Black Officers Strengthen Appeals Effort

Posted January 4, 2008 at 6:18pm

Attorneys for more than 300 black Capitol Police officers already appealing a recent federal court decision that dismissed their discrimination lawsuit filed a motion on Dec. 28 to combat the U.S. attorney’s efforts to end the appeals process.

In August, U.S. District Judge Emmet Sullivan officially dismissed the cases brought by the 300-plus current and former officers, enforcing an earlier court recommendation that the plaintiffs had not exhausted the proper administrative remedies required by the Congressional Accountability Act and thus were ineligible to move ahead.

The officers appealed in September. The Office of the U.S. Attorney, which is representing the Capitol Police Board in the case, filed a motion shortly after seeking summary affirmance, which would essentially allow the U.S. Court of Appeals for the District of Columbia to conclude that, based on actions taken by the lower court, no further review of the case is necessary.

“It’s a big and significant case, and it should be handled carefully,” said attorney Joseph Gebhardt, calling the government’s motion for summary affirmance a “tactic to squash the case.”

A spokeswoman for the U.S. attorney’s office declined to comment Friday, but she did say the office is expected to respond to the officers’ motion by Jan. 11.

In their December motion of opposition, the officers argue that theirs is a lawsuit of first impression and thus must be heard by the appeals court.

In the dismissal, the district court did not give preference to “end of mediation notices” issued to the officers by the Office of Compliance, according to the motion. This is unique, as no court has ever “refused to rely on the OOC’s end of mediation notice as conclusive of whether a plaintiff has fulfilled the CAA’s requirement of participation in counseling and mediation,” the motion reads.

The officers also say that the district court’s reason for dismissal — that the officers did not meet CAA requirements because they did not attend counseling and mediation sessions in person — is incorrect.

“There is absolutely no requirement in the Congressional Accountability Act or in the regulations or procedural manual of the Office of Compliance that these counseling and mediation procedures be accomplished by the employee in person,” the motion reads. “Nor, as far as Appellants can determine, has any court in the United States, other than the [district] court, held that such a requirement exists.”

It’s been nearly seven years since Capitol Police Lt. Sharon Blackmon Malloy and hundreds of her fellow black officers originally filed their class-action discrimination lawsuit, alleging they had been denied promotions or unfairly terminated as well as been subjected to a hostile work environment.

It’s been tied up in the courts ever since. But a few of the officers might be closer to having their individual cases heard.

In his August dismissal decision, Sullivan allowed eight of the officers in the lawsuit to move forward with their cases. Those officers had sought to delay their cases until the appeals process for the remaining officers concluded, but Sullivan denied that motion in November.

Attorneys for the officers also recently filed a Freedom of Information Act request that seeks details on why the U.S. attorney’s office is representing the police board in the case rather than legislative branch attorneys.

The U.S. attorney’s office has asked for more time to gather documents and is expected to respond shortly, Gebhardt said.

“We are going to aggressively pursue that in the new year,” Gebhardt said.