Black Police Officers in Court Again

Appellate Ruling Lets Case Move Forward

Posted July 9, 2008 at 6:49pm

The slightly more than 300 black Capitol Police officers who had their discrimination suit dismissed by a federal court last August will still have a chance to present their case, according to a ruling yesterday by the U.S. Court of Appeals for the District of Columbia.

The Capitol Police Board filed a motion with the appeals court for a summary ruling affirming the lower court’s dismissal. But the appellate court refused to grant the motion, known as a summary affirmance.

“This is a big victory for the black officers,” said Joseph Gebhardt, whose firm, Gebhardt & Associates, represents all of the black Capitol Police officers in the suit. “Now our appeal will be able to go forward.”

Channing Phillips, principal assistant U.S. attorney in the District, was more skeptical. “It is not uncommon for courts to want additional briefing in these types of matters,” Phillips said. “Nonetheless, we continue to believe we will prevail on the ultimate issue and will defend that position accordingly.”

U.S. District Judge Emmet Sullivan had officially dismissed the discrimination suit filed by the current and former black police officers in August because he said the officers had failed to first exhaust the administrative remedies required by the Congressional Accountability Act.

After the officers appealed the dismissal in September, the Capitol Police Board, represented by the U.S. attorney’s office in Washington, responded with a motion for summary affirmance.

The officers filed an opposition to summary affirmance on Dec. 28, protesting the motion put forth by the police board on two grounds. They argued that they had in fact exhausted the administrative remedies required by the Congressional Accountability Act and that the lawsuit is a case of first impression and therefore must be heard by the appeals court.

“There is no precedent on the books on this type of a case,” Gebhardt said. “This case will probably establish a precedent as to whether the Congressional Accountability Act is a viable mechanism for employees to use in seeking discrimination complaints.”

That argument apparently had some sway, with the appeals court deciding that “the merits of the parties’ positions are not so clear as to warrant summary action.”

Although Sullivan dismissed the case in August, the cases of eight officers were not dismissed and are still pending in the district court.

Among them is Sharon Blackmon Malloy, vice president of the United States Capitol Black Police Association, who was the lead plaintiff of the united group that filed suit in the district court.

“More than seven years later … it appears that we will finally get the opportunity to have a full briefing,” Malloy said, speaking on behalf of the officers. “We finally have our foot in the door.”

Although nine of the officers involved have died since the original suit was filed in 2001, Malloy says the group is still determined to present their case.

“Their families are still pushing for fairness,” Malloy said. “We are going to see it through.”