Neill v. Dist. of Columbia Pub. Emp. Relations Bd.

• Decision Date: 19 June 2014
• Docket Number: No. 13–CV–242.,13–CV–242.
• Citation: 93 A.3d 229
• Parties: Gerald G. NEILL, Jr., Appellant, v. DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, Appellee, and Fraternal Order of Police, Metropolitan Police Department Labor Committee, Intervenor.
• Court: D.C. Court of Appeals

93 A.3d 229

Gerald G. NEILL, Jr., Appellant,

v.DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD, Appellee,andFraternal Order of Police, Metropolitan Police Department Labor Committee, Intervenor.

No. 13–CV–242.

District of Columbia Court of Appeals.

Argued Jan. 23, 2014.

Decided June 19, 2014.

Matthew August LeFande, Arlington, VA, for appellant.

Geoffrey H. Simpson, with whom Bruce A. Fredrickson and Cedar P. Carlton, Washington, DC, were on the brief, for appellee.

Marc L. Wilhite, Washington, DC, for intervenor.

Before GLICKMAN and McLEESE, Associate Judges, and RUIZ, Senior Judge.

GLICKMAN, Associate Judge:

Gerald G. Neill, Jr., appeals the Superior Court's dismissal of his petition for review of a decision by the Public Employee Relations Board (the “PERB”). We conclude that the trial court erred in dismissing the petition on account of Neill's failure to name the PERB as a respondent and serve the petition on it before the thirty-day filing deadline. We reverse and remand for the trial court to proceed with its consideration of Neill's petition for review.

I.

Neill, a former Metropolitan Police Officer, served as Chairman of the intervenor police union (the “FOP”) from 2000 to 2004. During Neill's tenure, the FOP terminated its contract with its general counsel, Ted Williams. In response, Williams sued both Neill and the new general counsel, alleging breach of contract, tortious interference with contract, and intentional infliction of emotional distress. After a series of procedural disputes of minimal importance here,¹ the Superior Court granted Neill's motion for summary judgment in 2009.

On March 15, 2010, Neill filed a “standards of conduct” complaint against the FOP with the PERB. Public sector unions in the District are statutorily required to certify their compliance with certain standards of conduct, including one obligating them to maintain “provisions defining and securing the right of individual members ... to fair and equal treatment under the governing rules of the organization....” ² The PERB has jurisdiction to hear complaints alleging that a recognized union failed to comply with the specified conduct standards.³ Neill's complaint alleged such a violation in the FOP's refusal to pay for his defense of Williams's lawsuit despite a provision in its bylaws guaranteeing legal representation to union members for the defense of civil actions arising out of the performance of their duties.

Standards of conduct complaints must be filed with the PERB within 120 days “from the date the alleged violation(s) occurred.” ⁴ This deadline has been held to be “jurisdictional and mandatory.” ⁵ On February 4, 2012, the PERB, reading Neill's pleading to allege that the union denied his request for legal representation in 2008, dismissed his complaint as untimely. ⁶ On March 1, 2012, Neill petitioned for review of the PERB's decision in Superior Court.

Petitions for review of PERB decisions in Superior Court must be filed within thirty days of their issuance.⁷ Neill filed his petition before the expiration of this deadline. However, his petition did not name the PERB as the respondent (though it identified the PERB decision Neill sought to have reviewed), and he did not serve the petition on the PERB. Instead, Neill named the FOP as the respondent, and he served the FOP and the Attorney General for the District of Columbia.

On June 21, 2012, well after the thirty-day window for filing a petition had closed, Neill's attorney contacted the PERB to ask why it had not filed the agency record with the Superior Court, as it normally would do.⁸ The PERB's general counsel informed Neill's attorney that the PERB, as an independent agency, was not represented by the D.C. Attorney General in appeals of PERB decisions. Because Neill had not served the PERB with his petition, its general counsel explained, it was not a party to the appeal and so had no obligation to file the record. Moreover, the PERB's counsel asserted, Neill's failure to serve the PERB within the thirty-day filing period meant that its decision had become final. That same day, Neill served the PERB with his petition. He later filed an amended petition for review naming the PERB as the respondent, after being prompted to do so at a June 29 initial scheduling hearing in Superior Court.

Based on Neill's failure to name the PERB as the respondent in his initial petition for review and failure to serve that petition on the PERB before the expiration of the thirty-day filing deadline, the PERB moved to dismiss for lack of subject matter jurisdiction. The Superior Court granted the motion, dismissed Neill's petition with prejudice, and denied his motion for reconsideration. Neill noticed this timely appeal.

II.

We agree that Neill was required by the Superior Court's Rules to name the PERB as the respondent in his petition for review, and to serve his petition on the PERB within the thirty-day filing deadline. We conclude, however, that Neill's non-compliance with those requirements did not deprive the Superior Court of jurisdiction over his petition or otherwise justify its dismissal. Accordingly, we reverse; on remand the court will have discretion to decide whether to impose lesser sanctions for Neill's missteps.

A.

The Comprehensive Merit Personnel Act (“CMPA”) ⁹ provides for appeals from decisions of the PERB (the body charged with adjudicating public sector labor disputes and other public employee matters) and the Office of Employee Appeals (the entity primarily responsible for reviewing certain serious adverse employment actions) to be taken to the Superior Court.¹⁰ To implement that requirement and govern such appeals, the Superior Court adopted Agency Review Rule l.¹¹ Among other things, Rule 1 specifies the time and manner for filing petitions for review in CMPA cases, and to furnish additional guidance, is accompanied by a form petition for review for litigants to use as a model. The PERB contends, and the Superior Court agreed, that Neill's initial petition did not satisfy the requirements of Rule 1 with respect to naming the agency as respondent and serving it with the petition, and that those requirements are jurisdictional. Neill disputes their interpretation of Rule 1 and their jurisdictional claims.

The interpretation of a rule of procedure is a question of law as to which our review is de novo.¹² We do not agree that the Superior Court misunderstood Rule 1's requirements. To begin with, although the text of Rule 1 and the accompanying form petition do not say so explicitly, we heretofore have held that the Rule requires a petitioner to name the PERB (or the Office of Employee Appeals, as the case may be) as the respondent in the caption of his petition for review.¹³ A petition that fails to name the PERB in the caption, and that instead names the opposing party in the agency proceeding as the respondent, is noncompliant even if the petition elsewhere correctly identifies the PERB as the agency that issued the order from which relief is sought (as Neill's petition did in this case).¹⁴

Disputing this interpretation of Rule 1, Neill argues that he properly named the FOP as the respondent because the PERB lacks constitutional standing to defend its decision.¹⁵ That is incorrect. We have explained that an agency presumptively “must carry the burden of defending its action in any challenge to it” because the “matters raised in” such a challenge “go directly to the [agency's] authority and to the validity of its decision, which the [agency] has a substantial interest in defending.” ¹⁶ Neill's argument that this presumption does not apply to the PERB is contradicted by our decision in IBPO, which noted that the PERB was “the only entity that could afford the relief sought.” ¹⁷

In asserting that the PERB nonetheless lacks standing, Neill relies on cases from other jurisdictions holding that particular agencies were without statutory authorization to litigate in court.¹⁸ But the CMPA expressly empowers the PERB to litigate the validity of its decisions. ¹⁹ Neill rejoins that the PERB's interest in defending its decisions on the merits does not create an interest (sufficient for standing) in enforcing its “procedural right,” ²⁰ i.e., the statutory time limit for seeking review. That contention too is incorrect, for the time bar plays an obvious role in ensuring the enforceability of the PERB's decisions.²¹ We reject Neill's standing argument and hold that his initial petition for review contravened Agency Review Rule 1 by failing to name the PERB as the respondent.²²

Whether Rule 1 also required Neill to serve the PERB is a question this court previously has not had occasion to resolve. On its face, the Rule can be read to suggest otherwise, because subsection (a) provides only that a petition for review must “show service ... upon all other parties to the agency proceeding and the Office of the Corporation Counsel of the District of Columbia.” ²³ No lawyer would think of the PERB as a party to its own proceeding, and the requirement of service on the Attorney General ²⁴ might be taken to imply that service on the PERB is unnecessary. Neill argues that service on the Attorney General was indeed sufficient to serve the PERB.

Nevertheless, the better reading of Rule 1 is that it does require petitions for review to show service on the agency that conducted the proceeding below. Subsection (e) of the Rule states that the adjudicating agency must file the record with the Superior Court “[w]ithin sixty (60) days from the date of service of petition upon the agency and the office of the Corporation Counsel,” ²⁵ and the comment to the Rule explicitly states that the “petition must be served on the agency involved with a copy to the attorney in the office of the Corporation Counsel handling the case.” ²⁶ Reading the Rule in its entirety together with its explanatory comment ²⁷ thus makes clear that the agency must be served as well as the...