Officers’ Class-Action Suit Headed to Trial

Posted November 17, 2003 at 6:46pm

Attorneys representing more than 350 black Capitol Police officers in a class-action discrimination suit have called off negotiations after 11 months, citing numerous disagreements over a possible settlement with the department.

The lawsuit, filed in 2001 by members of the U.S. Capitol Black Police Association against the law enforcement agency, is scheduled to go before U.S. District Judge Emmet Sullivan on Dec. 5 for a status conference, in which he will determine whether the case should return to the court’s active litigation calendar.

Attorneys Joseph Gebhardt and Nathaniel Johnson represent both current and retired employees who allege that the Capitol Police Department denied promotions to, retaliated against, unfairly disciplined or fired black officers.

“It is unfortunate that nearly a year of valuable time and significant client funds were wasted after Defendant’s in-house counsel professed a desire to settle this case to Judge Sullivan at the Status Conference in January of 2003,” the attorneys wrote in a Nov. 14 letter to Magistrate Judge John Facciola and the U.S. Attorney’s Office, which represents the Capitol Police Board. “Since the parties are so far apart on settlement terms, Plaintiffs will now move this case forward into active litigation.”

Channing Phillips, a spokesman for the U.S. Attorney’s Office, declined to comment on the case, noting that it is ongoing.

The U.S. Attorney’s Office filed a motion in 2002 seeking to dismiss the case in its entirety, citing the Congressional Accountability Act, the 1995 law which gave legislative branch employees protection under 11 civil rights workplace and anti-discrimination laws.

“The waiver of sovereign immunity under the Congressional Accountability Act (CAA) does not permit class actions,” the July 2002 motion states. “Even if a class action could be pursued, the putative class members’ claims reflected in the complaints do not meet the standards under Fed. R. Civ. P. Rules 8, 12, and 23 of the Federal Rules. Individual plaintiffs, including the proposed class agents and representatives, have failed to exhaust their administrative remedies under the CAA.”

In the plaintiffs’ new letter, which canceled a Nov. 20 settlement conference scheduled with Facciola, Gebhardt and Johnson list 11 issues on which the parties cannot reach consensus, ranging from the creation of an oversight board to monetary compensation for class members.

According to the letter, the U.S. Attorney’s Office refused to provide any payments to officers. In initial negotiations, the officers’ attorneys requested $73 million, including $300,000 for 120 plaintiffs with “the strongest claims of discrimination,” $150,000 for the remaining 238 plaintiffs and an additional $1 million for attorneys’ fees. [IMGCAP(1)]

Other requests made by the plaintiffs include the creation of an oversight board to monitor the settlement agreement and “to provide a forum for the Plaintiffs and the Chief and Capitol Police Board to engage in high-level discussions on ending discrimination and retaliation.”

Both sides agreed to the creation of a “Plaintiffs’ Steering Committee,” comprised of from five to 21 members of the class action, but the letter notes no agreement was reached on two additional requests from the plaintiffs seeking to guarantee the steering committee quarterly meetings with the Capitol Police chief as well as an annual meeting with the Police Board.

The plaintiffs are also seeking language in the agreement to provide the automatic termination of “those on the Capitol Police force who dissent from or attempt to undermine a Settlement Agreement.”

The attorneys also sparred over the monitoring and enforcement of the settlement agreement.

According to Gebhardt and Johnson, the Police Board proposed a one-time evaluation 18 to 24 months following the settlement, in addition to two years of court supervision. The plaintiffs would seek court supervision through at least June 2007, and annual evaluations through 2010.

In addition to complaints over the settlement agreement, Johnson and Gebhardt accused the U.S. Attorney’s Office of seeking to “exploit its superior bargaining position by making blatantly false statements during the negotiations.”

Specifically, the two attorneys assert that the U.S. Attorney’s Office delayed an early October counterproposal for the settlement agreement by falsely claiming that two members of the Police Board were unavailable. (The board is comprised of House Sergeant-at-Arms Bill Livingood, Senate Sergeant-at-Arms Bill Pickle and Architect of the Capitol Alan Hantman.)

The U.S. Attorney’s Office declined an Oct. 16 request from the plaintiffs’ attorneys to depose Hantman and Livingood about their whereabouts, according to the letter. It states: “[T]he topic you propose for discovery is not relevant to the merits of the case and would certainly be grounds for a protective order if one proves necessary.”

Following a meeting with Gebhardt and a member of the class action in mid-November, members of the Congressional Black Caucus planned to meet with the Capitol Police Board to discuss possible resolutions to the case.