Black Officers’ Suit Takes Major Blow

Posted March 23, 2007 at 6:21pm

More than five years after 362 active and retired black Capitol Police officers sought to file a class-action lawsuit against the department, a federal judge recommended last week that only a handful of those officers should be able to proceed with their discrimination cases.

Lt. Sharon Blackmon-Malloy’s original case, filed in 2001, dealt with claims of unfair treatment and firings of black officers. But a large part of the $100 million lawsuit now includes allegations of retaliation by the department against the many still-active black officers who signed on as co-plaintiffs.

Now Blackmon-Malloy is one of only eight plaintiffs who Magistrate Judge John Facciola determined had properly exhausted the administrative requirements set forth by the Congressional Accountability Act for moving forward with their case. Facciola determined that the cases of six other complainants may be able to move forward, but more information is required (those plaintiffs have until April 2 to submit the further documentation). The complaints of the other 348 plaintiffs should be dismissed without the ability for reconsideration, Facciola said.

Facciola, who held unsuccessful settlement negotiations on the case in 2005, had been asked by fellow District Judge Emmet Sullivan, the lead judge in the case, to submit a report determining which of the plaintiffs had completed the proper procedures — namely attending counseling and mediation meetings — that are required by the CAA before filing a lawsuit in U.S. District Court.

Leading up to Facciola’s recommendation, lawyers for the officers and the U.S. attorney’s office, which is representing the Capitol Police Board in the case, were instructed to detail for each plaintiff and each claim the specific dates regarding when they completed the required administrative procedures.

“The CAA specifically limits jurisdiction to cases where a plaintiff has timely exhausted administrative remedies,” Facciola’s recommendation states. “Similarly, only when a plaintiff timely complies with the counseling and mediation requirements of the CAA does the United States, as sovereign, waive immunity and subject itself to suit. …

“The Court has received and reviewed the charts and now finds that the majority of the claims must be dismissed for failure to exhaust administrative remedies or failure to provide required support, while a small group of claims satisfies the requirements.”

The parties now have 10 days to file objections to Facciola’s recommendations.

Channing Phillips, a spokesman for the U.S. attorney’s office, said last week that “we’re very pleased with magistrate judge Facciola’s decision” to dismiss most of the claims. But he declined to comment further because “this case still isn’t over.”

Blackmon-Malloy said it was unfortunate that “we lost a lot of our co-plaintiffs with this recommendation. … [However,] we are planning to appeal it.”

In other Capitol Police news, the department graduated 41 recruits from its training academy on Friday, and the additions to the force apparently couldn’t come soon enough.

At a House Appropriations subcommittee on the legislative branch hearing on Thursday, Library of Congress officials reported that the agency currently is in need of 20 officers to fully staff security operations.

“We had been down 15 and then some other officers got reassigned this past week to deal with other emergencies on the Capitol complex,” said LOC Chief Operating Officer Jo Ann Jenkins after the hearings. “I’m told that a large part of [filling those vacancies] is getting the Capitol Police graduated out of their recruitment class.”

The LOC has a separate police force but under a memorandum of understanding with the Capitol Police that has been in place since the end of 2004, the Library has no hiring authority and LOC Police daily operations are run by an inspector from the Capitol Police. The memorandum, which was meant to be an intermediate step in the ongoing merger between the two forces, requires that a Capitol Police officer be assigned as a replacement for any LOC officer who retires or otherwise leaves the force.

Since the merger was mandated in the 2003 omnibus appropriations bill, about 40 officers have left the LOC Police and about 90 remain.

The 2003 legislation originally stated that the merger should be completed by 2006. But as the merger stalled last year, the Library’s police union began lobbying Members of Congress to help move the process forward for the sake of officers’ morale and to achieve seamless security on the Hill. Earlier this year, LOC Police union officials expressed their concerns that merger plans that had been proposed were leaving some officers behind and would force them to take civilian postings.

The chairwoman of the Appropriations subcommittee on the legislative branch, Rep. Debbie Wasserman Schultz (D-Fla.), has scheduled a hearing in April in which Library union officials are expected to testify about the merger process.

On Friday, Capitol Police Chief Phillip Morse said he is working with his chief administrative officer and LOC officials to address the Library’s manpower shortage.

“We will continue to fill vacancies at LOC equitably managing the risks across the campus,” Morse said. “We also are continuing to work events at the LOC … providing training, and off-site delivery screening of delivery trucks and vehicles. The cooperative spirit will continue throughout the merger.”

As for Friday’s graduation ceremony, Morse said it was “a memorable and proud day for the new recruits and their families. I instilled the core values of the department in my speech, expressed the importance of community and family, and the protection of the Capitol, the symbol of democracy, as the core of our mission. I told them that people skills were more important than any technology or tool we use.”