Fraternal Order of Police/Metropolitan Police Dep't Labor Comm. v. Dist. of Columbia Metro. Police Dep't

277 A.3d 1272

FRATERNAL ORDER OF POLICE/METROPOLITAN POLICE DEPARTMENT LABOR COMMITTEE, Appellant,

v.DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, Appellee.

No. 18-CV-1267

District of Columbia Court of Appeals.

Argued May 26, 2021

Decided July 14, 2022

Marc L. Wilhite, Washington, for appellant.

Mary L. Wilson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General at the time of argument, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, and McLeese and Deahl, Associate Judges.

Deahl, Associate Judge:

This appeal concerns the election of remedy provisions in D.C. Code § 1-616.52(e) - (f) (2016 Repl.), regarding how certain District employees can appeal adverse employment actions, such as terminations. Those provisions permit aggrieved employees, at their discretion, to either appeal to the Office of Employee Appeals (OEA), or to invoke a negotiated grievance procedure (such as arbitration). D.C. Code § 1-616.52(e). But they must choose one or the other, and cannot proceed in both appellate forums. Id. An employee is generally deemed to have selected their forum based on whichever they file first: an appeal to OEA or a written grievance under the negotiated grievance procedure. D.C. Code § 1-616.52(f). This dispute concerns whether that first-filing rule is an inflexible command, and more specifically, whether an arbitrator's decision that it is not was "on its face ... contrary to law." D.C. Code § 1-605.02(6).

Officer Justin Linville found himself in a bind when selecting his appellate forum after a Metropolitan Police Department (MPD) adverse action panel recommended his termination. Because MPD failed to timely notify Linville of that recommendation, it appeared to Linville that his right to appeal to OEA would expire before he could take the prefatory steps necessary for arbitration, and before he could know whether his union would even agree to demand arbitration on his behalf. Faced with that quandary, Linville first filed a "protective" OEA appeal to ensure that at least one appellate route remained viable in the event arbitration never became an option. He then took the preliminary steps necessary to arbitrate the dispute, culminating with his union—the Fraternal Order of Police (FOP)—agreeing to arbitrate on his behalf. Linville then withdrew his OEA appeal and proceeded with arbitration.

The arbitrator, who the parties agreed would decide the threshold question of arbitrability, found that Linville's initial filing with OEA did not bind him to that forum. The arbitrator reasoned that the OEA appeal was merely a "protective" filing made necessary by "MPD's inadequate and haphazard service," which had deprived Linville of a meaningful choice between forums. Under those "unique facts and circumstances," the arbitrator found the OEA appeal was revocable so that FOP was free to arbitrate the dispute on Linville's behalf. The District of Columbia Public Employee Relations Board's (PERB), under its limited review of arbitral awards, affirmed that decision, finding it was not "on its face ... contrary to law." But the Superior Court overturned the arbitrator's award, reasoning that Linville had elected OEA as his exclusive appellate forum when he first filed an appeal with it, thereby stripping the arbitrator of jurisdiction.

We disagree and reverse. Section 1-616.52(f) ’s first-filing rule is not of jurisdictional import, as the Superior Court concluded. There was thus no jurisdictional impediment to the arbitrator deciding the threshold question of arbitrability, as the parties had bargained for. See generally First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (parties may agree "to arbitrate arbitrability"). Moreover, the arbitrator's conclusion—that Linville was not bound to OEA as his appellate forum because MPD's delinquent service had effectively deprived him of "his ability to make a choice between appeal forums"—was not "on its face ... contrary to law." District of Columbia Metro. Police Dep't v. District of Columbia Pub. Emp. Relations Bd. , 901 A.2d 784, 787, 789 (D.C. 2006). We therefore vacate the Superior Court's order and reinstate PERB's decision upholding the arbitral award.

I.

In 2008, the Metropolitan Police Department discovered that Officer Justin Linville had failed to report his receipt of two criminal summonses for uttering bad checks in 2005. Following this discovery, MPD charged Linville with violating its General Orders and proposed that he be terminated. A hearing was held before an MPD adverse action panel on September 23, 2009. The panel sustained all charges brought against Linville and recommended his termination, effective December 18, 2009.

MPD attempted to serve Linville with final notice of the panel's decision on November 2, 2009, but the package was left at the doorstep of an unspecified address, leaving Linville unaware of his impending termination. As a result of the inadequate service, Linville did not learn of the panel's decision until nearly a month after his termination's effective date when, on January 12, 2010, he received a call from Human Resources inquiring about procedures relating to his termination. Three days later, on January 15, 2010, Linville sought out and obtained a copy of the panel's decision.

This appeal concerns the procedural bind Linville found himself in at that point, as a result of MPD's failure to timely serve him with the panel's decision. If Linville had been timely served, he would have had the opportunity to choose between two appellate forums: he could have appealed his termination to OEA, or he could have pursued the grievance-and-arbitration process outlined in the collective bargaining agreement between MPD and his union, FOP. See D.C. Code § 1-616.52(e). But because Linville did not learn of his termination until more than two months after MPD's failed service, his first option would expire before the second would ripen. When Linville finally received notice of his termination, he had just four days to file an appeal with OEA, which had to be filed by January 19, 2010. See D.C. Code § 1-606.03(a) (providing thirty days from adverse action to file OEA appeal, extended where the last day falls on a weekend or holiday, as here). But Linville would not even know whether he could arbitrate the dispute until he (1) challenged the adverse action panel's decision before the Chief of Police within ten days, (2) awaited the Chief of Police's resolution of that challenge, which she had fifteen business days to issue, and (3) secured FOP's agreement to arbitrate on his behalf. There was no reasonable chance that those preconditions for arbitration would be satisfied within the four days before the OEA deadline expired, and it ultimately took more than a month for those steps to play out.¹

Recognizing his predicament, and to ensure that at least one appellate forum was available to him, Linville filed what he called a "protective appeal" to OEA on January 19, 2010. The following day, Linville submitted to the Chief of Police his internal challenge to the adverse action panel's decision. The Chief of Police affirmed Linville's termination on February 8, 2010. FOP then demanded arbitration on Linville's behalf on March 2, 2010. At that point, Linville had two appeals pending: one before OEA and one before an arbitrator under the collective bargaining agreement. Linville then voluntarily withdrew his OEA appeal after receiving notice of a pre-hearing conference. That notice appears to have been the first activity in that OEA appeal during its pendency.

Years after Linville withdrew his OEA appeal, in 2014, the arbitration proceedings began. In response to FOP's opening brief, MPD moved to dismiss the arbitration, claiming Linville's grievance was not arbitrable because the arbitrator lacked jurisdiction. According to MPD, the Comprehensive Merit Personnel Act, or CMPA, permitted Linville to either arbitrate his grievance under the collective bargaining agreement or appeal his grievance to OEA, but not both. See D.C. Code § 1-616.52(e) - (f). In MPD's view, Linville made his choice to proceed before OEA by initially filing an appeal with it, and that election was irrevocable and foreclosed the arbitration route.

The arbitrator, upon whom the parties conferred the authority to "rule on arbitrability as a threshold issue before proceeding to a hearing on the merits," disagreed. He concluded the case was arbitrable because § 1-616.52 "does not state that an employee's choice of an appeal forum is irrevocable." The arbitrator further noted that "MPD's failure to adequately and timely serve" Linville with notice of his termination deprived Linville of his "ability to make a choice between appeal forums," so that his initial filing in OEA should not bind him to that forum. Having determined that the dispute was arbitrable, the arbitrator then ordered the parties to brief the merits of Linville's grievance. On the merits, MPD maintained that it had adequately served Linville on November 2 by leaving the notice of his impending termination at the door of his last known address. The arbitrator disagreed and concluded that MPD violated the collective bargaining agreement when it failed to personally serve Linville with final notice of his termination within the required timeframe. As a remedy, the arbitrator ordered that Linville be reinstated with back pay.

MPD appealed the arbitrability determination, but not the merits, to PERB.² MPD argued reversal was warranted because the arbitrator did not have jurisdiction to hear Linville's grievance, and the arbitrator's determination was otherwise contrary to law. PERB affirmed the arbitrability award. It determined that MPD merely disagreed with the arbitrator's application of...