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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.
                                         2


      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
                                        3

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.
                                          4

      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.
                                            5

      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
                                           6

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
                                         7

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).
                                          8

      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
                                           9

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.”).
                                         10

      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).
                                        11

      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,
                                            12

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
                                         13

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
                                          14

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
                                         15

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
                                         16

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
                                        17

-- 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.
