254 F.3d 103 (D.C. Cir. 2001)
Matthew F. Fogg, Appellantv.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, 2001Decided 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:


1
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.


2
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.


3
*  *  *


4
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.


5
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.


6
We address in turn the issues of the damage cap, the denial  of equitable relief, the MSPB decision, and the pre-1991  allegations.


7
*  *  *

The  § 1981a damage cap

8
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:


9
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.


10
42 U.S.C. § 1981a(a)(1).  Subsection (b) in turn subjects the  new remedy to caps:


11
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.


12
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).


13
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.


14
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.


15
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.


16
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).


17
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 "claim" in cases where the context  makes that meaning inescapable does not itself establish that  the term is ambiguous in other contexts.


18
To the extent that some ambiguity remains, this case  proves not to be the sort where extra-textual sources point to  a different interpretation.  Fogg claims that the legislative  history and policy considerations underlying the 1991 Civil  Rights Act favor a per claim cap, but we find these sources  unhelpful to his position.


19
The language at issue was introduced in the DanforthKennedy Substitute Civil Rights Act of 1991, S. 1745, 102d  Cong. (1st Sess. 1991).  Before the bill's passage, the Republican cosponsors submitted an interpretive memorandum stating that the "limitations ... are placed on the damages  available to each individual complaining party for each cause  of action brought under section 1981A."  137 Cong. Rec. 29,046/3 (Oct. 30, 1991).  Nothing in the language or context,  however, suggests that the sponsors' use of this phrase was  intended to stake out a position on the proper unit for  application of the cap.


20
Fogg also calls our attention to another interpretive memorandum, this one submitted by Congressman Edwards, a  sponsor of the House version, observing that "[t]he sponsors  acknowledge the limitations on damages awards in the legislation which apply to the damages available to each individual  complaining party for each cause of action brought under  section 1981A."  137 Cong. Rec. 30,662/1 (Nov. 7, 1991).  But  this apparent item of legislative history is in fact more like  the oxymoron, "post-legislation legislative history."  See  United States v. Carlton, 512 U.S. 26, 39 (1994) (Scalia, J.,  concurring).  In an introductory statement the congressman  states that he urges members of the House to vote for  S. 1745, which the Senate had passed. 137 Cong. Rec.  30,661/1-2 (Nov. 7, 1991).  But the exhortation was too late to  have any such effect.  The House in fact had voted to pass  the bill earlier in the day (10 pages before, id. at 30,651). Indeed, Congressman Edwards may not have made his observations until several days later, for a note in the Congressional Record explains that material appearing in the boldface  type used for his introductory statement "indicates words  inserted or appended, rather than spoken, by a Member of  the House on the floor."  Id. at 30,506.  The statement could  speak to the premises on which the statute passed, if at all,  only to the extent it might have played a role in President  Bush's decision to sign the bill--a proposition that isn't even  argued.  Accordingly, whatever its meaning, we can give the  statement no material weight.  See, e.g., General Instrument  Corp. v. FCC, 213 F.3d 724, 733 (D.C. Cir. 2000) (finding  "almost no value" in post-enactment legislative observations).


21
Fogg's last point from the legislative history is that an  earlier legislative proposal by President Bush had included a  $150,000 cap for "harassment," S. 611, 102d Cong. (1st Sess.  1991), with explicit provision of the "practice" rather than the  "incident" as the unit defining the cap.  137 Cong. Rec. 5679/1  (Mar. 12, 1991).  Fogg's theory is that this bill reflected "a recognition of the per cause of action/per case ambiguity" and  an effort to resolve it, and that it follows that the later  triumph of the current language must be seen as a rejection  of what he deems the President's per lawsuit approach.  We  fail to see the logic.  Indeed, if Congress were in fact  explicitly rejecting the earlier proposal in order to adopt a  per claim approach, we cannot fathom why it would choose  statutory language that seems to endorse the per lawsuit  approach or, at the best from Fogg's perspective, is silent on  the question.


22
Fogg also notes that the Equal Employment Opportunity  Commission has previously argued in favor of a per claim  interpretation of § 1981a and thus argues that under Chevron  U.S.A., Inc. v. Natural Defense Resources Council, 467 U.S.  837 (1984), we must defer to the its reasonable interpretation. Even assuming the language is ambiguous enough to get past  Chevron's first step, and that the EEOC may be entitled to  Chevron deference on these provisions, Fogg cites only an  EEOC brief submitted to the court in Reynolds v. CSX  Transportation, Inc., 115 F.3d 860 (11th Cir. 1997) (a case not  in fact reaching the cap issue).  The brief is obviously not the  product either of formal adjudication or notice-and-comment  rulemaking, and accordingly has no more status than the  opinion letters, policy statements, agency manuals, and enforcement guidelines that the Court said were undeserving of  such deference in Christensen v. Harris County, 529 U.S.  576, 587 (2000).  It is at best "entitled to respect," and only to  the extent of its persuasiveness.  Id. (citing Skidmore v. Swift  & Co., 323 U.S. 134, 140 (1944)).  As plaintiff gives us no  reasoning from the brief, its persuasiveness, if any, has not  been relayed to us.


23
Finally, Fogg argues that adoption of the per lawsuit  interpretation defeats the policy purposes of the Civil Rights  Act by encouraging plaintiffs to file multiple lawsuits where  the allegations could well be combined into a single suit.  But  plaintiffs drawn to such a strategy will have to bear in mind  the law of claim preclusion, which bars recovery in a second  (or other) lawsuit for injuries inflicted in the same transaction  as was adjudicated in the first lawsuit.  See Smith, 165 F.3d at 1150-51.  Indeed, plaintiff's argument highlights a further  difficulty with his position.  Allowing multiple caps in a single  lawsuit would require the court in such a lawsuit to define the  boundaries of the "claims" brought, an often vexing process. Here plaintiff offers neither a count of his "claims," nor  statements of the contents of each, nor even a general  endorsement of using the transaction concept that governs in  claim preclusion law.

Equitable Relief

24
In addition to compensatory damages, Fogg also sought  equitable relief in the form of front pay or reinstatement and  expungement of his dismissal.1  The district court denied this  relief, and Fogg claims that the court committed legal error  by ignoring the jury's binding factual findings regarding the  post-1991 allegations.


25
"[I]n cases involving allegations of intentional discrimination the district court must ... follow the jury's factual  findings with respect to a plaintiff's legal claims when later  ruling on claims for equitable relief."  Kolstad v. American  Dental Ass'n, 108 F.3d 1431, 1440, rev'd in part on other  grounds, 139 F.3d 958 (D.C. Cir. 1998), vacated and remanded, 119 S.Ct. 2118 (1999).  This rule has its roots in two legal  principles.  The law of issue preclusion gives binding effect to  the first resolution of an issue (subject to certain limits), and  the right to a jury trial usually demands that the jury bind  the court, rather than vice versa.  See Dairy Queen, Inc. v.  Wood, 369 U.S. 469, 472-73 (1962), Beacon Theatres, Inc. v.  Westover, 359 U.S. 500 (1959);  see also Chauffeurs Teamsters  & Helpers Local No. 391 v. Terry, 494 U.S. 558, 579 (1990)  (Brennan J., concurring) (citing Beacon Theatres for  collateral-estoppel effect of jury findings).


26
The jury found for Fogg on all the issues as to which its  verdict is binding.  It also responded to special interrogatories with findings that disparate treatment and/or retaliation  motivated both the order requiring Fogg to report for a  fitness-for-duty-examination in 1995 and Fogg's subsequent  dismissal for refusing to obey that order.  Yet the district  court appears explicitly to have rejected those findings in  deciding that equitable relief was not appropriate.  The record indicates that the court declared from the bench that  Fogg "was validly dismissed from the Marshals Service." Transcript of Proceedings, Feb. 25, 2000 at 9.  In doing so,  the court apparently gave priority to the MSPB decision,  stating that "[I]f the Court of Appeals tells me that I have to  disregard the decision of the Merit Protection Board, or that  it is trumped by the jury's verdict, then we will revisit the  issue."  Id. at 11.  The court also appears to have acknowledged that "the jury found otherwise," although it is unclear  from the record whether the court was stating its own view or  was simply finishing a sentence for Fogg's counsel.  Id. at 9. On the other hand, the district court suggested the possibility  of a reconciliation between its own findings and those of the  jury, saying that he was "not sure that they are altogether  inconsistent."  Id.  But the court never explained how the  two sets of findings could be squared.


27
Although the MSPB did conclude that Fogg's dismissal was  not retaliatory, see Fogg v. Dep't of Justice, DC-0752-960101-I-2 (M.S.P.B. May 3, 1996) (hereinafter "MSPB Decision"), at 12-13, these findings are irrelevant to the extent  they contradict the jury's Title VII findings.  In "mixed  cases" before the MSPB, the plaintiff enjoys a right to de  novo trial of his or her discrimination claims.  See 5 U.S.C.  § 7703(c);  Hayes v. U.S. Gov't Printing Office, 684 F.2d 137,  140 (D.C. Cir. 1982).  Consistent with this principle, the  court's separate decision upholding the MSPB determination  quite correctly spoke only to the non-discrimination grounds  of the decision.  See Fogg v. Reno, No. 94-2814 (D.D.C.  March 30, 1998).


28
Because it is unclear exactly what effect the court gave to  the jury's findings, we remand the equitable claims to the district court so that it may reconsider the matter consistent  with the law of issue preclusion.  "When an issue of fact or  law is actually litigated and determined by a valid and final  judgment, and the determination is essential to the judgment,  the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." See Restatement (Second) of Judgments § 27 (1981);  see also  Otherson v. Department of Justice, INS, 711 F.2d 267, 273  (D.C. Cir. 1983);  18 Charles Alan Wright et al., Federal  Practice and Procedure §§ 4416ff (1981).

The  MSPB Decision

29
Fogg also challenges the district court's decision to uphold  the MPSB ruling on his non-discrimination claims.  He argues that the Marshals Service's order to Fogg to appear for  a medical exam was ultra vires (and thereby, he argues, not  requiring his obedience in the circumstances presented), and  that the MSPB did not appropriately weigh mitigating factors  in upholding the Service's dismissal for insubordination.  Obviously this claim will be mooted if, on remand, the district  court grants Fogg the equitable relief requested under Title  VII.  We review the MSPB claim, however, in case it is not  fully mooted.


30
We first consider whether the MPSB incorrectly held that  the fitness exam order was not ultra vires.  Fogg claims that  the order was defective because it didn't identify the specific  duties to which the Marshals Service hoped to assign him in  the event of a satisfactory medical exam.  The MSPB held  that no such requirement applied.  The reasons it gave were  wrong, but the decision was not only right but legally inevitable.


31
Under regulations implemented in 1984, the OPM did in  fact require an agency to "identif[y] an assignment or position  ... which it reasonably believes the employee can perform"  before ordering a medical exam for an employee receiving  worker's compensation for an on-the-job injury.  5 CFR  § 339.301(b) (as quoted in Medical Determinations Related to  Employability, 49 Fed. Reg. 1321, 1329 (Jan. 11, 1984)).  But  the version of the regulation applicable to Fogg's case (and currently in effect) makes no mention of this requirement: "An agency may require an employee who has applied for or  is receiving continuation of pay or compensation as a result of  an on-the-job injury or disease to report for an examination to  determine medical limitations that may affect placement decisions."  5 CFR § 339.301(c).


32
In holding as it did, however, the MSPB relied not on the  differences between the older and newer regulations, but  rather on its earlier decision in Abatecola v. Veterans Admin.,  29 M.S.P.R. 601 (1986), which it characterized as having  "expressly held ... that [having a particular position in mind]  is not required."  MSPB Decision, at 8-9.  But Abatecola  said nothing of the sort.  Rather, it held that the agency had  identified a specific assignment.  29 M.S.P.R. at 606.


33
In the face of such legal error, we would normally remand  to the court for remand to the agency, but we do not do so  when, as here, remand would be futile.  "[O]nly one conclusion would be supportable." Donovan v. Stafford Construction Co., 732 F.2d 954, 961 (D.C. Cir. 1984);  see also In Re  Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001) (no deference  afforded to agency interpretation of its regulation that is  "plainly erroneous or inconsistent with the [regulation's] plain  terms") (internal quotation omitted).  Unlike the regulation  considered in Abatecola, the current one imposes no job  identification requirement at all.  Thus the MSPB was correct in its ultimate conclusion.


34
We next consider whether the district court properly upheld the MSPB's finding that the Marshals Service's sanction,  namely dismissal, was reasonable.  We note at the outset  that, absent legal error, our review is somewhat attenuated. The MSPB reviews federal employer disciplinary actions  deferentially, to assess whether the employer agency "did  conscientiously consider the relevant factors and did strike a  responsible balance within tolerable limits of reasonableness." Douglas v. Veterans Admin., 5 M.S.P.B. 313, 332-333 (1981). And we review the MSPB's assessment deferentially, upsetting it only if it was arbitrary and capricious or an abuse of  discretion, or if it was unsupported by substantial evidence. 5 U.S.C. § 7703(c).  Although the district court reviews in the  first instance in lieu of the Federal Circuit (because the case  mixes discrimination and other claims, see Barnes v. Small,  840 F.2d 972, 978-79 (D.C. Cir. 1988);  Hayes, 684 F.2d at  140), its assessment drops out of the multiple layers of  deference.  See Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir.  1991).


35
In assessing the reasonableness of employer-imposed sanctions, the MSPB has identified a non-exhaustive list of twelve  factors relevant to appropriateness of the penalty.  Douglas,  5 M.S.P.B. at 332.  In upholding Fogg's termination, the  Board found that the employer had reasonably weighed  Fogg's 19 years of good service without prior discipline  against the seriousness of appellant's willful disobedience in  thrice refusing to comply with the Marshals Service order  despite knowing that such refusal was grounds for discipline. MSPB Decision at 14.  In particular, the Board noted that  previous MSPB decisions had found removal warranted for  insubordination based on failure to undergo an ordered fitness-for-duty examination.  Id. (citing Reynolds v. Department of Justice, 63 M.S.P.R. 189, 197 (1994);  Abatecola, 29  M.S.P.R. at 611).  In addition, it observed that law enforcement officers are held to a higher standard of discipline than  other employees.  Id. (citing Jones v. Department of Army,  52 M.S.P.R. 501, 506 (1992)).


36
Fogg does not dispute the accuracy of the MSPB's factual  findings.  Rather, he maintains that the Board did not give  enough attention to the Douglas factors and should have  applied them differently, giving more weight to Fogg's years  of distinguished service and to his sincere belief that he was  being discriminated against.  He also argues that any heightened standard for law enforcement officers should not apply  to someone who has been on sick leave for two and a half  years.


37
Although the Board did not explicitly walk through each  and every one of the Douglas factors, those factors are nonexhaustive and serve merely as guides to inform the core  reasonableness assessment.  Douglas, 5 M.S.P.B. at 332.  In fact, in enumerating the factors the MSPB said that they  would not all "be pertinent in every case."  Id.  Moreover,  the analysis that the MSPB did undertake here appears to  have covered the Douglas bases.


38
While Fogg's prolonged absence from work may slightly  militate against applying the heightened duty for law enforcement officers, this possibility alone does not render the  MSPB's decision unreasonable.  In the first place, the MSPB  clearly thought Fogg's behavior highly reprehensible even  absent his law enforcement duties.  In addition, while there  may be arguments for nuances based on such special circumstances, the Marshals Service might well think a uniformly  heightened standard better instills in law enforcement officials the sense of "great trust and responsibility" essential to  their jobs.  Crawford v. Department of Justice, 45 M.S.P.R.  234, 237 (1990).  Finally, any such nuance would be in some  tension with the sixth Douglas factor--the interest in consistent treatment of "other employees for the same or similar  offenses."  5 M.S.P.R. at 332.  In any event, all these tradeoffs are for the employing agency's exercise of its reasonable  discretion.


39
We affirm the district court's decision upholding the MSPB  decision as to the non-discrimination allegations.


40
The  District Court's Findings With Respect to the Pre-1991 Claims


41
In his final challenge, Fogg appeals the district court's  finding that he had failed to prove by a preponderance of the  evidence his pre-1991 Civil Rights Act claims.  We review the  district court's findings of fact for clear error.  Fed. R. Civ.  P. 52(a).


42
Fogg claims discrimination in his 1985 reprimand and  transfer to a Superior Court position for having taken a  government vehicle home with him while on two days' sick  leave.  At trial there was conflicting evidence as to whether  there was a legitimate, non-discriminatory basis for Fogg's  punishment.  Fogg would have us rely on the testimony of  one of his supervisors, Deputy Roche, who testified that he had authorized Fogg's use of the car.  Although Roche  admitted that he did not in fact know that Fogg was on sick  leave when the request was made, he also testified that Fogg  had done nothing improper, because his fugitive-related  duties required that he be able to respond at a moment's  notice in the event of a prisoner escape.  Deputy Roche and  others also testified that Chief Deputy Hein, who actually  delivered the reprimand, was quite harsh in his treatment of  Fogg, severely reprimanding him in front of several supervisors.  But U.S. Marshal Rutherford, who ordered Fogg's  reprimand and transfer, testified that Fogg's use of the  vehicle was indeed improper and that Fogg's treatment was  relatively lenient given that the offense was punishable by  termination.  And Roche himself later qualified his earlier  testimony, agreeing that government cars were not to be used  on sick leave.  Our review of the record yields no basis for  concluding that the district court's resolution of any conflict  was clear error.


43
Fogg similarly fails to demonstrate clear error in the other  findings under review.  He points to his failure to receive  performance evaluations in 1990-91 (as well as 1992, but that  is irrelevant to the pre-1991 assessment).  Yet there was  testimony at trial that the lack of evaluation resulted not from  discrimination or retaliation, but rather from a misunderstanding between supervisors as to whether Fogg would be  evaluated by his local district management or by his supervisor at the inter-agency task force.  While Fogg claims that  the Marshals Service discriminated against him in 1990 by  promoting to a GS-13 vacancy a lower-ranked employee on  the Service's merit certification list, the then Director, formerly U.S. Attorney in the Northern District of Florida,  testified that he had developed a close personal and professional relationship with the other candidate when working in  Florida, and that he promoted him on the basis of this  experience.  The district court found that the Service had  offered "superficially plausible" explanations, July 1999 Order  at 6, and that Fogg had not provided evidence demonstrating  these explanations to be pretextual, see Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). Again we see no clear error.


44
On appeal Fogg assumes the court rejected his claim, and  asserts clear error.  If the district court actually declined to  resolve the issue, that declination may have been error, but it  is not an error asserted by plaintiff and therefore not before  us.  See generally Carducci v. Regan, 714 F.2d 171, 177 (D.C.  Cir. 1983).  Accepting instead the parties' evidently shared  assumption that the district court rejected the hostile environment claim, we find no indication of clear error.


45
Similarly we find no error in the court's rejection of Fogg's  claim that the Marshals Service unlawfully delayed the processing of his Title VII complaint.  We assume arguendo that  such delay can constitute a Title VII violation, but cf. Ward v.  E.E.O.C., 719 F.2d 311, 312-314 (9th Cir. 1983);  Stewart v.  E.E.O.C., 611 F.2d 679;  (7th Cir. 1979);  Georator Corp. v.  E.E.O.C., 592 F.2d 765, 769 (4th Cir. 1979), but find no clear  error in the court's factual determination.


46
There is some ambiguity regarding Fogg's pre-1991 hostile  work environment claim.  The district court appeared to have  concluded that it was unnecessary to decide the question: "[T]he Court ... declines to makes its own finding with  respect to the claim of hostile environment antedating 1991 as  being unnecessary in light of the remittitur [referring to  application of the $300,000 damages cap]."  July 1999 Order,  at 1-2.  On the other hand, it is not inconceivable that the  court's footnote 7, id. at 6 n.7, generally rejecting the view of  the jury for the pre-November 11, 1991 period, applies to the  hostile environment claim as well as to more specific allegations.


47
*  *  *


48
We reverse so that the district court can reconsider plaintiff's claims for equitable relief in light of a correct understanding of the issue preclusive effect of the jury's verdict. In all other respects the judgment is affirmed.


49
So ordered.



Notes:


1
  The Supreme Court has recently affirmed the view of this  circuit, see Martini v. Federal Nat. Mortgage Ass'n, 178 F.3d 1336,  1348-49 (D.C. Cir. 1999), that front pay is not an element of  "compensatory damages" within the meaning of 42 U.S.C. § 1981a  and therefore not subject to the damages cap imposed by that  section.  See Pollard v. E.I. DuPont de Nemours & Co., 121 S. Ct.  1946 (June 4, 2001).


