. C., 327 A. 2d 310 ( 1974); Schneider v. District of Columbia Zonjng Comm n, App. D. C., 383 A. 2d 324 ( 19783. In order for a matter to be a conte5ted case, it must involve a trial type hearing which is re209 6 I < t. 7+ 1 5 1 1502 ADMINISTRATION quired either by statute or by constitutional right. Capitol Hill Restoration Soc y, Inc. v. Moore, App. D. C., 410 A. 2d 184 ( 1979); Dupont Circle Citizens Ass n v. Barry, App. D. C., 455 A. 2d 417 ( 1983); Rones v. District of Columbia Dep t of Hous. & Community Dev., App. D. C., 500 A. 2d 998 ( 1985). For a proceeding to constitute a   contested case,  a specific statute or the Constitution must entitle a person to a hearing concerning the legal rights of the parties. District of Columbia v. Douglass, App. D. C., 452 A. 2d 329 ( 1982). Approval by the Commission of a preliminary application for a planned unit develop ment is a   contested case  under the Administrative Procedure Act and is properly before an appellate court as a final order entitled to review DuPont Circle Citizens Ass n v. District of Columbia Zoning Comm n, App. D. C., 426 A. 2d 327 ( 1981). The issuance or denial of a license under the Healing Arts Practice Act, $ 2 1301 et seq., now repealed, is a   contested case  within the meaning of paragraph ( 8) of this section. District of Columbia v. Douglas, App. D. C., 452 A. 2d 329 ( 1982). The Court of Appeals has jurisdiction to hear a petition for review of the District of Columbia Hacker  s License Appeal Board ruling, affirming the denial of a license to a parolee, because it arises from a   contested case  as defined under paragraph ( 8). Allen v. District of Columbia Hacker s License Appeal Bd., App. D. C., 471 A. 2d 271 ( 1984). The D. C. Court of Appeals hasjurisdiction to review orders or decisions of District of Columbia government agencies only in   contested cases.  the^ types of proceedings to which this definition refers are   trial type  hearings, which are   statutorily or constitutionally compelled Singleton v. District of Columbia Dep t of Cors., App. D. C., 596 A. 2d 56 ( 1991). Independent agency is not beyond the Mayor s budgetary reach.  Fact that the Board of Library Trustees of the District of Co a, i, L;; yL!,::. I,+:..* ir ! ibt2.1. ?  3 .....   independent agency  does not confer a status on the library which puts it beyond the Mayor s budgetary reach. Hazel v: B3, App. D. C., 580 A. 2d 110 ( 1990).   Contested case .  A proceeding involving an application for approval of planned unit development is a   contested case  within the meaning of this chapter. Capitol Hill Restoration Soc  y v. Zoning Comm n, App. D. C., 287 A. 2d 101 11972). The Zoning Commission s grant of a change in zoning is a   contested case.  Palisades Citizens Ass n v. District of Columbia Zoning Comm n, App. D. C., 368A. 2d 1143 ( 19771; Capitol Hill Restoration Soc  y v. Zoning Comm n, App. D. C., 380 A. 2d 174 ( 1977), overruled on other grounds, Citizens Ass n of Georgetown v. Zoning Comm n, App. D. C., 392 A. 2d 1027 ( 1978). A proceeding before the Board of Appeals and Review to review an order of the Police and Firemen s Retirement Board is a   contested case.  Brewington v. District of Columbia Bd. of Appezls & Review, App. D. C., 287 A. 2d 532 ( 1972). An application for a special exception to allow the construction of a private school in a residential zone is a   contested case  within the meaning of this subchapter. Rose Lees Hardy Home & School Ass n v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 324 A. 2d 701 ( 1974), affd, App. D. C., 343 A. 2d 564 ( 1975). Proceeding not a   contested case ,  A disciplinary proceeding before the Metropolitan Police Special Trial Board involved a police officer s tenure as an employee, and thus was not a   contested case  under paragraph ( 8)( B) of this section. Matala v. Washington, App. D. C., 276 A. 2d 126 ( 1971). A proceeding before the Zoning Commission which lacks the specificity of subject matter and result indicative of an adjudicatory proceeding and is a quasi legislative hearing conducted for the purpose of obtaining facts and information, and the views of the public pertinent to the resolution of a policy decision, is not a   contested case  within the judicial review provisions of the Administrative Procedure Act. Citizens Ass n of Georgetown, Inc. v. Washington, App. D. C., 291 A. 2d 699 ( 1972); W. C. & A. N. Miller Dev. Co. v. District of Columbia Zoning Comm n, App. D. C., 340 A. 2d 420 ( 1975). A proceeding held under the District of Columbia Zoning Commission srules of practice. which results in the downzoning of an area, is not a   contested case  within the meaning of the Administrative Procedure Act. Ruppert V.

Washington, 366 F. Supp. 683 ( D. D. C. 1973). The refusal of the Mayor to grant a request to take immediate steps to correct an alleged 3ir ~~ 11~:+~ nnemorw~ ryin the nistrirt. nf COlumbia is not a   contested case  withtn piirview of this subchapter. Environmental Defense Fund, Inc. v. Mayor Commissioner of D. C., App. D. C, 317 A. 2d 515 ( 1974). A public hearing prior to the revision of hiin. imum Wage and Industrial Safety Board s order with regard to persons employed in hod* restaurant, and allied occupations was not   contested case  within purview of notice PT visions of this subchapter. Hotel Ass n v. trict of Columbia Minimum Wage Safety Bd., App. D. C., 318 A. 2d 294 ( 19  . The decision of the Council to Close a PONoa of a street and, once closed. to author*= th. surveyor to convey title to the abutting Id Ownem for deveiopment does not COnstimw 210 ADMINISTRATTE PROCEDURE 9 1 1502 Kvc rv drcisioii to transfer a government em ycc Ii Uill ,) lit  p ~ lLlU11 LU dlLLJLlle1 IO LlUL Ouu ect to the   contested case  procedural requiremcnts nnd direct review by the court. District OfColumbia v. Jones, App. D. C., 442 A. 2d 512 ( 1982). A proceeding before the Metropolitan Police Trial Board which resulted in a recommendation of dismissal of an officer for malingering involves the tenure of an employee of the District of Columbia, and thus was not a   conteated case  under paragraph ( 8)( B) of this section Barry v. Wilson, App. D. C., 448A. 2d 244 ( 1982). The term   contested case  does not include a procegding regarding the selection or tonure of an officer or employee of the District. Review of a tenure decision is properly in the Superior Court. Kennedy v. Barry, App. D. C., 516 A. 2d 176 ( 1986). An emergency order of the Taxicab Commission increasing rates is not a contested case so as to be subject to direct review. Communication Workers, Local 2338 v. District of Columbia Taxicab Comm n, App. D. C., 542 A. 2d 1221 ( 1988). Order suspending or revoking Class   F  liquor license appealable.  An order of the Alcoholic Beverage Control Board denying a motion to suspend or revoke Class   Flicenses is a final, appealable order within the meaning ofparagraph ( 11) of this section. Haight v. District of Columbia ABC Bd., App. D. C., 439 A. 2d 487 ( 1981). The phrase   after a hearing  as used in ststute defining a   contested case  as meaning a proceeding in which the legal rights and privileges of specific parties are required to be determined, means after a trial type hearing where such is implicitly required by either the organic act or constitutional right. Chevy Chase Citizens Ass n v. District of Columbia Council. App. D. C., 327 A. 2d 310 ( 1974); Bryant v. Barry, App. D. C., 456 A. 2d 1252 ( 1983). Scope of paragraph f8)( B) exclusion.  Paragraph ( 8)( B) was intended to encompass virtually all personnel decisions. Wells v. District of Columbia Bd. of Educ, App. D. C.. 386 A. 2d 703 ( 1978). Includes intra agency transfers.  The exclusion under paragraph ( 8)( B) encompasses personnel decisions transferring employees within an agency. Wells v. District of Columbia Bd. of Educ., App. D. C., 386 A. 2d 703 ( 1978). And administrative leave.  Administrative leave requests are facets of personnel management encompassed within the term   selection or tenure  under paragraph 18)( B). Money v. Cullinane, App. D. C., 392 A. 2d 998 ( 1978). Prifoa discipline cases.  There is no constitutional right to a full trial type hearing in prison discipline cases. Prisoners are entitled to some due proress protections. such as the II~ IILLu reie: vc I~ OLIC~! ui Lne cnarges against them and a written statement of reasons for any disciplinary action, but other constitutional rights must generally be balanced against the correctional goals 3f the prison authorities Singleton v. District of Columbia Dep t of Cors., App. D. C., 596 A. 2d 56 ( 1991). Remand order not a   final order.   In a workers  compensation case, an order by the Director to remand a case to the Hearing Examiner for further findings, was not a final order because the remand order only decided 1of 2 claims. Warner v. District of Columbia Dep t of Emp. S~ NS., App. D. C., 587 A. 2d 1091 ( 1991). Court of Appeals jurisdiction for review must arise from   contested case .  District of Columbia Court of Appeals jurisdiction to review administrat, ive actions under the Administrative Procedure Act must arise in the form of a   contested case.  District of Columbia v. Greater Washington Cent. Labor Council, App. D. C., 442 A. 2d 110, rehearing denied, App. D. C., 445 A. 2d 960 ( 1982), cert. denied, 460 US. 1016,103S. Ct. 1261,75 L. Ed. 2d 486 ( 1983). Review of a Metropolitan Police Department Police Trial Board decision is properly in the Superior Court, rather than the Court of Appeals because such a matter involving the tenure of an officer or employee of the District of Columbia is specifically excluded from the definition of   contested case.  Kegley v. District of Columbia, App. D. C., 440 A. 2d 1013 ( 1982). In view of the exclusion of paragraph ( 8)( B) of this section, tenure of an officer of the District is not directly reviewable by the Court of Appeals. Review is properly in the Superior Court. Barry v. Holderbaum, App. D. C., 454 A. 2d 1328 ( 1982). Property owner may seek review of DHCD final action by Court of Appeals.  Because W 5 513 authorizes the Department of Housing and Community Development ( DHCD), an administrative agency of the Dis21.1 I 4 1 1503 trict. to deprive the owner of his property. and because the Board of Appeals and Review does not have appellate jurisdiction over an enforce ment order. due process entitles the owner toa " contested case" heanng at DHCD if he elects to show cause why he should not be reqd to correct such condition: whether DHCD granr~ or refuses such a hearing, the owner can seek review of DHCD's final action directly by the Court of Appeals. Auger v. D. C. Bd. of Appeals & Review, App. D. C.. 477 A. 2d 196 ( 1984). Court of Appeals may not review agency revocation of sign permit not appealed to Board ofAppeals and Review.  Where petitioner did not appeal his sign permit revocation by Distnct agency to the Board of Appeals and Review. the Court of Appeals does not have junsdiction to renew the agency's revocation of the permit because petitioner failed to create a " contested case." Auger v. D. C. Bd. of Appeals & Review. App. D. C.. 477 A. 2d 196 119841. Cited in Woodndge Nursery School v. Jessup. App. D. C.. 269 A. 2d 199 ( 1970); Palace Restaurant. Inc. v. ABC Bd., App. D. C., 271 A. 2d 561 ( 1970): Johnson v. Board of Appeals Sr Review. App. D. C.. 282 A. 2d 566 ( 19711. cert. denied. 405 U. S. 955. 92 S. Ct. 1175. 31 L. Ed. 2d 232 ( 1972): Wallace v. Distnct Unemployment Comp. . Bd.. App. D. C.. 289 A. 2d 885 I 19721: Thomas v. Distnct of Columbia Bd. of Appeais & Review. App. D. C.. 355 A. 2d 789 11976): L'Enfanr Plaza Properties, Inc. v. Distnct of Columbia Redeveiopmenr Land Agency. 564 F. 2d 515 8D. C. Cir. 1977): Ammerman v District of Columbia Rental Accommodations Comm'n. App. D. C., 375 ~. a 1060 ( 1977): Lechter Siege1 v. Distnct Unemployment Comp. Bd.. App. D. C.. 395 A. M 57 ( 19781; Rorie v Distnct of Columbia Dep't of Human Resources. App. D. C.. 403 A. 2d 11a ( 1979); Network Technical Sews.. Inc. v. D. C. Data Co.. App. D. C.. 464 A. 2d 133 ( 1983); Ppie's Counsel v. Public Serv. Comm'n, App. D. C., 474 A. 2d 8354 1984,: Robinson v. Palmer. 619 F. Supp. 344 1D. D. C. 1985): Donneliy . ksocs. v. Distnct of Columbia Historic Reservation Review Bd.. Xpp. D. C.. 520 A. 2d 270 11987): Acheson v SheatTer. .4pp. D. C.. 520 A. 2d 318 ( 1987): Siler v. Distnct of Columbia Dep't of Emp. % ITS.. App. D. C.. 525 A. 2d 620 ( 1987): White v. Distnct of Columbia Bd. of Elections & Ethics. App. D. C.. 537 A. 2d 1133 i 1988): Flores v. Distnct of Columbia Rental Hous. Comm'n. App. D. C.. 547 A. 2d loo0 ( 1988); Committee of Blind Vendors v. District of Columbia. 695 F. Supp. 1234 1D. D. C. 1988); Jones & Artis Consrr. Co. v. District of Columbia Contract Appeals Bd.. App. D. C.. 549 A. 2d 315 f 19881: Levy v District of Columbia Bd. of Zoning Adjustment. App. D. C.. 570 A. 2d 739 i1990): Committee of 100 v. District of Columbia Dep't of Consumer & Reeulatory Affairs. . lpp. D C . j7l A. 2d 195 I19901: In re Herndon. App. D C.. 596 A. 2d 592 ( 19911: Kennedy v. Dixon. 119 WLR 2637 ( Super. Ct. 1991).

5 1 1503. Establishment of procedures.

fa, The Mayor and the Council shall, for the Mayor and for each subordinate agency, establish or require each subordinate agency to establish procedures in accordance with this subchapter.

1 b) Each independent agency shall establish procedures in accordance with this subchapter.

ICJ The procedures required to be established by subsections la) and ( b) of this section shall include requirements of practice before the Mayor and each agency. ( Oct. 21, 1968.82 Stat. 1205, Pub. L. 90 614, 4 4; 1973 Ed., S; 1 1503; Oct. 8, 1975, D. C. Law 1 19, title I, § 102( r),( s), 22 DCR 2051: Mar. 29. 1977, D. C. Law 1 96. 5 3( a), ( c), 23 DCR 9532b. l Section references.  This section IS referred to in $ 4 11 722. 11 1525. and 33 731. Leg. lsIative history of Law 1 19. & e note u) .) 1 1501. Lepslative history of Law 1 96.  k note to < 1 1521. Lay representation before agencies implicates public policy.  While Court of Ap peais is empowered to define the practice of ! aw so that it either excludes or includes lav represenration beiore aeencies. it IS also true that such an undertaking implicates important public policv questions. Brookens v. Committee on Unauthorized Practice of Law. . ipp. D. C.. 538 X. 2d 1120 11988). In absence of specific procedures. hearing governed bv general rules of ProOCdure  LVhen the conduct of a zoning hean43 IS attacked and no ordinance or rule has ' adopred to qovern the board's conduct. COm wiil relv on the principle, that the hearinp mbe governed bv well esrablished des 01 P* nL Lpnd r 19771 ( ental Ac. 175 A. 2d CL Unem7 A. 2d 57 I I1ep. t of I 2d 1148 i v DC. 183);

Peai1 n. App, Palmer. thneilv ' c Preser L'd 270 1 t.' . 520 11 I urnbia \ 2d 620 '. I Ed. of .! d 1133 I Kenral 2d 1000 fhstnct 1988); r: OlUJn i9 A. 2d . I Bd. of .! d 739 ( Iolumiffairs ,, rnrion.  led! v 111 :~

ordi rote

* wlth IbJof : each i 503: 1977. ADMINISTRATIVEPROCEDURE 5 1 1505 a Hackers: License Appeal Bd.. App. 0 A. 2d 1004 ( 1978). in D. C. Human Relauons Comm'n v. National Geographic Soc'y, 475 F. 2d 366 ( D. C. 3); Weinberg v. Barry. 634 F. Supp. 86 1986): Porter v. Distnct of Columbia Dep't of Emp. Servs.. APP. D. C.. 518 A. 2d 1020 en meetings; transcripts.

( a) All meetings ( including hearings) of any department. agency, board. or commission of the Districe. government. including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public. No resolution, rule, act, regulation, or other official action ahall be effective unless taken, made, or enacted at such meeting. or a transcription shall be kept for all such meet labie to the public during normal business hours ernmenlt. Copies of such written transcripts or copies of such transcriptions shall be available, upon request, to the public at reasonable 1 1503a: Dec. 24,1973.87 Stat. 831, Pub. L. 93 198. title Section references. " his section is re fed to in $ 8 1 236. 1 262. 1 264.1. 1 606.10. 2 3102, 9 602, 11 722. 11 1525. 31 1543. and ., Ik6~ 1itionsapplicable.  1he definitions . mntained in 8 1 202 apply to this section. not cover decision on application to carry conceded pistol.  The deliberative process incident to the Board of Ap

Boud of Zoning Adjustment  Where a dsdsion of Board of Zoning Adjustment was made in an executive session which was a quasi judicial action in which historically onlv voting members play a role, this section is not applicable. Duponr Circle Citizens Ass'n v. District of Columbia Bd. of Zomng Adjustment. App. D. C.. 364 A. 2d 610 ( 1976). Or certain meetings of Board of Education  Given the express intent of Congress to allow certain meetings of the Board of Education to be closed and the embodiment of that InLent in a specific statute tl 31 1011. that pnor statute remains in effect as a qualification of this section requnng meetings of the Distnct government to be open to the public. Goodwin v. Distnct of Columbia Bd. of Ebc.. App. D. C.. 343 A. 2d 63 ( 1975). II I i I i I i f 1 1505. Official publications.

The Mayor shall cause to be published the official publications known as istrict of Columbia Register and the District of Columbia Municipal ations pursuant to subchapter I11 of this chapter. (' b) All courts within the District shall take judicial notice of rules. regula ti. and Council acts and resolutions published or of which notice is given in the District of Columbia Register or the District of Columbia Municipal Reguhtions pursuant to subchapter I11 of this chapter. the District of Columbia Register of Council acts and resolutions. regulations adopted, amended, or repealed by the District of Columbia Council and rules adopted. amended. or repealed bv the > favor or bv 2 13 9 1 1506 ADMINISTRATION any agency shall not be considered as a substitute for publication in 1 or more newspapers of general circulation when such publication is required by statute ( Oct. 21, 1968,82 Stat. 1206. Pub. L. 90 614, § 5; 1973 Ed.. 5 1 1504; Oct. 8, 1975, D. C. Law 1 19, title I, 5 102( tL rx), 22 DCR 2051: Mar. 29, 1977, D. C. Law 1 96. § 3( a), 23 DCR 9532b; Apr. 19. 1977, D. C. Law 1 120, $ 2, 23 DCR 9924; Mar. 6, 1979. D. C. Law 2 153, 4 6( a), 25 DCR 6960.)'

Cross references.  As to availability of D. C. Register to Advisory Neighborhood Commissions see 5 1 261. As toavailability to public of official information. see . i 1 1521 et seq. Section references.  This section is referred to in § § 1 1601. 11 722. 11 1525. 31 1546. and 33 731. Legwlative history of Law 1 19.  See note to ri 1 1501. Legislative history of Law 1 96.  See note to ti 1 1521. Legislative history of Law 1 120.  Law 1 120 was introduced in Council and assigned Bill No. 1 340. which was referred, to the Committee on the Judiciary and the Committee on Criminal Law. The Bill was adopted on first and second readings on November 23. 1976and December 7. 1976. respectively. Enacted without signature by the Mayor on January 1, 1977. it was assigned Act No. 1 206 and transmitted to both Houses of Congress for its review Legislative history of Law 2 153.  Law 2 153 was introduced in Council and assigned Bill No. 2 96. which was referred to the Committee on the Judiciary. The Bill was adopted on first and second readines on November 28. 1978 and Decemkr 12. 1978. respectivelv. Signed by the Mayor on December 29. 1978. it WBS assigned Act No. 2 319 and transmitted to both Houses of Congress for its review. Editor's notes.  As amended by D. C. Law 2 153. subsection ( a) origtnaily contained the phrase " Subchapter 11.'. " Subchapter II" was changed to " subchapter 111" in subsection ( a). Regulation incorporated into Districtpf Columbia Register is properly publiehed.  A police regulation of the Distnct of Columbia pertaining equal employment opportuntties even if not published. in a compilation, was properly published where a special edition of the District of Columbia Repter incorporated District of Columbia police regulations and such regulations were available for purchase at District of Columbia publicatioas office D. C. Human Relations Comm'n v. National Geographic Soc'v. 475 F. 2d 366 ( D. C. Cir 1973). Agency violates section by taking final action before 30 days.  Where an agency iailed to wait 30 days from publication of notice before taking final action. and also failed to indicate in the notice that it intended to take action in less than 30 days. the agency violated this section. Spivey v. Barry. 501 F. Supp. 1093 D D. C 1980). rev'd on other mounds. 665 F. 2d L222 1D. C. Cir. 1981). Cited in Legtslative Study Club. Inc. v. Disrnct of Coiumbia Bd. of Zoning .4djustment. App. D. C.. 359 A. 2d I53 ( 1976).

3 1 1506. Public notice and participation in rulemaking; emergency rules. la) The Mayor and each independent agency shall, prior to the adoption of any rule or the amendment or repeal thereof. publish in the District of Columbia Register ( unless all persons subject thereto are named and either personallv served oi otherwise have actual notice thereof in accordance with law) notice of the intended action so as to afford interested persons opportunity to submit data and views either orally or in writing, as may be. specified in such notice. The publication or service required bv this subsection of any notice shall be made not less than 30 days prior to the etrective date of the proposed adoption. amendment; or repeal. as the' case may be. except as otherwise provided by the Mayor or the agency upon good cause hund and published with the notice. ' br . Any interested person may pecition the Mayor or an Independent agencv requesting the piomulgation. amendment. or repeal of any rule. The .

ADMINISTRATIVEPROCEDURE 0 1 1506 Mayor and each independent agency shall prescribe by rule the form for such petitions, and the procedure for their submission, consideration, and disposition Nothing in this subchapter shall make it mandatory that the Mayor or any agency promulgate, amend. or repeal any rule pursuant to a petition therefor submitted in accordance with this section. ( c) Notwithstanding any other provision of this section, if, in an emergency,

at3 determined by the Mayor or an independent agency, the adoption of a rule is necessary for the immediate preservation of the public peace, health, safety, welfare, or morals, the Mayor or such independent agency may adopt such rules as may be necessary in the circumstances, and such rule may become effective immediately. Any such emergency rule shall forthwith be published and filed in the manner prescribed in subchapter I11 of this chapter. No such rule shall remain in effect longer than 120 days after the date of its adoption. ( Oct. 21,1968, 82 Stat. 1206, Pub. L. 90 614. 9 6; 1973 Ed.. $ 1 1505; Oct. 8. 1975, D. C. Law 1 19, title I. 0 102( y), 22 DCR 2053; Mar. 29, 1977. D. C. Law 1 96, 0 3( a~( c), ( e), 23 DCI? 9532b.)

, Cross references.  As to publication of zens Ass'n v. Zoning Comm'n. App. D. C., 392 I ' des and regulations relating to adoption sub X. 2d 1027 ( 1978). 9' ddy payments, see 8 3 115. There is no requiremew that opponents of a Won references.  This section is re rule be given the opportunity to cross examine ,.<, fed to in $ 5 1 261. 1 604.5.3 115.3 207.3. witnesses testifying favorably or to rebut the ... & 705,61005, 11 722.11 1525.31 602.31 603. .

': 31 1516.31 1535,31 1543.33 731.35 2111. 361209. 40 1708.47 383. and 47 2501. Legislative history of Law 1 19.  See note to 8 1 1501. Legislative history of Law 146.  See ..<. note to 9: 1 1521. '*' ' Subsection ( a) analogous to federal statute  The requirements in subsection '

31of. L7. this mion as M nor. ice and comment are closely analogous to the requiremenu oi the:* ji Federal Administratlve Procedure Act 15 U. S. C. 9 551 et seq. 1 for an informal ruiemaking proceeding. Citizns Xss'n Y Zoning . hmm'n, App. D. C.. 392 A. 2d 1027 11978). " Rdemaking" construed.  The change of thedebasement factor for the taxation oisingi family residences is. wittun the meaning of this subchapter. " rulemakmg" such as IO re the publication of notice. District of Co1umbk v. Green. App. D. C., 310 A. 2d 848 ( 19731. Sd, App. D. C.. 348 A. 2d 305 11975). .1 heyor's intwpretatlon of the word " subdi don" in the Historic Landmark and Historic Dietrict Protection Act was not a " ruIe" for Purpoeee of this chapter. and was nor required to have been adopred accordine to : he notice rad went procedures. Acheson v Sheaffer. Am. D. C.. 520 A. 2d 313 ( 1987). Rdernaking affords Limited procedural P ons.  In a rulemakine proceedmg, . w& iS quasi legislative In character. ail the  ta of this subchapter and the lull ranee of due Drocess protections necessarv IO an nd entary adjudication are not apaiicaole {' it[ evldence presented by proponents; rulemakinq differs in this regard hm contested cases. Citi ens Ass'n v. Zoning Comm'n. App. D. C.. 392 X. 2d 1027 ( 1978). Statement of basis and purpose for re@ latiom not required.  The absence oi any provision requiring Distnct of Columbia agencies u) provide a staltment of basis and purpose for regulations being promulKated under the rulemalung provisions of subsection. tajof this seztion is a clear indication that neither Congress nor the Council of the Distnct of Columbia intended such statements to be requlred of District agencies. Distnct of Columbia Hosp. Ass'n v. Barry. App. D. C.. 498 A. 2d 216 ( 1985). aff'd. 586 A. 2d 686 ( 1991). Opportunity to comment on proposed rules.  Interested persons are not afforded an opporturuty to comment on proposed rules within the meaning of this section if the general public does not know where or how t~

submit the commenfs. Junghans'v. Department of Human Resources. App. D. C.. 289 A. 2d 17 ' 1972). In order that interested persons be afforded an opportunity to be heard on a proposed rule. : he general public must be advised of the current status of proposed rule as it stands before the rulemaker. and Congre'ss inrended the notice of a proposed rule to inform the public that the rulemaker would either waic 30 davs before laking final action on the pending pronosai or was contemuiatine lakine linal action in less man JO davs. juncrians v I> epartment 215 5 1 1506 ADMJNISTRATION of Human. Resources, App. D. C., 289 A. 2d 17 ( 1972). Notice requirements imposed upon Zoning Commission prior to hearing on proposed regulatory action.  The 3 notice requireinents with which the Zoning Commission must comply prior to a hearing on proposed regulatory action are: ( 1) Subsection ( a) of this section; ( 21 5 5 415; and ( 3) Zoning Commission Rule 3.411. Monaco v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 461 A. 2d 1049 ( 1983). Opportunity to comment afforded by Zoning Commission.  The requirement under this section and 8 5 417 that interested members of the public be afforded a reasonable opportunity to comment and submit data was met by the Zoning Commission s holding 4 days of hearings and permitting a substantial period for submission of written comments. Citizens Ass n v. Zoning Comm n, App. D. C.,

  392 A. 2d 1027 ( 1978). Failure to exhaust administrative remedies before the Zoning Commission.  The Zoning Commission is the exclusive agency vested with responsibility for assuring that zoning regulations are not inconsistent with the District s comprehensive plan, and failure to pursue any action before the Zoning Commission amounts to failure to exhaust administrative remedies. Tenley & Cleveland Park Emergency Comm. v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 550 A. 2d 331 ( 1988), cert. denied, 489 US. 1082, 109 S. Ct. 1539, 103 L. Ed. 2d 843 ( 1989). Notice and opportunity to comment deemed sufficient tosatisfy due process.  Notice of a planned closing of several shelters for homeless men and a reasonable opportunity to present written comments constitute all the process that is due the homeless mefi:, in part, because of the legislative nature of the proposed termination of services. Williams v. Barry, 708 F. 2d 789 ( D. C. Cir. 1983). The demands of due process were satisfied where the challenged regulation was duly published and adopted in compliance with the no

ILI , . .. lu.<.. lli. lr p, ~* L<.: LL.., . I2 L_...._ C_.. VL.,

and subsequently published in final form in   I compliance with § 1 1532. Flores v. District of Columbia Rental Hous. Comm n, App. D. C., 547 A. 2d 1000 ( 1988), cert. denied, 490 U. S. 1081,109 S. Ct. 2103,104 L. Ed. 2d 664 ( 1989). Compliance with notice provision not required  The Department of Human Services did not engage in   rulemaking  within the context of the Administrative Procedure Act and, therefore, its uniformly applied recoupment rate under § 3 218.1( b) of the Public Assis Lance Act of 1982 was effective without compliance with bhe notice requirement of subsection ( a) of this section. Boyd v. District of Columbia Columt Dep t of Human Servs., App. D. C., 524 A. 2d D. C., 4744 ( 1987). F. 2d 1: Ex parte communications proper.  Ex ment oparte communications between the Zoning 1253( 1Cornmission staff and developers which oc Distric curred after the closing of the record but before ( 1986); issuance of the Commission s final orders did not violate the requirements of this subchapter or of due process. Citizens Ass = v. Zoning Comm n, App. D. C., 392 A. 2d 1027 ( 1978). Rules of State Health Planning and Development Agency held valid.  Rules adopted by the District of Columbia State Health Planning and Development Agency, as part of implementing the administration of the District s certificate of need program, were not invalid on the grounds that the agency adopting the rules failed to provide a statement of basis and purpose for the regulations under the rulemaking provisions of subsection ( a) of this section. District of Columbia Hosp. Ass n V.

Barry, App. D. C., 498 A. 2d 216 ( 1985), aff  d, 586 A. 2d 686 ( 1991). Post hoc publication of regulations in the District of Columbia Register cannot cause them to acquire validity. Rorie v. District of Columbia Dep t of Human Resources, App. D. C., 403 A. 2d 1148 ( 1979). Emergency regulation may become effective prior to publication in Register.  The Council s emergency regulation pm dures do not require that an emergency regulation be published in the District of Columbia Register before becoming effective. Hobson v. District of Columbia, App. D. C., 304 A. 2d 637 ( 1973). Emergency regulation justified.  The results which were likely to flow from a judicial decision sustained the Council s determination that an emergency existed and justifid the invocation of the Council s procedures for the purpose of enacting emergency regulation* Hobson v. District of Columbia, App. D. C., 301 A. 2d 637 ( 19731. Notice not   good cause found and pub. lished  to permit emergency de.  Refep cnce in the notice of a proposed rule to a mgU. lation of the Department of Health, Educnlion dliu ViclIaIc, wi~ llvuLI& llLiijiiih * ilc..* 5. i; d

regulation could be found and read, and Wilb 24 A. 2d  EX Zoning ! lCh ocbefore : em did chapter Zoning ' 3781. nd De Rules State ricv. as i ot'the .* renot 3dOpt2ent of ner the sol' this 3s. n v aif'd.

f) ns in : annot . Disjurres

ne ef er.

3rocei rmladrnbia , on v.  d 637 The . judi ermi tified PS for .~ ions.

' . 304 Pub5eferreguacion [ hat \ VI thce LO . encv. cub I' of : oi J 17 ; lDld 4 PP. . en.

218i c.. . c of g Adjustment. App. of Emp. Sews.. App. D. C.. 531 A. 2d 244 ( 19871:

' Spivev v. Barry. 665 Committee of Blind Vendors v. District of Co Hamer v. Depan lumbla. 695 F. Supp. 1234 1D. D. C. 1988): Pro P. D. C.. 492 A. 2d fessional awenng Sew.. Inc. v. C & f' Tel. ExcavatingCo. v. Co.. App. D. C.. 565 A. 2d 55 ( 1989): Speyer v.

D. C.* A. 2d of Columbia Dep't Barry, App. D. C.. 588 A. 2d 1147 f19911.

As soon as practicable after the effective date of this subchapter, the r shall have compiled, indexed, and published in the District of Colurn istrict of Columbia Council and the Mayor and District of Columbia Council and each agency the time of such compilation. Such compilations shall be ented or revised as may be necessary to retlect new regula and changes in regulations and rules. ons shall be made available to the public at a price fixed by ublish the 1st compilation required by subsection ( a) ear after the effective date of this subchapter and no e District of Columbia Council nor rule adopted by ayor or by an agency before the date of such 1st publication which has en filed and published in accordance with this subchapter and which is pilation shall be in effect after 1 year after the ctive date of this subchapter. ( Oct. 21. 1968. 82 Stat. i207. Pub. L. 90 614. t. 483, Pub. L. 93 379, 3 3a); ( eel, title 11. 4 203. 22 DCR , D. C. Law 1 96, 5 3( aA tc), 23 DCR 9532b. j Section references.  This section is re to in § § 11 722 and 11 1525.

that this section treet and allevs. plaintiff propenv 188 f 1977; reneanne denied. 435 C. S. 1018. 98 S. Ct. 1891. 56 L. Ed. 2d 398 I 1978). Regulation incorporated into District of Columbia Register is properly published. . A police regulation of the District of Columbia pe ng to equal employment opponunities even if not published in a compilation. was properly published wnere a special euition of the District of Columbia Repster incorporated District of Columbia police regulations and such regulations were available for purchase at Distnct of Columbia publications office D. C. Human Relacions Comm'n v Yational Geographic Soc'y, 475 F. 2d 366 1D. C. Cir. 1973). While the District of Columbia Adminisrraiive Procedure Act requires that an existing regulation must be published in the District of Columbia Register within 1 year after the effective date of the Act 1i. e.. by October 21. 1969). that requirement was satisfied when the police reguiarions were incorporated by re: erence inm the special edition of the District of Columbia Re@ ster on Julv 27. 1970. Green v Distnct of Columbia. 710 F. 3d 876 IDC Cir. 1983). 1 i I . i 217 5 1 1508 ADMI h':, SlXATION 5 1 1508. Declaratory orders.

On petition of any interested person, the Mayor or an agency, within their discretion, may issue a declaratory order with respect to the applicability of 1 any rule, regulation, Council act or resolution, or statute enforceable by them 4 or by it, to terminate a controversy ! other than a contesLed case) or to remove uncertainty. A declaratory order, as provided in this section, shall be binding 1 between the Mayor or the agency, as the case may be, and the petitioner on the state of facts alleged and established, unless such order is altered or set aside by a court. X declaratory order is subject to review in the manner provided in this subchapter for the review of orders and decisions in contested cases, except that the refusal of the Mayor or of an agency to issue a declaratory order shall not be subject to review. The Mavor and each agency shall prescribe by rule the form for such petitions and the procedure for their submission consideration, and disposition. ( Oct. 21, 1968, 82 Stat. 1207, Pub. L. 90 614, rS 9; 1973 Ed.. B 1 1508: Oct. 8, 1975, D. C. Law 1 19, title I, 3 102( ft), 22 DCR 2054: Mar. 29, 1977. D. C. Law 1 96, 3 3( a). ( c), 23 DCR 9532b.)

Section rererences.  This section is referred to § § 11 722 and 11 1525. Legislative history Gf Law 1 19.  see note M $ 1 1501. Legislative hisrory of Law 1 96. . See note $ 1 1521. Refusal to issue order not reviewable.  The refusal of the Minimum Wage and Industrial Safety Board to issue a declaratory order requested by an employer was not subject to 9 1 1509. Contested cases. review. Sanderling Broadcasting Cop. v. District of Columbia Xinimurn Wage & Indus. Safety Bd.. App. D. C.. 315 A. 2d 828 11974). Cited in Washinpn Theater Club. fnc. v. District of Columbia Dep't of Fin. & Revenue, Property Assmt. Civ.. App. D. C.. 302 A. 2d 231. CeR. denied. 414 L's. 831. 94 S Ct. 63. 38 L. Ed. 2d 66 119731: People's Counsel v Public . Sew. Comm'n. App. D. C.. 174 A. 2d 1274 ( 1984,.

( a) In any contested case. ail parties thereto shall be gven reasonable notice of the afforded hearing by the Mayor or the agency, as the case may be. The notice shall state the time, place, and issues involved. but if, by reason of the nature of the proceeding, the Mayor or the agency determines that the issues cannot be fully stated in advance of the hearing, or if subsequent amendment of the issues is necessary, they shall be fully stated as soon as practicable. and opportunity shall be afforded all parties to present evidence and argument wich respect thereto. The notice shall aiso state that if a party or witness is deaf. or because of a hearing impediment cannot readily understand or communicate the spoken English language, the party or witness may apply to the agency for the appointment of a qualified interpreter. Unless otherwise requlred by law, other than this subchaptpr, any contested case may be disposed of by stipulation. agreed settlement. consent order, or default ( b) In contested cases. except as may otherwise be provided by law. other than this subchapter. the proponent of a rule or order shail have the burden of proof. Any oral and any documentary evidence may be received. but the hlavor and evey agency shall exclude irrelevant. immateria!. and unduly repetitious e\. iaence. Every party shall have the right KO present in person Or n their Jrirtv of them ' emove 11 nding Nner on i or set lanner ! rested  3c I ara nail ! r sub ub. L.

I 02( rn7. i532b. r ... Dts. I ndus ! 974 I [ ric i'

..\ enue. : d 231. ; s L ! J" SilC : !??. I It! no

IV be.  on of I[ the Siuent , in as ,! ence :) any nder may i ess case 1. de

Lner .. nui : he .: uIv , I! UT counsel his case or defense by oral and documentary eyidence, to submit ttal evidence, and to conduct such cross examinationas may be required full and true disclosure of the facts. Where any decision of the Mayor or agency in a contested case rests on official notice of a material fact not aring in the evidence in the record, any party to such case shall on timely est be afforded an opportunity to show the contrary. The Mayor or the agency shall ma. rntain an official record in each con case, to include testimony and exh. ibits, but it shall not be necessary to any transcription unless a copy ai such record is timely requested by my party to such case. or transcription IS required by law, other than this hapter. The testimony and exhibits. together with all papers and requests in the proceeding, and all materiai facts not appearing in the evidence t with respect to which official notice 15 taken, shall const. itute the exclusive for order or decision. No sanction. shall be imposed or rule or order or n be issued except upon considera. tion of such exclusive record, or such r portions thereof as may be agreed upon by all the parties to such case. dental to the preparation of a copy or copies of a record or portion 1 be borne equally by all pairties requesting the copy or copies. never in a contested case a maLjorityof those who are to render the a1 order or decision did not personally hear the evidence, no order or decin adverse to a party to the case tother than the Mayor or an agency) shall made until a proposed order or decision, including findings of fact and clusions of law, has been served upon the parties and an opportunity has n afforded to each party adversely arTected to file exceptions and present ent to a majority of those who are I, o render the order or decision. who, case, shall personally consider such portions of the exclusive record, BS d in subsection ic) of this section. as mav be designated bv any party. very decision and ordw adverse to a party to the case. rendered by the or an agency in a contested case. shall be in writing and shall be anied by findings of fact and conclusions of law. The tindings of fact consist of a concise statement of the conclusions upon each contested f fact. Findings of fact and conclusions of law shall be supported by and rdance with the reliable, probative. and substantial evidence. A copy of ion and order and accompanying Endings and conclusions shall be the Mayor or the agency, as thecase may be, to each party or to his of record. [ Oct. 21, 1968, 82 Stat. 1208. Pub. L. 90 614, 4 10; 1973 1 1509; Oct. 8. 1975, D. C. Law 1 19, title I,, 9 102[ ggj( kk), 22 DCR ; Mar. 29, 1977. D. C. Law 1 96, P 3ai. ( c), 23 DCR 9532b; Feb. 11, 1982, hw. 4 67, 9 2( a). 28 DCR 5043: Jan 28. 1988, D. C. Law 7 62,9 14( a). 34 . . As u) heanna proce:. 5 2309. 36 1002. 36 1012. 10 302. 10 404. under Funeral Direcrors 42 225. 43 1655. 45 1658.. 15 3218. 47 2820. 4 7 2844. and 47 3; 15. es.  This seccion is re Legislative history of Law 1 19.  See 7. ' 7.606. 2.2730. 2.2809. LO 9 1 1501. 6 9959. 6 1508. 11 722. Legislative history of Law 1 96.  See 6 706. 16 SO4. 26406.1, vxe ta 4 1 1521. 3905. 12.1604. : 521 11. Ikfislative histoq of Law 4 67.  Law ' I 219 I / K I § 1 1509 ADMINISTRATION 4 67 was introduced in Council and assigned Bill No. 4 55, which was referred to the Committee on the Judiciary. The Biil was adopted on first and second readings on October 13, 1981 and October 27, 1981, respectively. Signed by the Mayor on November 9, 1981, it was assigned Act No. 4 113 and transmitted to both Houses of Congress for its review. Legislative history of Law 7 62. Law 7 62 was introduced in Council and assigned Bill No. 7 108, which was referred to the Committee on Government Operations. The Bill was adopted on first and second readings on October 13, 1987 and October 27, 1987, respectively Signed by the Mayor on November 5, 1987, it was assigned Act No. 7 95 and transmitted to both Houses of Congress for its review Consideration of hearsay evidence generally  The Commission on Human Rights is not required to disregard evidence merely because such evidence is hearsay; in fact, hearsay evidence can serve under some circumstances as   substantial evidence  on which to base a finding oi fact. The weight to be accorded hearsay evidence is determined by the item s truthfulness, reasonableness and credibility Wisconsin Ave. Nursing Home v. District of Columbia Comrn n on Human Rights, App. D. C., 527 A. 2d 282 ( 1987). Scope of procedural guarantees.  The procedural guarantees of the social security regulations, District of Columbia regulations, and this subchapter, merely prescribe the procedure that must attend the removal of a benetit and have no relevance in determining whether a property right exists. Caton v. Barry, 500 F. Supp. 45 ( D. D. C. 1980). A respondent is entitled to be fully aware of the scope of the charges in order to have an effective opportunity to be heard and to expiain his conduct. Hedgman v. Hackers  License Appeal Bd., App. D. C., 549 A. 2d 720 11988).   Contested case  construed.  The principal manifestation of a   contested case  is its character as a quasi judicial process based on particular facts and information, and immediatelv affecting t. he interests of specific parties in the proceeding. Citizens Ass n of  beorgetown Inc. v. Washington, App. D. C., 291 A. 2d 699 ( 1972). Notice held sufficient.  See Clark sLL.. quors, Inc. v. ABC Bd., App. D. C., 274 A. 2d 414 ( 1971). Notice that erroneously described scheduied action as a lot width variance instead of a lot area variance nonetheless gave reasonable notice as required by this section. Russell v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 402 A. 2d 1231 ( 1979). Where the taxidriver s counsel, through questioning, drew to the attention of the licensing agency facts from which the agency found violations other than those of which the taxidriver had been given notice, the rulings of the agency as they related to the new violations would not be reversed on the grounds of insufficient notice. Hedgman v. Hackers  License Appeal Bd.., App. B. C., 549 A. 2d 720 ( 1988). Notice was suficient to satisfy due process and the requirements of this section. Revithes v. District of Columbia Rental Hous. Comm n, App. D. C., 536 A. 2d 1007 ( 1987). Notice held insufficient.  See Palace Restaurant Inc. v. ABC Bd., App. D. C., 271 A. 2d 561 ( 1970); Citizens Ass n v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 365 A. 2d 372 ( 1976); Ammerman v. District of Columbia Rental AccommodationsComm n, App. D. C., 375 A. 2d 1060 ( 1977); M. B. E., Inc. v. Minority Bus. Opportunity Comm n, App. D. C., 485 A. 2d 152 ( 1984). Summary dismissal, though justified, violative of due process rights.  Although the conduct of plaintiff deans of a university may have justified their removal from their administrative positions, the summary nature of their removal without giving them notice and an opportunity to respond was violative of their rights to procedural due process guaranteed by the Fifth Amendment. Allen v. Ford, 116 WLR 1869 ( Super. Ct.). Scopeofduty imposedon agency by subsection ( e).  The requirement of subsection ( e; of this section that agency decisions be accompanied by findings of fact and supported by substantial evidence imposes upon the agency the duty to make findings of basic facts upon which the agency decision rests; the agency must show on what it relied in reaching ita decision. Washington Gas Light Co. v. Public Serv. Comm n, App. D. C., 452 A. 2d 375 ( 19821, cert. denied, 462 US. 1107,103 S. Ct. 2454.77 L. Ed. 2d 1334 ( 19831, affd, 483 A. 2d 1164 ( 1984). Opportunity to rebut evidence.  In driver s license revocation proceedings, the mo. torist is entitled to opportunity to rebut any inaccuracy in his trafic record or to show that traffic record is not relevant or material or ir ucnerwise InddrnisaiiJie. q~ ck i) cpaits:.. ..  v.

of Motor Vehicles, App. D. C., 331 A. 2d 319 ( 1975). This chapter gives every party the submit rebuttal evidence. Hilton Hob v. District of Columbia Dep t of Emp. App. D. C., 531 A. 2d 999 ( 1987). Nondisclosure of compldnmt  to taxidriver violated section. the Hackers  License Appeal Boa a complainant s identity to a driver with license suspension denied hi sonable notice of the issues to be he lation of subsection ( a), and the 0 effectively. cross examine, in viol ADMINISTRATIVEPROCEDURE § 1 1509 1. Babazadeh v. District of Columbia icense Appeal Bd., App. D. C., 390 ( 1978). to consider hearsay is not imy Kopff v. District of Columbia ABC ,. pp. D. C., 381 A. 2d 1372 ( 1977), affd, D. C., 413 A. 2d 152 ( 1980). Ly information gathered in sepaoriminai investigation held admissible pdlce and Firefighters  Board hearing. In hearing before Police and  Firefighters  umment and Relief Board to determine if nuitant had been restored to earning capacp ._ I, hearsay information gathered in criminal..*~,$~ nL,& >., ut>   i!:: Lu:: 2.;;: . . i.. i: ::::, .!! cg:! c de of firearms, consisting of corroborating af vltsof disinterested witnesses who pur8 firearms, was probative and could be led on by Board to support finding that an

, __._. Urement & Relief Bd., App. D. C., 478 A. 2d 1093 ( 1984). Hearing not in conformity with subsection ( b) requirements where the agency fails to swear witnesses or permit cross examination Dietrich v. District of Columbia Bd. of It is error for the hearing officer to refuse to allow either testimony which is essential to proper assessment of the question at issue or cross examination of witnesses. Kirven v. Police & Firemen s Retirement & Relief Bd., App. D. C., 379 A. 2d 1186 ( 1977). Where the unemployment compensation appeals examiner gave full consideration to employers unsworn comment given by telephone, he deprived the plaintiff of right, to cross examine on issues of company rules and misconduct. Hawkins v. District Unemployment Comp. Bd., App. D. C., 381 A. 2d 619 ( 1977). Notice required that material fact is being officially noticed.  An agency must notify the parties to an administrative proceeding that a material fact is being officially noticed so that the parties will have an opportunity to rebut that fact. Carey v. District Unemployment Comp. Bd., App. D. C., 304 A. 2d 18 ( 1973). Submission of post hearing evidence.  The record may be held open for the post hearing submission of memoranda; new evidence submitted post hearing may not be admitted into the record and, therefore, may not provlde a basis upon which an agency may issue a decision Harris v. District of Columbia . Rental Hous. Comm n, App. D. C., 505 A. 2d 66 ( 1986). Submission by intervenor of proposed findings after the record is closed in a Board of Zoning Adjustment proceeding does not violate the District of Columbia Administrative Procedure Act. Monaco v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 407 A. 2d 1091 ( 1979). Review in absence of statutory authorization  Direct review of administrative agency orders is limited, in the absence of a statutory provision permitting review, to contested cases. Communication Workers, Local 2336 v. District of Columbia Taxicab Comm n, App. D. C., 542 A. 2d 1221 ( 1988). Appellate court s role is only to examine I contested issues and to determine whether the 1Zoning CoGission s conclusions meet the test 1of substantial evidence. DuPont Circle Citizens Ass n v. District of Columbia Zoning Comm n,   i + _,: T]! p t? c ). 9::  0., no?)   1 .

Under subsection ( e),  whenCourt of Appeals reviews a decision by the Board of Zoning Adjustment its task is limited to assuring that the Board s conclusions flow rationally from findings of fact, and that those findings of fact are supported by substantial evidence. Williams v. District of Columbia Bd. of Zoning Adjustment App. D. C., 535 A. 2d 910 ( 1988). The Court of Appeals is not required to defer to an agency s interpretation of its authority if ihat view is plainly wrong or inconsistent with the regulation. Levy v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 570A. 2d 739 ( 1990). Limited administrative discretion in reviewing special exception applications.  The discretion of the Board of Zoning Adjustment in reviewing special exception applications is limited fa determining whether a proposed exception satisfies the requirements of the regulation under which it is sought, and the burden of so demonstrating rests with the applicant. Dupont Circle Citizens Ass n v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 390 A. 2d 1009 ( 1978). Transcription of record.  On appeal to the Director of the Department of Motor Vehicles from a decision of the examiner revoking the motorist s operator s permit, the motorist is entitled to a transcript of the hearing before the examiner where the motorist had made a timely request to be provided with the transcript and had offered to bear the whole cost thereof. Quick v. Department of Motor Vehicles App. D. C., 331 A. 2d 319 ( 1975). Expense of furnishing transcripts.  The decision of Public Service Commission in telephone rate proceeding to furnish transcripts to intervenors at telephone company s expense is a mere nullity because it contravenes the express language of this section. C & P Tel. Co. v. Public Sew. Comm n, App. D. C., 339 A, 2d 710 ( 1975). Review limited to record evidence.  Reviewing agency must base its decision solely on the record that was made before the appeals examiner and is not empowered to receive 3dditional evidence. Hilton Hotels Corp. v.

Dis22 I i § 1 1509 ADMINISTRATION trict of Columbia Dep t of Emp. Servs., App. D. C., 531 A. 2d 999 ( 1987). Absence from session where no evidence is heard does not trigger subsection ( d). The absence of 1 member of the Zoning Commission from session, at which rezoning order was signed, did not trigger application of subsection ( d) of this section, where no evidence was introduced at such meeting and the purpose of such meeting was merely to review the findings of fact and conclusions of law and to sign the order which had previously been approved by voice vote. Capitol Hill Restoration Soc y v. Zoning Comm n, App. D. C., 380 A. 2d 174 ( 1977). overruled on other grounds, Citizens Mn of Georgetown, Inc. v. Zoning Comm n, App. D. C., 392 A. 2d 1027 ( 1978). Failure to issue subsection ( d) proposed order,  The failure of the District Unemployment Compensation Board, which did not hear the evidence, to issue a proposed order or decision prior to issuance of final order, as was required by subsection ( d) of this section, raquires the vacation of the Board s order. Wallace v. Distiict Unemployment Comp. Bd., App. D. C., 289 A. 2d 885 ( 1972), afl  d, App. D. C., 294 A. 2d 177 ( 1972). Where a decision rendered by the acting rent administrator as to permissible rent is based on evidence presented before hearing examiner and no proposed order was issued to the parties, the decision is a   final order  entered without compliance with the procedural requirements of the Administrative Procedure Act. Meier v. District of Columbia Rental Accommodations Comm n, App. D. C., 372 A. 2d 566 ( 1977). Adoption of prior order as proposed order  The District Unemployment Compensation Board may adopt, by regulation or by notice to the parties, the order or decision of the appeals examiner, provided that the findings of fact and conclusions of law are included therein as its proposed order, or it may serve a new proposed order or decision with new findings of fact and conclusions of law on the parties Wallace v. District Unemployment Comp. Bd., App. D. C., 289 A. 2d 885 ( 1973, aFd. App. 2. L, LY~ A. Z~ i; r ( izr~/. The District Unemployment Compensation Board is authorized to provide by a procedural rule that appeals from an examindodecision constitutes the proposed findings and decision of the Board, and provide a time limit in which to file with the Board objections to the appeals examiner s decision. Carey v. District Unemployment Comp. Bd., App. D. C., 304 A. 2d 18 ( 1973). Findings of fact.  If the agency fails to make a finding on a material, contested issue of fact, the appellate court cannot fill the gap by making its own determination from the record, but must remand the case for findings OR that issue. Nursing Servs., Inc. v. District 01 Columbia Dep t of Emp. Servs., App. D. C., 512 A. 2d 301 ( 1986). Taxicab Commission is under an obligation in every instance to issue written findings 01 fact and conclusions of law. Lim v. District 01 Columbia Taxicab Comm n, App. D. C., 564 A. 2d 720 ( 1989). The Court of Appeals will normally refuse ta infer a finding where no specific finding was made, but will make inferences from general findings, when they are sufficiently detailed sc as to provide the basic underlying reasons for the conclusions entered. Daro Realty, Inc. v. Dist. of Columbia Zoning Comm n, App. D. C.. 581 A. 2d 295 ( 1990). The essence of the Board of Zoning Adjustments regulatory mandate in approving a campus plan is to evaluate whether proposed use as a college or university, as a whole, is likely to become objectionable to neighboring property because of noise, traffic, number ol students and other conditions. Levy v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 570 A. 2d 739 ( 1990). The major purpose ofrequiring findings offact and conclusions oflaw by an agency is to enable the reviewing court to decide whether decision follows as a matter of law from facts stated as its basis, and also whether facts so stated have any substantial support in evidence. Woodridge Nursery School v. Jessup, App. D. C., 269 A. 2d 199 ( 1970). Findings of fact, conclusions of law, and the reasoned application of an agency s policy, if any, must be clearly reflected in an administrative agency s decision when further administrative or judicial review is provided by statute Hill v. District of Columbia Unemployment Comp. Bd., App. D. C., 279 A. 2d 501 ( 1971,, rev d on other grounds, App. D. C., 302 A. 2d 226 ( 1973). Limitations on review offindings.  The review of a District of Columbia Board of Zoning Adjustment decision is limited to assuring that its conclusions flow rationally from the findings of fact, which are in turn supported by substantial evidence. Roumel v. District of h lumbia Bd. ot Zoning Adjustment, App. L). L, 417 A. 2d 405 ( 1980). Review by Office ofAppeals and Review limited to rmrd evidence.  The Office d Appeals and Review must base ita decision, solely on the record that was made before b. appeals examiner, it is not empowered to *  ceive additional evidence. Buckman v. Dietrlct; of Columbia Dep t of Emp. Sews., App. D. C*: 505 A. 2d 771 ( 1986). Findings must support end result in a df, 1 cernible manner, and the result reached m* be supported by subsidiary findine Of facts on all material issues. Dietrich v. D? of Columbia Bd. of Zoning Adjustment,  1 222 1 ADMINISTRATIVEPROCEDURE ( 5 1 1509 rplg A. M470 ( 19721, affd, App. D. C., 320 2 ( 1974). distrative factfinder, while not sub. a the same rules of evidence as a court, n ...,,. t WBS the evidence and determine shes the facts for which it , JP. I.. Din St. Joint Venture v. Dis of Columbia kntal Hous. Copm n, App. p~., 466 A. 2d 414 ( 1983). IHRI reauirements for factual findings cases are: ( 1) The agency =* sitmakefindings on all contested issues ma i.

1 to the underlying substantive statute or 1); ( 2) its findings must be supported by sub izntial evidence apparent from the record as a , le; and ( 3) the agency s conclusions of law m& be deiived rationally from findings that in accord with the underlying statute. Bpevak v. District of Columbia ABC Bd., App. n P. 407 A. 2d 549 ( 19791. A reviewing court must determine: ( 1) Whether the agency has made a finding of fact on each material contested issue of fact; ( 2) whether substantial evidence of record supports each finding; and ( 3) whether the conclugions of law follow rationally from the findings. George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 429 A. 2d 1342 ( 1981). The D. C. Court of Appeals has refashioned the requirements of subsection ( e) into a 3 part test for administrative decisions in contested cams: ( 1) The decision must state findings of Eact on each material, contested factual issue; ( 2) those findings must be based on substantial evidence; and ( 3) the conclusions of law must follow rationally fromthe findings. Perkins v. District of Columbia Dep t of Emp. Servs., App. D. C., 482 A. 2d 401( 1984); Colbn v. District of Columbia Dep t of Emp. Servs., App. D. C.. 484 A. 2d 550 ( 1984); Allen v. District of Columbia Police & Firefighters  Retirement & Relief Bd., App. D. C., 528 A. 2d 1225 ( 1987); Hedgman v. Hackers  License Appeal Bd., App. D. C., 549 A. 2d 720 ( 1988). The agency s findings must be supported by reliable, probative and substantial evidence, and its conclusions of law must flow rationally from these findings. Eilers v. District of Columbia Bureau of Motor Vehicles Servs., App. D. C., 583 A. 2d 677 ( 1990). Credibility findings ofagency.  Reviewing courts are not absolutely bound by the credibility findings of administrative officers or agencies. Eilers v. District of Columbia Bureau of Motor Vehicles Servs., App. D. C., 583 A. 2d 677 ( 1990). Reviewing court could not find that Hearing Examiner gave   full and reasoned consideration to all material facts and issues  where examiner should have, but did not, offer specific cogent reasons for crediting inconsistent and contradictory testimony of police officer and rejecting contrary evidence offered by accused driver and his witness. Eilers v. District of Columbia Bureau of Motor Vehicles Servs., App. D. C., 583 A. 2d 677 ( 1990). An agency must give full and reasoned consideration to all material facts and issues, and must disclose the reasons in its decisions; neither the repetition of the statutory language ( orof language from a decided case) nor a summary of the evidence of the witness credited by the agency satisfies the requirements of the Administrative Procedure Act, especially where there are critical questions as to how the events in question occurred and as to whether the officer s testimony was reliable and probative Eilers v. District of Columbia Bureau of MotWVehicles Servs., App. D. C., 583A. 2d 677 ( 1990). Summaries of testimony are insufficient 2nd ravwt SP xr definitz fmriiaes. vFindings which are merely summaries of the testimony presented are insufficient and cannot serve as a substitute for making definite findings of all the relevant basic facts. First Baptist Church v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 432 A. 2d 695 ( 1981); Hedgman v. Hackers  Lkense Appeal Bd., App. D. C., 549 A. 2d 720 ( 1988). Findings required of administrative agencies in contested cases are insufficient if they merely summarize testimony and other evidence rather than make definite determinations on disputed issues of fact. Bakers Local 118 v. District of Columbia Bd. of Zoning Adjustment App. D. C., 437 A. 2d 176 ( 1981). Mere restatements of the testimony of witnesses or recitations of evidence are insufficient substitutes for specific findings. Committee for Washington s Riverfront Parks v. Thompson, App. D. C., 451 A. 2d 1177 ( 1982). And decision based thereon may be remanded k, agency.  Where, instead of stating what facts it found to be established by the evidence, an agency merely summarized or restated the testimony and evidence without indicating which witness it credited or what facts it found to be established, such summary does not constitute findings oi fact and the case will be remanded to the agency to restate its findings Perry v. Police & Firemen s Retirement & Relief Bd., App. D. C., 451 A. 2d 88 ( 1982). Paraphrase of regulation does not sat is& requirement of factual finding.  When an administrative agency cloaks a paraphrase of the relevant regulation as a factual finding, a reviewing court has no basis for determining whether the conclusions of law followed rationally from the findings of fact, thus, the challenged decision cannot be affh med in the absence of findings and legal conclusions required by the Administrative Procedure Act. Hedgman v. Hackers  License Appeal Bd., App. D. C., 549 A. 2d 720 ( 1988).

223 5 1 1509 ADMINISTRATION Form of factual findings defined.  The Administrative Procedure Act defines the form findings of fact of the Board of Zoning Adjustment must take. Wolf v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 397 A. 2d 936 ( 1979). Neitherrepetition of statutory language nor simple summary of evidence satisfies requirement in subsection ( e) that the board  s findings   consist of a concise statement of the conclusions upon each contested issue of fact.  Wheeler v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 395 A. 2d 85 ( 1978).   Each contested issue of fact  defined.  The provision of this section requiring findings on   each contested issue of fact  refers to issues contested before the agency itself. Citizens Ass n v. District of Columbia Zoning Comm n, App. D. C., 402 A. 2d 36 ( 1979). Prejudgment of contested issues.  Prejudgment by Hearing Examiner of contested issues was found and action of agency could not stand where examiner announced that he was convinced accused driver had committed traffic violation before hearing any of the driver s evidence and where, after receiving all evidence but before driver s counsel began closing argument asked counsel if he had anything   in mitigation.  Eilers v. District of Columbia Bureau of Motor Vehicles Servs., App. D. C., 583 A. 2d 677 ( 1990). Findings not necessary on collateral matters.  An administrative agency does not have to make findings of fact upon contentions that are collateral or immaterial. Lee v. District of Columbia Zoning Comm n, App. D. C., 411 A. 2d 635 ( 1980). Any finding must be based only on evidence in the public record of the proceeding, and participants in the proceeding must have an opportunity to address themselves to that evidence, otherwise fundamentals of due process are denied. Citizens Ass n v. District of Columbia AI3C Bd., App. D. C., 288 A. 2d 666 ( 19721, affd, App. D. C., 305 A. 2d 861 ( 1973). Basic findings of fact will not be inferred from the action taken. Brewington v. District of Columhia Bd. of Aupeals & Review. ADD. U. C., Ytl i A. 2d 532 ( Mi21, atf d, App. U. C., 309 A. 2d 112 ( 1973). Or from findings not made.  Findings of the Board of Zoning Adjustment wow be inferred from other findings that the Board did make. Dietrich v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 293 A. 2d 470 ( 1972), affd, App. D. C., 320 A. 2d 282 ( 1974). Or from the record.  In a contested case, whenever an administrative agency fails b make a finding on a material contested issue, the reviewing court cannot properly fill the gap itself by inferring findings on a party s objections through inspection of the record, the agency sother findings, and the ultimate decision Lee v. District of Columbia Zoning Comm n, App. D. C., 411 A. 2d 635 ( 1980). Decisions by administrative agencies of District of Columbia must satisfy substantial evidence test which is derived from the contested cases provision of subsection ( e) of this section. Bakers Local 118 v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 437 A. 2d 176 ( 1981). Substantial evidence as required in subsection ( e) means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wheeler v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 395 A. 2d 85 ( 1978); Heyert v. District of Columbia ABC Bd., App. D. C., 399 A. 2d 1309 ( 1979); Saunders v. Police & Firemen s Retirement & Relief Bd., App. D. C., 444 A. 2d 16 ( 1982); Pendleton v. District of Columbia Bd. of Elections & Ethics, App. D. C., 449 A. 2d 301 ( 1982); Woodley Park Community Ass n v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 490 A. 2d 628 ( 1985). The Board ofZoning Adjustment is required to support its findings with more than a mere scintilla of rationally connected evidentiary support. Wheeler v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 395 A. 2d 85 ( 1978). Substantial evidence is more than a mere scintilla. Heyert v. District of Columbia, ABC Bd., App. D. C., 399A. 2d 1309( 1979); Saundere v. Police & Firemen s Retirement & Relief sd., App. D. C., 444 A. 2d 16 ( 1982); Pendleton v. District of Columbia Bd. of Elections & Ethics. App. D. C., 449 A. 2d 301 ( 1982). An agency is required to support its findings with more than a mere scintilla of rationally connected evidentiary support. Scott v. Police & Firemen s Retirement & Relief Bd., App. D. C., 447 A. 2d 447 ( 1982). Inherent in the substantial evidence bat are 3 requirements: ( 1) There must be findings on each contested issue of fact; ( 2) the de cision must rationally follow from the facta: and ( 3) there must be sufficient evidence sup porting each finding. Citizens Ass n of Georgetown Inc. v. District of Columbia ZoninFl Comm n, App. U. C., 402 A. 2d 36 iiSi3h

Thomas v. District of Columbia Dep tof Labe App. D. C., 409A. 2d 164 ( 1979); Lee v. DistrieL of Columbia Zoning Comm n, App. D. C., 411 A. 2d 635 ( 1980); First Baptist Church v. Db trict of Columbia Bd. of Zoning Adjustmd  .

App. D. C., 432 A. 2d 694 ( 1981); Bakers ,; 118 v. District of Columbia Bd. of Zoning Ad. justment, App. D. C., 437 A. 2d 176 ( 1981); c P Bldg. Ltd. Partnership v. District of bia Bd. of Zoning Adjustment, App: D. C., A. 2d 129 ( 1982); Woodley Park C0 d Ass n v. District of Columbia Bd. of& ning J justment, App. D. C., 490A. 2d 628( 1985); m! ADMINISTRATIVEPROCEDURE § 1 1509 ,

Columbia Bd. of Zoning Adjust ., 570 A. 2d 739 ( 1990). trative Procedure Act substanquires ( 1) That the agency basic facts on all material ;( 2) that these findings, taken st rationally lead to conclusions of are legally sufficient to support the d ( 3) that each basic finding is sup Y substantial evidence. DuPont Circle Ass n v. District of Columbia Zoning App. D. C., 426 A. 2d 327 ( 1981); v. District of Columbia ABC Bd., ., 462 A. 2d 364 ( 1982); Foxhall Comity Citizens Ass n v. District of Columbia OfZoning Adjustment, App. D. C., 524 A. 2d sssenceof litigation. The termination of Dublic Rental Hous. Comm n, App. D. C., 484 A. 2d 542 ( 1984). But agency must give explanation for rejecting expert testimony.  An agency which has made otherwise proper findings and reached rational conclusions is not required to explain why it favored 1witness or 1 statistic over another; however, some indication of the reasons for rejecting expert, as opposed to lay, testimony is required. Committee for Washingtons Riverfront Parks v. Thompson, App. D. C., 451 A. 2d 1177 ( 1982). Testimony in contested cases must be sworn.  Sworn testimony is implicit in the Administrative Procedure Act and goes to the 769 ( 1987).   Substantial evidence  in contested case in\* nlving Board of Police and Fire Surgeons  A reasonably up to date medical esamination would provide the   reliable, probative and substantial evidence  required by subsection( e) of this section to support a Board of Police and Fire Surgeons  determination in a contested case. Saunders v. Police & Firemen s Retirement & Relief Bd., App. D. C., 444A. 2d 16 ( 1982). No explanation required. An agency is not legally requiredto explain why it favored 1 witness or 1 statistic over another. Citizens Aes n of Georgetown, Inc. v. District of CoIumbia Zoning Comm n, App. D. C., 402 A. 2d 36 ( 1979). An agency generally is free to credit, without explanation, nonexpert testimony of a witness, even in the face of directly conflicting evidence by an opposing witness, so long as there is sufficient supporting evidence in the record for that position. Bakers Local 118 v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 437 A. 2d 176 ( 1981). An agency must make findings on   each contested issue of fact  under subsection ( e), the agency need not provide its reasons for adopting one or another position on the   basic  or   underlying  facts which were themselves disputed by the parties; nevertheless, the agency must reach sufiiciently detailed findings on basic factual issues to demonstrate that it has considered and ruled upon each of thg party s 1:

I contentions. Draude v. District of Columbia ;, Bd. of Zoning Adjustment, App. D. C., 527 A. 2d 1242 ( 1987). Settlement by fewer than all parties. nt Although the language of subsection ( a) of thiscal section specifically authorizes only agreed set Id tlements by all the parties, the rationale of& that provision necessarily obliges an agency at m least to consider on the merits a reasonable42 settlement proposed in good faith by fewer  tY than all the parties, unless the statute governid ing the agency s responsibility clearly indi VY cates otherwise. Proctor v. District of Columbia assistance payments lipon the unsworn  testimony of witnesses in a contested case was a procedural denial as to require a new evidentiary hearing. miirison v. bisbriu ui Lulunioia Dep t of Human Servs., App. D. C., 472 A. 2d 405 ( 1984). Workers  compensation case.  Once triggered, the presumption of compensability in a workers  compensation case requires the employer to produce substantial evidence showing that the death or disability is not work related, and in any contested case the Hearing Examiner must include finding of fact and conclusions of law in his decision. Spartin v. District of Columbia Dep t of Emp. Servs., App. D. C., 584 A. 2d 564 ( 1990). Burdenof proof.  Party seeking review of Public Service Commission rate making order carries the heavy burden of demonstrating clearly and convincingly a fatal flaw in the action taken; the PSC has the burden of showing fully and clearly why it has taken the particular rate making action. Washington GasLight Co. v. Public Serv. Comm n, App. D. C., 483 A. 2d 1164 ( 1984). Party asserting a particular fact has the burden of affirmatively proving that fact and this burden cannot be sustained simply by showing a lack of substantial evidence to support a contrary finding. Ailen v. District of Columbia Rental Hous. Comm n, App. D. C., 538 A. 2d 752 ( 1988). A petitioner seeking review of an administrative agency order, must show ( 1) that the agency proceeding determined the legal rights, duties, or privileges of specific parties; and ( 2) that the proceeding below was a trial type hearing required by law. Communication Workers, Local 2336 v. District of Columbia Taxicab Comm n, App. D. C., 542 A. 2d 1221 ( 1988). Tenants had the burden of proving that contractors fee was a kickback and were obligated to support their challenge with something more than unsubstantiated allegations, because contractors  fees in cases seeking rent increases for capital improvements are custom225 az, 9 1 1509 ADMINISTRATION ary, or at least not unusual, and because there is nothing in any pertinent statute that requires a landlord to provide additional detail regarding such an expense. Columbia Realty Venture v. District of Columbia Rental Hous. Com., App. D. C., 590 A. 2d 1043 ( 1991).   Burden of proof  in this section means burden of persuasion.  See People s Counsel v. Public Serv. Comm n, App. D. C., 474 A. 2d 835 ( 1984). Legal advice received from the Corporation Counsel is not evidence, thus, petitioners do not have a right to contest that advice in a hearing under subsection ( b). Daro Realty, Inc. v. District of Columbia Zoning Comm n, App. D. C., 581 A. 2d 295 ( 1990). Failure to permit cross examinationrelative to witness s credibility deemed error.  Although relevancy provides a basis for excluding evidence where a witness s conflicting statements affect her credibility, the Nurses  Examining Board s failtile to permit cross examination relating to the witness s credibility constitutes error. Arthur v. District of Columbia Nurses Examining Bd., App. D. C., 459 A. 2d 141 ( 1983). Public Service Commission is not bound to hold a hearing on every question and does have the authority to impose a settlement which is substantially acceptable to most, if not all, of the parties. United States v Public Sew. Comm n, App. D. C., 465 A. 2d 829 ( 1983). Findings of Board of Zoning Adjustment comported with subsection ( e) where the record revealed adequate Board consideration of an application for a special exception and included facts from which the Board could make a reasonable judgment that the application met the regulatory prerequisites, even though the applicant itself did almost nothing to demonstrate that the proposed exception satisfied the relevant regulations, and the hearing was little more than a formality. Dupont Circle Citizens Ass n, v. District of Columbia Bd. of Zoning Adjustment, App. D. C.. dYu n. Ld lUUr ( i> fa). Findings of fact held sufficient.  See Citizens Ass n of Georgetown, Inc. v. District of Columbia ABC Bd., App. D. C., 323 A. 2d W.

1974); Miller v. District of Columbia Comm n on Human Rights, App. D. C., 352 A. 2d 387 ( 1976); Dupont Circle Citizens Ass n v. District of Columbia Zoning Cornm n, App. D. C., 355 A. 2d 550, cert. denied, 429 U S. 966, 97 S. Ct. 396.50 L. Ed. 2d 334 ( 1976); Monaco v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 409 A. 2d 1067 ( 1979); DuPont Circle Citi, zens Ass n v. District of Columbia Zoning Comm n, App. D. C., 426 A. 2d 327 ( 1981); George Washington Univ. v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 429 A. 2d 1342 ( 1981). A 2 sentence decision is inadequate as a finding of fact and a conclusion of law. Woodridge Nursery School v. Jessup, App. D. C., 269 A. 2d. 199 ( 1970). Findings of fact held insufficient.  See Allentuck v. District of Columbia Minimum Wage & Indus. Safety Bd., App. D. C., 261 A. 2d 826 ( 1969). aff d, App. D. C., 264 A. 2d 307 ( 1970); Hill v. District of Columbia Unemployment Comp. Bd., App. D. C., 279 A. 2d 501 ( 1971); Hill v. District of Columbia Unemployment Comp. Bd., App. D. C., 281 A. 2d 433 ( 1971); Brewington v. District of Columbia Bd. of Appeals & Review, App. D. C., 287 A. 2d 532 ( 1972); Dietrich v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 293 A. 2d 470 ( 1972); Citizens Ass n of Georgetown, Inc. v. District of Columbia ABC Bd., App. D. C., 316 A. 2d 865 ( 1974); Shay v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 334 A. 2d 175 ( 1975); A. L. W., Inc. v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 338 A. 2d 428 ( 1975); Miller v. District of Columbia Comm n on Human Rights, App. D. C., 339 A. 2d 715 ( 1975); General Ry. Signal Co. v. District Unemployment Comp. Bd., App. D. C., 354 A. 2d 529 ( 1976); Communications Workers of America v. District of Columbia Comm n on Human Rights, App. D. C., 367 A. 2d 149 ( 1976); Newsweek Magazine v. District of Columbia Comm n on Human Rights, App. D. C., 376 A. 2d 777 ( 1977), cert. denied, 434 U. S. 1014,98 S. Ct. 729,54 L. Ed. 2d 758 ( 1978); Washington Post Co. v. District Unemployment Comp. Bd., App. D. C., 377 A. 2d 436 ( 1977); Washington Post Co. v. District Unemployment Comp Bd., App. D. C., 379 A. 2d 694 ( 1977); Group Hospitalization Inc. v. District of Columbia Comm n on Human Rights, App. D. C., 380 A. 2d 170 ( 1977); Dupont Circle Citizens Ass n v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 390 A. 2d 1009 ( 1978); Washington Ethical Soc y v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 421 A. 2d 14 ( 1980); 2101 Wis. Assocs. v. District of Columbia Dep t of Emp. Sews., App. D. C., 586 A. 2d 1221 iL3Yil.

Both statute and case law require the findings of an administrative agency to be supported by substantial evidence on the record considered as a whoie, and evidence did not meet that standard. Allen v. District of Columbia Rental Hous. Comm n, App. D. C., 538 A. 2d 752 ( 1988). The Board of Zoning Adjustment s failure to consider the effects of proposed street closings, pedestrian bridges and relief from height strictions, in reviewing university s expansion and development plan, rendered its findingil inadequate, and legally insufficient to SUP@ ADMINISTRATIVEPROCEDURE a 0 1 1509 Board of Zoning Adjustment s ct were conclusory, incomplete, a logical nexus to its conclusion, etermination that there had been change of circumstances permitting a previously denied special exception, buse of discretion. Towles v. District of a Bd. of Zoning Adjustment, App. 8 A. 2d 1128 ( 1990). ss requirements in hacker susceedings  In hacker suspenings due process requires that a iver be afforded the opportunity to in his file and to secure information vital to wn investigation and defense. Babazadeh District~ of Columbia Hackers  License Apv _.__... pal Bd., App. D. C.. 390 A. 2d 1004 ( 1978): Due process requires the Hackers  License .. 1,   I. 1 ,

PI,,,,,, L .. \, , 1.. ._ IL  U. bL.. y,   L L. L right to inspect his file after formal charges are filed and before the date of the suspension hearing. Babazadeh v. District of Columbia Hackers  License Appeal Bd., App. D. C., 390 A. 2d 1004 ( 1978). Applicant for reinstatement of nursing license entitled to safeguards guaranteed by this chapter.  An applicant for reinstatement of her license as a registered nurse is entitled to the specific procedural safeguards guaranteed by the Administrative Procedure Act for contested cases. Woods v. District of Columbia Nurses  Examining Bd., App. D. C., 436 A. 2d 369 ( 1981). Property owner may seek review of DHCDfinal action by Court of Appeals.  Because 3 5 513 authorizes the Department of Housing and Community Development ( DHCD), an administrative agency of the District to deprive the owner of his property, and because the Board of Appeals and Review does not have appellatejurisdiction over an enforcement order, due process entitles the owner to a   contested case  hearing at DHCD if he elects to show cause why he should not be required to correct such condition; whether DHCD grants or refuses such a hearing, the owner can seek review of DHCDs final action directly by the Court of Appeals. Auger v. D. C. Bd. of Appeals & Review, App. D. C., 477 A. 2d 196 ( 1984). Court of Appeals may not review agency revocation of sign permit not appealed to Board of Appeals and Review.  Where petitioner did not appeal his sign permit revocation by District agency with the Board of Appeals and Review, the Court of Appeals does not havejurisdiction to review the agency s revocation of the permit because petitioner failed to create a   contested case.  Auger v. D. C. Bd. of Appeals & Review, App. D. C., 477 A. 2d 196 ( 1984). Authorization of lay representation not ultra vires.  Regulations of the Rental Accommodations Oftice authorizing lay representation of a party at agency proceedings are not ultra vires of this section. Brookens v. Committee on Unauthorized Practice of Law, App. D. C., 538 A. 2d 1120 ( 1988). Review of Taxicab Commission orders.  An emergency order of the Taxicab Commission increasing rates is not a contested case so as to be subject to direct review. Communication Workers, Local 2336 v. District of Columbia Taxicab Comm n, App. D. C.. 542 A. 2d 1221 i1988). Cited in Proctor v. Hackers  Bd., App. D. C., 268 A. 2d 267 ( 1970); Capitol Hill Restoration Soc y v. Zoning Comm n, App. D. C., 287 A. 2d 101a72); Village Brooks, Inc. v. District of Columbia Bd. of Appeals & Review, App. D. C., 296 A. 2d 613 ( 1972); Citizens Ass n of Georgetown Inc. v. Zoning Comm n, 477 F. 2d 402 .. . . . rl. , k. . , i. iv,. Ji, ; ic~\ ii~ g~ uiL ot iu ~ JL~ LI~ LL lumbia Bd. of Appeals & Review, App. D. C., 299 A. 2d 145 ( 1973); Dietrich v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 320 A. 2d 282 ( 1974); Palisades Citizens Ass n v. District of Columbia ABC Bd., App. D. C., 324 A. 2d 692 ( 1974); Perry v. District of Columbia Dep t of Human Resources, App. D. C., 326 A. 2d 249 ( 1974); Thomas v. District of Columbia Bd. of Appeals & Review, App. D. C., 355 A. 2d 789 ( 1976); Jordan v. District of Columbia App. D. C., 362 A. 2d 114 ( 1976); L  Enfant Plaza Properties, Inc. v. District of Columbia Redevelopment Land Agency, 564 F. 2d 515 ( D. C. Cir. 1977); Archer v. District of Columbia Dep t of Human Resources, App. D. C., 375 A. 2d 523 ( 1977); Schneider v. District of Columbia Zoning Comm n, App. D. C., 383 A. 2d 324 ( 1978); Jameson s Liquors, Inc. v. District of Columbia ABC Bd., App. D. C., 384 A. 2d 412 ( 1978); Kober v. District Unemployment Comp. Bd., App. D. C., 384 A. 2d 633 ( 1978); Wel! s v. District of Columbia Bd. of Educ., App. D. C., 386 A. 2d 703 ( 1978); Washington Pub. Interest Organization v. Public Serv. Comm n, App. D. C., 393 A. 2d 71 ( 1978, cert. denied, 444 US. 926, 100 S. Ct,. 265, 62 L. Ed. 2d 182 ( 1979); Jones v. District of Columbia Unemployment Comp. Bd., App. D. C., 395 A. 2d 392 ( 1978); McIntosh v. Washington, App. D. C., 395 A. 2d 744 ( 1978); Sherman v. Commission of Licensure to Practice Healing Art, App. D. C., 407 A. 2d 595 ( 1979); Lange v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 407 A. 2d 1358( 1979); Citizens Ass n of Georgetown, Inc. v. District of Columbia ABC Bd., App. D. C., 410 A. 2d 195 ( 1979); Delevary v. District of Columbia Rental Accommodations Comm n, App. D. C., 411 A. 2d 354 ( 1980); Sheridan Kalorama Neighborhood Council v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 411 A. 2d 959 ( 1979); Adams v. District Unemployment_ Comp. Bd., App. D. C., 414 A. 2d 830 ( 1980); Kea v. Police & Firemen s Retirement & Relief Bd., App. D. C.,

227 9 1 1510 ADMINISTRATION 429 A. 2d 174 ( 1981); 900 G St. Assocs. v. Department of Hous. & Community Dev.. App. D. C., 430 A. 2d 1387 ( 1981); Citizens Comm. to Save Historic Rhodes Tavern v. District of Columbia Dep  t of Hous. & Community Dev., App. D. C., 432A. 2d 710, cert. denied, 454 US. 1054, 102 S. Ct. 599, 70 L. Ed. 2d 590 ( 1981); Haight v. District of Columbia ABC Bd., App. D. C., 439 A. 2d 487 ( 1981); Interstate Gen. Corp. v. District of Columbia Rental Accommodations Comm n, App. D. C., 441 A. 2d 252 ( 1982); American Combustion, Inc. v. Minority Bus. Opportunity Comm n, App. D. C., 441 A. 2d 660 ( 1982); Jones v. District of Columbia Dep t of Emp. Servs., App. D. C., 451 A. 2d 295 ( 1982); District of Columbia v. Douglass, App. D. C., 452 A. 2d 329 ( 1982); Rodriguez v. District of Columbia Dep t of Emp. Servs., App. D. C., 462 A. 2d 1170 ( 19821, appeal dismissed and cert. denied, 460 US. 1018, 103 S. Ct. 1266, 75 L. Ed. 2d 490 ( 1983); Network Technical Servs., Inc. v. D. C. Data Co., App. D. C., 464 A. 2d 133 ( 1983); General Servs. Admin. v. Public Serv. Comm n, App. D. C., 469 A. 2d 1238( 1983); Peoples CounseI v. Public Sew. Comm n, App. D. C., 472 A. 2d 860 ( 1984); Wire Properties, Inc. v. District of Columbia Rental Hous. Comm n, App. D. C., 476 A. 2d 679 ( 1984); Nova Univ. v. Educational Inst. Licensure Comm n, App. D. C., 483 A. 2d 1172 ( 1984); Clay v. District of Coiumbia, 112 WLR 2261 ( Super. CtJ; Humbles v. District of Columbia Hackers  License Appeal Bd., App. D. C., 484 A. 2d 586 ( 1984); Parker v. National Corp. for How. Partnerships, 619 F. Supp. 1061( D. D. C. 1985); Selk v. District of Columbia Dep t of Emp. Sews., App. D. C., 497 A. 2d 1056 ( 1985); Stevens Chevrolet, Znc. v. Commission on Human Rights, App. D. C., 498 A. 2d 546 ( 1985); George Hyman Constr. Co. v. District of Columbia Dep  t of Emp. S~ NS., App. D. C., 498 A. 2d 563 ( 1985): LCP, Inc. v. District of Columbia ABC Bd., App. D. C., 499 A. 2d 897 ( 1985); Ahmed v. . District of Columbia Hackers License Appeal Bd., App. D. C., 501A. 2d 415 ( 1985); Liuksila v. District of Columbia Rental How. Comm n, App. D. C., 503 A. 2d 666 ( 1986); Henry J. Kauf

S Z 1510. Judicial review. man & Assocs. v. District of Columbia Dep t of Emp. Servs., App. D. C., 503 A. 2d 684 ( 1986); Sterling v. District of Columbia Dep t of Emp. Servs., App. D. C., 513 A. 2d 253 ( 1986); Smithsonian Inst. v. District of Columbia Dep t of Emp. Sews., App. D. C., 514 A. 2d 1191 ( 1986); Weinberg v. Johnson, App. D. C., 518 A. 2d 985 ( 1986); Szego v. Police & Firefighters  Retirement & Relief Bd., App. D. C., 528 A. 2d 1233 ( 1987); Morris v. District of Columbia Dep t of Emp. Servs., App. D. C., 530 A. 2d 683 ( 1987); Washington Times v. District of Columbia Dep t of Emp. Servs., App. D. C., 530 A. 2d 1186 ( 1987); Martin v. District of Columbia Police & Firefighters  Retirement & Relief Bd., App. D. C., 532 A. 2d 102 ( 19871; Davis v. District of Columbia Dep t of Employ. Servs., App. D. C., 542 A. 2d 815 ( 1988); Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., App. D. C., 549 A. 2d 315 ( 1988); Randall v. District of Columbia Dep t of Emp. Servs., App. D. C., 551 A. 2d 90( 1988); Mannan v. District of Columbia Bd. of Medicine, App. D. C., 558 A. 2d 329 ( 1989); Simon v. United States, App. D. C., 570 A. 2d 305 ( 1990); Committee of 100v. District of Columbia Dep t of Consumer & Reguli~ tory Affairs, App. D. C., 571 A. 2d 195 ( 1990).; Myrick v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 577 A. 2d 757 ( 1990); Allen v. District of Columbia Dep t of Emp. % NE., App. D. C., 578 A. 2d 687( 1990); Gamm v. District of Columbia Comm n on Human Rights, App. D. C., 578 A. 2d 1134 ( 1990); Holderbaum v. District of Columbia Police & Firefighters  Retirement & Relief Bd., App. D. C., 579 A. 2d 213 ( 1990); Gilmartin v. District of CoIumbia Bd. of Zoning Adjustment, App. D. C., 579 A. 2d 1164 ( 1990); Draude v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 582 A. 2d 949 ( 1990); Rafferty v. Dietrict of Columbia Zoning Comm n, App. D. C.. 583 A. 2d 169 ( 1990); Kitchings v. District of Columbia Rental Hous. Comm n, App. D. C., 588 A. 2d 263 ( 1991); Cooper v. District of Columbia Dep t of Emp. Servs., App. D. C., 588 A. 2d 1172 ( 19911. ADMINISTRATIVEPROCEDURE § 1 1510 to this subchapter, regulate generally all matters relating to s on such appeals. A petition for review shall be filed in such Court h time as such Court may by rule prescribe and a copy of such 11 forthwith be served by mail by the clerk of the Court upon the on the agency, as the case may be. Within such time as may be ffitdby rule of the Court, the Mayor or such agency shall certify and file in ' & e court the exclusive record for decision and any supplementary proceed ings, and the clerk of the Court shall immediately notify the petitioner of the filing thereof. Upon the filing of a petition for review, the Court shall have jurisdiction of the proceeding, and shall have power to afirm, modify, or set aside the order or decision complained of, h+ vholeor in part, and, if need be, to remand the case for further proceedings, as justice may require. Filing of a Tvtitinn for review shall not in itself stay enforcement of the order or decision of the Mayor or the agency, as the case may be. I ne iviayul UI & e dgellby pant, or the reviewing Court may order, a stay upon appropriate terms. The Court shall hear and determine all appeals upon the exclusive record for decision before the Mayor or the ageccy. The review of all administrative orders and decisions by the Court shall be limited to such issues of law or fact as are subject to review on appeal under applicable statutory law, other than this subchapter. In all other cases the review by the Court of administrative orders and decisions shall be in accordance with the rules of law which define the scope and limitations of review of administrative proceedings. Such rules shall include, but not be limited to, the power of the Court: ( 1) So far as necessary to decision and where presented, to decide all relevant questions of law, to interpret constitutional and statutory provisions, and to determine the meaning or applicability of the terms of any action; ( 2) To compel agency action unlawfully withheld or unreasonably delayed and ( 3) To hold unlawful and set aside any action or findings and conclusions found to be: ( A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ( B) Contrary to constitutional right, power, privilege, or immunity; ( C) In excess of statutory jurisdiction, authority, or limitations or short of statutoryjurisdiction, authority, or limitations or short of statutory rights; ( D) Without observance of procedure required by law, including any applicable procedure provided by this subchapter; or ( E) Unsupported by substantial evidence in the record of the proceedings before the Court. ( b) In reviewing administrative orders and decisions, the Court shall review such portions of the exclusive record as may be designated by any party. The Court may invoke the rule of prejudicial error. ( Oct. 21, 1968, 82 Stat. 1209, Pub. L. 90 614, 3 11; July 29,1970,84 Stat. 582, Pub. L. 91 358, title I, 0 162; 1973 Ed., Q 1 1510; Oct. 8, 1975, D. C. Law 1 19, title I, P 102( 11), 22 DCR 2055; Mar. 29, 1977, D. C. Law 1 96, § 3( a), ( c), 23 DCR 9532b. l I 229 ( 5 1 1510 ADMINISTRATION Cross references.  As to provisions for appeals under Funeral Directors Act, see 5 2 2810. As to other provisions for appeals from certain administrative orders and decisions see 5 11 722. Section references.  This section is referred to in § § 1 2554, 2 606, 2 2309, 2 2731, 2 2810, 2 3305.20, 3 412, 3 606, 3 703, 3 1032, 6 3421, 11 722, 11 1525, 17 303, 17 305, 26 804, 26 806.1, 26 904, 26 905, 28 3905, 29 817, 32 1443, 35 1908, 35 2103, 36 209. 36 412, 36 1014, 36 1216, 36 1217, 36 1309, 40 404, 40 507, 40 635, 42 227, 43 1655, 45 1658, 45 1659, and 45 3225. Legislative history of Law 1 19.  See note to 5 1 1501. Legislative history of Law 1 98.  See note to 8 1 1521. Subchapter expands and centralizes review of administrative action.  This sub chapter was an effort not only to expand rights to review the administrative action in the District of Columbia but also to centralize such review in 1 place, to eliminate disorderliness and lack of uniformity of decision inherent in multiple tribunals. Cheek v. Washington, 333 F. Supp. 481 ( D. D. C. 1971). Trial typehearing before agency is prerequisiteto review.  In order for the Court of Appeals to have jurisdiction to review an agency decision, the casemust be one that requires a trial type hearing before the agency either by statute or by constitutional right. Rones v. District of Columbia Dep t of Hous. & Community Dev., App. D. C., 500 A. 2d 998 ( 1985). The D. C. Court of Appeals has jurisdicticn to review orders or decisions of District of Columbia government agencies only in   contested cases.  The proceedings to which this definition refers are   trial type  hearings, which are   statutorily or constitutionally compelled.  Singleton v. District of Columbia Dep t of Cors., App. D. C., 596 A. 2d 56 ( 1991). Standard for review same as for Federal Administrative ProcedureAct.  The legislative history of the Administrative Procedure party, is in a tribunal other than the District of Columbia Court of Appeals. Debruhl v. District of Columbia Hackers  License Appeal Bd., App. D. C., 384 A. 2d 421 ( 1978). Court has jurisdiction despite claim that administrative remedies not exhausted.  The Court of Appeals has jurisdiction to review an order of the District of Columbia Zoning Commission where the Commission violated petitioners  rights under this subchapter by failing to hold a hearing in compliance therewith despite a claim that the order was nor the final step in the administrative process and there had been no exhaustion of administrative remedies. Capitol Hill Restoration Soc y v. Zoning Comm n, App. D. C., 287 A. 2d 101 ( 1972). Court of Appeals not bound by constitutional mandates.  The District of Columbia Court of Appeals is not bound by the mandates of article I11 of the US. Constitution, since it was created by Congress as an article I court. Lee v. District of Columbia Bd. of Appeals & Review, App. D. C., 423 A. 2d 210 ( 1980). Section provides for exclusive appellate review of administrative action in contested cases, and thereby precludes concurrent jurisdiction in the Superior Court. District of Columbia v. Douglass, App. D. C., 452 A. 2d 329 ( 1982). ** contestedcase  meam a proceeding in which the legal rights, duties, or privileges of specific parties are required by law or by constitutional right, to be determined after a trial type hearing. Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., App. D. C., 549 A. 2d 315 ( 1988).   Contestedcase  construed. Where the court concluded that neither the District of Columbia Historic Landmark and Historic District Preservation Act nor the federal Constitution entitled petitioner to a trial type hearing prior to the designation of plaintiffs properties as historic landmarks, the case was not a   contested case  and, therefore the District of Columbia Court of Appeals had no jurisdiction. Donnelly Assocs. v. District of Columbia Hietoric Preservation Review Bd., App. D. C., 520 4 9d 37(\ ( lop?) M Cc isi . no cc de Str on A  AI tlth tic de tr fo UI 9( ( 2 Act shows a clear congressional intent that the District of Cnlilmhia Court of Anopals  wvlnv the same standards for judicial review as other federal courts employ for the Federal Administrative Procedure Act. Wallace v. District Unemployment Comp. Bd., App. D. C., 294 A. 2d177 ( 1972); Bender v. District of Columbia Dep t of Emp. Servs., App. D. C., 562 A. 2d 1205 ( 1989). Review of agency decision is in Court of Appeals.  The fact that an administrative agency may be without authority to invalidate the statutory or regulatory scheme under which it operates does not mean that the review of such agency decision, including resolution of the constitutional questions raised by a CAction which is not contested case not reviewable.  Where the Zoning Commission. sits in a legislative capacity, making a policy   akision directed toward the general public, ib proceeding is without the   contested mas?   PrO. vision of the Administrative Procedure Act, 8,

regards judicial review. Citizens of Georgetown Ass n, Inc. v. Washington, App. D. C., 291 A. M 699 ( 1972). When the Zoning Commission acts legislatively it is not subject to the   contested caw  provisions of this chapter, with the result Mt any decision it makes is not subject did review by the Court of Appeals. W. C. A* N. .. + Bv. Co. v. District of Columbia Zoning m n, App. D. C., 340 A. 2d 420 ( 1975). ant   contestedcase   status under Admin ive Procedure Act, Court of Appeals does   wbve jurisdiction to directly review Zoning  mimion s order, as this section does not . t.& ment of scope ofjudlcial review ,.. r. I 2. D. C., 343 A. 2d 296 ( 1975). $ * r A  order of the Minimum Wage and Indus Safety Board which is enforceable only[. through criminal prosecution or civil litiga ban, in which issues of fact or law would be & bmined entirely upon the pleadings and trial record, and not upon the proceedings bep fore the Board, is not an   appealable order  ,..... 1: ... ! C.. . Afl!,?:..: cty,? ti,.(. p~,> r~,>.~;!. c/ IC nderling Broadcasting Corp. v. District of Columbia Minimum Wage & Indus. Safety Bd., App. D. C., 315 A. 2d 828 ( 19741. A discriminatory employment practices pro ding brought by a District of Columbia employee is not a   contested case  within the meaning of this subchapter and, hence, is not subject to direct review by the Court of Appeals @ Neil1 et ano. v. District of Columbia Wice of Human Rights, App. D. C., 355 A. 2d 805 ( 1976). A proceeding before the Metropolitan Police " rial Board which resulted in a recommendation of. dismissal of an  officer for malingering involves the tenure of an employee of the District of Columbia such that it is not a   contestedcase under 8 1 1502( 8)( B) and is therefore not directly reviewable by the Court of Appeals Bany v. Wilson, App. D. C., 448 A. 2d 244 ( 1982). The award of a contract for an on line lottery system is not a contested case and a direct appeal from the District of Columbia Lottery and Charitable Control Board  s decision to the court of Appeals will not lie., Network Technical Sews., Inc. v. D. C. Data Co., App. D. C., 464 A. 2d 133 ( 1983). Approval by Zoning Commission ofpreliminary application for planned unit development is contested case under the Administrative Procedure Act and is properly before an appellate court as a final order entitled to review. DuPont Circle Citizens Ass n v. District of Columbia Zoning Comm n, App. D. C., 426 A. 2d 327 ( 1981). Section inapplicable to Housing Rent Commission.  Congress, by vesting review of Housing Rent Commission decisions in the Superior Court, intended that the review provisions of this section not apply to the Commission Columbia Realty Venture v. District of Columbia Hous. Comm n, App. D. C., 350 A. 2d 120 ( 1975). Personsuffering a legal wrong.  An uninsured motorist who posted the administratively required security following involvement in automobile mishap and who did not seek review of order by the Mayor of the District of Columbia could nevertheless be considered a person suffering 3 legal wrong, or adversely affected or aggrieved by order or decision of the Mayor within the meaning of the District of Columbia Administrative Procedure Act. Smith v. Murphy, App. D. C., 294 A. 2d 357 ( 1972). Standing to seek review.  An advisory neighborhood commission has no capacity to seek court review of action of District of Columbia Alcoholic Beverage Control Board in issusiquor license; area residents who were commission members, however, have standing to initiate such review and to assert rights of .~. ... J....:. L~. Aicac! f. ILpX i .   ib, iliuillbia ABC Bd., App. D. C., 381 A. 2d 1372 ( 1977), affd, App. D. C., 413 A. 2d 152 ( 1980). One who fails to aseert legal rights but later decides to appeal a decision he could have challenged  and arguably prevented  cannot reasonably be called   aggrieved,  let alone a   party.  DeLevay v. District of Columbia Rental Accommodations Comm n, App. D. C., 411 A. 2d 354 ( 1980). Because Congress has so restricted the class of persons who may appeal an administrative decision to the Court of Appeals, appellate jurisdiction over the subject matter on review is contingent upon petitioners  right to prosecute the appeal. Therefore, the appellate court is obligated to raise the issue of petitioners  standing sua sponte. Lee v. District of Columbia Bd. of Appeals & Review, App. D. C., 423 A. 2d 210 ( 1980). In order to seek review of an administrative agency s decision: ( 1) The petitioner must allege that the challenged action has. caused him injury in fact; ( 2) the interest sought to be protected by the petitioner must be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question; and ( 3) there must be no clear legislative intent to withhold judicial review either from the class of persons or in the type of case involved. Lee v. District of Columbia Bd. of Appeals & Review, App. D. C., 423 A. 2d 210 ( 1980); Dupont Circle Citizens Ass n v. Barry, App. D. C., 455 A. 2d 417 ( 1983). CourtofAppeals lacksjurisdiction to review a challenge to an agency s assertion ofjurisdiction under subsection ( a) except in the extraordinary situation where the agency has plainly exceeded or clearly contravened its statutory authority. Bender v. District of Columbia Dep t of Emp. Sews., App. D. C., 562 A. 2d 1205 ( 19891. Immediate judicial review.  Where petitioner did not file his first petition for review for five months, petitioner cannot maintain 231 0 1 1510 ADMINISTRATION that he sought the   immediatejudicial review  provided for in subsection ( a). Kennedy v. Barry, App. D. C., 516 A. 2d 176 ( 1986). Exhaustion of administrative remedies generally.  The judicial review available in accordance with this section applies only to orders or decisions in   contested cases.  Petitioners failure to exhaust administrative remedies by his fiilure to challenge the preliminary determination through administrative channels leaves the court with no contested case in which to review his claim. Siler v. District of Columbia Dep t of Emp. Servs., App. D. C., 525 A. 2d 620 ( 1987). Adequacy ofnotice form.  Form of notice of time to appeal ineligibility for unemployment benefits was defective for failure to specify whether 10 day appeal period consisted of calendar days or working days. Cob0 v. District of Columbia Dep t of Emp. Servs., App. D. C., 501 A. 2d 1278 ( 1985). Date of mailing.  Where the only evidence of the date of mailing was the date of the cover letter, this did not constitctc reliable, probative and substantial evidence of the date of mailing. District of Columbia Pub. Employee Relations Bd. v. District of Columbia Metro. Police Dep t, App. D. C., 593 A. 2d 641 ( 1991). Federal court interpretations of federal standing requirements provide guidance,  The legislative history of this subchapter indicates that, although there are slight differences in language between the federal Administrative Procedure Act standing provision ( 5 U. S. C. 8 702) and its District of Columbia counterpart, the 2 provisions were intended to be interpreted virtually identically. Thus, it is appropriate to seek guidance from federal court interpretations of the @ A s standing requirements Lee v. District of Columbia Bd. of Appeals & Review, App. D. C., 423 A. 2d 210 ( 1980). Issues not urged at administrative level may not form the basis for overturning a decision on appeal. John D. Neumann Properties Inc. v. District of Columbia Bd. of Ap3 P  . 7   .... ......   . I ... ,: c. i, . q *. I,. .,.) a,> A. Ai 6U2 i1970). Court s review of an agency decision must be made upon the exclusive record for decision&.. fore the agency. Scott v. Police & Firemen s Retirement & Relief Bd., App. D. C., 447 A. 2d 447 ( 1982),. On review of a decision of the Board of Zoning Adjustment, the Court of Appeals could not consider new issues raised by petitioners, but would look to the exclusive record or portions of it designated by parties. Dietrich v. District of Columbia Bd. of Zoning Adjustment, App. D. C., 320 A. 2d 282 ( 1974). Nature of injury necessary to support appellate court jurisdiction.  Although an injury in fact need not be a particularly substantial one to support appellate court jurisdiction over a petition for review, the injury must be one which petitioners have suffered or afe, in immediate danger of sustaining. Lqe v. District of Columbia Bd. of Appeals & Review, App. D. C., 423 A. 2d 210 ( 1980). Function of Court of Appeals in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues. There must be a demonstration of a rational connection between the facts found and the choice made. The findings must support the end result in a discernible manner. Tenants Council v. , District of Columbia Rental Accommcdations Comrn n, App. D. C., 426 A. 2d 868 ( 1981). The scope of judicial review is limited by this section to a determination whether the findings of fact, upon which the authorities based their decision, are supported by substantial evidence in the record and whether the ultimate decision is in accordance with law. Gomillion V.

District of Columbia Dep t of Emp. Servs., App. D. C., 447 A. 2d 449 ( 1982). The review function by the Court of Appeals is to determine whether the agency s findings of fact are supported by substantial evidence in the record considered as a whole and whether its conclusions of law flow rationally from those findings. Greater Washington Bus. Center v. D. C. Comrn n on Human Rights, App. D. C., 454 A. 2d 1333 i1982). When an agency doesnot exceed the authority vested in it by statute, the court s sole task is to examine the record and then determine whether the findings upon which its order is based are supporkd by substantial evidence. Dowd v. District of Columbia Police & Firefighters Retirement & Relief Bd., App. D. C., 485 A. 2d 212 ( 1984). The Court of Appeals  review of administrative proceedings is limited; and it will not disturb a decision if it rationally flows from the facts relied upon and those facts or findings are substantially supporbd by the evidence of record. Selk v. District of Columbia Dep t of LliLp. & IVc.., App. U. G., 4Y) r A. 2il lUlt0 \ AJO* JJ.