FOP v. D.C. Metropolitan Police Dep't

Citation: Not availableDocket: 18-CV-1267

Court: District of Columbia Court of Appeals; July 14, 2022; District Of Columbia; State Supreme Court

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Notice is given that this opinion is subject to formal revision before publication. In the case of Fraternal Order of Police/Metropolitan Police Department Labor Committee v. District of Columbia Metropolitan Police Department, an appeal was filed regarding the election of remedy provisions in D.C. Code 1-616.52(e, f) concerning adverse employment actions for District employees. These provisions allow employees to choose between appealing to the Office of Employee Appeals (OEA) or using a negotiated grievance procedure, with the stipulation that they can only select one forum based on which they file first.

The specific case involved Officer Justin Linville, who faced termination but was not timely notified of the adverse action recommendation. To protect his appellate rights, Linville filed a preliminary OEA appeal while also pursuing arbitration through his union, the Fraternal Order of Police (FOP). He later withdrew his OEA appeal after his union agreed to arbitrate the dispute. The arbitrator ruled that Linville’s initial filing with OEA was a 'protective' measure and did not bind him to that forum, citing MPD's inadequate notification as the reason for Linville's constrained choice.

The Public Employee Relations Board affirmed the arbitrator's decision, but the Superior Court overturned it, claiming Linville elected OEA as his exclusive forum upon filing. The appellate court disagreed, stating that the first-filing rule does not impose jurisdictional limits, allowing the arbitrator to resolve the issue of arbitrability as per the parties' agreement. The court reversed the Superior Court's decision, affirming the arbitrator's authority.

The arbitrator determined that Officer Justin Linville was not bound to the Office of Employee Appeals (OEA) as his appellate forum due to the Metropolitan Police Department's (MPD) ineffective service, which hindered Linville's ability to choose between appeal options. Consequently, this conclusion was upheld by the court, vacating the Superior Court's order and reinstating the Public Employee Relations Board's (PERB) decision supporting the arbitral award. 

In 2008, MPD discovered that Linville had failed to report two criminal summonses from 2005 and subsequently charged him with violations that led to a recommendation for termination, effective December 18, 2009. MPD's attempt to serve Linville with the final notice on November 2, 2009, was inadequate, as it was left at an unspecified location, leaving Linville unaware of his termination until January 12, 2010. By that time, he had missed the opportunity to appeal to OEA, which required filing within thirty days of adverse action. 

Linville sought to file a "protective appeal" to OEA on January 19, 2010, just days before the deadline, while he also pursued internal challenges to the termination. The Chief of Police affirmed his termination on February 8, 2010, and the Fraternal Order of Police (FOP) requested arbitration on March 2, 2010. Linville had two concurrent appeals, one with OEA and one for arbitration, but withdrew his OEA appeal after receiving a pre-hearing conference notice. Arbitration proceedings eventually began in 2014, during which MPD contested the arbitrability of Linville's grievance based on jurisdictional claims.

The Comprehensive Merit Personnel Act (CMPA) allows an employee to either arbitrate a grievance under a collective bargaining agreement or appeal to the Office of Employee Appeals (OEA), but not both. MPD contended that Linville’s choice to appeal to OEA was irrevocable after he filed there, thus barring arbitration. However, the arbitrator disagreed, stating that the CMPA does not specify that an employee's choice is irrevocable and highlighted that MPD’s failure to timely serve Linville with termination notice limited his ability to choose between appeal options. The arbitrator found the case arbitrable and ordered parties to brief the merits of Linville’s grievance.

On the merits, MPD claimed it adequately served Linville by leaving a notice at his door, but the arbitrator ruled this violated the collective bargaining agreement, ordering Linville's reinstatement with back pay. MPD appealed the arbitrability ruling to the Public Employee Relations Board (PERB) but did not contest the merits to avoid contradictory positions. PERB upheld the arbitrability ruling, stating that MPD only disagreed with the arbitrator's interpretation of the CMPA without citing legal precedents against it.

Subsequently, MPD appealed to the Superior Court, which overturned PERB's decision, agreeing with MPD that the arbitrator lacked jurisdiction since Linville's initial appeal to OEA was the sole forum for his grievance. The court found no grounds for equitable exceptions in the CMPA and stated that Linville's failure to be served with notice meant the filing deadlines had not commenced, allowing for a meaningful choice of appeal forums.

FOP appeals on behalf of Linville, arguing that the trial court incorrectly overturned the decision of the Public Employee Relations Board (PERB). The court reviews the PERB decision directly, rather than the Superior Court's ruling. PERB's authority to review arbitration awards is limited to specific grounds: if the arbitrator lacked jurisdiction, if the award is contrary to law and public policy, or if it resulted from fraud or similar means. The court must defer to PERB's interpretation of the relevant statute, unless it is clearly erroneous.

MPD contends that the arbitrator lacked jurisdiction to hear Linville's grievance due to Linville's prior appeal to the Office of Employee Appeals (OEA), claiming this constituted a jurisdictional bar. However, the court disagrees, emphasizing the distinction between jurisdictional rules, which define a court's authority, and non-jurisdictional claim-processing rules, which facilitate litigation. The court notes that jurisdictional rules have severe implications and cannot be waived or relaxed, in contrast to claim-processing rules.

To determine if the statute imposes jurisdictional consequences, the court will examine the statute's text for jurisdictional language and utilize traditional statutory interpretation methods to ascertain legislative intent.

Jurisdictional language typically includes phrases that explicitly limit the ability to file or maintain actions in specific forums, such as "an appeal may not be taken" and "no action shall be brought under." In contrast, D.C. Code 1-616.52(e, f) lacks such language. Instead, it allows an aggrieved employee to choose between statutory procedures or a negotiated grievance procedure without specifying that filing in one precludes the other. The statute mandates that the employee's choice is made upon the timely filing of either an appeal or grievance, but it does not indicate that subsequent filings must be dismissed.

Furthermore, there is no indication from the statute or its legislative history that the D.C. Council intended for D.C. Code 1-616.52(e, f) to impose jurisdictional limitations. The legislative history mentions jurisdictional constraints only regarding D.C. Code 1-616.52(b), which restricts grievances eligible for appeal to the Office of Employee Appeals based on the severity of disciplinary actions. The absence of similar language or intent in the context of D.C. Code 1-616.52(e, f) supports the conclusion that it is not jurisdictional in nature. Consequently, the trial court's conclusion to the contrary was erroneous. The parties had agreed for an arbitrator to determine the issue of arbitrability, and the arbitrator acted within his jurisdiction. The discussion shifts to whether the arbitral award violated the law, as per D.C. Code 1-605.02(6), with MPD presenting two arguments on this matter.

MPD argues that D.C. Code 1-616.52(e, f), even if considered a non-jurisdictional claim-processing rule, is mandatory and must be enforced without exception when timely invoked. However, for such a rule to be deemed mandatory, there must be a clear intent in the statute to preclude equitable relief, which is not evident in this case. The language of D.C. Code 1-616.52(e, f) does not explicitly indicate that equitable exceptions are not permitted, nor does the legislative history provide such clarity. MPD's reliance on previous case law, specifically Brown v. Watts, which asserts that an employee must choose between appeal methods at the outset, does not negate potential exceptions, as that statement was ancillary to the case’s outcome. The arbitrator found that Linville's choice was not genuinely exercised due to delayed service, which prevented him from pursuing arbitration on time. The statute suggests that an employee’s option is binding only when it can be exercised at their discretion, which was not the case for Linville. The interpretation that would penalize Linville lacks legislative purpose, as he did not act with a lack of diligence, and no significant administrative resources were wasted. Any prejudice to MPD was largely self-inflicted.

MPD’s interpretation of the CMPA is inconsistent with its intent to protect employees' rights to appeal adverse actions. The arbitrator’s interpretation of the statute aligns with legal standards. MPD argues that Linville had no reason to believe the OEA filing deadline was approaching since he received notice of the adverse action decision months later, thus claiming he was not in a bind regarding appeal deadlines. However, it is emphasized that Linville’s cautious approach in filing his OEA appeal was reasonable, as he could not assume he would ultimately be vindicated regarding the timing of his service. MPD's prior assertion that its November 2 service was adequate undermines its current criticism of Linville's actions. Without a concession from MPD regarding the adequacy of the service, Linville acted prudently to preserve his right to appeal. PERB’s acceptance of the arbitrator's rationale for allowing Linville to withdraw his OEA appeal and proceed with arbitration was justified. The court vacates the Superior Court’s order and reinstates PERB’s affirmation of the arbitrator’s award.