Gerald G. Neill, Jr. v. District of Columbia Public Employee Relations Board and Fraternal Order of Police, Metropolitan Police Department Labor Committee

Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CV-242

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.

Appeal from the Superior Court of the
District of Columbia
(MPA-CAP2009-12)

(Hon. Judith N. Macaluso, Trial Judge)

(Argued January 23, 2014 Decided June 19, 2014)

Matthew August LeFande for appellant.

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

Marc L. Wilhite for intervenor.

Before GLICKMAN and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
 2

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.

1
See Fraternal Order of Police Metro. Police Dep’t Labor Comm. v. Neill,
No. 01-CV-730 (D.C. Mar. 4, 2008) (unpublished opinion).
 3

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

2
D.C. Code § 1-617.03 (a)(1) (2012 Repl.).
3
See Fraternal Order of Police Metro. Police Dep’t Labor Comm. v. Pub.
Emp. Relations Bd., 516 A.2d 501, 504-05 (D.C. 1986); see also 6B DCMR § 544
(1999).
4
6B DCMR § 544.4.
 4

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.

5
Moore v. Fraternal Order of Police / Dep’t of Youth Rehab. Servs. Labor
Comm., PERB Case No. 12-S-03, PERB Opinion No. 1290, 2012 WL 3218537, at
*2 (D.C. Pub. Emp. Relations Bd. May 30, 2012); see also Gibson v. District of
Columbia Pub. Emp. Relations Bd., 785 A.2d 1238, 1241 (D.C. 2001) (stating that
the identical 120-day deadline for filing unfair labor practice complaints is
“mandatory and jurisdictional”) (quoting Hoggard v. District of Columbia Pub.
Emp. Relations Bd., 655 A.2d 320, 323 (D.C. 1995)). Recent authority calls into
question whether the PERB‟s filing deadlines are in fact jurisdictional. See
Gatewood v. District of Columbia Water & Sewer Auth., 82 A.3d 41, 45-49 (D.C.
2013) (holding that an agency filing deadline set forth in a regulation as a “rule of
administrative convenience” is not jurisdictional). However, assuming the FOP
properly raised the 120-day deadline, the correctness of the PERB‟s dismissal may
not turn on whether the deadline is jurisdictional. See Smith v. United States, 984
A.2d 196, 199 (D.C. 2009) (Non-jurisdictional but inflexible “[c]laim-processing
rules . . . assure relief to a party properly raising them, but do not compel the same
result if the party forfeits them.”) (quoting Eberhart v. United States, 546 U.S. 12,
19 (2005)). Regardless, we leave it to the Superior Court on remand to decide any
questions relating to the 120-day deadline.
6
Neill v. Fraternal Order of Police / Metro. Police Dep’t Labor Comm.,
PERB Case No. 10-S-04, PERB Opinion No. 1240, 59 D.C. Reg. 7222 (D.C. Pub.
Emp. Relations Bd. Feb. 4, 2012), available at
http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?NoticeID=2541320.
 5

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

7
See D.C. Code § 1-617.13 (c) (“Any person aggrieved by a final order of
the Board granting or denying in whole or in part the relief sought may obtain
review of such order in the Superior Court of the District of Columbia by filing a
request within 30 days after the final order has been issued.”); Super. Ct. Agency
Rev. R. 1 (a) (“[A]n appeal to the Superior Court of the District of Columbia
permitted by the [Comprehensive Merit Personnel Act] shall be obtained by filing
a petition for review . . . within 30 days after service . . . of the final decision to be
reviewed or within 30 days after the decision to be reviewed becomes a final
decision under the applicable statute or agency rules, whichever is later.”).
8
See Super. Ct. Agency Rev. R. 1 (e) (“Within sixty (60) days from the date
of service of petition upon the agency and the office of the Corporation Counsel,
the agency shall certify and file with the Clerk the entire agency record, including
all of the original papers comprising that record, and shall notify the petitioner of
the date on which the record is filed.”).
 6

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
 7

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 1.11 Among other things, Rule 1 specifies the time and manner for filing

petitions for review in CMPA cases, and to furnish additional guidance, is

9
D.C. Code § 1-601.01, et seq. (2012 Repl. & Supp. 2013).
10
D.C. Code §§ 1-606.03 (d) (OEA), 1-617.13 (b) & (c) (PERB).
11
The Rule is located in Section XV of the Superior Court‟s Rules of Civil
Procedure.
 8

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

12
See Gibson v. Freeman, 941 A.2d 1032, 1034-35 (D.C. 2008).
13
District of Columbia Dep’t of Admin. Servs. v. Int’l Bhd. of Police
Officers, Local 445, 680 A.2d 434, 437 (D.C. 1996) [hereinafter IBPO].
 9

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

14
See id. at 438.
15
See generally Grayson v. AT&T Corp., 15 A.3d 219, 232-36 (D.C. 2011)
(en banc) (explaining that this court, at least in the absence of contrary legislative
instruction, adheres to the standing requirements of Article III as articulated by the
Supreme Court).
16
Francis v. Recycling Solutions, Inc., 695 A.2d 63, 70-71 (D.C. 1997).
17
680 A.2d at 437 (citation omitted); cf. Brown v. District of Columbia Pub.
Emp. Relations Bd., 19 A.3d 351, 355-58 (D.C. 2011) (describing and accepting
the PERB‟s argument in defense of its decisions without questioning the agency‟s
standing); District of Columbia Pub. Emp. Relations Bd. v. Fraternal Order of
(continued…)
 10

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

(continued…)
Police, 987 A.2d 1205 (D.C. 2010) (deciding a case in which the PERB appealed
from an adverse Superior Court decision).
18
See, e.g., Kaiser Aluminum & Chem. Corp. v. Dep’t of Labor & Indus.,
854 P.2d 611, 614-16 (Wash. 1993) (en banc).
19
See D.C. Code § 1-605.02 (16) (“The Board shall have the power to . . .
[s]eek appropriate judicial process to enforce its orders and otherwise carry out its
authority under this chapter.”); id. § 1-605.02 (14) (“The Board shall have the
power to . . . [r]etain . . . independent legal counsel. . . .”); id. § 1-617.13 (b) (“The
Board may request the [Superior Court] to enforce any order issued [by it.]”); id. §
1-617.13 (c) (“The [Superior Court] shall have the same jurisdiction to review the
Board‟s order and to grant to the Board such order of enforcement [upon petition
by an aggrieved party] as in the case of a request by the Board under subsection
(b). . . .”).
20
Reply Brief at 4 (quoting Summers v. Earth Island Inst., 555 U.S. 488,
497 (2009)).
 11

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

21
See Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95
(D.C. Cir. 2002) (A litigant “who alleges a deprivation of a procedural protection
to which he is entitled never has to prove that if he had received the procedure the
substantive result would have been altered. All that is necessary is to show that the
procedural step was connected to the substantive result.”); cf. Summers, 555 U.S. at
496 (“[D]eprivation of a procedural right without some concrete interest that is
affected by the deprivation—a procedural right in vacuo—is insufficient to create
Article III standing.”).
22
Neill makes an additional constitutional argument that the PERB, in
moving to dismiss his petition as untimely, was not acting as the “impartial and
disinterested tribunal” that due process required. Marshall v. Jerrico, Inc., 446
U.S. 238, 242 (1980). We reject this argument as well, because the PERB‟s
defense of its decision on procedural grounds is no evidence that its decision was
biased in any way. Cf. Withrow v. Larkin, 421 U.S. 35, 47-55 (1975) (The
combination of investigative and adjudicatory functions within an agency, without
a specific showing of bias, does not violate due process.).
 12

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 General24 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

23
Super. Ct. Agency Rev. R. 1 (a). The requirement that a petition “show
service” means that service must be made on or before the date of filing. See
Super. Ct. Civ. R. 5-I (providing that proof of service “shall show the date and
manner of service on the parties”); id. R. 5 (b)(2) (providing that service may be
made by hand delivery, mail, or, if consented to, any other means, including
electronically). Agency Review Rule 1 (h) expressly incorporates Civil Rules 5
and 5-I.
24
The Office of the Corporation Counsel was renamed the Office of the
Attorney General in 2004. See Mayor‟s Order No. 2004-92, 51 D.C. Reg. 6052
(May 26, 2004).
25
Super. Ct. Agency Rev. R. 1 (e).
 13

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 comment27 thus makes clear that the agency must be served as well as

the Attorney General, and the Rule makes only one party—the petitioner—

responsible for service.28 There is no solid textual basis for reading the Rule to

require a different party—for example, the Attorney General or the Clerk of the

Superior Court—to serve the agency.29 And it would be anomalous to place the

burden of serving the PERB on the Attorney General, as Neill proposes, given that

the PERB is an independent agency with its own general counsel, and that the

Attorney General often represents one side (the District government) in disputes

26
Id. cmt.
27
See In re Sealed Case, 141 F.3d 337, 342 (D.C. Cir. 1998) (“We can
assume that if a [rule of procedure] were ambiguous, one might look to a clear
Advisory Note to resolve that ambiguity. . . .”).
28
Cf. Thompson v. District of Columbia, 863 A.2d 814, 816-18 (D.C. 2004)
(affirming the dismissal of a suit against the District because the plaintiff served
the Corporation Counsel, but not the Mayor; rejecting the plaintiff‟s argument that
she “substantially complied” with the rule by serving an agent of the Mayor; and
explaining that the “plain language of the [applicable] rule” requires “that service
of process shall be effected on both the Corporation Counsel and the Mayor”).
29
Cf. D.C. App. R. 15 (c) (providing that in agency cases petitioned directly
to the Court of Appeals, “[t]he Clerk must serve a copy of the petition for review
on the respondent agency.”).
 14

adjudicated by the PERB—i.e., disputes between the District and its public sector

unions.30

Having said this, it must be acknowledged that the text of Rule 1 is

misleading. We think the Superior Court would do well to amend it to state

unambiguously that petitions for review of agency decisions under the CMPA must

(1) name the agency that issued the decision being appealed as the respondent in

the caption and (2) show service by the petitioner on that agency, all other parties

to the agency proceeding, and the Attorney General for the District of Columbia.31

The form petition accompanying the Rule should reflect these requirements.

Additionally, we suggest that the PERB consider adopting the practice of other

District agencies of attaching to its decisions instructions detailing how, where, and

when an aggrieved party may seek review.

B.

30
See, e.g., District of Columbia Metro. Police Dep’t v. District of
Columbia Pub. Emp. Relations Bd., 901 A.2d 784 (D.C. 2006); Teamsters Local
Union 1714 v. District of Columbia Pub. Emp. Relations Bd., 579 A.2d 706 (D.C.
1990).
31
See D.C. Code § 11-946 (2012 Repl.) (granting the Superior Court the
power to amend its rules, subject to approval by this court).
 15

We now turn to the question of whether Neill‟s initial failures to name and

serve the PERB deprived the Superior Court of subject matter jurisdiction to

review the PERB‟s decision even though Neill filed his petition within the thirty-

day period specified by D.C. Code § 1-617.13 (c) and Rule 1 and otherwise

complied with their requirements. The issue of subject matter jurisdiction is a

question of law as to which our review is de novo.32

We read this court‟s decision in IBPO to hold that Neill‟s failure to name the

PERB as respondent did not divest the Superior Court of jurisdiction. In that case,

after concluding that the petitioner violated Rule 1 by not naming the PERB as

respondent, the court explained that “this is not the kind of rules violation that calls

for per se dismissal.”33 The court contrasted the captioning failure with

“mandatory and jurisdictional” filing requirements, such as time limits for filing.34

32
See Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002); see also Drivers,
Chauffeurs & Helpers Local Union No. 639 v. District of Columbia, 631 A.2d
1205, 1213 (D.C. 1993) (reviewing dismissal of a petition for review of a PERB
decision as untimely without specifying the standard of review, implying that the
court applied a de novo standard).
33
IBPO, 680 A.2d at 437.
34
Id. at 437 n.3. This court has said that the thirty-day time limit contained
in D.C. Code § 1-617.13 (c) and Rule 1 for filing a petition for review is
jurisdictional. See, e.g., Fisher v. District of Columbia, 803 A.2d 962, 965 (D.C.
2002) (stating that the Rule 1 time limitation is “mandatory and jurisdictional,” in a
(continued…)
 16

Had the court thought jurisdiction to be in doubt, it would have said so.35

More recent cases lead us to the same conclusion. The Supreme Court and

this court have striven to differentiate jurisdictional rules that limit the court‟s

authority to hear a case from non-jurisdictional “claim-processing” rules that “seek

to promote the orderly process of litigation by requiring that the parties take certain

procedural steps at certain times.”36 Jurisdictional limitations, when not

constitutionally mandated, are an exercise of legislative power and so must be

grounded in statutes or other legislative acts; absent a proper delegation of that

power to the judiciary, procedural requirements imposed only by court rule are not

(continued…)
case where no statutory deadline applied); Drivers, Chauffeurs & Helpers Local
Union No. 639, 631 A.2d at 1213 (stating that “the threshold issue of timeliness”
under both the CMPA and Rule 1 for filing a petition for review of a PERB
decision “goes to the trial court‟s subject matter jurisdiction”). For purposes of
this appeal, we need not decide whether our decisions labeling the time limit
jurisdictional remain good law in light of subsequent Supreme Court cases
(including those cited in the next paragraph) distinguishing jurisdictional rules
from claim-processing rules.
35
See, e.g., In re D.M., 771 A.2d 360, 364 (D.C. 2001) (“Where a
substantial question exists as to this court‟s subject matter jurisdiction, it is our
obligation to raise it, sua sponte, even though, as here, no party has asked us to
consider it.”) (citation and alterations omitted).
36
Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011).
 17

jurisdictional in nature—they are claim-processing rules that (unlike the

requirements of subject-matter jurisdiction) may be relaxed or waived.37

Indeed, the Superior Court Rules of Civil Procedure state explicitly that they

“shall not be construed to extend or limit the jurisdiction of this Court.”38 It is true,

as we have indicated, that a jurisdictional provision in a statute may (explicitly or

implicitly) delegate or leave to the court the responsibility to specify or define the

precise jurisdictional condition in a rule, thereby rendering the rule jurisdictional to

that extent. For example, the District of Columbia Administrative Procedure Act

provides that petitions for review in this court “shall be filed . . . within such time

as [this court] may by rule prescribe. . . .”39 We have held that our implementing

37
See Gatewood v. District of Columbia Water & Sewer Auth., 82 A.3d 41,
48 (D.C. 2013) (explaining that claims-processing rules are “typically promulgated
by a decision-making body” and jurisdictional rules are “most often legislative
enactments”); id. at 46 (“Jurisdictional rules may be raised at any point in the
proceedings and are not subject to waiver, however late they are invoked. By
contrast, nonjurisdictional rules and deadlines may be extended or waived.”); see
also Bowles v. Russell, 551 U.S. 205, 211-13 (2007); Smith v. United States, 984
A.2d 196, 200-01 (D.C. 2009). It should be noted that even statutory restrictions
governing the cases courts may hear are not to be deemed jurisdictional unless the
intent of the legislature is clear. See Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct.
817, 824 (2013).
38
Super. Ct. Civ. R. 82.
39
D.C. Code § 2-510 (a) (2012 Repl.).
 18

rule, which provides a thirty day period for a party to seek review, is

jurisdictional.40 Similarly, D.C. Code § 11-721 (2012 Repl.) provides that this

court has jurisdiction to hear appeals by aggrieved parties from orders or

judgments of the Superior Court. How, then, does an aggrieved party “appeal”?

The statute does not spell that out, but our implementing rule specifies it is done by

filing a notice of appeal that identifies the appellant(s) and the judgment or order

being appealed.41 We have held these definitional requirements to be

jurisdictional.42 The Supreme Court likewise has held that “both a notice [of

appeal] and its contents are jurisdictional prerequisites.”43 But this certainly does

not mean that the caption or form of an otherwise compliant notice has

40
See D.C. App. R. 15 (a)(2); Capitol Hill Restoration Soc. v. Mayor’s
Agent for Historic Preservation, 44 A.3d 271, 277 (D.C. 2012).
41
See D.C. App. R. 3 (a), (c).
42
See Patterson v. District of Columbia, 995 A.2d 167, 170 (D.C. 2010)
(holding that identification of appellant in notice of appeal is a jurisdictional
requirement, and that the failure to name a party in a notice to appeal “constitutes a
failure of that party to appeal”) (quoting Torres v. Oakland Scavenger Co., 487
U.S. 312, 316 (1988)); Vines v. Mfrs. & Traders Trust Co., 935 A.2d 1078, 1083
(D.C. 2007) (holding that failure to designate the judgment or order being appealed
is a jurisdictional defect).
43
Gonzalez v. Thaler, 132 S. Ct. 641, 651 (2012); see also Smith v. Barry,
502 U.S. 244, 248 (1992) (“Rule 3‟s dictates are jurisdictional in nature, and their
satisfaction is a prerequisite to appellate review.”).
 19

jurisdictional significance.44 Nor do the foregoing cases mean that the various

other procedural requirements imposed by rule for perfecting a petition for review

of agency action or an appeal from the Superior Court are jurisdictional.45

The relevant statute in this case, D.C. Code § 1-617.13 (c), does not specify

that petitions for review of PERB decisions must name the deciding agency as

respondent in the caption of the petition; it simply states that “[a]ny person

aggrieved by a final order of the Board . . . may obtain review of such order by

filing a request within 30 days after the final order has been issued.” There is no

doubt that Neill filed such a request, or that in it he identified himself, the PERB,

and the final order he sought to have reviewed. The formal pleading requirement

with which Neill failed to comply, that the PERB be identified as the respondent,

44
See D.C. App. R. 3 (c)(4) (“An appeal may not be dismissed for
informality of form or title of the notice of appeal, or for failure to name a party
whose intent to appeal is otherwise clear from the notice.”).
45
See D.C. App. R. 3 (a)(2) (“An appellant‟s failure to take any step other
than the timely filing of a notice of appeal does not affect the validity of the appeal,
but is ground only for the Court of Appeals to act as it considers appropriate,
including dismissal of the appeal.”); see also, e.g., Moore Energy Res., Inc. v.
Pub. Serv. Comm’n, 785 A.2d 300, 304-06 (D.C. 2001) (holding that the
requirement in Rule 15 (a) that counsel for a corporation sign a petition for review
is not jurisdictional); Montgomery v. Docter, Docter & Salus, P.C., 578 A.2d 176,
177-78 (D.C. 1990) (payment of a filing fee and filing of copies of the notice of
appeal, as required by the appellate rules, held “not a jurisdictional prerequisite,”
albeit the latter filing requirement is “essential to the processing of an appeal”).
 20

derives only from Rule 1. It may be an important claim-processing requirement,

but it is not part of the essential definition of a “request” for review. No statute

delegates to the Superior Court the authority to impose such a technical pleading

requirement as a jurisdictional prerequisite to the review of PERB decisions. We

therefore are comfortable reaffirming the implicit holding of IBPO that, while a

petitioner‟s failure to name the agency as respondent in a Rule 1 petition for

review may have other consequences, it does not divest the Superior Court of

jurisdiction.

Turning to Neill‟s failure to effect timely service on the PERB, the CMPA

does not impose any particular service requirement as a condition of invoking the

jurisdiction of the Superior Court. As we have emphasized, D.C. Code § 1-617.13

(c) provides that “filing” a timely request is all a person aggrieved by a final order

of the PERB need do to obtain judicial review. “Filing” is a term of limited

meaning; it does not encompass the concept of service.46 Service of process goes

46
See, e.g., Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939) (“The
word „filed‟ . . . is, as applied to court proceedings, a word of art, having a long
established and well understood meaning, deriving from the practice of filing
papers on a string or wire. It requires of one filing a suit, merely the depositing of
the instrument with the custodian for the purpose of being filed. . . . [I]t charges
him with no further duty[.]”); BLACK‟S LAW DICTIONARY 660 (8th ed. 1999)
(defining “file” as “To deliver a legal document to the court clerk or record
custodian for placement into the official record”). The distinction between filing
(continued…)
 21

to the court‟s power over the party to be served, not the court‟s ability to consider

the subject matter of the case, i.e., its subject-matter jurisdiction.47 Our cases

reflect that distinction. For example, in the analogous context of petitions for

review filed in this court, we have rejected the argument that a petitioner‟s failure

to timely serve intervenors affects the court‟s subject matter jurisdiction.48 And

(continued…)
and service is well-established in our jurisprudence. See, e.g., Varela v. Hi-Lo
Powered Stirrups, 424 A.2d 61, 67-68 (D.C. 1980) (en banc) (recognizing the
“clear understanding that the manner by which an action is commenced [via filing
of the complaint with the court] . . . presents a completely different and separable
array of considerations from the manner by which service of process is to be
made”) (emphasis in the original).
47
See Henderson v. United States, 517 U.S. 654, 656 (1996) (“We hold
that, in actions arising under federal law, commenced in compliance with the
governing statute of limitations, the manner and timing of serving process are
generally nonjurisdictional matters of „procedure‟ controlled by the Federal
Rules.”); 4 CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FED.
PRACTICE AND PROCEDURE § 1063 (3d ed. 2002) (distinguishing the concepts of
subject matter jurisdiction, venue, personal jurisdiction, and service of process);
see also Super Ct. Civ. R. 12 (b) (providing for lack of subject matter jurisdiction
and defective service as separate defenses); McKnight v. Scott, 665 A.2d 973, 975-
76 (D.C. 1995) (considering separately questions of subject matter jurisdiction and
improper service, and noting that “[t]he purpose of service of process is to ensure
that all parties have notice of a legal proceeding”).
48
Myrick v. District of Columbia Bd. of Zoning Adjustment, 577 A.2d 757,
762 n.11 (D.C. 1990).
 22

insufficiency of service may be waived,49 while subject matter jurisdiction may

not.50 We readily conclude that the service requirements of Agency Review Rule 1

are not jurisdictional in character, and that Neill‟s failure to serve the PERB within

the thirty-day filing period therefore did not divest the Superior Court of subject

matter jurisdiction over his petition.

C.

Finally, we consider whether Neill‟s non-compliance with Rule 1, although

it did not deprive the court of subject matter jurisdiction, nevertheless justified

dismissal (with or without prejudice).51 Superior Court Civil Procedure Rule 41

(b) gives the trial court authority to dismiss any claim or action for failure of the

49
McLaughlin v. Fidelity Sec. Life Ins., 667 A.2d 105, 107 n.5 (D.C. 1995);
see also Super. Ct. Civ. R. 12 (h)(1) (“A defense of . . . insufficiency of process, or
insufficiency of service of process is waived” unless included in either a
responsive pleading or a motion to dismiss.).
50
Upson v. Wallace, 3 A.3d 1148, 1155 (D.C. 2010) (“As a general rule,
subject matter jurisdiction may not be waived. . . .”); see also Super. Ct. Civ. R. 12
(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the
Court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).
51
Because the thirty-day time period for filing his petition for review had
run by the time the court dismissed Neill‟s petition, it makes no difference to him
whether the dismissal was with or without prejudice—either way, the dismissal
was final.
 23

plaintiff to comply with procedural rules, including, in principle, captioning and

service irregularities.52 However, because Neill‟s errors were not willful, the

record does not show prejudice to the other parties, and the trial court did not

consider alternative sanctions, we conclude that dismissal of the petition was

unwarranted.

Some claim-processing rules, although not jurisdictional, are considered

“inflexible,” meaning they are strictly enforced when the opposing party properly

invokes them.53 IBPO made clear that the captioning rule is not in that category.54

As to the service requirement of Rule 1, analogous provisions in the Civil Rules

allow for a case to proceed despite improper or untimely service if the court finds

good cause why the case should not be dismissed—i.e., that the violation should be

excused.55 We conclude similarly that imperfect service under Rule 1 does not

require automatic dismissal.

52
Super. Ct. Civ. R. 41(b); see also Techniarts Video, Inc. v. 1631
Kalorama Assocs., 572 A.2d 1051, 1053 n.10 (D.C. 1990); Wagshal v. Rigler, 711
A.2d 112, 116 (D.C. 1998); IBPO, 680 A.2d at 436 n.2.
53
See In re Na. H., 65 A.3d 111, 115-17 (D.C. 2013).
54
680 A.2d at 436-37 & n.2.
55
See Super. Ct. Civ. R. 4 (m), 41 (b); Baba v. Goldstein, 996 A.2d 799,
802-04 (D.C. 2010); Wagshal, 711 A.2d at 114-16.
 24

Because neither the captioning nor the service requirement is “inflexible,”

the trial court, in exercising its Rule 41 (b) authority, has discretion to determine

the penalty for noncompliance with them.56 Because of its severity, however,

dismissal may be imposed as a sanction for the failure to comply with procedural

requirements or other misconduct only in “extreme circumstances and only after

the trial court has considered lesser sanctions.”57 The court must consider

“whether the conduct calling for sanctions was willful and whether the other party

was prejudiced by it, and the sanction imposed should, wherever possible, be

56
See IBPO, 680 A.2d at 436-37 & n.2; Wolfe v. Fine, 618 A.2d 169, 172-
73 (D.C. 1992); White v. Wash. Metro. Area Transit Auth., 432 A.2d 726, 728
(D.C. 1981). We recognize that when a decision is committed to trial court
discretion, an appellate court cannot substitute its own discretionary judgment for
that of the trial court. See Johnson v. United States, 398 A.2d 354, 362 (D.C.
1979). However, where we conclude that “the facts . . . leave the trial court with
but one option it may choose without abusing its discretion,” id. at 364, we need
not remand for the trial court to exercise that discretion as, in essence, a mere
formality. See Wright v. United States, 508 A.2d 915, 920 (D.C. 1986); Ibn–
Tamas v. United States, 407 A.2d 626, 635 (D.C. 1979). We deem this principle
applicable here.
57
Techniarts Video, 572 A.2d at 1054; see also, e.g., Solomon v. Fairfax
Vill. Condo. IV Unit Owner’s Ass’n, 621 A.2d 378, 379 (D.C. 1993) (per curiam)
(“Of all the weapons in the judicial arsenal available to a trial court to discourage
dilatory behavior during litigation, perhaps none is so lethal as a dismissal with
prejudice.”); LaPrade v. Lehman, 490 A.2d 1151, 1155 (D.C. 1985) (“In the
exercise of its discretion under Rule 41(b), the trial court „should first resort to the
wide range of lesser sanctions which it may impose.‟”) (quoting Garces v. Bradley,
299 A.2d 142, 144 (D.C. 1973)).
 25

tailored to the offense.”58 “[A]t least as a general proposition, dismissal with

prejudice is an appropriate sanction only upon clear evidence of deliberate delay or

upon a showing of contumacious conduct by the plaintiff.”59

Judged by those standards, it cannot be maintained that Neill‟s initial failure

to properly caption and serve his petition for review was sufficient justification for

dismissing his petition. Neill‟s errors plainly appear to have resulted from

inadvertence or negligence at worst, not “contumacious conduct.”60 Once Neill‟s

attorney learned that he was required to serve the PERB, he did so promptly.

Similarly, when advised to do so by the trial court, Neill without delay submitted

an amended petition with a proper caption. And although Neill‟s errors caused a

somewhat lengthy delay, the PERB and the union suffered no evident prejudice as

a result.61

58
Techniarts Video, 572 A.2d at 1054 (citations omitted).
59
Wolfe, 618 A.2d at 173 (alteration and internal quotation marks omitted);
see also Granville v. Hunt, 566 A.2d 65, 66 (D.C. 1989).
60
Wolfe, 618 A.2d at 173.
61
See id. (“When the conduct calling for sanctions consists of delay, . . .
relevant factors include the length of the delay and the resulting prejudice, if any,
to the defendant.”).
 26

Our conclusion that dismissal was too severe a sanction is confirmed by our

cases. In IBPO, we held that failing to name the PERB as respondent did not

require dismissal because the body of the petition correctly identified the PERB as

the agency that issued the order from which relief was sought.62 The same is true

here. In addition, the PERB “received actual notice of the suit, was properly

served, filed responsive pleadings, and obtained the consent of all parties to

intervene in the proceeding,” and thus “acted, for all practical purposes, as the

respondent it truly [was].”63 Ultimately, that was true here as well.

The only meaningful difference between this case and IBPO is the timing of

service on the agency. It is undeniable that Neill‟s failure resulted in a significant

delay. The PERB should have been served on March 1; it was not served until

June 29. The agency record should have been filed by April 30; it was not filed

until October 2. Nonetheless, according to the docket, nothing of significance

occurred during that time other than the scheduling and re-scheduling of an initial

conference. There is no indication, on this record at least, that the delay

compromised the defense of the PERB‟s decision or caused the FOP to incur costs

62
680 A.2d at 438.
63
Id.
 27

by litigating in place of the agency. And unaccompanied by willful misconduct or

prejudice, the delay of a few months was not so prolonged that it could be said to

justify the sanction of dismissal by itself.64

This court‟s decision in Francis v. Recycling Solutions, Inc.,65 on which the

PERB relies, provides an apt contrast. In that case, we upheld the trial court‟s

dismissal of a lawsuit challenging the award of a recycling contract where the

plaintiff (the losing bidder) incorrectly named as the defendant the winning bidder

rather than the agency that made the award. The plaintiff had not served the

agency and had fought against its entry in the litigation as a party, imposing court

costs and attorney‟s fees on the winning bidder forced to litigate the case in the

agency‟s stead.66 And in addition to naming the wrong defendant, the plaintiff, the

director of a District of Columbia governmental agency, was herself an improper

64
See Lofton v. Kator & Scott, 802 A.2d 955, 957-58 (D.C. 2002) (holding
that the trial court abused its discretion in dismissing a case after the parties
allowed it to lay “dormant for at least fourteen-and-a-half-months”); Dobbs v.
Providence Hosp., 736 A.2d 216, 220 (D.C. 1999) (“[A]n isolated instance of
delaying conduct may not typically support dismissal. . . .”).
65
695 A.2d 63 (D.C. 1997).
66
Id. at 78-79.
 28

party, for she lacked the statutory authority to sue.67 None of those factors is

present here.68

Neill‟s mistakes were not willful and did not cause the kind of harm that

justifies dismissal. Indeed, on this record, it does not appear that the PERB or the

union suffered any prejudice at all. We recognize, however, that the trial court has

never squarely considered the issue of prejudice. On remand, therefore, it remains

open for the court to do so and, if it deems it appropriate, to fashion a remedy

“tailored to the offense,” for example an award of costs.69

67
Id.
68
It is true that Neill has persisted in arguing that the PERB is not a proper
party to the case. But he raised his meritless Article III standing argument only
after he complied with the service requirement and amended his petition to name
the PERB as the respondent, and then only after the Superior Court dismissed his
amended petition anyway. In Francis, the agency was never served. 695 A.2d at
78.
69
Techniarts Video, Inc. v. 1631 Kalorama Assocs., 572 A.2d 1051, 1054
(D.C. 1990); see also LaPrade v. Lehman, 490 A.2d 1151, 1155-56 (D.C. 1985)
(“Alternative sanctions include . . . an assessment of the defendant‟s costs and
reasonable fees against the plaintiff . . . or a finding that [the] plaintiff‟s lawyer is
in contempt of court and the imposition of a fine.”).
 29

III.

For the foregoing reasons, we reverse the Superior Court‟s dismissal of

Neill‟s petition for review and remand for further proceedings consistent with this

opinion.

So ordered.