OOC Files Motion in Blackmon-Malloy Case

Posted February 6, 2009 at 6:05pm

Almost two years ago, the U.S. District Court for the District of Columbia dismissed the discrimination complaints of more than 300 black Capitol Police officers, ruling that they hadn’t exhausted the in-house remedies required under the Congressional Accountability Act.

But last week, the agency in charge of those remedies — the Office of Compliance — publicly shot down that argument.

In a motion filed Thursday, General Counsel Peter Eveleth argues that 270 of the 300-plus officers finished the proper counseling and mediation that is required in the act.

Eveleth also disputes U.S. District Court Judge Emmet Sullivan’s reasoning behind his decision to dismiss the cases — mainly, that the law required the officers to physically attend all counseling and mediation sessions. The district court, he writes, “misconstrued” the act and the office’s procedures.

“It is the OOC’s position that neither the Act nor the OOC’s Procedural Rules require such physical presence,” the motion reads.

The OOC’s motion is good news for the officers, who are in the middle of appealing the district court decision in the U.S. Court of Appeals for the District of Columbia.

Until now, it’s been their word against Congress’ Capitol Police Board, which is being represented by the U.S. attorney’s office in D.C.

“This breathes fresh life into the black officers’ discrimination case,” said attorney Joseph Gebhardt, who represents the officers. “We’re now hoping that the Senate and the House of Representatives will support and join in the amicus brief of their Office of Compliance.”

Technically, the Office of Compliance hasn’t yet filed that friend-of-the-court brief. The motion is a request for extra time to do so, and the court is expected to grant that request because it was filed with no opposition.

OOC officials declined to talk about the brief because they haven’t finished drafting it yet.

But the motion gives a summary of what will appear in the brief, and it supports the officers’ contention that they went through the proper channels before going to court.

Channing Phillips, spokesman for the U.S. attorney’s office in D.C., said the office plans to file a response to the officers’ appeal in the next few weeks. If the court accepts the Office of Compliance’s brief, the office will also respond to those arguments.

To Capitol Police Lt. Sharon Blackmon-Malloy, the motion is a “milestone” in the case. It’s been seven years since she and hundreds of fellow black officers filed their class-action lawsuit, claiming they were denied promotions and unfairly treated because of a hostile work environment.

Ever since, the case has moved at a glacial pace, never making it past a flurry of motions.

Sullivan did allow eight of the 300-plus officers — including Blackmon-Malloy — to continue with their case in the U.S. District Court on a separate track from the dismissed class action. But those cases are still stuck in pretrial motions.

In the meantime, nine of the officers who originally filed the lawsuit have died.