On October 29, 2001, more than 250 African-American current or former U.S. Capitol Police Officers filed this race discrimination lawsuit under the Congressional Accountability Act ("CAA"), 2 U.S.C. § 1311, against the United States Capitol Police Board in the U.S. District Court for the District of Columbia. The plaintiffs also included claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Specifically, the plaintiffs alleged that the disproportionately low number of African-Americans in the police force and in leadership positions within the force, demonstrated rampant racial discrimination. Even though African-Americans comprised more than 60% of the D.C. general population, they made up only 31% of the police force, and 16% of ranking positions. They sought compensatory damages and injunctive relief.

On September 30, 2004, the Court (Judge Emmet G. Sullivan) granted the police boards’ motion to dismiss the complaint. Judge Sullivan held that Title VII of the Civil Rights Act of 1964 did not cover legislative branch employees. Therefore, he held that the plaintiffs could only bring suit under the CAA to challenge employment discrimination. This too was barred because, the court only had subject matter jurisdiction over claims in which the plaintiff completed counseling and mediation regarding the alleged violation within the time limits specified by the CAA. Although several plaintiffs had requested mediation, they had failed to participate. Judge Sullivan held that such actions could not satisfy the “completing mediation” requirement within the CAA, but he granted the plaintiffs the opportunity to file a motion for reconsideration if they properly complied. Blackmon-Malloy v. United States Capitol Police Board, 338 F.Supp.2d 97 (D.C.C. 2004).

The plaintiffs filed a motion to reconsider on January 14, 2005. Judge Sullivan denied their motion without prejudice on August 4, 2005 in an unpublished order. He referred the issue to Magistrate Judge John M. Facciola to determine whether any individual class members were entitled to relief.

Throughout 2006 there was extensive litigation over the plaintiffs’ attorneys’ motions to withdraw as counsel to individuals plaintiffs who had failed to pay or communicate with attorneys. These motions were denied and granted in part as to certain plaintiffs. 2006 WL 891163, 2007 WL 841019. The case was also consolidated with several others against the Police Board.

Magistrate Judge Facciola issued a Report and Recommendation on March 19, 2007, in which he lamented the plaintiffs’ failure to comply with Judge Sullivan’s September 30, 2004 order requiring parties to clearly demonstrate their compliance with counseling and mediation as demanded under the CAA. Magistrate Judge Facciola noted that much of the evidence subsequently provided by plaintiffs was either inconsistent or insufficient. It was therefore only a “place to start.” Based on the evidence provided, he:
1. dismissed with prejudice claims where the plaintiffs had clearly failed to exhaust administrative remedies;
2. dismissed without prejudice claims where the plaintiffs seemed to have exhausted the administrative remedies, but failed to provide the court with sufficient evidence; and,
3. upheld claims where the plaintiffs had clearly exhausted administrative remedies.
2007 WL 841019. On May 15, Magistrate Judge Facciola dismissed with prejudice the second group after the plaintiffs had failed to provide supporting documents to demonstrate compliance with the CAA. 2007. WL 1438763. On August 15, 2007, the Court adopted the recommendations of Magistrate Judge Facciola, thereby dismissing with prejudice a substantial number of the remaining claims. 2007 WL 6847408.

The Plaintiffs appealed, and the United States Court of Appeals for the District of Columbia issued its opinion on July 31, 2009. The case was heard before Judge David Bryan Sentelle, Judge Douglas Howard Ginsburg, and Judge Judith Ann Wilson Rogers. There were three aspects of the district court's ruling at issue: (1) whether the three-step process requiring counseling and mediation before an employee could file a complaint was jurisdictional, (2) whether in-person attendance by the employee was required at counseling or mediation, and (3) whether receipt of end of counseling and mediation notices demonstrated completion of counseling and mediation. The Court of Appeals (with the opinion written by Judge Rogers) affirmed the district court's ruling with respect to whether the three-step process was jurisdictional, holding that it was. However, the Court of Appeals reversed the district court's in-person ruling, holding that the CAA did not require in-person attendance by the employee at counseling or mediation. Lastly, the Court of Appeals held that receipt from the Office of Compliance of written notice of the end of mediation did demonstrate the employee's completion of counseling and mediation. The case was then remanded. 575 F.3d 699 (D.C. Cir. 2009).

On May 10, 2010, the plaintiffs filed a Joint Fourth Amended Class Action Complaint, re-alleging that the defendant had violated the CAA and that the action was properly maintainable as a class action under FRCP 23(a). On August 12, 2010, the defendant filed a Motion to Dismiss the Fourth Amended Complaint, alleging lack of jurisdiction. While awaiting the court’s ruling, the parties continued to dispute discovery matters. On March 9, 2012, the court referred the case again to Magistrate Judge John M. Facciola for resolution of defendant’s motion to dismiss the fourth amended complaint. On December 14, 2012, the Magistrate Judge Facciola issued a report and recommendation regarding whether the complaint should be dismissed. In it, Magistrate Judge Facciola noted that vast majority of the plaintiffs should be dismissed for failure to exhaust their administrative remedies as required under the CAA, while the plaintiffs who submitted enough evidence of exhaustion should proceed past the motion to dismiss (“Appendix II”), and the rest of remaining plaintiffs should be dismissed with prejudice. Finally, Magistrate Judge Facciola identified five plaintiffs for whom additional clarification was necessary. Both parties responded and objected to the Magistrate Judge Facciola’s report and recommendation.

On July 10, 2013, the plaintiffs sought to amend or correct the amended complaint. The defendant opposed the motion, and the court did not issue an order on the matter. From September 2013 through April 2015 there was no activity on the docket. On April 21, 2015, counsel for the plaintiffs moved for a hearing on a motion to withdraw. In a May 1, 2015 minute order, the court ordered the plaintiffs to file a motion to withdraw, and Judge Sullivan temporarily stayed the case to allow the plaintiff time to acquire new counsel.

Hearings were rescheduled several times throughout 2015 and 2016. On October 13, 2016, U.S. District Judge Emmet G. Sullivan issued a memorandum opinion resolving the plaintiffs’ objections to Magistrate Judge Facciola’s dismissal of most of their claims, and the plaintiff’s motion to file a fifth amended complaint. Judge Sullivan adopted in part and rejected in part Magistrate Judge Facciola’s recommendations, thereby dismissing many, but not all of the plaintiffs’ claims on jurisdictional grounds. He also denied the plaintiffs’ motion to file a fifth amended complaint. On February 14, 2017, the plaintiffs filed a motion for reconsideration on one of the claims Judge Sullivan dismissed. As of December 2017, the case is ongoing.

Jordan Rossen - 09/23/2010
MJ Koo - 03/13/2017


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