October 28, 2016
from the Superior Court of the District of Columbia
(CAP-6579-14) (Hon. Robert Okun, Trial Judge)
Barbara Brewer, pro se.
L. Anderson, Senior Assistant Attorney General, with whom
Karl A. Racine, Attorney General for the District of
Columbia, Todd S. Kim, Solicitor General, and Loren L.
AliKhan, Deputy Solicitor General, were on the brief, for
appellee District of Columbia Public Schools.
Lasheka Brown Bassey, General Counsel, filed a statement in
lieu of brief on behalf of appellee District of Columbia
Office of Employee Appeals.
Glickman and McLeese, Associate Judges, and Steadman, Senior
STEADMAN, SENIOR JUDGE.
se appellant Barbara Brewer (Brewer) sought Superior
Court review of an unfavorable order of the Office of
Employee Appeals (OEA). The appeal was dismissed because it
was filed in the Superior Court beyond the thirty-day
deadline of Super. Ct. Agency Rev. R. 1 (a). The issue in
this appeal is whether this deadline is inflexible, as the
trial court ruled, or whether it may be extended in
appropriate circumstances. In Mathis v. District of
Columbia Housing Authority, 124 A.3d 1089 (D.C. 2015), a
decision rendered subsequent to the dismissal in this case,
we held that such a deadline in an agency appeal may be
subject to equitable tolling. We therefore vacate the order
of dismissal and remand the case for further proceedings in
the trial court.
Factual and Procedural History
was employed by the District of Columbia Public Schools
(DCPS) as a teacher and was subsequently terminated. Brewer
appealed the termination to the OEA. On June 10, 2014, the
OEA dismissed the action for want of jurisdiction on the
ground that Brewer was a probationary employee with no OEA
initially sought review in our court of the OEA dismissal,
filing her petition for review with us on July 15,
2014. On August 14, 2014, we issued an order to
show cause why the petition should not be dismissed, since
the relevant statute, D.C. Code § 1-606.03 (d) (2014
Repl.), required that appeals from the OEA be taken first to
the Superior Court. Having received no response, we dismissed
Brewer's appeal on September 24, 2014.
of responding to our show cause order, on August 27, 2014,
Brewer attempted to file a motion in the Superior Court
asking for an extension of time to file a petition with that
court. The filing was rejected by the clerk's office
because there was no existing Superior Court case on which to
extend time. In response, on September 25, 2014, Brewer
attempted to file a petition for review for the OEA decision
in the Superior Court. On September 30, 2014, this petition
was rejected by the clerk's office on the ground that it
did not properly show the addresses of the parties. Finally,
on October 15, 2014, the revised petition for review was
accepted by the Superior Court for filing.
then commenced in the Superior Court. The first response from
the government did not come until January 14, 2015, when the
District of Columbia Public Schools (DCPS) filed a motion for
an enlargement of time beyond the thirty-day time limit in
Super. Ct. Agency Rev. R. 1 (c) within which to file a notice
of intention to intervene. The trial court granted the motion
for enlargement of time on February 6, 2015. On February 10,
2015, DCPS moved to dismiss Brewer's petition for want of
jurisdiction, which the trial court granted on July 2, 2015.
The trial court held that the thirty-day time limit in Super.
Ct. Agency Rev. R. 1 (a) within which to file a petition for
review is mandatory and jurisdictional, allowing the court no
discretion to extend the time. In a brief closing footnote,
the trial court stated that even if the thirty-day deadline
was not jurisdictional, it would dismiss the appeal on the
ground that the time limit for appeal was a mandatory
claim-processing rule requiring dismissal if a motion for
such dismissal is properly made.
Timeliness of Petition: ...