Timus v. District of Columbia Department of Human Rights

633 A.2d 751, 1993 D.C. App. LEXIS 273, 1993 WL 463268

Opinions

PER CURIAM.

*

The District of Columbia Human Rights Act, D.C.Code §§ 1-2501 to -2557 (1992) (the Act), “provides alternative avenues of redress — administrative or judicial” — for claims of unlawful discrimination. Brown v. Capitol Hill Club, 425 A.2d 1309, 1313 (D.C.1981). An obvious purpose of the administrative avenue is to afford persons claiming discrimination a less formal and expensive means of obtaining relief than through court proceedings.¹ A key component of the administrative process is conciliation or settlement of a complaint under the auspices of the agency administering the Act, at the times relevant here, the District of Columbia Office of Human Rights (OHR).² The petition for review in this ease brings before us a challenge to the facial validity of a rule of procedure adopted by the agency to govern the conciliation process, as well as to its application to petitioner’s complaint. We hold that we have jurisdiction to consider petitioner’s challenge to the validity of the rule, and sustain the rule as a proper implementation of OHR’s statutory mandate; but that we lack “contested ease” jurisdiction to review petitioner’s claim of erroneous application of the rule to her case. For the reasons stated in this opinion, we dismiss the petition for review.

I.

On December 5, 1986, petitioner filed a complaint with OHR alleging that intervenor William J. Davis, Inc., a real estate management company, had discriminated against her on the basis of family responsibilities (specifically, that she had a two year old child) in denying her application to rent an apartment. See D.C.Code § l-2515(a). Pursuant to D.C.Code § 1-2545, OHR investigated the complaint and, after initially finding no probable cause, determined in February 1988 that there was probable cause to believe that intervenor had engaged in unlawful discrimination against petitioner. D.C.Code § 1-2545(b). OHR immediately endeavored to conciliate the claim, § l-2546(a), by asking intervenor in writing whether it was “prepared to pursue conciliation of this matter.” Intervenor replied affirmatively and asked for a conference with OHR and petitioner to discuss the case.

On July 12,1988, the Associate Director of OHR notified petitioner in writing that, during conciliation, intervenor had “offered the following remedy to resolve this matter”:

1. Complainant would be considered for and given an apartment at the same rental rate that she would have gotten had she not been discriminated against, provided Complainant updates her rental application and is found to be currently qualified for the apartment. Said rental rate will remain at that rate for at least 24 consecutive months; and

2. Respondent will pay Complainant’s Attorney fees, provided Complainant submits an itemized legal statement for services rendered regarding this matter.

The Associate Director explained that OHR had determined that this offer would make petitioner whole and that, if she did not advise the Office by July 22, 1988, as to whether she would accept it, the complaint would be subject to dismissal under § 716.9 of OHR’s rules of procedure.³ On July 22, petitioner sent the Associate Director a letter in which she asked twelve questions about the intervenor’s offer. On .July 29, 1988, the Associate Director replied in writing with answers to each of the twelve questions and asked petitioner to advise him by August 5 whether she would accept the offer. Petitioner responded on August 5 with a letter telling the Associate Director that “there are some of your answers that must be clarified” and posing approximately seven questions.

On August 8, 1988, the Associate Director wrote petitioner explaining:

This will confirm our telephone conversation of August 5, 1988 in which I advised you that:

1. You are given an extension of time, until August 12, 1988, in which to seek advice of counsel regarding whether or not the Office’s possible dismissal of your Complaint will bar you “from suing Respondent.” You must advise the Office by not later than August 12, 1988 as to whether or not you accept Respondent’s, offer of settlement in this matter;

2. The Office has reviewed your letter of August 5, 1988 and has determined that the questions contained therein have either already been sufficiently answered by the Office, or do not require response by the Office in order for you to make a decision as to whether or not you will accept Respondent’s offer.

Petitioner replied in a letter of August 11, 1988, in which she stated in substance:

I will not be able to make a decision until my questions of August 6, 1988 are answered in writing only, as I have requested. I have made it clear in my letter of July 22,1988[:] “Before I can consider this offer and/or accept it, there are some questions that I must have answered.”

I am sending a copy of the correspondence to you for review and determination on whether or not my questions of August 5, 1988 are legitimate questions for one to ask and warrant answers. I do not believe that my questions of August 5, have been sufficiently answered by your office nor do I believe that they do not require response by your office.

Please provide your reply in writing only, Thank you. [Emphasis in original.]

For reasons unexplained in the record, nothing further transpired in the case for almost a year and a half. On February 6 and again on February 7, 1990, intervenor’s counsel wrote OHR requesting that the complaint be “administratively dismissed,” pointing to the long delay since the settlement offer had been made and the fact that inter-venor no longer managed the property, which had been sold. Nevertheless, on February 26, 1990, intervenor transmitted a new offer of settlement to OHR which differed from the former one only in that the rental rate would now be the current 1990 (rather than 1986) rent level.⁴ On March 7, 1990, the Director of OHR wrote petitioner setting forth the modified offer and stating:

We are making one last attempt to resolve this matter prior to exercising the Department’s option under Section 716.9 of our Rules. Thus, if you do not advise the Office by the close of business March 19, 1990 as to whether you will accept Respondent’s offer as was outlined in our July 12, 1988 letter and as subsequently conditioned with regard to current rental rates, your Complaint will be subject to DISMISSAL.

Petitioner replied in a letter of March 19, 1990, in which she insisted that the Office’s letter of March 7 “does not even attempt to address my concerns” expressed in petitioner’s August 11, 1988 letter, and asking why the Office had “change[d] its position again in favor of’ intervenor’s modified offer. Petitioner’s letter asserted that she was “being railroaded into this settlement agreement by your office and [intervenor],” and asked: “What are your reason[s] for finding this last stated offer in your letter of March 7, 1990, indeed, a suitable make whole offered remedy for my acceptance.” On March' 22, 1990, the Director informed petitioner in writing that the case was being “administratively closed” pursuant to § 716.9 of OHR’s rules of procedure because of her failure to advise the Office of her acceptance of the settlement offer by March 19, 1990.⁵

II.

A brief summary of the relevant statutory and regulatory provisions is necessary to understand the issues presented, including OHR’s threshold objection to our jurisdiction. As we stated at the outset, a person believing herself the victim of unlawful discrimination may, under the Act, elect initially to sue in court or to file an administrative complaint with OHR. See D.C.Code §§ 1-2544(a), -2556(a). If she elects the second route, OHR commences an investigation. Provided the complaint is not withdrawn voluntarily before the investigation is completed and findings are made concerning jurisdiction and probable cause, § l-2544(b), the investigation leads to a determination by OHR (assuming jurisdiction is found) either that there is probable cause to believe the respondent has engaged in unlawful discrimination or that there is no probable cause, in which case the complaint is dismissed. § 1-2545(b), (c).

Efforts to resolve the complaint by conciliation may begin as soon as it is filed. Section l-2546(a) provides that “[i]f, in the judgment of the Office, the circumstances so warrant, it may, at any time after the filing of the complaint, endeavor to eliminate such unlawful discriminatory practice by conference, conciliation, or persuasion.” The terms of a conciliation agreement may include prohibitory relief and “such affirmative action as, in the judgment of the Office, will effectuate the purposes of this chapter_” § 1-2546(b). And, “[u]pon agreement of all parties to a complaint ... a conciliation agreement shall be deemed an order of the Commission, and shall be enforceable as guch.” § l-2546(c). The Act further provides, however, that “[i]n case of failure of conciliation efforts, or in advance of conciliation efforts, as determined by the Office, and after a finding of probable cause, the Office shall cause to be issued and served in the name of the Commission, a written notice ... requiring the respondent to answer the charges of [the] complaint at a public hearing before 1 or more members of the Commission or before a hearing examiner-” § 1-2550. In that event, a hearing tribunal of the Commission “shall be appointed to make a determination upon such complaint.” § l-2551(a).

Pursuant to authority delegated by the Act, § l-2541(c), OHR has adopted rules of procedure governing the conciliation process (see note 3, swpra) and specifically construing the phrase “[i]n case of failure of conciliation efforts” in D.C.Code § 1-2550. Section 716.11 of the rules provides that “[cjonciliation shall be deemed to have failed if during the thirty (30) day conciliation period respondent refuses to participate in conciliation or if respondent’s offer of a remedy is such that it will not make complainant whole and complainant refuses to accept such an offer.” By contrast, § 716.9 of the rules provides as follows:

If during conciliation efforts, respondent offers a remedy that would place complainant in the same position that complainant would have been in had the alleged discriminatory practice not occurred, and complainant refuses to accept such offer, and if the Director determines that such offered remedy would make complainant whole, the Director may order the complaint dismissed. [Emphasis added.]

Of final importance to our discussion is § 1 — 2556(a), dealing with election of remedies. It provides in part:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate, unless such person has filed a complaint hereunder: Provided, that where the Office has dismissed such complaint on the grounds of administrative convenience, or where the complainant has withdrawn a complaint, such person shall maintain all rights to bring suit as if no complaint had been filed.

III.

We consider first the objection by OHR to this court’s jurisdiction to hear the petition for review. The District of Columbia Administrative Procedure Act (DCAPA) confers the right to judicial review of agency action by this court upon “[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case-” D.C.Code § l-1510(a).⁶ A “contested case” is defined by the DCAPA as “a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law ... or by constitutional right, to be determined after a hearing before the Mayor or before an agency....” D.C.Code § 1-1502(8). “The principal manifestation of a ‘contested case’ is its character as a quasi-judicial process based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding.” Citizens Ass’n of Georgetown v. Washington, 291 A.2d 699, 702 (D.C.1972). This “quasi-judicial process” consists of a “trial-type” hearing, Chevy Chase Citizens Ass’n v. District of Columbia Council, 327 A.2d 810, 314 (D.C.1974) (en banc), which is “statutorily or constitutionally compelled....” W.C. & A.N. Miller Dev. Co. v. District of Columbia Zoning Comm’n, 340 A.2d 420, 422 (D.C.1975). To establish direct review jurisdiction in this court, therefore, “a petitioner must overcome two obstacles”:

the first obstacle ... is that an administrative hearing must be either statutorily or constitutionally compelled; the second, that such a hearing must be adjudicatory as opposed to legislative in ñatee.

Donnelly Assoc. v. District of Columbia Historic Preservation Review Bd., 520 A.2d 270, 276 (D.C.1987) (quoting Miller Dev. Co., 340 A.2d at 422).

Neither the parties nor intervenor disputes that the hearing prescribed before a tribunal of the Commission on Human Rights is a “trial-type” hearing “based upon particular facts and information, and immediately affecting the interests of specific parties in the proceeding.” Citizens Ass’n of Georgetown, 291 A.2d at 703. On the other hand, no one contends that OHR’s antecedent determination whether or not there has been a “failure of conciliation efforts,” § 1-2550, is made following a trial-type evidentiary hearing. For this reason, OHR asserts that its determination that conciliation had not failed in this case — because petitioner refused to accept a settlement offer, that would have made her whole — does not create a contested case. But the issue is considerably more complex than that.

Petitioner’s principal line of attack is that, under the Act, she was entitled to a formal hearing before the Commission once probable cause had been found and there had been a “failure of conciliation efforts” for any reason at all. Her contention is that the agency’s dismissal under § 716.9 of its rules was unauthorized and that she was denied a hearing compelled by the statute in the circumstances. Ordinarily, this court has jurisdiction not only when a contested case (trial-type) hearing has taken place, but also when a party has made “an effort to obtain such a hearing which the agency erroneously denied.” Auger v. District of Columbia Bd. of Appeals & Review, 477 A.2d 196, 206 (D.C.1984). That is, we have authority to order a contested case hearing, or at least to preserve the right to such a hearing, when an agency erroneously withholds that right. Cf. Capitol Hill Hosp. v. District of Columbia State Health Planning & Dev. Agency, 600 A.2d 793, 799 (D.C.1991); Dillard v. Yeldell, 334 A.2d 578, 579 (D.C.1975). Of course, it is not enough for the petitioner merely to assert the right to a contested ease hearing to confer jurisdiction on this court. If analysis reveals that a party is not entitled to a contested case hearing after all, we must dismiss the appeal of the agency’s order for lack of jurisdiction. See, e.g., Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., 549 A.2d 315 (D.C.1988); Dupont Circle Citizen’s Ass’n v. District of Columbia Zoning Comm’n, 343 A.2d 296 (D.C.1975) (en banc) (citing Chevy Chase Citizens Ass’n, supra). Critically, however, on the way to — that is, in aid of — deciding whether a party has had, or is entitled to, a contested case hearing, and thus deciding whether we have jurisdiction, 010* decisions have had to resolve one or more legal issues definitively; we have made legal rulings with preclusive effect both in the case at hand and for future cases. See Jones & Artis, 549 A.2d at 317-18, 327.⁷ In short, we have exercised jurisdiction to determine whether we have jurisdiction, and we have made all rulings necessary to that determination. E.g., note 7, supra. As a consequence, once the analysis confirmed that the petitioner had not either received or been entitled to a contested ease hearing, we have “dismissed” for lack of jurisdiction rather than “affirmed,” even when definitively deciding various legal issues in the process. See id.

Such merits rulings on issues inherent in a jurisdictional analysis are justified because courts, at the very least, “always have jurisdiction to determine their jurisdiction.” Ilan-Gat Engineers, Ltd. Antigua Int’l Bank, 212 U.S.App.D.C. 188, 193, 659 F.2d 234, 39 (1981); see Jones & Artis, supra, 549 A.2d at 318. Indeed, every court has judicial power “to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.” 21 C.J.S. § 88 at 104-05 (citing Stoll v. Gottlieb, 305 U.S. 165, 171-77, 59 S.Ct. 134, 137-40, 83 L.Ed. 104 (1938)). Accordingly, in some situations “the jurisdiction of the court to hear the case may depend ... upon the decision which it ultimately reaches on the merits.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949) (citing Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947));⁸ see Jones & Artis, supra, 549 A.2d at 318. The jurisdictional and merits issues, on occasion, may turn out to be coextensive.

Applying these principles, we conclude that this court has jurisdiction to consider petitioner’s contention that promulgation of § 716.9 by OHR contravenes the authority delegated to OHR by the governing statute. If petitioner is correct in her contention, then OHR lacked authority to deny her a trial-type hearing before the Human Rights Commission once probable cause was found. In deciding whether petitioner was erroneously denied that hearing, we appropriately exercise the jurisdiction necessary to decide whether a contested case hearing was improperly withheld. On the other hand, for reasons to be discussed in part V, infra, we conclude that we lack jurisdiction to review directly petitioner’s challenge to OHR’s application of § 716.9 to her case.

IV.

Petitioner contends primarily that OHR lacked authority to condition her right to a post-probable cause hearing by the Commission upon a determination that intervenor had failed to offer her a remedy in conciliation that would have made her whole. Petitioner argues that OHR’s rule in question— § 716.9 — runs athwart an asserted clear statutory intent to make a hearing mandatory once probable cause has been found and (as in this case) there has been a “failure of conciliation efforts,” § 1-2550, for any reason whatsoever. Petitioner points to § 1-2546(c), which provides that “[u]pon agreement of all parties to a complaint ... a conciliation agreement shall be deemed an order of the Commission” (emphasis added); this language is said to make clear that if either party to a complaint rejects conciliation, then conciliation efforts have “failed” under § 1-2550, and the complaint (probable cause having been found) must proceed to the Commission stage. We are not at all persuaded that petitioner’s is the only permissible reading of the statutory phrase “failure of conciliation efforts.”

It is now familiar law that,

[w]hen a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted). See Good Samaritan Hosp. v. Shalala, — U.S. —, —, 113 S.Ct. 2151, 2159, 124 L.Ed.2d 368 (1993). This court employs the same analysis. See, e.g., Schlank v. Williams, 572 A.2d 101, 107 (D.C.1990); Superior Beverages, Inc. v. District of Columbia Alcoholic Beverages Control Bd., 567 A.2d 1319 (D.C.1989); Smith v. Department of Employment Servs., 548 A.2d 95, 97 (D.C.1988).

We regard the statutory phrase “failure of conciliation efforts” as ambiguous. At least two reasonable interpretations of the phrase come to mind. One, which in effect looks only at the action of the complainant, would hold that if the complainant rejects a particular settlement offer for any reason or refuses to engage in conciliation from the outset, insisting instead upon a hearing bé-fore the Commission once probable cause has been found, then conciliation efforts have failed and a hearing must take place. The other interpretation — the one adopted by OHR — assumes a willingness of the complainant to conciliate and holds that conciliation has failed (assuming OHR has determined such efforts to be warranted) only if the respondent either has refused to take part in conciliation or has offered a settlement that will not in fact remedy the alleged discrimination, and the complainant rejects it. Whether OHR’s interpretation is the only or even the most reasonable construction of the words is beside the point. Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11; Smith, supra.9 This court cannot say it is an unreasonable reading of the Act.

First, it is obvious that strong policies favoring compliance and settlement underlie the Act, which permits OHR, “at any time after the filing of the complaint” (emphasis added), i.e., before or after probable cause has been found, to “endeavor to eliminate such unlawful discriminatory practice by conference, conciliation, or persuasion” if “in the judgment of the Office” the circumstances so warrant. § l-2546(a). Similarly, § 1-2550 may plausibly be read to commit to OHR’s judgment (“as determined by the Office”) the twin determinations whether conciliation efforts are unwarranted to begin with or such efforts have failed. This broad statutory grant of authority would be undermined (or so the agency could reasonably maintain) by leaving with the complainant the unilateral decision whether to accept a make whole offer that in fact would undo the discrimination and its effects.¹⁰ By the same token, adopting petitioner’s interpretation would require the investigative and prosecutorial resources of OHR, which we may assume to be limited in a time of notorious government austerity, to be used to pursue a complaint through the formal adjudicatory stage even though a settlement offer has been made that would unarguably remedy the discrimination. See § l-2552(b) (providing that at a hearing before the Commission “[t]he case in support of the complaint shall be presented by an agent or attorney of the Office” (emphasis added)).

Furthermore, the reasonableness of OHR’s interpretation is confirmed when one considers the avenues of redress left open to the complainant both before and after a complaint is dismissed for refusal to accept a make whole offer. We observed at the outset that the Act provides alternative avenues of redress for alleged discrimination, quoting Brown v. Capitol Hill Club, supra. Thus a person claiming injury through unlawful discrimination has total control initially over whether to seek relief in court or administratively. D.C.Code § l-2566(a). Only when the latter course has been chosen has the person “elected” her remedy and is recourse to the trial court barred. Id.; see Brown, 425 A.2d at 1312. Even then, however, the Act provides that “where the Office has dismissed [a] complaint on the grounds of administrative convenience, ... such person shall maintain all rights to bring suit as if no complaint had been filed.” § 1-2556(a) (emphasis added).¹¹ OHR concedes in this litigation that a dismissal under § 716.9 of its rules is a dismissal “on the grounds of administrative convenience.” That concession is unavoidable, for otherwise the Office would have no statutory authority to dismiss the complaint. See D.C.Code §§ 1-2545(c), -2556(a) (specifying grounds on which OHR may dismiss complaint). In Honig v. District of Columbia Office of Human Rights, 388 A.2d 887 (D.C.1978), a division of this court recognized that dismissal on the ground of “administrative convenience” “plainly envisages the authority to exercise prosecutorial discretion.” Id. at 888. We agree with that analysis, and we regard a decision by OHR not to commit scarce prose-cutorial resources to a trial-type hearing before the Commission, when in its judgment the complainant can be made whole informally, as a classic exercise of prosecutorial discretion.¹² Thus, a person whose complaint has been dismissed on grounds of administrative convenience retains the right “to bring suit as if no complaint had been filed.” Moreover, as our holding in part V, infra, makes clear, the complainant desiring to persist with administrative resolution of her complaint retains the right to petition the Superior Court for review of OHR’s grounds for denial of a hearing by the Commission.

Y.

We turn then to petitioner’s challenge to the application of OHR’s make whole rule to her case — specifically, her contention that the agency erroneously concluded that intervenor had made her an adequate (a genuine “make whole”) offer which she had rejected. OHR renews its jurisdictional argument, contending that we lack contested ease jurisdiction to review application of the rule to individual cases. Here we conclude that OHR is on sound footing. In analyzing whether petitioner had an unqualified statutory right to a hearing once probable cause was found, we perforce have had to exercise our jurisdiction. See part III, supra. The outcome of that analysis has been our conclusion that a dismissal under § 716.9 is authorized by D.C.Code § 1-2556(a) as a dismissal “on the grounds of administrative convenience.” The fact, however, that this dismissal leaves the complainant with “all rights to bring suit as if no complaint had been filed,” id., calls squarely into question our authority to review directly — that is, on contested case review — the application of § 716.9 in any particular case. The reason is that the DCAPA, specifically D.C.Code § 1-1502(8), expressly excludes from the definition of a contested ease “[a]ny matter subject to a subsequent trial of the law and the facts de novo in any court.” This exclusion is unqualified; it does not, for example, deny this court jurisdiction only when a trial de novo is the “exclusive” remedy for asserted improper agency action — as though it were inoperative where direct review by this court could somehow otherwise be established as an available option. Section 1-1502(8) has the unmistakable effect that some agency action — including dismissal under § 1-2556(a) — is unreviewable directly by this court even though it may erroneously deprive the complainant of a trial-type administrative hearing.¹³

The result of this jurisdictional bar is not to deny petitioner any judicial review of OHR’s action; instead it is to deprive her of such review by this court in the first instance. In Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392 (D.C.1991), a division held that a complainant may seek review in Superior Court of OHR’s dismissal of a discrimination complaint for lack of probable cause. We conclude that the same remedy is available here. A complainant suffering a dismissal on grounds of administrative convenience may file an original complaint in Superior Court, or else she may seek review in that court of the propriety of OHR’s dismissal; and if the outcome of such review is affirmance by the Superior Court, she may then seek review of that order by this court in the normal course. D.C.Code § 11-721(a)(1).¹⁴

VI.

The petition for review is

Dismissed.

Parts I, II, IV and V of this opinion were authored by Judge Farrell; part III was authored chiefly by Judge Ferren

1

. The benefits of administrative handling of civil law are to provide an opportunity for settlement of complaints voluntarily before the hearing and to bring about more rapid compliance with the law by offering an alternative to lengthy court proceedings. We believe the establishment of administrative hearings to be vital to the success of enforcing Title 34.

Committee Report, District of Columbia Council, Legislative Report on Title 34, The Human Rights Law (October 15, 1973), at 2.

2

. Two entities, the District of Columbia Office of Human Rights and the District of Columbia Commission on Human Rights, administered the Act for most of the time relevant here. See D.C.Code § 1-2541. The Office of Human Rights has since been abolished and its functions assigned to the new District of Columbia Department of Human Rights and Minority Business Development, created by Reorganization Plan No. 1 of 1989, 36 D.C.Reg. 6305 (July 13, 1989), and Mayor’s Order No. 89-247, 36 D.C.Reg. 7847 (Nov. 1, 1989). For convenience sake, we shall refer to the Office of Human Rights throughout this opinion, abbreviated as “Office” or "OHR.”

3

. Rules Governing Procedure and Practice for Private Sector Complaints Alleging Unlawful Discriminatory Practices, 33 D.C. Reg. 6917 et seq. (1986), to be codified at 4 DCMR § 700 et seq. In this opinion, we employ the section sign {e.g., § 716.9) of the anticipated regulation.

4

. The offer also provided that in view of the sale of the property, the apartment applied for would have to be one currently owned or managed by intervenor.

5

. The previous day, March 21, the Director had written to petitioner reviewing the Office's previous written and telephonic communications with her in which it had attempted to answer her questions, and explaining why the modified offer of March 7 did not entail a change of the Office’s position regarding the reasonableness of the original settlement offer.

6

. The judicial review provision of the Human Rights Act, D.C.Code § 1-2554, provides for review in this court of “an order or decision of the Commission " (emphasis added). The decision presently under review is not one of the Commission, but of OHR. However, this court also has jurisdiction under D.C.Code § 11-722 (1989) to review "orders and decisions of ... any agency of the District of Columbia ... in accordance with the District of Columbia Administrative Procedure Act....” Since the Office of Human Rights is indisputably an "agency” as defined by the DCAPA, D.C.Code §§ 1-1502(3) -1502(4), the parties are in accord that this court has jurisdiction over the petition provided it meets the contested case requirements of the DCAPA.

7

. In Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., supra, the Contract Appeals Board dismissed a proffered "appeal” on the ground that petitioner had actually filed a “protest” and had filed it too late to satisfy the ten-day statute of limitations. The question on appeal to this court, therefore, was whether Jones & Artis had filed a timely "appeal” or an untimely "protest” with the Board. If it was the former, then we likely had jurisdiction because an "appeal" of an agency director’s decision to an administrative appeals board commonly creates a contested case requiring a trial-type hearing. A bid "protest" lodged with an appeals board, however, typically does not. See id. at 318. Accordingly, we said:

[I]f Jones & Artis filed an “appeal” with the Board, we may have jurisdiction to review the Board’s decision. But, if Jones & Artis filed a "protest," as the Board itself ruled, we do not have jurisdiction, and any relief from the Board’s action would have to be sought, in the first instance, from the Superior Court. See Capitol Hill Restoration Society, Inc. [v. Moore), 410 A.2d [184,] 188 [(D.C.1979)]. We, of course, have jurisdiction to determine our own jurisdiction, and thus — like the Board — we must determine whether an "appeal” to the Board or a "protest” is at issue. In this sense our jurisdictional evaluation will entail an exploration, and virtual resolution, of the merits of Jones & Artis’ case.

Jones & Artis, 549 A.2d at 318. We eventually held:

The Board correctly concluded that a "protest," not an administrative "appeal,” is at the heart of this proceeding. Accordingly, the Board was not presented with a "contested” case. Nor are we. We are without jurisdiction here.

APPEAL DISMISSED.

Jones & Artis, 549 A.2d at 327.

8

. In Land v. Dollar, supra, stockholders of a steamship company delivered shares of the company’s stock, endorsed in blank, to the United States Maritime Commission, which in turn released some of the stockholders from certain obligations and agreed to grant their company an operating subsidy, to make it a loan, and to arrange for another loan from a government corporation. When the company paid all its indebtedness, the stockholders demanded return of their stock, claiming it merely had been pledged. The Maritime Commission refused, claiming that the shares had been transferred outright. Under the law, if the shares had been transferred to the United States, the stockholders could not sue the government for their return because of sovereign immunity, and thus the District Court would have lacked jurisdiction to entertain the suit. If, however, the shares had merely been pledged, the stockholders could properly sue the public officers as individuals for acting beyond the scope of their authority, and thus the District Court would have had jurisdiction. Accordingly, both the stockholders' right to recover and the trial court’s jurisdiction turned on resolution of the same issue: whether the stock had been pledged or transferred outright. The Supreme Court held "that the District Court has jurisdiction to determine its jurisdiction by proceeding to a decision on the merits.” Id., 330 U.S. at 739, 67 S.Ct. at 1013.

9

. As we stated in Smith and have said repeatedly elsewhere, ”[W]e must sustain the agency’s interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance.” 548 A.2d at 97.

10

. The conceded fact that OHR may not impose a conciliation agreement on the parties without their consent, § l-2546(c) (indeed, without their consent there would be no "agreement”), is very different from saying the agency lacks authority to dismiss when the complainant has rejected an adequate make whole offer.

11

. The same right is available where the complainant has withdrawn the complaint voluntarily in accordance with § 1-2544(a). See § 1-2556(a).

12

. We reject petitioner’s argument that OHR’s present characterization of the dismissal as based upon grounds of administrative convenience is impermissible simply because dismissal for the complainant's refusal to accept a make whole offer is not among the enumerated reasons for "administrative dismissal” in OHR’s rules of procedure. See Rules Governing Procedure, supra note 3, § 708.1. Petitioner was provided unmistakable notice by § 716.9 that refusal to accept a make whole remedy would subject her complaint to dismissal; the fact that the rules do not list that ground under the heading of "administrative dismissals” does not bar the agency from now characterizing a § 716.9 dismissal as what it inherently is.

13

. Judge Ferren’s separate opinion asserts that we "never effectively explain[] why § 1-1502(8)(A) does not prevent this court from determining the general legal validity of § 716.9, rather than merely precluding our review of § 716.9 as applied.” Post at 765. The explanation is evident: If § 716.9 provides for an “administrative convenience" dismissal — whether proper on the facts or not — then the complainant has an unqualified right to sue de novo in court, § 1-2556(a), thereby triggering § 1 — 1502(8)(A). But unless § 716.9 is reasonably characterized as such a dismissal (as we hold it is), then the complainant has an automatic post-probable cause right to a Commission hearing — and only that right since she has elected the administrative remedy. Brown v. Capitol Hill Club, supra. In other words, OHR’s adoption of § 716.9 is a valid exercise of its delegated authority only if the regulation is properly classified as a dismissal for administrative convenience, a question whose answer is not "a given” (as Judge Ferren opines) but one we must decide before we know whether petitioner was wrongly denied a contested case hearing. We therefore have jurisdiction, as discussed in part III, supra, to decide the proper characterization of § 716.9, but once we have concluded that dismissal of petitioner’s complaint was pursuant to § l-2556(a) (leaving her free to pursue a trial de novo in court), § 1-1502(8)(A) compels us to stop.

14

. The fact that, as Judge Ferren points out, if the complainant pursues judicial review in Superior Court and loses, she will have lost her right to file a suit de novo, Brown, supra, does not lead to the conclusion he urges — inapplicability of § 1-1502(8)(A) — because upon dismissal by OHR under § l-2556(a), she preserved the unqualified right that deprives us of contested case jurisdiction: the choice to pursue a “trial of the law and facts de novo in ... court.” § 1-1502(8)(A).