R.O. v. Department of Youth Rehabilitation Services ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 18-AA-619 and 18-FS-760
R.O., PETITIONER,
v.
DEPARTMENT OF YOUTH REHABILITATION SERVICES, RESPONDENT.
On Petition for Review of an Order of the
District of Columbia Department of Youth Rehabilitation Services
IN RE R.O., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(DEL-1482-16)
(Hon. Robert D. Okun, Trial Judge)
(Argued October 25, 2018 Decided January 17, 2019)
Shilpa S. Satoskar, Public Defender Service, with whom Samia Fam, Amy
Phillips, and Daniel Gonen, Public Defender Service, were on the brief for
petitioner-appellant.
Janice Y. Sheppard, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General,
and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief for
respondent-appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and MCLEESE,
Associate Judges.
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MCLEESE, Associate Judge: R.O. is in the custody of the Department of
Youth Rehabilitation Services (DYRS) because he was found to have committed
delinquent acts. R.O. challenges DYRS’s decision to confine him in a secure
residential facility. We vacate and remand for further proceedings.
I.
Except as noted, the following facts appear to be undisputed. In May 2017,
R.O. was committed to DYRS’s custody until his twentieth birthday, based on
determinations in two separate juvenile proceedings that he was involved in a
robbery and an assault with significant bodily injury. In November 2017, R.O. and
DYRS signed a community-placement agreement (CPA) that placed R.O. in a group
home. In the CPA, R.O. agreed among other things to “[o]bey all laws, ordinances,
rules and regulations of the District of Columbia and all its surrounding
jurisdictions;” “[o]bey all school personnel;” “comply with all conditions of the GPS
agreement” if placed on electronic monitoring; and have no new arrests.
In January 2018, R.O. was arrested for unlawful entry. R.O. was arrested
again in February 2018, this time for armed carjacking. The following day, the
Superior Court determined that R.O. had been arrested for carjacking without
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probable cause. The charges against R.O. in the carjacking case were subsequently
dismissed.
After the carjacking arrest, R.O.’s case manager, Jeffrey Hammond,
recommended that R.O. be placed in a secure residential facility. In his
recommendation, Mr. Hammond stated among other things that R.O. had been
arrested for unlawful entry and carjacking, had been suspended from school, had
missed school, and had failed to comply with the terms of his GPS monitoring
agreement.
DYRS held a hearing to determine whether R.O.’s community placement
should be revoked. The hearing took place before a panel of three DYRS employees.
The panel heard evidence from two witnesses, neither of whom was placed under
oath. DYRS’s sole witness was Mr. Hammond. Mr. Hammond stated that R.O. had
been arrested for carjacking, but Mr. Hammond acknowledged that a Superior Court
judge had subsequently determined that there was no probable cause for the arrest.
Mr. Hammond further acknowledged that, other than a police report alleging that a
carjacking took place, DYRS did not have any evidence that R.O. had actually
committed carjacking.
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Mr. Hammond stated that R.O. had been arrested for unlawful entry. DYRS
also submitted a police report alleging that R.O. had committed unlawful entry. Mr.
Hammond stated that R.O. had acknowledged being aware that he had been barred
from the area at issue. Mr. Hammond further stated that R.O. had been suspended
from school for his involvement in an altercation with another youth. Finally, Mr.
Hammond stated that R.O. had failed to keep his GPS device charged and had missed
time at school. DYRS submitted records supporting Mr. Hammond’s statements on
the latter two points.
R.O. presented evidence from a defense investigator that Mr. Hammond had
told R.O.’s mother that R.O. was the victim in the alleged altercation and had acted
only in self-defense. Mr. Hammond denied making such a statement.
The DYRS panel issued a written decision concluding that R.O. had violated
the CPA and placing R.O. in a secure facility. Specifically, the panel found that
R.O. had violated the CPA in four ways: by being rearrested, by failing to obey
school personnel, by failing to attend school regularly, and by failing to comply with
the terms of his GPS agreement. R.O. appealed to the DYRS Director, who affirmed.
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R.O. sought review in the Superior Court, by filing a “Motion for Appeal.”
The Superior Court ordered DYRS to respond, but DYRS did not do so. Shortly
thereafter, the Superior Court sua sponte dismissed the case, concluding that R.O.
was required to seek review directly in this court rather than in the Superior Court.
R.O. appealed the trial court’s ruling to this court and filed a protective petition for
direct review in this court.
II.
Although the trial court concluded that DYRS’s decision was reviewable
directly in this court, the parties now agree that in fact relief was appropriately sought
in the Superior Court in the first instance. We must independently confirm that we
have jurisdiction. Mathis v. District of Columbia Hous. Auth., 124 A.3d 1089, 1098
(D.C. 2015). We agree with the parties.
This court has jurisdiction to directly review orders of District of Columbia
agencies only in contested cases. Singleton v. District of Columbia Dep’t of Corr.,
596 A.2d 56, 56 (D.C. 1991); D.C. Code § 2-510 (a) (2012 Repl.). With exceptions
not relevant here, a contested case is “a proceeding before the Mayor or any agency
in which the legal rights, duties, or privileges of specific parties are required by any
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law (other than this subchapter), or by constitutional right, to be determined after a
hearing before the Mayor or before an agency.” D.C. Code § 2-502 (8) (2012 Repl.).
More specifically, a contested case is “(1) a controversy involving a trial-type
hearing that is required by the agency’s enabling statute, its implementing
regulations, or constitutional right, and (2) which is an adjudicative, as opposed to a
legislative, determination.” Mathis, 124 A.3d at 1099 (internal quotation marks
omitted).
“Whether an administrative proceeding is a contested case is a question of
law.” Farrell v. District of Columbia Police & Firefighters Ret. & Relief Bd., 151
A.3d 490, 493 (D.C. 2017). Although we have said that we decide that question de
novo, in some cases the answer to the question turns on the interpretation of statutes
that an agency administers or regulations promulgated by an agency. Id. In such
cases, deference to the agency’s interpretation may be warranted. Id. See generally,
e.g., Adgerson v. Police & Firefighters’ Ret. & Relief Bd., 73 A.3d 985, 990 (D.C.
2013) (court will defer to agency’s “informed interpretation of the statute it
administers, . . . as long as that interpretation is reasonable and not plainly wrong or
inconsistent with the statute’s legislative purpose”) (internal quotation marks
omitted); Placido v. District of Columbia Dep’t of Emp’t Servs., 92 A.3d 323, 326
(D.C. 2014) (“[T]he court generally defers to an agency’s interpretation of its own
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regulations unless that interpretation is plainly erroneous or inconsistent with the
regulations.”) (internal quotation marks omitted). We need not decide whether we
owe deference to DYRS’s conclusion that this is not a contested case, because we
agree with that conclusion.
The proceeding before DYRS was “indisputably adjudicative” rather than
legislative, because it determined the rights of a specific individual. Mathis, 124
A.3d at 1099. We conclude, however, that R.O. was not entitled to a trial-type
hearing.
Youths have a number of procedural rights in connection with hearings on
whether to revoke community placement. Those rights include the rights (1) to
notice of the hearing, 29 DCMR § 1207.1 (2018); (2) to review certain evidence in
DYRS’s possession, 29 DCMR § 1207.2-.3; (3) to have counsel present, 29 DCMR
§§ 1207.8, 1210.5 (2018); (4) to have DYRS provide witnesses who are within
DYRS’s control, 29 DCMR § 1210.9-.10; (5) to present witnesses, question
witnesses, and challenge documents, 29 DCMR § 1210.11-.12; (6) to a
preponderance-of-the-evidence standard, 29 DCMR §§ 1207.13, 1210.18; and (7) to
written findings, 29 DCMR § 1211.1 (2018).
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Nevertheless, the applicable regulations omit an essential attribute of a
contested case: there is no requirement that witnesses be placed under oath, and in
fact the witnesses in this case were not placed under oath. 29 DCMR §§ 1207, 1210,
1211; Harrison v. District of Columbia Dep’t of Human Servs., 472 A.2d 405, 406
(D.C. 1984) (per curiam) (“[S]worn testimony is required in contested cases . . . .”);
cf. Am. Univ. in Dubai v. District of Columbia Educ. Licensure Comm’n, 930 A.2d
200, 207 n.18 (D.C. 2007) (in concluding that proceeding was not contested case,
court relies among other things on absence of oath). The applicable regulations also
do not provide, or provide in very limited form, other significant “accoutrements of
a trial-type hearing.” Mathis, 124 A.3d at 1099 (internal quotation marks omitted).
There is no right to make opening or closing statements, 29 DCMR §§ 1207-11;
pretrial discovery is limited, 29 DCMR § 1207.2-.3; and there is no general right to
compulsory process, 29 DCMR §§ 1210.10 (DYRS is responsible only for
presenting witnesses within DYRS’s control), 1210.9 (except for witnesses under
DYRS control, “the panel shall not be responsible in any way for providing
witnesses on behalf of the youth whose case is being heard”). See, e.g., Mathis, 124
A.3d at 1099 (“[A] trial-type hearing is one that incorporates due process protections
such as representation by counsel, cross-examination of adverse witnesses, and fact-
finding by an impartial adjudicator. The right to obtain pre-hearing discovery, and
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to make opening and closing arguments[,] are other accoutrements of a trial-type
hearing.”) (citation, brackets, and internal quotation marks omitted).
We conclude that, considered as a whole, the procedures afforded by the
applicable regulations “do not rise to the level of the full panoply of trial-type
procedural rights needed to meet the requirements of a contested case.” Farrell, 151
A.3d at 495 (internal quotation marks omitted); cf., e.g., Singleton, 596 A.2d at 57(prison-discipline hearing at which prisoner had right to notice, qualified right to call
witnesses, and right to be represented by counsel was not contested case, because of
limits on rights to present evidence, cross-examine witnesses, and obtain access to
information relied upon by agency). We are not aware of any statutory provision
affording youths additional protections in proceedings to revoke community
placement. We need not fully decide the extent to which, if any, the Due Process
Clause might provide youths with some additional procedural rights in such
proceedings. Rather, it suffices for current purposes to note our agreement with the
parties that any such additional protections would not rise to the level of the “full
panoply of trial-type procedural rights” needed for a contested case. Cf. Singleton,
596 A.2d at 57 (“There is no constitutional right to a full trial-type hearing in prison
discipline cases.”).
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Because this was not a contested case, R.O. correctly sought review in the
Superior Court and could not directly seek review in this court. We therefore dismiss
R.O.’s protective petition for review and exercise jurisdiction over R.O.’s appeal.
III.
DYRS contends that R.O.’s sole avenue of review in Superior Court was to
seek a writ of habeas corpus. We disagree.
A party aggrieved by an agency action in a non-contested case ordinarily may
seek review in the Superior Court. In re A.T., 10 A.3d 127, 134 (D.C. 2010). In
general, where the party is challenging agency action taken after a hearing, “[t]he
Superior Court must apply the same level of review that this court uses when
reviewing contested cases.” Id. DYRS does not challenge these general principles,
but rather argues that R.O.’s claim is a challenge to his detention and thus may be
raised only by way of a habeas petition. See D.C. Code § 16-1901 (a) (2012 Repl.)
(person detained in District of Columbia may challenge detention by filing petition
for writ of habeas corpus).
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We can assume without deciding for current purposes that R.O. could
permissibly have filed a habeas petition rather than simply seeking review in the
Superior Court of DYRS’s administrative ruling. We see no basis, however, for a
conclusion that R.O. was required to file a habeas petition. To the contrary, R.O.
was required under well-settled principles to exhaust administrative remedies before
seeking relief in habeas. See Walton v. District of Columbia, 670 A.2d 1346, 1353
(D.C. 1996) (“One of the requirements of habeas corpus jurisdiction is the
exhaustion of administrative remedies.”). Moreover, the applicable regulations
expressly provide for judicial review of DYRS’s decision to revoke community
placement. 29 DCMR § 1211.9 (“The DYRS Director’s final written determination
may be appealed to the appropriate venue for review.”). Given the exhaustion
requirement and the provision for direct judicial review of DYRS’s administrative
ruling, we conclude that R.O. permissibly sought direct judicial review in Superior
Court rather than proceeding by way of habeas.
In arguing that R.O. was required to file a habeas petition, DYRS relies on our
decision in Alston v. United States, where we concluded that a prisoner challenging
the computation of his sentence based on “new circumstances” could not seek relief
under D.C. Code § 23-110 (1989), and instead was required to seek a writ of habeas
corpus. 590 A.2d 511, 514 (D.C. 1991). Alston is readily distinguishable, however,
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because our decision in that case rested on the conclusions that (1) § 23-110 is
limited to challenges to the trial court’s imposition of sentence; and (2) the prisoner’s
challenge was to the manner in which the sentence was being executed. Id. In the
present, by contrast, there is a specific administrative process designed for R.O.’s
claim, and R.O. permissibly sought judicial review of the resulting administrative
determination, as directed by regulation.
IV.
Because it ruled that it lacked jurisdiction to review DYRS’s decision, the trial
court did not review that decision on the merits. Ordinarily, we would remand for
the trial court to conduct that review in the first instance. See, e.g., Newell-Brinkley
v. Walton, 84 A.3d 53, 61 (D.C. 2014) (“We choose not to decide that issue in the
first instance, mindful that we are a court of review, not of first view.”) (brackets,
ellipsis, and internal quotation marks omitted). We nevertheless exercise our
discretion to review DYRS’s ruling in the first instance. In cases such as this “we
review agency decisions on appeal from the Superior Court the same way we review
administrative appeals that come to us directly.” Dupree v. District of Columbia
Dep’t of Corr., 132 A.3d 150, 154 (D.C. 2016). Moreover, this is an expedited
matter involving a claim that a youth is being unlawfully detained. Under the
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circumstances, “we decline to remand” for an initial ruling on the merits by the
Superior Court. In re A.T., 10 A.3d at 135.
Under the District of Columbia Administrative Procedure Act (DC APA), we
review agency decisions to determine whether they are “[a]rbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.” D.C. Code § 2-
510 (a)(3)(A). “We affirm an administrative agency decision when (1) the agency
made findings of fact on each contested material factual issue, (2) substantial
evidence supports each finding, and (3) the agency’s conclusions of law flow
rationally from its findings of fact.” Georgetown Univ. v. District of Columbia Dep’t
of Emp’t Servs., 971 A.2d 909, 915 (D.C. 2009). As previously noted, the same
standards apply in non-contested cases such as this. In re A.T., 10 A.3d at 134-35.
In revoking R.O.’s community placement, DYRS concluded that R.O.
violated the CPA by (1) being arrested for carjacking, (2) failing to obey school
personnel, (3) being arrested for unlawful entry, (4) failing to attend school
regularly, and (5) failing to comply with the terms of his GPS agreement. R.O.
argues on appeal that it was unconstitutional for DYRS to revoke his community
placement based on the carjacking arrest, given the judicial finding that there was
no probable cause to believe that R.O. was involved in the carjacking. DYRS does
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not dispute R.O.’s argument on this point, thereby conceding the issue for purposes
of this appeal. Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993) (by failing to contest
issue in court of appeals, party “effectively conced[ed] it”).
DYRS does argue that this court could appropriately affirm DYRS’s decision
notwithstanding DYRS’s conceded constitutional error in relying upon the
unsupported carjacking arrest. We conclude to the contrary. “Our case law
establishes that remand is required if substantial doubt exists whether the agency
would have made the same ultimate finding with the error removed.” Johnson v.
District of Columbia Dep’t of Health, 163 A.3d 746, 759 (D.C. 2017) (ellipsis and
internal quotation marks omitted). “Unless we can be sure that the [agency] would
have based its ruling on a lesser number of bases for revocation than it found to exist,
we cannot affirm.” Id. (brackets and internal quotation marks omitted). We have
no grounds for assurance that DYRS’s ruling would have been the same in the
absence of consideration of the unsupported carjacking arrest. Both the initial panel
decision and the Director’s decision expressly relied on the carjacking arrest in
explaining the decision to revoke R.O.’s community placement. In neither decision
is there any explicit suggestion that the decision would have been the same in the
absence of the carjacking arrest, and in our view neither decision reasonably implies
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such a conclusion. We therefore vacate the decision revoking R.O.’s community
placement.
At oral argument, DYRS contended that this court lacks the authority to vacate
DYRS’s order even if that order rests on an unconstitutional consideration.
According to DYRS, vacating its order would cause R.O. to be restored to a
community placement, and this court lacks authority to make placement decisions
for youths committed to DYRS custody. We disagree with DYRS’s reasoning for
several reasons. First, although courts may not “specify the treatment provider or
facility” for a youth in DYRS custody, they retain the authority to “modify a
dispositional order” if a youth is not at the appropriate “level of placement.” D.C.
Code § 16-2323 (h) (2012 Repl.). Second, in contested cases this court has explicit
statutory authority under the DC APA to “set aside” agency action that is “[c]ontrary
to constitutional right.” D.C. Code § 2-510 (a)(3)(B). As we have already noted, in
non-contested cases such as this the courts apply the same standard of review as
applies under the DC APA. In re A.T., 10 A.3d at 134-35. It follows that the courts
have the authority to set aside a DYRS decision that rests on a concededly
unconstitutional consideration. Third, by vacating DYRS’s order in his case, we do
not direct R.O. to be placed with any particular treatment provider or in a particular
facility. Rather, we remand this matter to the Superior Court, with instructions to
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remand the matter forthwith to DYRS. See, e.g., Newell-Brinkley, 84 A.3d at 60
(remanding case to Superior Court with instruction to remand to agency). In turn,
DYRS must forthwith either provide R.O. with an appropriate community placement
or issue a new order stating proper grounds for revocation of community placement.
Cf., e.g., Kleinbart v. United States, 604 A.2d 861, 872 (D.C. 1992) (vacating
pretrial-detention order and remanding for trial court to hold immediate detention
hearing at which court considered all relevant factors).
We address two remaining issues that are relevant to potential proceedings on
remand. First, R.O. argues that the record lacks substantial evidence to support
DYRS’s conclusion that R.O. violated the CPA provision requiring him to obey
school personnel. We agree. There was evidence that R.O. was suspended for being
involved in an altercation at school. R.O. presented evidence that he was the victim
in the altercation. Involvement in an altercation, whether as an instigator or as a
victim, does not by itself imply, much less establish, a failure to obey school
personnel. DYRS thus erred in basing its revocation decision in part on a conclusion
that R.O. disobeyed school personnel.
Finally, R.O. argues that the three remaining grounds for the revocation order
-- the unlawful-entry arrest, the school absences, and the GPS-monitoring violations
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-- are insufficient to justify revocation. We decline to decide that issue at this
juncture. DYRS did not attempt to justify detention based on those three grounds
alone, and we thus do not have the benefit of DYRS’s analysis of the issue. In the
absence of such an analysis, we are not prepared at this time to foreclose the
possibility that revocation could reasonably be justified on the three remaining
grounds for the revocation order. If DYRS were to enter a new revocation order on
those (or any other) grounds, R.O. would be free to seek expedited judicial review
of that that order.
For the foregoing reasons, we dismiss the petition for review; vacate DYRS’s
decision; and remand the case to the Superior Court with instructions to remand the
case to DYRS, for DYRS to forthwith either provide R.O. with an appropriate
community placement or issue a new order stating proper grounds for revocation of
community placement.
So ordered.