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The Dorchester’s landlord and tenants have been fighting for 16 years. And they’re not done yet.
On Aug. 30, 1995, the Department of Consumer and Regulatory Affairs (DCRA) hosted a ho-hum event: Rent-control Magistrate Gerald Roper awarded tenants and former tenants of a 16th Street NW apartment building $133,593.04 in damages for rent overcharges imposed by the building’s landlord, Hagner Management Corp. The claims against Hagner, which manages the Dorchester for a real estate partnership, were hardly the stuff of scandal—the company had allegedly charged too much rent on vacated units and forced tenants to pay for air conditioning they had not requested.
The judgment shouldn’t merit any attention at all. Except that Benoit Brookens et al. vs. Hagner Management Corporation is now entering its 17th year of litigation in the District’s rent-control administration. Except that the parties in the case have filed nine appeals and generated thousands upon thousands of pages of documents. Except that 12 of the tenant petitioners have died since the case was filed.
Brookens vs. Hagner is the Jarndyce vs. Jarndyce of the District. It is a nightmare of the most outlandish proportions, a 16-year blur of motions, decisions, orders, remands, subpoenas, appeals, and hearings, featuring a poorly organized tenant organization, a wealthy landlord, and a bumbling bureaucracy that moves at the rate of continental drift. As the Republicans in Congress debate whether to phase out rent control in the District, the case has come to embody all that is worst about the city’s rent-control administration.
Gerald Roper looks pained when he discusses the Dorchester case, and it’s easy to see why. Sitting in his office-cum-hearing room, the site of the 21 most recent hearings on the case, Roper flips through two file boxes of documents—affidavits, rent bills, canceled checks, etc.—that he pored over to reach his decision. These boxes constitute a fraction of the paperwork he examined: Nine more boxes are collecting dust in a DCRA file room. At one point, the case file was 20,000 pages thick.
When asked how long he spent on the decision, Roper rolls his eyes toward the ceiling. “So many man hours, man,” he sighs. “I can’t even add it up.”
Roper is understandably tired of adding and multiplying and compounding. His Aug. 30 decision, after all, consisted of a 90-page order accompanied by 300 pages documenting 10,000 damage calculations for the 33 tenants who were part of the award settlement. First Roper determined how much each tenant was overcharged for each month of rent; then he added up the total sum of overcharges for the duration of the tenancy; then he trebled the damages; then he compounded interest on the overcharges for each month until the date of the decision.
Then he nearly went crazy.
“This was the most stress I’ve ever had in this office,” says Roper, whose experience adjudicating rent control disputes dates back to 1974, when the District’s rent-control statute first took effect. “When I finished this, it was a big, big, big relief.”
Amazingly, Roper’s stint with the case is only a brief chapter in the Dorchester saga. The case started in September 1979. Jimmy Carter was president and disco was alive and kicking when Benoit Brookens, a Dorchester tenant, attorney, and former foreign service officer, submitted Tenant Petition 3788 on behalf of about 100 Dorchester tenants. (About 7,000 rent-control petitions have been filed since then.) Brookens charged that Hagner Management had violated the District’s rent-control statute by imposing mandatory air conditioning charges and by illegally hiking rents on vacated units. The law stipulates strict limits on such increases.
The charges in the petition could not have been more straightforward. Yet the District’s rent-control bureaucracy acted as though they were complicated, precedent-setting litigation.
In 1980, adjudicator Thomas Word issued the first of many “final” rulings in the case. He found that the tenants had indeed been overcharged, but failed to calculate damages owed them. Setting a precedent that would be repeated over and over in the Battle of the Dorchester, both the landlord and the tenants appealed Word’s decision to DCRA’s appellate body, the three-member Rental Housing Commission (RHC). The commission refused to hear the case, ruling that it could not be appealed until Word calculated the damages.
Word didn’t get the word and issued another decision without calculations. What ensued was a not-so-instant replay: Both parties appealed and the commission returned the case to Word. Apparently not yet tired of this routine, the parties performed the whole charade a third time.
Finally, in November 1982, the commission sent the case back to Word and told him exactly how to handle it. So in May 1984, Word ordered Hagner to pay the tenants $1.1 million, the largest award in the 10-year history of rent control in the District. This time, only Hagner appealed the decision.
Then the D.C. bureaucracy took a four-year hiatus. The Rental Housing Commission eventually issued its ruling in 1988. Rather than upholding the award or reducing it, the commission ordered the parties to trash all the previous decisions and start from scratch with a new magistrate.
At this point, the rent-control officials took another, five-year break, skipping the entire Bush presidency. Accounts of why the case was dropped for a half-decade are as numerous as the parties involved. A DCRA official says that attrition in the rent-control adjudication staff caused the delay. A tenant says that DCRA just became “plain tired” of the case. The consensus is that DCRA administrators, perhaps taking the commission’s ruling literally, threw out a hefty chunk of the case file. Not that they were the only ones to lose the paperwork: Brookens accuses the D.C. Court of Appeals, to which he appealed the commission’s 1988 ruling, of misplacing the entire file. To round things out, the tenants also accuse Brookens of losing his case records during the same period.
Poor records management notwithstanding, Roper began his 1993 hearings determined to end the case. Issuing an appeal to the common sense of the protagonists, Roper attempted to broker a settlement under which the landlord would pay the tenants about $200,000 to drop the case and any related litigation. According to several sources, the deal won unqualified support of all key players—Roper, landlord attorney Richard Luchs, and the tenants. But Brookens refused to sign and the litigation continued.
“He remembers that million-dollar decision,” says one tenant of Brookens. “And he just wants to get back to that level. We all wanted to settle, but the more money he thought he’d get, the more he flubbed the dub.”
Luchs agrees. “Brookens felt upset because he wasn’t going to get enough money,” says Luchs, a partner with Greenstein, DeLorme, and Luchs. “He forgot about everyone else’s interests and said he wouldn’t sign.”
“Tenants would not go for [the settlement]. It was overwhelmingly rejected,” counters Brookens, noting that it would have required tenants to forfeit their right to followup litigation.
Regardless of who is to blame, current and former Dorchester tenants could not be more confused about the case. In its expansive heyday, Brookens vs. Hagner covered approximately 1,000 tenants who had occupied the Dorchester during the ’70s. But the recent decision by Roper awarded damages only to 33 petitioners. None of the current and former tenants interviewed for this article were sure if they had been excluded from the settlement.
“I don’t know how the pie is to be divvied up, or what, if anything, I am supposed to get,” says Barbara Clegg, who lived in the Dorchester from 1978 to 1980. The decision does list Clegg as a party in the damages award.
Campbell Johnson, another tenant, puts it more bluntly: “I’m clueless,” he says, referring to the recent award. Just as well—Johnson is not listed as a beneficiary in Roper’s decision. Local political buffs should note that another Johnson, Karen Johnson—former Dorchester tenant and paramour of Mayor Marion Barry—was awarded $1,873. “She probably has no idea,” mutters Roper.
After 16 years of litigation, Luchs says that his client remains blameless in the alleged rent-control violations. “The only thing I can say is that the evidence didn’t demonstrate any overcharges,” says Luchs. He says his willingness to settle with Brookens is not an admission of wrongdoing but rather a recognition that continued litigation will cost his client more than the settlement price.
Belva Newsome, DCRA’s chief rent-control adjudicator, considers the Dorchester case an aberration from the herd of litigation that her office shepherds through the system. “I wouldn’t want to see the Dorchester case viewed as the way rent control works,” says Newsome, who reviews all the decisions rendered by Word, Roper, and other adjudicators. With the exception of Dorchester and one other dispute, says Newsome, her office’s entire caseload dates from 1994. (Statistics on rent-control administration are unavailable because Newsome’s office is currently relocating from 613 G St. NW to make way for the new arena.)
But some who navigate the rent-control maze say the Dorchester case epitomizes the bureaucracy’s failure. Eric Rome, a tenant lawyer at the downtown law firm Eisen and Rome, says Dorchester is a “perfect example of how you never see the end of certain cases in the system.”
Critics believe that a lack of support staff and the absence of automation make some rent-control cases impossibly slow. Indeed, Newsome’s office operates with a skeleton staff: Its three adjudicators write and proof their decisions and do their own filing. The entire office has but one secretary. The Rental Housing Commission seems even more desperate. Commission Chairwoman Ruth Banks turned down an interview request for this story because she was tied up with clerical work. “She’s too busy answering the phones and all to speak with you,” said DCRA spokeswoman Janet McCormick. (But Banks did say through McCormick that none of the 44 cases awaiting appeal decisions at the commission predates April 1993.)
The system’s administrative shortcomings are not a symptom of the District’s current budget crisis, says Eric Von Salzen, who has represented landlords in more than 400 rent-control cases. “This goes back 21 years, to when rent control first started,” says Von Salzen, a partner at the law firm Hogan and Hartson. Von Salzen ticks off the starting dates for the 10 pending cases on his rent-control docket: 1986, 1988, 1989, and seven from the early ’90s. “Not one of them has been around for less than three years,” he says.
The Dorchester case promises to make the bureaucrats and lawyers miserable for a long time to come. On Sept. 15, just two weeks after Roper’s ruling, Luchs appealed it as “arbitrary, capricious, and an abuse in discretion.” He expects the appeal to last at least two years. That eventual judgment will likely be appealed as well. And if there is ever a final, uncontested ruling—which seems inconceivable in the Dorchester saga—it will surely set in motion two other pending cases related to the same dispute. This raises the dismal prospect that the Dorchester litigation may outlive all of the tenant petitioners.
Vivienne Chisholm, a longtime Dorchester tenant, attended “every last one” of Roper’s hearings. Now, she says, “I would settle for 15 cents to bring this case to closure.”
Art accompanying story in the printed newspaper is not available in this archive: Darrow Montgomery.