Suit Could Pull OOC’s Teeth

Posted April 11, 2003 at 6:25pm

In a case that could have dramatic ramifications for the rights of legislative branch employees, the Architect of the Capitol is arguing before a federal court that the Office of Compliance lacks the authority to enforce its own decisions.

If the U.S. Court of Appeals for the Federal Circuit grants the AOC a stay based on that reasoning, the enforcement power of the office — established by Congress to enforce federal workplace laws on Capitol Hill — would essentially be nullified.

Created by the Congressional Accountability Act, the office oversees the application of 11 civil rights, labor and anti-discrimination laws for the legislative branch. Coming amid the “Republican Revolution” of 1995, the statute marked the first time Congress applied federal workplace laws to itself.

The case centers on Juanita Johnson, a custodial employee of the Architect for 18 years who suffered a severe asthma attack at work, which required her to go to an emergency room.

She was later denied a request for a different assignment within AOC that she asked for due to her chronic obstructive pulmonary disease, which doctors told her could be life-threatening with continued exposure to cleaning products and industrial materials.

After being told that there was no other work available and sent home without pay, Johnson brought her case to the Office of Compliance.

After three years of administrative proceedings, in November 2002 the OOC ordered that she be given a permanent reassignment to the Senate subway (where she continues to be temporarily detailed), and awarded $61,000 in back pay, damages and attorneys fees.

In February, the AOC sought a stay from the OOC board on the payments to Johnson pending an appeal to the Federal Circuit. After the request was denied by the board, the Architect’s office took the case to the Federal Circuit, arguing that it would ultimately be overturned on the merits.

By going to court, the Architect is not simply challenging the board’s decision on the case, but also stipulating that employing offices can ignore judgments by the OOC in the absence of a direct court order.

“This Court has exclusive jurisdiction over requests for enforcement of an order of the Board under the CAA. Where the Board seeks to enforce an order, its General Counsel must file a petition before the Federal Circuit,” the Architect’s brief states.

If the Federal Circuit were to grant the stay on those grounds, it would effectively paralyze the OOC by requiring it to seek a court order to enforce any and all of its decisions — including fire safety orders under the Occupational Safety and Health provisions, overtime rulings under the Fair Labor Standards Act, and decisions regarding the Americans With Disabilities Act.

In its opposing brief to the Federal Circuit, the OOC pointed to the CAA statute in making its case that its orders are self-executing.

The Architect “incorrectly argues that the Board’s final decisions are not self-enforcing and that the employing office can simply ignore a decision unless the Office files a petition to enforce before the Federal Circuit. This is a wholly incorrect reading of the statute,” the office’s brief reads in part.

The CAA directed the OOC to promulgate its own procedural rules, which provide “that parties required to take any action under a final OOC decision must promptly carry out its terms, and provide the OOC with a report of compliance within thirty (30) days after the decision or order becomes final,” the brief points out. “No court enforcement is necessary to trigger the party’s obligation to comply with the final OOC decision.”

The brief also addresses what the Office of Compliance deems a fundamental separation-of-powers issue in the notion that the judicial branch must enforce all decisions by the office, citing floor speeches by both Sens. Chuck Grassley (R-Iowa) and Joe Lieberman (D-Conn.), the chief sponsor and co-sponsor of the act, respectively, saying that the Office of Compliance was set up as an independent legislative branch agency that doesn’t require outside enforcement.

Among other issues, Johnson’s intervenor brief, filed on her behalf by Sarah Starrett of Beins, Axelrod, questions the “emergency” motion on the part of the Architect. “[T]here is no emergency or irreparable harm here, and the Employer has presented no evidence, and little argument, that there is one … even if Ms. Johnson does lose on appeal, and never repays a dime, there is no cost whatsoever to the Architect, and never has been,” as the money given an awardee comes directly from the Treasury.

The Architect declined to comment, stating through a spokeswoman that the office

doesn’t comment on pending litigation.

In the meantime, Johnson has yet to receive any payments for damages, back pay or attorney fees, nor has she received a permanent reassignment, as ordered in November.

The first and only check made out to her thus far, for $10,000 for pain and suffering, is sitting in an escrow account after she agreed to the Architect’s demand that she not deposit it, according to her attorney.

“She could have possibly cashed it, but she didn’t want to escalate this further, so we agreed not to,” Starrett said.

Johnson is a member of the Association of Federal, State, County and Municipal Employees’ Council 26, and the union has provided her legal counsel since the onset of her complaint.

“In the interest of justice, we will continue to support her, Carl Goldman, Council 26’s executive director, said. “It is outrageous for the Architect of the Capitol to ignore rulings of the Office of Compliance. Everyone else has to play by the rules, and so should the Architect.”