Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990)
November 13, 1990
v.
Marion S. BARRY, Jr., et al., Defendants.
Kevin Michael BYRNE, et al., Plaintiffs,
v.
Theodore R. COLEMAN, et al., Defendants.
United States District Court, District of Columbia.
*1088 Joan A. Burt and Dovey J. Roundtree, Washington, D.C., for Hammon plaintiffs.
*1089 George H. Cohen, Robert M. Weinberg, and Jeremiah A. Collins of Bredhoff & Kaiser, Washington, D.C., for Byrne plaintiffs and Local 36.
Dr. Herbert O. Reid, Sr., District of Columbia Corp. Counsel, Martin L. Grossman, Deputy Corp. Counsel, George C. Valentine, Asst. Corp. Counsel, Claude Bailey, Sp. Counsel for Corp. Counsel, and Theresa Jenkins, Counsel for D.C. Fire Dept., for defendants.
Joel P. Bennett, Washington, D.C., for Joseph L. Smith and certain retired firefighter members of Hammon class.
Margie A.S. Lehrman, Washington, D.C., for widow of Ronald Washington, deceased firefighter.
Janet Cooper, Washington, D.C., for Donald F. Drury, member of Byrne class.
Stephen A. Saltzburg, Washington, D.C., Sp. Master.
CHARLES R. RICHEY, District Judge.
On August 20, 1990 the three parties to the above-captioned class action lawsuit the class of black firefighters ("Hammon plaintiffs" or "Hammon class"), the class of white firefighters ("Byrne plaintiffs" or "Byrne class"), and the District of Columbia defendant ("the City")executed a Settlement Agreement through duly authorized counsel. See Agreement, Appendix I. The two-part Settlement Agreement clearly states that it is binding on all parties, that it resolves all claims raised in this litigation, and that it sets forth all essential terms of the settlement. Moreover, the Settlement Agreement contemplated that the parties would work with Special Master Stephen Saltzburg to provide the Court with a detailed decree to implement the terms of the Settlement Agreement. Pursuant to Fed.R.Civ.P. 23(e), the Court must now decide whether to approve the Settlement Agreement as a fair, adequate, and reasonable resolution of the parties' claims. Having carefully considered all of the pleadings submitted by the parties, the Special Master's Reports, all of the objections submitted in writing or made orally at the October 23, 1990 Fairness Hearing, the entire record herein, and the underlying law, the Court will approve the parties' August 20, 1990 Settlement Agreement. Furthermore, the Court will conditionally enter its own decree, which adoptswith some modificationsthe consent decree proposed by the Special Master, the Byrne plaintiffs and the City but which shall only go into effect only after the parties have had one final opportunity to submit a consent decree signed by all three parties to this litigation.
I. Factual Background
The parties' acrimonious dispute, involving charges of discrimination and reverse discrimination, has been burning for over six years. The direct result of this dispute is that the District of Columbia Fire Department administered its last promotional examination (usually given every two years) in 1984 and has made no permanent promotions since 1984.
The Hammon plaintiffs' part of this has been pending before the Court since March 1984, and the Byrne plaintiffs' part of this lawsuit has been pending since March 1985. In ruling on an affirmative action plan that the City had adopted in response to recommendations by a hearing examiner at the administrative level, the Court approved the affirmative action plan in part, holding "that the hiring aspects of the plan satisfy the minimal requirements of Title VII and the Constitution, but that the promotion aspects cannot survive Title VII scrutiny." Hammon v. Barry, 606 F. Supp. 1082, 1084 (D.D.C.1985). However, addressing only the hiring part of the affirmative action plan on appeal, a panel majority reversed and struck down the plan's hiring aspects. Hammon v. Barry, 813 F.2d 412 (D.C.Cir.), reh'g denied, 826 F.2d 73 (D.C.Cir.), granting reh'g en banc, 833 F.2d 367 (D.C.Cir. 1987) (en banc) (per curiam), vacating order granting reh'g en banc 841 F.2d 426 (D.C.Cir.) (en banc) (per curiam) (6-5 decision), cert. denied, 486 U.S. 1036, 108 S. Ct. 2023, 100 L. Ed. 2d 610 (1988).
Since the Court of Appeals' decision and remand, the parties have tried, with this Court's assistance, to settle this case without *1090 proceeding to trial. To facilitate these settlement negotiations and assist the parties in reaching an agreement, the Court, pursuant to Fed.R.Civ.P. 53, appointed Stephen Saltzburg as Special Master in April 1990, and each of the parties agreed to pay one-third of his fees and expenses. The considerable efforts of the parties and the Special Master culminated in a draft of a proposed Settlement Agreement. Then, the Court met with counsel for all the parties to tell them that it was their decision whether to sign the proposed Settlement Agreement and that the Court had neither read the proposal nor decided whether to approve it in the event the parties did sign it.
The Hammon plaintiffs were informed of the proposed Settlement Agreement, and, after considering it for some time, the Hammon plaintiffs, by class counsel Joan Burt, signed the Settlement Agreement. At a subsequent status conference with the Court, Dovey J. Roundtree (who entered her appearance during February 1989 as co-counsel for the Hammon plaintiffs) independently registered her approval of the Settlement Agreement. Having been notified of and having considered the Special Master's proposal, the Byrne plaintiffs, by class counsel George Cohen, also signed the Settlement Agreement, which was subsequently voted upon and ratified by Local 36. Finally, the City took the proposal under advisement, and, by Corporation Counsel Dr. Herbert O. Reid, Sr., the City also signed the Settlement Agreement.
Thus, on August 20, 1990, the parties all executed a Settlement Agreement that is final and binding on all the parties and that resolves any and all claims of discriminationwhether based upon the Constitution or federal or local statutesraised by the classes and the individual members at any point during this lawsuit. Although the Settlement Agreement is one integrated document, it contains two parts to reflect the different claims of the Hammon and Byrne plaintiffs: Part A (signed by the Hammon plaintiffs and the City) addresses all of the lawsuit's claims involving hiring and vestiges of discrimination but not the dispute over future promotions and Part B (signed by the Hammon plaintiffs, the Byrne plaintiffs, and the City) addresses the future promotions issue. The Settlement Agreement explicitly states that it "sets forth all essential terms of the settlement;" Agreement, Appendix I, Part A ¶ 1, Part B ¶ 1 (emphasis added), and that "Parts A and B together resolve all claims and bind all class members with respect to all claims of discrimination as of the date of this agreement," id. Part A ¶ 21 (emphasis added); see id. Part B ¶ 2.
Without going into an overly detailed description of the Settlement Agreement, which speaks for itself, the Court notes that it provides for various forms of relief. The Hammon plaintiffs will receive a $3.5 million lump-sum payment from the City, which does not include attorneys fees and which will be divided among the class members based upon how many years each firefighter worked as well as other criteria. See id. Part A ¶¶ 4, 8-17. Moreover, the Settlement Agreement provides for: about 180 immediate promotions (based upon an attached schedule) to fill most outstanding vacancies; the creation of a new (fourth) platoon of firefighters with many new Sergeant, Lieutenant, and Captain positions; the development and administration of fair promotional examinations to fill some outstanding and all future vacancies. See id. Part B ¶¶ 5-13. In return for the foregoing, the City avoids any finding of liability and enhances the public safety by improving Fire Department working conditions and morale and making long overdue promotions. Finally, all parties avoid the risks and costs of proceeding to trial.
In short, while each of the parties benefits from the Settlement Agreement, none of the parties has obtained a perfect result for itself. As is common when a case settles rather than proceeding to trial, the Settlement Agreement contains various trade-offs and concessions that the parties agreed to when faced with the prospects of litigating and perhaps losing some or all aspects of this case.
There is nothing on the record before the Court to indicate that any party attempted to modify or change the Settlement Agreement *1091 between the date of its signing on August 20, 1990 until the Fairness Hearing on October 23, 1990. Moreover, at the Fairness Hearing itself, counsel for all the parties reaffirmed the Settlement Agreement. Only after the Fairness Hearing and after the City and the Byrne plaintiffs had already signed the Proposed Consent Decree did it become clear that Joan Burt, counsel for the Hammon plaintiffs, was refusing to sign the Proposed Consent Decree although she had several times stated on the record that she would, see October 16, 1990 Meeting with Special Master Tr. at 6, 12, 13and was even attempting to renege on the essential terms of the Settlement Agreement.
The Settlement Agreement envisioned that the parties would work with the Special Master to develop a decree for the Court's approval, see Agreement, Appendix I, Part A ¶ 1, but the Settlement Agreement nowhere indicates that it could be implemented only by a consent decree signed by all the parties. In fact, the Special Master has stated to the Court that he purposely did not use the term "consent decree" when drafting the Settlement Agreement, in light of the many previous instances throughout this litigation in which the parties were unable to cooperate. Thus, the record is clear that the parties originally agreed that the Court could enter its own decree in accordance with the essential terms contained in the Settlement Agreement in the event that the parties failed to agree upon one consent decree.
Since the date the Settlement Agreement was signed by all of the parties, the parties have worked with the Special Master and the Test Development Committee ("TDC") to develop promotional examinations as required by the Settlement Agreement.[1] The first promotional test is scheduled for December 1990, and it will provide hundreds of firefighters, who have been studying for weeks, with their first opportunity for a promotion.
The parties and the Special Master notified the class members of the October 23, 1990 Fairness Hearing in various ways. All current Fire Department members received personal notice, and retired firefighters and others who requested notice received personal notice. In addition, class members received publication notice in five different publications. See Notices, Appendix III. Judging by the written objections the Court received pursuant to this notice procedure and the responses at the Fairness Hearing, the Court is satisfied that the various notices succeeded in alerting the class members to the proceedings.
In anticipation of the Fairness Hearing, the Special Master met with counsel for all the parties on October 16 and 17, 1990 to discuss the class members' written objections and formulate responses. The record is clear that all counsel present agreed with and supported the Special Masters' proposed responses to the class members' objections, see October 17, 1990 Meeting with Special Master Tr. at 21-55. Before the Fairness Hearing, no counsel for any of the parties requested the Special Master to suggest to the Court that any of the class members' objections had any merit, except for one minor modification (agreed to by all the parties) enabling the heirs or estates of deceased firefighters, who otherwise would have been eligible to share in the settlement fund to submit claims. Nor did counsel for any of the parties argue at the Fairness Hearing that any of the class members' objections should prevent Court approval of the Settlement Agreement.
II. Analysis
A. Jurisdiction Despite Notice of Appeal
A threshold issue is whether this Court continues to have jurisdiction to proceed in this matter in light of the Hammon plaintiffs' Notice of Appeal from the Court's September 12, 1990 Order extending the period of the Special Master's reference and responsibility. The Hammon *1092 plaintiffs have not filed a motion for a stay pending appeal with this Court nor have they ever indicated on the record, orally or in writing, that this Court should hold these proceedings in abeyance until their appeal is resolved. Moreover, as far as the Court is aware, the Hammon plaintiffs have filed only a Notice of Appeal with the Court and, to the Court's knowledge, have done nothing further about pressing their appeal at this time. That is not surprising since the use of special masters has been approved "in a wide variety of remedial contexts ... includ[ing] cases ... remedying various ... statutory or constitutional violations." Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc), rev'd on other grounds, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981).
In any event, the Notice of Appeal does not divest this Court of jurisdiction because the order from which the Hammon plaintiffs seek to appeal is an interlocutory, non-appealable order. See 9 Wright & Miller, Federal Practice and Procedure § 2615, at 813 ("An order of reference to a master is interlocutory and not appealable."). Instead of allowing the Hammon plaintiffs to willy-nilly deprive this Court of jurisdiction, "thus bringing [these] proceedings to a standstill while a non-appealable ruling wends its way through the appellate process," Venen v. Sweet, 758 F.2d 117, 121 (3d Cir.1985), the Court will "disregard the notice of appeal [from a non-appealable order] and proceed with the case," Hammerman v. Peacock, 623 F. Supp. 719, 721 (D.D.C.1985) (citing 9 Moore's Federal Practice ¶ 203.11, at 3-52 (citing cases)); see also SEC v. American Bd. of Trade, Inc., 829 F.2d 341, 344 (2d Cir.1987), cert. denied, 486 U.S. 1034, 108 S. Ct. 2018, 100 L. Ed. 2d 605 (1988); United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir.1982), cert. denied, 460 U.S. 1091, 103 S. Ct. 1790, 76 L. Ed. 2d 358 (1983).
B. Number of Objecting Class Members
Turning to the merits of whether the Court should approve the Settlement Agreement as a fair resolution of this case, the Court first examines the number of the objections received. Although approximately 85 individuals objected to some aspect of the Settlement Agreement,[2] that is a relatively low level of dissatisfaction considering that the Hammon and Byrne classes comprise at least 2,000 individuals.[3] Moreover, the number of objectors is somewhat misleading because that figure includes about 33 members of the Fire Prevention unit who made essentially the same objection based on the absence of a separate test and insufficient pay and whose concerns are discussed in more detail below. See infra Section G. Thus, as best as the Court can determine, it appears that less than five percent (85 out of 2,000) of the class members objected, and that figure drops to less than three percent (52 out of 2,000) if the Fire Prevention common objection is put to one side. Compare Cotton v. Hinton, 559 F.2d 1326, 1333 (5th Cir.1977) (affirming district court's approval of class action settlement over objection of counsel purporting to represent almost half of the class); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3d Cir.) (affirming district court's approval of class action settlement over objections by over twenty percent of class), cert. denied, 419 U.S. 900, 95 S. Ct. 184, 42 L. Ed. 2d 146 (1974).
While the fact that a relatively small percentage of the class members objects to a proposed settlement is not dispositive, *1093 "[c]ourts have taken the position that one indication of the fairness of a settlement is the lack of or small number of objections." 2 H. Newberg, Newberg on Class Actions § 11.47, at 463 (2d ed. 1985) (citing Laskey v. International Union (UAW), 638 F.2d 954 (6th Cir.1981)). The low percentage of objectors in this case is one factor in the Court's conclusion that the Settlement Agreement is fair and that almost all of the class members are looking forward to its approval so that the promotions can be made, the promotional tests given, and the settlement fund disbursed.
C. Adequacy of Monetary Aspect of Settlement
Next, the Court considers the adequacy of the $3.5 million lump-sum payment that the City would make to the Hammon plaintiffs under the Settlement Agreement. As far as the Court can tell there has been only one objectiona general objection at thatto the amount of the monetary relief. In view of the factual and legal uncertainties that the Hammon plaintiffs face if they were to proceed to trial,[4] as well as the substantial harm they would continue to suffer by being precluded from receiving immediate promotions and taking promotional exams, the Court holds that the $3.5 million settlement amount is well within the range of a reasonable and adequate settlement. Id. § 11.44, at 457 (citing Newman v. Stein, 464 F.2d 689 (2d Cir.), cert. denied, 409 U.S. 1039, 93 S. Ct. 521, 34 L. Ed. 2d 488 (1972)). Another factor in the Court's analysis is that the Special Master argues in support of the reasonableness of the $3.5 million figure. Most important, however, is that counselwho represent three very different parties, who have been deeply involved in this case from the beginning and can evaluate their cases better than anyone else, and who have failed to agree for so longall agreed after extensive arms-length negotiations that $3.5 million was a fair settlement. See id. § 11.46, at 462 ("`The court should give great weight to the fact that the lawyers for substantially all of the plaintiffs and defendant who have been engaged in this arduous litigation for seven years unanimously support the settlement.'" (quoting Cannon v. Texas Gulf Sulphur Co., 55 F.R.D. 308, 316 (S.D.N.Y.1972))).
It is well established that a court deciding whether to approve a class action settlement should not substitute its judgment for that of the proponents of the settlement, id. § 11.44, at 457 (citing Steinberg v. Carey, 470 F. Supp. 471 (S.D.N.Y. 1979)), and that "unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results," id. § 11.49, at 466. Consequently, the Court sees no reason on this record to reject or modify the $3.5 million figure negotiated by the parties.[5] Any argument that the Hammon plaintiffs would recover much more than $3.5 million if they proceeded to *1094 trial not only is pure speculation,[6] but also fails to take into account that this $3.5 million would go immediately and directly to the class (without attorneys' fees or any further costs being subtracted) whereas another amount disbursed pursuant to a judgment, if any, after trial would probably reach the class members only after several years of trial and appellate litigation.
D. Apportionment of Settlement Fund
A large percentage of the objections represent challenges to the way in which the $3.5 million settlement fund would be apportioned among Hammon class members. Under the Settlement Agreement and Proposed Consent Decree, that $3.5 million would be apportioned as follows: (1) at least $2.4 million as compensation for pre-1980 discrimination claims to be divided among all members of the Hammon class who were members of the Fire Department on January 1, 1980, Agreement, Appendix I, Part A ¶¶ 8-10; (2) no more than $1 million as compensation for post-1980 discrimination in hiring claims to be divided among all members of the Hammon class who completed the 1980 hiring test and either were never hired or were hired after the average date on which white test-takers were hired (July 1, 1982), id. Part A ¶¶ 12-14; and (3) $100,000 as compensation for individual class members who contributed to the litigation by rendering services on their own time or who bore "special burdens ... during this litigation," Proposed Consent Decree, Appendix II, Part I ¶ 25.
About forty retired firefighters (most of whom were represented at the Fairness Hearing by Joel P. Bennett) object to the cut-off date of January 1, 1980 because it would preclude them from sharing in the settlement fund. The Special Master and counsel for all the parties chose this cut-off date only after extensive discussions and careful consideration of the relative weakness of these retirees' claims due to the City's potentially devastating statute-of-limitations defense.[7] The City made it very clear to everyone involved in this lawsuit that, if settlement talks were to break down, the City would assert and vigorously litigate a statute-of-limitations defense since the discrimination giving rise to the pre-1980 claims occurred, if at all, over four years before the filing of this lawsuit. However, to avoid litigating this issue and having to determine precisely when acts occurred on a case-by-case basis for the numerous members of the Hammon class, the City agreed to waive its statute-of-limitations defense, and counsel for all the parties (including the Hammon plaintiffs' attorney) as well as Special Master agreed that it was highly likely that claims by any firefighter who retired before January 1, 1980 would be time-barred.[8]
*1095 Although the Court feels great sympathy and admiration for the older retired firefighters who probably suffered the most (enduring that period when discrimination in the Fire Department was institutionalized and its most extreme), the Court must evaluate the strengths and weaknesses of the class members' claims within the framework of their likelihood of establishing liability and damages at trial. See In Re "Agent Orange" Prod. Liability Litig., 818 F.2d 145, 171 (2d.Cir.1987) (evaluating district court's approval of settlement by examining strength of claims, which were allegedly "serious" judging by amount of damage class members suffered, in terms of the likelihood of prevailing on liability), cert. denied, 484 U.S. 1004, 108 S. Ct. 695, 98 L. Ed. 2d 647 (1988). Moreover, in evaluating the formula for apportioning the settlement fund, the Court keeps in mind that "[d]istrict courts enjoy `broad supervisory powers over the administration of class-action settlements to allocate the proceeds among the claiming class members equitably.'" In Re "Agent Orange" Prod. Liability Litig., 818 F.2d 179, 181 (2d Cir.1987) (quoting Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir.1978)), cert. denied, 487 U.S. 1234, 108 S. Ct. 2899, 101 L. Ed. 2d 932 (1988). In view of the likelihood that the retirees' claims would be time-barred and the fact that counsel for all the parties (including the Hammon plaintiffs' counsel when signing the Settlement Agreement) and the Special Master all agreed that the January 1, 1980 cut-off date was proper, the Court holds that the Settlement Agreement is fair, adequate, and reasonable and must be approved over the retirees' objections.[9]See id. at 182 (district court has "discretion to adopt whatever distribution plan [it] determine[s] to be in the best interests of the class as a whole notwithstanding the objections of class counsel or of a large number of class members" (emphasis added; citations omitted)).
Another objection to the allocation of the settlement fund envisioned by the Settlement Agreement and the Proposed Consent Decreenot raised until the Hammon Plaintiffs' Post-Fairness Hearing Report to the Courtis that certain named plaintiffs and individual class members claiming under them should receive additional money for suffering more serious discrimination than the other class members. See supra note 6. Under the Settlement Agreement, the named plaintiffswho are properly members of the Hammon class[10]would receive: (1) a share of the $2.4 million (if working for the Fire Department on January 1, 1980) allocated to pre-1980 discrimination claims in direct proportion to how many years that plaintiff worked for the Fire Department or (2) a share of the $1 million allocated to claims arising out of the administration of the 1980 hiring test. In addition to the foregoing, the Proposed Consent Decree addresses the possibility that certain class members experienced more serious discrimination by allowing them to submit claims for shares of the $100,000 amount set aside for those members who made litigation contributions or bore "special burdens" as identified by the Hammon plaintiffs.
Thus, although nothing is definite yet since claims forms have not been submitted *1096 and precise calculations have not been made, it appears to the Court on this record that, as a result of these three sub-divisions of the settlement fund, each of the named plaintiffs would receive some amount of monetary relief (as well as promotions or the opportunity to take promotional tests).[11] Therefore, the Court is not persuaded that the Settlement Agreement should be rejected because certain plaintiffs do not receive more money.
Finally, about two objectors argued that the heirs or estates of those deceased firefighters who otherwise would have shared in the settlement fund should be entitled to recover monetary relief on behalf of the decedent. All the parties and the Special Master have agreed to modify the proposed Claims Form to accommodate the heirs or estates of deceased firefighters in accordance with these few objections, see October 16 Meeting with Special Master Tr. at 1920, and the Court also approves of this slight modification to the Claims Form, especially since the Settlement Agreement did not address this issue one way or the other.
E. Union Voting Procedures
The Court received about six objections based on the voting procedure utilized to determine whether Local 36 would ratify the Settlement Agreement signed, subject to Local 36 ratification, by the counsel for the Byrne plaintiffs and Local 36. Instead of resorting to mail notice of the proposed settlementwhich would have consumed four or five weeks that could not be spared in view of the rapidly approaching December test datethe Special Master directed that voting occur within one week of the Settlement Agreement's being signed, and the Union President and counsel agreed that this procedure was feasible. Consequently, the Settlement Agreement was widely circulated among union members and was even posted in the various firehouses. In light of the great attention this litigation has received among union members, the ensuing vigorous debate, and the representations of the Union President, counsel for the Byrne plaintiffs, and the Special Master, the Court is fully satisfied that the notice and voting procedures were perfectly proper and that all interested union members had a fair opportunity to be heard. Indeed, the packed Courtroom, with standing room only, at the October 23, 1990 Fairness Hearing demonstrates that all interested parties are aware of what has taken, and is taking, place in this case and that the various notices were effective. See Notices, Appendix III.
F. Use of Lists For Immediate Promotions
Of the total number of objections registered against the Settlement Agreement orally or in writing, a relatively large number challenge some aspect of the procedure for making about 180 immediate promotions (for vacancies existing as of March 1, 1989) from lists based upon the last promotional exam administered in 1984. Some class members want more immediate promotions while others argue that those who served in an acting capacity should have preference for promotions, and still others contend that these lists should not be relied upon to fill all of the vacancies because they usually would be valid for only two years.
*1097 However, most, if not all, of these objections are motivated by the self-interest of the individual objector, and none of them indicate that the Settlement Agreement's procedure for making immediate promotions unfairly benefits any one group of firefighters at the expense of any other group.[12] Moreover, the objections that rely upon the usual two-year life-span of promotional lists overlook the unfortunate but undeniable reality that nobodynot the parties, not the Special Master, and not this Courtcan turn back the clock and duplicate exactly what would have occurred if promotional tests had been given in 1986 and 1988. In short, because this is no longer a "usual" situation, the "usual" rules and procedures utilized to make promotions in the past should not be blindly applied. All of the parties recognized that immediate promotions are absolutely essential for the public safety, not to mention improving Fire Department morale for both the Hammon and the Byrne classes.[13] The Court is satisfied that using the 1984 promotional lists to make immediate promotions while also creating a new (fourth) platoon is a fair, reasonable, and non-racebased procedure relying upon seniority and past test results, which comes as close as possible to remedying the lengthy delay in promotions in the Fire Department.[14]
G. Administration of New Promotional Tests
Under the Settlement Agreement and Proposed Consent Decree, fair, non-discriminatory, job-related promotional tests would be administered: (1) in December 1990 to fill vacancies arising after March 1, 1989 and before June 1, 1991 (including the 89 new Sergeant, Lieutenant, and Captain vacancies arising from the creation of a fourth platoon by June 1, 1991) and (2) sometime in 1991 so as to permit announcement of the promotional registry by August 1, 1991 to fill vacancies arising after June 1, 1991. Some class members object that it is unfair to permit their colleagues who benefit from the immediate promotions discussed above to also take these two soon-to-be-administered promotional tests. However, these objections in effect argue for applying rules and procedures developed for usual situations to this highly unusual situation, displaying the same fallacious reasoning rejected above. See supra Section F. The City needs immediate promotions based upon fair promotional tests; the TDC has been working diligently, with the Special Master's assistance, to complete the December 1990 promotional test; and class members on both sides of *1098 this lawsuit have already waited much too long for the "privilege" of taking a promotional test. In fact, for many class members the December 1990 promotional test will be their first opportunity for a promotion. Under these unique and unfortunate circumstances, the Court sees nothing wrong with a Settlement Agreement that increases the opportunities for all long-suffering firefighters to take promotional tests quickly to make up for the absence of promotional tests during the last six years.
One common objection to the Settlement Agreement's procedures for administering promotional tests has been raised by some, if not all, of the members of the "Fire Prevention" unit of the Fire Department (as opposed to the much more larger "Fire Suppression" unit), who contend that the Settlement Agreement should be modified to require a promotional test for Fire Suppression separate from the Fire Prevention test. However, the Special Master, the Byrne plaintiffs, and the City have presented several persuasive reasons why this objection is insufficient to require rejection of the Settlement Agreement: (1) the number of vacancies in the Fire Suppression unit is so low (perhaps only one) that administering entirely different Sergeant, Lieutenant, and Captain promotional tests for the Fire Suppression unit is not economically sound; (2) in the short time remaining, the TDC cannot complete the December 1990 promotional test and also develop separate Fire Prevention tests; (3) Fire Prevention personnel would be eligible to take the unitary promotional tests and compete with Fire Suppression personnel for vacancies throughout the Fire Department; and (4) fully cognizant of the City's historic practice of administering one unitary promotional test, Fire Prevention personnel nevertheless voluntarily elected to serve in that unit instead of Fire Suppression.
However, despite the foregoing convincing reasons that militate against the objections by Fire Prevention personnel, all of the parties and the Special Master have pledged that they would continue to give serious consideration to these objections, and the City has agreed to reserve any vacancy or vacancies in the Fire Prevention unit until the parties, working with the Special Master, have arrived at a fair promotional system for the Fire Prevention personnel. In light of the factors supporting the administration of a unitary promotional test at this time and the assurances by all the parties and the Special Master that they are receptive to the Fire Prevention objectors' concerns and are working diligently to consider alternatives to accommodate the Fire Prevention unit,[15] the Court holds that the objections submitted by members of the Fire Prevention unit are insufficient to preclude this Court from approving the Settlement Agreement as a fair resolution of this litigation.
H. Final Certification
Having decided that the Settlement Agreement signed by all the parties on August 20, 1990 should be approved pursuant to Fed.R.Civ.P. 23(e), the Court must also make a final certification of the two classes in this case as required by Fed.R. Civ.P. 23(c) (3), since this lawsuit is clearly a Rule 23(b) (2) type of class action and properly has been treated as such throughout this litigation. Only for purposes of settlement and entry of the Court's Decree implementing the parties' Settlement Agreement, the Court makes a final certification that the Hammon plaintiffs represent a class composed of black uniformed D.C. Fire Department employees and past, present, and future applicants for employment therein and that the Byrne plaintiffs represent a class composed of white uniformed D.C. Fire Department employees who took the 1984 examinations for promotions to the ranks of Sergeant, Lieutenant, and Captain. Furthermore, the Court finds that: (1) the Hammon and Byrne classes are so numerous that joinder of *1099 their respective members is impracticable; (2) there are questions of law and fact common to each of the classes; (3) the claims of the respective named plaintiffs are typical of the claims of each of the classes they represent; and (4) the representatives of the Hammon and Byrne classes fairly and adequately protected the interests of their respective classes. See Fed.R.Civ.P. 23(a).
I. Minor Modifications and Entry of Conditional Decree
The parties have consistently agreed that this Court, once it approves the Settlement Agreement, may enter its own Decree in accordance with the terms of that Settlement Agreement should all three parties be unable to agree upon a consent decree. The Court holds that the Proposed Consent Decree, which has been proffered and supported by the Special Master and signed by the City and the Byrne plaintiffs, see Proposed Consent Decree, Appendix II, properly implements the Settlement Agreement and is in no way inconsistent therewith. Furthermore, the Court holds that Joan Burt's objections and suggested modifications to the Proposed Consent Decree contained in the Hammon Plaintiffs' Post-Fairness Report to the Court not only are meritless but also directly contradict the final and binding Settlement Agreement that she signed on the Hammon plaintiffs' behalf as well as her on-the-record statements approving the Proposed Consent Decree. Therefore, the Court will adopt with some modificationsthe Proposed Consent Decree, attached hereto as Appendix II, as its own Decree, but will order that the Decree will not become effective for several days to give the parties one last opportunity to submit a consent decree signed by all three parties.
In addition, the Court will make certain modificationsnot inconsistent with the Settlement Agreementto the Proposed Consent Decree before adopting it as the Court's Decree. First, the Court sees no reason why the City should be held to its end of the bargain contemplated by the Proposed Consent Decree and required to make an immediate lump-sum payment of $150,000 to the Hammon plaintiffs as interim attorneys' fees when it no longer has the assurance that the Hammon plaintiffs, who refused to sign the Proposed Consent Decree, will not appeal the Court's Decree entered in accordance with the Settlement Agreement. Therefore, the Court will modify those provisions that require the City to make a lump-sum $150,000 payment for interim attorneys' fees to counsel for each of the classes and will order that these payments be placed in separate funds (also separate from the $3.5 million special fund) under the Special Master's supervision and be disbursed only to Joan Burt and Dovey Roundtree (for the Hammon plaintiffs) and to the law firm of Bredhoff and Kaiser (for the Byrne plaintiffs) and only after the period for appeals expires and appeals, if any are decided or dismissed.[16]
Second, the Court recognizes the unfortunate fact that, since all the parties did not sign the Proposed Consent Decree, they are not bound by the provisions contained therein prohibiting parties from appealing the Court's Decree. However, notwithstanding the foregoing, the Court expresses its sincerest hope that all of the parties will realize that it is not in their best interest to attack and further delay the substantial benefits they would receive under the Settlement Agreement and Decree.
Finally, the Court will approve the Claims Form, see Appendix IV, upon the condition that the Special Master and the parties modify the form to: (1) enable heirs or estates of deceased firefighters to submit claims; (2) make it clear that class members may submit claims for special burdens borne during the course of this litigation (as well as special services rendered on behalf of the class); (3) make *1100 January 2, 1991 the deadline for submission of claims forms; and (4) require that the forms be sent, not to the Clerk of the Court, but to a post office box under the Special Master's supervision.
III. Conclusion
It is well established that, "[p]articularly in class action suits, there is an overriding public interest in favor of settlement." Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). Moreover, "litigants should be encouraged to determine their respective rights between themselves." Id. In this case, three parties who have been antagonistic and unable to agree on much of anything over a period of several years have now agreed upon one document to resolve this lawsuit, and all three parties signed this document, referred to herein as the Settlement Agreement, on August 20, 1990. Furthermore, the Court has been intimately involved in this case since 1984, has reviewed and considered all of the objections submitted against the Settlement Agreement, and has "`closely and carefully scrutinize[d] the ... [Settlement Agreement] to make sure that it [is] fair, adequate and reasonable.'" County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323 (2d Cir.1990) (quoting Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir.1982)). In light of the foregoing, the Court, in the exercise of its broad discretion in this matter, see id., approves the parties' Settlement Agreement as a fair, adequate and reasonable resolution to this litigation and conditionally enters a Decree to implement that Settlement Agreement.
The Court will issue an Order of even date herewith in accordance with the foregoing Opinion.
DECREE AND ORDER
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 6th day of November, 1990,
ORDERED that the August 20, 1990 Settlement Agreement signed by all of the parties shall be, and hereby is, APPROVED as a fair, adequate, and reasonable resolution of this class action; and it is
FURTHER ORDERED that, to implement the Settlement Agreement approved in the preceding ordered paragraph, the Court adopts as its Decree and incorporates by reference herein the Proposed Consent Decree attached hereto as Appendix II in its entirety, with the modifications set forth below:
(1) the last sentence of the first full paragraph on page 2 and the last sentence on page 2 shall be, and hereby are, deleted;
(2) the following shall be added at the end of paragraph 15 on page 10: "Once the period for appeals has expired and all appeals, if any, have been completely decided or dismissed, and if the settlement is upheld, interest on the $3,500,000 special fund shall accrue to the Hammon plaintiffs for disbursement to individual class members as the Hammon plaintiffs and the Special Master see fit. If the settlement is not upheld, all funds shall be returned to the City, subject only to approval of the Court.";
(3) paragraph 29 on page 14 shall be, and hereby is, deleted;
(4) paragraph 31 on page 15 shall be, and hereby is, deleted and replaced by the following: "The Court approves the claims form attached to this Decree as Appendix IV so long as the Special Master and the parties modify the form to: (a) permit heirs or estates to submit claims on behalf of deceased firefighters, (b) make it clear that class members may submit claims for special burdens borne during the course of this litigation (as well as for special services rendered on behalf of the class), (3) make January 2, 1991 the deadline for submitting claims forms, and (4) change the address, to which claims forms should be sent, to a post office box under the Special Master's supervision. So modified, this claims form shall be distributed to all class members who currently are Fire Department employees and to all persons who file, or have already filed, a request for a claims form in response to mail, publication, or personal notice. All claims forms must be received by the Special Master on or before January 2, 1991. Only members of the *1101 class who file timely claims forms may receive compensation, although all members of the class are bound by the provisions of this Decree.";
(5) paragraph 33 on page 15 shall be, and hereby is, deleted and replaced by the following: "Within 10 days of the effective date of this Decree, the City shall place in a fund, under the Special Master's supervision but separate from the $3,500,000 special fund referred to in paragraph 15 supra, $150,000 for interim attorneys' fees for the Hammon plaintiffs' counsel, Joan Burt and Dovey Roundtree. The parties agree that, unless this settlement is not upheld, the Hammon class is a prevailing party to a significant extent and that therefore Joan Burt and Dovey Roundtree, as class counsel, are entitled to apply for costs (which shall not include Special Masters' fees) and reasonable attorneys' fees as set forth in paragraph 34 infra. If disbursed, the $150,000 interim attorneys' fees payment shall be set-off against any costs and attorneys' fees recovered later. No distribution of the $150,000 shall be made until the period for appeals expires and appeals, if any, are completely decided or dismissed. Any interest accruing on this $150,000 fund pending appeal, if any, may be used to pay part of the Hammon plaintiffs' portion of the Special Master's fees and expenses, and the remainder, if any, of the interest shall be returned to the City.";
(6) the first sentence of paragraph 34 on page 16 shall be, and hereby is, deleted and replaced by the following: "Within 30 days of the date on which the period for appeals expires and appeals, if any, are completely decided or dismissed, unless the 30-day period is extended upon written application to the Special Master, Joan Burt and Dovey J. Roundtree, counsel for the Hammon plaintiffs, shall submit to the Special Master any applications they may have with respect to attorneys' fees and costs.";
(7) paragraph 35 on page 16 shall be, and hereby is, deleted and replaced by the following: "No attorneys' fees shall be awarded for any time spent filling out claims forms by, or on behalf of, individual class members.";
(8) paragraph 17 on page 22 shall be, and hereby is, deleted and replaced by the following: "Within 10 days of the effective date of this Decree, the City shall place in a fund, under the Special Master's supervision but separate from the $3,500,000 special fund referred to in paragraph 15, Part One supra, $150,000 for interim attorneys' fees for the Byrne plaintiffs' counsel, the law firm of Bredhoff and Kaiser. The parties agree that, unless this settlement is not upheld, the Byrne class and Local 36 are prevailing parties to a significant extent on those issues in which they participated and that therefore Bredhoff and Kaiser, as class counsel, are entitled to apply for costs (which shall not include Special Masters' fees) and reasonable attorneys' fees. If disbursed, the $150,000 interim attorneys' fees payment shall be set-off against any costs and attorneys' fees recovered later. No distribution of the $150,000 shall be made until the period for appeals expires and appeals, if any, are completely decided or dismissed. Any interest accruing on this $150,000 fund pending appeal, if any, may be used to pay part of the Byrne plaintiffs' portion of the Special Master's fees and expenses, and the remainder, if any, of the interest shall be returned to the City. Within 30 days of the date on which the period for appeals expires and appeals, if any, are completely decided or dismissed, unless the 30-day period is extended upon written application to the Special Master, Bredhoff and Kaiser, counsel for the Byrne plaintiffs and Local 36, shall submit to the Special Master any applications they may have with respect to attorneys' fees and costs. The Special Master shall work with all counsel and the defendants in an effort to arrive at an agreement on fees to be paid. If the parties are unable to reach agreement, the Special Master shall make findings and recommendations to the Court, and the Court shall decide the amount of fees and costs to be awarded."; and it is
FURTHER ORDERED that all of the parties shall be, and hereby are, permanently enjoined to carry out the terms of the Settlement Agreement and to do all *1102 that is required by the procedures set forth in this Decree; and it is
FURTHER ORDERED that the City shall refrain from making promotions to fill any and all vacancies in the Fire Prevention unit of the Fire Department until such time as the parties working with the Special Master have arrived at a fair promotional system for Fire Prevention personnel; and it is
FURTHER ORDERED that, in light of the importance of proceeding with the implementation of the terms of this Decree to permit administration of the December 1990 promotional test, no stay of any portion of this Decree shall be granted; and it is
FURTHER ORDERED that, if any party files an appeal, this Court will determine what bond, if any, to require pursuant to Fed.R.Civ.P. 62(c); and it is
FURTHER ORDERED that, notwithstanding anything contained herein, the Hammon plaintiffs, the Byrne plaintiffs, and the City shall each remain obliged to promptly pay one-third of the Special Master's fees and expenses, as set forth in previous Court orders, and counsel for all the parties are reminded of their fiduciary obligations as officers of the Court to see that said fees and expenses are promptly paid; and it is
FURTHER ORDERED that this Decree shall automatically become effective at 4:00 p.m., November 9, 1990, unless before then the parties, with the Special Master's assistance, submit for the Court's approval a consent decree signed by all three parties, in which case this Decree will not become effective until the Court determines whether to accept the parties' newly-proposed consent decree or enter its own decree; and it is
FURTHER ORDERED that the administration of the promotional tests required under the Settlement Agreement and this Decree shall proceed; and it is
FURTHER ORDERED that, within 10 days of the date on which this Decree takes effect, the City shall place $3,500,000 in a special fund under the Special Master's supervision and shall also place the two $150,000 payments for interim attorneys' fees in separate funds under the Special Master's supervision; and it is
FURTHER ORDERED that, because all the parties agreed to settle all of their disputes and terminate this litigation by signing the Settlement Agreement, the above-captioned consolidated cases shall be, and hereby are, DISMISSED, without prejudice, subject only to the Court's continuing jurisdiction over issues related to attorneys' fees, Special Master's fees, or implementation of this Decree.
APPENDIX I
*1103
*1104
*1105
*1106
*1107
*1108
*1109 APPENDIX II
*1110
*1111
*1112
*1113
*1114
*1115
*1116
*1117
*1118
*1119
*1120
*1121
*1122
*1123
*1124
*1125
*1126
APPENDIX III
UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
Marvin K. Hammon, et al.,
Plaintiffs
v.
Marion S. Barry, et al.,
Defendants
C.A. 84-0903
(Consolidated Cases)
Hon. Charles R. Richey
PERSONAL NOTICE TO HAMMON CLASS
THE LITIGATION: If you are or were a member of the District of Columbia Fire Department or if you were an unsuccessful applicant for employment with the Fire Department, and you claim to be a victim of racial discrimination because you are a black man or woman, you are a member of the "Hammon Class." A lawsuit filed in this Court seeks relief on behalf of a class of persons in which you are included. The parties have reached a settlement of this lawsuit, and you will be bound by that settlement if it is approved by the Court.
THE SETTLEMENT: The representatives of the Hammon class have reached a settlement with the District of Columbia regarding all claims of past discrimination involving members of the class. That agreement provides for monetary compensation to some class members, promotions for some class members, and development of future nondiscriminatory promotion tests. The agreement will be embodied in a formal decree which will be approved by the Court. All members of the class will be bound by the decree. The decree will resolve all claims of past discrimination against black employees and/or applicants for employment with the Fire Department i.e., claims of discrimination in hiring, promotion, working conditions, etc., and all claims of racial discrimination against black firefighters or applicants based upon any event which occurred prior to the date of the decree. The settlement resolves all claims of discrimination actually made or which might have been made. If the settlement is approved by the Court, no member of the Class may hereafter sue the City, any department or representative thereof, or any party to the settlement agreement with respect to these matters.
The agreement signed by the parties is attached to this notice. Although a final decree has not yet been approved, it will embody the terms of the signed agreement, as well as set forth procedures for implementing the agreement.
OBJECTIONS: Any member of the class may object to the terms of the agreement. To do so, a class member must object in writing, setting forth specifically the *1127 grounds for objection, and referring to the case number 84-0903. That writing must be received by James F. Davey, Clerk of the United States District Court for the District of Columbia, 3rd & Constitution Aves., N.W., Washington, D.C. 20001 no later than October 9, 1990. Any person who wishes to be heard, personally or through counsel, may appear at a fairness hearing to be held at 2:00 p.m., October 23, 1990, in Courtroom 10 of the United States District Court, provided that such person has filed a timely written objection.
MAKING A CLAIM: A claims form will be made available to all current members of the Fire Department who are members of the Hammon Class after it is approved by the Court. Any other person may request a claims form by writing to James F. Davey, Clerk of the United States District Court for the District of Columbia, 3rd & Constitution Aves., N.W., Washington, D.C. 20001 no later than October 29, 1990, providing his/her name, address, home telephone and social security number, and referring to case number 84-0903. Claims forms will be provided as soon as possible after they are approved by the Court.
LEGAL ASSISTANCE: Any person who believes that he or she is or may be a member of the class and who has questions concerning the settlement or how to make a claim, may contact the lawyers for the Hammon Class at (202) 479-2697. Ask for Ms. Burt.
ADDITIONAL COPIES: Additional copies of this notice, with the attachments i.e., the signed agreement and the promotion scheduleswill be available in Room S102 (Public Affairs Office) of the D.C. Fire Department, at 1923 Vermont Ave., N.W., Washington, D.C. between the hours of 8:30 and 4:30 from now until October 29, 1990.
James F. Davey
Clerk of the U.S. District Court
Important Notice Regarding Settlement of Firefighters Case
UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
Marvin K. Hammon, et al., Plaintiffs
v.
Marion S. Barry, et al., Defendants
C.A. 84-0903
(Consolidated Cases)
Hon. Charles R. Richey NOTICE BY PUBLICATION TO HAMMON CLASS
THE LITIGATION: If you are or were a member of the District of Columbia Fire Department or if you were an unsuccessful applicant for employment with the Fire Department, and you claim to be a victim of racial discrimination because you are a black man or woman, you are a member of the "Hammon Class." A lawsuit filed in this Court seeks relief on behalf of a class of persons in which you are included. The parties have reached a settlement of this lawsuit, and you will be bound by that settlement if it is approved by the Court.
THE SETTLEMENT: The representatives of the Hammon class have reached a settlement with the District of Columbia regarding all claims of past discrimination involving members of the class. That agreement provides for monetary compensation to some class members, promotions for some class members, and development of future nondiscriminatory promotion tests. The agreement will be embodied in a formal decree which will be approved by the Court. All members of the class will be bound by the decree. The decree will resolve all claims of past discrimination against black employees and/or applicants for employment with the Fire Department i.e., claims of discrimination in hiring, promotion, working conditions, etc., and all claims of racial discrimination against black firefighters or applicants based upon any event which occurred prior to the date of the decree. The settlement resolves all *1128 claims of discrimination actually made or which might have been made. If the settlement is approved by the Court, no member of the Class may hereafter sue the City, any department or representative thereof, or any party to the settlement agreement with respect to these matters.
COPIES OF AGREEMENT: Copies of the signed agreement will be available in Room S102 (Public Affairs Office) of the D.C. Fire Department, at 1923 Vermont Ave., N.W., Washington, D.C. between the hours of 8:30 and 4:30 from now until October 29, 1990. You may pick up copies or have copies picked up for you. Although a final decree has not yet been approved, it will embody the terms of the signed agreement, as well as set forth procedures for implementing the agreement.
OBJECTIONS: Any member of the class may object to the terms of the agreement. To do so, a class member must object in writing, setting forth specifically the grounds for objection and referring to the case number 84-0903. That writing must be received by James F. Davey, Clerk of the United States District Court for the District of Columbia, 3rd & Constitution Aves., N.W., Washington, D.C. 20001 no later than October 9, 1990. Any person who wishes to be heard, personally or through counsel, may appear at a fairness hearing to be held at 2:00 p.m., October 23, 1990, in Courtroom 10 of the United States District Court, provided that such person has filed a timely written objection.
MAKING A CLAIM: A claims form will be made available to all current members of the Fire Department who are members of the Hammon Class after it is approved by the Court. Any other person may request a claims form by writing to James F. Davey, Clerk of the United States District Court for the District of Columbia, 3rd & Constitution Aves., N.W., Washington, D.C. 20001 no later than October 29, 1990, providing his/her name, address, home telephone and social security number, and referring to case number 84-0903. Claims forms will be provided as soon as possible after they are approved by the Court.
LEGAL ASSISTANCE: Any person who believes that he or she is or may be a member of the class and who has questions concerning the settlement or how to make a claim, may contact the lawyers for the Hammon Class at (202) 479-2697. Ask for Ms. Burt.
James F. Davey
Clerk of the U.S. District Court
United States District Court District of Columbia
Kevin M. Byrne, et al., Plaintiffs
v.
Theodore R. Coleman, et al., Defendants
C.A. 85-0782
Hon. Charles R. Richey PERSONAL NOTICE TO BYRNE CLASS
THE LITIGATION: Kevin M. Byrne and others filed a class action on behalf of all white members of the District of Columbia Fire Department eligible for promotion to challenge a proposed affirmative action plan and the use of race as a criterion in making promotions. Representatives of the class have agreed to a settlement of their suit.
THE SETTLEMENT: A signed agreement of the parties is attached to this notice. That agreement sets forth all essential terms of the settlement. These terms will be embodied in a decree which will be submitted for the Court's approval. Briefly stated, the settlement provides (1) that designated individuals will be promoted to vacancies in the ranks of Sergeant, Lieutenant *1129 and Captain that arose prior to March 1, 1989, without any racial preferences, (2) that a fourth platoon will be established, resulting in additional promotional opportunities, and (3) that new promotional tests will be administered on two occasions in the coming months, with the resulting promotional registers to be announced by February 1, 1991 and August 1, 1991. All members of the class will be bound by the decree. The decree will resolve all claims brought by the class involving promotions that have taken place and all claims involving promotions which are required by the agreement. The settlement resolves all claims of discrimination actually made or which might have been made. If the settlement is approved by the Court, no member of the Class may hereafter sue the City, any department or representative thereof, or any party to the settlement agreement with respect to these matters.
OBJECTIONS: Any member of the class may object to the terms of the agreement. To do so, a class member must object in writing, setting forth specifically the grounds for objection and referring to the case number 85-0782. That writing must be received by James F. Davey, Clerk of the United States District Court for the District of Columbia, 3rd & Constitution Aves., N.W., Washington, D.C. 20001 no later than October 9, 1990. Any person who wishes to be heard, personally or through counsel, may appear at a fairness hearing to be held at 2:00 p.m., October 23, 1990, in Courtroom 10 of the United States District Court, provided that such person has filed a timely written objection.
LEGAL ASSISTANCE: Any person who believes that he or she is or may be a member of the class and who has questions concerning the settlement may contact the lawyers for the Byrne Class at (202) 833-9340. Ask for Mr. Cohen or Mr. Collins.
James F. Davey
Clerk of the U.S. District Court
APPENDIX IV
This Form Must be Received on or Before Nov. 30, 1990
United States District Court District of Columbia
Marvin K. Hammon, et al., Plaintiffs
v.
Marion S. Barry, et al., Defendants
C.A. 84-0903
(Consolidated Cases)
Hon. Charles R. Richey
Nov. 6, 1990
HAMMON CLASS CLAIMS FORM
----------------------------
Please Print Name
I declare under penalty of perjury that the statements made below
are true, to the best of my knowledge and belief:
1. I am a black employee, past or present, in the uniform ranks of
the D.C. Fire Department, or a past unsuccessful applicant for
employment in such position. I am or was employed by the District
of Columbia Fire Department, or I unsuccessfully applied for employment
with the Fire Department. I claim that I have been the victim
of racial discrimination in hiring or employment by the Department.
2. I qualify for compensation under the settlement for the following
reason(s).
*1130 (a) During the following years, I was employed by the Fire
Department, and I was a member of the Department on 1/1/80:
1962 ____ 1963 ____ 1964 ____ 1965 ____ 1966 ____ 1967 ____
1968 ____ 1969 ____ 1970 ____ 1971 ____ 1972 ____ 1973 ____
1974 ____ 1975 ____ 1976 ____ 1977 ____ 1978 ____ 1979 ____
OR
(b) I took the 1980 hiring examination to qualify for employment
as a D.C. firefighter, and I became a firefighter on __________
(fill in date)
OR
(c) I took the 1980 hiring examination to qualify for employment
as a D.C. firefighter. I was never hired but I received notice
that a firefighter's position was available on ________ (fill in
date or "never")
(3) I qualify for compensation for special services on behalf of the
class rendered on my own time. I spent _____ (fill in number) hours
and provided the following services: (describe briefly) ___________
_______________________________________________________________________
_______________________________________________________________________
(4) I am unsure about whether I qualify for compensation. I state
the following facts for consideration when compensation is awarded
(state any facts that explain why you think you might be eligible for
compensation, and indicate any information which you need but do
not have at the time you are filling out this form):
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
DATED: ___________________________________
Signature
___________________________________
ADDRESS ___________________________________
___________________________________
HOME TELEPHONE ( )_______________________________
SOCIAL SECURITY NO. ___________________________________
MAIL THIS FORM TO:
James F. Davey,
Clerk of the United States District Court for the District of
Columbia
3rd & Constitution Aves., N.W.,
Washington, D.C. 20001
IT MUST BE RECEIVED ON OR BEFORE NOVEMBER 30, 1990
NOTES
[1] The TDC was established earlier in this litigation by agreement of all the parties and has been funded by the City.
[2] The Court received about 108 written submissions but about 22 of those submissions were requests for claims forms.
[3] According to data gathered by the Special Master with the help of the parties, there are currently about 1,300 firefighters represented by Local 36 who would be affected by the Settlement Agreement as members of either the Hammon or the Byrne classes. In addition, approximately 974 persons took the 1980 hiring examination, and about 724 of those applicants were black and are included in the Hammon class. However, there is some overlap because a (presently undetermined) number of those 724 black applicants have since been hired and are currently with the Fire Department. Finally, in addition to the foregoing figures, about 189 retired black firefighters are also part of the Hammon class.
[4] Although the record does contain some evidence of discrimination, the Hammon plaintiffs' chances of prevailing in any significant way if this case were to go to trial are by no means overwhelming. In addition to contending with the City's statute of limitations defense, which as discussed below is potentially devastating to the older discrimination claims from that period when discrimination was most obvious, see infra Section D, the Hammon plaintiffs must keep in mind that, at the administrative level, "the Hearing Examiner rejected the lion's share of the [Holmes]-Sheffield [intentional discrimination and adverse impact] allegations." Hammon, 813 F.2d at 415; see also id. at 415 n. 5.
[5] The Court pauses to note briefly that it is axiomatic that the Hammon plaintiffs are bound by the provisions of the Settlement Agreement which specify that they will receive $3.5 million from the City. Therefore, the Court summarily rejects Joan Burt's frivolous post-Fairness Hearing request that the Court unilaterally "modify" the Settlement Agreement and order the City to pay an additional $1 million into the settlement fund. See October 31, 1990 Hammon Plaintiffs' Post-Fairness Hearing Report to the Court at 8. A settlement agreement is a contract that may not be unilaterally rescinded, see American Sec. Vanlines, Inc. v. Gallagher, 782 F.2d 1056, 1060 (D.C.Cir. 1986), and "when [one party] attempt[s] to withdraw from the agreement, [the other party can] enforce[] it by requesting the district court to enter the appropriate order," Village of Kaktovik v. Watt, 689 F.2d 222, 230 (D.C.Cir.1982).
[6] Joan Burt's extensive discussion of the claims by named plaintiffs and individual class members claiming under them is the epitome of such speculation. See Hammon Plaintiffs' Post-Fairness Hearing Report to the Court at 10-15. This part of the report lists specific amounts for claims of retaliation, harassment, embarrassment, and a wide variety of other indignities allegedly suffered by individual class members including named plaintiffs without recognizing that, at this point, they are nothing more than allegations or claims. There is no indication that any of these claims are supported by sufficient proof to pin liability on the City at trial (assuming this case went to trial) nor is there any indication that the exact sums of money that Joan Burt proffers are accurate measures of the relief that would be awarded even if the City were held liable. The Hammon plaintiffs' report erroneously treats harassment/retaliation types of discrimination claims as if they were claims for liquidated damages or for sums certain under a contract, making the fallacy of equating claims for finite sums of money with monetary remedies awarded by a fact-finder after a trial.
[7] Although there are about 189 retired black firefighters included in the Hammon class, only approximately 40 objected to the January 1, 1980 cut-off date. Moreover, of those retirees who objected, over half of them retired in or long before 1976over seven years before this lawsuit was filed and well over three years before the Holmes-Sheffield administrative complaints were filed (which in any event only alleged discrimination beginning in October 1979, see Hammon, 813 F.2d at 413.).
[8] In fact, the parties and the Special Master correctly recognized that there are some claims by class members who were firefighters on January 1, 1980 that probably would nevertheless have been time-barred, but the parties agreed that this cut-off date would provide somewhat of a cushion to ensure that no legally meritorious claims would be extinguished.
[9] Nor does the common objection submitted by Joel Bennett on behalf of most of the retired firefighters shake the Court's conclusion. Nowhere does this one-and-a-half page filing even attempt to dispute the proposition that, if this litigation were to proceed, the retirees' claims would be time-barred. Furthermore, contrary to the filing's assertions (unsupported by any authority) that the Settlement Agreement is unfair to the retirees and confers a disproportionate benefit upon other class members, use of the cut-off date properly recognizes that the retirees' claims are weak as a matter of law and that it is fair to distribute the settlement fund in direct proportion to the relative strength of the class members' claims.
[10] An examination of the allegations contained in the Hammon plaintiffs' Amended Complaint reveals that two of the named plaintiffs, Rose L. Queen and Gregory R. Lee, apparently neither were firefighters nor took the 1980 hiring test. See Amended Complaint ¶¶ 13 & 14 (alleging that Rose L. Queen and Gregory R. Lee were employees of the City government who suffered retaliation for testifying at the Holmes-Sheffield administrative hearings). If that is the case, then these two named plaintiffs (as well as individuals claiming under them, if any) are of course not members of the Hammon class and would not be entitled to any share of the settlement fund.
[11] Due to the unique circumstances of Marvin K. Hammon's backgroundapparently he worked at the Fire Department during the 1970's; resigned in good standing to move to Louisiana in 1977; returned and was told to take the 1980 exam; and then was finally rehired in 1985none of the parties objected to the Special Master's on-the-record suggestion that the January 1, 1980 cut-off date will not apply to him. See October 16, 1990 Meeting with Special Master Tr. at 20-21. As for Larry McMillan, another named plaintiff, although he would seem to be precluded by the January 1, 1980 cut-off date from sharing in the $2.4 million part of the settlement fund, the Court can perceive no reason why he would not be entitled to recover part of the $100,000 set-aside amount if he can substantiate his allegations of great harassment and retaliation. Of course, both Hammon and McMillan (along with most of the other Hammon class members) will also benefit greatly from the creation of a fourth platoon and the opportunity to take promotional tests in December 1990 and in the first half of 1991.
[12] Although some firefighters, who have been serving during this litigation at a higher rank in an acting capacity, will not be promoted immediately under the Settlement Agreement, there is no indication on this record that any of them were ever promised promotions. Moreover, the parties have stated that these firefighters were specifically told that serving in an acting capacity would provide no basis for preferential consideration when permanent promotions were made. See Proposed Consent Decree, Appendix II, Part Two ¶ 3. Finally, the firefighters serving in an acting capacity have the opportunity to take the promotional tests and compete for promotions for all vacancies arising as of March 1, 1989.
[13] The importance of these immediate promotions is underscored by the fact that, despite initially registering forceful opposition to relying upon the 1984 promotional lists to fill any vacancies arising after October 15, 1986, the Byrne plaintiffs and Local 36 ultimately agreed with the Hammon plaintiffs to this procedure. Moreover, the Court is extremely perplexed by the Hammon plaintiffs' implicit criticism of reliance on the promotional lists, see Hammon Plaintiffs' Post-Fairness Hearing Report to the Court at 16 n. 15, because all along the Hammon plaintiffs have fought tooth-and-nail in favor of using those same promotional lists to make immediate promotions.
[14] About two objecting class members who are retired argue that the Settlement Agreement's promotion procedures should be modified to give them retroactive promotions and increase their retirement benefits. However, that objection is without merit because it would confer an unexpected wind-fall benefit upon these individuals, who are no worse off under the Settlement Agreement than they expected when they retired. They decided to retire and collect their benefits, thus avoiding the continuing risk that this litigation would destroy their chances for advancement. On the other hand, those class members who decided not to retire assumed the risk that their chances for advancement could be stunted indefinitely by this litigation, and, in return for that decision, they properly benefit under this Settlement Agreement.
[15] Most recently, the Special Master has informed the Court that he and the parties are seriously considering the Fire Prevention personnel's newest suggestion that a merit system of promotions for the Fire Prevention unit may be more cost-effective than administering a separate promotional test.
[16] Moreover, the Court will order that any interest accruing on these funds pending appeals, if any, may be used to pay the Hammon plaintiffs' and the Byrne plaintiffs' portions of the Special Master's fees and expenses and that the remainder of the accrued interest, if any, will be returned to the City.
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