Killingham v. District of Columbia Rental Housing Commission

810 A.2d 925, 2002 D.C. App. LEXIS 668, 2002 WL 31663297

• Court: District of Columbia Court of Appeals
• Decided: November 27, 2002
• Docket: No. 99-AA-1422, 99-AA-1538
• Status: Published

Opinions

PER CURIAM:

Petitioner seeks review of a decision of the District, of Columbia Rental Housing Commission rejecting her claim of retaliation by the housing provider and ordering a rent refund in an amount petitioner contends was inadequate. She also challenges the Commission’s denial of her motion to reconsider its decision. A review of the record demonstrates that the Commission dealt carefully and correctly with each issue petitioner presented to it on appeal from the attorney examiner’s decision. In particular, while noting that the attorney examiner had misallocated the burden of proof in rejecting the retaliation claim, the Commission determined from the examiner’s “painstaking” review of the evidence and findings of fact that the error was harmless, because the housing provider had convincingly rebutted the statutory presumption of retaliation. See D.C.Code § 42-3505.02 (2001).

We find no error in the Commission’s resolution of this issue or in its computation of the rent refund to which petitioner was entitled. See Harris v. District of Columbia Rental Hous. Comm’n, 505 A.2d 66, 69 (D.C.1986) (setting forth this court’s standard of review of Commission decisions). We likewise find no error in the Commission’s thorough treatment of petitioner’s motion for reconsideration.¹ On the record presented, we reject petitioner’s argument that only a remand to the attorney examiner for new findings of fact or conclusions of law could remedy the error in the examiner’s conclusion “that the evidence, when viewed in its totality, does not support, by the weight of clear and convincing evidence, the [pjetitioner’s allegations of retaliatory actions” (emphasis added).² As the Commission pointed out, the examiner found that the housing provider had “contested every aspect of the [pjeti-tioner’s allegations of retaliation with specificity, item-by-item.” The examiner’s recitation of the housing provider’s evidence in that regard spanned nearly three single-spaced pages of his opinion, and led him to credit the housing provider’s assertion that “the true basis of the problems [alleged to constitute retaliation] was a serious negative cash flow, which had driven the [provider] to the edge of bankruptcy, largely occasioned by only having 35 of the 128 units rented in the [petitioner's building.” Moreover, the examiner made that determination after initially phrasing the statutory question before him — correctly—as “[w]hether the evidence presented by the [housing provider] was sufficient to overcome a legal presumption of ... retaliation, by the weight of dear and convincing evidence, as required by D.C.Code [§ 42-3505.02], as further codified by 14 DCMR 4303.3 and 4303.4” (emphasis added). Whatever misunderstanding the examiner ultimately may have had concerning the burden of proof, we agree with the Commission that there is no reasonable likelihood that a remand for reconsideration in light of the proper standard would lead the examiner to a different result on this record. See, e.g., Arthur v. District of Columbia Nurses’ Examining Bd., 459 A.2d 141, 146 (D.C.1983) (reversal and remand required only if substantial doubt exists whether the agency would have made the same ultimate finding with the error removed).

Affirmed 3

1 . Some of petitioner's arguments in the motion were made for the first time in that document, and were properly rejected for that reason. Cf. Killingham v. Wilshire Invs. Corp., 739 A.2d 804, 811 n. 7 (D.C.1999).

2 . The parties do not dispute — and the attorney examiner found — that the circumstances in this case gave rise to a presumption of retaliatory action by the housing provider. See D.C.Code § 42-3505.02(b). The burden thereupon shifted to the housing provider to "come[] forward with clear and convincing evidence to rebut this presumption,” failing which the examiner would have been required to ("shall”) "enter judgment in the tenant’s favor.” Id.

3 . Petitioner has filed what amounts to a request for two of the judges on the division to recuse themselves from deciding this matter. Those judges have considered and rejected the request.