Date: 07-12-2013

Case Style: IAFF Local 176 v. Public Employees Relations Board and the City of Tulsa

Case Number: CV-2012-1881

Judge: Barbara G. Swinton

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Steven Hickman

Defendant's Attorney: Bryan Neal for Public Employees Relations Board,

Gerald Bender, Brandon J. Burris and Jason T. Seay for the City of Tulsa

Description: IAFF Local 176 sued the Public Employees Relations Board and the City of Tulsa claiming:

1. International Association of Fire Fighters, Local 176, is the certified bargaining representative of certain firefighters of the City of Tulsa, Oklahoma, a Defendant/Appellee herein, which is a municipal corporation. Plaintiff filed a ULP against Defendant City of Tulsa under the FPAA, 11 0.5. § 51-101 et seq., before Defendant Public Employees Relations Board (“PERB”), a state agency, as Case No. 2011-ULPC-509.

2. PERB entered an order denying the ULP of Plaintiff on August 9, 2012, which order is hereby challenged under the appeals procedures of the Administrative Procedures Act of Oklahoma, 75 O.S. § 250 et seq.

3. The seminal issue on appeal is whether the City can prohibit firefighters from financing or engaging in political activity on city council/city officer races, so long as the firefighters are off duty and out of uniform, as protected by 11 0.5. § 22-101.1 and approved by 1981 AG 90, or whether Defendant City can continue to threaten termination or other discipline of its firefighters for such activities.

4. Plaintiff states that the PERB decision came down on the wrong side of this question and that its decision is therefore infirm and should be reversed. WHEREFORE, premises considered, Plaintiff prays that this court reverse the order of PERB denying Plaintiff’s ULP charge in the above referenced case number, and requests such other and further relief to which it is deemed entitled.

The City of Tulsa appeared and moved to dismiss stating:

Pursuant to 12 0.5. 2011, § 2012(B)(1), the City of Tulsa (“City”) specially appears in this proceeding solely for purposes of challenging this Court’s jurisdiction and requests this Court enter an Order dismissing the IAFF, Local 176’s (“Union”) appeal for lack ofjurisdiction. The City submits the following brief in support of this motion:

I. INTRODUCTION

The Union appeals a decision by the Oklahoma Public Employees Relations Board (“PERB”) to this Court pursuant to the appeals process provided by the Oklahoma Administrative Procedures Act, 75 0.5. 2011, § 250, et seq. (“APA”). See Petition at p. 1, ¶ 2. The APA’s appellate procedure applies to PERB’s rulings by virtue of 75 0.5. 2011, § 250.3(3) (defining “agency”). The Union filed its Petition seeking review of a PERB ruling on 6 September 2012. See generally Petition. The City was a party to that proceeding. See Id. at p. 1, ¶ 1. The Union failed to serve the City with a summons for this appeal until 1 March 2013. See Affidavit of Service filed 7 March 2013. The Union failed to file any proof of delivery to PERB of this appeal as of the date of the filing of this Motion. Indeed, it appears PERB was never timely served with this appeal.

The Union failed to adhere to the mandatory service and proof of delivery requirements provided by the APA. The APA’s statutory requirements for perfecting an appeal from PERB are jurisdictional. These procedural defects are therefore fatal to the Union’s appeal. Subject matter jurisdiction has not been perfected in this Court. Dismissal is therefore appropriate.

II. DISCUSSION

The APA provides a statutory basis for this Court’s appellate jurisdiction over PERB. See 75 0.5. 2011, § 318(A)(l) (authorizing “[amy party aggrieved by a final agency order . . to judicial review thereof ). In doing so, however, an appellant must abide by specific statutory requirements. In particular: (1) the petition must be served upon all parties of record within 10 days of its filing; and (2) “proof of such delivery shall be filed in the [district] court within” ten days. 750.S.2011, § 318(C). “Appellants in administrative appeals are held to strictly comply with the statutory procedural requirements Choices Inst. v. 0/cia. Health Care Auth., 2010 OK C1V APP 117, 241 P.3d 705, 708. As such, the APA’s procedural requirements are jurisdictional. See Conoco, Inc. v. State Dept. of Health of State of 0/cIa., 19820K 94, 651 P.2d 125, 128. This includes the prescribed methods and time for service of the Petition. Williams v. Bd. of 0/cia. Polygraph Examiners, 2010 OK CIV APP 100, 241 P.3d 654, 657 (the “naming and serving all parties of record are jurisdictional requirements.”); Choices Inst., 2010 OK CIV APP 117,241 P.3d at 707 (“[T]imely service of the petition is mandatory” (emphasis omitted)).

The Union failed to adhere to its obligations under the APA. It failed to serve either the City or PERB within ten days of the filing of the Petition. It failed to file proof service within the required timeframe. The procedural requirements provided by the APA’s appeal procedure are not mere recitals of ritualistic liturgy. They are jurisdictional requirements for perfecting an appeal of an administrative agency’s ruling. The failure to adhere to those requirements is fatal to the Union’s appeal.

III. CONCLUSION

“Where[, as here,] jurisdiction is statutory, ‘the terms of the statute must be complied with before a court can acquire jurisdiction.’“H & En, Inc. v. Okia. Dept. of Lab., 2006 OK CIV APP 70, 136 P.3d 1070, 1071 (affirming dismissal of administrative appeal under APA for failure to comply with mandatory statutory requirements) (quoting Edmondson v. Siegfried Ins, Agcy., Inc., 1978 OK 45, 577 P.2d 72, 74). “If jurisdiction is lacking, the [district] court has no discretion and the question of whether motions to dismiss are viewed with disfavor is irrelevant.” Id. It is beyond dispute that the Union the failed to meet the APA’s statutory requirements for perfecting an appeal of PERB’s decision. This Court therefore lacks jurisdiction to entertain the Petition. Dismissal of the Union’s Petition is therefore appropriate,

The IAFF responded as follows:

1. The motions rely upon 75 O.S. § 318, which deals with appeals of agency actions under the APA.

2. Sub-part (B)(2) sets forth the method of invoking this court’s jurisdiction: the petition for review must be filed in this court within thirty days. That is how the appeal is instituted.

3. Sub-part (C) adds a directory requirement dealing with service of the documentation. That service is not necessary to invoke the subject matter jurisdiction in this court because that would have already been done by the appeal being “instituted” under Sub-Part (B)(2).

4. It does not appear that the Oklahoma Supreme Court has ruled on the issue now before the court. However, it has, on many occasions, distinguished between mandatory actions and permissive actions, the difference between “shall” and “may”. In addition, it has regularly distinguished between mandatory (subject matter necessary) and directory (not-subject matter necesscsry) use of the word “shall”. See, for example, State ex rel. OBA v. Mothershed, 2011 OK 84, 264 P3d 1197. There, the Defendant had claimed that failure to hold a hearing within the time frame required by the rule (“shall”) deprived further jurisdiction. The court held that this was fl.Q the case. The court held that the subject matter jurisdiction had been invoked and that the “shall” was directory, rather than mandatory.

5. While it is true that the general rule is that failure to meet a time limit that invokes the jurisdiction of the court forecloses jurisdiction, it is also generally held that, once jurisdiction is invoked, “shall” requirements thereafter are subject to waiver or modification. In Mulford V. Neal, 2011 OK 20, 264 P3d 1173, the statute required that a judgment creditor take issue with the answer of the garnishee within twenty days or the answer “shall be conclusive of the facts” in the answer. In Mulford, the Supreme Court indicated that the time to take issue with an answer can be extended by the trial court and is not jurisdictional; the jurisdiction of the court was invoked earlier by the filing of the garnishment.

6. In this case, the jurisdiction of the court was invoked by the institution of this appeal—the filing of the petition, as set forth in (B) (2). The direction to send it to the other parties within ten days under (C) is not jurisdictional. For the foregoing reasons, Plaintiff requests that the motions to dismiss be denied.

Outcome: TH[S MATI’ER came before me on the 25 Day of April 2013 upon the Appellees’ respective Motion to Dismiss, and this Court, having considered the motions, the Appellants’ Response Brief thereto and the Appellees’ respective Reply Briefs in Support thereof, SUSTAINS Appellees’ respective Motions.

It is therefore ORDERED that Appellant’s Appeal is hereby dismissed pursuant to 12 0.8.2011, § 2012(B)(1).

Plaintiff's Experts:

Defendant's Experts:

Comments: