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
 7

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.