Off. of People's Couns. for D.C. v. D.C. Water & Sewer Auth.

313 A.3d 579

OFFICE OF THE PEOPLE’S COUNSEL FOR THE DISTRICT OF COLUMBIA, Petitioner/Cross-Respondent,

v.DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Respondent/Cross-Petitioner.

Nos. 22-AA-0449, 22-AA-0450 & 22-AA-0469

District of Columbia Court of Appeals.

Argued January 11, 2024

Decided April 18, 2024

Petition for Review from the District of Columbia Water & Sewer Authority (Nos. 2021-424908 & 2022-78202), (Janet W. Blassingame, Hearing Officer)

Scott H. Strauss, with whom Sandra Mattavous-Frye, Washington, Elizabeth Beltran, and Amanda C. Drennen, Washington, were on the brief, for petitioner/cross-respondent.

Emil Hirsch, Washington, with whom Barbara K. Mitchell and Emily Green, Washington, were on the brief, for respondent/cross-petitioner.

Before Deahl, Howard, and Shanker, Associate Judges.

Shanker, Associate Judge:

In 2021, District of Columbia residents Matthew Roberts and Timothy Melham brought separate challenges to their water bills from the D.C. Water & Sewer Authority ("D.C. Water"), suspecting that they were being overcharged due to equipment malfunctions. A Hearing Officer denied both of their requests for adjustments to their bills. The Office of the People’s Counsel for the District of Columbia ("OPC") appealed the Hearing Officer’s decisions to this court. We hold that because OPC was not a party to the proceedings before the Hearing Officer, it cannot appeal the Hearing Officer’s decisions. That power remains with the consumers, Messrs. Roberts and Melham. Accordingly, we dismiss the appeals for lack of standing.

I. Background

Messrs. Roberts and Melham disputed their water bills at different times and in different proceedings. When they appealed D.C. Water’s denial of their claims to a Hearing Officer, OPC served as counsel for both of them in two separate administrative hearings before the same Hearing Officer and in the same month. The Hearing Officer affirmed D.C. Water’s denial of the claims in both cases. OPC, acting in its own name, petitioned this court for review of both cases. We ordered the cases consolidated.

A. Mr. Roberts’s Case

Mr. Roberts noticed an uptick in his water* bill tracing back to his July 2020 bill, which covered the month of June 2020. In April 2021, after he ruled out potential innocuous causes, such as his new sprinkler system, he contacted D.C. Water to ask about his situation. He wrote in his email to the agency: "something is off with my water bill and need some help. My bills have drastically increased since last June[,] and we are not doing anything different. Thoughts?" On D.C. Water’s recommendation, Mr. Roberts hired a plumber to inspect his property. The plumber found a broken toilet flapper, which they fixed. Yet the heightened water bills persisted. Mr. Roberts asked the plumber to return and check for leaks, but the plumber found nothing.

Having failed to resolve the issue, Mr. Roberts disputed his May 2021 bill and stated that "[t]he origins of this [billing issue] stalled in June of 2020, so if we had the option to, we would dispute the charges all the way to that point." D.C. Water denied his claim for the May bill and informed him that his dispute of all prior bills was untimely. Mr. Roberts requested an administrative hearing to appeal D.C. Water’s decision. While awaiting the administrative hearing, Mr. Roberts continued to dispute his new bills.

In August 2021, D.C. Water tested Mr. Roberts’s water meter and concluded that it was performing outside the acceptable range, registering at 101.77% (0.27% above the maximum acceptable reading). D.C. Water then adjusted Mr. Roberts’s bills for the months that he had timely disputed them (the months after April 2021), totaling $386.56 in adjustments. D.C. Water did not adjust his remaining bills.

At the administrative hearing, where Mr. Roberts was represented by OPC, the Hearing Officer affirmed D.C. Water’s denial of Mr. Roberts’s request for relief. They explained that, in their view, multiple other factors could have "caused or contributed to" the increase in Mr. Roberts’s bills. OPC petitioned this court for review of the Hearing Officer’s determination. D.C. Water cross-petitioned for review of Mr. Roberts’s case, arguing that the Hearing Office should have dismissed Mr. Roberts’s claims for failure to timely dispute his bills.

B. Mr. Melham’s Case

Mr. Melham lives with his brother, Mark Melham, in a single-family residence. Between February 11, 2021, and February 18, 2021, the water usage at their residence spiked dramatically, reaching 37,000 gallons of water, roughly ten times the normal usage. Before and after February 2021, the Melhams’ water bills ranged from approximately $100 to $120. For the month of February, however, their bill rose to around $780. Water usage receded to normal levels after February 18. D.C. Water issued high-water-usage alerts on February 13 and 19 to infoimi the Melhams of the heightened usage. The customers hired a plumber to inspect the property, and the plumber found no leaks, running toilets, or other problems that would cause such a spike. D.C. Water investigated the meter and found that it was functioning within accepted parameters. Mr. Melham contested his February bill, and D.C. Water declined to adjust it. Mr. Melham, represented by OPC, appealed that decision to the Hearing Officer.

The Hearing Officer affirmed D.C. Water’s denial of Mr. Melham’s claim. They explained that "the weight of the evidence was that the water usage occurred and nothing was wrong with [D.C. Water’s] equipment." Although Mr. Melham had presented testimony from a mechanical engineer suggesting that only a digital error could explain the increased water usage, the Hearing Officer concluded that the "testimony was based upon speculation of a system error having occurred, and [D.C. Water] refuted [the] testimony by testimony and evidence of no error notations on the meter read log, testing of the water meter, and verification of the meter read when the meter was pulled for testing." OPC petitioned this court for review of the Hearing Officer’s decision.

C. Procedural History

Both of OPC’s petitions were captioned "Office of the People’s Counsel For the District of Columbia v. District of Columbia Water and Sewer." The first sentence of both petitions reads: "The Office of the People’s Counsel for the District of Columbia …, the statutory representative of District of Columbia Ratepayers and consumers with respect to water utility matters[ ], respectfully seeks review by the District of Columbia Court of Appeals …." The petitions refer to the respective case number both in the heading and in the body of the petitions, and they identify the cases as "In re: Matthew Roberts" and "In re: Timothy Melham," respectively, which is how the administrative hearings before the Hearing Officer were captioned.

After this court consolidated all three petitions (OPC’s two petitions and D.C. Water’s cross-petition) into a single case, D.C. Water moved to dismiss. It argued that OPC lacked standing to petition for review in both cases. In response, OPC argued that it possessed standing and, in the alternative, requested leave to amend its petitions to name Messrs. Roberts and Melham as the petitioners. A motions panel of this court deferred the issue to the merits panel.

Subsequently, OPC moved to dismiss D.C. Water’s cross-petition. It argued that D.C. Water could not cross-petition for review of the Hearing Officer’s decision because the Hearing Officer constituted a part of D.C. Water, which meant that D.C. Water was not aggrieved by the decision. D.C. Water responded, arguing that it was aggrieved by the Hearing Officer’s decision because it was contrary to the law. The motions panel referred this issue as well to the merits panel.

II. Discussion

OPC primarily argues on appeal that the Hearing Officer’s decisions in both Messrs. Roberts’s and Melham’s cases were not supported by substantial evidence. Before we can reach this issue, however, or any other issues raised by the parties, we must determine whether OPC has standing to petition this court for review in the first place. See Deloatch v. Sessoms-Deloatch, 229 A.3d 486, 488 (D.C. 2020) ("We first determine whether we have jurisdiction to entertain these appeals."). Because we conclude that it does not and we dismiss the case for lack of standing, we do not reach any of the other arguments raised by the parties.

With respect to standing, OPC advances three arguments. First, OPC argues that D.C. Code § 34-2202.05a confers statutory standing upon it to litigate these claims in its own name. Second, OPC submits that it has parens patriae standing. Third, OPC argues that, in the event that this court concludes it lacks standing, the petitions can be read as appeals by the consumers and, in the alternative, renews its request to amend the petitions to substitute in Messrs. Roberts and Melham as petitioners. We address each argument in turn. We hold that OPC lacks standing to petition for review of Messrs. Roberts’s and Melham’s cases. We also conclude that the petitions cannot fairly be interpreted as appeals by the consumers, and we decline OPC’s request to amend the petitions.

A. Legal Standard

[1] Our analysis in this case proceeds de novo. OPC was not a party in the prior proceedings, so its standing was not in question there. Accordingly, there is no "standard or review" for the standing issue because this court is deciding the issue in the first instance. In any event, this court reviews legal questions of standing and statutory interpretation de novo. District of Columbia v. ExxonMobil Oil Corp., 172 A.3d 412, 418 (D.C. 2017); Eaglin v. District, of Columbia, 123 A.3d 953, 955 (D.C. 2015).

[2] Although the question in this case is one of standing, the case does not turn on the typical constitutional standing requirements: injury, traceability, and redressability. See Kalorama Citizens Ass’n v. SunTrust Bank Co., 286 A.3d 525, 532 (D.C. 2...