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District of Columbia Housing Authority v. District of Columbia Office of Human Rights8/25/2005
istrative body not only has erred but has erred against objection made at the time appropriate under its practice." United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). One principal reason for the rule that procedural objections must be timely made is to give the tribunal and opposing parties the opportunity to correct or controvert the purported defect when it is still possible to do so. District of Columbia Gen. Hosp. v. District of Columbia Office of Employee Appeals, 548 A.2d 70, 74 (D.C. 1988). Another main reason is that "judicial review might be hindered by the failure of the litigant to allow the agency to make a factual record, exercise its discretion, or apply its expertise." R.R. Yardmasters of Am. v. Harris, 232 U.S. App. D.C. 171, 177, 721 F.2d 1332, 1338 (1983).
These reasons for applying the waiver rule are pertinent here. For one thing, it is at least possible that, if DCHA had made a timely request to DHR to dismiss Brummell's complaint on account of his failure to consult with an EEO Counselor, Brummell could have cured the problem by engaging in such consultation in a timely fashion. Furthermore, although the requirement to consult with an EEO Counselor before filing a discrimination complaint is mandatory, that does not necessarily mean that DHR had no discretion to excuse Brummell's noncompliance for equitable reasons that Brummell might have been able to furnish on the record. Such discretion exists under analogous federal law and regulations. See Bayer v. United States Dep't of the Treasury, 294 U.S. App. D.C. 44, 46-47, 956 F.2d 330, 332-33 (1992) (holding that failure to consult an EEO Counselor within thirty days of alleged discriminatory act before filing employment discrimination complaint under Title VII of the Civil Rights Act of 1964 "is not jurisdictional" and can be excused for equitable reasons, such as employee's lack of knowledge of the requirement) (citing cases). We look to federal cases interpreting Title VII and its implementing regulations for guidance in our decisions under the D.C. Human Rights Act. Blackman v. Visiting Nurses Ass'n, 694 A.2d 865, 869 (D.C. 1997). The issue under District of Columbia law is an open one, and in construing the regulation a reviewing court doubtless would benefit from receiving DHR's views on the matter on a full factual record. Cathedral Park Condo. Comm. v. District of Columbia Zoning Comm'n, 743 A.2d 1231, 1239 (D.C. 2000).
It is true, as DCHA argues, that a discretionary exception to the waiver rule exists where it is claimed that the agency "had no power to act at all." R.R. Yardmasters, 232 U.S. App. D.C. at 177, 721 F.2d at 1338 (exercising discretion to entertain, though ultimately rejecting, a newly-raised legal claim challenging the National Mediation Board's power to take any action while there were two vacancies on the three-member Board). This "absence of power to act" exception is a narrow one, however. See, e.g., Jones & Artis, 549 A.2d at 324 (holding that failure to make timely objection to lack of quorum for agency action amounted to a waiver of the objection on appeal). "While the language of Yardmasters might be construed to allow almost any defect in the jurisdiction of an agency to be raised for the first time on review, our later decisions construing Yardmasters have limited the exception to challenges that concern the very composition or 'constitution' of an agency." Mitchell v. Christopher, 302 U.S. App. D.C. 109, 112-13, 996 F.2d 375, 378-79 (1993) (rejecting as untimely a challenge to Grievance Board's jurisdiction to hear terminated employee's complaint and to recommend that employee be promoted retroactively). Put differently, this exception to waiver applies only where the c
Page 1 2 3 4 5 6 7 8 9 10 11 12 District of Columbia Employee Leasing Services
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