UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HENRY W. SEGAR, et al.,

Plaintiffs,

v. Civ. Action No. 77-0081 (EGS)

PAMELA J. BONDI, U.S. Attorney General, et al.,

Defendants.1

MEMORANDUM OPINION

“Title VII of the Civil Rights Act of 1964 proclaims one of

this nation’s most fundamental, if yet unrealized, principles: a

person shall not be denied full equality of employment

opportunity on account of [their] race . . . .” Segar v. Smith,

(D.C. Cir. 1984). For nearly fifty years,

African American Special Agents (“Plaintiffs”) at the Drug

Enforcement Agency (“DEA” or “Agency”), have fought for their

employer, their country, to live up to this obligation.

1 According to Plaintiffs’ Motion for Preliminary Approval, “[w]hile the United States does not waive this argument [that the DEA Administrator is not a proper defendant], it agrees for purposes of filings concerning this settlement to use of the plural form “defendants” for ease of reading.” Mot. for Prelim. Approval, ECF No. 502 at 2. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current Attorney General and DEA Administrator are substituted for the prior Attorney General and DEA Administrator. See Fed. R. Civ. P. 25(d). 1 Among these Plaintiffs are a group of African American

Special Agents (“Damages Class”) who were denied promotions to

GS-14 or GS-15 positions between 1993 and 2022, despite making

the Best Qualified List (“BQ List”), under promotion procedures

that were found to violate the law and this Court’s orders. The

Court agrees that “[d]amages cannot entirely remedy that harm,

as money cannot give Black Special Agents the opportunities to

lead and otherwise serve their country at the highest levels—

opportunities that those agents earned through years of hard

work and putting their lives on the line.” Pls.’ Mot. for

Individual Relief, ECF No. 486 at 1. But the Proposed Partial

Settlement Agreement (“Proposed Settlement”) now before the

Court will finally provide some amount of compensation to these

public servants whose lives and careers were mired in decades of

injustice. On March 24, 2025, this Court held a Fairness Hearing

(“Fairness Hearing”) during which it issued a bench ruling

approving the Proposed Settlement. See Mot. for Final Approval,

ECF No. 512.2 This Memorandum Opinion memorializes that ruling.

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF header page number, not the page number of the filed document. 2 I. Background

A. Underlying Litigation

The DEA was established as part of the Justice Department

in 1973 to “enforce[] this nation’s federal criminal laws

concerning the illegal sale, distribution, and use of drugs.”

See Segar,

. The “bulk of the DEA’s criminal

investigative work” is done by “Special Agents.”

At the time

this case commenced, the DEA “employ[ed] about 2,000” Special

Agents, “and as of 1978, [only] seven percent were [B]lack.”

In 1977, Plaintiffs filed a Title VII action alleging that

the DEA discriminated against them in its employment practices.

at 1258–60 (Plaintiffs “alleged discrimination in

recruitment, hiring, initial grade assignments, salary, work

assignments, evaluations, discipline, and promotions”). The

Court certified a class of all African Americans “who had then

served or . . . had been discharged as [S]pecial [A]gents at

DEA, and who had applied for positions or would in the future

apply.”

at 1260–61. After a two-week trial in 1979, the

Court agreed that the DEA had discriminated against Plaintiffs

with respect to their salary, grade at entry, work assignments,

supervisory evaluations, discipline, and promotions. See Segar

v. Civiletti,

, 712–15 (D.D.C. 1981), aff’d in

part, rev’d in part, Segar v. Smith,

3 (“affirm[ing] the District Court’s liability determination in

its entirety”). The United States Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) affirmed the

Court’s liability determination in full, but vacated some of the

Court’s remedial measures and remanded the case for further

proceedings. See Segar,

.

After the 1981 trial, the Court “directed the parties to

submit proposals for further relief.” Segar v. Smith, Civ. No.

77-81,

, at *1 (D.D.C. Feb. 17, 1982). It adopted

Plaintiffs’ proposal and ordered, inter alia, that the DEA

“shall not discriminate against any [B]lack agent because of his

race, color or national origin, with respect to . . .

promotions” and that it shall “develop and implement new,

nondiscriminatory employment systems with respect to . . .

promotions.” Id., at *4. Since then, the parties have engaged in

litigation to effectuate the Court’s order enjoining the DEA

from engaging in discriminatory practices. See Segar v. Barr,

No. 77-cv-81,

, at *1 (D.D.C. June 25, 2019).

A comprehensive history of this litigation exists in the

record and in the Court’s prior opinions; this Memorandum

Opinion focuses on the events that led to the Proposed

Settlement. Fulsome review of the record makes clear, however,

that an extraordinary amount of effort, time, and resources went

4 into ensuring that the DEA complies with its obligations. As the

Court noted at the Fairness Hearing, all the Damages Class

members, especially members of the EEOMC, Class Counsel, Working

Group, and Defendants deserve recognition for negotiating a

settlement to account for decades of wrongdoing. This case has

spanned multiple judges, including Judge Aubrey E. Robinson, who

presided over this case from 1977 until he passed away on

February 27, 2000, shortly before the case was reassigned to

this Court on March 29, 2000; Magistrate Judge John M. Facciola,

who presided over numerous disputes and settlement negotiations

throughout the decades; and Magistrate Judge Zia M. Faruqui, who

assisted in settlement negotiations shortly before the parties

reached their Proposed Settlement here. These judges, similarly

to the parties and all those affected by the DEA’s actions,

deserve recognition for their roles in facilitating the pursuit

of justice and accountability.

B. Discriminatory Promotion Procedures

In response to the Court’s 1982 order for the DEA to

implement nondiscriminatory procedures, including for

promotions, the DEA implemented two sets of procedures that

ended up themselves being discriminatory. First, the DEA

implemented the Special Agent Promotion Process (“SAPP”) in

1992. See Op., ECF No. 35. Under the SAPP, agents who scored

5 high were placed on the BQ List for a position. Id. at 2. Agents

on the BQ List were considered “equally qualified for promotion

to the vacant position.” Id. Simultaneously, the Special Agent

in Charge (“SAC”) for the division with the vacancy could

“submit a list of his recommendations in order of preference.”

Id. The DEA’s Career Board would then select an agent for the

promotion. Id.

In 1997, Plaintiffs filed a motion for compliance order in

which they argued that the SAPP continued to discriminate

against them in violation of law and court order. Id. In 1999,

the Court granted Plaintiff’s motion in part and held that “the

use of SAC short list recommendations for promotions to Grades

14 and 15 violate[d] this Court’s remedial orders and Title VII

of the Civil Rights Act of 1964.” Id. at 22–23; see also Order,

ECF No. 36. The Court “enjoin[ed] the use of SAC recommendations

until such time as their use can be validated as consistent with

the agency’s obligations under law.” Op., ECF No. 35 at 22. It

also “ask[ed] the parties to brief the question of fashioning

individual relief.” Id.

Second, and in response to the Court’s 1999 order, the

parties negotiated “Interim Procedures” for GS-14 and GS-15

promotions, which the Court approved. See Mot. for Prelim.

Approval, ECF No. 502 at 3. The parties could not negotiate a

6 “permanent, validated process,” however, and these Interim

Procedures were in place for more than twenty years. Id. During

that time, Plaintiffs, especially the EEOMC, “determined that

the Interim Procedures themselves had a discriminatory effect on

Black agents.” Id.

In 2010, Plaintiffs filed a motion for compliance and to

show cause why the DEA should not be held in contempt for

violating the Court’s orders to implement non-discriminatory

procedures. See Pls.’ Mot. for Compliance, ECF No. 303 at 5–8.

The Court referred the motion for compliance and several other

issues to Magistrate Judge Facciola. See Minute Order (Aug. 22,

2014). Magistrate Judge Facciola held an evidentiary hearing and

prepared a Report and Recommendation regarding the promotion

process, status of the Working Group, availability of a third-

party vendor capable of validating future promotion procedures,

continued oversight of the DEA’s compliance, and calculation of

individual relief and attorneys’ fees. See R&R, ECF No. 395. In

2019, the Court adopted in part Judge Facciola’s Report and

Recommendation and granted in part Plaintiff’s motion for

compliance order. See Order Adopting R&R, ECF No. 423 at 1–2. It

ordered the parties to develop “a modified plan for promotions

to GS-14 and GS-15 level positions” and if Plaintiffs concur,

“seek a petition to allow implementation of the plan for future

7 promotion practices, subject to a decision . . . as to whether

[it] requires further validation . . . .” Id.

The DEA then proposed new procedures and agreed to a

validation study. See Mot. for Prelim. Approval, ECF No. 502 at

3. The Court approved the new procedures on April 7, 2022, and

the DEA implemented them a month later. See id.; see also Minute

Order (Apr. 7, 2022) (granting Joint Motion for Entry of GS-

14/15 Promotion Procedures, ECF No. 461).

C. Calculation of Damages

In the 2019 Order, the Court also required Plaintiffs to

“state with certainty the damage model they propose and allow

defendant to either concede the validity of the model or file an

opposition.” Order Adopting R&R, ECF No. 423 at 2. “[P]laintiffs

proposed a damages model, developed in consultation with

statistical experts who analyzed DEA promotion cycles between

January 21, 1993 (the first cycle in which non-compliance with

the injunction was established), and May 2, 2022 (when . . . the

DEA replaced the Interim Procedures with validated procedures).”

Mot. for Prelim. Approval, ECF No. 502 at 3–4. This model had

three main components: backpay, frontpay, and prejudgment

interest on backpay.

Damages Class members who made the BQ List for GS-14 or GS-

15 promotions would “receive backpay based on the estimated

8 wages and pension value they would have received if they had

been promoted in a timely manner.” Id. (citing Ex. B to Pls.’

Proposal for Individual Relief, ECF No. 486-1 (detailed

explanation of the backpay methodology)). The model called for

prejudgment interest on backpay to “account for the time elapsed

between when the backpay accrued and when the damages would

actually be paid,” using the Prime Rate. Id. (citing Ex. B to

Pls.’ Proposal for Individual Relief, ECF No. 486-1). Finally,

backpay-eligible class members who had still not been promoted

to a GS-14 or GS-15 position by the end of the backpay period

would receive frontpay to “compensate for the estimated wages

and retirement benefits those class members would have earned

after May 2, 2022.” Id. The model discounted frontpay based on

the statistical probability that after May 2, 2022, class

members at issue would be promoted or leave the Agency. Id.

The DEA agreed on Plaintiffs’ entitlement to backpay, but

“objected to [P]laintiffs’ use of the prime rate to calculate

prejudgment interest and to [P]laintiffs’ request for frontpay

entirely.” Id. After they reached this impasse, the parties

briefed these issues to the Court. See Pls.’ Mot. for Individual

Relief, ECF No. 486; Defs.’ Opp’n to Pls.’ Opening Br. for

Individual Relief (“Defs.’ Opp’n Individual Relief”), ECF No.

489; Pls.’ Reply, ECF No. 491. Based on the methodology

9 described above, Plaintiffs sought $13,054,177.51. See Pls.’ Mot

for Individual Relief, ECF No. 486 at 2; Pls.’ Notice of Updated

Amount of Individual Relief, ECF No. 492 (correcting requested

relief amount). Plaintiffs argued that prejudgment interest on

backpay should be based on the “average annual prime rate for

each year . . . .” See Pls.’ Mot for Individual Relief, ECF No.

486 at 6. Defendants opposed Plaintiffs’ use of the prime rate

to calculate prejudgment interest and argued that the lower

“three-month Treasury bill rate” should be used instead. See

Defs.’ Opp’n Individual Relief, ECF No. 489 at 6. They also

opposed frontpay as too speculative. Id. at 9.

D. Proposed Settlement and Notice Process

On April 5, 2024, Defendants submitted a notice that “the

parties have reached an agreement in principle regarding

Plaintiffs’ request for individual relief.” See Defs.’ Notice

Regarding Individual Relief, ECF No. 498 at 1.3

3 Plaintiffs submitted a response to Defendants’ notice on April 8, 2024 clarifying that the Parties had not resolved their dispute over attorneys’ fees, which this Court subsequently resolved on September 27, 2024. See Pls.’ Resp. to Defs.’ Notice Regarding Individual Relief, ECF No. 499; Order Granting in Part Mot. for Att’ys’ Fees, ECF No. 500; Mem. Op., ECF No. 501. The Court granted in part Plaintiffs’ Petition for Attorneys’ Fees on September 27, 2024, and awarded Plaintiffs’ attorneys $14,689,565.23 for work performed on the litigation from June 1, 1996, to June 25, 2019. See Order, ECF No. 500; Mem. Op., ECF No. 501. 10 The Proposed Settlement is a Partial Settlement to the

extent that it only compensates plaintiffs who fit the class

description for the specific unlawful discrimination suffered in

the class definition. See Proposed Settlement, ECF No. 502-1.

The key terms are:

• Payment of $12,568,035.60 by Defendants to Plaintiffs,

which includes “all backpay and nearly all frontpay and

prejudgment interest that [P]laintiffs sought in their

individual relief motion.” Mot. for Prelim. Approval, ECF

No. 502 at 5 (citing Proposed Settlement § 1.N).

• Defendants will “bear the reasonable costs of notice and

administration of distribution of class awards . . . .” Id.

(citing Proposed Settlement § V.C). Therefore, these costs

will not reduce the settlement amount.

• Plaintiffs will “release their pending claim for damages

incurred as a result of defendants’ lack of compliance with

the Court’s 1982, 1999, and 2019 orders directing [the] DEA

to implement non-discriminatory, validated procedures for

GS-14 and -15 level promotions, as set forth in their

individual relief motion.” Id. (citing Proposed Settlement

§ V.A).

11 • Plaintiffs will “withdraw their individual[] relief motion

within two business days of a final approval of the

settlement.” Id. (citing Proposed Settlement § V.B).

Plaintiffs selected Michael Lewis (“Mr. Lewis”) as a

neutral to distribute the funds according to the proposed

allocation plan (“Allocation Plan”). See Allocation Plan, ECF

No. 502-2; Lewis CV, ECF No. 502-4. The Allocation Plan lists

several factors for Mr. Lewis to consider when making allocation

determinations. See Allocation Plan, ECF No. 502-2. Plaintiffs

also selected “Settlement Services, Inc. (“SSI”), an experienced

class administration firm, to manage the distribution of notice

and claim forms to class members, receive opt-out requests and

claim forms, and process payments to class members.” See Mot.

for Prelim. Approval, ECF No. 502 (citing Allocation Plan, ECF

No. 502-2; SSI Brochure, ECF No. 502-3).

On November 1, 2024, Plaintiffs filed their Motion for

Preliminary Approval. See Mot. for Prelim. Approval, ECF No.

502. On November 8, 2024, the Court granted the motion and

scheduled a Fairness Hearing for February 6, 2025. See Order,

ECF No. 503. The Court also provisionally certified the Damages

Class under Federal Rules of Civil Procedure 23(a) and 23(b)(3);

approved the selection of Class Representatives; approved the

selection of Class Counsel; preliminarily approved the Proposed

12 Settlement; held that the “method of providing notice to members

of the settlement class” is reasonable, valid, and sufficient to

comply with Federal Rule of Civil Procedure 23 and the U.S.

Constitution; approved the proposed notice, claim form, and

sample questionnaire as to form; approved the appointment of Mr.

Lewis to serve as a qualified neutral to distribute funds; and

appointed SSI to “manage the distribution of notice and claims

forms, receive opt-out requests and claim forms, and process

payments to class members.” Order, ECF No. 503. Additionally,

the Court set timeframes for service of the notices and any

objections prior to the Fairness Hearing.

A total of 486 putative class members received notice of

the Proposed Settlement. See Mot. for Final Approval, ECF No.

512 at 2. The distribution of notice began on December 2, 2024.

Initially, notices were sent to 392 putative class members. See

id. Seven of these notices were returned as undeliverable, but

those notices were successfully re-mailed. During the notice

period, additional putative class members were identified, so

the parties sought, and this Court granted, a forty-five day

continuance of the Fairness Hearing so that those additional

putative class members could receive proper notice. See id. at

1-2. Notice was mailed to 94 additional putative class members

13 on February 21, 2025. See id. at 2. None of these additional

notices were returned as undeliverable. See id.

On January 31, 2025, Plaintiffs filed a Consent Motion for

Continuance representing that the parties have been “diligently

working to identify putative class members and confirm

membership in the class” but “on January 29, 2025, seventy-nine

additional putative class members were identified” and they had

not yet received notice nor the opportunity to object or opt-

out. See Consent Mot. for Continuance, ECF No. 511. The same

day, the Court granted Plaintiffs’ Consent Motion and continued

the hearing, and associated deadlines, forty-five days to March

24, 2025. See Minute Order (Jan. 31, 2025).

On March 18, 2025, Plaintiffs filed their Motion for Final

Approval. See Mot. for Final Approval, ECF No. 512. In addition

to arguing why the Court should approve the settlement,

Plaintiffs also explained that “[t]o [e]nsure [c]ompliance

[w]ith [f]ederal [l]aw,” the parties “[e]xecuted [a] [n]on-

[s]ubstantive [a]mendment . . . [r]egarding [p]ayment

[m]echanics,” which they assert “does not undermine the

settlement’s overall fairness . . . .” Id. at 9–10.4 At the

4 The parties executed this amendment due to a change in the Agency’s position on how such payments must be processed. See Mot. for Final Approval, ECF No. 512 at 8–9. Instead of paying the funds into an escrow account pending final approval, payments will be made “once final allocation decisions have been 14 Fairness Hearing, the Court directed the parties to submit joint

status reports every sixty days regarding the settlement

allocations and payments.

E. Objections

No Damages Class members opted-out of the Proposed

Settlement. Two people, Richard Holmes (“Mr. Holmes”) and Dennis

Maye (“Mr. Maye”), filed notices of intent to appear and

objections. See Holmes Objs., ECF No. 512-3; Maye Objs., ECF No.

512-2. During the Fairness Hearing, these two Damages Class

members either withdrew their objection or clarified that their

respective objection was not relevant to the Proposed

Settlement.

made by the third-party neutral and this Court has entered final approval of the overall settlement amount.” See id. at 9 (discussing Stip. & Notice of Amend., ECF No. 512-4). Defendants now take the position that the Judgment Fund Branch at the U.S. Department of Treasury, Bureau of Fiscal Service must process the payments following the final allocation and “conduct a ‘pre- check’ of the Treasury Offset Program . . . database to determine whether any individual class members who will receive awards based on the Final Allocation have delinquent debts owed to the United States (or certain delinquent debts owed to states with whom Treasury has delinquent debt collection agreements).” See Stip. & Notice of Amend., ECF No. 512-4 at 2.4 Plaintiffs “do not concede the legal correctness of Fiscal Service’s position” on these matters, but because “Treasury’s position has precluded defendants from transferring the settlement funds on the timetable provided by the settlement agreement,” the parties executed this amendment. See Mot. for Final Approval, ECF No. 512 at 8–9. Plaintiffs report that “[a]ll known putative class members were mailed notice of the amendment on February 24, 2025, nearly thirty days prior to the final fairness hearing.” Id. at 10 (citing Hyde Decl., ECF No. 512-1). 15 Mr. Holmes is a retired DEA Agent who admirably served the

DEA throughout his career, including leading offices all over

the world. He initially believed that the individual allocation

of settlement funds had already been made and objected to the

amount that he believed he would receive. See Holmes Objs., ECF

No. 512-3. But once it became clear during the hearing that such

allotments had not yet been made and the document Mr. Holmes

believed showed these allotments served a different purpose, Mr.

Holmes withdrew his objection. Mr. Holmes agreed that the

process provided in the Proposed Settlement to determine

individual payment amounts; submission of a questionnaire and an

optional one-hour interview with Mr. Lewis, would provide

sufficient opportunity to take into account the factors related

to his case that he viewed as important to his individual

settlement amount.

Mr. Maye is a “Retired BA Class 66 Special Agent” and a

member of this class action lawsuit. See Maye Objs., ECF No.

512-2. Prior to the Fairness Hearing, Mr. Maye generally

objected that “[t]he settlement does not include all issues and

matters concerning promotion opportunities and fairness

representation.” Id. At the Fairness Hearing, Mr. Maye raised

several concerns with the DEA’s treatment of African American

Special Agents as well as a motion to replace Class Counsel that

16 was filed in 2000. He also urged continued monitoring of the

DEA’s compliance with the law and court orders. After discussing

these concerns with Class Counsel, Mr. Maye confirmed to the

Court that he did not have an objection to the Proposed

Settlement. As discussed at the Fairness Hearing, the Proposed

Settlement does not purport to resolve any aspect of this

litigation other than the request for individual relief from the

Damages Class. See also Proposed Settlement, ECF No. 502-1 at 6

(“Nothing in this Agreement shall be construed as resolving any

aspect of this litigation other than that in the previous

paragraphs.”). The Court also reminded the parties and Damages

Class members that the EEOMC and the Working Group were already

ordered to continue monitoring the Agency’s compliance through

at least July 24, 2027. See Minute Order (July 24, 2023).

Therefore, both objections were resolved.

II. Standard of Review

Federal Rule of Civil Procedure 23 governs class action

settlements. Courts review a proposed settlement in three

stages. First, “the parties present a proposed settlement

agreement to the court for preliminary approval.” Jones v.

Chopra,

, at *3 (D.D.C. Sept. 15, 2023). Second,

“if the [C]ourt preliminarily approves the settlement and

conditionally certifies the class, notice is sent to the class

17 describing the terms of the proposed settlement and informing

the class members of their rights and options with respect to

the agreement.”

Third, “the [C]ourt holds a hearing and may

give final approval to a settlement agreement only on finding

that it is fair, reasonable, and adequate.”

Federal Rule of

Civil Procedure 23(e)(2) governs how courts review proposed

settlement agreements for classes that fall under Rule 23(b)(3).

A. Federal Rule of Civil Procedure 23(a)

Federal Rule of Civil Procedure 23(a) allows members of a

class to “sue . . . as representative parties on behalf of all

members only if: (1) the class is so numerous that joinder of

all members is impracticable; (2) there are questions of law or

fact common to the class; (3) the claims or defenses of the

representative parties are typical of the claims or defenses of

the class; and (4) the representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.

23(a).

B. Federal Rule of Civil Procedure 23(b)(3)

Federal Rule of Civil Procedure 23(b)(3) permits a class

action to be maintained if “the court finds that the questions

of law or fact common to class members predominate over any

questions affecting only individual members, and that a class

action is superior to other available methods of fairly and

18 efficiently adjudicating the controversy.” Fed. R. Civ. P.

23(b)(3).

C. Federal Rule of Civil Procedure 23(e)(2)

Class action settlements are generally favored. Before

approving a settlement, however, a court must “ensure that it is

fair, adequate, and reasonable and is not the product of

collusion between the parties.” In re Vitamins Antitrust Class

Actions,

(D.C. Cir. 2000) (citations omitted).

Federal Rule of Civil Procedure 23(e)(2) governs how courts

review proposed settlement agreements for classes that fall

under Rule 23(b)(3). As amended in 2018, the rule now provides

certain factors for a court to consider when determining whether

a settlement agreement is fair, reasonable, adequate, and the

product of arms’ length negotiations. See Fed. R. Civ. P.

23(e)(2).5

As explained in the Advisory Committee’s note accompanying

the 2018 amendment to this rule, these factors are not intended

to “displace” factors developed in various Circuits, but allow a

court to “focus[] on the primary procedural considerations and

substantive qualities that should always matter to the decision

5 “In addition to evaluating the proposal itself, the court must determine whether it can certify the class under the standards of Rule 23(a) and (b) for purposes of judgment based on the proposal.” Advisory Committee Note to Fed. R. Civ. P. 23(e)(2) (2018). 19 whether to approve the proposal.” See Advisory Committee’s Note

to Fed. R. Civ. P. 23(e)(2) (2018). These factors include

whether: “(A) the class representatives and class counsel have

adequately represented the class; (B) the proposal was

negotiated at arm’s length; (C) the relief provided for the

class is adequate taking into account [four sub-factors]; and

(D) the proposal treats class members equitably to each other.”

See Fed. R. Civ. P. 23(e)(2).

III. Analysis

A. Final Damages Class Certification

As set forth in Plaintiffs’ Motion for Preliminary

Approval, the Damages Class that this Court provisionally

certified on November 8, 2024 meets the requirements of Rule

23(a) and 23(b)(3), and thus deserves final certification.

i. Rule 23(a)

As explained in Plaintiffs’ Motion for Preliminary

Approval, all four Rule 23(a) factors are met here.

First, Plaintiffs correctly point out that classes of at

least 40 people are generally large enough to meet the

numerosity requirement. See Taylor v. D.C. Water & Sewar Auth.,

(D.D.C. 2017) (citing Thomas v. Christopher,

(D.D.C. 1996) aff’d in part and rev’d in

20 part,

(D.C. Cir. 1998)). The class of over 400

people here easily satisfies this requirement.

Second, there are questions of law or fact common to all

Damages Class members. They key question for each person is

whether they were not promoted to a GS-14 or GS-15 position

despite making the BQ List because of their race. See Mot. for

Prelim Approval, ECF No. 502. Even though the Damages Class

members may be entitled to different amounts of monetary relief,

they were all “subject to the same work policies and practices”

that this Court has determined to be discriminatory. Stephens v.

Farmers Restaurant Group,

, 483 (D.D.C. 2019).

Third, the class representatives assert “claims typical of

the class—each is an active or retired Black agent who falls

within the class definition and was subjected to the same non-

compliant GS-14 or -15 level promotion policies at issue in this

settlement.” See Mot. for Prelim. Approval, ECF No. 502 at 8.

These claims are typical of the claims that the class

representatives seek to advance on behalf of the class. See

e.g., Taylor,

.

Fourth, the class representatives fairly and adequately

represent the interests of the class. “Adequacy embraces two

components: the class representative[s] (i) ‘must not have

antagonistic or conflicting interests with the unnamed members

21 of the class’ and (ii) ‘must appear able to vigorously prosecute

the interests of the class through qualified counsel.”’ J.D. v.

Azar,

(D.C. Cir. 2019) (en banc) (quoting

Twelve John Does v. District of Columbia,

(D.C. Cir. 1997) (additional quotations omitted)). Here, there

is no indication that the class representatives have any

conflict of interest with other members of the class. Quite the

contrary, the record shows that the named Damages Class members

and Class Counsel have devoted a significant amount of time and

effort to diligently prosecuting this case. Therefore, all of

the Rule 23(a) requirements are met.

ii. Rule 23(b)(3)

The provisionally certified class also satisfies the

requirements under Rule 23(b)(3). First, predominance is

satisfied because the Damages Class is “sufficiently cohesive to

warrant adjudication by representation.” Amchem Prods, Inc. v.

Windsor,

(1997). The Damages Class members

would rely on the same evidence to make their claims that they

suffered from discriminatory promotion procedures for GS-14 and

-15 positions between 1993 and 2022. See Stephens, 329 F.R.D. at

485–86. They are all members of a larger class of African

American Special Agents who experienced employment

discrimination and this current settlement addresses claims

22 specific to this group. See Fed. R. Civ. P. 23(b)(3)(B), (D).

These common issues predominate over any non-common issues among

the class members that may exist. See

Second, a class action is the superior method to consider

the Damages Class’s claims. This class action “achieve[s]

economies of time, effort, and expense, and promote[s] . . .

uniformity of decision as to persons similarly situated, without

sacrificing procedural fairness or bringing about undesirable

results.” Amchem Prods.,

. The Damages Class

Special Agents represent that “[w]ithout a class, [they] would

have to file individual suits, many of which would not be

pursued because individual litigants ‘lack the incentive to

shoulder the burden of a complex [disparate impact] case.”’ Mot.

for Prelim. Approval, ECF No. 502 at 10 (quoting Little v.

Washington Metropolitan Area Transit Auth.,

(D.D.C. 2017)). Specifically, they point to the heavy cost

of discovery and expert analysis that was necessary to establish

liability for the DEA’s failure to comply with the law and this

Court’s orders to adopt nondiscriminatory promotion procedures

as demonstrating how they would face significant difficulty in

bringing their claims individually.

(discussing how billing

entries and costs for discovery and experts exceeded $5 million,

or 40% of the settlement amount); see also Fed. R. Civ. P.

23 23(b)(3)(A), (C) (directing courts to consider “class members’

interests in individually controlling” their action and the

“desirability of concentrating the litigation of claims in the

particular forum”). The Court agrees that the superiority factor

is met. Therefore, the Court finally certifies the Damages Class

defined above pursuant to Rule 23(a) and Rule 23(b)(3).

B. Notice Was Provided to the Class Members in a Reasonable Manner

Pursuant to Rule 23(c)(2)(B), the Court must direct notice

to a class certified under Rule 23(b)(3) that is the “best

notice that is practicable under the circumstances, including

individual notice to all members who can be identified through

reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). This notice

must “clearly and concisely state in plain, easily understood

language: (i) the nature of the action; (ii) the definition of

the class certified; (iii) the class claims, issues, or

defenses; (iv) that a class member may enter an appearance

through an attorney if the member so desires; (v) that the court

will exclude from the class any member who requests exclusion;

(vi) the time and manner for requesting exclusion; and (vii) the

binding effect of a class judgment on members under Rule

23(c)(3).”

On November 8, 2024, the Court made preliminary findings

that the “method of providing notice to members of the 24 settlement class . . . is reasonable and constitutes valid and

sufficient notice to all settlement class members of their

rights and obligations, complying fully with the requirements of

applicable law, [Rule 23,] and the United States Constitution.”

See Order, ECF No. 503 at 3. The Court also held that the

notice, claim form, and sample questionnaire were approved as to

form. According to SSI Director of Operations Robert Hyte’s

(“Mr. Hyte”) February 18, 2025 Declaration, notice was provided

to the Damages Class in compliance with the requirements in the

Court’s Preliminary Order. See Hyte Decl., ECF No. 512-1. Mr.

Hyte described the process for how the parties and SSI

identified class members to receive notice and how SSI collected

information to contact the class members, including through the

U.S. Postal Service’s National Change of Address (“NCOA”)

database. See

He also described SSI’s efforts to re-mail any

notices that were not delivered. See

Throughout this process, any class members to whom notice

was initially undeliverable eventually received notice. See

SSI has set up both phone and email support systems to answer

any questions that members of the class may have and it

maintains a website for this Proposed Settlement which has

already been viewed approximately 975 times. See

The notice

25 process produced two putative objections and no opt-out

requests. See

The Court therefore concludes that the parties have

satisfied Rule 23(c)(2)(B) and provided the best notice

practicable under these circumstances.

C. The Proposed Settlement Is Fair, Reasonable, and Adequate

Before explaining why the Rule 23(e)(2) factors are

satisfied, the Court noted at the Fairness Hearing that the

Damages Class relies on cases that predate the 2018 Amendment to

Rule 23(e)(2) in which the factors listed overlap with but are

not precisely the same as the factors that Rule 23(e)(2) directs

the Court to consider. See Mot. for Final Approval, ECF No. 512

at 2 (quoting Trombley v. Nat’l City Bank,

(D.D.C. 2011) (claiming that “the D.C. Circuit has ‘no

single test for determining whether a proposed class action

settlement’ is fair and reasonable, courts in this circuit

generally examine the ‘the following factors: (a) whether the

settlement is the result of arms-length negotiations; (b) the

terms of the settlement in relation to the strength of the case;

(c) the stage of the litigation proceedings at the time of

settlement; (d) the reaction of the class; and (e) the opinion

of experienced counsel.”’)). Many of Plaintiffs’ arguments for

why the factors beyond those listed in the current version of 26 Rule 23(e)(2) weigh in favor of approval also support approval

under the factors listed in Rule 23(e)(2), but the Court made

this observation because it primarily focused its ruling on the

current Rule 23(e)(2) factors.

i. Adequate Representation

First, the class representatives have dedicated decades to

admirably representing the class. Not only have they been

involved in the many years of litigation, but they have also

devoted substantial service as “current or former EEOMC

members.” Mot. for Prelim. Approval, ECF No. 502 at 8. As part

of the EEOMC, they took on the responsibility of monitoring the

DEA’s compliance, or lack thereof, with court orders requiring

the agency to implement non-discriminatory promotion policies.

See

It is in large part due to their diligent monitoring of

the DEA’s failure to comply with these policies that the Agency

has now finally implemented verified non-discriminatory policies

and that the Plaintiffs here have been able to document their

harm and entitlement to relief throughout the preceding decades.

Therefore, the Court finds that the class representatives’

representation has been adequate.

Class Counsel has similarly provided able representation

throughout this litigation. This is demonstrated by the multiple

instances in which Class Counsel assisted the Damages Class in

27 seeking to remedy the Agency’s unlawful actions, including by

seeking damages for noncompliance with court orders; obtaining

expert support for Plaintiffs’ harm; engaging mediators;

identifying a competent class action settlement firm; and

negotiating a settlement agreement where the sum will go

entirely to Plaintiffs and not be diverted to counsel or class

administration costs. See Mot. for Prelim. Approval, ECF No. 502

at 4. At the Fairness Hearing, the Court discussed how Mr.

Maye’s reference to a motion to change class counsel in 2000 is

not relevant to the Court’s approval of this Proposed Settlement

because there is no indication that Class Counsel’s

representation in this specific matter has been inadequate.

For these reasons, the Court concludes that class counsel’s

representation has been adequate.

ii. Settlement Negotiations

Second, the litigation and negotiation history show that

this Proposed Settlement was negotiated at arm’s length. The

parties have spent decades litigating this case, including at a

bench trial, exchanging discovery, and mediation before well-

respected mediators. See Mot. for Final Approval, ECF No. 512 at

3; Mot. for Prelim. Approval, ECF No. 502 at 2-5. As noted, this

current settlement came about after Plaintiffs filed their

motion for individual relief and Defendants objected to front

28 pay and prejudgment interest. It was only after the parties

briefed these issues to the Court and engaged in mediation that

they were able to reach the instant settlement. Therefore, the

Court is satisfied that the negotiations were sufficient to

avoid collusion.

iii. Adequate Relief

Third, the relief provided to the class is adequate for the

purpose of settlement arrangements.

Rule 23(e)(2)(C) directs courts to consider several factors

related to this question: “(i) the costs, risks, and delay of

trial and appeal; (ii) the effectiveness of any proposed method

of distributing relief to the class, including the method of

processing class-member claims; (iii) the terms of any proposed

award of attorney’s fees, including timing of payment; [and]

(iv) any agreement required to be identified under Rule

23(e)(3).” Fed. R. Civ. P. 23(e)(2)(C).

The first and second factors weigh in favor of the Proposed

Settlement. The third and fourth factors are not relevant here

because attorneys’ fees have already been resolved and there is

no indication of any related agreement under Rule 23(e)(3).

On the first factor, the costs, risks, and delay of trial

and appeal weigh strongly in favor of the Proposed Settlement.

The Damages Class members have already endured decades of harm

29 from the DEA’s noncompliant policies and, as they point out,

many Special Agents “have retired from service or passed away

during the pendency of this matter.” Mot. for Prelim. Approval,

ECF No. 502 at 15. As noted, this agreement is the product of

significant litigation and negotiations. The certainty and

amount of relief provided to the Damages Class so that they can

finally have some compensation for the harm they suffered weighs

strongly in favor of finding the agreement fair and reasonable.

The second factor also weighs in favor of the Proposed

Settlement. It is notable that Defendants have agreed to bear

the reasonable costs of settlement distribution and, because

attorneys’ fees have already been determined, the entire

settlement will go to class members. See Allocation Plan, ECF

No. 502-2. Mr. Lewis is qualified to distribute the funds

according to the Allocation Plan, which includes ensuring that

every class member who submits a timely form will receive at

least $5,000 for their submission. See id.; Lewis CV, Ex. D, ECF

No. 502-4. Any class member who so requests can have a one-hour

phone call with Mr. Lewis to discuss their claims, and Mr. Lewis

will make a determination based on a number of factors. Mr.

Holmes’ objection primarily related to this factor, and as

discussed, Mr. Holmes has now withdrawn his objection.

30 The Court therefore concludes that the costs, risks, and

delay of going to trial and appeal, as well as the method for

distributing relief to the class, weigh in favor of approving

the Proposed Settlement.

iv. Equitable Class Treatment

Finally, the Court holds that the proposed settlement

provides equitable class treatment. As discussed, the

distribution plan requires that payment determinations will be

made based on several factors set forth in the Allocation Plan.

See Allocation Plan, ECF No. 502-2. Mr. Lewis will award the

entire amount of the settlement to class members. See

Service as a member of the EEOMC is part of one sub-factor that

Mr. Lewis may consider, which the Court finds appropriate. See

This ensures that EEOMC service is not the only

consideration, but it also recognizes the significant amount of

time and effort that went into service on this monitoring

committee. Because all the factors under Rule 23(e)(2) are

satisfied, the Court gives final approval to the Proposed

Settlement.

IV. Conclusion

It is doubtful that any amount of money could make whole

the hundreds of Special Agents in this Damages Class who

suffered decades of discrimination by the United States of

31 America. Despite honorably serving their country, these

individuals were passed over for promotion after promotion

because of their race. The Damages Class members who shared

their stories at the Fairness Hearing and prior court

proceedings are a testament to the far-reaching impact of this

harm. The DEA’s failure to comply with the law and this Court’s

orders endured so long that many Damages Class members retired,

and even passed away, before seeing the Agency ultimately enact

verified, non-discriminatory promotion procedures. The

compensation provided in the Proposed Settlement cannot undo all

the damage from the Agency’s actions, but it is a means by which

to provide some amount of relief for what this group of

Americans has endured. For the reasons stated on the record at

the Fairness Hearing, the Court approves the Proposed

Settlement.

For the reasons explained above and at the Fairness

Hearing, the Court GRANTS Plaintiffs’ Motion for Final Approval,

ECF No. 512, and approves the Proposed Settlement. The Court

will issue an Order to accompany this Memorandum Opinion

following receipt of the parties’ proposed Order on April 7,

2025.

Signed: Emmet G. Sullivan United States District Judge March 28, 2025

32