(dissenting) :
The petitioners filed in this court an original petition for a writ of mandamus charging that the trial judge failed to comply with our mandate in Apartment and Office Building Association of Metropolitan Washington v. Washington, D.C.App., *145343 A.2d 323, decided on July 16, 1975.* The majority grants the writ and proceeds to fashion its own remedy.
I oppose the granting of the writ because the trial court did in fact comply with our mandate.
These are the facts: (1) We stated in our opinion on July 16, 1975, 343 A.2d at 333:
To this end, and without presently enjoining the enforcement of the rent control program, the government should be given 90 days from the date of transmittal of our mandate to adopt and implement means of affording reasonably prompt vindication of the so-called pass-through right and the right to a reasonable return. We leave it to the trial court in the first instance to determine the reasonableness and workability of these means. As to the interim, the trial court is directed to determine whether the 12.32% across-the-board increase is sufficient for these purposes or whether an additional amount of increase is necessary to the statutory ends. In the event of the latter, that court may decide on ordering a general increase for all plaintiffs and members of the class as may be determined after class certification action, or to make individual determinations as requests for specific rent increases can demonstrate their merit. [Footnote omitted.]
(2) Enactment of a new rent control program, then known as Bill 1-157, became effective on September 23, 1975, as the second phase of D.C.Act 1-35. 22 D.C. Register 841 et seq. It was extended by D.C.Act 1-158 until D.C.Act 1^46 became effective as D.C.Law 1-33 on November 1, 1975. 22 D.C.Register 2122a, 2489 et seq.
(3) Pursuant to our mandate, the trial court on September 29 and 30, and October 2, 3, 6, and 8, 1975, conducted hearings on the matter of interim relief and rendered an opinion and order on October 31, 1975, finding, among other things, that 12.32% across-the-board was inadequate. (4) On February 14, 1976, the trial court issued a final order granting relief to the petitioners.
The majority holds that our mandate was not complied with because the government did not, within 90 days of our mandate, adopt and implement means of affording reasonably prompt vindication of the cost pass-through right. However, during this 90-day period, the government enacted a new rent control law setting forth a new formula for rent control in which pass-through was a factor. This formula was used by the trial court in granting relief pursuant to our mandate. The adequacy of this relief is an issue in the appeal now pending.
We further instructed the trial court as follows: “We leave it to the trial court in the first instance to determine the reasonableness and workability of these means.” 343 A.2d at 333. This instruction certainly indicates broad discretion in fashioning the relief mandated by this court. A writ of mandamus is not to be used to review discretionary acts of the trial judge, United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 75 L.Ed. 1148, (1931); Laughlin v. Reynolds, 90 U.S. App.D.C. 414, 415, 196 F.2d 863, 864 (1952), nor is it a substitute for an appeal, Will v. United States, 389 U.S. 90, 97, 88 S.Ct. 269, 19 L.Ed.2d 305, (1967); Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 168, 417 F.2d 728, 736 (1969). In my opinion, the use of the writ in this case is an abuse of power by this court. It infers that the trial court completely ignored our *146mandate. The facts clearly demonstrate that this is not the case.
Nor do I think that a writ of mandamus is an appropriate vehicle for this court to fashion relief based upon conflicting testimony and evidence.
I respectfully dissent.
There is pending before this court an appeal from the final order issued in Apartment & Office Bldg. Ass’n of Metropolitan Washington v. Washington, D.C.App., No. 10666.