District of Columbia v. American University

THOMPSON, Associate Judge,

concurring in part and dissenting in part:

I agree with that portion of the court’s opinion that concludes that the issue of AUD’s licensure is moot and vacates the order requiring revocation of AUD’s license. However, I do not share my colleagues’ confidence that AUD has “undertake[n] to do business in the District of Columbia” within the meaning of D.C.Code § 29-618, because the scope of that statutory phrase is not plain and because, in my view, the best indicators we have of legislative intent tell us that the legislature did not use the phrase to refer to the type of activities that AUD is conducting in the District of Columbia through its agent, Mr. Goldstein. In light of those indicators, I believe the court has an insufficient basis for disturbing the Education Licensure Commission’s licensing decision as to Mr. Goldstein. I also see no basis for concluding, as the court does, that “the Commission abused its discretion in granting Gold-stein an agent’s license.” Therefore, I do not join in the decision to affirm the order requiring the Commission to revoke Mr. Goldstein’s agent’s license.

A.

According to my colleagues in the majority, the problem with the Commission’s licensure of agent Goldstein is that he is “helping” AUD violate section 29-618.1 I believe that the majority’s premise — that AUD is violating section 29-618 — is either outright mistaken or sufficiently in doubt that it ought not to be the basis for court-ordered revocation of Mr. Goldstein’s license.

It is evident that AUD has “American” in its name, legitimately raising a question about whether a violation of section 29-618 is afoot. But answering the question of whether AUD is violating section 29-618 requires considerable additional analysis, both as to the facts of record and the law. To recap and slightly expand upon some of the relevant facts: AUD began as a branch campus of American InterContinental University, a university incorporated in the State of Georgia and accredited by the Commission on Colleges of the Southern Association of Colleges and Schools (the “Southern Association”). In 2008, AUD ceased to be a branch campus of American InterContinental University and obtained separate Southern Association accreditation. AUD has no classroom or other educational facilities in the Dis*192trict of Columbia, leases no space here, and does not teach, provide instruction, or confer degrees in the District of Columbia. Rather, it provides educational services from its campus in Dubai, United Arab Emirates.2 According to the affidavit of AUD President de Masi, AUD retained the services of an agent, Michael Gold-stein, who is knowledgeable about study-abroad programs, to “inform prospective students and their parents within [the] District of Columbia about AUD and its programs and offerings in Dubai and to enroll students should they decide to enroll in any of AUD’s programs or offerings in Dubai.” Mr. Goldstein maintains an office on New Hampshire Avenue, N.W. In his testimony before the Commission, Gold-stein explained:

The purpose of having the agent office here is that one of the things that the school has found is there is a large Middle Eastern population going back and forth between countries in the Middle East and Washington in particular, and ... we are finding a certain number of students with an interest in enrolling or in learning about educational opportunities in Dubai while they are here and we would provide an access point for that information.

Mr. Goldstein’s business card states that he is “an authorized AGENT to enroll students in the District of Columbia on behalf of’ AUD. In short, as far as the record discloses, what AUD does in the District of Columbia through its agent is provide information about and enroll students for educational opportunities in Dubai.

The prohibition contained in section 29-618 is applicable to any educational institution chartered in the District of Columbia under the provisions of Title 29 subchapter 601 et seq. and to any other educational institution that “shall undertake to do business in the District of Columbia or to confer degrees or certificates therein.” Because AUD is not chartered in the District of Columbia and does not confer degrees here, it is subject to the prohibition of section 29-618 only if it “shall undertake to do business in the District of Columbia” while it retains “American” in its name. Neither Chapter 600 of Title 29 nor Chapter 13 of Title 38 of the D.C.Code defines the term “undertake to do business,”3 and the Commission’s regulations also contain no definition of the term. To answer the question of whether AUD is doing business in the District, the majority turns immediately, and exclusively, to the Black’s Law Dictionary definition of “doing business” and quickly concludes that AUD is doing business here because (through agent Goldstein) it is carrying out acts for the purpose of realizing a pecuniary benefit. It often is appropriate to rely on dictionary definitions when, as here, the legislature has not defined a term used in the relevant statute. But, since our objective must always be to discern the legislative intent and, as far as possible, to read the various provisions of a statute harmoniously, I believe we should be careful not to rely on the dictionary exclusively when there are other indicators of what the leg*193islature meant by the terms it used and what it meant to prohibit,4 and when a dictionary definition makes it difficult to harmonize the various portions of an existing statute.

Congress enacted the name prohibition and “doing business” provisions of section 29-618 in 1929. There are many court decisions of roughly the same vintage that addressed what it meant for a company to “do business” in a jurisdiction (for purposes of being amenable to service of process in the jurisdiction, or for purposes of state statutes that denied foreign companies doing business in a state the right to sue in the state’s courts without a certificate of authorization to do business). In People’s Tobacco Co. v. Am. Tobacco Co., 246 U.S. 79, 87, 38 S.Ct. 233, 62 L.Ed. 587 (1918), for example, the Supreme Court held that a foreign corporation’s “practice of advertising its wares in Louisiana and sending into it agents having no authority beyond solicitation” did not constitute doing business within the State for the purpose of service of process.5 In Green v. Chi, Burlington & Quincy Ry. Co., 205 U.S. 530, 53233, 534, 27 S.Ct. 595, 51 L.Ed. 916 (1907), the Court held that where “[t]he business shown ... was in substance nothing more than that of solicitation” — defendant employed an agent who, working from an office in Pennsylvania, took money from customers and issued prepaid orders that they could exchange for tickets to transfer to defendant’s railroad in Chicago — the defendant was not “doing business” in Pennsylvania for purposes of in personam jurisdiction.6 See also Cancelmo v. Seaboard Air Line Ry., 12 F.2d 166, 169 (D.C.Cir.1926) (holding that a railroad company that had no tracks within a district was not doing business therein where it “hire[d] an office and employ[ed] an agent for the merely incidental business of solicitation of freight and passenger traffic”); Knobel v. Seaboard Air Line Ry. Co., 12 F.2d 169 (D.C.Cir.1926) (same); Chase Bag Co. v. Munson S.S. Line, 295 F. 990 (D.C.Cir. 1924) (citing People’s Tobacco for the proposition that “it is the settled law that the practice of sending soliciting agents into a state does not amount to that doing of business which subjects the corporation to the local jurisdiction for the purpose of service of process upon it”) (internal quotation marks omitted).7 The rulings in *194many of these in personam jurisdiction cases were “implicitly rejected” in Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), see Hughes v. A.H. Robins Co., 490 A.2d 1140, 1145 n. 5 (D.C.1985), but the rulings nevertheless provide some insight into what Congress would have meant in 1929 by “under-tak[ing] to do business” in the District of Columbia.8 They make it questionable whether, by using the term “undertake to do business in the District of Columbia,” Congress meant to include within the reach of section 29-618 an educational institution whose presence in the District of Columbia consists only of the activities of an agent who advertises the institution’s programs and solicits or enrolls students for educational services to be delivered entirely outside the District of Columbia.9 The cases should make us proceed cautiously in concluding that AUD is undertaking to do business in the District of Columbia by virtue of its arrangement with agent Goldstein. This is especially so because other indicators of the legislature’s intent suggest that a contrary interpretation is more likely the correct one.

Congress amended section 29-618 in 1934 to grandfather, and thereby exempt from the naming prohibition, American University at Cairo, a District-chartered educational institution, and any other District-chartered educational institutions that received their charters before April 16, 1934.10 See 73 Pub.L. 163, 48 Stat. 592 (Apr. 16, 1934). Discussing the 1929 legislation, the accompanying Committee Report of the Committee on the District of Columbia explains why other, non-District-chartered “institutions of learning in foreign lands” were not in need of relief from section 29-618:

So far as the committee can determine, there was no intent to forbid the use of the word “American” in the titles of institutions of learning in foreign lands where the word served solely to indicate place of origin, such as the “American Academy at Rome,” the “American School of Classical Studies at Athens,” *195the “American University at Beirut,” and other well-known schools and colleges abroad.

H.R.Rep. No. 1040, at 2 (Mar. 28, 1934). This court has recognized that “[t]he views of a subsequent legislature are not conclusive as to the intent of an earlier one,” Winters v. Ridley, 596 A.2d 569, 578 (D.C. 1991) (Sehwelb, J., concurring), and so caution is once again in order as we consider whether to accept the views of the 1934 Congress as indicative of what the 1929 Congress intended when it passed section 29-618. Nevertheless, the views of the later Congress “carry ‘considerable retrospective weight.’ ” Id. (quoting Heckler v. Turner, 470 U.S. 184, 211, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985)).11 Thus, we should give some weight to the 1934 Committee’s understanding — an understanding of the 1929 Congress’s intent that the 1934 Committee gleaned at a time that was at most12 five years out from the enactment of section 29-618 — that section 29-618 was not targeted at “institutions of learning in foreign lands” bearing names that indicate their United States origin.13 The institutions that the 1934 Committee understood not to be targeted bore names quite similar to AUD’s name (compare “American University in Dubai” to “American University at Beirut”). And, like the institutions that the 1934 Committee singled out, AUD is a non-District-chartered institution that provides instruction and confers degrees from its campus in a foreign land and bears a name that reflects its origin (as a branch of an accredited university) in the United States.14

*196There is an additional step in the analysis — consideration of a 1988 amendment to section 29-618 — that persuades me that the majority’s conclusion that AUD is acting in violation of section 29-618 is incorrect. In 1988, the Council of the District of Columbia amended section 29-618 “to permit an educational institution[ ] incorporated and licensed outside of the District of Columbia with the word ‘national’ or ‘American’ in its name to offer courses in the District of Columbia.”15 Specifically, the 1988 amendment authorized the Commission to exempt a not-for-profit institution incorporated in any jurisdiction from the statute’s name restrictions if the institution meets specified conditions, including that the institution “otherwise meets all applicable licensing requirements.” D.C.Code § 29-618(4).16 To obtain a Commission license, which constitutes “approval to operate” in the District, see D.C.Code § 38-1302(12), an institution must maintain in the District a “facility” from or through which “education is offered or given, or educational credentials are offered or granted.” D.C.Code §§ 38-1302(11), 38-1309. The term “facility” means “a physical structure located in the District, including suitable housing, classrooms, laboratories, and library resources, as required by the nature of the program or the student body.” D.C.Code § 38-1302(14). Taken together, these provisions establish that, pursuant to the 1988 amendment, the Commission may exempt a not-for-profit institution from the section’s name restrictions if the institution meets all applicable licensing requirements, which include the requirement that the institution have educational facilities in the District of Columbia.

It would be very peculiar to require a not-for-profit institution not intending to provide educational courses in the District of Columbia to meet the additional hurdle of establishing educational facilities here— so as to meet licensure requirements — just to qualify for an exemption from the name restrictions of section 29-618. This peculiarity persuades me that, in addition to applying to entities that “confer degrees or certificates” in the District of Columbia, D.C.Code § 29-618, (1) the name prohibition set out in section 29-618 applies in the first instance only to institutions that can qualify for Commission licensure because they have (or propose to have) educational facilities in the District of Columbia (and in that way have undertaken to do business here); and (2) the prohibition does not apply to an institution such as AUD, which has no educational facility in the District and confers no degrees or certificates here. In short, the Council’s 1988 amendment to section 29-618 provides what I think is a compelling reason to reject an interpretation that AUD “does business in the District of Columbia” within the meaning of section 29-618 merely by virtue of retaining an agent to provide *197information to prospective students and to enroll students for educational programs to be provided in Dubai. One can read the statute as an integrated whole — i.e., as though they were enacted together —only by rejecting that interpretation. See U.S. Parole Comm’n v. Noble, 693 A.2d 1084, 1087 (D.C.1997) (recognizing that we must construe actions by an earlier and later legislature on the same subject “as though the different legislatures enacted them together,” reconciling them if possible).

The objection that might be raised that, in relying on the interpretation reflected in the Council’s 1988 amendment to section 29-618,1 am improperly relying on the act of a later, amending legislature (ie. the Council) to interpret the law enacted by an earlier legislature (Congress). My response is that often, “later law is entitled to weight when it comes to the problem of construction.” FHA v. Darlington, Inc., 358 U.S. 84, 90, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958) (reasoning that “the meaning which a later Congress ascribed” pointed to a conclusion about what an earlier Congress intended to be the scope of FHA insurance); see also United States v. Freeman, 44 U.S. 556, 564-65, 3 How. 556, 11 L.Ed. 724 (1845) (“The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them”), and United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181 (1939) (“When there are two acts upon the same subject, the rule is to give effect to both if possible”). I believe we should reject an interpretation of the reach of the original language of section 29-618 that would “compel [the] odd result” 17 I have described above.

B.

There is an additional reason why I cannot join in the majority’s decision to uphold the order directing the Commission to revoke Goldstein’s agent’s license on the basis of section 29-618. My colleagues in the majority assert that the Educational Licensure Commission Act “does not permit the Commission to grant a license to an agent of an institution that itself is not eligible for licensure,” and they further assert that the Commission “abused its discretion by granting Goldstein a license.” I cannot agree with either point.

First, educational institution licensure is available only if an educational institution that is not chartered by the District of Columbia “operates” in the District; if such an institution does not operate in the District of Columbia, it is exempt from licensure, “except that any agent of an institution who operates in the District shall not be exempt....” D.C.Code § 38-1310(a)(6). In other words, contrary to the majority’s reasoning, the ELC statute specifically contemplates that the Commission will “grant a license to an agent of an institution that itself is not eligible for licensure.”

Second, section 38-1310(a)(6) further provides that the Commission “may apply the standards of this chapter to the institution in determining whether to license an agent” (italics added). The “standards of this chapter” include the requirement of D.C.Code § 38-1302(12) that licensure of an educational institution “shall be contingent upon said educational institution’s compliance ... with all other applicable D.C. laws” — including, we may presume, section 29-618. Thus — even if section 29-618 does not apply on its own terms to *198AUD—the Commission may apply section 29-618 to AUD in determining whether to license an agent for AUD. We have recognized repeatedly that “the word ‘may ... is quintessential^ permissive,” and does not create an enforceable mandate. In re J.D.C., 594 A.2d 70, 75 (D.C.1991). Accordingly, section 38 — 1310(a)(6) must be read as conferring upon the Commission discretion to license an agent of an educational institution even if the institution itself could not do business in the District without running afoul of section 29-618. Further, not only is the decision in such a matter (here, whether to apply section 29-618 to AUD in determining whether to license AUD’s agent) committed to the Commission’s discretion, but also nothing in Title 38 Chapter 13, the Educational Licensure Commission statute, establishes a standard for how the Commission should exercise its discretion. “[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’ ” Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see also Reich v. Valley Nat’l Bank, 837 F.Supp. 1259, 1302 (S.D.N.Y. 1993) (explaining that the language of ERISA provision stating that “the Secretary [of Labor] may prescribe such regulations as he finds necessary and appropriate to carry out the provisions of this title” and that “such regulations may define accounting, technical and trade terms used in such provisions” is “quintessentially permissive, such that the Secretary’s action or inaction under this section is not subject to judicial review”) (italics omitted). I cannot discern on what basis the majority has concluded that the Commission “abused its discretion” in not subjecting AUD to the name prohibition screen of section 29-618 in determining to issue a license to agent Goldstein.18

For all the foregoing reasons, I respectfully dissent.

. My colleagues invoke the maxim that “what is forbidden to a person to do himself he cannot do by the agency of another.” Thompson v. Deal, 92 F.2d 478, 486 (D.C.Cir. 1937). I accept that “ancient maxim,” id.., as a venerable one that applies broadly. But, for reasons I shall explain, the maxim is inappo-site in this case.

. According to the affidavit of Lance de Masi, AUD's President, "the Clinton Foundation, established by former President Bill Clinton, has established a study-abroad scholarship program for American students who wish to spend one or more terms” at AUD.

. We have looked to the definitions in Chapter 13 of Title 38 in construing Chapter 600 of Title 29. See Nova Univ. v. Educ. Inst. Licensure Comm’n, 483 A.2d 1172, 1179 (D.C.1984) (looking to the definition of "operate” in D.C.Code § 31-1602 (1981) (now codified as section 38-1302) to interpret D.C.Code § 29-815 (now codified as section 29-615)).

. "Rather than make a fortress out of the dictionary, ... the Court should instead attempt to implement the legislative intent of Congress.” Cnty. of Wash. v. Gunther, 452 U.S. 161, 198 n. 10, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (Rehnquist, X, dissenting).

. But see Int'l Text-Book Co. v. Pigg, 217 U.S. 91, 100, 105, 30 S.Ct. 481, 54 L.Ed. 678 (1910) (holding that Pennsylvania company was doing its correspondence-school business in Kansas where it employed an agent in Kansas who solicited and accepted applications from students and collected and forwarded money to the company, which forwarded instructional papers and apparatus to the students in Kansas); Int’l Harvester Co. v. Kentucky, 234 U.S. 579, 586, 587, 34 S.Ct. 944, 58 L.Ed. 1479 (1914) (agreeing that company was doing business in Kentucky where its agents solicited orders there and "there was a continuous course of shipment of machines into Kentucky”).

. But see Wendell v. Holland Am. Line, 40 App.D.C. 1, 6 (D.C.Cir.1913) (distinguishing Green as a case where the agent’s work was "subject to ratification by the [foreign] company,” and holding that the defendant was doing business in the District so as to subject it to in personam jurisdiction here where it paid commissions to an agent who, from an office in the District, sold tickets for passage on the defendant's steamships and "complete[d], on behalf of defendant, the contract of transportation, no part of said contract remaining open for confirmation or approval by defendant”).

. See also Beitzell v. District of Columbia, 21 App.D.C. 49, 59 (D.C.Cir. 1903) (discussing a 1902 statute that declared that "no person *194shall engage in or carry on any business ... in the District of Columbia, for which a license tax is imposed by the terms of this section, without having first obtained a license to do so" but provided that “a licensed brewer’s solicitor, whose business is confined to soliciting orders for his principal, shall not be liable for the license tax" (emphasis added)).

. See Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (looking to the ordinary meaning of a statutory term "at the time Congress enacted the statute”). Because the relevant point is what the 1929 Congress would likely have understood and meant by the statutory language it chose to set the parameters and reach of the section 29-618 prohibition, it is entirely irrelevant that these early-twentieth-century cases had a narrow focus and have been largely superseded.

. The cases thus provide some reason for accepting appellee District of Columbia’s suggestion that we should construe section 29-618 in pari materia with provisions of the Business Corporation Act ("BCA”), also codified in Title 29 of the D.C.Code (and should interpret the term "undertake to do business in the District of Columbia” to mean "operate" an educational facility in the District of Columbia). The District cites in particular D.C.Code § 29-101.99 (2001), which provides in its subsection (a) that a foreign corporation "shall procure a certificate of authority from the Mayor before its transacts business in the District," but states in subsection (b) that foreign corporations need not obtain certificates of authority “merely ... by reason of the appointment of an agent for the solicitation of business not to be transacted in the District. ..."

.As the first sentence of section 29-618 indicates, District-chartered institutions are subject to the statute’s name restrictions without regard to whether they otherwise "undertake to do business” in the District.

. See also Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396-97, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) (noting that, in Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Court "relied on the legislative history of a much later statute, ... the Bank Service Corporation Act of 1962, in holding that [plaintiffs] satisfied the ‘zone of interest’ test” under an earlier statute, the National Bank Act of 1934).

. The Committee Report explains that the bill (S. 193) that resulted in the 1934 amendment to section 29-618 had passed the Senate in the Seventy-first and Seventy-second Congresses. See H.R.Rep. No. 1040, at 1. Thus, it reflected views held (and, possibly, gleaned) just a few years after the passage of section 29-618 by the Seventieth Congress.

. The legislative history of section 29-618 reveals that, instead, Congress was concerned about institutions, operating with names that suggested United States government affiliation or endorsement, selling worthless correspondence degrees for which little or no academic work was required, to individuals in the United States and abroad. See S.Rep. No. 611, at 23 (Mar. 24, 1928) ("The degrees are sold also by correspondence to persons resident abroad, and this evil had become so great that several foreign governments have made representations to our State Department on the subject. When the degree is sold to some one abroad_to an ignorant person[,] ... this diploma comes with all the insignia of the recognition and authority of the United States Government.”).

.My colleagues in the majority reason that it has "long been plain to the District” that section 29-618 "applied to all educational institutions ... except AUD,” but the examples they cite to support this proposition do nothing to prove the point. The correspondence in the record shows that National University, the subject of a 1984 opinion by the Office of Corporation Counsel, ran afoul of section 29-618 because it proposed to have a “D.C. Center” location. National Graduate University, the subject of a 1991 opinion by the Office of Corporation Counsel, ran into the section 29-618 prohibition because it was incorporated under District of Columbia law and also because it was offering "seminars and continuing education courses” in the District. Similarly, American University of Asia, Inc. was turned away in July 2000 by the Department of Consumer and Regulatory Affairs because it was incorporated under the D.C. Nonprofit Corporations Act. And it appears from Commission correspondence that the American Academy of Traditional Chinese Medicine and the American Institute of Business Studies likewise ran into a section 29-618 roadblock because they were incorporat*196ed under Chapter 6 of Title 29 of the D.C.Code. None of these examples shows that the District previously found "plain” that institutions similarly situated with AUD — i.e., not incorporated under District law, not holding classes in the District, and with no educational facilities here — violate section 29-618 by having "American” or "National” in their names.

. D.C. Council, Committee on Education and Libraries Report on Bill 7-253 at 1 (June 14, 1988).

. The Council gave the Commission this waiver authority in response to a proposal by the National University of San Diego to provide educational courses to members of the District of Columbia National Guard from educational facilities at the D.C. Armory. See D.C. Council, Committee on Government Operations Report on Bill 7-253 at 1 (May 12, 1988); D.C. Council, Committee on Education and Libraries Report on Bill 7-253 at 2.

. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (citation omitted).

. It is circular to reason merely that the Commission abused its discretion by not applying to AUD statutory standards that the statute says the Commission may (or may not) choose to apply to AUD.