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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 13-AA-233 & 13-AA-389
DISTRICT OF COLUMBIA DEPARTMENT OF THE ENVIRONMENT, PETITIONER,
V.
C & M FRUIT & PRODUCE CO., INC., RESPONDENT.
On Petition for Review of a Decision
of the District of Columbia Office of Administrative Hearings
(DDOE-A500031-12)
(Hon. Audrey J. Jenkins, Administrative Law Judge)
(Argued October 16, 2014 Decided August 20, 2015)
Carl J. Schifferle, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General for the District of Columbia at the time the briefs were filed,
Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General,
were on the brief, for petitioner.
David A. Greenbaum, with whom Craig M. Schwartz was on the brief, for
respondent.
Before BECKWITH and MCLEESE, Associate Judges, and KING, Senior Judge.
BECKWITH, Associate Judge: The District of Columbia Department of the
Environment (DDOE) petitions for review of an order finding respondent C & M
Fruit and Produce Co., Inc. (C&M) not liable for a civil infraction. DDOE argues
2
that the Administrative Law Judge (ALJ) erred by “sua sponte amend[ing] C&M‟s
answer from „admit with explanation‟ to „deny‟” and by finding C&M not liable
without giving DDOE an opportunity to present its case. We conclude that the
pertinent regulation and statute governing administrative review of civil
infractions—specifically, 1 DCMR § 2804.11 (2014) and D.C. Code § 2-1802.03
(c) (2012 Repl.)—not only permitted but required the ALJ to find C&M not liable
despite its plea of “admit with explanation” where the ALJ determined that the
evidence did not establish an infraction and where the record shows that DDOE
received notice and an opportunity to present its case. We affirm the ALJ‟s order.
I.
On August 9, 2012, the D.C. Department of the Environment cited C & M
Fruit & Produce Co. for idling a motor vehicle engine longer than three minutes in
violation of 20 DCMR § 900.1 (2010).1 The vehicle was a refrigerated truck
1
“No person owning, operating, or having control over the engine of a
gasoline or diesel powered motor vehicle on public or private space, including the
engine of a public vehicles [sic] for hire, buses with a seating capacity of twelve
(12) or more persons, and school buses or any vehicle transporting students, shall
allow that engine to idle for more than three (3) minutes while the motor vehicle is
parked, stopped, or standing, including for the purpose of operating air
conditioning equipment in those vehicles, except as follows:
(a) To operate private passenger vehicles;
(continued…)
3
designed to transport food in compliance with federal regulations. C&M uses two
types of refrigerated trucks: one in which the engine must be running for the
refrigeration unit to run and one in which the refrigeration unit runs independently
of the truck. This particular truck had an independent refrigeration unit, so the
engine did not need to idle to keep the refrigerator running.
C&M answered the infraction with a plea of “deny,”2 stating in writing that
“it was not the enging [sic] that was running, it was the refrigeration unit that was
running. . . . It is very understandable that someone would mistake the sound of
the refrigeration unit running as the truck engine. However the truck was not
idling[;] it was turned off.” C&M‟s chief executive officer Michael Davis
represented his company at a hearing before an ALJ. Although C&M had already
(…continued)
(b) To operate power takeoff equipment, including dumping, cement mixers,
refrigeration systems, content delivery, winches, or shredders; or
(c) To idle the engine for no more than five (5) minutes to operate heating
equipment when the ambient air temperature is thirty-two degrees
Fahrenheit (32°F) or below.”
20 DCMR § 900.1 (2010).
2
“In answer to a notice of infraction a respondent may: (1) Admit the
infraction; (2) Admit the infraction with an explanation which the hearing
examiner may take into account in the imposition of a sanction for the infraction;
or (3) Deny commission of the infraction.” D.C. Code § 2-1802.02 (a) (2012
Repl.).
4
pled “deny,” the ALJ began by explaining the three plea options to Mr. Davis and
asking him whether he would like to change his plea. Mr. Davis responded that he
would change his plea to “admit with an explanation, I guess, that option.” Mr.
Davis testified that he was not present when DDOE issued its citation and had “no
way of knowing” if the truck was running, but that the driver “ha[d] sworn” that he
removed the keys from the ignition and that the company had a policy requiring
drivers to take the keys with them when leaving that type of truck. He also said it
is difficult to tell from noise alone “when the truck is running and when it‟s just the
[refrigeration] unit running.” But Mr. Davis reiterated that he did not know
whether the truck was idling, and closed by asking the ALJ “for a little bit of
leniency and understanding.”
Neil Williams, the inspector who issued the citation, represented DDOE at
the hearing. He testified that he had written “hundreds of citations, undeniably,
hundreds of citations where [he had] to observe the [refrigeration unit] to
distinguish whether it‟s the [refrigerator] or the engine” that was running. In this
case, he said, he observed the engine running without a driver in the truck. Mr.
Williams then “commend[ed] the CEO for . . . admitting with an explanation, since
he was not there to observe [it],” and he “le[ft] it in the discretion of the Court[] to
make the final decision.”
5
The ALJ issued a written decision on December 10, 2012. Because of
C&M‟s admit-with-explanation plea, the ALJ ruled that C&M was liable, but she
suspended the fine because she found, as a factual matter, that “Respondent was
not idling the engine, but was running the truck‟s refrigeration unit” and that
“[t]his constitutes a complete defense to the charge.”
DDOE moved for reconsideration, arguing that the ALJ‟s “finding of fact
that Respondent was not idling its engine [was] not supported by the evidence” and
was inconsistent with its ruling that C&M was liable. The ALJ then amended her
initial order to state that C&M was not liable, and instead of relying on a factual
finding that the truck was not running, she concluded that “[w]hether Respondent
was idling the truck engine or refrigeration unit is of no consequence as
Respondent‟s truck was exactly the type of vehicle allowed by 20 DCMR
900.1(b),” which, among other things, provides an exception to the no-idling rule
for vehicles “operat[ing] power takeoff equipment, including . . . refrigeration
systems.” 20 DCMR § 900.1 (b). The judge further stated that the government
“did not dispute that Respondent operated a refrigerated truck despite having an
opportunity to do so. As such, a finding that Respondent‟s truck was refrigerated,
thus falling under 20 DCMR 900.1(b), is well founded based on the evidence on
record.”
6
DDOE again moved for reconsideration, arguing that the ALJ‟s
interpretation of the regulation was erroneous. DDOE argued that the § 900.1 (b)
exception only applies to refrigeration units that “cannot operate unless the engine
is running,” and said its interpretation of the regulation was entitled to deference.
DDOE argued that, given the lack of dispute that C&M‟s truck had an
independently run refrigeration unit, the ALJ erred as a matter of law by finding
that C&M‟s truck fell within the § 900.1 (b) exception. The ALJ denied
reconsideration, avoiding DDOE‟s statutory interpretation argument and reiterating
her initial factual finding that “the refrigeration unit was running while the engine
to the truck was not.” DDOE filed a petition for review in this court.
II.
DDOE asks us to reverse the ALJ‟s ruling and remand for a new hearing
because the ALJ “erroneously disregarded C&M‟s plea of admit with explanation
and made a factual determination that it was not liable without providing DDOE an
opportunity to prove its case.” DDOE first claims that an admit-with-explanation
plea “remov[es] liability as an issue and limit[s] the hearing to the issue of the
appropriate sanction.” DDOE points to D.C. Code § 2-1802.02 (a) (Repl. 2012),
which states: “In answer to a notice of infraction a respondent may: . . . (2) Admit
the infraction with an explanation which the hearing examiner may take into
7
account in the imposition of a sanction for the infraction . . . .” DDOE argues that
because the statute explicitly allows the ALJ to use an explanation to determine
sanctions, it must not allow the ALJ to use an explanation for any other purpose,
such as to negate liability—an application of the canon expressio unius est exclusio
alterius. DDOE also notes that the ALJ told Mr. Davis that an admit-with-
explanation plea “means that you acknowledge that you committed the violation,
but you have some explanation that you‟d like me to consider in deciding to reduce
or suspend the fine all together.”
DDOE‟s argument is undercut, however, by the Office of Administrative
Hearings Rules of Practice and Procedure, which expressly provide that “[i]n an
Admit with Explanation case, the Administrative Law Judge shall dismiss the
Notice if he or she determines that the Respondent did not commit or is not
responsible for the violation charged.” 1 DCMR § 2804.11 (2014).3 This
3
DDOE argues that we cannot consider this regulation because the ALJ
“did not rely on this regulation in this case . . . and thus it is not a proper basis for
affirmance.” See, e.g., Newell-Brinkley v. Walton, 84 A.3d 53, 59 (D.C. 2014)
(“This court generally cannot uphold an agency decision on grounds other than
those actually relied upon by the agency.”) (citation and internal quotation marks
omitted). But just as a judge need not explicitly cite the provisions of law that
authorize her to perform basic judicial tasks—for example, to hold a hearing, make
factual findings, or issue an order—the ALJ here did not have to cite 1 DCMR
§ 2804.11 to exercise the authority it grants her to dismiss the notice of infraction.
The rule to which DDOE refers prevents this court from affirming an ALJ decision
based on arguments or rationales that the ALJ did not adopt. See Point Park Univ.
(continued…)
8
regulation requires the ALJ to find a respondent not liable when its explanation
negates its liability. DDOE argues that the regulation cannot conflict with a valid
statute, see Thompson v. District of Columbia, 978 A.2d 1240, 1243-44 (D.C.
2009); Texas v. EPA, 726 F.3d 180, 195 (D.C. Cir. 2013), but we will uphold an
agency regulation when the statute is ambiguous and the regulation is reasonable.
See Barnhart v. Walton, 535 U.S. 212, 224 (2002). As noted above, this
interpretation of D.C. Code § 2-1802.02 (a)(2) relies on the expressio unius canon,
which is “an especially feeble helper in an administrative setting, where [the
legislature] is presumed to have left to reasonable agency discretion questions that
it has not directly resolved.” National Ass’n of Mfrs. v. SEC, 748 F.3d 359, 367
(D.C. Cir. 2014), overruled in part on other grounds by American Meat Inst. v.
USDA, 760 F. 3d 18 (D.C. Cir. 2014) (quoting Cheney R. Co. v. ICC, 902 F.2d 66,
69 (D.C. Cir. 1990)). We see no direct conflict between the statute and regulation
that requires us to deem the latter invalid.
Moreover, D.C. Code § 2-1802.03 provides that “[t]he Mayor shall bear the
burden of establishing an infraction by a preponderance of the evidence” and
(…continued)
v. NLRB, 457 F.3d 42, 50 (D.C. Cir. 2006) (“Nor can our Court fill in critical gaps
in the Board‟s reasoning. We can only look to the Board‟s stated rationale. We
cannot sustain its actions on some other basis the Board did not mention.”). That is
not the case here.
9
“[w]here the Mayor has not established the infraction, the administrative law judge
or attorney examiner shall enter an order dismissing the notice of infraction.” D.C.
Code § 2-1802.03 (a), (c) (2012 Repl.). Like 1 DCMR § 2804.11, this provision
gives the ALJ the authority—indeed the duty—to dismiss an infraction when the
evidence shows that the respondent is not liable. As this statute is in tension with
DDOE‟s narrow interpretation of D.C. Code § 2-1802.02 (a), we decline to read
D.C. Code § 2-1802.02 (a) to limit the use of an explanation solely to determining
the appropriate sanction, and we conclude that the ALJ properly dismissed the
infraction, notwithstanding C&M‟s admit plea, where C&M‟s explanation
convinced her that C&M was not liable for the infraction.4
III.
DDOE also argues that even if the ALJ could use C&M‟s explanation to
negate liability, the ALJ‟s order must be reversed because DDOE was not on
4
DDOE‟s reliance on Williams v. District of Columbia Dep’t of Pub.
Works, 65 A.3d 100 (D.C. 2013), is misplaced. The ALJ in Williams “concluded
that petitioner‟s admissions satisfactorily established that he had committed the
violations,” and thus we held that the petitioner was “precluded from contesting”
liability any further. Id. at 104, 106. But here, the ALJ did not find that the
admission “satisfactorily established” C&M‟s liability because other evidence she
credited suggested that the truck was not idling. Nothing we said in Williams—a
case that did not address 1 DCMR § 2804.11—precludes the ALJ from finding that
an admission with explanation is insufficient to establish liability in circumstances
where the explanation itself negates liability.
10
notice that liability was a contested issue and it did not have the opportunity to
prove that the truck engine was running. We agree that because an admission is
generally sufficient to prove liability, the government may be unaware that it must
present evidence of liability to meet its burden when the respondent submits an
admit-with-explanation plea. Therefore, the ALJ could find that C&M was not
liable only if the government was on notice that C&M‟s explanation might negate
liability and it was provided with an opportunity to “present evidence and
argument with respect” to liability.5 See D.C. Code § 2-509 (a) (2012 Repl.) (made
applicable to civil infractions by § 2-1802.03 (a)).
On the facts of this case, however, we conclude that DDOE had sufficient
notice that liability was disputed despite C&M‟s admit-with-explanation plea and
that DDOE was given sufficient opportunity to present its case to the ALJ. At the
outset, DDOE knew before the hearing that liability was contested and which basic
facts were in dispute because C&M submitted a denial letter explaining that “it was
not the enging [sic] that was running, it was the refrigeration unit that was
running.” The ALJ‟s hearing scheduling order stated that C&M denied the
5
Otherwise, the government points out, it would essentially be required to
treat every admit-with-explanation plea as a denial and be prepared to present a
complete case, undermining the purpose of the plea system to streamline the
disposition of civil infractions.
11
violation and instructed that both parties shall “be prepared to proceed with an
evidentiary hearing on the merits and shall have available to them at that time all
witnesses and evidence they may offer.” DDOE inspector Neil Williams therefore
appeared at the ALJ hearing prepared to establish C&M‟s liability—that is, that it
was the truck engine and not the refrigerator that was running—to the best of his
ability.
In addition, even though C&M changed its plea to admit with explanation at
the beginning of the hearing, Mr. Davis‟s testimony did not concede liability as a
factual matter. Mr. Davis admitted with explanation solely because he lacked
firsthand knowledge whether the truck was running, stating that he had “no case to
deny or prove that it wasn‟t running.” Yet Mr. Davis also indicated that to the best
of his knowledge the truck was not running. He testified that C&M‟s “policy is
drivers take the keys with them, when they leave the truck, unless it‟s one of the
trucks”—unlike the truck here—in which the engine powers the refrigeration unit.6
“When [C&M] got the infraction,” Mr. Davis testified, “the driver ha[d] sworn that
he had the keys out of the truck,” adding that “these units are very large and loud
6
This testimony echoed C&M‟s statement in its denial letter that “[i]t is
company policy to turn the truck engine off and remove the keys, but to leave the
[refrigeration] unit running to maintain the tempreture [sic] required by the Health
Department to keep the perisable [sic] contents of the truck fresh.”
12
and it‟s hard to tell[] when the truck is running and when it‟s just the [refrigeration]
unit running.” So while Mr. Davis may have admitted the infraction as a legal
matter, he did not admit that the truck engine was running as a factual matter.
Instead, he presented circumstantial evidence to the contrary that put DDOE on
notice that liability had not been conclusively established.
Finally, Mr. Williams‟s testimony for DDOE demonstrated that he knew the
ALJ might credit Mr. Davis‟s circumstantial evidence that the engine was not
running. Mr. Williams began by rebutting Mr. Davis‟s assertion that it is difficult
to distinguish between the refrigeration unit and the engine with testimony about
his extensive experience doing exactly that when issuing “hundreds” of citations.
Mr. Williams then attempted to discredit the hearsay statement that the keys were
not in the ignition, testifying that “I did observe the front of the truck. . . . [T]he
engine was running on the truck, and there was no driver in the truck. I looked for
the driver around in the store. I presumed that he did go into the farmer‟s market
area.” And while Mr. Williams “commend[ed] the CEO for . . . admitting with an
explanation, since he was not there to observe [it],” he closed by stating, “I leave it
in the discretion of the Court[] to make the final decision.”
Considering Mr. Williams‟s attempts to rebut C&M‟s explanation, those
parting words indicate that Mr. Williams understood that the ALJ would be
determining C&M‟s liability notwithstanding the admit-with-explanation plea.
13
Contrary to DDOE‟s assertion on appeal that “Mr. Williams did not present a full
case,” Mr. Williams essentially stated that he had nothing more to say—he rested
his case and left a final decision to the ALJ. DDOE claims that given the
opportunity, Mr. Williams would have “detail[ed] his specific observations and his
own substantial experience as an inspector in enforcing the anti-idling law,” but as
noted in the preceding paragraph, Mr. Williams did exactly that. For all these
reasons, DDOE had sufficient notice and opportunity to “present evidence and
argument” regarding C&M‟s liability for the infraction. D.C. Code § 2-509 (a).7
IV.
In sum, when C&M offered an admit-with-explanation plea but the
explanation persuaded the ALJ that the government had not established an
infraction, the ALJ was required under 1 DCMR § 2804.11 to find C&M not liable,
as long as DDOE had notice and an opportunity to present evidence regarding
liability. On this record, where the DDOE investigator was prepared to and did
present his full case despite C&M‟s decision to change its plea from deny to admit
7
DDOE further argues that Mr. Williams was entitled to cross-examine Mr.
Davis. We agree, but the record contains no indication that Mr. Williams was
denied this opportunity. Mr. Williams chose to rebut the driver‟s hearsay
statement with his own testimony, but he did not seek to cross-examine Mr. Davis
before he rested his case and “le[ft] it in the discretion of the Court[] to make the
final decision.”
14
with explanation, and where the investigator‟s statements indicated that he
expected the ALJ to determine liability based on the hearing testimony, DDOE had
sufficient notice and opportunity to prove its case.
The ALJ‟s order is hereby
Affirmed.