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Brewer v. District of Columbia Office of Employee Appeals

Court of Appeals of Columbia District

July 20, 2017

Barbara Brewer, Appellant,
v.
District of Columbia Office of Employee Appeals and District of Columbia Public Schools, Appellees.

          Argued October 28, 2016

         Appeals from the Superior Court of the District of Columbia (CAP-6579-14) (Hon. Robert Okun, Trial Judge)

          Barbara Brewer, pro se.

          Stacy 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.

          Before Glickman and McLeese, Associate Judges, and Steadman, Senior Judge.

          STEADMAN, SENIOR JUDGE.

         Pro 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.

         I. Factual and Procedural History

         Brewer 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 appeal rights.

         Brewer initially sought review in our court of the OEA dismissal, filing her petition for review with us on July 15, 2014.[1] 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.[2]

         In lieu 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.

         Proceedings 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.[3] 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.

         II. Timeliness of Petition: ...


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