Office of People's Counsel v. Public Service Commission

477 A.2d 1079, 1984 D.C. App. LEXIS 384, 1984 WL 914471

• Court: District of Columbia Court of Appeals
• Decided: April 12, 1984
• Docket: 83-947
• Status: Published

Opinions

PER CURIAM:

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

I

On May 6, 1980, in PSC Formal Case No. 718, the Commission asserted its jurisdiction to promulgate rules governing OPC assessments for its expenses against the utilities under D.C.Code § 43-612(a). On July 2, 1982, because of its conclusion “that it is appropriate to develop rules to guide us in determining whether to issue an assessment or deposit order in a particular instance,” 29 D.C.Reg. 2818 (1982), the Commission published its Notice of Proposed Rulemaking in this case. The Commission defined the scope of these proposed regulations as to “delineate[] the types of expenses for which OPC may seek reimbursement through an assessment order from an affected utility.” 29 D.C.Reg. 2819 (to be codified at 14 DCRR § 801.1) (proposed July 2, 1982). The proposed regulations would permit the OPC to petition for reimbursement of “ordinary” and “extraordinary” expenses arising from a proceeding pending before the Commission, provided they are incurred in connection with that proceeding. The proposed rule defined “extraordinary” expenses as “those that are episodic, and are not provided for by the appropriations process. However, they may in some instances include the cost of services, and equipment which are of the same or similar nature as those covered by appropriations. Such expense[s] may not be established by using cost accounting techniques to allocate basic operating expenses and salaries to various proceedings before the Commission.” 29 D.C.Reg. 2819 (1982) (to be codified at 14 DCRR § 801.1(a)(2)) (proposed July 2, 1982). The proposed regulation provided that “[a]n expense is ordinary if: (a) The expense is exclusively for personal services; and (b) The natural person that provides the personal service is a ‘consultant’ within the meaning of this Chapter; and (c) The services provided by the consultant correspond to the expertise or formal training of that consultant.” 29 D.C.Reg. 2819 (1982) (to be codified at 14 DCRR § 802.-1(a)(1)) (proposed July 2, 1982). It also stated that “[a] consultant is any natural person that furnishes or will furnish services to OPC. A consultant should have either formal training or expertise in a profession including, but not limited to: (a) An attorney who meets the qualifications set forth in § 110.3 or a paralegal working under the direct supervision of such an attorney.” 29 D.C.Reg. 2820 (1982) (to be codified at 14 DCRR § 802.2(a)) (proposed July 2, 1982).¹

II

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

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

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

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

Ill

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

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

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

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

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

The Commission and OPC would apparently argue that, because the services of independent attorneys are essential to OPC’s vigorous representation of consumer interests, and because expenses is a broad and inclusive term, not expressly limited by Congress in the 1975 legislation, § 612(a) must be read to permit the PSC to assess the utilities for the costs of OPC’s outside counsel and for additional administrative expenses required for any particular proceeding, subject only to the restraint of a finding by the PSC that any such “expenses” are reasonable.

IV

In determining the meaning of the word expenses in the 1975 Act, we are mindful of the maxim that we must look first to the language of the statute and, if it is clear and unambiguous, give effect to its plain meaning. 2A Sutherland, Statutes and Statutory Construction §§ 46.01, 46.04, at 48-51, 54-56 (C. Sands 4th ed. 1973); Petry v. Block, 225 U.S.App.D.C. 279, 281, 697 F.2d 1169, 1171 (1983). See Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61 (D.C.1980) (en banc).⁴ On its face, the term expenses in § 612(a) is generic and unmodified. Section 612(a) further refers generally to “all expenses of any litigation.”

Yet, no matter how broad the everyday meaning of the word expenses may be, when such a word is considered in a legal sense, it is not free of ambiguity because it is inextricably linked with words such as costs and fees, which historically have been limited in meaning so as to exclude certain items, particularly attorney’s fees. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); see 20 Am.Jur.2d Costs § 72 (1965) (general terms like costs and expenses are not ordinarily construed to include attorney’s fees).⁵

Moreover, section 612(a) may be read literally in more than one way. We note that the 1975 Act added mention of the OPC only following the word expenses in the first clause of § 612(a), and not in the second clause referring to expenses of litigation. The omission of any reference to the OPC following the latter use of the word expenses suggests literally that the 93d Congress had a different intention as to OPC expenses in matters before the Commission than as to expenses of litigation, including appeals — that OPC was authorized to assess the former but not the latter. Even if this reading of § 612(a) is not accepted, as the Supreme Court has explained, “words are inexact tools at best, and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how ‘clear the words may appear on “superficial examination.” ’ ” Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407 (1943) (citations omitted); see Citizens Ass’n of Georgetown v. Zoning Commission, 392 A.2d 1027, 1033 (D.C.1978) (en banc). This is particularly so when the broader yet permissible other literal reading of the statute would produce a result contrary to the manifest intent of Congress, as we conclude it would in this case.⁶

We are also bound to consider the literal language of § 612(a) in context of the 1975 Act as a whole and in light of its objectives. Howard v. Riggs National Bank, 432 A.2d 701, 709 (D.C.1981); In re T.L.J., 413 A.2d 154, 158 (D.C.1980); Don’t Tear It Down, Inc. v. Pennsylvania Avenue Development Corp., 206 U.S.App.D.C. 122, 128, 642 F.2d 527, 533 (1980); 2A SUTHERLAND, supra, § 46.05. We must give effect to all of the provisions of the Act, so that no part of it will be either redundant or superfluous. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973); Tuten v. United States, 440 A.2d 1008, 1010 (D.C.1982), aff'd, 460 U.S. 660, 103 S.Ct. 1412, 75 L.Ed.2d 359 (1983); In re Surface Mining Regulation Litigation, 201 U.S.App.D.C. 360, 376, 627 F.2d 1346, 1362 (1980); 2A Sutherland, supra, § 46.06. However inclusive the general language of a statutory provision, it will not apply to matters specifically dealt with in another part of the enactment. Maiatico v. United States, 112 U.S.App.D.C. 295, 301, 302 F.2d 880, 886 (1962) (quoting Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704 (1932)). When a statute creates one funding mechanism, we may not read another into it if to do so would render the stated mechanism useless.

Accordingly, it follows that we must read the word expenses in light of the third section of the 1975 Act, providing for funds to be appropriated for the operating expenses of the OPC, and the first section, giving the OPC express authority to “employ ... employees, including attorneys, as are necessary,” whose salaries were to be paid from appropriated funds.⁷ An interpretation of the Act which would permit the OPC to recover the costs of administrative expenses and of hired attorneys through the assessment procedure of § 612(a) would render these other provisions of the Act inoperative, since all of the OPC’s statutory functions, mandatory and discretionary, relate in some way to proceedings of the PSC. The language of the statute provides no distinction between routine administrative expenses and staff attorney work assignments, on the one hand, and extraordinary expenses and attorney work related to a particular proceeding, on the other hand. Under the construction needed to support these proposed rules, all of the OPC’s operating expenses might be charged directly to the utilities under § 612(a), and the appropriations authorization set forth in the statute would no longer be needed. Furthermore, the People’s Counsel is an appointed official, required to be an attorney, whose mission is to serve as an advocate for the people of the District of Columbia. The 1975 Act contained no provisions authorizing the People’s Counsel to delegate that mission other than to his salaried employees; thus a construction of § 612(a) which would permit the People’s Counsel to delegate his advocacy responsibilities to outside counsel would reduce his role to that of an administrator and undermine those provisions of the Act setting forth his personal duties.

Applying the aforementioned canons of statutory construction to § 612(a), then, we cannot say that the meaning of the word expenses, viewed in the context of the other provisions of the 1975 Act, is so clear and unambiguous such that we should adopt the construction needed to support the proposed rules. Accordingly, we must examine the legislative history of the 1975 Act to ascertain congressional intent.

V

In reviewing the legislative history in this case, the single most difficult question to be resolved is whether the 1975 Congress, in adopting the language of the 1927 Act originally authorizing assessments against the utilities, fully intended to confer upon the OPC authority identical in scope to that which the 1927 Congress apparently intended to confer upon the Commission.⁸ Although the committee reports on the 1927 Act specifically explain that assessment authority was needed to provide direct funding for, among other things, “legal assistance,”⁹ which appears to support the rules, we conclude that Congress in 1975 did not intend to give such authority to OPC.

First of all, it is not entirely clear that, by referring to “legal assistance” and “legal assistants,” the 69th Congress contemplated the hiring of outside legal counsel. Nowhere in the reports are the words lawyer or attorney used. Also, the references in the committee reports to the need for “legal assistance” “to ... represent the public” and “to ... present evidence” might refer, not to the hiring of private attorneys to perform those functions for the Commission, but rather to the hiring of law clerks, legal stenographers, hearing officers, expert witnesses, or investigators to assist the Corporation Counsel in performing its duties as general counsel to the PSC. This view is somewhat strengthened by the fact that, as enacted in 1927, the assessment legislation covered only the expenses of investigations, valuations, revaluations, and other proceedings “made by” the PSC; it did not include the second clause of § 43-612(a) covering “all expenses of any litigation.” ¹⁰

The legislative history of the 1927 Act contained no significant references whatsoever to operating expenses. Further, the assessment legislation received only summary consideration in Congress, and its immediate purpose was to provide technical assistance in investigations for several imminent and important valuations. It appears that the House committee did not hold hearings on the assessment legislation and did not develop a companion bill; it simply adopted the Senate report as its own. H.R.Rep. No. 2240, 69th Cong., 2d Sess. (1927). Both houses of Congress passed the assessment bill with virtually no debate and no mention of legal fees or operating expenses. 67 Cong.Rec. 9078 (1926); 68 Cong.Rec. 5121 (1927). Rather, the 1927 Act focused primarily on providing accountants, engineers, and expert witnesses to assist the PSC in the forthcoming valuations, for which the utilities had already spent $100,000 to justify requested increases of at least 33%, and the Commission had only $150 with which to obtain information to counter that presented to it by the utilities.

Even if we assume, however, that the specific references to “legal assistance” in the reports on the 1927 Act reflect an intention on the part of the original authors of § 612(a) that the word expenses be read broadly with respect to the PSC, we are not required to reach the same conclusion with respect to the OPC.¹¹ Although the legislative history of the 1927 Act is certainly a factor to be considered, our primary focus in determining the scope of the word expenses in § 612(a) as applied to the OPC is on the intent of the 93d Congress in 1974.

There is every indication in the legislative history of the 1975 Act that Congress envisioned a limited role for the OPC. The committee reports, referring to the 1926 Act authorizing the appointment of a Peo-pie’s Counsel, state that the committees “[drew] upon the original thinking and concerns of Congress when it initially enacted this law.” H.R.Rep. No. 1485, 93d Cong., 2d Sess. 2 (1974); S.Rep. No. 1349, 93d Cong., 2d Sess. 3 (1974). The very brief committee report on the original OPC Act¹² states simply that the Corporation Counsel (then representing the PSC) was unable to give the proper time to present complaints of the people to the Commission and the courts, and that “an officer” should be appointed, within the PSC and in place of the one attorney then provided to the Commission,¹³ to speak for the people in matters of rates and services.

Like the 1926 Act, the original House bill introduced in 1974 to reestablish the OPC¹⁴ called for the appointment of a single counsel, within the PSC, with no express hiring authority and no assessment authority. It was only as the House bill moved through the legislative process that the original concept was expanded to provide for staff, including attorneys, to authorize separate appropriations for the OPC, and to provide assessment authority.¹⁵

Even then, it was made clear in the committee reports ¹⁶ and during the committee hearings ¹⁷ that, because it would be impossible for the OPC to seek redress for all of the many divergent concerns of its constituency, broad intervention by private citizens would continue to be permitted and encouraged after the OPC was established. Had the Congress intended the People’s Counsel to have virtually unlimited operating resources and unlimited numbers of private attorneys available to him under § 612, subject only to a PSC determination of “reasonableness” in a given case, it would not have expected the People’s Counsel to have to use great selectivity in serving as the consumers’ advocate; and it would not have emphasized the continuing need for intervenors in PSC proceedings.¹⁸

Moreover, the bill was viewed as noncontroversial. During the House debate on the 1975 Act, Representative Adams, House sponsor and manager of the bill, explained: “I do not think this bill is controversial .... It reenacts a section that was previously in the District of Columbia Code.” 120 Cong.Rec. 37265 (1974). Further, the principal sponsors of the 1975 Act estimated assessments for OPC under § 612 would range from only “$25,000 to $50,000 in assessments per year.” H.R. Rep. No. 1485, swpra at 9; S.Rep. No. 1349, supra at 9. Nearly all of these legislators — Senators Eagleton and Mathias, Representatives Adams, Breckinridge, and Fraser — were experienced attorneys and were, surely well aware of the fees charged by Washington law firms. Had they intended the OPC to have extensive access to the services of Washington law firms under § 612(a), their estimates of the level of OPC assessments would have been higher, and they would have considered the bill controversial.¹⁹

The level of attention given by the Congress to the 1975 Act likewise indicates that it was not viewed as being as sweeping in scope as the Commission and OPC believe. The 1975 Act was introduced and considered entirely within the last three months of the 93d Congress (during which a full month’s recess was taken for congressional elections); and final congressional action on it took place on the last day — December 20, 1974 — of the lame-duck session.²⁰ The Senate passed the bill with absolutely no debate during a Saturday session. The legislative history indicates that the OPC proposal was shepherded through the 93d Congress in its final days because of concern among members of the House Committee on the District of Columbia that residential utility customers might not be represented in PSC proceedings scheduled for the following month on rate increases requested by all three major local utilities.²¹

Considering the haste in which Congress enacted the 1975 legislation, there is no reason to believe that any Members of Congress ever read the references to “legal assistance” in the committee reports on the 1927 Act, or understood the assessment provisions they adopted for OPC to cover any legal fees and operating expenses. The only judicial opinion concerning the coverage of § 612(a) available to the 93d Congress made no mention of either legal fees or operating costs. It held only that the most traditional of court costs — “the costs of printing the record and the brief ... upon ... appeal” — were within the purview of the assessment provision. Washington Ry. & Electric Co. v. District of Columbia, supra, 64 App.D.C. at 246, 77 F.2d at 369.

We know from the legislative history only that Congress knew the Commission assessed for expert witnesses and accountants, heard Maryland’s People’s Counsel speak at length about the need for adequate funding for expert witnesses and consultants,²² and believed that the new OPC would need independent authority to obtain “such expert witnesses.” 120 Cong. Rec. 37267 (1974).

The then Chairman of the PSC testified at the committee hearings only that the Commission used its assessment authority in rate cases, to employ accountants and to engage “outside experts” on technical matters and on industry economics “to look into ... allocation factors, ... rate of return [and] rate of design questions.” Hearings on H.R. 16782, supra at 14, 31. Not a word was said about the PSC then following a practice of assessing for outside legal counsel or for any operating expenses.²³

Accordingly, the House and Senate committee reports simply stated (tracking the PSC Chairman’s testimony) that OPC would be able to assess for the same kinds of expenses as the committees understood were assessed by the PSC: “the costs of expert witnesses, special accountants, or other extra costs incurred as a result of [a] particular proceeding_” H.R.Rep. No. 1485, supra at 4; S.Rep. No. 1349, supra at 5 (emphasis added). There is no indication that Congress was told that the Commission construed § 612(a) to include assessments for legal fees (or that the Congress would ever have been so advised, in view of the Commission’s conceded practice at that time of relying instead upon D.C.Code § 43-606 (1973) to assess legal fees). Congress would have had no reason whatever to believe that the Commission had a practice of assessing for any of its operating expenses.

Moreover, all of the references in the 1974-75 legislative history to OPC’s legal staff and operating expenses suggest a dichotomy between the items covered by appropriations and the items covered by assessments, and suggests that attorney work and operating expenses would be covered by the standard appropriations process.²⁴ The original House bill provided for the services of only one attorney, presumably to be funded through PSC appropriations. When the Senate committee amended the bill to make the OPC independent of the PSC, its hiring of staff (including additional attorneys) was still limited by the overall authorization ceiling for appropriations.

During the debate on the bill in the House, the bill’s sponsor, in explaining that the cost of the bill was essentially the cost of hiring one lawyer and one secretary, made no mention whatsoever of the possibility of outside legal counsel being hired. He simply stated: “They are not hiring more than one and not going into an elaborate staff.” 120 Cong.Rec. 37267. When the House considered the Senate amendments, the following colloquy took place on the House floor:

Mr. McClory: ... is it limited as far as who the People’s Counsel can employ or is it unlimited as far as additional staff? Mr. Diggs: A limitation is imposed by the authorization level for the operation of this office.

120 Cong.Rec. 41849. In addition, the principal supporter of the House bill explained that the People’s Counsel was given a “regular [appropriated] salary,” “carefully separated ... from the expenses,” so that he would “not have to go out to get business in order to be paid,” 120 Cong.Rec. 37267, again emphasizing that the bill was designed for limited purposes and that the OPC was meant to serve a limited role.

Both the committee reports indicated that “[t]he basic expenses of the Office of People’s Counsel, including salaries, rent, supplies, telephones, and equipment” would be covered by “the standard appropriations process.” H.R.Rep. No. 1485, supra at 4, 7-8; S.Rep. No. 1349, supra at 6-7. Such reports went on to explain the kinds of items to be funded “[i]n addition to these basic expenses,” through the assessment provisions, “would include, for example, the costs of hiring expert witnesses, rate design economists, safety engineers and other specialized consultants in specific rate cases.” Id. at 9.²⁵ During initial House consideration of the bill, in distinguishing the appropriated funds from those to be assessed, the bill's sponsor again explained that “the expenses that may be incurred for the various cases such as for expert witnesses, court costs, and so forth” were not to be appropriated (but assessed). 120 Cong.Rec. 37267. It is reasonable to conclude that the kinds of expenses Congress intended OPC to assess under § 612(a) must be in nature similar to those specifically mentioned in the legislative history.

At one point in the debate, Representative Gude made a comment which appears to suggest that the utilities should be assessed for OPC’s incremental operating expenses related to particular proceedings:

The bill provides that the operating expenses of the People’s Counsel in any investigation or procedure incident to the operations of the Public Service Commission in connection with a public utility operating in the District of Columbia shall be borne by the public utility itself.

120 Cong.Rec. 37268 (1974) (emphasis added). However, Representative Gude, who was not one of the co-authors of the bill, went on to state that the appropriation of $100,000 per year “is to defray such expenses as salaries, office rental, equipment, and the like.” Id. Thus it is not clear what he meant by his earlier reference to operating expenses, and we do not find it persuasive since it conflicts with other indications in the legislative history that operating expenses were to be funded from appropriations, not through assessments.

Notably, the appropriations provisions were added to the bill because it was brought to the attention of the Senate committee that the House-passed bill, including the assessment provisions, did not provide funding for administrative expenses. Then-Mayor Washington wrote:

H.R. 17450 does not provide for payment of the administrative or overhead expenses of the office of the People’s Coun-sel_ [I]t would authorize the assessment against public utility companies only of the expenses of the Public Service Commission (and the People’s Counsel) which are directly related to a specific proceeding (usually involving a rate-setting process) on a case-by-case basis. The general operating expenses of the Public Service Commission are budgeted and handled through the normal appropriation processes .... Likewise, the administrative overhead of the People’s Counsel, which will not be met by the pass-through provisions of H.R. 17450, should be subject to annual appropriation. We recommend, accordingly, the inclusion of a provision in the bill to authorize such appropriations specifically for the office of the People’s Counsel.

S.Rep. No. 1349, supra at 11-12 (emphasis added).²⁶

Ordinarily, Congress may be presumed to know the construction which has been given to prior statutory provisions, and to know their history, when it incorporates them into later legislation. Lorillard v. Pons, 434 U.S. 575, 578, 98 S.Ct. 866, 868, 55 L.Ed.2d 40 (1978); Burns v. Equitable Life Assurance Society of the United States, 696 F.2d 21, 23 (2d Cir.1982). However, for this doctrine to come into play, Congress must have been aware of the prior construction and must give some affirmative indication of a like intent. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431-32, 75 S.Ct. 473, 476-77, 99 L.Ed. 483 (1955); see United States v. Sheffield Board of Commissioners, 435 U.S. 110, 134, 98 S.Ct. 965, 980, 55 L.Ed.2d 148 (1978); Association of American Railroads v. ICC, 184 U.S.App.D.C. 1, 8, 564 F.2d 486, 493 (1977). Where, as here, there was no prior judicial construction directly addressing this question concerning the assessment provision, no evidence that Congress in 1974 knew of its earlier history or any agency construction specifically including attorney’s fees or operating expenses, and considerable evidence of a contrary intent, the language in the 1927 committee reports, supra at 1084-1085, is not decisive. This is particularly so since the incorporating and incorporated statutes were distant in time, and the borrowed statute was adopted in its entirety. Cf. Burns v. Equitable Life Assurance Society of the United States, supra, 696 F.2d at 23. We are persuaded instead that the 1974 legislative history requires a more limited construction of § 612(a) which does not include the fees of outside counsel and extraordinary operating expenses.

VI

Finally, we address the policy question of whether we should construe § 612(a) to allow direct assessments for attorney’s fees and certain operating expenses because OPC requires such preferential treatment to fulfill its statutory mandate. Such an interpretation is impossible in view of the limited role which the 93d Congress perceived the OPC would assume.²⁷ As we have discussed, the Congress in creating the OPC in 1975 recognized its limitations and never intended that it be able to provide legal representation to every divergent consumer interest. Active participation by intervenors was contemplated. Moreover, now that the OPC no longer has any limitations on its appropriations, under the People’s Counsel Authorization Act of 1979, supra note 3, there are no arbitrary monetary restraints on OPC’s hiring of staff, including attorneys, to represent the public as vigorously as it wishes. It need only satisfy legislative scrutiny in the appropriations process.

Like courts in other jurisdictions,²⁸ we are loath to impose a tax upon a utility, subject only to a PSC determination of reasonableness, absent clear legislative authorization. We do not find in the 1975 Act reviving the Office of People’s Counsel any authorization for the assessment of OPC’s incremental operating expenses and the fees of outside counsel retained by OPC in connection with Commission proceedings.

We therefore conclude that § 612(a) does not authorize the PSC to assess the utilities it regulates for the fees of private attorneys retained by the OPC in connection with PSC proceedings, or for the OPC’s extraordinary incremental operating expenses incurred in connection with such proceedings, in lieu of obtaining legislative appropriations in the usual way as all other government agencies do. The Commission is directed to revise its proposed rules accordingly. The motion to dismiss is denied.

So Ordered.

1 . 14 DCRR § 110.3 provides that "[a] person may be represented in any proceeding before the Commission by an attorney at law admitted to practice before the District of Columbia Court of Appeals; or by any attorney admitted to practice before the highest court of any state upon the granting by the Commission of a motion for special appearance, provided that such attorney does not maintain an office within the District of Columbia for the practice of law.”

2 . Pub.L. No. 93-614, 88 Stat. 1975 (1975) (codified as amended at D.C.Code §§ 43-406, -407, -612 (1981)).

3 . This ceiling on appropriations was eliminated by the People’s Counsel Authorization Act of 1979, D.C.Law 3-34 (1979) (now codified at D.C. Code § 43-407 (1981)). There are now authorized to be appropriated for the OPC "such sums as may be necessary.” Legislation has also been enacted requiring that ”[a]ll amounts appropriated for the Public Service Commission and the Office of the People’s Counsel for each fiscal year ... shall be repaid during such fiscal year by the public utilities ... as a reimbursement fee." Reimbursement Fee Act of 1980, D.C.Law 3-88 (1980) (now D.C.Code § 43-612(b) (1981)). Thus, our decision will not affect OPC’s ability to obtain the legal services it needs, and to have the costs of those services and incremental operating expenses borne by the utilities (and ultimately by the consumers it serves); rather, it will determine whether those expenses are to be recouped by direct PSC assessment against the utilities or through the appropriations process.

4 . Of course, as the Supreme Court has explained, ”[g]eneralities about statutory construction ... are not rules of law but merely axioms of experience.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).

5 . Technically, the word expenses is broader than costs or fees and may be used to refer to all the expenditures made by a litigant in connection with a proceeding. 10 Wright, Miller & Kani;, Fi;di;rai. Practici; and Procrdurr: Civii. 2d § 2666 (1983); 6 J. Moori;, Moorr.’s Fkdhkai. Practici: ¶ 54.70[1] (1982). However, costs and expenses have been used, even by some courts, as if interchangeable. E.g., Bowers v. Fulton County, 227 Ga. 814, 816, 183 S.E.2d 347, 348 (1971); Tracy v. T & B Construction Co., 85 S.D. 337, 340, 182 N.W.2d 320, 322 (1970); Wolf v. Mutual Benefit Health and Accident Ass’n, 188 Kan. 694, 700, 366 P.2d 219, 224 (1961); Hayman v. Morris, 37 N.Y.S.2d 884, 891 (Sup.Ct.1942). Thus, when either word is used in a statute, its scope is subject to question.

6 . See, e.g., Lawrence v. Staats, 205 U.S.App.D.C. 341, 640 F.2d 427 (1981). "[The] evident purpose of a statute is an implied limitation on the sense of general terms ....” 2A Sutiii:ri.and, supra, § 46.05 at 57. " ‘In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms ... [w]hen the words are not explicit, the intention is to be collected from the context; ... from the mischief felt and the remedy in view ....”’ Id., quoting Kent’s Comm. 462 (13th ed. 1884).

7 . It could be argued that under D.C.Code § 43-204 (1973), in effect when the assessment provision was enacted, the Commission also had the authority to employ attorneys who were to be compensated from appropriated funds. However, as discussed infra Part V, it is not at all clear that the Congress in 1974-75 knew that the PSC hired private attorneys and paid their fees from assessments under § 612(a). Since the lawyers the PSC was authorized to hire under § 204 were to be engaged as necessary to perform "extraordinary legal services,” see infra n. 10, supplemental to the basic legal services provided PSC at the time by the Corporation Counsel and also funded from the PSC’s appropriations, it is reasonable to infer that the 93d Congress, if it were aware of § 204, understood that all of the PSC’s legal work was to be performed by legal staff paid from appropriated funds.

8 . Pub.L. No. 69-707, 44 Stat. 1351 (1927). In establishing the OPC in 1975, Congress simply revived, with revisions, an enactment which had expired many years before.

9 .Specifically, both the House and Senate reports contain the following statements:

Legal assistance is necessary to properly present evidence not only before the commission itself but also, in case of appeal from its valuation or rate decision, to adequately represent the public before the courts in a highly technical proceeding.

S.Rep. No. 644, 69th Cong., 1st Sess. 3 (1926); H.R.Rep. No. 2240, 69th Cong., 2d Sess. 3 (1927) (emphasis added).

The [Commission], as at present constituted, is not prepared to undertake an extensive and thorough valuation for the reason that its accounting, engineering and legal assistants are so limited in number ....

Id. at 2 (emphasis added). In addition, the reports cite as an “instance of the impracticability ... [of] direct appropriations” an earlier unsuccessful attempt by the PSC to obtain funds for "special valuation counsel.” Id. at 4.

10 . At that time, the most significant expense of litigation might well have been the fees of consultants and experts since new evidence was permitted to be presented on appeal. Eight years later, the assessment provisions were construed to cover certain expenses of appeals. Washington Ry. & Elec. Co. v. District of Columbia, 64 App.D.C. 243, 246, 77 F.2d 366, 369 (1935). The second clause was added the same year as part of a bill eliminating de novo review of appeals from Commission decisions. Pub.L. No. 74-349, § 3, 49 Stat. 882, 884 (1935). One brief statement in the House report on the 1935 bill explains this amendment as simply a restatement of then-existing law. H.R.Rhr No. 665, 74th Cong., 1st Sess. 4 (1935). However, there is no indication that the 1935 Congress underslood the 1927 Act to permit assessments for attorney's fees or any operating expenses. We note also that the 1927 Act did not specifically include the Office of the People’s Counsel; and even though hearings were held on both the assessment legislation and the OPC bill in 1926, there is no cross-reference in the legislative history of either Act to the other. (The OPC had been created less than three months earlier, on December 15, 1926. Pub.L. No. 69-529, 44 Stat. 920 (1926).)

11 . Our decision is limited to the assessability of OPC’s expenses. We do not, and need not, determine the scope of the PSC’s authority to assess for its own expenses under § 612.

12 . H.R.Ri:i>. No. 967, 69th Cong., 1st Sess. (1926).

13 . The 1926 Act provided for the appointment of a People’s Counsel “in lieu of the attorney at law provided for the [PSC]_”

14 . H.R. 16782, 93d Cong., 2d Sess. (1974).

15 . The separate appropriations and assessment powers were intended to grant the OPC some measure of independence from the Commission. But even with these changes, OPC's hiring authority was not as extensive as the Commission’s, since it was not authorized, as was the Commission under § 606, to hire agents with no express limitation that they be compensated from appropriated funds.

16 . H.R.Ria’. No. 1485, supra, at 4; S.Ria\ No. 1349, supra, at 4-5.

17 . Utility Rates and People's Counsel For the Public Service Commission: Hearings on H.R. 16782 Before the House Committee on the District of Columbia, 93d Cong., 2d Sess. 12-13, 22-23 (1974) (statements of William R. Stratton, Chairman, Public Service Commission of the District of Columbia, and H. Mason Neely, Vice Chairman). The Commission recommended, as an alternative to the OPC proposal, legislation to extend the scope of § 612 to permit assessments for the expenses of private intervenors in PSC proceedings. The bill’s sponsors were favorably inclined to accept the Commission's recommendation, in addition to reestablishing the OPC, and introduced a new bill for that purpose. H.R. 17450, 93d Cong., 2d Sess. (1974). However, the additional provisions for assessments for expenses of private intervenors were deleted when the Committee reported the bill to the full House.

18 .It seems likely that the assessment authority for intervenors was deleted from the final committee bill because of concerns about its cost and the controversy it might generate; of course, these are the same kinds of concerns that would have discouraged enactment of the assessment provisions to encompass operating expenses and the fees of outside counsel for OPC. See infra n. 19. In his opening remarks to the full House concerning the bill, Representative Adams explained that ”[a]ny sections that were controversial were removed by the committee during its deliberations.” 120 Cong.Riic. 37265 (1974). Both the House and the Senate committee reports contain language to the effect that, because the laws relating to the PSC must be liberally construed, specific intervenor assessment provisions were unnecessary. However, the House report also stated that the City Council should take prompt action to clarify the scope of § 612 with respect to intervenors. H.R.Ria’. No. 93-1485, supra at 5-6; S.Rhp. No. 93-1349, supra at 6. We do not regard this report language as indicative of an intent on the part of the 93d Congress that § 612 should be read in the broadest of terms. Rather, the logical inference, particularly in view of the sense of urgency in which this legislation was enacted (infra at 1088-1089), is that the committee members left this controversial issue for the City Council to resolve, realizing that its inclusion in the text of the bill would impede its passage. The report language was very likely the result of a compromise on the issue among committee members. Nor do wc view the specific reference by Representative Smith to counsel fees for intervenors (infra n. 19) as an indication that counsel fees were among the expenses Congress intended to be assessed for OPC, since there was no appropriation mechanism for counsel for intervenors, as there was for OPC.

19 . It was apparent from their discussion of the proposal to fund intervenors that the committee members were aware of the controversy and expense involved in public interest litigation affecting such a large class of consumers. A colloquy which took place during the hearings suggests that the intervenor proposal may have been rejected because of concern about its potential cost and controversy:

Mr. Smith: [Wjhat are your thoughts about reimbursing private counsel of intervenors? ... if there were no limitations, I would think that almost every single resident of the District of Columbia might want to come in and intervene if his counsel fees were going to be paid....

Mr. Stratton: It might even be as high as his electric bill.

Mr. Smith: [I]f legislation were to give authority to the Commission to do this, ... regulations could be adopted in order to draw some sort of reasonable limitation on the number of counsel or intervenors that could appear.

Mr. Stratton: Absolutely.

Mr. Smith: Not only in the amount of money but in the amount of time because your hearings might go on forever.

Mr. Stratton: Absolutely,

* * * * it it

Mr. Smith: I think that these would all be sort of difficult questions....

Hearings on H.R. 16782, supra at 22. Following this colloquy, one of the committee members asked the Commission to submit proposed statutory provisions to set some limitation on intervention, to "minimize the cost." Id. at 26. He expressed concern as to whether it would be possible to draft language adequate to "handle these problems." Id.

20 . Hearings on H.R. 16782, supra (September 26, 30, 1974); 120 Cong.Rhc. 37265, 37269 (November 25, 1974) (House passage); 120 Cong. Ri;c. 39914 (1974) (Senate passage, with amendments); 120 Cong.Riíc. 41848 (December 20, 1974) (House concurrence in Senate amendments). The Act was signed into law on January 2, 1975. The Congress was in adjournment from the close of business on October 17, 1974 until November 18, 1974. 120 Cong.Ri:c. 36104 (October 17, 1974).

21 . H.R.Rhr No. 1485, supra at 3-4; S.Ria>. No. 1349, supra at 4 ("Reasons For Immediate Congressional Action"). The committees explained in their reports that the PSC had indicated it would complete action on the rate hike requests in January 1975, just as the new D.C. Home Rule government took office, and that the new government would be unable to enact such legislation in time to be of assistance to local residents.

22 . Hearings on H.R. 16782, supra at 67-79. In Maryland, the People's Counsel office consisted of two attorneys, employed on a part-time basis. The Maryland People’s Counsel, like the OPC, was funded at nearly $100,000 per year, including salaries. The committee heard testimony that the largest single budget item in Maryland was consultant's fees, and that the Maryland People’s Counsel was seeking additional funds for outside consultants. Since the committee reports in the 1975 Act state that the $100,000 for OPC was “in line with the operating costs of the Maryland State office,” H.R.Ri;i>. No. 1485, supra at 8; S.Riti’. No. 1349, supra at 7, it is reasonable to infer that the $100,000 was intended to provide for salaries and operating costs, and the assessment provision to cover the additional, less predictable expenses for specialized consultants.

23 . In fact, the then Chairman and Vice Chairman of the PSC mentioned outside counsel during the 1974 hearings only in expressing their doubts that § 612(a) applied to the fees charged by intervenors. Hearings, supra at 23-24.

24 . The argument could also be made that Congress did not expressly limit the hiring of attorneys by the OPC to appropriated funds, as it knew how to do, since under D.C.Code § 43-204 (1973), the hiring of attorneys by the Commission had been thus limited. However, it was necessary to specify that the Commission's additional attorneys might be paid from funds appropriated to the Commission since at the time it was represented by the Corporation Counsel and had no staff attorneys.

25 . Of the five states used for cost comparison purposes in both the committee reports, only two provided any direct assessment authority either to their utilities commissions or to their consumer advocates, and those two which did so based the assessment upon a set percentage of the utilities' gross revenues. With respect to each of those five states, the reports explicitly mentioned whether, and if so, how, outside consultant fees were funded. Thus, since Congress chose an altogether different type of assessment authority for OPC, the committee had no useful models in these other states for the particular kinds of expenses to be assessed. Yet it is apparent from this section of the committee report that the primary focus was the provision of expert consultants.

26 . Likewise a letter to the Senate committee from one of the utilities stated that clarifying language was needed to avoid unnecessary litigation as to the meaning and intent of the assessment provision. The letter pointed out that a literal reading would presuppose that OPC’s basic salaries and administrative costs would be borne by the utilities. Remarking that the House report stated those items were to be covered by appropriations, the letter concluded, "We assume that Congress would want to retain supervision of the operation of the People's Counsel through the appropriations process." S.Rhp. No. 1349, supra at 17.

27 . As we have mentioned, supra, n. 15, Congress did intend that the OPC be, to some extent, independent of the Commission. Our decision is consistent with that objective, since the OPC's operating expenses and expenses for legal counsel will be subject directly to legislative oversight, rather than to Commission scrutiny.

28 . E.g., United Gas Pipe Line Co. v. Louisiana Pub. Serv. Commission, 279 So.2d 195 (La.1973) (expenses of special counsel retained by Commission not within statutory assessment authorization); State v. Newark, 87 N.J.Super. 38, 207 A.2d 719 (Law Div.1965), aff’d, 90 N.J.Super. 68, 216 A.2d 246 (App.Div.1966) (municipality held not within statute authorizing imposition of charges upon utilities); State v. Pacific Tel. & Tel. Co., 27 Wash.2d 893, 181 P.2d 637 (1947) (legal fees and litigation expenses upon appeal held not within assessment statute).