dissenting:
I cannot agree with the court’s holding that the Superior Court lacked jurisdiction to entertain an action for injunctive relief under the circumstances presented in Case I.1 A primary reason for my disagreement with the decision reached by the majority derives from its conclusion that an administrative remedy was available to address the Coalition’s grievances. Neither the District of Columbia Certificate of Need Act of 1988, as amended (the Act),2 nor the regulations implementing it, provides a mechanism for one in the Coalition’s position to challenge the failure of the State Health Planning and Development Agency (SHPDA) to require a health care facility (HCF) to obtain a certificate of need (CON) when SHPDA concludes, after notice from the HCF, that no CON is required for the proposed action. The majority seems to recognize these legislative and regulatory omissions. In my view, we cannot fill them, as the decision of the court does, without exceeding our judicial function and intruding into the legislative province. See West Virginia University Hospitals, Inc. v. Casey, — U.S. -, 111 S.Ct. 1138, 1148, 113 L.Ed.2d 68 (1991).
The Coalition filed an action seeking to compel the Mayor, SHPDA and its director to take steps to require Capitol Hill Hospital and Medlantic Health Care Group (referred to collectively as the Hospital) to comply with the Act by obtaining a certificate of need in connection with the Hospital’s plan to close certain medical/surgical services. The trial court concluded that no alternative remedies were available to the Coalition to address its concerns. After an examination of the Act, its legislative history, the local implementing regulations, as well as the Federal Health Planning and Resources Development Act 1979,3 with which the Act was intended to comply, and the federal regulations for the program, I agree.4
The Act requires a certificate of need for a closure only “if it involves a capital expenditure in any amount.” D.C.Code § 32-303(f) (1988). The statute by its terms does not mandate prior approval by SHPDA before a closing involving no capital expenditure. The legislative history bears out this point. In a report to the District of Columbia Council by the chairperson of its Committee on Human Services, the following statement appears: “[t]he bill would not require approval of changes in services or capacity not accompanied by a capital expenditure.” Report to the Council of the District of Columbia on Bill # 3-289, at 3 (the Report). The statute contains only a notification requirement by the HCF proposing such action. D.C.Code § 32-303(f) (1988).5 According to the statute’s legislative history, the purpose of the notification *806section, “a SHPDA suggestion,” is “to facilitate smooth transitional planning in the face of the closing of a facility or service upon which the community or a segment of the community relies for services.” Report, at 11.6 Thus, it does not appear that the notification requirement was intended originally to impose review and approval requirements as a prerequisite to closings involving no capital expenditures.
Nevertheless, SHPDA included in implementing regulations a requirement for information not specifically enumerated in the Act, including a statement that no capital expenditure is involved and the reason for the closure. 22 DCMR § 4113.8(f)(g) (1986). This information, no doubt, assists the agency in monitoring compliance with the Act. However, the provision is not required by statute, nor did SHPDA consider it necessary, apparently, to adopt an application process, notice, hearing, and review procedures for HCF actions excepted under the non-capital expenditure clause. SHPDA can pursue enforcement remedies against individuals who proceed without a certificate of need when required by law, including injunctive relief and criminal penalties. D.C.Code § 32-312 (1988).7 The availability of these remedies may well have been viewed as sufficient to eliminate the necessity for an administrative process to determine whether a capital expenditure is involved in any closure. If unlawful action is reported to the agency, the agency can investigate and take any steps necessary to bring about compliance. If the offending individual complies and makes application for a CON, administrative remedies become available to affected parties through regulations currently in place. Therefore, it appears that the intention of the legislature and the agency responsible for implementing the Act is effectuated, rather than frustrated, by an interpretation which recognizes the inapplicability of the application process, notice, hearing and review procedures to proposed actions by HCFs excepted from CON requirements.
Other factors suggest that neither our local legislature nor SHPDA intended that notification requirements under D.C.Code § 32-303(f) (1988), entail procedures for administrative challenges by affected parties. The major focus of the certificate of need law is not upon actions by HCFs which require no capital expenditures. Its purpose is “to promote effective and equitable health planning and regulation of new institutional health services and capital expenditures proposed for the District of Columbia.” Id. § 32-301. The Act was “intended to bring the District of Columbia into compliance with the Federal Health Planning and Resources Development Act Amendments of 1979 (P.L. 96-79).” See Report, supra, at 1. The certificate of need program as established by the federal statute required review and determination of need only before medical equipment was acquired, institutional health services were offered, or capital expenditures obligated. 42 U.S.C. § 300m-6(a)(l) (1980). Prominent among its features was the requirement that state agencies make decisions upon review of an application for a certificate of need. Similarly, under local law, actions by SHPDA, which trigger a review process which can result in a hearing, an opportunity for reconsideration and appeal by affected parties, are tied to application for a certificate of need or for an exemption for a certificate of need review. D.C.Code §§ 32-303 to -310 (1988 & 1991 Supp.).8
Assuming SHPDA had authority to subject to review and challenge by affected *807parties actions of HCFs excepted from coverage by the Act, it adopted no regulations to accomplish this purpose. None of the agency’s regulations provides for an application, hearing, challenge by affected parties or appeal from SHPDA’s failure to require an HCF to apply for a certificate of need. SHPDA adopted such regulations for actions which require a certificate of need before an HCF obligates a capital expenditure or takes other action for which a CON is required. 22 DCMR §§ 4201.1 to 4202.11 (1986). Similarly, notice, hearing and an appeal to the Board of Appeals and Review is provided specifically for withdrawal of a certificate of need. Id. §§ 4020.9 to 4020.18. Notification requirements and an appeal process are also included for health care facilities obligating $100,000 or more for certain expenses even if “less than the Certificate of Need review threshold.” Id. §§ 4030.1 to 4030.12. The detailed appeals procedure in chapter 43 of the regulations (22 DCMR §§ 4300.1 to 4313.4) are made expressly applicable to §§ 4030.1 to 4030.13. Id. § 4030.13. A letter of intent for closures involving capital expenditures in any amount is subject to a certificate of need which triggers notification, hearing and review procedures set forth in the Act. Id. §§ 4113.1, 4300.1 to 4313.4. In contrast, the requirement for notice to the agency of proposed closures for which no certificate of need is required contains no provision for notice to affected persons or procedures for their entry into the appeals process. Id. § 4113.8.9 Since no remedy was provided by statute nor by regulation, I would conclude, as did the trial court, that there were no alternative remedies available to the Coalition when it filed for injunctive relief.
Moreover, before any change in the regulations could be put into affect, under the District of Columbia Administrative Procedure Act (DCAPA),10 public notice and an opportunity for comment would be required-prior to adoption of new rules. D.C.Code § 1-1506 (1987).11 Post hoc publication of the rules will not render them valid retroactively. See Rorie v. District of Columbia Dep’t of Human Resources, 403 A.2d 1148, 1152 (D.C.1979).
This court’s intrusion into that process imposes upon SHPDA procedures which are not required under the law, which SHPDA had not deemed appropriate to adopt prior to this case, and which have not been adopted in accordance with the local law. It places the Coalition in the position of having new rules applied after successfully litigating its case in the trial court. See 1880 Columbia Road, N.W., Tenants’ Ass’n v. District of Columbia Rental Accommodations Comm’n, 400 A.2d 333, 338 (D.C.1979) (fundamental unfairness results when “parties who have previously established their legal positions in reliance upon the former regulations would be forced to justify their positions in light of the new regulations”). Therefore, I cannot agree with the decision of the court vacating the trial court’s decision in Case I for lack of jurisdiction.
. I concur in the result reached in Case II. See Myers v. Bethlehem Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938) (until administrative remedies are exhausted, judicial review is unavailable even where a party claims the administrative body lacks jurisdiction); see also Bender v. District of Columbia Dep’t of Employment Servs., 562 A.2d 1205, 1209 (D.C.1989). Unlike the Coalition, the Hospital had available an administrative remedy.
. D.C.Code §§ 32-301 to -317 (1988 & 1991 Supp.).
. 42 U.S.C. § 300m-6 (1980), repealed by Pub.L. No. 99-660, 100 Stat. 3799 (1986).
. In view of the disposition made by the court, discussion of the remaining issues would be advisory only. Therefore, I do not address them.
. The notification requirement provides:
Any person proposing to permanently close a HCF, health service or HMO shall notify the SHPDA of this intention no later than 90 days prior to the proposed closing, and shall provide the SHPDA such information as the SHPDA shall require by regulation. Such information shall include, but not be limited to, the number of patients to be affected by the closure, the condition of those patients, and provisions being made to provide for their continuing care.
D.C.Code § 32-303(f) (1988).
. SHPDA's recommendation for this provision is consistent with its responsibility to provide assistance for orderly transition of patients affected by a closure. Id
. Significantly, injunctive relief may be sought by the Corporation Counsel in a "court of competent jurisdiction.” D.C.Code § 32-312(h) (1988). The Superior Court, as a court of general jurisdiction, is an appropriate forum for such actions. See D.C.Code § 11-921 (1989); see also Andrade v. Jackson, 401 A.2d 990, 992 (D.C.1979). The availability of this injunctive remedy in the trial court makes less anomalous the availability of injunctive relief in the Superior Court for aggrieved parties who have no administrative remedy.
. The “exemption” provisions pertain to HMOs and HCFs proposing certain activities even if capital expenditures are involved. D.C.Code § 32-303(b)(2) (1988); Report, supra, at 10. The exemption provisions are not relevant to actions *807by HCFs excepted from obtaining a certificate of need.
. The only action expressly provided for after notification of intended actions for which no CON is required is for SHPDA to coordinate, to the extent feasible, orderly transition of patient care. 22 DCMR § 4113.9 (1986). This is consistent with the legislative purpose.
. D.C.Code §§ 1-1501 to -1542 (1987 & 1991 Supp.).
. The federal regulations which governed certificate of need programs required the state agency to provide an opportunity for written comment by interested persons before procedures could be adopted. See State Health Planning and Development Agencies, 45 Fed.Reg. 20034, 20039 (1980) (originally codified at 42 C.F.R. § 123.409; has been removed from C.F.R. See 42 C.F.R. at 183). The state agency’s review procedures were required to include, inter alia, timely notification to affected persons of the beginning of the review period, a public hearing, if requested by any affected person, including a verbatim record of the proceedings, public hearings for reconsideration of the agency’s decision, and administrative review procedures. 45 Fed.Reg. at 20039 — 20041 (originally codified at 42 C.F.R. §§ 123.410(a)(2), (a)(8), (a)(ll), (a)(13)).