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            DISTRICT OF COLUMBIA COURT OF APPEALS

                         Nos. 13-AA-233 & 13-AA-389

    DISTRICT OF COLUMBIA DEPARTMENT OF THE ENVIRONMENT, PETITIONER,

                                      V.

               C & M FRUIT & PRODUCE CO., INC., RESPONDENT.

                       On Petition for Review of a Decision
          of the District of Columbia Office of Administrative Hearings
                               (DDOE-A500031-12)

              (Hon. Audrey J. Jenkins, Administrative Law Judge)

(Argued October 16, 2014                             Decided August 20, 2015)

      Carl J. Schifferle, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General for the District of Columbia at the time the briefs were filed,
Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General,
were on the brief, for petitioner.

      David A. Greenbaum, with whom Craig M. Schwartz was on the brief, for
respondent.

      Before BECKWITH and MCLEESE, Associate Judges, and KING, Senior Judge.

      BECKWITH, Associate Judge: The District of Columbia Department of the

Environment (DDOE) petitions for review of an order finding respondent C & M

Fruit and Produce Co., Inc. (C&M) not liable for a civil infraction. DDOE argues
                                           2


that the Administrative Law Judge (ALJ) erred by “sua sponte amend[ing] C&M‟s

answer from „admit with explanation‟ to „deny‟” and by finding C&M not liable

without giving DDOE an opportunity to present its case. We conclude that the

pertinent regulation and statute governing administrative review of civil

infractions—specifically, 1 DCMR § 2804.11 (2014) and D.C. Code § 2-1802.03

(c) (2012 Repl.)—not only permitted but required the ALJ to find C&M not liable

despite its plea of “admit with explanation” where the ALJ determined that the

evidence did not establish an infraction and where the record shows that DDOE

received notice and an opportunity to present its case. We affirm the ALJ‟s order.


                                      I.


      On August 9, 2012, the D.C. Department of the Environment cited C & M

Fruit & Produce Co. for idling a motor vehicle engine longer than three minutes in

violation of 20 DCMR § 900.1 (2010).1 The vehicle was a refrigerated truck



      1
         “No person owning, operating, or having control over the engine of a
gasoline or diesel powered motor vehicle on public or private space, including the
engine of a public vehicles [sic] for hire, buses with a seating capacity of twelve
(12) or more persons, and school buses or any vehicle transporting students, shall
allow that engine to idle for more than three (3) minutes while the motor vehicle is
parked, stopped, or standing, including for the purpose of operating air
conditioning equipment in those vehicles, except as follows:

      (a) To operate private passenger vehicles;
                                                                     (continued…)
                                          3


designed to transport food in compliance with federal regulations. C&M uses two

types of refrigerated trucks: one in which the engine must be running for the

refrigeration unit to run and one in which the refrigeration unit runs independently

of the truck. This particular truck had an independent refrigeration unit, so the

engine did not need to idle to keep the refrigerator running.


      C&M answered the infraction with a plea of “deny,”2 stating in writing that

“it was not the enging [sic] that was running, it was the refrigeration unit that was

running. . . . It is very understandable that someone would mistake the sound of

the refrigeration unit running as the truck engine. However the truck was not

idling[;] it was turned off.”     C&M‟s chief executive officer Michael Davis

represented his company at a hearing before an ALJ. Although C&M had already



(…continued)
     (b) To operate power takeoff equipment, including dumping, cement mixers,
     refrigeration systems, content delivery, winches, or shredders; or

      (c) To idle the engine for no more than five (5) minutes to operate heating
      equipment when the ambient air temperature is thirty-two degrees
      Fahrenheit (32°F) or below.”
20 DCMR § 900.1 (2010).
      2
          “In answer to a notice of infraction a respondent may: (1) Admit the
infraction; (2) Admit the infraction with an explanation which the hearing
examiner may take into account in the imposition of a sanction for the infraction;
or (3) Deny commission of the infraction.” D.C. Code § 2-1802.02 (a) (2012
Repl.).
                                           4


pled “deny,” the ALJ began by explaining the three plea options to Mr. Davis and

asking him whether he would like to change his plea. Mr. Davis responded that he

would change his plea to “admit with an explanation, I guess, that option.” Mr.

Davis testified that he was not present when DDOE issued its citation and had “no

way of knowing” if the truck was running, but that the driver “ha[d] sworn” that he

removed the keys from the ignition and that the company had a policy requiring

drivers to take the keys with them when leaving that type of truck. He also said it

is difficult to tell from noise alone “when the truck is running and when it‟s just the

[refrigeration] unit running.”    But Mr. Davis reiterated that he did not know

whether the truck was idling, and closed by asking the ALJ “for a little bit of

leniency and understanding.”


      Neil Williams, the inspector who issued the citation, represented DDOE at

the hearing. He testified that he had written “hundreds of citations, undeniably,

hundreds of citations where [he had] to observe the [refrigeration unit] to

distinguish whether it‟s the [refrigerator] or the engine” that was running. In this

case, he said, he observed the engine running without a driver in the truck. Mr.

Williams then “commend[ed] the CEO for . . . admitting with an explanation, since

he was not there to observe [it],” and he “le[ft] it in the discretion of the Court[] to

make the final decision.”
                                          5


      The ALJ issued a written decision on December 10, 2012. Because of

C&M‟s admit-with-explanation plea, the ALJ ruled that C&M was liable, but she

suspended the fine because she found, as a factual matter, that “Respondent was

not idling the engine, but was running the truck‟s refrigeration unit” and that

“[t]his constitutes a complete defense to the charge.”


      DDOE moved for reconsideration, arguing that the ALJ‟s “finding of fact

that Respondent was not idling its engine [was] not supported by the evidence” and

was inconsistent with its ruling that C&M was liable. The ALJ then amended her

initial order to state that C&M was not liable, and instead of relying on a factual

finding that the truck was not running, she concluded that “[w]hether Respondent

was idling the truck engine or refrigeration unit is of no consequence as

Respondent‟s truck was exactly the type of vehicle allowed by 20 DCMR

900.1(b),” which, among other things, provides an exception to the no-idling rule

for vehicles “operat[ing] power takeoff equipment, including . . . refrigeration

systems.” 20 DCMR § 900.1 (b). The judge further stated that the government

“did not dispute that Respondent operated a refrigerated truck despite having an

opportunity to do so. As such, a finding that Respondent‟s truck was refrigerated,

thus falling under 20 DCMR 900.1(b), is well founded based on the evidence on

record.”
                                         6


      DDOE again moved for reconsideration, arguing that the ALJ‟s

interpretation of the regulation was erroneous. DDOE argued that the § 900.1 (b)

exception only applies to refrigeration units that “cannot operate unless the engine

is running,” and said its interpretation of the regulation was entitled to deference.

DDOE argued that, given the lack of dispute that C&M‟s truck had an

independently run refrigeration unit, the ALJ erred as a matter of law by finding

that C&M‟s truck fell within the § 900.1 (b) exception.           The ALJ denied

reconsideration, avoiding DDOE‟s statutory interpretation argument and reiterating

her initial factual finding that “the refrigeration unit was running while the engine

to the truck was not.” DDOE filed a petition for review in this court.


                                       II.


      DDOE asks us to reverse the ALJ‟s ruling and remand for a new hearing

because the ALJ “erroneously disregarded C&M‟s plea of admit with explanation

and made a factual determination that it was not liable without providing DDOE an

opportunity to prove its case.” DDOE first claims that an admit-with-explanation

plea “remov[es] liability as an issue and limit[s] the hearing to the issue of the

appropriate sanction.” DDOE points to D.C. Code § 2-1802.02 (a) (Repl. 2012),

which states: “In answer to a notice of infraction a respondent may: . . . (2) Admit

the infraction with an explanation which the hearing examiner may take into
                                           7


account in the imposition of a sanction for the infraction . . . .” DDOE argues that

because the statute explicitly allows the ALJ to use an explanation to determine

sanctions, it must not allow the ALJ to use an explanation for any other purpose,

such as to negate liability—an application of the canon expressio unius est exclusio

alterius.   DDOE also notes that the ALJ told Mr. Davis that an admit-with-

explanation plea “means that you acknowledge that you committed the violation,

but you have some explanation that you‟d like me to consider in deciding to reduce

or suspend the fine all together.”


      DDOE‟s argument is undercut, however, by the Office of Administrative

Hearings Rules of Practice and Procedure, which expressly provide that “[i]n an

Admit with Explanation case, the Administrative Law Judge shall dismiss the

Notice if he or she determines that the Respondent did not commit or is not

responsible for the violation charged.”        1 DCMR § 2804.11 (2014).3            This


      3
          DDOE argues that we cannot consider this regulation because the ALJ
“did not rely on this regulation in this case . . . and thus it is not a proper basis for
affirmance.” See, e.g., Newell-Brinkley v. Walton, 84 A.3d 53, 59 (D.C. 2014)
(“This court generally cannot uphold an agency decision on grounds other than
those actually relied upon by the agency.”) (citation and internal quotation marks
omitted). But just as a judge need not explicitly cite the provisions of law that
authorize her to perform basic judicial tasks—for example, to hold a hearing, make
factual findings, or issue an order—the ALJ here did not have to cite 1 DCMR
§ 2804.11 to exercise the authority it grants her to dismiss the notice of infraction.
The rule to which DDOE refers prevents this court from affirming an ALJ decision
based on arguments or rationales that the ALJ did not adopt. See Point Park Univ.
                                                                           (continued…)
                                           8


regulation requires the ALJ to find a respondent not liable when its explanation

negates its liability. DDOE argues that the regulation cannot conflict with a valid

statute, see Thompson v. District of Columbia, 978 A.2d 1240, 1243-44 (D.C.

2009); Texas v. EPA, 726 F.3d 180, 195 (D.C. Cir. 2013), but we will uphold an

agency regulation when the statute is ambiguous and the regulation is reasonable.

See Barnhart v. Walton, 535 U.S. 212, 224 (2002).           As noted above, this

interpretation of D.C. Code § 2-1802.02 (a)(2) relies on the expressio unius canon,

which is “an especially feeble helper in an administrative setting, where [the

legislature] is presumed to have left to reasonable agency discretion questions that

it has not directly resolved.” National Ass’n of Mfrs. v. SEC, 748 F.3d 359, 367

(D.C. Cir. 2014), overruled in part on other grounds by American Meat Inst. v.

USDA, 760 F. 3d 18 (D.C. Cir. 2014) (quoting Cheney R. Co. v. ICC, 902 F.2d 66,

69 (D.C. Cir. 1990)). We see no direct conflict between the statute and regulation

that requires us to deem the latter invalid.


      Moreover, D.C. Code § 2-1802.03 provides that “[t]he Mayor shall bear the

burden of establishing an infraction by a preponderance of the evidence” and


(…continued)
v. NLRB, 457 F.3d 42, 50 (D.C. Cir. 2006) (“Nor can our Court fill in critical gaps
in the Board‟s reasoning. We can only look to the Board‟s stated rationale. We
cannot sustain its actions on some other basis the Board did not mention.”). That is
not the case here.
                                         9


“[w]here the Mayor has not established the infraction, the administrative law judge

or attorney examiner shall enter an order dismissing the notice of infraction.” D.C.

Code § 2-1802.03 (a), (c) (2012 Repl.). Like 1 DCMR § 2804.11, this provision

gives the ALJ the authority—indeed the duty—to dismiss an infraction when the

evidence shows that the respondent is not liable. As this statute is in tension with

DDOE‟s narrow interpretation of D.C. Code § 2-1802.02 (a), we decline to read

D.C. Code § 2-1802.02 (a) to limit the use of an explanation solely to determining

the appropriate sanction, and we conclude that the ALJ properly dismissed the

infraction, notwithstanding C&M‟s admit plea, where C&M‟s explanation

convinced her that C&M was not liable for the infraction.4


                                       III.


      DDOE also argues that even if the ALJ could use C&M‟s explanation to

negate liability, the ALJ‟s order must be reversed because DDOE was not on

      4
           DDOE‟s reliance on Williams v. District of Columbia Dep’t of Pub.
Works, 65 A.3d 100 (D.C. 2013), is misplaced. The ALJ in Williams “concluded
that petitioner‟s admissions satisfactorily established that he had committed the
violations,” and thus we held that the petitioner was “precluded from contesting”
liability any further. Id. at 104, 106. But here, the ALJ did not find that the
admission “satisfactorily established” C&M‟s liability because other evidence she
credited suggested that the truck was not idling. Nothing we said in Williams—a
case that did not address 1 DCMR § 2804.11—precludes the ALJ from finding that
an admission with explanation is insufficient to establish liability in circumstances
where the explanation itself negates liability.
                                          10


notice that liability was a contested issue and it did not have the opportunity to

prove that the truck engine was running. We agree that because an admission is

generally sufficient to prove liability, the government may be unaware that it must

present evidence of liability to meet its burden when the respondent submits an

admit-with-explanation plea. Therefore, the ALJ could find that C&M was not

liable only if the government was on notice that C&M‟s explanation might negate

liability and it was provided with an opportunity to “present evidence and

argument with respect” to liability.5 See D.C. Code § 2-509 (a) (2012 Repl.) (made

applicable to civil infractions by § 2-1802.03 (a)).


      On the facts of this case, however, we conclude that DDOE had sufficient

notice that liability was disputed despite C&M‟s admit-with-explanation plea and

that DDOE was given sufficient opportunity to present its case to the ALJ. At the

outset, DDOE knew before the hearing that liability was contested and which basic

facts were in dispute because C&M submitted a denial letter explaining that “it was

not the enging [sic] that was running, it was the refrigeration unit that was

running.”   The ALJ‟s hearing scheduling order stated that C&M denied the


      5
         Otherwise, the government points out, it would essentially be required to
treat every admit-with-explanation plea as a denial and be prepared to present a
complete case, undermining the purpose of the plea system to streamline the
disposition of civil infractions.
                                        11


violation and instructed that both parties shall “be prepared to proceed with an

evidentiary hearing on the merits and shall have available to them at that time all

witnesses and evidence they may offer.” DDOE inspector Neil Williams therefore

appeared at the ALJ hearing prepared to establish C&M‟s liability—that is, that it

was the truck engine and not the refrigerator that was running—to the best of his

ability.


       In addition, even though C&M changed its plea to admit with explanation at

the beginning of the hearing, Mr. Davis‟s testimony did not concede liability as a

factual matter. Mr. Davis admitted with explanation solely because he lacked

firsthand knowledge whether the truck was running, stating that he had “no case to

deny or prove that it wasn‟t running.” Yet Mr. Davis also indicated that to the best

of his knowledge the truck was not running. He testified that C&M‟s “policy is

drivers take the keys with them, when they leave the truck, unless it‟s one of the

trucks”—unlike the truck here—in which the engine powers the refrigeration unit.6

“When [C&M] got the infraction,” Mr. Davis testified, “the driver ha[d] sworn that

he had the keys out of the truck,” adding that “these units are very large and loud


       6
          This testimony echoed C&M‟s statement in its denial letter that “[i]t is
company policy to turn the truck engine off and remove the keys, but to leave the
[refrigeration] unit running to maintain the tempreture [sic] required by the Health
Department to keep the perisable [sic] contents of the truck fresh.”
                                          12


and it‟s hard to tell[] when the truck is running and when it‟s just the [refrigeration]

unit running.” So while Mr. Davis may have admitted the infraction as a legal

matter, he did not admit that the truck engine was running as a factual matter.

Instead, he presented circumstantial evidence to the contrary that put DDOE on

notice that liability had not been conclusively established.


      Finally, Mr. Williams‟s testimony for DDOE demonstrated that he knew the

ALJ might credit Mr. Davis‟s circumstantial evidence that the engine was not

running. Mr. Williams began by rebutting Mr. Davis‟s assertion that it is difficult

to distinguish between the refrigeration unit and the engine with testimony about

his extensive experience doing exactly that when issuing “hundreds” of citations.

Mr. Williams then attempted to discredit the hearsay statement that the keys were

not in the ignition, testifying that “I did observe the front of the truck. . . . [T]he

engine was running on the truck, and there was no driver in the truck. I looked for

the driver around in the store. I presumed that he did go into the farmer‟s market

area.” And while Mr. Williams “commend[ed] the CEO for . . . admitting with an

explanation, since he was not there to observe [it],” he closed by stating, “I leave it

in the discretion of the Court[] to make the final decision.”


      Considering Mr. Williams‟s attempts to rebut C&M‟s explanation, those

parting words indicate that Mr. Williams understood that the ALJ would be

determining C&M‟s liability notwithstanding the admit-with-explanation plea.
                                         13


Contrary to DDOE‟s assertion on appeal that “Mr. Williams did not present a full

case,” Mr. Williams essentially stated that he had nothing more to say—he rested

his case and left a final decision to the ALJ.       DDOE claims that given the

opportunity, Mr. Williams would have “detail[ed] his specific observations and his

own substantial experience as an inspector in enforcing the anti-idling law,” but as

noted in the preceding paragraph, Mr. Williams did exactly that. For all these

reasons, DDOE had sufficient notice and opportunity to “present evidence and

argument” regarding C&M‟s liability for the infraction. D.C. Code § 2-509 (a).7


                                   IV.


      In sum, when C&M offered an admit-with-explanation plea but the

explanation persuaded the ALJ that the government had not established an

infraction, the ALJ was required under 1 DCMR § 2804.11 to find C&M not liable,

as long as DDOE had notice and an opportunity to present evidence regarding

liability. On this record, where the DDOE investigator was prepared to and did

present his full case despite C&M‟s decision to change its plea from deny to admit


      7
         DDOE further argues that Mr. Williams was entitled to cross-examine Mr.
Davis. We agree, but the record contains no indication that Mr. Williams was
denied this opportunity. Mr. Williams chose to rebut the driver‟s hearsay
statement with his own testimony, but he did not seek to cross-examine Mr. Davis
before he rested his case and “le[ft] it in the discretion of the Court[] to make the
final decision.”
                                          14


with explanation, and where the investigator‟s statements indicated that he

expected the ALJ to determine liability based on the hearing testimony, DDOE had

sufficient notice and opportunity to prove its case.

      The ALJ‟s order is hereby


                                                       Affirmed.
