OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
v. Case No. 02-AC-30 (DA, RP)
Date: August 11, 2003
OFFICE OF THE ARCHITECT
OF THE CAPITOL
Before the Board of Directors: Susan S. Robfogel, Chair; Barbara
L. Camens, Alan V. Friedman; Roberta L. Holzwarth; Barbara Childs
DECISION OF THE BOARD OF
On February 6, 2003, Hearing Office Curtis E.
von Kann issued the attached Order dismissing this disability discrimination
and reprisal complaint on the basis that it was untimely and, therefore,
he was without jurisdiction to entertain the matter. The Complainant
timely filed a petition for review of the Hearing Officer’s
decision and a supporting brief. The Respondent employing office
filed a brief in opposition to the petition for review.
Upon due consideration of the Hearing Officer’s
Order, and the parties’ filings, the Board has decided to
affirm the dismissal Order but for the reasons explained below.
Complainant alleges herein that he did not prevail
in earlier companion discrimination lawsuits (circa 1999-2001) against
the Respondent because the Respondent had discriminatorily misrepresented
important facts and law to both the federal trial and appellate
courts. Complainant, in essence, is seeking the relief he would
have received had he succeeded before those courts.
The Hearing Officer concluded that he lacked
jurisdiction to entertain the complaint because the Complainant
had not complied with the 180-day time limitation imposed by Section
402(a) of the Congressional Accountability Act, 2 U.S.C. §
1402(a). Contrary to the Hearing Officer, we note that the 180-day
time limitation is in the nature of a statute of limitations rather
than a jurisdictional requirement. Accordingly, it is subject to
equitable tolling, but only in extraordinary and carefully circumscribed
instances. See, Clarence Seay, Jr. v. Tennessee Valley Authority,
et al., 2003 U.S. App. LEXIS 16022 (6th Cir. 08/06/2003); Monday
v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988);
Charles A. Hughes, III v. The Office of the United States Sergeant-
at- Arms, Office of Compliance Case No. 98-SN-56 (RP) (September
8, 1999); Kenneth F. Thompson v. The Capitol Police Board,
120 F. Supp. 2d 78 (2000); Gloria Halcomb v. Office of Senate
Sergeant-at-Arms, 209 F. Supp.2d 175 (2002).
However, we do not decide whether the Complaint
was timely filed, as we hold that the Complaint does not state a
cause of action under the Act as a matter of law. The Hearing Officer
explicitly declined to rule whether Respondent’s aforementioned
alleged misrepresentations before the courts could be held to constitute
new and independent acts of discrimination and retaliation against
the Complainant. Subsequent to the Hearing Officer’s decision
and in the context of another case, the Board applied the preclusive
legal doctrines of res judicata and collateral estoppel to bar consideration
of an independent retaliation complaint predicated upon a party’s
litigating tactics in an earlier case before the Office of Compliance.
See Ziggy Bajbor v. Office of the Architect of the Capitol,
Case No. 01-AC-377 (RP) (May 30, 2003). We believe that doctrine
is fully applicable to this case. As we held in Bajbor, a party
must deal with its opponent’s litigation actions before that
very tribunal hearing the substantive claims. The doctrines of
res judicata and collateral estoppel preclude a party
from collaterally challenging that tribunal’s judgment by
bringing a new action before the Office of Compliance. The Office
simply will not entertain such complaints.
For the foregoing reasons, the Hearing Officer’s
Order dismissing the complaint is affirmed.
It is so ordered.
Issued: at Washington, D.C., August 11, 2003
CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of August 2003, I delivered
a copy of this Decision of the Board of Directors to the following
parties by the identified means:
First-Class Mail Postage-Prepaid
Jeffrey H. Leib, Esq.
Attorney at Law
5104 34th Street, N.W.
Washington, D.C. 20008
First-Class Mail Postage-Prepaid
& Facsimile Mail (w/o Hearing Officer Decision)
Peggy L. B. Tyler, Esq.
Office of the Architect of the Capitol
Office of Employment Counsel
Ford House Office Building, Rm H2-202
2nd and D Streets, SW
Washington, D.C. 20515
Kisha L. Harley
Office of Compliance