FERREN, Associate Judge, concurring in part and dissenting in part:

I agree with Part III of the majority opinion that this court has jurisdiction to decide the general legal validity of 4 DCMR § 716.9, see ante at n. 3, by virtue of our "jurisdiction to determine whether we have jurisdiction." Ante at 757-758. I also concur — halfway — with the majority's Part IV in that I agree, generally speaking, that § 716.9 incorporates a valid approach. I respectfully dissent, however, from definitively upholding § 716.9 at this time. I believe we cannot properly make that decision without a remand to ascertain the criteria and procedures the Office of Human Rights (OHR) uses in applying § 716.9, in order to be sure that OHR has not built into § 716.9 an arbitrary and capricious regime. Finally, I also respectfully dissent from the majority's Part V. I believe this court has jurisdiction to determine jurisdiction over the validity of § 716.9 as applied to the facts of petitioner's case, just as this court has jurisdiction to determine jurisdiction over the general legal validity of that regulation. Contrary to the majority's approach, D.C. Code § 1-1502(8)(A) does not come into play here.

I.

In exercising jurisdiction to determine whether this court has jurisdiction over this appeal, we must determine (1) whether petitioner is entitled as a matter of law to a contested case hearing on her complaint, based on probable cause already found, or (2) whether petitioner is not entitled to such a hearing because OHR has lawfully adopted — and has lawfully applied — an agency regulation, 4 DCMR § 716.9, to dismiss the complaint without such a hearing. In order to make these determinations, we confront a series of questions:

1. Under the District of Columbia Human Rights Act of 1977, D.C. Code §§ 1-2501 to -2557 (1992), may a claimant, after a finding of probable cause on her complaint, unilaterally refuse to participate in conciliation, or at least refuse to accept every make whole offer, and thus force OHR to hold a contested case hearing on her complaint? I agree with the majority that the answer is "no."

2. If a claimant cannot unilaterally frustrate conciliation, does the statute permit OHR to adopt a regulation allowing the Director to dismiss a complaint for "administrative convenience," D.C. Code § 1-2556(a), after probable cause has been found, when a claimant causes conciliation efforts to fail by refusing to accept an offer the Director reasonably believes will make the claimant whole? Again, I agree with the majority; the answer, generally speaking, is "yes."

3. If the statute authorizes such a regulation, may OHR then (a) adopt the regulation — in this case, § 716.9 — without spelling out criteria for applying it or defining terms such as "make whole," and (b) dismiss a complaint without at least an informal hearing and explicit findings as to why the offer would make the claimant whole?

4. If the answer to question 3, as the majority says, is "yes" — if § 716.9, as a general proposition, is legally valid despite the absence of specified criteria and required findings — then we confront the following question: even if § 716.9 is a legally valid regulation and thus appears on its face to preclude a contested case hearing, has OHR nonetheless applied the regulation to petitioner unlawfully, with the result that she is entitled to a contested case hearing at OHR on her discrimination complaint, just as she would be if the regulation were invalid per se? This question initially presents a jurisdictional inquiry. The majority answers that D.C. Code § 1-1502(8)(A) bars this court's jurisdiction after we uphold the general validity of § 716.9. See ante Part V. I disagree. See infra Part III.

5. If, on the other hand, the answer to question 3 is "no" — if OHR cannot lawfully adopt § 716.9 without specified criteria and required findings, subject to this court's review — then the following question is presented: does the absence of specified criteria for evaluating both the make whole offer and the claimant's response to it, coupled with the absence of required findings, effectively nullify OHR's dismissal under § 716.9 and thus entitle petitioner to a contested case hearing at OHR? This question, while not raising a jurisdictional issue, presents questions about regulatory criteria and procedures that bear, initially, on the general legal validity of § 716.9 itself, not merely on the ability of a reviewing court to apply § 716.9 in this and other instances. The majority concludes that such criteria and procedures are not required. See ante Part IV. I believe that they are. See infra Part II.

Because questions about the general legal validity of § 716.9 must be resolved before questions are answered about the application of that rule, I will turn, first, in Part II to question 5 and thus defer to Part III the critical jurisdictional inquiry posed by question 4.

II.

The Human Rights Act entitles a claimant to a contested case hearing on her discrimination complaint if there is a finding of probable cause and conciliation efforts have failed. See D.C. Code § 1-2550 (1992). I believe that OHR's § 716.9 may — or may not — be a lawful implementation of the statutory provision permitting dismissal for "administrative convenience," D.C. Code § 1-2556(a), when the claimant herself causes failure of conciliation. I agree with the majority that, generally speaking, § 716.9 incorporates a valid approach. See ante Part IV. Unlike the majority, however, I believe § 716.9 can be valid only if based on criteria and procedures that make clear OHR is functioning in a principled, consistent way that affords careful inquiry into the facts and the claimant's right to be heard on a proposed dismissal.

More specifically, I conclude that the Human Rights Act itself, given its purposes and structure, implies that a § 716.9 approach cannot be applied so casually or flexibly that standards are not discernible. Once OHR has found probable cause to believe that a complaint of discrimination is sustainable, OHR cannot dismiss that complaint willy-nilly for administrative convenience (the only possible ground for dismissal here). Rather, OHR can dismiss only under reasonable criteria spelling out what a "make whole" offer is and explaining how an actual offer shall be evaluated. Only then will OHR be able to demonstrate that a claimant has caused conciliation efforts to fail by unreasonably rejecting a "make whole" offer that conforms to the prescribed criteria. Furthermore, the claimant must be afforded an opportunity to respond to the charges and evidence on which OHR proposes to rely in dismissing the complaint.

I agree with the majority that this process itself does not require a contested case (trial type) hearing; that would be counterproductive when conciliation is the concern. But, at the very least, any claimant who faces dismissal of a discrimination complaint after a finding of probable cause is entitled to know the criteria, and to have a chance to reply, before OHR pulls the plug for unreasonable failure to cooperate with a conciliation effort that seeks to compromise the claimant's rights.

In this fundamental respect I respectfully disagree with the majority, who liken OHR's dismissal to the exercise of prosecutorial discretion. Ante at 760. "Discretion signifies choice[, i.e., ] the ability to choose from a range of permissible conclusions." Johnson v. United States, 398 A.2d 354, 361 (D.C. 1979). More specifically:

The decision-maker can rely largely upon his [or her] own judgment in choosing among the alternatives. Although the act of choosing will be guided by various legal and other considerations, the decision-maker, and not the law, decides.

Id. The right to make a discretionary decision grants the decision-maker considerable leeway, therefore, and is reviewable, if at all, only for "abuse of discretion." See id. at 363-67.

As I understand the Human Rights Act, the time for exercising prosecutorial discretion to dismiss an OHR complaint must precede a finding of probable cause. The idea that OHR could dismiss a discrimination proceeding as a matter of "discretion" after a finding of probable cause is antithetical to the statute and to § 716.9. That regulation, see ante at 756, requires findings as to whether a "respondent offers a remedy that would place complainant in the same position that complainant would have been in had the alleged discriminatory practice not occurred," ante at 756, as well as findings as to whether the "complainant refuses to accept such offer." Ante at 756. This language requires the application of objective standards for judging the offer and refusal to accept. The OHR Director is not given authority to apply that language in pending cases, as a matter of discretion, in the way that OHR, for example, may apply a discretionary policy not to exercise jurisdiction over a complaint when it finds an insufficient nexus between a respondent and the District. See Honig v. District of Columbia Office of Human Rights, 388 A.2d 887 (D.C. 1978). Rather, the Director must be held to objective criteria in deciding whether to withdraw a complainant's statutory right to a contested case hearing by dismissing the complaint pursuant to § 716.9.

As I see it, therefore, once the agency has accepted a claimant's election to go the administrative route — i.e., once OHR has taken jurisdiction of the complaint and found probable cause — OHR has no statutory discretion whatsoever to dismiss for administrative convenience unless the claimant herself, according to an objective appraisal, unreasonably fails to cooperate with the process, including conciliation. Consequently, unless OHR is held to criteria and procedures for judging the complainant's response to conciliation (with its "make whole" offers), the objective statutory process for resolving complaints of discrimination can easily be reduced — arbitrarily and capriciously — to a subjective, discretionary resolution of a complaint that otherwise, based on probable cause, was headed by statutory command to a contested case hearing. I believe that the majority's analysis fosters such an arbitrary, subjective result — an unlawful result.

Accordingly, I conclude that at a minimum we should remand this case for OHR to articulate its criteria and procedures under § 716.9 so that we can determine whether OHR truly made a rational and fair decision on whether conciliation failed solely because of petitioner's fault. Included in such procedures must be the right of a claimant to respond to a proposed dismissal, as well as required findings that clearly explain OHR's reasoning and give the reviewing court a clear basis for understanding OHR's action.

Inherent in this analysis are the following propositions: (A) if, after remand, the case were returned to this court and we were to decide that the regulation fell short, OHR's dismissal of petitioner's complaint would not be appropriate, the claimant would be entitled to a contested case hearing at OHR, and we would thus take jurisdiction, "reverse," and remand again for the required hearing. (B) If, however, after remand, we were to conclude that the § 716.9 criteria and procedures are valid, we would inquire into whether, in fact, OHR followed those procedures and properly applied the criteria. (1) If we answered "yes," petitioner would not be entitled to a contested case hearing and we would "dismiss" for lack of jurisdiction. (2) If, however, we answered "no," concluding that OHR did not properly apply § 716.9 to the facts, we would hold that petitioner was entitled to a contested case hearing based on previously found probable cause. We would then take jurisdiction, "reverse," and remand again for the required trial type hearing.

Even if the majority were to agree with me that a remand to discover OHR's § 716.9 criteria and procedures is required before we can rule on the general legal validity of that regulation, the majority has rejected the proposition I advance in subparagraph (B) immediately above: that this court has jurisdiction to determine whether we have jurisdiction over § 716.9 as applied. See ante Part V. I therefore turn to that remaining jurisdictional issue.

III. A.

I understand the majority's position to be as follows:

1. OHR promulgated a regulation, § 716.9, which it has used to deny petitioner a contested case (trial type) hearing to which she otherwise would have been entitled, and to dismiss her complaint, after finding probable cause.

2. There is a serious question whether § 716.9 is lawful under the Human Rights Act, either in general or as applied to petitioner.

3. This court has jurisdiction under the District of Columbia Administrative Procedure Act (DCAPA), D.C. Code §§ 1-1510 to -1542 (1992), to review agency action not only when a contested case hearing has taken place but also when a party has made an effort to obtain such a hearing which the agency erroneously denied.

4. This court, therefore, will have jurisdiction over this case if, but only if, (1) § 716.9 is inherently unlawful, i.e., in contravention of the Human Rights Act, or (2) § 716.9 — while not inherently unlawful — is unlawfully applied to petitioner. In either case, this court will have jurisdiction to grant relief because petitioner is entitled to a contested case hearing at OHR, rather than subject to dismissal of her complaint.

5. Because every court has jurisdiction to determine its own jurisdiction, this court has jurisdiction to determine whether § 716.9 is inherently unlawful and, for that reason, whether OHR erroneously denied petitioner a contested case hearing. In other words, this court has jurisdiction to answer question 4(1) immediately above.

6. If, however, this court answers question 4(1) by determining that § 716.9 is not inherently unlawful (although, of course, it can be applied unlawfully from time to time), then there will be occasions when OHR can lawfully apply § 716.9 to dismiss the complaint, and the claimant, accordingly, will not be entitled to a contested case hearing. After making the question 4(1) inquiry, the majority has sustained the general validity of § 716.9.

7. The majority recognizes, however, that a jurisdictional question remains: whether the claimant is entitled to a contested case hearing because OHR has unlawfully applied § 716.9. According to the majority, this court's jurisdiction to determine its jurisdiction over § 716.9 as applied is precluded by D.C. Code § 1-1502(8)(A). Specifically, the majority reasons that, because a § 716.9 dismissal is for administrative convenience, and because that kind of dismissal leaves petitioner with a statutory right to bring her complaint to Superior Court for a trial de novo, § 1-1502(8)(A) bars any direct (contested case) review by this court: "[t]he term 'contested case' . . . shall not include (A) [a]ny matter subject to a subsequent trial of the law and the facts de novo in any court." Id. See ante Part V.

B.

The majority's bifurcation of our jurisdiction to determine jurisdiction, allowing inquiry into the general legal validity of § 716.9 but not into its validity as applied, is legally defective. Before turning to legislative history and case law, I outline my response to the majority's analysis.

Initially, it is important to note that, but for § 1-1502(8)(A), the majority would agree that this court has jurisdiction to determine whether we have jurisdiction over § 716.9 as applied, just as we have jurisdiction to determine our jurisdiction over the general legal validity of § 716.9. There is no principled basis that anyone has identified for otherwise limiting our jurisdictional scrutiny over whether § 716.9 stands in the way of a contested case hearing. The majority accordingly has an obligation to explain very clearly why § 1-1502(8)(A) bars our jurisdiction to determine jurisdiction halfway through the analysis, permitting us to appraise the general legal validity of § 716.9 but not its application.

The first problem with the majority analysis, therefore, is that it never effectively explains why § 1502(8)(A) does not prevent this court from determining the general legal validity of § 716.9, rather than merely precluding our review of § 716.9 as applied. Why doesn't the possibility of an inherently unlawful dismissal for administrative convenience — i.e., the possibility of the per se invalidity of § 716.9 — trigger the § 1-1502(8)(A) bar? After all, any dismissal for administrative convenience, according to the majority, leaves the complainant free under the statute to elect at any time either a trial de novo or judicial review in the Superior Court, see ante at 760-761, whether that dismissal is lawful or not. If, as the majority says, § 1-1502(8)(A) bars this court's direct review when a § 716.9 dismissal may or may not be lawful as applied, then I see no sound reason why § 1-1502(8)(A) does not also bar our direct review when a § 716.9 dismissal may or may not be invalid per se.

There is a second, even more important reason why the majority's position is unsound. Section 1-1502(8)(A) does not apply, whether this court considers per se invalidity or ad hoc invalidity of § 716.9, for one very simple reason: it is not yet clear whether petitioner — who still is pursuing a claim for judicial review of § 716.9 — will ever have a de novo trial court remedy. As long as petitioner is actively seeking judicial review and thus § 716.9 is still possibly invalid — whether inherently so or as applied — the trial de novo option is not yet "real," or "ripe." Clearly, under the Human Rights Act, a complainant cannot pursue both judicial review and a trial de novo; these two remedies "are mutually exclusive." Arthur Young Co. v. Sutherland, 631 A.2d 354, 371 n. 34 (D.C. 1993); Brown v. Capitol Hill Club, 425 A.2d 1309, 1312 (D.C. 1981); ante at 753, 759-760.

There is, of course, one way that petitioner could obtain a trial de novo upon OHR's dismissal of her complaint under § 716.9: she could forfeit her right to judicial review of OHR's ruling. That, however, is not a sound basis for saying that a trial de novo is truly available, within the meaning of § 1-1502(8)(A), because that would mean this court's jurisdiction would be determined by imputing to petitioners an election (trial de novo over judicial review) that she never made pursuant to D.C. Code § 1-2556(a). The majority has not presented any persuasive justification for believing § 1-1502(8)(A) applies even though that statutory application would force a petitioner to surrender a right (judicial review) to obtain a right (trial de novo).

In sum, the majority, in reality, uses the contingent availability of a trial de novo to bar this court's exercise of jurisdiction to determine jurisdiction. A contingent trial de novo does not meet § 1-1502(8)(A)'s inherent premise that a trial de novo must actually be available. As elaborated below, the legislative history and case law reveal that § 1-1502(8)(A) is actually irrelevant to this case. As a result, this court has as much authority to decide the validity of § 716.9 as applied as we do to resolve the rule's inherent legal validity.

C.

After years of efforts by the Bar Association of the District of Columbia to reform the procedures applicable to administrative proceedings under District law, the Bar Association and the staff of the House District Committee collaborated on a bill to create the District of Columbia Administrative Procedure Act (DCAPA). H.R. 7067, incorporating the proposed DCAPA, was introduced on April 1, 1965, and considered at a subcommittee hearing on July 6, 1965. See Administrative Procedure Act: Hearing on H.R. 7067 Before Subcommittee No. 4 of the House Committee on the District of Columbia, 98th Cong., 1st Sess. (1965). During discussion of the provision that became D.C. Code § 1-1502(8)(A), see supra note 4, Alfred L. Scanlan, Esq. testified on behalf of the Bar Association in favor of the legislation. A member of Congress asked Mr. Scanlan: "Under the definitions . . ., section (A) . . . excludes from the definition of 'contested case,' 'any matter subject to a subsequent trial of the law and the facts de novo in any court.' What types of cases did you have in mind when you put that exclusion in the bill?" Id. at 66. Mr. Scanlan replied:

That would be a case where, by present statute, the record of the decision of the agency was tried again before the court. In other words, you would have a regular trial and evidence would be introduced by both sides. The majority of hearings involve appeals from administrative decisions based on the record compiled before the agency, but there are a few isolated cases where the statute would provide for judicial review de novo, which would mean the court then would sit in judgment and find the facts. It could disregard completely the findings of fact that might have been made in the administrative proceeding. We did not want to change that because there the particular litigant already had protection. If he was going to get a second shot at it in the form of a trial de novo, then there was no need to impose these further restrictions on the agency, since the court was going to look at it afresh anyway.

Id. The same member then asked, "You say there are not many of those?" and Scanlan replied, "There are not many of those." Id. A different member commented, "You certainly would not want to give up the few cases where you do have the trial de novo." Id. Scanlan responded: "That is correct. As a matter of fact, the suggestion was made we go the other way and in effect have all tried de novo. That would mean that everyone who lost below would have a second shot at it." Id.

The clear import of Mr. Scanlan's remarks was that § 1-1502(8)(A) was intended to preclude direct judicial review in the court of appeals in the relatively few cases in which the legislature had provided a trial de novo, instead of judicial review, as the avenue of relief from an administrative ruling. There was no hint of any consideration of what might happen — as in this case — when a court concluded that a party was entitled to elect either judicial review or a trial de novo; the assumption underlying Mr. Scanlan's remarks was that § 1-1502(8)(A) applied to cover the only recognized situation: when the legislature had provided a trial de novo as the only — the exclusive — way to challenge agency action.

At the hearing, the House subcommittee also heard an example of what Mr. Scanlan had in mind. Robert F. Kneipp, Esq., then an Assistant Corporation Counsel who testified in opposition to the bill, confirmed Mr. Scanlan's understanding of the legislation:

One category of cases that very definitely is excluded is that relating to the condemnation of insanitary buildings. Under the existing law in the District, an action condemning a building is subject to a trial de novo in the District of Columbia court of general sessions, but that would not be a contested case within the meaning of the bill. Then, of course, the provision of the bill relating to contested cases would not apply in this very significant matter of condemning a building for insanitary reasons.

Id. at 70. Mr. Kneipp was referring to D.C. Code §§ 5-628, -629 (1967), which provided, respectively, for the right to seek administrative review by the Condemnation Review Board of an order by the Board for the Condemnation of Insanitary Buildings, followed by a trial de novo in Superior Court. See Urciolo v. Washington, 305 A.2d 252, 254 nn. 4 5 (D.C. 1973).

D.

Consistent with the legislative history, the case law development — until today — reflects application of § 1-1502(8)(A) when a trial de novo, not direct judicial review, is the only prescribed remedy for agency action. The first case to rely on that provision was Chevy Chase Citizens Ass'n v. District of Columbia Council, 327 A.2d 310 (D.C. 1974) (en banc), in which we dismissed for lack of jurisdiction a petition to review a street closing by the Council of the District of Columbia. Citing § 1-1502(8)(A), we held that, although the compensation phase of the proceeding consisted of a trial type hearing, which would ordinarily present a contested case, the fact that the compensation decision was "subject to a trial de novo in Superior Court," id. at 316, precluded direct review by this court. This case precisely reflected the use of § 1-1502(8)(A) anticipated by Messrs. Scanlan and Kneipp.

Our case law then turned to consideration of petitions dismissed by an agency for lack of probable cause: what review of that decision, if any, was possible? In O'Neill v. District of Columbia Office of Human Rights, 355 A.2d 805 (D.C. 1976), the agency dismissed, for lack of probable cause, a complaint for "racial prejudice on the job" brought under Commissioner's Order 71-26 (Feb. 2, 1971). Id. at 807. Rather than dismiss, as the Corporation Counsel urged, on the ground that the proceeding was not a contested case for lack of a required trial type hearing, this court dismissed under § 1-1502(8)(A) because the petitioner had a de novo trial court remedy under the Civil Rights Act of 1964, which had been amended in 1972 to cover District government employees as well as those of other state and local governments. See id. at 807-08.

Five years later, however, construing the newly adopted Human Rights Act of 1977, this court in Brown, 425 A.2d 1309, held that a complainant who pursued an administrative remedy through OHR was precluded, after a finding of no probable cause, "from instituting a de novo proceeding on the same matter in court." Id. at 1312. The statute provided for an election of remedies, permitting recourse to a de novo court proceeding only in two situations: (1) if the petitioner had withdrawn the complaint before the agency acted, or (2) if the agency had dismissed the complaint for "administrative convenience." See D.C. Code § 1-2556(a); Brown, 425 A.2d at 1312.

Because Brown affirmed dismissal of a complaint filed in Superior Court seeking a trial de novo on a discrimination complaint, whereas O'Neill dismissed an appeal seeking judicial review in this court of the agency's dismissal of a discrimination complaint, the decisions were not inconsistent with each other. Brown dealt with the provision of the 1977 Act barring a trial de novo after a finding of no probable cause; O'Neill focused on the availability of a trial de novo in federal court after a finding of no probable cause.

Three years after Brown, however, inconsistency crept into our case law. In Lamont v. Rogers, 479 A.2d 1274 (D.C. 1984), we held under the 1977 Act that a petition for review of agency findings of no probable cause for complaints of sexual discrimination and retaliation failed for lack of a contested case. Citing O'Neill, we concluded that § 1-1502(8)(A) precluded jurisdiction because the petitioner had the right to a trial de novo on these complaints under Title VII of the Civil Rights Act of 1964. See Lamont, 479 A.2d at 1276-77. We further held, however, that this court also lacked jurisdiction over administrative complaints for discrimination based on personal appearance and family responsibilities, for which there was no Title VII remedy triggering an O'Neill bar. We reasoned that, since no trial-type hearing was required upon a finding of no probable cause, there was no contested case. See id. at 1277-78. We therefore added that "even if O'Neill were not on the books, this court would have no jurisdiction to review the dismissal of any of petitioner's claims. Her only recourse is a civil action in the Superior Court." Id. at 1278. That is where inconsistency surfaced. It is one thing to acknowledge the petitioner's right to file her sex discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964; Brown is not implicated by that. It is another thing, however, to suggest — after Brown — that the petitioner's other discrimination claims, cognizable only under the Human Rights Act of 1977, could be pursued de novo in Superior Court after dismissal for lack of probable cause. In that respect, Lamont implicitly repudiated Brown. In any event, Lamont, Brown, and O'Neill were dealing with cases in which the agency had found no probable cause and for which no judicial review of any kind was recognized as an available alternative to a trial de novo. All three cases proceeded from the premise that, if any relief from the agency ruling was available, it was a court trial de novo.

Then came Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392 (D.C. 1991). There, we held that a petitioner may seek judicial review in Superior Court of OHR's dismissal of a discrimination complaint for "no probable cause," even though a trial de novo in Superior Court, after Brown, is no longer an available remedy. For the first time, therefore, this court introduced the notion that agency action dismissing a discrimination complaint can be judicially reviewable, at least when dismissal is for lack of probable cause. Id. at 397. By citing Brown rather than Lamont, the court in Simpson did not have to deal with the § 1-1502(8)(A) issue; the possible availability of a de novo trial court remedy was rejected out of hand. Furthermore, in dicta, Simpson introduced a possible complication. In referring to Brown, this court strongly implied in Simpson that an administrative convenience dismissal, in contrast with a dismissal for lack of probable cause, cannot trigger judicial review; the only available relief appeared to be a trial de novo. See Simpson, 597 A.2d at 398. The majority today, however, sitting en banc, makes clear — and I agree — that at least as to OHR dismissals for administrative convenience after a finding of probable cause, both judicial review and a trial de novo are available, alternative remedies.

E.

The question, then, is this: when, for "administrative convenience," OHR dismisses a complaint after a finding of probable cause, and the complainant concededly has the options of seeking either judicial review or a trial de novo, does the availability of the latter automatically preclude judicial review in this court (in contrast with judicial review in the Superior Court)?

Neither O'Neill nor Lamont addressed this question, not only because both cases dealt with dismissals for lack of probable cause but also, more importantly, because they implicitly assumed that judicial review of any kind was unavailable simply because a trial de novo was possible. In Simpson, we rejected that assumption. We held that judicial review was available in Superior Court when OHR dismissed for lack of probable cause, even though the 1977 Act, as interpreted in Brown, precluded a trial de novo there. Citing both Lamont and Brown, but not adverting to their inconsistency with one another, this court in Simpson relied on both of them. We used the spirit of Lamont to say that, in the absence of contested case review in this court, there must be a Superior Court remedy; we used Brown to say that, because a trial de novo is unavailable, the Superior Court remedy must be limited to judicial review of agency action.

In the present case, we consider two new situations. First, the en banc majority recognizes that, upon dismissal for administrative convenience after a finding of probable cause, there are two alternative remedies: judicial review and trial de novo. Unlike the "no probable cause" situations in O'Neill, Brown, Lamont, and Simpson, there is, in this case, a type of dismissal — "administrative convenience" — that under the governing statute does not limit the complainant to one avenue of relief. Second, there is a question in this case whether petitioner is entitled to a contested case hearing because of a misapplication of § 716.9, in contrast with our other four decisions where, absent a finding of probable cause, there was never a suggestion that complainant could have a contested case hearing.

Today, the en banc court holds among other things — and I agree in this respect — that

this court has jurisdiction not only when a contested case (trial-type) hearing has taken place, but also when a party has made "an effort to obtain such a hearing which the agency erroneously denied." Auger v. District of Columbia Board of Appeals and Review, 477 A.2d 196, 206 (D.C. 1984). That is, we have authority to order a contested case hearing, or at least to preserve the right to such a hearing, when an agency erroneously withholds that right.

Ante at 756-757 (emphasis added). This court accordingly holds, under the principle of jurisdiction to determine our jurisdiction, see ante at 757-758, that we have authority to determine whether OHR's very promulgation of § 716.9 erroneously withheld petitioner's right to a contested case hearing. In answer to that question, the majority then holds that § 716.9 is not inherently invalid. The narrow question remaining, therefore, is whether, after concluding that § 716.9 is not inherently invalid, this court also has authority, under the principle of jurisdiction to determine jurisdiction, to determine whether § 716.9 as applied to petitioner erroneously withheld her right to a contested case hearing.

The answer has to be yes. Because we are dealing with jurisdiction to determine jurisdiction — i.e., jurisdiction to determine whether a contested case hearing has been erroneously withheld or not — § 1-1502(8)(A) does not even come into play. As the majority recognizes, any court has jurisdiction to determine its own jurisdiction, including jurisdiction to decide all issues, factual and legal, necessary to resolve jurisdiction. See ante at 757-758. Thus, that kind of jurisdictional exercise by this court cannot be stopped in its tracks by § 1-1502(8)(A) unless this provision means that, even if petitioner would be entitled to the trial type hearing she seeks at OHR (giving us contested case jurisdiction), the very existence of a trial de novo alternative — before the OHR hearing issue is resolved — absolutely precludes our jurisdiction. That cannot be the case.

First, the legislative history shows that § 1-1502(8)(A) is intended to come into play only when a trial de novo is a complainant's exclusive remedy or, at the very least, is assuredly available. Second, the majority has provided no basis for concluding that § 1-1502(8)(A) applies when the availability of a trial de novo depends on a complainant's forfeiture of her asserted right to judicial review. See supra note 3. Third, if, as it turns out, the reviewing court were to conclude that the complainant was entitled to a trial type OHR hearing on the discrimination complaint because § 716.9 had been applied unlawfully, then no trial de novo would be available because the complainant had lawfully opted instead for judicial review and thus for continued, exclusive involvement in the administrative process.

In sum, the majority's entire argument is premised on the contingent availability of a trial de novo that may turn out to be unavailable if judicial review vindicates petitioner's contention that OHR unlawfully dismissed her complaint. To the contrary, § 1-1502(8)(A) does not come into play unless and until petitioner, after judicial review of OHR's dismissal, loses her right to a trial type hearing at OHR and thus assuredly gains a trial de novo remedy. If the majority's premise were correct — if § 1-1502(8)(A) could bar this court's review before petitioner's right to a trial type hearing at OHR were definitively resolved — then § 1-1502(8)(A) would apply in a way that compels petitioner to forfeit her right to judicial review. I cannot believe the legislature intended that result.

In my view, both the Superior Court and this court have jurisdiction to determine jurisdiction over this case. In this sense, both courts share a conceptually limited, concurrent jurisdiction to determine jurisdiction by deciding whether a claimant is entitled to a contested case hearing. Ultimately, if § 716.9 is not held inherently invalid, this jurisdictional inquiry by either court would not end until the court resolved whether OHR had properly applied § 716.9 on the facts here. (My proposed remand for OHR to provide criteria and procedures under § 716.9, see supra Part II, would make judicial review, in the first instance, considerably easier.) Until the question of § 716.9 as applied is resolved here, petitioner's right to a trial de novo will not be known, given the kind of relief — judicial review — she seeks. I do not believe that petitioner's obvious right to forego the judicial review she has elected, in favor of a trial de novo she has rejected, triggers a § 1-1502(8)(A) bar on this court's jurisdiction to determine jurisdiction. Surely the legislature never had this compelled forfeiture of judicial review in mind.

ROGERS, Chief Judge, with whom MACK, Senior Judge, joins, concurring in part, dissenting in part:

In my view the majority correctly concludes that the court has jurisdiction to decide whether or not the Department of Human Rights has unlawfully withheld from Ms. Timus her right to a hearing before the Human Rights Commission under D.C. Code § 1-2550 (Repl. 1992). See D.C. Code § 1-1510(a)(2) (Repl. 1992). Specifically, I join Part III of the majority's opinion (except for the last sentence), see supra 756-758 concluding that the court has jurisdiction to determine whether or not it has jurisdiction and to determine whether Regulation 716.9 (33 D.C. Reg. 6917 (1986)) is valid.

With regard to Regulation 716.9, the Department of Human Rights acted, in my view, beyond its authority in promulgating it. As supplemented herein, Judge Mack's opinion for the division sets forth the reasoning for the conclusion that the make-whole regulation is invalid. See infra opinion of Senior Judge Mack. To conclude that the regulation is valid, see supra Part IV of the majority opinion, is to grant to the Department powers beyond the limited rule-making authority delegated to it by the legislature. To require the Department to develop objective standards for application of Regulation 716.9, as Judge Ferren proposes, would accomplish nothing since it could not give validity to the rule promulgated without authority. See supra opinion of Judge Ferren at 763. Moreover, the rule is drafted in contravention to the legislative scheme to encourage (but not compel) efforts to conciliate by protecting the confidentiality of such efforts. Rather, in my view, because the words used in the D.C. Human Rights Act evince the intent to authorize voluntary conciliation, the Department of Human Rights was without authority to promulgate a regulation that would deny an administrative remedy to a complainant who declines to accept a make-whole offer by the respondent during conciliation efforts under D.C. Code § 1-2546 after the Department has found probable cause to believe that the complaint states a claim of unlawful discrimination in violation of the statute.

The court must apply the plain meaning of the language used in the statute, applying to the words "their ordinary sense and with the meaning commonly attributed to them." See Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) ("The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he [or she] has used") (citations omitted). The language of the provision on conciliation in the Human Rights Act authorizes the Department "at any time after the filing of the complaint, [to] endeavor to eliminate such unlawful discriminatory practice by conference, conciliation, or persuasion." D.C. Code § 1-2546(a). An endeavor entails effort but not necessarily success; it is an attempt, no more and no less. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1985 ed.) at 410. By use of the word "endeavor," the legislature directed the Department to make attempts to bring about the informal resolution of complaints of discrimination. It also specified the means — by conference, conciliation, or persuasion. These are words of reconciliation. By using these terms, the Council indicated that the resolution process should be conducted on terms that are agreeable to the parties. See WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY, supra, at 272 ("conciliate" means "to gain (as goodwill) by pleasing acts"; "to make compatible: reconcile"; "appease"; from the Latin word meaning "to assemble, unite, win over").

There is nothing to indicate that the legislature vested power in the Department to force a complainant, upon penalty of loss of an administrative remedy, to conciliate a discrimination complaint for which the Department has found probable cause. The statutory provision on conciliation refers only to such requirements as may be placed on the respondent. See D.C. Code § 1-2546(b). The same statutory provision expressly provides, moreover, that only "[u]pon agreement of all the parties to a complaint . . . [shall] a conciliation agreement . . . be deemed an order of the Commission, and shall be enforced as such." Id. § 1-2546(c). Furthermore, in giving rule-making authority to the Office and the Commission the legislature expressly limited that authority in order to ensure that rules and policies did not conflict with the statute. Id. § 1-2541(c), supra note 2. Forced conciliation is a concept that is foreign to the statutory language.

In addition, the legislative history makes clear that the legislature contemplated voluntary, not forced, conciliation. See Peoples Drug Stores v. District of Columbia, supra, 470 A.2d at 753. The legislative report stated that:

The benefits of administrative handling of civil law are to provide an opportunity for settlement of complaints voluntarily before the hearing and to bring about more rapid compliance with the law by offering an alternative to lengthy court proceedings. We believe the establishment of administrative hearings to be vital to the success of enforcing Title 34 [codified as D.C. Code §§ 1-2501 through 2557 (Repl. 1992 Supp. 1993)].

DISTRICT OF COLUMBIA CITY COUNCIL COMMITTEE ON EDUCATION AND YOUTH AFFAIRS, LEGISLATIVE REPORT ON TITLE 34, THE HUMAN RIGHTS LAW, at 2 (October 15, 1973). See also infra note 13. The majority ignores this statement of legislative intent.

Had the legislature intended to deny an administrative remedy to a complainant who refused to accept what the Department determined was a make-whole offer after it had made a favorable probable cause determination, the legislature could easily have said so. Yet, the legislature said nothing about a "make-whole" offer. Instead, it only authorized the Department to "endeavor" to conciliate complaints of discrimination; it provided specifically that conciliation occurs only when there is agreement of the parties and that when there is no agreement between the parties, an administrative hearing should be afforded to the alleged victim of discrimination. By so defining conciliation, the legislature indicated that the determination of whether their differences could be successfully settled through conciliation lies in the control of the parties and not the Department of Human Rights.

Viewing the statutory scheme as a whole, the "failure of conciliation efforts," as that phrase is used in § 1-2550, cannot mean more than that the parties were unable to agree to settle their dispute without further governmental involvement, See Peoples Drug Stores v. District of Columbia, supra, 470 A.2d at 754 (construe statute in context of legislative scheme) (citation omitted). The option that the statute leaves to the Department — to decide whether to issue a notice of public hearing before any conciliation efforts are attempted or only after conciliation efforts have been attempted and failed — does not transform the voluntary nature of the conciliation process itself. There is no ambiguity here. Significantly, the legislature chose language that refers to a failure of "efforts" and not to a failure of conciliation, a distinction suggesting, as in § 1-2546(a), that the legislature recognized both the desirability of voluntary settlement and also the likelihood that such efforts would not always succeed, thereby giving rise, where probable cause has been found, to the need for a hearing before the Commission. See supra note 1.

The dismissal of a complaint pursuant to Regulation 716.9 for failure to accept a make-whole offer should not be confused with dismissals for administrative convenience pursuant to § 1-2556(a). The legislature gave the Department express authority to determine whether or not there was probable cause for a complaint of unlawful discrimination and when to dismiss a complaint for administrative convenience. D.C. Code §§ 1-2545(b), -2556(a). In its attempt to justify its dismissal of the instant complaint, the Department's concerns about weeding out frivolous complaints and controlling its workload have a hollow ring. Indeed, the Department, in following the legislative directive of § 1-2545, has defined what it has determined to be a dismissal for administrative convenience. Such dismissals do not, according to the Department's regulation, include dismissals for failure to accept make-whole offers under Regulation 716.9. See Dankman v. District of Columbia Bd. of Elections, 443 A.2d 507, 513 (D.C. 1981) (en banc) (agency is obligated to follow its own regulations).

Although the Department has authority to dismiss a complaint for administrative convenience under § 1-2556(a), that is not what it purported to do in dismissing Ms. Timus' complaint. The Department repeatedly informed Ms. Timus that the dismissal of her complaint was based on her failure to accept the respondent's offer, which, notwithstanding her contrary view, the Department deemed would make her whole. This is clear from the Department's correspondence with Ms. Timus. It is also clear from the Department's own regulation and its Notice of Conciliation. An internal departmental memorandum further indicates that the Department also did not treat a failure of conciliation as the conclusion of the administrative process. The court is bound by the reasons that the Department gave for dismissing Ms. Timus' complaint and cannot deem an agency dismissal for one purpose to be a dismissal for another. See Jones v. District of Columbia Dep't of Employment Servs., 519 A.2d 704, 709 (D.C. 1987); opinion of the majority, supra, at 760 n. 12. Under the circumstances, since the Department did not purport to dismiss Ms. Timus' complaint for administrative convenience and it had no authority to penalize conciliation, there is no occasion for deference by the court to the administrative interpretation of the statute as reflected in Regulation 716.9. See James Parreco Son v. Rental Housing Comm'n, 567 A.2d 43, 48 (D.C. 1989) (citing Totz v. District of Columbia Rental Housing Comm'n, 412 A.2d 44, 46 (D.C. 1980)); infra note 15; supra note 3.

Finally, it must not be forgotten that the en banc court is construing the civil rights statute of the District of Columbia. The elected representatives of the District of Columbia expressly determined that the elimination of unlawful discrimination is of "the highest priority." D.C. Code § 1-2501 (Repl. 1992). Indeed, so important did the legislature view the human rights provisions that it enacted the law twice. Consequently, the court must take great care in construing the words of the statute in order to assure that Ms. Timus' statutory right to relief (and, consequently, the rights of others who hereafter seek administrative relief from unlawful discrimination) is protected in accordance with the statute enacted by the Council. Cf. JBG Prop., Inc. v. District of Columbia Office of Human Rights, 364 A.2d 1183, 1185 (D.C. 1976) ("The Human Rights Law in the District of Columbia was enacted to aid not only an individual complainant, but also the public at large"); Motorola Inc. v. McLain, 484 F.2d 1339, 1344 (7th Cir. 1973) (quoting H.R. Rep. No. 238, 92nd Cong., 2d Sess. (1972) (employment discrimination viewed in terms of "systems" and "effects" rather than intentional wrongs by individuals)). The majority's creation of ambiguity, based on an assumed willingness of the complainant to conciliate, see majority opinion at 15, ignores both statutory language and purpose. See D.C. Code § 1-2501 (statutory purpose), -2544(a) (who may file a complaint), -2553(a) (scope of relief that the Commission may order).

As her appeal is decided by a majority of the en banc court, however, Ms. Timus is denied an administrative remedy before the Commission unless she successfully pursues timely and costly litigation in which she faces the burden of persuading a trial court judge that the Department erred in applying Regulation 716.9 in her case. That is a formidable burden in light of the views expressed by at least a majority of the court. Alternatively, according to a majority of the court, she can file suit de novo in the trial court. Pretermitting the prejudice that has accrued to both parties as a result of years of delay in the resolution of the complaint, the majority does not clarify whether such a lawsuit would be barred by the statute of limitations and, hence, Ms. Timus would be confronted with our decision in Anderson v. U.S. Safe Deposit Co., 552 A.2d 859, 862-63 (D.C. 1989) (statute of limitations); see D.C. Code § 1-2556(a). The parties, therefore, face the prospect of still further delay and litigation to settle that issue in court before, perhaps, reaching the merits of her complaint. One judge would also allow Ms. Timus to seek further relief before the agency by further challenging the Department's application of its make-whole regulation to her case, thereafter returning again to this court with the subsequent possibility of obtaining a hearing before the Commission. See infra opinion of Judge Ferren at Part II.

Future litigants seeking relief from unlawful discrimination may face similarly daunting prospects of delay and costly litigation, all because Regulation 716.9 has recast the voluntary conciliation provided by the statute into a means of denying administrative relief. The administrative delay experienced by Ms. Timus and the respondent and the procedural road ahead in the courts are far removed from the statutory scheme contemplated by the Council. See indented quotation, supra at 772-773. The rationality of a human rights statutory scheme based on voluntary conciliation in the administrative process is abundantly clear where the intent of the legislature is to promote the elimination of unlawful discrimination, and not more court litigation, in the Nation's capital. In my view, this is another reason why the Council's intent is clear and Regulation 716.9 is invalid.

Accordingly, I concur in holding that the court has jurisdiction to determine the validity of Regulation 716.9, I respectfully dissent from the holding that Regulation 716.9 is valid, and I would remand the case to the Department with instructions to issue the notice of hearing pursuant to § 1-2550.

APPENDIX

Opinion of Senior Judge Mack of March 20, 1992, before the Division.

STEADMAN, Associate Judge, dissenting:

For reasons that I will briefly set forth, I believe that this court does not have jurisdiction to hear this direct appeal and the case should therefore be dismissed.

I start with the basic tenet of administrative law that an individual who is aggrieved by an action of an administrative agency can almost invariably obtain judicial review of such action. See generally BERNARD SCHWARTZ, ADMINISTRATIVE LAW 436-37 (2d ed. 1984) ("there has never been any question of the propriety of judicial review"). The jurisdictional question before us, however, is not whether judicial review of the agency action challenged here is available. The issue is whether the District of Columbia Court of Appeals ("DCCA") is the proper forum for judicial review in the first instance. At bottom, the question is this: when the legal dispute is whether the petitioner has a right to an agency hearing, has the proceeding yet become a "contested case." I think the answer is no.

The District of Columbia Administrative Procedure Act ("DCAPA") has never provided for initial DCCA review of all agency actions. On the contrary, ever since it was first enacted the DCAPA has provided that the DCCA is the proper forum in which to first challenge only one specific type of situation, viz, a "contested case." See D.C. Code § 1-1510(a) (1992); Dupont Circle Citizen's Ass'n v. District of Columbia Zoning Comm'n, 343 A.2d 296, 298-99 (D.C. 1975) (en banc). This is not a general grant of jurisdiction to the DCCA to review ab initio all agency action; it gives only a limited power of such review. See Lee v. District of Columbia Bd. of Appeals Review, 423 A.2d 210, 215 (D.C. 1980). All other judicial challenges to agency action must be brought in the first instance in Superior Court, the District of Columbia's court of general jurisdiction.

The only type of agency proceeding subject to initial review in the DCCA, a "contested case," is defined as

a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any 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 § 1-1502(8) (1992), and has been construed by this court to refer only to situations in which the hearing that is required is a trial-type adjudicative hearing. See, e.g., Chevy Chase Citizens Ass'n v. District of Columbia Council, 327 A.2d 310, 314 (D.C. 1974) (en banc) ("trial-type hearing where such is implicitly required by either the organic act or constitutional right"). This is squarely in accord with the nature of an appellate tribunal. The prime role of the DCCA is to review decisions resulting from or relating to an adjudicative hearing, whether the appeal is from a judicial or an administrative trial tribunal. But until that point, the normal judicial forum to which disputes are first addressed is the trial court of general jurisdiction.

In the instant case, there was no hearing, nor does anyone argue that there was a hearing. Nevertheless, petitioner argues that this is a contested case based on the proposition that the statute does not require that a hearing actually have occurred, only that in petitioner's view a present right to a hearing exists. I do not think that contested case status has yet been reached when the very issue in dispute is whether the conditions prerequisite to a right to a hearing have been satisfied. If on appeal we answer that issue in the negative, then indeed the matter was not yet a contested case. The question of whether we have jurisdiction should not depend upon the answer to the ultimate issue; the jurisdictional issue should be determined at the outset. Furthermore, the determination whether a right to a hearing has accrued — such as whether probable cause exists or conciliation has failed — may very well depend upon a factual inquiry, for which a trial court is plainly fitted and an appellate court not at all. This indeed is an important reason why direct appellate review is limited to contested cases, where normally a factual record has already been made by the agency.

I reiterate that lack of jurisdiction in the DCCA to directly review agency actions negating "contested case" status does not mean that the action of the agency cannot be judicially reviewed. We are addressing the question of which court is the appropriate forum for initial judicial review. In my view, the type of preliminary question of which petitioner seeks review does not fit within the carefully defined direct appellate jurisdiction of this court.