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McKinney and employment class actions

So it appears that Cynthia McKinney has apologized for her dust-up with the Capitol police, some eight days after the incident--with a pending grand jury investigation, no support among her fellow Democrats, and following some rather embarrassing television appearances. I hadn't paid much attention to this story, filing it away as a simple Diva-scuffle blown out of proportion by a notorious race-baiting, anti-Israel, 9/11-conspiracy-theorist (though I was interested and annoyed to read that she'd used taxpayer dollars to fly Darth Chef to a Georgia fundraiser).

What drew my attention were McKinney's repeated references in those television interviews to a 250-person class action by black police officers against the Capitol Police. So I decided to do some digging.

The case to which I think McKinney is referring is Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F.Supp.2d 97 (D.D.C. 2004). The September 30, 2004 opinion dismissing the plaintiffs' consolidated claims is available here. In essence, the judge dismissed the action because some of the class plaintiffs had failed to make timely counseling and mediation requests as required by the Congressional Accountability Act, thus depriving the court of subject matter jurisdiction. The dismissal was without prejudice, and KeyCite illuminates some subsequent filings:

  • On last July 28, the Capitol Police filed a sur-reply to plaintiffs' motion for reconsideration, see 2005 WL 2095860.

  • On August 4, 2005, the Capitol Police again filed a response to plaintiffs' submission of supplemental authorities, see 2005 WL 2452991.

  • The case was referred before a magistrate judge, who on February 23 of this year scheduled a status conference for March 16.

  • After the status conference, the magistrate issued an order on March 31, dealing with certain motions and ordering plaintiffs to complete a pair of charts by May 31 listing the specifics of each plaintiff's cause of action.

Looking at the only of the charts with any substance (available here), I noticed immediately that the allegations are all over the map, run-of-the-mill employment action whinings, many of which:

  • Have no logical relationship whatsoever to a claim of employment discrimination (e.g., "subjected to second-hand smoke");

  • Precede the 1995 statute affording any relief (e.g., "in 1994, Adams was denied the opportunity to sit for the sergeant's exam");

  • Involve no actionable injuries (e.g., "transferred from Patrol Division to Investigations Division"); or

  • Are beyond the realm of common sense (e.g., "placed on restriced duty for not wearing protective body armor, despite medical reason").

So what are the key takeaways?

1. This case has not been certified as a class action. I've noted before just how problematic discrimination class actions can be. Here, the problems of the "perfect plaintiff" as a composite of varying employees is very real.

2. The lawyering in this case is shoddy. Some of the claims are so bad that they detract from anything that might have merit.

3. The legal system is ridiculously expensive. After many repeated motions--and five years since the case was first docketed--there's not even a coherent list of plaintiffs and alleged harms. Our tax dollars are paying for the defense; in the private sector, businesses have to deal with such cases all the time. The costs of a successful defense are not reimbursed (but they should be).

4. The employment law system is particularly pernicious. No one with any moral fiber thinks the government should be able to discriminate invidiously on the basis of race. And apart from a few purists like our friend Richard Epstein, most reasonable people would permit some government intervention over discrimination in the private sector. But the ability of disgruntled employees to harrass their employers through the heavy hand of the courts is an enormous drain on the economy and indeed an affront to freedom of association itself; employment contracts are of course voluntary, and workers are always free to take their talents elsewhere. For an excellent analysis of employment law, see our editor's The Excuse Factory: How Employment Law Is Paralyzing the American Workplace.

Interesting side note: Some time after 9/11, I witnessed Bob Dole undergoing a full pat-down search at the Delta Air shuttle terminal at LaGuardia airport. The 70-something former Senate Majority Leader and presidential nominee did not seem to object. Whether spending scarce screener time to give a full search to a decorated war veteran makes sense from a homeland security standpoint, I'll leave to our readers' discretion.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.