Council of School Officers v. Vaughn

SCHWELB, Associate Judge

(concurring in part and dissenting in part):

I concur in the majority’s holding that we should not reach the merits, for CSO failed to join an indispensable party, namely, the District of Columbia. Indeed, the District, as the party responsible for paying the salaries of CSO’s members, is the only potential defendant against whom CSO could obtain the relief it seeks. I also join my colleagues in holding that Vaughn and Rumsey are not appropriate parties defendant, that CSO can gain nothing from their presence in the litigation, and that the complaint should forthwith be dismissed against each of them. 1

I am, however, unable to agree that this court should rule, sua sponte, without giving the original parties and the District an opportunity to be heard on the issue, and without the trial judge ever having ruled on it, that CSO’s suit was premature and must be dismissed because the District Council had not approved the arbitration award at the time the petition for review was filed. The conclusion that dismissal is necessary may well be correct, but it is not, in my view, so obviously right that the normal procedure of hearing from the parties and awaiting a decision on the issue by the trial judge ought to be by-passed.

I

As a general rule, an appellate court will not consider a legal issue or theory unless it was presented to the trial court. D.D. v. M.T., 550 A.2d 37, 48 (D.C.1988); see also Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir.1984) (expounding rule and the exceptions thereto). This is particularly true where the issue was raised by the court rather than by the parties, for an appeal should not ordinarily be jettisoned to consider a question which was not considered by the parties or the court at the trial level or briefed or argued on appeal. United States v. Klubock, 832 F.2d 664, 665 (1st Cir.1987) (en banc).

If an appellate court perceives a potential defect in its subject matter jurisdiction, however, it is obligated to raise the issue sua sponte. Rickard v. Auto Publisher, Inc., 735 F.2d 450 , 453 n. 1 (11th Cir.1984); Dean Witter Reynolds, supra, 741 F.2d at 361 . Where it is necessary to consider an issue not decided below or raised on appeal, the usual practice is to request the filing of additional briefs on that issue. 2 See D.D. v. M.T., supra, 550 A.2d 37, 40 . The reasons for this practice are readily apparent; the right to be heard is fundamental to our system of justice, and it is simply unfair to *1229 foreclose a party’s claim on grounds which that party never had an opportunity to address. Unless the proper resolution of a question not argued or decided in the trial court is “beyond any doubt,” injustice is more likely to be caused than avoided if an appellate court decides that question without the parties having been heard on it. Singleton v. Wulff, 428 U.S. 106, 121 , 96 S.Ct. 2868, 2877 , 49 L.Ed.2d 826 (1976).

For the reasons discussed below, it cannot in my view be fairly said that the majority’s resolution of the jurisdictional question here decided is “beyond any doubt.”

II

At the time CSO initiated this case in the Superior Court, the arbitrators had completed their work. None of the cases relied on by the majority at pp. 11-14 of its opinion deals with the reviewability of an arbitration award where there is nothing further for the arbitrators to do, but where formal approval by a legislative body has not been obtained. In the absence of any directly controlling case law in the District or elsewhere, the issue appears to me to be an open one.

Although not directly on point, there is authority suggesting that the present suit may not be premature. In Emporium Area Joint School Auth. v. Anundson Constr. & Bldg. Supply Co., 402 Pa. 81 , 166 A.2d 269 (1960), the court held that a statute requiring that a motion to vacate an arbitration award be instituted within three months after the filing of the award begins to run with the delivery of the decision to the parties, even though no motion to confirm the award has been filed. In reversing the trial court’s holding to the contrary, the court said:

Under the view of the court below, an award could be vacated any time within three months after a motion for confirmation was made. Thus, if a motion to confirm were not made for a year, the court would be obligated to entertain a motion to vacate made fifteen months subsequent to the rendition of the award, and, if a timely motion to confirm were not made, the court evidently would be required to consider a motion to vacate made at any time. This result cannot be sanctioned. Arbitration should be a quick and easy mode of obtaining justice.

Id. at 84-85 , 166 A.2d at 270 (emphasis in original). The court added that an unconfirmed award may be a bar to a subsequent action, and is “clearly not a nullity.” Id. at 85 n. 1, 166 A.2d at 270 n. 1.

Emporium and the present case are obviously not on all fours. They are, however, similar in the significant respect that the award in each case was contingent on an event that had not yet occurred. If CSO had deferred filing its petition for review until the Council acted, more than a year after the award was made, this would have occasioned the very kind of delay which the court condemned in Emporium. Moreover, CSO might have confronted a defense of laches. See, generally, Annotation, Time for Impeaching Arbitration Award, 85 A.L.R.2d 779 (1962 and Supp.1988); Cf. Tokura Constr. Co. v. Corporacion Raymond, S.A., 533 F.Supp. 1274, 1277-78 (S.D.Tex.1982) (where contractor’s objections to arbitration award were made five months after its issuance, statutory three-month limitation applied even though objections come soon after adverse party moved to confirm award).

It is true that, if the Council had disapproved the award, the issues in CSO’s lawsuit would have become moot. If the court had set aside the award, on the other hand, this would have obviated the need for Council action. Perhaps we would decide, after full briefing of the question, that the Council’s review must precede the court’s, and that CSO was obliged to wait for a year for the Council to act and would not have imperiled its right to seek vacation of the award by doing so. 3 I submit, however, that this is not evident “beyond any *1230 doubt.” Singleton, supra, 428 U.S. at 121 , 96 S.Ct. at 2877 .

Ill

Our resolution of an important jurisdictional issue without the participation of counsel or the trial court is even more troubling in light of the sequence of events in this case. The purported jurisdictional defect which is said to require that the case be dismissed and that the parties start all over again was remedied in March of 1987. If we must dismiss the case because the Council’s approval came almost two years ago instead of almost three — and it may well be that we would do so even after hearing from the parties and the trial judge —then we must surely acknowledge that this unfortunate result entails an enormous waste of time and effort for the litigants, counsel and both courts. A new suit would have to be filed. A new filing fee would have to be paid. Service would have to be obtained again. A decision on the merits would be many months and many thousands of dollars further away in some distant hereafter.

Assuming that the majority view is correct, then these baleful consequences are compelled by the internal dynamics of the law and its perceived requirement of theoretical purity. An order to the parties to begin all over again seems to me to have little to do with justice or practicality. In general, I think courts should pause and perhaps take a deep breath before concluding that a particular ruling is required by law when neither party has requested it and when such a ruling does not promote, but rather impedes, the just, speedy and inexpensive resolution of the controversy.

There is no gainsaying that the sequence of events in this case was unusual. The arbitration panel issued its award on February 14, 1986. CSO filed its petition for review on March 17, 1986. The trial judge ruled on February 24, 1987. The Council approved the award a week later, on March 3, 1987. If approval by the Council was a jurisdictional prerequisite for the trial court’s review, then that court had finished with the case before it had the authority to consider it at all.

But all of this is history now. The parties and the trial court paid no attention to the inaction on the part of the Council, and did nothing differently because of it. If the Council had acted on March 3, 1986 instead of March 3,1987, everything else in the case would be exactly the same, except that what the majority views as the controlling jurisdictional issue would not arise. A rose is a rose is a rose, and jurisdiction is jurisdiction, but I wonder if the law is so rigid, and so preoccupied with pristine conceptual theory at the expense of practical considerations, that several years of litigation have to be thrown in the ash heap because of a “defect” which made no difference whatever to anybody, and which was corrected long ago. Accordingly, I think the question is fairly raised whether, even assuming, arguendo, that the trial court was without jurisdiction when it entertained the case, such lack of jurisdiction can be treated as having been remedied, nunc pro tunc, when the Council approved the award.

I do not deny that application of the nunc pro tunc principle may present difficulties. In general, as the Supreme Coux-t held in one of its most famous (or infamous) decisions, lack of subject matter jurisdiction cannot be waived. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 , 402, 15 L.Ed. 691 (1857); 4 see also Lang v. Windsor Mount Joy Mut. Ins. Co., 487 F.Supp. 1303, 1306 (E.D.Pa.) aff’d, 636 F.2d 1209 (3d Cir.1980) and authorities there cited. Where federal jurisdiction is predicated upon diversity of citizenship, for example, and no such diversity existed when suit was filed, a party’s change of citizenship subsequent to filing will not remedy the initial defect. Lyons v. Weltmer, 174 F.2d 473 (4th Cir.1949); Lang, supra, 487 F.Supp. at 1306 .

*1231 Moreover, at least as a general proposition, an order nunc pro tunc must speak the truth. Inland Irving Nat’l Bank v. American Flange & Mfg. Co., 75 F.2d 533, 535 (7th Cir.1935). Such an order may not serve to record a fact as existing on a prior date when the fact did not truly exist at that time. Daine v. Commissioner, 168 F.2d 449, 451 (2d Cir.1948). As the court succinctly put it in In re Marriage of Warren, 31 Or.App. 213, 219 , 570 P.2d 104, 107 (1977) (quoting from Roeser v. Roeser, 116 Or. 108, 112 , 239 P. 541, 542 (1925), “nothing can be entered nunc unless it actually happened tunc”)

There is, however, respectable authority for the proposition that a court may act nunc without prior action tunc to avoid injustice. “[One] function of a nunc pro tunc order is to compensate for judicial delay 5 in entering an order where the suitors have done all in their power to place the cause in a condition to be decided by the court.” Taylor v. Miller, 162 W.Va. 265, 271-272 , 249 S.E.2d 191, 195 (1978). See also Atanasio v. Silverman, 1 N.J. 245, 249-251 , 62 A.2d 809, 811 (1949). Indeed, in Tuten v. United States, 460 U.S. 660 , 103 S.Ct. 1412 , 75 L.Ed.2d 359 (1983), the Supreme Court held, notwithstanding a provision of 18 U.S.C. § 5021 (b) (since repealed) that a conviction under the former Federal Youth Corrections Act could be set aside only if an order has been entered to that effect prior to the expiration of probation, a defendant may nevertheless move for such relief nunc pro tunc following the completion of his probationary period. Id. at 668, 103 S.Ct. at 1417 . Tuten appears to apply nunc pro tunc doctrine to cure a jurisdictional defect.

I do not suggest that any of these decisions is directly in point. Nor, for that matter, are the cases cited by the majority. 6 I submit only that there is enough here for the parties to argue about to make it inadvisable for this court to decide the question without the conventional input from the parties and the trial court.

IV

All of the members of the panel agree that, even if there were subject matter jurisdiction, the case would have to go back to the trial court so that CSO may have the opportunity to join an indispensable party. 7 Under these circumstances, I do not suggest that we contribute to more delay by making a second request for further briefs from the parties in this court. I would simply remand the case with directions to consider the jurisdictional issue raised by the Council’s belated approval of the arbitration award, as well as the other questions which now confront the trial court (e.g. whether CSO still represents the public school officers, and whether CSO’s counsel’s representation has survived events which have occurred since the appeal was filed). If the case were ultimately dismissed because of the timing of the Council’s approval of the award, then, under the procedure I suggest, everyone would at least have had his or her day in court on the dispositive issue. Accordingly, I respectfully dissent from the direction to the trial court to dismiss the suit without first hearing from the parties, 8 but concur in the remainder of Chief Judge Rogers’ opinion for the court.

. I agree that the trial court should in the first instance address Vaughn’s request for an award of counsel fees.

. I note that when the parties failed to address in their briefs what appeared to us to be a potentially dispositive question, namely, whether CSO has failed to join the District as an indispensable party defendant, we issued an order to show cause and gave them and the District the opportunity to address the issue.

. I note that the exact problem that arises in this case cannot recur. Under a recent amendment to the statute, an award of this kind becomes final unless the Council rejects it by a two-thirds vote of its members within sixty calendar days of its submission. See D.C.Code § l-618.17(j) (1988 Repl.).

. The infamy of the Dred Scott decision, which proclaimed among other things that the black man had no rights which the white man was bound to respect, id. 60 U.S. at 407 , does not extend to its recognition of the basic principle of jurisdiction for which I cite it here.

. Or, in this case, delay by the Council.

. In general, these cases hold that where agency action is non-final, or some other jurisdictional defect precludes trial court review, review by this court is also precluded. I agree fully with these principles.

. The District of Columbia takes the position, and I think all members of the court agree, that dismissal is not appropriate here since the District can be joined on remand.

.I am also constrained to observe that, if the majority is correct in ordering the dismissal of the case, without further submission by the parties, on the grounds that the trial court lacked jurisdiction, then the remainder of the opinion is pure dictum and arguably advisory in nature. In my view, this reinforces my position that we should decide the appeal on the basis of an issue that has been argued rather than on grounds which the parties have never addressed.