Fogg, Matthew v. Ashcroft, John

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2001 Decided June 22, 2001

No. 00-5138

Matthew F. Fogg,

Appellant

v.

John D. Ashcroft,

Attorney General of the United States,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 94cv02814)

Frank J. Costello argued the cause for appellant. With

him on the brief was Scott M. Zimmerman.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Wilma A.

Lewis, U.S. Attorney at the time the brief was filed, and R.

Craig Lawrence, Assistant U.S. Attorney.

Elaine R. Jones, Norman J. Chachkin and Charles S.

Ralston were on the brief for amicus curiae NAACP Legal

Defense and Educational Fund, Inc. in support of appellant.

Before: Edwards, Chief Judge, Williams and Henderson,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Matthew Fogg sued the United

States Attorney General in federal district court, alleging that

his employer, the United States Marshals Service, had dis-

criminated against him on grounds of race in violation of

s 717 of the 1964 Civil Rights Act as amended, 42 U.S.C.

s 2000e-16. A jury, which under the 1991 amendments could

issue a binding verdict for violations on or after the amend-

ments' effective date (November 11, 1991), found for Fogg

and awarded a verdict of $4 million. It also found for Fogg

on his pre-1991 claims, but as to those its verdict was purely

advisory. See Fed. R. Civ. P. 39(c). Applying the statute's

damage cap limitation, the district court cut the verdict to

$300,000. It denied Fogg's claims for equitable relief as well

as his claims of pre-November 11, 1991 violations. It also

rejected Fogg's contention that the Merit Systems Protection

Board ("MSPB") had unlawfully rejected the procedural

"non-discrimination" claims that he raised in that forum.

Here Fogg's lead argument is that the district court misin-

terpreted the 1991 Civil Rights Act's compensatory damages

cap; he contends that the cap applies to each successful

"claim," whereas the district court found it to apply to each

lawsuit. We reject Fogg's contention. We also affirm the

court's judgment on the MSPB issue and on the pre-1991

allegations. We nevertheless reverse and remand because it

appears that in denying Fogg's equitable claims the court did

not recognize the issue-preclusive effects of the jury's verdict.

* * *

Fogg, an African American, served as a Deputy U.S.

Marshal in the District of Columbia from 1978 to his dismissal

in 1995. In 1985, while he was serving in the fugitive detail in

the federal district court here, the Marshals Service repri-

manded him for allegedly misusing a government vehicle and

transferred him to an assignment at the D.C. Superior Court.

Fogg thereafter filed an administrative discrimination com-

plaint. Fogg claims that both the reprimand and the transfer

were the result of unlawful race discrimination and that the

Marshals Service unlawfully delayed the processing of his

administrative complaint.

In 1989 Fogg was assigned to a position on the Metropoli-

tan Area Task Force, a multi-agency unit involved in tracking

and apprehending dangerous fugitives. Fogg claims that

from that time on the Marshals Service subjected him to a

string of racially discriminatory and retaliatory acts. These,

he alleged, included: (1) declining to give him his annual

performance ratings for a two-year period beginning in April

1990; (2) passing him over in May 1990 for promotion from

the GS-12 government salary level to GS-13; (3) refusing to

give him further promotions after eventually elevating him to

the GS-13 level; (4) stripping him of most of his supervisory

responsibilities on the task force in January 1992; (5) inquir-

ing about his EEO activities while he was on the job in 1993,

leading Fogg to cease working because of severe stress; (6)

ordering him back to work without a fitness-for-duty exami-

nation in November 1994, causing him to suffer further stress

symptoms and to check into a hospital after less than a day

back (after which Fogg never again returned to work); (7)

returning him to the GS-12 level in December 1994; (8)

demanding that he report for a fitness-for-duty examination

in 1995; and (9) dismissing him in September 1995 for

refusing to do so. Fogg also claims that he was subjected to

a hostile work environment during the entire period at issue.

We address in turn the issues of the damage cap, the denial

of equitable relief, the MSPB decision, and the pre-1991

allegations.

* * *

The s 1981a damage cap

The Civil Rights Act of 1991 amended Title VII to allow for

conventional damages, as opposed to simply equitable relief

(which in fact often took the form of monetary compensation,

see, e.g., Ablemarle Paper Co. v. Moody, 422 U.S. 405, 416

(1975) (grant of back pay as exercise of equitable power)).

The new provision states:

In an action brought by a complaining party under

section 706 or 717 of the Civil Rights Act of 1964 ... the

complaining party may recover compensatory and puni-

tive damages as allowed in subsection (b) of this section,

in addition to any relief authorized by section 706(g) of

the Civil Rights Act of 1964, from the respondent.

42 U.S.C. s 1981a(a)(1). Subsection (b) in turn subjects the

new remedy to caps:

The sum of the amount of compensatory damages award-

ed under this section for future pecuniary losses, emo-

tional pain, suffering, inconvenience, mental anguish, loss

of enjoyment of life, and other non-pecuniary losses ...

shall not exceed, for each complaining party ...

$300,000.

Id. s 1981a(b)(3). The size of the cap ranges in accordance

with the size of the employer; the one applicable here

($300,000) is for the largest size of employer, one with more

than 500 employees in each of 20 or more calendar weeks in a

year. Id. at ss 1981a(b)(3)(a)-(c).

The dispute in this case centers on the terms "in an action,"

as used in subsection (a)(1) and "each complaining party," as

used in subsection (b). The district court interpreted these

provisions to impose a $300,000 compensatory damage cap on

the s 1981a recovery for Fogg's entire Title VII lawsuit. See

Fogg v. Reno, No. 94-2814, at 1-5 (D.D.C. July 1, 1999)

(Memorandum and Order) ("July 1999 Order"). Fogg ar-

gues, however, that the statute should be read to impose a

cap on each claim. (He does not state how many claims he

deems the lawsuit to have aggregated, nor does he identify

the exact contours of each claim.) As the issue is purely

legal, we review de novo.

Three other circuits have faced the question before us, and

all have found s 1981a to impose a cap on the recovery from

each lawsuit, rejecting arguments that the controlling unit is

the claim. See Baty v. Willamette Indus., Inc., 172 F.3d

1232, 1245-46 (10th Cir. 1999); Smith v. Chicago School

Reform Bd. of Trustees, 165 F.3d 1142, 1149-50 (7th Cir.

1999); Hudson v. Reno, 130 F.3d 1193, 1199-1201 (6th Cir.

1997). In doing so, they focused on the word "action," noting

that in common legal parlance, the term refers to a "civil or

criminal judicial proceeding," Black's Law Dictionary at 28

(7th ed. 1999), or similarly, to "a lawsuit brought in court,"

Black's Law Dictionary at 18 (6th ed. 1991). See, e.g.,

Hudson, 130 F.3d at 1200. This also is the sense in which the

Federal Rules of Civil Procedure define the term, describing

as an "action" or "civil action" all claims for relief alleged in a

single lawsuit. See Fed. R. Civ. P. 2-3.

Fogg does not, however, dispute the meaning of "action"

itself. Rather, he argues that neither the word "action," nor

the phrase "for each complaining party," speaks to the ques-

tion at hand. According to him, the phrase "[i]n an action

brought by a complaining party under section 706 or 717 of

the Civil Rights Act of 1964" simply communicates that the

damages cap applies to violations of these sections of the Act

as opposed to other sections or other acts. The term "for

each complaining party," Fogg adds, does not establish that

there is a per lawsuit limit per party, but rather, that in

multi-party lawsuits, the caps apply independently to each

party. To prove his point, Fogg argues that if the statute did

provide additional language identifying the relevant unit as

either the lawsuit or the claim, then none of the disputed

language would be redundant. In essence, then, his argu-

ment is that none of the language on which courts and parties

have focused is pertinent.

Fogg's argument on redundancy seems correct but immate-

rial. He is not claiming that the courts' construction of

ss 1981a(a)(1) & (b) violates some canon of statutory inter-

pretation. And the application of canons to a differently

worded statute tells us little about the one before us. It

certainly does nothing to undermine the natural inference

that by saying that "in an action brought under section 706 or

717" there is a damages cap of $300,000 "for each complaining

party," Congress meant the cap to apply to each party in each

lawsuit. Such a reading gives the words their " 'ordinary,

contemporary, common meaning,' " which is to prevail "ab-

sent an indication Congress intended them to bear some

different import." Williams v. Taylor, 529 U.S. 420, 431

(2000).

In an amicus brief, the NAACP Legal Defense Fund notes

that in some contexts the term "action" can mean either a

lawsuit or a "cause of action," citing some instances of judicial

language allegedly using the phrases "cause of action" and

"action" interchangeably. See, e.g., United States ex rel.

Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 870, 884 n.16

(D.C. Cir. 1999) ("[A] qui tam suit under s 3730(b) is no less

a cause of action, and the relator is no less a party prosecut-

ing that action, because the action is brought in the name of

the United States") (emphasis added). That "action" can

serve as a synonym for "claim" in cases where the context

makes that meaning inescapable does not itself establish that

the term is ambiguous in other contexts.

To the extent that some ambiguity remains, this case

proves not to be the sort where extra-textual sources point to

a different interpretation. Fogg claims that the legislative

history and policy considerations underlying the 1991 Civil

Rights Act favor a per claim cap, but we find these sources

unhelpful to his position.

The language at issue was introduced in the Danforth-

Kennedy Substitute Civil Rights Act of 1991, S. 1745, 102d

Cong. (1st Sess. 1991). Before the bill's passage, the Repub-

lican cosponsors submitted an interpretive memorandum stat-

ing that the "limitations ... are placed on the damages

available to each individual complaining party for each cause

of action brought under section 1981A." 137 Cong. Rec.

29,046/3 (Oct. 30, 1991). Nothing in the language or context,

however, suggests that the sponsors' use of this phrase was

intended to stake out a position on the proper unit for

application of the cap.

Fogg also calls our attention to another interpretive memo-

randum, this one submitted by Congressman Edwards, a

sponsor of the House version, observing that "[t]he sponsors

acknowledge the limitations on damages awards in the legisla-

tion which apply to the damages available to each individual

complaining party for each cause of action brought under

section 1981A." 137 Cong. Rec. 30,662/1 (Nov. 7, 1991). But

this apparent item of legislative history is in fact more like

the oxymoron, "post-legislation legislative history." See

United States v. Carlton, 512 U.S. 26, 39 (1994) (Scalia, J.,

concurring). In an introductory statement the congressman

states that he urges members of the House to vote for

S. 1745, which the Senate had passed. 137 Cong. Rec.

30,661/1-2 (Nov. 7, 1991). But the exhortation was too late to

have any such effect. The House in fact had voted to pass

the bill earlier in the day (10 pages before, id. at 30,651).

Indeed, Congressman Edwards may not have made his obser-

vations until several days later, for a note in the Congression-

al Record explains that material appearing in the boldface

type used for his introductory statement "indicates words

inserted or appended, rather than spoken, by a Member of

the House on the floor." Id. at 30,506. The statement could

speak to the premises on which the statute passed, if at all,

only to the extent it might have played a role in President

Bush's decision to sign the bill--a proposition that isn't even

argued. Accordingly, whatever its meaning, we can give the

statement no material weight. See, e.g., General Instrument

Corp. v. FCC, 213 F.3d 724, 733 (D.C. Cir. 2000) (finding

"almost no value" in post-enactment legislative observations).

Fogg's last point from the legislative history is that an

earlier legislative proposal by President Bush had included a

$150,000 cap for "harassment," S. 611, 102d Cong. (1st Sess.

1991), with explicit provision of the "practice" rather than the

"incident" as the unit defining the cap. 137 Cong. Rec. 5679/1

(Mar. 12, 1991). Fogg's theory is that this bill reflected "a

recognition of the per cause of action/per case ambiguity" and

an effort to resolve it, and that it follows that the later

triumph of the current language must be seen as a rejection

of what he deems the President's per lawsuit approach. We

fail to see the logic. Indeed, if Congress were in fact

explicitly rejecting the earlier proposal in order to adopt a

per claim approach, we cannot fathom why it would choose

statutory language that seems to endorse the per lawsuit

approach or, at the best from Fogg's perspective, is silent on

the question.

Fogg also notes that the Equal Employment Opportunity

Commission has previously argued in favor of a per claim

interpretation of s 1981a and thus argues that under Chevron

U.S.A., Inc. v. Natural Defense Resources Council, 467 U.S.

837 (1984), we must defer to the its reasonable interpretation.

Even assuming the language is ambiguous enough to get past

Chevron's first step, and that the EEOC may be entitled to

Chevron deference on these provisions, Fogg cites only an

EEOC brief submitted to the court in Reynolds v. CSX

Transportation, Inc., 115 F.3d 860 (11th Cir. 1997) (a case not

in fact reaching the cap issue). The brief is obviously not the

product either of formal adjudication or notice-and-comment

rulemaking, and accordingly has no more status than the

opinion letters, policy statements, agency manuals, and en-

forcement guidelines that the Court said were undeserving of

such deference in Christensen v. Harris County, 529 U.S.

576, 587 (2000). It is at best "entitled to respect," and only to

the extent of its persuasiveness. Id. (citing Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944)). As plaintiff gives us no

reasoning from the brief, its persuasiveness, if any, has not

been relayed to us.

Finally, Fogg argues that adoption of the per lawsuit

interpretation defeats the policy purposes of the Civil Rights

Act by encouraging plaintiffs to file multiple lawsuits where

the allegations could well be combined into a single suit. But

plaintiffs drawn to such a strategy will have to bear in mind

the law of claim preclusion, which bars recovery in a second

(or other) lawsuit for injuries inflicted in the same transaction

as was adjudicated in the first lawsuit. See Smith, 165 F.3d

at 1150-51. Indeed, plaintiff's argument highlights a further

difficulty with his position. Allowing multiple caps in a single

lawsuit would require the court in such a lawsuit to define the

boundaries of the "claims" brought, an often vexing process.

Here plaintiff offers neither a count of his "claims," nor

statements of the contents of each, nor even a general

endorsement of using the transaction concept that governs in

claim preclusion law.

Equitable Relief

In addition to compensatory damages, Fogg also sought

equitable relief in the form of front pay or reinstatement and

expungement of his dismissal.1 The district court denied this

relief, and Fogg claims that the court committed legal error

by ignoring the jury's binding factual findings regarding the

post-1991 allegations.

"[I]n cases involving allegations of intentional discrimina-

tion the district court must ... follow the jury's factual

findings with respect to a plaintiff's legal claims when later

ruling on claims for equitable relief." Kolstad v. American

Dental Ass'n, 108 F.3d 1431, 1440, rev'd in part on other

grounds, 139 F.3d 958 (D.C. Cir. 1998), vacated and remand-

ed, 119 S.Ct. 2118 (1999). This rule has its roots in two legal

principles. The law of issue preclusion gives binding effect to

the first resolution of an issue (subject to certain limits), and

the right to a jury trial usually demands that the jury bind

the court, rather than vice versa. See Dairy Queen, Inc. v.

Wood, 369 U.S. 469, 472-73 (1962), Beacon Theatres, Inc. v.

Westover, 359 U.S. 500 (1959); see also Chauffeurs Teamsters

& Helpers Local No. 391 v. Terry, 494 U.S. 558, 579 (1990)

(Brennan J., concurring) (citing Beacon Theatres for

collateral-estoppel effect of jury findings).

__________

1 The Supreme Court has recently affirmed the view of this

circuit, see Martini v. Federal Nat. Mortgage Ass'n, 178 F.3d 1336,

1348-49 (D.C. Cir. 1999), that front pay is not an element of

"compensatory damages" within the meaning of 42 U.S.C. s 1981a

and therefore not subject to the damages cap imposed by that

section. See Pollard v. E.I. DuPont de Nemours & Co., 121 S. Ct.

1946 (June 4, 2001).

The jury found for Fogg on all the issues as to which its

verdict is binding. It also responded to special interrogato-

ries with findings that disparate treatment and/or retaliation

motivated both the order requiring Fogg to report for a

fitness-for-duty-examination in 1995 and Fogg's subsequent

dismissal for refusing to obey that order. Yet the district

court appears explicitly to have rejected those findings in

deciding that equitable relief was not appropriate. The rec-

ord indicates that the court declared from the bench that

Fogg "was validly dismissed from the Marshals Service."

Transcript of Proceedings, Feb. 25, 2000 at 9. In doing so,

the court apparently gave priority to the MSPB decision,

stating that "[I]f the Court of Appeals tells me that I have to

disregard the decision of the Merit Protection Board, or that

it is trumped by the jury's verdict, then we will revisit the

issue." Id. at 11. The court also appears to have acknowl-

edged that "the jury found otherwise," although it is unclear

from the record whether the court was stating its own view or

was simply finishing a sentence for Fogg's counsel. Id. at 9.

On the other hand, the district court suggested the possibility

of a reconciliation between its own findings and those of the

jury, saying that he was "not sure that they are altogether

inconsistent." Id. But the court never explained how the

two sets of findings could be squared.

Although the MSPB did conclude that Fogg's dismissal was

not retaliatory, see Fogg v. Dep't of Justice, DC-0752-96-

0101-I-2 (M.S.P.B. May 3, 1996) (hereinafter "MSPB Deci-

sion"), at 12-13, these findings are irrelevant to the extent

they contradict the jury's Title VII findings. In "mixed

cases" before the MSPB, the plaintiff enjoys a right to de

novo trial of his or her discrimination claims. See 5 U.S.C.

s 7703(c); Hayes v. U.S. Gov't Printing Office, 684 F.2d 137,

140 (D.C. Cir. 1982). Consistent with this principle, the

court's separate decision upholding the MSPB determination

quite correctly spoke only to the non-discrimination grounds

of the decision. See Fogg v. Reno, No. 94-2814 (D.D.C.

March 30, 1998).

Because it is unclear exactly what effect the court gave to

the jury's findings, we remand the equitable claims to the

district court so that it may reconsider the matter consistent

with the law of issue preclusion. "When an issue of fact or

law is actually litigated and determined by a valid and final

judgment, and the determination is essential to the judgment,

the determination is conclusive in a subsequent action be-

tween the parties, whether on the same or a different claim."

See Restatement (Second) of Judgments s 27 (1981); see also

Otherson v. Department of Justice, INS, 711 F.2d 267, 273

(D.C. Cir. 1983); 18 Charles Alan Wright et al., Federal

Practice and Procedure ss 4416ff (1981).

The MSPB Decision

Fogg also challenges the district court's decision to uphold

the MPSB ruling on his non-discrimination claims. He ar-

gues that the Marshals Service's order to Fogg to appear for

a medical exam was ultra vires (and thereby, he argues, not

requiring his obedience in the circumstances presented), and

that the MSPB did not appropriately weigh mitigating factors

in upholding the Service's dismissal for insubordination. Ob-

viously this claim will be mooted if, on remand, the district

court grants Fogg the equitable relief requested under Title

VII. We review the MSPB claim, however, in case it is not

fully mooted.

We first consider whether the MPSB incorrectly held that

the fitness exam order was not ultra vires. Fogg claims that

the order was defective because it didn't identify the specific

duties to which the Marshals Service hoped to assign him in

the event of a satisfactory medical exam. The MSPB held

that no such requirement applied. The reasons it gave were

wrong, but the decision was not only right but legally inevit-

able.

Under regulations implemented in 1984, the OPM did in

fact require an agency to "identif[y] an assignment or position

... which it reasonably believes the employee can perform"

before ordering a medical exam for an employee receiving

worker's compensation for an on-the-job injury. 5 CFR

s 339.301(b) (as quoted in Medical Determinations Related to

Employability, 49 Fed. Reg. 1321, 1329 (Jan. 11, 1984)). But

the version of the regulation applicable to Fogg's case (and

currently in effect) makes no mention of this requirement:

"An agency may require an employee who has applied for or

is receiving continuation of pay or compensation as a result of

an on-the-job injury or disease to report for an examination to

determine medical limitations that may affect placement deci-

sions." 5 CFR s 339.301(c).

In holding as it did, however, the MSPB relied not on the

differences between the older and newer regulations, but

rather on its earlier decision in Abatecola v. Veterans Admin.,

29 M.S.P.R. 601 (1986), which it characterized as having

"expressly held ... that [having a particular position in mind]

is not required." MSPB Decision, at 8-9. But Abatecola

said nothing of the sort. Rather, it held that the agency had

identified a specific assignment. 29 M.S.P.R. at 606.

In the face of such legal error, we would normally remand

to the court for remand to the agency, but we do not do so

when, as here, remand would be futile. "[O]nly one conclu-

sion would be supportable." Donovan v. Stafford Construc-

tion Co., 732 F.2d 954, 961 (D.C. Cir. 1984); see also In Re

Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001) (no deference

afforded to agency interpretation of its regulation that is

"plainly erroneous or inconsistent with the [regulation's] plain

terms") (internal quotation omitted). Unlike the regulation

considered in Abatecola, the current one imposes no job

identification requirement at all. Thus the MSPB was cor-

rect in its ultimate conclusion.

We next consider whether the district court properly up-

held the MSPB's finding that the Marshals Service's sanction,

namely dismissal, was reasonable. We note at the outset

that, absent legal error, our review is somewhat attenuated.

The MSPB reviews federal employer disciplinary actions

deferentially, to assess whether the employer agency "did

conscientiously consider the relevant factors and did strike a

responsible balance within tolerable limits of reasonableness."

Douglas v. Veterans Admin., 5 M.S.P.B. 313, 332-333 (1981).

And we review the MSPB's assessment deferentially, upset-

ting it only if it was arbitrary and capricious or an abuse of

discretion, or if it was unsupported by substantial evidence.

5 U.S.C. s 7703(c). Although the district court reviews in the

first instance in lieu of the Federal Circuit (because the case

mixes discrimination and other claims, see Barnes v. Small,

840 F.2d 972, 978-79 (D.C. Cir. 1988); Hayes, 684 F.2d at

140), its assessment drops out of the multiple layers of

deference. See Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir.

1991).

In assessing the reasonableness of employer-imposed sanc-

tions, the MSPB has identified a non-exhaustive list of twelve

factors relevant to appropriateness of the penalty. Douglas,

5 M.S.P.B. at 332. In upholding Fogg's termination, the

Board found that the employer had reasonably weighed

Fogg's 19 years of good service without prior discipline

against the seriousness of appellant's willful disobedience in

thrice refusing to comply with the Marshals Service order

despite knowing that such refusal was grounds for discipline.

MSPB Decision at 14. In particular, the Board noted that

previous MSPB decisions had found removal warranted for

insubordination based on failure to undergo an ordered fit-

ness-for-duty examination. Id. (citing Reynolds v. Depart-

ment of Justice, 63 M.S.P.R. 189, 197 (1994); Abatecola, 29

M.S.P.R. at 611). In addition, it observed that law enforce-

ment officers are held to a higher standard of discipline than

other employees. Id. (citing Jones v. Department of Army,

52 M.S.P.R. 501, 506 (1992)).

Fogg does not dispute the accuracy of the MSPB's factual

findings. Rather, he maintains that the Board did not give

enough attention to the Douglas factors and should have

applied them differently, giving more weight to Fogg's years

of distinguished service and to his sincere belief that he was

being discriminated against. He also argues that any height-

ened standard for law enforcement officers should not apply

to someone who has been on sick leave for two and a half

years.

Although the Board did not explicitly walk through each

and every one of the Douglas factors, those factors are non-

exhaustive and serve merely as guides to inform the core

reasonableness assessment. Douglas, 5 M.S.P.B. at 332. In

fact, in enumerating the factors the MSPB said that they

would not all "be pertinent in every case." Id. Moreover,

the analysis that the MSPB did undertake here appears to

have covered the Douglas bases.

While Fogg's prolonged absence from work may slightly

militate against applying the heightened duty for law enforce-

ment officers, this possibility alone does not render the

MSPB's decision unreasonable. In the first place, the MSPB

clearly thought Fogg's behavior highly reprehensible even

absent his law enforcement duties. In addition, while there

may be arguments for nuances based on such special circum-

stances, the Marshals Service might well think a uniformly

heightened standard better instills in law enforcement offi-

cials the sense of "great trust and responsibility" essential to

their jobs. Crawford v. Department of Justice, 45 M.S.P.R.

234, 237 (1990). Finally, any such nuance would be in some

tension with the sixth Douglas factor--the interest in consis-

tent treatment of "other employees for the same or similar

offenses." 5 M.S.P.R. at 332. In any event, all these trade-

offs are for the employing agency's exercise of its reasonable

discretion.

We affirm the district court's decision upholding the MSPB

decision as to the non-discrimination allegations.

The District Court's Findings With Respect to the Pre-1991

Claims

In his final challenge, Fogg appeals the district court's

finding that he had failed to prove by a preponderance of the

evidence his pre-1991 Civil Rights Act claims. We review the

district court's findings of fact for clear error. Fed. R. Civ.

P. 52(a).

Fogg claims discrimination in his 1985 reprimand and

transfer to a Superior Court position for having taken a

government vehicle home with him while on two days' sick

leave. At trial there was conflicting evidence as to whether

there was a legitimate, non-discriminatory basis for Fogg's

punishment. Fogg would have us rely on the testimony of

one of his supervisors, Deputy Roche, who testified that he

had authorized Fogg's use of the car. Although Roche

admitted that he did not in fact know that Fogg was on sick

leave when the request was made, he also testified that Fogg

had done nothing improper, because his fugitive-related

duties required that he be able to respond at a moment's

notice in the event of a prisoner escape. Deputy Roche and

others also testified that Chief Deputy Hein, who actually

delivered the reprimand, was quite harsh in his treatment of

Fogg, severely reprimanding him in front of several supervi-

sors. But U.S. Marshal Rutherford, who ordered Fogg's

reprimand and transfer, testified that Fogg's use of the

vehicle was indeed improper and that Fogg's treatment was

relatively lenient given that the offense was punishable by

termination. And Roche himself later qualified his earlier

testimony, agreeing that government cars were not to be used

on sick leave. Our review of the record yields no basis for

concluding that the district court's resolution of any conflict

was clear error.

Fogg similarly fails to demonstrate clear error in the other

findings under review. He points to his failure to receive

performance evaluations in 1990-91 (as well as 1992, but that

is irrelevant to the pre-1991 assessment). Yet there was

testimony at trial that the lack of evaluation resulted not from

discrimination or retaliation, but rather from a misunder-

standing between supervisors as to whether Fogg would be

evaluated by his local district management or by his supervi-

sor at the inter-agency task force. While Fogg claims that

the Marshals Service discriminated against him in 1990 by

promoting to a GS-13 vacancy a lower-ranked employee on

the Service's merit certification list, the then Director, for-

merly U.S. Attorney in the Northern District of Florida,

testified that he had developed a close personal and profes-

sional relationship with the other candidate when working in

Florida, and that he promoted him on the basis of this

experience. The district court found that the Service had

offered "superficially plausible" explanations, July 1999 Order

at 6, and that Fogg had not provided evidence demonstrating

these explanations to be pretextual, see Aka v. Washington

Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc).

Again we see no clear error.

There is some ambiguity regarding Fogg's pre-1991 hostile

work environment claim. The district court appeared to have

concluded that it was unnecessary to decide the question:

"[T]he Court ... declines to makes its own finding with

respect to the claim of hostile environment antedating 1991 as

being unnecessary in light of the remittitur [referring to

application of the $300,000 damages cap]." July 1999 Order,

at 1-2. On the other hand, it is not inconceivable that the

court's footnote 7, id. at 6 n.7, generally rejecting the view of

the jury for the pre-November 11, 1991 period, applies to the

hostile environment claim as well as to more specific allega-

tions.

On appeal Fogg assumes the court rejected his claim, and

asserts clear error. If the district court actually declined to

resolve the issue, that declination may have been error, but it

is not an error asserted by plaintiff and therefore not before

us. See generally Carducci v. Regan, 714 F.2d 171, 177 (D.C.

Cir. 1983). Accepting instead the parties' evidently shared

assumption that the district court rejected the hostile envi-

ronment claim, we find no indication of clear error.

Similarly we find no error in the court's rejection of Fogg's

claim that the Marshals Service unlawfully delayed the pro-

cessing of his Title VII complaint. We assume arguendo that

such delay can constitute a Title VII violation, but cf. Ward v.

E.E.O.C., 719 F.2d 311, 312-314 (9th Cir. 1983); Stewart v.

E.E.O.C., 611 F.2d 679; (7th Cir. 1979); Georator Corp. v.

E.E.O.C., 592 F.2d 765, 769 (4th Cir. 1979), but find no clear

error in the court's factual determination.

* * *

We reverse so that the district court can reconsider plain-

tiff's claims for equitable relief in light of a correct under-

standing of the issue preclusive effect of the jury's verdict.

In all other respects the judgment is affirmed.

So ordered.