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.