Classic Cab v. DFHV

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-AA-44
CLASSIC CAB, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF FOR-HIRE VEHICLES, RESPONDENT.
On Petition for Review of an Order of the
District of Columbia Department of For-Hire Vehicles
(DFHV4-18)
(Argued December 1, 2020 Decided February 4, 2021)
Sean M. Riley for petitioner.
Jacqueline R. Bechara, Assistant Attorney General, for respondent. Karl A.
Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor
General, Carl J. Schifferle, Acting Deputy Solicitor General, and Stacy L. Anderson,
Senior Assistant Attorney General, were on the brief for respondent.
Before GLICKMAN, BECKWITH, and DEAHL, Associate Judges.
GLICKMAN, Associate Judge: Petitioner Classic Cab appeals an order of
respondent District of Columbia Department of For-Hire Vehicles (“DFHV”)
denying its application to renew its certificate to operate as a “taxicab company.”
Due to circumstances that occurred while this litigation was pending, we must
dismiss the appeal because it is moot.
2
I.
In the District of Columbia, a “taxicab company” cannot lawfully operate
without a Certificate of Operating Authority from the Department of For-Hire
Vehicles, which must be renewed annually. 1 Classic Cab had a certificate to operate
as a “taxicab company” in 2017. In December 2017, it applied to renew its certificate
to operate in 2018.
When reviewing the application, DFHV found that Classic Cab had twenty-
eight taxicabs in its fleet but directly owned only fourteen of them. The other
fourteen were independently owned. Accordingly, in January 2018, DFHV issued a
“notice” denying the application, citing Classic Cab’s “fail[ure] to meet the vehicle
ownership requirement of 20 vehicles for a taxicab company as required by D.C.
Official Code § 50-301.03(23) . . . .” Section 50-301.03(23) (2014 Repl.) defines
“taxicab company” as:
any person, partnership, or corporation engaging in the
business of owning and operating a fleet or fleets of
taxicabs having a uniform logo or insignia. A company
must have a minimum of 20 taxicabs having a uniform
logo or insignia and having unified control by ownership
or by the company.
1
31 DCMR §§ 501.1, 501.6 (2021).
3
Classic Cab appealed, arguing, among other things, that it did not need to
directly own at least twenty taxicabs to satisfy the statute’s minimum vehicle
requirement. Instead, because § 50-301.03(23) requires “unified control” over at
least twenty cabs, and because “unified control” may be either “by ownership or by
the company,” Classic Cab argued that it had “unified control . . . by the company”
over the requisite number of cabs.
In October 2018, after a two-day hearing, DFHV’s Office of Hearing
Examiners (“OHE”) disagreed. OHE interpreted “unified control” as requiring
“actual ownership,” and thus affirmed the denial notice. Classic Cab challenged
OHE’s decision and, in January 2019, DFHV’s Interim Director David Do issued a
final agency decision affirming the denial notice. Classic Cab asked DFHV to stay
its final decision pending appeal, but DFHV denied the request.
Classic Cab then petitioned for review of DFHV’s order by this court. In
February 2019, Classic Cab asked us to stay DFHV’s final decision pending the
review, arguing that “DFHV[’s] final order has resulted in lost profits that will cause
Classic Cab to be permanently closed if a stay is not granted.” In March 2019, we
denied the request. The parties then submitted briefs on the merits.
4
II.
The parties’ main disagreement on the merits is a matter of statutory
interpretation: whether a company that controls, but does not own, at least twenty
cabs is a “taxicab company” as defined by § 50-301.03(23), which requires, inter
alia, “engaging in the business of owning and operating a fleet” and having at least
twenty cabs under “unified control by ownership or by the company.” 2
However, as a threshold matter, we must first consider DFHV’s argument that
Classic Cab’s appeal is moot. In January 2018, when DFHV issued its denial notice,
Classic Cab had twenty-eight taxicabs in its fleet. But in February 2019, Classic
Cab submitted an affidavit from Mushtaq Gilani, the owner of Classic Cab, to
support its motion asking this court to stay DFHV’s decision. In the affidavit, Mr.
Gilani represented that “[s]ince October 12, 2018, Classic Cab’s fleet has been
reduced to 7 taxicabs” and the business is “closed” due to DFHV’s order prohibiting
it from doing business. Based on that representation, DFHV argues that Classic Cab
no longer qualifies as a “taxicab company” even under its own interpretation of §
2
The statute defines a “taxicab fleet” to mean “a group of 20 or more taxicabs
having a uniform logo or insignia and having unified control by ownership or by
association.” D.C. Code § 50-301.03(24).
5
50-301.03(23) and, as a result, lacks a legally cognizable interest in the outcome of
this case.
It is “well-settled that, while an appeal is pending, an event that renders relief
impossible or unnecessary also renders that appeal moot.” 3 A case is moot “when
the issues presented are no longer ‘live’ or the parties lack ‘a legally cognizable
interest in the outcome.’” 4 This includes when “the court is asked to decide only
abstract or academic issues.” 5 “The burden of demonstrating that a case is moot falls
heavily upon the party asserting [mootness].” 6
The circumstances here raise a serious question of mootness. According to
Mr. Gilani’s affidavit, DFHV’s order prohibited Classic Cab from doing business
and thus making enough money to keep its fleet afloat. By February 2019, Classic
Cab had laid off all its employees, was on the cusp of being evicted from its only
3
Settlemire v. D.C. Office of Emp. Appeals, 898 A.2d 902, 905 (D.C. 2006)
(quoting Vaughn v. United States, 579 A.2d 170, 175 n.7 (D.C. 1990)).
4
Id. at 904–05 (quoting McClain v. United States, 601 A.2d 80, 81 (D.C.
1992)).
5
Thorn v. Walker, 912 A.2d 1192, 1195 (D.C. 2006).
6
Jackson v. George, 146 A.3d 405, 416 (D.C. 2016) (quoting In re Morris,
482 A.2d 369, 371 (D.C. 1984)).
6
office, and stood to lose its remaining few drivers if DFHV’s order remained in
effect. To prevent its own disintegration, Classic Cab asked this court to stay
DFHV’s order. Without a stay, it represented that it “will no longer exist,” it would
be “permanently closed,” and its “appeal will be rendered moot.” Thus, Classic Cab
was the first to acknowledge, and in no uncertain terms, that its appeal would be
moot if this court did not issue a stay; and the court did not do so.
Since that time, Classic Cab has provided no further information about its
status or its ability to resume business operations. Classic Cab did not discuss its
business situation or the mootness of its petition for review in its initial brief in this
court. DFHV, on the other hand, took Classic Cab up on its earlier assertion and
argued in its brief that the petition now must be dismissed as moot. DFHV argued
that because Classic Cab had been reduced to having (at most) only seven remaining
taxicabs, it could not qualify for a license to operate as a “taxicab company” no
matter how we interpret the requirement of “uniform control” over twenty cabs.
Consequently, DFHV argued, Classic Cab can obtain no relief from this court and
no longer has a legally cognizable interest in the outcome of this case.
Under these circumstances—where Classic Cab itself had averred under oath
that its petition for review would be moot if this court denied a stay, due to its
7
admitted loss of cabs and the closure of its business; and where this court nonetheless
denied a stay and DFHV then sought dismissal on mootness grounds based on
Classic Cab’s own averments—DFHV shouldered its burden of making a prima
facie evidentiary showing of mootness, and Classic Cab was on notice that it had to
respond to DFHV’s argument and rebut its own admissions of mootness to avoid
dismissal of its petition. Any failure to respond would be tantamount to a concession
and could be treated as such. In Thorn v. Walker, for example, the appellant
“effectively conceded that her appeal [wa]s moot” by failing to respond in her reply
brief to the appellees’ mootness argument, despite her belated contention at oral
argument that the case remained justiciable. 7
That is exactly what occurred here. Despite being aware of a critical mootness
issue, Classic Cab never filed a reply brief to address it. Instead, it waited until oral
argument to claim, for the first time, that the case is justiciable. Even at that eleventh
hour, Classic Cab reiterated that it was “closed” and “out of business,” and it
proffered no factual reason to believe its business could be revived. Its counsel
argued only that the case was still live because (1) its cessation of operations was
involuntary and attributable to the challenged enforcement actions of DFHV, and
7
912 A.2d at 1197 n.2.
8
(2) it intended to reopen if it prevailed in its challenge. This was insufficient. While
Classic Cab relied on Thorn to support the former ground, Thorn is inapposite. 8 As
to the latter point, while it is not necessarily implausible to suppose that Classic Cab
could reassemble twenty cabs in a future fleet (replicating what it had done in the
past), counsel’s bare and unsubstantiated statement of Classic Cab’s intent to
resurrect its business contradicted its unretracted affidavit and prior pleading and
was too perfunctory by itself to be evaluated and given credence. 9 In any event, as
in Thorn, the contention, made for the first time at oral argument, came too late,
because Classic Cab “effectively conceded” mootness by failing to respond to
DFHV’s mootness argument in a reply brief.
8
In Thorn, the appellant sought review of a trial court order requiring her to
perform an agreement to sell residential property to the appellees. 912 A.2d at 1193–
94. We held that the appeal was moot because, without seeking a stay of the order
pending appeal, the appellant voluntarily complied with it and sold the property to
the appellees. Id. at 1196–97. Classic Cab contends its appeal is not moot because,
in contrast to the appellant in Thorn, it did seek stay orders and its closure was
involuntary. However, merely “seeking a stay” was not enough to forestall
mootness; Classic Cab needed to obtain a stay to do that. And Thorn said nothing
about whether, or to what extent, involuntary compliance with a government order
can moot a case. Cf. Munsell v. Dep’t of Agric., 509 F.3d 572, 582–83 (D.C. Cir.
2007) (claim that regulated entity’s business closed due to “retaliatory actions taken
by [government] officials” held “insufficient to avoid mootness” of entity’s
challenge to USDA regulations).
9
Cf. Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (“It is not
enough merely to mention a possible argument in the most skeletal way, leaving the
court to do counsel’s work, create the ossature for the argument, and put flesh on its
bones.” (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))).
9
For the reasons stated, we dismiss the petition for review as moot without
reaching the merits of petitioner’s challenge.
So ordered.