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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CV-242

GERALD G. NEILL,JR., APPELLANT,

v.

DISTRICT OF COLUMBIA

PUBLIC EMPLOYEE RELATIONS BOARD, APPELLEE,

and

FRATERNAL ORDER OF POLICE,

METROPOLITAN POLICE DEPARTMENT LABOR COMMITTEE, INTERVENOR.

Appeal from the Superior Court of the

District of Columbia 

(MPA-CAP2009-12)

(Hon. Judith N. Macaluso, Trial Judge)

(Argued January 23, 2014 Decided June 19, 2014)

Matthew August LeFande for appellant.

Geoffrey H. Simpson, with whom Bruce A. Fredrickson and Cedar P. 

Carlton were on the brief, for appellee.

Marc L. Wilhite for intervenor.

Before GLICKMAN and MCLEESE, Associate Judges, and RUIZ, Senior Judge. 
2

GLICKMAN, Associate Judge: Gerald G. Neill, Jr., appeals the Superior 

Court‟s dismissal of his petition for review of a decision by the Public Employee 

Relations Board (the “PERB”). We conclude that the trial court erred in 

dismissing the petition on account of Neill‟s failure to name the PERB as a 

respondent and serve the petition on it before the thirty-day filing deadline. We 

reverse and remand for the trial court to proceed with its consideration of Neill‟s 

petition for review.

I.

Neill, a former Metropolitan Police Officer, served as Chairman of the 

intervenor police union (the “FOP”) from 2000 to 2004. During Neill‟s tenure, the 

FOP terminated its contract with its general counsel, Ted Williams. In response, 

Williams sued both Neill and the new general counsel, alleging breach of contract, 

tortious interference with contract, and intentional infliction of emotional distress. 

After a series of procedural disputes of minimal importance here,

1

the Superior 

Court granted Neill‟s motion for summary judgment in 2009.

 

1

 See Fraternal Order of Police Metro. Police Dep’t Labor Comm. v. Neill, 

No. 01-CV-730 (D.C. Mar. 4, 2008) (unpublished opinion).
3

On March 15, 2010, Neill filed a “standards of conduct” complaint against 

the FOP with the PERB. Public sector unions in the District are statutorily 

required to certify their compliance with certain standards of conduct, including 

one obligating them to maintain “provisions defining and securing the right of 

individual members . . . to fair and equal treatment under the governing rules of the 

organization. . . .”

2

 The PERB has jurisdiction to hear complaints alleging that a 

recognized union failed to comply with the specified conduct standards.3 Neill‟s 

complaint alleged such a violation in the FOP‟s refusal to pay for his defense of 

Williams‟s lawsuit despite a provision in its bylaws guaranteeing legal 

representation to union members for the defense of civil actions arising out of the 

performance of their duties.

Standards of conduct complaints must be filed with the PERB within 120 

days “from the date the alleged violation(s) occurred.”4This deadline has been 

 

2

 D.C. Code § 1-617.03 (a)(1) (2012 Repl.).

3

 See Fraternal Order of Police Metro. Police Dep’t Labor Comm. v. Pub. 

Emp. Relations Bd., 516 A.2d 501, 504-05 (D.C. 1986); see also 6B DCMR § 544 

(1999).

4

 6B DCMR § 544.4.
4

held to be “jurisdictional and mandatory.”5 On February 4, 2012, the PERB,

reading Neill‟s pleading to allege that the union denied his request for legal 

representation in 2008, dismissed his complaint as untimely.

6

 On March 1, 2012, 

Neill petitioned for review of the PERB‟s decision in Superior Court.

 

5

 Moore v. Fraternal Order of Police / Dep’t of Youth Rehab. Servs. Labor 

Comm., PERB Case No. 12-S-03, PERB Opinion No. 1290, 2012 WL 3218537, at 

*2 (D.C. Pub. Emp. Relations Bd. May 30, 2012); see also Gibson v. District of 

Columbia Pub. Emp. Relations Bd., 785 A.2d 1238, 1241 (D.C. 2001) (stating that 

the identical 120-day deadline for filing unfair labor practice complaints is 

“mandatory and jurisdictional”) (quoting Hoggard v. District of Columbia Pub. 

Emp. Relations Bd., 655 A.2d 320, 323 (D.C. 1995)). Recent authority calls into 

question whether the PERB‟s filing deadlines are in fact jurisdictional. See 

Gatewood v. District of Columbia Water & Sewer Auth., 82 A.3d 41, 45-49 (D.C. 

2013) (holding that an agency filing deadline set forth in a regulation as a “rule of 

administrative convenience” is not jurisdictional). However, assuming the FOP 

properly raised the 120-day deadline, the correctness of the PERB‟s dismissal may 

not turn on whether the deadline is jurisdictional. See Smith v. United States, 984 

A.2d 196, 199 (D.C. 2009) (Non-jurisdictional but inflexible “[c]laim-processing 

rules . . . assure relief to a party properly raising them, but do not compel the same 

result if the party forfeits them.”) (quoting Eberhart v. United States, 546 U.S. 12, 

19 (2005)). Regardless, we leave it to the Superior Court on remand to decide any 

questions relating to the 120-day deadline.

6

 Neill v. Fraternal Order of Police / Metro. Police Dep’t Labor Comm., 

PERB Case No. 10-S-04, PERB Opinion No. 1240, 59 D.C. Reg. 7222 (D.C. Pub. 

Emp. Relations Bd. Feb. 4, 2012), available at 

http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?NoticeID=2541320.
5

Petitions for review of PERB decisions in Superior Court must be filed 

within thirty days of their issuance.

7

 Neill filed his petition before the expiration 

of this deadline. However, his petition did not name the PERB as the respondent 

(though it identified the PERB decision Neill sought to have reviewed), and he did 

not serve the petition on the PERB. Instead, Neill named the FOP as the 

respondent, and he served the FOP and the Attorney General for the District of 

Columbia. 

On June 21, 2012, well after the thirty-day window for filing a petition had 

closed, Neill‟s attorney contacted the PERB to ask why it had not filed the agency 

record with the Superior Court, as it normally would do.8 The PERB‟s general 

 

7

 See D.C. Code § 1-617.13 (c) (“Any person aggrieved by a final order of 

the Board granting or denying in whole or in part the relief sought may obtain 

review of such order in the Superior Court of the District of Columbia by filing a 

request within 30 days after the final order has been issued.”); Super. Ct. Agency 

Rev. R. 1 (a) (“[A]n appeal to the Superior Court of the District of Columbia 

permitted by the [Comprehensive Merit Personnel Act] shall be obtained by filing 

a petition for review . . . within 30 days after service . . . of the final decision to be 

reviewed or within 30 days after the decision to be reviewed becomes a final 

decision under the applicable statute or agency rules, whichever is later.”).

8

 See Super. Ct. Agency Rev. R. 1 (e) (“Within sixty (60) days from the date 

of service of petition upon the agency and the office of the Corporation Counsel, 

the agency shall certify and file with the Clerk the entire agency record, including 

all of the original papers comprising that record, and shall notify the petitioner of 

the date on which the record is filed.”).
6

counsel informed Neill‟s attorney that the PERB, as an independent agency, was 

not represented by the D.C. Attorney General in appeals of PERB decisions. 

Because Neill had not served the PERB with his petition, its general counsel 

explained, it was not a party to the appeal and so had no obligation to file the 

record. Moreover, the PERB‟s counsel asserted, Neill‟s failure to serve the PERB 

within the thirty-day filing period meant that its decision had become final. That 

same day, Neill served the PERB with his petition. He later filed an amended 

petition for review naming the PERB as the respondent, after being prompted to do 

so at a June 29 initial scheduling hearing in Superior Court.

Based on Neill‟s failure to name the PERB as the respondent in his initial 

petition for review and failure to serve that petition on the PERB before the 

expiration of the thirty-day filing deadline, the PERB moved to dismiss for lack of

subject matter jurisdiction. The Superior Court granted the motion, dismissed 

Neill‟s petition with prejudice, and denied his motion for reconsideration. Neill 

noticed this timely appeal.

II.

We agree that Neill was required by the Superior Court‟s Rules to name the 

PERB as the respondent in his petition for review, and to serve his petition on the 
7

PERB within the thirty-day filing deadline. We conclude, however, that Neill‟s 

non-compliance with those requirements did not deprive the Superior Court of 

jurisdiction over his petition or otherwise justify its dismissal. Accordingly, we 

reverse; on remand the court will have discretion to decide whether to impose 

lesser sanctions for Neill‟s missteps.

A.

The Comprehensive Merit Personnel Act (“CMPA”)9provides for appeals 

from decisions of the PERB (the body charged with adjudicating public sector 

labor disputes and other public employee matters) and the Office of Employee 

Appeals (the entity primarily responsible for reviewing certain serious adverse 

employment actions) to be taken to the Superior Court.

10

 To implement that 

requirement and govern such appeals, the Superior Court adopted Agency Review 

Rule 1.

11

 Among other things, Rule 1 specifies the time and manner for filing 

petitions for review in CMPA cases, and to furnish additional guidance, is 

 

9

 D.C. Code § 1-601.01, et seq. (2012 Repl. & Supp. 2013).

10

 D.C. Code §§ 1-606.03 (d) (OEA), 1-617.13 (b) & (c) (PERB).

11

 The Rule is located in Section XV of the Superior Court‟s Rules of Civil 

Procedure.
8

accompanied by a form petition for review for litigants to use as a model. The 

PERB contends, and the Superior Court agreed, that Neill‟s initial petition did not 

satisfy the requirements of Rule 1 with respect to naming the agency as respondent 

and serving it with the petition, and that those requirements are jurisdictional. 

Neill disputes their interpretation of Rule 1 and their jurisdictional claims. 

The interpretation of a rule of procedure is a question of law as to which our 

review is de novo.

12

 We do not agree that the Superior Court misunderstood Rule 

1‟s requirements. To begin with, although the text of Rule 1 and the 

accompanying form petition do not say so explicitly, we heretofore have held that 

the Rule requires a petitioner to name the PERB (or the Office of Employee 

Appeals, as the case may be) as the respondent in the caption of his petition for 

review.13 A petition that fails to name the PERB in the caption, and that instead 

names the opposing party in the agency proceeding as the respondent, is 

noncompliant even if the petition elsewhere correctly identifies the PERB as the 

 

12

 See Gibson v. Freeman, 941 A.2d 1032, 1034-35 (D.C. 2008).

13

 District of Columbia Dep’t of Admin. Servs. v. Int’l Bhd. of Police 

Officers, Local 445, 680 A.2d 434, 437 (D.C. 1996) [hereinafter IBPO]. 
9

agency that issued the order from which relief is sought (as Neill‟s petition did in 

this case).

14

Disputing this interpretation of Rule 1, Neill argues that he properly named

the FOP as the respondent because the PERB lacks constitutional standing to 

defend its decision.15 That is incorrect. We have explained that an agency 

presumptively “must carry the burden of defending its action in any challenge to 

it” because the “matters raised in” such a challenge “go directly to the [agency‟s] 

authority and to the validity of its decision, which the [agency] has a substantial 

interest in defending.”16 Neill‟s argument that this presumption does not apply to 

the PERB is contradicted by our decision in IBPO, which noted that the PERB was 

“the only entity that could afford the relief sought.”

17

 

14

 See id. at 438.

15

 See generally Grayson v. AT&T Corp., 15 A.3d 219, 232-36 (D.C. 2011) 

(en banc) (explaining that this court, at least in the absence of contrary legislative 

instruction, adheres to the standing requirements of Article III as articulated by the 

Supreme Court).

16

 Francis v. Recycling Solutions, Inc., 695 A.2d 63, 70-71 (D.C. 1997).

17

 680 A.2d at 437 (citation omitted); cf. Brown v. District of Columbia Pub. 

Emp. Relations Bd., 19 A.3d 351, 355-58 (D.C. 2011) (describing and accepting 

the PERB‟s argument in defense of its decisions without questioning the agency‟s 

standing); District of Columbia Pub. Emp. Relations Bd. v. Fraternal Order of 

(continued...)
10

In asserting that the PERB nonetheless lacks standing, Neill relies on cases

from other jurisdictions holding that particular agencies were without statutory

authorization to litigate in court.18 But the CMPA expressly empowers the PERB 

to litigate the validity of its decisions.19 Neill rejoins that the PERB‟s interest in 

defending its decisions on the merits does not create an interest (sufficient for 

standing) in enforcing its “procedural right,”20 i.e., the statutory time limit for 

seeking review. That contention too is incorrect, for the time bar plays an obvious 

 

(continued...)

Police, 987 A.2d 1205 (D.C. 2010) (deciding a case in which the PERB appealed 

from an adverse Superior Court decision).

18

 See, e.g., Kaiser Aluminum & Chem. Corp. v. Dep’t of Labor & Indus., 

854 P.2d 611, 614-16 (Wash. 1993) (en banc).

19

 See D.C. Code § 1-605.02 (16) (“The Board shall have the power to . . . 

[s]eek appropriate judicial process to enforce its orders and otherwise carry out its 

authority under this chapter.”); id. § 1-605.02 (14) (“The Board shall have the 

power to . . . [r]etain . . . independent legal counsel. . . .”); id. § 1-617.13 (b) (“The 

Board may request the [Superior Court] to enforce any order issued [by it.]”); id. § 

1-617.13 (c) (“The [Superior Court] shall have the same jurisdiction to review the 

Board‟s order and to grant to the Board such order of enforcement [upon petition 

by an aggrieved party] as in the case of a request by the Board under subsection 

(b). . . .”).

20

 Reply Brief at 4 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 

497 (2009)).
11

role in ensuring the enforceability of the PERB‟s decisions.21 We reject Neill‟s 

standing argument and hold that his initial petition for review contravened Agency 

Review Rule 1 by failing to name the PERB as the respondent.

22

Whether Rule 1 also required Neill to serve the PERB is a question this 

court previously has not had occasion to resolve. On its face, the Rule can be read 

to suggest otherwise, because subsection (a) provides only that a petition for 

review must “show service . . . upon all other parties to the agency proceeding and 

 

21

 See Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 

(D.C. Cir. 2002) (A litigant “who alleges a deprivation of a procedural protection 

to which he is entitled never has to prove that if he had received the procedure the 

substantive result would have been altered. All that is necessary is to show that the 

procedural step was connected to the substantive result.”); cf. Summers, 555 U.S. at 

496 (“[D]eprivation of a procedural right without some concrete interest that is 

affected by the deprivation—a procedural right in vacuo—is insufficient to create 

Article III standing.”).

22

 Neill makes an additional constitutional argument that the PERB, in 

moving to dismiss his petition as untimely, was not acting as the “impartial and 

disinterested tribunal” that due process required. Marshall v. Jerrico, Inc., 446 

U.S. 238, 242 (1980). We reject this argument as well, because the PERB‟s 

defense of its decision on procedural grounds is no evidence that its decision was 

biased in any way. Cf. Withrow v. Larkin, 421 U.S. 35, 47-55 (1975) (The 

combination of investigative and adjudicatory functions within an agency, without 

a specific showing of bias, does not violate due process.).
12

the Office of the Corporation Counsel of the District of Columbia.”23 No lawyer

would think of the PERB as a party to its own proceeding, and the requirement of 

service on the Attorney General24might be taken to imply that service on the 

PERB is unnecessary. Neill argues that service on the Attorney General was 

indeed sufficient to serve the PERB.

Nevertheless, the better reading of Rule 1 is that it does require petitions for 

review to show service on the agency that conducted the proceeding below. 

Subsection (e) of the Rule states that the adjudicating agency must file the record 

with the Superior Court “[w]ithin sixty (60) days from the date of service of 

petition upon the agency and the office of the Corporation Counsel,”

25

and the 

comment to the Rule explicitly states that the “petition must be served on the 

 

23

 Super. Ct. Agency Rev. R. 1 (a). The requirement that a petition “show 

service” means that service must be made on or before the date of filing. See 

Super. Ct. Civ. R. 5-I (providing that proof of service “shall show the date and 

manner of service on the parties”); id. R. 5 (b)(2) (providing that service may be 

made by hand delivery, mail, or, if consented to, any other means, including 

electronically). Agency Review Rule 1 (h) expressly incorporates Civil Rules 5 

and 5-I.

24

 The Office of the Corporation Counsel was renamed the Office of the 

Attorney General in 2004. See Mayor‟s Order No. 2004-92, 51 D.C. Reg. 6052 

(May 26, 2004).

25 Super. Ct. Agency Rev. R. 1 (e).
13

agency involved with a copy to the attorney in the office of the Corporation 

Counsel handling the case.”26 Reading the Rule in its entirety together with its 

explanatory comment27 thus makes clear that the agency must be served as well as 

the Attorney General, and the Rule makes only one party—the petitioner—

responsible for service.28 There is no solid textual basis for reading the Rule to 

require a different party—for example, the Attorney General or the Clerk of the 

Superior Court—to serve the agency.29 And it would be anomalous to place the 

burden of serving the PERB on the Attorney General, as Neill proposes, given that 

the PERB is an independent agency with its own general counsel, and that the 

Attorney General often represents one side (the District government) in disputes 

 

26

 Id. cmt.

27

 See In re Sealed Case, 141 F.3d 337, 342 (D.C. Cir. 1998) (“We can 

assume that if a [rule of procedure] were ambiguous, one might look to a clear 

Advisory Note to resolve that ambiguity. . . .”).

28

 Cf. Thompson v. District of Columbia, 863 A.2d 814, 816-18 (D.C. 2004) 

(affirming the dismissal of a suit against the District because the plaintiff served 

the Corporation Counsel, but not the Mayor; rejecting the plaintiff‟s argument that 

she “substantially complied” with the rule by serving an agent of the Mayor; and 

explaining that the “plain language of the [applicable] rule” requires “that service 

of process shall be effected on both the Corporation Counsel and the Mayor”).

29

 Cf. D.C. App. R. 15 (c) (providing that in agency cases petitioned directly 

to the Court of Appeals, “[t]he Clerk must serve a copy of the petition for review 

on the respondent agency.”).
14

adjudicated by the PERB—i.e., disputes between the District and its public sector 

unions.

30

Having said this, it must be acknowledged that the text of Rule 1 is 

misleading. We think the Superior Court would do well to amend it to state

unambiguously that petitions for review of agency decisions under the CMPA must 

(1) name the agency that issued the decision being appealed as the respondent in 

the caption and (2) show service by the petitioner on that agency, all other parties 

to the agency proceeding, and the Attorney General for the District of Columbia.

31

 

The form petition accompanying the Rule should reflect these requirements. 

Additionally, we suggest that the PERB consider adopting the practice of other 

District agencies of attaching to its decisions instructions detailing how, where, and 

when an aggrieved party may seek review.

B.

 

30

 See, e.g., District of Columbia Metro. Police Dep’t v. District of 

Columbia Pub. Emp. Relations Bd., 901 A.2d 784 (D.C. 2006); Teamsters Local 

Union 1714 v. District of Columbia Pub. Emp. Relations Bd., 579 A.2d 706 (D.C. 

1990).

31

 See D.C. Code § 11-946 (2012 Repl.) (granting the Superior Court the 

power to amend its rules, subject to approval by this court).
15

We now turn to the question of whether Neill‟s initial failures to name and 

serve the PERB deprived the Superior Court of subject matter jurisdiction to 

review the PERB‟s decision even though Neill filed his petition within the thirtyday period specified by D.C. Code § 1-617.13 (c) and Rule 1 and otherwise 

complied with their requirements. The issue of subject matter jurisdiction is a 

question of law as to which our review is de novo.

32

We read this court‟s decision in IBPO to hold that Neill‟s failure to name the 

PERB as respondent did not divest the Superior Court of jurisdiction. In that case, 

after concluding that the petitioner violated Rule 1 by not naming the PERB as 

respondent, the court explained that “this is not the kind of rules violation that calls 

for per se dismissal.”33 The court contrasted the captioning failure with

“mandatory and jurisdictional” filing requirements, such as time limits for filing.

34

 

 

32

 See Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002); see also Drivers, 

Chauffeurs & Helpers Local Union No. 639 v. District of Columbia, 631 A.2d 

1205, 1213 (D.C. 1993) (reviewing dismissal of a petition for review of a PERB 

decision as untimely without specifying the standard of review, implying that the 

court applied a de novo standard).

33

 IBPO, 680 A.2d at 437.

34

 Id. at 437 n.3. This court has said that the thirty-day time limit contained 

in D.C. Code § 1-617.13 (c) and Rule 1 for filing a petition for review is 

jurisdictional. See, e.g., Fisher v. District of Columbia, 803 A.2d 962, 965 (D.C. 

2002) (stating that the Rule 1 time limitation is “mandatory and jurisdictional,” in a 

(continued...)
16

Had the court thought jurisdiction to be in doubt, it would have said so.35

More recent cases lead us to the same conclusion. The Supreme Court and 

this court have striven to differentiate jurisdictional rules that limit the court‟s 

authority to hear a case from non-jurisdictional “claim-processing” rules that “seek 

to promote the orderly process of litigation by requiring that the parties take certain 

procedural steps at certain times.”36 Jurisdictional limitations, when not 

constitutionally mandated, are an exercise of legislative power and so must be 

grounded in statutes or other legislative acts; absent a proper delegation of that 

power to the judiciary, procedural requirements imposed only by court rule are not 

 

(continued...)

case where no statutory deadline applied); Drivers, Chauffeurs & Helpers Local 

Union No. 639, 631 A.2d at 1213 (stating that “the threshold issue of timeliness” 

under both the CMPA and Rule 1 for filing a petition for review of a PERB 

decision “goes to the trial court‟s subject matter jurisdiction”). For purposes of 

this appeal, we need not decide whether our decisions labeling the time limit 

jurisdictional remain good law in light of subsequent Supreme Court cases 

(including those cited in the next paragraph) distinguishing jurisdictional rules 

from claim-processing rules.

35

 See, e.g., In re D.M., 771 A.2d 360, 364 (D.C. 2001) (“Where a 

substantial question exists as to this court‟s subject matter jurisdiction, it is our 

obligation to raise it, sua sponte, even though, as here, no party has asked us to 

consider it.”) (citation and alterations omitted).

36

 Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011).
17

jurisdictional in nature—they are claim-processing rules that (unlike the 

requirements of subject-matter jurisdiction) may be relaxed or waived.37

Indeed, the Superior Court Rules of Civil Procedure state explicitly that they 

“shall not be construed to extend or limit the jurisdiction of this Court.”38 It is true, 

as we have indicated, that a jurisdictional provision in a statute may (explicitly or 

implicitly) delegate or leave to the court the responsibility to specify or define the 

precise jurisdictional condition in a rule, thereby rendering the rule jurisdictional to 

that extent. For example, the District of Columbia Administrative Procedure Act

provides that petitions for review in this court “shall be filed . . . within such time 

as [this court] may by rule prescribe. . . .”

39

 We have held that our implementing 

 

37

 See Gatewood v. District of Columbia Water & Sewer Auth., 82 A.3d 41, 

48 (D.C. 2013) (explaining that claims-processing rules are “typically promulgated 

by a decision-making body” and jurisdictional rules are “most often legislative 

enactments”); id. at 46 (“Jurisdictional rules may be raised at any point in the 

proceedings and are not subject to waiver, however late they are invoked. By 

contrast, nonjurisdictional rules and deadlines may be extended or waived.”); see 

also Bowles v. Russell, 551 U.S. 205, 211-13 (2007); Smith v. United States, 984 

A.2d 196, 200-01 (D.C. 2009). It should be noted that even statutory restrictions 

governing the cases courts may hear are not to be deemed jurisdictional unless the 

intent of the legislature is clear. See Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 

817, 824 (2013). 

38

 Super. Ct. Civ. R. 82.

39

 D.C. Code § 2-510 (a) (2012 Repl.).
18

rule, which provides a thirty day period for a party to seek review, is 

jurisdictional.40 Similarly, D.C. Code § 11-721 (2012 Repl.) provides that this 

court has jurisdiction to hear appeals by aggrieved parties from orders or 

judgments of the Superior Court. How, then, does an aggrieved party “appeal”? 

The statute does not spell that out, but our implementing rule specifies it is done by 

filing a notice of appeal that identifies the appellant(s) and the judgment or order 

being appealed.

41

 We have held these definitional requirements to be 

jurisdictional.42 The Supreme Court likewise has held that “both a notice [of 

appeal] and its contents are jurisdictional prerequisites.”43 But this certainly does 

not mean that the caption or form of an otherwise compliant notice has 

 

40

 See D.C. App. R. 15 (a)(2); Capitol Hill Restoration Soc. v. Mayor’s 

Agent for Historic Preservation, 44 A.3d 271, 277 (D.C. 2012).

41

 See D.C. App. R. 3 (a), (c).

42

 See Patterson v. District of Columbia, 995 A.2d 167, 170 (D.C. 2010) 

(holding that identification of appellant in notice of appeal is a jurisdictional 

requirement, and that the failure to name a party in a notice to appeal “constitutes a 

failure of that party to appeal”) (quoting Torres v. Oakland Scavenger Co., 487 

U.S. 312, 316 (1988)); Vines v. Mfrs. & Traders Trust Co., 935 A.2d 1078, 1083 

(D.C. 2007) (holding that failure to designate the judgment or order being appealed 

is a jurisdictional defect). 

43

 Gonzalez v. Thaler, 132 S. Ct. 641, 651 (2012); see also Smith v. Barry, 

502 U.S. 244, 248 (1992) (“Rule 3‟s dictates are jurisdictional in nature, and their 

satisfaction is a prerequisite to appellate review.”).
19

jurisdictional significance.44 Nor do the foregoing cases mean that the various 

other procedural requirements imposed by rule for perfecting a petition for review 

of agency action or an appeal from the Superior Court are jurisdictional.45 

The relevant statute in this case, D.C. Code § 1-617.13 (c), does not specify 

that petitions for review of PERB decisions must name the deciding agency as 

respondent in the caption of the petition; it simply states that “[a]ny person 

aggrieved by a final order of the Board . . . may obtain review of such order by 

filing a request within 30 days after the final order has been issued.” There is no 

doubt that Neill filed such a request, or that in it he identified himself, the PERB, 

and the final order he sought to have reviewed. The formal pleading requirement

with which Neill failed to comply, that the PERB be identified as the respondent, 

 

44

 See D.C. App. R. 3 (c)(4) (“An appeal may not be dismissed for 

informality of form or title of the notice of appeal, or for failure to name a party 

whose intent to appeal is otherwise clear from the notice.”).

45

 See D.C. App. R. 3 (a)(2) (“An appellant‟s failure to take any step other 

than the timely filing of a notice of appeal does not affect the validity of the appeal, 

but is ground only for the Court of Appeals to act as it considers appropriate, 

including dismissal of the appeal.”); see also, e.g., Moore Energy Res., Inc. v. 

Pub. Serv. Comm’n, 785 A.2d 300, 304-06 (D.C. 2001) (holding that the 

requirement in Rule 15 (a) that counsel for a corporation sign a petition for review 

is not jurisdictional); Montgomery v. Docter, Docter & Salus, P.C., 578 A.2d 176, 

177-78 (D.C. 1990) (payment of a filing fee and filing of copies of the notice of 

appeal, as required by the appellate rules, held “not a jurisdictional prerequisite,” 

albeit the latter filing requirement is “essential to the processing of an appeal”).
20

derives only from Rule 1. It may be an important claim-processing requirement, 

but it is not part of the essential definition of a “request” for review. No statute 

delegates to the Superior Court the authority to impose such a technical pleading 

requirement as a jurisdictional prerequisite to the review of PERB decisions. We 

therefore are comfortable reaffirming the implicit holding of IBPO that, while a 

petitioner‟s failure to name the agency as respondent in a Rule 1 petition for 

review may have other consequences, it does not divest the Superior Court of 

jurisdiction.

Turning to Neill‟s failure to effect timely service on the PERB, the CMPA 

does not impose any particular service requirement as a condition of invoking the 

jurisdiction of the Superior Court. As we have emphasized, D.C. Code § 1-617.13 

(c) provides that “filing” a timely request is all a person aggrieved by a final order 

of the PERB need do to obtain judicial review. “Filing” is a term of limited 

meaning; it does not encompass the concept of service.46 Service of process goes 

 

46

 See, e.g., Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939) (“The 

word „filed‟ . . . is, as applied to court proceedings, a word of art, having a long 

established and well understood meaning, deriving from the practice of filing 

papers on a string or wire. It requires of one filing a suit, merely the depositing of 

the instrument with the custodian for the purpose of being filed. . . . [I]t charges 

him with no further duty[.]”); BLACK‟S LAW DICTIONARY 660 (8th ed. 1999) 

(defining “file” as “To deliver a legal document to the court clerk or record 

custodian for placement into the official record”). The distinction between filing 

(continued...)
21

to the court‟s power over the party to be served, not the court‟s ability to consider 

the subject matter of the case, i.e., its subject-matter jurisdiction.

47

 Our cases 

reflect that distinction. For example, in the analogous context of petitions for 

review filed in this court, we have rejected the argument that a petitioner‟s failure 

to timely serve intervenors affects the court‟s subject matter jurisdiction.48 And

 

(continued...)

and service is well-established in our jurisprudence. See, e.g., Varela v. Hi-Lo 

Powered Stirrups, 424 A.2d 61, 67-68 (D.C. 1980) (en banc) (recognizing the 

“clear understanding that the manner by which an action is commenced [via filing 

of the complaint with the court] . . . presents a completely different and separable 

array of considerations from the manner by which service of process is to be 

made”) (emphasis in the original).

47

 See Henderson v. United States, 517 U.S. 654, 656 (1996) (“We hold 

that, in actions arising under federal law, commenced in compliance with the 

governing statute of limitations, the manner and timing of serving process are 

generally nonjurisdictional matters of „procedure‟ controlled by the Federal 

Rules.”); 4 CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FED.

PRACTICE AND PROCEDURE § 1063 (3d ed. 2002) (distinguishing the concepts of 

subject matter jurisdiction, venue, personal jurisdiction, and service of process); 

see also Super Ct. Civ. R. 12 (b) (providing for lack of subject matter jurisdiction 

and defective service as separate defenses); McKnight v. Scott, 665 A.2d 973, 975-

76 (D.C. 1995) (considering separately questions of subject matter jurisdiction and 

improper service, and noting that “[t]he purpose of service of process is to ensure 

that all parties have notice of a legal proceeding”).

48 Myrick v. District of Columbia Bd. of Zoning Adjustment, 577 A.2d 757, 

762 n.11 (D.C. 1990).
22

insufficiency of service may be waived,49 while subject matter jurisdiction may 

not.50 We readily conclude that the service requirements of Agency Review Rule 1 

are not jurisdictional in character, and that Neill‟s failure to serve the PERB within 

the thirty-day filing period therefore did not divest the Superior Court of subject 

matter jurisdiction over his petition.

C.

Finally, we consider whether Neill‟s non-compliance with Rule 1, although 

it did not deprive the court of subject matter jurisdiction, nevertheless justified 

dismissal (with or without prejudice).

51

 Superior Court Civil Procedure Rule 41

(b) gives the trial court authority to dismiss any claim or action for failure of the 

 

49

 McLaughlin v. Fidelity Sec. Life Ins., 667 A.2d 105, 107 n.5 (D.C. 1995); 

see also Super. Ct. Civ. R. 12 (h)(1) (“A defense of . . . insufficiency of process, or 

insufficiency of service of process is waived” unless included in either a 

responsive pleading or a motion to dismiss.).

50

 Upson v. Wallace, 3 A.3d 1148, 1155 (D.C. 2010) (“As a general rule, 

subject matter jurisdiction may not be waived. . . .”); see also Super. Ct. Civ. R. 12 

(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the 

Court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).

51

 Because the thirty-day time period for filing his petition for review had 

run by the time the court dismissed Neill‟s petition, it makes no difference to him 

whether the dismissal was with or without prejudice—either way, the dismissal 

was final.
23

plaintiff to comply with procedural rules, including, in principle, captioning and 

service irregularities.

52

 However, because Neill‟s errors were not willful, the 

record does not show prejudice to the other parties, and the trial court did not 

consider alternative sanctions, we conclude that dismissal of the petition was 

unwarranted.

Some claim-processing rules, although not jurisdictional, are considered 

“inflexible,” meaning they are strictly enforced when the opposing party properly 

invokes them.

53 IBPO made clear that the captioning rule is not in that category.54

 

As to the service requirement of Rule 1, analogous provisions in the Civil Rules 

allow for a case to proceed despite improper or untimely service if the court finds 

good cause why the case should not be dismissed—i.e., that the violation should be 

excused.

55

 We conclude similarly that imperfect service under Rule 1 does not 

require automatic dismissal.

 

52

 Super. Ct. Civ. R. 41(b); see also Techniarts Video, Inc. v. 1631 

Kalorama Assocs., 572 A.2d 1051, 1053 n.10 (D.C. 1990); Wagshal v. Rigler, 711 

A.2d 112, 116 (D.C. 1998); IBPO, 680 A.2d at 436 n.2.

53

 See In re Na. H., 65 A.3d 111, 115-17 (D.C. 2013).

54

 680 A.2d at 436-37 & n.2.

55

 See Super. Ct. Civ. R. 4 (m), 41 (b); Baba v. Goldstein, 996 A.2d 799, 

802-04 (D.C. 2010); Wagshal, 711 A.2d at 114-16.
24

Because neither the captioning nor the service requirement is “inflexible,” 

the trial court, in exercising its Rule 41 (b) authority, has discretion to determine 

the penalty for noncompliance with them.

56

 Because of its severity, however, 

dismissal may be imposed as a sanction for the failure to comply with procedural 

requirements or other misconduct only in “extreme circumstances and only after 

the trial court has considered lesser sanctions.”57 The court must consider 

“whether the conduct calling for sanctions was willful and whether the other party 

was prejudiced by it, and the sanction imposed should, wherever possible, be 

 

56

 See IBPO, 680 A.2d at 436-37 & n.2; Wolfe v. Fine, 618 A.2d 169, 172-

73 (D.C. 1992); White v. Wash. Metro. Area Transit Auth., 432 A.2d 726, 728 

(D.C. 1981). We recognize that when a decision is committed to trial court 

discretion, an appellate court cannot substitute its own discretionary judgment for 

that of the trial court. See Johnson v. United States, 398 A.2d 354, 362 (D.C. 

1979). However, where we conclude that “the facts . . . leave the trial court with 

but one option it may choose without abusing its discretion,” id. at 364, we need 

not remand for the trial court to exercise that discretion as, in essence, a mere 

formality. See Wright v. United States, 508 A.2d 915, 920 (D.C. 1986); Ibn–

Tamas v. United States, 407 A.2d 626, 635 (D.C. 1979). We deem this principle 

applicable here.

57

 Techniarts Video, 572 A.2d at 1054; see also, e.g., Solomon v. Fairfax 

Vill. Condo. IV Unit Owner’s Ass’n, 621 A.2d 378, 379 (D.C. 1993) (per curiam) 

(“Of all the weapons in the judicial arsenal available to a trial court to discourage 

dilatory behavior during litigation, perhaps none is so lethal as a dismissal with 

prejudice.”); LaPrade v. Lehman, 490 A.2d 1151, 1155 (D.C. 1985) (“In the 

exercise of its discretion under Rule 41(b), the trial court „should first resort to the 

wide range of lesser sanctions which it may impose.‟”) (quoting Garces v. Bradley, 

299 A.2d 142, 144 (D.C. 1973)).
25

tailored to the offense.”58 “[A]t least as a general proposition, dismissal with 

prejudice is an appropriate sanction only upon clear evidence of deliberate delay or 

upon a showing of contumacious conduct by the plaintiff.”59

Judged by those standards, it cannot be maintained that Neill‟s initial failure 

to properly caption and serve his petition for review was sufficient justification for

dismissing his petition. Neill‟s errors plainly appear to have resulted from 

inadvertence or negligence at worst, not “contumacious conduct.”60 Once Neill‟s 

attorney learned that he was required to serve the PERB, he did so promptly. 

Similarly, when advised to do so by the trial court, Neill without delay submitted 

an amended petition with a proper caption. And although Neill‟s errors caused a

somewhat lengthy delay, the PERB and the union suffered no evident prejudice as 

a result.

61

 

58

 Techniarts Video, 572 A.2d at 1054 (citations omitted).

59

 Wolfe, 618 A.2d at 173 (alteration and internal quotation marks omitted); 

see also Granville v. Hunt, 566 A.2d 65, 66 (D.C. 1989).

60

 Wolfe, 618 A.2d at 173.

61

 See id. (“When the conduct calling for sanctions consists of delay, . . . 

relevant factors include the length of the delay and the resulting prejudice, if any, 

to the defendant.”). 
26

Our conclusion that dismissal was too severe a sanction is confirmed by our 

cases. In IBPO, we held that failing to name the PERB as respondent did not 

require dismissal because the body of the petition correctly identified the PERB as 

the agency that issued the order from which relief was sought.

62

 The same is true 

here. In addition, the PERB “received actual notice of the suit, was properly 

served, filed responsive pleadings, and obtained the consent of all parties to 

intervene in the proceeding,” and thus “acted, for all practical purposes, as the 

respondent it truly [was].”63 Ultimately, that was true here as well.

The only meaningful difference between this case and IBPO is the timing of 

service on the agency. It is undeniable that Neill‟s failure resulted in a significant 

delay. The PERB should have been served on March 1; it was not served until 

June 29. The agency record should have been filed by April 30; it was not filed 

until October 2. Nonetheless, according to the docket, nothing of significance 

occurred during that time other than the scheduling and re-scheduling of an initial 

conference. There is no indication, on this record at least, that the delay 

compromised the defense of the PERB‟s decision or caused the FOP to incur costs

 

62

 680 A.2d at 438.

63

 Id.
27

by litigating in place of the agency. And unaccompanied by willful misconduct or 

prejudice, the delay of a few months was not so prolonged that it could be said to 

justify the sanction of dismissal by itself.

64

This court‟s decision in Francis v. Recycling Solutions, Inc.,

65 on which the 

PERB relies, provides an apt contrast. In that case, we upheld the trial court‟s 

dismissal of a lawsuit challenging the award of a recycling contract where the 

plaintiff (the losing bidder) incorrectly named as the defendant the winning bidder 

rather than the agency that made the award. The plaintiff had not served the 

agency and had fought against its entry in the litigation as a party, imposing court 

costs and attorney‟s fees on the winning bidder forced to litigate the case in the 

agency‟s stead.66 And in addition to naming the wrong defendant, the plaintiff, the 

director of a District of Columbia governmental agency, was herself an improper 

 

64

 See Lofton v. Kator & Scott, 802 A.2d 955, 957-58 (D.C. 2002) (holding 

that the trial court abused its discretion in dismissing a case after the parties 

allowed it to lay “dormant for at least fourteen-and-a-half-months”); Dobbs v. 

Providence Hosp., 736 A.2d 216, 220 (D.C. 1999) (“[A]n isolated instance of 

delaying conduct may not typically support dismissal. . . .”).

65

 695 A.2d 63 (D.C. 1997).

66

 Id. at 78-79.
28

party, for she lacked the statutory authority to sue.67 None of those factors is 

present here.68

Neill‟s mistakes were not willful and did not cause the kind of harm that 

justifies dismissal. Indeed, on this record, it does not appear that the PERB or the 

union suffered any prejudice at all. We recognize, however, that the trial court has 

never squarely considered the issue of prejudice. On remand, therefore, it remains 

open for the court to do so and, if it deems it appropriate, to fashion a remedy 

“tailored to the offense,” for example an award of costs.69

 

67

 Id.

68

 It is true that Neill has persisted in arguing that the PERB is not a proper 

party to the case. But he raised his meritless Article III standing argument only 

after he complied with the service requirement and amended his petition to name 

the PERB as the respondent, and then only after the Superior Court dismissed his 

amended petition anyway. In Francis, the agency was never served. 695 A.2d at 

78.

69

 Techniarts Video, Inc. v. 1631 Kalorama Assocs., 572 A.2d 1051, 1054 

(D.C. 1990); see also LaPrade v. Lehman, 490 A.2d 1151, 1155-56 (D.C. 1985) 

(“Alternative sanctions include . . . an assessment of the defendant‟s costs and 

reasonable fees against the plaintiff . . . or a finding that [the] plaintiff‟s lawyer is 

in contempt of court and the imposition of a fine.”).
29

III.

For the foregoing reasons, we reverse the Superior Court‟s dismissal of 

Neill‟s petition for review and remand for further proceedings consistent with this 

opinion.

So ordered.