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            DISTRICT OF COLUMBIA COURT OF APPEALS

                               No. 18-CV-1134

                         KEVIN BALDWIN, APPELLANT,

                                       V.

           DISTRICT OF COLUMBIA OFFICE OF EMPLOYEE APPEALS AND
      DISTRICT OF COLUMBIA DEPARTMENT OF YOUTH SERVICES, APPELLEES.

                        Appeal from the Superior Court
                          of the District of Columbia
                                (CAP-7980-17)

                      (Hon. Robert R. Rigsby, Trial Judge)

(Submitted January 28, 2020                                  Decided May 7, 2020)

      Kevin Baldwin, pro se.

     Lasheka Brown Bassey was on the brief for appellee Office of Employee
Appeals.

       Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and
Jason Lederstein, Assistant Attorney General, were on the brief for appellee
District of Columbia Department of Youth Rehabilitation Services.

      Before FISHER, THOMPSON, and BECKWITH, Associate Judges.


      THOMPSON, Associate Judge: In a September 13, 2016, Opinion and Order

(“Order”), the Office of Employee Appeals Board (the “OEA Board” or the

“Board”) denied as untimely a petition brought by appellant Kevin Baldwin for
                                        2

review of an OEA initial decision that upheld a personnel action by the District of

Columbia Department of Youth Rehabilitation Services (“DYRS”) terminating Mr.

Baldwin from his job as a Youth Development Representative.          Mr. Baldwin

brought the instant appeal after the Superior Court affirmed the OEA Board’s

ruling. “[R]eview[ing] the OEA Board’s decision, not the decision of the Superior

Court[,]” 1 we conclude that the OEA Board erred in ruling that its petition-for-

review deadline is jurisdictional and that it had no power to waive or extend the

deadline. However, we affirm the OEA Board’s alternative ruling denying Mr.

Baldwin’s petition on the merits.



                                         I.



      Mr. Baldwin was terminated from his position after he got into a physical

confrontation with, and caused injuries to, a youth at a DYRS secure facility on

December 17, 2010, after the youth refused to return to his room for the night. The

incident was captured on video surveillance footage. The matter was investigated

by the Metropolitan Police Department (“MPD”), and criminal charges (simple

assault and attempted second-degree cruelty to children) were brought against Mr.

      1
        Sium v. Office of the State Superintendent of Educ., 218 A.3d 228, 232
(D.C. 2019) (brackets omitted).
                                          3

Baldwin but eventually were dropped. The DYRS Office of Internal Integrity

(“OII”) also investigated, but delayed its investigation in light of the MPD

investigation.   After an eventual hearing before a DYRS hearing officer, Mr.

Baldwin was terminated for cause effective January 31, 2012.



      Mr. Baldwin appealed his termination to the OEA, which held an evidentiary

hearing on August 12, 2014. The OEA Administrative Law Judge (“ALJ”), who

viewed the video surveillance footage, 2 upheld the termination in a January 14,

2015, decision. The ALJ found that Mr. Baldwin used excessive force and “was

incompetent in applying” DYRS’s use-of-force policy, 3 and concluded that DYRS

had cause to take adverse action against him for his acts that constituted criminal

offenses.




      2
          The ALJ noted that the “image is clear” on the video.
      3
         DYRS’s use-of-force policy (referred to in the record as Youth Services
Administration (“YSA”) 9.14) states that force shall not be used to “strike or lay
hand upon any youth” except in cases where the employee is in “defense of
themselves, . . . to prevent an escape or serious injury to personnel or destruction of
property; or to quell a disturbance not otherwise controllable” and further states
that “only that amount of force necessary to accomplish the desired result shall be
used. Excessive force shall not be tolerated. Corporal punishment or any
deliberate physical abuse is absolutely forbidden.”
                                           4

      On May 8, 2015, Mr. Baldwin petitioned for OEA Board review of the

initial OEA decision. In denying the petition for review as untimely, the Board

cited D.C. Code § 1-606.03(c), providing that “the initial [OEA] decision . . . shall

become final 35 days after issuance, unless a party files a petition for review of the

initial decision with the Office within the 35-day filing period.” The Board also

cited OEA Rule 633.1, which states that a party “may serve and file a petition for

review of an initial decision with the Board within thirty-five (35) calendar days of

issuance of the initial decision.” The Board cited in addition opinions of this court

referring to the 35-day deadline as “jurisdictional.” 4 The OEA Board noted that

Mr. Baldwin had sought an extension of the filing deadline to obtain counsel, but

reasoned that it had no authority to rule on motions for extension or to waive the

deadline.



      The OEA Board included in its Opinion and Order an alternative basis for

denying Mr. Baldwin’s petition. The Board stated that assuming arguendo that it


      4
          As discussed infra, insofar as the cited opinions refer to the 35-day limit as
a jurisdictional rule, they have been superseded by recent Supreme Court
jurisprudence. See Mathis v. District of Columbia Hous. Auth., 124 A.3d 1089,
1101, 1103 n.25 (D.C. 2015) (explaining that “[t]he dividing line between
jurisdictional and claim-processing rules has been in flux over the last decade” and
that this court is not obliged “to follow, inflexibly, a ruling whose jurisprudential
basis has been substantially undermined by subsequent Supreme Court decisions”)
(internal quotation marks omitted).
                                          5

could consider the merits of Mr. Baldwin’s appeal, it would still deny his petition.

It rejected each of the merit arguments Mr. Baldwin had raised: that OII had failed

to timely complete its investigation after receiving notice of his case and therefore

was without authority to discipline him; and that the OEA ALJ had erred in

crediting the testimony of DYRS’s witnesses.5



                                           II.



      It is undisputed that Mr. Baldwin filed his petition for review well outside

the thirty-five day time limit specified in D.C. Code § 1-606.03(c) and OEA Rule

633.1. Understandably in light of this court’s prior case law, 6 the OEA Board

treated that limit as jurisdictional. If the Board’s ruling was correct in that regard,

we could uphold it on that basis alone. See Hamer v. Neighborhood Hous. Servs.

of Chi., 138 S. Ct. 13, 17 (2017) (“[A party’s f]ailure to comply with a

jurisdictional time prescription . . . deprives a court of [its power to hear a] case,


      5
         Mr. Baldwin raised other arguments in his appeal to the Superior Court,
but we will not “consider contentions not presented before [OEA] at the
appropriate time.” DC Appleseed Ctr. for Law & Justice v. District of Columbia
Dep’t of Ins., Securities, & Banking, 214 A.3d 978, 986 (D.C. 2019).
      6
          See District of Columbia Public Employee Relations Bd. v. District of
Columbia Metropolitan Police Dep’t, 593 A.2d 641, 643 (D.C. 1991), and cases
cited therein.
                                           6

necessitating dismissal . . . .” (internal quotation marks and citation omitted)). For

the reasons that follow, however, we now conclude that the thirty-five day limit is

not jurisdictional but is instead a claim-processing rule.



      As we explained in Mathis, “the modern bright[-]line default [rule] . . . is

that procedural rules, even those codified in statutes, are nonjurisdictional in

character.” 124 A.3d at 1102 (citing authority that it is improper to use the term

“jurisdictional” “to describe emphatic time prescriptions in rules of court”)

(internal quotation marks omitted). “Filing deadlines in particular . . . generally do

not have jurisdictional force” and have such force only if the legislature “has

clearly stated as much[,]” i.e., if the legislature “plainly” “meant for

noncompliance with the deadline to have jurisdictional consequences.”              Id.

(internal quotation marks and brackets omitted).        As to deadlines codified in

statutes, “[i]t is not enough that the legislature articulated the deadline using

‘mandatory’ language.” Id.



      In Mathis, we looked to whether the time limit in question (found in D.C.

App. R. 15) was specified in the statutory provisions establishing this court’s

jurisdiction. Mathis, 124 A.3d at 1103; see also United States v. Wong, 575 U.S.

402, 403 (2015) (explaining that the legislature’s “separation of a filing deadline
                                         7

from a jurisdictional grant indicates that the time bar is not jurisdictional”).

Employing a similar analysis here, we note that the thirty-five day limit is not

found in the statutory provision (D.C. Code § 1-606.02) describing the authority of

the OEA, but instead is found in a provision (D.C. Code § 1-606.03) pertaining to

“Appeal procedures.” 7 This weighs in favor of a conclusion that the 35-day limit

of D.C. Code § 1-606.03 does not have “jurisdictional import,” Mathis, 124 A.3d

at 1103, and is instead a claim-processing rule. We so hold.



      Claim-processing rules “may be tolled [or relaxed or waived] if equity

compels such a result.” Id. at 1101. In this case, we do not know whether the

OEA Board thought that a waiver of the 35-day limit would have been equitable;

having found that the limit was jurisdictional and could not be waived, the Board

did not resolve that issue. Had the Board not issued its alternative ruling, a remand

might be necessary in order for the Board to make that determination. We say

“might” because we would also confront the issue of whether the Board could




      7
           For that reason, we are not persuaded by the District of Columbia’s
argument that the thirty-five day deadline should be viewed as jurisdictional
because it was established by the Council of the District of Columbia and is
“embedded” within a section of the Comprehensive Merit Personnel Act of 1978
that “outline[s] the subject matter jurisdiction of OEA.”
                                          8

properly raise the 35-day limit sua sponte, as it did. 8 The District argues that this

was proper because the Council did not give the OEA Board explicit authority to

extend the 35-day period. But some courts have questioned whether a claim-

processing deadline “must be pleaded by the party benefitting from its

application,” so that a court may not raise it sua sponte, as is the case with

affirmative defenses. See, e.g., United States v. Mitchell, 518 F.3d 740, 748 (10th

Cir. 2008) (ultimately concluding that courts may raise claim processing rules sua

sponte in limited circumstances). At the same time, courts have recognized an

exception to that rule where a time limit “implicates the [adjudicative body’s]

power to protect its own important institutional interests” rather than an interest of

the parties, such as finality, avoiding calendar congestion, minimization of

uncertainty, and “waste of judicial resources caused by undue delay.” Id. at 749–

50 (holding that an appellate court may raise sua sponte the time bar of Federal

Rule of Appellate Procedure 4(b) when judicial resources and administration are

implicated and the filing delay has been inordinate); United States v. Williams, No.

18-6319, 2019 U.S. App. LEXIS 9957, *2 (6th Cir. Apr. 3, 2019) (same).

Although the District argues that such interests, including concern about a backlog

of cases before the OEA Board, justified the Board’s sua sponte dismissal of Mr.

      8
         The Board did so even before the District was served with the petition for
review. This case therefore does not raise the issue of the opposing party’s
forfeiture of any objection to the untimely petition.
                                          9

Baldwin’s petition for review, we need not resolve the issue in this case because

we conclude that affirmance is warranted on the basis of the Board’s alternative

ruling.



                                        III.



      We will not disturb the decision of the OEA Board if it “flows rationally

from the facts which are supported by substantial evidence in the record.” District

of Columbia v. Davis, 685 A.2d 389, 393 (D.C. 1996). Like the OEA Board, we

defer to credibility determinations of the OEA factfinder. Hutchison v. District of

Columbia Office of Emp. Appeals, 710 A.2d 227, 232 (D.C. 1998).



      In his appeal to the OEA and in his petition to the OEA Board, Mr. Baldwin

argued that DYRS was prohibited from disciplining him because OII did not

complete its investigation until March 8, 2011, and thus failed to complete its

investigation of allegations of abuse within ten business days of receiving notice of

the case, as directed in DYRS policy guidelines. 9 He renews that argument in this


      9
          YSA 9.14(B)(6) states that OII “shall complete a final report on its
investigation of an allegation of staff physical abuse of a youth within ten (10)
business days after receiving oral or written notice of an allegation of staff physical
abuse.”
                                                                         (continued…)
                                        10

appeal.    However, the OEA ALJ heard testimony from former OII Internal

Integrity Officer Tony Newman, who told the ALJ that the ten-business-day

policy, which emanated from the Jerry M. class action, was a target but not a

mandatory deadline in every circumstance, and in any event had been superseded

during the relevant time period by a work plan approved under the Jerry M.

consent decree. 10 See generally District of Columbia v. Jerry M., 571 A.2d 178

(D.C. 1990). According to the hearing evidence, that work plan set a flexible or

“conditional” target of completion of investigations within thirty-five days of

notice of an incident in 80% of cases within any four-month period. Mr. Newman

also testified about DYRS’s policy of delaying investigations so as not to interfere

with criminal investigations by the MPD, a policy that, according to Mr.

Newman’s uncontradicted testimony, the Jerry M. court understood might

reasonably cause the timeline to be exceeded in those circumstances. The ALJ

found that through Mr. Newman’s testimony, DYRS met its burden of

demonstrating that it “did not violate its own policy” in completing the

investigation.   Although Mr. Baldwin conclusorily asserts that Mr. Newman’s

(…continued)

      10
         Cf. Holzsager v. District of Columbia Alcoholic Beverage Control Bd.,
979 A.2d 52, 61 (D.C. 2009) (“[T]his [c]ourt presumes that a statute is directory
rather than mandatory if . . . [it] does not specify the consequences of
noncompliance” with a time limit within which a public official must act.).
                                         11

testimony was “false, erroneous, and misleading,” he has provided us with no basis

for declining to defer to the ALJ’s contrary credibility determination. 11 Moreover,

the District argues persuasively that the purpose of the ten-business-day policy was

to ensure expeditious efforts to protect youths in DYRS custody from threats to

their safety, not to provide staff with speedy resolution of allegations or to bar

discipline if an investigation was not timely completed.



       Finally, substantial evidence supports the ALJ’s finding that DYRS had

cause to terminate Mr. Baldwin. The surveillance video shows the youth in

question holding, but not swinging or wielding, a chair, and then shows Mr.

Baldwin grabbing the youth by his neck and slamming him into a glass window

and wall, and eventually pushing the youth alongside the wall and into a corner.

The ALJ also heard testimony from the DYRS Chief of Residential Programs and

Services (Captain Baynes), who described the training Mr. Baldwin received

regarding appropriate restraining techniques and conflict de-escalation and testified


      11
          Mr. Baldwin cites an OEA initial decision in another case (Michael Dunn
v. District of Columbia Dep’t of Youth Rehabilitation Servs., OEA Matter No.
1601-0047-10 (Oct. 5, 2012)) in which an ALJ concluded without analysis that
because OII did not timely complete its investigation in compliance with the ten-
business-days policy, DYRS had no cause to terminate the employee. Dunn Initial
Decision at 14. The OEA Board distinguished Dunn on the ground that it did not
involve delay because of MPD and District of Columbia Department of Child and
Family Services investigations.
                                         12

that Mr. Baldwin’s use of force shown in the video was not appropriate. The video

and Captain Baynes’s testimony constituted substantial evidence supporting the

ALJ’s finding that Mr. Baldwin “aggravated” rather than de-escalated the

circumstances and violated DYRS’s use-of-force policy by “strik[ing] or lay[ing

his] hand upon a[] youth” where he was neither acting in defense of self or others

nor acting in order “to prevent an escape or serious injury to personnel or

destruction of property.” YSA 9.14(B)(6). 12




      12
         Appellant also argues that he was not given proper notice of the OII
investigation or of the “cause” for DYRS’s actions. Like the Superior Court,
however, we are satisfied that the December 19, 2010, DYRS Memorandum
informing Mr. Baldwin that he was being placed on noncontact status “pending the
outcome of an investigation . . . into the incident that occurred at the Youth
Services Center on December 17, 2010,” was sufficient to apprise him that he was
being investigated and to indicate why. Mr. Baldwin also has provided no
authority for his argument that he was entitled to notice of the investigation as a
matter of due process. See SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 (1984)
(explaining that due process does not require an agency to notify a target of an
investigation because “an administrative investigation adjudicates no legal rights”).
Further, Mr. Baldwin has acknowledged that he was provided with an advanced
written notice of his proposed removal that cited, among other things, his violation
of the use-of-force policy.

      Appellant’s argument (made for the first time on appeal) that he was denied
his Confrontation Clause right to confront his accusers is equally unavailing. As
the Superior Court explained, the Confrontation Clause pertains in criminal
prosecutions, which the proceedings involved here were not.
                                      13

      For the foregoing reasons, the OEA Board’s decision upholding appellant’s

termination is

                                           Affirmed.
