Barkley v. United States Marshals Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2014 Decided September 5, 2014

No. 12-5306

ANN J. BARKLEY, ET AL.,
APPELLANTS

v.

UNITED STATES MARSHALS SERVICE, BY AND THROUGH
DIRECTOR STACIA HYLTON AND ANY SUCCESSOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-01484)

Phoebe L. Deak argued the cause for appellants. With
her on the brief was John A. Tucker.

Sydney A. Foster, Attorney, U.S. Department of Justice,
argued the cause for appellees United States Marshals Service
and Stacia A. Hylton. On the brief were Stuart F. Delery,
Assistant Attorney General, Ronald C. Machen Jr., U.S.
Attorney, and Marleigh D. Dover and Stephanie R. Marcus,
Attorneys.

Michelle E. Shivers was on the brief for appellee Akal
Security, Inc.
 2
Kurt N. Peterson entered an appearance.

Before: ROGERS, SRINIVASAN and MILLETT, Circuit
Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: The United States Marshals
Service contracts with private security companies for the
provision of security officers in the federal courts. The
Marshals Service requires officers to undergo annual medical
examinations to assure their continued medical fitness for the
position. A government physician reviews an officer’s annual
examination to determine the officer’s medical status. If the
physician initially determines the officer to be medically
disqualified, the officer is given the opportunity to submit
additional medical information. If the additional information
fails to demonstrate the officer’s medical qualification, the
officer may no longer work under his security company’s
federal contract as a court security officer.

Former officers who had been medically disqualified
from serving as federal court security officers brought an
action against the Marshals Service. They alleged that the
procedures culminating in their dismissals failed to satisfy the
Due Process Clause, and that their dismissals had been
motivated by discrimination in violation of the Rehabilitation
Act. The officers also sued the private security companies
that employed them under the Americans with Disabilities
Act.

The district court granted summary judgment to the
Marshals Service on the due process claim, finding that the
process afforded to the officers satisfied constitutional
requirements. The court rejected the Rehabilitation Act
 3
claims of most of the plaintiffs on the ground that they had
failed to exhaust administrative remedies. The court also
denied the plaintiffs leave to amend their complaint to add
claims under the Rehabilitation Act and Americans with
Disabilities Act for a number of recently terminated officers.
We affirm the grant of summary judgment on the due process
claims and the dismissal of the Rehabilitation Act claims for
failure to exhaust, but reverse the denial of leave to amend the
complaint.

I.

A.

The United States Marshals Service bears responsibility
to provide security for the federal courts. 28 U.S.C. § 566(a).
In fulfilling that duty, the Marshals Service contracts with
private security companies to supply court security officers
for federal courthouses. Although the Marshals Service
specifies the standards and qualifications for the officers, they
are employees of the private security companies. Under the
agreement between the Marshals Service and the security
companies, “[a]ny employee provided by the Contractor that
fails to meet the requirements of the Contract . . . may be
removed from performing services for the Government under
[the] Contract upon written request of [the Marshals Service
officer overseeing the contract].” Supp. App. 27-28.

In 1997, a committee of the U.S. Judicial Conference
expressed concerns about the ability of court security officers
to respond to security threats. The Judicial Conference, in
conjunction with the Marshals Service, asked the U.S. Public
Health Service to study the medical standards for the officers.
The Marshals Service implemented a number of
recommendations made by the U.S. Public Health Service.
 4
One new procedure implemented by the Marshals Service
requires each officer to undergo an annual medical
examination to assure the officer’s medical qualification for
the position. The initial medical examination is conducted by
a physician selected by the officer’s private security company
and approved by the office of Federal Occupational Health, a
component of the U.S. Public Health Service. That
examination produces a medical file that is provided to the
private security company and forwarded to the Marshals
Service. The Marshals Service, in turn, sends the file to the
office of Federal Occupational Health for review by a
government physician with experience in law enforcement-
related occupational medicine. If the government physician
determines that the officer is medically qualified, the process
ends and the officer continues in his position.

If the government physician finds either that she lacks
adequate information with which to make an assessment or
that the officer may have a disqualifying condition, the
physician requests additional information (unless an
emergency situation requires immediate termination). The
physician sends a medical review form to the Marshals
Service, which then submits the form to the officer’s security
company. The form is addressed to the officer. It explains
the concerns of the physician and describes the additional
information needed. Ordinarily, the officer can obtain that
information from a personal physician. The Marshals Service
gives the security company thirty days to respond. If the
Marshals Service does not receive a timely response, it can
send an additional request or can order the security company
to remove the officer from her position as a court security
officer under the government contract. If, after receiving
additional information, the government physician concludes
that the officer is medically disqualified, the Marshals Service
sends a disqualification letter to the company. The company
 5
must then remove the employee as a court security officer
under the contract (but can reassign the employee elsewhere).

B.

The plaintiffs are former federal court security officers
who had been removed from their service under government
contracts after the Marshals Service determined they were
medically disqualified. Fifty-four former officers, and their
union, the United Government Security Officers of America
International Union, sued the Marshals Service under the Due
Process Clause. They challenged the procedures by which the
officers were deemed medically disqualified to continue their
service under the government contracts. The individual
plaintiffs also raised claims under the Rehabilitation Act, 29
U.S.C. §§ 701 et seq., against the Marshals Service, and
claims under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq., against three private security
companies that employed them. The plaintiffs also sought
certification of a class in connection with the Rehabilitation
Act and ADA claims.

In September 2006, the district court determined that only
four of the plaintiffs could proceed with Rehabilitation Act
claims against the Marshals Service. See Int’l Union v. Clark,
No. 02-1484, 2006 WL 2598046, at *12 (D.D.C. Sept. 11,
2006). Finding that only five officers had properly exhausted
administrative remedies (and that one of those five officers
faced a separate bar against going forward under res judicata
principles), the district court granted judgment on the
pleadings to the Marshals Service on the Rehabilitation Act
claims of all plaintiffs except the four who had exhausted
administrative remedies. Id. at *12, n.19. The court relied on
this court’s decision in Spinelli v. Goss, 446 F.3d 159, 162
(D.C. Cir. 2006), which held that there is no jurisdiction over
 6
the Rehabilitation Act claims of individuals who failed to file
any administrative complaint. See Clark, 2006 WL 2598046,
at *10.

In a subsequent order, the district court denied the
plaintiffs’ motion for class certification on the Rehabilitation
Act claims. The court explained that, after it dismissed the
bulk of the Rehabilitation Act claims for failure to exhaust
administrative remedies, the class was not “so numerous as to
make joinder impracticable.” Clark, No. 02-1484, 2006 WL
2687005, at *5-*6 (D.D.C. Sept. 12, 2006). In addition, the
named representatives could not adequately represent the
class because they had failed to exhaust the special
administrative procedures for class claims. See id. at *6-*7.

In October 2006, the plaintiffs sought leave to file a fifth
amended complaint, which would add twelve former officers
as plaintiffs along with any future terminated officers. The
newly added officers, according to the motion, had “the same
claims as Plaintiffs against Defendant [Marshals Service] for
the violation of their Fifth Amendment rights to due process.”
Pls.’ Mot. for Leave 2. The proposed complaint attached to
the motion also added Rehabilitation Act and ADA claims by
the new officers. The district court granted leave to amend
the complaint. But in response to a motion for clarification,
the court barred the new plaintiffs from asserting claims under
the Rehabilitation Act or ADA. Clark, No. 02-1484, slip op.
at 3 (D.D.C. Sept. 20, 2007). In denying reconsideration, the
court explained that the plaintiffs’ initial motion explicitly
requested the addition only of claims under the Due Process
Clause. Clark, No. 02-1484, slip op. at 2-3 (D.D.C. Jan. 22,
2009).

In 2008, the plaintiffs and the Marshals Service filed
cross-motions for summary judgment with regard to the due
 7
process claims. The district court granted summary judgment
to the Marshals Service. The court concluded that the officers
held a constitutionally protected property interest in their
employment, but that they had received constitutionally
adequate process before being deprived of that interest.
Clark, 706 F. Supp. 2d 59, 65-71 (D.D.C. 2010).

Another set of former officers brought parallel claims
against the same parties in a separate case, Neal v. Reyna, No.
05-07 (D.D.C. filed Jan. 4, 2005). The district court
consolidated the two cases. Consistent with its prior rulings,
the court determined that the Neal plaintiffs who had failed to
exhaust administrative remedies could not proceed on their
Rehabilitation Act claims, and the court granted summary
judgment to the Marshals Service on the due process claims.
See Clark, 878 F. Supp. 2d 127, 137 (D.D.C. 2012); Clark,
704 F. Supp. 2d 54, 63 (D.D.C. 2010).

The plaintiffs now appeal (i) the district court’s grant of
summary judgment against them on their due process claims,
(ii) the rejection of their Rehabilitation Act claims for failure
to exhaust administrative remedies, and (iii) the denial of
leave to add Rehabilitation Act and ADA claims in the fifth
amended complaint. We discuss each of those issues in turn.

II.

In examining the plaintiffs’ claim of a violation of
procedural due process, we apply “a familiar two-part
inquiry”: we “determine whether the plaintiffs were deprived
of a protected interest, and, if so, whether they received the
process they were due.” UDC Chairs Chapter, Am. Ass’n of
Univ. Professors v. Bd. of Trs. of the Univ. of the Dist. of
Columbia, 56 F.3d 1469, 1471 (D.C. Cir. 1995) (internal
quotation marks omitted). We need not resolve whether the
 8
plaintiffs possessed a “protected interest” in their continued
service under a federal government contract because, even if
so, the Marshals Service’s medical review procedures
afforded the officers “the process they were due.” Id.

“An essential principle of due process is that a
deprivation of life, liberty, or property ‘be preceded by notice
and opportunity for hearing appropriate to the nature of the
case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950)). Here, both the notice and the
opportunity for hearing given to the plaintiffs met the
requirements of the Due Process Clause.

A.

To satisfy due process, notice must be “reasonably
calculated to reach interested parties.” Mullane, 339 U.S. at
318. Here, when a government physician reviewing a court
security officer’s file identified a need for further medical
information, the physician requested the information through
a medical review form. The Marshals Service sent the form
to the security company employing the officer. If an officer
failed to respond to the first request, moreover, a second form
might be sent. Forms were sent to an officer’s employer but
were addressed to the individual officer, and the plaintiffs
identify no record evidence of any officer who failed at least
to receive timely notice of the need to submit additional
medical documentation. Indeed, the Marshals Service might
well have reasonably viewed a response to be more likely if
the officer’s employer was made party to the interaction: the
companies’ contracts with the Marshals Service obligated
them to “ensure that [officers] comply with the [Marshals
Service’s] request for follow-up or clarifying information
regarding treatment measures.” Supp. App. 24. Sending a
 9
form addressed to the officer through the officer’s employer,
with the employer in turn contractually bound to assure a
response by its employee, readily constitutes notice
“reasonably certain to inform those affected.” Dusenbery v.
United States, 534 U.S. 161, 169 (2002) (quoting Mullane,
339 U.S. at 315).

The medical review form also “provided an accurate
picture of what was at stake,” Brown v. Plaut, 131 F.3d 163,
172 (D.C. Cir. 1997), and adequately explained how an
officer should respond. The form stated that the officer “has
medical findings which may hinder safe and efficient
performance of essential job functions” and asked for “the
following detailed or diagnostic medical information.” See,
e.g., J.A. 346. It then explained that, “if further information is
not provided, a determination will be made based on available
medical information.” Id. Officers reviewing the form would
have understood the significance of the matter, and that,
because the inquiry concerned their “performance of essential
job functions,” their continued employment was in question.
See id. The form also adequately communicated the
information requested from the officer. As an example, one
officer was asked to have “[his] treating physician provide a
report regarding [his] diabetes control,” including “[his]
current diabetic condition and what [was] being done to
manage [his] diabetes,” a “history of all medications,
including type and dosage adjustments over the past 2 years,”
a “copy of all labs taken over the past 2 years,” and “any
evidence of medical complications . . . and hypoglycemic
episodes in the past 2 years.” See id. As that example
illustrates, the forms supplied “notice . . . of such nature as
reasonably to convey the required information.” Mullane,
339 U.S. at 314.
 10
B.

We consider the adequacy of the officers’ opportunity to
be heard through the lens of the three factors set out in
Mathews v. Eldridge: “First, the private interest that will be
affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. 319, 335
(1976). The Third Circuit, reviewing a substantially similar
claim under the Mathews factors, held that the Marshals
Service’s medical review procedures afforded officers
constitutionally sufficient process. See Wilson v. MVM, Inc.,
475 F.3d 166, 178-79 (3d Cir. 2007). We reach the same
conclusion.

A security officer has a substantial interest in maintaining
his or her employment, see Loudermill, 470 U.S. at 543, and
we assume for purposes of this decision that the interest
extends to maintaining service as a court security officer
under a federal government contract. “[D]ue process
normally requires pre-termination proceedings of some kind
prior to the discharge of employees with constitutionally
protected interests in their jobs.” Washington Teachers’
Union Local No. 6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C.
Cir. 1997). Here, the officers were accorded “pre-termination
proceedings of some kind.” Those proceedings adequately
limited the risk of an erroneous decision while vindicating the
government’s weighty interests in assuring courthouse
security.
 11
Before an officer could be terminated for reasons of
medical fitness, the officer was given the opportunity to
supply additional medical information responding to the
specific concerns of the physician charged with making the
final decision. Contrary to the plaintiffs’ contention, there
was no need to give an officer an oral hearing as well. Unlike
circumstances in which questions of credibility and veracity
are centrally in issue, in which event an oral hearing can be
especially useful, the assessment of an officer’s medical
qualifications suitably turns on an experienced physician’s
review of written medical records. See Mathews, 424 U.S. at
344-45 (noting “reliability and probative worth of written
medical reports,” and observing that “potential value of an . . .
oral presentation to the decisionmaker[] is substantially less in
this context”) (internal quotation marks omitted).

The government physicians responsible for the final
determination, moreover, serve as neutral decisionmakers.
Cf. Parham v. J.R., 442 U.S. 584, 607 (1979) (concluding that
“staff physician” is neutral decisionmaker in connection with
voluntary admission of children to mental hospitals “so long
as he or she is free to evaluate independently” the “mental and
emotional condition and need for treatment”). A government
physician independently reviews each officer’s medical
records and reaches an individualized determination. The
plaintiffs point to no evidence showing that the deciding
physician is biased or non-independent. Instead, relying on
our decision in Propert v. District of Columbia, 948 F.2d
1327 (D.C. Cir. 1991), the plaintiffs contend that officers are
constitutionally entitled to the review of a second, neutral
decisionmaker. In Propert, a police officer determined
whether a car had been abandoned as “junk”— allowing it to
be towed and destroyed—by assessing whether “you [would]
take your mother to church in it.” Id. at 1333 (alteration in
original). The car owner could attempt to appeal the “junk”
 12
assessment only to the same officer who had made the
original assessment. We required a separate decisionmaker in
part because the officer’s standard was “particularly
subjective.” See id. No comparable subjectivity inheres in
the assessment of medical qualifications at issue here so as to
require the review of a second medical professional,
particularly when taking into account the government’s
interests in prompt and efficient determinations affecting
courthouse security.

The plaintiffs highlight the case of one former officer,
Felipe Jorge-Rodriguez, in an effort to demonstrate that the
Marshal Service’s procedures produce erroneous decisions.
“[P]rocedural due process rules,” however, “are shaped by the
risk of error inherent in the truthfinding process as applied to
the generality of cases, not the rare exceptions.” Mathews,
424 U.S. at 344. In any event, the record shows no deficiency
in the process resulting in Officer Jorge-Rodriguez’s
termination. He received two notices requesting additional
medical information. He responded to the second, but the
government physician made a determination of medical
disqualification based on the information then available,
resulting in Officer Jorge-Rodriguez’s dismissal. The
plaintiffs now assert that, two weeks after his dismissal,
Officer Jorge-Rodriguez submitted additional medical
information disproving one of the bases for his
disqualification. But even accepting the plaintiffs’ account of
the additional information’s probative value, the failure to
submit that information in a timely fashion suggests an
inadequacy in the individual’s response, not an inadequacy in
the Marshals Service’s procedures. Those procedures
satisfied the Due Process Clause.
 13
III.

We next consider the district court’s rejection of the
claims under the Rehabilitation Act of those plaintiffs who
failed properly to exhaust administrative remedies. The Act
requires individuals to exhaust administrative remedies before
filing suit in federal district court. 29 U.S.C. § 794a(a)(1); see
Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). As this
court has explained, “the required recourse to administrative
review has special prominence with respect to the . . . claims
of federal employees.” Kizas v. Webster, 707 F.2d 524, 543
(D.C. Cir. 1983).

Whereas the exhaustion requirement for discrimination
claims against private employers involves the filing of a
charge with the Equal Employment Opportunity Commission
(EEOC), claims against a federal agency—such as the
Rehabilitation Act claims in this case—must initially be
brought before the employing agency itself. See id. at 543-44.
The obligation to initiate one’s claim in the government
agency charged with discrimination is “part and parcel of the
congressional design to vest in the federal agencies and
officials engaged in hiring and promoting personnel primary
responsibility for maintaining nondiscrimination in
employment.” Id. (internal quotation marks omitted). The
requirement of “initial recourse to [an] agency” manifests a
“carefully structured scheme for resolving charges of
discrimination within federal agencies” when possible,
limiting the need for resort to judicial proceedings. See id. at
546. And because the “requirement that the aggrieved
employee first seek an administrative resolution” before the
employing government agency constitutes a precondition to
bringing “suit against the sovereign,” it, like any condition on
the waiver of sovereign immunity, commands strict
adherence. See McIntosh v. Weinberger, 810 F.2d 1411,
 14
1424-25 (8th Cir. 1987), vacated on other grounds and
remanded sub nom. Turner v. McIntosh, 487 U.S. 1212
(1988); see also Lane v. Pena, 518 U.S. 187, 192 (1996)
(applying obligation to “strictly construe[]” any “waiver of
the Government’s sovereign immunity” to claims under the
Rehabilitation Act); Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 94 (1990).

The relevant administrative remedies for discrimination
claims against federal agencies—including under the
Rehabilitation Act—contain distinct procedures for individual
actions and class actions. See 29 C.F.R. § 1614.106
(“Individual complaints”); id. § 1614.204 (“Class
complaints”). Here, thirty-eight plaintiffs appeal the rejection
of their Rehabilitation Act claims for failure to exhaust those
administrative remedies. None of the appealing plaintiffs
properly exhausted administrative remedies for their
individual claims. Nor did any plaintiff attempt to invoke the
administrative procedure for class claims. Five former
officers who were plaintiffs at the time of the district court’s
rulings on exhaustion, however, did timely exhaust
administrative remedies for their individual claims.

The plaintiffs appealing dismissal of their Rehabilitation
Act claims argue that, although none of them personally
exhausted administrative remedies for their individual claims,
the doctrine of “vicarious exhaustion” should permit them to
proceed with their suits. That doctrine functions as an
exception to the ordinary requirement that each plaintiff must
have exhausted administrative remedies. It allows an
individual to treat her claim as having been exhausted,
notwithstanding her failure personally to have done so, if her
claim and that of a person who did personally exhaust “are so
similar that it can fairly be said that no conciliatory purpose
would be served by filing separate [administrative claims].”
 15
Foster v. Gueory, 655 F.2d 1319, 1322 (D.C. Cir. 1981).
Here, the appealing plaintiffs contend that vicarious
exhaustion enables them to piggyback on the administrative
complaints of the five officers who properly exhausted
individual remedies. We are unpersuaded.

In Spinelli v. Goss, we held that a district court lacks
jurisdiction over a Rehabilitation Act claim if “there was no
administrative complaint [filed] and thus no final disposition
of one.” 446 F.3d at 162. Here, the district court understood
Spinelli to establish that the Rehabilitation Act’s exhaustion
requirement is jurisdictional and to thus bar application of
vicarious exhaustion principles for claims under that Act. Cf.
Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699,
706 (D.C. Cir. 2009) (“Because we hold that the
[Congressional Accountability Act]’s counseling and
mediation requirements are jurisdictional, the district court
. . . was not empowered to apply the equitable doctrine of
vicarious exhaustion to excuse compliance with those
requirements.”). The plaintiffs contend that Spinelli, which
did not address the doctrine of vicarious exhaustion, does not
foreclose application of the doctrine here. We need not
resolve that issue. Instead, we affirm the district court’s
dismissal of plaintiffs’ Rehabilitation Act claims for a
different reason: vicarious exhaustion is unavailable in the
circumstances of this case unless some individual exhausted
the administrative procedure for a class complaint.

A review of the EEOC’s class administrative procedures
provides the background for understanding the unavailability
of vicarious exhaustion in this case. The Civil Service
Commission, whose equal opportunity enforcement powers
were later transferred to the EEOC, promulgated rules
governing class administrative remedies in cases of
discrimination brought against federal employers. See 29
 16
C.F.R. § 1614.204. (There is no such class administrative
remedy for discrimination claims against private employers.)
A class administrative complaint against a federal employer
must allege numerosity, commonality, typicality, and adequate
representation—mirroring the requirements for class actions
under Federal Rule of Civil Procedure 23. Compare id.
§ 1614.204(a)(2), with Fed. R. Civ. Proc. 23. The complaint
must also identify the policy or practice adversely affecting
the class. 29 C.F.R. § 1614.204(c)(1). An administrative
judge determines whether to certify the class, and, following
any grant of certification, supervises discovery and
adjudicates the complaint. Id. § 1614.204(b), (f). After a
final action on the class complaint, or after passage of 180
days after filing without a final action, the class agent (or
another individual who sought relief pursuant to the class
administrative complaint) can bring an action in district court.
See id. § 1614.407.
Those class administrative procedures “create[] a detailed
scheme markedly different than the administrative mechanism
for addressing individual discrimination claims.” Gulley v.
Orr, 905 F.2d 1383, 1384 (10th Cir. 1990) (per curiam);
compare 29 C.F.R. § 1614.106, with 29 C.F.R. § 1614.204.
The class procedures give the federal agency an “opportunity
to discover and correct discriminatory practices that may
amount to class-wide discrimination.” Patton v. Brown, 95
F.R.D. 205, 208 (E.D. Pa. 1982). Relatedly, the class
mechanism affords the affected government agency notice of
the potential scale of a multiple-employee complaint,
promoting efficient administration of system-wide relief. See
McIntosh, 810 F.2d at 1425 (“If the agency is to attempt to
resolve the [class] grievance, and if a usable record is to be
assembled, the nature of the complaint must be defined.”).
An agency’s awareness of the scope of a dispute could also
make resolution in the administrative phase more likely,
 17
potentially affording relief to a larger class of affected
individuals and alleviating the need for resort to judicial
proceedings. Cf. Tolliver v. Xerox Corp., 918 F.2d 1052, 1058
(2d Cir. 1990) (“[T]here must be some indication that the
grievance affects [a large group] . . . . [to] alert[] the EEOC
that more is alleged than an isolated act of discrimination and
afford[] sufficient notice to the employer to explore
conciliation with the affected group.”); McIntosh, 810 F.2d at
1425 (“An administrative proceeding . . . based on guesswork
by the [government] is likely to be a waste of time for all
concerned.”).
“In light of the distinct administrative mechanism created
specifically to address class claims of discrimination,” courts
have generally held that “exhaustion of individual
administrative remedies is insufficient to commence a class
action in federal court.” Gulley, 905 F.2d at 1385 (collecting
cases). Rather, to bring a class action, there must have been
an exhaustion of “class administrative remedies.” Id.; see
McIntosh, 810 F.2d at 1424-25. Allowing a class action to
proceed in federal court even if there has been no exhaustion
of class administrative procedures would undermine the
important objectives served by bringing a class claim before
the government agency in an effort to attain class-wide,
administrative resolution. Here, however, no plaintiff invoked
(much less exhausted) the class administrative process. The
district court, therefore, was required to dismiss the class
claims under the Rehabilitation Act for failure to exhaust
administrative remedies.
The same result must also obtain with respect to the
individual Rehabilitation Act claims of those plaintiffs who
failed properly to exhaust. Forty-five plaintiffs asserted
individual claims, 4th Am. Compl. ¶ 92, and those individual
claims involve precisely the same programmatic allegations
as the claims asserted on behalf of the class, see id. ¶¶ 10, 16,
 18
93-97. The lion’s share of the plaintiffs—all but five—failed
properly to exhaust their individual claims before the agency.
The government therefore was not made aware during the
administrative phase that numerous individuals sought to
press similar claims. Any plaintiff could have invoked and
exhausted class administrative proceedings, in which event
the Marshals Service would have been “given the opportunity
to discover and correct discriminatory practices that may
amount to class-wide discrimination.” Patton, 95 F.R.D. at
208. No plaintiff did so, however, frustrating the objective of
the class administrative process to enable the fashioning of
program-wide relief under the coordination of the affected
agency.
Vicarious exhaustion allows a plaintiff to overcome his or
her own failure to satisfy the statutory requirement to exhaust
administrative remedies if “it can fairly be said that”
exhaustion would serve “no conciliatory purpose.” Foster,
655 F.2d at 1322. That cannot be said about the failure to
exhaust the class administrative process here. A fundamental
object of the class administrative mechanism is to promote a
government agency’s awareness of, and ability to resolve, an
allegedly program-wide problem. Those important objectives
are no less salient when more than forty plaintiffs attempt to
bring unexhausted individual actions challenging a common
practice than when they bring a class action challenging the
same practice. And we are aware of no reason to suppose that
the class administrative mechanism would have been
unavailable in this case or futile to pursue. To the contrary,
the plaintiffs sought to bring class claims in district court
conditioned on satisfying essentially the same criteria—such
as numerosity, commonality, and typicality—that would have
attended a class administrative complaint. Compare 29 C.F.R.
§ 1614.204(a)(2), with Fed. R. Civ. Proc. 23. Nor is there any
question that group litigation was intended by the time of
 19
administrative exhaustion: the three named class plaintiffs
who did exhaust did so less than three months before the
motion for class certification was filed. And although the
district court ultimately denied class certification on
numerosity grounds, that was only because of the small
number of plaintiffs whose Rehabilitation Act claims
remained after rejection of the bulk of those claims for failure
to exhaust individual administrative remedies.
Another court of appeals, albeit in an unpublished
opinion, likewise disallowed vicarious exhaustion for a group
of plaintiffs because of the failure of any individual to exhaust
a class administrative complaint. See Williams v. Henderson,
129 Fed. Appx. 806, 812 (4th Cir. 2005) (per curiam). None
of our previous decisions adopts a contrary approach. Foster
v. Gueory allowed vicarious exhaustion, but that case
involved a private employer, 655 F.2d at 1320, 1323, as to
which the class administrative mechanism does not apply. In
Cook v. Boorstin, 763 F.2d 1462 (D.C. Cir. 1985), we
recognized vicarious exhaustion in the context of an action
against the Library of Congress, but the plaintiffs in that case
exhausted class administrative remedies before filing suit in
federal district court. See id. at 1463, 1465. Cook aligns with
today’s decision because the exhaustion of class
administrative remedies was deemed sufficient to allow the
plaintiffs to proceed with their individual claims. Accord
Artis v. Bernanke, 630 F.3d 1031, 1039 (D.C. Cir. 2011)
(allowing vicarious exhaustion under regulations for Federal
Reserve employees where named plaintiffs had submitted
administrative class complaint).
Finally, in De Medina v. Reinhardt, 686 F.2d 997, 1012-
13 (D.C. Cir. 1982), we allowed vicarious exhaustion for
individual claims of discrimination against a federal agency.
There had been no exhaustion of class administrative
remedies in that case, but it is far from clear that the class
 20
administrative procedures were available at the time of the
discriminatory acts: those procedures came into being in
1977, see 42 Fed. Reg. 11,807 (Mar. 1, 1977), and the
discrimination in De Medina dated back to 1974. At any rate,
even if the class administrative mechanism was in theory
available to the plaintiffs in De Medina, there is no indication
that the court considered whether the plaintiffs should have
exhausted a class administrative complaint. That is
understandable, as the decision ultimately allowed only one
plaintiff to piggyback on the complaint of one other plaintiff
who had exhausted. Id. at 1012-13. It may well have been
futile—e.g., for reasons of numerosity—for the two plaintiffs
to initiate a class administrative complaint. In this case, by
contrast, there is no reason to suppose that the class
administrative mechanism would have been unavailable to the
more than forty plaintiffs who jointly brought discrimination
claims challenging a common practice.
The plaintiffs here seek to overcome their failure
personally to exhaust their discrimination claims against the
government by resort to the doctrine of vicarious exhaustion.
We conclude that the plaintiffs cannot do so when there has
been no exhaustion of a class administrative complaint, at
least in the circumstances presented here—i.e., where there
were no exceptional barriers to undertaking class exhaustion
and class litigation was intended at the time exhaustion was or
could have been pursued.
IV.

The plaintiffs finally contend that the district court
abused its discretion when it denied leave to include the
claims of twelve new plaintiffs under the Rehabilitation Act
and ADA in the fifth amended complaint. We agree with the
plaintiffs.
 21
Federal Rule of Civil Procedure 15(a) allows a plaintiff to
amend a complaint “once as a matter of course” within
twenty-one days after service of a defendant’s answer or Rule
12 motion. See Fed. R. Civ. P. 15(a)(1). Subsequent
amendments are governed by Rule 15(a)(2) and require either
“the opposing party’s written consent or the court’s leave.”
Id. 15(a)(2). “The court should freely give leave when justice
so requires.” Id.

The Supreme Court in Foman v. Davis, 371 U.S. 178
(1962), elaborated on the expectation that courts would
“freely give leave” under Rule 15(a)(2):

In the absence of any apparent or declared
reason—such as undue delay, bad faith or
dilatory motive on the part of the movant,
repeated failure to cure deficiencies by
amendments previously allowed, undue
prejudice to the opposing party by virtue of
allowance of the amendment, futility of
amendment, etc.—the leave sought should, as
the rules require, be “freely given.”

Foman, 371 U.S. at 182. If the district court denies leave, it
must state its reasons, as an “outright refusal to grant the leave
without any justifying reason appearing for the denial is not
an exercise of discretion; it is merely abuse of that discretion
and inconsistent with the spirit of the Federal Rules.” Id.

Here, the district court’s primary reason for denying
leave to add claims under the Rehabilitation Act and ADA
was that the plaintiffs, in their motion, made express reference
only to the addition of due process claims. The motion stated
that the newly added plaintiffs “have the same claims as
Plaintiffs . . . for the violation of their Fifth Amendment rights
 22
to due process,” but it made no comparably explicit reference
to Rehabilitation Act or ADA claims. Pls.’ Mot. for Leave 2.
The motion otherwise made apparent, however, that the new
plaintiffs sought to bring discrimination claims under those
statutes as well. It explained that the new plaintiffs “timely
filed administrative complaints and exhausted . . .
administrative remedies,” id. at 3, a statement with relevance
only to the discrimination claims (given the absence of any
exhaustion requirement for the due process claims). It also
explained that there would have been no need to seek leave
for new plaintiffs to be added to the case “had the Motion for
Class Certification been granted,” citing the Supreme Court’s
decision in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345
(1983), for the proposition that “employees with
discrimination claims [as] part of [a] putative class have their
statutes of limitations tolled until the court issues a decision
on class certification.” Pls.’ Mot. for Leave 3. That
explanation likewise pertained solely to the Rehabilitation Act
and ADA claims, the only ones for which the plaintiffs had
sought to certify a class.

It is no surprise, then, that the proposed fifth amended
complaint attached to the motion expressly included claims
under the Rehabilitation Act and ADA, an unambiguous
indication that the new plaintiffs sought to bring those claims.
The Marshals Service and the security companies, in their
opposition to the plaintiffs’ motion, correspondingly
understood the motion to seek leave to add discrimination
claims, and responded accordingly. While the district court
observed that granting leave to add those claims would
“deprive Defendants of a full opportunity to state their
objections and would invite manipulation of the amendment
process by future litigants,” Clark, No. 02-1484, slip op. at 3
(D.D.C. Sept. 20, 2007), the defendants understood that the
 23
plaintiffs sought to bring those claims and made responsive
arguments in their opposition filing.

When it denied reconsideration, the district court stated
that “the Defendants will be prejudiced if the new Plaintiffs’
disability discrimination claims are added to the case at this
late date. There will be delay; there will be substantial
expenses for expert witnesses and evaluations; and, of course,
there will be additional attorneys’ fees.” Clark, No. 02-1484,
slip op. at 3 (D.D.C. Jan. 22, 2009). It is not clear, however,
that the court viewed those concerns as independently
sufficient grounds for declining to grant leave. And the grant
of leave to amend a complaint might often occasion some
degree of delay and additional expense, but leave still should
be “freely given” unless prejudice or delay is “undue,”
Foman, 371 U.S. at 182, a finding not made by the district
court here. Nor is this a case in which the plaintiffs, for
instance, “attempted to raise an entirely new issue by
amendment . . . after the parties had conducted extensive
discovery, and after the district court had granted a summary
judgment motion.” See Williamsburg Wax Museum, Inc. v.
Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987).
The plaintiffs already in the case had raised substantially the
same discrimination claims, no summary judgment motion
had been granted, and no discovery had taken place as to the
ADA claims against the security companies. At the time the
new plaintiffs sought to add their claims, moreover, the
district court had just denied class certification, making it
necessary for the new plaintiffs to assert their own individual
discrimination claims in order to obtain relief.

The district court has endured a multitude of motions and
amendments to the pleadings in this case over the course of
more than a decade. We are sympathetic to the court’s
understandable interest in efficiently administering the
 24
litigation. And considerable confusion could have been
avoided if the plaintiffs had been more clear in their motion to
file a fifth amended complaint. The court, however, granted
leave to file that complaint, and thereby to add new plaintiffs
asserting claims under the Due Process Clause. The motion
and the attached proposed complaint, read together,
adequately notified the defendants and the court of the desire
of the new plaintiffs also to add claims under the
Rehabilitation Act and the ADA, and the defendants so
understood. In those circumstances, we find that the court
should have granted leave to include those claims.

* * * * *

We affirm the district court’s grant of summary judgment
to the defendants on the due process claims, as well as its
grant of judgment on the pleadings to the defendants on the
Rehabilitation Act claims for failure to exhaust. We reverse
the district court’s denial of leave to amend to add the
discrimination claims, however, and we remand the case for
proceedings consistent with this opinion.

So ordered.