# ANC 2C v. D.C. Alcoholic Beverage and Cannabis Board

> District of Columbia Court of Appeals · September 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11140173

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** September 18, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11140173

## How later opinions describe it (automated extraction)

- recognizing an individual’s PFR before this court as valid even though, standing alone, he could not have petitioned the Board for review
- finding that the nearly identical Fed. R. App. P. 15(a)(2)(A) was a “clearly worded jurisdictional rule” and that the “failure to name a party in the petition for review deprives the court of jurisdiction to grant the unnamed applicant any relief”

## Opinion text

Notice: This opinion is subject to formal revision before publication in the Atlantic
and Maryland Reporters. Users are requested to notify the Clerk of the Court of
any formal errors so that corrections may be made before the bound volumes go
to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 24-AA-0511 & 24-AA-0598

ADVISORY NEIGHBORHOOD COMMISSION 2C, et al., PETITIONERS,

V.

DISTRICT OF COLUMBIA ALCOHOLIC BEVERAGE AND CANNABIS BOARD,
RESPONDENT,

AND

UND NECESSITIES LLC T/A DC SMOKE, INTERVENOR.

On Petition for Review of an Order of the District of Columbia Alcoholic
Beverage and Cannabis Board
(2024-PRO-00009)

(Argued June 12, 2025 Decided September 18, 2025)
Joseph C. Folio III, with whom Nicholas A. Weigel and Colbie Holderness
were on the briefs, for petitioners.

Dia Rasinariu, Assistant Attorney General, with whom Brian L. Schwalb,
Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak,
Principal Deputy Solicitor General, and Graham E. Phillips, Deputy Solicitor
General, were on the brief, for respondent.

Meredith Kinner, with whom John McGowan and Ciera Cockrell were on the
brief, for intervenor.
2

Before BECKWITH and DEAHL, Associate Judges, and CROWELL, * Associate
Judge, Superior Court of the District of Columbia.

CROWELL, Associate Judge, Superior Court of the District of Columbia:

Advisory Neighborhood Commission (ANC) 2C and ANC 2C Commissioner

Thomas Lee petition this court for review of the District of Columbia Alcoholic

Beverage and Cannabis Board’s May 1, 2024, order approving UND Necessities, t/a

DC Smoke’s application for a new medical cannabis retailer’s license. The Board

approved the application in a written order over the ANC’s timely protest letter and

after reviewing evidence submitted at a protest hearing. For the following reasons,

we hold that the ANC lacks standing to petition this court for review of the order

and determine that, because D.C. App. R. 15(a)(3)(A)’s petitioner-naming

requirement is jurisdictional, we are unable to grant the ANC leave to add or

substitute Commissioner Lee as a petitioner. We further hold that D.C. App. R.

15(a)(2) is a mandatory claim-processing rule and, thus, deem Commissioner Lee’s

individual petition untimely.

Accordingly, for the reasons stated herein, we dismiss both petitions and

decline to consider the merits of the Board’s decision.

*
Sitting by designation pursuant to D.C. Code § 11-707(a).
3

I. Background

The District’s medical cannabis program was established and is governed by

the Legalization of Marijuana for Medical Treatment Initiative of 1999, D.C. Law

13-315, 57 D.C. Reg. 3360 (Feb. 25, 2010) (codified as amended at D.C. Code

§§ 7-1671.01-.13). The Council of the District of Columbia overhauled the program

when it enacted the Medical Cannabis Amendment Act of 2022, D.C. Law 24-332,

70 D.C. Reg. 1582 (Mar. 22, 2023) (Amendment Act).

The Amendment Act established, in relevant part, a statutory scheme whereby

an unlicensed cannabis dispensary could apply for and obtain a valid medical

dispensary license during a 90-day on-ramp period.1 See Report on Bill No. 24-113,

before the Comm. of the Whole, Council of the District of Columbia at 4 (Dec. 6,

2022); D.C. Code § 7-1671.06a. The Amendment Act also established a procedure

whereby an ANC—and only an ANC—could protest the issuance of a medical

cannabis retailer license to an unlicensed establishment seeking to transition. Id. at

§ 7-1671.06a(h)(2).2

1
The initial on-ramp period ran from November 1, 2023, to January 29, 2024.
70 D.C. Reg. 6930 (May 12, 2023).
We agree with the Board that this provision, read according to its ordinary
2

meaning at the time of enactment, meant that no party, other than an ANC, had
4

On the first day of the initial on-ramp period, DC Smoke, then an unlicensed

establishment, applied for a medical cannabis retailer license pursuant to D.C. Code

§ 7-1671.06a. A few months later, the ANC sent a formal letter of protest to the

Board, which then scheduled a protest hearing. After hearing from several witnesses

and reviewing evidence submitted at the hearing, the Board issued a written order

on May 1, 2024, approving DC Smoke’s licensing application.

On May 31, 2024, the ANC filed with this court a petition for review (PFR).

We subsequently directed the ANC to show cause why its petition should not be

dismissed for lack of standing, citing to our decision in Kopff v. D.C. Alcoholic

Beverage Control Board, 381 A.2d 1372, 1376 (D.C. 1977), in which we held that

D.C. Code § 1-309.10(g) 3 precludes ANCs from challenging a licensing decision by

the Board. This seemingly prompted Commissioner Lee to file his own petition

outside the thirty-day deadline imposed on PFRs by D.C. App. R. 15(a)(2). After

standing to protest the issuance of a medical cannabis retailer license. See In re
Sequential, LLC, t/a Green Theory, Order Granting Applicant’s Mot. to Dismiss at
2 (D.C.A.B.C.B. Apr. 11, 2024),
https://abca.dc.gov/sites/default/files/dc/sites/abra/publication/attachments/GreenT
heory-4112024.pdf; https://perma.cc/56A5-7NU5. Since then, however, the Council
has expanded the categories of individuals who can protest medical cannabis retailer
licenses beyond only ANCs. See Medical Cannabis Clarification and Program
Enforcement Amendment Act of 2024, D.C. Law 25-255, 71 D.C. Reg. 13505 (Dec.
17, 2024); D.C. Code § 7-1671.06g(a)(1)-(4).
3
At the time our decision in Kopff was published, D.C. Code § 1-309.10(g)
was codified at D.C. Code § 1-171i(g).
5

briefing by both parties, we discharged the show cause order, consolidated

Commissioner Lee’s petition, and directed the parties to include in their respective

briefs a discussion of the ANC’s standing to petition this court for review, the

propriety of adding or substituting Commissioner Lee as the petitioner in the ANC’s

petition, and the timeliness of the Commissioner’s individual petition. We granted

DC Smoke leave to file an opposition brief as Intervenor.

II. Discussion

Petitioners argue that (1) notwithstanding Section 1-309.10(g), the ANC has

standing to petition this court for review; (2) if not, this court should grant the ANC

leave to add or substitute Commissioner Lee as a petitioner; and (3) this court should

grant equitable relief to Commissioner Lee and deem his individual petition timely

filed. We address each argument in turn.

A. The ANC’s Standing

Petitioners first argue that, despite D.C. Code § 1-309.10(g)’s prohibition on

ANC’s initiating legal actions in this court, the ANC has standing to petition this

court for review.

Generally, a District agency “requires a grant of litigation authority before it

may sue another party. If [an agency] lacks litigation authority to bring [an] appeal,
6

it lacks standing, and we will dismiss the appeal.” Off. of the People’s Couns. for

D.C. v. D.C. Water & Sewer Auth., 313 A.3d 579, 584 (D.C. 2024) (citations

omitted). The Council has never granted ANCs such litigation authority. In fact,

the Council has expressly prohibited ANCs from initiating any legal action in this

court: D.C. Code § 1-309.10(g) unequivocally provides that ANCs “shall not have

the power to initiate a legal action in the courts of the District of Columbia.” D.C.

Code § 1-309.10(g) (emphasis added). As we have previously held, “this language

conveys an unqualified intent to preclude ANCs from coming to courts as the

initiators of judicial action,” and we have long held that a PFR qualifies as a “legal

action” under the provision. Kopff, 381 A.2d at 1376; see also Wheeler v. D.C. Bd.

of Zoning Adjustment, 395 A.2d 85, 87 n.1 (D.C. 1978); Don’t Tear It Down, Inc. v.

D.C. Dep’t of Hous. & Cmty. Dev., 428 A.2d 369, 371 n.1 (D.C. 1981).

Petitioners nevertheless claim that the ANC has standing because the Council,

in enacting the Amendment Act, implicitly repealed Section 1-309.10(g). See D.C.

Code § 7-1671.06a(h)(2). Petitioners suggest that Section 1-309.10(g) and Section

7-1671.06a(h)(2) of the Amendment Act are “inconsistent” because the latter

“vest[s] in [ANCs] the sole express right to protest a cannabis retailer licensing

application and to initiate a contested Board hearing about it,” while the former

“den[ies] them the ability to appeal an adverse decision from that protest.”

Petitioners argue that the ANC, as the “real party in interest,” “should be allowed to
7

challenge the Board’s decision before this court,” because otherwise an “individual

resident,” who may not have standing to pursue all of the claims raised by the ANC

during a protest hearing, would have to continue the action.

“[R]epeals by implication are disfavored.” Mazanderan v. D.C. Dep’t of Pub.

Works, 94 A.3d 770, 774 (D.C. 2014). We will recognize an implied repeal only “if

there is a clear legislative intention to repeal, or if the statutes themselves are

‘irreconcilable,’ that is, ‘so inconsistent that the two cannot have concurrent

operation.’” Id. (quoting United States Parole Comm’n v. Noble, 693 A.2d 1084,

1087 (D.C. 1997), adopted en banc, 711 A.2d 85 (D.C. 1998)). Otherwise, “[w]e

are obliged to give effect to both provisions.” Id.

Here, the two provisions are not so inconsistent that they cannot have

concurrent operation. As an initial matter, Sections 1-309.10(g) and

7-1671.06a(h)(2) address entirely different proceedings—the former, legal actions

initiated before this court, and the latter, protest actions initiated before the Board.

Thus, by permitting ANCs (and only ANCs) to protest a medical cannabis retailer

license application before the Board while simultaneously prohibiting them from

initiating legal actions in this court, we can give concurrent effect to both provisions

and are obligated to do so. See Mazanderan, 94 A.3d at 774. We acknowledge that

this framework is, perhaps, somewhat inefficient insofar as it requires a new party,
8

other than the ANC who received an adverse decision from the Board, to file a PFR

with this court even though that new party did not (and could not have) protested the

licensing application before the Board. Such a result, however, is not inoperable.

Indeed, we have already implicitly acceded to such an arrangement. See Padou v.

D.C. Alcoholic Bev. Control Bd., 70 A.3d 208, 210 (D.C. 2013) (recognizing an

individual’s PFR before this court as valid even though, standing alone, he could not

have petitioned the Board for review).

Neither are we persuaded by petitioners’ concern that an individual resident

would not have standing to represent the ANC’s interests before this court following

an adverse decision by the Board. We have held that “ANC area residents (including

ANC Commissioners as individual citizens) have standing to initiate legal action to

assert the rights of the ANC itself.” Kopff, 381 A.2d at 1377. Specifically, we held

that

[i]f an ANC’s statutory rights are violated and, as a
consequence, the performance of its advisory duties is
hindered, the actual injury is suffered by the residents
themselves; they are the ones harmed by the ANC’s
inadequate presentation of neighborhood views. . . .
Accordingly, the criteria for standing to seek judicial
review of alleged violations of ANC rights are met by area
residents.
9

Id. Thus, we again note that, contrary to petitioners’ assertion, an individual resident

would have standing to represent the ANC’s interests before this court following an

adverse decision by the Board.

In sum, we conclude that the Council did not implicitly repeal Section

1-309.10(g) when it enacted the Amendment Act. Pursuant to that provision, we

find that the ANC is without standing to petition this court for review of the Board’s

order.

B. Adding or Substituting Commissioner Lee as Petitioner

Next, petitioners ask this court for leave to amend the ANC’s petition to add

Commissioner Lee as a petitioner in his individual capacity. Petitioners argue that,

because D.C. App. R. 15(a)(3)(A)’s petitioner-naming requirement is

nonjurisdictional, we have authority to provide the ANC with the equitable relief it

requests. Alternatively, petitioners ask us to allow Commissioner Lee to “substitute

for the [ANC] because otherwise there would be no petitioner to continue the

appeal.”

To determine “whether the failure to name the proper petitioners creates a

jurisdictional defect,” we must “(1) determin[e] whether the necessity of a petition

for review derives from a legislature’s establishment of a jurisdictional requirement
10

and (2) ascertain[] whether identification of the parties to a case is an essential

component of a petition for review.” Off. of the People’s Couns., 313 A.3d at 589.

Under the first step, we look to the statutory grant of authority found in

Section 2-510(a) of the D.C. Administrative Procedure Act (APA). Our power to

review agency decisions derives from the two “jurisdictional provisions” of Section

2-510(a)—the first and sixth sentences. Mathis v. D.C. Hous. Auth., 124 A.3d 1089,

1102-03 (D.C. 2015). The first sentence describes how “[a]ny person suffering a

legal wrong, or adversely affected or aggrieved by an order . . . of . . . an

agency . . . is entitled to a judicial review thereof in accordance with this subchapter

upon filing in [this court] a written petition for review.” D.C. Code § 2-510(a). The

sixth sentence provides that “[u]pon the filing of a petition for review, th[is] [c]ourt

shall have jurisdiction of the proceeding.” Id. Read together, these sentences grant

us jurisdiction only over those PFRs filed by qualifying parties—that is, the persons

“suffering a legal wrong” or “adversely affected or aggrieved” by the decision.4

Thus, our jurisdiction is contingent on the identity of the petitioner as an aggrieved

party and the Council effectively established the petitioner’s identity as a

jurisdictional requirement. Cf. Off. of the People’s Couns., 313 A.3d at 589 (denying

petitioner’s request to amend its PFR because it failed to meet its burden to

4
Again, ANCs do not qualify as such a party as they do not have standing to
sue in our courts. See infra Section II.A.
11

demonstrate we have jurisdiction to grant such equitable relief). Moreover, the

petitioner’s identity is plainly an essential component of a PFR, as only those

qualifying persons may file a petition in the first place. See id.

For this reason, Rule 15(a)(3)(A) requires each petition to “name each party

seeking review either in the caption or the body of the petition.” D.C. App.

R. 15(a)(3)(A). See also D.C. Code § 2-510(a) (authorizing this court to prescribe

by rule “the forms and contents of” a PFR). This Rule implements Section

2-510(a)’s jurisdictional command and enables us to determine whether a party

qualifies as a petitioner under the APA and, accordingly, whether we have

jurisdiction to entertain the petition. See generally Miljkovic v. Ashcroft, 366 F.3d

580, 583 (7th Cir. 2004) (finding that the nearly identical Fed. R. App. P. 15(a)(2)(A)

was a “clearly worded jurisdictional rule” and that the “failure to name a party in the

petition for review deprives the court of jurisdiction to grant the unnamed applicant

any relief”). Section 2-510(a) thus imbues Rule 15(a)(3)(A) with “the force of a

statutory jurisdictional mandate.” Mathis, 124 A.3d at 1103. We therefore hold that

the failure to identify a proper petitioner in a PFR is a jurisdictional defect that

precludes us from considering equitable arguments. 5 Cf. id. at 1101.

5
We note, however, that the failure to identify a proper petitioner here was
not the result of some technical error such as a misspelling. We doubt that such
12

The cases cited by petitioners where we held that other parts of Rule 15 are

nonjurisdictional do not conflict with this result. In Mathis, we found that the thirty-

day deadline imposed by Rule 15(a)(2) was not jurisdictional, but this was because

the “jurisdictional” sentences of Section 2-510(a) did not mention timeliness and the

fourth sentence—which requires PFRs to be filed within such time as prescribed by

this court—did not have jurisdictional import. 124 A.3d at 1103. By contrast, Rule

15(a)(3)(A)’s petitioner-naming requirement relates directly to the “jurisdictional”

first sentence of Section 2-510(a), which specifically describes the persons qualified

to file a PFR. Next, in Moore Energy Resources, Inc. v. Public Service Commission

of the District of Columbia, we determined that D.C. App. R. 15(a)(6)’s corporate

counsel signature requirement was nonjurisdictional in part because, like D.C. Code

§ 23-104(a)(1)’s certification requirement, 6 there was no “unbending mandatory

minor irregularities would pose a jurisdictional bar so long as the identity of a proper
petitioner can be ascertained from the petition. See generally Colao v. Cnty. Council
of Prince George’s Cnty., 675 A.2d 148, 155 (Md. 1996) (“[M]ere technical defects
respecting the petition for review will not cause an appeal from an administrative
agency to be dismissed if the petitioner has otherwise substantially complied with
the procedural rules and there is no prejudice to the respondent.”), aff’d, 697 A.2d
96 (Md. 1997).
6
At the time, D.C. Code § 23-104(a)(1) required the “United States Attorney
or Corporation Counsel to certify that an appeal from a pretrial ruling on a motion
to suppress evidence is not taken for the purpose of delay and the evidence is
substantial proof of the charge pending against the defendant.” Moore Energy, 785
A.2d at 304-05 (citing D.C. Code § 23-104(a)(1) (1996)).
13

need” for the requirement and because several “policy reasons” 7 weighed in favor

of allowing petitioner to cure the associated defect. 785 A.2d 300, 305-06 (D.C.

2001) (quoting In re J.W., 763 A.2d 1129, 1132 n.5 (D.C. 2000)). However, as we

recognized in that case, Rule 15(a)(6)’s requirement derives “from the long-standing

precedent that a corporation cannot appear in court pro se,” not from a strict,

statutory command like Rule 15(a)(3)(A). Id. at 304. Thus, regardless of whether

the policy reasons listed in Moore could be applied in this context, they cannot

override the clear, jurisdictional command that underlies Rule 15(a)(3)(A)’s

petitioner-naming requirement. Our holdings in Moore and Mathis therefore do not

disturb our jurisdictional calculus of Rule 15(a)(3)(A).

Petitioners’ reliance on Neill v. D.C. Public Employee Relations Board, 93

A.3d 229 (D.C. 2014) is similarly misplaced. There, we held that Sup. Ct. Agency

Rev. R. 1, which requires a petitioner to name the agency as a respondent in a PFR,

was nonjurisdictional because the relevant authorizing statute in that case made no

mention of the requirement. Id. at 239. While this reasoning might apply with equal

7
These included (1) “the purpose of the [PFR] is to provide the agency, and
any interested parties, with notice that a review of a particular agency decision or
order has been requested”; (2) “the opposing party’s legal positions are generally
unprejudiced by the irregularity or a rule permitting the irregularity to be cured”; and
(3) “this court has routinely expressed a ‘strong judicial and societal preference’ for
the resolution of disputes on their merits rather than by default.” Moore Energy, 785
A.2d at 306 (quoting Abell v. Wang, 697 A.2d 796, 800 (D.C. 1997)).
14

force to Rule 15’s respondent-naming requirement, it does not logically apply to the

Rule’s petitioner-naming requirement because Section 2-510(a) directly subjects our

jurisdiction to the identity of a petitioner, not a respondent.

In sum, because the ANC named only itself as a petitioner in its PFR and does

not have standing to petition this court for review, we do not have jurisdiction to

entertain its petition and, likewise, cannot grant it leave to add Commissioner Lee as

a petitioner.

By the same token, we are also without authority to substitute the ANC for

Commissioner Lee. D.C. App. R. 43 gives this court discretion to substitute parties

because of the death of a party or for any other reason. D.C. App. R. 43(a), (b). In

Don’t Tear It Down, ANC 3A initially sought judicial review of an administrative

proceeding but, after recognizing that Section 1-309.10(g) precluded it from doing

so, filed a motion to substitute its Commissioner in its place. 428 A.2d at 371 n.1.

We interpreted Rule 43 as allowing “substitution of one party for another . . . where

someone with standing as a party in a legal action dies or becomes otherwise

incompetent.” Id. We reasoned that “[t]he rule presupposes that substitution is for

someone who was a party to a pending action. Substitution is allowed where

‘necessary’ to preserve and protect the legal rights of the party who bec[a]me

incompetent.” Id. (emphasis added). Thus, we held that “the Commissioner can
15

only become a substitute party for the ANC if the ANC was, in fact, a party in [that]

litigation. Since the ANC could not be a party in [that] judicial action, substitution

[was] improper.” Id. (citations omitted). We also concluded that, because “Rule

43(b) makes ‘necessary’ the standard for allowing substitution,”8 and because there

were other petitioners that could “adequately represent the interests of the ANC,

substitution [was] not necessary.” Id.

Petitioners urge a different result in this case, arguing that here, substitution

is “necessary” because, unlike in Don’t Tear It Down, there are no other petitioners

that can represent the ANC’s interests. This argument, however, ignores our primary

holding in Don’t Tear It Down—that substitution is appropriate only if the party

seeking it is, in fact, a proper party to begin with. This is a threshold determination,

for “[t]he rule presupposes that substitution is for someone who was a party to a

pending action.” Id. (emphasis added). Thus, if a party is without standing,

substitution is unavailable regardless of whether it might otherwise be “necessary”

to preserve and protect its interests. We have already determined that the ANC does

8
The current version of Rule 43 contemplates situations where “a party needs
to be substituted” for a reason other than death. So, while the quoted language of
“necessary” no longer appears in the text of Rule 43, the standard remains unaltered.
16

not have standing to petition this court for review. We therefore cannot substitute

the ANC with Commissioner Lee.

Because we cannot grant the ANC leave to add or substitute Commissioner

Lee as a petitioner, the ANC’s petition must be dismissed for lack of standing. See

D.C. Code § 1-309.10(g); Off. of the People’s Couns., 313 A.3d at 584.

C. Commissioner Lee’s Individual Petition

Finally, petitioners ask us to accept Commissioner Lee’s individual petition

despite its untimely filing. Petitioners argue that D.C. App. R. 15(a)(2)’s thirty-day

deadline is nonjurisdictional and that the Commissioner is entitled to equitable

tolling. Respondent argues that Rule 15(a)(2) is a mandatory claim-processing rule

not subject to equitable tolling or, alternatively, that the Commissioner is not entitled

to equitable relief.

“In recent years, the Supreme Court has made clear the distinction between

jurisdictional and claim-processing rules.” Wilson v. Bowser, 330 A.3d 993, 999

(D.C. 2025). The former govern “the classes of cases a court may entertain,” while

the latter “seek to promote the orderly progress of litigation by requiring that the

parties take certain procedural steps at certain specified times.” Wilkins v. United

States, 598 U.S. 152, 157 (2023) (quoting Fort Bend Cnty., Texas v. Davis, 587 U.S.
17

541, 548-49 (2019)). “Jurisdictional rules may not be tolled, because noncompliance

deprives this court of jurisdiction even to consider equitable arguments; claim-

processing rules, on the other hand, may be tolled if equity compels such a result.”

Mathis, 124 A.3d at 1101.

However, the Supreme Court has explained that “some claim-processing rules

are ‘mandatory’—that is, they are ‘unalterable’ if properly raised by an opposing

party.” Nutraceutical Corp. v. Lambert, 586 U.S. 188, 192 (2019) (quoting

Manrique v. United States, 581 U.S. 116, 121 (2017)). “Rules in this mandatory

camp are not susceptible” to equitable tolling. Id. Whether a rule precludes

equitable tolling turns on “whether the text of the rule leaves room for such

flexibility. Where the pertinent rule or rules invoked show a clear intent to preclude

tolling, courts are without authority to make exceptions merely because a litigant

appears to have been diligent, reasonably mistaken, or otherwise deserving.” Id. at

192-93 (citations omitted).

Guided by the Supreme Court’s developing jurisprudence on this issue, over

the years we have considered whether various procedural rules are subject to

equitable tolling. For example, in Mathis we overrode our prior decision classifying
18

D.C. App. R. 15(a)(2) as jurisdictional,9 determining that, in light of the Court’s

decisions in Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 153 (2013),

and United States v. Wong, 575 U.S. 402, 409-11 (2015), it was instead a claims-

processing rule subject to equitable tolling. 124 A.3d at 1101-03. Then, in Brewer

v. D.C. Office of Employee Appeals, we held that Super. Ct. Agency Rev. R. 1(c)

was also subject to equitable tolling. 163 A.3d 799, 803 (D.C. 2017).

The Supreme Court thereafter decided Nutraceutical. There, the Court

examined Fed. R. Civ. Pro. 23(f), which “authorize[s] courts of appeals to ‘permit

an appeal from an order granting or denying class-action certification . . . within 14

days after the order is entered.’” Nutraceutical, 586 U.S. at 191 (quoting Fed. R.

Civ. P. 23(f)). The Court determined that the Rule “is not subject to equitable

tolling” because it is “phrased in an unqualified manner” and because, while some

federal procedural rules can be suspended for “good cause,” “the Federal Rules of

Appellate Procedure single out Civil Rule 23(f) for inflexible treatment.” Id. at 193.

Specifically, “Appellate Rule 26(b) says that the deadline for the precise type of

filing at issue here may not be extended.” Id. Thus, the Court found “a clear intent

9
See Capitol Hill Restoration Soc’y v. D.C. Mayor’s Agent for Historic Pres.,
44 A.3d 271 (D.C. 2012).
19

to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for

equitable tolling might otherwise exist.” Id.

We initially declined the opportunity to address the implications of

Nutraceutical, holding in Accenture Sub, Inc. v. District of Columbia that, regardless

of Super. Ct. Tax R. 14’s classification, equitable tolling was not available in that

case. 283 A.3d 130, 135-37 (D.C. 2022). But, in Dixon v. United States, 304 A.3d

966, 971 (D.C. 2023), we applied the Nutraceutical framework to Super. Ct. Crim.

R. 35(b) and found that it was a mandatory claim-processing rule not subject to

equitable tolling, thereby overriding our earlier, contrary decision in Smith v. United

States, 984 A.2d 196, 200 (D.C. 2009). Although we did not have the opportunity

in Dixon to “revisit the rules at issue in Mathis and Brewer,” id. at 968-69, the instant

case presents us the opportunity to revisit the rule at issue in Mathis.

Applying the Nutraceutical framework to this case, we find that Rule 15(a)(2),

just like the rule in Nutraceutical, is phrased in an unqualified manner: It provides

that a PFR “must be filed within 30 days after notice is given . . . of the order or

decision sought to be reviewed.” D.C. App. R. 15(a)(2). Likewise, we find that

Rule 15(a)(2) is singled out for inflexible treatment: Rule 26(b) allows this court to

“extend the time prescribed by these rules” for “good cause” but specifically

disallows extensions of time “to file a petition for review.” D.C. App. R. 26(b)(2).
20

Thus, following Nutraceutical’s guidance, we determine that the text of our rules

“express a clear intent to compel rigorous enforcement of [Rule 15(a)(2)’s] deadline,

even where good cause for equitable tolling might otherwise exist.” 586 U.S. at 193.

We therefore hold that Rule 15(a)(2) is a mandatory claim-processing rule whose

thirty-day deadline is not subject to equitable tolling if properly invoked by an

opposing party.10 Mathis’s earlier pronouncement to the contrary does not bind us

in light of Supreme Court authority. 11

Petitioners dispute neither that respondent has properly invoked the issue nor

that Commissioner Lee filed his petition outside Rule 15(a)(2)’s thirty-day deadline.

Commissioner Lee is therefore not entitled to equitable tolling and we must dismiss

his petition as untimely filed.

10
We do not, however, disturb our conclusion that Rule 15(a)(2) is
nonjurisdictional. Mathis, 124 A.3d at 1103. See also Deloatch v. Sessoms-
Deloatch, 229 A.3d 486, 489-90 (D.C. 2020) (“‘[A] time limit prescribed only in a
court-made rule is not jurisdictional.’” (quoting Hamer v. Neighborhood Hous.
Servs., 583 U.S. 17, 19 (2017))).
11
Although it is a fundamental rule in our jurisprudence that “no division of
this court will overrule a prior decision of this court,” Washington v. Guest Servs.,
718 A.2d 1071, 1075 (D.C. 1998) (quoting M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.
1971)), “we do not believe that M.A.P. v. Ryan obliges us to follow, inflexibly, a
ruling whose philosophical basis has been substantially undermined by subsequent
Supreme Court decisions.” Thomas v. United States, 731 A.2d 415, 420-21 (D.C.
1999) (alterations and ellipses omitted).
21

III. Conclusion

Accordingly, for the foregoing reasons, we dismiss the ANC’s petition for

lack of standing and Commissioner Lee’s petition as untimely.

So ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11140173. Public record. Not legal advice.