Fogg v. Ashcroft

• Citation: 254 F.3d 103
• Decision Date: 22 June 2001
• Docket Number: No. 00-5138,00-5138
• Parties: (D.C. Cir. 2001) Matthew F. Fogg, Appellant v. John D. Ashcroft, Attorney General of the United States, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 103

254 F.3d 103 (D.C. Cir. 2001)

Matthew F. Fogg, Appellant v. John D. Ashcroft, Attorney General of the United States, Appellee

No. 00-5138

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2001

Decided June 22, 2001

[Copyrighted Material Omitted] 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 discriminated against him on grounds of race in violation of § 717 of the 1964 Civil Rights Act as amended, 42 U.S.C. § 2000e-16. A jury, which under the 1991 amendments could issue a binding verdict for violations on or after the amendments' 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 misinterpreted 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 reprimanded 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 complaint. 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 Metropolitan 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) inquiring 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 examination 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 § 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 punitive 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. § 1981a(a)(1). Subsection (b) in turn subjects the new remedy to caps:

The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional 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. § 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 §§ 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 § 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 argues, 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 § 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 question 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 argument is that none of the language on which courts and parties have focused is pertinent.

Fogg's argument on redundancy seems correct but immaterial. He is not claiming that the courts' construction of §§ 1981a(a)(1) & (b) violates some canon of statutory interpretation. 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 "absent 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 § 3730(b) is no less a cause of action, and the relator is no less a party prosecuting that action, because the action is brought in the name of the United States") (emphasis added). That "action" can serve as a synonym for "cla...