Blackmon-Malloy v. United States Capitol Police Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2009 Decided July 31, 2009

No. 07-5320

SHARON BLACKMON-MALLOY, ET AL.,

APPELLANTS

v.

UNITED STATES CAPITOL POLICE BOARD,

APPELLEE

Consolidated with Nos. 07-5321 and 07-5322

Appeals from the United States District Court

for the District of Columbia

(No. 01cv02221)

Lenore C. Garon argued the cause for appellants. With her

on the briefs were Joseph D. Gebhardt and Charles W. Day, Jr.

2

Peter Ames Eveleth, General Counsel, and William

Wachter, Attorney, were on the brief for amicus curiae Office

of Compliance in support of appellants.

Harry B. Roback, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jeffrey A. Taylor, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Frederick M. Herrera, Attorney, United States Capitol Police

Board, entered an appearance.

Before: SENTELLE, Chief Judge, GINSBURG and ROGERS,

Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: In the Congressional

Accountability Act of 1995 (“the CAA”), 2 U.S.C. § 1301, et

seq., Congress extended the protections of Title VII of the Civil

Rights Act of 1964, as well as ten other remedial federal

statutes, to employees of the legislative branch. In Subchapter

IV Congress specified a three-step process that requires

counseling and mediation before an employee may file a

complaint seeking administrative or judicial relief. However,

rather than use the pre-complaint regimes in place for other

federal employees, Congress created an Office of Compliance

and vested it with broad responsibility for counseling and

mediation and adoption of rules of procedure.

In these appeals by United States Capitol Police officers

from the dismissal of their discrimination complaint for failure

to exhaust, three aspects of this regime are at issue: whether the

three-step process is jurisdictional, whether in-person attendance

by the employee is required at counseling or mediation, and

whether receipt of end of counseling and mediation notices

demonstrates completion of counseling and mediation. We hold

3

the three-step process is jurisdictional and thus affirm the district

court ruling that equitable doctrines, such as vicarious

exhaustion, do not apply to excuse compliance with it. We

reverse, however, the district court’s in-person ruling, holding

that neither the CAA nor the procedural rules of the Office of

Compliance require in-person attendance by the employee at

counseling or mediation. Finally, we hold that receipt of written

notice of the end of mediation from the Office of Compliance

triggered the CAA’s 30 to 90-day period for electing whether to

pursue judicial or administrative relief and demonstrated the

employee’s completion of counseling and mediation.

Accordingly, we remand the cases to the district court.

I.

Subchapter IV of the CAA, titled “Administrative and

Judicial Dispute Resolution Procedures,” provides that prior to

filing a complaint with the Office of Compliance (“Office”)

pursuant to section 1405 or in the district court pursuant to

section 1408, an employee1 must do three things:

First, “to commence a proceeding,” the employee must

request counseling within 180 days of the date of the alleged

violation of a law made applicable by the CAA. Id. § 1402(a).

As regards counseling, “[t]he Office shall provide the employee

with all relevant information with respect to the rights of the

employee.” Id. The CAA further provides that “[t]he period for

counseling shall be 30 days unless the employee and the Office

agree to reduce the period.” Id. § 1402(b). The Office must

“notify the employee in writing when the counseling period has

ended.” Id. § 1402(c).

1

Section 1301(3) defines which employees of the Legislative

Branch are eligible to seek relief. 2 U.S.C. § 1301(3); see id.

§ 1316a(5).

4

Second, “[n]ot later than 15 days after receipt . . . of

notice of the end of the counseling period . . . but prior to and as

a condition of making an election under section 1404,” the

employee must “file a request for mediation with the Office.”

Id. § 1403(a). Mediation “may include the Office, the covered

employee, the employing office, and one or more individuals

appointed by the Executive Director” of the Office, id.

§ 1403(b)(1), but “shall involve meetings with the parties

separately or jointly for the purpose of resolving the dispute

between the covered employee and the employing office,” id.

§ 1403(b)(2). The mediation period “shall be 30 days,” which

may be extended upon joint request of the parties, id. § 1403(c),

and (as with counseling) the Office must “notify in writing the

covered employee and the employing office when the mediation

period has ended,” id.

Third, between 30 and 90 days of the receipt of the

end-of-mediation notice, the employee who wishes to pursue his

or her claims must elect, pursuant to section 1404, to file either

(1) an administrative complaint with the Office pursuant to

section 1405 or (2) a civil complaint in the federal district court

pursuant to section 1408. Only the latter proceeding is at issue

here.

In providing for judicial proceedings, two sections of the

CAA are relevant here. Section 1408(a), titled “Jurisdiction,”

provides:

The district courts of the United States shall have

jurisdiction over any civil action commenced under

section 1404 of this title and this section by a covered

employee who has completed counseling under section

1402 of this title and mediation under section 1403 of

this title. A civil action may be commenced by a

covered employee only to seek redress for a violation

5

for which the employee has completed counseling and

mediation.

Id. § 1408(a). Section 1410, titled “Other judicial review

prohibited,” provides that “[e]xcept as expressly authorized by

sections 1407, 1408, and 1409 . . . , the compliance or

noncompliance with the provisions of this chapter and any

action taken pursuant to this chapter shall not be subject to

judicial review.” Id. § 1410.

This was the statutory framework when, between April 12

and May 15, 2001, officers from the United States Capitol Black

Police Association delivered materials to the Office, on behalf

of “approximately 200 individual Capitol Police officers, former

officers, and former recruits” (collectively “officers”), asserting

that the Police Board and others had violated 2 U.S.C. § 1311,

which made applicable protections under Title VII of the Civil

Rights Act of 1964, the Age Discrimination in Employment Act

of 1967, the Rehabilitation Act of 1973, and Title I of the

Americans with Disabilities Act of 1990. The materials

identified Charles Jerome Ware, Esq., as their attorney. By

letter of April 13, the Executive Director of the Office informed

the Association and Attorney Ware of the CAA’s counseling and

mediation requirements and advised that he had accepted the

materials submitted as “requests for counseling by each and

every individual named in the material.” Ltr. from William W.

Thompson II to Charles Jerome Ware at 2 (Apr. 13, 2001).

Counseling was conducted in three mass counseling sessions

that took place on April 28, April 30, and May 5, 2001. The

Office issued to the complainants written “Notifications of End

of Counseling Period” on May 16 and June 15, 2001, based on

the date counseling was requested.

On June 5, 2001, Attorney Ware requested mediation “on

behalf of all the employees he represent[s].” Ltr. From Charles

6

Jerome Ware to William W. Thompson II at 1. On June 12, the

Office appointed Herbert Fishgold and Marvin Johnson as

mediators for the cases. Additional officers requested mediation

on June 27, 2001. On June 28, the parties jointly requested

extension of the mediation period to October 1, 2001, but the

Executive Director extended the period only to August 1,

explaining that “[i]f the parties are engaged in serious mediation

efforts, further extensions will be reviewed favorably.” Notice

of Extension of Mediation (June 29, 2001). In mid-July,

Attorney Ware provided further information about

approximately 76 of his clients. Upon agreement of the parties

to proceed in alphabetical order, multiple mediation sessions

were conducted on July 23 and 25, 2001. Attorney Ware’s

records show various telephone calls and meetings with the

mediators in June and July, and by sworn declaration he stated

that prior to August 2, 2001, he had spoken on behalf of all his

clients with Office representatives, the mediators, and counsel

for the Police Board and had represented selected officers in

joint mediation sessions conducted by the Office. Ware Decl.

May 21, 2004.

On August 2, 2001, the Office sent Attorney Ware and the

Police Board a “NOTICE OF END OF MEDIATION” advising

them of the dates of mediation and that the matters underlying

the requests for mediation were not resolved. The notice also

advised that the officers had to make an election pursuant to

section 1404 to proceed under sections 1405 or 1408 “not later

than 90 days, but no sooner than 30 days, after [they] ha[d]

received this notice.” The notice provided further details about

proceedings under section 1405. Attached to the notice was a

five-page single-spaced listing of the names and case numbers

of the officers to whose claims the notice applied. On October

2, 2001, the Office certified, through its custodian of records, the

dates of the requests for counseling and mediation, the dates the

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notices of the ends of those periods were mailed, and the dates

receipt of the notices was acknowledged.

The officers filed a complaint in the district court on

October 29, 2001, identifying by name more than 250 current

and former Capitol Police officers. They alleged systematic

discrimination against minority and female officers, including

discrimination in hiring, promotion, discipline, retaliation, and

maintaining a hostile work environment, in violation of Title

VII, 42 U.S.C. §§ 2000e, et seq., and the Civil Rights Act of

1991, id. § 1981a. Various amended complaints were filed

adding plaintiffs. An amended class action complaint filed

January 29, 2003, the operative complaint in this appeal,

identified more than 100 additional officers as plaintiffs and

stated that “[t]he plaintiff class agents have exhausted their

administrative remedies by completing counseling and

mediation with the Office.” Joint Second Am. Compl. ¶ 7. The

Police Board moved to dismiss the amended complaint, and the

officers filed an opposition.

The district court dismissed the amended complaint for lack

of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1). Blackmon-Malloy v. U.S. Capitol Police

Bd., 338 F. Supp. 2d 97 (D.D.C. 2004). The district court ruled

that the counseling and mediation requirements were

jurisdictional, and therefore the doctrine of vicarious exhaustion

was inapplicable to excuse compliance with these requirements.

Id. at 101-06. It further ruled that mediation had to be

completed in person. Id. at 109. And it ruled that receipt of the

notices did not establish completion of mediation because “[i]n

issuing the notices of the end of mediation, the Office [] was not

interpreting whether mediation had been completed.” Id. at 108.

The dismissal was without prejudice, id. at 109, to filing a

motion for reconsideration showing which, if any, of the officers

had timely requested and completed counseling and mediation,

8

indicating “the date the claimant attended counseling” and “the

date a mediation session was attended.” Id. at 112-13.

Subsequently, the district court adopted both the findings of a

magistrate judge that only eight of the officers had completed

counseling and mediation by in-person attendance, and the

recommendation to dismiss all of the other officers’ claims.

II.

Appellants challenge the district court’s interpretation of the

CAA that the doctrine of vicarious exhaustion is inapplicable

and that in-person attendance by the requesting employee is

required at counseling and mediation. They further contend that

the notices of end of counseling and mediation were

determinative of fulfillment of their counseling and mediation

obligations so their lawsuit could proceed on the merits. Our

review of these legal questions is de novo. Harbury v. Hayden,

522 F.3d 413, 416 (D.C. Cir. 2008).

Under the doctrine of vicarious exhaustion, each individual

plaintiff in a class action need not exhaust his or her

administrative remedies individually so long as at least one

member of the class has. See, e.g., Foster v. Gueory, 655 F.2d

1319, 1321-22 (D.C. Cir. 1981); Oatis v. Crown Zellerbach

Corp., 398 F.2d 496, 498 (5th Cir. 1968). However, courts have

“no authority to create equitable exceptions to jurisdictional

requirements.” Bowles v. Russell, 551 U.S. 205, 127 S. Ct.

2360, 2366 (2007); see also Booth v. Churner, 532 U.S. 731,

741 n.6 (2001). Indeed, the Supreme Court has instructed that

if Title VII’s timely filing requirement were jurisdictional,

vicarious exhaustion would not apply. See Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 396-97 (1982). Whether plaintiffs

may rely on vicarious exhaustion in a CAA case, then, hinges on

whether the counseling and mediation requirements of section

1408(a) are jurisdictional.

9

Determining whether the CAA’s counseling and mediation

requirements are jurisdictional, an open question in this circuit,

Oscarson v. Office of the Senate Sergeant at Arms, 550 F.3d 1,

3 (D.C. Cir. 2008), is a question of statutory interpretation. See

Avocados Plus Inc., v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir.

2004); see generally King v. St. Vincent’s Hosp., 502 U.S. 215,

218, 221 (1991); Bailey v. United States, 516 U.S. 137 (1995).

To make compliance with a statutory provision a prerequisite to

federal jurisdiction, a statute must include “direct statutory

language indicating that there is no federal jurisdiction prior to

[such compliance].” Avocados Plus, 370 F.3d at 1248. “We

presume exhaustion is non-jurisdictional unless Congress states

[otherwise] in clear, unequivocal terms . . . .” Id. See Hettinga

v. United States, 560 F.3d 498, 503 (D.C. Cir. 2009). For

example, in Hardin v. City Title & Escrow Co., 797 F.2d 1037

(D.C. Cir. 1986), the court held that time limits in the Real

Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq.,

were jurisdictional because they fell under the statutory heading

“Jurisdiction of Courts” and “[b]ecause the time limitation

contained in [that statute] is an integral part of the same sentence

that creates federal and state court jurisdiction,” making it

“reasonable to conclude that Congress intended thereby to create

a jurisdictional time limitation,” id. at 1039 (emphasis in

original). The court observed that the title descriptor was part

of the statute enacted by Congress, not added by a publisher or

codifier. Id. A similar conclusion is warranted here.

Section 1408(a) of the CAA, titled “Jurisdiction,” provides

that a district court has “jurisdiction over [appropriate actions]

commenced . . . by a covered employee who has completed

counseling under section 1402 of this title and mediation under

section 1403 of this title.” 2 U.S.C. § 1408(a). Reemphasizing

these requirements, the subsection provides: “A civil action may

be commenced by a covered employee only to seek redress for

a violation for which the employee has completed counseling

10

and mediation,” id. As in Hardin, the counseling and mediation

requirements appear under the subtitle “Jurisdiction” and are

integral parts of the same provision as the grant of jurisdiction.

Furthermore, the title was part of the legislation enacted by

Congress. See 141 Cong. Rec. H252, H261 (Jan. 17, 1995); id.

H285 (Jan. 17, 1995). Therefore, as in Hardin, it is apparent

from the plain terms of the text that Congress intended

counseling and mediation to be jurisdictional requirements. As

the text is clear, our inquiry is complete, Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253-54 (1992); Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999), although we note the

legislative history confirms this conclusion. See 141 Cong. Rec.

S621-02, at S622, S630 (Jan. 9, 1995); see also Am. Fed’n of

Labor & Congress of Indus. Orgs. v. Donovan, 757 F.2d 330,

351-52 (D.C Cir. 1985).

The conclusion that Congress intended the three-step

process to be jurisdictional is consistent with the statutory

scheme that Congress established to handle discrimination (and

other) claims by its employees. Although Congress granted its

employees the substantive protections of various remedial

federal statutes, it established an independent2 Office to oversee

claims of unlawful conduct with a focus on informing the

employee of relevant rights and then mandating a period of

mediation for the parties to determine whether informal

resolution of the dispute is feasible and worth pursuing. In

doing so, Congress struck a balance between affording its

employees the protections enjoyed by other federal employees

but initially offering employing offices, which may involve

elected Members of Congress, see, e.g., Fields v. Office of Eddie

Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc), an

2

Section 1381(a) provides that the Office shall be “an

independent office within the legislative branch of the Federal

Government.” 2 U.S.C. § 1381(a).

11

opportunity to settle claims prior to commencement of formal

administrative or judicial proceedings.

Appellants offer no persuasive counter argument, primarily

because their contention that the vicarious exhaustion doctrine

applies even if the three-step pre-complaint process is

jurisdictional proceeds on the faulty premise that Title VII’s

timely-filing requirement is jurisdictional. See Appellants Br.

46-47. In Zipes, however, the Supreme Court held that “filing

a timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court” in Title VII

cases. 455 U.S. at 393 (emphasis added); see Albemarle Paper

Co. v. Moody, 422 U.S. 405, 408 (1975). Furthermore, the

precedents on which appellants rely do not stand for the contrary

proposition. For example, in Baldwin County Welcome Ctr. v.

Brown, 466 U.S. 147 (1984), which appellants cite, the Supreme

Court explicitly notes this holding in Zipes. Id. at 152 n.6. In

any event, although Title VII’s timely filing requirement is not

jurisdictional, the CAA does not fully incorporate Title VII. See

2 U.S.C. §1311. The CAA incorporates much of Title VII’s

substantive law, but it establishes its own comprehensive

administrative regime — including jurisdictional provisions.

“The provision granting district courts jurisdiction under Title

VII, 42 U.S.C. §§ 2000e-5(e) and (f), does not limit jurisdiction

to those cases in which there has been a timely filing with the

EEOC,” Zipes, 455 U.S. at 393, whereas section 1408(a) of the

CAA does include a limit and, therefore, warrants a different

conclusion. Therefore, the unincorporated jurisdictional

provision of Title VII does not guide our interpretation of the

CAA. See id. §§ 1401-1416; see also id. § 1361(f)(1).

Because we hold that the CAA’s counseling and mediation

requirements are jurisdictional, the district court correctly ruled

that it was not empowered to apply the equitable doctrine of

vicarious exhaustion to excuse compliance with those

12

requirements. Appellants’ contention that the district court

abused its discretion by deciding whether counseling and

mediation requirements were jurisdictional before ruling on their

motion for class certification fails, as jurisdiction is a threshold

question, Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83,

93-94 (1998). Nothing in section 1410, which prohibits review

of action taken pursuant to the CAA except as therein

authorized, deprived the district court of jurisdiction to ensure

that the parties invoking its jurisdiction had satisfied the

requirements of section 1408(a). See also 2 U.S.C.

§ 1361(d)(1), (e) (“Only a covered employee who has

undertaken and completed the procedures described in sections

1402 [counseling] and 1403 [mediation] of this title may be

granted a remedy under part A of this subchapter.”). We

therefore turn to appellants’ challenge to the district court’s

ruling that under section 1408 they must have been present in

person for counseling and mediation.

III.

Section 1402(a) provides: “To commence a proceeding, a

covered employee . . . shall request counseling by the Office.

The Office shall provide the employee with all relevant

information with respect to the rights of the employee.”

2 U.S.C. § 1402(a). Section 1403(b) provides that “[m]ediation

under this section–

(1) may include the Office, the covered employee, the

employing office, and one or more individuals

appointed by the Executive Director . . . , and

(2) shall involve meetings with the parties separately or

jointly for the purpose of resolving the dispute between

the covered employee and the employing office.

13

2 U.S.C. § 1403(b). Concluding there was an ambiguity in the

latter provision, the district court deferred to the Office’s

procedural rules governing mediation, Blackmon-Malloy, 338 F.

Supp. 2d at 109 (citing Chevron U.S.A. Inc. v. Natural Res. Def.

Council, 467 U.S. 837 (1984)), and cited Office Rule (“OC

Rule”) 2.04(a), which provides:

(a) Explanation. Mediation is a process in which

employees, employing offices and their

representatives, if any, meet separately and/or jointly

with a neutral trained to assist them in resolving

disputes.

OC Rule 2.04(a) (emphasis added). The district court did not

discuss its interpretation of this provision, merely citing it as

support for its determination that mediation “requires an

employee’s presence.” Blackmon-Malloy, 338 F. Supp. 2d at

109. We agree with appellants that this determination was error.

Preliminarily, we are unpersuaded by the Police Board’s

position that appellants forfeited the argument that their in-

person attendance at counseling and mediation sessions is not

required, by failing to raise the argument in the district court.

The Police Board relies on the general rule that, absent

exceptional circumstances, this court will not entertain

arguments not made in the district court, see, e.g., Meijer, Inc.

v. Biovail Corp., 533 F.3d 857, 867 (D.C. Cir. 2008). That rule,

however, does not apply where the district court nevertheless

addressed the merits of the issue. In United States v. Williams,

504 U.S. 36 (1992), the Supreme Court stated that its traditional

rule is to consider issues that were “pressed or passed upon

below,” id. at 41 (internal quotations and citations omitted), a

rule that “operates (as it is phrased) in the disjunctive, permitting

review of an issue not pressed so long as it has been passed

upon,” id. Although that case involved the Supreme Court’s

14

certiorari jurisdiction, this court has held that “the considerations

underlying the rule have force for the courts of appeals as well.”

United States v. Williams, 951 F.2d 1287, 1290 (D.C. Cir. 1991);

see also Jackson v. Culinary Sch., Ltd., 27 F.3d 573, 583-84

(D.C. Cir. 1994), vacated and remanded, 515 U.S. 1139 (1994),

reinstated in relevant part, 59 F.3d 254, 255 (D.C. Cir. 1995).

Assuming appellants failed to present this argument there, the

district court’s opinion clearly addressed the merits of the in-

person attendance issue. The district court discussed the

definition of mediation under section 1403(b)(2), concluded

there was an ambiguity and that Chevron deference was due, and

read OC Rule 2.04(a) to require “the employee’s presence.”

Blackmon-Malloy, 338 F. Supp. 2d at 109 (citing 2 U.S.C.

§ 1403(b)(2) and OC Rule 2.04(a)). Review here is thus

appropriate because the district court “passed upon” the in-

person issue appellants now present to this court.

On the merits, we turn first to the counseling requirement,

beginning with the text while recognizing that a holistic

approach to the CAA is required. See generally Am. Radio

Relay League, Inc. v. FCC, 617 F.2d 875, 879 (D.C. Cir. 1980)

(quoting SUTHERLAND, STATUTORY CONSTRUCTION § 46.06, at

63 (4th ed. 1973)). Section 1402(a) refers only to “a covered

employee” and is silent on the question whether such employee

may receive counseling over the telephone (or by similar means)

or may be represented at counseling by a representative in the

employee’s absence. Yet Congress surely knew, as the Office

points out, that employees covered under the CAA live

throughout the United States, far from the Nation’s capital

where the Office, which has a small staff, maintains its only

office. See Amicus Br. 10, 15. Given the limited purpose of

counseling to provide the employee with information about his

or her rights and the limited benefit that would inure to the

employee or the Office from performing this function in person,

reading into the statute an in-person requirement that lacks any

15

textual support would appear to produce a result at odds with

Congress’s imposition of a 30-day limit for counseling and its

vesting in the Office powers to determine the contents of

counseling and the rules of procedure, see, e.g., OC Rule

2.03(c)(2).

As regards mediation, section 1403(b)(2), by specifying that

mediation “shall involve meetings with the parties,” 2 U.S.C.

§ 1403(b)(2), could be read to require that, as “parties,” an

employee and the employing office must appear in person, with

the Office’s Rule 2.04(a) indicating that each may have a

representative present as well. But such a literal interpretation

would run afoul of the Supreme Court’s instruction that courts

should construe statutory language “in accord with its ordinary

or natural meaning,” Smith v. United States, 508 U.S. 223, 228

(1993), in the context of the statutory scheme, id. at 233-34

(internal quotation omitted), since “statutory language, plain or

not, depends on context,” King, 502 U.S. at 221; see also Dolan

v. U.S. Postal Serv., 546 U.S. 481, 486 (2006); Bell Atl. Tel.

Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997). As

appellants observe, reading section 1403(b)(2) to require in-

person attendance of employees at mediation would require the

court to conclude that Congress used the phrase “meetings with

the parties” in a manner contrary to its commonly understood

use in other mediation and judicial proceedings, which allow a

“party” to be represented by counsel in the absence of the client,

see Amicus Br. at 20 n.6 (citing D.C. Circuit Rule App. III

(Appellate Mediation Program); Arends v. Iowa Select Farms,

L.P., 556 N.W.2d 812, 815-16 (Iowa 1996); Envtl. Contractors,

LLC v. Moon, 983 P.2d 390, 393 (Mont. 1999)); FED. R. CIV. P.

16(a), (c)(1); D.C. Dist. Ct. Local Rules 84.7, 16.3. Under the

interpretation advanced by the Police Board, individual

Members of Congress would have to appear at mediation where

a Member is the employing office, a meaning that would appear

improbable. That Congress rather intended the phrase

16

“meetings with the parties” to be a general description of the

mediation process, and not to impose a requirement that

employees must attend in person, seems evident also from the

context in which the phrase is used. While stating that

mediation “may” include the covered employee, 2 U.S.C.

§ 1403(b)(1), the CAA states that it “shall” involve meetings

with the parties, id. § 1403(b)(2). It is difficult to square the

first permissive instruction with the second requirement if the

covered employee must attend mediation in person.

Although commentators suggest that mediation works better

when the decision makers appear in person, KIMBERLEE K.

KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 93 (3d ed.

2004); DWIGHT GOLAN, MEDIATING LEGAL DISPUTES § 5.1.3

(1996), a conclusion that Congress intended to preclude an

employee’s appearance through a representative would seem an

odd one for Congress to adopt in light of the press of legislative

duties and the limited timeframe in which mediation is to occur.

The Office explains, for instance, the practical reality that the

CAA’s strict time limits could make scheduling in-person

mediation, much less counseling, impossible for logistical

reasons where employees are located throughout the United

States or where there are large numbers of complainants given

the small Office staff. See Amicus Br. 10, 15. Even when

mediating a claim by a single employee who resides in a

geographically convenient location, the Office observes that

“[a]part from the questionable fairness of requiring an

emotionally distraught or frightened employee to choose

between attending mediation sessions against his will and

forfeiting his rights under the CAA, the prospect of achieving

settlement may be enhanced if the employee is not required to

appear in person but instead appears through counsel.” Id. at

16-17 & n.5 (emphasis in original).

17

At most, therefore, sections 1402 and 1403 create an

ambiguity, as the district court concluded with respect to

mediation, that could be filled by the Office’s rules of

procedure. See Chevron, 467 U.S. at 842-43. The Police Board

maintains Office Rule 2.04(a) unambiguously requires in-person

attendance at mediation. To the contrary; the Office’s

procedural rules lend only greater support to the conclusion that

the “parties” need not attend mediation sessions in-person. As

their author, the Office is entitled to deference when interpreting

its rules. Despite the fact that this interpretation comes before

the court in the form of an amicus brief, the Supreme Court has

made clear that in circumstances like those in the instant case,

the interpretation is nonetheless “controlling unless plainly

erroneous or inconsistent with the regulation,” Auer v. Robbins,

519 U.S. 452, 461 (1997). The Office points out that “Rule

2.04(a) merely paraphrases Section [1]403(b)’s characterization

of the mediation process” and was “intended to be descriptive,

not prescriptive.” Amicus Br. 13. By contrast, Rule 2.04(f),

titled “Procedures,” provides that the “neutral [mediator] has the

responsibility to conduct the mediation, including deciding how

many meetings are necessary and who may participate in each

meeting.” OC Rule 2.04(f)(1) (emphasis added). Furthermore,

Rule 2.04(g), titled “Who May Participate,” provides:

A representative of the employee and a representative

of the employing office who has actual authority to

agree to a settlement agreement on behalf of the

employee or the employing office, as the case may be,

must be present at the mediation or must be

immediately accessible by telephone during the

mediation.

OC Rule 2.04(g).

18

By requiring that representatives of the employee and

employing office have settlement authority or be “immediately

accessible by telephone,” the Office contemplated the absence

of the employee and the employing office during mediation, and

Rule 2.04(g) would be superfluous if the rules actually required

the “parties” to attend in person. Amicus Br. 14. For these

reasons, the Office’s interpretation of Rule 2.04(a) is not, as the

Police Board maintains, “nothing more than an agency’s

convenient litigating position,” Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 213 (1988), to which the court owes no

deference when “wholly unsupported by regulations, rulings, or

administrative practice,” id. at 212. Quite the contrary. The

Office’s interpretation of Rule 2.04(a) is both consistent with

that rule and not plainly erroneous, Auer, 519 U.S. at 462, and

is therefore a controlling interpretation of any ambiguity that

may exist in that rule. Indeed, the Police Board’s contrary

position, that the plain text of Rule 2.04(a) requires in-person

attendance by the employee at mediation because it admits of no

other reading, and that Rule 2.04(g) merely states a

representative does not have to be present, is untenable because

it would create an inconsistency between subsection (a) and

subsections (f) and (g), rather than read them in harmony. That

some of the practical problems with an in-person attendance

requirement identified by the Office may not have occurred in

appellants’ particular cases is of no moment.

Because Congress has not explicitly denied an employee the

opportunity to appear through a representative at counseling or

mediation and has expressly authorized the Office to issue

procedural rules, and because the Office’s interpretation that its

Rules 2.04(a) and (g) do not require in-person attendance by the

employee at mediation is not “plainly erroneous or inconsistent

with the [rules],” Auer, 519 U.S. at 461, we hold that neither the

CAA nor the Office’s procedural rules require the employee’s

in-person attendance at counseling or mediation.

19

IV.

The question remains whether, as appellants contend, the

CAA required the district court to accept the Office’s end-of-

counseling and end-of mediation notices as demonstrating that

the officers “completed counseling under section 1402 of this

title and mediation under 1403 of this title” as section 1408(a)

requires. Again we look to the text and structure of the CAA.

King, 552 U.S. at 218, 221.

Section 1403(c) provides: “The Office shall notify in

writing the covered employee and the employing office when

the mediation period has ended.” By contrast, section 1408(a)

grants the court jurisdiction over the civil action of “a covered

employee who has completed counseling . . . and mediation.”

Id. § 1408(a). Although use of the words “completed” and

“mediation,” as opposed to the words “ended” and “period”

might suggest that Congress intended the two provisions to refer

to different things, see Burlington N. Santa Fe Ry. Co. v. White,

548 U.S. 53, 62-63 (2006); Russello v. United States, 464 U.S.

16, 23 (1983), the text and the statutory scheme reveal that the

different terms reflect the different stages of the process rather

than signaling unspecified requirements for “actual mediation,”

as the Police Board offers. Despite subtle differences,3 the two

3

Congress used the verb “end” in section 1403(b) in its

intransitive form, meaning: “to come to an end.” MERRIAM

WEBSTER’S COLLEGIATE DICTIONARY 381 (10th ed. 1993); see

also “End,” THE AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE (4th ed. 2009). The definition of the

transitive verb “complete” is: “1: to bring to an end and

especially into a perfected state[, as in] complete a painting[;]

2a: to make whole or perfect[, as in] its song completes the

charm of this bird[;] b: to mark the end of[, as in] a rousing

chorus completes the show[;] c: to execute, fulfill[, as in]

20

terms are quite similar in context, both embracing the idea of an

“end” to mediation. Consistent with Congress’s intention to

afford the employing office a time-limited opportunity to seek

informal resolution of an employee’s claim, Congress’s use of

the word “completed” in section 1408(a) must therefore refer to

the employee’s acts of timely requesting counseling and

mediation, not thwarting mediation by failing to give the

employing office notice of the claim upon request, and receiving

notice of the end of mediation before filing suit. This

interpretation of “completed” is consistent with the dictionary

definitions of the term and also with the statutory scheme,

which, as explained below, provides for strict confidentiality of

the mediation process and vests in the Office, subject to strict

time limits, broad authority to tailor the content of counseling

and mediation to the circumstances of individual cases.

Congress’s inclusion of provisions requiring the Office to

issue written notices of the end of counseling and the end of

mediation must be read in light of the provisions on

confidentiality. Those provisions, sections 1416(a) and (b),

provide that counseling and mediation, respectively, “shall be

strictly confidential.” 2 U.S.C. § 1416(a) & (b); see also OC

Rules 2.03(e), 2.04(j), 2.10. A separate provision protects the

appointed mediator from “subpoena or any other compulsory

process with respect to the same matter.” 2 U.S.C. § 1403(d).

By so providing, Congress understood what courts and

commentators acknowledge, namely, that confidentiality plays

a key role in the informal resolution of disputes, see, e.g., Beazer

complete a contract.” WEBSTER’S at 235; see also “Complete,”

THE AMERICAN HERITAGE DICTIONARY. Being transitive (“a

covered employee who has completed”), the word “complete”

implies some action on the part of the employee, whereas the

mediation period “ends” when the time period elapses,

regardless of any action taken by any party.

21

East, Inc. v. Mead Group, 412 F.3d 429, 435 (3d Cir. 2005); see

also Local 808 v. Nat’l Mediation Bd., 888 F.2d 1428, 1435-36

(D.C. Cir. 1989) (citing P. PRASOW & E. PETERS, ARBITRATION

AND COLLECTIVE BARGAINING 234 (1970)); see generally

KOVACH at 263-66. In light of these confidentiality provisions,

Congress’s provision for end of counseling and mediation

notices must be understood as a mechanism to eliminate

potential ambiguities about when an employee completed those

processes and when the time begins to run for the employee to

make an election pursuant to section 1404. That counseling and

mediation remain strictly confidential indicates Congress’s

intent that the end of mediation notice serves to demonstrate an

employee’s completion of the process and to commence the

formal complaint proceedings contemplated by section 1404,

which begin anew the complaint and response dialogue between

the parties.

For the jurisdictional requirement in section 1408(a) to

mean more could create a catch-22 for the employee who,

having received a notice of the end of mediation, timely files a

complaint pursuant to section 1404 only to have his or her

complaint dismissed for failure to have successfully

“completed” mediation in the eyes of the court. Nothing in the

CAA suggests Congress intended courts to engage in a mini-trial

on the content of the counseling and mediation sessions, an

inquiry that would be fraught with problems. Indeed, the

colloquy during oral argument with Police Board counsel

demonstrates why. Counsel suggested that the district court

should determine whether claims were “actually mediated,” but

could neither identify what exactly an employee would need to

do in order to meet the “actual mediation” standard, nor explain

how much mediation would be enough. See Oral Arg. 33:28-

36:35. Moreover, unlike agency exhaustion in other contexts,

the purposes of counseling and mediation are not to compile a

record for judicial review but instead simply to afford the

22

employee and the employing office an opportunity to explore

and possibly resolve the employee’s claims informally. As

such, Congress expressly limited the ability of the court to

review the substance of compliance with these processes, 2

U.S.C. § 1403(d).

In addition to the confidentiality provisions, Congress’s

inclusion of strict time limits for counseling and mediation

reflects an intention to eliminate undue barriers to access to the

courts for resolution of the employee’s substantive claims.

Those provisions, sections 1402(b) and 1403(c), spell out rather

short periods of time for counseling and mediation. See 2 U.S.C.

§§ 1402(b), 1403(c).4 Additionally, section 1402(b) bars the

possibility of extending the counseling period, in fact providing

that the Office and the employee can agree to reduce it, and

section 1403(c) limits extensions of mediation to those instances

in which the parties jointly request an extension, thereby

4

Even so, the timetable under the CAA means, in general,

that completion of the counseling and mediation will take more than

three months before an employee will be in a position to elect further

remedies under 2 U.S.C. § 1404:

30 days for counseling

+ ~5 days for receipt of notice of end of counseling

+ 15 days after receipt to file for mediation

+ 30 days of mediation

+ ~5 days for receipt of notice of end of mediation

+ 30 days thereafter until an employee can file a suit

= ~115 days, or almost four months.

Combined with the 180-day limit for requesting counseling after an

alleged unlawful action and assuming an employee took the full 90

days after receipt of an end of mediation notice before filing suit,

almost a year could pass before a complaint was filed in the district

court.

23

permitting the employee a right to refuse to extend the mediation

period. These time limits reflect an intention to allow disputes

to move forward quickly, while at the same time affording the

employing office an opportunity to pursue the informal

resolution of disputes before they proceed to more formal

channels.

The Police Board’s contrary interpretation of the statutory

scheme would overlook these strict time limits and leave the

employee to wait until his claim is “actually mediated,”

Appellee’s Br. 38, 44, or be deemed to have “refus[ed] to

mediate [his] claim[ ],” id. at 39. But Congress required the

parties’ joint request to extend mediation, 2 U.S.C. § 1403(c),

thereby giving each party the prerogative to refuse to agree to

an extension and specifying no sanction upon such refusal.

Congress’s definition of “mediation” was limited both by the

explicit definition in section 1403(b) and the time limit set in

section 1403(c). The time limits Congress set evince a

determination that a 30-day mediation period would suffice to

give the employing office an opportunity — even if ultimately

unsuccessful — to consider resolution of its employee’s claims

informally. Furthermore, even granting the Police Board’s view

that the Office’s issuance of the notices of the end of mediation

was merely ministerial does nothing to undermine the role of the

notices in ensuring clarity for complaining employees. Receipt

of these notices commences the third step of the statutory

process, not unlike the right-to-sue letter that the EEOC must

issue under Title VII after 180 days of EEOC inaction, 42

U.S.C. § 2000e-5(f)(1).

The Police Board, the employing office here, further

overlooks its involvement through its counsel in discussions

with the officers and their representatives, as well as the Office’s

rejection of the parties’ joint request to extend mediation for

three months. It is true that Congress defined “mediation” as

24

involving “meetings with the parties,” 2 U.S.C. § 1403(b)(2);

see OC Rule 2.04(a), but Congress was also clear that such

meetings could occur “with the parties separately or jointly,” id.,

(in arguing in-person attendance was required, the Police

Board’s brief quotes only the former phrase, not the latter.

Appellee’s Br. at 45.), and the record shows that officers

represented by Attorney Ware, and possibly others, met with the

mediators and with counsel for the Police Board. Moreover, the

record shows that the Executive Director of the Office

determined that mediation should not be extended for the three

months the parties had jointly requested at the end of June 2001,

unless it was clear after one month’s extension that “the parties

are engaged in serious mediation efforts.” Notice of Extension

of Mediation (June 29, 2001). Although the Police Board

suggests the short time limits provided an equitable ground for

extending the mediation period for “actual mediation” of each

officer’s claims, such equitable considerations are irrelevant; the

court is not reviewing the Office’s refusal to extend the

mediation period based on its failure to take such equitable

considerations into account. The Police Board’s reference to

equitable considerations that could toll the statutory period to

allow “actual mediation” reflects a gloss on statutory language

that the words chosen by Congress do not support.

The scheme that Congress enacted in the CAA indicates, as

this court observed in regard to Title VII, that “Congress

contemplated that the exhaustion doctrine would be held within

limits consonant with the realities of the statutory scheme,”

President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980). “It is

not an end in itself; it is a practical and pragmatic doctrine that

. . . like other procedural devices, should never be allowed to

become so formidable a demand that it obscures the clear

congressional purpose of ‘rooting out . . . every vestige of

employment discrimination within the federal government.’” Id.

at 363 (citation omitted; second ellipsis in original). So, too,

25

courts must take care not to construe the CAA in such a manner

as to “erect a massive procedural roadblock to access to the

courts.” Id. at 362; see McRae v. Librarian of Congress, 843

F.2d 1494, 1496 (D.C. Cir. 1988) (internal quotations omitted).

Here appellants submitted, through their professional

association, materials that identified their claims and were

deemed by the Office to have requested counseling, and

received notices of the end of the counseling period from the

Office. Attorney Ware then requested mediation on behalf of

the officers he represented, in conformance with OC Rule

2.04(b), and participated in Office processes to engage in

mediation, but his clients ultimately concluded, as Congress

made clear they could, that they did not wish to extend

mediation further. That determination came after the Office had

turned down the parties’ joint request to extend mediation,

noting that if mediation efforts proved useful after one month,

requests for further extensions would be considered favorably.

At this juncture, end-of-mediation notices were issued by the

Office. Given Congress’s determination to hold itself

accountable in the same manner it previously required of the

other branches of government, “that wholesome objective would

be disserved by requiring in the name of exhaustion more of

[such officers] than [they] already [have] done,” Vance, 627

F.2d at 363. We therefore hold that the reference in section

1408(a) to “completed counseling . . . and mediation” means no

more than that the employee timely requested counseling and

mediation, that the employee did not thwart mediation by failing

to give notice of his or her claim to the employing office upon

request, that the mandated time periods have expired, and that

the employee received end of counseling and mediation notices

from the Office.

Finally, we observe that any good faith requirement that

may exist for completion of counseling and mediation would

present the district court with an opportunity for only a limited

26

inquiry. Although courts have recognized circumstances in

which a plaintiff so thwarted the administrative process as to

preclude judicial relief, see, e.g., Wrenn v. Sec’y, Dep’t of

Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990); Johnson

v. Bergland, 614 F.2d 415, 418 (5th Cir. 1980); Woodard v.

Lehman, 717 F.2d 909 (4th Cir. 1983); Edwards v. Dep’t of the

Army, 708 F.2d 1344 (8th Cir. 1983); Jordan v. United States,

522 F.2d 1128 (8th Cir. 1975), this court has recognized that

those cases involved extreme situations in which “the

complainants rest[ed] on vague allegations of discrimination and

refuse[d] to provide any details or dates, thus completely

frustrating the agencies’ ability to investigate complaints.”

Wilson v. Peña, 79 F.3d 154, 165 (D.C. Cir. 1996). Nothing in

the record described herein suggests appellants did not proceed

in good faith.

Accordingly, we hold that under the CAA, counseling and

mediation are jurisdictional requirements, with the consequence

that the doctrine of vicarious exhaustion does not apply. We

also hold that the CAA does not require the officers to attend

counseling and mediation in person. Finally, because the receipt

of end of mediation notices documented completion of

counseling and mediation under section 1408(a), we remand the

cases to the district court.5

5

On remand, the district court shall determine which officers

made timely requests under sections 1402 and 1403 and provided

notices of their claims upon request, and which officers received end

of mediation notices and made timely elections pursuant to section

1404.