If the DC Office of Human Rights dismisses my private-sector discrimination complaint for no probable cause, can I appeal to the DC Commission on Human Rights for review?

Plain-English summary

DC's anti-discrimination process has two stages. The Office of Human Rights (OHR) investigates a complaint and decides whether there is "probable cause" to believe discrimination happened. If there is, the case moves to the Commission on Human Rights for adjudication and remedies. If OHR finds no probable cause, the case is dismissed.

For decades, an old set of procedural rules (Part 4 of Title 8 D.C.R.R., dating to 1971) said a complainant could appeal that no-probable-cause dismissal to the Chairman of the Commission for review by three commissioners. The Commission still claimed this review power into the 1980s. A complainant whose case had been dismissed by OHR pointed to those old rules and asked the Commission to review.

Acting Corporation Counsel Inez Smith Reid concluded that the old review rule had been silently repealed. Here is the chain. In 1971, the same body (the Human Relations Commission) made probable-cause determinations and could delegate the work to its own Executive Director, with internal appeal to a Commission panel. In 1973, the Council restructured everything by enacting Title 34 D.C.R.R., the Human Rights Law. The 1973 law took the probable-cause power away from the Commission and gave it to the Office of Human Rights, with no provision for Commission review. The 1977 Human Rights Act reenacted the same scheme. So the foundation that supported Commission review (its own underlying probable-cause authority) was gone. The Commission cannot keep an appellate role over a power it no longer holds.

The result: a complainant whose case is dismissed by OHR for no probable cause has no internal appeal at the Commission. Their remedy is to file a suit in Superior Court for equitable relief asking the court to reinstate the administrative complaint. Or they can bring a parallel federal claim under Title VII.

What this means for you

If your DC discrimination complaint was just dismissed by OHR for no probable cause

This opinion is the rule that controls your next move. Two key paths:

1. Sue for reinstatement of the administrative complaint in Superior Court. Under Capitol Hill Restoration Society v. Moore, 410 A.2d 184 (D.C. 1979), you can ask the court for equitable relief reviewing the propriety of the agency's dismissal. The Superior Court's review parallels what the DC Court of Appeals would do in a contested case (Kegley v. District of Columbia, 440 A.2d 1013 (D.C. 1982)). If the court finds OHR's no-probable-cause determination was wrong, it can order OHR to reinstate the complaint and proceed.
2. File a Title VII charge with EEOC. A no-probable-cause finding by OHR does not preclude EEOC from investigating. Kremer v. Chemical Construction Corp., 102 S. Ct. 1883 (1982), notes that res judicata applies only after no-probable-cause determinations are upheld by appellate courts. Your federal claim survives the OHR dismissal.

You cannot ask the Commission on Human Rights to review the dismissal. That door is closed.

If you are a DC discrimination attorney

Three doctrinal pieces to keep close. First, the 1971 Title 8 rules' Part 4 (review by Chairman of dismissals) is unenforceable; it is treated as silently repealed by Title 34. Second, Brown v. Capitol Hill Club still bars abandoning an OHR complaint mid-stream and refiling under D.C. Code § 1-2556 (election of remedies), so plan your forum at the start. Third, equitable review in Superior Court is the avenue for challenging OHR's dismissal, and the Capitol Hill Restoration Society / Kegley framework controls the standard of review.

If you are an OHR investigator

Your no-probable-cause determinations are not subject to Commission appeal. They are subject to judicial review in Superior Court for procedural and substantive propriety. Document your investigation findings carefully and apply consistent probable-cause analysis. A poorly reasoned dismissal is the kind of agency action a Superior Court can disturb.

If you are an employer who has just received a no-probable-cause dismissal in your favor

The dismissal is not the end of your exposure. The complainant can sue in Superior Court to set it aside, and they can file Title VII charges in parallel. As a defense matter, watch for those parallel filings. Settlement may still make sense even after a favorable OHR finding.

If you are a Commission on Human Rights member

The Commission's role is adjudicating cases that OHR has found probable cause to credit. You no longer have an appellate function over OHR dismissals. The 1971 Part 4 review rules are inoperative.

Common questions

Q: Why did the Commission lose its review power in 1973?
A: Because the 1973 Council moved the probable-cause determination away from the Commission entirely and assigned it to the Office of Human Rights. The Commission's earlier appellate role was a delegation back to itself; once the power was reassigned outside the Commission, the appellate hook was gone. The Council did not write a new appellate role.

Q: Can the Council bring back Commission review?
A: Yes, by amending the Human Rights Act to expressly provide for Commission review. As of 1983, the Council had not done so. As of 2026, OHR no-probable-cause dismissals still go to court, not to the Commission, for review.

Q: What standard of review does Superior Court apply?
A: Under Kegley, the Superior Court's review of a no-contested-case agency action is similar to the DC Court of Appeals' review of agency action in a contested case. The court does not retry the facts; it reviews for procedural and substantive propriety. If the agency applied the wrong standard, ignored evidence, or violated procedural rules, the court can vacate.

Q: Will EEOC give weight to OHR's no-probable-cause finding?
A: EEOC ordinarily defers to state and local fair employment practices agencies under the workshare arrangement, but a no-probable-cause finding does not bind EEOC's independent investigation. Kremer notes that res judicata only attaches after appellate court review of the determination.

Q: Is there a deadline to file in Superior Court?
A: There is no statutory deadline specific to this kind of equitable review. The general DC catch-all statute of limitations under D.C. Code § 12-301(8) is three years. As a practical matter, file promptly, both to preserve evidence and to support equitable relief.

Q: Does this opinion apply to public-sector discrimination cases too?
A: No. Public-sector cases (DC employees vs. DC agencies) follow a different track under Mayor's Order 75-230. This opinion addresses private-sector cases only.

Background and statutory framework

DC has prohibited employment, housing, and public accommodations discrimination since the 1960s. The original framework was Articles 45 and 47 of the Police Regulations, enforced by the Commissioners' Council on Human Relations and its successor, the Human Relations Commission. Article 45 (housing) gave the Commission no adjudicative power; it could only refer cases to the Corporation Counsel for civil or criminal action. Article 47 (employment) authorized the Commission to hear and decide complaints; § 9(a) of Article 47 said the Commission would "hold a hearing to determine whether or not an unlawful employment practice has been committed."

In January 1971, the Human Relations Commission issued procedural rules (17 D.C. Reg. 464). Rule 3(b) delegated probable-cause determinations to the Commission's Executive Director (the screening function). Rule 4 gave a complainant whose case was dismissed by the Director the right to ask the Commission Chairman for review by a three-member panel. The Commission was, in effect, delegating part of its own probable-cause authority to staff while reserving final review for itself.

In July 1971, Mayor Walter Washington issued Commissioner's Order No. 71-224, which restructured the bureaucracy. It created an Office of Human Rights (the new staff office) and a Commission on Human Rights (the new adjudicative body). Order 71-224 did not address probable-cause assignments. An amended set of procedural rules in October 1971 carried over the prior Rule 3 / Rule 4 structure, with the Office Director now making the initial probable-cause determination and the Commission reviewing dismissals.

The major change came in 1973. The Council enacted Title 34 D.C.R.R., the Human Rights Law. Section 31.2 expressly conferred probable-cause authority on the Office of Human Rights, with mandatory dismissal upon a no-probable-cause finding (§ 31.2(b)-(c)). Title 34 contained no provision for Commission review of those dismissals, and the legislative history did not contemplate any.

The 1977 Human Rights Act (D.C. Law 2-38) reenacted the same procedural scheme, codifying it at D.C. Code § 1-2545. Again, no Commission review of OHR dismissals.

The Acting Corporation Counsel applied a foundational administrative-law principle. An administrative agency has only the powers expressly conferred or necessarily implied by the statute under which it operates (Kimberly-Clark Corp. v. Public Service Com'n., 110 Wis. 2d 455 (1983); Mendota Apts. v. District of Columbia Commission on Human Rights, 315 A.2d 832 (D.C. 1974)). The Commission's pre-1973 review authority depended on its own underlying probable-cause power. When the Council reassigned probable-cause power to OHR in 1973 without writing a new appellate hook, the Commission's review power fell with it. Part 4 of Title 8 D.C.R.R. (the 1971 review rules) became inconsistent with the Title 34 / Human Rights Act framework, and a regulatory rule cannot survive when inconsistent with a statute.

The Acting Corporation Counsel also addressed the Commission's policy argument that denying internal review left complainants worse off than respondents (since respondents could appeal adverse Commission decisions). The answer was that complainants had a different forum: equitable review in Superior Court under Capitol Hill Restoration Society Inc. v. Moore, with appeal to the DC Court of Appeals. Brown v. Capitol Hill Club (interpreting D.C. Code § 6-2296, now § 1-2556) blocks abandoning an OHR complaint to refile a fresh Superior Court action, but it does not bar a Superior Court suit to set aside the OHR dismissal and reinstate the administrative case. The remedy structure is therefore complete, just routed through the courts rather than the Commission.

Citations and references

Statutes and regulations:
- Title 8 D.C.R.R., Part 4 (1971 procedural rules)
- Title 34 D.C.R.R. § 31.2 (1973 Human Rights Law)
- Articles 45, 47 of the DC Police Regulations
- D.C. Law 2-38 (Human Rights Act of 1977)
- D.C. Code §§ 1-2501 et seq., 1-2545, 1-2556

Cases:
- Kimberly-Clark Corp. v. Public Service Com'n., 110 Wis. 2d 455, 329 N.W.2d 143 (1983), agency limited to powers expressly conferred or necessarily implied
- Mendota Apts. v. District of Columbia Commission on Human Rights, 315 A.2d 832 (D.C. 1974), Commission has no power to award compensatory damages absent express authorization
- Capitol Hill Restoration Society Inc. v. Moore, 410 A.2d 184 (D.C. 1979), equitable review of agency action in Superior Court
- Kegley v. District of Columbia, 440 A.2d 1013 (D.C. 1982), review standard parallels Court of Appeals review
- Brown v. Capitol Hill Club, 425 A.2d 1309 (D.C. 1981), election-of-remedies bar on refiling
- Kremer v. Chemical Construction Corp., 102 S. Ct. 1883 (1982), res judicata only after appellate review

License

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Source

• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Private-Sector-Complaints.pdf

Original opinion text

(1)nnrrntttrnt nf tqr 1ilt.6trtrt 1:lf orI:ll~~b.ta
OF.FICE OF THE CORPORATION CO"UNSe.:.··..
DISTRICT BUILDING

WASHINGTON. O. C.

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IN REPLY REFER TO:

LCD:LiO:LNG:pm:ps
(83-187)

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.

October 4, 1983

OPINION OF THE CORPORATION COUNSEL
SUBJECT: Whether the Commission on Human
Rights has the authority to review
no-probable-cause determiriations made
by the Office of Human Rights in cases
involving private sector complaints of
discrimination.

Ms. Maudine R. Cooper
Acting Director
Office of Ruman Rights
421 8th Street, Northwest
Washington, D.C. 20004
Dear Ms. Cooper:
This is ip reply to the March 10, 1983 request of Anita Bellamy Shelton
for an opinion regarding whether the Commission on Human Rights has the authority
to review no-probable-cause determinations made by the Office of Ruman Rights
in cases involving private sector complaints of discrimination. Based on three
provisions contained in Part 4 of Title 8, DCRR ("Rules Governing Procedure
and Practice in Relation to Complaints Alleging Unlawful Discriminatory Practices"
(hereinafter "Rules"», the Commission apparently asserts such review authority.
Ms. Shelton took the position that subsequent legislative actions of the
D.C. Council, in particular the promulgation in 1973 of Title 34 DCRR and the
enactment in 1977 of the Ruman Rights Act, D.C. Law 2-38, D.C. Code 1981,
§1-2501 et ~, had the effect of superseding those provisions of the Rules
giving the Commission the power to review no-probable-cause determinations
made by the Office of Ruman Rights.
After reviewing the pertinent documents, I am of the opinion that
the Commission on Ruman Rights has no authority to review no-probable-cause
decisions made by the Office of Human Rights.

-2-

If such review authority ts deEmed qesirable by the· MaYOJE: or the Council of the
District of Columbia, it mlst be expi:e~sly. conferred on .the Ccmnission by an .
appropriate amendment to the Htnnan Rights Act .·of 1977. The. 'reasons for: my .opinion .
are as follows:
.
..
.
.

.

As noted above, the basis for the Carmission' s claim of authority
to review no-probab1e-cause determinations made by the Office of Human Rights

is Part 4 of Title 8, DCRR.

Part 4 provides:

Rule
4.1
4.2
4.3

Dismissal of Complaint
Who May Apply and Form
Review by Chairman

Rule 4.1

Dismissal of Complaint.

If the Director shall determine either on the face of the
complaint or after investigation that a complaint should be
dismissed, an order shall be issued dismissing the cx:xrplaint.
Said order shall be served on the complainant and shall advise
him of his right to apply to the Chairman for review of such
dismissal.
Rule 4.2

Who May Apply and Form.

The complainant may apply to the Chairman of the COmmission
for a review of the dismissal of his complaint. Such application
mlst be in writing, state specifically the grounds upon which it is
based, and mlst be filed in duplicate at the Office of Human Rights
within 30 days after service of the order of dismissal.
Rule 4.3

Review by Chairman.

Upon such applicati9fl, the Chairman and two trembers of
the Ccrcmission shall review the dismissal of the carplaint, and
accordingly, shall enter an order affirming, reversing or modifying
the prior determination or remanding the matter for further
investigation and action. A copy of such order shall be served
~pon·the party or parties.
The genesis of Part 4 is the set of rules adopted by the District
of Columbia Carrnission on Human Relations on January 14, 1971. See 17 D.C.
Reg. 464 (Jan. 25, 1971). A.t that time the "Office of HLUnan Rights" did
not exist. There was only one D.C. Government administrative body charged
with administe~ing the regulations prohibiting discrimination in housing
and errp10yment in the District of Columbia (Articles 45 and 47 of the
Police Regulations). That body was then called the HLUnan Relations
Commission, and was the successor body to the Commissioners' Council
on HLUnan Relations which is referred to in Articles 45 and 47 of the Police
Regulations. under Article 45 relating to housing discrimination, the Council
and. its successor had no authority to hear and decide the merits of a
complaint if conciliation of a complaint was unsuccessful. The Council

-3could only refer the complaint to the "Corporation Cou""tlse~,:for such legal.
action, civil or criminal, as, in the judgment of. t~e" 'Cot:poratioti Counsel
is available and appropriate." Article 45, §8(~>';:.:'~ "

..

With regard to Article 47 pr'ohibiting' -d.iscr"i1!J.inat·10n in' e~pl(;ytllent,
however, the Council and its successor had the authority to hea!fand decide
the merits of a complaint. (Enforcement of the Council's decisions was
assigned to the Corporation Counsel.) See Article 47, §9(a)-(d). Secti~n
9(a) of Article 47 states that if the Council is unable to conciliate
. through confefence and persuasion "a complaint which it believes may im olve
~ violation of this Article," then the Council shall "hold a hearing to
determine whether or not an unlawful employment practice has been committed."
This language is the closest reference to a probable cause determination
that exists in Article 47. Thus, under Article 47, it could be said '~hat
·if "probable cause" was to be determined, it was to be determined by the
Council and its successor, the Commission on Human Relations.
.
The administration of the Council on Human Relations, and of its
successor, the Commission on Ruman Relations, was entrusted to an Executive
Director. See Organization Order No. 125, D. C. Code 1967, Title 1
Admin. Appendix p. 161. This Organization Order does not assign to the
Executive Director any role in making probable cause determinations with
regard to discrimination complaints filed with the Council.
The Commission on Human Relations' January 14, 1971 rules of procedure must be analyzed against this structural and functional background.
Rules 3 and 4 of these Rules provided in pertinent part (17 D.C. Reg. 470471 (Jan. 25, 1971»:
Rule 3.

INVESTIGATION, PROBABLE CAUSE & CONCILIATION:

a.

Investigation: After the filing of a complaint,
the Commission shall make prompt investigation of
the allegations of the complaint. The respondent
shall be informed of the nature of the charges
against him and a copy of the complaint shall be
made available to him. Any party has the right
to request that the Commission obtain additional
information. The Commission shall, on request of
a party, share all data acquired during the course
of an investigation.

b.

Probable Cause: If after investigation, the Executive
Director of the Commission shall find that there is
probable cause to credit the complaint, written notice
of such finding shall be sent to all parties.

c.

Dismissal: If the Executive Director of the Commission
shall determine either on the face of the complaint or

-4after fnvestigation that a complaint sQauld be dismissed,
an order shall be 'issued dismissing the' canplaint. Said
order shall be served on, the carplainant'· 'and shall advise
him of his right to apply to the Chr:'l:ma.t1 for .review 'of .
such dismissal in accordance with ';;:.,: ~ 4.;'

*
Rule 4.

*

*

*

REVIEW OF DISMISSAlS:

a.

Who may Apply and Fonn: The canplainant may apply to the
Chairman of the Commission for 'a review of he dismissal
of his canplaint. Such application ITU.lst be in writing,
state specifically the groonds upon which it is based, and
must be filed in duplicate in the office of the Ccmnission
within 30 days after service of the order of dismissal.

b.

Review by Chairman: Upon such application, the Chairman
and two members of the C~ssion shall review the dismissal of the complaint, and accordingly, shall enter an
order affinning, reversing or modifying the prior detennination or remanding the matter for further investigation
and action. A copy of such order shall be served upon the
party or parties. [Einphasis added.]

,
Thus, in prarulgating Rule 3b, the Canmission delegated to its
Executive Director the function of screening the frivolous from the nonfrivolous complaints throogh the mechanism of making a detennination,
after appropriate investigation, of whether "there is probable \~use to credit
the canplaint." Not willing to delegate final authority in this matter, however,
the Ccmni.ssion, in Rule 4, provided that a canplainant whose complaint was
dismissed by the Executive Director for lack of probable cause, could, upon
request, have that decision reviewed by three members of the Ccmnission itself,
one of whom would be the C h a i r m a n . '
Six nonths after these Rules were adopted, Mayor Washington on July
8, 1971, issued Carmissioner's Order No. 71-224. This order replaced
.
organization Order No. 125 and es~ablished an Office of Htnnan R.ights and a
ccmnission on Human Rights. Order No. 71-224, however, did not deal with the
matter of assigning responsibility for making probable cause detenninations with
respect to discrimination complaints. On October 18, 1971, an amended set of
rules of procedure applicable to both the Office and the commission was approved.
'~ith appropriate changes in tenninology, this amended set of rules continued
the previously adopted procedure under the new structure established by Mayor's
Order No. 71-224. Namely, the Director of the Office of Htnnan Rights made the
initial detenniQation of whether there is probable cause to credit a complaint
(Rule 3.2), and the Ccmnission on Htnnan Rights could, upon the request of a
complainant, review the propriety of such detennination (Rule 4).
In 1973 the D.C. Council ena,cted into law Title 34 r.x::RR, known as
the "Human Rights Law." In Title 34, the Council specifically conferred upon

-5the Office of Human Rights the authority to "determip.& ~hether t.here is .
probable cause to believe that the respondent has e.ngage·d or is engaging in
an unlawful discriminatory practice." If the QU·fc..e determines that
"probable cause does not exist the D~rector f(;)-rfhw1:th. 'shall issue 4nd
cause to be served on the appropriate' parties ~·. ..an o'rder di slllis sing' the.
allegations of the complaint." 34 DCRR §§ 31. 2(b) and (c). 'S:fn1ficantly
there is nothing in Title 34 DCRR itself or in its legislative nistory
which indicates that the Council intended that the Commission have the
power to review no-probab1e-cause determinations made by the Office of
'Human Rights.(; The same procedural scheme was enacted into ·~aw in the
Human Rights Act of 1977. See D. C. Code 1981, §l-2545. As in Title ;,4,
there is no 1angauge in the Human Rights Act of 1977 which could be construed as conferring upon the Commission the power to review no-prob~ble. cause determinations made by the Office of Human Rights.
"
Generally an administrative agency "has only those powers
which are expressly conferred or which are necessarily implied
by the statutes under which it operates." Kimberly-Clark Corp. v. Public
Service Com'n., 110 Wis. 2d 455, 329 N.W. 2d 143, 146 (1983); Durant v.
Motor Vehicle Accident Indem. Corp., 20 A.D. 2d 242, 246 N.Y.S. 2d 548, 554
(1964); Mendota Apts. v. District of Columbia Commission on Human Rights,
D. C. App., 315 A. 2d 832 (1974)(Commission has no power to award compensatory
damages absent express authorization by the Commissioners); see generally
1 Am. Jur~ 2d Administrative Law, §72 (1962). The power to review no-probablecause determinations of the Office of Human Rights has not been "expressly
conferred" on the Commission on Human Rights. Nor is such power "necesssarily
implied" by either Commissioner's Order No. 71-224 or the Human Rights Act
of 1977.
The Commission's argument that it has the power to review no-probablecause determinations made by the Office of Human Rights is set forth in the
first full paragraph of page 3 of the Chairperson's letter to the Corporation
Counsel, dated July 25, 1983, as follows:
It is the Commission's position that the Council's intent
in adopting Title 34 was to expand the subject matter
jurisdiction of the District's exist~ng anti-discrimination
apparatus, and to lend it the force of its legislative
authority, without subtracting from the procedural rights
or expectations available to parties under the prior
regulations. The inference of the Commission's continued
authority to review Office dismissals is necessary in
order to carry out the Council's stated intent "to secure
an end in the District of Columbia, to discrimination
for any reason other than individual merit • • • "
(Sec. 1-2501) Denial of the inference would result in an
administrative scheme that would not only discriminate
against complainants in favor of respondents, but would

..

-6discriminate againstc9mplainan~s on the. basis of their
inability to pursue priv$te causes ·ot·act10~. This is
true because dismissals. of. complaints fil~d in' the Superipr
Court of the District of Columbia .can 'bE' appealed to 'the
D.C. Court of Appeals. (Rule 41, Super ~.':' Coti~t Rules of
Civil Procedure)
This argument runs counter to the general rule relating to the determination
of the scope of the powers of an administrative agency, noted above. As Stated,
I do not believe that such review power, although arguably desirable as a
mat'ter of policy (cf. Kremer v. Chemical Construction Corporation, 102 S. Ct.·
1883, 1888 (1982), detailing the procedure followed by New York), is necessarily
implied by the express powers conferred upon the Human Rights Commission by
Mayor's Order No. 71-224 and the Ruman Rights Act of 1977. I also do not
agree with the suggestion that to decide that the Commission has no review
power is also to decide that a no-probable-cause determination by the Office
of Human Rights is the end of the local line 1/ for the complainant.
A
complainant whose complaint has been dismissed by the Office of Human Rights
on the basis of a no-probable-cause determination might challenge the
propriety of that determination by a suit for appropriate equitable relief
in the Superior Court. See Capitol Hill Restoration Society Inc. v. Moore,
D.C. App., 410 A. 2d 184, 188 (1979). And, of course, the ruling of the
Superior Court would be appealable to the D.C. Court of Appeals. Id.
See also Kegley v. District of Columbia, D.C. App., 440 A.2d 1013-,-1018,
(1982)(Superior Court's review of propriety of agency action in a noncontested case proceeding is similar to Court of Appeals' review of agency
action in a contested case proceeding).
The decision in Brown v. Capitol Hill Club, D.C. App.; 425 A. 2d 1309
(1981), is not inconsistent with this position. In that case, Mr. Brown sought
to abandon his administrative remedy after his complaint had been dismissed on
no-probable-cause grounds and bring an action for discrimination in the
Superior Court "as i f no [administrative] complaint h.ad been filed.· o
425 A.2d at 1311. The court ruled that under D.C. Code §6-2296 (now codified
as §1-2556) Mr. Brown was not entitled to do this. There is nothing in the
Human Rights Act, however, which prohibits a suit in Superior Court challenging,
on procedural or substantive grounds, the propriety of a no-probable-cause
determination by the Office of Human Rights, when the purpose of such suit is
the reinstatement of the administrative complaint.
In sum, until the promulgation of Title 34 DCRR by the D.C. Council
in 1973, it was proper for the Commission to review no-probab1e-cause
deter~~nations made by the Office of Human Rights because prior to the
promulgation of Title 34, the power to make such determinations in the

}j

The complainant may also, of course, have a possible Title VII claim.
Such a claim would not be precluded by a finding of no probable cause
by the Office of Human Rights. See Kremer v. Chemical Construction Corp.,
102 S. Ct. 1883, 1891, N.7 (1982)(res judicata preclusion applied where
no-probable-cause determination was upheld by a New York appellate
court) •

-7first instance resided in the Commission itself by virtu~""ot the language.
of §9(a) of Article 47 of the Police Regulations. ~in~e"this was so, the
Commdssion had the authority to delegate that po~er"·to·its own Executive
Director and later to the Director o~. the Off~ce.of~H~~an Rights a~~ ~o
reserve to itself the authority to review deci"s~ons'~~de }jy its delegee ..
By the passage of Title 34 in 1973, however, the D. C. Covncil jemoved ,
from the Commission the power to make probable cause determinat1ons, and.
assigned that function to the Office of Human Rights.
Since the Commission's review authority derived fro~ its autho:ity
·under Article 47 to make probable cause determinations in the first ins~ance,
the removal of that latter authority by the Council in 1973, coupled with
the absence of any assignment of review authority to the Commission, indicates
·that the Council intended only the Office of Ruman Rights to be invol~ed in
the probable cause determination process. Stated otherwise, Part 4 of
Title 8 DCRR seems inconsistent with the procedural structure established by
the Council in Title 34 DCRR and the Ruman Rights Act of 1977. Since Title 8
D.CRR is merely a set of agency-promulgated procedural regulations, any inconsistency between such regulations and the provisions of the Human Rights Act
of 1977 must be resolved in favor of the latter 2/
Accordingly, it is my opinion that absent express authorization by the
Council of the District of Columbia, the Commission on Ruman Rights has no
authority "to review no-probab1e-cause determinations made by the Office of
Ruman Rights with respect to private sector complaints of discrimination
within the purview of the Ruman Rights Act of 1977. 1/
Sincerely,

h1c,;~j
Inez Smith Reid
Acting Corporation Counsel, D. C.

2/

It is interesting to note that in 1978, J. Leon Williams, then Commission on
Human Rights Chairman, in a decision in _the case of Barbara L. ·Valentine
v. National Education Association, et aI, No. 6-PE-438, arrived at a
similar conclusion. What appears to be the ~ost legible copy available
of this decision is appended hereto as Appendix ··A".

3/

I am aware of the reference to Rule 4.2 of the Rules by the D. C. Court
of Appeals in Brown v. Capitol Hill Club, D. C. App., 425 A. 2d 1309,
1311·(1981). That case, however, does not purport to decide the
question presented here.