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District of Columbia Metropolitan Police Dep't v. Fraternal Order of Police/Metropolitan Police Dep't Labor Committee

June 24, 2010


Appeal from the Superior Court of the District of Columbia (CAB 3077-06) (Hon. Mary A. Gooden Terrell and Natalia M. Combs Greene, Trial Judges).

The opinion of the court was delivered by: Oberly, Associate Judge

Argued February 2, 2010

Before KRAMER and OBERLY, Associate Judges, and PRYOR, Senior Judge.

The Fraternal Order of Police/Metropolitan Police Department Labor Committee ("FOP") obtained an arbitral award in favor of several of its members, pursuant to a collective bargaining agreement with the D.C. Metropolitan Police Department ("MPD"). MPD appealed the award to the District of Columbia Public Employee Relations Board ("PERB" or "the Board"), and the Board entered an order affirming the award. FOP then filed a motion in Superior Court to confirm the arbitration award under the D.C. Uniform Arbitration Act. D.C. Code §§ 16-4301 (2001), et seq. The Superior Court granted FOP's motion. We reverse. We hold that the Comprehensive Merit Personnel Act ("CMPA"), D.C. Code §§ 1-601.01, et seq. (2001 & 2009 Supp.), preempts FOP's motion to confirm the award under the Arbitration Act. Second, even if the CMPA does not have such preemptive effect, we hold that FOP had no right to proceed under the Arbitration Act because FOP failed to exhaust its remedies before the Board before seeking relief in Superior Court.

Before turning to the merits, we must resolve two threshold issues. First, there is a question of appellate jurisdiction. After the Superior Court granted FOP's motion to confirm the award, MPD filed a motion for reconsideration. Contrary to FOP's argument, we hold that the motion tolled MPD's time for noting its appeal of the order confirming the award. Second, we must address MPD's argument that the trial court lacked personal jurisdiction over it because FOP initiated its action without serving the Mayor of the District of Columbia or the Attorney General for the District of Columbia. We reject MPD's personal jurisdiction argument.


On December 12, 2003, MPD Officer Pablo Figueroa, along with four other officers, and on behalf of all similarly situated employees, brought a grievance against MPD, complaining that MPD assigned him the duty of Detective Sergeant without providing him an associated $595.00 per year, as allegedly required by law. The Chief of Police denied the grievance on December 29, 2003, and the dispute went to arbitration pursuant to the collective bargaining agreement between MPD and appellee, FOP. On June 28, 2004, the arbitrator ruled for FOP.

MPD then filed an Arbitration Review Request with the Board, seeking review of the arbitrator's award. On September 30, 2005, the Board denied the request and entered an order affirming the award. Although FOP asserts that MPD failed to comply with the terms of the award, FOP did not - as it could have, see 6-B DCMR § 560.1 - petition the Board to enforce its order affirming the award. Nor did FOP file a complaint with the Board alleging that MPD's failure to honor the award constituted an unfair labor practice. See D.C. Code § 1-605.02 (3) (2001); 6-B DCMR §§ 520.1, et seq.

Instead, on April 21, 2006, FOP filed in Superior Court a motion to confirm the award as a judgment under the District of Columbia Uniform Arbitration Act, D.C. Code §§ 16-4301, et seq. In the caption of its motion, FOP listed "Fraternal Order of Police, Metropolitan Police Department Labor Committee" as the "Plaintiff," and "District of Columbia/Metropolitan Police Department" as the "Defendant."

According to the affidavit of service, FOP caused service of its motion to confirm the award to be made on MPD at "MPD Headquarters, 300 Indiana Avenue (Fourth Floor), NW, Washington, DC 2000[1]." The process server left a copy of the summons, complaint (meaning, presumably, FOP's motion to confirm), and the initial order in the case with one Linda Tolson; the affidavit averred that Ms. Tolson "works with the defendant." MPD has never disputed that its headquarters are located at the address stated in the affidavit.

The District's Attorney General responded to FOP's motion and, on MPD's behalf, moved to dismiss. (For ease of reference, we will refer to the Attorney General's position as MPD's position.) MPD argued first that FOP failed to comply with Super. Ct. Civ. R. 4 (j)(1), which prescribes the method for service "upon the District of Columbia, an officer or agency thereof, or upon other government entities subject to suit." Raising no objection to its capacity to be sued in its own name (more on this later), MPD argued that to "serve a District agency, a plaintiff must serve: (1) the Mayor; (2) the Attorney General; and (3) the agency." MPD did not question FOP's service of the agency, i.e., itself, and did not contest that Ms. Tolson was authorized to accept service on MPD's behalf. Rather, MPD argued that service was ineffective, and thus personal jurisdiction was lacking, because FOP failed to serve the Mayor and the Attorney General. Second, MPD argued that FOP could not invoke the Arbitration Act because FOP "fail[ed] to exhaust its administrative remedies" and because "the CMPA places the authority to enforce PERB's orders exclusively with the PERB."

Judge Mary Terrell denied MPD's motion to dismiss and, on February 26, 2008, granted FOP's motion to confirm. On March 13, 2008, MPD sought reconsideration of the order granting FOP's motion to confirm. On October 31, 2008, Judge Natalia Combs Greene orally denied MPD's motion for reconsideration, reasoning that the motion was untimely and that she could not "get behind Judge Terrell's reasoning on the other issues." On December 1, 2008, MPD filed a notice of appeal, seeking review of the Superior Court's order granting FOP's motion to confirm the arbitration award and the Superior Court's order denying MPD's motion for reconsideration.

On February 6, 2009, MPD filed in this court a motion for summary reversal, largely repeating the arguments that it made in its pleadings before the Superior Court. With respect to its "personal jurisdiction" argument, MPD asserted: "FOP did not effect service of process on the District of Columbia. FOP served neither the Mayor nor the Attorney General nor their designees, but instead served Linda Tolson, described as a person who 'works with the defendant' - i.e., MPD." In response, FOP argued that it did not have to serve the District because it filed its motion against MPD, not the District; FOP also argued that it properly served MPD by delivering a copy of the summons and motion to confirm to Ms. Tolson, an agent of MPD. In reply, MPD complained for the first time that the affidavit of service did not sufficiently establish that Ms. Tolson had authority to accept service on behalf of MPD. MPD did not contest, and never has contested, that Ms. Tolson in fact possessed such authority.

We denied the motion for summary reversal because summary treatment is reserved for cases where "the trial court's ruling rests on a narrow and clear-cut issue of law," Oliver T. Carr Mgmt., Inc. v. National Delicatessen, Inc., 397 A.2d 914, 915 (D.C. 1979) (per curiam), and, as should become apparent, this case does not fit the bill. Our order denying the motion directed the parties to brief the basic assumption underlying MPD's personal jurisdiction argument - whether, given that FOP was proceeding against MPD, not the District, FOP was required to serve the District. In addition, we invited the Board to file an amicus brief addressing the question whether FOP had a right to seek confirmation of the award in the Superior Court. The Board indeed filed a brief at the merits stage, siding in important respects with MPD. We thank the Board for its submission.


We first must decide whether we have jurisdiction to review the Superior Court's order granting FOP's motion to confirm the award. The timely filing of a notice of appeal is a jurisdictional requirement. Patterson v. Sharek, 924 A.2d 1005, 1009 (D.C. 2007). As a general rule, "[t]he notice of appeal in a civil case must be filed with the Clerk of the Superior Court within 30 days after entry of the judgment or order from which the appeal is taken." D.C. App. R. 4 (a)(1). The thirty-day period is tolled, however, by a Rule 59 motion to alter or amend the judgment or a Rule 60 motion for relief from final judgment, provided that such a motion, whether under Rule 59 or Rule 60, is filed within ten days after judgment is entered. D.C. App. R. 4 (a)(4)(A)(iii) & (v); Super. Ct. Civ. R. 59 (e), 60; Nichols v. First Union Nat'l Bank, 905 A.2d 268, 271-72 (D.C. 2006). MPD filed its notice of appeal on December 1, 2008 - thirty business days after the Superior Court denied its motion for reconsideration, but many months after the court entered the order granting FOP's motion to confirm. The question, therefore, is whether MPD's motion for reconsideration tolled MPD's time for noting its appeal.

The Superior Court entered the order granting FOP's motion to confirm the award on February 26, 2008, and served the order electronically on the parties on the next day. As explained above, to toll the time for noting an appeal, MPD had ten days from the date that the order was entered to file a motion for reconsideration. Under Super. Ct. Civ. R. 6 (a), we exclude from the count February 26 - the day the order was entered. Ten days from February 27, excluding weekends, id., takes us to March 11, two days before MPD filed the motion for reconsideration.

MPD is saved, however, by Super. Ct. Civ. R. 6 (e), which adds three days to the count "[w]henever a party must . . . act within a prescribed period after service and service is made," as it was in this case, "under Rule 5 (b)(2)(B), (C), or (D)." We recognize that on its face, Rule 6 (e) applies only where a party must act "within a prescribed period after service" (emphasis added), whereas to toll the time for noting an appeal a motion for reconsideration must be filed ten days from the date that judgment is "entered." Nichols, 905 A.2d at 271-72. But in Wallace v. Warehouse Employees Union #730, 482 A.2d 801, 807 (D.C. 1984), we held that notwithstanding the literal language of the rules, the mailing extension of Rule 6 (e) applies to motions for a new trial under Rule 59 (e), at least where, as here, "judgment is rendered outside the presence of the parties or counsel." But see Albright v. Virtue, 273 F.3d 564, 571 (3d Cir. 2001) ("[e]very" federal court interpreting the identical federal rules has rejected "the argument that Rule 6 (e) extends the Rule 59 (e) time limit by three days"); 4B WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1171, pp. 586-88 (3d ed. 2002) ("three days will be added under Rule 6 (e) only when the period in question is measured from the service of a notice or other paper; the subdivision is inapplicable when some other act or event commences the time period, such as the entry of a judgment").

FOP argued in the trial court that "the advent of electronic filing" changes things. The argument is not without some appeal. Wallace's gloss on the "literal" text of the rules was driven by the concern that "[i]t would not be reasonable to require that when a case is taken under advisement the parties must on every day thereafter check the records of court to find if action has been taken." 482 A.2d at 806 (quotation marks omitted). It is not obvious that this policy concern applies where service is made electronically.

Having said that, we believe that it is better to follow Wallace in this case than to create a rule under which the applicability of Rule 6 (e) turns on whether service is made electronically or by ordinary mail. To begin, failing to extend Wallace to cases where service is made electronically would undermine Wallace's bright-line rule under which the time for noting an appeal is "precisely ascertainable" - Rule 6 (e) applies if judgment was entered outside the presence of the parties. 482 A.2d at 807. Detracting from this bright-line rule alone is good reason to extend Wallace to e-service cases. "Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case." United States v. Sisson, 399 U.S. 267, 307 (1970); see also Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2354 (2008) (Roberts, C.J., concurring in part) ("'The tendency of the law must always be to narrow the field of uncertainty'") (quoting O. HOLMES, THE COMMON LAW 101 (M. Howe ed. ...

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