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Officers Want Information on DOJ’s Role in Lawsuit

Attorneys representing more than 350 officers suing the Capitol Police for alleged racial discrimination have filed a Freedom of Information Act request seeking documents explaining why the U.S. attorney’s office is defending the department in the case.

With the slew of legal counsel on hand to defend the legislative branch, there is no real reason why the U.S. attorney for the District of Columbia — which falls under the jurisdiction of the Justice Department — should represent a legislative branch agency, according to Joseph Gebhardt, the officers’ attorney.

Officers are concerned that the Justice Department and Congressional officials could have some sort of agreement to prevent the case from moving ahead, Gebhardt said.

“We don’t know if they have an alliance,” Gebhardt said. “We are trying to find out if they have an alliance, and what the basis for that alliance is.”

Not everybody sees a conspiracy.

“It’s just the way business is done,” said Senate Sergeant-at-Arms Terrance Gainer, who chairs the Capitol Police Board, one of the primary defendants in the lawsuit.

“They are the lawyers for the agency on this type of lawsuit,” Gainer said of the Justice Department. “There’s no conspiracy here. They’re just the attorneys for federal agencies.”

A spokesman for the Justice Department referred questions to the U.S. attorney’s office, which did not return a call seeking comment by press time. Capitol Police spokeswoman Sgt. Kimberly Schneider declined to comment.

The FOIA request is the latest legal maneuver in the long-running, class-action lawsuit originally filed by Capitol Police Lt. Sharon Blackmon Malloy and hundreds of her fellow black officers in 2001. In the suit, the officers allege they had been denied promotions or unfairly terminated, and had been subjected to a hostile work environment.

Since that time, the lawsuit has been tangled up in the U.S. District Court for the District of Columbia.

In March, Magistrate Judge John Facciola recommended that all but eight officers involved had not exhausted the proper administrative remedies under the Congressional Accountability Act and thus their claims should be dismissed. (The CAA outlines requirements for legislative branch employees who file discrimination lawsuits.)

Those cases officially were dismissed on Aug. 15 by U.S. District Judge Emmet Sullivan, the presiding judge in the lawsuit. The officers appealed in September, arguing they had met CAA requirements, including attending counseling and mediation sessions.

On Nov. 19, the U.S. attorney filed a motion arguing, in part, that only individuals may file lawsuits under the CAA. Requirements state that legislative branch employees must exhaust administrative remedies individually, and thus must file cases individually, according to the motion.

But it’s an argument Gebhardt doesn’t buy.

“The Justice Department is saying that no group of Congressional employees can ever have a class action,” he said. “In my view, and in the view of the black officer plaintiffs in the case … we feel that a prohibition of a class action treatment will gut the CAA.”

Gebhardt said he expects to file a countermotion within the coming weeks. At the same time, he plans to focus on the role of the Justice Department in the case.

Attorney Mark Zaid filed the FOIA request on Nov. 28. It specifically seeks “responsive documents of a contractual or request nature showing that this representation is authorized, inasmuch as [U.S. Code] grants the Capitol Police Board independent authority to represent itself in legal proceedings.”

The Justice Department has 20 working days from the time of the filing to respond.

“We think the original reason for the two branches of government to align against the black officers was political,” Gebhardt said, noting that he suspects Republican leadership in 2001 didn’t want the lawsuit to advance. “We are wondering why the political alignment still holds.”

The Justice Department has in fact served as the defending counsel on the case almost since the lawsuit first was filed, Gainer said. But this was done in part because the police department did not have an employment counsel when the lawsuit was filed, Gainer said.

And even if there had been counsel on hand, the U.S. attorney still might have handled the case, Gainer said. After all, the Justice Department often handles the subpoenas of executive branch officials on behalf of Congress, he added.

“That is really the way business has been conducted,” Gainer said. “The Justice Department defends everybody.”

Officers remained concerned. In an interview, Blackmon Malloy said the Justice Department’s role in the ongoing appeals process makes it seem “everybody is banding together to ensure that our basic rights are not remedied.”

“They are hoping that we do go away, and they don’t have to be held accountable,” said Blackmon Malloy, who is now retired from the Capitol Police but still heads the U.S. Capitol Black Police Association. “They’re fighting so hard against us to do what’s right. You know, who’s holding up the case?”

Since the lawsuit was filed, progress has been made in improving racial relations in the department, said Gainer, who served as Capitol Police chief from 2002 to 2006.

Gainer worked hard as chief to institute better practices and procedures in hiring, post assignments and promotions, he said.

And improving racial relations is something current Chief Phillip Morse has made a priority, Gainer added. But those improvements might not have remedied past injustices, which the lawsuit is trying to do, Gainer said.

“I think that Chief Morse is on a two-track system, as the board is,” Gainer said. “How do we continue to improve making it an ideal department, and what do you do about past injustices, perceived or real?”

Blackmon Malloy actually was among the eight officers whose lawsuit was allowed to advance. Still, she pledged Tuesday to work for all the plaintiffs.

“You know, as long as we are breathing, and have a sound mindset … we are going to see it though,” she said.

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