United States District Court, District of Columbia. Reginald G. MOORE, John E. Turner, C. Yvette Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E. Harris, Jr., Kenneth Rooks, Camilla Simms, Lisa Robertson, Individually and on Behalf of All Other
Similarly-Situated Persons, Plaintiffs, v.
Michael CHERTOFF, Secretary Department of Homeland Security, Washington, D.C. 20528 Defendant. No. 00-0953 (RWR-DAR). August 7, 2006.
Jury Demanded
Class Action
Respectfully submitted, E. Desmond Hogan (D.C. Bar #458044), Deborah L. Boardman (D.C. Bar # 476869), Sarah Berger (D.C. Bar # 489359), Hogan & Hartson LLP, 555 Thirteenth Street, N.W., Washington, D.C.
20004, Telephone: (202) 637-5600, Facsimile: (202) 637-5910.John P. Relman (D.C. Bar #405500), Reed N. Colfax (D.C. Bar #471430), Jennifer I. Klar (D.C. Bar #479629), Relman & Associates PLLC, 1225 Nineteenth Street, N.W., Suite 600, Washington, D.C. 20036, Telephone: (202) 728-1888, Facsimile: (202) 728-0848, Attorneys for Plaintiffs.
SECOND AMENDED AND SUPPLEMENTAL CLASS COMPLAINT
I. NATURE OF ACTION
1. Plaintiffs, current and former African-American Special Agents (or “Black Agents”) of the United States Secret Service (“Secret Service”), bring this action, on their own behalf and on behalf of a class of other current and former African-American Secret Service Special Agents, to redress a pattern and practice of discrimination on the basis of race by the Secret Service in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) and the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). Plaintiffs allege that, from 1993 for- ward, the Secret Service has discriminated against African-American Special Agents in its promotion process for competitive positions at grades GS-14, GS-15, and SES. Plaintiffs complain of discrimination in every step of the promotion process, from the discriminatory assignment of Merit Promotion Plan (“MPP”) scores to the discriminatory selection of Special Agents for specific promotions.
2. Plaintiffs also challenge discrimination in the “building blocks” of promotion, including discrimination in transfers, assignments, and other career enhancing opportunities; discriminatory assignments to undercover work; discriminatory testing and hiring practices; discriminatory disciplinary policies and practices; and discrimination in awards and bonuses. Each of these alleged discriminatory practices adversely affected the ability of Plaintiffs to secure promotion or access to terms and conditions of employment that were career enhancing. Plaintiffs allege discrimination in the “building blocks” of promotion from 1999 forward.

3. Plaintiffs seek to have the Secret Service implement systemic changes that will result in a non-discriminatory promotion system and non-discrimination in the “building blocks” of promotion. Specifically, Plaintiffs seek equitable relief, including, but not limited to, back pay, front pay, and other lost compensation, compensatory damages, a declaratory judgment, and an injunction directing the Secret Service to cease and desist from and remedy its illegal conduct.
II. JURISDICTION, EXHAUSTION OF ADMINISTRATIVE REMEDIES, AND TOLLING
4. Jurisdiction in this case exists pursuant to 42 U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1981(a). Venue is prop- er in this District pursuant to 28 U.S.C. § 1391(e).
5. Plaintiffs have exhausted their administrative remedies.
6. On March 31, 2006, this Court ruled that the claims in the Second Amended Class Complaint consolidating the administrative claims of Plaintiffs Reginald G. Moore, John Turner, and C. Yvette Summerour have been administratively exhausted. See March 31, 2006 Order at 12-13. In their administrative class complaint, Plaintiffs Moore, Turner and Summerour alleged discrimination in competitive selections, discrimination in MPP perform- ance evaluations, discrimination in opportunities to serve as acting supervisors, discrimination in transfers and assignments, discrimination in access to training opportunities, discrimination in assignments to undercover work, discrimination in hiring practices, discrimination in testing, discrimination in discipline, discrimination in awards and bonuses, retaliation for reporting discrimination, and the establishment of a racially hostile environ- ment. This complaint tolled the statute of limitations forward from its initial filing as to all members of the class for these continuing claims, or any claims reasonably arising therefrom or the investigation thereof.
7. On July 7, 2006, this Court ruled that Plaintiffs had exhausted non-promotions claims from 1993 to the present and confirmed that Plaintiffs had exhausted claims relating to the “building blocks” of promotion from 1999 to the present. See July 7, 2006 Order at 12, 16-17. In this Complaint, Plaintiffs plead only the claims that this Court ruled exhausted. See id.
8. Plaintiff Andrew E. Harris, Jr. independently exhausted his administrative remedies. On March 26, 2005, Plaintiff Harris timely contacted an EEO counselor regarding discrimination in non-promotion to GS-15. On June 30, 2005, Plaintiff Harris filed a formal EEO complaint alleging a pattern and practice of discrimination against African-Americans in non-promotion to GS- 15 positions on behalf of himself and a class of AfricanAmerican Special Agents. Plaintiff Harris' administrative complaint has been pending for more than 180 days. With the consent of the Secret Service, the EEOC Administrative Judge assigned to Plaintiff Harris' EEO com- plaint has stayed consideration of his EEO complaint pending the outcome of class certification in this matter.
III. THE SECRET SERVICE'S LONG HISTORY OF RACIAL DISCRIMINATION
9. The Secret Service has failed to protect its African-American Special Agents from racial discrimination in vir- tually every aspect of their employment. Discrimination against African-American Agents in the Secret Service has become part of the fabric of the agency and has spanned several decades. In 1964, the Secret Service em- ployed only four Black Agents. Since then, the number of African-American Agents has increased, but over the years, Black Agents have suffered from a persistent pattern and practice of racially discriminatory employment practices. These racially discriminatory practices relate to, among other things, hiring, assignments, transfers, awards, discipline, and promotions.

10. Over the past four decades, African-American Agents frequently and repeatedly have brought the Secret Ser- vice's discriminatory employment practices to the attention of Directors, Assistant Directors, and other top-level officials. Specifically, Black Agents have complained (i) that the discriminatory hiring and recruiting practices of the Secret Service have resulted in a relatively few number of African-Americans entering the Service; (ii) that, once in the Secret Service, Black Agents have suffered from discriminatory assignment practices, which result in Black Agents receiving fewer career-enhancing opportunities than similarly situated or junior non- Black Agents; (iii) that Black Agents have been more severely disciplined than non-Black Agents who commit- ted similar or more serious infractions, thereby delaying their advancement and promotion as compared to non- Black Agents; (iv) that Black Agents have received fewer training opportunities than similarly situated or junior non-Black Agents, thereby delaying their advancement and promotion as compared to non-Black Agents; and (v) that Black Agents consistently have been denied promotions to the GS-13 level and higher on the basis of their race. Despite receiving repeated complaints from Black Agents about these discriminatory employment practices, the Secret Service has never remedied the pattern and practice of discrimination.
11. The Secret Service's discriminatory employment practices have occurred in a racially insensitive atmosphere that tolerates and fails to punish racial slurs and participation in racist activities. For example, in the late 1980s, a Special Agent was promoted to Assistant Director of Investigations, despite the fact that, during the time he was Special Agent in Charge (“SAIC”) of the Los Angeles Field Office, white Agents had posted a Swastika with the word “Nigger” on the walls of the office and the SAIC did not punish or otherwise discipline the cul- prits for their actions.
12. The Secret Service's toleration of racism and participation in racist activities became public in 1995 when the press reported that, since 1980, federal and state law enforcement officers, including Secret Service Agents, had attended an annual racist event known as the “Good Ol' Boys Roundup.” White Secret Service Agents twice served as President of the Roundup, and at least one Agent was elected “Redneck of the Year.” The racist con- duct that occurred at the Roundup include the posting of racist signs like “Nigger check point,” a simulated lynching of a black man from a tree, and a host of racist skits and songs. Officials at the Secret Service knew about this event, and at least 30 Secret Service Agents were documented as attending the event. Instead of con- demning by word and deed these racist activities, the leadership of the Secret Service turned a blind eye to their Special Agents' involvement in the Roundup and rewarded those who participated. For example, many white Special Agents who attended the Roundup were promoted to high-ranking positions in the Secret Service, in- cluding three Agents who became SAICs of field offices, six Agents who reached the GS-15 level, and two Agents who were promoted to the Senior Executive Service (“SES”) level.
13. The Secret Service has done little to remedy the pattern and practice of discrimination against AfricanAmerican Special Agents. Black Agents continue to suffer from discriminatory employment practices in hiring, testing, assignments, transfers, awards and bonuses, discipline, and promotions. Despite receiving repeated complaints of discrimination, the Secret Service has no systematic method for documenting, monitoring, evaluating, or curing the discriminatory employment practices that currently operate with both the intent and the effect of disadvantaging African-American Special Agents.
IV. PARTIES
14. The named Plaintiffs are all current or former African-American Special Agents of the Secret Service. The named Plaintiffs were each denied promotions or the “building blocks” thereof on the basis of their race. Many of the Plaintiffs have received commendations for their work - including the highest awards given by the Secret

Service - and all have risked their lives for the Secret Service and those the Secret Service protects. The named Plaintiffs are as follows:
a. Plaintiff Reginald G. Moore (“Special Agent Moore”) is an African-American and a resident of the State of Maryland. He has been employed by the Secret Service as a Special Agent since 1984. At the time of the filing of this lawsuit, Special Agent Moore was a GS-13 Special Agent who held the highest job performance ranking of any African-American Special Agent and had applied for approximately 90 GS-14 positions. After bidding for approximately 100 additional positions, he was finally promoted as a result of the filing of this lawsuit. Spe- cial Agent Moore is currently a GS-15 Assistant Special Agent in Charge (“ASAIC”) of the Dignitary Protective Division in Washington, D.C.
b. Plaintiff John E. Turner (“Special Agent Turner”) is an African-American and a resident of the State of Mary- land. In 1980, Special Agent Turner was hired by the Secret Service as an officer in the Uniform Division and became a Special Agent in 1984. When this lawsuit was filed, Special Agent Turner was a GS-13 Special Agent assigned to the Washington, D.C. Field Office. While he had served in an acting GS-14 position, he had not been promoted. Special Agent Turner was promoted as a result of this lawsuit and retired from the Secret Ser- vice as a GS-14 in March 2001. Special Agent Turner was awarded the Albert Gallaton Award for integrity upon his retirement.
c. Plaintiff C. Yvette Summerour (“Special Agent Summerour”) is an African-American female and a resident of the State of Georgia. She has been employed as a Special Agent by the Secret Service since 1986. Special Agent Summerour served for over five years on the Presidential Protective Detail (“PPD”) where she protected former President Clinton, former First Lady Hillary Rodham Clinton, and Chelsea Clinton. At the time this lawsuit was filed, Special Agent Summerour was the most senior African-American female Special Agent. As a result of this lawsuit, Special Agent Summerour became one of the first two African-American women to be promoted to GS14. Special Agent Summerour is currently assigned as a GS-14 Assistant to the Special Agent in Charge (“ATSAIC”) in the Atlanta Field Office.
d. Plaintiff Leroy Hendrix (“Special Agent Hendrix”) is an African-American and a resident of the State of Maryland. He has been employed as a Special Agent of the United States Secret Service since 1989. At the time this lawsuit was filed, Special Agent Hendrix was a GS-13 Special Agent assigned to the Vice Presidential Pro- tective Detail (“VPPD”). As a result of this lawsuit, Special Agent Hendrix was promoted to a GS-14 position and is now a GS-14 ATSAIC in the Baltimore Field Office.
e. Plaintiff Cheryl L. Tyler (“Special Agent Tyler”) is an African-American female and a resident of the District of Columbia. She was also the first African-American female Special Agent in the Atlanta Field Office, the New York Field Office, the PPD, the Technical Security Division and the Training Division. Special Agent Tyler left the Secret Service in 1999 because she was unable to secure promotion to a GS-14 position. She currently serves as a senior GS14 with the Transportation Security Administration (“TSA”), which is part of the Department of Homeland Security.
f. Plaintiff Luther K. Ivery (“Special Agent Ivery”) is an African-American and a resident of the Commonwealth of Virginia. He was initially hired as a Special Agent in 1983. At the time this lawsuit was filed, Special Agent Ivery was a GS-13 Special Agent assigned to the Dignitary Protective Division. Special Agent Ivery won the Director's Medal of Valor for his service on September 11, 2001. Special Agent Ivery was promoted as a result of this lawsuit and retired in 2004 as a GS-14. Special Agent Ivery currently works as a defense contractor in

Chantilly, Virginia.
g. Plaintiff Andrew E. Harris, Jr. (“Special Agent Harris”) is an African-American and a resident of the State of Maryland. After a long delay, he was hired by the Secret Service in 1987. Special Agent Harris is currently a GS-15 ASAIC in the Dignitary Protective Division assigned to the Office of Protective Operations.
h. Plaintiff Kenneth Rooks (“Special Agent Rooks”) is an African-American and a resident of the State of Mary- land. After a long delay, he was hired by the Secret Service in 1995. Special Agent Rooks is currently a GS-13 Special Agent assigned to the J.J. Rowley Training Center.
i. Plaintiff Camilla Simms (“Special Agent Simms”) is an African-American female and a resident of the State of Illinois. She was hired by the Secret Service in 2002. Special Agent Simms is currently a GS-13 Special Agent in the Chicago Field Office.
j. Plaintiff Lisa Robertson (“Special Agent Robertson”) is an African-American female and a resident of the State of New York. Special Agent Robertson was hired by the Secret Service in 2002 after approximately 12 years in federal service with the Internal Revenue Service and the Environmental Protection Agency Office of Inspector General. Special Agent Robertson is a GS-13 Special Agent assigned to the New York Field Office.
15. Defendant Michael Chertoff is sued in his official capacity as Secretary of the Department of Homeland Se- curity. As part of his official duties, he is responsible for the United States Secret Service.
V. CLAIMS
A. Discriminatory Selections for Competitive Positions
16. From 1993, continuing up to and including the time of adjudication of these claims, the named Plaintiffs and the Plaintiff class have been discriminated against in selections for competitive positions ranked GS-14, GS-15, and SES on the basis of their race by the employment policies, procedures and practices of the Secret Service. The promotion system is excessively subjective, is not job-related and has been implemented through a “good old boy network” to the exclusion of African-American Special Agents. These practices have an adverse impact on African-American Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also independently constitute intentional discrimination on the basis of race. These alleged discriminatory policies and practices adversely affect the ability of African-Americans to secure promotion or access to terms and conditions of employment that are career enhancing.
17. The Merit Promotion Plan (“MPP”) in its various forms throughout the relevant period is the formal program through which the Secret Service selects and promotes Special Agents to competitive positions at the GS-14 and GS15 levels. The selection process under the MPP has a disparate impact on African-American Special Agents that is neither job-related nor required by business necessity. Rather, the Secret Service's selection systems pro- mote agents based upon factors, other than knowledge, skills and ability, that disproportionately benefit white Agents, which has a disparate impact upon African-American Special Agents. Further, although the Secret Ser- vice has known that its promotion practices have a disparate impact on African-American Special Agents since at least March 26, 1974, it has failed to implement procedures that are valid and have less adverse impact on African-American Special Agents in violation of the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. The Secret Service has done nothing to validate the selection process of Special Agents for

promotion. The continued use of such policies and practices reflects an intent to discriminate against AfricanAmerican Agents in violation of Title VII.
18. Throughout the various versions of the MPP, the Secret Service has used MPP scores or their equivalents to develop “best qualified” lists for competitive positions. Although the exact methodology for determining MPP scores through the relevant period has varied, all contained the same material components (i.e., a total score comprised of scores from the first level, peer panel level, and second level evaluations) that were excessively subjective and lacked objective job-related criteria. As a result, MPP performance evaluation scores or their equivalents are arbitrary and capricious, failing to reflect actual job performance differences between Special Agents.
19. The Secret Service's practice of relying on MPP performance evaluation scores or their equivalents had and continues to have an adverse impact on African-American Special Agents that cannot be justified by business necessity. African-American Special Agents who received low MPP scores or their equivalent were discouraged from competing for competitive promotions when the scores themselves were discriminatorily assigned. The Secret Service has failed to implement procedures that are valid and have less adverse impact on African- American Special Agents in violation of the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq.
20. The MPP, in its various forms, is excessively subjective and unreliable at all levels of the evaluation system and the ultimate decision-making process. For example, Assistant Directors may adjust ratings at the second level panel given by their representatives without justification, rendering that component of the MPP score sub- jective and invalid. Moreover, Assistant Directors may recommend to the Director a candidate from the best qualified list without using acceptable criteria for their recommendations and without identifying the reasons for their recommendations. Also, the Director may reject the Assistant Directors' recommendations and may choose another candidate for the position for any reason the Director deems appropriate.
21. Plaintiffs and the class they represent have been intentionally discriminated against on the basis of their race by managers who have rigged the systems and assigned them lower MPP scores (or their equivalents) than their white counterparts. Moreover, even when African-American Special Agents are awarded high MPP scores (or their equivalents), the Secret Service may “reach down” to select preferred white candidates with lower rankings than African-American Special Agents. The result is a personnel selection system based on excessive subjectiv- ity where Agents are promoted based on who they know, not what they know. A “good old boy network” oper- ates as a glass ceiling to impede African-American Special Agents from entering and advancing in management in the Secret Service. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII
22. The Secret Service fills competitive positions outside of the MPP, adding unlimited subjectivity to the pro- motions process. For example, in 1999 the Secret Service filled 20 unannounced GS-14 vacancies, referred to as “in addition to” promotions. None of these unannounced vacancies was filled by an African-American Agent. The Secret Service's shadow “in addition to” promotion system resulted in an “inexorable zero” African- American Agent promotions. The Secret Service further added to the enormous subjectivity of the MPP by se- lecting Agents for competitive positions who did not even bid for those promotions. The Secret Service's promo- tions outside the MPP have an adverse impact on African-American Special Agents and are used to intentionally discriminate on the basis of race.

23. The Secret Service has established an unwritten policy of preferring lateral candidates over Special Agents seeking a promotion to a higher grade. This policy is not in writing and is not in the MPP. No specific weight is given to this consideration. Upon information and belief, this practice has a disparate impact on African- American Special Agents that cannot be justified by business necessity. In addition, the Secret Service has inten- tionally discriminated against Plaintiffs and the Plaintiff class on the basis of their race with regard to this prac- tice.
24. The Secret Service has established an unwritten practice of allowing white Special Agents to be promoted to positions in the same geographic area while requiring African-American Special Agents to move to other geo- graphic locations to be promoted to competitive positions. This is especially true for white Special Agents resid- ing in the Washington, D.C. metropolitan area. This practice is not written and is not in the MPP. Upon informa- tion and belief, this practice has a disparate impact on African-American Special Agents that cannot be justified by business necessity. In addition, the Secret Service has intentionally discriminated against Plaintiffs and the Plaintiff class on the basis of their race with regard to this practice. Plaintiffs are disadvantaged by this practice in terms of securing future promotions and career enhancing positions. The practice injures Plaintiffs and the Plaintiff class financially because they are exposed to more frequent household moves than their white counter- parts and as a result lose the opportunity to build equity in their homes over time. This practice also injures the Plaintiffs and Plaintiff class through interference with their family lives.
25. Under the MPP, the Secret Service is required to take into account the Career Track Program when making selections. The Secret Service does not take into account the Career Track Program. In addition, upon informa- tion and belief, the Secret Service does not require the Advisory Board to review the Special Agent Qualifica- tion Statements of the candidates. As a result, upon information and belief, promotion recommendations are routinely made by the Assistant Directors without considering the candidates' Special Agent Qualification Statements.
26. The Secret Service's promotions process tolerates racial bias. At least 12 individuals who attended the “Good Ol' Boys Roundup” were subsequently promoted to the GS-14 level or above. At least four individuals who at- tended the “Good 01' Boys Roundup” were selected over the named Plaintiffs for positions for which they ap- plied and were not selected. The Secret Service knew that these individuals had attended the racist event when they were promoted for positions for which the named Plaintiffs bid and were not selected.
27. As of July 31, 1999, African-Americans comprised 10.76% of the Special Agents at the GS-13 level in the Secret Service. However, at the GS-14 level, African-Americans constituted only 4.18% of the total number of Special Agents. To put this in perspective, there were 12 African-American GS-14 Special Agents in 1992. As of July 1999, this number had not changed. In addition, there had never been an African-American female Spe- cial Agent selected for a GS-14 position in the history of the Secret Service until June 2001.
28. As a result of the foregoing, Plaintiffs allege that qualified African-American Special Agents are promoted to, or selected for, competitive positions less frequently than similarly situated white Special Agents. When Black Agents are selected, they are assigned to positions that provide less opportunity for further promotional opportunities than similarly situated white Special Agents. Moreover, African-American Special Agents have been and continue to be discouraged from applying for competitive positions because of discriminatory MPP scores or their equivalents.
Special Agent Moore

29. From 1999 through 2002, Special Agent Moore applied and was not selected for 187 GS-14 positions in the Secret Service. In each instance, an equally or less-qualified Special Agent was selected for the position, the ma- jority of whom were white. In this Complaint, Special Agent Moore alleges discrimination in the denial of each and every one of the 187 GS-14 positions for which a non-Black Special Agent was selected. For example, in May 1999, Special Agent Moore applied to be promoted to ATSAIC, a GS-14 position where he was already serving in an “acting” capacity. He was informed that the Secret Service filled the position with a less qualified white male Agent. To add insult to injury, the Secret Service assigned Special Agent Moore to train the white Agent selected. On June 16, 1999, Special Agent Moore sought a promotion to a GS-14 ATSAIC position in the PPD. Again, the position was filled with a less qualified white male.
30. Despite his extraordinarily high MPP score, Special Agent Moore was passed over for scores of GS-14 posi- tions in favor of white Agents. In 1999, Special Agent Moore had a MPP score of 97.03 out of 100 total points. This was the highest ranking of any African-American GS-13 Special Agent. In 2000, Special Agent Moore had an MPP score of 98.57 out of 100 total points. This was the second highest ranking of any African-American GS-13 Special Agent. MPP scores are not used in a manner consistent with the Uniform Guidelines on Employ- ee Selection Procedures, 29 C.F.R. § 1607 et seq.
31. Special Agent Moore became eligible to bid for a GS-14 promotion in 1994 because he had accrued three years time in grade required under the Merit Promotion Plan. However, he did not bid on a GS-14 position until 1999 because his MPP scores were considered too low to be competitive. Special Agent Moore later learned that MPP scores are excessively subjective and lack objective criteria. They are arbitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents are assigned higher scores based on their familiarity with certain supervisors, not on their knowledge, skills or abilities to perform the job. Thus, Special Agent Moore was improperly discouraged from applying for promotion as a result of an MPP scoring system that was discriminatory.
32. In or about August 2002, Special Agent Moore was finally promoted to a GS-14 ATSAIC position in the Chicago Field Office. In or about October 2004, he was subsequently promoted to a GS-15 Assistant Special Agent in Charge (“ASAIC”) position. Had Special Agent Moore not suffered years of discrimination in attempt- ing to achieve a GS-14 promotion, he would have reached the GS-15 and subsequent levels years earlier.
Special Agent Turner
33. Special Agent John Turner became eligible to bid for promotion to GS-14 in 1994 and began bidding shortly thereafter. Secret Service records show that from 1995 to 2000, Special Agent Turner applied for 83 GS-14 supervisory positions for which he was not selected. Special Agent Turner was qualified, but he was passed over in favor of equally or less qualified Special Agents, most of whom were white. In this Complaint, Special Agent Turner alleges discrimination in the denial of each and every one of the GS-14 positions for which he applied and a non-Black Special Agent was selected until the date of his first promotion to GS-14. For example, on September 7, 1999 and December 7, 1999, Special Agent Turner applied for two ATSAIC GS-14 positions. In each instance, Special Agent Turner became aware that he had not been selected and that the Secret Service had selected a less qualified white male. It apparently made no difference that Special Agent Turner had served in an “acting” capacity in those two positions.
34. For several positions for which Special Agent Turner applied, his MPP score was not high enough to place him on the “best qualified” list. MPP scores are excessively subjective and lack objective criteria. They are ar-

bitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents re- ceive higher scores based on their familiarity with certain supervisors not on their knowledge, skills or abilities to do the job.
35. Even once Special Agent Turner received a high MPP score, he was denied dozens of GS- 14 positions des- pite that high MPP score. In 1999, Special Agent Turner had an MPP score of 95.64 out of 100 total points. This was the third highest ranking of any African-American GS-13 Special Agent. In 2000, Special Agent Turner had an MPP performance evaluation score of 98.10 out of 100 total points. MPP scores are not used in a manner consistent with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq.
36. Finally in October 2000, Special Agent Turner was promoted to a GS-14 ATSAIC position in the Washing- ton, D.C. Field Office. He retired from the Secret Service as a GS-14 in March 2001. Had Special Agent Turner not experienced discrimination, he would have reached the GS-15 or SES level before his March 2001 retirement, increasing his retirement payments. In addition, had Special Agent Turner not experienced discrimination, he would have retired later than he did.
Special Agent Summerour
37. From 1998 through 2001, Special Agent Summerour applied for and was denied promotion to 68 GS-14 pos- itions. In most cases, white Special Agents with equal or less qualifications were selected for each of the posi- tions. For example, from January to December, 1999, Special Agent Summerour applied for and was denied pro- motion to 12 ATSAIC GS-14 positions. All of the persons selected were white agents and were not as qualified as Special Agent Summerour. In this Complaint, Special Agent Summerour alleges discrimination in the denial of each and every one of the 68 GS-14 positions for which she applied before her promotion to GS-14 and for which a non-Black Special Agent was selected.
38. For several positions for which Special Agent Summerour applied, her MPP score was not high enough to place her on the “best qualified” list. MPP scores are excessively subjective and lack objective criteria. They are arbitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents re- ceive higher scores based on their familiarity with certain supervisors not on their knowledge, skills or abilities to do the job.
39. In 1999, Special Agent Summerour received an MPP score of 86.89. Special Agent Summerour was docked points on her First Level Evaluation because she was a Whip over the Training Section of the PPD instead of on the “shift.” Special Agent Summerour grieved her First Level Evaluation score and was told that her position was not eligible for the maximum number of points. However, the previous Whip of the Training Section had re- ceived a perfect First Level Evaluation. Special Agent Summerour had been denied the “number one” Whip pos- ition on the “shift” as a result of race discrimination. An agent serving as a Whip is in a leadership position and is the immediate backup to the shift leader. Special Agent Summerour's discriminatory score was too low for her to make the “best qualified” list for several GS-14 positions for which she applied that year. In discovery in this matter, the Secret Service has sworn that the sole reason that Special Agent Summerour was not selected for these positions was because her MPP score did not place her on the “best qualified” list.
40. In 2000, Special Agent Summerour received 93.31 out of 100 points on her MPP performance evaluation. Even with this high score, Special Agent Summerour was unable to obtain a promotion to a GS-14 position. MPP scores are not used in a manner consistent with the Uniform Guidelines on Employee Selection Proced- ures, 29 C.F.R. § 1607 et seq.

41. Special Agent Summerour became eligible to bid for a GS-14 promotion in 1996 because she had accrued three years time in grade required under the MPP. However, she did not bid on a GS-14 position until 1998 be- cause her MPP scores were considered too low to be competitive. Special Agent Summerour later learned that MPP scores are excessively subjective and lack objective criteria. They are arbitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents are assigned higher scores based on their familiarity with certain supervisors, not on their knowledge, skills or abilities to perform the job. Thus, Special Agent Summerour was improperly discouraged from applying for promotion as a result of an MPP scor- ing system that was discriminatory.
42. At the time this lawsuit was filed, the Secret Service had never promoted an African-American female Spe- cial Agent to a GS-14 position. During the period in which Special Agent Summerour applied for promotion, Secret Service affirmative action plans repeatedly noted that there was a conspicuous absence of AfricanAmerican females in that job category.
43. Special Agent Summerour was finally promoted to a GS-14 ATSAIC position in the Intelligence Division on June 17, 2001. She and another agent promoted at the same time were the first GS-14 African-American female Special Agents in the history of the Secret Service.
Special Agent Tyler
44. Special Agent Tyler was hired by the Secret Service in 1984. It took eight years for her to reach the GS-13 level. She was the first African-American female Special Agent in the Atlanta Field Office, the New York Field Office, the PPD, the Technical Security Division and the Training Division. She applied 12 times for GS-14 pos- itions for which she was qualified, but was denied in favor of equally or less qualified Special Agents, most of whom were white. In this Complaint, Special Agent Tyler alleges discrimination in the denial of each and every one of the twelve GS-14 positions for which she applied and for which a non-Black Special Agent was selected.
45. Special Agent Tyler became eligible to bid for a GS-14 promotion in 1993 or 1994 because she had accrued three years time in grade required under the MPP. However, she did not bid on a GS-14 position immediately because her MPP scores were too low to be considered competitive. When she did bid for GS-14 positions dur- ing the 1998 and 1999 promotion cycles, her MPP scores were not considered high enough to make the best qualified list.
46. Special Agent Tyler later learned that MPP scores are excessively subjective, lack objective criteria and fail to reflect actual job performance differences between Special Agents. Agents are assigned higher scores based on their familiarity with certain supervisors, not based on their knowledge, skills or abilities to perform the job. Furthermore, MPP scores are not used in a manner consistent with the Uniform Guidelines on Employee Selec- tion Procedures, 29 C.F.R. § 1607 et seq. Special Agent Tyler was improperly discouraged from applying for promotion because of the discriminatory MPP scoring system. She also was denied consideration for promotion because of the discriminatory MPP scoring system used to select the best qualified list.
47. At the time this lawsuit was filed, the Secret Service had never promoted an African-American female Spe- cial Agent to a GS-14 position in its history. During the period in which Special Agent Tyler applied for promo- tions, the Secret Service's annual affirmative action plans repeatedly noted that there was a conspicuous absence of AfricanAmerican females in that job category.
48. In 1999, after 15 years of service, Special Agent Tyler was forced to resign as a GS-13 Special Agent, be-

cause she was unable to secure a GS-14 supervisory position. Special Agent Tyler was told that the Secret Ser- vice was not ready to have a black female agent in a GS-14 position. As a result of the Secret Service's total ex- clusion of female African-American Agents from the supervisory ranks, Special Agent Tyler was constructively discharged as a GS-13 in 1999 after 15 years of service.
Special Agent Ivery
49. Special Agent Ivery was hired by the Secret Service in 1983, and attained a GS-13 position in 1990. He re- mained at a GS-13 for over a decade. Special Agent Ivery began bidding on GS-14 positions as soon as he was eligible, but was not promoted to GS-14 until 2002. Secret Service records show that from 1995 until the date he was promoted, Special Agent Ivery applied and was not selected for 137 GS-14 positions within nearly every di- vision of the Secret Service, including, but not limited to the Dignitary Protective Detail, Financial Crimes, In- spection, Intelligence, Training, the Liaison Division, and the Washington, D.C. Field Office. In most instances an equally or less qualified white Special Agent was selected. In this Complaint, Special Agent Ivery alleges dis- crimination in the denial of each and every one of the GS-14 positions for which he applied until his promotion to GS-14 and for which a non-Black Special Agent was selected.
50. For several positions for which Special Agent Ivery applied, his MPP score was not high enough to place him on the “best qualified” list. According to the Secret Service, from 1998-2002, Special Agent Ivery was denied at least 18 GS-14 positions solely on the basis of his MPP score. MPP scores are excessively subjective and lack objective criteria. They are arbitrary and capricious, failing to reflect actual job performance differ- ences between Special Agents. Agents receive higher scores based on their familiarity with certain supervisors, not on their knowledge, skills or abilities to perform the job.
51. In 2002, Special Agent Ivery was finally promoted to a GS-14 ATSAIC position at the J.J. Rowley Training Center. Special Agent Ivery never bid on or otherwise requested this position. He retired from the Secret Service in 2004. Had Special Agent Ivery not experienced discrimination at the hands of the Secret Service, he would have reached the GS15 or SES level before retirement.
Special Agent Rooks
52. Special Agent Rooks has been at the GS-13 level for approximately six years. Since 2004, he has bid for 88 GS-14 positions, but has not been promoted. For each position, equally or less qualified Agents, most of whom were white, were selected. In this Complaint, Special Agent Rooks alleges discrimination in the denial of each and every one of the 88 GS-14 positions for which a non-Black Special Agent was selected.
53. Special Agent Rooks' MPP score was suppressed due to discriminatory denial of the position of “assistant detail leader” and Whip while on the PPD. MPP scores are excessively subjective and lack objective criteria. They are arbitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents receive higher scores based on their familiarity with certain supervisors, not on their knowledge, skills or abilities to perform the job.
Special Agent Hendrix
54. From 2000 to 2003, Special Agent Hendrix applied for and was denied promotion to 236 GS-14 positions, even though he was qualified for each position. In most instances, the Secret Service selected white Special Agents with similar or less management experience than Special Agent Hendrix. In this Complaint, Special

Agent Hendrix alleges discrimination in the denial of each and every one of the 236 GS-14 positions for which a nonBlack Special Agent was selected.
55. For several positions for which Special Agent Hendrix applied, his MPP score was not high enough to place him on the “best qualified” list. MPP scores are excessively subjective and lack objective criteria. They are ar- bitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents re- ceive higher scores based on their familiarity with certain supervisors, not on their knowledge, skills or abilities to perform the job.
56. Special Agent Hendrix was finally promoted to a GS-14 ASAIC position in the Special Services Division, White House Mail Facility in November 2003. However, Special Agent Hendrix was again discriminated against on the basis of race in applying for GS-15 positions. For example, in June, 2005, the Secret Service opened bids on a newly established GS-15 Deputy Special Agent in Charge (“DSAIC”) position in the White House Mail Room. While Special Agent Hendrix's specialized experience and knowledge made him the most qualified choice for this position, he was not selected. Instead, he was forced both to vacate his office to make room for the new DSAIC and to train him. Special Agent Hendrix has applied and not been selected for twelve GS-15 po- sitions. In most instances, an equally or less qualified white Agent was selected. In this Complaint, Special Agent Hendrix alleges discrimination in the denial of each and every one of the twelve GS-15 positions for which a nonBlack Special Agent was selected.
Special Agent Harris
57. Special Agent Harris was unable to secure a promotion to both GS-14 and GS-15 until he made EEO com- plaints regarding discrimination in the promotions process. Between January and October 1999, Special Agent Harris bid on six different bid lists for a total of 17 GS-14 positions. He was denied every promotion and in most instances an equally or less qualified white Special Agent was selected. For example, in January 1999, Special Agent Harris applied for a GS-14 ATSAIC position in the Assessment Unit of the PPD. When he bid, Special Agent Harris was then the Whip the number two position - in the Assessment Unit. Special Agent Harris had co-developed the assessment program with the departing ATSAIC in the newly-established Assessment Unit, who informed Special Agent Harris that he had recommended him for the promotion. However, a less-qualified white Special Agent with no experience in the Assessment Unit was selected. The selectee was chosen as an “in addition to” promotion that was not bid out. In October 1999, Special Agent Harris contacted the EEO Manager for the Secret Service and complained that he had been discriminated against in his non-selection for GS-14 pro- motions. In December 1999, Special Agent Harris was promoted to GS-14 Special Agent Recruiter in the Spe- cial Investigations & Security Division. Special Agent Harris would not have been promoted to GS-14 if he had not made an EEO complaint. In this Complaint, Special Agent Harris alleges discrimination in the denial of each and every one of the 17 GS-14 positions for which a non-Black Special Agent was selected.
58. For several positions for which Special Agent Harris applied, his MPP score was not high enough to place him on the “best qualified” list. MPP scores are excessively subjective and lack objective criteria. They are ar- bitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents re- ceive higher scores based on their familiarity with certain supervisors, not on their knowledge, skills or abilities to perform the job.
59. Special Agent Harris became eligible to bid for a GS-14 promotion before he began bidding in 1999 because he had accrued the necessary years in grade required under the Merit Promotion Plan. However, he did not bid

on a GS-14 position until 1999 because his MPP score was considered too low to be competitive. Special Agent Harris later learned that MPP scores are excessively subjective and lack objective criteria. They are arbitrary and capricious, failing to reflect actual job performance differences between Special Agents. Agents get higher scores based on their familiarity with certain supervisors not on their knowledge, skills or abilities to do the job. Thus, Special Agent Harris was improperly discouraged from applying for promotion as a result of a MPP scor- ing system that was discriminatory.
60. During the 2003-2004 and 2004-2005 promotion cycles, Special Agent Harris received a perfect score (50/50) on the First Level Evaluation from his immediate supervisor and his total MPP scores ranked him 58th out of 216 and 32nd out of 270 candidates for promotion to GS-15, respectively. Special Agent Harris was in- formed by a Secret Service manager that he would have to relocate outside of Washington, D.C. in order to be promoted to GS-15. The requirement of a geographic move is not in writing and is imposed discriminatorily on African-25 American Special Agents. Many white Special Agents have been promoted from GS-14 to GS-15 without having to relocate outside the Washington, D.C. metropolitan area.
61. Special Agent Harris applied for and was denied more than 60 GS- 15 positions. Special Agent Harris con- tacted an EEO counselor once again on March 26, 2004 regarding racial discrimination in the promotions pro- cess regarding his requests for promotion to GS-15. In January 2005, after Special Agent Harris filed the com- plaint, he was promoted to a GS-15 position, ASAIC of the Dignitary Protective Division. He would not have been promoted to GS-15 without this second complaint of racial discrimination. In this Complaint, Special Agent Harris alleges discrimination in the denial of each and every one of the over 60 GS-15 positions for which a non-Black Special Agent was selected.
B. Discriminatory Discipline
62. The Secret Service maintains excessively subjective processes for selecting individuals for discipline and for determining appropriate disciplinary punishments. It has no centralized tracking or reporting system for employ- ee misconduct allegations. The Secret Service does not maintain a table of offenses and penalties to determine appropriate punishments when imposing discipline. Rather, the level of punishment imposed is based entirely on the subjective judgment of Secret Service management. These practices have an adverse impact on African- American Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also independently constitute intentional discrimination on the basis of race.
63. Whether a misconduct matter will be referred to the Office of Inspection for investigation is at the complete discretion of the Assistant Director's (“AD”) Office to which the employee is assigned. The affected AD Office can choose to treat the misconduct as a management matter and not report it at all. In such cases, neither the Of- fice of Inspection nor the Inspection Division will maintain a record of the misconduct.
64. These subjective processes function as a ready vehicle for discrimination and have had an adverse impact on African-American Special Agents that can not be justified as consistent with business necessity. The Secret Ser- vice's continual and knowing use of policies and practices which have a disparate impact constitute disparate treatment under Title VII. African-American Special Agents are selected for discipline more frequently than their white counterparts. When selected for discipline African-American Special Agents are punished more harshly than similarly situated white Special Agents. For example, prior to the liability period of this litigation, Special Agents Hendrix and Harris were each suspended for loss of their Secret Service weapons. However, a

white agent who lost her Secret Service weapon twice received no discipline. While Special Agent Hendrix's promotion to GS-13 was delayed as a result of this discipline, the white Special Agent was promoted to GS-14 shortly after she lost her weapon.
65. Additionally, the Secret Service has engaged in a pattern and practice of failing to adequately discipline white agents involved in racial discrimination, such as those who attended the “Good 01' Boys Roundup.” The Secret Service uses its disciplinary system as a vehicle to retaliate against African-American Special Agents who complain about discrimination in the Secret Service. In short, the Secret Service applies its discipline policies in a discriminatory manner, adversely affecting African-American Special Agents both generally and in their potential for promotion.
66. These alleged discriminatory policies and practices adversely affect the ability of African-Americans to se- cure promotion or access to terms and conditions of employment that are career enhancing. The consideration of discipline of a Special Agent in the promotions process is not standardized and is entirely subjective. Former Deputy Director Riggs testified in this matter that she did not request inspection reports on all applicants for a competitive position, but disqualified Special Agent Ivery because she happened to know that he had been in- spected, despite the fact that the inspection led to no discipline by the Secret Service.
Special Agent Robertson
67. While Special Agent Robertson was at the Federal Law Enforcement Training Center (“FLETC”) after her hire in 2002, she was sent home from training shortly after she held a “meet and greet” for the National Organiz- ation of Black Law Enforcement Executives (“NOBLE”), a fraternal organization of African-Americans in fed- eral law enforcement of which she sat on the national board. A predominantly white organization, the Federal Law Enforcement Association, recruits and holds meetings at FLETC. Special Agent Robertson never received any written documentation of the reason she was sent home. She returned to FLETC several months later. A few months after her return to FLETC, Special Agent Robertson was placed on administrative leave pending termin- ation with no legitimate or written explanation. After contacting both a past president and the then-current pres- ident and executive director of NOBLE to advocate on her behalf, Special Agent Robertson was taken off ad- ministrative leave. Special Agent Robertson's discriminatory discipline - and the retaliatory treatment she re- ceived during training - delayed her completion of training. As a result, instead of receiving her yearly career- ladder promotions on the anniversary date of her entry, she receives each approximately six months late, on the anniversary of her completion of training. Special Agent Robertson's eligibility for promotions has been delayed as a result of the discriminatory discipline she suffered. She does not know whether the discipline she received during training will adversely affect her in the competitive promotions process.
C. Discrimination in Transfers, Assignments and Denial of Other Career-Enhancing Opportunities
68. The Secret Service maintains procedures for determining transfers, assignments and access to career-enhancing opportunities that are highly subjective. As a result of these procedures, African-American Special Agents receive fewer and less desirable transfers, assignments and other career-enhancing opportunities than similarly situated white Special Agents. These practices have an adverse impact on African-American Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also inde- pendently constitute intentional discrimination on the basis of race. These alleged discriminatory policies and practices adversely affect the ability of African-Americans to secure promotion or access to terms and condi-

tions of employment that are career enhancing. Each of these alleged discriminatory practices adversely affected the ability of Plaintiffs and the class they represent to secure promotion or access to terms and conditions of em- ployment that are career enhancing.
69. Furthermore, African-American Special Agents are subjected to arbitrary and discriminatory transfers to field offices throughout the nation, keeping them on a lateral career track. White Special Agents are not simil- arly subjected to such transfers. White Special Agents are more frequently allowed a lateral transfer in the same geographic area while African-American Special Agents are required to move. This practice injures Plaintiffs and the Plaintiff class financially because they are exposed to more frequent household moves than their white counterparts and as a result they lose the opportunity to build equity in their homes over time and their family lives are disrupted.
70. There are several positions below the GS-14 level at which a Special Agent has supervisory responsibilities, including but not limited to “Whip” and “assistant detail leader.” Serving in these positions substantially improves a Special Agent's chances for promotion to GS-14. African-American Special Agents receive fewer opportunities to serve in these positions. These practices have an adverse impact on African-American Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also inde- pendently constitute intentional discrimination on the basis of race. These alleged discriminatory policies and practices adversely affect the ability of African-Americans to secure promotion or access to terms and condi- tions of employment that are career enhancing. Each of these alleged discriminatory practices adversely affected the ability of Plaintiffs and the class they represent to secure promotion or access to terms and conditions of em- ployment that are career enhancing.
71. The Secret Service uses a method of selecting Special Agents for training that is excessively subjective. Upon information and belief, African-American Special Agents receive fewer training opportunities, and receive training opportunities that are less career-enhancing, than similarly situated white Special Agents. These prac- tices have an adverse impact on African-American Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also independently constitute intentional discrimination on the basis of race. These alleged discriminatory policies and practices adversely affect the ability of African- Americans to secure promotion or access to terms and conditions of employment that were career enhancing. Each of these alleged discriminatory policies and practices adversely affected the ability of African-American Special Agents to secure promotion or access to terms and conditions of employment that are career enhancing.
Special Agent Moore
72. As a result of a discriminatory transfer policy, Special Agent Moore was transferred to the Dallas Field Of- fice in 1999. Similarly situated white Special Agents were not required to transfer. The transfer adversely af- fected Special Agent Moore in his ability to secure promotion or access to terms and conditions of employment that are career enhancing. He also lost the opportunity to build up equity in his home over time and disrupted his family life.
Special Agent Hendrix
73. Special Agent Hendrix made clear to his supervisor that he wanted to be a Whip. Special Agent Hendrix met the minimum qualifications for this position and in fact had been teaching the Whip training course. In or about

March 2000, four Special Agents were made Whips on the VPPD. All four were white Special Agents who were not as qualified as Special Agent Hendrix. As a result of denying Special Agent Hendrix a position as a Whip, he was adversely affected in his ability to secure promotion or denied access to terms and conditions of employ- ment that are career enhancing.
74. Special Agent Hendrix sent an e-mail to SAIC William Pickle of the VPPD complaining about the lack of minority and female agents assigned to Whip positions on the VPPD and the fact that lesser qualified white males were being promoted instead. Special Agent Hendrix met with Pickle on March 9, 2000, barely two weeks after Director Stafford sent an agency wide e-mail expressing offense and disappointment at the allegations of discrimination in this suit. At the meeting, SAIC Pickle disclosed to Hendrix that white Special Agents had complained about the fact that at one time there were three (3) number one Whips on the detail who were minorities (two African-American and one Hispanic). These complaints coupled with the fact that no minorities or women had been promoted as Whips for many months, while less qualified white male Special Agents were promoted, led Hendrix to believe that a limit had been set on the number of minorities allowed to be Whips at any one time. During the March 9, 2000 meeting, SAIC Pickle told Hendrix that he was “certain” that Hendrix would be promoted to Whip. However, Hendrix was never formally promoted to a Whip position.
Special Agent Rooks
75. In 2004, Special Agent Rooks was discriminatorily denied the positions of “assistant detail leader” and Whip on the PPD. Special Agent Rooks was the second most senior Agent to the assistant detail leader on Secretary Card's detail, and based on the practice of the Secret Service was next in line to be assistant detail leader. However, when the time came for Special Agent Rooks to become assistant detail leader, he was told that he was being transferred back to the shift and that a junior white Agent would be made assistant detail leader. When Special Agent Rooks complained that he was being transferred back to the shift without the opportunity to become assistant detail leader, he was promised that he would be sent to lead school and be made a Whip on the shift. After serving several months under the junior white assistant detail leader, Special Agent Rooks was trans- ferred to the shift, but he was never sent to lead school and was never made a Whip.
76. While on the PPD, Special Agent Rooks asked repeatedly to go to lead school in order to become a Whip. However, he was always passed over, and junior White Agents were allowed to go instead. When he asked why he was not chosen, he was told on more than one occasion that it was an “oversight” and that he would be chosen “next time.” On one occasion, Special Agent Rooks asked the supervisor in charge of compiling the list for lead school attendees when the next list would be coming out. That supervisor told him that he did not know when the next lead school would occur and assured him that he would be on the next list of lead school at- tendees. The very next day, that same supervisor circulated the list for lead school attendees. Special Agent Rooks was not on the list. Even after his immediate supervisor sent a letter requesting that Special Agent Rooks be sent to lead school, he was not chosen. Special Agent Rooks spent four-and-a-half years on the PPD without the opportunity to go to lead school or be a Whip, thereby substantially harming his chances for promotion to GS-14.
77. While on the PPD, Special Agent Rooks was approached by management about working on one of the small details as shift leader. He requested to be assigned to the detail of Secretary Rice. The then-current shift leader of Secretary Rice's detail told the detail leader that Special Agent Rooks would be “a problem,” despite receiv- ing references from the other shift leaders stating that Special Agent Rooks would be a great asset to Secretary Rice's detail. Special Agent Rooks was, as a result, passed over for the assignment.

78. In 2005, Special Agent Rooks was told that his time on the PPD would come to an end. He was told that he would be transferred to the J.J. Rowley Training Center. Special Agent Rooks requested to be transferred to the Criminal Investigation Division (“CID”) or the Intelligence Division. In response to his request, Special Agent Rooks was told that there were no slots available and that if he did not take a position at the J.J. Rowley Train- ing Center, there was a possibility that he could be transferred to a less desirable location, such as the New York Field Office. Special Agent Rooks took the position at the J.J. Rowley Training Center to avoid the possibility of being transferred to an office such as the New York Field Office, which is considered by many Agents to be one of the least preferable assignments in the Secret Service. He immediately called a friend in the CID and found out that there were several open positions that the division was actively seeking to fill.
Special Agent Summerour
79. On March 10, 2000, Special Agent Summerour was denied a career enhancing transfer to the Secret Service's Major Events Division on the basis of discrimination and retaliation for her participation in this suit and the EEO administrative process. DSAIC Carl Truscott, Agent Summerour's supervisor, told her that her reques- ted transfer to the Major Events Division was “closed to [her] personally, but that other members of PPD with less experience could still have that opportunity instead of [her].” He also said, “he [Truscott] did not think any of [Summerour's] requested transfers were likely to succeed.” Truscott attempted to convince Summerour to go to a lateral position in the Intelligence Division, which was not career-enhancing. In addition, DSAIC Truscott said to Summerour, “I have several friends in the Service who are minorities. It hurts me to think that anyone would believe that there is discrimination within the Secret Service. Larry Cockell is one of my dearest friends. I just wanted you to know that.”
80. Since the filing of this lawsuit, Special Agent Summerour has been repeatedly denied training that she re- quested, limiting her further upper mobility within the Secret Service. For example, Special Agent Summerour has applied for leadership and management courses and has not been chosen. Also, Special Agent Summerour has applied several times and not been selected to attend the Women in Federal Law Enforcement annual nation- al conference. Special Agent Summerour has been denied these opportunities on the basis of her race and protec- ted EEO activity.
Special Agent Harris
81. When the instant matter was filed, Special Agent Harris was the Special Agent Recruiter in the Special Investigations & Security Division. In November 2000, Special Agent Harris was involuntarily transferred to a temporary assignment in the Inspection Division as a GS-14 Assistant Inspector. Special Agent Harris was later told that he was being moved because the Deputy Director was certain that he had provided documents demon- strating discrimination in recruiting and hiring to Plaintiffs in this matter and that the Deputy Director was “furious.” Special Agent Harris was never interviewed regarding this allegation and was never told whether an inspection was conducted or the results of any inspection. In his evaluation for promotion to GS-15, Special Agent Harris was not credited with his accomplishments in the Inspection Division.
D. Discriminatory Testing and Hiring Practices
82. Throughout the class period, the Secret Service has discriminated against African-Americans by administer- ing an invalidated civil service exam called the Treasury Enforcement Exam (“TEA”) which is known (by the Secret Service) to have an adverse impact on African-Americans which cannot be justified by business neces- sity. Furthermore, the decision to continue the use of such an exam by the Secret Service reflects an intent to

discriminate against African-American Agents in violation of Title VII. The result of the use of this exam has been to delay the employment of qualified African-Americans as Special Agents and to cause African-American Special Agents to be hired in fewer numbers and into lower grades in numbers disproportionate to white Special Agents. The Secret Service was aware of the adverse impact of the TEA but took no action. These alleged dis- criminatory practices adversely affected the ability of African-Americans Special Agents to secure promotion by delaying their accrual of the requisite time in grade to compete for competitive promotions or by blocking their access to career enhancing terms and conditions of employment.
83. The Secret Service has discriminated against African-American Special Agents by hiring them into lower civil service grades in numbers disproportionate to their white counterparts. The Secret Service has a policy or practice of requiring African-Americans hired from other federal law enforcement agencies into Special Agent positions to accept a reduction in grade, but not white Special Agents. The Secret Service has a policy or prac- tice of hiring African-Americans into Special Agent positions in lower grades than their credentials warranted. The Secret Service engages in other discriminatory hiring practices including, but not limited to, falsely inform- ing African-American Special Agents that law enforcement experience, a law degree or other unnecessary cre- dentials were a prerequisite to being hired as a Special Agent in the Secret Service. Each of these practices have an adverse impact on AfricanAmerican Special Agents that cannot be justified by business necessity. The con- tinued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also independently constitute intentional discrimination on the basis of race. Each of these alleged discriminatory policies and practices adversely affected the ability of African- Americans to secure promotion or access to terms and conditions of employment that were career enhancing. In particular, African-American Special Agents were delayed in accruing the necessary time in grade to begin ap- plying for promotion.
84. Six of the ten named Plaintiffs were discriminated against in their initial hire to the Secret Service. While the Court has ruled that Plaintiffs Harris, Summerour, Hendrix, Turner, Ivery and Rooks' hiring claims are time barred, they illustrate the Secret Service's dramatic pattern of dissuading African-American applicants from ap- plying and then only reluctantly hiring African-American Special Agents into lower civil service grades than their credentials warrant. Special Agent Harris was told the Secret Service was not hiring while it was indeed hiring white applicants. He was also told that his passing TEA exam score was too low to be hired when in fact only a passing score was required. Four years later, after Special Agent Harris unnecessarily took an additional test and was still rejected for employment, he was only hired after filing an EEO complaint. Similarly, Special Agent Summerour was falsely told she needed law enforcement experience following college in order to gain employment with the Secret Service. After six years of gaining experience, she was finally hired, only to learn that white applicants were hired directly from college. Further, Special Agents Harris, Hendrix, Turner, Ivery, and Rooks were all hired at grades lower than their credentials warranted and lower than those of similarly situ- ated white Special Agent. In addition, Plaintiffs Hendrix and Tyler failed the TEA at least once. These Plaintiffs' experience of discriminatory hiring practices also adversely affected their ability to seek promotion and other career enhancing opportunities once employed. These Plaintiffs' experiences demonstrate a pervasive, persistent, ongoing pattern of discriminatory hiring practices that must be remedied.
Special Agent Simms
85. Since the time that Special Agents Harris, Summerour, Hendrix, Turner, Ivery, Rooks, and Tyler were hired, no steps have been taken to cure these discriminatory practices. When Special Agent Simms was hired by the Secret Service in 2002, she had approximately a decade of law enforcement experience, including eight years as

a detective working narcotics, homicide, and sex crimes cases. During the interview process, Special Agent Simms was told by ATSAIC Mary Drury that she would be hired as a GS-7 or 9 and by Special Agent Mark Waterford that she would be hired as a GS-9. On her first day of work in August 2002, Special Agent Simms learned that she was being hired as a GS-5, the lowest entry grade. After a Secret Service employee told Special Agent Simms that she should have been hired as a GS-7, she read the relevant written materials regarding hiring grade and learned she should have been hired as a GS-9. If a Special Agent starts as a GS-5 and experiences no delays, they will reach a GS-9 level in two years. Special Agent Simms submitted a grievance and received a GS-7 position. Special Agent Simms filed a second letter, explaining that she should be a GS-9, but was turned down. After a presentation during her initial training on how pay is determined, the presenter assured Special Agent Simms that she would review her file. Over seven months after she was hired, Special Agent Simms re- ceived her GS-9. Similarly situated white Special Agents are hired at higher GS-levels than Black Agents.
86. One year from her date of hire, Special Agent Simms was entitled to a grade increase as a matter of course, but she did not receive her GS-11. Special Agent Simms was told that because she had received a “promotion” to GS-9, she would not receive her GS-11 until a year thereafter. Special Agent Simms wrote a memo explaining that her grade increase was as a result of being hired at the wrong level and she was entitled to her GS- 11 on the anniversary of her hire. Eventually, Special Agent Simms was given her GS-11.
E. Discriminatory Case Assignments, including Undercover Work
87. The Secret Service uses a discriminatory method of assigning cases to Special Agents, including, but not limited to, disproportionately assigning African-American Special Agents to undercover work. Additionally, African-American Special Agents are assigned to fewer high profile cases and smaller cases that are not careerenhancing, than similarly situated white Special Agents. These practices have an adverse impact on AfricanAmerican Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also independently constitute intentional discrimination on the basis of race. These alleged discriminat- ory policies and practices adversely affect the ability of African-Americans to secure promotion or access to terms and conditions of employment that are career enhancing. Each of the aforementioned alleged discriminat- ory policies and practices adversely affects the ability of African-American Special Agents to secure promotion or access to terms and conditions of employment that are career enhancing.
88. The Secret Service's discriminatory assignment of non-career enhancing undercover work to AfricanAmerican Special Agents is longstanding. The prevailing attitude held by supervisors and white Special Agents is that black Special Agents will fit in with the criminal element due to their race. For example, shortly after he was hired, Special Agent Moore was told by a group leader in the counterfeit squad that he was “perfect” for un- dercover work on the basis of his race. Special Agent Moore, one of two African-American Agents in the Miami Field Office, was often “borrowed” by a group to which he was not assigned in order to complete undercover as- signments on the basis of his race. Special Agents Summerour and Ivery were ordered to complete undercover assignments before they received their initial Secret Service training at the Federal Law Enforcement Training Center (“FLETC”) and before Special Agent Ivery had been issued a gun. The assumption that regardless of background, knowledge of locale or local customs that any black agent can blend in anywhere is false and dan- gerous to the health and safety of Black Agents. Completing a disproportionate amount of undercover works harms African-American Special Agent's careers. Special Agents who complete undercover work are less likely to be the “case agent” and less likely to receive credit for resulting arrests.

Special Agent Simms
89. These discriminatory practices have not changed. In 2005, Special Agent Simms was asked to complete an undercover assignment when she was approximately seven months pregnant. The Secret Service has a practice of offering accommodations to pregnant white women, but two supervisors asked Special Agent Simms to do undercover work - one of the most dangerous assignments - instead. This request was made of Special Agent Simms solely because she was the only African-American female Special Agent in the Chicago Field Office at that time.
90. Despite the fact that Special Agent Simms entered the Secret Service with approximately a decade of law enforcement experience, her access to career-enhancing assignments has been delayed when compared to white Special Agents with similar longevity in the Secret Service. For example, she was not assigned to a protection “advance,” which involves securing routes and locations before a protectee reaches them, until long after her white peers. When Special Agent Simms was finally assigned to an advance, it was because the Chicago Field Office had a new African-American supervisor in protective operations, Plaintiff Reginald Moore. In addition, Special Agent Simms was not assigned to foreign travel, a career-enhancing assignment, until after her white counterparts. Special Agent Simms and another junior African-American Special Agent were told that new Spe- cial Agents were not assigned to foreign travel for two years after their hire; yet Special Agent Simms observed white Special Agents assigned to foreign travel before that time. Two years after she was hired, Special Agent Simms was told the two-year period started not at the date of hire, but at the date of graduation from training.
Special Agent Rooks
91. Just days before Thanksgiving in 2004, Special Agent Rooks was told that he would travel to Canada over the Thanksgiving holiday. He was informed that he would be responsible for securing a “major site,” a career- enhancing assignment. At the airport, on the way to the “major site,” he learned that a white Agent was also told that he would be securing the same site. Special Agent Rooks was removed from the “major site” assignment and assigned to a site usually given to junior Agents. The junior Agent that had been assigned to the trip was al- lowed to stay home for the holiday.
F. Discrimination in Bonuses and Awards
92. The Secret Service uses methods of selecting Special Agents for awards and bonuses that is excessively subjective. These practices have an adverse impact on African-American Special Agents that cannot be justified by business necessity. The continued use of such policies and practices reflects an intent to discriminate against African-American Agents in violation of Title VII. These practices also independently constitute intentional discrimination on the basis of race. These alleged discriminatory policies and practices adversely affect the ability of African-Americans to secure promotion or access to terms and conditions of employment that are career en- hancing. As a result of these subjective policies and practices, African-American Special Agents receive fewer awards and bonuses, and bonuses of lower amounts, than similarly situated white Special Agents.
Special Agent Rooks
93. On information and belief, Special Agent Rooks was denied awards and bonuses on the basis of his race while he was assigned to the Raleigh Field Office in 1998 and 1999. In 1998, a new RAIC was assigned to the Raleigh Field Office. Special Agent Rooks had received awards and bonuses under the previous RAIC, but he received none in 1998 and 1999 under the new RAIC. Plaintiff Rooks alleges discrimination in his denial of

awards and bonuses in 1999. The new RAIC also treated him differently from other Agents on the basis of his race, constantly scrutinizing him. When Special Agent Rooks confronted the new RAIC about this different treatment, the new RAIC offered a purported justification for his actions that was not related to Special Agent Rooks' job performance. After Special Agent Rooks transferred to Headquarters in 1999, he received bonuses.
VI. CLASS ACTION ALLEGATIONS
94. Plaintiffs have filed this case as a class action pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(2) and 23(b)(3).
95. This action is properly maintainable as a class action under Rule 23(a) because: (a) the class includes more than 100 former and current African-American Special Agents of the Secret Service, which makes the class so numerous that a consolidated complaint of the members of the class is impracticable; (b) the claims alleged on behalf of the class raise questions of law or fact common to the class; (c) the claims of the class representatives are typical of the claims of the class; and (d) the class representatives and class counsel will adequately and fairly protect the interests of the class.
96. This action is properly maintainable as a class action under Rules 23(b)(2) and 23(b)(3) because: (a) the Secret Service has acted on grounds generally applicable to the class, thereby making appropriate final injunct- ive relief or corresponding declaratory relief with respect to the class as a whole; and (b) there are questions of law or fact common to members of the class that predominate over any questions affecting only individuals and a class action is superior to other methods for the fair and efficient adjudication of the controversy.
97. Plaintiffs have brought their claims on behalf of all former and current African-American Secret Service Agents (Criminal Investigators GS-1811), known and unknown, who from 1993 to the time of adjudication of these claims, have suffered discriminatory non-promotion to GS-14 and above, including discriminatory MPP performance evaluations or their equivalents and who from 1999 to the time of adjudication of these claims have suffered discrimination in the following areas: (a) discrimination in transfers, assignments, and other career en- hancing opportunities; (b) discriminatory assignments to undercover work; (c) discriminatory testing and hiring practices; (d) discriminatory disciplinary policies and practices; and (e) discrimination in awards and bonuses.
98. The number of members of this class is too large to make joinder practical. The number of members of the class possibly affected by the Secret Service's illegal policies and practices of discrimination currently and in the past is larger than can be addressed by joinder.
99. This action poses questions of law or fact that are common to and affect the rights of all members of the class. The claims of the named plaintiffs are typical of the claims of class members as a whole.
100. Plaintiffs will adequately represent the class. Plaintiffs desire to represent the class and have retained coun- sel experienced in litigating class action discrimination claims.
101. The Secret Service has a policy and practice of treating African-American Special Agents less favorably than white Special Agents in connection with the “building blocks” for promotion and in the promotion process. The Secret Service's racially discriminatory behavior against Plaintiffs described herein is representative of a policy and practice of race-based discrimination in the “building blocks” for promotions and in the promotion process, which the Secret Service created, maintained and continues to maintain and which has the intent and ef- fect of discrimination against African-American Special Agents. These policies and practices affect class mem-

bers comprised of all former and current African-American Special Agents and constitute illegal race-based class-wide discrimination. Named plaintiffs' claims are typical of those of members of the class affected.
VII. INJURY TO PLAINTIFFS AND PLAINTIFF CLASS
102. Plaintiffs and the class they represent have no plain, adequate or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only means of securing complete and adequate relief. Plaintiffs and the class they represent are now suffering and will continue to suffer irreparable injury from Defendant's discriminatory acts and omissions.
103. Defendant's actions have caused and continue to cause Plaintiffs and the class they represent financial losses in an amount to be determined according to proof, including but not limited to lost wages and retirement earnings, out-of-pocket costs, other lost employment benefits and opportunities, and lost equity value in their homes.
104. Plaintiffs and the class they represent have suffered emotional distress, humiliation and embarrassment, in a value to be determined according to proof. Such emotional distress has been manifested in a variety of ways in- cluding, but not limited to, psychological trauma and physical symptoms to be proven at trial.
CLAIMS FOR RELIEF
Race Discrimination under 42 U.S.C. 2000e et seq. (Disparate Treatment)
105. Paragraphs 1 through 104 are realleged and incorporated herein by reference.
106. This claim is brought on behalf of all Plaintiffs and the class they represent.
107. Defendant's conduct constitutes disparate treatment on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as amended, by the Civil Rights Act of 1991, 42 U.S.C. § 1981(a).
108. Paragraphs 1 through 102 demonstrate that Defendant has maintained a pattern and practice of race discrimination with respect to competitive promotions to grades GS-14 and above; MPP performance evaluations or their equivalents; transfers, assignments, and other career enhancing opportunities; assignment to undercover work; testing and hiring practices; disciplinary policies and practices; and awards and bonuses. Race discrimina- tion has become the standard operating procedure of Defendant with respect to these employment decisions.
109. Each and all of the Plaintiffs and the Plaintiff class have been injured by the disparate treatment discrimina- tion that they have encountered.
110. On behalf of themselves and the Plaintiff class, Plaintiffs request relief as provided in the Prayer for Relief below.
Race Discrimination under 42 U.S.C. 2000e et seq. (Disparate Impact)
111. Paragraphs 1 through 104 are realleged and incorporated herein by reference.
112. This claim is brought on behalf of all Plaintiffs and the class they represent.
113. Defendant's conduct constitutes disparate impact on the basis of race in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, as amended, by the Civil Rights Act of 1991, 42 U.S.C. § 1981(a).
114. Paragraphs 1 though 102 further demonstrate that Defendant has maintained a system with respect to com- petitive promotions to grades GS-14 and above, MPP performance evaluations or their equivalents, transfers, as- signments, and other career enhancing opportunities, assignment to undercover work, testing and hiring prac- tices, disciplinary policies and practices, and awards and bonuses that has an adverse disparate impact on Afric- an-American Special Agents. This system is not and cannot be justified by business necessity, but even if it could be so justified, less discriminatory alternatives exist that could equally serve any alleged necessity.
115. Each and all of the Plaintiffs and the Plaintiff class have been injured by the disparate treatment discrimina- tion that they have encountered.
116. On behalf of themselves and the Plaintiff class, Plaintiffs request relief as provided in the Prayer for Relief below.
PRAYER FOR RELIEF
117. Therefore, Plaintiffs pray that the following relief be granted to them and to those whom they represent:
(a) Certify the case as a class action on behalf of the proposed Plaintiff class and designate Plaintiffs as repres- entatives of the class and their counsel of record as Class Counsel;
(b) Enter a declaratory judgment that Defendant's conduct as alleged herein has violated Plaintiffs' civil rights and the civil rights of the African-American Special Agents of the Secret Service under 42 U.S.C. § 2000e and 42 U.S.C. § 1981a;
(c) Enter a permanent injunction barring Defendant from continuing to engage in the illegal and discriminatory conduct alleged herein;
(d) Enter a permanent injunction directing Defendant to take affirmative steps to remedy the effects, and prevent future occurrences, of the illegally discriminatory conduct alleged herein;
(e) Award compensatory damages according to proof for each Plaintiff and each class member as would com- pensate fully each Plaintiff and class member for their emotional distress, embarrassment, humiliation, depriva- tion of their right to equal employment opportunity regardless of race and other harms alleged herein;
(f) Award all financial damages that Plaintiffs and the Plaintiff class have sustained as a result of Defendant's conduct, including but not limited to back pay, front pay, retirement payments, out-of-pocket expenses and gen- eral and specific damages for lost compensation and job benefits that they would have received but for the dis- criminatory practices of Defendant;
(g) Award reasonable attorneys' fees incurred in this action and the administrative claims that preceded it, expert fees, and costs;
(h) Award pre-judgment and post-judgment interest, as provided by law; and
(i) Order other such relief as the Court deems just and proper.
Dated: August 7, 2006

Respectfully submitted, <<signature>> E. Desmond Hogan (D.C. Bar #458044) Deborah L. Boardman (D.C. Bar # 476869) Sarah Berger (D.C. Bar # 489359) Hogan & Hartson LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 John P. Relman (D.C. Bar #405500) Reed N. Colfax (D.C. Bar #471430) Jennifer I. Klar (D.C. Bar #479629) Relman & Associates PLLC 1225 Nineteenth Street, N.W., Suite 600 Washington, D.C. 20036 Telephone: (202) 728-1888 Facsimile: (202) 728-0848 Attorneys for Plaintiffs Reginald G. MOORE, John E. Turner, C. Yvette Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E. Harris, Jr., Kenneth Rooks, Camilla Simms, Lisa Robertson, Individually and on Behalf of All Other Similarly-Situated Persons, Plaintiffs, v. Michael CHERTOFF, Secretary Department of Homeland Security, Washington, D.C. 20528 Defendant. 2006 WL 5243021 (D.D.C. ) (Trial Pleading ) END OF DOCUMENT

 
 Case 1:00-cv-00953-RWR-DAR Document 338 Filed 05/31/2006 Page 1 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND\OR FOR PARTIAL SUMMARY JUDGMENT OF AMENDED COMPLAINT

Defendant Michael Chertoff, Secretary, United States Department of Homeland Security, respectfully moves, pursuant to

Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss in part the

Amended Complaint on the ground that this Court lacks

jurisdiction over certain of plaintiffs’ claims and certain

allegations fail to state a claim.

In the alternative, this Court should enter partial summary

judgment in favor of defendant, pursuant to Fed. R. Civ. P. 56,

because there is no genuine issue as to any material fact and

defendant is entitled to partial judgment as a matter of law.

In support of this motion, the Court is respectfully referred to

the accompanying statement of material facts not in dispute,

memorandum of points and authorities, declarations and exhibits.

A proposed order consistent with the relief sought is also

Case 1:00-cv-00953-RWR-DAR Document 338 Filed 05/31/2006 Page 2 of 48

attached.

Respectfully submitted,

KENNETH L. WAINSTEIN, D.C. BAR #451058 United States Attorney
RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney
BENTON G. PETERSON, W.I. BAR # 1029849 MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226
Of Counsel:
Donna Cahill, Esq. U.S. Secret Service Office of Chief Counsel

2

Case 1:00-cv-00953-RWR-DAR Document 338 Filed 05/31/2006 Page 3 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND\OR FOR PARTIAL SUMMARY JUDGMENT OF AMENDED COMPLAINT

INTRODUCTION

In this case against the United States Secret Service

alleging discrimination based on race, concerning the promotions

of Special Agents [SAs], plaintiffs have filed a First Amended

and Supplemental Class Complaint [“Amended Complaint” or “Am.

Compl.”] seeking to convert the case into a class action. With the exception of individual and purported class allegations

concerning specific 1999 non-promotion claims brought by

Plaintiffs Moore and Turner, the remaining claims in the Amended

Complaint should be dismissed or summary judgment granted to

defendant. Certain individual and purported class claims have

been dismissed previously by this Court. Other claims raised were never properly exhausted administratively, were withdrawn,

and/or fail to state a claim on which relief can be granted.

Case 1:00-cv-00953-RWR-DAR Document 338 Filed 05/31/2006 Page 4 of 48
What is more, despite extensive discovery, plaintiffs cannot demonstrate a prima facie case for a pattern and practice claim in regard to the alleged failure to promote. There is no statistically significant difference between African American SAs and non-African American SAs in regard to selection for promotion to the GS-14 level. Moreover, the number of African American SAs who bid for, and were selected for, promotion during the relevant time period is 47 out of 52 candidates. Many of the African American GS-14 selectees, including Plaintiffs Moore and Harris, have been promoted again to GS-15 positions. Additionally, a pattern and practice claim cannot be raised when plaintiffs failed to timely exhaust their claims for non-promotion, given the notice they had of these discrete act decisions. Accordingly, summary judgment for defendant is appropriate on plaintiffs’ pattern and practice allegations.
FACTUAL BACKGROUND Defendant incorporates herein the attached statement of material facts which are not in dispute.
ARGUMENT I. Previously Dismissed Claims May not be Raised Again. Many of the claims in the Amended Complaint [Docket No. 322], have already been dismissed by this Court or have been precluded by this Court’s prior rulings in the case.
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(A) Previously Dismissed Individual Claims In the October 24, 2004 decision [2004 Mem.], this Court dismissed certain previously pled and unexhausted individual claims. Id. at 26. More recently, this Court noted that “plaintiffs confirmed at the February 22, 2006, hearing ... that they do not seek to revive those dismissed individual claims here.” March 30, 2006 decision [2006 Mem.] at 8, n.1. Yet inexplicably, these dismissed individual claims reappear in the Amended Complaint. Compare the original complaint [Compl.] with the Amended Complaint as follows: Compl. ¶¶ 55 with Am. Compl. ¶ 101; Compl. ¶¶ 66-67 with Am. Compl. ¶¶ 67-68; Compl. ¶ 71 with Am. Compl. ¶ 69; Compl. ¶ 74 with Am. Compl. ¶ 70; Compl. ¶ 82 with Am. Compl. ¶ 98; Compl. ¶ 83 with Am. Compl. ¶ 91; Compl. ¶¶ 86-87 with Am. Compl. ¶¶ 93-94; Compl. ¶ 88 with Am. Compl. ¶ 92; Compl. ¶ 89 with Am. Compl. ¶ 99; Compl. ¶ 90 with Am. Compl. ¶ 95; Compl. ¶ 92 with Am. Compl. ¶ 100; Compl. ¶ 95 with Am. Compl. ¶ 85; Compl. ¶¶ 96-97 with Am. Compl. ¶¶ 86-87; and Compl. ¶ 104 with Am. Compl. ¶ 106. Plaintiffs should be held to their word that they do not seek to revive claims dismissed by this Court. Thus, the individual claims in the Amended Complaint identified above should again be stricken.
(B) Pre-1999 Individual and Class Claims This Court has held that no pre-1999 claims are exhausted, and thus such claims may not be pled. 2006 Mem. at 15. Many
3

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such pre-1999 claims, however, are present in the Amended Complaint. Id. at ¶ 60 (1992 suspension); ¶ 61 (1997 Inspection); ¶ 64 (1995 suspension); ¶ 65 (1991 suspension); ¶¶ 84-85 (1987 hiring claim); ¶ 86 (1989 hiring claim); ¶¶ 87-88 (1989 testing/hiring claim); ¶ 89 (1984 hiring claim); ¶ 90 (1983 hiring claim); ¶ 91 (1995 hiring claim); ¶ 96 (1986 undercover assignment claim); ¶ 97 (1984 undercover assignment claim); ¶ 98 (1984 comment regarding Moore and undercover work); ¶ 99 (1987-94 undercover assignment claims); ¶ 100 (1983 undercover assignment claim); and ¶ 105 (1984-1989 awards claim). As this Court has already ruled that pre-1999 claims are untimely and unexhausted, all such individual and purported class claims should be dismissed.
(C) Post May 3, 2000 Claims The Amended Complaint also contains many untimely, unexhausted claims which post-date May 3, 2000, when suit was first filed. All such claims should be dismissed. The Equal Employment Opportunity (EEO) Counseling contact concerning the claims of Plaintiffs Moore and Turner occurred in 1999 and January of 2000 (Exhs. 4, 11 and 12, block 4); the formal complaint was filed in February/March of 2000 (Exh. 7), and this case was filed on May 3, 2000. An EEO Counselor contact in 1999/2000, or the filing of an administrative complaint in 2000, could not possibly have put defendant on notice of
4

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complaints that would occur years thereafter. For example, in the Amended Complaint, Plaintiff Simms
claims she was discriminated against in 2005 when she was “asked” to do undercover work, id. at ¶ 102, and in regard to her entry level grade in 2002, id. at ¶ 93. Plaintiff Robertson claims she was discriminated against when she was placed on administrative leave on or about 2002. Id. at ¶ 63. Neither plaintiff exhausted such claims administratively. Such unrelated and far later occurring incidents should be dismissed, given that the administrative process ended on May 3, 2000, the day this case was filed. To allow these claims now would circumvent the administrative exhaustion requirement entirely and deprive defendant of timely notice and/or an opportunity to resolve the claims administratively.1 See Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995) (The exhaustion requirement “serves the important purpose of giving the charged party notice of the claim”); see also Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985)(exhaustion requirement “gives federal agencies an opportunity to handle matters internally wherever possible.”).
Thus, any claims that post-date May 3, 2000 should be dismissed for failure to timely exhaust administrative remedies.
1 As discussed below, the claims of Plaintiffs Simms and Robinson were in fact resolved years ago. See infra at 7-8 and 37-39; see also Exh. 1 ¶¶ 73 -76 & Attach. G; Exh. 16 ¶ 4 and Attach. A.
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II. The Court Lacks Jurisdiction over Plaintiffs who did not Exhaust their Claims.
In the Amended Complaint, ten individuals seek to bring claims before this Court as individual, and/or class plaintiffs. Id. at ¶ 1. Yet this Court has already ruled that only those individuals who have timely exhausted an administrative complaint, or whose claims are vicariously exhausted through the claim of another, may pursue claims as a plaintiff. 2004 Mem. at 2. With respect to the current ten plaintiffs, the only administratively exhausted individual claims are those of Plaintiffs Turner, Moore and Harris, and the only administratively exhausted potential class claim is that of Plaintiffs Turner and Moore. Thus, the claims of the other seven plaintiffs must all be dismissed unless their claims are vicariously exhausted, or potentially subsumed into the class claim allegations of Plaintiffs Moore or Turner.
(A) Standard for Administrative Exhaustion For jurisdiction to exist in a Title VII claim a plaintiff, whether individual or purported class agent, must have exhausted his/her administrative remedies. 2004 Mem. at 16, citing Love v. Pullman Co., 404 U.S. 522 (1972). First, there must be contact with an EEO Counselor within forty-five days of the alleged discriminatory event. 29 C.F.R. § 1614.105(a)(1)(individual claims); 29 C.F.R. 1614.204(b)(class complaint). Second, a formal administrative complaint must be filed within fifteen days
6

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after receipt of a notice of right to file. 29 C.F.R. § 1614.106(c)(individual claims); 29 C.F.R. § 1614.204(c)(2) (class claims). Third, at least 180 days must have passed since the filing of the formal administrative complaint. 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.407(b); 2004 Mem. at 16-17.
(B) Plaintiffs Rooks, Hendrix, Tyler, Simms and Ivery Plaintiffs Rooks, Hendrix, Tyler, Simms and Ivery have never exhausted an administrative complaint of discrimination, whether an individual or class complaint, and plaintiffs do not appear to claim otherwise. Am. Compl., Section II, Jurisdiction, Exhaustion of Administrative Remedies, and tolling; 2004 Mem. at 9 and 10; Exh. 16, ¶¶ 3, 5 and 9. Thus, the individual claims of these plaintiffs, with the exception of Plaintiff Ivery’s post 1999 non-selection for promotion claims,2 must be dismissed as unexhausted, and no class claim may form around their claims.
(C) Plaintiff Robertson Plaintiff Robertson contacted an EEO Counselor on or about January 21, 2003, alleging discrimination claims identical to those in the Amended Complaint. Compare Exh. 16 ¶ 4 & Attach. A with Am. Compl. ¶ 63. However, Plaintiff Robertson “withdrew” her EEO complaint on February 27, 2003. Exh. 16 ¶ 4 and Attach.
2 This Court found that Plaintiff Ivery’s failure to promote claims might be vicariously exhausted through Plaintiff Moore’s claim, and that decision on that dismissal should await further development of the record. 2004 Mem. at 26, and n.6. See infra at 21-27.
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A. Thus, Plaintiff Robertson’s claim in paragraph 63 of the Amended Complaint must be dismissed as unexhausted and withdrawn.
(D) Plaintiff Summerour This Court has already dismissed all of Plaintiff Summerour’s claims, other than non-selection for promotion, as untimely and unexhausted. 2004 Mem. at 8, 26 and 28. These claims, however, have resurfaced in the Amended Complaint, along with new individual claims and a purported set of class claims. Am. Compl. ¶¶ 60, 70-73, 86 and 96. Plaintiffs allege that all these claims were administratively exhausted through the administrative Second Amended Class Action Complaint. Am. Compl. ¶ 6. On the contrary, Plaintiff Summerour never timely exhausted an administrative complaint of any kind. Plaintiff Summerour first contacted an EEO Counselor on January 31, 2000. Exh. 15, block. The EEO Counseling Report indicates that Plaintiff Summerour complained that she had been discriminated against when she: (1) received a score of 49 out of 50 possible points in her First Level Evaluation on September 7, 1999; and (2) was not selected for a January 30, 2000 reassignment from a GS-13 position in the Presidential Protective Division (PPD), Office of Protective Operations, to a GS-13 position in the Office of the Assistant Director, Investigations. Exh. 15, tab 1, page 1 and tab G, page 7; see also Exh. 14 at 45, 110, 129 and 193 (no EEO contact concerning 1999 or 2000 MPP
8

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score, suspension, or any matter relating to hiring). As discussed above, contact with an EEO Counselor must be
made within forty-five days of an alleged discriminatory event. See supra at 7. Thus, Plaintiff Summerour’s January 31, 2000 contact with an EEO Counselor concerning her September 7, 1999 First Level Evaluation was untimely, and that claim should be dismissed. Exh. 8, p. 45.
The January 31, 2000 EEO Counselor contact, however, was timely as to Plaintiff Summerour’s failure to reassign claim. Upon completion of EEO Counseling, Plaintiff Summerour was advised in writing of her right to file a discrimination complaint within fifteen days of the written notice. Exh. 7, tab E, p. 2. However, Plaintiff Summerour failed to do so. Rather, she simply joined Plaintiffs Turner and Moore in their Second Administrative Class Action Complaint. Exh. 8, ¶¶ 43-50.
Noticeably absent from the administrative Second Amended Class Action complaint is any allegation by Plaintiff Summerour in regard to the January 30, 2000 non-reassignment, notwithstanding the fact that exhaustion of an administrative complaint requires both timely contact with an EEO Counselor and the filing of a timely formal complaint. 2004 Mem. at 16; 29 C.F.R. §§ 1614.105(a)(1) and 1614.106(b).3 Thus, Plaintiff Summerour
3 Oddly, Plaintiff Summerour alleges in the administrative second Class Action Complaint the exact opposite of what she told
(continued...) 9

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failed to pursue her only timely EEO Counselor contact claim and has failed to administratively exhaust any claim.
Plaintiff Summerour’s claims, other than those of nonpromotion (addressed infra, at 21-27) must be dismissed.
(D) Plaintiff Harris (1) GS-14 Claims
Plaintiff Harris alleges discrimination in regard to nonselection to the GS-14 level from January 1999 through October 1999. Am. Compl. ¶ 51. Plaintiff Harris contacted an EEO Counselor around October 5, 1999, alleging discrimination in regard to a non-selection to the GS-14 level. Exh. 16 ¶ 6. He, however, withdrew this claim. Id. Plaintiff Harris was promoted in October of 1999. Exh. 1 ¶ 65; Am. Compl. ¶ 51. He thus never exhausted his non-selection to the GS-14 level promotion claim, and that matter should not be revived here.
(2) GS-15 claims Plaintiff Harris exhausted an individual claim of discrimination concerning a number of non-promotions to the GS-15 level in 2004. Exhs. 16 ¶ 6, 7 & Attachs C and D. Yet here Plaintiff Harris seeks to raise additional GS-15 non-promotion
3(...continued) the EEO Counselor. To the EEO Counselor, she complained about the non-receipt of a supposedly career enhancing lateral reassignment. In the administrative Second Amended Class Action Complaint, she alleged that she had been discriminated against with lateral assignments that had slowed her path to promotion. Compare Exh. 15 tab A with Exh. 8 ¶ 47.
10

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claims which he did not exhaust. Am. Compl. ¶¶ 51-54. Specifically, Plaintiff Harris seeks to raise non-promotions which occurred more than forty-five days prior to his EEO Counselor contact. Exh. 16, Attachs. C and D. These claims were untimely when EEO Counselor contact was made and thus could not be exhausted. Nothing has changed.
Through its decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held:
discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. Id. at 113. Further, in defining a “discrete act,” the Supreme Court identified “acts such as termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114. Thus, since Morgan, each alleged discrete incident of discrimination constitutes it own “‘unlawful employment practice for which administrative remedies must be exhausted.’” Martinez v. Potter, 347 F.2rd 1208, (10th Cir. 2003) citing Morgan at 110-113. Under Morgan, discrete acts of discrimination or retaliation that occur outside the statutory time period are not actionable if time barred, even when they are related to acts alleged in a timely filed suit. Id., 536 U.S. at 108. The additional claims which Plaintiff Harris seeks to bring concerning GS-15 non-promotions, which pre-date by more than forty-five days his EEO Counselor contact, are claims of failure
11

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to promote which were not exhausted. Under Morgan, they may not come before this Court.
Further, Plaintiff Harris did not raise a class claim in the administrative process. In fact, when specifically asked whether he was seeking to file a class claim, Plaintiff Harris advised that he was not. Exh. 16 ¶ 8 & Attach. E. Thus, Plaintiff Harris has failed to exhaust any administrative class claim, and such administrative class claim must be dismissed.
III. The Unexhausted Claims of Plaintiffs Moore and Turner should be Dismissed.
Plaintiffs Moore and Turner each exhausted only an individual and potential class claim of non-promotion in regard to vacancies 99-089, 99-123, and 99-177. Nonetheless, Plaintiffs Moore and Turner raise other non-promotions (Am. Compl. ¶¶ 28 and 31), and matters completely unrelated to their exhausted nonpromotion claim. The additional claims should be dismissed.
(A) Plaintiff Moore (1) Unexhausted non-promotion claims
Plaintiff Moore exhausted a single non-promotion to the GS14 level, vacancy number 99–089. Exh. 6. In fact, in the administrative process, Plaintiff Moore specifically withdrew all other promotion claims which he might have sought to bring. Exh. 5 ¶¶ 5-9 & attached notes to that declaration.
Upon receipt of his formal administrative complaint, the EEO
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Specialist assigned to Plaintiff Moore’s case asked him if he were seeking to contest other non-promotions beyond vacancy 99–089. Id. Plaintiff Moore said that he was not. Id. ¶ 7.
By letter dated November 18, 1999, Plaintiff Moore and his attorney were advised that the issue accepted for investigation was whether Plaintiff Moore was discriminated against when:
On July 16, 1999 the complainant was not selected for the position of Assistant to the Special Agent in Charge, GS1811-14, announced under vacancy announcement #99-089. The letter further stated: If you disagree with the issue(s), please notify me in writing within five days of receipt of this letter. Please be clear and concise in your response. If no response is received, I will assume that you agree with the issue(s) and will proceed with the investigation of the complaint. Id. ¶ 7 and 9; and Exh. 6. Plaintiff Moore did not disagree with the accepted issues. Yet now, years later, Plaintiff Moore seeks to challenge his non-promotion to all positions for which he bid for promotion from 1999 through 2002, the date of his promotion to the GS-14 level. Am. Compl. ¶ 28. A clearer case of “gotcha” is hard to imagine. Having led defendant to believe that no other nonpromotion claims were at issue, when Plaintiff Moore withdrew any such claims at the time of his administrative complaint, Exhs. 5 ¶ 7; Exh. 6, Plaintiff Moore now seeks to pursue those abandoned claims. This should not be permitted, and the unexhausted non-
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promotion claims should be dismissed.4 See Morgan, 536 U.S. at 114 (failure to promote claims must be individually exhausted).
(2) Plaintiff Moore’s reassignment claim Plaintiff Moore now alleges that he was discriminated against when he was reassigned to Dallas in or about October 1999. Exh. 6; Am. Compl. ¶ 69. However, this claim was not raised in the original complaint in this case filed on May 3, 2000. Thus, such a claim should be considered abandoned. More than six years have now passed since the filing of the complaint in this case, so even if the claim had been properly exhausted plaintiff Moore failed to timely raise it in the litigation. Moreover, a motion to dismiss has been filed and granted in part. Discovery has been ongoing and has been actively pursued since December of 2004. Defendant has submitted discovery and provided voluminous responses to several sets of interrogatory, admission and document requests. Defendant has provided plaintiffs with access to more than 10,000 pages of hard copy and electronic documents, and many Motions to Compel and Motions for Protective Orders have been filed and decided. None of this concerned Plaintiff Moore’s transfer to Dallas. It would be unfair and prejudicial to defendant to allow
4 Additionally, any claims concerning non-promotions which occurred more than forty-five days prior to Plaintiff Moore’s first contact with an EEO Counselor on August 16, 1999, were untimely at the time of that contact, and remain untimely now.
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plaintiffs at this late stage in the process to include this long forgotten and abandoned claim. There can be no excuse for the dilatory conduct of the plaintiffs in failing to bring this claim in the years past, and none has been offered. Accord Forman v. Davis, 371 U.S. 178 (1962) (leave to amend need not be granted where there has been undue delay, bad faith, dilatory tactics); Doe v. McMillan, 566 F.2d 713 (D.C. Cir. 1977) (thirtyeight months between original filing and first amended filing was too long a delay); Hayes v. New England Millwork Distributers, 602 F.2d 15 (1st Cir. 1979) (“where, as here, considerable period of time has passed between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some “‘valid reason for his neglect and delay.’”).
It is simply too late and prejudicial to now revive Plaintiff Moore’s abandoned complaint of discriminatory transfer, and the claim should be dismissed.
(B) Plaintiff Turner’s GS-14 non-promotion. Plaintiff Turner made timely contact with an EEO Counselor in regard to failure to promote to the GS-14 level for vacancies number 99-123 and 99-177. Nonetheless, like Plaintiff Moore, Plaintiff Turner now raises claims about all his non-promotions from 1999 to October 2000, the date of his promotion to the GS-14 level, even though he never sought EEO counseling regarding these claims. Am. Compl. ¶ 31. As with Plaintiff Moore, these non-
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promotion claims are discrete act claims which Plaintiff Turner may not now raise, as they are untimely and unexhausted. Further, any non-promotion claims which occurred prior to September 11, 1999, forty-five days before Plaintiff Turner contacted an EEO Counselor, cannot be said to be timely. Thus, all such additional non-promotion claims must be dismissed.
(C) Plaintiffs Moore’s and Turner’s other unexhausted claims
Plaintiffs Moore and Turner also seek to raise new, stale and unrelated claims. For Plaintiff Moore these include an allegation that during his first five years of employment with the Secret Service, in the early 1980's, he did not receive awards and bonuses, Am. Compl. ¶ 105, and that also in the 1980's while assigned to the Miami Field Office he was required to complete undercover work, id. at ¶ 98. For Plaintiff Turner an additional claim is that when he was hired as a Special Agent in the early 1980s, he was hired as a GS-5. Id. at ¶ 89. These all are previously dismissed and/or pre-1999 claims. 2006 Mem. at 15; 2004 Mem. at 7 and 25 (Turner’s hiring claim). Thus, they should be dismissed.
Additionally, neither Plaintiffs Moore nor Turner ever contacted an EEO Counselor in regard to these matters. Their first contact with an EEO Counselor was in 1999, concerning nonpromotions in 1999. Exhs. 4 and 11, block 4. Matters which happened decades ago and do not even relate to untimely claims
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were not exhausted by those counselor contacts; they should be dismissed.
IV Plaintiffs Turner and Moore Lack Standing to Bring Claims that do not Involve Non-Promotion.
Standing to invoke the jurisdiction of the federal courts requires a plaintiff to show that he “(1) has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 18081 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
Similarly, in the case of a putative class complaint, the Supreme Court foreclosed the concept of an “across the board” class action in Title VII cases. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982) and East Texas Motor Freight Systems, Inc. v. Rodriguez, 431 U.S. 395 (1977). Both Falcon and Rodriguez clearly established that the “class representative [must] be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at 156; Rodriguez, 431 U.S. at 403. Under Falcon and Rodriguez, it is well settled that an individual plaintiff who seeks to bring a class claim of discrimination must
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make a factual showing that he was harmed by the practices complained of in the class claim portion of the complaint. See generally, Holsey v. Armour and Co., 743 F.2d 199 (4th Cir. 1984) cert. denied, 470 U.S. 1028 (1985).
In the Amended Complaint plaintiffs raise claims of discrimination in regard to the Merit Promotion Plan (MPP) scoring process, and the “building blocks of promotion,” including personnel matters such as discipline, assignments, awards and bonuses, hiring (entry level grade at time of hiring) and the TEA. Am. Compl. ¶¶ 16-20. Plaintiffs Moore and Turner, however, have suffered no harm in any of these areas.
In their administrative Second Amended Class Action Complaint, Plaintiffs Moore and Turner only complained of nonselection for promotion to the GS-14 level. According to Plaintiffs Moore and Turner, they each had extraordinarily high promotion (MPP) scores, each was promoted rapidly through the early years of their careers, and each received choice assignments and positions on which they bid and which they believed would further qualify them for promotion. Plaintiff Moore was selected for and served on the PPD. Plaintiff Turner served on the Vice Presidential Protective Division (VPPD). Plaintiff Moore was a Number 1 Whip on the PPD, an assignment he considered to be very prestigious and career enhancing. Plaintiff Turner was a Lead Training Instructor on VPPD and the
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Resident Agent for the Vice President’s Residence. Each received awards and bonuses for the work they accomplished. Each served as an acting supervisor. Neither had ever been the subject of a disciplinary action. Exh. 8 ¶¶ 28-33 and 36- 39; Exh. 9 pp. 5455; Exh. 13, p. 41.
Thus, these two plaintiffs have no standing to complain on behalf of others of harm in the “building blocks of promotion” the MPP scoring process, or in any other area. Changing any of these matters would not affect Plaintiff Moore’s or Turner’s non selection for promotion claims. Thus, Plaintiffs Moore and Turner, the class agents who exhausted 1999 non-promotion claims, have no standing to plead a claim of discrimination in the MPP process, the building blocks of promotion, or any matter beyond the 1999 non-promotion to the GS-14 level. They may not act as class representatives for a class of individuals who are said to have been discriminated against in such matters.
Because there are no other plaintiffs who exhausted claims in these areas, the purported class claims concerning the MPP scoring process, the building blocks of promotion, and the other post-1999 allegations should be dismissed.
V. Claims which are not Vicariously Exhausted and/or like or Related.
Plaintiffs Moore and Turner raise three properly exhausted claims of failure to promote, which they seek to extend into a potential class. In this regard, plaintiffs have previously
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suggested, and this Court has considered, two related mechanisms to bring additional claims under the exhaustion umbrella of Plaintiffs Moore and/or Turner.
First, this Court has previously found that some claims of non-selection for promotion could be vicariously exhausted through the non-promotion claims of Plaintiff Moore. This Court found that these non-promotion claims remained viable pending further development of the record. 2004 Mem. at 26, n.6.
Second, this Court found that “building block” claims could be said to be sufficiently “like” or “related to” the nonselection for promotion class claim of Plaintiff Turner to allow those claims to be pled under the theory of vicarious exhaustion. 2006 Mem. at 12-14.
Substantial discovery having now occurred, and the “building block” claims having now been pled, defendant submits that all claims in this case should be dismissed as unexhausted, with the exception of GS-14 non-selection for promotion claims concerning individuals who bid for promotion and were, like Plaintiffs Moore and Turner, eligible for consideration for possible promotion. All other claims are untimely, unexhausted and cannot be saved by the theory of vicarious exhaustion/“building block” claims.
(A) GS-15 and SES Claims Plaintiffs seek to bring a class claim concerning promotion to the GS-15 and the SES level. Am. Compl. ¶¶ 16. The only
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exhausted class complaint allegations are those of Plaintiffs Moore and Turner. Plaintiff Moore’s and Turner’s exhausted complaints concern non-promotion to the GS-14 level in 1999. Exhs. 8 ¶¶ 34 and 40. Plaintiffs Turner and Moore did not complain in the administrative process, and do not complain in the amended complaint, of non-promotion to the GS-15 level or the SES level. Id.; Am. Compl. ¶¶ 28-29 and 30. Indeed, Plaintiff Turner never bid for promotion to the GS-15 level, and never sought entrance into the SES program. Plaintiff Moore was promoted to the GS-15 level in 2004, without complaint to an EEO Counselor. Am. Compl. ¶ 31. Further, the selection process for the SES level is entirely different from that for promotion to the GS-14 or GS-15 level. Exh. 1 ¶ 6. The SES is not governed in any way by the MPP scoring process. Id. Thus, there is no exhausted potential class complaint concerning promotion to the GS-15 or SES level.
(B) MPP claims/failure to refer claims Through the Amended Complaint plaintiffs seek to bring a claim of class wide discrimination in regard to defendant’s MPP scoring process. They also seek to raise the claims of those who, due to the MPP scoring process, were not eligible for consideration for possible promotion to the GS-14 and GS-15 level. Am. Compl. ¶¶ 16-20, 35, 40, 44, 47, 49, and 52. MPP and/or failure to refer for promotion claims are plainly not
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similar to those filed by Plaintiffs Turner and Moore for the purposes of vicarious exhaustion.
This Court preliminarily applied the theory of vicarious exhaustion to the unexhausted non-promotion claims of Plaintiffs Ivery, Tyler and Summerour.5 A determination of “whether there is a real possibility that one of the claims might be administratively settled while the other[s] can be resolved only by the courts,” was to “await further development of the record” in this case. 2004 Mem. at 26, n.6.
The record now shows that plaintiffs cannot rely upon the “vicarious exhaustion” doctrine in regard to all non-promotion claims alleged by Plaintiff Tyler, and some such claims alleged by Plaintiffs Ivery and Summerour. Further, the Amended Complaint appears to add MPP scoring and failure to refer claims from other plaintiffs, which are equally subject to dismissal.
Under the vicarious exhaustion doctrine, a Title VII plaintiff who has failed to file an EEOC charge may, in certain limited circumstances, escape this requirement by joining with another plaintiff who has filed such a charge. Foster v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981) (citations omitted). “[E]xhaustion of administrative remedies by one member of the
5This Court has also ruled that the two non-selection for promotion claims of Plaintiff Turner were saved from dismissal under this same theory. 2004 Mem. at - 26. As it appears that Plaintiff Turner has now independently exhausted these same claims, these claims will not be addressed in this section.
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class satisfies the requirement for all others with sufficiently
similar grievances.” Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C.
Cir. 1996) (citing Foster, 655 F.2d at 1322-23). These limited
circumstances only occur “[w]here the two claims are so similar
that it can fairly be said that no conciliatory purpose would be
served by filing separate EEOC charges . . . .” Foster, 655 F.2d
at 1322 (emphasis added). However, vicarious exhaustion does not
apply “where the two complaints differ to the extent that there
is a real possibility that one of the claims might be
administratively settled while the other can be resolved only by
the courts.” Id.
For example, in Mayfield v. Meese, 669 F. Supp. 1123, 1130-
31 (D.D.C. 1987), the Court held that the two plaintiffs who had
failed to exhaust could not rely on a theory of vicarious
exhaustion because their claims were not sufficiently similar to
plaintiff Mayfield’s exhausted claims:
Although the government gave Mayfield’s allegation of systemic discrimination short shrift, we cannot conclude from Mayfield’s case that no real possibility of administrative resolution of the claims of Moore and Sykes existed. Moore and Sykes for example, both applied for promotions, some of which were denied while others were granted. On the issue of causation alone, this placed them in a substantially different position than Mayfield, since Moore and Sykes would not have to prove that application for promotion was futile in order to recover under Title VII. This difference is significant enough to require Moore and Sykes to first seek administrative resolution of their claims independent from Mayfield’s administrative actions.
Id.
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All non-promotion claims of Plaintiff Tyler, some of Plaintiffs Summerour and Ivery, and many other non-promotion claims which appear to be raised in the Amended Complaint involve a situation where a complainant bid but could not be considered for promotion because his/her MPP score was too low. This situation when compared to Plaintiff Moore’s and Plaintiff Turner’s exhausted claims is very similar to the one in Mayfield v. Meese as cited above. Plaintiff Moore’s and Plaintiff Turner’s claims involve non-selection for promotion to vacancies on which these plaintiffs bid and for which their high MPP scores placed their names on the Merit Promotion/Best Qualified Certificate (Certificate). Thus, in regard to their exhausted non-promotion claims, Plaintiffs Moore and Turner were among those who could be considered for selection for the position. Exh. 1 ¶¶ 26, 34, 47, 50 & Attachs. A, D and E. The issue in Plaintiff Moore’s and Plaintiff Turner’s cases is why they were not selected for positions for which they were eligible to be selected. The decision makers in these cases were the members of the Promotion Advisory Board. Exh. 1 ¶¶ 24, 25 and 26.
Conversely, when an individual’s MPP score is too low to place his/her name on the Certificate for a promotion for which he/she applied, that individual may not be considered for promotion. Exh. 1 ¶¶ 23 and 26. The individual’s name does not come before the Promotion Advisory Board. Id. Therefore, the
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question is not why an individual was not selected for promotion, but why the individual received an MPP score that precluded the possibility of promotion. Such claims are not non-selection for promotion claims, but rather claims concerning the MPP scoring process, or claims of failure to refer for promotion. The nature of these claims involves an entirely different set of considerations, different decision makers and a different decision making process. Exh. 1 ¶ 10-16. Such claims are not sufficiently similar to that of Plaintiffs Moore and Turner as to have been exhausted for class or individual purposes through Plaintiffs Moore’s and Turner’s claims.
Significantly, defendant was not on notice through Plaintiff Moore’s or Turner’s EEO Counselor contacts that the MPP scoring process was to become at issue. See Foster, 655 F.2d at 1323 (emphasizing the importance that a defendant to be on notice of the charges against it). To the contrary, Plaintiff Moore was asked by the EEO Specialist whether he was seeking to raise a claim concerning the MPP scoring process, and he said “no.” Exh. 5 ¶ 7, and attached notes to that document. Similarly when Plaintiffs Turner and Moore filed their individual and administrative class complaint, their claims did not relate to the MPP scoring process; rather, they cited to their high MPP scores. Exh. 8 ¶¶ 29 and 36. Indeed, in the administrative complaints, the original civil complaint and in the Amended
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Complaint there is no allegation that Plaintiffs Moore or Turner were harmed or are even now complaining about their MPP scores. Id.; Compl. ¶¶ 50-54; Am. Compl. ¶¶ 29 and 32. Thus, defendant had no notice that it could be subject to a Title VII suit on a failure to refer for promotion claim or MPP scoring process claim, and had no opportunity to resolve such claims administratively prior to federal litigation. Sweeping in the dissimilar failure to refer/MPP scoring claims of Plaintiffs Tyler, Summerour, Ivery, and other plaintiffs would subvert the purpose of the vicarious exhaustion doctrine.
Furthermore, there is a real possibility that the failure to refer/MPP claims might have been administratively settled. See Foster, 655 F.2d at 1322 (emphasizing the importance of possible conciliation); Cook v. Boorstein, 763 F.2d 1462, at 1466 (D.C. Cir. 1985). In years past, plaintiffs in this case, including Plaintiffs Summerour and Turner, each filed internal agency grievances concerning their MPP scores, and had had those scores raised. Exh. 1 ¶¶ 40-46, 62-63, & Attachs. B and F. Thus, plaintiffs’ failure to refer claims do not satisfy the Foster rationale that it would be wasteful, if not useless, for employees with the “same grievance” to have to process many “identical” complaints with the EEOC. Id., 655 F.2d at 1322.
The failure to refer claims of Plaintiffs Tyler, Summerour and Ivery, and of other unexhausted plaintiffs, are not the same
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as the non-promotion claims of Plaintiffs Moore and Turner nor are they functionally identical. The failure to refer claims are far more similar to the dismissed claims in Mayfield v. Meese, where the facts to be proven were different and could have led to equally different resolutions. For these reasons, all claims submitted by a plaintiff which present a failure to refer/MPP scoring claim should be dismissed as unexhausted.
(C) Plaintiff Turner’s Non-Selection Claim is not a Building Block Claim and Claims other than Non-Promotion Should be Dismissed.
This Court has ruled that plaintiffs, through the exhausted administrative class complaint of Plaintiff Turner, may raise post-1998 claims of purported class wide discrimination in regard to the building blocks of promotion. 2006 Mem. at 3. With these claims having how been pled, and with the benefit of the substantial discovery which has been conducted in this case, defendant submits that any remaining building block claims should be dismissed,6 as a review of the underlying non-selection for promotion claim of Plaintiff Turner demonstrates that his claim did not implicate the building blocks of promotion.
Plaintiff Turner’s MPP score for the promotions for which he was not selected and about which he complained to an EEO
6 As noted above, plaintiffs’ post-1999 building block claims concerning discipline, entry level grade at time of hiring, under cover work, and the TEA should be dismissed for failure to state a claim. See supra at 3-4.
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Counselor was a 95.64 out of 100 possible points. Exh. 1 ¶¶ 46, 47, 50 & Attachs D and E; Exh. 40. Plaintiff Turner’s MPP score was so high that it placed him well among the best qualified for the two vacancies in question, and he was eligible for possible selection. Id.
Plaintiff Turner’s administrative class action complaint strongly points out that his non-promotion claims did not involve the events which had preceded his non-selection for promotion. In his administrative class complaint Plaintiff Turner pointed to his experiences with defendant as evidence that he should have been promoted. He notes that while in his first assignment in the Miami Field Office he was promoted from the GS-5 to the GS-13 level, five grade levels, in seven years. Exh. 8 ¶ 37. Plaintiff Turner bid and was competitively selected to the GS-13 level. Exh. 13 at 15. While in Miami, Plaintiff Turner received a variety of choice and career-enhancing assignments -- “numerous counterfeit, forgery and fraud investigations,” “Acting Assistant Detail Leader and Shift Leader,” and an opportunity to serve as the “Bahamas/Jamaica Island coordinator while in the counterfeit squad.” Exh. 8 ¶ 37. As a GS-13 in the Miami Field Office, Plaintiff Turner was a senior agent who handled the most complex criminal investigations and protective advances. Exh. 13, at 15. Plaintiff Turner has stated that he was satisfied with his duties in the Miami Field Office. Id. at 19 and 20.
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During the second phase of his career, Plaintiff Turner served on the VPPD, a position to which he had sought reassignment, and which he believed to be a desirable and a necessary step toward further promotion. Id. at 18 and 19. While on VPPD Plaintiff Turner was the lead training instructor for special agents assigned to the VPPD, and was the Resident Agent -- the agent responsible for the security arrangements for functions at the Vice President’s residence. Exh. 8 at ¶ 38. Having completed the second phase of his career with the Secret Service, Plaintiff Turner was then reassigned at his request to the Washington Field Office, Exh. 13 at 21 and 22, where he was again given a number of career-enhancing assignments including acting supervisory assignments for two squads. Exh. 8 ¶ 39. Throughout his career Plaintiff Turner received a variety of cash awards, having received at least one cash award in each of the three years preceding his complaint, as well as the year of his complaint. Id. Plaintiff Turner was never the subject of a disciplinary action or investigation. Exh. 9 at 41.
Thus, Plaintiff Turner’s two 1999 failure to promote complaints do not concern the building blocks of promotion. Rather, Plaintiff Turner’s claims are that despite all the opportunities, assignments, and awards he had been given, despite his high promotion evaluation score and his placement on the Certificate for the two positions in question, he was not
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selected for promotion. In March 2006 this Court found that Plaintiff Turner’s 1999
non-selection for promotion claim could vicariously exhaust other post-1998 claims, including discriminatory performance evaluations; discriminatory transfers, assignments, and other career-enhancing opportunities; discriminatory assignments to undercover work; discriminatory hiring practices; discriminatory testing; discriminatory disciplinary policies and practices; and discriminatory awards and bonuses. 2006 Mem. at 12-13. This Court found these other claims were sufficiently related to Plaintiff Turner’s 1999 non-selection for promotion claim, because they concern the building blocks of promotion. Id.
In making this finding, this Court relied on Contreras v. Ridge, 305 Supp. 2d 126 (D.D.C. 2004), holding that “any EEOC investigation of the denial of promotion claim would necessarily involve investigation into the building blocks of promotion”. Id. As defendant has previously pointed out to the Court, the facts underlying Mr. Contreras’s EEO Counselor contact and formal administrative complaint are directly opposite to the facts underlying Plaintiff Turner’s EEO Counseling contact and formal administrative complaint. See Exhs. 21 and 22.
Prior to the filing of his administrative class complaint, Mr. Contreras made several contacts with an EEO Counselor raising claims regarding performance ratings, denial of training, and
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retaliation and discipline. Exh. 20 at ¶¶ 28 and 29. When Mr. Contreras made contact with an EEO Counselor in regard to his class complaint, he told the EEO Counselor that his complaint concerned “promotions, reassignments, details, job training and language skills, and that the discriminatory allocation of work assignment to Hispanic agents den[ies] them opportunities for promotions.” Contreras, 305 F. Supp.2d at 132. Mr. Contreras also stated to the EEO Counselor that he had been the recent victim of such actions. Exh. 21. Finally, Mr. Contreras’s promotion and reassignment situation as described to the EEO Counselor was as follows:
Mr. Contreras has submitted over thirty-eight (38) applications for promotion to GS-1811-13 and 14 Supervisory Criminal Investigator positions and/or lateral transfers at USCS and was rejected each time, ostensibly because his background and experience did not qualify him for inclusion on the BQL [Best Qualified List] from which the selection had been made. Id. This is directly contrary to the 1999 non-promotion claims presented by Plaintiff Turner to his EEO Counselor. Plaintiff Turner’s complaint was that despite a high promotion evaluation score and although he had acted in at least one of the two positions in question, he was not selected for promotion. Exh. 8; Am. Compl. ¶ 31. There was not a single mention of any other complaint or event of alleged discrimination. Exh. 8 ¶ 35-40. Similarly, and again directly contrary to Plaintiff Turner’s
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complaints, in his formal administrative class complaint
Mr. Contreras stated in his “description of individual
allegations of discrimination of the [class] agent” that he had
been repeatedly denied lateral transfers, career-enhancing
opportunities and training. Mr. Contreras’s formal class
complaint sets forth factual allegations involving a
disappointing career filled with lost opportunity. Exh. 22. As
specifically noted by the Court in Contreras, Mr. Contreras’s
underlying formal administrative EEO complaint stated:
[the Customs Service’s] repeated failure to promote Mr. Contreras to a supervisory position is the result of its discriminatory practices by which Hispanic agents receive a disproportionately large share of unfavorable work assignments including Spanish-English translation, wiretap monitoring, temporary duty, undercover work, geographical transfers and assignments to dangerous and otherwise undesirable posts. In addition, [the Customs Service] has failed and refused to assign Hispanics to positions and locations with promotional opportunities.
Id., 305 F. Supp. 2d at 133.
Because of the aforementioned practices, Mr. Contreras and similarly situated Hispanic special agents have been precluded from obtaining the training and diverse work experience which constitute the basis upon which applications for promotion are evaluated.
Id., 305 F. Supp. 2d at 133, ft. 3; see also Exh. 22. Having
reviewed the above, the Contreras Court found that
Mr. Contreras’s non-selection for promotion claims implicated the
building blocks of promotion, and accordingly such matters were
“like or reasonably related to the timely exhausted promotion
claim because they concern work opportunities that would
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credential or position Hispanic agents for promotions.” Id., 308 F. Supp. 2d at 134.
The facts in the Contreras case do not exist in regard to Plaintiff Turner’s claims of non-selection for promotion. Plaintiff Turner’s claim is that despite having received choice assignments throughout his career, having received numerous awards, having served in acting supervisory positions, and having received a top promotion evaluation score, he was not selected for promotion. Exh. 8 at ¶¶ 36-40. Thus, it cannot be said that Plaintiff Turner’s claim is like Mr. Contreras’s and implicates the building blocks of promotion, or the denial of opportunities which would credential him for promotion.
If Plaintiff Turner’s non-selection for promotion claim implicates the building blocks of promotion then the same would have to be true of all non-selection claims, and this Court has already held in regard to Plaintiff Reginald Moore, such is not the case. See 2004 Mem. at 25-26; 2006 Mem. at 13.
This Court explained that based on Plaintiff Moore’s individual complaint, the other individual claims alleging other forms of discrimination –- discrimination in hiring, performance evaluations, and testing, hostile work environment, retaliation, and discriminatory assignment claims -– were “not the kinds of claims that the Secret Service could have reasonably anticipated while investigating Reginald Moore’s 1999 complaint.” See 2004
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Mem. at 25. “The other claims raised by plaintiffs .... have only a generic thread of racial discrimination tying them together.” 2004 Mem. at 25. “The facts of Reginald Moore’s nonpromotion claim did not implicate the building blocks of promotion because his claim asserted non-promotion in spite of a high performance evaluation. An investigation of this complaint would not have necessarily involved examining the building blocks of promotion.” 2006 Mem. at 13.
If Plaintiff Moore’s non-selection claim did not implicate the building blocks of promotion, the same must be true of Plaintiff Turner’s complaint. These two claims are almost a direct overlay. Compare Exh. 8 ¶¶ 27-32 concerning Plaintiff Moore with Exh. 8 ¶¶ 36-40 concerning Plaintiff Turner. Both plaintiffs cite to their high promotion evaluation scores, their spotless work records, their history of achievement in both work assignments and awards and bonuses. Id. Both cite to the leadership roles which they have filled, and to the career opportunities they have been given, including acting supervisory positions. Id. In short, Plaintiff Turner’s complaint is in direct and exact factual alignment with Plaintiff Moore, and in direct factual opposition to Mr. Contreras.
For these reasons, defendant respectfully requests that this Court now find that Plaintiff Turner’s non-selection for promotion claim does not implicate the building blocks of
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promotion. Defendant asks this Court to dismiss all claims other than non-selection for promotion as untimely and unexhausted.
(D) Claims Concerning Awards and Bonuses Should be Dismissed as They are not Part of the Building Blocks of Promotion.
Insofar as the Court might find that Plaintiff Turner’s nonselection for promotion claim continues to implicate the building blocks of promotion, claims concerning awards and bonuses should still be dismissed as such matters are not part of the building blocks of promotion. Exh. 1 ¶ 31.
In Contreras, the Court ruled that claims concerning hostile work environment and foreign language proficiency awards were not properly asserted to the EEO Counselor or in the administrative charge or were not timely asserted, and, because of the failure to exhaust, were not properly before the Court. Id., 305 F. Supp. 2d at 134. Therefore, the Contreras Court distinguished between matters which could be said to be the building blocks of promotion and those that were not. In making this distinction, the Contreras Court specifically considered whether the claims were “work opportunities that would credential or position Hispanic agents for promotions.” Id., 305 F. Supp. 2d at 133.
There has been substantial discovery in this case concerning the MPP process and those factors which flow into promotion considerations. Awards and bonuses are not considered in this process, and there is no evidence to the contrary. See
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Plaintiffs Opposition to Defendant’s Motion For Reconsideration In Part and For Clarification [Docket No. 325] at 9. n.10.
There is no dispute that awards and bonuses have never been said to be part of the credentials for promotion at the Secret Service. Thus, they are not part of the building blocks of promotion. Such claims, therefore, should be dismissed as unexhausted and not ‘like” or “related to” the exhausted nonpromotion building blocks claims.
VI. Individual and Class Allegations Which Fail to State a Claim for Which Relief May Be Granted Should be Dismissed.
In March 2006 this Court granted leave to plaintiffs to plead claims arising since 1999 which concerned the building blocks of promotion. As discussed above, these claims having now been pled, and based on the substantial discovery which has taken placed to date, it is evident that the exhausted claims of Plaintiff Turner do not involve building block claims. For this reason, all claims other than the non-selection for promotion claims should be dismissed.
Beyond the more detailed argument as set forth above, however, and even were this Court to determine that Plaintiff Turner’s claims as now pled include building block claims, portions of the Amended Complaint should be dismissed for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs seek to claim class wide discrimination in regard
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to discipline, hiring (entry level grade at time of hiring), and testing (the TEA), and assignment to undercover work. Am. Compl., Section B, ¶¶ 55-65, and Section D ¶¶ 82-94. However, plaintiffs have been unable to produce one individual who can present a viable claim of discrimination in regard to these four matters which is said to have occurred since 1999. Without at least a viable allegation of discrimination, which is said to have occurred since 1999, there is nothing to remedy and no relief to grant either individually or to a class. For this reason, plaintiffs’ individual and purported class claim allegations in regard to discipline, hiring, the TEA, and assignment to undercover work should be dismissed as failing to state a claim.
(A) Claims concerning discriminatory discipline Plaintiffs allege that since at least 1999 they have been subject to individual and class wide discrimination in regard to disciplinary action. However, plaintiffs do not present this Court with an allegation of discrimination in disciplinary action which occurred since 1999. See Am. Compl., Section B, ¶¶ 55-65. Plaintiffs attempt to bring a claim of individual and class wide discrimination in regard to disciplinary action through an allegation presented by Plaintiff Lisa Robertson. Am. Compl. ¶ 63. However, a fair reading of this paragraph shows that Plaintiff Robertson was not the subject of a disciplinary action.
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She was not removed, demoted, or suspended, and no letter of reprimand or counseling was issued to her. Plaintiff Robertson is complaining that she was placed on administrative leave and thought she would be proposed for removal, but she was not proposed for removal. Am. Compl. ¶ 63. No disciplinary action occurred.7
What is more, Plaintiff Robinson brought this same matter to the attention of an EEO Counselor in January of 2003, and then “withdrew” this claim in writing one month later in February 2003. Exh. 16 ¶ 4 & Attach. A. She cannot now reassert this “withdrawn” claim, and have a class form around such a claim.
Plaintiffs cannot state a claim of class-wide or individual discrimination in regard to discipline, based on an event that plaintiffs admit did not occur, and on a claim which was withdrawn in 2003. Plaintiffs have presented no post-1999 claim of discriminatory discipline, and thus the allegation concerning individual and class-wide discrimination in regard to disciplinary action should be dismissed.
(B) Claims concerning discrimination in testing Plaintiffs allege individual and class-wide discrimination in regard to testing, specifically the TEA. Am. Compl. Section D, ¶¶ 82-103. However, plaintiffs present this Court with no
7 Placement on administrative leave is not considered disciplinary action. Exh. 23.
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such claim from any individual which is purported to have occurred since 1999. Without a claim from a person there is nothing to remedy, no relief to grant. Thus, plaintiffs fail to state a claim of discrimination in regard to the TEA and this portion of the Amended Complaint should be dismissed.
(C) Entry level grade at time of hiring Plaintiffs allege individual and class-wide discrimination in regard to entry level grade at the time of hiring. Plaintiffs claim that defendant hired African American Special Agents at a lower grade than Caucasians. Am. Compl., Section D, ¶¶ 82-103. However, the only claim concerning this allegation which is said to have occurred since 1999 is moot. Plaintiff Camilla Simms alleges that in 2002 she was hired as a GS-5 when she should have been hired as a GS-9. However, Plaintiff Simms candidly admits that when she complained in regard to her hiring grade it was changed to a GS-9. Id. ¶ 93. Plaintiffs Simms’ situation was resolved in 2003; therefore, this claim of discrimination is moot. Exh. 1 ¶¶ 75-79 & Attach. G. Thus, there is nothing to remedy here, no relief to grant. All relief was granted three years ago. For this reason, individual and class-wide claims of discrimination in hiring practices should be dismissed for failure to state a claim.
(D) Undercover Work Plaintiffs allege individual and class-wide discrimination
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in regard to assignment to undercover work. According to plaintiffs, African Americans are assigned to undercover work more frequently than non-African Americans and these undercover assignments slow the progress of African American Special Agents toward promotion to the supervisory ranks. Am. Compl. Section E, ¶¶ 95-102. However, plaintiffs have been unable to produce even one African American Special Agent who is complaining of being assigned to undercover work since 1999. Instead, plaintiffs again rely on Plaintiff Simms, who alleges that on one occasion in 2005 she was “asked” to work undercover even though she was seven months pregnant at the time. Am. Compl. ¶ 102. Noticeably absent from this complaint, however, is an allegation that Plaintiff Simms in fact worked this undercover assignment, or any other undercover assignment. Id.; Exh. 17. Thus, there is nothing to remedy here, no relief to grant. Plaintiffs should not be allowed to raise a claim of class-wide discrimination in undercover assignments around the fact that someone was merely asked to work an undercover assignment. For this reason, plaintiffs supposed class-wide claim of discrimination in undercover work should be dismissed for failure to state a claim.
VII. Defendant is Entitled to Summary Judgment on Plaintiffs’ Pattern and Practice Claims.
Plaintiffs have repeatedly advised this Court that they seek to bring and will prove a pattern and practice of discrimination. According to plaintiffs, “[r]ace discrimination
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has become the standard operating procedure of Defendant with respect to these employment decisions.” Am. Compl. ¶ 121. Having completed substantial discovery, it does not appear that plaintiffs can in any way substantiate this allegation.
As the Court of Appeals for this Circuit has noted, “an important point of convergence” between disparate treatment and disparate impact claims exists in class actions such as this one. ... Because both disparate treatment and disparate impact claims ‘are attacks on the systemic results of employment practices ... proof of each claim will involve a showing of disparity between the minority and majority groups in an employer’s workforce.’ ... Thus, under both theories of liability, the plaintiff must make a prima facie showing that racial disparity exists.”
The centerpiece of such a showing is usually a statistical analysis demonstrating ‘a disparity in the position of members of the plaintiff class and comparably qualified whites.’ Moore v. Summers, 113 F. Supp. 2d 5, 19 (D.D.C. 2000), citing Segar v. Smith, 738 F.2d 1249, 1265-66 (D.C. Cir. 1984) and International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 & n.15 (1977). The statistical and factual evidence developed in this case shows that plaintiffs cannot meet their burden of proof to show a pattern and practice of discrimination in regard to the selection of Special Agents for promotion to the GS-14 level. Expert examination of promotions made during the period of 1998
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through 2002 reflects that African Americans are promoted to the GS-14 level at a slightly faster (but statistically insignificant) rate than their non-African American counterparts. Exh. 18, page 8, table 2.
Similarly, this analysis uncovered no statistically significant deviation in the rate of promotion of African American Special Agents versus the rate of promotion of nonAfrican American Special Agents for the years 1998 through 2002, individually or in total. Exh. 19, p. 9, table 3; Exh. 9, p. 3, table 1; and Exh. 9, p. 5, table 2.
What is more, during the years 1998 through 2002, fifty-two African American GS-13 Special Agents bid for promotion to the GS-14 level. Exh. 1 ¶ 83. Of those fifty-two, forty-seven have since been promoted to the GS-14 level. Id. ¶¶ 81 and 83. Of the remaining five, three have resigned, leaving only two individuals at the GS-13 level. Id. ¶ 82. Additionally, of those forty-seven individuals who were promoted to the GS-14 level, fourteen are now at the GS-15 level, six are SES candidates, and one has been promoted into the SES. Id. ¶ 83. Finally, five of these individuals were promoted to the GS-14 level on the first occasion when they chose to bid (id. ¶ 84), while thirteen of these individuals, including Plaintiff Andrew Harris, were promoted to the GS-14 level during the first year in which they chose to bid. Id. ¶ 85. None of this reflects a
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pattern or practice of discrimination in the defendant’s promotion of African American special agents.
In the Amended Complaint, plaintiffs’ only attempt to present any statistical evidence is that: “[a]s of July 31, 1999, African-Americans compromised 10.76% of the Special Agents at the GS-13 level in the Secret Service. However, at the GS-14 level, the African-Americans constituted only 4.18% of the total number of Special Agents.” Am. Compl. ¶ 26. This is the exact same information which plaintiffs raised to assert discrimination in 2000, when they sought a preliminary injunction of the defendant’s MPP. See Moore v. Summers, 113 F. Supp. 2d at 10. This Court already rejected this information, finding that “Plaintiffs’ statistical analysis therefore does not demonstrate that a racial disparity exists in the promotion of GS-13 to GS14's.” Id. at 21. Now after extensive discovery in this case, with defendant having turned over its bid/promotion data base for all GS-13 to GS-14 promotions for the period of 1998 through 2002; with defendant having responded to over forty interrogatories, fifty admission requests, and seventy document requests; with over twenty depositions having been taken by the plaintiffs; and, with several expert reports having been completed by both sides, plaintiffs present this Court with only the same numbers which were previously rejected by this Court.
Plaintiffs can present no statistical or other evidence of a
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pattern and practice of discrimination. The numbers in this case do not evidence that “discrimination is the standard operating procedure for defendant.” The numbers evidence the opposite, a system which is racially neutral. For this reason, summary judgment should be granted on plaintiffs’ pattern and practice claims concerning selections for promotion to the GS-14 level.
CONCLUSION For the foregoing reasons, defendants respectfully submit that their motion to dismiss or, in the alternative, for summary judgment be granted.
Respectfully submitted,
KENNETH L. WAINSTEIN, D.C. BAR #451058 United States Attorney
RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney
BENTON G. PETERSON, W.I. BAR # 1029849 MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226
Of Counsel: Donna Cahill, Esq. U.S. Secret Service Office of Chief Counsel
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

ORDER

Upon consideration of defendants’ partial motion to dismiss

or, in the alternative, for partial summary judgment, plaintiffs’

opposition, and the entire record, and it appearing to the Court that the grant of defendants’ motion would be just and proper, it

is hereby

ORDERED that defendants’ partial motion to dismiss or, in

the alternative, for partial summary judgment be, and it is,

granted; and it is further ORDERED all plaintiffs’ claims in the Amended Complaint are

dismissed with the exception of the individual and purported

class allegations concerning specific 1999 non-promotion claims

brought by Plaintiffs Moore and Turner.

UNITED STATES DISTRICT JUDGE

Case 1:00-cv-00953-RWR-DAR Document 338 Filed 05/31/2006 Page 48 of 48
Benton G. Peterson Marina Utgoff Braswell Assistant U.S. Attorneys U.S. Attorney’s Office 555 4th St., N.W. Washington, D.C. 20530 John P. Relman, Esq. Reed N. Colfax, Esq. Jennifer I. Klar, Esq. Relman & Associates, P.L.L.C. 1225 Nineteenth St., N.W., Suite 600 Washington, D.C. 20036 Desmond Hogan, Esq. Deborah L. Boardman, Esq. Hogan & Hartson, LLC Columbia Square 555 13th St., N.W. Washington, D.C. 20004
46

Case 1:00-cv-00953-RWR-DAR Document 338-2 Filed 05/31/2006 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________

)

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

) Civ. Action No. 00-95(RWR/DAR)

)

v.

)

)

MICHAEL CHERTOFF, Secretary, )

Department of Homeland Security,)

)

Defendant.

)

_________________________________)______

DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Civil Rule 7.1(h), defendant hereby

submits his statement of material facts as to which there is no

genuine issue:

A) General information concerning the Secret Service’s promotion selection process

1) The GS-14 level is the first level of management at the

United States Secret Service (Secret Service). Exh. 1

(Declaration of Barbara Saliunas) ¶ 4.

2) Promotions to the GS-14 and GS-15 level are made

through similar selection processes. Id. ¶ 5.

3) Promotions to the Senior Executive Service (SES) are

made through a separate and unrelated process to that utilized

for GS 14 and GS-15 promotions. Id. ¶ 6.

4) The Secret Service promotion process for GS-14 and GS-

15 Special Agents is made through the GS-1811 Merit Promotion

Case 1:00-cv-00953-RWR-DAR Document 338-2 Filed 05/31/2006 Page 2 of 24
Plan (MPP). Id. ¶ 5. 5) The Secret Service’s MPP, as revised in 1997, is a
multi-tiered process with two distinct phases: the scoring phase, and the bid/selection phase. Id. ¶ 7; see also Plaintiffs Reply in Support of Their Motion to Reconsider a Portion of the Court’s March 30, 2006 Order on Plaintiffs Motion to Amend and Supplement Complaint [Docket No. 329] at 3.
6) The scoring phase is governed by the written MPP, a written credentialing plan which was developed prior to the 1997 revisions of the MPP, and a set of forms which are included within the MPP. Exh. 1 ¶ 8.
7) The scoring phase of the process begins in or about August of each year, when Special Agents seeking promotion to the GS-14 level will elect to enter into the scoring phases of the process. Id. ¶ 9.
8) Competing Special Agents will receive three sets of scores: the First Level Evaluation score, the Peer Panel score, and the Second Level Panel score. Id. ¶ 10.
9) The First Level Evaluation scores are completed on a set form by each competing Special Agent’s Special Agent in Charge, Resident Agent in Charge, Chief Counsel, or higher level supervisor. Id. ¶ 11.
10) The Peer Panel Score is based on two elements, investigation and protection, and each competing Special Agent is
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given a rating by three evaluators. Id. ¶ 12. 11) The Second Level Panel is based on two elements,
leadership and decision making, and each competing Special Agent is rated by approximately seven evaluators. Id. ¶ 13.
12) Competing Special Agents are advised of the score for each element of the scoring process and provided a composite score. Id. ¶ 14.
13) Competing Special Agents are provided with the opportunity to grieve those scores through the Secret Service’s internal administrative grievance process. Id. ¶ 15.
14) The post grievance scores are then combined for each Special Agent to form a composite score. Id. ¶ 16.
15) The composite/post grievance score may then be used to bid for promotion throughout the following calendar year. Id. ¶ 17.
16) The bid and selection phase of the promotion process begins in approximately January of each calendar year, after the composite scores have been awarded and grievances have been adjudicated. Id ¶ 18.
17) Periodically during a year, GS-14 and GS-15 vacancies will be announced. Id. ¶ 19.
18) GS-13 Special Agents having a MPP score may bid on GS14 positions. Id. ¶ 20.
19) Based upon the individuals who bid, the Secret Service
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Personnel Division creates a Merit Promotion Certificate/Best Qualified List (“Certificate”) for each vacancy. Id. ¶ 21.
20) The creation of the Certificate is governed by the MPP. Id. ¶ 22.
21) Under the terms of the MPP, the Certificate consists of the names of the top thirty (plus ties) MPP scoring Special Agents who bid for the position as a promotion, or the top 25% of those who bid, whichever is larger. However, if less than thirty individuals bid for a promotion, the names of all bidders are placed on the Certificate. Id. ¶ 23.
22) The Certificate is then provided to the promotion Advisory Board for consideration. Id. ¶ 24.
23) The promotion Advisory Board consists of Assistant Directors of the Secret Service. Id. ¶ 25.
24) Under the terms of the MPP, the promotion Advisory Board may only consider for possible promotion those whose names appear on the Certificate, or the top overall scoring GS-13/GS-14 Special Agents. Id. ¶ 26.
25) In practice, the promotion Advisory Board/Assistant Director who has oversight for the office where the position is located will have primary responsibility for making a recommendation to the promotion Advisory Board for the selection for that position. Id. ¶ 28.
26) The promotion Advisory Board/Assistant Director having
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the position under his or her office will consider the candidates on the Certificate, seek recommendations for the candidates, and seek information concerning the potential selectees’ background and work experience. Id. ¶ 29.
27) The promotion Advisory Board/Assistant Director having the position under their office, may consult with other promotion Advisory Board members, his/her Deputy Assistant Directors, and the Special Agent in Charge of the office where the position is located, and will finally make a recommendation for the position to the promotion Advisory Board. Id. ¶ 30.
28) The promotion Advisory Board will then discuss and vote on this recommendation. Id. ¶ 31.
29) When the promotion Advisory Board reaches a majority vote for a position, the recommendation is provided to the Director of the Secret Service for final selection. Id. ¶ 32.
30) Awards and bonuses are not part of the credentialing process for promotion. Id. ¶ 33.
B) Plaintiff Reginald Moore 31) Plaintiff Reginald Moore is employed by the Secret Service as a GS-15 level supervisory special agent, assigned as the Assistant to the Special Agent in Charge (ASAIC), Dignitary Protective Division. See First Amended and Supplemental Class Complaint [Docket No. 322] (Amended Compl.) ¶ 13(a). 32) In 1999 Plaintiff Moore’s MPP score for use in bidding
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for possible promotion was a 97.03 out of 100 possible points. Exh. 1 attachment A.
33) In or about July 1999 Plaintiff Moore bid for promotion on vacancy number 99-089. Exh. 1 ¶ 34.
34) Plaintiff Moore was among the top thirty/top 25% MPP scoring Special Agents who bid for promotion on vacancy number 99-089 and his name appeared on the Certificate. Exh. 1 at ¶ 34, attachment A to that document.
35) As Plaintiff Moore’s name appeared on the Certificate, he could have been considered by the promotion Advisory Board for possible selection for promotion for vacancy number 99-089, but he was not selected. Exh. 1 ¶ 34, attachment A to that document.
36) A white Special Agent with a lower MPP score was promoted to this position. Amended Compl. ¶ 28.
37) The announcement of the name of the individual selected for this position was issued on July 14, 1999. Exh. 1 ¶ 34.
38) On August 16, 1999, Plaintiff Moore first contacted an Equal Employment Opportunity (EEO) Counselor. Exh. 2, request/response # 2; Exh. 3, block 4.
39) Plaintiff Moore’s contact with an EEO Counselor was within forty-five days of his learning of his non-selection for promotion in regard to vacancy number 99-089. Compare Exh. 1 ¶ 34 with Exh. 3, block 4.
40) On October 12, 1999, Plaintiff Moore filed a formal
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complaint of discrimination. Exh. 4. 41) In November 1999 MaryAnn Hageline, an EEO Specialist,
asked Plaintiff Moore and his attorney whether he was seeking to file an EEO complaint concerning his non-selection for a vacancy which had been announced on June 16, 1999, vacancy number 99-073. Exh. 5 (Declaration of Ms. Mary Ann Hageline) ¶¶ 3-8, and notes attached to that declaration.
42) Ms. Hageline also asked Plaintiff Moore and his attorney whether he was seeking to file a claim concerning other “non promotions to positions for which he had applied.” Id.
43) Plaintiff Moore and his attorney advised Ms. Hageline that, in regard to non-selection for promotion, Plaintiff Moore was only seeking to complain in regard to vacancy number 99-089. Id.
44) By letter dated November 16, 1999, Plaintiff Moore and his attorney were advised of the accepted issues in the formal complaint. Id.¶ 9; Exh. 6; Exh. 2, admission request/ response # 5.
45) The only non-promotion at issue as set forth in the November 16, 1999 letter was the non-selection for vacancy 99089. Id.
46) Through the November 16, 1999, letter Plaintiff Moore and his attorney were advised that if they disagreed with the accepted issues they had the right to contest the issues within
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five days of the receipt of that letter. Exh. 6; Exh. 2, admission request/response # 6.
47) Neither Plaintiff Moore nor his attorney contested the issues as set forth in the November 16, 1999, letter. Exh. 2, admission request/response # 7.
48) On or about February 23, 2000, Plaintiff Moore joined Plaintiff John Turner to file an administrative “Amended Class Action Complaint.” Exh. 7.
49) In the administrative “Amended Class Action Complaint” Plaintiff Moore complained only of non-promotion to the GS-14 level in 1999. Id. ¶¶ 26-33.
50) On or about March 21, 2000, Plaintiff Moore along with Plaintiff Turner and Plaintiff C. Yvette Summerour filed an administrative “Second Amended Class Action Complaint.” Exh. 8.
51) In the administrative “Second Amended Class Action Complaint”, Plaintiff Moore complained solely of his nonpromotion to the GS-14 level in 1999. Id. ¶¶ 27-34.
52) In the administrative “Second Amended Class Action Complaint”, Plaintiff Moore described his high MPP score, his early history of promotions with the Secret Service, his early history of career enhancing assignments, that he had served on the Presidential Protection Division, and that he has received performance awards in 1996, 1997, 1998, and 1999. Id. ¶¶ 27-34.
53) Plaintiff Moore has never been the subject of an
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employee disciplinary/adverse action. Exh. 9, pp. 54-55. 54) In August 2002, Plaintiff Moore was selected for
promotion to a GS-14 supervisory position within the Secret Service. Exh. 1 ¶ 35.
55) Plaintiff Moore had bid for this position through the Secret Service’s bid and selection process, the MPP. Id. ¶ 36.
56) In October 2004, Plaintiff Moore was selected for promotion to the GS-15 level. Id. ¶ 37.
C) Plaintiff John Turner 57) Plaintiff John Turner is a retired special agent of the Secret Service. Exh. 2, admission request/response # 24. 58) Plaintiff Turner retired from the Secret Service effective March 21, 2001, as a GS-14 supervisory special agent, last assigned as an Assistant to the Special Agent in Charge (ATSAIC) in the Secret Service’s Washington (WFO) Field Office. Exh. 1 ¶ 39. 59) In 1998, Plaintiff Turner was a GS-13 special agent of the Secret Service. Id. ¶ 40. 60) In 1998, Plaintiff Turner was eligible to compete for promotion to the GS-14 level and entered into the MPP process to compete for promotion to the GS-14 level. Id. ¶ 41. 61) Plaintiff Turner was originally provided with his composite MPP score on October 20, 1998. Id. ¶ 42, and attachment B to that document.
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62) This score was a 91.35. Id. ¶ 43, and attachment C to that document.
63) Plaintiff Turner filed an administrative grievance in regard to that score. Id. ¶ 44, and attachment B to that document.
64) On December 6, 1998, Plaintiff Turner’s grievance was granted in part and his MPP score was raised to a 95.64. Id. ¶ 45.
65) Plaintiff Turner’s MPP score for use in 1999 was then a 95.64 out of 100 possible points. Id. ¶ 46.
66) Plaintiff Turner believed that his 1999 post grievance score was fair. Exh. 10 ¶ 14.
67) Plaintiff Turner did not contact an EEO Counselor within forty-five days of his receipt of his 1999 MPP score or at any other time. Compare Exh. 1 ¶¶ 42 and 45 with Exh. 11, block 4.
68) On or about September 7, 1999, Plaintiff Turner bid for promotion to the GS-14 level on vacancy number 99-123. Exh. 1 ¶ 47; and Exh. 11, block 19.
69) Plaintiff Turner was not selected for promotion to vacancy 99-123. Exh. 1 ¶ 48.
70) A white special agent with a lower MPP score was selected for this position. Exh. 1 ¶ 49, and attachment D to that document.
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71) The announcement of the name of the individual promoted to vacancy 99-123 was issued on September 26, 1999. Exh. 11, block 19.
72) On October 26, 1999, within forty-five days of his nonpromotion for vacancy number 99-123, Plaintiff Turner contacted an EEO Counselor alleging race discrimination in regard to his non-selection for vacancy number 99-123. Exh. 11.
73) In approximately early November 1999, Plaintiff Turner received his MPP score for use in 2000. Exh. 1 ¶ 53.
74) Plaintiff Turner’s MPP score for use in 2000 was a 98.10, out of 100 possible points. Exh. 1 ¶ 54; Amended Compl. ¶ 32.
75) Plaintiff Turner did not grieve his MPP score for use in 2000. Exh. 1 ¶ 55.
76) Plaintiff Turner did not complain to an EEO Counselor concerning his MPP score for use in 2000. Exh. 11 and Exh. 12.
77) In December of 1999, Plaintiff Turner bid for promotion on vacancy number 99-177, using his 1999 MPP score of 95.64. Exh. 1 ¶ 50, and attachment E to that document.
78) Plaintiff Turner was not selected for promotion to vacancy number 99-177. Exh. 1 ¶ 51; Exh. 12.
79) The individual selected for promotion to vacancy number 99-177 is white. Exh. 1 ¶ 52.
80) The name of the individual selected for promotion to
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vacancy 99-177 was announced on or about December 23, 1999. Exh. 12, block 22.
81) On January 3, 2000, within forty-five days of his nonpromotion to vacancy number 99-177, Plaintiff Turner contacted an EEO Counselor alleging discrimination in regard to his nonselection for vacancy number 99-177. Exh. 12.
82) In the administrative “Second Amended Class Action Complaint,” Plaintiff Turner stated his complaint as nonselection for promotion to the GS-14 level. Exh. 8. ¶¶ 35-40.
83) In the administrative “Second Amended Class Action Complaint,” Plaintiff Turner pointed to his high MPP score, a 98.10 out of 100 possible points, his early history of promotion, that he had enjoyed career enhancing assignments throughout his career, that he had been assigned to the Vice President’s Detail, that he had served as a Lead training Instructor, that he had been the Residence Agent for the Vice President’s Residence, that he had twice served as an acting supervisor while assigned to the WFO, and that he had received awards and/or bonuses in 1996, 1997, 1998 and 1998. Exh. 8 ¶¶ 36-39.
84) Plaintiff Turner has never been the subject of a disciplinary action or Office of Inspection investigation. Exh. 13, at 41.
85) In September 2000, Plaintiff Turner bid for promotion to an ATSAIC position in the WFO, vacancy number 00-137, using
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his 2000 MPP score of 98.10, and was selected for that position. Exh. 1 ¶ 56.
D. Plaintiff C. Yvette Summerour 86) Plaintiff C. Yvette Summerour is currently employed by the Secret Service as a GS-14 supervisory special agent, ATSAIC Atlanta Field Office having been so assigned since December 2003. Exh. 1 ¶ 57. 87) Plaintiff Summerour received her MPP score for use in 1999 in approximately October 1998. Id. ¶ 58. 88) Plaintiff Summerour’s MPP score for use in 1999 was a 86.89. Exh. 1 ¶ 59. 89) Plaintiff Summerour did not file an EEO complaint concerning her MPP score which was to be used in 1999. Exh. 14, p. 45. 90) Plaintiff Summerour received her MPP score for use in 2000 in approximately early November 1999. Exh. 1 ¶ 60. 91) Plaintiff Summerour’s MPP score for use in 2000 was 93.31. Id. ¶ 61; Exh. 8 ¶ 49. 92) Plaintiff Summerour never contacted an EEO Counselor in regard to this score. Exh. 14, p. 129. 93) Plaintiff Summerour first contacted an EEO Counselor on January 31, 2000. Exh. 15, block 4. 94) The EEO Counseling Report indicates that Plaintiff Summerour complained that she had been discriminated against
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when: (1) she had received a score of 49 points out of a possible 50 points in her First Level Evaluation given to her September 7, 1999; and (2) she was not selected for reassignment from a GS-13 position in the Presidential Protective Division (PPD), Office of Protective Operations, to a GS-13 position in the Office of the Assistant Director, Investigations. The effective date of Plaintiff Summerour’s reassignment to the Office of the Assistant Director, Investigations was January 30, 2000. Exh. 15, Tab A.
95) Plaintiff Summerour’s January 31, 2000, contact with an EEO Counselor concerning her September 7, 1999, First Level Evaluation was not within forty-five days of the receipt of that evaluation. Compare Exh. 15, block 4 with Exh. 15 tab G, p. 7; see also Exh. 14, p. 45(where Plaintiff Summerour admits she never contacted an EEO Counselor concerning this matter).
96) Plaintiff Summerour’s January 31, 2000, contact with an EEO Counselor was within forty-five days of her non selection for GS-13 reassignment to the Office of Investigations. Exh. 15.
97) Plaintiff Summerour was advised in writing of her right to file a formal administrative complaint of discrimination within fifteen days of the date of completion of EEO Counseling March 2, 2000. Exh. 15, Tab E.
98) Plaintiff Summerour did not file a formal complaint of discrimination in regard to her non-selection for reassignment at the GS-13 level from the PPD to the Office of Investigation.
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Exh. 8 ¶¶ 41-50. 99) On or about March 23, 2000, Plaintiff Summerour joined
Plaintiffs Turner and Moore in their administrative “Second Amended Class Action Complaint.” Exh. 8.
100) Plaintiff Summerour’s claim concerning her non-reassignment at the GS-13 level from the PPD to the Office of Investigation does not appear in administrative “Second Amended Class Action Complaint.” Id. ¶¶ 41-50.
101) Plaintiff Summerour never contacted an EEO Counselor alleging discrimination in regard to non-selection for promotion to the GS-14 level. Exh. 15; Exh. 16 ¶ 9.
102) Plaintiff Summerour never contacted an EEO Counselor concerning her 1992 suspension. Exh. 14, p. 110.
103) In 2002, Plaintiff Summerour grieved her MPP score. Exh. 1 ¶ 62, and attachment F to that document.
104) Plaintiff Summerour’s 2002 grievance in regard to her MPP score was granted and her MPP score was raised. Id. ¶ 63.
105) In 2001, Plaintiff Summerour bid for promotion to a GS14 ATSAIC position in the Intelligence Division, and was selected for this position. Id. ¶ 64.
E) Plaintiff Andrew Harris 106) Plaintiff Harris first bid for promotion to the GS-14 level in 1999. Exh. 1 ¶ 65. 107) On or about October 5, 1999, Plaintiff Harris contacted
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an EEO Counselor alleging discrimination in regard to nonselection for promotion to the GS-14 level. Exh. 16 ¶ 6.
108) Plaintiff Harris withdrew this complaint. Exh. 16, ¶ 6.
109) Plaintiff Harris was promoted to the GS-14 in 1999. Amended Compl. ¶ 51; Exh. 1 ¶ 66.
110) On or about March 26, 2004, Plaintiff Harris contacted an EEO Counselor alleging discrimination in regard to nonpromotion to the GS-15 level. Exh. 16 ¶ 6, and attachment C to that declaration.
111) Plaintiff Harris’s EEO Counselor contact was timely in regard to a number of GS-15 non promotions occurring forty-five days prior to March 26, 2004. Exh. 16, attachment C to that declaration.
112) Plaintiff Harris filed a formal complaint of discrimination in regard to his non-selection for promotion to the GS-15 level on or about September 30, 2004. Exh. 16 ¶ 8, and attachment E to that declaration.
113) During the formal administrative EEO process Plaintiff Harris was asked whether he was seeking to file an administrative class claim. Exh. 16 ¶ 8 and attachment E to that declaration.
114) Plaintiff Harris advised the defendant’s EEO Office that he was not seeking to bring a class action complaint. Exh. 16 ¶ 8 and attachment E to that declaration.
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115) Over 180 days have passed since the filing of Plaintiff Harris’s formal individual administrative complaint and that complaint is now exhausted. Amended Compl. ¶ 7.
116) Plaintiff Harris was promoted to the GS-15 level effective January 23, 2005. Amended Compl. ¶ 54; Exh. 1 ¶ 67.
F) Plaintiff Cheryl Tyler 117) Plaintiff Cheryl Tyler is a former employee of the Secret Service having resigned in 1999, as a GS-13 special agent. Exh. 1 ¶ 68. 118) Plaintiff Tyler never exhausted an administrative EEO complaint concerning her MPP score or her non-selection for promotion to the GS-14 level. Exh. 2, request/response 20 and 21. 119) Plaintiff Tyler applied for promotion to the GS-14 level in 1999. Exh. 1 ¶ 69. 120) Plaintiff Tyler’s MPP score for use in 1999 was too low to place her name on the Certificate for any of the GS-14 positions for which she applied in 1999. Exh. 1 ¶ 70. 121) As Plaintiff Tyler’s MPP score was too low to place her name on the Certificate for any of the GS-14 positions for which she applied in 1999, she could not have been considered by the promotion Advisory Board for possible promotion. Exh. 1 ¶ 71. G) Plaintiff Luther Ivery 122) Plaintiff Luther Ivery is a former employee of the
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Secret Service having retired in 2004. Amended Compl. ¶ 13(f). 123) Plaintiff Ivery has never contacted an EEO Counselor in
regard to any matter. October 24, 2004 Memorandum Opinion and Order (2004 Mem.) at 10.
124) At the time of his retirement Plaintiff Ivery was a GS14 supervisory special agent. Amended Compl. ¶ 13(f).
125) In 1999 through the date of his promotion in 2002, Plaintiff Ivery chose to compete for promotion and bid for promotion on a number of positions at the GS-14 level. Id. ¶ 43.
126) In regard to some positions on which Plaintiff Ivery bid his MPP score was too low to place his name on the Certificate. Id. ¶ 44.
127) In regard to positions for which Plaintiff Ivery bid, but where his name was not placed on the Certificate, he could not have been considered for promotion by the promotion Advisory Board. Exh. 1 ¶ 26.
H) Plaintiff Leroy Hendrix 128) Plaintiff Leroy Hendrix is a GS-14, Supervisory Special Agent employed by the Secret Service. Amended Compl. ¶ 50. 129) Plaintiff Hendrix contacted an EEO Counselor on or about July 20, 2005, but did not pursue this matter. Exh. 16 ¶ 5 and attachment B to that declaration. 130) Plaintiff Hendrix has never exhausted an administrative EEO complaint. Exh. 16 ¶ 5 and attachment B to that declaration;
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2004 Mem. at 8. I. Plaintiff Lisa Robertson 131) Plaintiff Robertson was hired by the Secret Service as
a Special Agent in 2002. Amend Compl. ¶ 13(j). 132) Plaintiff Robertson is currently a GS-13 Special
Agent. Id. 133) Plaintiff Robertson has never bid for promotion to the
GS-14 level. Exh. 1 ¶ 72. 134) Plaintiff Robertson contacted an EEO Counselor on or
about January 21, 2003, alleging discrimination in regard to the same matter which is presented in the Amended Complaint at paragraph 63. Exh. 16 ¶ 4; Compare Exh. 16 attachment A with Amended Compl. ¶ 63.
135) Plaintiff Robertson withdrew her EEO complaint concerning the matter presented in the Amended Complaint at paragraph 63 on or about February 27, 2003. Exh. 16 ¶ 4 and attachment A to that document.
136) Plaintiff Robertson has never exhausted an administrative EEO complaint. Id.
J) Plaintiff Camilla Simms 137) Plaintiff Camilla Simms was hired by the Secret Service as a Special Agent in 2002. Amended Compl. ¶ 13(I). 138) When Plaintiff Simms was hired her name was Camilla Shepard. Exh. 1 ¶ 73.
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139) Plaintiff Simms is currently a GS-13 Special Agent assigned to the Secret Service’s Chicago Field Office. Amended Compl. ¶ 13(I).
140) Plaintiff Simms has never bid for promotion to the GS14 level. Exh. 1 ¶ 74.
141) On or about March 8, 2003, Plaintiff Simms filed an administrative grievance complaining that her entry level grade was too low and should have been a GS-9. Exh. 1 ¶ 76 and attachment G to that document; Amended Compl. ¶ 93.
142) Plaintiff Simms’s grievance was granted and her grade was raised to a GS-9. Exh. 1 ¶ 77.
143) After receiving her GS-9 grade revision, Plaintiff Simms complained that she did not receive her GS-11 in a timely manner. Exh. 1 ¶ 78; Amended Compl. ¶ 93.
144) Plaintiff Simms’s complaint concerning her non receipt of her GS-11 in a timely manner was considered and the matter was corrected with Plaintiff Simms receiving her GS-9 retroactive to September 22, 2002, and her GS-11 effective September 21, 2003. Exh. 1 ¶ 79; Amended Compl. ¶ 94.
145) In 2005, while pregnant, Plaintiff Simms was asked if she would be willing to perform undercover work. Amended Compl. ¶ 102.
146) Plaintiff Simms did not perform the requested undercover. Exh. 17.
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147) Plaintiff Simms has never contacted an EEO Counselor in regard to any matter. Exh. 16 ¶ 3.
G) Plaintiff Kenneth Rooks 149) Plaintiff Rooks has never contacted an EEO Counselor in regard to any allegation of discrimination. Id. H) Rate of Promotion Information 150) The unrebutted statistical evidence in this case indicates that during the years 1998 through 2002 African American Special Agents of the Secret Service were being promoted from the GS-13 to the GS-14 level within a slightly shorter (but not statistically significant) period of time than non-African American Special Agents. Exh. 18 (Sept. 30, 2005, report of Dr. Paul White) at p. 8, table 2. 151) Statistical evidence in this case indicates that in 1998 there was no statistical disparity between the rate of promotion to the GS-14 level of African American Special Agents and the rate of promotion to the GS-14 level of non-African American Special Agents who bid for promotion to the GS-14 level. Exh. 19 (March 23, 2006, report of Dr. Paul White) at 5. 152) Statistical evidence indicates that in 1999 there was no statistical disparity between the rate of promotion to the GS14 level of African American Special Agents and the rate of promotion to the GS-14 level of non-African American Special Agents who bid for promotion to the GS-14 level. Id.
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153) Statistical evidence indicates that in 2000 there was no statistical disparity between the rate of promotion to the GS14 level of African American Special Agents and the rate of promotion to the GS-14 level of non-African American Special Agents who bid for promotion to the GS-14 level. Id.
154) Statistical evidence indicates that in 2001 there was no statistical disparity between the rate of promotion to the GS14 level of African American Special Agents and the rate of promotion to the GS-14 level of non-African American Special Agents who bid for promotion to the GS-14 level. Id.
155) Statistical evidence indicates that in 2002 there was no statistical disparity between the rate of promotion to the GS14 level of African American Special Agents and the rate of promotion to the GS-14 level of non-African American Special Agents who bid for promotion to the GS-14 level. Id.
156) Statistical evidence indicates that in years 1998 through 2002 combined there was no statistical disparity between the rate of promotion to the GS-14 level of African American Special Agents and the rate of promotion to the GS-14 level of non-African American Special Agents who bid for promotion to the GS-14 level. Id.
157) From 1998 through 2002 fifty-two African American Special Agents bid for promotion. Exh. 1 ¶ 80.
158) Of the fifty-two African American Special Agents who
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bid for promotion from 1998 through 2002, forty-seven have since been promoted to the GS-14 level. Id. ¶ 81.
159) Of the remaining five African American Special Agents who bid for promotion from 1998 through 2002, but were not promoted, three have resigned, leaving only two individuals at the GS-13 level. Id. ¶ 82.
160) Of those forty-seven African American Special Agents who bid from 1998 through 2002 and were promoted to the GS-14 level, fourteen are now at the GS-15 level. Id. ¶ 83.
161) Of those forty-seven African American Special Agents who bid from 1998 through 2002 and were promoted to the GS-14 level, six are now SES candidates, and one has been promoted into the SES. Id.
162) Of those forty-seven African American Special Agents who bid from 1998 through 2002 and were promoted to the GS-14 level, five were promoted to the GS-14 level on the first occasion when they chose to bid. Id. ¶ 84.
164) Of those forty-seven African American Special Agents who bid from 1998 through 2002 and were promoted to the GS-14 level, thirteen, including Plaintiff Andrew Harris, were promoted to the GS-14 level during the first year in which they chose to
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bid. Id. ¶ 85.

Respectfully submitted,
KENNETH L. WAINSTEIN, D.C. BAR #451058 United States Attorney
RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney
BENTON G. PETERSON, W.I. BAR # 1029849 MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorney U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226

Of Counsel:
Donna Cahill, Esq. U.S. Secret Service Office of Chief Counsel

24

 
 Case 1:00-cv-00953-RWR -DAR Document 349 Filed 06/28/06 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

REGINALD G. MOORE, et al.

)

)

Plaintiffs,

)

)

v.

)

)

MICHAEL CHERTOFF

)

SECRETARY, U.S. DEPARTMENT OF )

HOMELAND SECURITY,

)

)

Defendant.

)

-------------)

Civ. No. 00-953 (RWR/DAR)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL DISMISSAL AND/OR FOR PARTIAL SUMMARY JUDGMENT
OF AMENDED COMPLAINT

Defendant moves to dismiss the overwhelming majority of Plaintiffs' operative

complaint by rehashing arguments that have been rejected by this Court on multiple

occasions in this case. Specifically, Defendant seeks to have the Court revisit its October

2004 and March 2006 Orders which found that various named Plaintiffs vicariously

exhausted non-promotion and "building block" claims. Moreover, in making his

arguments, Defendant not only ignores the law of the case, but also ignores the well-

established law of this Circuit and District and ignores key facts in the record. The Court

should, once again, reject Defendant's specious arguments and allow this case to move

forward towards completing discovery (which is just starting in earnest) and trial.

Defendant's motion for summary judgment on Plaintiffs' disparate treatment non-

promotion claims easily fails because Plaintiffs have presented statistical and testimonial

evidence of a pattern and practice of racial discrimination, which gives rise to a genuine

issue of material fact for a jury to decide. In the alternative, Defendant's motion for

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summary judgment should be denied because class merits discovery has begun only recently and a summary judgment motion at this stage is extraordinarily premature.
PROCEDURAL HISTORY On May 3, 2000, Plaintiffs filed this class action against the United States Secret Service. The complaint alleged that from at least January 1, 1974, Defendant engaged in discriminatory personnel policies relating to, among other things, the selection of Special Agents for competitive positions of GS-14 and above, access to the building blocks of promotion, the maintenance of a racially hostile work environment, and retaliation against Special Agents seeking to pursue their rights under Title VII. On July 5, 2000, Defendant filed his first Motion to Dismiss ("July, 2000 Motion to Dismiss"). Defendant argued in part, that (1) Plaintiffs' claims had not been administratively exhausted as the class administrative complaint had not pended before the EEOC for 180 days, and (2) that many of Plaintiffs' claims were untimely as Plaintiffs had not contacted an EEO counselor within forty-five days of each discriminatory act. On October 24, 2004, this Court found that one Plaintiff, Reginald Moore, had exhausted his claims with the EEOC and that the exhaustion of his claims also vicariously exhausted the non-promotion claims of Plaintiffs Turner, Summerour, Tyler, and Ivery. The Court further found that the Plaintiffs' claims that were based on their Second Amended Class Action Complaint to the EEOC ("Plaintiffs' Administrative Complaint") must be dismissed without prejudice because they had not completed the 180-day administrative exhaustion period before the action was filed in federal court. In November 2004, Plaintiffs refiled their Administrative Complaint with the EEOC and allowed it to pend for 180 days. On May 31, 2005, Plaintiffs filed their Motion to Amend and Supplement Complaint to reintroduce the dismissed claims that
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were now properly exhausted. In response, Defendant opposed Plaintiffs' motion to amend, arguing that the proposed amendment should be denied as futile based on many of the same arguments that he raises in his motion to dismiss.
On March 30,2006, this Court ruled on Plaintiffs' Motion to Amend and Supplement Complaint, rejecting the Defendant's futility argument and finding that Plaintiffs' class claims concerning discriminatory non-promotion and discrimination with regard to the "building blocks" of promotion were now properly exhausted.
On May 1, 2006, Plaintiffs filed their First Amended and Supplemental Class Complaint, including only the non-promotion and "building block" claims that this Court specifically allowed in its March 30, 2006 Order. Plaintiffs did not plead, for example, hostile work environment claims that were included in Plaintiffs' May 2000 Complaint. And Plaintiffs only plead post-1998 non-promotion claims, removing several claimsand several Plaintiffs-included in Plaintiffs' May 2000 Complaint.
ARGUMENT I. Defendant's Arguments Willfully Ignore this Court's Rulings on Vicarious
Exhaustion. Despite two Orders by this Court expressly rejecting his argument, Defendant is back in front of the Court urging that all but three of Plaintiffs' non-promotion claims are not exhausted and are therefore subject to dismissal. With regard to Plaintiffs' "building block" claims, Defendant goes further, arguing that no "building block" claims are in the case. Even if those prior Orders were not binding law of the case (and they are), Defendant's arguments are flat wrong on both the law and facts. In this Court's October 24,2004 Order on Defendant's July, 2000 Motion to Dismiss, Judge Roberts ruled that Plaintiff Moore's individual EEO complaint
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vicariously exhausted the non-promotion claims of Plaintiffs Turner, Summerour, Ivery, and Tyler. Oct. 24, 2004 Mem. Op. & Order ("Oct. 24, 2004 Op.") at 26, 29. Despite the fact that this Court expressly ruled that each of these Plaintiffs' non-promotion claims survives a motion to dismiss, Defendant now moves to dismiss more than ninety-nine percent of these claims. Specifically, Defendant moves to dismiss all of Summerour's 68 non-promotion claims, Ivery's 98 non-promotion claims, and Tyler's twelve nonpromotion claims, 186 of Moore's 187 non-promotion claims, and 52 of Turner's 54 nonpromotion claims.
Defendant's motion also wholly disregards the Court's March 30, 2006 Order on Plaintiffs' Motion to Amend and Supplement Complaint. Defendant argued that Plaintiffs should not be allowed to amend their Complaint because their claims would be subject to dismissal. Def.'s Opp'n to Pis.' Mot. to Amend [Docket No. 158] at 4 (urging that Plaintiffs' motion to amend be denied on futility grounds). The Court rejected Defendant's argument, ruling Plaintiffs were entitled to amend to add discriminatory nonpromotion claims from 1999 to the present and claims of discrimination in the "building blocks" of promotion. Mar. 30,2006 Mem. Op. & Order ("Mar. 30,2006 Op.") at 2-3, 12-13, 15-16. The Court rejected Defendant's futility argument, ruling that Plaintiff Turner had vicariously exhausted class non-promotion and "building block" claims. !d.
The Court should not countenance Defendant's attempt to continually relitigate issues that it has already decided. Because "[i]nconsistency is the antithesis of the rule of law," "the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn v. Barry, 87 F.3d 1389,1393 (D.C. Cir. 1996) (en banc); see also Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999) (internal
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quotations and citations omitted) (emphasis in original). The "law of the case" doctrine instructs that Defendant's attempt to resuscitate arguments against vicarious exhaustion of non-promotion claims and "building blocks" must fail: this Court has ruled, on a motion to dismiss standard, that claims of discrimination in non-promotion and "building blocks" of promotion are vicariously exhausted.
A. Each of Defendant's Arguments to Dismiss Non-Promotion Claims is Prevented by this Court's Prior Rulings. 1. "MPP/Failure to Refer" Claims
This Court has twice previously ruled that Plaintiffs have vicariously exhausted non-promotion claims. Oct. 24, 2004 Op. at 26, 29; Mar. 30,2006 Op. at 2-3; 12. In a transparent ploy to inappropriately avoid these rulings, Defendant attempts to create a false distinction between so-called "MPP/failure to refer" claims and "non-promotion" claims. In fact so-called "MPP/failure to refer" claims are actually non-promotion claims, twice ruled by this Court to be vicariously exhausted.
Faced with rulings that Plaintiffs Moore and Turner exhausted complaints about the promotion process, Defendant argues now that complaints about non-promotion should be put in two separate buckets: receipt of the "Merit Promotion Plan score" ("MPP score") and non-selection from the "Merit Promotion Certificate" (or "best qualified list"). This is both contrary to this Court's rulings on a motion to dismiss standard and unsupportable as a matter of law. Defendant's argument is completely illogical. The "Merit Promotion Plan score" and "Merit Promotion Certificate" are merely two elements of a unified promotion system-the "Merit Promotion Plan."
While Defendant's arguments regarding Plaintiff Moore and Turner are wrong, there is a more fundamental problem with Defendant's position: Plaintiff Summerour
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complained about promotions she was denied solely on the basis of her MPP score in the now-exhausted Second Amended Class Action Complaint to the EEOC.
a. Plaintiff Summerour Exhausted Non-Promotion Claims Based on MPP Scores
Defendant ignores completely the fact that Plaintiff Summerour specifically exhausted the MPP scoring portion of the promotion process. Plaintiff Summerour contacted an EEO counselor and complained about her MPP score within forty-five days of being denied two promotions based solely on her MPP score. Compare Ex. A (Plaintiffs' Administrative Complaint) at ~ 50 (indicating Plaintiff Summerour found out she was denied position numbers 99164 and 99177 on or about December 23, 1999; it is undisputed that Plaintiff Summerour contacted an EEO counselor on January 31, 2000) with Exhibit B (Excerpt of Def.'s Resp. to PIs.' Interrog. No.5) at 28-29 (indicating that Plaintiff Summerour was not selected for these positions based solely on her MPP score). As there is no question that the Second Amended Class Action Complaint is now exhausted, see Mar. 30,2006 Op. at 12, Plaintiff Summerour's non-promotion claim (which included a complaint specifically about MPP scores) is both timely and exhausted. As Defendant swears that Plaintiff Summerour was not chosen for two timely exhausted positions based solely on her MPP score, his argument that "MPP/failure to refer claims" are unexhausted fails on this ground alone.
b. Defendant's Argument is Directly Contrary to the Law of the Case
Defendant's argument is also contrary to Judge Robert's October 24,2004 Order on Defendant's July, 2000 Motion to Dismiss. This Court has expressly ruled that Plaintiff Tyler's non-promotion claims were vicariously exhausted by Plaintiff Moore. See Oct. 24,2004 Op. at 26. Plaintiff Moore's non-promotion claims in this case arise
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from the Secret Service failing to select him from the Merit Promotion Certificate. Def.' s Mot. at 24. In contrast, Plaintiff Tyler was rejected for every GS-14 position for which she ever applied solely on the basis of her MPP score. Id. at 24. Thus, this Court rejected the false dichotomy between Merit Promotion Plan score and Merit Promotion Certificate claims, finding so-called "MPP/failure to refer claims" vicariously exhausted. Indeed, Defendant argued in his July, 2000 Motion to Dismiss that Plaintiffs who did not file an administrative complaint's non-promotion claims were not sufficiently similar to Plaintiff Moore's claim to be vicariously exhausted. Reply in Supp. ofDef.'s July, 2000 Mot. to Dismiss [Docket No. 47] at 18-19. Obviously, this argument was rejected by this Court in its Order finding vicarious exhaustion - including for Plaintiff Tyler.
c. Defendant's Position Cannot Be Rationalized with the Legal Standard for Vicarious Exhaustion
Defendant stretches even further by arguing that Plaintiffs Moore and Turner's non-promotions based on race are not similar to the non-promotions on the bases of race suffered by other Agents. Specifically, Defendant argues that "MPP and/or failure to refer for promotion claims are plainly not similar to those filed by Plaintiffs Turner and Moore for the purposes of vicarious exhaustion." Def.'s Mot. at 21-22. In making his argument, Defendant glosses over the clear law that to be vicariously exhausted by Plaintiffs Moore or Turner's non-promotion claims, a claim must only be "like" or "reasonably related" to a non-promotion claim. See, e.g., Mack v. Strauss, 134 F.Supp. 2d 103, 109 (D.D.C. 2001). Defendant must gloss over the legal standard because challenges to the MPP scoring portion of the promotions system are not only "like" or "reasonably related" to non-promotion claims, they are non-promotion claims because a low MPP score, skewed by race, results in non-promotion.
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i.

So-Called "MPP/Failure to Refer" Claims are

"Like or Reasonably Related" to Plaintiff Moore

and Turner's Non-Promotion Claims

The D.C. Circuit's holding in Cook v. Boorstin, 763 F.2d 1462, 1464 (D.C. Cir.

1985) precludes Defendant's argument because it holds that for a non-promotion claim to

be vicariously exhausted, the specific circumstances of non-promotion need not be identical. l The D.C. Circuit found vicarious exhaustion for non-promotion claims

ranging from allegations based on "unvalidated tests which disqualify a disproportionate

number of minority and female employees" to "unchecked, unvalidated subjective

recommendations of supervisory personnel," reasoning:

Although the specific circumstances giving rise to the grievances of each of the plaintiffs and would-be intervenors in this case are distinguishable, each of the employees plans to prove his or her allegations by demonstrating the same thing: a pervasive 'pattern and practice' of racial discrimination in promotion and advancement of administrative and professional employees throughout the Library.

Cook, 763 F.2d at 1464, 1466 (internal quotations omitted).

Just like the plaintiffs in Cook, Plaintiffs in this case allege a "pervasive 'pattern

and practice' of racial discrimination in promotion and advancement" of Special Agents

throughout the Secret Service. Jd. at 1466. The Cook plaintiffs' exhausted administrative

complaint of discriminatory non-promotion was ruled by this Circuit to include both

disqualification for promotion based on a test and non-recommendation for promotion

based on subjective recommendations of supervisors. Id. at 1464. D.C. Circuit precedent

therefore requires that the Plaintiffs' exhausted administrative complaints of

discriminatory non-promotion include both discrimination in MPP scores that the Secret

1 Defendant relies solely on Mayfield v. Meese, 669 F. Supp. 1123 (D.D.C. 1987) to support his argument. However, Judge Roberts considered and rejected the application of Mayfield in his October 24, 2004 Order, instead relying on Cook and finding Plaintiff Moore vicariously exhausted non-promotion claims. Oct. 24, 2004 Mem. Op. & Order at 24.
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Service claims disqualifies Special Agents for promotion and non-selection from Merit Promotion Certificates based on the subjective recommendations of Assistant Directors.
Moreover, as explained in detail below, complaints about non-promotion are liberally construed and vicariously exhaust many "like or reasonably related" claims. For example, a plaintiffs administrative complaint about discriminatory non-promotion has been held to vicariously exhaust non-promotion claims for subsequent positions to which the plaintiff had not applied at the time of the administrative complaint. Gamble v. Birmingham S. R.R. Co., 514 F.2d 678, 687-89 (5th Cir. 1975). Likewise, claims regarding discriminatory "building blocks" of non-promotion are vicariously exhausted by non-promotion claims. Contreras v. Ridge, 305 F.Supp.2d 126, 133-134 (D.D.C. 2004). Given the broad scope of claims held "like or reasonably related to" a nonpromotion claim, Defendant's attempt to disaggregate the promotions process for the purposes of exhaustion is entirely unsupportable.
ii. Defendant Has Been on Notice of So-Called "MPP/Failure to Refer" Claims
Defendant also complains disingenuously that non-promotions based on low MPP scores should be dismissed as non-exhausted because the Secret Service was not on notice of claims about MPP scores.2 Def.'s Mot. at 25-26. But Plaintiffs' Administrative Complaint expressly lays out allegations regarding problems with MPP scores:
The Secret Service uses [a] performance evaluation procedure that is excessively subjective. It lacks objective criteria, and supervisors are not
2 In light of Defendant's knowledge, by at least March, 2000, that Plaintiffs were challenging MPP scores, his argument that these claims might have been administratively settled, Def.'s Mot. at 26, is equally disingenuous. Defendant's suggestion that because Plaintiffs Moore, Turner and Summerour had individually grieved their MPP scores in past years and had them raised, the possibility of administrative settlement was real, Def.'s Mot. at 26, misunderstands Plaintiffs' allegations. Plaintiffs have always alleged a pattern and practice of discrimination on the basis of race with respect to MPP scores: a change to an individual score is not a resolution to that claim.
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trained adequately in proper evaluation procedures. As a result, African American Special Agents are adversely affected compared with similarly situated white Special Agents. Even when African-American Special Agents receive high scores, these scores are not enough to secure their promotion because of the Secret Service's discriminatory 'good old boys' network.
The pattern of discrimination in the denial of promotions to the GS-14 level is furthered by the use of discriminatory evaluation procedures. Of the 100 total potential points that a Special Agent may receive in the job evaluation, 30 are assigned without the use of any objective criteria. These 30 points are assigned based solely on the subjective decision making of the Assistant Director (' AD '). This evaluation system is arbitrary [and] has been used to discriminate against African-American Special Agents on the basis of race. Furthermore, because the Secret Service relies, at least in part, upon performance evaluations in determining which agents will receive, among other things, awards, bonuses, promotions, and assignments, the lower evaluations received by African-American Special Agents adversely affects these agents in their ability to receive promotions, awards, bonus[es], quality step increases, assignment to high-profile and career-enhancing cases, as well as adversely affects their morale.
Ex. A at ~~ 14, 15; see also id. at ~12.
1. GS-15 and SES Claims
Defendant next claims that because Plaintiffs Moore and Turner complained of
discrimination in promotion to the GS-14 level in their administrative complaint, claims
of discriminatory non-promotion to GS-15 and SES are not exhausted. Def.' s Mot. at 20-
21. Defendant is legally wrong. Defendant provides no legal cite to support his
argument because he cannot-the case law holds that when a plaintiff exhausts a non-
promotion claim, he exhausts claims for non-promotions to subsequent positions.
One of the foundational cases defining the "like or reasonably related" test for the
relationship of the administrative complaint to the claims in federal court considered the
identical issue presented here. In Gamble, 514 F.2d at 687-89, the Fifth Circuit found
that a plaintiff who complained of non-promotion to conductor also exhausted claims of
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non-promotion to supervisor because supervisors are chosen from the ranks of conductor. The Court concluded that: "[t]he supervisor complaint is certainly 'like or related to' the conductor complaint and ... could reasonably be expected to grow from the original complaint." 514 F.2d at 688. Gamble stands for - and is to be widely cited for - the proposition that a plaintiff who exhausts a non-promotion claim also exhausts claims of non-promotion to higher positions. See, e.g., Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006); Miller v. Bed, Bath & Beyond, 185 F. Supp. 2d 1253, 1264 (N.D. Ala. 2002).
Therefore, Plaintiffs Moore and Turner's exhaustion of non-promotion claims to GS-14-twice ratified by this Court-vicariously exhausts claims of promotion to GS-15 and SES. What's more, Plaintiffs have never limited their claims to promotion to the GS14 level. Because of Defendant's discrimination, in May 2000 no Plaintiff was a GS-14 attempting to reach a GS-15: the Plaintiffs could not get to a GS-14 to experience discrimination at the next level. Just as the Gamble Court reasoned "[i]fblacks cannot be promoted to conductor, then a fortiori they cannot be promoted to supervisor," Gamble, 514 F.2d at 689, if African-American Special Agents cannot be promoted to GS-14, then a fortiori they cannot be promoted to GS-15 or SES. Plaintiffs' claims have always been about discrimination in promotion to all competitive positions: those at GS-14, GS-15, and SES. In Plaintiffs' Administrative Complaint, Plaintiffs complained of "discriminatory selections to competitive positions, including but not limited to GS-14 positions." Ex. A at ~ 2. In Plaintiffs' May 2000 federal Complaint, Plaintiffs alleged "discriminatory selections to competitive positions, including but not limited to, supervisory positions." May 3, 2000 Compl. at ~ 1. Today, Plaintiffs continue to plead GS-15 and SES claims: "the Secret Service has discriminated against African-American
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Special Agents in its selection for competitive positions to grades GS-14 and above." Am. CompI. at ~ 1 (emphasis added); see also id. at ~~ 15-16, 51, 53-54.
2. Defendant's Limitation of Plaintiff Moore and Turner's NonPromotion Claims
Next, Defendant argues that Plaintiff Moore has only exhausted one of the 187 positions he applied for from 1999 until when he was promoted to GS-14, and that Plaintiff Turner has only exhausted two of the 54 positions he applied for from 1999 until when he was promoted to GS-14. This Court has twice rejected Defendant's argument.
In his October 24,2004 Order on Defendant's Motion to Dismiss, Judge Roberts held that Plaintiff Moore's administrative complaint vicariously exhausted all the nonpromotion claims of Plaintiffs Turner, Summerour, Ivery, and Tyler. See Oct. 24,2004 Op.25-26. Yet Defendant would allow Plaintiff Moore to pursue a claim as to only a single non-selection. If Plaintiff Moore vicariously exhausted the claims of other Plaintiffs, surely he vicariously exhausted his own claims. Moreover, each of Plaintiff Moore's 187 non-promotion claims are independently exhausted via the administrative complaint of Plaintiff Turner. Judge Robert's March 30, 2006 Order held that Plaintiff Turner vicariously exhausted all post-1998 non-promotion claims. Thus, even if Plaintiff Moore's claims had been limited by his own administrative filing-which they were not -they are not so limited after this Court's March 30, 2006 Order.
The same logic applies to Plaintiff Turner's non-promotion claims. In his October 24,2004 ruling, Judge Roberts ruled that Plaintiff Moore's administrative complaint vicariously exhausted Plaintiff Turner's non-promotion claims. Id. At that point, Plaintiff Turner's administrative complaint could not have limited his nonpromotion claims before the Court, as it was ruled not to be exhausted. Defendant's
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suggestion that once Plaintiff Turner's re-filed administrative complaint was exhausted, his non-promotion claims became limited to two is simply unsupportable.
B. Judge Robert's Ruling that "Building Block" Claims Are Exhausted is Correct.
Defendant also flagrantly ignores this Court's considered ruling that "building block" claims are vicariously exhausted by Plaintiff Turner's exhausted class nonpromotion claim under the law of this District. Having already moved to reconsider Judge Robert's Order, Defendant presents the identical arguments again in this motion to dismiss. 3 Defendant's arguments are still wrong.
In his March 30, 2006 Order, Judge Roberts ruled that Plaintiff Turner vicariously exhausted all claims relating to discrimination in the "building blocks" of promotion: performance evaluations; transfers, assignments, and other career enhancing opportunities; assignment to undercover work; hiring practices; testing; discipline policies and practices; awards and bonuses. Mar. 30,2006 Op.at 2, 12-13, 15-16. In so doing, Judge Roberts rejected Defendant's argument that these claims were "futile"subject to a motion to dismiss-because they were not "like or reasonably related" to exhausted non-promotion claims. See Def.'s Opp'n to PIs.' Mot. to Amend [Docket No. 158] at 4 (arguing futility); Def. 's Sur-Reply in Opp'n to Pis.' Mot. to Amend [Docket No. 181] at 12-13 (arguing "building block" claims not "like or reasonably related" to non-promotion claims). On April 14,2006, Defendant filed his Motion for Reconsideration in Part and for Clarification [Docket No. 314]. Now, Defendant
3 Defendant makes an obvious misrepresentation to the Court when saying his Motion is made "with the benefit of the substantial discovery which has been conducted in this case." Def.'s Mot. at 27. Pending before the Court are Defendant's attempts to stay or limit all discovery on "building block" claims. See Defendant's Motion for Reconsideration of Magistrate Judge Robinson's Oral Ruling on May 8, 2006 Regarding Further Discovery [Docket No. 328]; Defendant's Motion for Protective Order Regarding Class Plaintiffs' First Set of Request for Production of Documents [Docket No. 348].
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attempts a third bite at the apple, moving to dismiss on the identical arguments (in almost
identical text) made in his motion for reconsideration: that this Court's March 30, 2006
Order was wrong and that Plaintiff Turner cannot exhaust "building block" claims.
Compare Def.' s Mot. for Recons. at 6-10 with Def.' s May 31, 2006 Mot. to Dismiss at
27-35. Defendant's argument was wrong in his opposition to Plaintiffs' motion to
amend, was wrong in his motion for reconsideration, and is wrong now.
1. This Court has Correctly Ruled that Plaintiff Turner Vicariously Exhausted Building Block Claims Under Contreras v. Ridge
Simply stated, this Court's ruling that Plaintiff Turner vicariously exhausted
"building block" claims is correct under the law of this District. Defendant's motion for
reconsideration and motion to dismiss should be denied.
Under Contreras v. Ridge, Plaintiff Turner's administrative complaint is sufficient
to vicariously exhaust "building bock" claims. In Contreras, Judge Robertson held that:
I find that the claim of discriminatory denial of promotions was timely exhausted. The class claims that are related to the denial of promotions claim-concerning transfers, assignments, and other career-enhancing opportunities, undercover and other undesirable work, discipline, awards and bonuses, and training - are like or reasonably related to the timely exhausted promotions claim because they concern work opportunities that would credential or position Hispanic agents for promotions. Any EEOC investigation of the denial of promotions claim would necessarily involve investigation into the building blocks of promotion. Accordingly, because there is a reasonable relationship between the class claim of denial of promotions and the class claims of transfers, assignments, and other career-enhancing opportunities, undercover and other undesirable work, discipline, awards and bonuses, and training, these claims are also appropriate for adjudication. Contreras, 305 F. Supp. 2d at 133-34. Plaintiff Turner, like the plaintiff in Contreras,
timely contacted an EEO counselor regarding a class non-promotion claim and filed a
class administrative complaint. Under the plain ruling of Contreras, Plaintiff Turner's
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timely-filed and now-exhausted non-promotion administrative complaint exhausts the
"building blocks" of promotion. There is no language in the Contreras opinion that
suggests that Plaintiff Turner needs to have suffered discrimination in each "building block" of promotion in order to vicariously exhaust the same.4 Instead, the language of
Contreras focuses not on the individual plaintiff, but on the experiences of the class.
Contreras found the "building blocks" of promotion exhausted because "they concern
work opportunities that would credential or position Hispanic agents for promotions."
Id. at 133 (emphasis added). Moreover, the Contreras court focused on the "reasonable
relationship between the class claim of denial of promotions" and the "building block"
claims, not on the plaintiffs individual non-promotion claim. Id. at 134.
In his March 30, 2006 Order, Judge Roberts correctly interpreted Contreras,
considering and rejecting Defendant's argument that Plaintiff Turner could not exhaust "building block" claims because of his high MPP score.s Def.'s Mot. at 27-29,31,33-35.
Defendant argues that this Court's ruling that Plaintiff Moore did not vicariously exhaust
"building block" claims means that Plaintiff Turner, who had a similarly high MPP score,
also could not vicariously exhaust "building block" claims. See Def. 's Mot. at 33-34.
Judge Roberts expressly rejected this argument in his March 30, 2006 Opinion:
The facts of Reginald Moore's non-promotion claim did not implicate the building blocks of promotion because his claim asserted non-promotion in spite of a high performance evaluation. An investigation of his complaint
4 In fact, even Defendant's own recitation of the plaintiff in Contreras' individual claims reveals that he did not suffer from discrimination in each "building block." Defendant states that the plaintiff in Contreras contacted an EEO counselor regarding discriminatory "performance ratings, denial of training, and retaliation and discipline," Def. 's Mot. at 30-31, and discrimination in "promotions, reassignments, details, job training and language skills, and the discriminatory allocation of work assignment to Hispanic agents." [d. (citing Contreras, 305 F. Supp. 2d at 132). It is undisputable that the Contreras court found additional "building blocks," including discrimination in awards and bonuses, not cited by the plaintiff in Contreras, to be vicariously exhausted. Contreras, 305 F. Supp. 2d at 133-34. 5 This Court, and the Court in Contreras, necessarily found that Plaintiff Turner, and the plaintiff in Contreras, had standing to vicariously exhaust "building block" claims.
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would not necessarily have involved examining the building blocks of promotion. However, now, as in Contreras, plaintiffs' class complaint of non-promotion implicates the building blocks of promotion. Mar. 30,2006 Gp. at 13-14.
2. Plaintiff Summerour Also Vicariously Exhausted "Building Block" Claims
Defendant's argument suffers an even more fundamental flaw. Defendant ignores that Plaintiff Summerour's claims-included in Plaintiffs' Administrative Complaint with Plaintiff Turner' s-indisputably exhaust the class' "building block" claims.
a. Plaintiff Summerour Was Excluded From Some Positions Based Solely on her MPP Score.
As explained in Section I(A)(1 )(a), supra, Plaintiff Summerour has met the administrative prerequisites for filing a claim of non-selection that implicates low MPP scores. Thus, Defendant's argument, Def.'s Mot. at 17-19,27-35, that Plaintiff Turner's high MPP scores preclude Plaintiffs' "building block" claims fails. By Defendant's own logic, Plaintiff Summerour's claim implicates the "building blocks" of promotion, and vicarious exhaustion means that these claims are now exhausted for all class members.
b. Plaintiff Summerour Complained of Discriminatory Performance Evaluations.
Plaintiffs' Administrative Complaint expressly referenced discrimination against Plaintiff Summerour in performance evaluations. Ex. A at ~ 46-47. What's more, any reasonable investigation of Plaintiff Summerour's administrative complaint would have raised her MPP score. Again, the Secret Service has sworn that Plaintiff Summerour's MPP score alone resulted in the Secret Service not considering her for promotion to several positions. Given the Secret Service's stated reason for Plaintiff Summerour's non-selection, there can be no question that discrimination in performance evaluations
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meets the standard for vicarious exhaustion that the claim be "like or reasonably related
to the allegations of the [EEO] charge and grow out of such allegations." Mack, 134 F.
Supp. 2d at 109 (internal quotes omitted).
c. Plaintiff Summerour Complained of Discriminatory Transfers, Assignments, and Other Career-Enhancing Opportunities.
In Plaintiffs' Administrative Complaint, Plaintiff Summerour also complained of
discrimination in transfers, assignments, and other career-enhancing opportunities.
Plaintiff Summerour cited a number of lateral transfers which had the intent and effect of
suppressing her MPP score and preventing her promotion to GS-14. See Ex. A at ,-r 45-
47. Moreover, Plaintiff Summerour explained that she had been denied the prime assignment of "# 1 Whip" on the Presidential Protective Detail.6 See id. at,-r 46.
d. Plaintiff Summerour Complained of Discriminatory Hiring.
In the Plaintiffs' Administrative Complaint, Plaintiff Summerour also expressly
complained of discriminatory hiring.? Exhibit A at,-r 42.
e. Plaintiff Summerour's Complaint Implicated Discriminatory Discipline.
In discovery in this matter, Defendant swore that Plaintiff Summerour's previous discipline may have resulted in her not being selected for at least four GS-14 positions.8
6 In complaining about discrimination in assignments, such assignment to the non-career-enhancing Chelsea Clinton detail and her denial of the "#1 Whip" position, Plaintiff Summerour also exhausted Plaintiffs' "discriminatory assignment to undercover work" "building block." Each of these are simply examples of the same discriminatory practice of denying career enhancing opportunities to AfricanAmerican Special Agents and assigning them, instead, to dead-end assignments. 7 In complaining about discrimination in hiring, Plaintiff Summerour also vicariously exhausted Plaintiffs' claim of discriminatory testing, which is an element of hiring and therefore "reasonably related" to a discriminatory hiring claim. See Section II(B)(2), infra. Defendant was on notice of the testing claim, as it was included in Plaintiffs' Administrative Complaint. See Ex. A at ~ 22. 8 Three of these positions are those for which Plaintiff Summerour contacted an EEO counselor within forty-five days of her non-selection. Compare Ex. A at ~ 50 (indicating Plaintiff Summerour found out she
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See Ex. B at 33, 36-37. As Defendant swears that Plaintiff Summerour's discipline may have influenced her non-selection, any administrative investigation into her complaint
necessarily implicated discriminatory discipline. Thus, there can be no question that discriminatory discipline claims are "like or reasonably related to the allegations" of Plaintiff Summerour's EEG charge "and grow out of such allegations.,,9
3. Plaintiff Moore and Turner's "Building Block" Claims Are Properly Before the Court.
Defendant claims that several "building block" claims of Plaintiffs Moore and Turner are subject to their motion to dismiss as unexhausted. 10 Def.' s Mot. at 16-17. As
this Court has ruled that claims as to each of the "building blocks" about which Plaintiffs Moore and Turner complain were vicariously exhausted by Plaintiff Turner's nonpromotion administrative class complaint, these claims are per se exhausted.
Defendant separately argues that Plaintiff Moore's transfer claim is not properly before the Court. Def.' s Mot. at 14-15. Defendant notably does not argue that Plaintiff Moore did not exhaust this claim, nor could he. Instead, Defendant claims prejudice by the inclusion of this argument in Plaintiffs' First Amended and Supplemental Class Complaint, but not in Plaintiffs' May 3, 2000 Complaint. In fact, the procedural history
was denied position numbers 99170, 99172, and 99173 on or about December 23, 1999; Plaintiff Summerour contacted an EEO counselor on January 31,2000) with Ex. B at 36-37 (indicating Plaintiff Summerour may not have been selected for these positions based on her prior discipline). 9 Plaintiffs' Administrative Complaint raises building block claims related to "discrimination in awards and bonuses," see Ex. A at 24, that do not directly refer to Plaintiff Summerour's experiences. As demonstrated by Contreras, Plaintiffs' Administrative Complaint, and Plaintiff Summerour's non-selection claim, sufficiently raises the awards and bonuses claim. Defendants note that, in Contreras, the plaintiff did not specifically complain about awards and bonuses discrimination to the EEO counselor, Def.'s Mot. at 30-31, yet the Court in Contreras found them vicariously exhausted as "reasonably related" to his non-promotion claim. Contreras, 305 F. Supp. 2d at 133-34. See also Section I(B)(4), infra. JO Defendant's arguments that these claims are time-barred and his argument that because these claims were previously dismissed, they are subject to dismissal are addressed in Sections III(A) and I(C), infra, respectively.
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of this case lays bare that Defendant could not have suffered prejudice. No discovery has been completed on "building block" claims-including discriminatory transfers-up to this date. The only discovery that has been completed has dealt with discriminatory nonpromotions. Even if Plaintiff Moore's discriminatory transfer claim had been included in the May 3, 2000 Complaint, no discovery would have been conducted on that claim yet. Moreover, Defendant was immediately on notice of Plaintiff Moore's challenge to his transfer, as he raised it in the administrative process before it even took effect.
4. "Awards and Bonuses" Claims Are Properly Before this Court Defendant's argument that "awards and bonuses" are not a "building block" of promotion and therefore not properly before this Court is factually misleading. II The Merit Promotion Plan that governs promotions requires that applicants for promotion submit a "Special Agent Qualification Statement." See Ex. C (1997 Merit Promotion Plan) at 7 (indicating that a Special Agent Qualification Statement must be submitted and is evaluated by the Peer Panel and Second Level Panel); 15 ("The peer panel teams will use evaluative criteria ... to rate each candidate's experience based on the Special Agent Qualification Statement submitted."); 16 ("[Second Level] Panel members rate each candidate on managerial competencies based on the information provided on the candidate's qualification statement."). These statements often include citations to awards and bonuses received by applicants. See Ex. D (Special Agent Qualification Statements) at bates numbers 075099 (Tyler), 075169 and 075171 (Turner), PL000709 and PL000788-9 (Ivery), PL00902-3 (Moore) (indicating receipt of awards or
II Again, Defendant's implication that their argument is made with the benefit of "substantial discovery" on awards and bonuses, Def. 's Mot. at 35, is simply false. No discovery has been conducted on "awards and bonuses" claims. As these claims were not in the case during discovery on individual non-promotions, no discovery was specifically conducted on the relationship between awards and bonuses and promotion.
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bonuses). Thus, the Merit Promotion Plan instructs that at several stages of consideration for promotion, decision-makers consider Special Agent Qualification Statements that commonly include information on awards and bonuses.
Moreover, sworn testimony indicates that decision-makers can consider any and all information in making promotions decisions. Former Deputy Director Spriggs testified that Assistant Directors, in determining who to recommend for promotion from the Merit Promotion Certificate, could request any information they wished to considerincluding Special Agent Qualification Statements. 12 See Ex. E (Spriggs Dep., JuI. 20, 2005) at 64: 17-65:4.
C. This Court Ruled that Previously Dismissed Claims Are Properly Before the Court
There is simply no question that Judge Robert's March 30, 2006 Opinion allowed Plaintiffs to pursue claims dismissed by his October 24, 2004 opinion. Yet, inexplicably, Defendant takes the position that all once-dismissed claims are forever lost. This is in contradiction to the law of this case and of the D.C. Circuit.
In his October 24, 2004 Order, Judge Roberts dismissed without prejudice all claims dependent on exhaustion by Plaintiff Turner or Summerour's administrative complaints as unexhausted. See Oct. 24, 2004 Op. at 20-21. Plaintiffs followed the procedure for re-filing of an administrative complaint with the EEOC after dismissal for failure to exhaust set out by the D.C. Circuit in Martini v. Fed. Nat 't Mortgage Ass 'n, 178 F.3d 1336,1338 (D.C. Cir. 1999). In his March 30, 2006 Order, Judge Roberts approved Plaintiffs' re-filing pursuant to Martini, Mar. 30,2006 Op. at 7, and found
12 In addition, former Deputy Director Riggs testified that she considered PlaintiffIvery's inspection because she independently knew about it. Ex. F (Riggs Dep., Jun. 30, 2005) at 90: 18-92:6. Decisionmakers could similarly consider independent knowledge of awards and bonuses, or lack thereof.
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Plaintiffs' Second Amended Class Action Complaint to the EEOC exhausted, id. at 12. Judge Roberts therefore allowed claims previously dismissed as unexhausted-including class non-promotion claims and all "building block" claims-to be included in an amended complaint to be filed by Plaintiffs. Jd. at 16.
At the hearing on Plaintiffs' Motion to Amend and Supplement Complaint, Plaintiffs' Counsel explained to the Court the procedure that Plaintiffs followed after Judge Roberts' October 24,2004 dismissal to revive the dismissed claims-refiling pursuant to Martini:
What our position on that was - that we wanted to refile the second amended complaint because it's our view that with the Turner complaint, which was consolidated with the Moore complaint, with the Summerour complaint that was consolidated, which we refiled, that then, through vicarious exhaustion, we are permitted then to proceed with a class action that covers all of the claims that are contained in the class action complaint that would then be exhausted and properly before the Court. Ex. G (Excerpt of Feb. 22, 2006 Mot. Hr'g Tr.) at 7. In response to the Court's question of whether Plaintiffs' counsel refiled individual claims, Plaintiffs' counsel explained that Plaintiffs did not file any new complaints with the EEOC, but simply refiled Plaintiffs' Second Amended Class Action Complaint with the EEOC-and that refiling the administrative complaint of Plaintiffs Moore, Turner, and Summerour was sufficient to vicariously exhaust all claims. Jd. at 7-14. Plaintiffs' counsel never suggested that Plaintiffs did not pursue any claim or conceded that any claim was subject to dismissal. D. Plaintiffs Need Not Independently Exhaust their Claims This Court has ruled that Plaintiff Turner vicariously exhausted discrimination in promotion and the "building blocks" of promotion. Thus, it is definitional that Plaintiffs and class members need not independently exhaust their claims. However, Defendant argues that several Plaintiffs' claims should be dismissed because they either filed no
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administrative complaint, Def.'s Mot. at 7 (Section II.B.), or their individual exhaustion

was somehow flawed, id.

at

7-12

(Sections

II.C-D

I3 ).

This is a red-herring.

This Court's

ruling on the scope of Plaintiff Turner's vicarious exhaustion means that no other

Plaintiffor class member needs to have individually exhausted his or her claims.

1. Plaintiff Robertson

Defendant claims that because Plaintiff Robertson withdrew her EEO complaint,

her claim must be dismissed. Id. at 7 (Section II.C.). This is wrong. Because this Court

ruled that Plaintiff Turner vicariously exhausted the "building block" of "discriminatory

disciplinary policies or practices," Mar. 30,2006 Op. at 2, 13, 15, Plaintiff Robertson-

and any class member with a claim of discriminatory discipline-need not have individually exhausted an EEO complaint. 14 Indeed, Plaintiff Robertson need not have

filed an EEO complaint at all, as Plaintiff Turner vicariously exhausted her claim.

2. Plaintiff Harris

Defendant claims that Plaintiff Harris' non-selection claims to GS-14 and GS-IS

must be dismissed for lack of exhaustion. Id. at 10-11 (Section II.D.). Defendant is

wrong on both accounts.

Plaintiff Harris complains of discriminatory non-promotion to GS-14 during

1999. Plaintiffs are at a loss to understand how Defendant can argue that these claims are

not exhausted when this Court has twice issued crystal clear rulings that non-promotion

claims are vicariously exhausted, both by Plaintiff Moore and by Plaintiff Turner.

Plaintiff Harris did not have to file an EEO complaint at all in order to bring these claims

13 Defendant labels two discrete sections, relating to Plaintiffs Summerour and Harris, 11.0. 14 Defendant's argument that Plaintiff Robertson's claim does not constitute "discipline" is addressed infra at Section II(C).
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in federal court. That he withdrew his entirely unnecessary EEO claim is inapposite. Plaintiff Harris also complains of discriminatory non-promotion to GS-15.
Defendant's attempt to use Plaintiff Harris' administrative complaint to limit his claims and class claims fails. Again, while Defendant does not question that Plaintiff Harris exhausted an EEO complaint regarding promotion to GS-15, his filing of such a complaint at all was superfluous. All claims regarding promotion to the GS-15 level were exhausted by Plaintiffs' Administrative Complaint. No further filing was necessary.
3. Plaintiff Summerour Defendant argues that while Plaintiff Summerour contacted an EEO counselor and joined Plaintiffs Moore and Turner in filing the Second Amended Class Action Complaint with the EEOC (ruled exhausted by this Court's March 30, 2006 Order), that Plaintiff Summerour exhausted nothing. Def.' s Mot. at 8-10 (Section II.D.). This is both inapposite and incorrect. It is inapposite because this Court ruled that Plaintiff Turner vicariously exhausted each of Plaintiff Summerour's claims. Plaintiff Summerour has claims of discrimination in: promotions; performance evaluations; discipline; transfers, assignments, and other career-enhancing opportunities; hiring; and undercover work. Judge Roberts found that each of these claims was vicariously exhausted by Plaintiff Turner. Mar. 30,2006 Op. at 2-3,12-13, 15-16. It is incorrect because Plaintiff Summerour both exhausted her own claims and vicariously exhausted the non-promotion and "building block" claims of all other Plaintiffs and class members. See Section I(B)(2), supra. Defendant insists that Plaintiff Summerour did not properly exhaust her claims because by Defendant's own argument regarding why Plaintiffs Moore and Turner
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cannot vicariously exhaust "building block" claims, Plaintiff Summerour's exhaustion does so. Defendant first complains that Plaintiff Summerour's complaint regarding her Merit Promotion Plan score was untimely. Def.' s Mot. at 9. Defendant is incorrect. By Defendant's own admission, Plaintiff Summerour was denied a promotion based solely on her MPP score within forty-five days of her initial contact with an EEO counselor. Compare Ex. A at ~ 50 (indicating Plaintiff Summerour found out she was denied positions numbers 99164 and 99177 on or about December 23, 1999; she contacted an EEO counselor on January 31, 2000) with Ex. B at 28-29 (indicating Plaintiff Summerour was not selected for these positions based solely on her MPP score). Because Defendant used Plaintiff Summerour's discriminatory MPP score to deny her a promotion within forty-five days of her contact with an EEO counselor, she had a timely claim with respect to her discriminatory score - a part of the promotion process - and her discriminatory non-promotion.
Next Defendant suggests that Plaintiff Summerour did not properly file a formal administrative complaint. This is incorrect. Within fifteen days of receiving her "Notice of Right to File a Discrimination Complaint" on March 6,2000, Plaintiff Summerour filed, with Plaintiffs Moore and Turner, Plaintiffs' Second Amended Class Action Complaint. See Def. 's Mot., Ex. 15 at Tab F (return receipt indicating receipt of "Notice of Right to File a Discrimination Complaint" on March 6, 2000); Ex. A (filed March 21, 2000). Defendant's suggestion that Plaintiff Summerour's formal administrative complaint somehow does not "count" because it was filed with those of Plaintiff Moore and Turner is entirely unsupported and unsupportable.
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Thus, Plaintiff Summerour fulfilled every administrative prerequisite for filing a federal lawsuit as a federal employee under Title VII. Defendant's final suggestion that in Plaintiff Summerour's initial contact with an EEO counselor, she did not sufficiently explain her claims is, again, incorrect. It is well-settled that EEOC charges are to be liberally construed. See, e.g. Caldwell v. Servicemaster Corp., 966 F. Supp. 33,49 (D.D.C. 1997) ("Although a complaint in some manner or in some form must be made administratively, it is well settled that a vaguely worded charge is not fatal to a Title VII plaintiffs case. EEOC complaints are to be liberally construed, because they are often drafted by persons unschooled in technical pleading.") (internal quotations, citations omitted). But Defendant does not claim that Plaintiff Summerour's charge (Plaintiffs Second Amended Class Action Complaint) did not provide sufficient notice of Plaintiff Summerour's claims against Defendant. Rather, they claim only that her conversation with an EEO counselor was insufficient. If the EEOC charge, the only administrative pleading giving notice to a defendant in a Title VII action, is to be liberally construed, certainly a plaintiffs verbal complaint to an EEO counselor without the assistance of an attorney is to be liberally construed. Plaintiff Summerour complained to an EEO counselor about her MPP score within forty-five days of being denied promotions solely on the basis of that score; liberally construed, she complained about the promotions process to the EEO counselor. She then timely filed her formal administrative complaint, in which her complaint about the promotion process was made crystal clear. II. Defendant's Other Arguments as to Standing and Mootness Fail
Like their other arguments, Defendant's arguments as to standing and mootness of Plaintiffs' claims rely on incomplete facts or incomplete (indeed, absent) precedent.
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When confronted with complete facts and accurate precedent, each argument fails. Moreover, each of Defendant's arguments on standing and mootness assume that
only post-1998 "building block" claims are properly before the Court. Plaintiffs and Defendant disagree on this issue. See Section III(B). As pre-1999 "building block" claims are properly before the Court, Defendant's arguments are wholely inapposite: multiple named Plaintiffs experienced discrimination in each "building block," some of whom do not suffer from Defendant's incorrectly perceived legal defects.
A. Plaintiff Simms has Standing to Challenge Discriminatory Assignment to Undercover Work.
Defendant argues that Plaintiffs' claims concerning unequal distribution of undercover assignments should be dismissed because Plaintiffs fail to produce a Plaintiff who complains of assignment to undercover work. Def.' s Mot. at 40. While Defendant's failure to cite any legal authority renders his argument far from clear, Plaintiffs assume he is arguing that Plaintiff Simms lacks standing to bring this claim because she did not suffer an "injury in fact" as she was "merely asked" to work an undercover assignment. Id. Defendant's argument cannot withstand legal analysis.
Defendant's argument must be denied because Plaintiff Simms is clearly an "aggrieved" party under the liberal threshold standing requirement of Title VII. See 42 U.S.C. § 2000(e-5)(f)(1)(2006); see, e.g., Gray v. Greyhound Lines, 545 F.2d 169, 176 (D.C. Cir. 1976) ("'The use...ofthe language 'a person claiming to be aggrieved' shows a congressional intention to define standing as broadly as is permitted by Article III of the Constitution. "') (quoting Hackett v. McGuire Brothers, Inc., 445 F.2d 442, 446 (3d Cir. 1971)). A plaintiff satisfies Title VII's standing requirement when it demonstrates that "(1) it has suffered an 'injury in fact' ... ; (2) the injury is fairly traceable to the
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challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." E.g., Cleveland Branch, NAACP v. City ofParma, 263 F.3d 513, 523-24 (6th Cir. 2001) (citing Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000». Defendant appears only to challenge the first element of standing, that Plaintiff Simms did not have an "injury in fact" because she did not complete the undercover assignment. 15
Plaintiff Simms' emotional injury resulting from Defendant's discrimination clearly constitutes an injury in fact. Plaintiff Simms suffered emotional injury, as she knew she received this dangerous assignment while seven months pregnant because of her race. Am. Compl. at ,-r,-r 102, 117. Plaintiff Simms knew that the only other pregnant woman in Chicago Field Office history was white and in stark contrast to Simms' treatment, received accommodation during her pregnancy. Id. at,-r 102. Plaintiff Simms' injury is both "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." E.g., Parma, 263 F.3d at 523; see also Ass 'n ofData Processing Servo Orgs. V. Camp, 397 U.S. 150, 152 (1970); Zivotofsky, 444 F.3d at 619 (noting that the "violation of an individual right conferred on a person by statute" can itself meet the injury requirement); Heckler V. Mathews, 465 U.S. 728, 739 (1984) (finding that
15 Plaintiff Simms clearly also meets the second and third elements of Title VII standing. With respect to the second element, Plaintiff Simms' injury is fairly traceable to the challenged action of the defendant.
See Zivatafsky ex. reI. Ariz. V. Sec y afState, 444 F.3d 614, 618 (D.C. Cir. 2006) (finding that when
plaintiff is the object of government action himself, "there is ordinarily little question that the action ... has caused him injury") (quoting Lujan v. Defenders af Wildlife, 504 U.S. 555, 561-62 (1992»). With respect to the final element. Plaintiff Simms is able to demonstrate that "it is likely, as opposed to speculative, that the injury will be redressed by a favorable decision," Parma, 263 F.3d at 524 (citations omitted), that encourages Defendant to "discontinue current violations" and deters him from "committing future ones." Laidlaw, 528 U.S. at 186. Plaintiff Simms' emotional distress would be lifted if the court bars Defendant from engaging in the unequal treatment of African-American Special Agents. She would then be able to work in an "environment free of racial intimidation" and the other injuries that accompany discrimination. See Gray, 545 F.2d at 176 (internal quotations and citations omitted).
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"discrimination itself, ... by stigmatizing members of the disfavored group as 'innately inferior' ... can cause serious non-economic injuries" for purposes of the standing requirement). Plaintiff Simms' emotional injury presents a more direct, actual, and concrete example of injury than the "psychological injury" African-American plaintiffs suffered in Gray as a result of the employer's discrimination against other AfricanAmericans. See, e.g., Gray, 545 F.2d at 173-76 (recognizing injury resulting from "the effects of Greyhound's allegedly discriminatory hiring policies on his treatment at work and on his own psychological well-being" even though Gray was in fact hired).
Moreover, Defendant's suggestion that "Plaintiffs should not be allowed to raise a claim of class-wide discrimination in undercover assignments around the fact that someone was merely asked to work an undercover assignment," Def.'s Mot. at 40, is misleading. Plaintiffs allege a pattern of discrimination in assignment to undercover work affecting seven of the ten named Plaintiffs. Am. Compl. at ~~ 96-101. Plaintiffs were placed in dangerous situations without adequate training-sometimes without even a weapon-on the discriminatory assumption that they would fit in solely on their race. Id. at ~ 101. Even on Defendant's incorrect legal standard, Plaintiffs' allegations are sufficient: Plaintiffs allege that they were assigned to and completed a disproportionate amount of non-career-enhancing undercover assignments on the basis of race and did not receive credit for promotion for successful undercover work. Id. at ~~ 96, 98, 100.
B. Plaintiffs' Hiring and Testing Claims are Properly Before the Court. 1. Plaintiff Simms' Hiring Claim is Not "Moot."
Defendant states that Plaintiff Simms' hiring claim is "moot" because her "situation was resolved in 2003," and thus there is "nothing to remedy here." Def.'s Mot.
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at 39. Defendant's factual statement is blatantly misleading: Plaintiff Simms' ongoing experience of financial and psychological injury resulting from hiring discrimination demonstrates that her situation is far from "resolved."
Plaintiff Simms has ongoing financial and psychological injuries resulting from Defendant's discriminatory hiring practices. Defendant misleads the court by failing to disclose two facts. First, after filing four separate grievances and receiving four separate decisions, more than a year after her hire Defendant admits that Plaintiff Simms was granted her GS-9 retroactive to September 22, 2002, not her date of hire, August 26, 2002. See Def.'s Statement of Material Facts at ~ 144; Ex. H (Correspondence between C. Simms and the Secret Service regarding her hiring grade). Even Defendant admits she is still owed approximately one month of back-pay.
Second and similarly, Defendant admits that Plaintiff Simms' time-in-grade for eligibility for career-ladder and competitive promotions is calculated from September 21, 2002, instead of August 26, 2002. Def.'s Statement of Material Facts at ~ 144. Thus, she is always approximately one month behind in her annual promotions, and the accompanying increase in compensation. Her eligibility for competitive promotions will also be delayed.
Defendant lacks any basis to argue mootness when the issues remain "live," and Plaintiff Simms retains a "legally cognizable interest" in being free from discriminatory hiring decisions and her ongoing financial and psychological injuries. See, e.g., County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (citing Powell v. McCormack, 395 U.S. 486,496 (1969)); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561,571-72 (1984) (rejecting mootness when the employees "have not been made whole" and the
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challenged action "continues to have adverse effects"); In re Curry, 470 F.2d 368, 371 (D.C. Cir. 1972) (denying mootness when plaintiff suffers "continuing collateral consequences which should be dispelled if ... unlawful"); Jenkins v. United Gas Corp., 400 F.2d 28,33 (5th Cir.1968) (rejecting mootness when plaintiff is offered and accepts a promotion subsequent to filing suit because of the suit's "heavy overtones of public interest" and the need for an "injunction as a protection against a repetition of such conduct in the future"). Plaintiff Simms' incomplete promotion to OS-9 clearly does not meet the "heavy burden" of proving the conditions necessary to moot a claim by voluntary cessation of illegal conduct. E.g., Davis, 440 U.S. at 631. No "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Id.. Rather, Defendant's discriminatory practices and the resulting injuries persist while Plaintiffs have no guarantee that the discrimination will cease without a favorable decision from the court. As stated above, Plaintiff Simms' injury has not ceased. Second, it is far from "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." See, e.g., Laidlaw, 528 U.S. at 189 (citation omitted). This is especially true where it took countless letters, calls, and in-person conversations for Plaintiff Simms to get her OS-9 at all.
Defendant assumes that Plaintiff Simms stands alone in her discriminatory hiring claim. To the contrary, Plaintiffs' claims illustrate the Secret Service's dramatic pattern of dissuading African-American applicants from applying and then only reluctantly hiring African-American Special Agents into lower civil service grades than their credentials warrant. Special Agent Harris was told the Secret Service was not hiring while it was indeed hiring white applicants. Am. CompI. at ~ 84. He was also told that
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his passing TEA exam score was too low to be hired while in fact only a passing score was required. Id. at ~ 84. Four years later, after Special Agent Harris unnecessarily took an additional test and was still rejected for employment, he was only hired after filing an EEO complaint. Id. Similarly, Special Agent Summerour was falsely told she needed law enforcement experience following college in order to gain employment with the Secret Service. Id. at ~ 86. After six years of gaining experience, she was finally hired, only to learn that white applicants were hired directly from college. Id. Further, Special Agents Harris, Hendrix, Turner, Ivery, and Rooks, id. at ~ 85,87,89-91, were all hired at grades lower than their credentials warranted and lower than those of similarly situated white Special Agent. The Plaintiffs' experience of discriminatory hiring practices also adversely affected their ability to seek promotion and other career enhancing opportunities once employed. Id. at ~ 83. Plaintiffs' claims demonstrate a pervasive, persistent, ongoing pattern of discriminatory hiring practices that must be remedied.
2. Testing Claims Are Part of Hiring Claims. Plaintiffs' testing "building block" claim relates to the TEA, which is the entrance examination to the Secret Service. As one integral element of being hired into the Secret Service, Plaintiffs' testing claim is part and parcel of Plaintiffs' hiring claim. In their one paragraph argument to dismiss Plaintiffs' testing claim, Defendant provides no rationale-much less legal argument-why this is not the case. On the contrary, Defendant admits elsewhere that the TEA is an essential component of the Secret Service's hiring process, explaining that disparate impact at the TEA stage is directly relevant to whether minority applicants experience disparate impact in hiring. See Ex. I (Fiscal Year 2002 Annual Affirmative Employment Program
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Accomplishment Report for Minorities and Women and FY 2003 Plan Update) at 12-13 (examining adverse impact of TEA to determine adverse impacts in ultimate selection rates of minorities). Indeed, in its own analysis, Defendant has labeled the TEA as a "barrier in employee selection" because the test had a disparate impact on minorities. See id. at 12 (emphasis added). Thus, even on Defendant's own reasoning, it is illogical to isolate Plaintiffs' testing claims from Plaintiffs' hiring claims.
Moreover, discriminatory testing results in the same injury as discrimination in Defendant's other hiring processes. Defendant appears to forget why "building block" claims are before this Court. In Contreras, Judge Robertson explained that "building block" claims were exhausted because they "credential or position Hispanic agents for promotions." Contreras, 305 F. Supp. 2d at 133. Discrimination in the testing building block operates identically to the hiring "building block" as a whole: each delays an African-American Special Agent's eligibility for promotion. As Plaintiffs' allegations in this case concern only successful candidates for hiring, discrimination in hiring-the discriminatory TEA, discriminatory initial refusal to hire, and discriminatory hiring grade-all cause the same harm: delay in advancement to supervisory grades. Differentiating between the aspects of a hiring claim that each cause the same harm with respect to promotion is both illogical and without legal support.
Moreover, two Plaintiffs failed the TEA, delaying their hiring and eligibility for promotion. Plaintiff Hendrix took the TEA three times before passing, delaying his entry to the Secret Service by eighteen months. Am. CompI. at ~88. Plaintiff Tyler failed the TEA on her first attempt, delaying her entry to the Secret Service by six months. Id. at
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~92. Defendant assumes that these claims are time-barred, but Plaintiffs dispute this interpretation and the issue is currently before the Court. See Section III(B), infra.
c. Plaintiff Robertson was Subject to Discriminatory Discipline.
Defendant admits that Plaintiff Ivery was not selected for several promotions based in at least part on an allegation of wrongdoing that did not result in "discipline" by the Secret Service. See, e.g., Ex. B at 37-8, 42, 45, 47-48. At the same time, Defendant claims that Plaintiff Robertson cannot make a "building block" claim of "discriminatory discipline" because her discriminatory placement on administrative leave does not fit the Secret Service's formal definition of "discipline." Def.'s Mot. at 37-38. Defendant cannot have it both ways. If allegations of misconduct that are not characterized by the Secret Service as "discipline" may disqualify a Special Agent for promotion, such allegations are, by definition, "building blocks" of promotion.
It is irrelevant how the Secret Service characterizes "administrative leave." What is relevant is how they utilize allegations of misconduct in the promotions process. After an investigation of Plaintiff Ivery's alleged misconduct was conducted-while he was placed on "administrative leave"-with no resulting action characterized by the Secret Service as "discipline," this allegation of misconduct was used against Plaintiff Ivery in the promotions process as "discipline." The allegation of misconduct against Plaintiff Robertson-holding a National Organization of Black Law Enforcement Executives "meet and greet" during her initial Secret Service training-could identically be used against her in the promotions process. Yet, Defendant claims this is not actionable.
Again, Plaintiffs other than Robertson and Ivery allege discriminatory discipline. Plaintiffs Summerour, Hendrix, and Harris each allege discriminatory suspensions. Am.
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Compl. at ~~ 60,64,65. Each Plaintiff can identify white Special Agents who received lesser - or no - punishment, for the same conduct. Id. III. Defendant's Position that Only Claims Between 1999 and May 3, 2000 are
Actionable is Legally Wrong. A. Post-Filing Claims. Defendant argues that claims of discrimination that occurred after the initial Complaint was filed in this action on May 3, 2000 are unexhausted and therefore subject to dismissal. Defendant made the same argument in his April 14, 2006 motion for reconsideration and Plaintiffs provided several cites standing for the opposite proposition -that Plaintiffs need not file a separate administrative complaint to exhaust post-filing claims. Defendant has provided no response to this legal authority because he cannot: Defendant's argument is legally wrong. While Defendant provides no case in support of its specific position in its Motion, Defendant has previously suggested that Nat 'I R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), disallows post-filing claims. 16 See Def.'s Opp'n to PIs.' Mot. for Clarification (Docket No. 294) at 20-22. Morgan does not apply to pattern or practice cases like this one. See Morgan, 536 U.S. at 115 n.9. Courts in this and other districts have allowed post-filing claims in pattern or practice cases post-Morgan. See, e.g., McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 1,5 n.l (D.D.C. 2004) (noting the class period ran until June 2001 when the complaint was filed in March 2001); EEOC v. Custom Companies, Inc., No. 02-c3768, 03-C2293, 2004 WL 765891, at *11-12 (N.D. Ill. Apr. 7, 2004). Because Morgan does not apply to pattern or practice cases, pre-Morgan caselaw allowing post-filing claims remains applicable. See, e.g.,
16 Defendant cites only to cases concerning the general importance of exhaustion, which are completely uninformative about the specific issue raised.
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Domingo v. New England Fish Co., 727 F.2d 1429, 1443-44 (9th Cir. 1984); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 945 (lOth Cir. 1979); cf McKenzie v. Kennickell, 645 F. Supp. 427, 430-31 (D.D.C. 1986) (allowing employees to obtain remedies for discrimination that occurred after entry ofjudgment). Morgan's exclusion of pattern or practice cases makes perfect sense. Morgan concerns the administrative filing requirements for "discrete discriminatory acts"; in a pattern or practice case, the plaintiffs do not challenge "discrete" discriminatory employment decisions, but instead challenge systemic discrimination. See generally Int 'I Bhd. of Teamsters v. United States, 431 U.S. 324 (l977).
Second, even if Morgan did control this matter-which it does not-Defendant's interpretation of Morgan has been expressly rejected by several Circuits See, e.g., Wedow v. City ofKansas City, Mo., 442 F.3d 661, 672-75 (8th Cir. 2006); Delisle v. Brimfield Twp. Police Dep 't, 94 F. App'x 247, at 252-54 (6th Cir. 2004) (both rejecting the identical argument that Morgan disallows consideration of post-filing claims and finding that such claims are properly considered if they are "reasonably related" to the claims in the administrative charge). The reasoning of Wedow is illustrative of why allowing post-filing claims in this instance is correct. The Eighth Circuit ruled that because the plaintiffs' post-filing claims were "like or reasonably related" to those alleged in the timely-filed administrative complaint, "to force a plaintiff to file a new administrative charge with each continuing incident of discrimination would create needless procedural barriers." Wedow, 442 F.3d at 674 (citations and internal quotations omitted). The court elaborated that it allowed the plaintiffs' post-filing claims because the claims "were not based on separate, distinct, or unrelated theories" and the defendant
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"continued to deny the plaintiffs the same type of work experiences and opportunities alleged in the EEOC charges." ld. Here as in Wedow, Plaintiffs include only post-filing claims that are identical to their pre-filing claims: both Plaintiffs' legal theories and the work experiences and opportunities Plaintiffs and the class they represent were denied are identical pre- and post-filing of the Complaint. 17 As such, even if Morgan applied here, it would present no barrier to Plaintiffs' post-filing claims.
B. Pre-1999 "Building Block" Claims. The parties disagree on their reading of this Court's March 30,2006 Order. Defendant believes that this Court found all pre-1999 claims unexhausted (and therefore subject to dismissal), while Plaintiffs read the Order to exclude only pre-1999 nonpromotion claims. This issue is currently before the Court on Defendant's Motion for Reconsideration in Part and For Clarification [Docket No. 314]. In their Opposition to the same, Plaintiffs requested that this Court clarify this point for the parties. Without the benefit of a ruling on Defendant's motion for clarification, Plaintiffs necessarily pled in accordance with their understanding on this Court's Order. Plaintiffs maintain that their reading is correct. Contreras found that an exhausted administrative class complaint regarding discriminatory non-promotion exhausts "building blocks" of promotion because they "credential or position [] agents for promotions." Contreras, 305 F. Supp. 2d at 133. Contreras, to be meaningful, must not only allow other African-American Special Agents to challenge discrimination in "building blocks" of promotion, but must also allow Plaintiffs with non-promotion claims to challenge "building block" discrimination against themselves. Discrimination in
17 Like the plaintiffs in Wedow, Plaintiffs Moore, Turner and Summerour alleged in their administrative complaint that the discriminatory practices of which they complained were continuing. See id.; Exhibit A at ~ 12.
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"building blocks," by definition, occurs before a Plaintiff is denied a promotion. Thus, Defendant's argument that Plaintiffs with non-promotion claims cannot bring "building block" claims before 1999 is incorrect and unfair. Discrimination in "building blocks" must be actionable twice: first when the discrimination in the "building block" occurs and then again when the discriminatory denial of the "building block" results in the denial of promotion. Defendant's position-that pre-1999 "building block" claims are excluded-would lead to inequitable results: for example, as explained above, Defendant admits that Plaintiff Summerour's discipline (which Plaintiffs allege was discriminatory) was a reason for her post-1999 non-selections, but would disallow her claim of discriminatory discipline as time-barred despite the fact that she timely contacted an EEO counselor within 45 days of the denial of these promotions. This cannot be right. IV. Defendant's Motion for Summary Judgment on Plaintiffs' Pattern and
Practice Claims Should Be Denied. Eager to avoid a jury hearing the significant evidence of racial discrimination visited on black Secret Service Agents, Defendant argues that he is entitled to summary judgment on Plaintiffs' pattern and practice of discrimination claims insofar as they relate to promotions to the GS-14 level, principally because his expert says so. Def.'s Mot. at 40-41. Defendant is patently wrong. As discussed below, Defendant's motion for summary judgment fails on its merits, because Plaintiffs already have come forward with statistical and other evidence of a pattern and practice of racial discrimination, which means there is-at a minimum-a genuine issue of material fact for a jury to decide. In the alternative, Defendant's motion for summary judgment should be denied, because class merits discovery is just beginning and the motion is extraordinarily premature.
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A. Defendant's Motion Fails on the Merits. Defendant's motion for summary judgment should be denied because Plaintiffs have set forth prima facie evidence of a pattern and practice of discrimination by the Secret Service in promotions to the GS-14level. l8 Under long-standing Title VII law, a plaintiff who alleges disparate treatment in a class action such as this one may prove his claims by showing evidence of a "pattern and practice" of discrimination. See Teamsters, 431 U.S. 360 (1977); Segar v. Smith, 738 F.2d 1249, 1266 (D.C. Cir. 1984) ("Such classwide allegations of discrimination are commonly referred to as 'pattern or practice' cases."). To establish a pattern and practice of discrimination, Plaintiffs may use "statistical evidence regarding the defendant's treatment of the class as a whole and anecdotal testimony from individual class members regarding specific acts of discrimination." Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43, 46 (D.D.C. 2002) (citation omitted); see also Palmer v. Shultz, 815 F.2d 84, 96 (D.C. Cir. 1987) (noting that plaintiffs in Title VII pattern and practice cases need not rely on statistical evidence alone and "plaintiffs may introduce any additional evidence which is probative on this issue"). In the seminal case, Hazelwood v. United States, the Supreme Court held that "[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination." 433 U.S. 299, 307-08 (1977) (citation omitted); see also Segar, 738 F.2d at 1272. Under Hazelwood, disparities observed in the statistical data are statistically significant if the "difference
18 Plaintiffs have received discovery relating to promotions to the GS-14 level that occurred between 1998 and 2002, but they have not received discovery relating to post-2002 promotions to the GS-14 level or to any promotions to the GS-15 or SES levels, all of which is relevant to the amended class action complaint that Plaintiffs' filed on May 1,2006. See infra at Section IV(B).
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between the expected value and the observed number is greater than two or three standard deviations." Id. at 308 n. 14 (internal quotations and citations omitted).
Plaintiffs have more than satisfied the Hazelwood standard by providing evidence of a statistically significant adverse impact on African-American Special Agents in GS14 promotions. Plaintiffs' statistical expert found that there were "fewer Black promotions than were expected [between 1998 and 2000, the pre-litigation period]" and that the "difference is statistically significant at ... more than 2.3 standard deviations ... ." Ex. J (Statistical Report of C. Mann) at 2. Defendant's argument with Plaintiffs' expert's conclusions merely goes to the weight of the evidence on a disputed issue of fact and does not entitle Defendant to summary judgment. See McReynolds, 349 F. Supp. 2d at 27 (D.D.C. 2004) ("While each side may well have valid criticisms of how the opposing expert executed various methodologies, these highly-credentialed statisticians have reached starkly different conclusions based on re-runs of each other's multiple regression analyses, and the propriety of these different approaches cannot be resolved at the summary judgment stage because they involve issues of credibility and disputed issues offact."). Because Plaintiffs have presented evidence demonstrating a genuinely disputed issue of material fact about whether Defendant has engaged in a pattern and practice of discrimination, the jury ultimately must decide that issue. See, e.g., id. at 2021 (denying defendant's motion for summary judgment on plaintiff s pattern and practice claims because "plaintiffs have offered sufficient evidence to carry their burden of establishing a prima facie case of a pattern or practice discrimination claim"). 19
19 Defendant argues that Plaintiffs cannot meet their burden of proof on their pattern and practice claims because "during the years 1998 through 2002, fifty-two African American GS-13 Special Agents bid for promotion to the GS-14 level, ... [o]fthose fifty-two, forty-seven have since been promoted to the GS-14 level," and "of those forty-seven individuals who were promoted to the GS-14 level, fourteen are now at
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Even if Plaintiffs could not satisfy Hazelwood's standard for statistical
significance of adverse impact - and they certainly can and have - Defendant still would
not be entitled to summary judgment. Where substantial non-statistical evidence is
combined with statistical evidence of discrimination, courts have considered the statistics
probative even though the statistical significance is less than two standard deviations.
See, e.g., Palmer, 815 F.2d at 97 n.l 0 (holding that less than two standard deviations in
an "intermediate zone" between 1.65 to 1.96 standard deviations should be considered "in
conjunction with all the other relevant evidence in determining whether the discrepancies
were due to unlawful discrimination") (internal quotations omitted).2o
the GS-15 level, six are SES candidates, and one has been promoted into the SES." Def. 's Mot. at 42. Regardless of whether these "statistics" are accurate, they reflect post-litigation employment decisions and do not rectify Defendant's pre-litigation pattern and practice of discrimination in the competitive promotion process. Under well-established case law, a defendant in an employment discrimination lawsuit may not rely on purported "improvements" in the challenged system to avoid liability for past discrimination. See, e.g., Bishopp v. District ofColumbia, 788 F.2d 781, 788 & n.l0 (D.C. Cir. 1986) (stating that "if the District's motivation in promoting [the plaintiff] was based on racial preference it matters not if subsequent appointments were made without discriminatory motivation. Moreover, ... presumably one would bear in mind [] that [the subsequent appointments] were made after appellants filed their charges with the EEOC"); Townsend v. Wash. Metro. Area Transit Auth., 746 F. Supp. 178, 186 & n.8 (D.D.C. 1990) (stating that examples of defendant's more recent progress in hiring and promoting women are "irrelevant because they all occurred after WMATA first refused the plaintiffs application in 1984" and that "[u]nder these circumstances, the plaintiff has shown by a preponderance of the evidence that, at the time of the selection process, [defendant] did not fairly and objectively compare the plaintiffs qualifications for the ... position with those of[the two male selectees)"); Donnell v. Gen. Motors Corp., 576 F.2d 1292, 1298 n.ll (8th Cir. 1978) (citation omitted) ("subsequent employment practices ... are not relevant to the determination of whether the employer had previously violated Title VlI"); Rich v. Martin Marietta Corp., 522 F.2d 333, 346 (10th Cir. 1975) (rejecting the use of employment statistics after the charge had been filed because "it does not constitute cogent evidence oflack of prefiling discrimination .... If post filing conduct is to be taken into account at all, it might tend to show the existence of prior discrimination and an effort to repair the harm after discovery."). 20 See also McReynolds, 349 F. Supp. 2d at 26 (stating that D.C. Circuit recognizes that less than two standard deviations, in conjunction with other relevant evidence, may create issue of fact regarding existence of discrimination); Stewart v. Rubin, 948 F. Supp. 1077, 1094 (D.D.C. 1996) (noting that even when statistical evidence shows less than 1.96 standard deviations, under D.C. Circuit law a prima facie case of discrimination can be made relying on anecdotal evidence supporting statistical showing); In re PEPCO Employment Litigation, 1992 WL 442759, at *9 (D.D.C. 1992) (finding that statistical evidence is not only method of proving discriminatory conduct and if plaintiffs' statistical evidence is not greater than two standard deviations, the court will look to plaintiffs' other evidence to determine if "such alternative forms of proof supplement plaintiffs' statistical evidence enough to raise an inference of discrimination").
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Here, there is significant non-statistical evidence to support Plaintiffs' pattern and practice claims based on promotions to GS-14. A tiny sample of such evidence follows:
• When Plaintiff Moore filed his administrative complaint in 1999 and his federal Complaint in 2000, the Secret Service's own records indisputably show that he had the highest MPP scores of any African-American Special Agent: 97.03 and 98.57 (respectively). By the Secret Service's own measure, he was the best qualified African-American GS-14 candidate. Nonetheless, Plaintiff Moore bid for 187 GS-14 positions and filed the instant federal lawsuit before he was finally promoted in 2002. Even when Plaintiff Moore was assigned as an acting GS-14 on the President's Protective Detail in the White House Joint Operations Center and was recommended by the African-American Special Agent in Charge for promotion to the GS-14 position in which he was acting, a lesser-qualified white Special Agent, ultimately received the promotion. See, e.g., Ex. K (Decl. of L. Cockell) at bates numbers 030263, 030265; Ex. L (Moore Dep., Jul. 15,2005) at 256:19-257:13. Plaintiff Moore was forced to train that white Special Agent for the position. ld. at 257:14-18. White Special Agents promoted above Plaintiff Moore for other positions had, for example, lower MPP scores, less time on the job, and less relevant experience. See, e.g., id. at 73:11-23,75:21-76:19 (indicating that Plaintiff Moore had a higher MPP score, five more years on the job, and more experience on PPD that the selectee for position 99029).
• Plaintiff Tyler was the first African-American female Special Agent in the Atlanta Field Office, the New York Field Office, the Presidential Protective Detail, the Technical Security Division, and the Training Division. See Ex. M (Decl. of C.
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Tyler, July 27,2000) at ~~ 6,18,21,24,28. Despite her achievements, Plaintiff Tyler was assigned an MPP score that the Secret Service claims disqualified her for promotion. Ex. B at 28-29; Ex. D at bates numbers 075096-075101. Plaintiff Tyler was told that the Secret Service was not "ready" for an African-American female supervisor. Ex. M at ~ 34. When this lawsuit was filed, the Secret Service had never promoted an African-American female Special Agent to a GS-14 position. See Ex. N (Summerour Dep., JuI. 8,2005) at 244: 8-25. After fifteen years of service, then the longest-serving African-American female Special Agent, Plaintiff Tyler resigned from the Secret Service without promotion. See Ex. M at ~ 4. Every Plaintiff and class member can provide similar evidence. In view of such anecdotal evidence and the statistical evidence supporting Plaintiffs' pattern and practice claims, there is a genuine issue of material fact on those claims, and Defendant's motion for partial summary judgment should be denied. B. Defendant's Motion for Summary Judgment Should Be Denied as
Premature. Even if the Court does not deny Defendant's motion for summary judgment on the merits, the Court nevertheless should deny the motion because it is extremely premature. Premature summary judgment motions are governed by Rule 56(f) of the Federal Rules of Civil Procedure,21 which provides, in relevant part, that "the court may refuse the application for judgment" as premature if based on "the affidavits of a party
21 The party invoking Rule 56(f) must submit an affidavit with its opposition that explains why the party was unable to offer material facts in opposition to the motion. See Gen. Elec. v. Johnson, 362 F. Supp. 2d 327,337 (D.D.C. 2005) (recognizing affidavit submitted under Rule 56(f) identifying factual issues plaintiff believed must be resolved through discovery before Court can consider summary judgment motion).
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opposing the motion [it is shown] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Fed. R. Civ. P. 56(f).22 Consistent with Rule 56(f), courts should provide for "a reasonable opportunity to complete discovery before grappling with a summary judgment motion." Martin v. Malhoyt, 830 F.2d 237, 256 (D.C. Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325-37 (1986)). 23 Where plaintiffs have not had the opportunity to develop evidence to support their pattern and practice claims, summary judgment motions should be denied as premature. See, e.g., Mueller v. CBS, Inc., 200 F.R.D. 242,244 (W.D. Pa. 200 1) (holding that partial summary judgment motion in ADEA action alleging pattern or practice of discrimination was premature, as the parties had not yet completed class merits discovery).
Here, it is clear that Plaintiffs have not had sufficient discovery to fully develop all of the germane evidence on their pattern and practice of discrimination claims relating to competitive promotions. Although Defendant claims that "[t]he statistical and factual evidence developed in this case shows that plaintiffs cannot meet their burden of proof to show a pattern and practice of discrimination in regard to the selection of Special Agents for promotion to the GS-14 level," Def.'s Mot. at 41, Defendant completely ignores the fact that class merits discovery has just begun and that Plaintiffs have not had the opportunity to conduct any statistical analysis - and have not even obtained discovery -
22 See also Hudert v. Alion Sci. & Tech. Corp.,No. 05-545,2006 WL 1028945 at *8 (D.D.C. Apr. 18,2006) ("[I]fthere has been insufficient discovery conducted in a case at the time a summary judgment motion is filed, the Court can deny the motion as premature."); City ofRome v. United States, 450 F. Supp. 378, 384 (D.D.C. 1978) ("[S]ummary judgment motions [are] premature until all discovery has been completed."). 23 See also Khan v. Parsons Global Servs., 428 F.3d 1079, 1087 (D.C. Cir. 2005) ("The court has long recognized that a party opposing summary judgment needs a 'reasonable opportunity' to complete discovery before responding to a summary judgment motion and that 'insufficient time or opportunity to engage in discovery' is cause to defer decision on the motion.")
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on non-promotions to the GS-14 level (or higher) that occurred after 2002 - a time period that is directly relevant to the recently-filed class action complaint. See Ex. 0 (Decl. of Jennifer I. Klar, Esq.) at ~~ 9,16. 24 Furthermore, Plaintiffs have not yet had the opportunity to fully explore non-statistical evidence, such as anecdotal testimonial evidence, which they are allowed to present in support of their pattern and practice claims. Jd. at ~~ 14,17-18. The class complaint was filed less than two months ago, and class discovery remains in its nascent stages. No depositions have been taken since the class complaint was filed, and five of the ten named plaintiffs have never been deposed. Jd. at ~ 17. Plaintiffs have issued interrogatories and two sets of requests for production of documents relating to competitive promotions, but they have received responses only to one set of requests for production. Jd. at ~~ 13, 14-15. In those responses, Defendant states that he will either produce or make available for inspection certain documents relating to the bids and selections for GS-14 and GS-15 positions from 1997 through 2005. Jd. at ~ 15. Thus, Defendant has admitted that a great deal of discovery on competitive promotions has not yet been produced or completed. Until Plaintiffs complete class merits discovery on non-selections to competitive promotions, they cannot be expected to establish a pattern and practice of discrimination in connection with those non-selections. Thus, in the absence of a complete statistical and factual record, Defendant's motion for summary judgment is entirely inappropriate at this stage in the proceedings, and it should be denied as premature. See, e.g., Velikorija v. Mueller, 315 F.
24 Defendant also completely fails to inform the Court that statistical expert discovery on non-promotions to the GS-14 level that occurred before 2002 has not yet been completed. See Ex. N at ~ 12. In fact, the parties agreed to postpone the depositions of the statistical experts after they received the Court's March 30, 2006 Order granting Plaintiffs' motion for leave to amend the complaint. [d. At that point, the parties agreed that it would be more efficient to conduct the statistical expert depositions after class discovery was underway, recognizing that additional statistical analysis may need to occur. [d. Those depositions have not yet been rescheduled. ld.
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Supp. 2d 66,80 (D.D.C. 2004) (denying motion for summary judgment as premature

"[b]ecause it is unclear based on the undeveloped record whether plaintiff will be able to

proffer evidence of similarly situated individuals or otherwise demonstrate disparate

discipline"). See also Mueller, 200 F.R.D. at 244.

Instead of briefing a premature and meritless motion for partial summary

judgment, the parties should be engaging in discovery on the recently-filed class claims.

Consistent with Supreme Court law, Plaintiffs should be allowed to discover and present

anecdotal, comparative, and statistical evidence to support their claims that racial

discrimination in the competitive promotions process is the Secret Service's standard

u.s., operating procedure. See Teamsters v.

431 U.S. 324, 336-338 (1977).

CONCLUSION

For the above-stated reasons, Defendant's Motion for Partial Dismissal and/or for

Partial Summary Judgment of Amended Complaint should be denied in whole.

Respectfully submitted,

/s/ John P. ReIman (D.C. Bar #405500) Reed N. Colfax (D.C. Bar #471430) Jennifer I. Klar (D.C. Bar #479629) ReIman & Associates PLLC 1225 Nineteenth Street, N.W., Suite 600 Washington, D.C. 20036 (202) 728-1888

/s/ E. Desmond Hogan (D.C. Bar #458044) Deborah L. Boardman (D.C. Bar # 476869) Sarah Berger (D.C. Bar # 489359) Hogan & Hartson LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004

Dated: June 28, 2006

- 45 -

 
 Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND/OR FOR PARTIAL SUMMARY JUDGMENT OF SECOND AMENDED COMPLAINT

Defendant Michael Chertoff, Secretary, United States Department of Homeland Security, respectfully moves, pursuant to

Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss in part the

Second Amended and Supplemental Class Complaint [Second Amended

Complaint] on the grounds that (1) certain of plaintiffs’ claims

fail to state a claim on which relief can be based; and (2)

plaintiffs lack standing to bring claims for which they have

suffered no harm.

In the alternative, and additionally, pursuant to Fed. R.

Civ. P. 56, the Court should enter partial summary judgment in

favor of defendant, because there is no genuine issue as to any

material fact regarding plaintiffs’ claims concerning

discriminatory testing, hiring, discipline, and undercover

assignments; and certain claims which are moot and/or withdrawn.

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 2 of 29

Additionally, one plaintiff, whose only claim is subject to dismissal, should be dismissed.
In support of this motion, the Court is respectfully referred to the accompanying statement of material facts not in dispute, memorandum of points and authorities, declarations and exhibits.
A proposed order consistent with the relief sought is also attached.
Respectfully submitted,

KENNETH L. WAINSTEIN, D.C. BAR #451058 United States Attorney

RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney

Of Counsel:

BENTON G. PETERSON, Wis. BAR # 1029849 MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorneys U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226

Edith Shine, Esq. U.S. Secret Service Office of Chief Counsel

2

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 3 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

DEFENDANT'S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Civil Rule 7.1(h), defendant hereby

submits his statement of material facts as to which there is no

genuine issue:

Allegations of Discrimination in Testing

1. None of the ten plaintiffs allege that from 1999 on he

or she failed the Treasury Enforcement Agents Examination (TEA)

or were adversely affected by any score received on that

examination. See generally 2d Am. Compl.

Allegations of Discrimination for Entry Level Grade at Time of Hiring

2. Plaintiff Simms was hired by the Secret Service in 2002 as a GS-7. Ex. 4.1

1 When Simms was hired her name was Camilla Shepard. Exhibits 3-9 refer to Simms by the name she used at the time she was hired.

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 4 of 29
3. In 2003, Simms’s grade was raised to a GS-9, and then to a GS-11, Ex. 9, p. 2, made retroactive to September 2002, and 2003, respectively. Ex. 9, p. 4.
Allegations of Discrimination in Discipline 4. Defendant’s disciplinary policy includes letters of reprimand, suspensions, demotions, and removals. Ex. 1, p. 2. 5. None of the ten plaintiffs allege that since 1999 he or she was the subject of a disciplinary action. See generally 2d Am. Compl. 6. Plaintiff Lisa Robertson “was placed on administrative leave” in 2002. 2d Am. Compl. ¶ 67. 7. Plaintiff Robertson “was taken off administrative leave” without receiving a reprimand, suspension, demotion or a notice of termination. See id. 8. Plaintiff Robertson does not know whether being placed on administrative leave “during training [would] adversely affect her in the competitive promotion process.” Id. 9. The last time a Secret Service employee attended the “Good Ol’ Boys Roundup” was in 1995. See Docket No. 221, Ex. 1 at 3 (PL-0004). Allegations of Discrimination in Undercover Work 10. None of the ten plaintiffs allege that from 1999 on he or she was discriminated against by being assigned to perform, and required to perform, undercover work. See generally 2d Am.
2

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 5 of 29
Compl. 11. In 2005, Plaintiff Simms was asked to complete an
undercover assignment. 2d Am. Compl. ¶ 89; Ex. 2, ¶ 2. 12. Plaintiff Simms never worked the undercover assignment
referenced in paragraph 89 of the Second Amended Complaint. Ex. 2, ¶ 3.
Allegations of Discrimination in Promotion to the SES 13. None of the plaintiffs allege that he or she applied for and was denied a promotion to the SES level. See generally 2d Am. Compl. 14. The SES promotion process is different that the promotion process used for GS-14 and GS-15 promotions. Ex. 14. Plaintiff Robertson Has No Viable Claims 15. Plaintiff Lisa Robertson contacted an Equal Employment Opportunity (EEO) Counselor on or about January 21, 2003, alleging discrimination in regard to the same matter which is presented in the Second Amended Complaint at paragraph 67. Compare Ex. 10 with 2d Am. Compl. ¶ 67. 16. Plaintiff Robertson withdrew her EEO complaint concerning the matter presented in the Second Amended Complaint at paragraph 67 on or about February 27, 2003. Ex. 11. Plaintiff Harris’ Withdrawn GS-14 Claims 17. Plaintiff Andrew Harris first bid for promotion to the GS-14 level in 1999. 2d Am. Compl. ¶ 57.
3

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 6 of 29
18. On October 5, 1999, Harris contacted an EEO Counselor alleging discrimination in regard to non-selection for promotion to the GS-14 level. Ex. 12, ¶ 3.
19. Harris withdrew his 1999 EEO complaint concerning discrimination in regard to promotion to the GS-14 level. Id.
20. Plaintiff Harris was promoted to the GS-14 in 1999. 2d Am. Compl. ¶ 57.
Plaintiff Moore’s Withdrawn Promotion Claims 21. On October 12, 1999, Plaintiff Moore filed a formal complaint of discrimination. Ex. 15, ¶ 2. 22. In November 1999 MaryAnn Hageline, an EEO Specialist, asked Plaintiff Moore and his attorney whether he was seeking to file an EEO complaint concerning his non-selection for a vacancy which had been announced on June 16, 1999, vacancy number 99-073. Ex. 15, ¶¶ 3-8, and notes attached to that declaration. 23. Ms. Hageline also asked Plaintiff Moore and his attorney whether he was seeking to file a claim concerning other “non promotions to positions for which he had applied.” Id. 24. Plaintiff Moore and his attorney advised Ms. Hageline that, in regard to non-selection for promotion, Plaintiff Moore was only seeking to complain in regard to vacancy number 99-089. Id. 25. By letter dated November 16, 1999, Plaintiff Moore and his attorney were advised of the accepted issues in the formal
4

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 7 of 29 complaint. Id. at ¶ 9; Ex. 16.
26. The only non-promotion at issue as set forth in the November 16, 1999 letter was the non-selection for vacancy 99089. Ex. 16.
27. Through the November 16, 1999, letter Plaintiff Moore and his attorney were advised that if they disagreed with the accepted issues they had the right to contest the issues within five days of the receipt of that letter. Ex. 16.
28. Neither Plaintiff Moore nor his attorney contested the issues as set forth in the November 16, 1999, letter. Ex. 13, admission request/response # 7.
5

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 8 of 29
Respectfully submitted,
KENNETH L. WAINSTEIN, D.C. BAR #451058 United States Attorney
RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney
BENTON G. PETERSON, Wis. BAR # 1029849 MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorneys U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226 Of Counsel: Edith Shine, Esq. U.S. Secret Service Office of Chief Counsel
6

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 9 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL DISMISSAL
AND/OR FOR PARTIAL SUMMARY JUDGMENT OF SECOND AMENDED COMPLAINT

INTRODUCTION

Plaintiffs, ten African-American Special Agents currently or

formerly employed by the United States Secret Service (“Secret

Service” or “defendant”), allege that since 1993 they have

suffered from a pattern and practice of discrimination based on

race regarding the terms and conditions of their employment. On

March 30, 2006, and July 7, 2006, this Court issued decisions

clarifying the claims which could be pled in this case. These decisions specifically provided that plaintiffs could seek to

plead non-promotion claims “dating back to 1993" and “building

block claims” dating back to 1999. See Memorandum Opinion and

Order, July 7, 2006 [Docket # 358], (“July 2006 Mem.”) at 2, 12;

Memorandum Opinion and Order, March 30, 2006 [Docket # 312], (“Mar. 2006 Mem.”) at 3, 16. Consistent with these decisions,

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 10 of 29
the Court ordered plaintiffs to submit a second amended complaint. 2
On August 7, 2006, plaintiffs filed their Second Amended and Supplemental Class Complaint, individually and on behalf of a putative class of Secret Service African-American Special Agents. Second Amended and Supplemental Class Complaint (“Second Amended Complaint” or “2d Am. Compl.”) [Docket # 362]. This Complaint, however, suffers from a number of defects which render significant portions of it subject to dismissal.
First, the Second Amended Complaint alleges that discrimination exists in regard to testing applicants for hire to the Secret Service, the entry grade level at which new agents are hired, discipline imposed, and assignment to undercover work. See 2d Am. Compl. ¶¶ 2, 82, 84 (testing); ¶¶ 2, 10, 13, 83-86, 97(c), 108, 114 (hiring); ¶¶ 2, 62-66 (discipline); ¶¶ 2, 87-90 (undercover assignments). In regard to each of these claims, however, plaintiffs fail to present a pleader entitled to relief. Thus, these portions of the Second Amended Complaint are defective and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failing to state a claim and/or lack of standing.
Second, the Second Amended Complaint presents this Court
2 Among the enumerated claims which this Court said could be pled dating back to 1999 were claims concerning hiring, testing, discipline, and assignments, including undercover assignments. July 2006 Mem. at 3, 13-14.
2

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 11 of 29
with claims which are moot or were withdrawn during the administrative process. Third, plaintiff Robertson raises only one claim, which is subject to dismissal.
The foregoing claims should be dismissed or, alternatively, defendant is entitled to summary judgment on these claims. Additionally, plaintiff Robertson should be dismissed form the case.
ARGUMENT I. Claims for Which No Plaintiff Alleges
Injury Should Be Dismissed. On July 7, 2006, this Court ordered plaintiffs to file an amended complaint consistent with its ruling regarding exhausted and vicariously exhausted claims. With respect to certain “building blocks” for promotion, such as testing, entry level grade at time of hiring, discipline, and undercover work, this Court stated that “[t]hese alleged practices are reasonably related to a non-promotion class claim and may be vicariously exhausted.” Id. at 16 (emphasis added). However, this Court recognized that the doctrine of vicarious exhaustion must be invoked by a plaintiff. Id. at 12. This doctrine does not exist in the abstract to allow a group of plaintiffs to raise claims, even in a class action, for which none of them suffered an injury. With respect to the Second Amended Complaint, there is no
3

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 12 of 29
plaintiff for several claims this Court has allowed to be pled. Although plaintiff John Turner’s class complaint raises claims concerning testing, entry level grade at time of hiring, discipline, and undercover work, July 2006 Mem. at 16, he did not allege, either administratively or in the Second Amended Complaint, that he had suffered any injury in any of these areas during the permissible time period. Defendant is aware of no authority for the untenable proposition that plaintiff Turner can vicariously exhaust claims for which no plaintiff is identified. Lacking a named plaintiff who has been harmed in these areas, these claims, which the Court said it would allow plaintiffs to plead, should now be dismissed under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. These same claims should also be dismissed under Federal Rule of Civil Procedure 12(b)(1), as the plaintiffs in this case lack standing to bring claims concerning matters about which none of them have suffered a harm.
A. Legal Standards Pursuant to Federal Rule of Civil Procedure Rule 8(a), a pleading shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. A claim which fails to show that the pleader is entitled to relief may be dismissed for failure to state a claim on which relief may be granted. Fed. R. Civ. P. 12(b)(6).
4

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 13 of 29
Additionally, a plaintiff who brings a claim must have standing to invoke the jurisdiction of the federal courts. Standing requires a plaintiff to show that he “(1) has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Standing rules are equally applicable in putative class actions. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982); East Texas Motor Freight Systems, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977). Both Falcon and Rodriguez clearly establish that the “class representative [must] be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at 156; Rodriguez, 431 U.S. at 403. Under Falcon and Rodriguez, it is well settled that an individual plaintiff who seeks to bring a class claim of discrimination must make a factual showing that he was harmed by the practices complained of in the class claim portion of the complaint. See generally, Holsey v. Armour and Co., 743 F.2d 199 (4th Cir. 1984) cert. denied, 470 U.S. 1028
5

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 14 of 29
(1985). As the Supreme Court made clear, the fact that: a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n.20 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)). “It is not enough that the conduct of which the plaintiff complains will injure someone.” Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (emphasis in original). Rather, the complaining party must have been concretely injured by the conduct alleged to have been wrongful. Id.
B. Claims Concerning Testing In the Second Amended Complaint, plaintiffs allege that “[t]hroughout the class period, the Secret Service has discriminated against African-Americans by administering an invalidated civil service exam called the Treasury Enforcement Exam (“TEA”) . . . .”3 2d Am. Comp., Section D, ¶ 82. Under this Court’s July 2006 decision, claims concerning testing can be pled only “dating back to 1999.” Id. at 2-3. However, not one of the ten plaintiffs in this case claims that from 1999 forward he or she was discriminated against in connection with the TEA. See 2d
3 The correct name for this examination is the “Treasury Enforcement Agents Examination,” generally referred to as the “TEA”.
6

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 15 of 29
Am. Comp., Section D. Recognizing the defect in their pleading in regard to the
TEA –- the lack of a plaintiff -- plaintiffs refer to claims which they admit are time-barred. 2d Am. Comp. ¶ 84. For example, plaintiffs’ discussion of plaintiff Harris’s time-barred alleged experience with the TEA cannot cure this defect.4 The recitation of claims which this Court has said may not be pled changes nothing. Not one plaintiff claims that from 1999 on he or she has been the victim of discrimination in regard to the TEA. This omission is fatal, and thus plaintiffs have failed to state a claim upon which relief may be granted with respect to the TEA.
Plaintiffs also lack standing to bring a claim concerning the TEA or to represent a supposed class of others who were allegedly harmed through any purported discrimination in regard to the TEA. As discussed above, named plaintiffs have no standing to allege injury on behalf of “other, unidentified members of the class” if they have not suffered any personal injury from the claim advanced. Warth, 422 U.S. at 502. Because no plaintiff claims that from 1999 on he or she has been harmed in regard to the TEA, there is no relief to grant, and the claim
4 Plaintiffs also refer to plaintiffs Hendrix and Tyler failing the TEA but do not allege that this result was the product of discrimination. 2d Am. Compl., ¶ 84. Plaintiffs also do not claim that these events are within the permissible time period for raising claims. Id.
7

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 16 of 29
concerning discrimination in regard to the TEA should be dismissed.
C. Claims Concerning Grade at Time of Hiring Plaintiffs claim that defendant allegedly hired AfricanAmerican Special Agents at a lower grade level than “their white counterparts.” 2d Am. Compl., Section D, ¶¶ 82-86. However, the only claim concerning this allegation which is said to have occurred from 1999 on is moot.5 Plaintiff Simms alleges that in 2002 she was hired as a GS-5 when she should have been hired as a GS-9. 2d Am. Compl., ¶ 85. Actually, Simms was offered a GS-5 based on her initial application with the Secret Service, but she was informed in that offer that she could take advantage of one opportunity to provide additional information if she believed that the grade level proposed was incorrect. Ex. 3. Simms provided additional information regarding her qualifications, and she was appointed as a GS-7 based on this additional documentation.6 Ex. 4. After her appointment Simms further challenged her grade level at hire,
5 Plaintiffs allege that “[s]ix of the ten named Plaintiffs were discriminated against in their initial hire to the Secret service.” 2d Am. Compl., ¶ 84. Plaintiffs then concede that the claims of those six –- plaintiffs Harris, Summerour, Hendrix, Turner, Ivery and Rooks – are time barred under this Court’s decisions. Id.
6 Simms’ allegation that she received her GS-7 as a result of filing a grievance is simply wrong. Compare 2d Am. Compl., ¶ 85 with Exs. 4 and 8, block 6.
8

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 17 of 29
and she was informed by the Personnel Division that any additional request for a higher grade had to be submitted as a grievance. Ex. 7.
On March 8, 2003, Simms submitted a grievance regarding her appointment at GS-7. Ex. 8, p. 1. As a result of additional documentation that Simms submitted with her grievance, which she did not submit at the time of her appointment, her grade level was changed to GS-9. As relief for the grievance, Simms was promoted to the GS-9 level retroactive to the first day of the first pay period after she filed her grievance. Ex. 8, p. 2. Following the filing of another grievance, the effective date of this retroactive promotion was subsequently changed to September 22, 2002, the first day of the first pay period after she submitted the additional information. Ex. 9, p. 4. Simms was also granted a retroactive promotion to GS-11 effective September 21, 2003. Id.
The foregoing demonstrates that Simms’ situation was resolved in 2003; therefore, this claim of discrimination is moot and should be dismissed. Plaintiff Simms has no harm to be remedied, since she was provided relief retroactive to the earliest possible effective date on which the information was available to the Secret Service. There is nothing left here for the Court to fix because defendant resolved the situation on its own in 2003. E.g., Southern Co. Services, Inc. v. FERC, 416 F.3d
9

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 18 of 29
39, 43 (D.C. Cir. 2005) (“mootness [] is a ‘threshold jurisdictional issue.’”); Beethoven.Com LLC v. Librarian of Congress, 394 F.3d 939, 950 (D.C. Cir. 2005) (court not empowered to decide moot issues which cannot affect the matter at issue in the case before it).
Consequently, plaintiffs’ claims concerning the grade level at time of hiring should be dismissed because there is no pleader with any actual unresolved complaint of alleged discrimination concerning the grade level at hiring with a claim dating back no earlier than 1999.
D. Claims Concerning Discriminatory Discipline Plaintiffs allege that they have been subjected to discrimination in regard to disciplinary action in that “AfricanAmerican Special Agents are selected for discipline more frequently than their white counterparts. When selected for discipline African-American Special Agents are punished more harshly than similarly situated white Special Agents.” 2d Am. Compl., Section B, ¶ 64. Having made this allegation, however, plaintiffs do not present this Court with even one allegation of discrimination in disciplinary action which is said to have occurred from 1999 forward. See 2d Am. Compl., Section B, ¶¶ 6267. Federal law provides that disciplinary actions include suspensions, demotions and removals. See 5 U.S.C. § 75; 5 C.F.R.
10

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 19 of 29
§ 752. Defendant’s disciplinary policy expands this definition to include letters of reprimand. Ex. 1, p. 2.
Although the ten plaintiffs in this case claim that there is discrimination in regard to the selection for and imposition of discipline, not one of the ten plaintiffs complain that they have been the subject of a disciplinary action –- a letter of reprimand, suspension, demotion or removal -- dating back to no earlier than 1999. Rather, they discuss the suspensions of plaintiffs’ Hendrix and Harris but concede that these actions occurred “prior to the liability period of this litigation.” 2d Am. Compl., ¶ 64.
In paragraph 65 plaintiffs also allege that the Secret Service failed to adequately discipline white Special Agents who attended the “Good Ol’ Boys Roundup.” It is undisputed, however, that the Good Ol’ Boy Roundup was an annual event held from 1980 through 1995. See Docket No. 221, Ex. 1 at 3 (PL-0004). Thus, any claims concerning discipline with respect to this event clearly predate the liability time-frame established by this Court and should be dismissed.
The only plaintiff to attempt to raise a claim connected to discipline is plaintiff Robertson, who alleges that she was the victim of discrimination when she was placed on administrative leave and thought that she might be proposed for removal from employment with the Secret Service. 2d Am. Compl., ¶ 67. Such
11

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 20 of 29
action, however, does not qualify as discipline. See 5 U.S.C. § 75; 5 C.F.R. § 752; Ex. 1, p. 2. Thus, plaintiff Robertson’s claims cannot fulfill plaintiffs’ obligation to identify a plaintiff who has suffered an injury in regard to discipline during the permissible time frame.
Because plaintiffs have presented no claims of discriminatory discipline from 1999 forward, their allegation concerning discrimination in regard to discipline should be dismissed for failure to state a claim and for lack of standing. Certainly a class could not form around a claim without a claimant. See supra at 5-7.
E. Claims Concerning Assignments to Undercover Work Plaintiffs allege discrimination in regard to assignments in general and, in particular, assignments to undercover work. 2d Am. Compl. Section E, ¶¶ 2, 87-91. Defendant moves to dismiss the claims concerning assignments to undercover work. According to plaintiffs, African-Americans are assigned to undercover work more frequently than other Special Agents, and these undercover assignments slow the progress of AfricanAmerican Special Agents toward promotion to the supervisory ranks. 2d Am. Compl., Section E, ¶ 88. However, despite plaintiffs’ statements that there is discrimination in regard to assignment to undercover work, plaintiffs have been unable to produce even one African-American Special Agent who complains
12

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 21 of 29
about discrimination in connection with having to perform undercover work dating back to no earlier than 1999.7 2d Am. Compl. ¶¶ 87-91.
Rather, in a weak attempt to address this defect, plaintiff Camilla Simms alleges that in 2005 she was “asked to complete an undercover assignment” even though she was pregnant. Id. at ¶ 89. Tellingly, Simms does not allege that she was assigned to the undercover duty about which she complains, nor does she allege that she in fact worked that undercover assignment. Id. In fact, she did not. Ex. 2, ¶ 3. Simms also does not allege any adverse consequences from her declining the request. 2d Am. Compl., ¶ 89. A mere request to work a particular assignment is not an adverse action under Title VII when no objective tangible harm is associated with such a request. Brown v. Brody, 199 F.3d at 457. Thus, Simms’ claim regarding undercover work fails to state a claim under Title VII and cannot serve as a springboard for any unidentified class members to complain about undercover assignments actually performed.
In short, and once again, not one of the ten plaintiffs is complaining that he or she was personally “assigned” to perform undercover work during the allowable time period, and thus there is no allegation that assignment to undercover work during the
7 Plaintiffs cite to claims by Moore, Summerour and Ivery regarding undercover assignments but do not allege that these assignments occurred within the time-frame of possible liability set by this Court. See 2d Am. Compl., ¶ 88.
13

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 22 of 29
relevant time-frame slowed any plaintiff’s progress to promotion. Accordingly, plaintiffs have failed to state a claim of discrimination in regard to assignment to undercover work and lack standing to bring any such claim.
F. Claims Concerning Discrimination in Regard to Promotion to the SES
At paragraph 16 of the Second Amended Complaint, plaintiffs allege that “[f]rom 1993, continuing ... the named Plaintiffs and the Plaintiff class have been discriminated against in selections for competitive promotions ranked GS-14, GS-15, and SES.” Yet, not one plaintiff in this case alleges discrimination in regard to non-selection into the SES. See 2d Am. Comp., ¶¶ 16-61.
In addition, plaintiffs repeatedly refer to discrimination in regard to promotions made through the Merit Promotion Process (MPP). 2d Am. Comp. ¶¶ 16-61. SES promotions, however, are not made through the MPP, and MPP scores are not used in the process. Exh. 14, ¶ 5. Rather, the selection process for the SES is separate, apart and unrelated to the MPP process. Id. at ¶¶ 2-5. Therefore, it cannot be said that timely filed claims in regard to GS-14 and or GS-15 selections made through the MPP process are like or related to SES promotion claims. As the same process is not in play with respect to SES claims, such claims cannot be said to have been vicariously exhausted by any of plaintiffs’ claims in this case.
Again, as there is no plaintiff claiming that he or she was 14

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 23 of 29
harmed by not being promoted to the SES, there is nothing to remedy. The claim in regard to SES promotions fails to state a claim, and these plaintiffs lack standing to bring such a claim.
III. Any Claims Withdrawn in the Administrative Process Must Be Dismissed.
Plaintiffs Robertson, Harris and Moore seek, years later, to challenge claims they pursued administratively but withdrew before the administrative process had been completed. A clearer case of “gotcha” is hard to imagine. Having led defendant to believe that these claims were no longer at issue by withdrawing them, these plaintiffs now seek to pursue those abandoned claims. This should not be permitted, and the claims listed below should be dismissed.
A. Plaintiff Harris’s GS-14 Claims Plaintiff Andrew Harris alleges discrimination in regard to non-selection to the GS-14 level from January 1999 through October 1999. 2d Am. Compl. ¶¶ 59-61. Harris contacted an EEO Counselor in regard to this same matter in or about October of 1999. Harris, however, withdrew this claim during the same time period. Ex. 12, ¶ 3. As Harris withdrew his complaint, id., and was promoted to a GS-14 in 1999, 2d Am. Compl. ¶ 57, he should not now, seven years later in 2006, be allowed to change his mind and revive this stale claim through the theory of vicarious exhaustion. For this reason, plaintiff Harris’s GS-14 claims should be dismissed.
15

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B. Plaintiff Robertson Plaintiff Robertson’s only complaint concerns being placed on administrative leave for a period of time. See supra at 12. Not only does this claim fail to state a claim, but it also was withdrawn in the administrative process. Robertson contacted an EEO Counselor on or about January 21, 2003, concerning this same matter and “withdrew” her EEO complaint in writing on February 27, 2003. Exs. 10 & 11. She should not be allowed, three years later, to revive this abandoned claim through the theory of vicarious exhaustion. For this reason, in addition to the reasons previously given, plaintiff Robertson’s claim should be dismissed.
C. Plaintiff Moore Plaintiff Moore filed an administrative complaint concerning a single non-promotion to the GS-14 level, vacancy number 99–089. Ex. 16. In the administrative process, Plaintiff Moore specifically withdrew all other promotion claims which he might have sought to bring. Ex. 15 ¶¶ 5-9 & attached notes to that declaration. Upon receipt of his formal administrative complaint, the EEO Specialist assigned to Plaintiff Moore’s case asked him if he were seeking to contest other non-promotions beyond vacancy 99–089. Id. Plaintiff Moore said that he was not. Id. at ¶ 7. By letter dated November 16, 1999, Plaintiff Moore and his
16

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attorney were advised that the issue accepted for investigation was whether Plaintiff Moore was discriminated against when:
On July 16, 1999 the complainant was not selected for the position of Assistant to the Special Agent in Charge, GS1811-14, announced under vacancy announcement #99-089. The letter further stated: If you disagree with the issue(s), please notify me in writing within five days of receipt of this letter. Please be clear and concise in your response. If no response is received, I will assume that you agree with the issue(s) and will proceed with the investigation of the complaint. Ex. 15 at ¶¶ 7 and 9; and Ex. 16. Plaintiff Moore did not disagree with the accepted issues. Yet now, almost seven years later, Plaintiff Moore seeks to challenge his non-promotion to all positions for which he bid for promotion from 1999 through 2002, the date of his promotion to the GS-14 level. 2d Am. Compl. ¶ 29. As with plaintiff Harris, having led defendant to believe that no other non-promotion claims were at issue, when Plaintiff Moore withdrew any such claims at the time of his administrative complaint, Exh. 15 at ¶ 7, Plaintiff Moore now seeks to pursue those abandoned claims. This should not be permitted, and the unexhausted abandoned nonpromotion claims should be dismissed. IV. Plaintiff Robertson Should be Dismissed as a Plaintiff. This Court allowed plaintiffs to plead claims concerning non-promotion, and the “building blocks” to promotion, consisting of discipline, assignments, awards and bonuses, training,
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testing, and hiring. However, plaintiff Robertson’s only claim concerning placement on administrative leave, and fear that she would be fired, does not match any of these categories. Robertson has never applied for promotion to the GS-14 level; therefore she does not have a claim of non-promotion. She does not allege that she suffered from any barriers at the time of hiring, including the TEA or entry level grade; and, she does not complain of unfairness in receipt or non-receipt of assignments. See generally 2d Am. Compl.
In short, Robertson has no viable claim, exhausted vicariously or otherwise, that can come before this Court. Her only individual complaint is her placement on administrative leave, and she withdrew this complaint in the administrative process. Ex. 11. Her placement on administrative leave is not one of the subject types of claims that this Court said could be pled as a vicariously exhausted claim, and even if it were, Robertson has not alleged any concrete or even speculative harm that has befallen her from this action. See 2d Am. Compl., ¶ 67 (she “does not know” whether the action she complains about “will adversely affect her in the competitive promotion process.”). Thus, Robertson should be dismissed as a plaintiff in this case.
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CONCLUSION For the foregoing reasons, defendant respectfully submits that this motion to dismiss in part or, in the alternative, for partial summary judgment be granted.
Respectfully submitted,
KENNETH L. WAINSTEIN, D.C. BAR #451058 United States Attorney RUDOLPH CONTRERAS, D.C. BAR # 434122 Assistant United States Attorney BENTON G. PETERSON, Wis. BAR # 1029849 MARINA UTGOFF BRASWELL, D.C. BAR #416587 Assistant United States Attorneys U.S. Attorney’s Office 555 4th Street, N.W. - Civil Division Washington, D.C. 20530 (202) 514-7226 Of Counsel: Edith Shine, Esq. U.S. Secret Service Office of Chief Counsel
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

)

v.

)

)

)

MICHAEL CHERTOFF, Secretary

)

U.S. Department of Homeland

)

Security,

)

)

Defendant.

)

___________________________________)

Civil No. 00-953 (RWR/DAR)

ORDER

Upon consideration of defendant’s partial motion to dismiss

or, in the alternative, for partial summary judgment, plaintiffs’

opposition, and the entire record, and it appearing to the Court that the grant of defendant’s motion would be just and proper, it

is hereby

ORDERED that defendant’s partial motion to dismiss or, in

the alternative, for partial summary judgment be, and it is,

granted; and it is further ORDERED that plaintiffs’ claims concerning testing, grade at

time of hiring, discipline, assignments to undercover work and

non-promotion to the SES shall be, and are, dismissed with

prejudice; and it is further

ORDERED that plaintiff Harris’s GS-14 claims shall be, and

are, dismissed with prejudice; and it is further

ORDERED that plaintiff Moore’s non-promotion claims other

Case 1:00-cv-00953-RWR -DAR Document 370 Filed 09/20/06 Page 29 of 29
than the claim concerning vacancy announcement 99-089 shall be, and are, dismissed with prejudice; and it is further
ORDERED that plaintiff Robertson shall be dismissed from the case.
UNITED STATES DISTRICT JUDGE
Benton G. Peterson Marina Utgoff Braswell Assistant United States Attorneys U.S. Attorney’s Office Judiciary Center Building 555 4th Street, N.W. Washington, D.C. 20530
John P. Relman, Esq. Reed N. Colfax, Esq. Jennifer I. Klar, Esq. Relman & Associates, P.L.L.C. 1225 Nineteenth St., N.W., Suite 600 Washington, D.C. 20036
E. Desmond Hogan, Esq. Deborah L. Boardman, Esq. Sarah Berger, Esq. Hogan & Hartson LLP 555 13th Street, N.W. Washington, D.C. 20004

 
 Case 1:00-cv-00953-RWR -DAR Document 376 Filed 10/18/06 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

REGINALD G. MOORE, et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No. 00-953 (RWR/DAR)

)

MICHAEL CHERTOFF

)

SECRETARY, U.S. DEPARTMENT OF )

HOMELAND SECURITY,

)

)

Defendant.

)

)

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND/OR FOR PARTIAL SUMMARY JUDGMENT
OF THE SECOND AMENDED COMPLAINT [DOCKET NO. 370]

Plaintiffs hereby oppose the third motion to dismiss Defendant has filed in this

matter. Defendant makes two categories of argument, both of which easily fail.

First, Defendant argues that claims that this Court has ruled over and over again

are vicariously exhausted should be dismissed for failure to exhaust if the Plaintiffs’

entirely unnecessary administrative filing was flawed or withdrawn. Defendant provides

no legal support for this argument, and there is none: the law is clear that Plaintiffs have

administratively exhausted all their claims.

Second, Defendant argues that several of Plaintiffs’ claims are subject to

dismissal because no Plaintiff alleges injury resulting from the discriminatory conduct.

Defendant’s positions cannot withstand legal analysis. Defendant confuses and conflates

the legal concepts of standing, mootness, and adequacy of class representatives – and gets

none of them right. In making his arguments, Defendant ignores the well-established law

1
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of the Supreme Court, this Circuit and this District and ignores key facts in the record. Each of Defendant’s arguments fail.
The Court should reject Defendant’s specious arguments and allow this case to move forward toward the completion of discovery and trial.
PROCEDURAL HISTORY On May 3, 2000, Plaintiffs filed this class action against the United States Secret Service. The complaint alleged that from at least January 1, 1974, Defendant engaged in discriminatory personnel policies relating to, among other things, the selection of Special Agents for competitive positions of GS-14 and above, access to the building blocks of promotion, the maintenance of a racially hostile work environment, and retaliation against Special Agents seeking to pursue their rights under Title VII. Defendant filed his first motion to dismiss on July 5, 2000 (“July, 2000 Motion to Dismiss”). Defendant argued, in part, that (1) Plaintiffs’ claims had not been administratively exhausted as the class administrative complaint had not pended before the EEOC for 180 days and (2) that many of Plaintiffs’ claims were untimely as Plaintiffs had not contacted an EEO counselor within 45 days of each discriminatory act. On October 24, 2004, this Court found that one Plaintiff, Reginald Moore, had exhausted his claims with the EEOC and that the exhaustion of his claims also vicariously exhausted the non-promotion claims of Plaintiffs Turner, Summerour, Tyler, and Ivery. The Court further found that the Plaintiffs’ claims that were based on their Second Amended Class Action Complaint to the EEOC (“Plaintiffs’ Administrative Complaint”) must be dismissed without prejudice because they had not completed the 180-day administrative exhaustion period before the action was filed in federal court.
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In November 2004, Plaintiffs refiled their Administrative Complaint with the EEOC and allowed it to pend for 180 days. On May 31, 2005, Plaintiffs filed their Motion to Amend and Supplement Complaint to reintroduce the dismissed claims that were now properly exhausted. In response, Defendant opposed Plaintiffs’ motion to amend, arguing that the proposed amendment should be denied as futile because many of the claims would be subject to a motion to dismiss as unexhausted.
On March 30, 2006, this Court ruled on Plaintiffs’ Motion to Amend and Supplement Complaint, rejecting the Defendant’s futility argument and finding that Plaintiffs’ class claims concerning discriminatory non-promotion and discrimination with regard to the “building blocks” of promotion were now properly exhausted.
The parties filed cross motions to reconsider. On April 14, 2006, Defendant filed his Motion for Reconsideration in Part and for Clarification, arguing that this Court’s March 30, 2006 Order was wrongly decided and all “building block” claims were not exhausted. Defendant asked for “clarification” that non-promotion claims could only be pled from September 11, 19991 to May 3, 2000. On April 17, 2006, Plaintiffs filed their Motion to Reconsider a Portion of the Court’s March 31, 2006 Order on Plaintiffs’ Motion to Amend and Supplement Complaint, arguing that Plaintiffs had properly pled a continuing violation and could bring non-promotion claims dating back to 1993.
On May 1, 2006, Plaintiffs filed their First Amended and Supplemental Class Complaint, including only the non-promotion and “building block” claims that this Court specifically allowed in its March 30, 2006 Order. Plaintiffs did not plead, for example, hostile work environment claims that were included in Plaintiffs’ May 2000 Complaint. Plaintiffs only pled post-1998 non-promotion claims, removing several claims—and
1 In his Reply, Defendant changed this date to July 2, 1999.
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several Plaintiffs—included in Plaintiffs’ May 2000 Complaint. Defendant filed his motion to dismiss the First Amended and Supplemental Complaint on May 31, 2006 (“May, 2006 Motion to Dismiss”).
On July 7, 2006, this Court ruled on the parties’ cross motions to reconsider the Court’s March 30, 2006 Order. With respect to promotions, the Court granted Plaintiffs’ motion to reconsider and ruled that Plaintiffs had properly pled a continuing violation and could plead claims of non-selection dating from 1993 and subsequent. The Court once again ruled that Plaintiffs had exhausted “building block” claims, and ruled that Plaintiffs could plead such claims from 1999 and subsequent. The Court denied Defendant’s May, 2006 Motion to Dismiss without prejudice and ordered Plaintiffs to file a Second Amended Complaint by August 7, 2006.
On August 7, 2006, Plaintiffs filed their Second Amended and Supplemental Class Complaint. The only substantive changes from the First Amended and Supplemental Class Complaint were as follows: (1) Plaintiffs pled non-promotion claims from 1993 to the present, rather than from 1999 to the present; and (2) Plaintiffs removed all “building block” claims prior to 1999.
Defendant filed the instant Motion for Partial Dismissal and/or for Partial Summary Judgment2. of the Second Amended Complaint on September 20, 2006 (“September, 2006 Motion to Dismiss,” or “Defendant’s Motion”).
2 Defendant does not distinguish between his motion to dismiss and motion for summary judgment. Defendant’s motion for summary judgment is made prematurely. Defendant requested of Plaintiffs an extension of the discovery period, and non-expert discovery now ends February 2, 2007. Defendant has not finished producing discovery requested in May and June, 2006 on claims on which he now moves for summary judgment.
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ARGUMENT I. Defendant Offers No Support for His Position that “Any Claims Withdrawn
in the Administrative Process Must Be Dismissed.” This Court has twice ruled that Plaintiff Turner vicariously exhausted claims of discrimination in promotion and the “building blocks” of promotion. Thus, by definition Plaintiffs and class members need not independently exhaust their claims, because Plaintiff Turner already has exhausted their claims for them. This Court’s rulings on the scope of Plaintiff Turner’s vicarious exhaustion means that no other Plaintiff or class member needs to have individually exhausted his or her claims. Yet, inexplicably, Defendant argues that “any claims withdrawn in the administrative process must be dismissed.” Def.’s Mem. at 15-17. Defendant appears to suggest that a claim ruled vicariously exhausted is not viable if the Plaintiff filed, but did not independently exhaust the claim. Defendant, however, does not offer a single shred of legal support – no regulation, no case law – for his position because he cannot: Defendant’s position is unsupportable. A. Plaintiff Harris’ GS-14 Non-Selection Claim. Plaintiff Harris complains of discriminatory non-promotion to GS-14 during 1999. Plaintiffs are at a loss to understand how Defendant can argue that these claims are not exhausted when this Court has three times issued crystal clear rulings that nonpromotion claims are vicariously exhausted, both by Plaintiff Moore and by Plaintiff Turner. See Oct. 24, 2004 Op. at 25-26; Mar. 30, 2006 Op. at 12; July 7, 2006 Op. at 15. Plaintiff Harris did not have to file an EEO complaint at all in order to bring these claims in federal court. That he withdrew his entirely unnecessary EEO claim is inapposite.
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B. Plaintiff Robertson’s Discipline Claim Defendant claims that because Plaintiff Robertson withdrew her EEO complaint, her claim must be dismissed. Def.’s Mem. at 16. This is wrong. Because this Court ruled that Plaintiff Turner vicariously exhausted the “building block” of “discriminatory disciplinary policies or practices,” Mar. 30, 2006 Op. at 2, 13, 15; July 7, 2006 Op. at 2, 16, 18, Plaintiff Robertson—and any class member with a claim of discriminatory discipline—need not have individually exhausted an EEO complaint.3 Indeed, Plaintiff Robertson need not have filed an EEO complaint at all, as Plaintiff Turner vicariously exhausted her claim. C. Plaintiff Moore’s 1999 Non-Selection Claims. Next, Defendant argues that Plaintiff Moore has only exhausted one of the 47 positions he applied for before filing his EEO complaint in 1999. 4 This Court has three times rejected Defendant’s argument. In his October 24, 2004 Order on Defendant’s Motion to Dismiss, Judge Roberts held that Plaintiff Moore’s administrative complaint vicariously exhausted all the nonpromotion claims of Plaintiffs Turner, Summerour, Ivery, and Tyler. See Oct. 24, 2004 Op. 25-26. Yet, Defendant would allow Plaintiff Moore to pursue a claim as to only a single non-selection. If Plaintiff Moore vicariously exhausted the claims of other Plaintiffs, surely he vicariously exhausted his own claims. Moreover, each of Plaintiff Moore’s 187 non-promotion claims are independently exhausted via the administrative complaint of Plaintiff Turner. Judge Robert’s March 30, 2006 Order held that Plaintiff
3 Defendant’s argument that Plaintiff Robertson’s claim does not constitute “discipline” is addressed infra at Section II(C). 4 Defendant cannot suggest that any purported limitation of Plaintiff Moore’s EEO complaint affected nonselections occurring thereafter.
6
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Turner vicariously exhausted all post-1998 non-promotion claims and his July 7, 2006 Order held that Plaintiff Turner vicariously exhausted all non-promotion claims from 1993 to the present. See Mar. 30, 2006 Op. at 12, 14; July 7, 2006 Op. at 12. Thus, even if Plaintiff Moore’s claims had been limited by his own administrative filing—which they were not —they are not so limited after this Court’s March 30, 2006 Order. II. Defendant’s Arguments as to “Lack of Injury” Fail.
A. Plaintiff Simms May Bring a Claim of Discriminatory Assignment to Undercover Work. 1. Plaintiff Simms has Standing to Challenge Discriminatory Assignment to Undercover Work.
In order to suggest that Plaintiff Simms does not have standing to challenge discriminatory assignment to undercover work, Defendant must ignore applicable Supreme Court and D.C. Circuit precedent. Defendant argues that Plaintiffs’ claims of discriminatory undercover assignments should be dismissed because Plaintiffs failed to produce a Plaintiff who complains of discriminatory assignment to undercover work. Def.’s Mem. at 12-14. While Defendant’s failure to cite any legal authority renders his argument far from clear, Defendant appears to argue that Plaintiff Simms lacks standing to challenge discriminatory assignment to undercover work because she did not suffer an “injury in fact” as she was subject to a “mere request” to work an undercover assignment. Id. at 13. Defendant’s argument cannot withstand legal analysis.
Defendant’s argument must be denied because Plaintiff Simms is clearly an “aggrieved” party under the liberal threshold standing requirement of Title VII. See 42 U.S.C. § 2000(e-5)(f)(1)(2006); see, e.g., Gray v. Greyhound Lines, E., 545 F.2d 169, 176 (D.C. Cir. 1976) (“‘The use . . . of the language ‘a person claiming to be aggrieved’ shows a congressional intention to define standing as broadly as is permitted by Article
7
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Case 1:00-cv-00953-RWR -DAR Document 376 Filed 10/18/06 Page 8 of 23
III of the Constitution.’”) (quoting Hackett v. McGuire Bros., 445 F.2d 442, 446 (3d Cir.
1971)). A plaintiff satisfies Title VII’s standing requirement when it demonstrates that
“(1) it has suffered an ‘injury in fact’ . . . ; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” E.g., Cleveland Branch,
NAACP v. City of Parma, Ohio, 263 F.3d 513, 523-24 (6th Cir. 2001) (citing Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)) (citation and
internal quotation marks omitted). Defendant appears only to challenge the first element
of standing, that Plaintiff Simms did not have an “injury in fact” because she did not complete the undercover assignment.5
Plaintiff Simms’ emotional injury resulting from Defendant’s discrimination
clearly constitutes an injury in fact. Plaintiff Simms suffered emotional injury, as she
knew she received this dangerous assignment while seven months pregnant because of her race. 2d. Am. Compl. at ¶¶ 89, 104; Ex. A (Simms Decl.). Plaintiff Simms knew that
the only other pregnant woman in Chicago Field Office history was white and in stark
contrast to Simms’ treatment, received accommodation during her pregnancy. Id. at ¶ 89;
Ex. A (Simms Decl.) at ¶ 5. Plaintiff Simms’ injury is both “(a) concrete and
5 Plaintiff Simms clearly also meets the second and third elements of Title VII standing. With respect to the second element, Plaintiff Simms’ injury is fairly traceable to the challenged action of the defendant. See Zivotofsky ex. rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 618 (D.C. Cir. 2006) (finding that when plaintiff is the object of government action himself, “there is ordinarily little question that the action . . . has caused him injury”) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992)). With respect to the final element, Plaintiff Simms is able to demonstrate that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” Parma, 263 F.3d at 524 (citations omitted), that encourages Defendant to “discontinue current violations” and deters him from “committing future ones.” Laidlaw, 528 U.S. at 186. Plaintiff Simms’ emotional distress would be addressed if the court bars Defendant from engaging in the unequal treatment of African-American Special Agents. She would then be able to work in an “environment free of racial intimidation” and the other injuries that accompany discrimination. See Gray, 545 F.2d at 176 (citations and internal quotation marks omitted).
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particularized and (b) actual or imminent, not conjectural or hypothetical.” E.g., Parma, 263 F.3d at 523; see also Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152 (1970); Zivotofsky ex. rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 619 (noting that the “violation of an individual right conferred on a person by statute” can itself meet the injury requirement); Heckler v. Mathews, 465 U.S. 728, 729 (1984) (finding that “discrimination itself, . . . by stigmatizing members of the disfavored group as ‘innately inferior’ . . . can cause serious non-economic injuries” for purposes of the standing requirement). Plaintiff Simms’ emotional injury presents a more direct, actual, and concrete example of injury than the “psychological injury” African-American plaintiffs suffered in Gray as a result of the employer’s discrimination against other AfricanAmericans. See, e.g., Gray, 545 F.2d at 173-76 (recognizing injury resulting from “the effects of Greyhound’s allegedly discriminatory hiring policies on his treatment at work and on his own psychological well-being” even though Gray was in fact hired).
2. Plaintiffs’ Claim of Discriminatory Assignment to Undercover Work is Not Subject to Brown v. Brody.
Defendant’s reliance on Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999) ignores the plain language of the case: by its own terms Brody does not apply to pattern and practice cases such as this one. Relying on Brown v. Brody, Defendant suggests that Defendant’s racially discriminatory request that Plaintiff Simms conduct an undercover assignment while pregnant “is not an adverse action under Title VII” and therefore “fails to state a claim under Title VII and cannot serve as a springboard for any unidentified
9
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class members.” Def.’s Mem. at 13. The fact that this is a pattern and practice case
renders Defendant’s argument legally incorrect.6, 7
By its own terms, Brody does not govern pattern and practice cases. In Brody, the
plaintiff argued that any sort of personnel action that is undertaken by a federal employer
for a discriminatory reason is actionable under Title VII. For support, the Plaintiff
pointed to the following passage in Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987):
A plaintiff may bring a Title VII claim for alleged discrimination with respect to any employment decision . . . of the federal government. [Title VII covers] ‘all personnel actions’ [based on race, color, religion, sex, or national origin] regardless of whether the personnel action affects promotions or causes other tangible or economic loss.
Id. at 97-98 (citation omitted). Recognizing that Palmer’s language appeared to
conflict with Mitchell v. Baldrige, 759 F.2d 80 (D.C. Cir. 1985), McKenna v.
Weinberger, 729 F.2d 783 (D.C. Cir. 1984) and other cases in the Circuit, the
court reconciled Palmer with those decisions. Brody, 199 F.3d at 453-54. The
court explained that unlike the Palmer plaintiffs, the plaintiffs in Brody, Mitchell,
and McKenna alleged individual disparate treatment claims, not a pattern and
practice claim. Id. at 454. Because individual disparate treatment claims and
6 While Defendant has previously insisted that this is not a pattern and practice case, the Court expressly rejected Defendant’s contention in its July 7, 2006 Order. July 7, 2006 Op. at 7-8. 7 In addition, Defendant has waived this argument because it was not raised in Defendant’s May, 2006 Motion to Dismiss. Plaintiff pled no new claims of discriminatory assignment to undercover work in the Second Amended and Supplemental Class Complaint, as compared to the First Amended and Supplemental Class Complaint. Compare Am. Compl. 95-102 with 2d Am. Compl. 87-89. However, Defendant did not raise his Brown v. Brody argument in moving to dismiss the discriminatory assignment to undercover work claim in his May, 2006 Motion to Dismiss, relying exclusively on his standing argument. See Def.’s May, 2006 Mot. to Dismiss at 39-40. Thus, Defendant’s Brown v. Brody argument should be deemed waived. See, e.g., Gilmore v. Shearson/Am. Express, Inc., 811 F.2d 108, 112 (2d Cir. 1987), overruled on other grounds by McDonnell Douglas Fin. Corp. v. Pa. Power & Light Co., 849 F.2d 761 (2d Cir. 1988); SEC v. Lucent, No. 04-CV-2315, 2006 WL 2168789, at *4 n.2 (D.N.J. June 20, 2006); Sears Petroleum & Transp. Corp. v. Ice Ban Am. Inc., 217 F.R.D. 305, 307 (N.D.N.Y. 2003); Abbell Credit Corp. v. Bank of Am. Corp., No 01 C 2227, 2002 WL 335320, at *7 (N.D. Ill. Mar. 1, 2002); U.S. Fid. & Guar. Co. v. Jepsen, No. 90 C 6931, 1991 WL 249706, at *2 (N.D. Ill. Nov. 14. 1991); Keefe v. Derounian, 6 F.R.D. 11, 13-14 (N.D. Ill. 1946). But see El-Hadad v. Embassy of U.A.E., 69 F. Supp. 2d 69, 77 (D.D.C. 1999), rev’d on other grounds by El-Hadad v. U.A.E, 216 F.3d 29 (D.C. Cir. 2000).
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pattern and practice claims are “very different,” the Palmer holding that “‘all personnel actions . . . regardless of whether the personnel action affects promotions or causes other tangible or economic loss’” was not inconsistent with its holding or the Mitchell and McKenna holdings. Id (citation omitted). Accordingly, the Brody Court carefully limited its holding to cases alleging individual disparate treatment, expressly distinguishing pattern and practice cases.
Thus, Defendant’s argument that claims of discrimination in undercover assignments should be dismissed under Brody is wrong, because Brody does not apply to this putative class action in which Plaintiffs allege a pattern and practice of discrimination.
B. Plaintiffs’ Hiring and Testing Claims are Properly Before the Court. 1. Plaintiff Simms’ Hiring Claim is Not “Moot.”
Defendant’s argument that Plaintiff Simms’ hiring claim is “moot” ignores key facts in the record and well-established precedent. Defendant states that Plaintiff Simms’ hiring claim is “moot” because her “situation was resolved in 2003,” and thus there is “nothing left here for the Court to fix.” Def.’s Mem. at 9. Defendant’s factual statement is blatantly misleading: Plaintiff Simms’ ongoing experience of financial and emotional injury resulting from hiring discrimination demonstrates that her situation is far from “resolved.”
Plaintiff Simms has ongoing financial and emotional injuries resulting from Defendant’s discriminatory hiring practices. Defendant misleads the court by failing to disclose two facts. First, after filing four separate grievances8 and receiving four separate
8 Defendant quibbles that Plaintiff Simms’ first letter appealing her initial hiring grade did not constitute a “grievance.” Def.’s Mem. at 8 n.6. The fact is that Plaintiff Simms was hired as a GS-5 and only by her
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decisions, Defendant admits that Plaintiff Simms was granted, more than a year after she was hired, her GS-9 retroactive to September 22, 2002, not her date of hire, August 26, 2002. See Ex. B (Def.’s Statement of Material Facts filed May 31, 2006) at ¶ 1449; Def.’s Mot. to Dismiss Exs. 5-9; Ex. C (Aug. 6, 2003 Letter from C. Shepard10). Even Defendant admits Plaintiff Simms is still owed approximately one month of back-pay.
Second and similarly, Defendant admits that Plaintiff Simms’ time-in-grade for eligibility for career-ladder and competitive promotions is calculated from September 21, 2002, instead of August 26, 2002. Ex. B (Def.’s Statement of Material Facts filed May 31, 2006) at ¶ 144. Thus, she is always approximately one month behind in her annual promotions, and the accompanying increase in compensation. Her eligibility for competitive promotions will also be delayed.
Defendant lacks any basis to argue mootness when the issues remain “live,” and Plaintiff Simms retains a “legally cognizable interest” in being free from discriminatory hiring decisions and her ongoing financial and emotional injuries. See, e.g., County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)) (internal quotations omitted); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571-72 (1984) (rejecting mootness when the employees “have not been made whole” and the challenged action “continues to have adverse effects”); In re Curry, 470 F.2d 368, 371 (D.C. Cir. 1972) (denying mootness when plaintiff suffers “continuing collateral consequences which should be dispelled if . . . unlawful”); Jenkins v. United
own advocacy was that grade raised to a GS-7. Defendant’s semantic game does not change the substance of the facts. 9 Plaintiff relies on Defendant’s previous Statement of Material Facts because Defendant notably excluded this fact from the Statement of Material Facts he filed with the instant Motion. 10 “Simms” is Plaintiff Simms’ matrimonial surname. Her previous last name was “Shepard.”
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Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968) (rejecting mootness when plaintiff is offered and accepts a promotion subsequent to filing suit because of the suit’s “heavy overtones of public interest” and the need for an “injunction as a protection against a repetition of such conduct in the future”). Plaintiff Simms’ incomplete promotion to GS-9 clearly does not meet the heavy burden of proving the conditions necessary to moot a claim by voluntary cessation of illegal conduct. E.g., Davis, 440 U.S. at 631. No “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (citations omitted) Rather, Defendant’s discriminatory practices and the resulting injuries persist while Plaintiffs have no guarantee that the discrimination will cease without a favorable decision from the court. As stated above, Plaintiff Simms’ injury has not ceased. Second, it is far from “‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” See, e.g., Laidlaw, 528 U.S. at 189 (citation omitted). This is especially true where it took countless letters, calls, and in-person conversations for Plaintiff Simms to get her GS-9 at all.11
2. Testing Claims Are Part of Hiring Claims. As one integral element of being hired into the Secret Service, Plaintiffs’ testing claim is part and parcel of Plaintiffs’ hiring claim. Defendant provides no rationale why this is not the case. On the contrary, Defendant admits elsewhere that the entrance examination into the Secret Service, the TEA, is an essential component of the Secret Service’s hiring
11 While it is inapposite to Defendant’s claim of mootness, Defendant appears to argue that he did not discriminate against Plaintiff Simms with respect to her hiring grade but, instead, did not have the relevant information at the time of Plaintiffs Simms’s hire. Def.’s Mem. at 8-9. Plaintiffs dispute this fact. See Ex. A (Simms Decl.) at ¶ 3. Moreover, as Plaintiffs have not yet had the opportunity to conduct discovery on Plaintiff Simms’ hiring claims, any consideration of what was and was not known by Defendant at the time of Plaintiff Simms’ hiring is premature.
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process, explaining that disparate impact at the TEA stage is directly relevant to whether minority applicants experience disparate impact in hiring. See Ex. D (Fiscal Year 2002 Annual Affirmative Employment Program Accomplishment Report for Minorities and Women and FY 2003 Plan Update) at 12-13 (examining adverse impact of TEA to determine adverse impacts in ultimate selection rates of minorities). Indeed, in its own analysis, Defendant has labeled the TEA as a “barrier in employee selection” because the test had a disparate impact on minorities. See id. at 12 (emphasis added). Thus, even on Defendant’s own reasoning, it is illogical to isolate Plaintiffs’ testing claims from Plaintiffs’ hiring claims.
Moreover, discriminatory testing results in the same injury as discrimination in Defendant’s other hiring processes. Defendant appears to forget why “building block” claims are before this Court. In Contreras, Judge Robertson explained that “building block” claims were exhausted because they “credential or position Hispanic agents for promotions.” Contreras v. Ridge, 305 F. Supp. 2d 126, 133 (D.D.C. 2004). Discrimination in the testing building block operates identically to the hiring “building block” as a whole: each delays an African-American Special Agent’s eligibility for promotion. As Plaintiffs’ allegations in this case concern only successful candidates for hiring, discrimination in hiring—the discriminatory TEA, discriminatory initial refusal to hire, and discriminatory hiring grade—all cause the same harm: delay in advancement to supervisory grades. This is exactly the harm that Plaintiff Simms experienced as a result of discrimination in hiring. 12 See Section II(B)(1), supra. Differentiating between the
12 While Plaintiffs Harris, Hendrix, and Tyler suffered from the discriminatory TEA, these claims are time barred and the underlying facts were pled as background evidence only.
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aspects of a hiring claim that each cause the same harm with respect to promotion is both illogical and without legal support.
C. Plaintiff Robertson May Bring a Claim of Discriminatory Discipline. Defendant’s claim that “plaintiffs do not present this Court with even one allegation of discrimination in disciplinary action which is said to have occurred from 1999 forward,” Def.’s Mem. at 10, is flat wrong. Plaintiff Robertson presents exactly such a claim.13 Defendant’s semantic game of claiming the Secret Service’s discriminatory placement of Plaintiff Robertson on administrative leave does not constitute “discipline” fails. Defendant seeks to rely on 5 U.S.C. § 75 and 5 C.F.R. § 752 to limit the definition of “discipline.” See Def.’s Mem. at 10, 11-12. However, by its own admission, the Secret Service can—and has—expanded the definition of discipline contained in 5 U.S.C. § 75 and 5 C.F.R. § 752. Id. at 10-11 (“Federal law provides that disciplinary actions include suspensions, demotions and removals. See 5 U.S.C. § 75; 5 C.F.R. § 752. Defendant’s disciplinary policy expands this definition to include letters of reprimand.”) (emphasis added). Therefore, again by Defendant’s own admission, federal law provides no limitation on what constitutes discipline in the Secret Service.14 The Secret Service uses as discipline punishments that are not included in its formal definition of “discipline.” In the Department of Treasury Office of Inspector
13 Plaintiffs plead independent claims neither based on the discriminatory discipline against Plaintiffs Hendrix and Harris nor the failure to adequately discipline white Special Agents who attended the Good Ol’ Boys Roundup. Rather, these facts serve as background evidence of discrimination in the discriminatory discipline claims of Plaintiff Robertson and the class. 14 What’s more, Defendant’s reliance on 5 U.S.C. § 75 and 5 C.F.R. § 752 is affirmatively misleading. While these sections of the United States Code and Code of Federal Regulations govern “suspensions, demotions and removals,” Def.’s Mem. at 10, of federal employees, they suggest no limitation on what constitutes “discipline” of a federal employee.
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General Office on Investigations’ February, 2001 Integrity Oversight Review of the United States Secret Service Inspection Division, the Secret Service’s parent agency recognized that discipline used in the Secret Service was not limited to the Secret Service’s formal definition. In finding “discipline administered not always consistent with similar penalties for like offenses,” the Oversight Review specifically identified the use of memoranda of counseling, verbal counseling, leave restriction, denial of a withingrade increase, and a “Last Chance/Firm Choice Agreement” as discipline imposed in the sample of 75 discipline files reviewed. Ex. E (Department of Treasury Office of Inspector General Office on Investigations’ February, 2001 Integrity Oversight Review of the United States Secret Service Inspection Division) at 11-13. The Oversight Review recognized the Secret Service’s formal limitation of discipline to letters of reprimand, suspensions, demotions, and removals, id. at 9-10, but went on to discuss the actual implementation of discipline (termed “informal” to reconcile the Secret Service’s formal definition and reality), including the categories of discipline identified above. Id. at 1113. To suggest that a Plaintiff cannot challenge as discriminatory discipline that even the Secret Service’s parent agency recognizes as discipline (and inconsistently applied discipline at that) is legally wrong and fundamentally unfair.
Moreover, discipline not falling within the Secret Service’s formal definition is considered in the promotion process. For example, in a recent 30(b)(6) deposition, the Defendant’s designee admitted that informal counseling and attendance at mandatory diversity training was included in an Employee Relations Database used to vet selectees
16
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for promotion’s disciplinary histories.15 Ex. F (Dep. of D. Pupillo, Aug. 24, 2006) at 143 (also terming counseling and diversity training as “disciplinary”); see also id. at 81-82 (terming counseling and diversity training as “punishment”). Again, while these punishments are clearly used as discipline, they do not fall within the Secret Service’s formal definition of “discipline.” Similarly, Defendant admits that Plaintiff Ivery was not selected for several promotions based in at least part on an allegation of wrongdoing that did not result in “discipline” by the Secret Service. See, e.g., Ex. G (Def.’s Resp. to Pls.’ Interrog. No. 5) at 37-38, 42, 45, 47-48. At the same time, Defendant claims that Plaintiff Robertson cannot make a “building block” claim of “discriminatory discipline” because her discriminatory placement on administrative leave does not fit the Secret Service’s formal definition of “discipline.” Def.’s Mem. at 10-12. Defendant cannot have it both ways. If allegations of misconduct that are not characterized by the Secret Service as “discipline” may disqualify a Special Agent for promotion, such allegations are, by definition, “building blocks” of promotion.
It is irrelevant how the Secret Service characterizes “administrative leave.” What is relevant is how they utilize allegations of misconduct in the promotion process. After an investigation of Plaintiff Ivery’s alleged misconduct was conducted—while he was placed on “administrative leave”—with no resulting action characterized by the Secret Service as “discipline,” this allegation of misconduct was used against Plaintiff Ivery in the promotion process as “discipline.” The allegation of misconduct against Plaintiff Robertson—holding a National Organization of Black Law Enforcement Executives
15 As Defendant has yet to produce the Employee Relations Database, requested in May, 2006, Plaintiffs cannot provide an exhaustive list of categories of discipline actually imposed but not falling within the Secret Service’s formal definition.
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“meet and greet” during her initial Secret Service training—could identically be used against her in the promotion process. Yet, Defendant claims this is not actionable.
Defendant’s suggestion that Plaintiff Robertson has not suffered harm from her discriminatory discipline, Def.’s Mem. at 18, is flat wrong. As a result of Defendant’s discriminatory discipline of Plaintiff Robertson, her career-ladder (non-competitive) promotions and eligibility for competitive promotion are both delayed by several months. See Ex. H (Pls.’ Resp. to Def.’s Interrog. No. 23) at 28-29. Moreover, Plaintiff Robertson has already suffered emotional injury as a result of Defendant’s imposition of discriminatory discipline. See 2d Am. Compl. at ¶ 104; Ex. H (Pls.’ Resp. to Def.’s Interrog. No. 23) at 28-29. As elaborated in Section II(A), supra, emotional injury is sufficient to satisfy standing requirements. See, e.g., Heckler, 465 U.S. at 739; Gray, 545 F.2d at 173-76.
Because Plaintiff Robertson has a viable claim of discriminatory discipline, she is not subject to dismissal as a Plaintiff as suggested by Defendant.
D. Plaintiffs’ SES Non-Selection Class Claim is Not Subject to Dismissal. Defendant claims that Plaintiffs’ class claim of non-selection to SES is not exhausted and that Plaintiffs do not have standing to bring the claim. Defendant’s exhaustion argument relies on a purposeful ignorance of established law on this precise issue.16 Defendant’s “standing” argument relies on a misunderstanding of the law; Defendant actually makes an argument that Plaintiffs are inadequate class representatives for the SES claim. As such, this argument is premature and appropriately made in response to Plaintiffs’ class certification motion, due February 23, 2007.
16 As Plaintiffs presented this law in their opposition to Defendant’s May, 2006 Motion to Dismiss, Defendant was aware of this precedent when he filed the instant Motion.
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1. The SES Class Claim is Vicariously Exhausted. Defendant claims that non-selection claims to SES are not “like or related” to non-selection claims to GS-14 and GS-15. Def.’s Mem. at 14. Defendant is wrong as a matter of law. Defendant provides no legal cite to support his argument because he cannot—the case law holds that when a plaintiff exhausts a non-promotion claim, he exhausts claims for non-promotions to subsequent positions. One of the foundational cases defining the “like or reasonably related” test for the relationship of the administrative complaint to the claims in federal court considered the identical issue presented here. In Gamble v. Birmingham S. R.R., 514 F.2d 678, 687-89 (5th Cir. 1975), the Fifth Circuit found that a plaintiff who complained of non-promotion to conductor also exhausted claims of non-promotion to supervisor because supervisors are chosen from the ranks of conductor. The Court concluded that: “[t]he supervisor complaint is certainly ‘like or related to’ the conductor complaint and . . . could reasonably be expected to grow from the original complaint.” 514 F.2d at 688. Gamble stands for – and is to be widely cited for – the proposition that a plaintiff who exhausts a non-promotion claim also exhausts claims of non-promotion to higher positions. See, e.g., Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006); Miller v. Bed, Bath & Beyond, 185 F. Supp. 2d 1253, 1264 (N.D. Ala. 2002). Under Gamble, Defendant’s attempt to distinguish between the selection process for promotion to GS-14 and GS-15 and promotion to SES is inapposite. The Gamble Court did not rely on a comparison between the selection processes for conductor and supervisor to find that claims of non-selection to conductor and supervisor are “like or related” and a comparison between the GS-14/15 and SES selection processes is not in
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order here. Just as the Gamble Court reasoned “[i]f blacks cannot be promoted to conductor, then a fortiori they cannot be promoted to supervisor,” Gamble, 514 F.2d at 689, if African-American Special Agents cannot be promoted to GS-14, then a fortiori they cannot be promoted to SES.
Therefore, Plaintiffs Moore and Turner’s exhaustion of non-promotion claims to GS-14—three times ratified by this Court—vicariously exhausts claims of promotion to SES.
2. Defendant’s Argument that Plaintiffs are Not Adequate Class Representatives for the SES Claim is Premature.
Defendant argues that because no named Plaintiff pleads discriminatory denial of promotion to the SES-level, Plaintiffs’ class claim of discrimination in promotion to SES must be dismissed. Def.’s Mem. at 14-15. Defendant is wrong.
It is beyond question—Defendant has not questioned—that Plaintiffs Moore, Turner, Summerour, Ivery, Tyler, Hendrix, Harris, and Rooks all have standing to bring non-promotion claims. Plaintiffs seek to represent a class of individuals who have been discriminatorily denied promotions to the GS-14, GS-15, and SES levels. The question of whether Plaintiffs Moore, Turner, Summerour, Ivery, Tyler, Hendrix, Harris, and Rooks are adequate class representatives to represent class members who have experienced discrimination with respect to promotion to the SES level is a class certification inquiry that is premature.
Defendant’s suggestion that Plaintiffs lack “standing” to bring suit on behalf of putative class members confuses the concepts of standing and adequacy of the named plaintiff to maintain a class action. “Though the concepts [of standing and adequacy of status to maintain a class action] appear related, in that they both seek to measure
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whether the proper party is before the court to tender the issues for litigation, they are in
fact independent criteria.” Alba Conte & Herbert B. Newberg, Newberg On Class
Actions, § 2.9 (4th ed. 2006). “Once [a plaintiff’s] standing has been established,
whether [that] plaintiff will be able to represent the putative class, including absent class
members, depends solely on whether he is able to meet the additional criteria
encompassed in Rule 23 of the Federal Rules of Civil Procedure.” Fallick v. Nationwide
Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998) (citing Cooper v. Univ. of Tex. at
Dallas, 482 F. Supp. 187 (N.D. Tex.1979). See also Sosna v. Iowa, 419 U.S. 393, 403
(1975) (evaluating plaintiff’s individual standing before considering her ability to fairly
and adequately protect the interests of the class).
Defendant’s implication that the question of adequacy can be decided for Defendant at this juncture is wrong.17 In Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C.
Cir. 1994), the D.C. Circuit held with reference to Plaintiffs seeking to challenge
discrimination in entirely different positions:
[W]here a plaintiff charges that subjective employment decisions have allowed the employer systematically to discriminate on the basis of gender in choosing among the minimally qualified applicants, the potential for common issues of law and fact among applicants for different positions clearly exists regardless of individual differences in job descriptions or minimal qualifications. Id. (citation omitted. In reaching its holding, the D.C. Circuit expressly considered the unfairness of
distinguishing between high-level government positions:
In other words, we are unwilling to hold as a matter of law, that a named plaintiff who unsuccessfully applied for one job can never represent an employee who unsuccessfully applied for another job simply because the
17 While Plaintiff insists that this argument is inappropriate at the motion to dismiss stage, Defendant has waived the argument for the purpose of a motion to dismiss. Defendant relied exclusively on its exhaustion argument in moving to dismiss SES claims in its May, 2006 Motion to Dismiss. See May, 2006 Motion to Dismiss at 20-21. As such, the argument is waived. See, supra, at 9 n.6.
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application process for the second job included a separate and different element. Indeed such a restriction would permit an employer to defeat the broad enforcement of Title VII simply by administering different objective tests as part of the application process. See Cook [v. Boorstin]. 763 F.2d [1462], 1469 (“the plethora of job categories at the higher levels of the federal bureaucracy and in many other white collar organizations suggests that adopting [the agency]’s approach to proof of discrimination [which would have limited each proof of discrimination to evidence regarding only one job category] could well preclude the effective use of statistics in combating race discrimination in many if not most areas of high-level employment”) (alteration in original) (internal quotation marks omitted). Id. Plaintiffs have alleged exactly what Duffey requires: excessive subjectivity in all levels of competitive promotion. 2d. Am. Compl. at ¶ 16. Plaintiffs are entitled to develop facts in discovery that support an argument that the same excessive subjectivity in promotions to the GS-14 and GS-15 level infects promotions to the SES level and results in common issues of law and fact allowing certification under Duffey. Defendant agreed to a scheduling order whereby non-expert discovery ends February 2, 2006 and Plaintiffs’ class certification motion is due February 23, 2006. For Defendant to now suggest that Plaintiffs must immediately proffer enough evidence to support a class certification decision is demonstrably unfair.18
18 What’s more, the Duffey showing (for which Plaintiffs are certainly entitled to develop and present evidence), is only necessary when Plaintiffs seek to challenge different jobs. Here, Plaintiffs challenge promotions to different levels within the same job (a Series 1811 Special Agent of the United States Secret Service). This is hardly the across the board class action conceived by General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 158-59 (1982), in which the Supreme Court held it would not “presume” a plaintiff who complained of discriminatory non-promotion could adequately represent of class of individuals complaining of discriminatory hiring.
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CONCLUSION For the above-stated reasons, Defendant’s Motion for Partial Dismissal and/or for Partial Summary Judgment of Second Amended Complaint should be denied in whole.

Dated: October 18, 2006

Respectfully submitted,
___/s/______________________________ John P. Relman (D.C. Bar #405500) Reed N. Colfax (D.C. Bar #471430) Jennifer I. Klar (D.C. Bar #479629) Relman & Associates PLLC 1225 Nineteenth Street, N.W., Suite 600 Washington, D.C. 20036 (202) 728-1888
___/s/______________________________ E. Desmond Hogan (D.C. Bar #458044) Deborah L. Boardman (D.C. Bar # 476869) Sarah Berger (D.C. Bar # 489359) Hogan & Hartson LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5600

23
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 Case 1:00-cv-00953-RWR -DAR Document 659 Filed 08/04/10 Page 1 of 34

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________

)

REGINALD MOORE, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 00-953 (RWR/DAR)

)

JANET NAPOLITANO,

)

)

Defendant.

)

____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiffs, African-American current and former special

agents (“SAs”) of the United States Secret Service, bring this

employment discrimination action individually and on behalf of a

putative class of African-American SAs against the Secretary of

the Department of Homeland Security under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1994),

and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiffs

claim that the Secret Service has engaged in a pattern and

practice of racial discrimination in its promotion of black SAs

to the GS-14 and GS-15 levels. Plaintiffs have moved under

Federal Rule of Civil Procedure 23 to certify a class of African-

American current and former SAs who have allegedly suffered

racial discrimination during the course of their employment.

Because the class representatives’ claims are not typical of the

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-2class members’ claims and there is a conflict of interest within the class, the plaintiffs’ motion will be denied without prejudice.
BACKGROUND Plaintiffs’ second amended complaint alleges that throughout the proposed class period,1 the Secret Service has maintained a pattern and practice of discrimination against African-American SAs with regard to selections for competitive positions, discipline, transfers, assignments, testing, and hiring. Plaintiffs generally allege that, over the course of many years, the Secret Service has engaged in a wide variety of racially discriminatory employment practices, that it harbors a racially insensitive environment that tolerates racist activities, and that is fails to protect its African-American SAs from racial discrimination. Although the Secret Service has received multiple complaints about the discriminatory conduct, plaintiffs claim, no sufficient remedy has been provided. I. PROMOTION EVALUATION PROCESS The plaintiffs’ discrimination claims center around the Secret Service evaluation system known as the Secret Service Special Agent Merit Promotion Program (“MPP”). The MPP is used
1 Plaintiffs have been given permission to plead in their second amended complaint non-promotion claims dating back to 1993 and “building block” claims dating back to 1999. See Moore v. Chertoff, 437 F. Supp. 2d 156, 165 (D.D.C. 2006).

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-3annually to evaluate SAs for promotion. An MPP score on a scale up to 100 points is used by an agent seeking promotion to bid on available or vacant positions throughout an upcoming bid cycle. (Pls.’ Mem. of P. & A. in Supp. Of Pls.’ Mot. for Class Cert. (“Pls.’ Mem.”) at 15.) A participating GS-13 Agent receives a total MPP score that consists of three distinct parts: a (1) First Level evaluation; (2) Peer Panel evaluation; and (3) Second Level evaluation. A participating GS-14 Agent receives an MPP score that consists of two parts: a (1) First Level evaluation and (2) Second Level evaluation. (Id. at 1516.) The first level evaluation to which both GS-13 and GS-14 participating agents are subject is completed by the candidate’s immediate supervisor and is signed by a Special Agent in Charge. (Id. at 16.) The supervisor rates each candidate using a scale of one to five on ten specific elements such as writing ability, problem solving, oral communication, knowledge of Secret Service rules and regulations, leadership and management ability, and negotiation skill. (Id.; see also Moore v. Summers, 113 F. Supp. 2d 5, 8 (D.D.C. 2000).)
The Peer Review Panel applies to candidates seeking promotion to the GS-14 level. The Panel evaluates candidates on their “protection” and “investigation” experience. (Pls.’ Mem. at 16.) Peer Panel members include agents at the GS-14 level or above, who are given oral instructions on conducting the panel.

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-4Notes are not taken during the Peer Panel evaluation. (Id. at 17.)
A Second Level Panel evaluates candidates for GS-14 or GS-15 promotions. GS-14 Agents are rated on six separate competencies, including written or oral communication, ability to lead or direct others, and ability to analyze problems and recommend solutions. (Id.) The Second Level Panel members include representatives from each of the seven Assistant Director (“AD”) offices, and the members are instructed not to take notes and may review and adjust the ratings at their discretion. (Id. at 1718.)
Once an agent is given an MPP score, she may use her score to bid on vacant positions. In some cases, a vacant position may be filled without the position having to be posted. (Id. at 18.) The MPP scores are then used to generate the Best Qualified List (“BQL”). The candidates are ranked by their MPP scores and the MPP policy creates a cut-off for the ranked list of bidders or candidates. (Id. at 19.) The agent with the highest MPP score is not guaranteed that he or she will be awarded the vacant position. Instead, a recommendation is made to the Director by an Advisory Board that consists of the Deputy Director, seven ADs, and the Chief Counsel. In making its decision, the Advisory Board receives the assignment history, bid history, entry on duty date, and the date of the last promotion of each bidder or

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-5candidate listed on the BQL. (Id.) For each vacant position, the relevant AD makes a selection recommendation to the Advisory Board from the BQL for that position. (Id. at 20.) Based on the AD’s recommendation, the Advisory Board makes a recommendation to the Director. (Id.) II. AGENTS’ INDIVIDUAL CLAIMS
A. Reginald Moore Reginald Moore has been employed by the Secret Service for more than 20 years and served as a GS-13 agent in the Operations Section and the White House Joint Operations Center. (Id. at 33 (citing Ex. 53).) An African-American, Moore bid for and was not selected for more than 180 GS-14 positions from 1999 to 2002, and at one point was assigned to train a white selectee for a position on which he had formerly bid. (Id. at 34-35.) Moore eventually was promoted to a GS-14 and a GS-15 position, but he alleges that his promotions came only after being transferred to a Chicago field office, serving as an agent for 18 years, and filing an EEO complaint and a lawsuit. (Id. at 35-36.) B. Luther Ivery Luther Ivery is an African-American former agent who became eligible to bid on GS-14 positions in 1993, but was not selected for more than 130 GS-14 positions. For several positions, “his MPP score was not high enough to place him on the [BQL].” (Id. at 37.) Ivery alleges that even once he made the BQL, “he was

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-6passed over for scores of promotions[.]” (Id.) Ivery was promoted to a GS-14 position in 2002, but alleges that his promotion came only as a result of his having filed suit. (Id. at 39.) Ivery retired from the Secret Service in 2004, but asserts that “he would have reached the GS-15 . . . level before retirement” had he not experienced the Secret Service’s discriminatory practices. (Id.)
C. John Turner John Turner is an African-American former SA who bid for more than 80 GS-14 positions for which he was not selected. (Id. at 40.) Originally his MPP score was not high enough to place him on the BQL, but once it was, he was “nevertheless denied dozens of GS-14 positions on which he bid.” (Id.) Turner alleges that he was promoted “six years after he first became eligible” and only after filing an EEO complaint and a lawsuit. (Id. at 41.) D. Cheryl Tyler Cheryl Tyler is a former SA who was employed by the Secret Service from 1984 to 1999. (Id.) Tyler alleges that she became eligible to bid for a GS-14 promotion in 1993, but deferred bidding until 1996 because her MPP scores were not competitive enough. (Id. at 42-43.) Tyler was the only African-American female SA in the Atlanta Field Office and that, “[a]t the time she resigned, and . . . the filing of this lawsuit, there were no

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-7African-American female Agents in a GS-14 position.” (Id. at 4142.) Another agent was “troubled . . . by . . . Tyler’s experience in the Secret Service’s Office of Training” because Tyler had “worked in every possible assignment and/or position within the Office, yet she was continually passed over for promotion.” (Id. at 43 (quoting 7/28/00 Webb Decl. ¶ 36).) Tyler asserts that she resigned in 1999 “because she could not reach the GS-14 level as a result of discrimination” and that the Agency told her that it “was not ready for an African-American female supervisor.” (Id. at 44 (citing C. Tyler Decl. ¶¶ 36, 34).)
E. Yvette Summerour Yvette Summerour claims that she experienced discrimination by the Secret Service even before it hired her because it delayed her hiring by five years and that, after being hired, from 1998 through 2001, she “applied for and was denied promotion to almost 70 GS-14 positions.” (Id. at 44-45.) In the “calendar year before this lawsuit was filed . . . , [she] applied for and was denied promotion to twelve GS-14 positions.” (Id. at 45.) Summerour also alleges that she was “passed over for promotion in favor of a white (male) Agent who had previously been transferred” as a result of sexually harassing her. (Id. at 4546.) Summerour claims further that she was “denied dozens of promotions for which she made the [BQL]” and that it was only as

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-8a result of this lawsuit that she “was finally promoted to a GS14 position[.]” (Id. at 46.) Summerour “and another AfricanAmerican female [agent] . . . were the first GS-14 AfricanAmerican female [SAs] in the history of the Secret Service.” (Id.)
F. Kenneth Rooks Kenneth Rooks is an African-American SA who joined the Secret Service in 1995 and has been a GS-13 since approximately 2000. (Id. at 47.) Rooks asserts that he has “bid for over 160 GS-14 positions, but has not been promoted” and that, even though he received a high score from his supervisor, he “was kept off the [BQL] or ranked low on the [BQL], and thus was effectively disqualified from promotions.” (Id. at 47-48.) G. Andrew Harris Andrew Harris was hired by the Secret Service in 1987 and alleges that due to the Secret Service’s discriminatory practices against African-Americans, he “had to file EEO complaints in order to be (1) hired, (2) promoted to GS-14, and (3) promoted to GS-15.” (Id. at 49.) Harris alleges that he “bid on and was denied more than 20 GS-14 positions, despite his qualifications, due to the discriminatory promotions process.” (Id. (citing Ex. 80).) Harris alleges that the Secret Service told him that he must “bid outside of D.C. to be promoted” even though the requirement to bid outside of the District of Columbia “is not

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-9written in the MPP, and is not imposed on white Agents; instead, it only serves as a barrier to the promotion of African-American Agents.” (Id. at 51.) For support, Harris compiled a list of “thirty-two non-African-American Agents who were promoted from GS-13 to GS-14, and from GS-14 to GS-15, without ever leaving the Washington, D.C. area.” (Id. at 51-52 (citing Ex. 85).)
H. Leroy Hendrix Leroy Hendrix alleges that “[b]ecause of the Secret Service’s discriminatory promotions process, [he] was forced to bid for more than 230 different GS-14 positions prior to finally being promoted, even though he was qualified for each and every position.” (Id. at 52 (citing Ex. 87).) Hendrix, an AfricanAmerican, further alleges that he was not selected for a position “when his score was ten points higher than the selectee’s score.” (Id. at 53 (citing Ex. 88 at 455).) Hendrix “bid on and was not selected for over forty GS-15 positions” and claims that, although he was “the most qualified choice” for a Special Services Division/White House Mail position, he was not selected and was “forced to vacate his office to make room for the white selectee, and . . . train that Agent.” (Id. at 53-54.) Hendrix states that he “was finally promoted to a GS-15 Assistant Special Agent in Charge position in the Los Angeles Field Office” but that “he was required to accept a cross-country move to be promoted[.]” (Id. at 54.)

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-10The individual named plaintiffs seek to certify a class on behalf of all current and former African-American Agents who were employed as Criminal Investigators (GS/GM-1811) and who had the required time-in-grade to seek promotion to competitive positions at the GS-14 level at any time during the years 1995 to 2004, and/or who had the required time-in-grade to seek promotion to competitive positions at the GS-15 level at any time during the years 1995 to 2005. (Pls.’ Mot. for Class Cert. at 2.)
DISCUSSION To obtain class certification, plaintiffs must establish the four prerequisites of Rule 23(a) and show that the case falls within at least one of the three categories of Rule 23(b). Jarvaise v. Rand Corp., 212 F.R.D. 1, 2 (D.D.C. 2002) (citing Pigford v. Glickman, 182 F.R.D. 341, 345 (D.D.C. 1998)). The moving party must establish “that all requirements for proceeding as a class action have been satisfied.” Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 36 (D.D.C. 2007). “Whether a class should be certified is a preliminary question, and disputes regarding the merits of a case or the weight of evidence are not proper considerations at the class-certification stage.” Id.; see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). Thus, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen, 417 U.S. at 178 (internal quotation marks omitted). District courts have broad discretion to decide whether a party moving for class

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-11certification has carried its burden. Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994) (citing Bermudez v. U.S. Dep’t of Agric., 490 F.2d 718, 725 (D.C. Cir. 1973)). In considering a motion for class certification, a court presumes the allegations in the complaint to be true. McReynolds v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428, 431 (D.D.C. 2002).
Under Rule 23(a), the plaintiffs must demonstrate that (1) the class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (“typicality”); and (4) the representative parties will fairly and adequately protect the interests of the class (“adequacy of representation”). Fed. R. Civ. P. 23(a). “Failure to adequately demonstrate any of the four is fatal to class certification.” Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006). I. NUMEROSITY
“‘Rule 23(a)(1) permits maintenance of a class action if “the class is so numerous that joinder of all members is impracticable.”’” Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010) (quoting Taylor, 241 F.R.D. at 37 (quoting Fed. R. Civ. P. 23(a)(1))). “While a class of at least forty members is sufficiently numerous to satisfy this requirement presumptively,

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-12‘[t]here is no specific threshold that must be surpassed[.]’” Id. (quoting Taylor, 247 F.R.D. at 37) (alterations in original). Rather, a court must examine the specific facts before it. Id. While “[m]ere conjecture, without more, is insufficient to establish numerosity, . . . plaintiffs do not have to provide an exact number of putative class members in order to satisfy the numerosity requirement.” Pigford, 182 F.R.D. at 347.
Plaintiffs estimate that there are at least 120 members of the proposed class. They also assert that joinder is impracticable since “class members who are current Agents can be stationed at any given time in the Secret Service[’s] Headquarters in Washington, D.C., or one of the more than 150 field offices and resident offices throughout the United States and abroad.” (Pls.’ Mem. at 63-64; Pls.’ Reply to Def.’s Opp’n to Pls.’ Mot. for Class Cert. (“Pls.’ Reply”) at 35-36 n.30.) Plaintiffs state that their estimate of 120 putative class members “is derived from the Agency’s bid database produced in discovery[.]” (Pls.’ Reply at 34-35, n.28.)
On its face, plaintiffs’ proposed class of 120 geographically dispersed members is sufficiently numerous to satisfy Rule 23(a)(1). See Taylor, 241 F.R.D. at 37. The defendant, however, advances several arguments against the plaintiffs’ estimate, including that the proposed class is overinclusive because it encompasses individuals who were

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-13ineligible for promotions because they neither participated in the promotion process nor met requirements beyond time-in-grade necessary to be eligible to participate in the promotions process. (Def.’s Opp’n to Pls.’ Mot. for Class Cert. (“Def.’s Opp’n”) at 34-35.) The defendant further argues that the plaintiffs’ “class definition . . . includes untimely claims[,]” that class members must “have been employed at the Secret Service as of September 11, 1999 . . . [or] 45 days prior to the day Plaintiff Turner first contacted an EEO Counselor[,]” and that “aside from the named plaintiffs, only twenty-one other potential class members both submitted declarations making claims of discrimination about the promotion process, and bid for promotions, during the relevant times.” (Id. at 36-38, 40 (footnote omitted).) It appears, then, that the defendant is arguing that the plaintiffs’ proposed class size will shrink upon application of Rule 23(a)’s commonality and typicality requirements.2
2 The defendant also states that the plaintiffs’ proposed class contains two subclasses that must independently meet the numerosity requirement, arguing that class members whose only alleged harm is a delayed promotion cannot be factored into the numerosity analysis because “plaintiffs present no statistical evidence demonstrating that the promotions of African-American SAs are actually delayed” and “the unrefuted statistical evidence demonstrates that the Secret Service promoted African-American SAs to GS-14 and GS-15 positions faster than non-African-American SAs.” (Def.’s Opp’n at 40-42.) The defendant further argues that once the individuals who claim delayed promotions are excluded from the class, there are only 35 potential class members who bid but were never selected for a promotion, and that

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-14Even taking as true the defendant’s argument that “the size of the proposed class of those denied GS-14 and GS-15 promotions would total only 36” (Def.’s Opp’n at 44), a class of 36 members can still satisfy Rule 23(a)’s numerosity prong. See, e.g., Meijer, Inc. v. Warner Chilcott Holdings Co. III, Ltd., 246 F.R.D. 293, 306 (D.D.C. 2007) (certifying a class of only 30 class members); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986) (certifying a class of 29 members); Town of New Castle v. Yonkers Contracting Co., Inc., 131 F.R.D. 38, 40-41 (S.D.N.Y. 1990) (certifying a class of 36 members); Alvarado Partners, L.P. v. Mehta, 130 F.R.D. 673, 675 (D. Colo. 1990) (certifying a class of 33 members). Thus, the plaintiffs have satisfied Rule 23(a)(1)’s numerosity prong.
these members should be divided into two subclasses based on grade level of promotion sought and “neither [sub]class . . . is so numerous as to make joinder impracticable.” (See id. at 4243.) The plaintiffs refute the need to separate the class into sub-classes. (See Pls.’ Reply at 36 n.31 (“[T]he circumstances presented support that subclasses are neither necessary nor appropriate.”).) The defendant’s argument regarding delayed bidders speaks more to Rule 23(a)’s commonality and typicality requirements than to numerosity requirements. Further, a court has broad discretion to determine whether to certify a class with subclasses, and the circumstances here do not warrant dividing the class into subclasses based on the grade level of promotion sought. See Twelve John Does v. District of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997) (noting that the “use of a subclass [is useful] . . . where the named representative cannot be found to adequately represent all the interests in the class”).

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-15II. COMMONALITY
“To establish commonality under Rule 23(a)(2), a plaintiff must identify at least one question common to all members of the class.” Garcia, 444 F.3d at 631. “‘[F]actual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.’” Encinas, 265 F.R.D. at 8 (quoting Bynum v. District of Columbia, 217 F.R.D. 43, 46 (D.D.C. 2003)). Courts have noted that the commonality requirement “is ‘often easily met’” and that “proposed class actions seeking injunctive and declaratory relief . . . ‘by their very nature’ present common questions of law and fact.” Taylor, 241 F.R.D. at 37 (quoting 7A Wright, Miller & Kane, Fed. Practice and Procedure § 1763 (3d ed. 2005)). However, plaintiffs in Title VII class actions must not only demonstrate that class plaintiffs suffered discrimination on the basis of membership in a particular group; “plaintiffs must make a ‘specific presentation’ that identifies the questions of law or fact common to the class representative and the putative class.” McReynolds, 208 F.R.D. at 440-41 (quoting Wagner v. Taylor, 836 F.2d 578, 589 (D.C. Cir. 1987)). In other words, a “plaintiff must ‘bridge th[e] gap’ between her own alleged discrimination and a ‘common policy’ that affected the members of the putative class.” Taylor, 241 F.R.D. at 37-38

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-16(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 (1982)).
In cases where plaintiffs allege disparate treatment of a class, plaintiffs seeking class certification must “show (i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that permits the court to infer that members of the class suffered from a common policy of discrimination.” Love v. Johanns, 439 F.3d 723, 728 (D.C. Cir. 2006) (internal quotation marks and brackets omitted) (emphasis in original). Regarding a complaint of “class-wide discriminatory impact, [plaintiffs] must make a showing sufficient to permit the court to infer that members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy.” Garcia, 444 F.3d at 632 (internal quotation marks omitted) (emphasis in original). To satisfy Rule 23(a)’s commonality requirement, plaintiffs may put forth statistical and anecdotal evidence to support an inference that the defendant’s policies and procedures are subjective and susceptible to racial discrimination and have a common impact upon the acts of discrimination that the plaintiffs allege they suffered. See Taylor, 241 F.R.D. at 40-44. The plaintiffs here offer both statistical and anecdotal evidence.

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-17A. Statistical evidence
1. Dr. Sharf’s testimony Plaintiffs argue that the agency-wide scoring process for competitive promotions is highly subjective and that the scoring process, “in policy and practice, has adversely affected AfricanAmerican Agents because they have been denied competitive promotions for which they were qualified in favor of lessqualified white Agents.” (Pls.’ Mem. at 32.) Plaintiffs rely, in part, on the expert testimony of Dr. James Sharf, who testified that “the MPP and its implementation by the Secret Service are based on unreliably subjective” peer review panels, assistant director panels and advisory boards, and are governed by “unreliably subjective discretion by the Assistant Directors and Director.” (Id., Ex. 33 ¶ 6.) Sharf provides examples of the MPP’s “subjectivity and unreliability” which include that the “reasons for Peer Panel scoring are not recorded and after the fact explanations for the scorings are arbitrary and unreliable”; that the Agency “may promote Special Agents who have not bid on a position, rendering the bidding process unreliable”; that an Assistant Director “may, in his sole discretion, change an Agent’s score after a score has been assigned”; and that the significance of differences in an Agent’s bid history, MPP scores and time in the field varied significantly between Assistant Directors. (Id., Ex. 33 ¶ 7.)

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-18The defendant argues that Sharf’s testimony is unreliable because Sharf “specifically conceded that he could not attest that the MPP process, even if unreliable, had disadvantaged African-Americans.” (Def.’s Opp’n at 46.) Indeed, Sharf stated that he had not “formed an opinion one way or the other” as to whether African-Americans are disadvantaged as a result of the MPP process. (Id., Ex. 8, 188:23-25, 189:3-9.) However, the plaintiffs have not provided Sharf’s testimony for the purpose of proving that the MPP’s subjectivity disadvantaged AfricanAmericans. Rather, they have provided it to show that subjectivity is involved at each stage of the Secret Service’s evaluation system. (See Pls.’ Mem. at 67.) The defendant further argues that the promotion recommendations “include a consideration of specific, objective criteria.” (Def.’s Opp’n at 46.) However, “[w]hether a particular [decision-maker] uses objective criteria in making particular promotion decisions is irrelevant to the commonality analysis; instead what is significant is that the determination of which criteria to use is left entirely to the individual [decision-maker].” McReynolds, 208 F.R.D. at 442. The plaintiffs have offered at least some evidence that the MPP promotions process includes some subjective decision-making. For example, the ADs sitting on Second Level Panels are able to review and adjust candidates’ ratings without justification.

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-19Also, ADs are given no instruction, guidance, or criteria to use in making promotion recommendations to the Directors. (Pls.’ Mem. 18-20.) Thus, even though objective criteria are a component of the MPP scoring process, the process still includes some subjective decision making, and Sharf’s testimony can support an inference that the plaintiffs were victims of promotion decisions that were affected by a discriminatory MPP.
2. Dr. Charles Mann’s report Plaintiffs also rely on Dr. Charles Mann’s report, which considers “whether the data [plaintiffs] have provided supports an assertion of adverse impact of the [Secret Service’s] employment policies against African-American . . . SAs . . . as compared with non-African-American SAs.” (Pls.’ Mem., Ex. 2 ¶ 12.) “Mann found that for the years 1998 to 2000, the difference between expected African-American promotions in the absence of discrimination, taking as given the presence of African-Americans on the [BQL], and actual African-American promotions to GS-14 was statistically significant and adverse to African-Americans with a probability level of .0045, which corresponds to less than one chance in 222 or more than 2.8 standard deviations.” (Pls.’ Mem. at 13 (citing Mann Report, Ex. 2 ¶ 45) (footnote omitted).) Mann further found that “[f]or promotions to the GS-15 level, . . . for the years 2002 to 2005, the difference between expected African-American promotions in

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-20the absence of discrimination, taking as given the presence of African-Americans on the [BQL], and actual African-American promotions to GS-15 was statistically significant and adverse to African-Americans with a probability level of .0195, which corresponds to less than one chance in 51 or more than 2.3 standard deviations.” (Id. (citing Mann Report, Ex. 2 ¶ 47) (footnote omitted).) From this evidence, the plaintiffs conclude that fewer African-Americans were promoted to GS-14 and GS-15 levels “than would be expected in the absence of discrimination based even on the number of African-Americans who actually made the [BQL].” (Id.)
The defendant attacks Mann’s report on several grounds.3 First, the defendant asserts that the results fail to demonstrate that African-American SAs as a class were under-promoted during the relevant time periods and that the evidence is restricted to two cherry-picked time periods of three and four years which are different for applicants to the GS-14 level than for those to the
3 A large portion of the defendant’s opposition is devoted to a discussion of the merits of the analyses of the parties’ respective statistical experts. Specifically, the defendant argues that there is “un-rebutted evidence that African-American agents as a class were promoted at the same speed, if not faster than, non-African-American agents.” (Def.’s Opp’n at 49.) However, “[t]he battle of statistical experts, while central to the ultimate issue of liability, is not relevant to the issue of class certification.” Jarvaise, 212 F.R.D. at 3 n.1. “[A]n examination of the statistics proffered by plaintiffs” is appropriate in determining class certification, McReynolds, 208 F.R.D. at 435, if the court can infer discrimination from them. Taylor, 241 F.R.D. at 44.

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-21GS-15 level. (Def.’s Opp’n at 49.) The defendant also argues that Mann’s report fails to consider the composition of all the BQLs and ignores a “substantial number of BQLs where all AfricanAmerican bidders were included.” (Id. at 54.) According to the defendant, for “approximately 34% of vacancies during the period from 1995 to 2004 for GS-14 positions, and for approximately 73% of vacancies from 1995 to 2005 for GS-15 positions, all candidates who applied for the vacancy were considered for promotion.” (Id. at 53.)
Notwithstanding these arguments, Mann’s evidence is statistically significant because a “standard deviation of 1.96 or higher indicates a ‘level of statistical significance [that] is sufficient to establish a prima facie case of both disparate treatment and disparate impact.’” Taylor, 241 F.R.D. at 44 (quoting Anderson v. Zubieta, 180 F.3d 329, 340 (D.C. Cir. 1999)) (alteration in original). Moreover, Mann’s conclusions are appropriate to consider since they measure only time periods that fall within the proposed class periods.
Further, the fact that the report makes no explicit findings related to the rate at which African-American SAs receive promotions in comparison to non-African-American SAs (see Pls.’ Mem, Ex. 2) does not necessarily undermine a finding of an inference of discriminatory policy or practice within the MPP promotions system. Title VII disparate impact cases are not

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-22measured only at the “bottom line” -- in this case, the plaintiffs’ promotions –- because “Title VII guarantees . . . individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria.” Connecticut v. Teal, 457 U.S. 440, 451 (stating that “Title VII strives to achieve equality of opportunity by rooting out ‘artificial, arbitrary, and unnecessary’ employer-created barriers to professional development that have a discriminatory impact upon individuals”) (emphasis in original). If the MPP scoring process did, as alleged, prevent the plaintiffs from being promoted to GS-14 and GS-15 levels, then Mann’s failure to make ultimate conclusions regarding the rate of African-Americans promoted within the Secret Service is not fatal to the plaintiffs’ statistical showing.
Finally, although Mann’s report omits an analysis of the MPP in promotions from pools of applicants who all made the BQL (Pls.’ Mem., Ex. 2 ¶ 77),4 this omission does not preclude proof that the MPP was used to discriminate in promotions in which not all applicants made the BQL. Thus, Mann’s report could support
4 Mann also did not analyze promotions made without the use of a BQL, nor could he have analyzed the impact of the MPP upon agents who were deterred from seeking an MPP score and bidding for a promotion. (See Pls.’ Mem, Ex. 2 ¶¶ 44, 78.)

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-23an inference that the MPP promotions policies and process during the relevant class period was susceptible to racial discrimination and affected plaintiffs’ experiences. B. Anecdotal evidence
The plaintiffs also offer anecdotal evidence of discrimination from the testimony of African-American current and former Secret Service agents and state that the employees’ declarations “provide the ‘personal experiences . . . ’ that bring ‘the cold numbers [of disparity] convincingly to life.’” (Pls.’ Mem. at 69 (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977).) In addition to anecdotal evidence provided by the named plaintiffs, the record includes numerous declarations of putative class members who allege that they have experienced discrimination at the hands of the Secret Service.5
For example, Agent Wayne Robinson testified that “two of his immediate supervisors . . . told [him] that [he] could improve his chances for promotion if [he] bid on positions that would require [relocation.] However, many white Agents . . . have been
5 Plaintiffs also offer anecdotal evidence of discrimination that should not actually bear upon commonality here because it does not involve promotions or fall within the class period. (See, e.g., id., Ex. 1, Banner Decl. ¶ 9 (“When I arrived at work one morning, I found two Nigerian postage stamps on my desk with a message to ‘Go back to Africa.’”); Bryant Decl. ¶ 27 (“In September of 1991, frustrated with the discriminatory policies and practices that had repeatedly resulted in denials of promotions to which I was entitled, I left the [Agency.]”).)

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-24promoted . . . and did not have to relocate.” (Id., Ex. 1, Robinson Decl. ¶ 20.) Robinson “believe[s] this is an example of the Secret Service imposing requirements on African-American [SAs] for promotion that are not required of white Agents.” (Id.)
Agent Tamara Blair testified that “[b]ecause of the Secret Service’s discriminatory . . . practices, [she] did not receive recognition for work equal to or better than that of white [SAs] who were recognized” and that supervisors “would often give awards to white male SAs . . . [even though she] had significantly higher [performance ratings] than the other [SAs].” (Id., Blair Decl. ¶ 12.) She testified further that “[d]espite achieving consistently strong First Level Evaluation scores, [her] overall MPP scores have not reflected [her] performance . . . . [T]he scores given by the panel bear little relationship to an Agent’s abilities and accomplishments but rather reflect whether the Agent is hooked into the right network[.]” (Id., Supp. Blair Decl. ¶ 14.) “[W]hite Agents . . . get higher scores.” (Id.)
Agent Kenneth Bradshaw testified that despite ranking “very highly on performance evaluations by [his] direct supervisors[,]” his total scores were low because “an Agent’s scores are easily manipulated by the peer panels to the advantage of white Agents.” (Id., Bradshaw Decl. ¶ 17.) Bradshaw “once heard [an AD] admit

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-25. . . that, for many promotions, the Secret Service leadership already knows who they are going to give the position(s) to from the time they are posted [and] before Agents even bid. In such cases, the scoring process is meaningless.” (Id. ¶ 18.)
Agent Angela Burns-Ramirez stated that even though she “received a 96% from [her] direct supervisor” on her 2003-2004 MPP score, she received only 52% on the portion of the evaluation completed by those who did not supervise her work, which “demonstrates the subjectivity and potential for abuse of the construction of the MPP scores.” (Id., Supp. Burns-Ramirez Decl. ¶ 19.) She believes that her “low score was the result of [racial] discrimination.” (Id.) Burns-Ramirez “bid on more than 75 GS-14 positions before [she] was finally promoted” and “believe[s] that [she] did not get the GS-14 positions [on which she earlier bid] . . . because of [her] race.” (Id. ¶ 14.)
Further, Agent Burrell testified that despite having received positive performance reviews, having served in “two of the most demanding squad positions in the Los Angeles Field Office[,]” and having had “more supervisory experience than most white Agents promoted to GS-14,” his white co-workers have been promoted over him. (Id., Burrell Decl. ¶¶ 13, 15, 18.) Agent Rodney Stewart testified that despite receiving high first-level scores, his overall MPP scores have been low. (Id., Supp. Stewart Decl. ¶ 22.) “For example, in 2004-2005, [Stewart]

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-26received a 48/50 on [his] First Level Evaluation, but only a . . . 56% on the remainder of [the] evaluation.” Id. He testified that “MPP scores are entirely subjective and used to keep African-American Agents from receiving promotions.” Id. Given the plaintiffs’ extensive anecdotal accounts of discrimination within the Secret Service and their statistical showing that raises an inference of a causal discriminatory policy, the plaintiffs have carried their burden of establishing Rule 23(a)’s commonality requirement. III. TYPICALITY
“Typicality requires that the claims of the representative be typical of those of the class.” Encinas, 265 F.R.D. at 9 (internal quotation marks omitted). “This inquiry overlaps with the commonality inquiry, as each seeks to determine the practicality of proceeding with a class action and the extent to which the plaintiffs will protect the interests of absent class members.” Id. “A plaintiff’s claims can be typical of those of the class even if there is some factual variation between them.” Id. Most importantly, “the named plaintiffs’ injuries [must] arise from the same course of conduct that gives rise to the other class members’ claims.” Id. (internal quotation marks omitted).
The plaintiffs seek to certify a broad class of all AfricanAmerican current and former agents who were employed as Criminal

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-27Investigators and who had the required time-in-grade to seek promotion during the class period. The plaintiffs assert that “[j]ust like Class Plaintiffs, any class member who was eligible for promotion to a GS-14 or GS-15 position was subject to the same excessively subjective policies and practices of the MPP, including those Agents who were discouraged completely from participating” in the MPP promotions process. (Pls.’ Reply at 41.) The defendant argues that the plaintiffs have failed to show that the individuals’ claims will be typical of the class claims because all class representatives elected to obtain MPP scores and bid on announced vacancies. Thus, the class cannot include individuals who elected not to participate in the promotion process or were selected for promotion during their first promotion bid cycle because the “class representatives all participated in the promotion process on multiple occasions[.]” (Def.’s Opp’n at 56-57.)
Here, the named plaintiffs all participated in the bid process, and all but two eventually received promotions. “[A] formal [bid] for employment is not a condition precedent to relief from unlawful discrimination where the ‘application would have been a useless act serving only to confirm a discriminatee’s knowledge that the job he wanted was unavailable to him.’” Rodriguez v. U.S. Dep’t of Treasury, 131 F.R.D. 1, 6 (D.D.C. 1990) (quoting Int’l Bhd. of Teamsters, 431 U.S. at 367).

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-28-
Indeed, in some cases, courts have “included within a class those
persons who were discouraged from applying based upon the knowledge that the discriminatory policy was in place.” Id.6
Tyler is the closest the class representatives come to
having as a member a deterred bidder. Tyler’s bidding was merely
deferred, though, not wholly deterred. With no class
representative who was deterred from ever bidding, there is every
risk that the interests of the absent, wholly deterred bidders
would not at all stages of this litigation be equally advanced
and protected by the merely deferred bidders.
Further, the class representatives’ claims are not typical
of the claims of any putative class member who was eligible for a
promotion and received it on her first bid. That particular
class member may not have suffered an injury at all, much less an
injury typical of the injuries alleged by the class
6 Rodriguez warned, though, that including within a class a group of deterred or discouraged bidders could undermine “the interest of judicial economy which class litigation is designed to serve” since “[t]he focus of the class litigation with regard to these individuals would most certainly shift from defendants’ conduct to the factual circumstances of individual plaintiffs.” Rodriquez, 131 F.R.D. at 7; see also Selzer v. Bd. of Educ. of N.Y., 113 F.R.D. 165, 167 (S.D.N.Y 1986) (citing Falcon, 457 U.S. at 157 n.13). Rodriquez also opined that deterred bidder claims could undermine numerosity. See Rodriguez, 131 F.R.D. at 6. Where the “existence of a substantial group of deterred applicants remains speculative following plaintiff’s discovery,” id. -- as appears to be the case here, considering that the plaintiffs do not include any estimate of the number of deterred bidders in the putative class because the Secret Service’s database does not include deterred bidders (see Pls.’ Reply at 35 n.28) -- such a group may be unidentifiable. Id. at 7.

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-29representatives.7 See, e.g., Cohen v. Chilcott, 522 F. Supp. 2d
105, 115 (D.D.C. 2007) (“The typicality requirement aims at
ensuring that the class representatives have suffered injuries in
the same general fashion as absent class members.” (internal
quotation marks omitted)).
Here, then, the mere fact that there may be a broad group of
African-American agents who were eligible for promotion to the
GS-14 or GS-15 levels is insufficient, on its own, to satisfy
Rule 23(a)’s typicality requirement. See, e.g., Falcon, 457 U.S.
at 162 (“We have repeatedly held that the bare fact that a
plaintiff alleges racial or ethnic discrimination is not enough
to justify class certification.”). The plaintiffs are attempting
to certify a broad class of African-American agents who were
eligible for promotion, but who may or may not have claims that
7 The defendant also argues that plaintiffs have no representative for claims by GS-13 SAs denied promotion because all class representatives seeking promotion to the GS-14 level were in fact promoted, save for Tyler and Rooks. The defendant contends that Tyler’s non-promotion claim is not typical of those of the putative class because she never made a single BQL for any position on which she bid and that Rooks’s non-promotion claim is not typical because she became eligible to bid and began bidding only in 2004. (Def.’s Opp’n at 57-58.) However, this argument is unpersuasive since “[t]he facts and claims of each class member do not have to be identical to support a finding of typicality.” Cohen v. Chilcott, 522 F. Supp. 2d 105, 115 (D.D.C. 2007). Rather, class representatives must have suffered injuries in the same general fashion as have absent class members. Id. Here, Tyler’s and Rooks’s non-promotions are injuries suffered in the same general fashion as those suffered by putative class members who bid, but were never promoted. That Tyler did not make a BQL or that Rooks became eligible to bid only in 2004 does not undermine this finding.

Case 1:00-cv-00953-RWR -DAR Document 659 Filed 08/04/10 Page 30 of 34
-30are typical of those of the class representatives. Thus, the plaintiffs’ class, as proposed, does not satisfy the typicality requirement of Rule 23(a). IV. ADEQUACY OF REPRESENTATION
The final requirement of Rule 23(a) requires the court to “determine whether the proposed representatives can adequately represent the interests of the class.” Taylor, 241 F.R.D. at 45. A representative is adequate if “(1) his interests do not conflict with those of other class members, and (2) he will vigorously prosecute the interests of the class through qualified counsel.” Lindsay v. Gov’t Employees Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008). When there is a dispute as to the existence of a conflict of interest between class members, a court must bear in mind that “[c]lass members whose interests are antagonistic in fact to, or even ‘potentially conflicting’ with, the interests of the ostensibly representative parties cannot be bound, consistent with the requirements of due process to an adjudication taken in their name.” Phillips v. Klassen, 502 F.2d 362, 366 (D.C. Cir. 1974) (quoting Hansberry v. Lee, 311 U.S. 32, 41-42 (1940)). In employment discrimination cases, although the fact that some class members are supervisors does not constitute per se a conflict of interest, it does pose a serious problem where class

Case 1:00-cv-00953-RWR -DAR Document 659 Filed 08/04/10 Page 31 of 34
-31plaintiffs have accused class members of the same type of discrimination from which they seek relief. Wagner, 836 F.2d at 595; McReynolds, 208 F.R.D. at 447 (D.D.C. 2002).
Here, there is no dispute as to the competency of counsel to represent the class’s interest. There is a dispute, however, regarding a potential conflict of interest among class plaintiffs and class members. The plaintiffs assert that there is no conflict of interest because class plaintiffs “share identical interests in this lawsuit as the class members, and . . . desire the same relief[,]” namely, “to prove the existence of the Secret Service’s pattern and practice of race discrimination in the promotions process, and the adverse impact on African-American Agents from the excessively subjective and unfettered policies and practices of the MPP.” (Pls.’ Mem. at 71-72.) The defendant counters that the plaintiffs cannot satisfy the adequacy requirement because the “proposed class would include . . . former and current supervisors who have been personally and substantially involved in the very promotion process that plaintiffs claim is discriminatory.” (Def.’s Opp’n at 75.)
As one example, the defendant notes that “Andrew Harris, one of the named plaintiffs, has served on a promotion rating panel[,]” and in this capacity, he “personally rated four . . . [of] his fellow class representatives [who] claim discrimination in the very scores that he was involved in assigning.” (Id.

Case 1:00-cv-00953-RWR -DAR Document 659 Filed 08/04/10 Page 32 of 34
-32(citing Ex. 5 ¶ 67).) The defendant further states that Agents Summerour and Moore have accused potential class members of making discriminatory promotion decisions. (Id. at 77.) Plaintiffs counter that Summerour and Moore did not accuse the identified potential class members of actual discrimination, but merely asserted that these senior agents “were going along with or participating in the Agency’s discriminatory promotions process.” (Pls.’ Reply at 44 n.38.)
The record reflects direct accusations of discrimination within the class. For example, Summerour testified that she believed that Larry Cockell –- a putative class member –discriminated against her when he denied her a higher MPP score. (Def.’s Opp’n at 77, Ex. 42, 46:8-15 (“Q: Did you believe that Larry Cockell discriminated against you when he refused to change the score? A: Yes, I do. Q: And why do you say that? A: Because . . . I think he facilitated [the Agency’s discriminatory] system by letting it continue and not trying to change it.”).) When asked whether there were senior-level African-American agents who were a part of the Secret Service’s “Good ‘ol Boy Network,” Summerour stated that she believed that Cockell and other African-American agents were a part of that network. (Id., Ex. 42, 253:11-24.)
The record also demonstrates that several potential class members were directly involved in the Peer Panel or Second Level

Case 1:00-cv-00953-RWR -DAR Document 659 Filed 08/04/10 Page 33 of 34
-33evaluation process, which raises a specter of these class members’ participation in the discriminatory conduct of which plaintiffs complain. For example, between 1995 and 2005, sixteen African-American supervisors participated, at least once, as a Peer Panel member rating SAs for promotion to GS-14 positions. (Id. at 77 n.59 (citing Ex. 5 ¶ 67).) During the same time period, eight African-American Supervisors participated as Second-Level Panel evaluation members rating SAs for promotion to GS-14 and GS-15 positions. (Id., Ex. 5 ¶ 68.)
Although the existence of supervisors among the class members does not automatically undermine the adequacy of representation, the conflict of interests here –- which includes direct accusations of discrimination among and between class members and class representatives –- is not insignificant. Because plaintiffs have not proposed for consideration a class free of conflicts of interests, the representation as proposed is inadequate. See, e.g., In re PEPCO Employment Litig., Civil Action No. 86-0603 (RCL), 1992 WL 442759, at *22 (D.D.C. Dec. 4, 1992) (denying certification of a subclass in light of direct accusations of discrimination among class members and holding that the existence of any conflict is sufficient to prevent certification).

Case 1:00-cv-00953-RWR -DAR Document 659 Filed 08/04/10 Page 34 of 34
-34CONCLUSION AND ORDER Given the plaintiffs’ proposed definition of the class and the current composition of the group of class representatives, the plaintiffs have failed to satisfy the typicality and adequacy of representation elements required by Rule 23(a), and their motion for class certification will be denied without prejudice.8 Accordingly, it is hereby ORDERED that plaintiffs’ motion [585] for class certification be, and hereby is, DENIED without prejudice. It is further ORDERED that defendant’s motion [633] in limine be, and hereby is, DENIED as moot. It is further ORDERED that plaintiffs’ motion [650] for oral argument be, and hereby is, DENIED as moot. SIGNED this 4th day of August, 2010.
________/s/_________________ RICHARD W. ROBERTS United States District Judge
8 In response to plaintiffs’ motion for class certification, the defendant has filed a motion in limine, seeking to exclude Dr. Mann’s testimony. Because the plaintiffs’ motion for class certification will be denied, the defendant’s motion [633] in limine will be denied as moot. Plaintiffs’ motion [650] for oral argument also will be denied as moot.

 
 Case 1:00-cv-00953-RWR-DAR Document 732 Filed 01/25/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

REGINALD G. MOORE, et al.

)

)

Plaintiffs,

)

)

v.

)

)

JANET NAPOLITANO,

)

SECRETARY, U.S.

)

DEPARTMENT OF HOMELAND

)

SECURITY.

)

)

Defendant.

)

--------------------------)

Civ. No. 00-953 (RWRlDAR)

The following ORDER will govern the contacts with putative class members initiated by

the parties' counsel until Plaintiffs' October 27,2011 Motion for Class Certification is ruled

upon by this Court. This Order does not govern or preclude contact between counsel and

putative class members concerning the Moore litigation when the putative class member initiates

contact regarding the Moore litigation.

It is ORDERED that Defendant's attorneys may initiate ex parte contacts with putative

class members about this litigation and the facts underlying this litigation subject to the

following conditions:

(1) An Assistant United States Attorney ("AUSA") who has entered an appearance in this case must be the individual to engage in communications with putative class members, except that Eacata Gregory of the Office of Chief Counsel of the Secret Service may be the individual to make the initial contact with putative class members as described in paragraphs (2)-(4), below. Together, Assistant United States Attorneys ("AUSAs") who have entered appearances in this case and Ms. Gregory are referred to in this Order as "Defense Counsel."J Recognizing that Ms. Gregory

1 "Defense Counsel" refers only to an Assistant United States Attorney ("AUSA") who has entered an appearance in this case and counsel Eacata Gregory of the Office of Chief Counsel of the Secret Service; "Defendant's attorneys" refers generally to all attorneys for Defendant.

Case 1:00-cv-00953-RWR-DAR Document 732 Filed 01/25/13 Page 2 of 6
works in the building with some putative class members, Ms. Gregory may initiate no communications that relate to the substance of the Moore litigation or to the initial contact or otherwise seek to encourage a response to the written communication described in (4) below, without following the process provided in (2)-(4) below.
(2) If Defense Counsel has access to the e-mail address of the putative class member Defense Counsel seeks to contact (including but not limited to all putative class members that are current employees), the initial contact will be made via e-mail;
(3) If Defense Counsel does not have access to an e-mail address for the putative class member Defense Counsel seeks to contact, the initial contact will be made by telephone only to identify the Defense Counsel; to indicate that the Defense Counsel represents the Secret Service in the Moore, et al. v. Napolitano litigation; to state that the Defense Counsel would like to talk to the person contacted concerning the case, but that before any further discussions can occur the Defense Counsel is required by this Order to communicate certain information to the contacted person in writing; and to obtain an e-mail address or, if the contacted person has no e-mail address or does not wish to disclose it, to request a postal address;
(4) Once an e-mail or postal address for the putative class member has been obtained, the putative class member will be sent the following information: a. The United States Attorney's Office and the Office of Chief Counsel of the Secret Service represent the interests of the Defendant, the Secret Service, in the Moore, et al. v. Napolitano litigation.
b. You are a member of the putative plaintiff class in the Moore litigation. You do not need to have done anything up to this point, or do anything now, to be a class member. You do not need to make any decisions now regarding participation in this litigation.
c. The United States Attorney's Office and the Office of Chief Counsel of the Secret Service's interests are adverse to putative class members in the Moore litigation.
d. You have no obligation to respond to or provide information to the United States Attorney's Office or the Office of Chief Counsel of the Secret Service with respect to the Moore case. This includes, but is not limited to, your involvement with the Moore case or experiences related to the allegations of discrimination set forth in the Moore litigation. This is true no matter what position you have held in the federal government.
e. You may talk to a lawyer of your choosing or the attorney for the Plaintiffs in the Moore case before deciding whether to respond or provide information to the United States Attorney's Office or the Office of Chief Counsel of the Secret Service. If you would like to talk to the attorney for the Moore
2

Case 1:00-cv-00953-RWR-DAR Document 732 Filed 01/25/13 Page 3 of 6
Plaintiffs, you may contact attorney Jennifer Klar at (202) 728-1888, ext. 111 (office) or (703) 597-8600 (cell). f. The United States Attorney's Office and the Office of Chief Counsel of the Secret Service are taking the position that a class should not be certified. g. The information requested from you may be used by the United States Attorney's Office and the Office of Chief Counsel of the Secret Service to oppose class certification and/or the Plaintiffs' claims. (5) Defendant's attorneys are prohibited from requesting or soliciting waivers, releases, or commitments to opt out of the litigation. This Order does not preclude contacts with putative class members in the ordinary course of business or litigation other than the Moore litigation. The only exceptions to paragraphs (1)-(5) above are laid out below, with alternative requirements. Defendant's attorneys may ask putative class members to provide materials related to the Moore litigation if they would be asked to do so as part of the regular responsibilities and duties associated with their position, or for purposes related to the preservation or storage of documents, or similar matters provided that such matters are not directly related to the defense of the Moore litigation. Defendant's attorneys will provide the notification in 4(b) to all putative class members who serve in the Secret Service as Deputy Assistant Directors or above (Assistant Directors, the Deputy Director, and the Director) and notify them that they have the right to recuse themselves from discussions of the Moore case; as putative class members assume these positions, they will be provided this information. After the 4(b) notice and opportunity for recusal is given, Defense Counsel, or the Chief Counsel, may brief putative class members who serve in the Secret Service as Deputy Assistant Directors or above regarding the substance of the Moore litigation. However, if Defendant's attorneys seek to initiate communications with these putative class
3

Case 1:00-cv-00953-RWR-DAR Document 732 Filed 01/25/13 Page 4 of 6
members regarding their individual experiences (including as managers) for the purpose of defending the Moore case, Defendant's attorneys must follow the procedures set forth in (1)-(5) above.
If the Secret Service seeks to ask a putative class member questions in the context of an investigation by the Secret Service (such as by the Secret Service Office of Professional Responsibility/Inspection Division) arising from or directly related to the Moore litigation, the putative class member, at the time the interview is requested, will be provided the following information in writing: (1) the content of (4)(a-c) & (f-g) and (2) the following modification of 4(e): "You may talk to a lawyer of your choosing or the attorney for the Plaintiffs in the Moore case before deciding how to respond to this interview request. You are also entitled to have an attorney present at your interview, should you choose to do so. If you would like to talk to the attorney for the Moore Plaintiffs, you may contact attorney Jennifer Klar at (202) 728-1888, ext. III (office) or (703) 597-8600 (cell)." Additionally, when such an investigation is not criminal in nature, putative class members who are current employees will also be provided with an administrative warning that notifies the putative class member that failure to cooperate in the investigation could result in disciplinary actions?
In addition, if the United States Attorney's Office, Civil Division, or the Secret Service Office of the Chief Counsel is negotiating an agreement relating to an employment claim of a putative class member and that negotiation includes a waiver or release that either could be
2 The parties were unable to reach full agreement on the scope of this Order with respect to investigations by the Secret Service (such as by the Secret Service Office of Professional Responsibility/Inspection Division) and the Department of Homeland Security (such as by the Office ofInspector General). For this reason, Plaintiffs specifically note their reservation of the right to move in limine to exclude any statements made by or information received from class members in such proceedings, including but not limited to instances where cooperation is required by current employees and where the information in paragraphs 4(a-c), (e) (as modified with respect to investigations), and (f-g) are not given.
4

Case 1:00-cv-00953-RWR-DAR Document 732 Filed 01/25/13 Page 5 of 6
interpreted to affect the putative class member's claims in the Moore litigation or purports to exempt from the waiver or release the putative class member's claims in the Moore litigation, regardless of which party initiated the contact, the following information must be provided to the putative class member or his or her representative in writing: "You are a member of the putative plaintiff class in the Moore litigation. You do not need to have done anything up to this point, or do anything now, to be a class member. The enclosed waiver may affect your claims in the Moore litigation. You may talk to the attorney for the Plaintiffs in the Moore case regarding any affect on your claims in the Moore litigation before signing. The attorney for the Plaintiffs is Jennifer Klar, who may be contacted at (202) 728-1888, ext. 111 (office) or (703) 597-8600 (cell)." Failure to provide this information to the putative class member or his or her representative will result in any executed waiver or release being considered void for the purposes of the Moore litigation.
Reciprocally, it is ORDERED that Plaintiffs' counsel may initiate ex parte contacts with putative class members about this litigation and the facts underlying this litigation, subject to the following conditions:
(l) Plaintiffs' counsel of record must be the individual to contact the putative class member;
(2) If Plaintiffs' counsel has access to an e-mail address for the putative class member he/she seeks to contact, the initial contact will be made via e-mail;
(3) If Plaintiffs' counsel does not have access to an e-mail address for the putative class member he/she seeks to contact, the initial contact will be made by telephone only to identify Plaintiffs' counsel; to indicate that he/she represents the Plaintiffs in the Moore, et al. v. Napolitano case; to state that he/she would like to talk to the person contacted concerning the case but that before any further discussion can occur Plaintiffs' counsel is required by this Order to communicate certain information to the contacted person in writing; and to obtain an e-mail address, or, if the contacted person has no e-mail address or does not wish to disclose it, to request a postal address;
5

Case 1:00-cv-00953-RWR-DAR Document 732 Filed 01/25/13 Page 6 of 6

(4) Once Plaintiffs' counsel has obtained an e-mail or postal address for the putative class member, Plaintiffs' counsel will send to the putative class member the following information:

a. Plaintiffs' counsel represents the interests of the Plaintiffs and a proposed class of African-American Secret Service Special Agents in the Moore. et al. v. Napolitano litigation.

b. You are a member of the proposed plaintiff class in the Moore litigation. You do not need to have done anything up to this point, or do anything now, to be a class member. You do not need to make any decisions now regarding participation in this litigation.

c. Plaintiffs' counsel's interests are adverse to the Secret Service in the Moore litigation.

d. You have no obligation to respond to or provide information to Plaintiffs' counsel.

e. You may talk to a lawyer of your choosing or the attorney for the Secret Service in the Moore case before deciding whether to respond or provide information to Plaintiffs' counsel. If you would like to talk to an attorney for the Secret Service, you may contact attorney Marina Braswell at (202) 5147226, or Eacata Gregory of the Secret Service Office of Chief Counsel at (202) 406-5771.

f. Plaintiffs' counsel are taking the position that a class should be certified.

g. The information requested from you may be used by the Plaintiffs' counsel to support class certification or the Plaintiffs' claims.

(5) Plaintiffs' counsel are prohibited from requesting or soliciting commitments not to opt-out of the litigation.

This Order is not intended to preclude Plaintiffs' Counsel from talking with Named

Plaintiffs about this litigation. This Order does not govern Plaintiffs' Counsel's communications

with putative class members regarding any other EEO complaint or litigation, including

regarding tolling agreemen~EEO complaints during the pendency of the Moore litigation.

thi:2- / It / SO ORDERED on

~ o~ . ! ~" day (j1J"it4v

~ 20 ./ /~-\f'1 ~
/ L /" / lD/ llti1IJf.(; I-/ /

/,/
/~

United States Magistrate Judge
Deborah A. Robinson

United State. Magistrate Judge

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________

)

REGINALD MOORE, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 00-953 (RWR/DAR)

)

JANET NAPOLITANO,

)

)

Defendant.

)

____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiffs, African-American current and former Special

Agents (“SAs”) of the United States Secret Service, bring this

employment discrimination action individually and as a putative

class action on behalf of African-American SAs against the

Secretary of the United States Department of Homeland Security

alleging that the Secret Service engaged in a pattern and

practice of racial discrimination in promoting African-American

SAs to GS-14 and GS-15 positions and that the Secret Service’s

promotion process has an adverse impact upon African-American SAs

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42

U.S.C. § 1981a. The plaintiffs move to certify a class of

African-American current and former SAs who have allegedly been

denied promotions due to racial discrimination under Federal Rule

of Civil Procedure 23. The defendant moves to exclude the

testimony of plaintiffs’ expert, Dr. Charles Mann, offered in

-2-
support of the plaintiffs’ motion for class certification.
Because Dr. Mann is qualified to offer his expert opinion and his
testimony is relevant and reliable, the defendant’s motion will
be denied. Because the class plaintiffs have met Rule 23(a)’s
numerosity, commonality, typicality, and adequacy of
representation requirements, and because the plaintiffs have met
Rule 23(b)(3)’s predominance and superiority requirements, the
plaintiffs’ motion for class certification will be granted.
BACKGROUND
The relevant facts for the motion for class certification
were set out in Moore v. Napolitano (Moore III), 269 F.R.D. 21
(D.D.C. 2010) as follows:
Plaintiffs’ second amended complaint alleges that throughout the proposed class period,1 the Secret Service has maintained a pattern and practice of discrimination against African-American SAs with regard to selections for competitive positions, discipline, transfers, assignments, testing, and hiring. Plaintiffs generally allege that, over the course of many years, the Secret Service has engaged in a wide variety of racially discriminatory employment practices, that it harbors a racially insensitive environment that tolerates racist activities, and that [it] fails to protect its African-American SAs from racial discrimination. Although the Secret Service has received multiple complaints about the discriminatory conduct, plaintiffs claim, no sufficient remedy has been provided.
1 Plaintiffs have been given permission to plead in their second amended complaint non-promotion claims dating back to 1993 and “building block” claims dating back to 1999. See Moore v. Chertoff, 437 F. Supp. 2d 156, 165 (D.D.C. 2006).

-3-
I. PROMOTION EVALUATION PROCESS
The plaintiffs’ discrimination claims center around the Secret Service evaluation system known as the Secret Service Special Agent Merit Promotion Program (“MPP”). The MPP is used annually to evaluate SAs for promotion. An MPP score on a scale up to 100 points is used by an agent seeking promotion to bid on available or vacant positions throughout an upcoming bid cycle. (Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot. for Class Cert. (“Pls.’ Mem.”) at 15.) A participating GS-13 Agent receives a total MPP score that consists of three distinct parts: a (1) First Level evaluation; (2) Peer Panel evaluation; and (3) Second Level evaluation. A participating GS-14 Agent receives an MPP score that consists of two parts: a (1) First Level evaluation and (2) Second Level evaluation. (Id. at 15-16.) The first level evaluation to which both GS-13 and GS-14 participating agents are subject is completed by the candidate’s immediate supervisor and is signed by a Special Agent in Charge. (Id. at 16.) The supervisor rates each candidate using a scale of one to five on ten specific elements such as writing ability, problem solving, oral communication, knowledge of Secret Service rules and regulations, leadership and management ability, and negotiation skill. (Id.; see also Moore v. Summers [(Moore I)], 113 F. Supp. 2d 5, 8 (D.D.C. 2000).)
The Peer Review Panel applies to candidates seeking promotion to the GS-14 level. The Panel evaluates candidates on their “protection” and “investigation” experience. (Pls.’ Mem. at 16.) Peer Panel members include agents at the GS-14 level or above, who are given oral instructions on conducting the panel. Notes are not taken during the Peer Panel evaluation. (Id. at 17.)
A Second Level Panel evaluates candidates for GS14 or GS-15 promotions. GS-14 Agents are rated on six separate competencies, including written or oral communication, ability to lead or direct others, and ability to analyze problems and recommend solutions. (Id.) The Second Level Panel members include representatives from each of the seven Assistant Director (“AD”) offices, and the members are instructed not to take notes and may review and adjust the ratings at their discretion. (Id. at 17-18.)
Once an agent is given an MPP score, she may use her score to bid on vacant positions. In some cases, a

-4-
vacant position may be filled without the position having to be posted. (Id. at 18.) The MPP scores are then used to generate the Best Qualified List (“BQL”). The candidates are ranked by their MPP scores and the MPP policy creates a cut-off for the ranked list of bidders or candidates. (Id. at 19.) The agent with the highest MPP score is not guaranteed that he or she will be awarded the vacant position. Instead, a recommendation is made to the Director by an Advisory Board that consists of the Deputy Director, seven ADs, and the Chief Counsel. In making its decision, the Advisory Board receives the assignment history, bid history, entry on duty date, and the date of the last promotion of each bidder or candidate listed on the BQL. (Id.) For each vacant position, the relevant AD makes a selection recommendation to the Advisory Board from the BQL for that position. (Id. at 20.) Based on the AD’s recommendation, the Advisory Board makes a recommendation to the Director. (Id.)
II. AGENTS’ INDIVIDUAL CLAIMS
A. Reginald Moore Reginald Moore has been employed by the Secret Service for more than 20 years and served as a GS-13 agent in the Operations Section and the White House Joint Operations Center. (Id. at 33 (citing Ex. 53).) An African-American, Moore bid for and was not selected for more than 180 GS-14 positions from 1999 to 2002, and at one point was assigned to train a white selectee for a position on which he had formerly bid. (Id. at 34-35.) Moore eventually was promoted to a GS-14 and a GS-15 position, but he alleges that his promotions came only after being transferred to a Chicago field office, serving as an agent for 18 years, and filing an EEO complaint and a lawsuit. (Id. at 35-36.)
B. Luther Ivery Luther Ivery is an African-American former agent who became eligible to bid on GS-14 positions in 1993, but was not selected for more than 130 GS-14 positions. For several positions, “his MPP score was not high enough to place him on the [BQL].” (Id. at 37.) Ivery alleges that even once he made the BQL, “he was passed over for scores of promotions[.]” (Id.) Ivery was promoted to a GS-14 position in 2002, but alleges that his promotion came only as a result of his having filed suit. (Id. at 39.) Ivery retired from the Secret

-5-
Service in 2004, but asserts that “he would have reached the GS-15 . . . level before retirement” had he not experienced the Secret Service’s discriminatory practices. (Id.)
C. John Turner John Turner is an African-American former SA who bid for more than 80 GS-14 positions for which he was not selected. (Id. at 40.) Originally his MPP score was not high enough to place him on the BQL, but once it was, he was “nevertheless denied dozens of GS-14 positions on which he bid.” (Id.) Turner alleges that he was promoted “six years after he first became eligible” and only after filing an EEO complaint and a lawsuit. (Id. at 41.)
D. Cheryl Tyler Cheryl Tyler is a former SA who was employed by the Secret Service from 1984 to 1999. (Id.) Tyler alleges that she became eligible to bid for a GS-14 promotion in 1993, but deferred bidding until 1996 because her MPP scores were not competitive enough. (Id. at 42-43.) Tyler was the only African-American female SA in the Atlanta Field Office and that, “[a]t the time she resigned, and . . . the filing of this lawsuit, there were no African-American female Agents in a GS-14 position.” (Id. at 41-42.) Another agent was “troubled . . . by . . . Tyler’s experience in the Secret Service’s Office of Training” because Tyler had “worked in every possible assignment and/or position within the Office, yet she was continually passed over for promotion.” (Id. at 43 (quoting 7/28/00 Webb Decl. ¶ 36).) Tyler asserts that she resigned in 1999 “because she could not reach the GS-14 level as a result of discrimination” and that the Agency told her that it “was not ready for an African-American female supervisor.” (Id. at 44 (citing C. Tyler Decl. ¶¶ 36, 34).)
E. Yvette Summerour Yvette Summerour claims that she experienced discrimination by the Secret Service even before it hired her because it delayed her hiring by five years and that, after being hired, from 1998 through 2001, she “applied for and was denied promotion to almost 70 GS-14 positions.” (Id. at 44-45.) In the “calendar year before this lawsuit was filed . . . , [she] applied for and was denied promotion to twelve GS-14

-6-
positions.” (Id. at 45.) Summerour also alleges that she was “passed over for promotion in favor of a white (male) Agent who had previously been transferred” as a result of sexually harassing her. (Id. at 45-46.) Summerour claims further that she was “denied dozens of promotions for which she made the [BQL]” and that it was only as a result of this lawsuit that she “was finally promoted to a GS-14 position[.]” (Id. at 46.) Summerour “and another African-American female [agent] . . . were the first GS-14 African-American female [SAs] in the history of the Secret Service.” (Id.)
F. Kenneth Rooks Kenneth Rooks is an African-American SA who joined the Secret Service in 1995 and has been a GS-13 since approximately 2000. (Id. at 47.) Rooks asserts that he has “bid for over 160 GS-14 positions, but has not been promoted” and that, even though he received a high score from his supervisor, he “was kept off the [BQL] or ranked low on the [BQL], and thus was effectively disqualified from promotions.” (Id. at 47-48.)
G. Andrew Harris Andrew Harris was hired by the Secret Service in 1987 and alleges that due to the Secret Service’s discriminatory practices against African-Americans, he “had to file EEO complaints in order to be (1) hired, (2) promoted to GS-14, and (3) promoted to GS-15.” (Id. at 49.) Harris alleges that he “bid on and was denied more than 20 GS-14 positions, despite his qualifications, due to the discriminatory promotions process.” (Id. (citing Ex. 80).) Harris alleges that the Secret Service told him that he must “bid outside of D.C. to be promoted” even though the requirement to bid outside of the District of Columbia “is not written in the MPP, and is not imposed on white Agents; instead, it only serves as a barrier to the promotion of African-American Agents.” (Id. at 51.) For support, Harris compiled a list of “thirty-two nonAfrican-American Agents who were promoted from GS-13 to GS-14, and from GS-14 to GS-15, without ever leaving the Washington, D.C. area.” (Id. at 51-52 (citing Ex. 85).)
H. Leroy Hendrix Leroy Hendrix alleges that “[b]ecause of the Secret Service’s discriminatory promotions process, [he] was forced to bid for more than 230 different GS-

-7-
14 positions prior to finally being promoted, even though he was qualified for each and every position.” (Id. at 52 (citing Ex. 87).) Hendrix, an AfricanAmerican, further alleges that he was not selected for a position “when his score was ten points higher than the selectee’s score.” (Id. at 53 (citing Ex. 88 at 455).) Hendrix “bid on and was not selected for over forty GS-15 positions” and claims that, although he was “the most qualified choice” for a Special Services Division/White House Mail position, he was not selected and was “forced to vacate his office to make room for the white selectee, and . . . train that Agent.” (Id. at 53-54.) Hendrix states that he “was finally promoted to a GS-15 Assistant Special Agent in Charge position in the Los Angeles Field Office” but that “he was required to accept a cross-country move to be promoted[.]” (Id. at 54.)
Moore III, 269 F.R.D. at 24–27.
The plaintiffs have moved for class certification three
times before. The plaintiffs’ third motion for class
certification was considered in Moore III. There, the plaintiffs
moved to certify a class
on behalf of all current and former African-American Agents who were employed as Criminal Investigators (GS/GM-1811) and who had the required time-in-grade to seek promotion to competitive positions at the GS-14 level at any time during the years 1995 to 2004, and/or who had the required time-in-grade to seek promotion to competitive positions at the GS-15 level at any time during the years 1995 to 2005.
Id. at 27 (internal quotation marks and citation omitted).
Although the plaintiffs’ proposed class satisfied the numerosity
and commonality prongs, the plaintiffs’ motion for class
certification was denied without prejudice because the class
representatives’ claims were not typical of the class members’

-8-
claims and there were conflicts of interest within the class.
Id. at 24, 35.
The plaintiffs have again moved for class certification. In
an effort to cure the defects in the proposed class denied
certification in Moore III, the plaintiffs have narrowed their
proposed class. The plaintiffs now move to certify a class on
behalf of
[a]ll current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995-2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995-2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, Deputy Director, or the Director of the Secret Service during the class period.
Pls.’ Mot. for Class Cert. at 2.
In support of their motion for class certification, the
plaintiffs offer the report of statistician Dr. Charles Mann,
which concludes that the MPP process had an adverse impact on
African-American SAs applying for promotion to GS-14 and GS-15
positions during the class period (i.e., 1995 to 2004 for
promotions to GS-14 positions and 1995 to 2005 for promotions to
GS-15 positions) and a four-year background period (i.e., 1991 to
1994). The defendant moves to exclude Dr. Mann’s testimony under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing that
Dr. Mann’s expert opinions are unreliable and irrelevant.

-9-
DISCUSSION
I. MOTION TO EXCLUDE EXPERT TESTIMONY2
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Under Rule 702, district courts are
gatekeepers of expert evidence. See Daubert, 509 U.S. at 589. A
court must determine as an initial matter whether the proffered
2 In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553–54 (2011), the Supreme Court suggested that a court should probably determine whether expert testimony is admissible under Rule 702 and Daubert at the class certification stage. See Wal-Mart, 131 S. Ct. at 2553–54 (“The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class action proceedings. We doubt that is so[.]”) (citation omitted). The D.C. Circuit has not spoken about whether district judges must conduct a full Daubert analysis at the class certification stage, and courts in other circuits disagree as to what is required of a district judge deciding a motion for class certification. See In re Rail Freight Fuel Surcharge Antitrust Litig., 286 F.R.D. 88, 92 (D.D.C. 2012) (discussing circuit split). Nevertheless, “dicta of the United States Supreme Court should be very persuasive.” Gabbs Exploration Co. v. Udall, 315 F.2d 37, 39 (D.C. Cir. 1963) (internal quotation marks omitted); see also Bangor Hydro-Electric Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996) (stating that “Supreme Court dicta tend[] to have somewhat greater force” than dicta from other courts). Accordingly, the defendant’s motion to exclude Dr. Mann’s expert testimony will be considered before turning to the plaintiffs’ motion for class certification.

-10witness is qualified to give the expert opinion he seeks to offer. See Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999); Daubert, 509 U.S. at 589. Then, a court must “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. “Evidence is relevant if[] it has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence[.]”. Fed. R. Evid. 401. When considering the admissibility of scientific expert testimony, relevance is primarily a question of “fit,” and “requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Daubert, 509 U.S. at 591–92.
Expert testimony is reliable if it is based on scientific knowledge. Id. at 589-90. “The [reliability] inquiry forces the court to focus on [the expert’s] principles and methodology, not on the conclusions that they generate[.]” Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 (D.C. Cir. 2001) (internal quotation marks omitted). In assessing the expert’s methodology, a court may consider “whether the theory or technique had been tested, whether it had been subjected to peer review and publication, the method’s known or potential error rate, and the method’s general acceptance in the scientific community.” Id. at 1127 (citing Daubert, 509 U.S. at 593–94). “Expert testimony that rests solely on ‘subjective belief or unsupported speculation’ is not

-11reliable.” Groobert v. President & Dirs. of Georgetown Coll., 219 F. Supp. 2d 1, 6 (D.D.C. 2002) (quoting Daubert, 509 U.S. at 590).
“In general, Rule 702 has been interpreted to favor admissibility.” Khairkhwa v. Obama, 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (citing Daubert, 509 U.S. at 587; Fed. R. Evid. 702 Advisory Committee’s note (“A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.”)). Nonetheless, the proponent of the expert witness -- here, the plaintiffs -- bears the burden to prove that the expert testimony is reliable by a preponderance of the evidence. Meister, 267 F.3d at 1127 n.9.
The plaintiffs offer Dr. Mann’s report to show that the MPP promotion process had a statistically significant adverse impact on African-American SAs in support of both the plaintiffs’ disparate treatment pattern and practice claim and their disparate impact claim. Specifically, Dr. Mann would offer three opinions. First, relying on his “applicant to best qualified list” analysis,3 Dr. Mann would testify that “[t]he use of MPP scores to create a cut-off for inclusion on the best qualified
3 The “applicant to best qualified list” analysis compares the number of African-American SAs expected to make a best qualified list for a position based on the number who applied for the position with the actual number of African-American SAs who made the best qualified list. See Pls.’ Opp’n to Mot. to Exclude Mann Test., Ex. 2 (Fourth Supp. Decl. of Charles R. Mann, Ph.D. (“Mann Decl.”)) ¶¶ 35-43.

-12list disproportionately disqualifies African-American Special
Agents for promotion.” Pls.’ Opp’n to Def.’s Mot. to Exclude the
Test. of Charles R. Mann Offered in Supp. of Pls.’ Mot. for Class
Cert. (“Pls.’ Opp’n to Mot. to Exclude Mann Test.”) at 5; see
also Pls.’ Opp’n to Mot. to Exclude Mann Test., Ex. 2 (Fourth
Supp. Decl. of Charles R. Mann, Ph.D. (“Mann Decl.”)) ¶¶ 36–43.
Dr. Mann would testify that he found a statistically significant
racial disparity in GS-14 and GS-15 promotions for the background
period and the class period. Pls.’ Opp’n to Mot. to Exclude Mann
Test. at 5; see also Mann Decl. ¶¶ 36–43. Second, Dr. Mann conducted a “mean rank” analysis4 and “effective pass rate” analysis,5 and concluded that “the consideration of rank by MPP
score on the best qualified list disproportionately disadvantages
African-American Special Agents.” Pls.’ Opp’n to Mot. to Exclude
Mann Test. at 5; see also Mann Decl. ¶¶ 49–75. Dr. Mann would
testify that there is a statistically significant racial
disparity in the GS-14 and GS-15 position best qualified lists
during the background and class periods. Pls.’ Opp’n to Mot. to
Exclude Mann Test. at 5; see also Mann Decl. ¶¶ 49–75. Third,
4 The “mean rank” analysis compares “the average, or mean, rank of African-American[] and non-African-American[ SAs] on the best qualified list” based on their MPP scores. Pls.’ Opp’n to Mot. to Exclude Mann Test. at 37. 5 The “effective pass rate” analysis tests “whether the effective cut-off score” -- “the lowest MPP score held by an Agent who was promoted” -- “on the best qualified list had an adverse impact on African-Americans.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 38.

-13-
based on his “best qualified to selected” analysis,6 Dr. Mann
concludes that “[f]ewer African-American Special Agents are
promoted from the best qualified list than would be expected in
the absence of discrimination[.]” Pls.’ Opp’n to Mot. to Exclude
Mann Test. at 5; see also Mann Decl. ¶¶ 45–48. Dr. Mann found
statistically significant racial disparities in GS-13 to GS-14
level promotions that occurred from 1998 to 2000, and in GS-14 to
GS-15 level promotions that occurred in 2002 to 2005. Pls.’
Opp’n to Mot. to Exclude Mann Test. at 5; see also Mann Decl.
¶¶ 45–48.
There is no dispute that Dr. Mann is qualified to offer
statistical expert testimony.7 Instead, the Secret Service
6 The “best qualified to selected” analysis “compares the number of African American promotions ‘expected’ based on the number of African Americans who made the best qualified list to the number of African-Americans actually promoted.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 41.
7 The defendant’s motion does not dispute that Dr. Mann is qualified to offer expert opinions based on statistical analyses. See also Pls.’ Opp’n to Mot. to Exclude Mann Test., Ex. 1 (Charles Mann Dep. at 7:15–20). Dr. Mann has a Bachelor of Science in Applied Mathematics, a Master of Science in Mathematical Statistics, and a doctorate in Statistics. Mann Decl., Attach. A (Mann Resume at 1). Dr. Mann is the President of a “consulting firm which provides statistical, econometric and data processing services.” Id. In this capacity, Dr. Mann “provides expert witness services and statistical guidance in connection with a wide range of litigation.” Id. Dr. Mann has also testified in numerous state and federal court proceedings. See Mann Decl., Attach. A. (Mann Test. List). Based on his extensive education and experience, Dr. Mann is qualified to testify as an expert in statistics.

-14argues that Dr. Mann’s testimony should be excluded because it is unreliable and is not relevant.
A. Relevance 1. Relevance of statistical evidence to disparate treatment pattern and practice claim and disparate impact claim
The plaintiffs assert that all three of Dr. Mann’s opinions are relevant to both their disparate treatment pattern and practice claim and their disparate impact claim. The defendant counters that the plaintiffs’ claims require different statistical showings. See Reply in Supp. of Def.’s Mot. to Exclude the Test. of Charles R. Mann at 2.
While “[f]unctionally the disparate treatment and disparate impact models have different aims,” the same statistical evidence is often relevant to both disparate treatment pattern and practice claims and disparate impact claims. Segar v. Smith, 738 F.2d 1249, 1266-67 (D.C. Cir. 1984). “Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Disparate treatment occurs “when an individual alleges that an employer has treated that particular person less favorably than others because of the plaintiff’s race, color, religion, sex, or national origin.”

-15-
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985–86 (1988).
In a disparate treatment case, “the plaintiff is required to
prove that the defendant had a discriminatory intent or motive.”
Id. at 986. One method of proving disparate treatment is to show
that an employer engaged in a pattern and practice of
discrimination. Where a plaintiff alleges such systemic
discrimination, “[t]he ultimate factual issues are . . . simply
whether there was a pattern or practice of such disparate
treatment and, if so, whether the differences were ‘racially
premised.’” Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 335 (1977). In a pattern and practice case, a plaintiff has
to “establish by a preponderance of the evidence that racial
discrimination was the company’s standard operating procedure[,]
the regular rather than the unusual practice.” Id. at 336. The
plaintiff may meet his burden by offering circumstantial evidence
that is “entirely statistical in nature.” Palmer v. Shultz, 815
F.2d 84, 90 (D.C. Cir. 1987); see also Segar, 738 F.2d at 1267.
Statistics showing racial or ethnic imbalance are probative in a [pattern and practice case] only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant[.]

-16Teamsters, 431 U.S. at 339 n.20; see also Segar, 738 F.2d at 1267 (explaining that a plaintiff in a pattern and practice case alleging race discrimination may provide evidence “of a disparity in the position of members of the plaintiff class and comparably qualified whites”).
“Disparate impact claims . . . ‘involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.’ ‘Proof of discriminatory motive . . . is not required under a disparateimpact theory.’” Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999) (second alteration in original) (citation omitted) (quoting Teamsters, 431 U.S. at 335 n.15). To establish disparate impact, a plaintiff “must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at 994; see also Young v. Covington & Burling LLP, 846 F. Supp. 2d 141, 156–57 (D.D.C. 2012) (“The plaintiff’s evidence of causation must establish that the employment practice ‘select[s] applicants for hire or promotion in a . . . pattern significantly different from that of the pool of applicants.’” (internal quotation marks omitted) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975))). Despite the differences

-17-
between pattern and practice disparate treatment claims and
disparate impact claims, “an important point of convergence” is
that both “are attacks on the systemic results of employment
practices.” Segar, 738 F.2d at 1267.
The pattern or practice claim amounts to an allegation that an observed disparity is the systemic result of an employer’s intentionally discriminatory practices. The disparate impact claim amounts to an allegation that an observed disparity is the systemic result of a specific employment practice that cannot be justified as necessary to the employer’s business. Consequently the proof of each claim will involve a showing of disparity between the minority and majority groups in an employer’s workforce.
Id. Because both the disparate treatment and disparate impact
claims can be proven using the same statistical showing, the
relevance of Dr. Mann’s testimony can be considered for both of
the claims at the same time.
2. Relevance of statistical evidence showing an adverse impact at individual stages of a multiple step employment decision process
Dr. Mann’s statistical evidence shows an adverse impact at
the individual levels of the MPP process. While the defendant
does not dispute that statistical evidence showing an adverse
impact at an individual stage is relevant to the plaintiffs’
disparate impact claim, the defendant argues that Dr. Mann’s
testimony is not relevant to the plaintiffs’ disparate treatment
pattern and practice claim because none of Dr. Mann’s conclusions
are based on the “relevant statistic” -- “a comparison of the
promotion rates of qualified (or eligible) African-American and

-18non-African-American special agents.” Mem. in Supp. of Def.’s Mot. to Exclude the Test. of Charles R. Mann (“Def.’s Mem. to Exclude Mann Test.”) at 17–20. Stated simply, the defendant argues that only a disparity at the bottom line creates an inference of discrimination in a pattern and practice case. However, the Supreme Court impliedly dismissed this argument in Connecticut v. Teal, 457 U.S. 440 (1982). In Teal, four AfricanAmerican employees brought suit claiming that the employer’s multi-step promotion process had a disparate impact on AfricanAmericans because the first step in the promotion process, a written examination, had an adverse impact on African-Americans. Id. at 443. The employer countered that despite AfricanAmericans’ poor performance on the written examination, the employer applied “an affirmative-action program in order to ensure a significant number of minority supervisors.” Id. at 444. Thus, the employer argued that its promotion process did not have a disparate impact on the plaintiffs because the “employer has compensated for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black employees to reach a nondiscriminatory ‘bottom line.’” Id. at 453. After considering the purpose of disparate impact claims, the Supreme Court held that, in disparate impact cases, the “bottom line defense” is “no answer” to the plaintiffs’ prima facie case of employment discrimination. Id. at 456.

-19-
Although the “bottom line” defense is not applicable in a
disparate impact case, the Court in Teal noted that
a nondiscriminatory “bottom line” and an employer’s good-faith efforts to achieve a nondiscriminatory work force, might in some cases assist an employer in rebutting the inference that particular action had been intentionally discriminatory: “Proof that [a] work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided.”
Id. (emphasis added) (quoting Furnco Constr. Corp. v. Waters, 438
U.S. 567, 580 (1978)) (citing Teamsters, 431 U.S. at 339 n.20).
Although statistics showing “a nondiscriminatory bottom line” can
be used to rebut the inference of discrimination, “[a] racially
balanced work force cannot immunize an employer from liability
for specific acts of discrimination.” Furnco, 438 U.S. at 579.
Therefore, statistical evidence showing an adverse impact at a
component level may be offered in support of a pattern and
practice claim. See United States v. City of New York, 683 F.
Supp. 2d 225, 249 (E.D.N.Y. 2010) (finding that statistical
evidence showing statistically significant disparities at
individual levels of the employer’s hiring process was sufficient
to establish a prima facie case that the employer had a pattern
and practice of discriminating against African-American
applicants).8
8 Contrary to the defendant’s argument, allowing statistical evidence at the component level to create an inference of discrimination to support the plaintiffs’ pattern and practice claim is consistent with Moore I. In Moore I, the plaintiffs’

-20-
Here, Dr. Mann seeks to testify that there are statistically
significant disparities at the individual stages of the MPP
process based on his applicant to best qualified list analysis
and his best qualified list to selected analysis. Because his
analyses of these stages show disparities between African-
American SAs and non-African-American SAs, Dr. Mann’s testimony
motion to enjoin the Secret Service from further use of the MPP process was denied because the plaintiffs’ statistical evidence was “insufficient to give rise to an inference that the performance evaluation system is discriminatory[.]” 113 F. Supp. 2d at 7. The plaintiffs offered statistical evidence showing a disparity between African-American and non-African-American SAs promoted to GS-14 positions. However, the statistical analysis erroneously assumed that all African-American GS-13 SAs were eligible for promotion to GS-14 when, in reality, only SAs that completed three years “in grade” and who bid on a position were eligible. Id. at 20–21. That is, the plaintiffs’ evidence was insufficient because it failed to control for the “most common nondiscriminatory reason for a systemic disparity in treatment”: ineligibility. Id. at 20. Because the plaintiffs’ statistical evidence was not “‘based on a comparison of those [AfricanAmerican SAs] eligible for selection who were actually selected with the corresponding proportion of eligible [non-AfricanAmerican SAs] who were actually selected[,]” id. (quoting Palmer, 815 F.2d at 90), the plaintiffs’ statistical evidence did “not demonstrate that a racial disparity exists in the promotion of GS-13s to GS-14[,]” id. at 21. Accordingly, the plaintiffs’ motion for preliminary injunction was denied because the plaintiffs did not demonstrate a likelihood of success on the merits. Id. at 21. Moore I stands for the proposition that discrimination cannot be inferred from statistical analyses that include African-American SAs who are ineligible for promotion in the sample population. Here, Dr. Mann’s analyses consider only GS-13s and GS-14s eligible for promotion. Mann Decl. ¶¶ 16–17; see also Pls.’ Opp’n to Mot. to Exclude Mann Test. at 22. Accordingly, Dr. Mann’s current analyses do not contain the same deficiencies identified in the statistical analyses considered in Moore I.

-21-
is relevant to the plaintiffs’ disparate treatment and disparate
impact claims.9
Dr. Mann’s testimony based on his mean rank and effective
pass rate analyses is also relevant to the plaintiffs’ claims.
The plaintiffs provide evidence that the members of the promotion
Advisory Board testified that they considered a SA’s rank on the
best qualified list when making promotion recommendations. See
id., Ex. 5 (Examples from Def.’s Resp. to Pls.’ Interrogs. 4(c));
see also Pls.’ Opp’n to Mot. to Exclude Mann Test. at 37. If a
SA’s rank on a best qualified list affects whether that SA will
be promoted, Dr. Mann’s mean rank analyses will help the trier of
fact determine whether the MPP process is discriminatory. The
plaintiffs also provide evidence that some “members of the
promotion Advisory Board . . . [felt] that some Special Agents
who made the best qualified list had scores that were simply too
9 That Dr. Mann did not directly compare the MPP scores received by African-American and non-African-American SAs does not compel a different conclusion regarding the relevancy of Dr. Mann’s applicant to best qualified list analysis as the defendant argues. The defendant asserts that the “fact in issue” is “whether African-American SAs receive lower MPP scores than nonAfrican-American SAs.” Def.’s Mem. to Exclude Mann Test. at 33. The plaintiffs establish, however, that Dr. Mann’s applicant to best qualified list analysis is relevant because it “measure[s] the adverse impact of how MPP scores are actually used,” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 33, and “models the realworld effect on African-American Agents of the MPP’s first use of scores by measuring the impact by race on failure to make the best qualified list,” id. at 34. The applicant to best qualified list analysis is based on the MPP scores and is relevant as a proxy for the scores. Because this analysis showing an adverse impact on African-American SAs is probative of whether the MPP process is discriminatory, it is relevant.

-22low to result in promotion.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 38; see also id., Ex. 8 (Examples from Def.’s Resp. to Pls.’ Interrogs. 4(c)). Based on this testimony, Dr. Mann analyzed whether “there was an adverse impact on African-American Special Agents with respect to Agents who made the best qualified list yet had an MPP score lower than the effective cut-off score.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 38. Thus, even if a SA makes a best qualified list, his MPP score may be too low to be considered for a promotion. Because the plaintiffs have presented evidence that to actually be considered for a promotion a SA must not only make the best qualified list but must also have a competitive MPP score, Dr. Mann’s effective pass rate analysis is relevant.
B. Reliability Dr. Mann bases his testimony on “pools analyses.” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 29. “A pools analysis looks to pools of similarly situated employees to determine how the promotion success of a certain pool . . . stacks up against that of a control group[.]” McReynolds v. Sodexho Marriott Servs., Inc. (McReynolds II), 349 F. Supp. 2d 1, 8 (D.D.C. 2004). The statistician must “compare ‘similarly situated employees’ and . . . the pools must be properly defined by controlling for a variety of factors[,]” id., such as seniority and education in a non-promotion case, see Coward v. ADT Sec. Sys., Inc., 140 F.3d

-23271, 276 (D.C. Cir. 1998) (Sentelle, J., concurring). In a nonpromotion case, the statistician proceeds from the assumption that “absent discriminatory promotion practices, the proportion of the protected group in each of the job classifications and grade levels would approximate the proportion of the protected group with the minimum necessary qualifications for promotion in the employer’s labor force as a whole.” Davis v. Califano, 613 F.2d 957, 964 (D.C. Cir. 1979) (citing Teamsters, 431 U.S. at 339 n.20).
Dr. Mann described the application of his methodology. First, he used information he received from the Secret Service to define his pools, and considered pools composed of eligible bidders “for whom selection would be a promotion (increase in grade) and who ha[d] not already been selected for another promotion from the bid list” who bid on any vacancy announcement during a period of time. Mann Decl. ¶ 16. In his applicant to selected analysis, Dr. Mann included only “informative” pools. According to Dr. Mann, “informative” pools are diverse (i.e., “pools that have at least one African-American eligible and at least one non-African-American eligible”) and competitive (i.e., pools that “have at least one successful eligible and at least one not successful eligible”). Id. ¶ 77. Then, Dr. Mann conducted the following analyses: (1) applicant to best qualified list, (2) best qualified list to selected, (3) mean rank on the

-24-
best qualified list, and (4) attainment of the effective pass
rate. Id. ¶¶ 36–43, 45–75. Finally, Dr. Mann reported that his
results were statistically significant when his analyses showed a
0.025 probability standard using a one-tailed test. Pls.’ Opp’n
to Mot. to Exclude Mann Test. at 23. Dr. Mann explained that he
used one-tailed tests instead of two-tailed tests because, unlike
a two-tailed test, a one-tailed test can be used to determine
whether an observed difference is adverse or favorable to
African-Americans.10 Mann Decl. ¶¶ 30-32. Dr. Mann’s analyses
report statistical significance over an aggregated period of
years as opposed to annually.
Pool analyses can satisfy Daubert. See, e.g., McReynolds v.
Sodexho Marriott Servs., Inc. (McReynolds III), 349 F. Supp. 2d
30, 45 (D.D.C. 2004). The defendant’s proffered statistical
10 “[T]he terms ‘one-tailed’ and ‘two-tailed’[] . . . refer to the ‘tails’ or ends of the bell-shape curve, which represents in graph form a ‘random normal distribution.’” Palmer, 815 F.2d at 93 (citing W. Curtis, Statistical Concepts for Attorneys 72-73 (1983)). “In these random distributions, the area under any segment of the bell curve measures the probability of that range of results occurring randomly.” Id. As Dr. Mann asserts, onetailed and two-tailed analyses serve different purposes. A one-tailed analysis tests whether a difference is significant in one direction. For example, a one-tailed analysis can be used to test “whether a group is disfavored in hiring decisions.” Hartman v. Duffey, 88 F.3d 1232, 1238 (D.C. Cir. 1996). A two-tailed analysis tests whether a difference is significant in either direction. For example, a two-tailed analysis can be used to test whether a group is treated differently -- be it better or worse -- than another group. See Palmer, 815 F.2d at 95 (explaining that two-tailed tests can be used to identify “statistically significant deviations in either direction from an equality in selection rates”).

-25expert, Dr. Paul White, also used pools analyses for some of his analyses. Pls.’ Opp’n to Mot. to Exclude Mann Test. at 29 & n.25; see also Def.’s Mem. to Exclude Mann Test., Ex. 4, White Report at 7. Dr. Mann’s decision to exclude non-competitive best qualified lists “where fewer Agents bid for the position than the number used to create the cut-off score[,]” Pls.’ Opp’n to Mot. to Exclude Mann Test. at 30, does not make Dr. Mann’s testimony unreliable as the defendant argues, Def.’s Mem. to Exclude Mann Test. at 34-36. Even if the non-competitive lists are among the data relevant to Dr. Mann’s analyses, there is “no authority rigidly requiring that an expert review all relevant information in a case in order to have his or her testimony admitted into evidence.” SEC v. Johnson, 525 F. Supp. 2d 70, 75 (D.D.C. 2007). “Indeed, Federal Rule of Evidence 705 specifically ‘eliminates the prior practice of requiring an expert to set out, specifically, the facts and data underlying an opinion before allowing the expert to testify.’” Id. at 75–76 (citing Ambrosini v. Labarraque, 101 F.3d 129, 132 (D.C. Cir. 1996)). Thus, Dr. Mann’s failure to review lists he considered to be noninformative is not a ground for excluding his testimony; instead, “it provides subject matter for cross-examination.” Id. at 76.11 Similarly, the defendant’s argument that Dr. Mann did not report
11 An expert who fails to review relevant data, and can offer no good reason for it or does not understand the omitted relevant data, has not reliably applied a scientific methodology. See Fed. R. Evid. 702(d). That, of course, did not occur here.

-26all of the results from his best qualified to selected analysis, Def.’s Mem. to Exclude Mann Test. at 22–23, is not conclusive because Dr. Mann was not required to apply his methodology “to all the evidence presented.” See Johnson, 525 F. Supp. 2d at 75–76. His testimony must be based upon “sufficient” facts or data. Fed. R. Evid. 702(b).
The defendant argues that Dr. Mann’s opinions are unreliable because they are not based on statistically significant results. See Def.’s Mem. to Exclude Mann Test. at 27-29. “[G]ross statistical disparities” between African-American SAs and nonAfrican-American SAs alone may raise an inference of discrimination. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977) (citing Teamsters, 431 U.S. at 339). “[T]he threshold at which statistical evidence alone raises an inference of discrimination [cannot] be lower than 1.96 standard deviations, whether one views this number as signifying a 5% probability of randomness using a two-tailed approach or a 2.5% probability of randomness using a one-tailed approach.” Palmer, 815 F.2d at 96 n.9. Although “[t]he D.C. Circuit has expressed a preference for two-tailed tests over one-tailed tests” to determine whether statistical evidence alone creates an inference of discrimination in a Title VII case, Moore I, 113 F. Supp. 2d at 20 n.2 (citing Palmer, 815 F.2d at 95), the Circuit “by no means intend[ed] entirely to foreclose the use of one-tailed

-27tests[.]” Palmer, 815 F.2d at 95. Dr. Mann used one-tailed tests and concluded that stages of the MPP process have an adverse impact on African-American SAs where his analyses showed results that were statistically significant at a 2.5% probability of randomness. Although two-tailed tests are favored in Title VII cases, Dr. Mann reliably applied the one-tailed tests and his conclusions followed from his analyses.
Dr. Mann aggregated data across periods of time, a method the defendant criticizes as unreliable because the results are not based upon individual years. See Def.’s Mem. to Exclude Mann Test. at 21-23. In his deposition, Dr. Mann explained that he did not report year-by-year data because he believed that there was “no real significance to the years.” Pls.’ Opp’n to Mot. to Exclude Mann Test., Ex. 1, Mann Dep. at 260:21-261:6. He also stated that unlike aggregated data, disaggregated annual data may have only yielded “small numbers and tests not powerful enough to detect [a disparity].” Id. “Where, as here, ‘policies have remained unchanged over a period of time and there have been no substantial changes in the [promotion process], it would be unreasonable to require a plaintiff to break his or her data into year by year subgroups.’” Eldredge v. Carpenters 46 N. Cal. Cntys. Joint Apprenticeship & Training Comm., 833 F.2d 1334, 1339 n.7 (9th Cir. 1987) (quoting D. Baldus & J. Cole, Statistical Proof of Discrimination § 7.1 (1986 Supp.)); see also Lilly v.

-28Harris-Teeter Supermarket, 720 F.2d 326, 336 n.17 (4th Cir. 1983) (“If possible, it is highly preferable to examine the statistical data for the time period in combined form, rather than year by year. Combined data is more likely to demonstrate the ‘pattern or practice’ of defendant’s policies, whether discriminatory or not.’”). The plaintiffs have provided sufficient evidence that the MPP process did not substantially change over the class period. Thus, it was a reliable for Dr. Mann to aggregate data across several years.
In his four analyses, Dr. Mann also aggregated data across vacant positions. In Segar v. Smith, the D.C. Circuit described “repeatedly disaggregating [data] until groups were too small to generate any statistically significant evidence of discrimination” as a “methodological misstep[.]” 738 F.2d at 1286. This is because “if an expert isolates units or groups and runs separate analyses for them, such methodology may mask whether ‘the overall decision-making process’ produces a discriminatory result, whereas analyzing an entire group will indicate whether the identified employment practice was the cause of the disparity.” McReynolds II, 349 F. Supp. 2d at 15 (quoting Smith v. Xerox, 196 F.3d 358, 368–69 (2d Cir. 1999)). Thus, “‘[p]ooling data is sometimes not only appropriate but necessary, since statistical significance becomes harder to attain as the sample size shrinks.’” Id. (quoting Coates v. Johnson & Johnson,

-29-
756 F.2d 524, 541 (7th Cir. 1985)). Dr. Mann’s methodology finds
support in precedent involving aggregating data in similar
situations and is reliable.
Finally, the defendant argues that Dr. Mann’s testimony
based on his best qualified to selected analysis is unreliable
because Dr. Mann should have expected that his multiple analyses
would yield some “significant” results as random error. The
defendant further argues that Dr. Mann should have conducted
additional tests to “determine the likelihood that his results
are consistent with . . . pure statistical chance[.]” Def.’s
Mem. to Exclude Mann Test. at 29–30. The defendant’s argument is
supported only by the declaration of defendant’s proffered
expert, Dr. Laura Malowane, “an expert statistician retained by
the Secret Service for purposes of this Daubert motion.” Id. at
30 n.9. Because the defendant’s disclosure of Dr. Malowane as an
expert was untimely, Dr. Malowane’s declaration should not be
considered.12 However, even if the defendant’s arguments based
12 The plaintiffs argue that Dr. Malowane’s declaration should be stricken under Federal Rule of Civil Procedure 37(c) as having been disclosed untimely in violation of Rule 26(a)(2), or alternatively, 26(a)(1). Rule 26(a)(2) requires that a party “disclose to the other parties the identity of any [expert] witness it may use at trial[.]” Fed. R. Civ. P. 26(a)(2)(A) (emphasis added). Rule 26(a)(1) requires that a party disclose the name and address “of each individual likely to have discoverable information . . . that the disclosing party may use to support its claims or defenses[.]” Fed. R. Civ. P. 26(a)(1)(A). “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified

-30-
or is harmless.” Fed. R. Civ. P. 37(c). The plain language of Rule 26(a)(2) limits the rule to experts who may testify at trial. Because the defendants insist that Dr. Malowane will not testify at trial, Rule 26(a)(2) does not support striking her declaration.
The D.C. Circuit has not announced whether initial disclosures under Rule 26(a)(1) require a party to disclose expert witnesses who will not testify at trial, and courts in other districts are split. Compare Musser v. Gentiva Health Servs., 356 F.3d 751, 756–57 (7th Cir. 2004) (explaining that Rule 26(a)(1) applies to fact witnesses and Rule 26(a)(2) applies to expert witnesses), with Reed v. Smith & Nephew, Inc., 527 F. Supp. 2d 1336, 1348 (W.D. Okla. 2007) (explaining that Rule 26(a)(1) bars undisclosed expert witness testimony offered in support of defendant’s motion to exclude testimony by plaintiff’s expert because “[t]he identity of a de facto expert, whose testimony serves to contravene that of Plaintiffs’ expert, is certainly information that Defendant has used ‘to support its claim[]’ that [plaintiff’s expert’s] testimony should be excluded”). However, courts that have considered whether an undisclosed expert can support a motion to exclude an expert’s testimony under Daubert agree that “‘courts should not permit the [movant] to obtain a hearing on a motion in limine by relying on affidavits from experts unless their identity and reports have been supplied to the [proponent of the expert witness] in the course of discovery and the [proponent] had an opportunity to depose them.’” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 739 (3d Cir. 1994) (internal alterations omitted) (quoting Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L. Rev. 1345, 1372 (1994)); see, e.g., Reed, 527 F. Supp. 2d at 1347–48; Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., Civil Action No. 1:04-CV-2112-CAP, 2007 WL 4563875, at *9 (N.D. Ga. May 11, 2007) (agreeing with the “Third Circuit’s preference for the disclosure and deposition of expert witnesses before any Daubert hearing” articulated in Paoli). In Paoli, the Third Circuit explained that experts who testify at Daubert hearings should be subject to discovery since
under Daubert a judge at an in limine hearing must make findings of fact on the reliability of complicated scientific methodologies and this fact-finding can decide the case, it is important that each side have an opportunity to depose the other side’s experts in order to develop strong critiques and defenses of their expert’s methodologies. Paoli, 35 F.3d at 739. The court added that “fairness [also] suggests that each side should have an equal opportunity to depose the other side’s experts.” Id. After all, some of the

-31-
on Dr. Malowane’s untimely declaration were considered, they
would not be grounds to find that Dr. Mann’s testimony is
inadmissible because Dr. Malowane erroneously assumes that
Dr. Mann conducted several, individual tests within each
purposes of Rule 26 are to “avoid surprise and the possible miscarriage of justice [and] to disclose fully the nature and scope of the controversy[.]” See Wright, Miller, & Kane, 8 Federal Practice and Procedure 22–23 (3d ed. 2010); see also Pierce v. Pierce, 5 F.R.D. 125, 125 (D.D.C. 1946).
“Rule 37(c)(1) is a self-executing sanction[.]” Norden v. Samper, 544 F. Supp. 2d 43, 49 (D.D.C. 2008) (internal quotation marks omitted). “[T]he overwhelming weight of authority is that preclusion is required and mandatory absent some unusual or extenuating circumstances -- that is, a ‘substantial justification.’” Elion v. Jackson, Civil Action No. 05-0992 (PLF), 2006 WL 2583694, at *1 (D.D.C. Sept. 8, 2006) (quoting Klonoski v. Mahlab, 156 F.3d 255, 269, 271 (1st Cir. 1998)). The proponent of the evidence bears the burden of showing that the failure to disclose the evidence “was substantially justified or is harmless,” Fed. R. Civ. P. 37(c). See Norden, 544 F. Supp. 2d at 50.
Here, Dr. Mann’s declaration that Dr. Malowane attacks was disclosed on September 28, 2007. The defendant had until November 27, 2007 to disclose its expert reports. The report the defendant submitted on November 27, 2007 from its expert, Dr. White, acknowledged Dr. Mann’s declaration but did not disclose the new detailed critique contained in Dr. Malowane’s declaration that was not disclosed until 2012, well beyond the 2008 close of discovery. The defendant asserts that its nondisclosure was harmless because the plaintiffs should have asked to depose Dr. Malowane before filing their opposition brief. Reply in Support of Def.’s Mot to Exclude Test. of Charles R. Mann at 24 n.6. Whether the disclosure this late in the case newly attacking an issue raised years ago did or did not violate Rule 26, it certainly was not in keeping with fair opportunities to depose an opponent’s expert during the discovery period. Moreover, discovery after the deadline hinders the ability “to move the case expeditiously forward from the end of discovery, through dispositive motions, to pre-trial and trial.” Coles v. Perry, 217 F.R.D. 1, 5 (D.D.C. 2003). The defendant has not shown that its failure to disclose Dr. Malowane was substantially justified or harmless, and Dr. Malowane’s declaration should not be considered in support of the defendant’s Daubert motion.

-32analysis.13 However, the plaintiffs and Dr. Mann insist that
Dr. Mann did not independently consider the pools; instead, the
results from individual year and position analyses are
“components of aggregated analyses[.]” Pls.’ Opp’n to Mot. to
Exclude Mann Test. at 13. Because Dr. Mann aggregated the data
in his analyses, Dr. Malowane’s argument that Dr. Mann should
have considered the probability that his “individual” results
were the result of random error is inapplicable.
Because Dr. Mann is qualified to offer his expert testimony
and his opinions are relevant and based on reliable methodology,
his expert testimony is admissible under Rule 702 and Daubert.
II. MOTION FOR CLASS CERTIFICATION
To maintain a class action, the four prerequisites in Rule
23(a) must be met and the case must fall into one of the three
categories in Rule 23(b). Fed. R. Civ. P. 23; see also In re
Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002).
A. Rule 23(a) prerequisites
Under Rule 23(a), the party seeking class certification must
show that:
(1) the class is so numerous that joinder of all members is impracticable [(“numerosity”)]; (2) there are questions of law or fact common to the class [(“commonality”)];
13 In her declaration, Dr. Malowane asserts that Dr. Mann analyzed 84 subsets of data in his applicant to best qualified analysis, Def.’s Mem. to Exclude Mann Test., Ex. 1 (Malowane Decl. ¶ 11), and that Dr. Mann conducted 28 tests in his bestqualified list to selected analysis, id. ¶ 33.

-33(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [(“typicality”)]; and (4) the representative parties will fairly and adequately protect the interests of the class [(“adequacy of representation”)]. Fed. R. Civ. P. 23(a); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451, 2548 (2011). “Failure to adequately demonstrate any of the four is fatal to class certification.” Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006).
“[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). “Frequently, that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart, 131 S. Ct. at 2551. However, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). In considering a motion for class certification, a court presumes the allegations in the complaint to be true. Stephens v. US Airways Group, Inc., Civil Action No. 07-1264 (RMC), 2012 WL 6086930, at *3 (D.D.C. Dec. 7, 2012).

-341. Numerosity To obtain class certification, the class must be so numerous that “joinder of all members is impracticable[.]” Fed. R. Civ. P. 23(a)(1); see also Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010) (citing Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007)). “Typically, a class in excess of 40 members is sufficiently numerous to satisfy this requirement.” Lindsay v. Gov’t Employees Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008) (citing 5 Moore’s Federal Practice § 23.22[3][a] at 23-63 (3d ed. 2002)). However, “[t]here is no specific threshold that must be surpassed in order to satisfy the numerosity requirement[.]” Taylor, 241 F.R.D. at 37; see also Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980) (explaining that the numerosity requirement “imposes no absolute limitations”). Instead, courts must examine “the specific facts of each case[,]” Gen. Tel. Co. of the Nw., 446 U.S. at 330, “including ‘geographic dispersion of class members.’” Encinas, 265 F.R.D. at 8 (quoting Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)). Moore III found the “plaintiffs’ proposed class of 120 geographically dispersed members” to be “sufficiently numerous to satisfy Rule 23(a)(1).” 269 F.R.D. at 28. It also found that a class as small as 36 members can satisfy Rule 23(a)’s numerosity prong. Id. Here, the plaintiffs again estimate that the class

-35would contain 120 members who are geographically dispersed. See
Mem. of P. & A. in Supp. of Pls.’ Mot. for Class Cert. (“Pls.’
Mem. for Class Cert.”) at 45-46; Pls.’ Reply in Support of Mot. for Class Cert. at 5.14 As Moore III found, a proposed class of
120 members satisfies the numerosity requirement.
The defendant advances several arguments against the
plaintiffs’ estimate. The defendant claims that the plaintiffs
fail to prove numerosity because the plaintiffs’ statistical
expert, Dr. Mann, found that a statistically significant number
of under-promotions occurred only from 1998 to 2000 for GS-14
positions and from 2002 to 2005 for GS-15 positions. Def.’s
Opp’n to Pls.’ 4th Mot. for Class Cert. (“Def.’s Opp’n to Mot.
for Class Cert.”) at 44-45. The defendant asserts that given the
dearth of statistical evidence showing under-promotions for the
remainder of the class period, the “plaintiffs’ class must be
limited to those who bid for the appropriate promotion in those
times periods, shrinking the class to 42.” Id. at 45. The
defendant also contends that the proposed class must exclude
those who have conflicts of interest (i.e., any class member who
14 The plaintiffs derive this number from the “‘bid database’ produced by Defendant in discovery[.]” Pls.’ Mem. for Class Cert. at 45. According to the plaintiffs, the database shows that “127 different African-American Special Agents actually bid on GS-14 or GS-15 positions during the class period.” Id. After excluding “those who were selected for promotion on their first bid and those who served as the Director, the Deputy Director, or an Assistant Director during the class period,” the proposed class includes 120 members. Id. at 45–46.

-36was involved in the first-level promotion evaluation scores of another putative class member or who rated other putative class members during panel evaluations), id., and class members whose claims are barred for failure to timely exhaust their administrative remedies, id. at 41-42. After the defendant’s “required exclusions,” the plaintiffs’ proposed class would contain only 27 members. Id. at 44–45.
The defendant’s arguments do not alter the conclusion that the plaintiffs have satisfied the numerosity requirement because they pertain not to numerosity but to Rule 23(a)’s commonality, typicality, and adequacy of representation requirements. Moreover, as is discussed above, three of Dr. Mann’s analyses showed statistically significant disparities for the entire class period. Furthermore, a class of 27 members can still satisfy the numerosity prong where, such as here, joinder is impractical because the class members are geographically dispersed. See Anderson v. Pa. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 461 (E.D. Pa. 1998); cf. Gen. Tel. Co. of the Nw., 446 U.S. at 330 (suggesting that 15 class members is too few for a Title VII class action).
2. Commonality Commonality under Rule 23(a)(2) requires the court to determine whether there is at least one question of law or fact common to the class. Wal-Mart, 131 S. Ct. at 2556. “‘[F]actual

-37variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members.’” Encinas, 265 F.R.D. at 8 (quoting Bynum v. District of Columbia, 217 F.R.D. 43, 46 (D.D.C. 2003)). To satisfy this requirement, a plaintiff must “demonstrate that the class members ‘have suffered the same injury[.]’” Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157). That is to say, “[t]heir claims must depend upon a common contention[.]” Id. The “common contention” must be “capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. A plaintiff’s burden is to “bridge the gap” between her individual claim and “the existence of a class of persons who have suffered the same injury as that individual[.]” Falcon, 457 U.S. at 157.
In cases where the plaintiffs allege systemic disparate treatment, plaintiffs may demonstrate commonality by providing “‘significant proof that an employer operated under a general policy of discrimination . . . if the discrimination manifested itself in . . . promotion practices in the same general fashion[.]’” Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.15); see also Love v. Johanns, 439 F.3d 723, 728 (D.C. Cir. 2006) (explaining that in cases where plaintiffs

-38allege disparate treatment of a class, plaintiffs seeking class certification must “show (i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that permits the court to infer that members of the class suffered from a common policy of discrimination” (internal quotation marks omitted)). Regarding a complaint of “class-wide discriminatory impact, [plaintiffs] must make a showing sufficient to permit the court to infer that members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy.” Garcia, 444 F.3d at 632 (internal quotation marks omitted). To satisfy Rule 23(a)’s commonality requirement, plaintiffs may put forth statistical and anecdotal evidence to support the inference that the defendant-employer operated under a general policy of discrimination and that the discrimination manifested itself in the defendant’s challenged policies and procedures. See McReynolds v. Sodexho Marriott Servs., Inc. (McReynolds I), 208 F.R.D. 428, 441 (D.D.C. 2002) (citing Wagner v. Taylor, 836 F.2d 578, 592 (D.C. Cir. 1987)); see also Wal-Mart, 131 S. Ct. at 2555-56. Here, the plaintiffs offer both statistical and anecdotal evidence.
a. Statistical evidence The plaintiffs rely on Dr. Mann’s report to show that the “MPP promotions policy operates to adversely impact class

-39members[.]” Pls.’ Mem. for Class Cert. at 49. As is discussed above, Dr. Mann found that for the class period and the four-year background period, the difference between African-American SAs expected to reach a best qualified list in the absence of discrimination and the actual number of African-American SAs who reached a best qualified list, for both GS-14 and GS-15 promotions, was statistically significant. See Pls.’ Opp’n to Mot. to Exclude Mann Test. at 5; see also Mann Decl. ¶¶ 36–43. Dr. Mann also found that for the class period and the four-year background period, the consideration of rank by MPP score on the best qualified list disproportionately disadvantaged AfricanAmericans, for both GS-14 and GS-15 promotions; the disparity in African-American SAs mean rank on best qualified lists and African-American SAs on best qualified lists with an MPP score above the effective pass rate are statistically significant. Dr. Mann further found that for the years 1998 to 2000, the difference between expected African-American promotions in the absence of discrimination, taking as a given the presence of African-Americans on the best qualified list, and actual AfricanAmerican promotion to GS-14 positions was statistically significant. See Pls.’ Opp’n to Mot. to Exclude Mann Test. at 5; see also Mann Decl. ¶¶ 49–75. For the years 2002 to 2005, the difference between expected African-American promotions in the absence of discrimination, taking as a given the presence of

-40African-Americans on the best qualified list, and actual AfricanAmerican promotion to GS-15 positions was statistically significant. Pls.’ Opp’n to Mot. to Exclude Mann Test. at 5; see also Mann Decl. ¶¶ 45–48.
The defendant attacks Dr. Mann’s report on several grounds. The defendant makes many of the same arguments which were addressed and dismissed above. The defendant also asserts that because Dr. Mann’s best qualified to selected analysis shows “disparities in . . . two distinct time frames [for GS-14 and GS15 positions, the analysis] actually rebut[s] any inference of a ‘common’ discriminatory process because the same officials decided which agents to promote to GS-14 and GS-15 positions at any one time.” Def.’s Opp’n to Mot. for Class Cert. at 60. Even assuming that is true, the plaintiffs can still establish commonality because Dr. Mann’s other three analyses show statistically significant disparities for the entire class period. For example, Dr. Mann’s applicant to best qualified list analysis shows that a stage of the MPP process had an adverse impact on African-American SAs during the class period. Thus, there is at least one aspect common to the class for the entire class period. As such, Dr. Mann’s report is sufficient to create an inference that the Secret Service had a common policy of discrimination. See Anderson, 180 F.3d at 339-40.

-41b. Anecdotal evidence The plaintiffs also offer anecdotal evidence in the form of declarations of named plaintiffs and putative class members alleging that they were discriminated against by the Secret Service. In their declarations, SAs assert that the Peer Panel and Second Level Panel “discriminatorily diminished and discounted” their “demonstrated skills and qualifications” causing them to receive lower MPP scores than non-AfricanAmerican SAs, Pls.’ Mem. for Class Cert. at 50, that they were denied promotions as a result of their low MPP scores, id. at 51, and that the MPP process “empower[ed] the Advisory Board and Director to discriminate against African-American Agents by selectively employing criteria to recommend white Agents for promotion over qualified African-American candidates,” id. at 52; see also id. at 52–56. The anecdotal evidence, which is summarized in Moore III, 269 F.R.D. at 31–32, brings “the cold numbers” of Dr. Mann’s statistical evidence “convincingly to life.” Teamsters, 431 U.S. at 339. The plaintiffs’ statistical and anecdotal evidence raises an inference of discrimination that is manifested through the MPP process. Thus, the plaintiffs have carried their burden of establishing commonality. 3. Typicality “Typicality requires that the claims of the representative be typical of those of the class.” Taylor, 241 F.R.D. at 44

-42(citing Fed. R. Civ. P. 23(a)(3)). “Typical” does not mean
identical. See Encinas, 265 F.R.D. at 9 (“A plaintiff’s claims
can be typical of those of the class even if there is some
factual variation between them.”). “[A] class representative’s
claims are typical of those of the class if ‘the named
plaintiffs’ injuries arise from the same course of conduct that
gives rise to the other class members’ claims.’” Id. (quoting
Bynum v. District of Columbia (Bynum I), 214 F.R.D. 27, 35
(D.D.C. 2003)).
“[T]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.”
Wal-Mart, 131 S. Ct. at 2551 n.5 (quoting Falcon, 457 U.S. at 157
n.13).
In Moore III, the plaintiffs’ proposed class did not satisfy
Rule 23(a)’s typicality requirement for two reasons. First, the
proposed class included SAs who were deterred from ever bidding
but none of the class representatives had been wholly deterred
from bidding. Second, “the class representatives’ claims [were]
not typical of any putative class member who was eligible for a
promotion and received it on her first bid.” Moore III, 269
F.R.D. at 33. In their revised class definition, the plaintiffs
exclude deterred bidders and SAs who were eligible for promotion

-43and promoted on their first bid. There is no dispute that these changes cured the typicality defects identified in Moore III. Def.’s Opp’n to Mot. for Class Cert. at 46 n.38. Thus, the plaintiffs’ proposed class satisfies the typicality requirement of Rule 23(a).
4. Adequacy of representation The fourth prerequisite for class certification requires the court to determine whether the proposed representatives will fairly and adequately represent the interests of the class. Taylor, 241 F.R.D. at 45. “‘Two criteria for determining the adequacy of representation are generally recognized: 1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.’” Twelve John Does v. District of Columbia, 117 F.3d 571, 575–76 (D.C. Cir. 1997) (quoting Nat’l Ass’n of Reg’l Med. Programs, Inc., 551 F.2d 340, 345 (D.C. Cir. 1976)). When there is a dispute as to the existence of a conflict of interest between class members, a court must bear in mind that “[c]lass members whose interests are antagonistic in fact to, or even ‘potentially conflicting’ with, the interests of the ostensibly representative parties cannot be bound, consistent with the requirements of due process to an adjudication taken in

-44their name.” Phillips v. Klassen, 502 F.2d 362, 366 (D.C. Cir. 1974) (quoting Hansberry v. Lee, 311 U.S. 32, 44 (1940)). In employment discrimination cases, the fact that some class members are supervisors does not constitute a per se conflict of interest. However, it does pose a serious problem where class plaintiffs have accused other class members of the same type of discrimination from which they seek relief. See Wagner, 836 F.2d at 595; McReynolds I, 208 F.R.D. at 447.
In Moore III, the plaintiffs failed to “propose[] for consideration a class free of conflicts of interests[.]” Moore III, 269 F.R.D. at 35. The record demonstrated that there were “direct accusations of discrimination within the [proposed] class” and that “several potential class members were directly involved in the Peer Panel or Second Level evaluation process[.]” Id. at 34. Involvement in the review panels “raises a specter of these class members’ participation in the discriminatory conduct of which plaintiffs complain.” Id. Accordingly, representation as proposed was found to be inadequate. Id. at 35. (“Although the existence of supervisors among the class members does not automatically undermine the adequacy of representation, the conflict of interests here -- which includes direct accusations of discrimination among and between class members and class representatives -- is not insignificant.”).

-45Here, there is no dispute that counsel are competent to represent the class’s interest. However, there is again a dispute regarding a potential conflict of interest among class plaintiffs and class members. The plaintiffs argue that the class meets the final requirement of Rule 23(a) because “[p]laintiffs and the class members . . . have the same interests”: “to prove the existence of a pattern or practice of discrimination with respect to the Secret Service’s promotions policy and establish that its promotions policy and practices have a disparate impact on class members.” Pls.’ Mem. for Class Cert. at 63. The plaintiffs further contend that their revised class definition is free from conflicts and excludes all of the class members identified in Moore III as having been directly accused of discrimination. Id. at 65-67. Because there are no direct accusations of discrimination within the class, the plaintiffs assert that “the inclusion within the class of supervisors or class members who participated on panels evaluating other class members cannot defeat adequacy of representation.” Id. at 70. The defendant counters that the plaintiffs cannot satisfy the adequacy of representation requirement because the proposed class contains “supervisors who actively participated in an allegedly discriminatory promotions process against [other putative class members] who were seeking promotions.” Def.’s Opp’n to Mot. for Class Cert. at 66. To

-46support its argument, the defendant points to several instances
where a class member generally alleged that he received a
discriminatorily low score from the Peer Panel or Second Level
Panel and a supervisory putative class member was a member on
that panel. See id. at 69–70.
The record demonstrates that several potential class members
were directly involved in the Peer Panel or Second Level
evaluation process. For example, between 1995 and 2005, at least
fourteen supervisory putative class members participated as Peer
Panel or Second Level Panel members rating other putative class
members for promotion to GS-14 and GS-15 positions. Id. at 68
(citing id., Ex. 17 (Decl. of Karen Waring ¶ 32)). The record is
silent with respect to any direct accusations of discrimination
within the newly constituted class relevant to the plaintiffs’ employment discrimination claim.15 Because the record does not
show specific allegations of discrimination by class members
against other class members, the representation as proposed is
adequate. See, e.g., McReynolds I, 208 F.R.D. at 445–48 (finding
that the presence of both supervisors and non-supervisors in a
15 The defendant also argues that the plaintiffs’ accusations of generally discriminatory behavior by others in the class and plaintiffs’ allegations that putative class members tried to discourage African-American SAs from participating in this civil action preclude class certification. While these statements do demonstrate conflicts within the class, they do not reflect on the specific claims in the lawsuit. Thus, they are not relevant to the adequacy of representation determination. See McReynolds I, 208 F.R.D. at 446.

-47class does not undermine adequacy of representation where there
were no direct accusations of discrimination within the class).
B. Rule 23(b) requirement
The plaintiffs claim that the class satisfies the
requirements of Rule 23(b)(3), which provides that a class action
may 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 for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In
determining whether a proposed class meets the Rule 23(b)(3)
requirements, a court should consider:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
1. Whether common questions of law or fact predominate over questions affecting only individual members
To establish Rule 23(b)(3)’s predominance requirement, the
plaintiffs must show that the issues identified as common in the
Rule 23(a) commonality inquiry predominate over non-common issues
for both their pattern and practice claim and their disparate
impact claim. See In re Vitamins Antitrust Litig., 209 F.R.D.

-48251, 262 (D.D.C. 2002). Generally speaking, “predominance is met when there exists generalized evidence which proves or disproves an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class members’ individual position.” Cohen v. Chilcott, 522 F. Supp. 2d 105, 116 (D.D.C. 2007) (internal quotation marks omitted); see also Encinas, 265 F.R.D. at 10 (“If the questions of law and fact identified as common to the named plaintiffs and members of the class predominate over any non-common issues, the requirement is satisfied.”).
The plaintiffs argue that in light of the “centrality of Plaintiffs’ statistical evidence of the discriminatory nature of the MPP promotions policy,” to both of their claims, they have met the predominance requirement. Pls.’ Mem. for Class Cert. at 75. Here, the common issues of whether the MPP promotions process discriminates against African-American SAs and whether the Secret Service has a pattern and practice of race discrimination which the plaintiffs will try to prove through their statistical evidence predominate over individual issues. See, e.g., Jarvaise, 212 F.R.D. at 4. All members of the class will rely on the same statistical evidence to make the same claim: that the MPP process discriminates against AfricanAmerican SAs seeking promotions to GS-14 and GS-15 positions. The only apparent non-common factual issues are whether there

-49-
were legitimate, nondiscriminatory reasons not to promote a
specific SA. See Def.’s Opp’n to Mot. for Class Cert. at 81–82.
These issues, however, are not germane to the liability stage of
a pattern and practice claim,16 are not relevant to the
plaintiffs’ disparate impact claim, and thus do not destroy
predominance.
2. Whether class action is superior method of adjudication
“‘Rule 23(b)(3) favors class actions where common questions
of law or fact permit the court to consolidate otherwise
identical actions into a single efficient unit.’” Encinas, 265
F.R.D. at 10 (quoting Bynum I, 214 F.R.D. at 40); see also In re
Nifedipine Antitrust Litig., 246 F.R.D. 365, 371 (D.D.C. 2007)
(“[C]ertification is appropriate in cases in which a class action
16 In Teamsters, the Supreme Court adopted a bifurcated approach for pattern and practice class actions. In the first stage, regarding liability, the plaintiffs have the burden to “demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Teamsters, 431 U.S. at 360. “If the plaintiffs succeed in establishing liability in the first phase, the court may order class-wide injunctive and declaratory relief.” Taylor, 205 F.R.D. at 46 (citing Teamsters, 431 U.S. at 336). “If the plaintiffs also seek individual monetary relief, they proceed to the second phase, called a ‘Teamsters hearing.’” Id. (citing Hartman, 88 F.3d at 1235 n.2). At the “Teamsters hearing,” the plaintiffs are entitled to the presumption that “individual [employment] decisions were made in pursuit of the discriminatory policy[,]” Teamsters, 431 U.S. at 359, and the burden is on the defendant to show that there was a legitimate, non-discriminatory reason for the adverse employment decision such that the employee is not entitled to additional, individualized relief. See Hartman, 88 F.3d at 1235 n.2.

-50would promote judicial efficiency and uniformity of decision as to persons similarly situated.” (internal quotation marks omitted)); In re Lorazepam & Clorazepate Antitrust Litig., 202 F.R.D. 12, 31 (D.D.C. 2001) (explaining that a class action is superior because “[a] class action would also provide inclusion of those members who would otherwise be unable to afford independent representation”).
The alternative method of resolving the plaintiffs’ claims is through individual, single-plaintiff suits. A class action will be more efficient than individual actions because all of the cases will require the courts to determine whether the MPP promotions process is discriminatory. Moreover, a class action will promote uniformity in decisions. The plaintiffs also argue that a class action is superior because many putative class members will not pursue an individual suit “in light of the substantial expert costs associated with documenting the MPP’s discriminatory nature and impact[.]” Pls.’ Mem. for Class Cert. at 80. The defendant counters that the hope of high damages awards is sufficient to compel plaintiffs to bring individual suits. The Supreme Court has acknowledged that “‘[t]he policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617

-51-
(1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344
(7th Cir. 1997)). However, “the text of Rule 23(b)(3) does not
exclude from certification cases in which individual damages run
high[.]” Id. Moreover, the defendants cite no evidence for
their assertion that the plaintiffs may potentially recover large
damage awards. At any rate, the interests of efficiency and
uniformity support a finding that a class action is a superior
method of adjudicating the plaintiffs’ claims. Thus, the class
will be certified under Rule 23(b)(3).
C. Notice
If a court certifies a class under Rule 23(b)(3),
the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The 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).
Fed. R. Civ. P. 23(c)(2)(B). The plaintiffs have not submitted a
proposed notice that satisfies all requirements of Rule 23(c)(2).
Accordingly, the plaintiffs will be ordered to file a proposed
order.

-52D. Appointment of class counsel
The plaintiffs also seek an order appointing current
plaintiffs’ counsel as class counsel. Rule 23(g) requires a
court to appoint
adequate class counsel to represent the class after considering: (1) the work counsel has done in identifying or investigating potential claims in this action, (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (3) counsel’s knowledge of the applicable law, and (4) the resources counsel will commit to representing the class.
Johnson v. District of Columbia, 248 F.R.D. 46, 58 (D.D.C.
2008) (internal quotation marks omitted). Further, a “court
may consider any ‘other matter pertinent to counsel’s
ability to fairly and adequately represent the interests of
the class.’” Id. (quoting Fed. R. Civ. P. 23(g)(1)(B)).
There is no dispute as to whether the plaintiffs’ class
counsel are appropriate, and there is no indication that
class counsel lack the experience and knowledge required to
represent the class. Therefore, plaintiffs’ current counsel
will be appointed as class counsel.
CONCLUSION AND ORDER
The plaintiffs have shown by a preponderance of the evidence
that Dr. Charles Mann is qualified to offer expert statistical
testimony and that his testimony is relevant and reliable. The
plaintiffs have also satisfied Rule 23(a)’s prerequisites and

-53Rule 23(b)(3)’s requirements for class certification. Accordingly, it is hereby
ORDERED that the defendant’s motion [703] to exclude the testimony of Dr. Charles Mann be, and hereby is, DENIED. It is further
ORDERED that the plaintiffs’ motion [677] for class certification under Rule 23(b)(3) be, and hereby is, GRANTED. The class consists of all current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995 to 2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995 to 2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, a Deputy Director, or the Director of the Secret Service during the class period. The class is certified to adjudicate whether the Secret Service has a pattern and practice of engaging in race discrimination in making promotions decisions to GS-14 Special Agent positions from 1995 to 2004 and GS-15 Special Agent positions from 1995 to 2005, and whether the Secret Service’s Merit Promotion Plan had an adverse impact on African-American Special Agents seeking promotion to GS-14 positions from 1995 to 2004 and GS-15 positions from 1995 to 2005. The following will be appointed as class counsel: John P.

-54Relman, Jennifer I. Klar, and Megan Cacace of Relman, Dane & Colfax PLLC, and E. Desmond Hogan of Hogan Lovells USA. It is further
ORDERED that the plaintiffs file by March 18, 2013 a proposed order that complies with the requirements in Rule 23(c)(2)(B).
SIGNED this 25th day of February, 2013.
/s/ RICHARD W. ROBERTS United States District Judge

 
 Moore v. Summers, 113 F.Supp.2d 5 (2000)

113 F.Supp.2d 5 United States District Court,
District of Columbia.
Reginald G. MOORE, et al., Plaintiffs, v.
Lawrence SUMMERS, Secretary U.S. Department of the Treasury, Defendant.
No. CIV.A. 00–0953(RWR). | Sept. 8, 2000.
African American Secret Service agents brought proposed class action against United States Secret Service under Title VII for discrimination in promotion and retaliation. On plaintiffs’ motion for preliminary injunction, the District Court, Roberts, J., held that: (1) statistical analysis revealing statistically significant difference between percentage of black employees at different grade levels did not establish prima facie case of disparity in promotion; (2) Secret Service would be enjoined from taking action to discourage other African American agents from joining proposed class action; and (3) named plaintiffs were not entitled to paid administrative leave to attend someone else’s deposition.
Motion denied in part, and held in abeyance in part.
Attorneys and Law Firms
*7 John Peter Relman, Christine R. Ladd, Relman & Associates, David James Shaffer, Karen Rapaport Esser, Ron Schmidt, Susan Tahernia, Thelen, Reid & Priest, LLP, Washington, D.C., for Plaintiff.
Brian J. Sonfield, United States Attorney’s Office, Washington, D.C., for Defendant.
Opinion
MEMORANDUM OPINION
ROBERTS, District Judge.
Plaintiffs, ten African–American current and former special agents of the United States Secret Service purporting to represent a putative class of African–American special agents who have been employed by the United States Secret Service from January 1, 1974 to the present, have filed this action

against the Treasury Secretary under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1994), and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Among other things, plaintiffs claim that the Secret Service has engaged in a pattern and practice of racial discrimination in its promotion of black special agents from the GS–13 to the GS–14 level. Plaintiffs have filed an application for a preliminary injunction seeking to enjoin future use of the allegedly discriminatory promotion evaluation system pending resolution of this matter on the merits. Plaintiffs also claim that they have been retaliated against for engaging in protected equal employment opportunity (“EEO”) activity and seek to enjoin future retaliation. Oral argument was held on September 1, 2000. I find that the plaintiffs’ evidence thus far is insufficient to give rise to an inference that the performance evaluation system is discriminatory, but does demonstrate that some actions taken by the Secret Service since this litigation began are likely to chill other black agents from coming forward with their claims.
BACKGROUND
Plaintiffs allege in their complaint that, over the course of past twenty-six years, the United States Secret Service has utilized a wide variety of racially discriminatory employment practices. Specifically, plaintiffs claim that the Secret Service’s policies and practices have systematically discriminated against black special agents in the following areas: (1) placement in positions of GS–14 or above; (2) performance evaluations; (3) assignments to the position of acting supervisor; (4) transfers and assignments in general; (5) access to training; (6) assignment to undercover work; (7) hiring; (8) testing; (9) disciplinary policies; (10) awards and bonuses; *8 (11) overall work environment; (12) retaliation, and (13) other practices relating to the terms and conditions of employment. The primary target of plaintiffs’ motion for a preliminary injunction is the Secret Service’s performance evaluation system. A description of how that system operates is therefore in order.
I. The Secret Service Special Agent Merit Promotion Plan The evaluation system at issue is known as the Secret Service Special Agent Merit Promotion Plan (“MPP”). Developed by a Secret Service Task Force in 1997, the MPP consists of three distinct parts: (1) a “First–Level”
1

Moore v. Summers, 113 F.Supp.2d 5 (2000)
evaluation; (2) a “Peer Panel” evaluation; and (3) a “Second–Level” evaluation. (Burgess Decl., Def.’s Opp’n to Pl.’s Mot. for Prelim. Inj. (“Def.’s Opp’n”) Ex. 1 at ¶¶ 6–9.) The First–Level evaluation counts for 50% of a special agent’s total MPP score while the Peer Panel and Second–Level scores are weighted at 20% and 30% respectively. (Id. at ¶¶ 7–9.)
The MPP is used annually to evaluate special agents for promotion. In August, each GS–13 and GS–14 special agent who wishes to compete for a promotion is required to file a notice of his or her intent to compete. (Id. at ¶ 7.) However, not every GS–13 or GS–14 special agent is eligible to compete. A special agent must have completed three years “in grade” before he or she will be considered for a promotion. (Id. at ¶ 23.) For example, in order to compete for a promotion to the GS–14 level, a special agent must first have completed three years at the GS–13 level. Plaintiffs do not allege that this practice is discriminatory in any way.
Special agents who elect to compete for a promotion are then evaluated by their supervisors in the First–Level evaluation. The supervisor is required to rate each candidate using a scale of one to five on ten specific elements such as writing ability, problem solving, oral communication, knowledge of Secret Service rules and regulations, leadership and management ability, and negotiation skill. (Id. at ¶ 7; Moore Decl., Attach. to Pls.’ Mem. Prelim. Inj. (“Pls.’ Mem.”) at ¶ 12.) After the supervisors complete their First–Level evaluation, they meet with the candidate to discuss the results. The candidate then has fifteen days in which to file a grievance challenging the supervisor’s score. This process is normally completed by the end of August and counts for 50% of the agent’s total MPP score. (Burgess Decl. at ¶ 7.) Plaintiffs do not allege that the First–Level evaluation is discriminatory.
Plaintiffs’ challenge begins with the Peer Panel evaluation which is normally administered in September. During this portion of the MPP, which accounts for 20% of the special agent’s total score, the candidate is evaluated by a panel of more senior special agents who are at least of the grade to which the candidate is seeking a promotion. So, if the competing special agent is seeking a promotion to GS–14, the peer panel would be comprised of special agents at the GS–14 level or above. The peer panel does not necessarily include the candidate’s GS–14 supervisor. (Id. at ¶ 8; Moore Decl. at ¶ 15.)
The peer panel reviews a written qualification statement drafted by the candidate which details his or her experience in the “protection” and “investigations” areas.

The panel then compares the candidate’s statement to lists of specific “benchmark” tasks in each area. For example, the list for “protection” includes such tasks as assisting in the logistics for major events, serving as the lead advance agent for a visit by a notable foreign dignitary, and conducting a complex intelligence investigation. The panel then gives each candidate a protection score and an investigation score between one and seven. (Burgess Decl. at ¶ 8.)
The Second–Level evaluation begins in October. It is based on the following three elements: (1) two written qualifications statements drafted by the candidate *9 regarding “core competencies”; (2) the comments that the candidate’s supervisor made in the First–Level evaluation; (3) the Peer Panel evaluation results. The written statements regarding core competencies are broken down into “leadership” and “influence and decision making.” The evaluators, a panel of representatives from the office of each of the Secret Service’s Assistant Directors, then compare the candidate’s written statements to another list of benchmark skills. These benchmarks include responding to and assuming command during emergency situations, coordinating large-scale efforts with other organizations, and supervising other agents. After comparing the candidate’s written statements with the benchmarks, the panel rates the candidate on a scale of one to seven in each of the two areas. (Burgess Decl. at ¶ 9; Moore Decl. at ¶ 17.)
After this process is completed, all competing special agents are notified in November of their initial composite MPP score which is on a 100 point scale. Candidates then have the option of filing a grievance challenging their score. Final scores for the current promotion cycle are expected to be distributed in early January of 2001. Those scores will then be used by candidates to bid on available positions throughout the 2001 calendar year. (Burgess Decl. at ¶¶ 10–11.)
When a position opens up, the Secret Service’s Personnel Division announces a time period in which it will accept bids from interested special agents. After the period for accepting bids has closed, the Personnel Division creates a “Merit Promotion Certificate” for the vacant position. The Merit Promotion Certificate is a list of the bidding special agents with the top 30 MPP scores (including ties), or the top 25% of bidding special agents, whichever is greater. If there are less than 30 bids, all of the bidders are considered. (Id. at ¶ 14.)
The special agent with the highest MPP score is not guaranteed that he or she will be awarded the vacant
2

Moore v. Summers, 113 F.Supp.2d 5 (2000)
position. Instead, a recommendation is made to the Director by an Advisory Board which consists of the Deputy Director, all seven of the Assistant Directors, and the Chief Counsel. The Advisory Board may recommend to the Director any individual listed on the Merit Promotion Certificate, or any competing special agent already at the grade level of the vacant position who is seeking a lateral transfer. The Director then selects who will fill the vacant position. (Id. at ¶ 15.) There are no written standards governing the Advisory Board in making its recommendation or the Director in making a selection. The only constraint on the Advisory Board and the Director is the MPP’s requirement that all selections be made on a non-discriminatory basis and that the selection “not be based on any criteria that are not job related.” (MPP, Pls.’ Supp. Ex. C at 4.)
II. Plaintiffs’ Allegations Regarding MPP In this suit, plaintiffs maintain that the Peer Panel and Second–Level evaluations, which together account for 50% of the composite MPP score, operate to the systematic detriment of black special agents. Specifically, plaintiffs allege that these two portions of the MPP allow half of the candidate’s final score to be determined by the subjective preferences of evaluators who have never actually observed the candidate on the job. Plaintiffs also find fault with the absence of any published standards governing the Advisory Board or the Director in their choice of which agent on the Merit Promotion Certificate is selected to fill the vacant position. According to plaintiffs, this subjectivity has resulted in the proliferation of a “good old boys network” favoring white agents over black agents for promotions. Plaintiffs offer statistical and anecdotal evidence to support their allegations.
A. Statistical Evidence Plaintiffs’ statistical evidence consists of an analysis of the representation of black *10 special agents at the GS–13 level as compared to the GS–14 level as of July 31, 1999. Black special agents comprised 10.8% (115 out of 1068) of the total number of special agents at the GS–13 level, but only 4.2% (12 out of 287) of all special agents at the GS–14 level. According to the plaintiffs’ expert, Dr. Charles Mann, this difference in representation is statistically significant at the .000044 level using a one-tail exact binomial test, which corresponds to a difference of 4.08 standard deviations under the two-tail test utilized by the Supreme Court in Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). (Mann Decl., Attach. to Pls.’ Mem. at ¶ 8.) In simpler terms, these figures mean that the

probability that the observed disparity is due to chance is well under 1%.
B. Anecdotal Evidence Plaintiffs contend that the experience of their lead plaintiff, Special Agent Reginald “Ray” Moore, provides an egregious real life example of how the MPP works to prevent black special agents from advancing in the Secret Service. After serving seven years in the Secret Service, which included stints in the Secret Service’s Miami and Baton Rouge Field Offices, Special Agent Moore was promoted to GS–13 in July of 1991. (Moore Decl. at ¶¶ 6–7.) He then served as the Course Director for the Investigative Tactics portion of the Special Agent Training Courses, and, beginning in 1994, was assigned to the Presidential Protective Detail (“PPD”) where he became Acting Assistant Special Agent In Charge (“ATSAIC”) for the Joint Operations Center at the White House. He was involuntarily transferred to the Secret Service’s Dallas Field Office in October of 1999. (Id. at ¶¶ 2–5.)
Despite his credentials, Special Agent Moore has not been promoted to GS–14. As of January 1, 1999, he was ranked by the MPP as 47th out of 393 other eligible GS–13 level Special Agents, making him the highest rated black agent of all GS–13s in the Secret Service. Moore claims that during 1999, the Secret Service promoted at least 92 other special agents who had lower overall performance rankings on the MPP than he did. (Id. at ¶ 8.)
According to plaintiffs, the discrimination against Moore became even more apparent during the 1999/2000 promotion cycle. On the MPP administered in 1999, Moore received a perfect 50 out of 50 in his First–Level evaluation. On the Peer Panel evaluation, he received 6.33 points out of 7.00 on the Investigation subpart and 6.67 points out of 7.00 on the Protection subpart. In the Second–Level evaluation, he received the maximum score of 7.00 on both the Leadership and Decision Making subparts. Moore’s composite score of 98.57 out of a possible 100 points made him the 20th ranked agent out of 310 eligible GS–13 level special agents in the Secret Service and still, to his knowledge, the highest rated black agent. Yet, Moore did not receive a promotion while, according to him, other lower rated agents did. (Id. at ¶¶ 9, 13, 16, 18.)
Plaintiffs contend that the Secret Service’s failure to promote Special Agent Moore strongly demonstrates the subjectivity and unfairness inherent in the current Secret Service promotion system. Specifically, plaintiffs allege
3

Moore v. Summers, 113 F.Supp.2d 5 (2000)
that the Peer Panel and Second–Level evaluations are not guided by objective criteria. Special Agent Moore claims that, because the GS–14 supervisors on the peer panel and the Assistant Directors’ representatives administering the Second–Level evaluation are unlikely to have actually observed the work of the candidate they are evaluating, they rely heavily on oral recommendations from the Special Agent In Charge (“SAIC”) over the candidate being evaluated. According to Special Agent Moore, if the SAIC does not call the GS–14 supervisors on the peer panel or the Assistant Director to lobby for the candidate’s promotion, “the candidate has virtually no chance of getting a Peer Panel or Second *11 Level Evaluation score that would be competitive for promotion.” (Id. at ¶ 19.)
Moore maintains that this problem is exemplified by comparing his 1997/1998 and 1998/1999 performance evaluations. He claims that he received a low score on his 1997/1998 Second–Level evaluation because his SAIC did not call the Assistant Director to push for Moore’s promotion, thereby contributing to a low composite score of 83 out of 100. For the 1998/1999 performance evaluation, by contrast, Moore’s SAIC did call the Assistant Director and Moore received a high Second–Level score which contributed to a high overall score of 97.03. (Id. at ¶ 20.) Despite this high composite score, however, Moore was not promoted during the 1998/1999 promotion cycle. Nor was he promoted during the 1999/2000 promotion cycle when he received an even higher score of 98.57. (Id. at ¶ 21.) Thus, Special Agent Moore believes that the MPP score is “meaningless” and that “[t]he performance evaluations merely add a veneer of legitimacy to promotion selections that are, in fact, made via the racial spoils system of the ‘good old boys’ network.” (Id.)
III. Retaliation Allegations Plaintiffs’ second set of allegations charge that, since plaintiffs Moore, Summerour, and Turner filed an amended EEO class action complaint on February 24, 2000, the Secret Service has launched a “campaign of threats and intimidation” designed to undermine support for Black Agents of the Secret Service, Inc. (“BASS, Inc.”), an organization of black Secret Service agents involved in promoting this lawsuit. (Pls.’ Mem. at 24.) Plaintiffs also allege that the Secret Service has retaliated against the named plaintiffs.
In anticipation of the hearing on plaintiffs’ motion for a preliminary injunction, I granted plaintiffs limited discovery on the issue of whether plaintiffs had in fact been retaliated against for engaging in protected EEO

activity. Plaintiffs took the deposition of Secret Service designee Barbara Saliunas, Deputy Chief of the Secret Service’s Personnel Division, which lasted five days and covered a variety of topics. Ms. Saliunas’s deposition wound up not only addressing plaintiffs’ wide-ranging allegations of retaliation, but also some of their allegations regarding the discriminatory nature of the MPP.
Plaintiffs’ retaliation allegations and the defendant’s responses to them can be summarized as follows:
A. The Alleged Campaign to Undermine BASS, Inc. BASS was formed in the early 1980s as a way for black agents to communicate with each other. (Cockell Decl., Def.’s Opp’n Ex. 4 at ¶¶ 2–5.) Special Agent Summerour describes it as “an informal network of social and professional support for African–American Secret Service Agents in the Secret Service.” (Summerour Decl., Attach. to Pls.’ Mem. at ¶ 12.) Until recently, BASS had no official organization and lacked a “formal agenda.” (Second Spriggs Decl., Def.’s Opp’n Ex. 5 at ¶ 5.) In February of 2000, plaintiffs Turner, Moore, and Summerour decided to incorporate BASS so that it would become a “democratically elected representative organization to better address issues common to all African–American Secret Service Agents.” (Summerour Decl. at ¶ 13.) The incorporation process involved “select[ing] interim officers and directors, prepar[ing] by-laws, and electing a board of directors and slate of officers.” (Id.)
Plaintiffs allege that, since the filing of their amended EEO class action complaint on February 24, 2000, the Secret Service has launched a concerted “campaign” to discredit BASS, Inc. in the eyes of black special agents so that they will be discouraged from supporting both BASS, Inc. and this lawsuit. This alleged campaign consists mainly of the following: (1) a Secret Service-wide e-mail sent out by Brian Stafford, Director of the Secret Service, on February 25, 2000—the day after the *12 plaintiffs had filed their amended EEO complaint—stating, among other things, that he was “disappointed and troubled by the allegations” and that, “It is offensive for anyone to question our commitment to equal employment opportunity for all of our employees” (Pls.’ Mem. Ex. A); (2) an e-mail from Assistant Director (“AD”) Larry Cockell, who is black, sent to all BASS members hours after Director Stafford’s e-mail in which Cockell questioned how the interim officers of BASS were going about incorporating BASS, Inc. (Pls.’ Mem. Ex. B); (3) a March 15, 2000 e-mail from AD Cockell to all BASS members stating his belief that the interim leadership of
4

Moore v. Summers, 113 F.Supp.2d 5 (2000)
BASS, Inc. had conducted a “coup d’etat” to illegitimately seize control of the organization without consulting the membership (Pls.Mem.Ex. C); (4) a May 12, 2000 e-mail from AD Cockell to all BASS members again expressing his disappointment in the direction that BASS was taking, disaffiliating himself from BASS, Inc., and adding “I choose not to buy into this sham” (Pls’ Mem. Ex. E); (5) e-mail messages from other senior black agents to all BASS members declining nominations to be officers of BASS, Inc. even though such messages were supposed to be sent only to Special Agent Summerour, who was serving as interim secretary. (Pls.’ Mem. Ex. F.)
Some of the e-mails declining nominations echoed AD Cockell’s discontent with the new direction that BASS was taking. For instance, SAIC Wallace Shields stated in a May 13,2000 e-mail, “I am very saddened by what I see among agents (and former agents) that have come such a great distance together.” He decried the “rift” that had developed, apologized to the “new agents” for what they were witnessing, and concluded, “I know that the last thing you need is to be associated with the kind of behavior that is now on the e-mail system.” SAIC Jerry Wyatt’s May 16, 2000 e-mail stated that he did not wish to be a part “of an organization that divides and alienates the majority of black agents for the sole purpose of furthering the individualistic agendas of a few.... [T]he justice you claim to seek appears to be ‘Just-us’, as black agents, being ridiculed.”
Plaintiffs contend that these e-mails demonstrate that several senior black secret service agents have “circled the wagons” to discourage junior black special agents from supporting BASS, Inc. and plaintiffs’ lawsuit. (Pls.’ Mem. at 26–27.) To corroborate this allegation, they have submitted the declaration of Special Agent Cheryl Montgomery–White who alleges that, after attending a meeting in February of 2000 about the incorporation of BASS and this lawsuit, she had a conversation with SAIC Keith Prewitt. SAIC Prewitt, who is black, was also at the meeting. According to Special Agent Montgomery–White, during this conversation, SAIC Prewitt told her in substance that this lawsuit is “not going anywhere” because “all the Secret Service has to do is to put [AD] Larry Cockell, [AD] Danny Spriggs, SAIC Steve Carey, SAIC Gerry Wyatt, and me out front, and the lawsuit will go [away].” (Montgomery–White Decl., Attach. to Pls.’ Notice of Filing at ¶ 51.) Plaintiffs have also noted that between May 28, 2000 and June 15, 2000, eight junior black Special Agents resigned from BASS and six of them have asked to be permanently removed from BASS’s e-mail router. (Ivery Supp. Decl., Pls.’s Reply Supp. Prelim. Inj. Ex. 2 at Ex. A.)

In response to these allegations, defendant has submitted declarations from all of the senior black agents alleged to have sent e-mails geared toward undermining BASS, Inc. and this lawsuit. These declarations generally deny any effort influenced by the Director or otherwise to “circle the wagons” or to discourage black special agents from supporting BASS, Inc. AD Cockell maintains that his e-mails were simply a personal expression of (1) his frustration after some in the media had implied that he was involved in this lawsuit, (2) his discontent with what he perceived was a radical alteration in BASS *13 being conducted without consulting the general membership, and (3) his indignation after receiving an e-mail through the BASS e-mail router suggesting that he had been “bought off by a few high-profile promotions.” (Cockell Decl. at ¶¶ 11–17; Saliunas Dep. at 824–53) As for the e-mails from other senior black agents rejecting nominations to be officers of BASS, Inc., the senders of those e-mails claim that they were doing nothing more than responding to an e-mail which warned them that if they did not respond within 72 hours, their names would be placed on the ballot. (Cockell Decl. at ¶¶ 16–17; Spriggs Decl., Def.’s Opp’n Ex. 5 at ¶ 7; Carey Decl., Def.’ Opp’n Ex. 16 at ¶¶ 5–6; Rowe Decl. Def.’s Opp’n Ex. 17 at ¶¶ 5–8; Hill Decl., Def.’s Opp’n Ex. 18 at ¶¶ 4–6; Rodgers Decl., Def.’s Opp’n Ex. 19 at ¶¶ 7–10; Mapp Decl., Def.’s Opp’n Ex. 20 at ¶¶ 5–7; Shields Decl., Def.’s Opp’n Ex. 21 at ¶¶ 5–9; Carter Decl., Def.’s Opp’n Ex. 22 at ¶¶ 5–8; Wyatt Decl., Def.’s Opp’n Ex. 23 at ¶ 5.) Further, defendant contends that the senior black agents who were critical of BASS, Inc. were not attempting to undermine it or this litigation, but were merely expressing their own personal concern and disappointment over the course that BASS, Inc. was taking.
Defendant has submitted no such explanatory declaration from Director Stafford concerning his e-mail. However, defendant denies that Director Stafford intended his February 25, 2000 message to be intimidating and claims that the e-mail was designed in large part to reaffirm the Secret Service’s commitment to equal employment opportunities. (Saliunas Dep. at 778.)
B. Special Agent Leroy Hendrix Special Agent Leroy Hendrix has been a member of the Secret Service since May of 1989 and is currently assigned to the Vice Presidential Protective Division (“VPPD”). He alleges that he has been denied a position as a “whip” on the VPPD and a promotion because of his complaints of discrimination within the VPPD and his participation in this lawsuit.
5

Moore v. Summers, 113 F.Supp.2d 5 (2000)
A whip is a GS–13 level informal supervisor of a protective shift who acts as a supervisor in the absence of the actual shift leader, who is a GS–14 special agent. There are usually three whips on a particular detail. According to plaintiffs, obtaining a whip position drastically increases one’s chances for a promotion because of the supervisory responsibilities involved. (Hendrix Decl., Attach. to Pls.’ Mem. at ¶ 15.)
Special Agent Hendrix claims that, on March 8, 2000, he sent an e-mail to the SAIC of the VPPD, Special Agent William Pickle, which complained about the lack of minority and females agents assigned to whip positions on the VPPD and expressed the belief that lesser qualified white male agents were being promoted instead. Hendrix and Pickle had a meeting the next day, barely two weeks after Director Stafford’s e-mail expressing offense and disappointment at the allegations of discrimination. At the meeting, Hendrix claims that Pickle expressed his “disappointment” in Hendrix’s belief that whip assignments were made in a discriminatory fashion. Pickle also allegedly explained that whips would in the future be chosen based primarily on the shift leader’s vote and also noted that white agents had “complained” that three “number one” whips were minorities. This alleged comment lead Special Agent Hendrix to believe that a racial quota system had been instituted limiting the number of minorities who would be made whips. (Id. at ¶¶ 22–26.)
In response to Hendrix’s questions about his own personal situation, Special Agent Pickle allegedly responded that he was “certain” that Hendrix would be made a whip. However, Hendrix has not been made a whip since and he claims that others who were made whips, including women and minorities, are less qualified than he is. (Id. at ¶¶ 28–30.)
*14 Plaintiffs have proffered additional evidence which, according to them, demonstrates that the Secret Service’s failure to make Hendrix a whip was in retaliation for his complaints about the purported racial quota system on the VPPD. Specifically, plaintiffs allege that Dawn Naples, a Special Agent on the VPPD, had a conversation with Hendrix during which she mentioned speaking to VPPD Deputy Special Agent In Charge (“DSAIC”) Tony Zotto. Zotto, who was then a primary supervisor for Hendrix’s detail, allegedly told Naples that Hendrix might have been promoted to whip had he not “gone over [Zotto’s] head” to complain about the alleged racial quota system to SAIC Pickle. (Id. at ¶ 33.) Hendrix also maintains that Zotto had previously made comments which led Hendrix to believe that he would in fact be promoted. (Id. at ¶ 34.)

Aside from his non-assignment to a whip position, Special Agent Hendrix cites his non-promotion to a Resident Agent (“RA”) position in Fort Meyers, Florida as another incident of retaliation. Special Agent Hendrix bid on the position in March of 2000 and was not selected. He claims that the agent who was selected over him is less qualified for the position. (Id. at ¶ 36.)

Special Agent Hendrix also alleges that he was retaliated against after a May 3, 2000 press conference he attended which announced the filing of this lawsuit. According to Hendrix, the next day, ATSAIC Lee Aivazis intentionally assigned Hendrix to do “errand boy” tasks, such as retrieving gun holsters from a company in Virginia, which were normally assigned to junior agents. (Id. at ¶¶ 37–39.)

Defendant contests all of Special Agent Hendrix’s allegations. First, Special Agent Naples and DSAIC Zotto have submitted declarations in which they reject Special Agent Hendrix’s version of events. Specifically, Special Agent Naples denies ever telling Hendrix that DSAIC Zotto had said that Hendrix would have been promoted had he not gone over Zotto’s head. (Naples Decl., Def.’s Opp’n Ex. 8 at ¶ 3.) DSAIC Zotto also denies ever telling Special Agent Naples as much. (Zotto Decl., Def.’s Opp’n Ex. 9 at ¶ 3.)

Second, SAIC Pickle denies that he told Hendrix during the March 9 meeting that the whip selection procedures were changing,1 or that he was “certain” that Hendrix would get a whip assignment. (Pickle Decl., Def.’s Opp’n Ex. 7 at ¶ 8.) SAIC Pickle also denies that there is any “quota system” in selecting whips and notes that, of the three special agents chosen for whip positions since March 9, 2000, two are black and one of the two is female. (Id. at ¶ 9.) However, SAIC Pickle did not deny saying that he was “disappointed” that Hendrix believed that a racial quota system was used in selecting whips.

1

According to SAIC Pickle, when a whip vacancy

occurs, the GS–15 Assistant Special Agent in Charge

(“ASAIC”) for the Manpower Section asks the

ATSAICs, who generally work as shift leaders

supervising the GS–13s, to provide a list of five

GS–13s working on the VPPD who should be

considered for a whip position. GS–13s who have been

with the VPPD for at least two years are normally

eligible for consideration. The list is then delivered to

SAIC Pickle, who decides along with his deputy who

will fill the vacant whip position. SAIC Pickle has

indicated that whip selections have, to his recollection,

always been consistent with the consensus of the

ATSAICs. (Pickle Decl. at ¶ 7.)

Third, the Secret Service officials who recommended that 6

Moore v. Summers, 113 F.Supp.2d 5 (2000)
other agents be made whips have stated that they were unaware that Special Agent Hendrix had engaged in any protected EEO activity at the time those recommendations were made. These supervisors also cited Special Agent Hendrix’s allegedly habitual tardiness as an additional reason for why he was not selected to be a whip. (Knoll Decl. Def.’s Supp. Ex. 10 at ¶¶ 5, 7–8; Wyche Decl., Def.’s Supp. Ex. 12 at ¶¶ 5–8; Roberts Decl., Def.’s Supp. Ex. 13 at ¶¶ 5–8.)
Fourth, defendant submitted the declaration of AD James E. Bauer, who was responsible for selecting the special agent *15 for the Fort Meyers RA position. AD Bauer claims that, at the time he made the selection, he was unaware that Special Agent Hendrix had made an allegation of discrimination within the VPPD or that Hendrix was involved in this lawsuit. AD Bauer also indicated that the special agent selected was more qualified for the position because (1) he had been in the Secret Service five years longer than Hendrix had, and (2) he also had proficiency in Spanish which Bauer believed would be useful. (Bauer Decl., Def.’s Supp. Ex. 2 at ¶¶ 3–4.)
As for Hendrix’s “errand boy” allegation, ATSAIC Aivazis has submitted a declaration explaining that he assigned Special Agent Hendrix to the tasks at issue because Hendrix was several hours late for work that day without authorization. Aivazis also asserts that “picking up gun holsters is a routine task which both Special Agent Hendrix and I have previously performed.” (Second Aivazis Decl., Def.’s Supp. Ex. 9 at ¶ 4.) Finally, Aivazis disavows that he was motivated by retaliatory intent.
C. Special Agent Luther Ivery Special Agent Luther Ivery contends that he too has been retaliated against for engaging in protected EEO activity. First, he alleges that on March 9, 2000, the SAIC of the Dignitary Protective Division, Steve Carey, allegedly told Ivery that AD Danny Spriggs, who is black, was “disappointed” when he heard that Ivery was involved in the EEO complaint underlying this case. SAIC Carey, who is also black, then allegedly warned Ivery, “If I were you, I wouldn’t be the one upfront.” (Ivery Decl., Attach to Pls.’ Mem. at ¶ 14.)
Ivery also alleges that, since joining this litigation, he has not been promoted despite scoring a 93.8 on the MPP. He maintains that other agents, both white and black, with far lower MPP scores have been promoted instead. (Id. at ¶¶ 10–15.)
Defendant counters that the reasons for Special Agent

Ivery’s non-promotion have nothing to do with race or his participation in this lawsuit. According to defendant, since March 9, 2000, Ivery has bid on three GS–14 positions which he was not awarded. For two, Ivery was not among the top thirty GS–13s who bid so his name was not placed on the Merit Promotion Certificate. For the third, Ivery was ranked thirtieth and a special agent with a higher MPP score was selected for the promotion. (Burgess Decl. at ¶¶ 18–21.) In addition, AD Spriggs claims to have harbored doubts about Special Agent Ivery’s leadership abilities because of a domestic incident that had occurred several years earlier. (Saliunas Dep., Pls.’ Supp. Ex. E at 205; Def.’s Supplemental Mem. (“Def.’s Supp.”) Ex. 21.) However, the defendant has never denied in filings or in oral argument that AD Spriggs said he was “disappointed” upon hearing that Ivery was involved in this matter.
D. Special Agent John Turner Special Agent John Turner is the second highest rated GS–13 level black special agent on the MPP behind Special Agent Moore, having scored a 98.10 on the last MPP. He is currently assigned to the Protective Intelligence Squad at the Washington Field Office. He has served twice in ATSAIC positions which are normally assigned to GS–14s. He alleges that he has not been promoted to GS–14 out of retaliation for his participation in this lawsuit. He also contends that he was involuntarily transferred to his current position, which purportedly has “significantly less responsibilities” than his previous assignment, approximately one week after this action was filed on May 3, 2000. (Turner Decl., Attach to Pls.’s Mem. Supp. Prelim. Inj. at ¶¶ 4, 5, 10.)
Defendant maintains that Special Agent Turner’s transfer was not the result of retaliation, but rather part of a routine office rotation. According to defendant, Turner was one of thirty other agents at the Washington Field Office who were *16 reassigned at the same time. (Dowling Decl., Def.’s Opp’n Ex. 11 at ¶ 6.) Defendant contends that Turner was among the thirty selected because he had already spent a lengthy period of time at his previous post and the Washington Field Office needed a senior GS–13 agent in the Protective Intelligence squad. (Ediger Decl., Def.’s Supp. Ex. 7 at ¶ 9.) According to defendant, Turner was also recently offered the position of group leader of his squad, which would give him additional responsibilities. (Saliunas Dep. at 366.) Plaintiffs’ counsel confirmed at oral argument that Special Agent Turner has accepted that position and will assume it shortly. With respect to the two non-promotions, defendant contends that the two agents who were promoted instead of Turner were better
7

Moore v. Summers, 113 F.Supp.2d 5 (2000)
qualified.
E. Special Agent Ray Moore Special Agent Moore maintains that he has been retaliated against throughout the EEO process. For instance, he was involuntarily transferred to the Dallas Field Office in October of 1999, days after he filed a formal class complaint in this matter. He alleges that, after his transfer, SAIC Jerry Patton, who is black, told Moore that he deserved to be promoted and would see to it that he was. However, on March 13, 2000, a newspaper article appeared in the Dallas Morning News discussing Moore’s role as lead plaintiff in this lawsuit. According to Moore, a co-worker in the Dallas Field Office told him that SAIC Patton no longer wanted Moore to be promoted because of the article. Moore was not promoted even though, according to him, his job performance rating was higher than those who were. (Moore Decl. at ¶ 23.) Moore also alleges that he has bid on forty-one other promotions since this litigation began and has not been awarded any.
Defendant denies that any of the actions Special Agent Moore has cited were motivated by retaliation. He has proffered evidence showing that Special Agent Moore’s transfer to Dallas had been formalized in July of 1999, well before the filing of the formal class complaint in October. (Def.’s Opp’n Exs. 13–14.) SAIC Patton denies that he withdrew his support for Special Agent Moore after the Dallas Morning News article was published and also denies that he ever told Moore that he deserved to be promoted. (Patton Decl., Def.’s Opp’n Ex. 12 at ¶ ¶ 3–9.) Defendant asserts that the individual who was promoted, a Hispanic agent, had a higher MPP score than Moore and was Patton’s first choice. (Burgess Decl. at ¶ 25.) With respect to the roughly forty non-promotions Moore has cited, the defendant’s agency designee was questioned about the reasons for these non-promotions during her deposition. One of the more common reasons given was Director Stafford’s policy against moving agents at taxpayer expense who had recently been moved to their current position. (Saliunas Dep. at 155–57, 186.) Another was the Director’s and Advisory Board’s alleged preference for laterally transferring GS–14s into vacant GS–14 positions rather than promoting a GS–13. (Id. at 131.) Plaintiffs note in response that neither of these two criteria is explicitly mentioned in the MPP.
Plaintiffs also allege that Special Agent Moore has been retaliated against since the filing of plaintiffs’ motion for a preliminary injunction. On June 1, 2000, someone mailed an anonymous complaint against Special Agent Moore to the Secret Service’ Office of Inspection here in Washington, accusing him of misusing government

telephones and computers to further his lawsuit against the Secret Service. The Office of Inspection is normally responsible for investigating wrongdoing on the part of Secret Service employees. However, the Secret Service turned over the letter to the Treasury Department’s Office of the Inspector General (“OIG”), an entity outside the Secret Service, citing the potential conflict of interest due to this litigation. (Clark Decl., Def.’s Supp. Ex. *17 16 at ¶¶ 2–3; Saliunas Dep. at 318–19, 429–430, 440.) OIG then conducted an investigation, produced a report, and no disciplinary action was taken against Special Agent Moore. (Saliunas Dep. at 726–28; Pls.’ Supp. Ex. J.)
F. Special Agent Yvette Summerour Special Agent Summerour claims that, on March 10, 2000, she was denied a requested transfer from the PPD to the Secret Service’s Major Events Division after becoming involved in this case. She further alleges that her supervisor, DSAIC Carl Truscott, told her that while she would not be transferred, other agents on the PPD who had less experience would still be given the opportunity for the transfer. Summerour claims that Truscott also told her that he did not think that any of her requested transfers were likely to succeed and that he opposed her discrimination claims. Summerour alleges that she felt as though she had no choice but to accept a lateral transfer to the Protective Intelligence Division on May 21, 2000. Moreover, Summerour, who is also the highest ranked black female on the MPP, was recently denied a promotion. (Summerour Decl. at ¶¶ 8–9, 16, 18.)
In response to Special Agent Summerour’s allegations, defendant has produced the declaration of AD Barbara Riggs, who oversees the Secret Service’s Intelligence Division. AD Riggs states that Summerour had phoned Riggs, “personally asked” for her reassignment, and did not indicate a preference for the Major Events Division. AD Riggs believes that Summerour’s assignment to the Intelligence Division is a “positive career move for her.” (Riggs Decl., Def.’s Opp’n Ex. 15 at ¶ 2.) Plaintiffs contend that Special Agent Summerour called AD Riggs only after Summerour became convinced that her other options had been foreclosed.
DSAIC Truscott also submitted a declaration. He states that he met with Special Agent Summerour as part of his routine practice of speaking with agent’s who are approaching the end of their five-year tenure with the PPD. He indicated that he was merely attempting to encourage Special Agent Summerour to make “realistic selections given the relative number of positions available in the various offices within the Secret Service.” He adds that he does not make any reselection assignments
8

Moore v. Summers, 113 F.Supp.2d 5 (2000)
himself, but rather merely provides advice and has neither discouraged Special Agent Summerour from bringing her discrimination claims nor retaliated against her. (Truscott Decl., Def.’s Supp. Ex. 5 at ¶¶ 3–4.)
DISCUSSION
Plaintiffs’ application for a preliminary injunction seeks two general forms of relief. First, plaintiffs seek to enjoin the use of MPP Peer Panel and Second–Level evaluations in personnel decisions regarding promotions, transfers and/or assignments. Second, plaintiffs seek an injunction against further acts of retaliation and intimidation which would include: (1) a ban on any further reprisals and acts of intimidation/retaliation against the plaintiffs and the class; (2) a Secret Service-wide e-mail affirming that no retaliatory action will be taken against anyone who participates in BASS, Inc., or this lawsuit, and that the Secret Service will discipline anyone who does retaliate; and (3) reasonable notification to plaintiffs’ counsel concerning any future transfers or employment actions involving the named plaintiffs.
I. Standard of Review [1] A preliminary injunction is an extraordinary form of relief not granted lightly. Traditionally, the plaintiff “must show 1) a substantial likelihood of success on the merits, 2) that [he or she] would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction.” *18 Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.Cir.1998) (internal quotations and citation omitted); see also Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 923 (D.C.Cir.1958). As the D.C. Circuit has held, “[t]hese factors interrelate on a sliding scale and must be balanced against each other.” Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir.1998).
Defendant argues, based on the Supreme Court’s decision in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), that plaintiffs must make a heightened showing of irreparable harm because they are seeking to enjoin federal personnel practices. In Sampson, the Supreme Court ruled that a federal court could preliminarily enjoin a probationary federal employee’s discharge pending the completion of her administrative appeal. However, the Court also held that the traditional

standards governing preliminary injunctions were inappropriate due to the “historical denial of all equitable relief by the federal courts” in past employment cases, coupled with the “well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs ... and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee ....” Sampson, 415 U.S. at 83–84, 94 S.Ct. 937 (internal quotations and citation omitted). Thus, a plaintiff seeking to stay a government personnel decision must “make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases.” Id. at 84, 94 S.Ct. 937.
When presented with the issue of whether this heightened irreparable harm standard applies in Title VII cases, the D.C. Circuit sidestepped it. See Wagner v. Taylor, 836 F.2d 566, 575 & n. 66 (D.C.Cir.1987). However, another member of this Court has addressed the question, explicitly holding “that a more stringent showing of irreparable injury is required when a plaintiff, even in a Title VII case, seeks a preliminary injunction against the federal government in the personnel arena.” Bonds v. Heyman, 950 F.Supp. 1202, 1212 (D.D.C.1997) (Lamberth, J.). To make this “more stringent showing,” the plaintiff must demonstrate “extraordinary irreparable injury” or “that an adverse personnel action is likely to have a chilling effect on other employees who, after witnessing their fellow co-worker’s discharge or dismissal, would now refuse to file claims in fear of reprisals ....” Id. at 1214–15.
Here, regardless of whether this heightened standard should apply, plaintiffs have not met even the traditional standard with respect to their claim of discriminatory promotions. I also find, however, that plaintiffs have met both the traditional and the heightened standard for preliminary injunctive relief with respect to their claim that the Secret Service has engaged in activity having a chilling effect on the prospective plaintiffs’ exercise of their Title VII rights.
II. Allegations that the MPP is Discriminatory
A. Likelihood of Success on the Merits [2] Plaintiffs allege that Peer Panel and Second–Level evaluations violate Title VII under two separate theories of liability. First, plaintiffs bring a “disparate treatment” claim (also known as a “pattern and practice” claim in the class action context) in which they allege that the
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Moore v. Summers, 113 F.Supp.2d 5 (2000)
operation of the MPP manifests an intent on the part of the Secret Service to discriminate against black special agents as a class. To prevail on such a claim, “[p]roof of illicit motive is essential, but, especially in cases alleging class-wide discrimination, illicit motive may be inferred from a sufficient showing of disparity between members of the plaintiff class and comparably qualified members of the majority group.” Segar v. *19 Smith, 738 F.2d 1249, 1265–66 (D.C.Cir.1984) (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).
[3] Plaintiffs also bring a “disparate impact” claim. Under this theory, plaintiffs are not required to prove discriminatory motive. Rather, it is enough for them to show that the challenged employment practices, though “facially neutral in their treatment of different groups ... in fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843. As the D.C. Circuit has explained, the “classic” example of a disparate impact claim occurs when the “plaintiffs allege that the defendant based employment decisions on results of a test for which members of one [race] on average received lower scores than members of the other [race].” Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987) (citations omitted).
Though the disparate treatment and disparate impact theories share some similarities, the sequence and allocations of burdens of proof differ in important ways. Because discriminatory intent is the keystone of any disparate treatment claim, “the plaintiff class will likely try to meet this ultimate burden by proving a disparity sufficient to permit an inference of discrimination [so that] plaintiff must carry the burden of persuasion as to the existence of the disparity.” Segar, 738 F.2d at 1267. Disparate impact claims, by contrast, do not seek to root out discriminatory intent, but rather aim at facially neutral practices that adversely affect minorities without a legitimate business justification. As such, “plaintiffs bear the burden of persuasion as to the existence of a race-related disparity caused by an employment practice, but, once plaintiffs have made this showing, the employer bears the burden of persuasion as to the business necessity of the practice.” Id. (citation omitted).
As the D.C. Circuit has noted, “an important point of convergence” between disparate treatment and disparate impact claims exists in class actions such as this one. Id. Because both disparate treatment and disparate impact claims “are attacks on the systemic results of employment practices ... proof of each claim will involve a showing of disparity between the minority and majority groups in an employer’s workforce.” Id. Thus, under both theories of

liability, the plaintiffs must make a prima facie showing that a racial disparity exists.

The centerpiece of such a showing is usually a statistical analysis demonstrating “a disparity in the position of members of the plaintiff class and comparably qualified whites.” Id. Anecdotal evidence regarding particular instances of alleged discrimination is frequently used to put some flesh on the bare-boned numbers. If the plaintiffs are able to meet their initial burden of establishing that a disparity does exist, the employer can seek to refute the conclusion that a disparity exists, usually by introducing its own statistical evidence. See id. The defendant can also mount “an explanatory defense” which amounts to “a claim that the observed disparity has not resulted from illegal discrimination.” Id. at 1267–68. If the defendant succeeds in rebutting the inference of discrimination, then it is appropriate to apply disparate impact analysis in order to determine whether the facially neutral barriers hindering minorities’ advancement are job-related. See id. at 1272 n. 19 (“Disparate impact will apply in the pattern or practice case only after plaintiffs have made a sufficient initial showing of disparity between groups that appear to be comparably qualified, and after it has been decided that the employer’s explanation rebuts the disparate treatment claim.”).

[4] Here, it is unnecessary to proceed past the first step of the disparate treatment analysis because plaintiffs have not proffered sufficient evidence demonstrating that a disparity exists in order to make *20 out a prima facie case. Dr. Mann’s statistical analysis, which is based on a single statistic derived from one year of employment figures, revealed that the difference between the percentage of black GS–13s (10.8%) and black GS–14s (4.2%) was statistically significant using a one-tail test at the .000044 level. This significance level corresponded to a difference of 4.08 standard deviations under a two-tailed test.2 Such a small level of significance normally suggests that the observed disparity was caused by something other than chance, therefore giving rise to a rebuttable presumption of discrimination. See Palmer, 815 F.2d at 92 (noting that a finding of significance at the .05 level, which corresponds to a difference of 1.96 standard deviations under a two-tailed test, is significant enough to create an inference of discrimination); Segar, 738 F.2d at 1282.

2

The D.C. Circuit has expressed a preference for

two-tailed tests over one-tailed tests. See Palmer, 815

F.2d at 95. This preference is based on the difference

between the two types of tests and their relationship to

the purposes of Title VII. A one-tailed test reveals

whether, under the facts of this case, blacks are treated

at least as well as or better than whites. See id. at 95.

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Moore v. Summers, 113 F.Supp.2d 5 (2000)
However, a one-tail test does not indicate whether whites are treated worse than blacks. A two-tailed test, by contrast, demonstrates whether blacks and whites were treated equally, taking into account both whether whites are treated as well as or better than blacks and vice versa. See id. Because the purpose of Title VII is to assure that people are treated equally, and not that one group is treated at least as well as or better than another, the D.C. Circuit prefers two-tailed tests. See id.
Dr. Mann’s analysis, however, is based on a critical, and potentially erroneous, assumption. Dr. Mann reasoned that “[a]ssuming the representation of African–Americans among the GS–13 [special agents] as an estimate of the rate at which African–Americans should be represented among GS–14 [special agents],” the expected percentage of black GS–14s is much higher than what was actually observed. (Mann Decl. at ¶ 8) (emphasis added). This assumption may not be a safe one to make under both the law of this Circuit and the facts of this case.
[5] It is well-settled that, to establish a prima facie case, plaintiffs’ proof that a racial disparity exists must “eliminate the most common nondiscriminatory explanations of the disparity, and thus permit the inference that, absent other explanation, the disparity more likely than not resulted from illegal discrimination.” Segar, 738 F.2d at 1274 (citing Teamsters, 431 U.S. at 368, 97 S.Ct. 1843). Because the most common nondiscriminatory reason for a systemic disparity in treatment is ineligibility among the minority group members, id., the plaintiffs’ statistical evidence must be “based upon a comparison of those [black special agents] eligible for selection who were actually selected with the corresponding proportion of eligible [white special agents] who were actually selected.” Palmer, 815 F.2d at 90 (emphasis added). See also Segar, 738 F.2d at 1274 (panel opinion); id. at 1299 (concurring opinion) (noting that plaintiffs’ statistics must “compare the employer’s relevant work force with the qualified population in the relevant labor market”) (internal quotations and citations omitted). Put yet another way, “[i]t is not enough ... to prove that blacks form a smaller percentage of the managers than they do of all employees in a given firm, unless there is also a showing that within the black employees the portion of persons qualified for the higher type of position is significantly greater than the portion now holding those jobs.” Metrocare v. Washington Metro. Area Transit Auth., 679 F.2d 922, 930 (D.C.Cir.1982).
In this case, a comparison of the percentage of black GS–13s to the percentage of black GS–14s is not meaningful unless all of the black GS–13s are eligible to be promoted to GS–14. The record does not establish that

prerequisite. It is undisputed that, in order to be eligible for a promotion, a special agent must have first completed three years “in grade.” (Burgess Decl. at ¶ 23.) Moreover, it is also *21 undisputed that eligible special agents must bid to be considered for a promotion. This suggests that, for reasons presumably unrelated to race, not every black GS–13 is eligible to be promoted to GS–14, and of those who are eligible, not all are considered for a promotion. Plaintiffs do not contend otherwise.
Plaintiffs’ statistical analysis therefore does not demonstrate that a racial disparity exists in the promotion of GS–13s to GS–14. Dr. Mann’s study focused solely on the percentage of black GS–13s versus the percentage of black GS–14s as of July 31, 1999. However, he did not differentiate between GS–13s who were eligible to be considered for promotion from those who were ineligible during the period leading up to July 31, 1999. Such a comparison could yield results drastically different from those reached by Dr. Mann. Defendant has proffered that, as of January of 1999, the Secret Service employed 106 black GS–13 special agents. Of those 106 agents, only 36 had completed three years in grade and only 16 had actually bid for a promotion. (Saliunas Decl., Def.’s Opp’n Ex. 6 at ¶ 2.) Plaintiffs, who bear the burden of establishing that a disparity exists, thus have not supplied the relevant statistic: the percentage of black GS–13s who competed for and won a promotion versus the percentage of white GS–13s who competed for and won a promotion. Because plaintiffs’ statistical analysis is insufficient to raise the presumption of class-wide discrimination through statistical evidence, I need not address the additional statistical evidence defendant has provided in rebuttal.
[6] Plaintiffs’ failure to make a statistical showing of a disparity between the percentage of eligible whites and blacks promoted to the GS–14 level largely deprives plaintiffs’ anecdotal evidence of its probative value. See Ste. Marie v. Eastern R.R. Ass’n, 650 F.2d 395, 405 (2d Cir.1981) (noting that, in the absence of relevant statistics, seven individual incidents of alleged subjective decision-making were insufficient to give rise to an inference of pattern and practice discrimination). Plaintiffs’ anecdotal evidence rests largely on the declaration of one agent—Special Agent Moore—and the defendant has contested the inferences that Special Agent Moore has drawn from his experience. Nevertheless, no matter whether Special Agent Moore has in fact been the victim of discrimination, a pattern and practice claim cannot rest on a single incident or even a few incidents of discrimination. See id. Accordingly, I find that plaintiffs have not demonstrated that they are likely to succeed on the merits of their claim that operation of the Peer Panel
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Moore v. Summers, 113 F.Supp.2d 5 (2000)
and Second–Level evaluations systematically discriminate against black GS–13 special agents.

B. Other Factors Because plaintiffs thus far have failed to show a

likelihood of success on the merits, I shall not dwell long on the remaining factors I must consider. Without a showing that there is a disparity in the treatment of eligible black GS–13 level agents, plaintiffs cannot establish that they will be irreparably harmed, let alone extraordinarily irreparably harmed under the Sampson

standard, if an injunction does not issue. I also have considered plaintiffs’ claim that the harm they could face without an injunction is enhanced by the fact that this is a presidential election year, during which leadership positions on the Presidential and Vice–Presidential Campaign details are at stake. According to the Secret

Service, however, virtually all of the highly-coveted positions that plaintiffs claim they will be denied if use of the MPP is not enjoined have already been filled or are temporary lateral assignments rather than promotions. (Spriggs Decl., Def.’s Opp’n Ex. 24 at ¶¶ 9, 11) (stating that selection for leadership assignments on the

Presidential and Vice–Presidential Campaign Detail and for the 2002 Salt Lake City Winter Olympics have already been filled); (Third Spriggs Decl., Def.’s *22 Supp. Ex. 1 at ¶¶ 14–15) (stating that assignments for positions at Opsail 2000 (which has already occurred), the United Nations General Assembly Millennium Event, and

the 2001 Presidential Inauguration are all temporary lateral assignments).3 These facts further diminish the likelihood of imminent and irreparable harm to the plaintiffs.

3

Defendant has since submitted the Declaration of

Robert F. Byers, which notes that, since AD Spriggs

submitted his declaration, one GS–14 position for the

Salt Lake City Olympics came open due to a

retirement, has been rebid, and is yet to be filled.

(Byers Decl. at ¶¶ 3–5.)

The balance of harms and public interest also do not favor the issuance of injunctive relief on this claim. Enjoining the Secret Service from using its current promotion system when that system has not been shown to create racial disparities in promotions would cause an undue disruption in the operation of the Secret Service. Likewise, while the public interest is served by enjoining unlawful discrimination, it is against the public interest to disrupt the functioning of a government agency, particularly one with as important and sensitive a role as the Secret Service, without a strong showing that the discrimination is real rather than perceived. Accordingly,

for the foregoing reasons, plaintiffs’ application for a preliminary injunction that would stop the Secret Service from using the Peer Panel and Second–Level evaluations in upcoming promotion and transfer decisions will be denied.
III. Retaliation
A. Likelihood of Success on the Merits [7] Plaintiffs allege that they have been retaliated against for their participation in this lawsuit and the preceding EEO process. In evaluating a retaliation claim, courts proceed through three steps, beginning with the plaintiffs’ establishment of a prima facie case. See Cones v. Shalala, 199 F.3d 512, 520 (D.C.Cir.2000). To make out a prima facie case of retaliation, a plaintiff must show (1) that he or she has engaged in statutorily protected behavior, (2) that his or her employer took an adverse personnel action against him or her, and (3) that a causal connection existed between the protected activity and the adverse action. See Cones, 199 F.3d at 521; Paquin v. Federal Nat’l Mortgage Ass’n, 119 F.3d 23, 31 (D.C.Cir.1997); Barnes v. Small, 840 F.2d 972, 976 (D.C.Cir.1988); Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985). If the plaintiff establishes a prima facie case of retaliation, the employer “must articulate a legitimate non-retaliatory reason for its action ....” Cones, 199 F.3d at 520. If such a reason is given, the burden then shifts back to the plaintiff to “establish[ ] that the reason asserted by the employer is pretext for retaliation.” Id.
[8] Plaintiffs’ allegations of retaliation are wide-ranging and have given rise to numerous factual disputes. Having reviewed the entire record in this case, which contains roughly seventy-five declarations from those who have alleged and been accused of retaliation plus the lengthy deposition testimony of the Secret Service’s agency designee, I am not convinced that plaintiffs have demonstrated a substantial likelihood of success on the merits of their retaliation claims. Rather, I find that the evidence to date is in equipoise at best.
[9] As a threshold matter, there is a serious question as to whether plaintiffs will be able to state a prima facie case with respect to several of their allegations because many of the challenged employment actions would not appear to rise to the level of “adverse action” that is required by this Circuit. In assessing whether an employee has been subjected to adverse employment action, the D.C. Circuit is “less concerned with the kind of employment action involved, than with its effect on the employee” and therefore “no *23 particular type of personnel action [is] automatically excluded from serving as the basis of a
12

Moore v. Summers, 113 F.Supp.2d 5 (2000)
cause of action under [Title VII].” Brown v. Brody, 199 F.3d 446, 455 (D.C.Cir.1999). However, in addressing whether lateral transfers are cognizable as adverse employment actions. Brown announced the following rule:
[A] plaintiff who is made to undertake or who is denied a lateral transfer—that is, one in which she suffers no diminution in pay or benefits—does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privilege of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.
Id. at 457. Materially adverse employment actions causing objectively tangible harm include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or decision causing a significant change in benefits.” Id. at 456–47 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). By contrast, “[m]ere idiosyncracies of personal preference are not sufficient to state an injury.” Id. at 457.
Here, much of the retaliation in which defendant is alleged to have engaged, whether resulting in lateral transfers or otherwise, would appear not to qualify as materially adverse employment actions causing objectively tangible harm. For instance, it is undisputed that Special Agent Summerour’s transfer to the Protective Intelligence Division did not involve a reduction in grade or pay. Nor has Special Agent Summerour alleged that her job responsibilities have been substantially diminished in any way. She simply makes the conclusory assertion that she perceived the transfer to be “negative to her career.” Special Agent Turner, by contrast, has alleged that his transfer involved a substantial diminution in responsibilities. However, it is also undisputed that Special Agent Turner has since been offered and has accepted a group leader position involving increased responsibilities. It is thus unclear at this point as to whether his lateral transfer has caused him any objectively measurable harm.
[10] Special Agent Hendrix’s claim that he was assigned “errand boy” tasks would appear to fall well under the adverse action bar. The evidence suggests that the

tasks—obtaining holsters—appear not to be ordinarily relegated to low level employees. Whatever discomfort Special Agent Hendrix may have felt as a result of this single assignment, there was no objectively tangible harm.
[11] The same can be said of the OIG investigation of Special Agent Moore. It is undisputed that no disciplinary action has been taken against Special Agent Moore as a result of the investigation. Consequently, there was no adverse action. See Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir.1996) (holding that charges of wrongdoing in workplace alone cannot be adverse actions because “if the charges were ultimately dismissed, [the plaintiff] would not have suffered any adverse effect from them.”).

I note that plaintiffs have asserted in their opposition to the defendant’s motion to dismiss, but not in their preliminary injunction submissions, that the Brown framework applies only to individual claims of disparate

treatment, and not to class-wide “pattern and practice” claims. Plaintiffs note that, in reaching its conclusion that

a plaintiff had to demonstrate objectively tangible harm to make out a prima facie case of retaliation, the Brown panel was forced to distinguish Palmer. In Palmer, the D.C. Circuit relied on the broad language of 42 U.S.C. § 2000e–16(a)4 to hold that an employee may bring *24 an actionable Title VII claim “with respect to any employment decision by an agency of the federal government .... regardless of whether the personnel action affects promotions or causes other tangible economic loss.” Palmer, 815 F.2d at 97. However, “unlike Palmer

... Brown’s claim [was] an individual disparate treatment claim rather than a pattern or practice claim” so that the

“very different nature of the claim in Palmer ” rendered it inapposite. Brown, 199 F.3d at 454. According to plaintiffs, because this is a pattern and practice case like Palmer, the reason that the Brown court gave for

distinguishing Palmer does not apply here, thereby rendering the Brown framework inapplicable.

4

That provision of Title VII, which outlaws

discrimination in the federal workplace, states that “all

personnel actions affecting employees or applicants for

employment ... shall be made free from any

discrimination based on race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e–16(a).

Plaintiffs may have raised an interesting and important issue, but it is one that I need not dispositively resolve at this juncture in the case. First, Brown would presumably apply to the plaintiffs’ individual claims of retaliation, and plaintiffs’ motion for a preliminary injunction deals primarily with alleged retaliation against the named
13

Moore v. Summers, 113 F.Supp.2d 5 (2000)
plaintiffs rather than against the prospective class as a whole. Second, some of plaintiffs’ allegations do involve alleged employment actions that could be construed as adverse even under the heightened Brown standard, such as allegations relating to non-promotion to the GS–14 level. Third, with respect to both the challenged employment actions that would likely qualify as adverse under Brown and those that probably would not, defendant has provided explanations of the legitimate non-discriminatory reasons for the challenged action. Plaintiff counters that the proffered reasons are all pretextual. However, the record at this point is best characterized as a tangle of contradictory factual assertions and inferences. Plaintiffs have not yet provided strong enough evidence discrediting the defendant’s explanations for me to conclude that plaintiffs are substantially likely to succeed on their retaliation claims. Although the evidence that plaintiffs have proffered so far may be sufficient to avoid summary judgment, in the context a motion for a preliminary injunction, it is plaintiffs’ burden to establish a substantial likelihood of success on the merits. With the evidence at best in equipoise, plaintiffs have not carried that burden.
B. Irreparable Harm [12] Even if plaintiffs had made a stronger showing on the merits of their retaliation claims, preliminary injunctive relief enjoining future retaliation would still be inappropriate under the circumstances. It is well-settled that preliminary injunctive relief is not usually available in employment cases because “[e]ven under the traditional standards of Virginia Petroleum Jobbers, supra, it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Sampson, 415 U.S. at 90, 94 S.Ct. 937. Thus, even if it is assumed that the plaintiffs will face future retaliation, the harm they would presumably suffer as a result is not irreparable because “[m]ere injuries, however substantial, in terms of money, time, and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Virginia Petroleum Jobbers, 259 F.2d at 925.
Recognizing this fact, plaintiffs claim that they will suffer a different type of harm. They contend that future acts of retaliation and intimidation will have a “chilling effect” on members of the prospective class, discouraging them from coming forward to join this lawsuit. As the D.C. Circuit has noted, “[r]etaliation *25 threatens the very core of Title VII’s guarantees, for it may well dissuade

employees from ventilating their grievances.” Wagner, 836 F.2d at 574.
Plaintiffs find support for their irreparable harm argument chiefly in two district court cases, Segar v. Civiletti, 516 F.Supp. 314 (D.D.C.1981), and Bonds, discussed in Part I above. In Segar v. Civiletti, the district court preliminarily enjoined the transfer of a Drug Enforcement Administration (“DEA”) agent who was the lead plaintiff in a class action much like this one alleging discrimination in the DEA’s employment practices. The DEA agent was faced with an imminent transfer and demotion after a trial on the merits and the district court’s issuance of findings that discrimination had existed in six areas, including supervisory evaluations. See Segar v. Civiletti, 516 F.Supp. at 318. Judge Robinson easily found that the decision to transfer and demote the agent less than a month after he issued his ruling was likely motivated by retaliatory animus. See id. Moving to the irreparable injury prong, Judge Robinson began by acknowledging that the plaintiff “would suffer no injury that could not subsequently be remedied.” Id. at 320. Judge Robinson then reasoned as follows:
Irreparable harm would however, attach to members of the Plaintiff class should this Court refrain from issuing the requested injunction. They must come forward with proof of specific injuries. Jackson, as the highest ranking Black DEA agent, is highly visible to members of the class. His unwarranted transfer and demotion would serve as an example to the class members know your place, don’t challenge management, don’t assert your right to equal employment opportunity. The message transmitted to the class members by this act of retaliation is clear; unless Plaintiff is protected now from the adverse action, members of the class will refrain from coming forward with their claims. The injury to them will be irreparable.
Id. Judge Robinson thus enjoined the planned transfer and demotion. He concluded his opinion by adding that “a primary reason for judicial restraint in the issuance of preliminary injunctive relief is the need for the Court to be fully informed before it injects itself into a dispute.” Id. That reason was absent in Segar because the trial was already over.
14

Moore v. Summers, 113 F.Supp.2d 5 (2000)
Bonds also involved an application for a preliminary injunction to stop an imminent adverse action, this time a termination. The application was filed after full-blown discovery had concluded and the parties had cross-moved for summary judgment. After holding that the Sampson “extraordinary irreparable injury standard” applied, Judge Lamberth found that the plaintiff had met that standard. He reasoned that, if the termination was allowed to occur, it was unclear whether the plaintiff, who had worked for her employer for forty years and was nearing retirement age, “could ever find work approaching what she now does, if she could find work at all.” Bonds, 950 F.Supp. at 1215. Judge Lamberth also noted that, although the plaintiff had presented no evidence in this regard, “a plaintiff who demonstrates that an adverse personnel action is likely to have a chilling effect on other employees who, after witnessing their fellow co-worker’s discharge or dismissal, would now refuse to file claims for fear of reprisals, would also meet Sampson’s barrier.” Id. at 1214–15.
I find that Segar and Bonds are both distinguishable from this case such that it would be inappropriate for me to issue an injunction enjoining future acts of retaliation. As an initial matter, the courts in both Segar and Bonds had the benefit of a fully-developed factual record which mitigated the danger that the court would reach premature conclusions about the merits of the case. See Wagner, 836 F.2d at 576 n. 75 (distinguishing Segar on this ground from a case in which plaintiff was still in the process of challenging his employer’s actions); Nichols v. Agency for *26 Int’l Dev., 18 F.Supp.2d 1, 5–6 (D.D.C.1998) (distinguishing Bonds on the same ground). Although I have allowed some fairly extensive discovery to occur in connection with plaintiffs’ retaliation allegations, the record is still rife with factual disputes which ultimately may have to be decided by a jury.
[13] More importantly, both Segar and Bonds involved motions to enjoin a specific and imminent retaliatory action that was about to be taken against a specific person. The D.C. Circuit has held that, when a plaintiff seeks preliminary injunctive relief against acts of reprisal for engaging in protected EEO activity, the plaintiff must not only prove irreparable harm, but also the “imminence of further retaliation.” Wagner, 836 F.2d at 576 & n. 75; see also Competitive Enters. Inst. v. United States Dep’t of Agriculture, 954 F.Supp. 265, 276 (D.D.C.1996) (“The harm alleged cannot be speculative, and it must be ‘both certain and great’ ”) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985)). Here, plaintiffs have not identified any specific future retaliatory action that the Secret Service intends to take or

is even likely to take against anyone. Instead, plaintiffs assume that, because retaliation supposedly occurred before, some undefined retaliatory action will be taken at an unspecified time at some point in the indefinite future. However, without stronger evidence that retaliation actually occurred and a more concrete showing of imminence, an injunction against future acts of retaliation is unwarranted at this time.
Notwithstanding my finding that plaintiffs are not entitled to a preliminary injunction against future acts of retaliation, I find that plaintiffs have shown that the Secret Service has engaged in activity which likely has had and will continue to have a chilling effect on the prospective class members’ desire to assert their Title VII rights. Its genesis was the e-mail sent by Director Stafford to the entire Secret Service about this case right after plaintiffs filed their amended EEO complaint. While it was understandable for Director Stafford to claim that he was “troubled” by allegations of racism, he said more than that. He not only announced being “disappointed” by plaintiffs’ allegations, but also declared that it was “offensive” for anyone to question the Secret Service’s employment practices. Whether intended or not, such a proclamation of offense broadcast from the very head of the agency could easily be received as a warning that employees who exercise their right to challenge perceived racism in the agency do so at their own risk. And, despite other laudable language in the e-mail reaffirming the Secret Service’s commitment to equal opportunity, a black agent could still reasonably infer that his or her career would not be enhanced, and might even be put in jeopardy, by joining litigation that the head of the agency had so strongly and unequivocally condemned. Indeed SAIC Carey allegedly conveyed that very message to Special Agent Ivery less than two weeks after Director Stafford’s e-mail by warning, “If I were you, I wouldn’t be the one upfront.”
The Secret Service has since acknowledged that, in retrospect, Director Stafford did not make “the best choice of words.” (Saliunas Dep. at 808.) Yet, the Director has neither retracted those words nor has he clarified them to his employees. His failure to take corrective action only reinforces the original shot across the bow.
The chilling climate begun by Director Stafford’s proclamation may have been worsened within weeks by two different supervisors expressing disappointment over two different black special agents’ links to discrimination allegations. This climate may even have been unwittingly exacerbated by the e-mails from senior black agents to the members of BASS. While the e-mails may simply reflect
15

Moore v. Summers, 113 F.Supp.2d 5 (2000)
an ongoing internal debate in the black Secret Service community about the future of BASS, Inc., those e-mails may have sent a message, partly reinforcing Director Stafford’s, *27 that people in high places at the Secret Service who have a major say over who gets promoted and who does not disapprove of BASS, Inc. and in turn plaintiffs’ lawsuit.
I also find that the purported chill in this case is not speculative. It is true that a “single-statement allegation, buttressed by no factual support, cannot support a finding of irreparable injury based on a putative chilling effect.” Nichols, 18 F.Supp.2d at 5. However, plaintiffs have provided buttressing factual support. The plaintiffs have all claimed to have felt intimidated by the barrage of e-mails. So has another black agent and member of BASS who is not a named plaintiff. (Ravenell Decl., Pls.’ Reply Supp. Prelim. Inj. Ex. 1 at ¶¶ 6–14.) It is also undisputed that, in the wake of the e-mails, eight junior black agents resigned from BASS and six of them asked to be permanently removed from BASS’s e-mail router. These eight individuals have also purportedly refused to speak with plaintiffs’ counsel.
This last fact is significant. If the real reason for why the eight agents resigned from BASS was that they disagreed with the manner in which BASS, Inc. was being incorporated, one wonders why they would not simply say so to plaintiffs’ counsel. A reasonable inference can be drawn that one or more of these agents have refused to speak at all because they fear reprisal.
[14] Defendant contends that plaintiffs are resting on mere conjecture and have failed to provide direct evidence of a chilling effect. However, in the First Amendment context, where “chilling effects” are commonly litigated, the Supreme Court has rejected “unduly strict requirements of proof” in favor of “flexibility in the proof of injury.” Buckley v. Valeo, 424 U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam ). Plaintiffs cannot be expected to come forward with testimony from individuals who are too afraid to bring their claims but not too afraid to put their fears on the record. To be entitled to injunctive relief, plaintiffs are required only to produce evidence showing that the action complained of is “likely to have a chilling effect on other employees” who would then refrain from coming forward with their claims. Bonds, 950 F.Supp. at 1215 (emphasis added). Here, the language of the e-mails themselves, the timing of the resignations in relation to the e-mails, and the refusal of those who resigned to even speak with plaintiffs’ counsel all lead me to conclude that there likely has been a chill on at least some junior black agents. Accordingly, I find that plaintiffs will suffer irreparable harm if corrective

action is not taken.5

5

Because I find that plaintiffs have demonstrated that

their Title VII rights have been chilled, I need not

address plaintiffs’ derivative contention that their First

Amendment Free Speech and Association rights have

also been burdened.

C. Other Factors Both the balance of harms and the public interest weigh in favor of granting the plaintiffs limited preliminary injunctive relief which would require the Secret Service to send an agency-wide e-mail explaining that no retaliatory action will be taken by the Secret Service or its management against anyone who participates in this lawsuit, and that anyone who engages in such retaliatory conduct will be disciplined appropriately. Such an order, which would essentially require the Secret Service to reaffirm its pre-existing legal obligations, would impose no hardship upon the Secret Service. This form of targeted relief is far less drastic than the type of injunction contemplated by Sampson which would prevent a planned adverse personnel action from occurring. Unlike enjoining a demotion or a termination, ordering the issuance of a remedial e-mail neither threatens to paralyze the Secret Service from taking necessary personnel action nor intrudes upon the agency’s prerogative over its internal operation. Moreover, such relief would serve the public *28 interest in combating discrimination and retaliation.
IV. Additional Matters
A. Motion to Strike Plaintiffs have moved that I strike in whole or in part several of defendant’s supplemental declarations which add to or contradict the agency designee’s deposition testimony. Plaintiffs’ objection is premised on the fact that Rule 30(b)(6) is aimed at preventing “bandying”—the practice “by which officers or managing agents of a corporation [or government agency] are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it.” Rainey v. American Forest and Paper Ass’n, 26 F.Supp.2d 82, 95 (quoting Fed.R.Civ.P. 30(b)(6) advisory committee’s note). Declarations cannot be considered if they raise “new or different allegations that could have been made at the time of the 30(b)(6) deposition.” Id. at 94. Therefore, I have not considered the following statements which I consider to have raised either contradictory information or new information that
16

Moore v. Summers, 113 F.Supp.2d 5 (2000)
could have been provided by the agency designee: Second Carey Decl., Def.’s Supp. Ex. 18; Third Spriggs Decl., Def’s Supp. Ex. 1 at ¶¶ 7–13; Amended Ediger Decl., Def.’s Supp. Ex. 8 at ¶ 14; Bibb Decl., Def.’s Supp. Ex. 17. I have, however, considered challenged statements relating primarily to discrimination in promotions or other personnel decisions because discovery was limited to plaintiffs’ retaliation allegations. Moreover, I have considered declarations relating to Special Agent Hendrix’s non-assignment to a whip position because the transcript excerpts cited by plaintiffs include only questions and answers about the whip selection process in general rather than specific questions about Hendrix’s non-assignment. Finally, I have considered sealed Exhibit 21 relating to Special Agent Ivery’s “domestic incident” because that exhibit is documentary, as opposed to testimonial, evidence. Accordingly, plaintiffs’ motion to strike will be granted in part and denied in part.
B. Administrative Leave [15] In their supplemental brief, plaintiffs have alleged that they were retaliated against further when several of the named plaintiffs were denied paid administrative leave to attend the deposition of the Secret Service agency designee. Plaintiffs have asked that I permanently enjoin the defendant from refusing to grant the named plaintiffs’ future requests for paid administrative leave to participate in further proceedings in this action, such as attending other depositions. That request will be denied.
Secret Service policy provides that an employee is entitled to administrative leave “(1) for jury duty or (2) to serve as a witness on behalf of any party in connection with any judicial proceeding to which the United States, the District of Columbia, or a state or local government is a part.” (Def.’s Supp. Ex. 20.) Accordingly, plaintiffs are entitled to administrative leave when they are being deposed, but not when they wish to attend someone else’s deposition or seek to engage in other case preparation. Contrary to plaintiffs’ contention, it was not inconsistent or unfair for the Secret Service to deny the plaintiffs administrative leave while allowing the agency designee to use her leave. Ms. Saliunas, the designee, was the deponent while plaintiffs merely sought to attend her deposition. Director Stafford’s denial of administrative leave to the plaintiffs and not to Ms. Saliunas was thus in accord with existing Secret Service policy.
As courts within this Circuit and elsewhere have recognized, “[t]here is no express provision in Title VII or its regulations granting an employee the right to administrative leave for judicial proceedings.” Shelborne v. Runyon, No. Civ. A. 95–0641, 1997 WL 527352, at

*16 (D.D.C. Aug. 21, 1997) (citing Jones v. Babbitt, 52 F.3d 279, 282 (10th Cir.1995), overruled in part on other grounds by Randle v. City of *29 Aurora, 69 F.3d 441 (10th Cir.1995)). Thus, “[w]hile courts allow administrative leave for the trial itself, they routinely deny it for trial preparation.” Id. (citing authorities). Adherence to an established agency policy regarding administrative leave also goes a long way in rebutting any inference of discrimination or retaliation that might otherwise be drawn from the denial of paid leave. See id. at *15 (citing Batson v. Powell, 912 F.Supp. 565, 579 (D.D.C.1996), aff’d, 203 F.3d 51, 1999 WL 1337765 (D.C.Cir.1999)).
Plaintiffs rely on Mitchell v. Baldrige, 662 F.Supp. 907 (D.D.C.1987), for the proposition that plaintiffs have a general right to be placed on administrative leave whenever they seek to engage in preparation of their Title VII case. Mitchell, however, cannot be read so broadly. In that case, the district court granted a Title VII plaintiff’s request to be placed on administrative leave for trial preparation. However, as has since been noted, “the court’s holding in Mitchell is narrow in application.” Shelborne, 1997 WL 527352, at *17. Mitchell’s case had already been tried and appealed, so that Mitchell was not “an untested litigant.” Mitchell, 662 F.Supp. at 909. Here, by contrast, plaintiffs are “still in the early stages of the litigation.” Shelborne, 1997 WL 527352 at *17. Thus, they are not entitled to be exempted from the Secret Service’s pre-established administrative leave policy. Plaintiffs’ request for a permanent injunction ordering otherwise therefore will be denied.
CONCLUSION
I will not enjoin the operation of the MPP because plaintiffs have not made a strong enough showing at this stage that the MPP systematically discriminates against black special agents. Plaintiffs have made a stronger showing on the merits of one aspect of their retaliation claims. Though I have found that most of the evidence on those claims is in equipoise, the other three preliminary injunction factors all weigh in favor of granting plaintiffs limited injunctive relief targeted at alleviating the possible chilling effect that the Secret Service’s reaction to this litigation has caused. However, because the Secret Service has asked to have until September 11, 2000 to consider issuing a voluntary corrective Service-wide e-mail that affirms employees’ rights to pursue EEO claims, pledges no retaliation against anyone who participate in this litigation, and threatens appropriate discipline against anyone who does retaliate, I will defer ruling on the request for an order requiring such an
17

Moore v. Summers, 113 F.Supp.2d 5 (2000)
e-mail. Finally, plaintiffs have not demonstrated that the Secret Service’s denial of administrative leave was done in retaliation for engaging in protected EEO activity and should be enjoined. Accordingly, plaintiffs’ application for a preliminary injunction will be denied in part and held in abeyance in part. An Order consistent with this Opinion is being issued today.
ORDER For the reasons set forth in the accompanying Memorandum Opinion issued this day, it is hereby

ORDERED that plaintiffs’ Motion to Strike [65] be, and hereby is, GRANTED IN PART AND DENIED IN PART. It is further
ORDERED that the Second Declaration of Steve Carey, the Third Declaration of Danny Spriggs at ¶¶ 7–13, the Amended Declaration of Rebecca Ediger Declaration at ¶ 14, and the Declaration of Harold Bibb be, and hereby are, STRICKEN from the record. It is further
ORDERED that plaintiffs’ Application for a Preliminary Injunction [8] be, and hereby is, DENIED IN PART and HELD IN ABEYANCE IN PART.

18

 
 Stewart v. O’Neill, 225 F.Supp.2d 16 (2002)

225 F.Supp.2d 16 United States District Court,
District of Columbia.
Larry D. STEWART, et al. Plaintiffs, v.
Paul H. O’NEILL, Secretary, U.S. Department of the Treasury Defendant.
Reginald G. Moore, et al. Plaintiffs, v.
Paul H. O’Neill, Secretary, U.S. Department of the Treasury Defendant.
Miguel A. Contreras, et al. Plaintiffs, v.
Paul H. O’Neill, Secretary, U.S. Department of the Treasury, Defendant.
No. CIV.A. 90–2841(RCL), CIV.A. 00–953(RWR), CIV.A. 02–923(RCL). | Sept. 3, 2002.
Actions were brought by African-American and Hispanic law enforcement agents against agencies of Department of Treasury, alleging race discrimination claims. Plaintiffs moved to consolidate. The District Court, Lamberth, J., held that: (1) claims against Bureau of Alcohol, Tobacco, and Firearms (ATF) were no longer pending on the merits; (2) action against ATF did not involve common issues of fact as action against Customs Service, as required to deem actions related; (3) asserted common issues of fact and law were insufficient to support agents’ joint motion to consolidate.
Motions denied.
Attorneys and Law Firms
*17 James William Morrison, Holland & Knight, L.L.P., Washington, DC, John D. Maddox, Jerome A. Hochberg, Michael J. Pollack, Arter & Hadden, L.L.P., Washington, DC, Richard T. Sampson, Semmes, Bowen & Semmes, Baltimore, MD, Karen Rapaport Esser, Pension Benefit Guar. Corp., Washington, DC, *18 Jerusa Carl Wilson, Jr., MCI Telecommunications Corp., Washington, DC, David James Shaffer, Ronald A. Schmidt, Shaffer, Rapaport & Schmidt, Washington, DC, for Larry D. Stewart, Mark Jones, Dondi O. Albritton, John C. Ross, William E. Newberry, Vanessa L. McLemore, Wendell B. Roberts, Joe E. Barnes, Jr., Kimberly R. Morton, Wendy L. Carter, Curtis Cooper, Charles Stephen Parris, Sim B. Moore, Jr., Kenneth V. Featherstone, Arthur L. Jones.

Sally M. Rider, U.S. Attorney’s Office, Civ. Div., Washington, DC, for Nicholas F. Brady.
Laurie J. Weinstein, U.S. Attorney’s Office, Washington, DC, for Paul O’Neill.
Mark D. Laponsky, Washington, DC, for Semmes, Bowen & Semmes.
Prather Randle, Memphis, TN, John Wesley Davis, Washington, DC, for Prather G. Randle.
Jose M. Herrerra, A.T.F. Hispanic Agents’ Ass’n, Miami, FL, for A.T.F. Hispanic Agents’ Ass’n.
Robert Ernest Sanders, Punta Gorda, FL, for National Ass’n of Treasury Agents (NATA).
Robert Ernest Sanders, Punta Gorda, FL, for Vincent C. Noble, Leonora Magaletta, Michael S. Russell, Richard Issa, Frank Napoli, James L. Jorgensen.
Opinion
MEMORANDUM OPINION AND ORDER
LAMBERTH, District Judge.
Now before the Court is plaintiffs’ Notice of Case Relation [filed as Docket Entry Number (“DE# ”) 2 in Contreras ], defendant’s Objection to Plaintiffs’ Notice of Related Cases [filed as DE# 554 in Stewart ], plaintiffs’ Response to Defendant’s Objection to Related Case Designation [filed as DE# 559 in Stewart ], plaintiffs’ Joint Motion to Consolidate [filed as DE# 556 in Stewart; filed as DE# 91 in Moore; filed as DE# 3 in Contreras ], defendant’s Opposition to Plaintiffs’ Motion to Consolidate [filed as DE# 562 in Stewart; filed as DE# 93 in Moore; filed as DE# 6 in Contreras ], and plaintiffs’ Reply to Defendant’s Opposition to Plaintiffs’ Motion to Consolidate [filed as DE# 566 in Stewart; filed as DE# 95 in Moore; filed as DE# 9 in Contreras ]. Upon consideration of the pleadings, relevant decisions of prior federal courts and record of this case, the Court hereby DENIES plaintiffs’ Joint Motions to Consolidate [filed as 556 in Stewart; filed as 91 in Moore; filed as 3 in Contreras ], finds that the Stewart v. O’Neill, Civil No. 90–2841(RCL), is UNRELATED to Contreras v. O’Neill, Civil No. 02–923(RCL), and orders that Contreras shall be RETURNED to the Calendar Committee for random reassignment.
1

Stewart v. O’Neill, 225 F.Supp.2d 16 (2002)
I. Background [1] These three cases all concern allegations of discrimination and retaliation against agents employed by law enforcement agencies administered by the Department of the Treasury. Stewart and Contreras are now before this judge, and Moore is before Judge Roberts of this Court. Plaintiffs have filed a Notice of Related–Case status as to Stewart and Contreras, and have also filed motions to consolidate Stewart, Moore, and Contreras; defendant objects to the Notice of Related–Case status, and opposes the motions to consolidate. Pursuant to Local Civil Rule 40.5(d), motions to consolidate cases assigned to different judges of the Court are heard and determined by the judge to whom the earliest-numbered case is assigned. The earliest-numbered case included in these motions to consolidate is Stewart, and so the motions to consolidate shall be decided by this judge.
*19 Stewart v. O’Neill was filed in 1990, alleging discrimination and retaliation against African–American agents by the Bureau of Alcohol, Tobacco, and Firearms (ATF). The parties ultimately settled the case, and this Court approved that settlement in 1996. See Stewart v. Rubin, 948 F.Supp. 1077 (D.D.C.1996). The settlement included many forms of relief, ranging from individual monetary relief to classwide equitable relief. Plaintiffs have now returned before the Court, moving for an Order for defendant to show cause why he should not be held in contempt for alleged failures to comply with the settlement agreement. Defendant opposes the motion, asserting that the fault for the alleged failures lies with plaintiffs and with the contractor hired to design and implement certain promotions systems that were required by the settlement. Although the terms of the settlement agreement decree that the Court’s jurisdiction over the bulk of plaintiffs’ claims has lapsed, defendant does concede that the Court has continuing jurisdiction over one small part of the settlement related to the design and implementation of a “promotions assessment system” and the production of reports by an expert statistician, assessing the impact of the personnel reforms on the class members of Stewart.
Moore v. O’Neill was filed in 2000, alleging discrimination and retaliation against African–American agents by the Secret Service. Moore is now before Judge Roberts; the Court notes that Moore was not filed as a case related to Stewart, and the plaintiffs do not now seek to have the Court designate Moore as a case related to Stewart or to Contreras. The parties in Moore have undertaken significant discovery and pretrial proceedings,

Judge Roberts has ruled on a motion for preliminary injunction, and there is a motion to dismiss and a motion for class certification now pending.
Contreras v. O’Neill was filed in 1992 as a case related to Stewart, and so it was assigned to this judge. Contreras alleges discrimination and retaliation against Hispanic agents by the U.S. Customs Service; no answer has been filed, and the only issues pending before the Court are the defendant’s objection to the plaintiffs’ Notice of Related–Case Status and the motion to consolidate.
II. Analysis
A. Plaintiffs’ Notice of Relation as to Stewart and Contreras [2] [3] Local Civil Rule 40.5 provides that
[civil] cases are deemed related when the earliest is still pending on the merits in the District Court and they (i) relate to common property, or (ii) involve common issues of fact, or (iii) grow out of the same event or transaction or (iv) involve the validity or infringement of the same patent.
Local Civ. R. 40.5(a)(3). Defendant first asserts that Stewart is no longer “pending on the merits,” and the notice of relation must therefore be rejected. Although there are few cases interpreting that clause of Rule 40.5(a)(3), the general rule is that a case which has settled is no longer pending on the merits. See Burt Lake Band of Ottawa v. Norton, 2001 WL 1701669 (D.D.C. June 15, 2001); Keepseagle v. Glickman, 194 F.R.D. 1, 2 (D.D.C.2000) (“Except in unusual circumstances, once a lawsuit is settled and a consent decree is entered, it is no longer ‘pending on the merits.’ ”). One unusual circumstance where a case might be considered “pending on the merits” after a settlement would be where the possibility remained that the parties would be required to litigate the merits of the case at some point. *20 Collins v. Pension Benefit Guaranty Corp., 126 F.R.D. 3 (D.D.C.1989).
[4] It is extremely unlikely that there will be any future litigation on the merits of the claims asserted in Stewart. The only issue where it is agreed that the Court has continuing jurisdiction is a small portion of the settlement agreement concerning the design and implementation of a “promotions assessment system” and concerning the product of statistical reports assessing the impact of the
2

Stewart v. O’Neill, 225 F.Supp.2d 16 (2002)

personnel reforms on the class members. Plaintiffs’ pending Motion for an Order to Show Cause in Stewart asserts that defendant is at fault for the failure of ATF to design and implement such a system, and also that ATF is at fault for the failure of the independent contractor to produce the statistical reports. As described above, defendant asserts that fault lies with plaintiffs and with the independent contractor hired to complete those tasks. The issues that may arise in this dispute are narrowly circumscribed and are far removed from the race discrimination and retaliation claims alleged in the original complaint. Therefore, Stewart may not be considered “pending on the merits,” and the Court finds that Stewart is not related to Contreras.1

1

A case may still be related to one that is no longer

pending on the merits. In order for those cases to be

related, however, plaintiff must show that the second

case involves the same parties and relates to the same

subject matter. See Local Civ. R. 40.5(a)(4). That

provision is clearly not met in this case.

[5] Furthermore, even if the Court were to consider Stewart as “pending on the merits,” plaintiffs have not shown that these cases “involve common issues of fact” or “grow out of the same events or transactions.” The Stewart plaintiffs alleged discrimination against African–American agents at ATF. Contreras alleges discrimination against Hispanic agents at the U.S. Customs Service. Plaintiffs assert that both ATF and the Customs Service are bureaus of the Department of Treasury, that both are supervised by the Treasury Department’s Undersecretary for Enforcement, that both are governed by the management policies issued by “Main Treasury,” that plaintiffs in both cases have been “cross-trained” for positions in different Treasury agencies, and that all plaintiffs allege the same types of discriminatory and retaliatory practices, procedures, and policies. These attenuated and superficial similarities are insufficient. The Department of the Treasury is a massive government bureaucracy, housing hundreds of divisions, bureaus, offices, departments, and agencies. Plaintiffs fail to allege that any of the actual supervisors in these case are the same-the most that they are able to proffer is that both ATF and Customs are “governed and supervised by the Treasury Department’s Undersecretary for Enforcement.” Neither is plaintiff able to show that the discrimination even occurred in the same geographical area-except insofar as the plaintiff finds a nexus between the two cases because the headquarters for the Department of the Treasury are in Washington, D.C. Clearly, there is very little linking these two cases other than the tenuous relationship through the Department of the Treasury, and the Court therefore finds that Stewart v.

O’Neill, Civil No. 90–2841(RCL), is UNRELATED to Contreras v. O’Neill, Civil No. 02–923(RCL). Contreras shall therefore be returned to the Calendar Committee for random reassignment.
B. Plaintiffs’ Motion to Consolidate Plaintiffs move for all three cases captioned above to be consolidated pursuant to Federal Rule of Civil Procedure 42(a) *21 and Local Rule 40.5(d) for the purposes of pretrial and discovery proceedings. Defendant opposes the motions to consolidate. As noted above, pursuant to Local Civil Rule 40.5(d), motions to consolidate cases assigned to different judges of the Court are heard and determined by the judge to whom the earliest-numbered case is assigned. The earliest-numbered case included in these motions to consolidate is Stewart, and so the motions to consolidate shall be decided by this judge.
[6] [7] The decision whether to consolidate cases under Rule 42(a) is within the broad discretion of the trial court. See, e.g., Biochem Pharma, Inc. v. Emory Univ., 148 F.Supp.2d 11, 13 (D.D.C.2001). Rule 42(a) provides that “[w]hen actions involving a common question of law or fact are pending before the court, it may ... order all the actions consolidated.” Fed.R.Civ.P. 42(a). Plaintiffs assert that these cases involve common issues of fact, common issues of law, and that consolidation would promote both judicial efficiency and the public interest. As described above, Stewart alleges discrimination against African–American agents in ATF, Contreras alleges discrimination against Hispanic agents in the U.S. Customs Service, and Moore alleges discrimination against African–American agents in the Secret Service. The “common issues” of fact and law in these cases are insufficient to support a motion to consolidate.
First, the agency at issue in each case is different. ATF is responsible for enforcing and administering firearms, explosives, alcohol, and tobacco laws. The Secret Service is responsible for the protection of officials within the Executive Branch and their families, as well as foreign heads of state and their spouses when visiting the United States. The U.S. Customs Service is the primary enforcement agency charged with protecting and enforcing border security. Although all three may be loosely connected because they fall under the bureaucratic umbrella of the Department of the Treasury, such a tenuous affiliation is insufficient to consolidate cases involving three agencies with disparate purposes, agents, and institutional structures.
Second, the cases are in vastly different procedural postures. In Stewart, a class settlement was reached and
3

Stewart v. O’Neill, 225 F.Supp.2d 16 (2002)
approved by the Court in 1996; the parties are now before the Court disputing the implementation of the settlement. In Moore, it appears that substantial discovery has already taken place, Judge Roberts has ruled on a motion for a preliminary injunction and various discovery disputes, and there are currently pending motions to dismiss and for class certification. Contreras, the most recently filed case, is in a third posture-no answer has yet been filed, and the only issues currently pending before the Court are the Notice of Related–Case Status and the Motion to Consolidate. Clearly, the three cases are in very different stages of litigation, and judicial efficiency would not be served by their consolidation.
Third, the allegations of discrimination are different. Stewart alleges discrimination against African–Americans

agents at ATF, Moore alleges discrimination against African–American agents in the Secret Service, and Contreras alleges discrimination against Hispanic agents in the Customs Service. Although all three fall within the vast bureaucratic network of the Department of the Treasury, each agency has its own personnel structure, institutional mission, and personnel policies.
Accordingly, plaintiffs’ Motions to Consolidate are hereby DENIED.
SO ORDERED.

4

 
 Moore v. Chertoff, 424 F.Supp.2d 145 (2006)

424 F.Supp.2d 145 United States District Court,
District of Columbia.
Reginald MOORE et al., Plaintiffs, v.
Michael CHERTOFF, Defendant.
No. CIV.A. 00-953RWRDAR. | March 30, 2006.
Synopsis Background: Ten black current and former special agents of the United States Secret Service filed employment discrimination action, individually and on behalf of putative class of black special agents, against Treasury Secretary, alleging that Secret Service had engaged in pattern and practice of racial discrimination. Agents moved for clarification of order disposing of pending motions that were subject of mandamus petition which was dismissed as moot, 2004 WL 2418321, to amend complaint to add previously dismissed and new claims and supplemental facts, and for hearing.
Holdings: The District Court, Roberts, J., held that:
[1] Secretary was not equitably estopped to argue that new or refiled claims should be barred as untimely, absent evidence of any affirmative misconduct by Secret Service;
[2] agents’ nonpromotion class claims could be deemed vicariously exhausted by now properly exhausted nonpromotion class claim;
[3] with regard to motion to amend, pre-1999 class claims were untimely but class allegations that could be deemed vicariously exhausted could be pled; and
[4] agents could not add Department of Treasury as defendant.
Motions granted in part and denied in part.
Attorneys and Law Firms
*147 Jennifer I. Klar, John Peter Relman, Relman & Associates, PLLC, Deborah L. Boardman, E. Desmond Hogan, Sarah M. Berger, Hogan & Hartson, L.L.P.,

Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, U.S., Attorneys Office, Benton Gregory Peterson, Assistant United States Attorney, Washington, DC, for Defendant.
Opinion

MEMORANDUM OPINION AND ORDER

ROBERTS, District Judge.

Plaintiffs, ten black current and former special agents of the United States Secret Service, filed this employment discrimination action individually and on behalf of a putative class of black special agents against the Treasury Secretary alleging that the Secret Service has engaged in a pattern and practice of racial discrimination against black agents dating back to 1974. In a Memorandum Opinion and Order issued on October 24, 2004 (“the October 24 Opinion”), defendant’s motion to dismiss the complaint was denied with respect to the individual non-promotion claims of several agents and granted with respect to all other claims, both individual claims and class claims. On November 5, 2004, plaintiffs filed a motion for clarification of the October 24 Opinion, seeking guidance on whether they were entitled to refile all of the dismissed claims after administratively exhausting them. Plaintiffs also have filed a motion to amend their complaint in order to add previously dismissed and new claims and supplemental facts. They assert that the defendant is equitably estopped from opposing as untimely any new or refiled claims. Defendant opposes the motions, arguing futility and prejudice with respect to all claims except the non-promotion class claim.

Defendant has not been equitably estopped from asserting

the untimeliness of new or dismissed claims. After having

taken discovery, plaintiffs have not demonstrated any

affirmative misconduct by the defendant relied upon by

the plaintiffs that prevented or discouraged plaintiffs from

timely filing their pre-1999 claims with the Secret

Service. Because the doctrine of vicarious exhaustion

with respect to a timely class claim of non-promotion is

broad enough to encompass forms of discrimination that

affect the building blocks of promotion, plaintiffs’ class

claims regarding discriminatory performance evaluations;

discriminatory transfers, assignments, and other

career-enhancing

opportunities;

discriminatory

assignment to undercover work; discriminatory hiring

practices; discriminatory testing; discriminatory

disciplinary policies and practices; and discriminatory

1

Moore v. Chertoff, 424 F.Supp.2d 145 (2006)
awards and bonuses can be deemed vicariously exhausted by their now properly exhausted non-promotion class claim. Therefore, plaintiffs’ motion to amend the complaint will be granted in part and denied in part. Plaintiffs’ pre-1999 class claims may not be pled as they are untimely, but plaintiffs’ class allegations that *148 can be deemed vicariously exhausted may be pled. The Department of Treasury will not be added as a defendant. Plaintiffs are directed to refile an amended complaint in accord with this Memorandum Opinion and Order no later than May 1, 2006.
BACKGROUND
I. FACTUAL BACKGROUND Plaintiffs allege enduring and systematic discrimination dating back to 1974 by the Secret Service against black agents, recounting a history of non-selections, desultory recruitment efforts, exclusion from choice assignments, and general harassment. (See Compl. ¶¶ 12, 21-25, 34.) In addition, plaintiffs maintain that the Service engaged in a two-decade long game of cat and mouse, consistently promising to address the concerns of black agents when confronted with their concerns, but never doing so. With regard to the Service’s many unfulfilled promises, plaintiffs allege the following.
In 1974, black agents sent Director H.S. Knight a memorandum outlining numerous concerns about the treatment of black agents in the Service. (Id. ¶¶ 6-9.) Plaintiffs do not allege they received any responses to this communication from Knight or any other representative of the Service. In 1977, the agents sent a letter to Knight in which they outlined largely the same concerns and recounted two instances of white agents using racial slurs in the presence of black agents. (Id. ¶¶ 10-13.) Knight responded by sending a letter to all Service employees urging them to refrain from using racial slurs and charging supervisors with dealing with racist comments promptly and firmly. (Id. ¶ 14.)
In 1987, representatives of black agents met with Assistant Director of the Office of Investigations Kevin Houlihan and Acting Assistant Director of Protective Operations George Opfer and reiterated the concerns of racial discrimination they spelled out in their 1977 letter. (Id. ¶¶ 15-21.) Houlihan responded by letter to Special Agent Donald Tucker, one of the representatives of the black agents. In the letter, Houlihan agreed to address and intensify efforts at recruiting and hiring, recognized the need for “consultations with minority agents” and agreed

to meet on a regular basis, agreed to raise the issue of assignments to the Special Agent in Charge, mentioned that the Service was reconsidering its agent career tracking, and assured the agents that each SAC had a mandate to deal with his personnel fairly. (Id. ¶¶ 22-24.) Houlihan did not offer any concrete proposals. (Id. ¶ 25.) Later that year, Tucker received a low performance evaluation that he felt was retaliation for his earlier efforts to raise issues of racial discrimination with Houlihan and Opfer. Tucker then wrote to Houlihan that he intended to file a complaint against the Service, and responded to Houlihan’s letter summarizing it as “basically stat[ing] that [Houlihan] will back the supervisor-right or wrong-against the employee.” (Id. ¶ 26-27.)

In 1989, representatives of the black agents sent a

memorandum to Director John Simpson detailing the

same concerns as in previous correspondences. (Id. ¶ 28.)

Plaintiffs do not allege any responses to this

communication from Simpson or any other representative

of the Service. In 1992, John Magaw became the director

of the Service and the black agents sent a “statement to

[him] outlining concerns about recruitment and hiring,

promotions,

assignments,

training

and

discrimination/disparate treatment.” (Id. ¶ 35.) Plaintiffs

do not allege they received any responses to this

communication from Magaw *149 or any another

representative of the Service.

In their proposed amended complaint, plaintiffs offer two additional communications between management of the Service and the black agents in support of their claim of equitable estoppel. In the early 1990s, plaintiffs allege that Magaw attended the National Organization of Black Law Enforcement convention, appeared receptive to minority concerns, and promised Special Agent Alonzo Webb that he would investigate the treatment of black agents. (Am.Compl.¶ 63.) Then, in 1998, Deputy Director Bowen met with Webb and expressed concern about the number of minorities enrolled in Special Agent Training Classes. Bowen stated that “something has to be done” and indicated that he intended to address the problem. (Id. ¶ 64.)

II. PROCEDURAL HISTORY The defendants moved to dismiss plaintiffs’ complaint. The October 24 Opinion denied defendant’s motion to dismiss with respect to the individual non-promotion claims of several agents and granted the motion with respect to all other claims. (October 24 Opinion at 2-3.) On November 5, 2004, plaintiffs filed a motion for clarification, seeking guidance on whether they were entitled to amend their complaint here to reallege “all1
2

Moore v. Chertoff, 424 F.Supp.2d 145 (2006)

claims alleged in [their] initial complaint [filed] in [this] court” after refiling with the EEOC and exhausting the claims dismissed on October 24, 2004. (Pls.’ Mot. For Clarif’n at 1, 5.) After refiling and exhausting their class

claims with the EEOC in accordance with Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336 (D.C.Cir.1999), plaintiffs moved to amend their complaint in order to reallege all of the previously dismissed class claims, add facts supporting existing claims, add claims of discrimination occurring after May 2000, and add the

Department of Treasury as a defendant. (Pls.’ Mot. to Amend at 1; Pls.’ Reply at 14-17.) Plaintiffs argue that the

October 24 Opinion held that defendant was equitably estopped from arguing that new or refiled claims should be barred as untimely, and that plaintiffs may re-raise all of the dismissed claims and any claims that were not

included in the original complaint upon exhaustion of administrative remedies. (Pls.’ Reply at 4.)

1

Defendant argues that the individual claims that were

dismissed on October 24, 2004 were dismissed with

prejudice as they had never been first filed and

administratively exhausted with the Secret Service.

Plaintiffs confirmed at the February 22, 2006 hearing

that they refiled with the EEOC and exhausted the

dismissed class claims, but not the dismissed individual

claims (see Pls.’ Reply in Supp. of Pls.’ Mot. to Amend

(“Pls.’ Reply”) at 2), and that they do not seek to revive

those dismissed individual claims here. The issue

concerning the dismissed individual claims, then, is

moot.

Defendant opposes the motions, disputing that any finding of equitable estoppel was made, and arguing futility and prejudice. Specifically, defendant contends that (I) the addition of the previously dismissed class claims, except the non-promotion class claim, would be futile because they were previously dismissed with prejudice by the court, (ii) the addition of claims predating the filing of the complaint would be futile because no contact was made with an EEO counselor within 45 days of each alleged incident, (iii) the addition of claims postdating the original complaint would be futile because no contact was made with an EEO counselor within 45 days of each alleged incident, (iv) the Department of Treasury is not a proper defendant, and finally (v) the government would be prejudiced by the late addition of pre-lawsuit claims and the class claim filed two months after plaintiff indicated to the court that it *150 would file the claim. (Def.’s Opp’n to Pls.’ Mot. to Amend at 7-23; Def.’s Surreply in Supp. of Opp’n to Pls.’ Mot. to Amend at 15-17.) Defendant does not dispute that the non-promotion class claim of Agent John Turner is properly before the court.

Plaintiffs’ November 2004 motion to clarify the October 24 Opinion will be granted principally to address issues raised regarding the proposed amended complaint.
DISCUSSION
I. EQUITABLE ESTOPPEL AND TOLLING [1] [2] [3] “[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Equitable tolling allows a plaintiff to bring a claim outside of the prescribed time period “if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim.” Currier v. Radio Free Europe, 159 F.3d 1363, 1367 (D.C.Cir.1998). Equitable estoppel “prevents a defendant from asserting untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in time.” Id. Courts, including the D.C. Circuit, have emphasized that the defendant must engage in affirmative misconduct in order for equitable estoppel to apply. See id. at 1368 (stating that an employer promising an employee a “fair and impartial investigation,” advising an employee to “hang tight,” and assuring an aggrieved employee that “it’s not over yet” would be insufficient to give rise to equitable estoppel); Thomas v. Eastman Kodak, Inc., 183 F.3d 38, 53 (1st Cir.1999) (noting that in the 1st Circuit no equitable tolling is available absent affirmative misconduct by an employer); Navarro v. United States, 104 F.Supp.2d 96, 104 (D.P.R.2000) (stating that employer must actively mislead the plaintiff who must rely on the misconduct to his detriment).
[4] Plaintiffs here argue that the statute of limitations should be tolled from January 1, 1974 until the date the complaint was filed in this court because the “Secret Service repeatedly assured plaintiffs that it would take action” to correct discriminatory practices, but failed to do so. (Compl. ¶ 40.) Plaintiffs do not contend that they were unaware of the existence of their claims. On the contrary, plaintiffs advance the argument that they were aware of their claims but refrained from bringing them in light of promises made to them by the Service. (Id.) Therefore, plaintiffs advance an argument of only equitable estoppel and not equitable tolling.
Although plaintiffs have now had the benefit of discovery, they have not come forth with sufficient facts
3

Moore v. Chertoff, 424 F.Supp.2d 145 (2006)

to support the inference that affirmative misconduct by the defendant should stop him from asserting untimeliness of plaintiffs’ claims. Equitable estoppel will apply only where an employer has engaged in affirmative

misconduct. Currier, 159 F.3d at 1367. Plaintiffs, however, identify no assurances or promises made or any affirmative conduct by the Service that might have misled plaintiffs in response to plaintiffs’ 1974 memorandum to Knight, 1989 memorandum to Simpson, or the 1992 statement to Magaw. With regard to the 1977 letter to

Knight, plaintiffs allege only that Knight responded with a letter to all employees addressing the use of racial slurs.

While this response might have been woefully inadequate to address the concerns of the black agents, it did not amount to active *151 misconduct misleading the plaintiffs. The Houlihan letter to Donald Tucker in 1987

might have offered a plausible claim of affirmative misconduct by the defendant, but plaintiffs did not rely upon these statements in refraining from filing a claim. Tucker responded to Houlihan’s letter by indicating that he planned to file a complaint against the Service for racial discrimination. (Compl.¶ 26.) Moreover, Tucker

summarized Houlihan’s letter as no promise at all to black agents because Houlihan essentially promised to back the supervisors whether they were right or wrong.2 (Id.) The promise by Magaw to Webb in the early 1990s and the 1998 meeting between Webb and Bowen are also insufficient for plaintiffs’ equitable argument to prevail.

Plaintiffs allege no reliance by Webb or any other agents based on Magaw’s or Bowen’s comments, and Webb has alleged no claims of discrimination in this case.

2

In addition, Tucker was named as a victim in a 1989

class complaint against the Service for racial

discrimination. (Def.’s Mot. to Dismiss, Ex. Al at 8, ¶

28.)

Plaintiffs do not allege any affirmative misconduct by the defendant that plaintiffs relied upon that prevented or discouraged plaintiffs from bringing their claims. Therefore, their equitable estoppel argument must fail.3

3

Plaintiffs’ argument that the October 24 Opinion

forever estopped defendant from arguing untimeliness

is incorrect. The Opinion simply recognized that

judging the complaint on its face before any discovery

had been undertaken, its allegations about defendant’s

assurances-while “fairly thin support” for an equitable

estoppel argument-precluded any conclusion that no set

of facts could be proven to support such an argument

for purposes of a motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6). (October 24 Opinion at

27-28.) In any event, the estoppel discussion in the

Opinion regarding whether certain individual claims

should be dismissed was dictum coming as it did after

the Opinion had already held that those individual

claims should be dismissed. The dictum discounting defendant’s attack on plaintiffs’ estoppel argument at the pleading stage in connection with those individual claims was unnecessary to the decision already made to dismiss them.
II. VICARIOUS EXHAUSTION [5] [6] [7] Under the doctrine of vicarious exhaustion, a Title VII plaintiff who has failed to file an EEO charge may, under some circumstances, join his claim with that of another plaintiff who has filed properly an EEO charge. See Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981). A plaintiff may invoke the doctrine of vicarious exhaustion only if one plaintiff actually has exhausted his claims and if the exhausted claims are so similar to the unexhausted claims that “it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges ....” Id. A timely non-promotion class claim will vicariously exhaust claims that involve discrimination in the building blocks of promotion. Contreras v. Ridge, 305 F.Supp.2d 126 (D.D.C.2004) (holding that “any EEOC investigation of [a] denial of promotions claim would necessarily involve investigation into the building blocks of promotion[,]” and so the claims concerning such discrimination could be vicariously exhausted by the non-promotion class claim).
[8] Here, there is no dispute that Turner has administratively exhausted his EEOC non-promotion class complaint. Consequently, plaintiffs’ class claims relating to discriminatory performance evaluations; discriminatory transfers, assignments, and other career enhancing opportunities; discriminatory assignment to undercover work; discriminatory hiring practices; discriminatory testing; discriminatory disciplinary policies and *152 practices; and discriminatory awards and bonuses can be deemed vicariously exhausted by Agent Turner’s class complaint. The October 24 Opinion is not to the contrary. The Opinion explained that based on Reginald Moore’s individual complaint, the other individual claims alleging other forms of discrimination-discrimination in hiring, performance evaluations, and testing, hostile work environment, retaliation, and discriminatory assignment claims-were “not the kinds of claims that the Secret Service could have reasonably anticipated while investigating Reginald Moore’s 1999 complaint.” (October 24 Opinion at 25-26.) The opinion reasoned that the various forms of discrimination alleged by plaintiffs had only the “generic thread of racial discrimination tying them together.” (Id. at 25.) The facts of Reginald Moore’s non-promotion claim did not implicate the building blocks of promotion
4

Moore v. Chertoff, 424 F.Supp.2d 145 (2006)
because his claim asserted non-promotion in spite of a high performance evaluation. An investigation of his complaint would not necessarily have involved examining the building blocks of promotion. However, now, as in Contreras, plaintiffs’ class complaint of non-promotion implicates the building blocks of promotion.

III. MOTION TO AMEND THE COMPLAINT [9] In light of this discussion of the October 24 Opinion, plaintiffs’ motion to amend the complaint will be granted in part and denied in part. Plaintiffs’ pre-1999 claims will be disallowed for failure to timely file them with the Secret Service, and because plaintiffs failed to present sufficient facts to support their equitable estoppel argument. Plaintiffs’ non-promotion class allegation and the class claim concerning discrimination in the building blocks of promotion will be allowed.4

4

Defendant’s argument that the amendment would

prejudice him and that plaintiffs’ delayed filing their

motion to amend lacks merit.

[10] Plaintiffs also seek to add the Department of Treasury as a defendant. Plaintiffs argue that because the Homeland Security Act was not meant to affect pending civil litigation and because they would be prejudiced by having to serve third-party subpoenas on Treasury because of the burden of complying with its Touhy regulations, see 31 C.F.R. § 1.11, they should be allowed to add the Treasury Secretary as a named defendant. (Pls.’ Reply at 14-17.) These arguments are unpersuasive. The proper defendant in a Title VII suit against a federal agency is the head of the department. 42 U.S.C. § 2000e-16(c). Substituting the Secretary of the Department of Homeland Security for the Secretary of the Treasury did not run afoul of the Homeland Security Act because this civil litigation has not been impeded by the substitution. The Treasury Department will not be added as a defendant.
Finally, plaintiffs will be directed to refile an amended complaint in conformity with this Opinion no later than May 1, 2006.

CONCLUSION AND ORDER

Plaintiffs’ motion to clarify the October 24 opinion will

be granted. Plaintiffs’ pre-1999 class claims are untimely.

Plaintiffs have not produced facts demonstrating

affirmative misconduct by the defendant relied upon by

the plaintiffs that prevented or discouraged plaintiffs from

bringing their pre-1999 claims timely. The doctrine of

vicarious exhaustion with respect to a timely class claim

of non-promotion is broad enough to encompass forms of

discrimination that affect the *153 building blocks of

promotion. Therefore, plaintiffs’ remaining class claims

regarding discriminatory performance evaluations;

discriminatory transfers, assignments, and other

career-enhancing

opportunities;

discriminatory

assignment to undercover work; discriminatory hiring

practices; discriminatory testing; discriminatory

disciplinary policies and practices; and discriminatory

awards and bonuses can be deemed vicariously exhausted

by their now properly exhausted non-promotion class

claim. Accordingly, it is hereby

ORDERED that plaintiffs’ motion [132] to clarify the October 24 Opinion be, and hereby is, GRANTED, and the clarification sought is provided above. It is further

ORDERED that plaintiffs’ motion [155] to amend the complaint be, and hereby is, GRANTED in part and DENIED in part. Plaintiffs’ pre-1999 class claims are untimely and may not be pled. Plaintiffs’ class allegations concerning the building blocks of promotion are deemed vicariously exhausted by Agent Turner’s non-promotion class claim and may be pled. Plaintiff shall refile an amended complaint in conformity with this opinion no later than May 1, 2006. It is further

ORDERED that plaintiffs’ motion [257] for a hearing be, and hereby is, DENIED as moot. It is further

ORDERED that plaintiffs’ February 3, 2006 motion [288] for clarification be treated as a discovery dispute, and hereby is REFERRED to the magistrate judge.5

5

What claims remain in this case and what the proper

scope of discovery is concerning those claims are two

separate issues.

5

 
 Moore v. Chertoff

2006 WL 1442447 United States District Court,
District of Columbia.
Reginald MOORE et al., Plaintiffs, v.
Michael CHERTOFF, Defendant.
Civil Action No. 00-953 (RWR)(DAR). | May 22, 2006.
Attorneys and Law Firms
Jennifer I. Klar, John Peter Relman, Relman & Associates, PLLC, Deborah L. Boardman, E. Desmond Hogan, Sarah M. Berger, Hogan & Hartson, L.L.P., Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Benton Gregory Peterson, Assistant United States Attorney, Civil Division, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
*1 Plaintiffs sued the United States Secret Service in part for emotional distress allegedly caused by racial discrimination in employment. The magistrate judge denied the defendant’s motion to compel production of plaintiffs’ medical records, finding no basis to compel since plaintiffs do not intend to offer at trial testimony of any health care providers to prove the distress. The defendant has moved for reconsideration of the magistrate judge’s ruling. Because the magistrate judge’s ruling was contrary to the weight of authority, defendant’s motion for reconsideration will be granted.
BACKGROUND
Plaintiffs are current and former special agents of the United States Secret Service who filed this employment discrimination action alleging that the Secret Service has engaged in a pattern and practice of racial discrimination

against black agents. Plaintiffs seek to recover damages based on “emotional distress [which] has been manifested in a variety of ways including, but not limited to, psychological trauma and physical symptoms to be proven at trial.” (Am. Compl. ¶ 17; see also Compl. ¶ 42; Proposed Am. Compl. ¶ 205 March 31, 2005.) Defendant propounded interrogatories requesting that plaintiffs turn over certain medical records.

13. For each plaintiff, identify each

doctor and other health care provider,

including without limitation any

psychiatrists,

psychologists,

physicians, nurses, therapists,

counselors, hospitals, and other health

care facilities, who have provided the

plaintiff with physical or mental care,

treatment, counseling, or consultation

during the past ten years.

(Def.’s Mot. to Compel Complete Resps. to Discovery Requests, Ex. 1, Def.’s Second Set of Discovery Requests at 8.) Defendant also requested that plaintiffs “[s]ign and provide fully executed release and consent forms for each and every health care provider plaintiffs identified in the answers to interrogatories.” (Id., Ex. 1, Def.’s Second Set of Discovery Requests at 10.) Plaintiffs objected to this discovery request and refused to provide the requested information. (Id., Ex. 3, Plaintiffs’ Resps. to Def.’s Interrogatories at 45-46.)
Defendant filed a motion to compel plaintiffs to provide the requested medical records, arguing the records were “plainly relevant” and that defendant was entitled to explore “whether there were any pre-existing conditions, whether there have been other stress factors in their lives, and whether the evidence otherwise supports or contradicts Plaintiffs’ damage allegations.” (Id. at 4-5.) Plaintiffs opposed the motion, arguing that in circumstances where plaintiffs will not offer expert testimony to prove up their claims of emotional distress, a defendant is not entitled to plaintiffs’ medical records. (See Pls.’ Opp’n to Def .’s Mot. to Compel at 5-6.) The magistrate judge, relying on Sanders v. District of Columbia, Civil Action No. 97-2938(PLF), 2002 WL 648965 (D.D.C. Apr. 15, 2002), ruled that because “plaintiffs do not intend to offer the testimony of any health care provider at trial[,]” defendant has “no basis upon which to seek discovery of the plaintiffs’ medical records.” (Pls.’ Opp’n to Def .’s Mot. to Compel, Ex. A, Mot. Hr’g Tr. at 53, Dec. 12, 2005.)

1

Moore v. Chertoff

*2 Defendant seeks reconsideration of the magistrate judge’s ruling pursuant to Local Civil Rule 72.2(b), and plaintiffs oppose the motion, adding as an additional justification for refusing to turn over the medical records

that no plaintiffs sought any medical treatment for their alleged injuries.1

1

Plaintiffs requested leave from the magistrate judge to

file a motion advancing this argument. It is unclear

from the parties’ submissions whether the magistrate

judge granted plaintiffs leave to file the motion or

considered this argument.

DISCUSSION
“A party may invoke Federal Rule 72(a) and Local Rule 72.2 to seek reconsideration of a magistrate judge’s determination in a discovery dispute” in the district court. Neuder v. Battelle Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 292 (D.D.C.2000). The district court “shall consider such objections and shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see also LCvR 72.2(c) (“[A] judge may modify or set aside any portion of a magistrate judge’s order under this rule found to be clearly erroneous or contrary to law.”).
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense....” Fed.R.Civ.P. 26(b)(1). Discovery rules “are to be accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). “When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery either does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1) or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470-71 (N.D.Tex.2005) (quoting Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. 583, 585 (D.Kan.1999)).
Where a plaintiff alleges emotional distress, a defendant is entitled to explore whether causes unrelated to the alleged wrong contributed to plaintiff’s claimed emotional distress, and a defendant may propound discovery of any relevant medical records of plaintiff in an effort to do so. See, e.g., Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.2000) (“[H]er claims [of extreme emotional distress] against [defendant] placed her medical condition at issue,

making the [medical records] sought by [defendant] relevant, and absent a showing of bad faith, discoverable.”); Merrill, 227 F.R.D. at 473 (“[S]everal courts have found that medical records are relevant to claims of mental anguish in discrimination cases.”); Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 659 (D.Kan.2004) (“Generally, discovery requests seeking an employment discrimination plaintiff’s medical and psychological records are held to be relevant as to both causation and the extent of plaintiff’s alleged injuries and damages if plaintiff claims damages for emotional pain, suffering, and mental anguish.”); Jensen v. Astrazeneca LP, No. Civ. 02-4844, 2004 WL 2066837, at *4 (D.Minn. Aug. 30, 2004) (“[S]ome of plaintiff’s medical records may be relevant and discoverable to the extent that they may shed light on other contributing causes of plaintiff’s claims of emotional distress.”); Walker v. Northwest Airlines Corp., No. Civ. 00-2604, 2002 WL 32539635, at *3 (D.Minn. Oct. 28, 2002) (“[Plaintiff’s] medical records may be ... relevant if they shed light on other contributing causes of Plaintiff’s emotional distress claims.”); Fox v. Gates Corp., 179 F.R.D. 303, 306-07 (D.Colo.1998) (holding that the defendant was entitled to discovery of any medical and psychotherapy records during the time of plaintiff’s claimed emotional distress); Sidor v. Reno, No. 95 Civ. 9588, 1998 WL 164823, at *2 (S.D.N.Y. Apr. 7, 1998) (“Defense counsel has a right to inquire into plaintiffs’ pasts for the purpose of showing that their emotional distress was caused at least in part by events and circumstances that were not job related.”); EEOC v. Danka Indus., Inc., 990 F.Supp. 1138, 1141-42 (E.D.Mo.1997) (“[T]he Court finds that the medical records are discoverable to determine whether the plaintiff-intervenors’ past medical history contributed to their claimed emotional distress .”). This is so, notwithstanding the fact that a plaintiff might not offer any expert testimony in order to prove up claims of emotional distress. See Garrett v. Sprint PCS, No. 00-2583-KHV, 2002 WL 181364, at *2 (D.Kan. Jan. 31, 2002) (“The fact that Plaintiff is not planning to present any expert testimony in support of her emotional distress claim does not make this information any less relevant.”); Walker, 2002 WL 32539635, at *3 (“[R]egardless of whether Plaintiff intends to introduce his medical records or offer medical testimony to prove his alleged emotional distress, [Defendant] is entitled to determine whether Plaintiff’s relevant medical history indicates that his alleged emotional distress was caused in part by events and circumstances independent of [Defendant’s] allegedly adverse employment action.”); Sidor, 1998 WL 164823, at *2.
*3 Here, plaintiffs allege emotional distress manifested in psychological trauma and physical symptoms. The defendant, then, may properly seek discovery of
2

Moore v. Chertoff

plaintiffs’ relevant medical records. Relying on Sanders, plaintiffs argue that because they will not offer expert testimony at trial, their medical records are irrelevant. That assertion is a non sequitur. In Sanders, plaintiffs

alleged emotional distress, and defendants sought discovery of plaintiffs’ medical records “relating to ‘past or present physical condition and treatment.’ “ Sanders, 2002 WL 648965, at *5. The magistrate judge in Sanders held, and the district court agreed, that medical records requested by the defendant were not discoverable “given

counsel’s statement that plaintiffs ‘will not offer the testimony of any health care professional and will not

offer any expert testimony on their mental, emotional or physical condition.” Id. However, Sanders contains no discussion of the defendant seeking, as the defendant does here, the medical records to explore whether factors other

than the alleged employment discrimination caused plaintiff’s alleged injuries. It is not clear, then, that Sanders stands for the proposition that a defendant may not obtain through discovery a plaintiff’s medical records for the purpose of identifying potential alternative causes of claimed emotional distress solely because plaintiff will not offer expert testimony.2 Review of plaintiffs’ medical records could lead to the discovery of facts not related to employment discrimination that contributed to plaintiffs’ alleged injuries. Whether plaintiffs intend to prove their damages claims with expert testimony has no bearing on the relevance of plaintiffs’ medical records, or their

ability to establish potential alternative causes for plaintiffs’ symptoms.3 Plaintiffs may not withhold from the defendant as irrelevant medical records that could be probative of potential causes contributing to plaintiffs’ alleged injuries. Because the magistrate judge’s ruling was contrary to the weight of authority, defendant’s motion for reconsideration will be granted.4

2

To the extent that Sanders does stand for that

proposition, I part company with its holding.

3

Plaintiffs also cite Burrell v. Crown Cent. Petroleum,

177 F.R.D. 376, 384 (E.D.Tex.1997). However, that

case dealt with mandatory disclosures under Rule

26(a)(1)(B), not “discovery regarding any matter, not privileged, that is relevant” under Rule 26(b)(1). See Merrill, 227 F.R.D. at 473 (holding Burrell inapplicable to a discovery request for medical records under Rule 26(b)(1)).

4

Plaintiffs, citing Broderick v. Shad, 117 F.R.D. 306,

309 (D.D.C.1987), argue in a footnote that an

additional reason they should not have to turn over their

medical records is that no plaintiffs sought any medical

treatment for their alleged injuries. (Pls.’ Opp’n to

Def.’s Mot. for Reconsideration at 6 n. 6.) Broderick

held that a plaintiff’s medical records were irrelevant

where the plaintiff offered a sworn statement that she

had not sought or received medical treatment for the

injuries alleged and that no relevant medical records

existed. 117 F.R.D. at 309. However, that case has no

force here since plaintiffs have not asserted that no

medical records relevant to potential alternative causes

exist.

CONCLUSION AND ORDER
Having claimed emotional distress, plaintiffs may not shield discovery of their medical records by vowing to forego at trial testimony of medical providers or experts. Accordingly, it is hereby
ORDERED that defendant’s motion [267] for reconsideration be, and hereby is, GRANTED. The magistrate judge’s Order of December 12, 2005 denying defendant’s motion [197] to compel is set aside, and defendant’s motion to compel is remanded for further proceedings consistent with this Memorandum Opinion.

3

 
 Moore v. Chertoff

2006 WL 2338203 Only the Westlaw citation is currently available.
United States District Court, District of Columbia.
Reginald MOORE et al., Plaintiffs, v.
Michael CHERTOFF, Defendant.
Civil Action No. 00-953 (RWR)(DAR). | Aug. 10, 2006.
Attorneys and Law Firms
Jennifer I. Klar, John Peter Relman, Relman & Associates, PLLC, Deborah L. Boardman, E. Desmond Hogan, Sarah M. Berger, Hogan & Hartson, L.L.P., Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Benton Gregory Peterson, Assistant United States Attorney, Civil Division, Washington, DC, for Defendant.
Opinion
MEMORANDUM ORDER
RICHARD W. ROBERTS, District Judge.
*1 Plaintiffs sued the United States Secret Service alleging a pattern and practice of racial discrimination in employment. They sought to depose Sheryl Michaelson, an attorney with a law firm that the Treasury Department had previously retained to conduct an independent review of its hiring, training, diversity and other areas in the aftermath of an event sponsored by Treasury agents called the “Good Ol’ Boys Round-up.” Michaelson directed the review. The Department of the Treasury moved to quash the subpoena, arguing that Michaelson’s deposition could be sought pursuant to only 31 C.F.R. § 1.11 (“Touhy regulations”), which requires that certain procedures, including seeking permission from agency counsel, be followed in order to obtain testimony of an employee or contractor of the Department of the Treasury. The magistrate judge denied the motion to quash finding that it had not been shown that the Touhy regulations applied

to Michaelson. Plaintiffs subsequently took Michaelson’s deposition, during which the defendant inquired into Michaelson’s employment status with the Department of the Treasury during her time as director of the policy review. Based on Michaelson’s deposition testimony, the defendant moved for the magistrate judge to reconsider her finding that the Touhy regulations did not apply to Michaelson, and filed a motion in limine to prevent plaintiffs from using Michaelson’s testimony for any purpose. (See Def.’s Mot. [192] for Reconsideration and Mot. [194] in Limine.) The magistrate judge denied the motion to reconsider as moot and denied the motion in limine because the defendant provided no authority for precluding use of Michaelson’s testimony even if the Touhy regulations should have been, but were not, complied with. (See Magistrate Judge Order [264] of Dec. 12, 2004.) The defendant now seeks reconsideration of the magistrate judge’s order denying his motion for reconsideration and motion in limine.

Defendant’s motion will be denied. The magistrate judge’s decision to deny as moot defendant’s motion for reconsideration of the ruling finding that the Touhy regulations did not apply to Michaelson was not clearly erroneous. See LCvR 72.2(c). Any determination of

whether the Touhy regulations applied to Michaelson for the purpose of determining the proper procedures to follow for taking her deposition became moot when plaintiffs took Michaelson’s deposition. In addition, the magistrate judge’s denial of defendant’s motion in limine was not contrary to law. See id. The defendant provided to

the magistrate judge, and provides now, no authority to support excluding use of an agency employee’s testimony taken in violation of an agency’s Touhy regulations.1 Moreover, the defendant does not assert that any testimony given by Michaelson was irrelevant to this case or unfairly prejudicial to the defendant. Cf. Fed.R.Evid.

402 & 403. Accordingly, it is hereby

1

Nor does the defendant argue or demonstrate that

agency counsel would have prevented Michaelson from

testifying or in any way limited her deposition

testimony.

*2 ORDERED that defendant’s motion [269] for reconsideration be, and hereby is, DENIED.

1

Moore v. Chertoff 2

 
 Moore v. Chertoff

2007 WL 1378465 Only the Westlaw citation is currently available. United States District Court, District of Columbia.
Reginald MOORE et al., Plaintiffs, v.
Michael CHERTOFF, Defendant.
Civil Action No. 00-953 (RWR)(DAR). | May 8, 2007.
Attorneys and Law Firms
Jennifer I. Klar, John Peter Relman, Relman & Associates, PLLC, Deborah L. Boardman, E. Desmond Hogan, Sarah M. Berger, Hogan & Hartson, L.L.P., Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, Michelle Nicole Johnson, U.S. Attorney’s Office for the District of Columbia, Benton Gregory Peterson, Assistant United States Attorney, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, United States District Judge.
*1 Plaintiffs, ten African-American current and former special agents of the United States Secret Service, brought this employment discrimination action individually and on behalf of a putative class of African-American special agents. The defendant has moved for reconsideration of Magistrate Judge Robinson’s order directing the defendant to respond to an interrogatory in its entirety by January 19, 2007. Because the magistrate judge’s decision was not clearly erroneous, his motion for reconsideration will be denied.
BACKGROUND
Plaintiffs filed an amended complaint alleging discrimination in the Secret Service’s selection and promotion process and then propounded related interrogatories. (Pls.’ Opp’n to Def.’s Mot. for Recons. of the Mag. J.’s Oral Ruling on Pls.’ Mot. to Compel

Reasons for Non-Selection (“Pls.’ Opp’n”) at 2.) Interrogatory No. 4(c) requested information and documents pertaining to the reasons for non-selection of plaintiffs and the reasons for selection of selectees.1 (See Pls.’ Opp’n, Ex. B at 7-8.) Defendant objected to the interrogatory “as overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.” (Pls.’ Opp’n, Ex. C at 19.) Plaintiffs filed a motion to compel. The magistrate judge found that “the information which is sought by the Plaintiffs [through Interrogatory No. 4(c) ] encompasses what the Court believes is the crux of a Title 7 claim of non-selection; that is, the reasons for the non-selection.” (Pls.’ Opp’n, Ex. A at 3.) Noting that the grounds for defendant’s objection were that the interrogatory was overbroad, unduly burdensome and irrelevant, the magistrate judge found that there was no legal issue in dispute and resolved the dispute within her “relatively broad discretion.” (Id. at 4.) Considering the fast-approaching discovery deadline, the magistrate judge refused to accept the defendant’s contention that it would take at least six months to produce the requested information in Interrogatory No. 4(c), and found that “the mere representation that a task that the Defendant has resisted although knowing that there were claims as to which this information would be required ... is not a claim that the Court can credit in this context.” (Id. at 41.) The magistrate judge granted the plaintiffs’ motion to compel and ordered the defendant to respond by January 19, 2007.

1

Interrogatory No. 4(c) provides:

For each competitive promotion to the GS-14 level

for which Plaintiffs Moore, Turner, Summerour,

Tyler, Ivery, Harris, Hendrix, and Rooks applied

until the time of their first promotion to GS-14, if

any, or resignation without promotion and for each

competitive promotion to the GS-15 level for

which Plaintiff Harris applied until his first

promotion to GS-15:

...

(c) State in detail each and every reason why the

Plaintiff was not chosen and the selectee was

chosen, identifying any alleged qualification, job

performance, conduct, or other reason which

explains each Plaintiff’s non-selection and the

selectee’s selection and each fact known to

Defendant that supports the alleged basis for the

non-selection of the Plaintiff and selection of the

selectee. Identify any documents reflecting same.

(Pls.’ Opp’n, Ex. B at 7-8.)

The defendant now seeks reconsideration of the magistrate judge’s order regarding Interrogatory 4(c) to the extent that it requires production regarding
1

Moore v. Chertoff
non-promotion selection decisions where (1) no plaintiffs made the Best Qualified List and thus were not considered for promotion, and (2) a plaintiff was selected for one but not another position during the same bidding cycle and no other plaintiff bid on those positions. The defendant argues that the magistrate judge erred in not finding the information sought to be overly broad, unduly burdensome, and irrelevant, and in requiring the defendant to produce the discovery sought by January 19, 2007.
DISCUSSION
*2 A party may request reconsideration of a magistrate judge’s determination in a discovery dispute. Fed.R.Civ.P. 72(a); LCvR 72.2(b); Pulliam v. Continental Cas. Co., Civil Action No. 02-370(RWR), 2006 WL 2850655, at *2 (D.D.C. Oct. 4, 2006). “On review, the magistrate judge’s decision is entitled to great deference unless it is clearly erroneous or contrary to law, that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed.” Pulliam, 2006 WL 2850655, at *2 (citing Virtual Def. & Dev. Int’l, Inc. v. Rep. of Mold., 133 F.Supp.2d 9, 20 (D.D.C.2001)) (quotations omitted); see LCvR 72.2(c) (“Upon a motion for reconsideration or sua sponte, a judge may modify or set aside any portion of a magistrate judge’s order ... found to be clearly erroneous or contrary to law.”); Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289, 292 (D.D.C.2000).
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party....” Fed.R.Civ.P. 26(b)(1). “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.; see United States ex rel. Fargo v. M & T Mortgage Corp., 235 F.R.D. 11, 21 (D.D.C.2006) (“Rule 26(b)(1) entitles parties to broad discovery, permitting discovery that is reasonably calculated to lead to the discovery of admissible evidence.” (quotations omitted)); Peskoff v. Faber, Civil Action No. 04-526(HHK)(JMF), 2006 WL 1933483, at *2 (D.D.C. July 11, 2006) (finding that a party’s discovery request was not overly broad where it was relevant, meaning that it was reasonably calculated to lead to the discovery of evidence relating to plaintiff’s claim). “For the purposes of discovery, relevancy is broadly construed and encompasses any material that bears on, or that reasonably leads to other matters that could bear on, any issue that is or may be in the case.” Alexander v. F.B.I., 194 F.R.D. 316, 325 (D.D.C.2000). Moreover, “[a]s Title

VII cases are particularly hard to prove ..., discovery in these cases is necessarily broad.” Mitchell v. Nat’l R.R. Passenger Corp., 208 F.R.D. 455, 459 (D.D.C.2002).
Although discovery rules “are to be accorded a broad and liberal treatment,” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947), discovery should be limited by the court if “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Fed.R.Civ.P. 26(b)(2)(C)(iii). “An undue burden is identified by looking at factors such as relevance, the need for the documents, the breadth of the document request, the time period covered by such request, the particularity with which the documents are described, and the burden imposed.” Wyoming v. USDA, 208 F.R.D. 449, 452-53 (D.D.C.2002) (citing Flatow v. Islamic Rep. of Iran, 196 F.R.D. 203, 206-07 (D.D.C.2000).
*3 Defendant contends that plaintiffs’ request to obtain information on reasons for non-selection has “no useful purpose,” because the selectee cannot be compared to a plaintiff because no plaintiff’s name was provided for selection. (See Def.’s Mem. in Supp. of Def.’s Mot. for Recons. of Mag. J. Robinson’s Oral Ruling on Pls.’ Mot. to Compel Reasons for Non-Selection (“Def.’s Mot. for Recons.”) at 8-9.) Explaining the burden of this request, defendant claims that “in cases where no plaintiff could even be considered for promotion, plaintiffs’ Interrogatory No. 4(c) would require defendant to identify the selectee’s qualifications, job performance, conduct or other reasons as to why the selectee was chosen.” (Id. at 8.) Defendant further claims that “[a] similar problem arises” with plaintiffs’ request to obtain information on reasons for certain selectee’s selection over plaintiffs during a particular bidding cycle. (Id. at 9.) Defendant argues that “[t]he reasons why a plaintiff was selected for X location as opposed to Y location, or why a particular selectee was chosen for Y location, is irrelevant to [plaintiffs’] claims.” (Id.) With respect to both categories of selection decisions, defendant claims that it would be “time-consuming work” to provide plaintiffs with information that “cannot serve any useful purpose in this litigation.” (Id. at 10.)
Defendant raises here the same arguments as those made before the magistrate judge before she found it apparent that the information sought was relevant to the crux of a Title 7 claim of non-selection, namely, the reasons for the non-selection. The defendant cites to no authority, however, to show that her finding was erroneous.
2

Moore v. Chertoff

Plaintiffs allege discrimination at every stage of the promotion process. They argue that a plaintiff’s absence

from the best qualified list during a particular bidding cycle cannot limit the data sought since the amended

complaint alleges that the process by which individuals were placed on that list was discriminatory. As plaintiffs note, the defendant cannot rely upon the fruits of a discriminatory scoring system that creates the best

qualified list to shield him from producing information that may be relevant to the reasons for non-selections.

Likewise, plaintiffs contend that the reasons why they were chosen for certain positions over others during a bidding cycle were discriminatory.2 The requested discovery regarding the reasons for non-selection of a

plaintiff where no plaintiff made the best qualified list and where a plaintiff was selected for one position and not another during a bidding cycle is important to the resolution of plaintiffs’ claims of discrimination throughout the selection process and is reasonably related to them. Similarly, the reasons as to why selectees were

chosen provides useful bases for comparisons to plaintiffs’ qualifications, job performance or conduct and

bases for possibly isolating neutral or discriminatory reasons prompting selection decisions. Given the great amount of discretion afforded the magistrate judge in making discovery decisions, see, e. g., Gluck v. Ansett

Austl. Ltd., 204 F.R.D. 217, 221 (D.D.C.2001), Chavous v. D.C. Fin. Resp. & Mgmt. Assist. Auth., 201 F.R.D. 1, 2 (D.D.C.2001), her decision to require defendant to respond in full to Interrogatory No. 4(c) was not clearly erroneous.

2

Defendant erroneously argues that plaintiffs do not

complain about non-selections at specific geographical

locations, and complain simply about the delays in

grade-level promotions. (Def.’s Mot. for Recons. at 9.)

To the contrary, plaintiffs do complain about racial

discrimination affecting geographical placements. (See

Second Am. Supp. Class Compt. ¶ 24.)

*4 Defendant also argues that the Secret Service was unable to produce the discovery sought by the January 19, 2007 deadline the magistrate judge imposed. Referring to production as a “mammoth task” (Def. Mot. for Recons. at 10), the defendant claims that responding to Interrogatory No. 4(c) would “be an overwhelming drain on the Secret Service’s resources,” requiring approximately six months to complete. (Id. at 14.) As is explained above, the requested information is of prime importance and its relevance to plaintiffs’ discrimination claim for the time period alleged is clear. The particularity of the information sought is not disputed. While the defendant claims that the agency will be burdened by this request, the defendant certainly does not claim or

demonstrate so great a burden as to substantially disrupt the agency’s mission. His showing fails to establish that the potential burden outweighs the likely benefit to the litigation, especially given the magistrate judge’s finding that this information constituted the crux of a Title 7 claim of non-selection.
Moreover, although the defendant claimed that it would be impossible to respond to plaintiffs’ discovery request by the January 19, 2007 deadline, the magistrate judge refused to credit the defendant’s six-month estimate to perform a task he resisted while knowing of claims that would require it. The defendant learned that plaintiffs’ non-selection class allegations would be allowed nearly nine months prior to the magistrate judge’s order compelling discovery. See Moore v. Chertoff, 424 F.Supp.2d 145 (D.D.C.2006). Plaintiffs filed their amended complaint, with specific allegations of non-selection discrimination, over six months before the magistrate judge’s decision. On June 15, 2006, the plaintiffs propounded Interrogatory 4(c), among others. The magistrate judge’s refusal was not unsupported. In any event, since the defendant began to gather information to respond to the interrogatory nearly five months ago now (Def.’s Mot. for Recons. at 13), the objection to the January deadline is by now virtually moot, and the defendant will be given the same one-month period by which to comply as the magistrate judge provided.
The defendant has failed to demonstrate how the magistrate judge’s decision was clearly erroneous, and her decision will be upheld.
CONCLUSION AND ORDER
Because Magistrate Judge Robinson’s order requiring the defendant to respond to plaintiffs’ Interrogatory No. 4(c) was not clearly erroneous, the defendant’s motion for reconsideration will be denied. Accordingly, it is hereby
ORDERED that the defendant’s motion [392] for reconsideration be, and hereby is, DENIED. The defendant shall comply with the magistrate judge’s order within 30 days. It is further
ORDERED that the defendant’s emergency motion [393] to stay discovery pending the resolution of the motion for reconsideration be, and hereby is, DENIED as moot.
3

Moore v. Chertoff 4

 
 Moore v. Chertoff, 577 F.Supp.2d 165 (2008)

577 F.Supp.2d 165 United States District Court,
District of Columbia.
Reginald MOORE, et al., Plaintiffs, v.
Michael CHERTOFF, Defendant.
Civil Action No. 00-953 (RWR)(DAR). | Sept. 12, 2008.
Synopsis Background: Current and former African-American special agents of the United States Secret Service brought putative class action against Secretary of Homeland Security alleging employment discrimination. Plaintiffs moved to compel reasonable search for responsive paper documents. The District Court, Deborah Robinson, United States Magistrate Judge, granted motion, and Secretary filed objection.
[Holding:] The District Court, Richard W. Roberts, J., held that Magistrate Judge did not impermissibly compel production of documents that were not within Secretary’s possession, custody or control.
Objection overruled.
Opinion

BACKGROUND

In October 2007, plaintiffs filed a motion to compel defendant to produce responsive paper documents and for sanctions (“motion to compel”). On December 21, 2007, Magistrate Judge Robinson granted plaintiffs’ motion to compel from the bench and awarded costs, including attorneys’ fees, related to the motion to compel.1

1

A minute order documenting her oral ruling was

entered on December 26, 2007.

Defendant now objects to the magistrate judge’s ruling, urging that the order is “clearly erroneous and contrary to law to the extent that it requires defendant to produce documents [from former Secret Service employees] that are not within his possession, custody, or control.” (See Def.’s Mem. in Support of Def.’s Mot. for Recons. of the Magistrate Judge’s Order of Dec. 26, 2007 (“Def.’s Obj’n”) at 3.)2 Plaintiffs oppose, insisting that the magistrate judge’s order did not require the defendant to produce such documents.

2

Although defendant filed a motion for reconsideration,

his pleading will be treated as an objection to the

magistrate judge’s order. See In re Papst Licensing

GMBH & Co. KG Litig., 550 F.Supp.2d 17, 21

(D.D.C.2008) (“[E]ven though [defendant] titled its

motion as ‘objections to and motion to reconsider,’ the

Court treats the pleading as objections to the Magistrate

Judge’s order and not as a motion to reconsider”)

(citing comment to LCvR 72.2).

*166 MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Plaintiffs, current and former African-American special agents of the United States Secret Service, brought this employment discrimination action individually and on behalf of a putative class of African-American special agents. The defendant objects to Magistrate Judge Deborah Robinson’s order granting plaintiffs’ motion to compel defendant to conduct a reasonable search for responsive paper documents. Because the magistrate judge’s decision was not clearly erroneous, the defendant’s objection will be overruled.

DISCUSSION
[1] [2] “A party may object to a magistrate judge’s determination in a discovery dispute.” *167 Graham v. Mukasey, 247 F.R.D. 205, 207 (D.D.C.2008) (citing Fed.R.Civ.P. 72(a); LCvR 72.2). “On review, the magistrate judge’s decision is entitled to great deference unless it is clearly erroneous or contrary to law, that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed.” Moore v. Chertoff, Civil Action No. 00-953(RWR), 2007 WL 1378465, at *2 (D.D.C. May 8, 2007) (internal quotations and citations omitted); see also Graham, 247 F.R.D. at 207; LCvR 72.2(c) (“Upon consideration of objections filed ..., a district judge may modify or set
1

Moore v. Chertoff, 577 F.Supp.2d 165 (2008)
aside any portion of a magistrate judge’s order under this Rule found to be clearly erroneous or contrary to law.”).
[3] In his objection to the magistrate judge’s order, the defendant urges that the order is “clearly erroneous and contrary to law to the extent that it requires defendant to produce documents [from former Secret Service employees] that are not within his possession, custody or control.” (See Def.’s Obj’n at 3.) In support of his contention, the defendant highlights that under the Federal Rules of Civil Procedure, a party may not require another party to produce documents that are not within his possession, custody, or control. See Fed.R.Civ.P. 34(a). His point, however, is irrelevant here, as the transcript of the December 21, 2007 hearing reflects no discussion by either the parties or the magistrate judge of the defendant being asked to, let alone required to, produce from former employees documents not in his possession. Instead, references to former employees at that hearing were made in the context of the defendant contacting those employees in order to determine where their files may be located in the Secret Service offices. (See, e.g., Dec. 21, 2007 Tr. at 66 (Magistrate Judge Robinson: “I don’t think that retired Secret Service agents know where every document that they laid their hands on and they looked at is filed in the Secret Service and the Secret Service has an obligation to go look for those.”) (emphasis added); see also id. at 7, 72.)
Similarly, nowhere in plaintiffs’ underlying motion to compel or their reply in support of their motion to compel did the plaintiffs request that the defendant produce from former employees documents not in his possession. For instance, defendant relies on the following comment made by plaintiffs in their motion to compel to support his assertion that plaintiffs improperly requested such documents:
[M]any, if not most, of the decision-makers during the class period are no longer employees. Thus, querying current employees would capture only a small fraction of even the “personal” files retained by the decision-makers. This motion [to compel] followed.
(Def.’s Reply in Support of Def.’s Obj’n at 2 (quoting Pls.’ Mot. to Compel at 11-12).) A logical reading of plaintiffs’ comment would be that plaintiffs expected the defendant to query former employees in order to be able to capture a more complete set of the relevant files in the Secret Service’s possession retained by decision-makers, not that plaintiffs expected defendant to turn over files in

the actual possession of those former employees.
Likewise, defendant’s reliance on the following portion of plaintiffs’ reply brief in support of their motion to compel is unavailing:
Defendant also proposes to contact former Special Agents involved in the decision-making process and ask if they recall whether they possess any responsive documents. While that might yield some responsive documents, it will by no means yield the universe of documents to which plaintiffs are entitled.... Defendant’s failure to timely produce this information, and the continued withholding of similar information from hundreds *168 of other decision-makers, severely prejudices plaintiff.
(Def.’s Reply at 3 (quoting Pls.’ Reply in Support of their Mot. to Compel at 9, 12).) What defendant omitted from his quotation, as is reflected in the underlined text that follows, is most telling:
“... it will by no means yield the universe of documents to which Plaintiffs are entitled, as Defendant cannot reasonably expect that former Agents will recall what, much less where, all responsive documents exist[ ]. In any event, this proposal certainly does not alleviate Defendant from his obligation to search for responsive documents (be it from former or current Agents) in his possession.”
(Pls.’ Mot. to Compel at 9) (emphasis added). It is clear that plaintiffs, responding to the defendant’s proposal to attempt to retrieve documents in the possession of the former employees, were emphasizing that regardless of what the defendant’s proposal entailed, he had an obligation to search for former employees’ responsive documents that are “in his possession”-and that his failure to meet this obligation prompted, in large part, plaintiffs’ motion to compel.
Finally, the defendant argues that an exchange between himself and the magistrate judge on January 10, 2008 confirms that she was of the opinion that defendant was obligated to produce from former employees documents
2

Moore v. Chertoff, 577 F.Supp.2d 165 (2008)
not in his possession. The exchange proceeded as follows:
Court: What is your representation regarding the status of the Defendant’s compliance with the order of the Court entered on December 21st[?]
Def.: Defendant had contacted all the current employees previously and had represented that to Plaintiffs in [a] letter.... With regard to employees that we’ve contacted or that we’ve reached out to but have not responded back to us, former employees, there are former employees that we have not heard back from, but we are in a continual effort to get them to respond. Of course, as the Court knows, we don’t have direct control over these people....
Court: Am I to conclude from your summary that the defendant has not fully complied with the December 21st, 2007 order?
Def.: No, your honor.... We don’t have control over former employees, so we don’t have any documents to turn over that we’re retaining.... So we’ve complied with the Court’s order as fully we can[.]
(Jan. 10, 2007 Tr. at 8-11.)
Contrary to the defendant’s assertion, this exchange does not suggest that the magistrate judge believed, or conveyed to defendant, that compliance with her order meant that the defendant had to retrieve documents in the possession of the former employees. The core question was whether the defendant had complied with the order by contacting and receiving responses from those employees, and conducting a search of responsive paper

documents-within his possession, custody, or control-based on those employees’ responses.

As plaintiffs note, the defendant has essentially objected to a “phantom magistrate ruling.” (Pls.’ Opp’n to Def.’s Obj’n at 4.) Magistrate Judge Robinson’s order simply did not require the defendant to produce from former employees documents outside of his possession, custody, or control.3

3

In turn, defendant’s argument that the magistrate

judge’s “order is also clearly erroneous and contrary to

law to the extent that it awards plaintiffs for bringing

this unnecessary motion [to compel][,]” (Def.’s Obj’n

at 3), also fails.

*169 CONCLUSION AND ORDER
Because Magistrate Judge Robinson’s order granting plaintiffs’ motion to compel and awarding costs to plaintiffs related to the motion to compel was not clearly erroneous or contrary to law, the defendant’s objection will be overruled. Accordingly, it is hereby
ORDERED that defendant’s motion [520] for reconsideration, treated as an objection to the magistrate judge’s December 26, 2007 Order, be, and hereby is, OVERRULED.

3

 
 Moore v. Chertoff, 255 F.R.D. 10 (2008)

255 F.R.D. 10 United States District Court,
District of Columbia.
Reginald G. MOORE, et al., Plaintiffs, v.
Michael CHERTOFF, Secretary, U.S. Department of Homeland Security, Defendant.
Civil Action No. 00-0953 RWR/DAR. | Dec. 17, 2008.
Synopsis Background: African-American current and former special agents of United States Secret Service brought employment discrimination action individually and on behalf of putative class against Secretary of United States Department of Homeland Security (DHS) alleging, inter alia, that Secret Service had engaged in pattern and practice of discrimination against African-American special agents in its promotion process for competitive positions at grades GS-14 and GS-15, and at SES level. From time discovery commenced, court entered nine orders compelling Secretary to provide discovery, order denying motion for protective order filed by Secretary, and three orders imposing sanctions upon Secretary for failure to make disclosure or cooperate in discovery. Agents moved to sanction Secretary of Department of Homeland Security by not allowing him to defend their individual and class prima facie case of discriminatory nonpromotion.
Holdings: The District Court, Deborah A. Robinson, United States Magistrate Judge, held that:
[1] agents were prejudiced by Secretary’s failure to comply with his obligation under federal civil rule governing requests for production of documents and court’s order compelling discovery;
[2] judicial system was also prejudiced;
[3] there was need to deter similar misconduct in future; and
[4] lesser sanction than preclusion would not be more appropriate.
Motion granted.

Attorneys and Law Firms
*12 Jennifer I. Klar, John Peter Relman, Relman & Associates, PLLC, Melissa N. Henke, E. Desmond Hogan, Jennifer Wigman Feinberg, Hogan & Hartson LLP, Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, Edith Margeurita Shine, Harry B. Roback, Michelle Nicole Johnson, Benton Gregory Peterson, Assistant United States Attorney, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION
DEBORAH A. ROBINSON, United States Magistrate Judge.
Plaintiffs, ten African-American current and former special agents of the United States Secret Service, brought this employment discrimination action individually and on behalf of a putative class of African-American special agents. Plaintiffs allege, among other things, that the Secret Service has engaged in a pattern and practice of discrimination against African-American Special Agents in its promotion process for competitive positions at grades GS-14 and GS-15, and at the SES level. Plaintiffs allege discrimination in every step of the promotion process, from the discriminatory assignment of Merit Promotion Plan (“MPP”) scores to the discriminatory selection of Special Agents for specific promotions. Second Amended and Supplemental Class Complaint (“Second Amended Complaint”) (Document No. 362) ¶ 1.
The recalcitrance of Defendant in the conduct of discovery almost immediately became, and to this date remains, the most prominent feature of the record in this action. See, e.g., Joint Exhibit Regarding Orders Compelling Production from Defendant or for Sanctions (“Joint Ex. 3”) (Document No. 565-3) at 2-5. Indeed, Defendant acknowledges that since discovery commenced in this action on December 3, 2004, the undersigned has entered (1) nine orders compelling Defendant to provide discovery; (2) an order denying a motion for protective order filed by Defendant; and (3) three orders imposing sanctions upon Defendant pursuant to Rule 37 of the Federal Rules of Civil Procedure. Id.; see also id. at 5-7 (summarizing Plaintiffs’ contention that the number of
1

Moore v. Chertoff, 255 F.R.D. 10 (2008)
rulings adverse to Defendant is higher than Defendant acknowledges). Plaintiffs’ pending Motion for Sanctions (“Plaintiffs’ Motion”) (Document No. 488, Part 2), which is the subject of the instant Memorandum Opinion, arises from the grant of Plaintiffs’ ninth motion to compel. See December 21, 2007 Docket Entry (granting said motion); *13 September 12, 2008 Memorandum Opinion and Order (Document No. 587) (denying Defendant’s motion for reconsideration of the order granting the motion to compel).
Upon consideration of the motion for sanctions; the memoranda in support thereof and in opposition thereto; the evidence adduced at the evidentiary hearing on the motion; the closing arguments of counsel; the parties’ proposed findings of facts and conclusions of law and the entire record herein, Plaintiffs’ Motion for Sanctions will be GRANTED.
BACKGROUND On October 29, 2007, Plaintiffs filed a motion to compel the Defendant to comply with his Federal Rules of Civil Procedure obligation to conduct a reasonable search for paper documents responsive to Plaintiffs’ requests for production of documents regarding their claims of discriminatory non-promotion. Plaintiffs’ Motion to Compel Defendant to Comply With His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and For Sanctions (Document No. 488, Part 1) at 1.1 In it, Plaintiffs submitted that on August 22, 2007, Defendant’s 30(b)(6) designee testified that the Secret Service “had not searched the records of any decision-maker for documents related to discovery requests regarding Plaintiffs’ claims of discriminatory non-promotion.” Id. at 7-9 (“For example, notwithstanding their integral involvement in the recommendations and selections for promotions, no search was conducted for the records of any current or former Director, Deputy Director, Assistant Director, Deputy Assistant Director or Special Agent in Charge.”); see also id., Ex. 22 (Transcript of 30(b)(6) Deposition of Tracy Lawson) at 85-87, 95 (testimony affirming that Defendant did not search the records of Special Agents-in-Charge (SAICs) outside of the District of Columbia for documents relating to Plaintiffs’ discriminatory promotion claims, or the records of SAICs, Deputy Assistant Directors (DADs), Assistant Directors (ADs), the Deputy Director, or the Director who are based in Washington, D.C.). Plaintiffs sought an order directing the Defendant to conduct a reasonable search for and to produce all documents responsive to their requests for production, including “print and save” e-mails, “contemporaneous notes,” and other documents

“regarding the actual substantive promotion[ ] decisions made by the Secret Service supervisors and managers that adversely affected the Plaintiffs and the [putative] class.” Id. at 1-2, 15-18. Additionally, Plaintiffs “request[ed] that Defendant’s egregious behavior be sanctioned.” Id. at 2.

1

Plaintiffs sought responses to Class Plaintiffs’ First Set

of Requests for Production of Documents, served on

May 23, 2006, and Class Plaintiffs’ Second Set of

Requests for Production of Documents, served on June

15, 2006, which related to Defendant’s reasons for

non-selection of Plaintiffs. See generally Plaintiffs’

Motion to Compel at 3-5; see also December 21, 2007

Transcript of Motions Hearing on Document No. 488,

Part 1 (Document No. 526) at 50 (counsel for

Defendant agreed that the discovery requests which

were the subject of the motion to compel were served

as early as May, 2006).

Defendant opposed Plaintiffs’ motion on the grounds that “(1) defendant has already agreed to produce all the documents at issue in this matter and is in the process of producing these documents; (2) plaintiffs did not complete their obligation to consult with defendant prior to filing their motion; (4) [sic] plaintiffs’ discovery requests were not ... reasonably calculated to seek this information ...; and (5)[sic] plaintiffs’ motion to compel is untimely.” Defendant’s Opposition to Plaintiffs’ Motion to Compel Defendant to Search Again for Potentially Responsive Documents and for Sanctions (“Defendant’s Opposition”) (Document No. 498) at 1-2. Defendant did not dispute the testimony of Ms. Lawson during her 30(b)(6) deposition; rather, he represented that he performed a “search for the paper documents created by the defendant’s personnel and used by agency managers involved in the bid-selection process and produced these [sic] results[.]” Id. at 13. Defendant further maintained that Plaintiffs’ motion should be “dismissed” [sic] as moot, given Defendant’s “offers” to conduct searches for responsive paper documents, and his “tremendous effort to locate and produce these responsive paper documents.” See id. at 8-10, 19. In support of *14 his contention that he was making an effort to locate responsive paper documents, Defendant offered the declaration of Arthur Kuhn, Inspector, United States Secret Service (see id., Ex. 15), and represented that the declaration detailed Defendant’s search efforts in November, 2007.
In their reply, Plaintiffs contended that Defendant withheld “highly probative and relevant contemporaneous records evidencing the actual decision-making process for the promotions at issue in the case.” Reply in Support of Plaintiffs’ Motion to Compel Defendant to Comply With His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and For
2

Moore v. Chertoff, 255 F.R.D. 10 (2008)

Sanctions (“Plaintiffs’ Reply”) (Document No. 505) at 2-3. Plaintiffs further maintained that (1) Defendant made “boilerplate objections” in response to Plaintiffs’ first and second sets of requests for production which were “insufficient under the Federal Rules of Civil Procedure,” and did not “alleviate him of his obligation to search for and produce responsive information from the files and records of Secret Service supervisors and mangers” (id. at 4); and (2) Defendant’s “production of Personnel Division records regarding the rote administration of the promotions process” did not excuse him from “searching for and producing responsive documents in the files of decision-makers regarding their actual substantive promotions decisions” given that “Defendant has not demonstrated that the documents are duplicative.” Id. at 7. Plaintiffs rejected Defendant’s contention that Defendant’s “belated proposed search[ ]” rendered their motion to compel moot. Id. at 8. Plaintiffs maintained that Defendant’s proposed search would include production of “official personnel files, employee files and other administrative documents[,]” which would not “contain contemporaneous evidence of the decision-making process.” Id. at 9. Additionally, Plaintiffs submitted that such an effort would not be “calculated to locate all responsive documents to which Plaintiffs are entitled.” Id.

On December 21, 2007, following an oral argument which extended over two hours, the undersigned granted Plaintiffs’ motion to compel, and ordered Defendant to produce the documents which were the subject of the motion by no later than January 7, 2008. The undersigned also ordered Defendant to pay Plaintiffs’ costs, including reasonable attorneys’ fees, of moving to compel such discovery.2 See December 21, 2007 Minute Entry. The undersigned reserved for future consideration Plaintiffs’ motion for sanctions (Document No. 488, Part 2), and advised the parties that the award of costs and fees was “not the sole sanction that the Court intend[ed] to consider” and that a further hearing would be scheduled “with respect to the appropriate sanction.” December 21, 2007 Tr. (Document No. 526) at 80.

2

Defendant moved for reconsideration of the

undersigned’s order (Document No. 520). The court

(Roberts, J.) found that the undersigned’s order “was

not clearly erroneous or contrary to law,” and therefore

overruled Defendant’s objection to the order. See

September 12, 2008 Memorandum Opinion and Order

(Document No. 587) at 7.

THE PARTIES’ CONTENTIONS (1) The parties’ written submissions

Plaintiffs move the court to sanction Defendant “by not allowing him to defend Plaintiffs’ individual and class prima facie case of discriminatory non-promotion.”3 Plaintiffs’ Motion at 20. Plaintiffs contend that Defendant’s “dilatory tactics” during the course of discovery, including the Defendant’s “woeful failure to timely satisfy his discovery obligations in regard to both paper and electronic documents[,]” has prejudiced both the Plaintiffs and the court. Id. at 21-22. Plaintiffs further contend that Defendant’s failure to search the records of decision-makers for responsive documents effectively puts Plaintiffs “back at square one with respect to discovery[,]” and that no lesser sanction will cure the prejudice to Plaintiffs and the court *15 caused by Defendant’s misconduct, or deter such misconduct in the future. Id.

3

“Plaintiffs believe that the ultimate sanction of default

judgment against Defendant would be justified and

appropriate” (id. at 20); however, Plaintiffs, by the

pending motion, do not request such sanction. See also

id. at 21 (“While Plaintiffs ask for a lesser sanction than

default judgment, the justifications offered by the D.C.

Circuit for the ultimate sanction each apply in this

instance, and thus clearly support the lesser sanction

that Plaintiffs request.”).

More specifically, Plaintiffs assert that (1) they have exhausted “thousands of hours of attorney time and hundreds of thousands of dollars in out-of-pocket expenses[ ]” during the course of discovery, which included “conduct[ing] depositions without the discovery which they requested and to which they are entitled[ ]”; (2) additional discovery with respect to the decision-makers may be required “after receipt of documents located by Defendant in a reasonable search[ ]” for responsive paper documents; (3) during the course of discovery, the court “has expended countless hours” of time and resources to adjudicate discovery motions which led to orders for Defendant to “ ‘do what the Federal Rules of Civil Procedure already require in no uncertain terms, and that is to search for the responsive documents and produce them[ ]’ ”; (4) Defendant’s repeated failure to “search for the files of decision-makers ... as ... required by the Federal Rules of Civil Procedure, is disrespectful to the rights of Plaintiffs, ... this court, the orderly administration of litigation, and the pursuit of justice[ ]”; and (5) to “[s]imply order[ ] Defendant to conduct the reasonable search that should have occurred within 30 days of service of Plaintiffs’ discovery requests[,]” or “to do what was already required[ ] [under the Federal Rules of Civil Procedure][,]” would not remedy the prejudice to Plaintiffs. See generally Plaintiffs’ Motion at 19-24.
3

Moore v. Chertoff, 255 F.R.D. 10 (2008)

Finally, Plaintiffs assert that no lesser sanction than the one they request is sufficient to ensure that Plaintiffs are not prejudiced in their ability to prove their case and that the integrity of the court is preserved. Plaintiffs’ Motion at 26. Plaintiffs submit that “[t]he Court has the authority both under its inherent powers and under the Federal Rules of Civil Procedure to sanction Defendant for his misconduct in discovery.” Id. at 21 (citations omitted).

Defendant contends-albeit erroneously-that the Plaintiffs seek the ultimate sanction of default judgment, and that “there is simply no evidence of misconduct ... that would justify any sort of sanction[.]” See Defendant’s Opposition to Plaintiffs’ Motion for Sanctions (“Defendant’s Opposition”) (Document No. 498) at 27, 29.4 Defendant maintains that “the documents wich [sic] [Plaintiffs] now claim to seek do not relate in any way to the statistical center piece [sic] of proof which is required in a pattern and practice case.” Id. at 28-29.

4

Elsewhere, Defendant maintains that the sanction

Plaintiffs request is akin to a default judgment because

“[i]f defendant cannot present evidence to ‘defend’

against plaintiffs’ prima facie [sic] individual and class

claims (by offering a nondiscriminatory rationale for

the individual cases and statistical and other evidence to

rebut the class claims), the [court] order would likely

operate effectively as the functional equivalent of a

default judgment, regardless of what it is called.” Id. at

27 (citation omitted).

In support of his opposition, Defendant generally contends that (1) no factual, statutory or procedural rule can serve as a basis for imposing the requested sanction; (2) Plaintiffs’ allegations that they have been prejudiced are “purely speculative” and “unsupported proclamations of extreme prejudice”; (3) Plaintiffs fail to show how Defendant’s “delay in producing any ‘miscellaneous documents’ that may exist would impact ... Plaintiffs’ ability to go to trial[ ]”; (4) “the Court’s calendar has not been prejudiced by defendant’s allegedly late production of any miscellaneous documents that may be located[ ]”; (5) the court should not consider “deterrence of misconduct” in its decision regarding Plaintiffs’ request for a sanction, as this court has never found that defendant engaged in “flagrant or egregious misconduct in discovery[ ]”; and (6) Plaintiffs have not established that to the extent any sanction may be deemed warranted, a lesser sanction would not suffice. See Defendant’s Opposition at 2, 19, 23-25.
Additionally, Defendant states that “[t]he plaintiffs have not given any reason why this dispute cannot be handled through the discovery process contained in the Federal Rules, as it has been in the past.” Defendant’s Opposition

at 21, n. 15. Defendant suggests that “any prejudice[ ] [suffered by the Plaintiffs], if any exists at all, is minimal[,]” and that he “sought to mitigate any adverse impact of this relatively minor delay *16 by attempting to work with Plaintiffs to expeditiously retrieve the documents requested.” Id. at 24 (emphasis supplied). Defendant maintains that “regardless of any relatively minor delay, any residual prejudice is further mitigated by the fact that responsive paper documents will have been produced in advance of (i) any class certification motion briefing, and (ii) any proceedings concerning the merits phase of the case being scheduled.” Id.

In their reply, Plaintiffs maintain that they do not seek “the ultimate sanction of default judgment[,]” but rather, an “issue-related” sanction requiring Plaintiffs to

“continue to bear the burden of proof with respect to their prima facie case.” Plaintiffs’ Reply at 11.5 Plaintiffs contend that the sanction they request is warranted because “despite the twenty-three orders by this court requiring Defendant to comply with the Federal Rules of Civil Procedure, the issuance of sanctions that precluded

Defendant from introducing certain evidence and required payment of attorneys’ fees,” Defendant failed to search the records of his decision-makers for responsive documents. Id. at 10-11. Plaintiffs identify two instances in which Defendant belatedly produced such documents, and maintain that such documents “reveal unfavorable

and previously-undisclosed information about white selectees chosen over Plaintiffs and other [putative] class members.” Id. at 13. Plaintiffs contend that they deposed the decision-maker involved, but did not have the benefit of his statements during the deposition. Id. Plaintiffs contend that they are entitled to support their class

certification briefing with such non-statistical evidence, which is neither “miscellaneous” or “stray[,]” to prove Defendant’s pattern and practice of discrimination. Id. at 15.

5

See also n. 3, supra, and accompanying 5 text.

Plaintiffs contend that an examination of the record with respect to the conduct of discovery in this action compels the finding that lesser sanctions “have already been entered against Defendant as a result of his misconduct in discovery[,]” and that “there is no indication that Defendant’s reaction to additional, lesser sanctions would [have any impact][.]” Plaintiffs’ Reply at 16-17. Moreover, Plaintiffs argue that the record supports their contention that the judicial system has been prejudiced by Defendant’s misconduct, and that “[a]fter twenty-three Orders to compel in a single case,” Defendant cannot with a straight face claim that he has not shown “a willingness to subvert the Federal Rules of Civil Procedure.” Id. at
4

Moore v. Chertoff, 255 F.R.D. 10 (2008)

15-16 (citation omitted); see also Joint Ex. 3.

(2) Synopsis of the Evidence Adduced During the Evidentiary Hearing6

6

On January 4, 2008, Plaintiffs filed a “Notice of Intent”

(Document No. 514) to call United States Secret

Service Inspector Arthur Kuhn as a witness at the

evidentiary hearing. On January 7, 2008, Defendant

filed a “Notice of His Intent” (Document No. 515) to

call Secret Service Inspectors Arthur Kuhn and Carrie

Hunnicutt, and represented that “[b]oth of these

employees have been involved in the Secret Service’s

efforts, both prior to and after the Court’s December

21, 2007 ruling, to search for and produce the records

sought by plaintiffs’ motion to compel.” Plaintiffs

subsequently “reserve[d] the right to call Inspector

Hunnicutt in their case as well as any other witness that

Defendant may call.” Plaintiffs’ Supplemental Notice

of Intent to Call Witnesses at January 10, 2008

Sanctions Hearing (Document No. 516). On February

25, 2008, Defendant expanded his list of witnesses to

include six other witnesses. Defendant’s List of

Potential Witnesses (Document No. 535).

The evidentiary hearing on Plaintiffs’ motion for sanctions, scheduled for January 10, 2008, ultimately consumed a total of sixteen days. During opening statements, Plaintiffs’ counsel voiced Plaintiffs’ intention to “demonstrate through live testimony to the Court the egregiousness of Defendant’s violation”; “that the search that the Defendants [sic] did was completely inadequate ... [in] that it had neither the intent nor the result of locating the documents to which Plaintiffs are entitled”; and “that Plaintiffs [,] ... almost eight years after the case was filed, still do not have the documents that were created ... which ... are responsive to Plaintiffs’ document requests.” January 10, 2008 Evid. Hr’g Tr. (Document No. 555) at 12. Counsel for Defendant voiced Defendant’s intention to “establish that there was absolute compliance with [the court’s] order in December[,] [2007] ordering the Defendant to produce the *17 documents that Plaintiffs requested by January 7th[ ]”; to “detail ... exactly what steps were taken with regard to contacting current and former employees[ ]”; that a “thorough search [was] conducted by the various offices that [Inspectors Kuhn and Hunnicutt] queried about those documents and how [the Inspectors] followed up with regard to those mechanisms that they put together.” Id. at 17, 20, 22.
A total of ten witnesses testified during the course of the sixteen-day hearing.7 Only one witness, Barbara Saliunas, testified regarding Defendant’s efforts in 2006 to search for and produce documents responsive to Class Plaintiffs’ First and Second Set of Requests for Production of

Documents, which Plaintiffs served on Defendant on May 23, 2006 and June 15, 2006, respectively.8 In testimony elicited by the Defendant, Barbara Saliunas, a Secret Service Attorney-Advisor and former Deputy Chief of the Personnel Division, testified that the Special Agent Uniform Division Support Branch of the Personnel Division oversees the staffing and merit promotion process, a process by which individuals are selected competitively for promotions. March 19, 2008 Evid. Hr’g Afternoon Session Tr. (Document No. 548) at 13-15. Ms. Saliunas enumerated the types of the “official promotion-related information” provided to the Personnel Division from Secret Service field offices and maintained by the Branch within its merit promotion files. Id. at 13-16. Ms. Saliunas testified that she believed the “merit promotion files were provided to the plaintiffs for inspection and copying in the late summer or early fall of 2006[.]” Id. at 20. Ms. Saliunas further testified on direct examination that it is possible that field offices may maintain promotion-related information that is not sent to the Personnel Division. Id. at 18. (“[I]t is possible that a field office may maintain-for example, if a special agent in charge recommends selectees for a particular position within that office, that might be done through an e-mail. And if so, then they might maintain a copy in paper.”).9

7

Testimony was elicited from the following witnesses:

Inspector Kuhn; Inspector Hunnicutt; Gregory Mays,

the Resident Agent-in-Charge (“RAIC”) of the Atlantic

City, New Jersey Resident Office; Andrew Jeff Gavin,

RAIC of the Wilmington, Delaware Resident Office;

Faron Paramore, Special Agent-in-Charge (“SAIC”) of

the Director’s Office; Roy Sexton, SAIC of the

Birmingham, Alabama Field Office; Michael Bryant,

SAIC of the Buffalo, New York Field Office; Raymond

Maytorena, SAIC of the Los Angeles, California Field

Office; Barbara Alexander-Saliunas, a Secret Service

Attorney-Advisor and former Deputy Chief of the

Personnel Division; and Robert Slama, SAIC of

Philadelphia Field Office.

8

On March 19, 2008, the parties stipulated that

Defendant, in 2006, produced “approximately 93 boxes

of documents” in response to the Class Plaintiffs’ First

and Second Sets of Requests for the Production of

Documents. According to the parties’ stipulation,

“Defendant produced documents, including

promotion-related documents, and made other

documents, including promotion-related documents,

available for inspection and copying from three Secret

Service offices at headquarters: (1) Personnel Division;

(2) E.E.O. Office; and (3) Management and

Organization Division.” Joint Stipulation, Evid. Hr’g

Joint Exhibit 1 (“Joint Ex. 1”); see also March 19, 2008

Afternoon Session Tr. (Document No. 548) at 7.

Plaintiffs, in their Motion to Compel, did not dispute

5

Moore v. Chertoff, 255 F.R.D. 10 (2008)

that the Defendant searched these three offices; rather, Plaintiffs argued that because Defendant’s search was “limited to these divisions,” the search did not “capture all potentially relevant documents reflecting Defendant’s substantive promotions decisions that adversely affected Plaintiffs and the [putative] class[.]” See Plaintiffs’ Motion at 9-10 (emphasis supplied).

9

Ms. Saliunas further testified that “there could be an

e-mail within the [field] office, a first line supervisor

suggesting to the SAIC what first level scores he or she

thinks that employee should receive-recommending

those scores, and so conceivably that could be printed

and saved in paper in the [field] office.” Id. at 18-19.

During cross-examination, Ms. Saliunas stated such

documents do not have to be provided to the Personnel

Division. Id. at 60. She added that she believed e-mails

of this sort were located and provided to the Plaintiffs

in “approximately November of 2007.” Id. at 21.

During cross-examination, Ms. Saliunas characterized the Secret Service Advisory Board’s role in the promotions process as that of discussion regarding the selectees and development of recommendations to the Director with respect to promotions or reassignments. She testified that the Board is comprised of the “deputy director and the assistant directors of the Secret Service.” Id. at 46. She further testified that she did not know when the Deputy Director’s office *18 was first searched for responsive paper documents. Id. at 47.
Testimony regarding the activity undertaken by the Secret Service following the October 29, 2007 filing by Plaintiffs of their motion to compel and for sanctions (Document No. 488), and the December 21, 2007 Order granting the motion to compel, was the focus of the testimony of the remaining witnesses. United States Secret Service Inspector Arthur Kuhn testified that on October 31, 2007, he was directed by Kit Menches, SAIC of the Inspection Division, to work with the Secret Service’s Office of Chief Counsel on “a special project [.]” January 10, 2008 Evid. Hr’g Tr. (Document No. 555) at 44-45. Inspector Kuhn testified that the Office of Chief Counsel directed him to conduct an e-mail inquiry of Secret Service supervisors at the GS-15 level and above, a category which included SAICs, Deputy Assistant Directors (DADs), Assistant Directors (ADs), Deputy Directors (DDs), and the Director. Id. at 46, 54. Inspector Kuhn’s instruction, forwarded by e-mail on November 5, 2007 to approximately 182 supervisors, required each recipient to respond, by the close of business on November 8, 2007, by forwarding a copy of responsive records and a signed certification that the search was

conducted.10 Each individual was directed by Inspector Kuhn to search locations including “personal files,” “office files,” and “the office files for offices to which [they] were previously assigned when involved in the decision-making process [ ]” for “notes, letters, memoranda, emails (both paper and electronically saved), or any other paper documents that specifically relate to the ‘selection decisions’ for GS-14 and GS-15 promotions and reassignments from 1991 to 2005.” Defendant’s Evid. Hr’g Ex. 1; see also January 10, 2008 Evid. Hr’g Tr. at 35-50; Declaration of Arthur L. Kuhn, Inspector, United States Secret Service, Attachment 1 (Document No. 498, Exhibit 15); Notice of Errata Regarding Attachments to Kuhn Declaration (Document No. 518). Inspector Kuhn testified that his assignment included facilitating the inquiry, receiving any paper documents forwarded by employees in response to the e-mail, and collecting the certifications. January 10, 2008 Evid. Hr’g Tr. at 46, 53, 114. Following this effort, Defendant produced nine pages of responsive documents. See Declaration of Arthur L. Kuhn Inspector United States Secret Service (Document No. 498, Ex. 15).
10 The “certification form” attached to the November 5, 2007 e-mail required each recipient to indicate whether he or she held the following positions during the period of 1991-2005: SAIC, DAD, AD, DD, D; if not, then he or she was not required to conduct the prescribed search. See Defendant’s Evid. Hr’g Ex. 20.
Defendant employed a similar e-mail inquiry following the court’s December 21, 2007 Order. On December 26, 2007, the Secret Service’s Office of the Chief Counsel forwarded an e-mail to “all Assistant Directors [ADs], Special Agents in Charge [SAICs], Resident Agents in Charge [RAICs], and Division Chiefs” directing a search “of their offices, including all personal and office files, for any paper documents related to decision-making or recommendations for bids of selections to any GS-14, GS-15, or SES Special Agent position from 1991 to 2005.” Defendant’s Evid. Hr’g Ex. 14 at 1; see also February 1, 2008 Evid. Hr’g Tr. (Document No. 557) at 15. Defendant transmitted the December, 2007 e-mail to 156 Secret Service employees, and required that their search efforts be completed by January 4, 2008. Defendant’s Evid. Hr’g Ex. 14 at 1; see also February 1, 2008 Evid. Hr’g Tr. at 74.
United States Secret Service Inspector Carrie Hunnicutt-called as a witness by both parties-testified during a span of six court dates regarding her January 2, 2008 assignment to (1) receive paper documents responsive to the inquiry; (2) collect faxed “certification forms” from each e-mail recipient affirming that a search was performed11 *19 and (3) to “contact [the December
6

Moore v. Chertoff, 255 F.R.D. 10 (2008)
26, 2007 e-mail recipients] ... and just learn from them how I could understand how it was that they were able to thoroughly search their offices.” See February 1, 2008 Evid. Hr’g Tr. at 12-77; see also February 11, 2008 Evid. Hr’g Tr. (Document No. 559) at 20. Inspector Hunnicutt was also designated in the December 26, 2007 e-mail as a contact person should any of the recipients have questions regarding the e-mail or the required search.
11 The December 26, 2007 e-mail inquiry included a “Paper Document Search Certification” form which required each recipient to “certify that [their] office has been thoroughly searched for paper documents created, received, or reviewed in connection with decision-making or recommendations for bids or selections to any GS-14, GS-15 or SES Special Agent Positions from 1991-2005.” Defendant’s Evid. Hr’g Ex. 14 at 2. Each recipient was directed to certify that “all personal and office files [were] searched [ ]” and to indicate whether or not these searches produced “materials responsive” to the e-mail inquiry. Id. The certification form transmitted with the November, 2007 e-mail included a provision that the certification was under the penalty of perjury; however, the certification form transmitted with the December, 2007 e-mail did not.
Inspector Hunnicutt testified that she surveyed all 156 e-mail recipients, between January 4 and January 9, 2008, “to learn how ... the certification forms were [completed][,]” and that during each interview, she recorded each individual’s responses to her questions about the search on questionnaire forms which she created and maintained. See February 1, 2008 Evid. Hr’g Tr. at 76-77; see also February 5, 2008 Evid. Hr’g Tr. (Document No. 540) at 43-44, 56, 89; February 20, 2008 Evid. Hr’g Tr. (Document No. 561) at 14. Inspector Hunnicutt testified that she asked each recipient a series of questions to determine where they searched for responsive documents. See February 5, 2008 Evid. Hr’g Tr. at 45-50. She acknowledged that as she conducted her interviews, she learned that several of the recipients of the December 26, e-mail did not search all areas in their offices where records are stored; she testified that she designated these instances with an “N” on her questionnaire forms, but that she never instructed those recipients to conduct a further search. See February 11, 2008 Evid. Hr’g Tr. at 33-34 (“I marked an ‘N’ to say that no, they had answered that they had not searched that location, or I marked ‘NA’ to say that they had not searched that location because that was not applicable to their particular office.”).
Inspector Hunnicutt also testified that she maintained a binder with the certification forms which were transmitted to her, as well as the questionnaires she completed as part

of her interviews of the e-mail recipients, “so that it could be put into a statistical format ... a snapshot ... of what the search entailed.” February 20, 2008 Evid. Hr’g Tr. at 9. She stated that she gave the binder to Jessica Neff of the Secret Service’s Chief Counsel’s Office on January 9, 2008. February 12, 2008 Evid. Hr’g Tr. (Document No. 560) at 40. However, it was not until Defendant’s case-in-chief, and Inspector Hunnicutt’s fifth court appearance, that the Inspector testified that on January 7, 2008, the statistician assigned to assist Inspector Hunnicutt informed her that her interview questionnaire forms were “misnumbered”; on January 9 and January 30, 2008, she “transferred” the recorded responses from each previously completed “misnumbered” questionnaire form “exactly” to a “correctly numbered” questionnaire form; on January 30, 2008, once she “believed that the information had been transferred,” she “destroyed” the “misnumbered” questionnaires by “plac[ing] them into a burn bag.” February 20, 2008 Evid. Hr’g Tr. at 30-35.12 Inspector Hunnicutt later admitted during cross-examination by Plaintiffs’ counsel that she modified some of the responses originally captured on the original questionnaire when she “transferred” information to the revised questionnaire form. See id. at 108; compare with id. at 66.
12 Inspector Hunnicutt testified that she also destroyed fax cover sheets, locator sheets, the January 9, 2008 paper version of the charts and graphs created by the statistician, and “[a]nything that might have been a duplicate of something I already had.” February 20, 2008 Evid. Hr’g Tr. at 81-82, 84-85, 90, 92, 106.

Inspector Hunnicutt further testified that there were no responsive paper documents found through the efforts required by the December 26, 2007 e-mail. February 1, 2008 Evid. Hr’g Tr. at 77; see also Plaintiffs’ Evid. Hr’g Ex. 10 (January 7, 2008 Letter from counsel for Defendant to Jennifer Klar).

In addition to the testimony of Inspectors Kuhn and Hunnicutt, Defendant offered the testimony of six individuals who purportedly conducted these searches in their respective field offices in November *20 and December, 2007, or January, 2008.13 The individuals testified regarding their efforts, or the lack thereof, to

search for “notes, letters, memoranda, emails ... or any other paper documents that specifically relate[d] to the

‘selection decisions’ for GS-14 and GS-15 promotions and reassignments from 1991 to 2005.” Document No. 498, Ex. 15, Attachment 1.

13

See n. 7, supra.

7

Moore v. Chertoff, 255 F.R.D. 10 (2008)
(3) The parties’ closing arguments On May 29, 2008, during closing arguments, the parties largely reiterated the arguments advanced in their written submissions, including their respective statements of Proposed Findings of Fact and Conclusions of Law. See May 29, 2008 Transcript of Closing Arguments (Document No. 577).14 14 See also Plaintiffs’ Proposed Findings of Fact and
Conclusions of Law Regarding Plaintiffs’ Motion for Sanctions (Docket No. 488 Part 2) (“Plaintiffs’ Proposed Findings”) (Document No. 568); Defendant’s Errata of Proposed Findings of Fact (“Defendant’s Proposed Findings”) (Document No. 572-2); Plaintiffs’ Reply to Defendant’s Proposed Findings of Fact and Conclusions of Law (“Plaintiffs’ Proposed Findings Reply”) (Document No. 573).
Plaintiffs maintained that no lesser sanction than the one they requested is warranted, given Defendant’s failure (1) for nearly two years, to search for and produce paper documents from the records of Secret Service supervisors involved in the recommendations and promotions process at the center of Plaintiffs’ claims; (2) to conduct an adequate search for the requested documents after the court’s December 21, 2007 Order granting Plaintiffs’ motion to compel; and (3) to comply with his discovery obligations throughout the entire course of discovery. See May 29, 2008 Tr. at 8-11. Plaintiffs’ counsel further argued that “this court has already previously sanctioned the Defendant in three instances with respect to evidentiary exclusions and [a] monetary sanction, and that has not been enough to stop the defendant from moving forward with this pattern of discovery misconduct.” Id. at 12-13.
Defendant asserted that no further sanction should be imposed because he performed a reasonable search for paper documents as contemplated by the Federal Rules of Civil Procedure, both at the time the discovery requests were propounded in 2006 and subsequent to the time Plaintiffs filed their October, 2007 motion to compel. Defendant maintained that (1) in 2006, he conducted a search of the areas where he reasonably believed responsive documents would be located; (2) in 2007, prior to the filing by Plaintiffs of their motion to compel, Defendant agreed to conduct a search for responsive documents; and (3) Defendant performed an adequate search of files of both current and former Secret Service supervisors to comply with the court’s December 21, 2007 Order. See generally May 29, 2008 Tr. at 23-35.15 Defendant further maintained that the Plaintiffs “failed to provide this court with ... any evidence that Defendant

had a design, a purpose, a plan to hold these documents to themselves[,]” and instead, Plaintiffs’ arguments amounts to “criticisms of the search” performed. Id. at 36-37. 15 In response to the undersigned’s inquiry regarding the
scope of the search conducted in 2006 when the requests for production at issue here were propounded, Defendant, through counsel, stated that individual supervisors were not queried in 2006 and that “given the ... over-breadth of [Plaintiffs’] document request, Defendant did a reasonable thing in going to the only three receptacles within the division that handled those types of documents[.]” May 29, 2008 Tr. at 33. Defendant further proffered that the documents which were the subject of Plaintiffs’ motion to compel were a “subspecies of documents ... that Defendant didn’t contemplate or didn’t think of at the time ... or didn’t think it was necessary to capture[.]” Id.
Defendant also maintained that Plaintiffs did not show why no lesser sanction would suffice. Defendant’s counsel proposed, during the final minutes of his closing argument and for the first time during the undersigned’s consideration of the pending motion, an alternative sanction: that (1) discovery be re-opened for the “limited purposes of redeposing whomever the Plaintiffs can establish had any connection with late produced anecdotal evidence[ ]”; (2) the Plaintiffs be allowed to “augment their class certification motion, with whatever newfound information that they find in order to strengthen their *21 position as much as they feel they can[ ]”; and (3) an “equal division of the costs of [the several days spent in this hearing.]” Id. at 89-90.
FINDINGS WITH RESPECT TO THE EVIDENCE ADDUCED AT THE HEARING
(1) Defendant failed to conduct a reasonable search in 2006 The parties do not dispute that Defendant, in 2006, produced 93 boxes of documents in response to Plaintiffs’ first and second requests for production of documents. Joint Stipulation, Evid. Hr’g, Joint Exhibit 1 (“Joint Ex. 1”); see also May 29, 2008 Transcript of Closing Arguments (Document No. 577) at 30-31. Defendant confined the search which yielded those documents to three Secret Service Divisions (i.e., Personnel, E.E.O., and Management and Organization).16 Joint Ex. 1 at 1. However, the responsive documents from the records of decision-makers are not maintained in these three divisions. No search for such records was attempted until November, 2007, nearly eighteen months after the requests for production were initially served. See March 19, 2008 Afternoon Session Evid. Hr’g Tr. (Document
8

Moore v. Chertoff, 255 F.R.D. 10 (2008)
No. 548) at 18. Indeed, Defendant does not dispute that his 30(b)(6) designee testified that the Secret Service had not, as of the filing by Plaintiffs of their motion to compel, searched the records of any decision-maker for documents responsive to the requests for production. See Plaintiffs’ Evid. Hr’g Ex. 15 at 85-87.
16 Defendant, in his Proposed Findings of Fact and Conclusions of Law, states that his efforts in 2006 were not confined to these three offices, and that, “memoranda requesting that individuals search for documents responsive to plaintiffs’ document requests were also sent to ... the Office of Investigations, the Office of Protective Operations, the Criminal Investigative Division, Intelligence Division, Security Clearance Division, and RTC.” Defendant’s Proposed Findings ¶ 20, at 12. Defendant attempts to support this assertion with statements made by Inspector Kuhn that some of the November 5, 2007 e-mail recipients reported that “ ‘I have sent these documents in already[.]’ ” January 10, 2008 Evid. Hr’g Tr. at 120. However, the undersigned is not persuaded by Defendant’s proposed finding of fact: Inspector Kuhn did not state with specificity the number of recipients who made such a statement, the nature of the forwarded documents, the purpose for which the recipient(s) forwarded the documents, and whether the documents were served upon Plaintiffs. Additionally, Defendant’s own witnesses were consistently asked, by Plaintiffs’ counsel, whether they were required to search for responsive paper documents in 2006, and they responded that they did not undertake any searches in 2006. See February 25, 2008 Evid. Hr’g Tr. (Document No. 562) at 98-99, 221-222; see also March 5, 2008 Morning Session Evid. Hr’g Tr. (Document No. 576) at 13-16, 98; March 6, 2008 Evid. Hr’g Tr. (Document No. 590) at 43; March 17, 2008 Morning Session Evid. Hr’g Tr.(Document No. 589) at 60. Defendant also attempts to support this proposed finding with Barbara Saliunas’s testimony that the Office of the Assistant Director of Investigations and the Office of Human Resources and Training were searched prior to November, 2007. See March 19, 2008 Afternoon Session Evid. Hr’g Tr. (Document No. 548) at 50-51. However, the undersigned finds that her testimony regarding this issue suffers from the same deficiencies as that of Inspector Kuhn.
Moreover, counsel for Defendant candidly admitted during closing arguments that Defendant did not search for paper documents detailing the substance of recommendations for promotion decisions. May 29, 2008 Transcript of Closing Arguments at 33-34. Defendant contends that he reasonably “relied upon the [three] divisions that are charged with housing promotion-related material[s]” as the “most reasonable receptacle for any information dealing with promotion-related material for the entire Secret Service[,]” and thus, only searched for

responsive documents within those divisions. Id. at 30. However, in response to the court’s question, counsel for Defendant acknowledged that the Defendant, in 2006, could have “go[ne] to the individual supervisors, the 182 supervisors within the Secret Service and quer[ied] them personally about what recommendation material[s] they may have that would be responsive to the Plaintiffs’ request.” Id. at 32. The undersigned cannot countenance Defendant’s explanation that such a search was not performed because he “didn’t ... understand[,]” “contemplate or ... think it was necessary to capture [‘recommendation material ... a subspecies of promotion-related material[,]’]” “given the ... over-breadth of the [Plaintiffs’] document request[s][.]” Id. at 33-34.17 *22 The undersigned observes that Defendant ultimately attempted to perform such a query of his supervisors only subsequent to the filing of Plaintiffs’ motion to compel and in response to the court’s December 21, 2007 Order. See Plaintiffs’ Motion Ex. 23 at 6.
17 While Defendant states that he “objected” to certain of the requests, the only motion for protective order which Defendant filed sought clarification of the trial court’s ruling regarding the scope of the claims in the case. Defendant’s Proposed Findings ¶¶ 14-18, at 9-11; See Defendant’s Motion for Protective Order Regarding “Class Plaintiffs’ First Set of Requests for Production of Documents” (Plaintiffs’ Eighth Set of Document Requests In This Case) (Document No. 355). Defendant ultimately withdrew the motion for protective order. See Defendant’s Notice of Withdrawal of Defendant’s Motion for Protective Order regarding “Class Plaintiffs First Set of Requests for Production of Documents” (Plaintiffs’ Eight Set of Document Requests) (Document No. 359). In any event, the granting of Plaintiffs’ motion to compel production of the documents renders this contention one of no moment.
In sum, Defendant has failed to persuade the court that he diligently or reasonably searched for responsive paper documents in 2006. Thus, the undersigned finds that Defendant failed to conduct a timely and reasonable search for responsive documents in 2006, in violation of the requirements of Rule 34 of the Federal Rules of Civil Procedure.
(2) Defendant failed to adduce credible evidence of any reasonable search efforts in November and December, 2007 and January, 2008 Defendant, through the testimony of the individuals he deemed the most knowledgeable about his search efforts, attempted to explain the scope and method of his belated
9

Moore v. Chertoff, 255 F.R.D. 10 (2008)
efforts in November and December, 2007 and January, 2008. However, the undersigned finds that the totality of the evidence adduced during the evidentiary hearing through those witnesses unpersuasive, inconsistent and exemplary of the inadequacy of Defendant’s search efforts.
(i) Deficient Search Instructions Defendant provided the recipients of his November and December, 2007 e-mails with ambiguous instructions regarding the locations to be searched for responsive documents. Specifically, the e-mail inquiries required a search of “personal files” and “office files[.]” Defendant’s Evid. Hr’g Ex. 14 (“December 26, 2007 e-mail”) at 1; see also Defendant’s Evid. Hr’g Ex. 1 (“November 5, 2007 e-mail”) at 1. The ambiguity became evident as Defendant’s own witnesses testified regarding their respective interpretations of the terms “personal files,” “office files” and “office” in the context of the e-mail inquiries.18
18 Gregory Mays, RAIC of the Atlantic City Resident Office, testified that the e-mail required a search of his “office,” which he understood to mean “[t]he entire space of the Atlantic City resident office, to include all of the private offices within the space [ ]” (February 25, 2008 Evid. Hr’g Tr. (Document No. 562) at 54). Andrew Gavin, RAIC of the Wilmington, Delaware Resident Office, testified that “office” meant “[t]he office space in which one might find-one might expect to find personnel-type files[ ]”-an interpretation that he understood applied to “[t]he entire [Wilmington, Delaware] office [ ]” (February 25, 2008 Evid. Hr’g Tr. at 185); later, RAIC Gavin testified that “office files” were “anything in the office that’s documentation generated by administrative matters or investigative matters [,]” but excluded an “[a]gents’ personal paperwork, their emails if they printed things out[,]” an agent’s brag sheet and MPP score, an agent’s e-mail requesting support for a position on which the agent bid, and a supervisor’s e-mail requesting his opinion about an agent in his office (id. at 210-12). Michael Bryant, SAIC of the Buffalo, New York Field Office, testified that the reference in the November 5, 2007 e-mail to “office files” meant “the office files in my office, in the Buffalo field office, the administrative files[ ]” (March 6, 2008 Evid. Hr’g Tr. (Document No. 590) at 13). Roy Sexton, SAIC of the Birmingham, Alabama Field Office, testified that he believed that the November 5, 2007 e-mail required that he “search [his] personal records[,]” but that the December 26, 2007 e-mail required that he “search not only my office, but ... the entire field office[ ]” (March 5, 2008 Morning Session Evid. Hr’g Tr. (Document No. 576) at 63, 67-68). Ray Maytorena, SAIC of the Los Angeles Field Office, testified that “office files” meant “[m]y office files that are contained within my desk and my work

area ... in my particular case it extends to the adjoining conference room[,]” and that “office files” are different from “administrative files” which were on the 13th floor of the Los Angeles Field Office (March 17, 2008 Morning Session Evid. Hr’g Tr. (Document No. 589) at 58); later, SAIC Maytorena testified that the “office files” searched in his office included the “administrative files” on the 13th floor (id. at 84).
*23 Defendant was aware of the opportunity for misinterpretation of these terms. In response to the November 5, 2007 e-mail inquiry, Faron Paramore, SAIC of the Director’s Office, testified that he understood that he was to “conduct a physical search of my office and any files I maintained in my office or that I maintained anywhere else even if they were at my residence [.]” February 26, 2008 Evid. Hr’g Tr. (Document No. 536) at 31. He further explained that “my office” meant “physically being the office that I maintain, the office that I sit in.” Id. at 31. SAIC Paramore testified that he was informed by Edith Shine, one of Defendant’s counsel of record and a member of the Secret Service Chief Counsel’s office, that he “had incorrectly interpreted” the e-mail’s instruction regarding the scope of the search of “office files.” Id. at 44. According to SAIC Paramore, Ms. Shine instructed him that he was not only to search the files in his immediate office space, but all of the files in the entire office, which included the offices of administrative staff, the Deputy Director and Director. Id. at 45. SAIC Paramore, after receiving these instructions, conducted a search of the locations that he did not include in his original search.
Defendant used the same ambiguous language in the December 26, 2007 e-mail inquiry, authored by Defendant’s Office of Chief Counsel. See Defendant’s Evid. Hr’g Ex. 14 at 1. Defendant did not offer any evidence that he issued further instructions regarding the construction of the term “office files” in an effort to comply with the December, 2007 Order granting Plaintiffs’ motion to compel. See id. at 106-107.
Defendant’s efforts were also notably deficient with respect to his failure to instruct the inspectors facilitating his search regarding what constituted a document responsive to Plaintiffs’ discovery requests. For instance, the first request in class Plaintiffs’ Second Set of Requests for Production of Documents included a request for “[a]ll documents relating or referring in any way to the claims and defenses raised in this case[ ]”; however, the recipients of the e-mails were never informed of the claims and defenses involved in the case. See Plaintiffs’ Evid. Hr’g Ex. 3 at 7; see also January 10, 2008 Evid. Hr’g Tr. at 153-54, 157. Inspectors Kuhn and Hunnicutt
10

Moore v. Chertoff, 255 F.R.D. 10 (2008)
both testified that they were not provided with a copy of Plaintiffs’ first and second sets of requests for production of documents, even though it was their role to receive documents located during the searches and to answer any questions posed by the recipients of the e-mail about the searches. See January 10, 2008 Evid. Hr’g Tr. at 49, 54, 166 (testimony of Inspector Kuhn that the first time he saw Plaintiffs’ first and second sets of requests for production of documents was on January 10, 2008 during his testimony in Plaintiffs’ case-in-chief); see also Defendant’s Evid. Hr’g Ex. 1 at 1; February 1, 2008 Tr. at 80-81; Defendant’s Evid. Hr’g Ex. 14 at 1. Additionally, Inspectors Kuhn and Hunnicutt did not know the meaning of many of the terms utilized in the instructions included in the e-mails. See Jan. 10, 2008 Evid. Hr’g Tr. at 139 (testimony of Inspector Kuhn that he did not know what was meant by the term “bid books” as used in the November 5, 2007 e-mail defining the term “documents”); see also February 5, 2008 Evid. Hr’g Tr. at 18 (testimony of Inspector Hunnicutt that “I don’t know what a bid book is.”)
Further, the November 5, 2007 e-mail also required recipients to search “in offices to which they were previously assigned.” Defendant’s Evid. Hr’g Ex. 1 at 1. Inspector Kuhn acknowledged that he did not know how the recipients searched for documents in every field or resident office where they were previously assigned; additionally, he was uncertain whether the recipients traveled to the offices where they were previously assigned, or asked that their files be shipped to their current offices so that they could conduct the searches in their current offices. See January 10, 2008 Evid. Hr’g Tr. at 114. Further, Defendant did not direct any of the recipients of the e-mails to search files where responsive documents might be located consistent with the agency’s method of indexing files. See January 10, 2008 Evid. Hr’g Tr. at 190-91. Inspector Kuhn testified that the Secret Service has an administrative filing system for filing its “office files[,]” including files that are designated “203.061, Promotion of Special Agents”; however, Defendant did *24 not, in either of his e-mail inquiries, direct a search of such files. Nor did Defendant request a search of files in off-site storage facilities, such as the Federal Records Center.
(ii) Inconsistent Search Efforts The undersigned finds that the testimony of Defendant’s own witnesses regarding their purported search efforts undermined Defendant’s argument that a reasonable and thorough search was conducted in response to the November and December, 2007 e-mail inquiries. Notably, the evidence adduced at the evidentiary hearing regarding

the efforts undertaken by SAICs Paramore and Bryant, and RAICs Gavin and Mays, in response to the e-mail inquiries exposed the widely varying extent of the searches conducted. For example, SAIC Paramore testified that in response to the November 5, 2007 e-mail inquiry, he undertook an effort, at the behest of Defendant’s counsel, which included a search of his office, and the offices and files of the Director, Deputy Director and administrative staff members. See February 26, 2008 Evid. Hr’g Tr. at 34, 56. SAIC Paramore testified that he “opened files and quickly examined the document ... to discern whether or not the document could potentially be something that was characterized in ... what Chief Counsel’s Office was requesting.”19 Id. at 34, 56. However, the breadth of SAIC Paramore’s search stands in marked contrast to the others about which testimony was adduced.
19 While SAIC Paramore testified that he became a SAIC in October, 2007, he did not recall receiving an e-mail from the Office of Chief Counsel in December, 2007 directing him to conduct a search for responsive paper documents; consequently, he did not perform a search in either December, 2007 or January, 2008. See March 5, 2008 Morning Session Evid. Hr’g Tr. (Document No. 576) at 25-28.
(iii) SAIC Bryant Although he testified that “administrative files” are “office files,” SAIC Bryant nonetheless failed to search any of the administrative files of the Buffalo field office in November, 2007. Instead, SAIC Bryant asked his administrative supervisor if the files in the file room would contain any information responsive to the e-mail inquiry. His administrative supervisor, without conducting a search of any of the files, told him that “the requested information ... would not be in ... an official capacity in [the] file room.” See March 6, 2008 Evid. Hr’g Tr. (Document No. 590) at 14-15.20 SAIC Bryant unabashedly testified that this inquiry of his administrative supervisor constituted a search. See March 7, 2008 Evid. Hr’g Tr. (Document No. 591) at 18-19. Moreover, SAIC Bryant did not inform the rest of his staff about the November, 2007 e-mail inquiry, or ask any of them to search for any responsive documents. See March 6, 2008 Evid. Hr’g Tr. at 23.21 Rather, SAIC Bryant merely looked at the personal files maintained in his desk, his calendar and e-mail account. See March 6, 2008 Evid. Hr’g Tr. at 14-15. Additionally, he testified that he did not search in closets, credenzas, safes, vaults, off-site storage, or file cabinets other than the one containing his own personal documents. March 7, 2008 Evid. Hr’g Tr. at 13-15.22 Although he stated that he
11

Moore v. Chertoff, 255 F.R.D. 10 (2008)
makes *25 recommendations for promotions via personal e-mail to a supervisor in Washington, SAIC Bryant did not locate any such e-mails.23 See id. at 33. He further stated that “I would assume they were-they’re stored somewhere on my computer, but they’re not available to me. They could be stored in headquarters. I’m not exactly sure where they could be.” Id. at 35. SAIC Bryant further testified that although he is aware of the “duty to preserve the e-mails containing recommendations-to your [deputy assistant director][,]” he was not aware of the Secret Service’s policy to print-and-save such documents. Id. at 37.
20 SAIC Bryant attempted to explain his failure to search for responsive paper documents by testifying regarding the knowledge, experience and duties of his administrative supervisor. He also testified that the Inspection Division conducted a search of the Buffalo field office files in May, 2007; however, he later acknowledged that the Inspection Division was not searching for documents responsive to the November 5, 2007 e-mail inquiry. See id. at 15-20.

21

On March 4, 2008, nearly two months after the

deadline for the date for production of documents in

accordance with the order granting Plaintiffs’ motion to

compel, and two days prior to being called as a witness

in the evidentiary hearing, SAIC Bryant, at the

direction of Defendant’s counsel, instructed his staff to

search for paper documents in accordance with the

November, 2007 e-mail. See March 7, 2008 Evid. Hr’g

Tr. at 19. SAIC Bryant testified that he told counsel for

Defendant about his search efforts approximately one

month before he testified, but that he was not informed

that his search was inadequate or instructed to do any

further searches until he was scheduled to testify. SAIC

Bryant testified that he was directed to search the “100

and 200 series files in the Buffalo field office[ ]” and to

bring those files with him to Washington, D.C. See id.

at 19-22.

22

The undersigned notes that despite his cursory efforts,

SAIC Bryant signed a Paper Document Search

Certification form on November 6, 2007, indicating

that he performed a thorough search of his office. See

Defendant’s Evid. Hr’g Ex. 23 at 1-2. He later testified

that “my impression was that I was certifying that my

office files, my personal files had been-had been

reviewed.” March 6, 2008 Evid. Hr’g Tr. at 29. SAIC

Bryant did not testify to any search efforts undertaken

in response to the December 26, 2007 e-mail; instead,

he unequivocally testified that although he received the

December 26, 2007 e-mail from the Office of Chief

Counsel, he did not perform a search as directed by the

e-mail. Id. at 27 (“the previous document was in

November and this was in December and it was

essentially asking me to conduct the same search again.”). Despite his inaction, SAIC Bryant testified that he completed and signed the “Paper Document Search Certification” form attached to the December 26, 2007 e-mail, certifying that a thorough search had been conducted. He testified that his certification was based upon the search efforts he conducted in November, 2007. See id. at 29; see also Defendant’s Evid. Hr’g. Ex. 24 at 1.

23

SAIC Bryant was confronted with a certification he

signed in 2003 regarding the individuals selected for

RAIC and ATSAIC over Plaintiff Hendrix, although he

testified that the document did not refresh his memory

that Plaintiff Hendrix sought either of the two positions.

See March 6, 2008 Evid. Hr’g Tr. at 42-43. He said that

if he had printed and saved recommendation e-mails he

would have kept them in his “administrative files.” Id.

at 44-45. He later testified that “ ‘my administrative

files’ meant “personal administrative files[.]” ” Id. at

45. No responsive paper documents were located in this

search, despite Plaintiff Hendrix’s bid on more than one

promotion in the Buffalo field office during SAIC

Bryant’s tenure as SAIC. See March 7, 2008 Evid. Hr’g

Tr. at 33-34.

(iv) RAIC Gavin Defendant’s assertion that RAIC Gavin’s actions in response to the December 26, 2007 e-mail inquiry constitutes a search, as that term is used in Defendant’s opposition to Plaintiffs’ motion for sanctions, is entirely misplaced. RAIC Gavin testified that he received the December 26, 2007 e-mail inquiry requesting that he conduct a search for responsive paper documents. February 25, 2008 Evid. Hr’g Tr. (Document No. 562) at 184. Like SAIC Bryant, RAIC Gavin inquired of the resident administrative manager whether there were merit promotion documents or promotion-related materials in the Wilmington office; without conducting a search for such documents, she told RAIC Gavin that there would be no such information in the office. See id. at 187. Armed with this information, RAIC Gavin testified that he looked in a small two-drawer filing cabinet in the resident administrative manager’s office that contained “[a]dministrative files that range from billing for equipment and supplies, to applicants, to background investigations, routine administrative documentation.” Id. at 189. However, he did not open any office or administrative files; instead, he conducted a search by looking at the file folder labels affixed to each file. See id. at 212; see also id. at 189 (RAIC Gavin “looked through the [numbered] classification codes and to make sure
12

Moore v. Chertoff, 255 F.R.D. 10 (2008)
there were no loose files in there.”).24RAIC Gavin also failed to search any of the file cabinets of the agents or administrative staff, or to confirm whether they conducted a search of their files or desks. Id. at 210, 212, 216. Instead, he stated that he asked each of his special agents “whether they had any promotion-related materials in their office space, and they all said, ‘no.’ ” Id. at 191-192, 202. He later admitted that he simply “took them at their word” that they did not have any responsive paper documents. Id. at 202. RAIC Gavin stated that he did conduct a search of his own personal file, “a five section folder of my own where I keep my activity reports and other miscellaneous documents, *26 my travel vouchers.” Id. at 209. However, any further efforts occurred in the “normal course of [his] activities[.]” Id. at 193 (“I looked in closets because I happened to be in the closet. I looked in cabinets because I happened to look in cabinets.”) He stated that he did not specifically look for notes, notebooks, memos, calendar entries, or print-and-save e-mails in response to the December 26, 2007. See id. at 232 (testimony by RAIC Gavin that he “considered the coincidental examination of a calendar compliance [.]”). Despite this lackluster effort, on January 3, 2008, RAIC Gavin signed the Paper Document Search Certification form that a reasonable and thorough search was conducted. See Defendant’s Evid. Hr’g Ex. 16.
24 RAIC Gavin explained that he did not look in any of the file folders “[b]ecause my ... resident administrative manager has been doing this for years and she knows where everything goes and she knows that you’re not supposed to put personnel-related documentation in this filing cabinet.” Id. at 189.
(v) RAIC Mays RAIC Mays testified that in response to the December 26, 2007 e-mail, he searched the office’s administrative files by looking at the stickers and labels affixed to the file folders; he stated that he “would read the title on the folder and if I thought there was any reasonable expectation that something responsive to this request would be in the folder, then I would pull the folder out and flip through the pages[.]” February 25, 2008 Evid. Hr’g Tr. at 63. RAIC Mays further testified that he “looked through” his desk, credenza, notebooks in his personal office, background investigation files, and closets. See id. at 63-67. Additionally, RAIC Mays testified that he immediately asked the resident administrative manager and investigative assistant to search their desks, files and offices for any responsive paper documents in their possession. Id. at 61. Although he testified that there were five special agents in his office, RAIC Mays asked only one agent to search for

responsive paper documents. Id. at 66. RAIC Mays explained that he believed this agent could have responsive paper documents since he had worked in the Secret Service for a long period of time. Id. He further stated that at some later point in the process, he forwarded an e-mail to the rest of the members of his staff, asking them to conduct a search of their offices. Id. at 73. However, he never received a response from any of them (id. at 114) or spoke with them regarding their search efforts; thus, he could not testify regarding whether they conducted a search or the scope of any performed search. Id. at 83-84. Despite his failure to follow up with his staff members regarding their search efforts, RAIC Mays signed the Paper Document Search Certification form on December 28, 2007. Defendant’s Evid. Hr’g Ex. 15. He testified that he believed he was certifying that he “had done a reasonable complete search of every file in the office that may contain any kind of document responsive to the request and that nothing was found.” February 25, 2008 Evid. Hr’g Tr. at 69.
(vi) Inspector Hunnicutt’s credibility Defendant’s contention that he performed a reasonable search effort in response to the court’s December 21, 2007 Order is further undermined by the testimony elicited from Inspector Hunnicutt. Defendant assigned Inspector Hunnicutt, a GS-15 grade level Secret Service agent with sixteen years of experience in the agency, including a Presidential protective detail, the task of facilitating and validating his search effort. See February 20, 2008 Evid. Hr’g Tr. (Document No. 561) at 88. Counsel for Defendant represented that Inspector Hunnicutt would testify regarding how she “ensured that a ... thorough search would be conducted by the various offices[.]” January 10, 2008 Evid. Hr’g Tr. at 22. However, Inspector Hunnicutt’s attempts to validate Defendant’s search efforts proved to be a process that lacked trustworthiness, and her testimony was riddled with discrepancies.
Inspector Hunnicutt testified that she created and utilized questionnaire forms to capture contemporaneous responses from the recipients of the December, 2007 e-mail regarding their search efforts; she further testified that she asked each recipient a series of questions to learn who conducted a search of a given office, and what locations each recipient searched. See Defendant’s Evid. Hr’g Ex. 9. However, six agents, selected by the Defendant, were called to testify regarding the manner in which each conducted his search. In some instances, agents testified regarding their search efforts in a manner *27 which was inconsistent with the responses recorded by Inspector Hunnicutt on the questionnaire forms. For
13

Moore v. Chertoff, 255 F.R.D. 10 (2008)
instance, Agent Maytorena said that he did not search file cabinets in response to the December 26, 2007 e-mail, because he does not have any file cabinets. See March 17, 2008 Morning Session Evid. Hr’g Tr. at 73. Yet, the questionnaire completed by Inspector Hunnicutt during her discussion with SAIC Maytorena indicates with a “y” that a search was conducted of the file cabinets. See Plaintiffs’ Evid. Hr’g Ex. 46-47.25 The same affirmative response appeared on the questionnaire for “vaults”; however, SAIC Maytorena testified that he did not search any vaults. See March 17, 2008 Morning Session Evid. Hr’g Tr. at 76. SAIC Maytorena also testified that Inspector Hunnicutt asked him if notes and notebooks had been searched and he said he told her yes; however, her questionnaire forms indicate “N/A.” See id. at 94; see also Plaintiffs’ Evid. Hr’g Ex. 46-47. SAIC Bryant testified that he only searched his personal files, computer, and calendar, and that he told Inspector Hunnicutt that he searched his personal files, computer, and office files. March 7, 2008 Evid. Hr’g Tr. at 13-15 & 17-19. However, Inspector Hunnicutt testified that SAIC Bryant told her he only searched his computer. February 12, 2008 Evid. Hr’g Tr. (Document No. 560) at 18-19, 37-39 & 70-71. SAIC Bryant testified that his testimony, and not that of Inspector Hunnicutt, was the truth. March 7, 2008 Evid. Hr’g Tr. at 17-19.
25 Plaintiffs’ Evid. Hr’g Ex. 46 is a questionnaire from the compilation of questionnaire forms in the binder given to the court on February 5, 2008. Plaintiffs’ Evid. Hr’g Ex. 47 is a questionnaire from the compilation of questionnaire forms in the binder given to the court on February 20, 2008. See March 17, 2008 Morning Session Evid. Hr’g Tr. at 95-96; see also Plaintiffs’ Evid. Hr’g Ex. 40 & 41. During the evidentiary hearing, counsel for Defendant provided Plaintiffs and the court with copies of the binder purportedly created and maintained by Inspector Hunnicutt. See February 5, 2008 Evid. Hr’g Tr. at 57-58. However, upon further examination by Plaintiffs and the court, the undersigned became aware of discrepancies between the copy of the exhibit utilized by counsel for Defendant and the copies provided to Plaintiffs and the court. See February 12, 2008 Evid. Hr’g Tr. (Document No. 560) at 77-83. Counsel for Defendant initially suggested that an error in copying the questionnaires accounted for the discrepancies. Id. at 78. However, Inspector Hunnicutt’s own testimony was that she created the discrepancies when, on January 9, 2008 and January 30, 2008, she “transferred” questionnaire responses from “misnumbered” questionnaire forms to “correctly” numbered questionnaire forms (February 20, 2008 Evid. Hr’g Tr. at 30, 32-33), and subsequently placed the original forms in a “burn bag” to be destroyed. Id. at 30-31. According to counsel for Defendant, the binder provided to Plaintiffs and the court is the version given to agency counsel on January 9, 2008 by Inspector Hunnicutt (id. at 38); after copies

were made of the binder and returned to Inspector Hunnicutt, on January 30, 2008, Inspector Hunnicutt removed a number of “misnumbered” questionnaires and replaced them with the “transferred” information. See id. at 33-34, 38-39.
The undersigned’s inability to accord any of Inspector Hunnicutt’s testimony any significant measure of credibility is further compromised by her startling lack of responsiveness and candor. For example, during questioning by counsel at the evidentiary hearing, Inspector Hunnicutt’s testimony included prolonged pauses between the questions and her answers during which she alternately stared in the distance or cast her gaze downward. When asked to explain, Inspector Hunnicutt said that she was trying to provide counsel with “the best answer” (February 1, 2008 Evid. Hr’g Tr. at 33; see also February 12, 2008 Evid. Hr’g Tr. at 36); however, the undersigned noted that Inspector Hunnicutt paused before answering even routine questions, such as, “During your service as a GS-14 at the Secret Service, did you ever make any recommendations, whether formal or informal, to the people above you in the chain of command about who should be or who should not be promoted?” Id. at 8; see also id. at 26, 32-33; February 5, 2008 Evid. Hr’g Tr. at 66. Moreover, Inspector Hunnicutt frequently gave answers which were patently non-responsive. For example, in response to Plaintiffs’ counsel’s question regarding the number of times she spoke to Inspector Kuhn about Defendant’s effort to locate responsive paper documents, Inspector Hunnicutt, after some prodding, stated “To the best of my knowledge, I have the responsibility to provide information regarding the collection of paper documents from current employees, currently employed. I would-[.]” February 1, 2008 Evid. Hr’g *28 Tr. at 26-28; see also id. at 30-31, 42-43 & 48-49; February 5, 2008 Evid. Hr’g Tr. at 52, 74-77; February 12, 2008 Evid. Hr’g Tr. at 15-16, 43-46, 48, 51; February 20, 2008 Evid. Hr’g Tr. at 37, 67-68, 84-88, 103.
(vii) Defendant’s Disregard of the Rule on Witnesses RAICs Mays and Gavin testified that days before their scheduled testimony, the SAIC of the Philadelphia Field Office, Robert Slama, forwarded them an e-mail containing a link to a news article which contained a summary of Inspector Hunnicutt’s testimony. February 25, 2008 Evid. Hr’g Tr. at 51-52, 245.26 RAIC Mays testified that on February 21, 2008, the same day he learned he would be a witness in the evidentiary hearing (id. at 109), he received an e-mail from SAIC Slama, in which Slama said “ ‘Hey, read this before you go.’ ” Id. at
14

Moore v. Chertoff, 255 F.R.D. 10 (2008)
113. RAIC Mays testified that the e-mail contained “a link to an article. I clicked on the link, and as the article popped up, I glanced at it and quickly realized it had something to do with the case, and I closed it without reading it.” Id. at 51-52. RAIC Mays further testified that the article “had ‘Secret Service’ in the title[ ]” and that he “remember[ed] seeing something about Carrie Hunnicutt’s name in the first paragraph or something, and then I just remember [sic] what Ms. Braswell told me. I clicked it off. I closed it immediately and didn’t read it.” Id. at 113.27
26 On March 19, 2008, Robert Slama, SAIC of the Philadelphia Field Office, testified that on February 21, 2008, he received an e-mail from Mike White, Assistant Special Agent in Charge (ASAIC), which contained a link to a “public news clip” of “an article about an agent by the name of Honeycutt [sic] ... describ[ing] the possibility that she may have destroyed some critical documentation.” March 19, 2008 Morning Session Evid. Hr’g Tr. (Document No. 592) at 9-10, 11; see also Defendant’s Evid. Hr’g Ex. 33 (e-mail to Robert Slama from Mike White, Assistant Special Agent in Charge, Dignitary Protection Detail). SAIC Slama testified that although he “did not” know what was meant by ASAIC White’s introductory statement of “Bob & Dave, the most interesting thing you will read today. Click on the first link[,]” (id. at 12-13), after reading the news article he sent an e-mail back to Mr. White with the statement “Oh booooy” because he “was shocked at what [he] read and what-the perception of what happened or what was reported in that e-mail-in that news clip....” Id. at 16. SAIC Slama later testified that Plaintiffs’ Evidentiary Hearing Exhibit 48 is similar in content to the news article contained in the e-mail he received from ASAIC White. Id. at 36.

27

SAIC Slama testified that on February 21, 2008, he

“sent [the e-mail] to [RAIC] Gregory Mays[,]” who

“during our conversation said that he was going to

Washington to talk to chief counsel’s office concerning

issues tied to this court proceeding[,]” (March 19, 2008

Morning Session Evid. Hr’g Tr. at 16-18); see also

Defendant’s Evid. Hr’g Ex. 34 (February 21, 2008

e-mail to RAIC Gregory Mays). SAIC Slama testified

that he was “not sure if [RAIC Mays] did or ... did not”

inform him that he was scheduled to be a witness at the

evidentiary hearing, (id. at 18), but that “when [RAIC

Mays] said that he was going [to Washington, D.C.], I

just thought this would be interesting that he should see

this and how serious this situation is and how the

perception that if someone did do something wrong,

that was a very bad thing, and as he works for me, I did

not want anything like that to occur in the Philadelphia

District of the Secret Service.” Id. at 19. SAIC Slama

testified that he told RAIC Mays, “this can’t happen in

this office or anywhere. This-‘this’, [Plaintiffs’] Exhibit

48, should never have happened.” Id. at 59. SAIC

Slama further testified that he “assumed that [RAIC Mays] [read the document] when he received it,” but that he “didn’t recall having a conversation that [RAIC Mays] said, I read the e-mail[.]” Id. at 20.
RAIC Gavin testified that on or about February 21, 2008, he also learned that he would be a witness in the evidentiary hearing (id. at 225), and that on the Friday before his testimony, the SAIC of Philadelphia sent him an e-mail regarding the lawsuit. Id. at 249.28 *29 RAIC Gavin testified that he “didn’t open it ... [SAIC Slama] told me he was sending it to me and I told him I’d been instructed by Ms. Braswell not to talk with anybody or read any accounts of it, so I deleted it.” Id. at 245. RAIC Gavin further testified that SAIC Slama asked him “ ‘Did you ... hear about the problem that Carrie Drayer[ ] ... had trouble with ... her testimony [?]’ ” (id. at 246), but that he “told [SAIC Slama] I couldn’t talk about it.” Id.
28 SAIC Slama testified that “[l]ater on, I sent [the e-mail] to one additional person, which was [RAIC] Gavin....” Id. at 17; see also Defendant’s Evid. Hr’g Ex. 35 (February 22, 2008 e-mail to RAIC Andrew Gavin). SAIC Slama testified that he had a conversation with RAIC Gavin on February 22, 2008 and RAIC Gavin told him he “may have to go to Washington. When he said that, I said, [’]hey, there’s an interesting article here[’], and I sent it to him.” Id. at 26. SAIC Slama testified that after he forwarded the e-mail, RAIC Gavin told him that he may be a witness in a court proceeding, and that he could not look at anything. Id. SAIC Slama, in response to counsel’s inquiry about his intent in forwarding the e-mail to RAIC Gavin, testified that “I’m very proud of the Secret Service, ... [RAIC Gavin]’s been a friend. And I said to him, [’]Jeff, this can’t happen. We need to be straightforward, and you’re probably going to be down there and be questioned about this information.[’]” Id. at 30. Slama testified that he did not have “a clue[ ]” that he or “anyone in our office” would be a witness in these proceedings. Id. at 63.
SAIC Slama forwarded the e-mails, despite being “told by [his] superiors that witnesses may be called tied to the request for information and preservation of evidence.” March 19, 2008 Morning Session Evid. Hr’g Tr. at 21.29 SAIC Slama testified that he “had an idea that I shouldn’t talk to witnesses; but I didn’t know that I knew any witnesses[,]” and “[i]t didn’t occur to me that [RAIC Mays] would be a witness.” Id.
29 SAIC Slama testified initially that Michael Stenger, AD of the Office of Investigations, “in mid-February, 2008” during an “information sharing conference call with the other special agents” informed the agents that “there is a possibility that you may be questioned on
15

Moore v. Chertoff, 255 F.R.D. 10 (2008)
your imaging of your hard drive or how you searched your office[ ]” (id. at 39) which SAIC Slama assumed meant that such questioning would occur “informally and formally in a court proceeding[.]” Id. SAIC Slama further acknowledged that he understood AD Stenger’s statements to mean the special agents should not talk to each other because they may be required to testify in court. Id. at 40. SAIC Slama later testified on re-direct examination that AD Stenger “didn’t specifically” say that he could not discuss the case with other agents, but that he thought “it was an interpretation on [his] part, and maybe [AD Stenger] inferred it[.]” Id. at 62.
Despite the knowledge that his potential witnesses were exposed to a news media article about the testimony of Inspector Hunnicutt, Defendant offered testimony from RAICs Mays and Gavin on February 25, 2008. Counsel for Defendant proffered that she “became aware ... on Friday [February 22, 2008]” that the SAIC of Philadelphia had e-mailed the link to a news article regarding testimony given during the evidentiary hearing to the two witnesses (February 25, 2008 Evid. Hr’g Tr. at 260-61), and that she “immediately investigated to see what those two witnesses had done when they received the e-mail.” Id. at 263. Defendant’s counsel maintained that RAICs Mays and Gavin “had no inappropriate exposure[ ]” to any testimony from the hearing, and denied that the e-mail transmitted from the Philadelphia SAIC was a violation of the rule of witnesses, opining that “because the witnesses did not look at the-at what was in the link, if they did not read any testimony, then there was no violation of the rule of witnesses.” Id. at 261-62, 264.30 When the undersigned inquired of Defendant whether it was appropriate for the SAIC of Philadelphia to send an e-mail to the special agents, counsel for the Defendant responded that “it was very unfortunate that he did that. I don’t know what his intent was behind it, and I can’t say anything more than I thought it was very unfortunate[.]” Id. at 262-63. Defendant further proffered that he was “extremely prejudiced by the fact that a reporter has been sitting in this courtroom taking down what has been going on in these proceedings and we have had to exclude numerous witnesses because they unknowingly ... have been reading press reports and know what the testimony is ... we have had to exclude many.” Id. at 266. Defendant’s counsel acknowledged that “because this [proceeding] is appearing over a long period of time, people who we don’t even know are googling to find out what’s going on in the case ... and they’re getting access to press reports ... we determine[d] that we can’t use those individuals as a witness[es], and ... we have determined that it’s more widespread than we had initially realized.” Id. at 267. Counsel admitted that this issue “has made it difficult” to

answer the court’s question regarding which witnesses are coming and *30 when, (id. at 267-68), but stated that “the Secret Service employees have a right to read press accounts just like anyone else. We’re the ones that have to deal with it in terms of the witnesses that we bring into court[.]” Id. at 269.31
30 Counsel for Defendant proffered that she did not “bring it to the attention of the court because both witnesses told [her] that they had not seen any summary of testimony; therefore there had been no violation of the Court’s rule on witnesses, so I saw no need to bring it to the Court’s attention.” Id. at 261. The undersigned observes that Defendant also failed to alert Plaintiffs of this irregularity before the evidentiary hearing began on February 25, 2008.

31

SAIC Slama testified that Ed Donovan, Secret Service

Special Agent, forwarded the e-mail of the link to the

news article to Mike White, Tyler McQuiston, Secret

Service Special Agent, Joseph Brennan, Secret Service

Special Agent, and Frank Romano, Secret Service

Special Agent, and that Mike White also forwarded the

e-mail to David Beach, ASAIC of the Philadelphia

Field Office. See March 19, 2008 Morning Session

Evid. Hr’g Tr. at 12, 14-16.

The undersigned finds that the potential witnesses with respect to the evidentiary hearing included everyone who signed a certification, as that is what Defendant offered as his evidence that a thorough and reasonable search was performed in response to the court’s December 21, 2007 Order. Defendant, through the receipt of the signed certifications, had notice of the pool of individuals from which the potential witnesses would be selected. Defendant also was well aware of the presence in the courtroom of at least one reporter, and of the media coverage of these proceedings; nonetheless, Defendant failed to instruct the potential witnesses to refrain from reading press reports of testimony elicited during the hearing. See id. at 267. Even after learning that the SAIC in Philadelphia transmitted by e-mail the links to the newspaper article, counsel for the Defendant saw fit to do absolutely nothing about it. Thus, any difficulty or prejudice Defendant may have suffered during the evidentiary hearing was of his own making.

(viii) Former Employees Defendant also offered testimony about his efforts to contact former Secret Service employees to ask that they search for responsive paper documents. See January 10, 2008 Evid. Hr’g Tr. at 132-133,155-157. Inspector Kuhn
16

Moore v. Chertoff, 255 F.R.D. 10 (2008)
testified that the Office of Chief Counsel sent a letter to former agents in which Chief Counsel inquired whether they had previously made or received recommendations of any of the Plaintiffs, and requested a search of their records for paper documents related to any decision or bid selection recommendation in the applicable time period. Id. at 155; see also January 25, 2008 Evid. Hr’g Tr. (Document No. 556) at 18-19; Defendant’s Evid. Hr’g Ex. 5. Defendant also attached a certification form to the letter which the former agents were required to complete and return to the Chief Counsel’s office. January 25, 2008 Evid. Hr’g Tr. at 27. Inspector Kuhn testified that by January 7, 2008, Defendant had attempted to contact every former agent on the list of supervisory former agents complied by the Office of Chief Counsel. January 25, 2008 Evid. Hr’g Tr. at 27. He further testified that by January 25, 2008 Defendant had received certifications or verbal responses from 264 of the 291 former agents polled. Id. at 28, 31; see also Defendant’s Evid. Hr’g Ex. 6.
Inspector Kuhn also testified that it is the policy of the Secret Service to retain files and records related to the business of the Secret Service in the field or resident office when an agent leaves the agency. See January 10, 2008 Tr. at 135-36. However, he also testified that “some files are archived ... after a certain amount of time[ ]” in the Federal Records Center. Id. at 136-37. His knowledge that responsive documents could be stored at the Federal Records Center notwithstanding, Inspector Kuhn had no knowledge of whether the Secret Service attempted to search records at the Federal Records Center for documents responsive to Plaintiffs’ discovery requests. Id. at 137-38.
STANDARDS APPLICABLE TO THE DETERMINATION OF A MOTION FOR SANCTIONS PURSUANT TO RULE 37 Rule 37 of the Federal Rules of Civil Procedure provides, in pertinent part, that
[i]f a party ... fails to obey an order to provide ... discovery, ... the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
*31 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Fed.R.Civ.P. 37(b)(2)(A);32 see also Bonds v. District of Columbia, 93 F.3d 801, 807-08 (D.C.Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Law Office of Azita Mojarad v. Aguirre, No. CIV.A.05-0038, 2006 WL 785415, at *10 (D.D.C. March 27, 2006); Peterson v. Hantman, 227 F.R.D. 13, 15 (D.D.C.2005) (“The Federal Rules authorize a wide array of sanctions, including staying the proceedings pending compliance with a court order, taking certain facts as established, prohibiting a party from introducing certain matters into evidence, finding a party in contempt of court, and dismissing the action or any part thereof.”). 32 Rule 37(b)(2) was amended effective December 1,
2007. While the text of the rule as amended varies to some degree from the text quoted in the authorities cited herein, “[t]hese changes are intended to be stylistic only.” Fed.R.Civ.P. 37 advisory committee notes (2007 Amendment).
[1] The district court has broad discretion in managing discovery, and “[t]his deference [accorded by the circuit] extends to the district court’s imposition of discovery sanctions.” Flynn v. Dick Corp., 481 F.3d 824, 835 (D.C.Cir.2007) (citing Jankins v. TDC Mgmt. Corp., 21 F.3d 436, 445 (D.C.Cir.1994)); see also Bonds, 93 F.3d at 807 (“Under Rule 37, the district court has broad discretion to impose sanctions for discovery violations.”) (citation omitted); Mojarad, 2006 WL 785415, at *10 (the list of sanctions enumerated in Rule 37(b)(2)(A) is neither exhaustive nor mutually exclusive, and “the court may impose [more than one of the enumerated sanctions] at the same time[ ]”; “[t]he imposition of the number and type of sanctions employed under [Rule 37(b)(2)(A) ] is left to the discretion of the trial judge.”) (citations omitted); Bolger v. District of Columbia, 248 F.R.D. 339, 343 (D.D.C.2008); Henry v. Onsa, No. CIV.A.05-2406, 2008 WL 552627, at *2 (D.D.C. Feb. 27, 2008); Handy v. Shaw, Bransford, Veilleux & Roth, No. CIV.A.00-2336, 2006 WL 3791387, at *8 (D.D.C. Dec. 22, 2006)
17

Moore v. Chertoff, 255 F.R.D. 10 (2008)
(“Indeed, the ‘district court has been delegated a good deal of discretion in making discovery orders and enforcing them with sanctions[.]’ ”) (citation omitted); see also United States v. Proceeds of Drug Trafficking Transferred to Certain Foreign Bank Accounts, 252 F.R.D. 60, 62-63 (D.D.C.2008) (“Sanctions are integral to the operation of the judicial system [,]” and Rule 37 “allows the court to apply a variety of sanctions to any party in a case.”) (citations omitted).
[2] [3] [4] [5] However, the District of Columbia Circuit has held that
[t]he central requirement of Rule 37 is that “any sanction must be ‘just,’ ” ... which requires in cases involving severe sanctions that the district court consider whether lesser sanctions would be more appropriate for the particular violation.... The choice of sanction should be guided by the “concept of proportionality” between offense and sanction.... Particularly in the context of litigation-ending sanctions, we have insisted that “ ‘since our system favors the disposition of cases on the merits, dismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success’ or would obviously prove futile.” ... In determining whether a severe sanction is justified, the district court may consider the resulting prejudice to the other party, any prejudice to the judicial system, and the need to deter similar misconduct in the future. Bonds, 93 F.3d at 808 (citations omitted). Applying this standard, a judge of this court held that “any sanctions awarded must be proportional to the underlying offense.” Banks v. Office of the Senate Sergeant-At- *32 Arms, 241 F.R.D. 370, 372 (D.D.C.2007) (citing Bonds, 93 F.3d at 808); see also Rude v. Dancing Crab at Wash. Harbour, LP, 245 F.R.D. 18, 22 (D.D.C.2007) (“When the most severe sanctions, such as dismissal or default, are requested, the Court must determine whether lesser sanctions would be more appropriate.”) (citing Bonds, 93 F.3d at 808).
[6] In Bonds, the District of Columbia Circuit, in reversing the District Court’s grant of a preclusion sanction pursuant to Rule 37, held that “[i]n determining whether a severe sanction is justified, the district court may consider [1] the resulting prejudice to the other party, [2] any prejudice to the judicial system, and [3] the need to deter similar misconduct in the future.” Bonds, 93 F.3d at 808 (citation omitted).33 The Circuit further held that “[b]efore imposing [a broad preclusion sanction] ... the district court should consider a less drastic sanction in light of the three factors[.]” Id. at 809 (citation omitted).34

33 With respect to the third of these considerations, the Circuit observed that while “[t]he district court’s interest in deterrence is a legitimate one, ... sanctions based only on principles of deterrence ‘call for careful evaluation to ensure that the proper individuals are being sanctioned (or deterred) and that the sanctions or deterrent measures are not overly harsh.’ ” Id. (citations omitted). However, the sanctions for which the instant Memorandum Opinion provides are not based “only” on principles of deterrence, but instead, on considerations of all three of the considerations articulated by the Circuit.

34

In Bonds, the Circuit found that the sanction under

review effectively denied the defendant a trial on the

merits, a sanction which required that the district court

either “make a finding supported by the record that the

more severe sanction is necessary to avoid prejudice to

the plaintiffs or to the court’s calendar or to prevent a

benefit to the defendant, or-if the sanction is based only

on deterring future discovery misconduct-the more

severe sanction must be supported by a finding of

flagrant or egregious misconduct by the defendant.” Id.

However, while the sanction for which the instant

Memorandum Opinion provides is indeed a preclusion

sanction, it neither “approaches a default judgment”

(see id. at 808) nor denies Defendant the right to a trial

on the merits. See n. 4, supra.

[7] Moreover, instead of, or in addition to, the enumerated sanctions,
the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(b)(2)(C); see also DL v. District of Columbia, 251 F.R.D. 38, 49 (D.D.C.2008) (“This Court has previously observed that ‘the language of the Rule itself is mandatory, dictating that the Court must award expenses upon granting a motion to compel disclosure unless one of the specified bases for refusing to make such an award is found to exist.’ ”) (citation omitted).

DISCUSSION The undersigned, following a hearing, granted Plaintiffs’
18

Moore v. Chertoff, 255 F.R.D. 10 (2008)
Motion to Compel Defendant to Comply With His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents (Document No. 488, Part 1) and awarded Plaintiffs their costs, including reasonable attorneys’ fees, of moving to compel discovery; Defendant’s motion for reconsideration of the order granting the motion to compel (Document No. 520) has been denied. Memorandum Opinion and Order (Document No. 587). Accordingly, determination of the pending motion requires consideration solely of what sanction, if any, “in addition to” the award of costs, is warranted by the application of Rule 37(b)(2)(A). See Fed.R.Civ.P. 37(b)(2)(C).35 *33 The undersigned makes this determination in accordance with the methodology articulated by the District of Columbia Circuit, and upon consideration of each of the factors the Circuit directed the District Court to consider in determining whether “a severe sanction” is justified.36
35 See also January 10, 2008 Evid. Hr’g Tr. at 7-8 (the purpose of the evidentiary hearing would be to determine “what additional sanction should be entered because the violation [of the Federal Rules of Civil Procedure] has [previously] been established.”). Defendant states that “[t]he only issues now before the court are whether plaintiffs have proven by clear and convincing evidence that defendant failed to act in a reasonable manner with regard to plaintiffs’ 2006 discovery requests at issue and whether defendant has acted reasonably during the course of discovery, specifically concerning defendant’s response to the Court’s December 21, 2007 Order to produce miscellaneous, paper recommendation documents to plaintiffs.” Defendant’s Proposed Findings at 2. However, the undersigned finds that this assertion-like many others Defendant advanced during the proceedings with respect to the motion for sanctions-is a characterization of the record which is wholly devoid of a factual basis.

36

Bonds, 93 F.3d at 808. The Circuit did not define

“severe,” but appeared to suggest that a “broad

preclusion order” could “approach [ ] a default

judgment in its severity.” Id. Plaintiffs, by their motion,

did not request a default judgment, and this court has

not, by this Memorandum Opinion and accompanying

order, imposed one; nonetheless, given Defendant’s

concerns that the sanction sought by Plaintiffs is akin to

a default, (see nn. 3-4, supra ), the undersigned will

apply the most exacting standard which the Circuit has

articulated. Cf. Davis v. Auto Club Family Ins. Co., No.

CIV.A.07-8545, 2008 WL 5110619, at *1 (E.D.La.

December 2, 2008) (dismissal as a sanction for

violation of an order to provide discovery may be

ordered “only when the following conditions are met:

(1) the refusal to comply results from bad faith or

willfulness and is accompanied by delay or

contumacious conduct; (2) the violation is attributable to the client instead of the attorney; (3) the violating conduct substantially prejudices the other party; and (4) a less severe sanction would not achieve the same result.”) (citations omitted).
(1) Prejudice to Plaintiffs [8] The undersigned finds that the day for the court to consider the merits of this case has been delayed in large measure by the Defendant’s failure to provide discovery without the virtually continuous intervention of the court. Defendant’s contention that he “sought to mitigate any adverse impact of this relatively minor delay by attempting to work with plaintiffs to expeditiously retrieve the documents requested[ ]” (Defendant’s Opposition at 24), is, in this context, entirely unpersuasive. Defendant failed even to commence a reasonable search for the full extent of the documents responsive to Plaintiffs’ May and June, 2006 requests for production of documents until sixteen months after the requests were served, a delay which cannot fairly be characterized as “relatively minor[.]” Id. Plaintiffs’ moved to compel the production of documents after Defendant’s 30(b)(6) designee testified that Defendant did not search the records of SAICs outside of the District of Columbia, or the records of SAICs, Deputy Assistant Directors (DADs), Assistant Directors (ADs), the Deputy Director, or the Director based in Washington, D.C., for documents relating to Plaintiffs’ discriminatory promotion claims (see Plaintiffs’ Ex. 22 (Transcript of 30(b)(6) Deposition of Tracy Lawson) at 85-87, 95); Defendant neither offered evidence from which the court could infer that Ms. Lawson was mistaken, nor called any witnesses who credibly testified that at any time, Defendant reasonably searched for the full extent of the responsive documents. Thus, the undersigned cannot find that even at this late date, a reasonable search for the full extent of the responsive documents has been undertaken.
Defendant’s failure to timely search for and serve the documents responsive to Plaintiffs’ requests for production of documents-either in accordance with Rule 34 of the Federal Rules of Civil Procedure or in compliance with the court’s order compelling discovery-has prejudiced Plaintiffs’ ability to conduct meaningful discovery and to prepare to address the merits of their claims. See, e.g., Turner v. Clark County Sch. Dist., No. 2:07-CV-101, 2008 WL 5120544, at *3 (D.Nev. December 4, 2008). As a court addressing a comparable failure explained,
[t]o rectify the prejudice caused by
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Moore v. Chertoff, 255 F.R.D. 10 (2008)

[the party’s] failure to comply with the discovery order, the Court would be required to grant a further extension of the discovery and other pretrial deadlines which is contrary to public interest in the expeditious resolution of litigation and the court’s need to manage its dockets.

Id. (citations omitted). Additionally, Plaintiffs “have been ‘required to waste time, money, and effort in pursuit of cooperation’ that [Defendant] is obligated to provide under both the Federal Rules and the Court’s orders.” Gallina v. Wyandotte Police Dep’t, No. 4:07-CV-12640, 2008 WL 5090551, at *2 (E.D.Mich. November 26, 2008) (citation omitted).

Additionally, the undersigned finds that Defendant’s effort to dispute Plaintiffs’ need for the documents (see, e.g., Defendant’s Opposition at 11, 28-29) is of no moment. A party upon whom requests for production of documents are served is not at liberty to *34 withhold from production documents deemed to be of minimal

“evidentiary value” (see Defendant’s Proposed Findings ¶¶ 43-48, at 94). Defendant-like all litigants-had the opportunity to perfect his objections to Plaintiffs’ requests for production of documents in the manner prescribed by the Federal Rules of Civil Procedure, but failed to do so;37 his belated effort to dispute Plaintiffs’ need for the documents is, the undersigned finds, of no relevance to the court’s consideration of the issue of the prejudice to Plaintiffs caused by Defendant’s failure to timely search for and produce the full extent of the documents responsive to Plaintiffs’ requests for production.

37

See n. 17, supra.

Notably absent from Defendant’s Proposed Findings of Fact and Conclusions of Law is any meaningful dispute of the proposition that Plaintiffs are prejudiced by Defendant’s failure to comply with their Rule 34 obligation and the court’s order compelling discovery. Defendant suggests that Plaintiffs’ claim of prejudice “is premised on the assumption that there is a huge cache of responsive paper recommendation documents previously undisclosed by defendant that is essential to [P]laintiffs’ case.” Defendant’s Proposed Findings ¶ 34, at 90. Plaintiffs have not advanced such argument, and the court makes no such finding. More important, however, is that no authority supports the proposition that the volume of withheld documents is dispositive of the sanction which is warranted by the application of Rule 37; indeed, the 30-year-old decision on which Defendant relies for this

proposition does not concern Rule 34 requests for production of documents at all, and is limited to consideration of the adequacy of a search pursuant to a Freedom of Information Act request.38 38 Id. (citing Grolier, Inc. v. Federal Trade Comm’n, No.
CIV.A.76-1559, 1978 WL 1348 at *4 (D.D.C. Mar. 10, 1978)).
Defendant’s suggestion that Plaintiffs “cannot be prejudiced by the non-production of documents that do not exist” (Defendant’s Proposed Findings ¶ 36, at 91) is equally misplaced: since Defendant never offered evidence that he conducted a reasonable search for responsive documents, Defendant has no basis upon which to maintain that the requested documents “do not exist [.]” Moreover, Defendant’s contention that the requested documents “do not exist” is contradicted by the testimony of Defendant’s current employees: during the evidentiary hearing, Defendant made no effort to rebut Plaintiffs’ contention that “[d]uring the course of depositions in December, 2006, several former and current employees of Defendant testified to the existence of types of documents responsive to Plaintiffs’ discovery requests that had not been produced and in some instances, that Defendant had claimed do not exist.” See Plaintiffs’ Motion at 5 (citation omitted); see also Plaintiffs’ Reply at 1 (“The significance of these newly-produced, contemporaneous records is staggering.”). Defendant made no effort to rebut these contentions during the evidentiary hearing.
(2) Prejudice to the Judicial System [9] The gravamen of “prejudice to the judicial system” is that
counsel may not pick and choose when to comply with a court order depending on counsel’s unilaterally determined excuses or justifications not to comply with the order. The order is either obeyed or appealed. Nor should courts issue orders which they are unwilling to enforce. There is importance per se in not allowing a party to ignore orders-the litigation process would otherwise descend into chaos.
Ajaxo Inc. v. Bank of America Tech. & Operations, Inc.,
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Moore v. Chertoff, 255 F.R.D. 10 (2008)
No. CIV-S-07-0945, 2008 WL 5101451, at * 2 (E.D.Cal. December 2, 2008); see also Perez v. Berhanu, 2008 WL 4604065, at *3, 583 F.Supp.2d at 91 (D.D.C.2008) (sanctioned parties’ “disrespect for the Court” was demonstrated by their failure to respond to the opposing parties’ discovery requests, coupled with their disregard of the discovery deadline, failure to timely respond to the opposing parties’ motion for sanctions, and failure to appear at a scheduled status hearing).
*35 [10] The undersigned now finds, on the basis of the findings with respect to the evidence adduced at the evidentiary hearing, that Defendant has made a mockery of Rule 34, the case management orders of the court, the order granting Plaintiffs’ motion to compel, and the evidentiary hearing. Among these, the testimony of the witnesses Defendant offered as the most knowledgeable about Defendant’s efforts to reasonably search for and produce the documents responsive to Plaintiffs’ requests for production of documents stands as the most egregious. Not only did it become evident that no reasonable search for the documents responsive to Plaintiffs’ requests for production was ever conducted; in addition, the credibility of the witness who was tasked with the responsibility of validating the “searches” was thoroughly eviscerated.
Moreover, the court’s ability to conduct an orderly and efficient evidentiary hearing was further compromised by Defendant’s inability to call all of the witnesses he identified because of the decision of at least one of his witnesses to circulate an e-mail regarding the testimony of Inspector Hunnicutt to other witnesses whose names were included on Defendant’s witness list. The witness who did so, as well as those agents who read even some portion of the e-mail, were agents of one of the premiere federal law enforcement agencies, whose training includes preparation for court proceedings, and whose tasks include the protection of the President of the United States. Thus, the undersigned finds that the agents were well aware that the circulation of an article regarding the testimony of a witness who testified at the hearing to prospective witnesses for the same hearing would tend to obstruct the fact-finding process. The undersigned observes that Defendant’s counsel expressed her regret for this circumstance; however, the same counsel acknowledged that Defendant, as a consequence of the transmission of the summary of Inspector Hunnicutt’s testimony, was unable to call many of the witnesses he intended to call. The undersigned finds that the circulation of the article-in the manner in which daily e-mail quips are distributed in jest-prejudiced the judicial system.
The sole basis upon which Defendant submits that his actions have not prejudiced the judicial system is that “[t]here is no evidence that [D]efendant exercised bad

faith in filing or opposing any discovery motion throughout the history of this case.” Defendant’s Proposed Findings ¶ 49, at 97. However, it is settled that “[b]ad faith does not require actual ill will; substantial and

prejudicial obduracy may constitute bad faith.” Ajaxo, 2008 WL 5101451, at *2 (citation omitted); see also Henry, 2008 WL 552627, at *3 (the “multiple warnings” to the parties with respect to their repeated failures to comply with the rules and orders governing the conduct of discovery “compel the conclusion that [their] disregard

of the undersigned’s order compelling discovery was willful.”) (citations omitted). The undersigned finds that

the “substantial and prejudicial obduracy” which is evident from the consideration of the testimony of Defendant’s managers and agents virtually mandates a finding that Defendant’s noncompliance with the

applicable rules and orders was willful. Like the sanctioned parties in Ajaxo, Defendant in this action has effectively rewritten both Rule 34 and this court’s orders to justify his production of only those documents he was inclined to produce.39

39

See n. 15, supra.

(3) Need to Deter Similar Misconduct in the Future [11] In entering a default judgment as a Rule 37 sanction, another judge of this court observed that “[a] lesser sanction may also yield similar misconduct by other litigants by indicating that flagrant violations will yield only minor sanctions.” Perez, 2008 WL 4604065, at *3, 583 F.Supp.2d at 91. A finding “that there is no behavior to deter as [D]efendant’s actions are the kind of behavior contemplated by both the Court and the Federal Rules[ ]” (see Defendant’s Proposed Findings ¶ 54, at 99) would require that the court disregard the findings which the undersigned has already articulated with respect to (1) the willfulness of Defendant’s failure to reasonably search for and produce the documents *36 responsive to Plaintiffs’ requests for production; (2) the lack of credibility of the witnesses identified by Defendant as the most knowledgeable; and (3) the blatant disregard of witnesses whom Defendant identified as among those who would testify at the hearing of the protocols precluding the dissemination of a summary of the testimony of a witness who has testified at a proceeding to a witness in the same proceeding who has not yet testified. Moreover, such a finding would extend a virtual license to Defendant-in this and other litigation to which Defendant is a party-as well as to other litigants, to do likewise. See Perez, 2008 WL 4604065, at *3, 583 F.Supp.2d at 91. Indeed, the multiple lesser sanctions the court has previously imposed (see Joint Ex. 3) did not deter the discovery misconduct which
21

Moore v. Chertoff, 255 F.R.D. 10 (2008)
was the subject of the sixteen-day evidentiary hearing.
(4) Lesser Sanctions Would Not be More Appropriate [12] The undersigned finds that there is no basis in the record with respect to this action upon which to conclude that “lesser sanctions would be more appropriate.” See Rude, 245 F.R.D. at 22 (citing Bonds, 93 F.3d at 808). The prior orders compelling discovery, denying a motion for protective order precluding certain discovery, and awarding lesser sanctions (see Joint Ex. 3 at 2-5) have proven “ineffective or obviously futile[,]” given Defendant’s insistence (see Defendant’s Proposed Findings ¶¶ 54, 59, at 99, 101) that his actions “are the kind of behavior contemplated by both the Court and the Federal Rules[,]” and that “there is no basis for imposing any sanction.” Put another way, lesser corrective actions-the first of which was in the form of the August 3, 2000 Order compelling in part Defendant to provide discovery-have not deterred Defendant from his disregard of his discovery obligations. See, e.g., Webb v. District of Columbia, 189 F.R.D. 180, 184 (D.D.C.1999); cf. Gallina, 2008 WL 5090551, at *3 (party’s “repeated violations of the Court’s rules and orders, the dilatory tactics with respect to discovery, and the overall lack of meaningful participation in effectively adjudicating this case[ ]” warrants finding “that dismissal is the only appropriate sanction.”).
Consideration of what “lesser sanctions” might be appropriate has been further hindered by Defendant’s refusal to even propose any until counsel’s closing argument following the sixteen-day evidentiary hearing. During the May 29, 2008 closing arguments-eight moths after Plaintiffs filed their motion to compel-Defendant proposed re-opening discovery; allowing Plaintiffs to supplement their motion for class certification; and an equal division of costs for the expense of adjudication of the instant motion. See May 29, 2008 Tr. at 89-90. However, the undersigned finds that Defendant’s proposal is disingenuous in that it is not a sanction tailored in any meaningful way to mitigate the prejudice suffered by the Plaintiffs, the prejudice to the judicial system and the need to deter similar misconduct in the future. See Webb, 189 F.R.D. at 192 (lesser sanction not tailored to address prejudice to opposing parties, prejudice to the court, and need for deterrence is rejected as inadequate). In any event, given Defendant’s continued delay and obfuscation, “there is no reason to believe that [Defendant] will be responsive to any future orders.” Perez, 2008 WL 4604065, at *3, 583 F.Supp.2d at 91.

CONCLUSION On the basis of all of the findings articulated herein, the undersigned finds that the preclusion sanction for which the instant Memorandum Opinion provides is “just,” and is “guided by the ‘concept of proportionality’ between offense and sanction.” See Bonds, 93 F.3d at 808 (citations omitted). While the sanction is not “litigation-ending[,]” the undersigned has nonetheless considered the extent to which “ ‘less dire alternatives have been explored without success’ or would obviously prove futile[ ]” (see id.), and, for the reasons set forth herein, answered the inquiry in the affirmative. Accordingly, Plaintiffs’ Motion for Sanctions (Document No. 488, Part 2) is granted, and the requested preclusion sanction imposed, by the Order filed contemporaneously with this Memorandum Opinion.40 40 The undersigned makes no findings herein regarding
the court’s inherent authority to impose the sanctions requested by Plaintiffs’. However, as the D.C. Court of Appeals and this district court has held “the appropriate standard under either the rules of civil procedure or the Court’s inherent powers is essentially the same.” Webb, 189 F.R.D. at 184.
*37 ORDER
For the reasons set forth in the Memorandum Opinion filed, on this date, it is, this 17th day of December, 2008,
ORDERED that Plaintiffs’ Motion for Sanctions (Document No. 488, Part 2) is GRANTED, and that the following sanctions are imposed pursuant to Rule 37 of the Federal Rules of Civil Procedure:
(1) once Plaintiffs have established a prima facie case of discriminatory non-promotion, Defendant may not defend any such prima facie case; and
(2) Defendant shall pay Plaintiffs their costs, including reasonable attorneys’ fees, of drafting, filing and litigating the Motion for Sanctions.

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Moore v. Chertoff, 255 F.R.D. 10 (2008) 23

 
 Moore v. Napolitano

2009 WL 2450280 Only the Westlaw citation is currently available.
United States District Court, District of Columbia.
Reginald MOORE, et al., Plaintiffs, v.
Janet NAPOLITANO, Defendant.
Civil Action No. 00–953 (RWR/DAR). | Aug. 7, 2009.
Attorneys and Law Firms
Jennifer I. Klar, John Peter Relman, Megan Moran–Gates, Relman & Associates, PLLC, Washington , Dc, Thomas John Widor, E. Desmond Hogan, Jennifer Wigman Feinberg, Hogan & Hartson LLP, Washington, DC, for Plaintiffs.
Benton Gregory Peterson, Assistant United States Attorney, Washington, DC, Marina Utgoff Braswell, Harry B. Roback, U.S. Attorneys Office for the District Of Columbia, Washington, DC, Edith Margeurita Shine, United States Attorney’s Office, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
*1 Plaintiffs, current and former African–American special agents of the United States Secret Service, brought this employment discrimination action individually and on behalf of a putative class of African–American special agents against the Secretary of the Department of Homeland Security. The defendant objects to two of the magistrate judge’s discovery orders—one sanctioning the defendant for failing to fully respond to one of the plaintiffs’ interrogatories by a court-ordered deadline, and one granting the plaintiffs’ motion to compel electronic searches and sanctioning the defendant by awarding plaintiffs the costs of the motion. Because the orders reflect no error, but the defendant has shown reason to modify two sanctions issued by the magistrate judge, the defendant’s objections to her rulings will be overruled except as to the dates from which the preclusion and payment sanctions are measured.

BACKGROUND
The defendant has filed objections to two rulings issued by the magistrate judge: (1) an April 26, 2007 sanction order precluding the defendant from introducing into evidence at any stage, any information responsive to one of plaintiffs’ interrogatories that was not provided to the plaintiffs by January 30, 2007, and (2) a September 13, 2007 order granting the plaintiffs’ motion to compel the defendant to search for and produce responsive e-mails and other electronically stored documents (collectively referred to only as “electronic documents”).
DISCUSSION
Federal Rule of Civil Procedure 72(a) and Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge’s decision in a discovery dispute. “On review, the magistrate judge’s decision is entitled to great deference unless it is clearly erroneous or contrary to law, that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed.” Moore v. Chertoff, 577 F.Supp.2d 165, 167 (D.D.C.2008) (internal quotations and citations omitted); see also Graham v. Mukasey, 247 F.R.D. 205, 207 (D.D.C.2008); LCvR 72.2(c) (“Upon consideration of objections filed ..., a district judge may modify or set aside any portion of a magistrate judge’s order under this Rule found to be clearly erroneous or contrary to law.”).
I. SANCTION PRECLUDING USE OF INFORMATION RESPONSIVE TO INTERROGATORY 4(c) On December 14, 2006, the magistrate judge granted the plaintiffs’ motion to compel and ordered the defendant to fully respond to plaintiffs’ Interrogatory 4(c) by January 19, 2007.1 On February 1, 2007, the plaintiffs filed a motion to sanction the defendant under Rule 37(b)(2)(B) for violating the court’s December 14 order, arguing that the defendant had failed to fully respond to Interrogatory 4(c) by the court-ordered deadline and unilaterally determined that it would continue to produce documents on a rolling basis without seeking compromise from the plaintiffs or relief from the court. (See Pls.’ Mot. for Sanction of Def. for Failure to Comply with Ct. Order
1

Moore v. Napolitano

(“Pls.’ Sanction Mot.”) at 2.) In an April 26, 2007 bench ruling, the magistrate judge granted the plaintiffs’ motion for a sanction and precluded the defendant from introducing “as evidence, for whatever purpose and at any stage of discovery or at trial, ... any information that is responsive to Interrogatory 4(c) that was not provided to [the] Plaintiffs on or before January 30, 2007.” (Pls.’ Sanction Mot. at 3.)

1

The defendant moved for reconsideration of the

magistrate judge’s order granting the plaintiffs’ motion

to compel, arguing that the magistrate judge erred by

not sustaining some of the defendant’s objections to

Interrogatory 4(c) and by imposing the January 19,

2007 deadline for production despite the defendant’s

showing that it would need additional time beyond

January 19 to fully respond. On May 8, 2007, the

defendant’s motion for reconsideration was denied and

the defendant was ordered to comply with the

magistrate judge’s order within thirty days of the May 8

order.

*2 The defendant has filed objections to the magistrate judge’s sanction order on several grounds. She contends that the magistrate judge erred in issuing a “severe” preclusionary sanction when the defendant had made substantial efforts to comply with the January 19 deadline, and claims that she was permitted to withhold certain documents that were the subject of her motion for reconsideration of the magistrate judge’s order granting the plaintiffs’ motion to compel. (See Def.’s Obj’ns to Sanction Order at 12, 17–18, 20; Defs.’ Reply in Support of Objn’s to Sanction Order at 11–12.) These arguments lack merit. Absent a court order staying enforcement of a magistrate judge’s discovery order, a party must comply with the magistrate judge’s order, even if the order is subject to review by the district court. Cf. Ilan–Gat Eng’rs, Ltd. v. Antigua Int’l Bank, 659 F.2d 234, 239 (D.C.Cir.1981) (concluding that a magistrate judge may sanction a party who does not comply with a discovery order regardless of any challenge to the court’s subject matter jurisdiction over the complaint). A party is not free to unilaterally alter the method of compliance mandated by such an order. A preclusion sanction issued for failure to comply with a discovery production deadline set in a magistrate judge’s order far from being severe is a wholly unexceptional remedy that is contemplated in the federal rules. See Fed.R.Civ.P. 37(b) (2)(A)(ii), (d)(3).
The defendant also argues that the magistrate judge erred in sanctioning the defendant on April 26 for failing to produce documents that the district court on May 8 gave the defendant an additional thirty days to produce. A magistrate judge cannot err in April by ruling in a way that differs from a district court order yet to be issued in

May. Nevertheless, because the May 8 order later extended the defendant’s deadline to produce documents responsive to Interrogatory 4(c) from January 19, 2007 to thirty days from the May 8 order denying the defendant’s motion for reconsideration, the magistrate judge’s sanction order will be modified to preclude the introduction into evidence of any documents responsive to Interrogatory 4(c) that were not produced to the plaintiffs within thirty days after the May 8, 2007 order denying the defendant’s motion for reconsideration. The remaining objections to the magistrate judge’s sanction order will be overruled.
II. ORDER GRANTING THE PLAINTIFFS’ MOTION TO COMPEL Three months after the close of discovery, the plaintiffs filed a motion to
compel [the defendant] to satisfy [her] discovery obligation to search and produce responsive e-mails and electronic documents, and to do so pursuant to a transparent process approved by the Court that includes, but is not limited to, identifying where Defendant must conduct this search, whose e-mails and electronic documents must be searched, and what search terms should be employed to conduct these searches.
(Pls.’ Mot. to Compel Def. to Comply with [Her] Discovery Obligation to Search & Produce Responsive E-mails and Electronic Documents (“Pls.’ Mot. to Compel”) at 4.) The plaintiffs alleged that throughout discovery, the defendant lodged boilerplate objections to the plaintiffs’ document requests, but then continued to produce documents responsive to many of the plaintiffs’ requests. The plaintiffs further alleged that while the defendant was producing responses, she did not inform the plaintiffs that she was not producing all documents responsive to the plaintiffs’ requests or that she was unilaterally limiting her search efforts, including by not searching for electronic documents. After receiving a letter from the defendant dated June 5, 2007, in which the defendant explained what limited efforts it had made to search for responsive electronic documents for some of the plaintiffs’ document requests, the plaintiffs filed their motion to compel the defendant’s compliance with her discovery obligations under Rules 26 and 34.
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Moore v. Napolitano
*3 After a hearing on the motion, the magistrate judge granted the plaintiffs’ motion to compel and ordered the defendant “to do what the Federal Rules of Civil Procedure already require in no uncertain terms, and that is to search for the responsive documents and produce them.” (Sept. 13, 2007 Hr’g Tr. 94:18–22.) She then ordered the parties to file a joint status report after defense counsel and “anyone else who need[ed] to be involved in the process ha [d] made a good faith effort to determine what [was] required to comply with the federal rules.” (Id. at 95:3–6.) In addition, the magistrate judge sanctioned the defendant by ordering her to pay “the Plaintiffs’ costs, including reasonable attorney’s fees, of moving to compel discovery” within thirty days of the date of her order. (Id. at 97:5–10.)
The defendant has filed objections to the magistrate judge’s order granting the plaintiffs’ motion to compel, alleging that the magistrate judge erred by not rejecting the plaintiffs’ motion as untimely, by not considering each of the plaintiffs’ document requests and the defendant’s corresponding objections, and by failing to sustain the defendant’s undue burden claim. In addition, the defendant contends that the magistrate judge abused her discretion by requiring the defendant to pay plaintiffs’ costs of bringing their motion within thirty days of her order because the defendant’s opposition to the plaintiffs’ motion was justified and because the sanction order lacked a date by which the plaintiffs were to submit their costs to the defendant.
A. Order compelling discovery
1. Timeliness The defendant contends that the magistrate judge’s order granting the plaintiffs’ motion to compel should be vacated because the magistrate judge failed to rule on the timeliness of the plaintiffs’ motion and because the motion to compel was untimely. Although the magistrate judge did not expressly rule on the timeliness of the plaintiffs’ motion to compel, timeliness was an issue clearly raised in the defendant’s opposition to the plaintiffs’ motion to compel and an issue to which the plaintiffs devoted a portion of their reply. The magistrate judge stated on the record that she reviewed the parties’ filings before the hearing on the plaintiffs’ motion to compel and her ruling from the bench on the merits of the plaintiffs’ motion. (See Sept. 13, 2007 Hr’g Tr. 88:9–18.) Thus, it is evident that the magistrate judge, after having the opportunity to review the defendant’s timeliness challenge, found the plaintiffs’ motion to be timely because she proceeded to hear arguments and rule on the merits of the plaintiffs’ motion.

Moreover, the defendant has not shown the magistrate judge’s conclusion that the plaintiffs’ motion was timely to be in error. In their motion, the plaintiffs alleged that their concern that the defendant “had not searched for all responsive e-mails arose” in December 2006 when the defendant produced “a few responsive e-mails” that “should have been included in [the defendant’s] production several months earlier.” (Pls.’ Mot. to Compel at 2.) The plaintiffs also alleged that despite “repeated inquiries into the matter,” it was not until a June 5, 2007 letter that the defendant “admitted, for the first time, that [she had] not complied with [her] obligations under Rules 26 and 34 of the Federal Rules of Civil Procedure to search for and produce all responsive electronic documents.” (Id. at 2–3.)
*4 The defendant alleges that the plaintiffs were on notice from the defendant’s response to the plaintiffs’ first document requests in February 2005 that the defendant was not responding in full to their document requests because the defendant lodged specific objections to many requests. (Def.’s Obj’ns to Order Granting Mot. to Compel at 18.) In addition, the defendant contends that the plaintiffs’ previous filing of a motion to compel an electronic search in response to plaintiffs’ document request number 10 in June 2005 is evidence that plaintiffs knew the defendant was not searching for all electronic documents at that time. (Id. at 18–19.) The defendant argues that “certainly by June 2005 plaintiffs knew that defendant was not conducting electronic searches in response to every document production request plaintiffs had served on [the] defendant[,]” and “[a]t that time[,] plaintiffs should have raised all issues concerning electronic searches for document requests served on defendant by that date.” (Id. at 19.)
With respect to the defendant’s contention that her objections to the plaintiffs’ first document requests put the plaintiff on notice that it was not conducting electronic searches for responsive documents, the magistrate judge properly rejected the defendant’s general objections as insufficient to excuse the defendant from her obligation to conduct electronic searches. In response to many of the plaintiffs’ document requests the defendant raised objections utilizing boilerplate language from Rule 26, stating that a request was overly broad, was unduly burdensome, would result in needless duplication, or was not reasonably calculated to lead to the discovery of admissible evidence. Nonetheless, the defendant continued to produce documents in response to many of the plaintiffs’ requests.
Courts entertain overbreadth and undue burden objections
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Moore v. Napolitano
only when the responding party demonstrates how a request is overly broad or unduly burdensome. See Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 10 (D.D.C.2007); United States ex rel Fisher v. Network Software Assocs., 217 F.R.D. 240, 246 (D.D.C.2003). A responding party “cannot ‘merely state, in conclusory fashion,’ “ that a request is overbroad or unduly burdensome. Fisher, 217 F.R.D. at 246 (quoting Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181, 191 (D.D.C.1998)). When a responding party asserts a conclusory overbreath or undue burden objection and then continues to produce documents in response to a request, the opposing party is left “wondering what documents are being produced and what are being withheld.” Athridge, 184 F.R.D. at 190. The objection “serves only to obscure potentially discoverable information and provides no mechanism for either plaintiffs or the [c]ourt to review a defendant’s decisions.” Id . Thus, “[s]uch an objection is really no objection at all as it does not address why potentially responsive documents are being withheld.” Id.
*5 Here, to support her claim that the plaintiffs’ motion is untimely, the defendant has identified only general objections such as overbreath, undue burden, and needless duplication that were wholly unsupported with any detail reflecting as grounds that the request sought a response that included searches for electronic documents. Accordingly, the defendant has not shown it was error for the magistrate judge to reject the defendant’s contention that these objections notified the plaintiffs that the defendant was unilaterally deciding to not search for electronic documents or to limit her searches for electronic documents. Similarly, to the extent the defendant relies on the plaintiffs’ prior motion to compel where the plaintiffs challenged the defendant’s efforts to search for electronic documents in response to one particular document request, this dispute over a single request does not demonstrate that the plaintiffs had knowledge of the defendant’s widespread failure to search for responsive electronic documents. Accordingly, the defendant has not shown that the magistrate judge’s decision to deem the plaintiffs’ motion timely, as evidenced by the magistrate judge’s ruling on merits, was clearly erroneous.
2. Consideration of each discovery request and corresponding objections The defendant contends the magistrate judge “clearly erred in not considering each of plaintiffs’ document requests, and all of the defendant’s specific objections to those requests, and separately ruling on all of the objections raised” before setting aside all of the defendant’s objections to the plaintiffs’ document

requests. (Def.’s Obj’ns to Order Granting Mot. to Compel at 26.) As an example of the magistrate judge’s purported error, the defendant contends that the magistrate judge set aside all of the defendant’s relevance objections challenging whether the kind of information sought in a request was “ ‘relevant to a claim or defense of any party,’ “ even though the plaintiffs conceded at the hearing they were not bringing their motion to compel to challenge the defendant’s relevance objections. (Id. at 24.) While there could be merit in the defendant’s argument that it is error for an order to set aside all of the defendants’ objections in response to a motion to compel that did not even challenge all of the defendant’s objections, the defendant has not established the magistrate judge’s ruling actually did set aside of all of the defendant’s objections.
As is discussed above, in granting the plaintiffs’ motion to compel, the magistrate judge clearly disposed of the objections that the defendant contended relieved the defendant of her obligation to search for electronic documents in whole or in part. However, there is nothing in the magistrate judge’s bench ruling that suggests the magistrate judge sua sponte expanded the scope of the plaintiffs’ motion and overruled objections that went unchallenged by the plaintiffs’ motion. While the plaintiffs’ motion applies to all document requests, it does not appear to raise an untimely challenge to every objection raised in response to their requests. As the defendant points out, the plaintiffs expressly conceded as much at the hearing with respect to the defendant’s relevance objections. (See Sept. 13, 2007 Hr’g Tr. 38:6–13.) Although the order granting the plaintiffs’ motion to compel broadly ordered “the Defendant to do what the Federal Rules of Civil Procedure already require in no uncertain terms, and that is to search for the responsive documents and produce them” (id. at 94:18–22), the magistrate judge explained she expressly limited her ruling “to the discovery which is the subject of the motion[.]” (Id. at 90:18–25.) In light of this limiting language, the order granting the plaintiffs’ motion to compel will not be construed as setting aside all of the defendant’s objections to the plaintiffs’ document requests.
*6 Admittedly, while the magistrate judge’s found that “the parameters of the [plaintiffs’] motion [were] clear[,]” (id. at 89:19–20), it is not readily apparent to this court from the plaintiffs’ motion or the magistrate judge’s order which objections were outside the scope of the plaintiffs’ motion and the magistrate judge’s ruling.2 It is a reasonable inference, however, that the magistrate judge envisioned that any disagreement between the parties as to the scope of her order would be addressed first by
4

Moore v. Napolitano

counsel during their communications regarding search parameters. The magistrate judge’s choice to provide a

broad order requiring the defendant to comply with her obligation to search for and produce responsive electronic

documents and then ordering the parties to confer and file a joint status report explaining how the defendant would comply with her obligation was well within the magistrate judge’s discretion to resolve discovery disputes. Her

course of action afforded the defendant the opportunity to discuss with the plaintiffs the scope of the relief ordered,

including how objections not challenged by the plaintiffs’ motion affected the defendant’s obligation to search for electronic documents, and to attempt to resolve disputes on the scope of the defendant’s obligation between the

parties themselves first so as not to encumber judicial resources. The defendant was free to seek clarification of her obligation either through the ordered joint status report or by appropriate motion. The defendant, by failing seek appropriate clarification before the magistrate judge through the process she provided or otherwise, has failed

to develop a record before the magistrate judge to support the defendant’s assertion that the magistrate judge

actually did overrule all of the defendant’s objections to the plaintiffs’ documents requests. Thus, the defendant has not shown the magistrate judge’s ruling was clearly erroneous for doing so, and the defendant’s objection to

the magistrate judge’s failure to specifically consider each discovery request and corresponding objection is overruled.

2

Nor is it clear what effect the magistrate judge’s ruling

has on previous agreements reached by the parties with

respect to particular document requests.

3. Undue burden The defendant alleges that the magistrate judge erred by not sustaining her claim of undue burden that would be caused by granting the plaintiffs’ motion. The defendant contends that many of plaintiffs’ requests were overbroad because they sought “all documents that ‘reflect, record or relate in way’ to a particular subject matter.” (Def.’s Obj’ns to Order Granting Mot. to Compel at 28 (quoting language from Docket No. 462, Exh. 2).) The defendant alleges this “tremendously overbroad” language would “require [the] defendant to perform electronic searches for all possible key words related to the 145 document requests for numerous current and former Special Agents and Supervisory Special Agents.” (Id. at 29.) The defendant contends it submitted “unrebutted declarations” explaining the undue burden that would be placed “on the Secret Service’s ability to fulfill its core mission if the broad searches contemplated by the plaintiffs’ requests

were required.” (Id. at 27 (citing Def.’s Opp’n to Pls.’ Mot. to Compel, Exs. 13 (Simms Decl.), 14 (Pupillo Decl.)).)
*7 The magistrate judge, while recognizing that a district court in another case deemed certain requests seeking documents which “ ‘relate to’ anything regarding certain pay amendments [as] overbroad,” held that the plaintiffs’ requests in the present case are not overbroad as a matter of law simply for utilizing such language. Instead, the magistrate judge found that the defendant’s overbreadth objections were unwarranted in this action. In rejecting the defendant’s claim, the magistrate judge found the declarations explaining the burden of producing the discovery sought were “largely conclusory with respect to the harm that would be wrought or the interference with other Agency operations which would be occasioned by a search” because the defendant’s representation of the search required came “in the absence of any real effort to determine what documents exist that are responsive to the Plaintiffs’ discovery requests.” (Sept. 13, 2007 Hr’g Tr. 92:6–17.)
The defendant has provided no authority suggesting that as a matter of law, the plaintiffs’ use of broad language in their documents requests insulates the defendant from providing responsive electronic documents. Contrary to the defendant’s assertion that the plaintiffs’ motion and the magistrate judge’s order mandate the defendant to undertake tremendously burdensome searches “for all possible key words related to the [plaintiffs’] 145 document requests,” the magistrate judge’s order concludes only that the defendant must “comply with its [sic] obligation under the Federal Rules” to search for and produce the documents responsive to the plaintiffs’ requests. The magistrate judge’s ruling did not specify precisely how the defendant had to fulfill her obligation to search for and produce electronic documents. Instead, it directed the parties to confer and file a joint status report regarding how much time the defendant would need to produce documents after determining what efforts would be needed to comply with the court’s ruling. The plaintiffs’ motion to compel and subsequent filings repeatedly indicate a willingness to work with the defendant and the court to develop narrow search parameters that would fulfill the defendant’s discovery obligations while minimizing the burden to the defendant. (Pls.’ Mot. to Compel at 5; Pls.’ Reply in Support of Their Mot. to Compel at 10–11, 14–15; Pls.’ Opp’n to Def.’s Obj’ns to Order Granting Mot. to Compel at 27.) Given the magistrate judge’s wide discretion to fashion appropriate relief, it was not clearly erroneous to reject the defendant’s highly speculative claim of undue burden resulting from the plaintiffs’ use of broad wording when
5

Moore v. Napolitano
the defendant was afforded an opportunity to work with the plaintiffs to focus the defendant’s search efforts and minimize any potential burden. The defendant has not shown error in the magistrate judge’s rejection of the claim that the discovery sought by the plaintiffs’ motion to compel was so overbroad that it would be unduly burdensome.
*8 The defendant contends that the magistrate judge should have sustained the undue burden claim because the plaintiffs’ motion would require the defendant to conduct keyword searches for electronic documents where it is clear that no responsive documents exist in any form for a particular request or where the information sought by a request does not implicate electronic searches. However, the magistrate judge’s order requires only that the defendant comply with her obligation under the federal rules. The federal rules certainly obligate the defendant at least to consider whether responsive electronic documents may exist for a particular document request. The magistrate judge’s order does not require the defendant to undertake a futile search, though, where the defendant determines that no documents could exist in any form or determines that no electronic documents could exist that are responsive to the plaintiffs’ requests after making a good faith reasonable effort to determine whether any documents could exist in any form that are responsive to a particular request. Thus, the defendant’s objections arguing that the magistrate judge’s ruling improperly requires her to conduct searches for requests that have no responsive documents or do not implicate electronic documents lack merit and will be overruled.
Finally, the defendant contends that the magistrate judge erred in not concluding that electronic searches would result in “needless duplication” because the defendant has already produced over 12,700 e-mails to the plaintiffs and electronic searches would be an undue burden because electronic searches are likely to “result in many instances of duplication of what has already been produced.” (Def.’s Obj’ns to Order Granting Mot. to Compel at 32.) As the magistrate judge observed, the defendant presented no evidence in support of her claim demonstrating that she made “any real effort to determine what documents exist that are responsive to the Plaintiffs’ discovery requests.” (Sept. 13, 2007 Hr’g Tr. 92:16–17.) Although, in all likelihood, the electronic searches sought may result in some duplication, having failed to adequately explain what responsive electronic documents may exist that have not been produced to the plaintiffs, the defendant has not shown that any duplication arising from already-produced e-mails would be “needless.”3 The defendant has not shown the magistrate judge erred in rejecting her claim that the already-produced e-mails were sufficient to

satisfy the defendant’s duty to search for and produce electronic documents. Accordingly, because the defendant has not shown that the magistrate judge erred in concluding that the plaintiffs’ motion to compel would not cause an undue burden on the defendant, the defendant’s objections to the magistrate judge’s rejection of her undue burden claim will be overruled.

3

Moreover, the defendant could use the meet-and-confer

process regarding search parameters to assess whether

certain requests were sufficiently satisfied by

already-produced documents.

B. Sanction The defendant alleges that the magistrate judge’s imposition of a sanction requiring the defendant to pay to the plaintiffs the fees and costs of bringing their motion to

compel within thirty days of her order was erroneous because the defendant raised legitimate objections to the plaintiffs’ discovery requests and because the sanction award did not set a date by which the plaintiffs had to provide the defendant with an itemization of their fees and costs. Under Rule 37(a), a court must award the

moving party “reasonable expenses incurred in making the motion” to compel unless (1) the movant filed the motion before making a good faith effort to resolve the dispute without court action; (2) “the opposing party’s nondisclosure, response, or objection was substantially justified;” or (3) “other circumstances making an award of

expenses unjust.” Fed.R.Civ.P. 37(a)(5). For the reasons discussed above, the defendant has not shown that her failure to conduct electronic searches for responsive documents was substantially justified or that any other circumstances make the sanction imposed unjust.4 With respect to the timing of payment, the defendant’s

objection to the magistrate judge’s order requiring payment within thirty days of the order regardless of when the plaintiffs submit their itemization to the defendant will be sustained in part. To the extent that payment has not yet been made, the magistrate judge’s order will be modified to require payment within thirty

days of the plaintiffs’ service of their itemization of the fees and costs associated with bringing their motion to compel. The defendant’s objection to the sanction award is overruled in all other respects.

4

The defendant did not object to the award on the basis

that the plaintiffs filed their motion before attempting in

good faith to resolve this dispute.

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Moore v. Napolitano
CONCLUSION AND ORDER
*9 Because under the court’s May 8, 2007 order, the defendant was afforded additional time to produce documents in response to the plaintiffs’ Interrogatory 4(c) that were the subject of the April 26, 2007 preclusion sanction issued by the magistrate judge, the sanction order will be modified to bar the use of documents produced out of time under the May 8 order. Because the defendant has not shown the magistrate judge’s granting of the plaintiffs’ motion to compel searches for electronic documents to be erroneous and has not shown its position on the plaintiffs’ motion to be substantially justified, the defendant’s objections to the order granting the plaintiffs’ motion to compel and imposing a monetary sanction will be overruled. The defendant’s objection to the sanction order’s failure to ensure the defendant is given a reasonable time period between the plaintiffs’ submission of costs and the time for payment will be sustained. Accordingly, it is hereby
ORDERED that the defendant’s objections [441] to the

magistrate judge’s oral ruling on plaintiffs’ motion for sanctions be, and hereby are, OVERRULED IN PART and SUSTAINED IN PART. The defendant is precluded from introducing as evidence in any stage of this litigation any information responsive to plaintiffs’ Interrogatory 4(c) that was not timely produced to plaintiffs within thirty days of the court’s May 8, 2007 order. The defendant’s objections are overruled in all other respects. It is further
ORDERED that the defendant’s objections [473] to the magistrate judge’s oral ruling on plaintiffs’ motion to compel an electronic search be, and hereby are, OVERRULED IN PART and SUSTAINED IN PART. The defendant is ordered to pay plaintiffs’ costs of moving to compel within thirty days of receiving an itemization of plaintiffs’ costs. The defendant’s objections are overruled in all other respects.

7

 
 Moore v. Napolitano, 723 F.Supp.2d 167 (2010)

723 F.Supp.2d 167 United States District Court,
District of Columbia.
Reginald MOORE, et al., Plaintiffs, v.
Janet NAPOLITANO, Defendant.
Civil Action No. 00-953 (RWR/DAR). | July 15, 2010.
Synopsis Background: African-American current and former special agents of the United States Secret Service brought employment discrimination action individually and on behalf of a putative class of African-American special agents against the Secretary of the Department of Homeland Security (DHS). Secretary filed objections to sanctions imposed by magistrate judge for Secretary’s discovery violation or violation of the order compelling her to conduct a reasonable search for and produce responsive documents.
[Holding:] The District Court, Richard W. Roberts, J., held that order precluding Secretary from offering any legitimate, nondiscriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named Department employees was a just and proportional sanction to remedy the harms caused by Secretary’s violation of discovery order.
Objections overruled.
Attorneys and Law Firms
*169 Jennifer I. Klar, Relman, Dane & Colfax, PLLC, Thomas John Widor, E. Desmond Hogan, Hogan Lovells US LLP, John Peter Relman, Megan Moran-Gates, Relman, Dane & Colfax, PLLC, Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, Harry B. Roback, US Attorneys Office for the District of Columbia, Benton Gregory Peterson, Edith Margeurita Shine, Assistant United States Attorney, Washington, DC, for Defendant.
Opinion

MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Plaintiffs, African-American current and former special agents of the United States Secret Service, brought this employment discrimination action individually and on behalf of a putative class of African-American special agents against the Secretary of the Department of Homeland Security. The defendant objects to the magistrate judge’s imposition of sanctions that were imposed under Federal Rule of Civil Procedure 37 after the magistrate judge granted a motion to compel a reasonable search for paper documents responsive to the plaintiffs’ document requests and after the defendant violated the compulsion order. The defendant has not shown that the magistrate judge erred in imposing sanctions under Rule 37 for the defendant’s discovery violation or violation of the order. The preclusion sanction, though, will be construed to preclude the defendant from offering any legitimate, nondiscriminatory reason for a nonpromotion in response to any prima facie case of disparate treatment discrimination against the individual named plaintiffs, but not otherwise preclude the defendant from defending the case.
BACKGROUND
On October 29, 2007, after the defendant’s Rule 30(b)(6) designee testified that the Secret Service had not searched the records of any decisionmaker in response to the plaintiffs’ discovery requests served over a year earlier, the plaintiffs filed a motion for sanctions and to compel the defendant to comply with her discovery obligation “to conduct a reasonable search for and to produce all documents responsive to [the plaintiffs’] requests for production, including ‘print and save’ e-mails, ‘contemporaneous notes,’ and other documents ‘regarding the actual substantive promotion[ ] decisions made by the Secret Service supervisors and managers that adversely affected the Plaintiffs and the [putative] class.’ ” Moore v. Chertoff, 255 F.R.D. 10, 13 (D.D.C.2008) (quoting Pls.’ Mot. to Compel a Reasonable Search (“Pls.’ Mot. to Compel”) at 1-2, 15-18). The document requests at issue included a request by the plaintiffs served on May 23, 2006 seeking “[a]ll documents, ... whether stored electronically or in hard copy, that contain information on
1

Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
the selection of” Special Agents for promotion to the relevant positions. (Pls.’ Mot. to Compel at 3.) Plaintiffs also served on June 15, 2006 a document request, seeking all documents related “to the bid and selection process for each competitive promotion” *170 sought by the individual named plaintiffs and all documents “provided to or reviewed by individuals who” made the promotions decisions for each position for which the individual named plaintiffs applied. (See id. at 4 ¶¶ 5, 8.) The plaintiffs also sought a preclusion sanction that would prevent the defendant from defending against the plaintiffs’ individual and class action prima facie cases of discriminatory nonpromotion. (See id. at 20.) On December 21, 2007, the magistrate judge granted the plaintiffs’ motion to compel the defendant to conduct a reasonable search for responsive paper documents, ordered production of the documents by January 7, 2008, and ordered the defendant as a partial sanction to pay the plaintiffs’ costs, including reasonable attorneys’ fees, of moving to compel such discovery. She vowed a further hearing for the purpose of determining any additional appropriate sanction for the defendant’s discovery violation. Moore, 255 F.R.D. at 14. The magistrate judge held an evidentiary hearing at which, though, the plaintiffs also vowed “to ‘demonstrate through live testimony ... the egregiousness of [the] Defendant’s violation” and that the plaintiffs never received the responsive documents, and the defendant also vowed to show “absolute compliance” with the December 21, 2007 order. Id. at 16. (See also Def.’s Proposed Findings of Fact [Docket # 571] at 2 (acknowledging that defendant’s compliance with the December 21, 2007 compulsion order would in part be at issue in the hearing).) The docket reflects that the parties presented evidence for sixteen days from January 10 though April 14 of 2008 and closing arguments at the end of May. Based on the entire record, Moore, 255 F.R.D. at 13, including the evidence introduced at the hearing, the magistrate judge found that even one year after the order granting the motion to compel was issued, the defendant had still not complied, id. at 33, and the defendant’s failure to conduct a reasonable search for and to produce all responsive documents was willful given the defendant’s behavior throughout discovery. Id. at 35-36. Invoking her authority to issue “just orders,” id. at 36, under Rule 37(b)(2) when a party “fails to obey an order to provide ... discovery,” the magistrate judge sanctioned the defendant by ordering that “once Plaintiffs have established a prima facie case of discriminatory non-promotion, Defendant may not defend any such prima facie case[.]” Id. at 37. The magistrate judge also ordered “pursuant to Rule 37 ... [that the] Defendant shall pay Plaintiffs their costs, including reasonable attorneys’ fees, of drafting, filing, and litigating the Motion [to Compel and] for Sanctions.” Id.

The defendant has filed objections to the magistrate judge’s ruling, arguing that the magistrate judge erred because the defendant complied with the order compelling her to conduct a reasonable search, and because the magistrate judge’s order imposed “a severe sanction precluding [the] defendant from being able to thoroughly defend the merits of this case.” (Def.’s Obj’ns at 1.) In addition, the defendant objects to the magistrate judge’s order awarding costs to the plaintiffs, alleging that no cost sanction is appropriate under Rule 37(b)(2)(C) because the defendant complied with the court’s order, and that the defendant had already paid for plaintiffs’ costs incurred in filing their motion. (Id. at 44.)
DISCUSSION
Federal Rule of Civil Procedure 72(a) and Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge’s decision in a discovery dispute. “On review, the magistrate judge’s decision is entitled to great deference unless it is clearly erroneous or contrary to law, *171 that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed.” Moore v. Chertoff, 577 F.Supp.2d 165, 167 (D.D.C.2008) (internal quotation marks and citations omitted); see also Graham v. Mukasey, 247 F.R.D. 205, 207 (D.D.C.2008); LCvR 72.2(c) (“Upon consideration of objections filed ..., a district judge may modify or set aside any portion of a magistrate judge’s order under this Rule found to be clearly erroneous or contrary to law.”).
I. RULE 37 AUTHORITY The defendant contends that the magistrate judge erred in issuing a sanction under Rule 37(b)(2) because the plaintiffs requested the sanction before the magistrate judge issued her December 21, 2007 order granting the plaintiffs’ motion to compel, and because the magistrate judge’s sanction opinion makes no finding that the defendant violated her December 21, 2007 order. (Def.’s Obj’ns at 29-31.)
The timing of a party’s request for sanctions does not determine a court’s authority to issue them. The federal rules, for the most part, do. Plaintiffs complained in a motion to compel that the defendant had not searched for and produced documents. The magistrate judge agreed, granted the motion to compel, and pending a further hearing to determine what if any additional sanctions were warranted, preliminarily assessed costs against the
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Moore v. Napolitano, 723 F.Supp.2d 167 (2010)

defendant, as the magistrate judge was authorized to do. Fed.R.Civ.P. 37(a)(5). The defendant makes no argument or showing that the magistrate judge lacked such authority.

[1] For months thereafter, the magistrate judge held a hearing with a dual focus on additional sanctions for defendant’s discovery violation found at the December 21, 2007 hearing, and defendant’s compliance with the compulsion order issued that day. The defendant neither argues nor demonstrates that the magistrate judge lacked continuing authority under Rule 37(a)(5) to consider whether sanctions beyond the sanction preliminarily issued for the initial discovery violation were warranted.

[2] The magistrate judge had authority to issue sanctions for violation of the compulsion order. “A district court may order sanctions, including a default judgment, for misconduct either pursuant to Rule 37(b)(2)1 ..., which authorizes a court to assess a sanction for violation of a discovery order, or pursuant to the court’s inherent power to ‘protect [its] integrity and prevent abuses of the judicial process.’ ” Webb v. District of Columbia, 146 F.3d 964, 971 (D.C.Cir.1998) (quoting Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1474 (D.C.Cir.1995)) (alteration in original).

1

Under Rule 37(b)(2)(A),

[i]f a party ... fails to obey an order to provide or

permit discovery, ... the court where the action is

pending may issue further just orders. They may

include the following:

(i) directing that the matters embraced in the order

or other designated facts be taken as established

for purposes of the action, as the prevailing party

claims;

(ii) prohibiting the disobedient party from

supporting or opposing designated claims or

defenses, or from introducing designated matters

in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is

obeyed;

(v) dismissing the action or proceeding in whole or

in part;

(vi) rendering a default judgment against the

disobedient party; or

(vii) treating as contempt of court the failure to

obey any order except an order to submit to a

physical or mental examination.

Fed.R.Civ.P. 37(b)(2)(A).

Contrary to the defendant’s assertion, the magistrate did find that the defendant *172 violated the December 21, 2007 order requiring the defendant to search for and produce by January 7, 2008 documents that were the

subject of the motion. The magistrate judge expressly concluded that the defendant “fail [ed] to timely” or reasonably “search for and serve the documents responsive to Plaintiffs’ requests for production of documents ... in accordance with ... the court’s order compelling discovery[.]” Moore, 255 F.R.D. at 33. Similarly, the magistrate judge concluded that the defendant “made a mockery of ... the order granting Plaintiffs’ motion to compel[.]” Id. at 35. Given the dual focus of the hearing, the finding that the defendant failed to comply with the compulsion order required that the magistrate judge “order the disobedient party ... to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C). As is discussed below, the defendant has not shown error in the finding that she failed to comply with the compulsion order, or shown that her failure to comply was substantially justified. Nor has she shown that the award of costs was unjust. That the defendant may already have paid the costs imposed on December 21, 2007 simply means that the defendant would not be required to pay again any portion of the total costs imposed in the 2008 order that has already been paid. Accordingly, the defendant has not shown that the magistrate judge lacked authority under Rule 37 to sanction the defendant for her discovery violation and for failing to comply with the discovery order.
* * *
The magistrate judge has presided over proceedings involving discovery disputes in this case since 2005. She has found the defendant’s behavior regarding discovery obligations consistently over time to range from being lackluster to being recalcitrant and obdurate. Moore, 255 F.R.D. at 12, 26, 35. She found that the case was delayed “in large measure by the Defendant’s failure to provide discovery without the virtually continuous intervention of the court.” Id. at 33. The enforcement record is not disputed. The magistrate judge has had to enter against the defendant no fewer than nine orders compelling the defendant to provide discovery. Id. at 12. She has denied a protective order sought by the defendant to limit discovery. Id. The question here is whether, in light of this history, she had a basis for concluding that the defendant’s recent search efforts for decisionmakers’ documents were not reasonable, and the defendant’s conduct was willful so as to warrant a severe sanction.
II. DEFENDANT’S SEARCH EFFORTS [3] The defendant alleges that the magistrate judge erred in finding that the defendant failed to conduct reasonable
3

Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
searches for responsive decisionmaker documents. As a preliminary matter, the defendant alleges that the magistrate judge erroneously placed the burden of proof on the defendant, relying on the heading in the magistrate judge’s opinion stating that the “[d]efendant failed to adduce credible evidence of any reasonable search efforts in November and December, 2007 and January, 2008” as evidence that the burden of proof had shifted. (Def.’s Obj’ns at 27.) Contrary to the defendant’s objection, viewing the magistrate judge’s opinion in its entirety, the magistrate judge did not erroneously place the burden of proof on the defendant. When a plaintiff alleges that a defendant violated a discovery order compelling a search by failing to conduct an adequate search, a plaintiff invariably will call upon the defendant’s agents to explain what efforts were or were not made to comply with the court’s discovery *173 order to show that such efforts were deficient. Once a plaintiff uncovers such evidence that the defendant failed to search in particular locations or that individual searches conducted by the defendant’s agents were inconsistent, it necessarily falls to the defendant, the party with superior knowledge of its own records, to show the reasonableness of its decisions regarding where and how to search for responsive documents.
Here, the magistrate judge carefully considered all of the evidence presented by both parties to determine whether the plaintiffs had carried their burden, as the moving party, to justify imposing a sanction. If anything, the language of the heading identified by the defendant as significant-“[d]efendant failed to adduce credible evidence of any reasonable search efforts”-and the findings within that section of the magistrate judge’s opinion suggest that the defendant’s presentation of evidence in its defense actually bolstered the plaintiffs’ case for sanctions. They do not establish that the magistrate judge improperly placed the burden of proof on the defendant.
The defendant also contends that the magistrate judge did not assess the defendant’s search efforts under the correct legal standard, namely, reasonableness. (Def.’s Obj’ns at 27.) Under Rule 26, a party is obligated to make a reasonable effort to search for and produce documents responsive to the opposing party’s document requests. See Fed.R.Civ.P. 26(g) Advisory Comm. Notes (1983 Amendment). “Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances[,]” and “[t]his standard is heavily dependent on the circumstances of each case.” Id. The magistrate judge’s opinion applies this reasonableness standard, explicitly finding that the defendant “failed to conduct a reasonable search in 2006” and similarly did

not demonstrate “any reasonable search efforts in November and December, 2007 and January, 2008.” Moore, 255 F.R.D. at 21-22. The defendant identifies no misstatement of the reasonableness standard and instead points to particular factual findings as evidence that the magistrate judge applied a more stringent standard than reasonableness.
A. 2006 search The magistrate judge found that the defendant had limited the search for responsive documents to only three Secret Service divisions-Personnel, EEO, and Management and Organization-and had not “searched the records of any decision-maker” stored outside of these divisions prior to the December 21, 2007 order. (Id. at 21.) As the magistrate judge noted, the defendant acknowledged that it “could have gone to the individual supervisors ... within the Secret Service and queried them personally about what recommendation materials they may have [had] that would [have been] responsive to the Plaintiffs’ request.” (Id. (quoting May 29, 2008 Hrg. Tr. at 32) (internal quotation marks and alterations omitted).) The defendant contends that there was no evidence to support the magistrate judge’s conclusion that a reasonable search needed to include searches for documents outside of the three searched divisions.
The plaintiffs presented evidence demonstrating the likely existence of responsive documents in the records of other decisionmakers and recommenders in the promotion process, namely sworn testimony from Secret Service agents indicating that promotion recommendations were communicated through e-mail. (See Pls.’ Opp’n to Def.’s Obj’ns at 16 n. 7; Pls.’ Proposed Findings of Fact [Docket # 568] ¶¶ 299-301 (collecting deposition testimony).) The defendant concedes that there *174 was testimony from Secret Service agents that “ ‘it [was] possible’ that field offices may have [had] additional promotion-related information not sent to the Personnel Division, and that promotion-related information may consist of a recommendation by a SAIC [Special Agent-in-Charge] or by a first-level supervisor to an SAIC.” (Def.’s Obj’ns at 12.) Notably, the defendant points to no evidence presented to the magistrate judge that demonstrated that responsive documents likely would not have been located within the records of these other decisionmakers and recommenders. In light of the plaintiffs’ evidence that responsive documents regarding promotion recommendations existed outside of the three searched divisions and demonstrating the importance of documents related to the promotion recommendations to the issues in this action, the defendant has not shown that it was clearly erroneous for the magistrate judge to conclude that, in the
4

Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
circumstances of this case, a reasonable search for documents responsive to the plaintiffs’ request must include searches of the records of individual decisionmakers located outside of the three divisions searched.
B. 2007 and 2008 searches The magistrate judge found that the defendant failed to conduct a reasonable search in November and December of 2007 and January of 2008, partly in violation of the order granting the plaintiffs’ motion to compel a reasonable search of the records of decisionmakers for responsive documents. In so finding, the magistrate judge reasoned that the defendant provided insufficient search instructions to the approximately 182 supervisors who were tasked with searching for responsive documents in response to the December 21 order. Moore, 255 F.R.D. at 21-22. The magistrate judge also found that the search efforts described by the defendant’s own witnesses-SAIC Bryant, Resident Agent-in-Charge (“RAIC”) Gavin, and RAIC Mays-revealed that these individuals conducted inconsistent and inadequate searches for documents in response to the December 21 order. In addition, the magistrate judge found that the testimony of Inspector Hunnicutt, who was entrusted to assure an adequate search, lacked candor, was not credible and could not be relied upon to explain the defendant’s search efforts. Id. at 26-27.
1. Search instructions
The magistrate judge found that the search instructions given to the individual agents charged with carrying out the defendant’s search for documents in November and December of 2007 were ambiguous and deficient. After the plaintiffs filed their motion to compel, Secret Service Inspector Arthur Kuhn sent an e-mail on November 5, 2007 to approximately 182 supervisors at the GS-15 level or higher directing each individual
to search locations including “personal files,” “office files,” and “the office files for which [they] were previously assigned when involved in the decision-making process[ ]” for “notes, letters, memoranda, e-mails (both paper and electronically saved), or any other paper documents that specifically relate to the ‘selection decisions’ for GS-14 and GS-15 promotions and reassignments from 1991 to 2005.” Id. at 18 (quoting Def.’s Evid’y Hrg. Ex. 1) (alterations in original). After the magistrate judge granted the plaintiffs’

motion to compel searches, “[o]n December 26, 2007, the Secret Service’s Office of the Chief Counsel forwarded an e-mail to ‘all Assistant Directors [ADs], Special Agents in Charge [SAICs], Resident Agents in Charge [RAICs], and Division Chiefs’ directing a search ‘of their offices, including all personal and office files, for any paper documents related to decision-making or *175 recommendations for bids of selections to any GS-14, GS-15, or SES Special Agent position from 1991 to 2005.’ ” Id. (quoting Def.’s Evid’y Hrg. Ex. 14 at 1). This e-mail was sent to approximately 156 agents. Id.
The magistrate judge found that the ambiguity in the defendant’s instructions “became evident as Defendant’s own witnesses testified regarding their respective interpretations of the terms ‘personal files,’ ‘office files’ and ‘office’ in the context of the e-mail inquiries.” Id. at 16 n. 18 (listing several agents’ inconsistent interpretations of the files they were to search in response to the defendant’s two e-mail inquiries). For example, the magistrate judge discussed the testimony of Agent Faron Paramore, SAIC of the Director’s Office, who testified that he originally thought the November 5, 2007 e-mail required a physical search of only his personal office, and searched the files of the entire Director’s Office only after receiving clarification from the Secret Service’s Chief Counsel’s office about the intended scope of the requested search. Id. at 22-23. Nevertheless, the defendant used the same ambiguous term “office files” in the December 26, 2007 e-mail without further instructions to clarify for everyone else what “office files” meant. In addition, the magistrate judge found that defendant’s search instructions failed to adequately inform the e-mail recipients, including Inspectors Kuhn and Hunnicutt, whose “role [it was] to receive documents located during the searches and to answer any questions posed by the recipients of the e-mail,” of the claims and defenses involved in this case even though the plaintiffs’ document requests sought documents “relating ... in any way to the claims and defenses raised in this case[.]” Id. at 23 (internal quotation marks omitted).
The defendant disputes the magistrate judge’s conclusion that the defendant’s search instructions were ambiguous, arguing that “however a witness may have initially interpreted [the search terms], all the witnesses cited [by the magistrate judge] testified that they ultimately understood that they were to search all of the office under their supervision where responsive records might be located.” (Def.’s Obj’ns at 14.) With testimony from only the small sample of the approximately 182 recipients of the November 2, 2007 e-mail and 156 recipients of the December 26, 2007 e-mail, it was not error to infer from the different initial interpretations that there was
5

Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
ambiguity in the search instructions. The defendant has pointed to no evidence before the magistrate judge that demonstrates that the defendant communicated with all of the e-mail recipients to ensure that they had not adopted an erroneous interpretation of the scope of the search requested and had not certified completion of a search based on an erroneous interpretation of what was required. In addition, as is discussed below, the testimony of the agents regarding their search efforts in response to the 2007 e-mail search instructions revealed that they conducted inconsistent searches and, in some instances, inadequate searches. Thus, contrary to the defendant’s objection, it was not error to conclude from the evidentiary record that the defendant’s search instructions did not sufficiently inform recipients of what efforts needed to be made to satisfy the defendant’s obligation to conduct a reasonable search.
The magistrate judge found that the defendant’s search instructions were deficient for failing to include express search references to appropriate index numbers or off-site storage, including the Federal Records Center. Moore, 255 F.R.D. at 23-24. The defendant argues that the plaintiffs did not prove that the agents needed such specific search instructions. (Def.’s Obj’ns at 15-16.) However, the plaintiffs need not have proven that the *176 agents charged with searching their offices needed such a directive. Inspector Kuhn testified that the Secret Service filing system designates office files regarding promotion of special agents by a particular index number, and that responsive documents could be stored at the Federal Records Center, but he did not know if anyone searched there. Moore, 255 F.R.D. at 23, 30. The defendant has pointed to no evidence demonstrating that the administrative index number and documents stored off-site were irrelevant to the plaintiffs’ request. It was enough for the magistrate judge to note the omission from search instructions of obvious locations of potentially responsive documents in assessing whether the defendant’s omissions were indicative of a chronically and willfully anemic approach to discovery obligations warranting a significant sanction.
The magistrate judge found that Inspectors Kuhn and Hunnicutt were not adequately informed about what constitutes a document responsive to the plaintiffs’ requests. The defendant counters that these inspectors were tasked with only gathering information on the defendant’s searches and that because of their minimal role, “[t]he fact that the inspectors ... were not involved in determining whether a document was responsive to plaintiffs’ requests does not indicate that defendant’s instructions ... were in any way deficient, or that the searches they performed were in any way inadequate.”

(Def.’s Obj’ns at 15.) While it is far from clear that the evidentiary record supports the defendant’s characterization of Kuhn and Hunnicutt as mere information-gatherers, the magistrate judge also found that the e-mail recipients-who were tasked with searching-were inadequately informed about what constituted a responsive document. Moore, 255 F.R.D. at 23. The defendant has not identified evidence in the record demonstrating that all e-mail recipients were adequately informed of the types of responsive documents that should have been produced in response to the e-mail inquiry. Thus, even accepting the defendant’s argument that Kuhn and Hunnicutt had a minimal role that did not require them to have knowledge of what constituted a responsive document, such an argument does not undermine the magistrate judge’s conclusion that there was a widespread failure to instruct e-mail recipients appropriately.
2. Inconsistent search efforts
In reaching the conclusion that the defendant failed to conduct a reasonable search in response to the December 21, 2007 order, the magistrate judge considered the search efforts of four of the defendant’s agents: SAICs Paramore and Bryant and RAICs Gavin and Mays. The magistrate judge found that the testimony of these four agents “exposed the widely varying extent of the searches conducted[,]” and that Bryant, Gavin, and Mays’ testimony revealed that they conducted inadequate searches for responsive documents, not reasonable ones consistent with the defendant’s obligation under the federal rules. Id. at 24.
a. Bryant
The magistrate judge found that Bryant “failed to search any of the administrative files of the Buffalo field office in November, 2007.” Id. She found that in response to the November, 2007 e-mail inquiry, Bryant asked his administrative supervisor if any files would contain any responsive information, and his administrative supervisor-without conducting a search of any files-indicated that the information he was seeking would not be in “ ‘an official capacity in [the] file room.’ ” Id. (quoting Mar. 6, 2008 Evid’y Hrg. Tr. at 14-15) (alteration in original). The magistrate judge further found that Bryant believed that his inquiry of the administrative supervisor constituted an adequate search. *177 Id. She
6

Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
also found that beyond questioning the administrative supervisor, Bryant “merely looked at the personal files maintained in his desk, his calendar and email account ... [but] did not search in closets, credenzas, safes, vaults, off-site storage, or file cabinets other than the one containing his own personal documents” and did not ask other staff members to search for responsive documents. Id. (internal citation omitted).
The defendant alleges that Bryant reasonably relied upon information provided by the administrative supervisor who had worked in the office for over twenty-eight years and who had searched the Buffalo office records in May 2007 to prepare for an unrelated inspection. (Def.’s Obj’ns at 17-18.) Some reliance by Bryant upon his administrative supervisor to help conduct a search was not the problem. While the defendant has shown that the administrative supervisor had general familiarity with the files in the Buffalo office based upon her earlier unrelated review of office records, the defendant has not shown that the administrative supervisor ever reviewed office files for the purpose of identifying documents responsive to the November and December e-mail inquiries.
In addition, Bryant testified that he made promotion recommendations via personal e-mail but that where Bryant searched produced no hard copies of recommendation e-mails. Moore, 255 F.R.D. at 24-25. The magistrate judge also noted that despite the efforts described, Bryant signed “Paper Documents Search Certification form[s]” on November 6, 2007 and December 26, 2007, “indicating that he performed thorough searches of his office.” Id. at 24 n. 22. This record reflects no error in the magistrate judge finding that neither Bryant nor his administrative supervisor actually performed a thorough or reasonable search for documents in response to the November 2007 inquiry.
b. Gavin
The magistrate judge found that Gavin largely relied upon his resident administrative manager’s word that there would be no promotion documents or promotion-related materials in the Wilmington office. However, the administrative manager did not conduct any confirming search for responsive documents. Id. at 25. Gavin also asked his staff whether they had any promotion-related materials in their office space, and took their word when they all said “no” without even confirming whether they had conducted a search for such materials and without conducting such a search himself. Gavin did look in a “small two-drawer filing cabinet in the resident

administrative manager’s office” containing administrative filings and searched simply “by looking at the file folder labels affixed to each file” rather than opening them. Id. He also searched his own personal folder where he kept activity reports, travel vouchers and other miscellaneous documents, and looked in the closet and cabinets when he “happened to be in the closet” or “happened to look in cabinets.” Id. at 25-26. However, Gavin “did not specifically look for notes, notebooks, memos, calendar entries, or print-and-save e-mails in response to the December 26, 2007” e-mail inquiry. Id. at 26. Gavin, nevertheless signed a certificate that a thorough search was conducted.
Whatever the likelihood was of finding responsive documents, virtually no search was conducted, much less a thorough one. The magistrate judge found that RAIC Gavin’s search efforts were “lackluster.” Id. The record bears out that characterization, and was fair support for the magistrate judge’s negative assessment of the reasonableness of the defendant’s search.
c. Mays
The magistrate judge found that in response to the December 2007 e-mail, Mays *178 searched the office’s administrative files by flipping through pages of those file folders that he thought from their labels would contain responsive documents. Id. Mays testified that he also “forwarded an e-mail to the members of his staff, asking them to conduct a search of their offices” and reply with responsive materials. Id. However, none responded to him and he never spoke with them regarding their search efforts. Thus, Mays “could not testify regarding whether [his staff members] conducted a search or the scope of any performed search.” Id. Nevertheless, Mays, too, signed a form and certified that a thorough and reasonable search was performed.
The defendant contends that the search was reasonable enough since Mays testified “that when he gives an order to his staff he expects them to comply.” (Def.’s Obj’ns at 20.) However, it was not error for the magistrate judge to find problematic that Mays certified that a reasonable search was performed without having surveyed his staff members to determine “the scope of any performed search[,]” Moore, 255 F.R.D. at 26 (emphasis added), or to factor this search in with the remaining evidence in assessing whether the defendant’s overall performance warranted a substantial sanction.
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Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
3. Inspector Hunnicutt’s credibility
The defendant objects to the magistrate judge’s reliance on Inspector Hunnicutt’s credibility as evidence of whether or not a reasonable search was performed, contending that Hunnicutt’s testimony was irrelevant because Hunnicut was tasked with only “document[ing] defendant’s search efforts,” and was not “in charge of searching for documents ... or play[ing] any role in the actual searches.” (Def.’s Obj’ns at 21-22.) Thus, the defendant contends, “[a]lthough defendant’s efforts through Inspector Hunnicutt to gather evidence about how the search was performed may have been flawed, it does not mean that a reasonable search was not performed.” (Id. at 22.) The defendant has not shown error in the magistrate judge’s finding that Hunnicutt’s testimony lacked candor and credibility, Moore, 255 F.R.D. at 27, or her reliance on such finding as evidence in assessing whether a reasonable search was performed in response to her order or whether the defendant’s overall conduct was willful. Hunnicutt was presented as the person who was responsible for keeping track of the Secret Service’s search efforts and had knowledge regarding what efforts were undertaken in response to the court’s December 21 order. For such an important witness to testify without credibility or candor about what search efforts were made can be probative of the defendant’s good faith and easily lead to grave skepticism in making that assessment.
Overall, considering the magistrate judge’s findings regarding the ambiguity in the defendant’s search instructions, the inconsistent and inadequate search efforts of agents Bryant, Gavin, and Mays, and Inspector Hunnicutt’s failure to credibly explain the defendant’s search efforts, it was not clearly erroneous for the magistrate judge to find that the defendant violated the December 21, 2007 order compelling the defendant to conduct a reasonable search for paper documents. Nor was there error in finding that this evidence in light of the defendant’s chronic discovery misconduct during the pendency of this case warranted a severe sanction.
III. PRECLUSION SANCTION The magistrate judge found that the defendant’s violation of the order compelling a reasonable search was willful, and ordered that “once Plaintiffs have established a prima facie case of discriminatory non-promotion, Defendant may not defend any such prima facie case[.]” Id. at 37. *179 The defendant alleges that the magistrate judge erred in imposing this sanction because the circumstances of this case are not sufficiently egregious to warrant such a severe sanction. The defendant alleges that either no sanction is warranted or lesser sanctions of reopening

discovery, allowing plaintiffs to supplement their motion for class certification, and a division of costs for adjudicating the plaintiffs’ motion to compel are more appropriate in the circumstances. (See Def.’s Obj’ns at 44-45.)

[4] The “central requirement of Rule 37 is that any sanction must be just,” and the “choice of sanction should

be guided by the concept of proportionality.” Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C.Cir.1996)

(internal quotation marks omitted). Bonds instructs that before imposing a severe, litigation-ending sanction that approaches a default judgment or denies a party a fair trial on the merits, a district court must “consider whether

lesser sanctions would be more appropriate for the particular violation” because the judicial system favors disposition of cases on the merits. Id. In considering whether a severe sanction “rather than a milder disciplinary measure” is appropriate, a court should consider “the effect of a [party’s] contumacious conduct

on the court’s docket, whether the [party’s] behavior has prejudiced the [opposing party] and whether deterrence is

necessary to protect the integrity of the judicial system.” Id. Then, if imposing a severe sanction, the court should “either make a finding supported by the record that the more severe sanction is necessary to avoid prejudice to

[the opposing party] or to the court’s calendar ... or-if the sanction is based only on deterring future discovery misconduct-the more severe sanction must be supported by a finding of flagrant or egregious misconduct by the” sanctioned party.2 Id. at 809.

2

In appropriate situations, a court also may find that a

severe sanction is necessary to prevent some benefit to

the sanctioned party. Bonds, 93 F.3d at 809. The

magistrate judge did not base the sanction at issue on

any finding that such a sanction was necessary to avoid

a benefit to the defendant.

Bonds also cautions that a preclusion sanction may be so severe as to be litigation-ending, even if it is not described as such. The district court in Bonds precluded the defendant “from offering any fact witnesses at trial as a discovery sanction” for “failing to respond in a timely manner to an interrogatory requesting the names of all persons with knowledge of relevant events regarding the class action and then providing an inadequate response.” Id. at 803-04. Although recognizing that “the [broad] preclusion order did not operate with such assured effect as a default judgment[,]” the court of appeals nonetheless found that such a sanction “approach[ed] a default judgment in its severity.” Id. at 808-09. The court explained that “resolution of the plaintiffs’ sexual harassment and retaliation claims was likely to depend on
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Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
the credibility of conflicting witnesses and the jury’s evaluation of [the defendant’s] employees’ motives.” Id. at 808. As a result, while it was “true that the [defendant] could still introduce documentary evidence and expert testimony, counter-designate portions of deposition testimony introduced at trial, cross-examine the plaintiffs’ witnesses, and make opening and closing arguments[,]” the preclusion order was still a severe sanction resulting in a “one-sided trial” where the defendant was left “with little ability to contest the plaintiff’s claims.” Id. at 808-09. Upon reviewing the district court’s finding of prejudice to the plaintiffs and the court, and the need for deterrence, the Bonds court found that the district court’s findings were insufficient to persuade the *180 court that lesser alternative sanctions would have been ineffective. Id. at 813.
[5] In imposing the sanction at issue, the magistrate judge intended that the chosen sanction neither be “ ‘litigation-ending,’ ” nor “ ‘approach[ ] a default judgment’ ... nor den[y] Defendant the right to a trial on the merits.” Moore, 255 F.R.D. at 32 n. 34, 33 n. 36, 37 (quoting Bonds, 93 F.3d at 808) (first alteration in original). Nonetheless, recognizing the defendant’s “concerns that the sanction ... is akin to a default,” id. at 33 n. 36, the magistrate judge applied the Bonds framework when considering whether to impose a severe sanction and made findings that the defendant’s conduct caused prejudice to the plaintiffs and disrespected the court, and there was a need to deter the defendant’s willful violation.
A. Prejudice to the plaintiffs The magistrate judge held that the defendant’s “failure to timely search for and serve the documents responsive to Plaintiffs’ requests for production of documents ... has prejudiced Plaintiffs’ ability to conduct meaningful discovery and to prepare to address the merits of their claims.”3 Moore, 255 F.R.D. at 33. In reaching this conclusion, the magistrate judge found that the defendant “failed even to commence a reasonable search for the full extent of the documents responsive to [the plaintiffs’ requests] until sixteen months after the requests were served,” and that even a year after she entered her compulsion order, she could not find that “a reasonable search for the full extent of the responsive documents ha[d] been undertaken.” Id. at 33. Moreover, the magistrate judge found that the plaintiffs have been “ ‘required to waste time, money, and effort in pursuit of cooperation [.]’ ” Id. (quoting Gallina v. Wyandotte Police Dep’t, No. 4:07-CV-12640, 2008 WL 5090551, at *2 (E.D.Mich. Nov. 26, 2008)). The defendant objects to the magistrate judge’s finding that the plaintiffs have

suffered prejudice, contending that the magistrate judge gave insufficient consideration to “whether the putative undisclosed documents must be essential, important, or even relevant to plaintiffs’ claims” and that, as evidenced by the plaintiffs’ filing of their motion for class certification, there was no “evidence that plaintiffs have been unable to pursue their claims with the mountains of discovery produced by defendant.” (Def.’s Obj’ns at 35, 37.) In addition, the defendant alleges that the magistrate judge failed to cite evidence supporting the conclusion that the plaintiffs have been required to waste time, money, and effort. (Id. at 36.)

3

The magistrate judge also noted that the defendant

argued that the plaintiffs premised their argument “ ‘on

the assumption that there is a huge cache of responsive

paper recommendation documents previously

undisclosed by defendant that is essential to

[P]laintiffs’ case.’ ” Id. at 34 (quoting Def.’s Proposed

Findings ¶ 34, at 90) (alteration in original). The

magistrate judge expressly rejected the defendant’s

claim that the plaintiffs’ advanced this argument and

disavowed making any finding with respect to the

“volume of withheld documents[,]” reasoning that

volume of withheld documents is not dispositive when

determining an appropriate sanction under Rule 37. Id.

[6] First, as a matter of law, a court does not examine the merits of a case when determining whether to certify a class under Rule 23. Wagner v. Taylor, 836 F.2d 578, 587 (D.C.Cir.1987). The fact that the plaintiffs have been able to file a class certification motion does not demonstrate that the defendant’s violation of the court’s order compelling a search did not prejudice the plaintiffs’ ability to conduct discovery and prepare their case on the merits.
Moreover, regarding the defendant’s allegation that the magistrate judge gave insufficient consideration to the plaintiffs’ *181 need for undisclosed documents, the magistrate judge considered and found that the plaintiffs carried their burden of demonstrating that there are responsive decisionmaker documents not produced that are relevant to the plaintiffs’ preparation of the merits of their case. Moore, 255 F.R.D. at 34. There was a substantial evidentiary basis for the finding that undisclosed responsive documents regarding decisionmakers’ promotion decisions existed. Inspector Kuhn declared that while the agency does not generally consider as official records that the agency maintains as business records individual e-mails that individual supervisors send bearing promotion recommendations (Kuhn Decl. ¶ 3 (Doc. # 498-15)), he testified that he knew from personal experience that individual supervisors do e-mail such recommendations to each
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Moore v. Napolitano, 723 F.Supp.2d 167 (2010)

other. (Tr. of Jan. 10, 2008 Evid’y Hrg. at 184-85.) Nine of those very supervisors testified that they sent (Pls.’

Evid’y Hrg. Exhs. 49 at 123-24, 52 at 53, 59 at 106, 65 at 93-95; Tr. of Mar. 6, 2008 Evid’y Hrg. at 33 (testimony

of Dunlap, Carey, Pickle, Dowling, Bryant)) or received (Pls.’ Evid’y Hrg. Exhs. 50 at 90, 58 at 187, 63 at 222, 64 at 55, 66 at 48-49 and 233 (testimony of Spriggs, Riggs, Truscott, Samway, Bauer)) such recommendations by

e-mail. A critical question in any discrimination action is whether the alleged disparity between plaintiffs and other

similarly-situated individuals or groups was the result of unlawful discrimination. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C.Cir.2008). Evidence demonstrating individual decisionmakers’ reasons for

promotions or nonpromotions is highly relevant to the plaintiffs’ individual and potential class claims. While a pattern and practice class action relies on statistics to demonstrate the class-wide injury, anecdotal evidence is permitted and useful to bring “the cold numbers convincingly to life.” Int’l Bhd. of Teamsters v. United

States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); see also Arnold v. U.S. Postal Serv., 863 F.2d

994, 999-1000 (D.C.Cir.1988); Segar v. Smith, 738 F.2d 1249, 1277-78 (D.C.Cir.1984); Valentino v. U.S. Postal Serv., 674 F.2d 56, 71-72 (D.C.Cir.1982). Here, the plaintiffs’ document requests sought to capture the

reasons for particular decisions to promote or not promote agents which are highly relevant to establishing an employer’s discriminatory motive. Given that the defendant has failed to fully comply with the obligation to locate and produce these relevant decisionmaker documents, and the finding that this failure continued a

pattern and practice of obduracy in discovery production, the magistrate did not err in finding that, despite the

significant volume of discovery already produced, the plaintiffs have been prejudiced by the defendant’s failure to search adequately for and produce decisionmaker documents.4 Similarly, the defendant’s suggestion that the

magistrate judge had no basis to conclude that the plaintiffs wasted time, money, and effort in pursuit of the defendant’s cooperation lacks merit. The plaintiffs filed and successfully litigated a motion to compel the defendant to conduct reasonable searches for documents, and yet, as is discussed above, the plaintiffs still have not

received the defendant’s full cooperation. The plaintiffs engaged in months of inevitably costly discovery efforts lacking the documents that could have sharpened or sped *182 their inquiries. The magistrate judge’s finding that the defendant’s conduct has caused prejudice to the plaintiffs is not faulty.

4

Further, an ability to assess the volume and value of

documents that the defendant has not yet adequately

searched for and produced cannot otherwise stand in

the way of assessing the degree of prejudice to the

plaintiffs. It would not be inappropriate to resolve against the defendant any uncertainty regarding the volume and value of these documents since it was the defendant’s failure to adequately search for and produce all responsive documents that impeded full evaluation of them.

B. Deterrence and impact on court The magistrate judge concluded that the defendant “has made a mockery of Rule 34, the case management orders of the court, the order granting Plaintiffs’ motion to compel, and the evidentiary hearing.” Moore, 255 F.R.D. at 35. The magistrate judge found that the defendant’s conduct at the evidentiary hearing constituted “substantial and prejudicial obduracy [,]” amounting to a willful, bad faith attempt to “justify [the defendant’s] production of only those documents [she] was inclined to produce.” Id. Specifically, the magistrate judge found that Hunnicutt’s testimony lacked credibility and candor. The magistrate judge also found that “the court’s ability to conduct an orderly and efficient evidentiary hearing was further compromised by Defendant’s inability to call all of the witnesses” who were expected because at least one witness decided to circulate an e-mail with a press account about Hunnicutt’s testimony “to other witnesses whose names were included on Defendant’s witness list.”5 Id. at 29-30, 35.

5

When discussing imposing a sanction to avoid

“prejudice to the court,” the D.C. Circuit has focused

on potential prejudice to the court’s calendar-that is,

where, absent an appropriate sanction, a party’s

misconduct would “put an intolerable burden on a

district court by requiring the court to modify its own

docket and operations” and require the court to “expend

considerable judicial resources in the future in addition

to those it has already wasted[.]” Shea v. Donohoe

Constr. Co., Inc., 795 F.2d 1071, 1075-76

(D.C.Cir.1986). While the magistrate judge

characterized as evidence of “prejudice to the judicial

system” her findings that the defendant willfully made

a mockery of the federal rules and the court’s orders

and interfered with the court’s ability to conduct an

efficient evidentiary hearing, these findings are as

appropriately considered as reasons for sanctioning the

defendant under a “deterrence and punishment”

rationale-that is, where there is a “need to sanction

conduct that is disrespectful to the court and to deter

similar misconduct in the future.” Id. at 1077.

The defendant disputes the finding of an injury to the court because the defendant was not required to document her searches and because the witnesses who were not
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Moore v. Napolitano, 723 F.Supp.2d 167 (2010)

called were not identified by the magistrate judge or the plaintiffs as necessary to the evidentiary hearing. (Def.’s

Obj’ns at 37-38.) While the defendant was not obligated to document her searches in any particular manner, a

party vowing to demonstrate her absolute compliance with a court order should carry some responsibility to refrain from presenting testimony lacking candor. As is noted above, the defendant has shown no fault with the

finding that Hunnicutt lacked candor and credibility. Regarding the defendant’s objection to the magistrate

judge’s finding that the court was harmed by the defendant’s disregard of the rule on witnesses, defense counsel conceded that she did exclude witnesses who had been inappropriately exposed to press coverage of the

evidentiary hearing. Moore, 255 F.R.D. at 29 (quoting Feb. 25 Evid’y Hrg. Tr. at 266-68). Contrary to the defendant’s unsupported objection, the magistrate judge had a reasonable basis to infer that the defendant’s management of potential witnesses compromised the court’s ability to conduct an efficient hearing because the

defendant admitted that her presentation of evidence was affected by her agents’ inappropriate exposure to press reports.6 *183 Accordingly, it was not error for the magistrate judge, having found that the defendant presented a witness who lacked credibility and failed to prevent contamination of potential witnesses, to conclude

that the defendant’s conduct was disrespectful to the court.

6

In discussing the defendant’s alleged violations of the

rule on witnesses, the magistrate judge concluded that

the defendant “failed to instruct the potential witnesses

to refrain from reading press reports of testimony

elicited during the hearing[,]” and that after learning

that an agent transmitted a newspaper article to

potential witnesses, “counsel for the Defendant saw fit

to do absolutely nothing[.]” Moore, 255 F.R.D. at 30. It

is apparent, though, that the magistrate judge did not

mean that defense counsel’s efforts to comply with the

rule on witnesses were non-existent. The magistrate

judge accepted as credible the testimony of Mays and

Gavin who each explained that he did not read the

e-mailed article regarding Hunnicutt’s testimony

because defense counsel had instructed him not to read

public accounts of the hearing. Id. at 28-29. In addition,

the magistrate judge found that defense counsel made

efforts to investigate the scope of Mays’ and Gavin’s

exposure to the e-mailed article. Id. at 29.

In finding a need to deter similar misconduct in the future, the magistrate judge found a severe such sanction was necessary because a “ ‘lesser sanction may also yield similar misconduct by other litigants by indicating that flagrant violations will yield only minor sanctions.’ ” Moore, 255 F.R.D. at 35 (quoting Perez v. Berhanu, 583 F.Supp.2d 87, 91 (D.D.C.2008)). In assessing what

sanction would be just and proportional to remedy the harms caused by the defendant’s violation and to deter future discovery misconduct, the magistrate judge observed that the court’s previous attempts to remedy defendant’s conduct through lesser corrective actions, including prior orders compelling discovery, monetary sanctions, and a sanction precluding the defendant from using certain evidence not timely disclosed to the plaintiffs, proved insufficient to deter the defendant from “disregard[ing] [her] discovery obligations.” Id. at 36.
The defendant objects to the magistrate judge’s reliance on the multiple lesser sanctions previously imposed by the court as justification for the need for the preclusion sanction at issue. The defendant contends that because her objections to two of the three previous sanction orders were pending at the time the magistrate judge issued the sanction at issue, it was “manifestly unfair and premature for the Magistrate Judge to sanction [the] defendant based on rulings” still subject to review by the district court. (Def.’s Obj’ns at 39.) A pending review of prior lesser sanctions does not obligate a magistrate judge to be blind to prior findings of misconduct and whether her imposition of previous, lesser sanctions was insufficient to deter the defendant’s subsequent discovery misconduct. The defendant’s argument is of particularly little weight here since the magistrate judge’s two previous sanctions orders, although slightly modified, have been largely upheld in substance. See Moore v. Napolitano, Civil Action No 00-953 (RWR/DAR), 2009 WL 2450280 (D.D.C. Aug. 7, 2009).
C. Proportionality/no lesser alternative In concluding that the instant preclusion sanction is “ ‘just,’ and is ‘guided by the concept of proportionality between offense and sanction[,]’ ” the magistrate judge “considered the extent to which ‘less dire alternatives have been explored without success’ or would obviously prove futile[.]” Moore, 255 F.R.D. at 36 (quoting Bonds, 93 F.3d at 808) (internal quotation marks omitted). The magistrate judge determined that the instant preclusion sanction was “not ‘litigation-ending[,]’ ” but nonetheless significant enough to remedy the defendant’s violation. Id. (quoting Bonds, 93 F.3d at 808). The defendant alleges that the magistrate judge erred in imposing a severe sanction akin to a litigation-ending default judgment, and alleges that an appropriate sanction, if any, would be a *184 “reopening of discovery, allowing plaintiffs to supplement their motion for class certification, and a division of costs for adjudicating plaintiffs’ motion to compel.” (Def.’s Obj’ns at 44-45.)
For all of the reasons discussed above, including the
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Moore v. Napolitano, 723 F.Supp.2d 167 (2010)
defendant’s history of protracted recalcitrance during discovery, the failure of previous, lesser sanctions to deter subsequent violations, the resulting prejudice to the plaintiffs, and the need to deter the defendant’s willful conduct, the magistrate judge had an adequate basis for rejecting the defendant’s suggestion that the appropriate sanction would be to give the defendant yet a third opportunity to comply with her latest discovery obligations, and had an adequate basis for imposing a significant sanction in response to the defendant’s violation of the order compelling a reasonable search for responsive documents. Her conclusion was, in essence, that enough is enough. That conclusion was fair at this stage in the litigation. Since the magistrate judge’s intent was that the preclusion sanction imposed not be litigation-ending, the sanction will be construed not to prevent the defendant from offering any defense to any prima facie case of discriminatory non-promotion. Rather, the defendant will be precluded from offering any legitimate, nondiscriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs.
Construing the sanction in this manner tailors a proportional remedy to the alleged harm, and does not produce an unsupported litigation-ending sanction. It is the individual named plaintiffs whose time, energy and resources have been most frustrated by the defendant’s discovery misconduct and most compromised in the effort to gather anecdotal evidence in support of their discriminatory nonpromotion allegations. And as Bonds recognized, defendants would have multiple methods available for mounting a defense against the individual named plaintiffs’ promotion discrimination claims: denying the factual accuracy of plaintiffs’ evidence, attacking the credibility of plaintiffs’ witnesses under Federal Rules of Evidence 602, 607, 608, 609, 613 and others; attacking the sufficiency of plaintiffs’ prima facie evidence in opening statements and closing arguments and under Federal Rule of Civil Procedure 50, and others. Unlike the Bonds plaintiffs, however, plaintiffs here present a protracted history of repeated discovery misconduct by a defendant warranting a severe preclusion sanction.
Moreover, in a pattern and practice case, a plaintiff class seeking to carry its prima facie burden of offering evidence adequate to create an inference of discrimination will usually provide statistical evidence showing a disparity between the position of the class members and other similarly-situated individuals, and may also present anecdotal evidence to show that the statistical disparity is the result of unlawful discrimination. Segar, 738 F.2d at 1267; Arnold, 863 F.2d at 999-1000. Once plaintiffs have

established their prima facie case of discrimination, there are two ways an employer-defendant can seek to rebut the plaintiffs’ case. First, “[t]he employer can endeavor to refute the plaintiffs’ claim that a disparity exists” by “[c]hallenging the accuracy or significance” of the plaintiffs’ statistical showing. Segar, 738 F.2d at 1267-68. Alternatively, a defendant can present an “explanatory defense” “to show that any observed disparities between plaintiffs and [another] group did not result from discrimination violative of Title VII.” Id. at 1267-68. Under a disparate treatment theory, the defendant will offer “a legitimate, nondiscriminatory explanation for the disparity” such as “some additional job qualification ... that the plaintiff class lacks.” Id. at 1268. Under *185 a disparate impact theory where the plaintiffs have linked the alleged disparity to a particular business practice, the defendant will seek to prove “the business necessity of the practices causing the disparity.” Id. at 1270. Although the defendant will be precluded from offering a legitimate, nondiscriminatory reason for any discriminatory nonpromotion that the individual named plaintiffs establish that they suffered, she may defend against the plaintiffs’ statistical showing by either attacking the accuracy of the plaintiffs’ statistical showing or presenting competing statistical evidence to refute the significance of the plaintiffs’ showing.
CONCLUSION AND ORDER
Based on all of the evidence presented, it was not clearly erroneous for the magistrate judge to find that the defendant violated the discovery order compelling the defendant to conduct a reasonable search for and produce responsive documents. Furthermore, the defendant has shown neither that the magistrate judge erred in imposing sanctions under Rule 37 for the defendant’s failure to reasonably search for and produce responsive documents nor that the magistrate judge’s imposition of costs was unjust. The preclusion sanction will be construed to preclude the defendant from offering any legitimate, nondiscriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs. Accordingly, it is hereby
ORDERED that the defendant’s objections [605] to the magistrate judge’s imposition of sanctions be, and hereby are, OVERRULED. The defendant is precluded from offering any legitimate, non-discriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs.
12

Moore v. Napolitano, 723 F.Supp.2d 167 (2010) 13

 
 Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 1 of 30

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________

)

REGINALD G. MOORE, et al., )

)

Plaintiffs,

)

)

v.

) Civil Action No. 00-0953 (RWR)

)

TOM RIDGE, Secretary

)

U.S. Department of Homeland )

Security,

)

)

Defendant.

)

____________________________ )

MEMORANDUM OPINION AND ORDER Plaintiffs, ten black current and former special agents of the United States Secret Service -- individually and on behalf of a putative class of black special agents who have been employed by the United States Secret Service as GS-1811’s from January 1, 1974 to the present -- filed this action against the Treasury Secretary1 under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2000), and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiffs allege that the Secret Service has engaged in a pattern and practice of racial discrimination in its promotion of black special agents from the

1 As the Secret Service is now housed in the Department of Homeland Security, Secretary Tom Ridge will be substituted for the Treasury Secretary as the defendant. Fed. R. Civ. P. 25(d)(1).

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- 2 GS-13 to the GS-14 level. Defendant filed a Motion to Dismiss (“Mot. to Dismiss”) arguing, among other things, under Federal Rule of Civil Procedure 12(b)(1), that this court lacks jurisdiction over plaintiffs’ claims because of plaintiffs’ failure to exhaust their administrative remedies. Because the class claim has been filed prematurely without exhaustion of administrative remedies, defendant’s motion to dismiss that claim will be granted without prejudice. Because plaintiff Reginald Moore has exhausted his individual non-selection claim, and because the individual non-selection claims of Special Agents John Turner, C. Yvette Summerour, Cheryl Tyler and Luther Ivery can be deemed vicariously exhausted by Moore’s claim, defendant’s motion to dismiss those claims will be denied. Defendant’s motion to dismiss the remaining individual claims regarding discrimination in transfers and assignments (including discriminatory assignments to undercover work), as well as claims regarding discrimination in making career-enhancing opportunities, discrimination in hiring, testing, discipline, awards, bonuses, and performance evaluations available to black agents, will be granted because these claims were never filed with the EEOC and administratively exhausted. For the same

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- 3 reason, defendant’s motion to dismiss the hostile environment claims and retaliation claims will be granted.
BACKGROUND Plaintiffs allege that the Secret Service has systematically discriminated against them in the areas of recruitment, assignments, promotions, and discipline, among other claims. (See Class Action Complaint (“Compl.”) ¶¶ 7-20.) Plaintiffs recount a history of non-selections, desultory recruitment efforts, exclusion from choice assignments, and general harassment, all of which was brought to the attention of Secret Service management at various points throughout a period of twenty-six years beginning in 1974. (See id. ¶¶ 12, 21-25, 34, 40.) According to plaintiffs, management at the Secret Service repeatedly assured them that the Service would improve its efforts to recruit, hire and retain black agents. (See id. ¶ 40.) Plaintiffs filed this action asserting that after twentyfive years of unsatisfactory progress, they could no longer rely on the Service to redress their grievances. I. GENERAL HISTORY OF ALLEGED DISCRIMINATION: 1974-1999 Black agents of the Secret Service sent then-Director H.S. Knight a memorandum in 1974 outlining numerous concerns that they had about the treatment of black agents within the Service. (Id.

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- 4 ¶ 6.) The agents noted that less than three percent of the agents in the Secret Service were black, that most of the black agents in the field offices were limited to working on less desirable “check cases,” and that only one black agent that year was considered sufficiently qualified to merit a promotion. (Id. ¶¶ 7-9.)
The agents sent a similar communication to Director Knight in 1977, outlining essentially the same concerns. (Id. ¶ 10.) In this second communication, the agents recounted two specific incidents where racial slurs had been uttered in a black agent’s presence. (Id. ¶¶ 12-13.) The agents explained that they had not brought their claims to the attention of the equal employment opportunity (“EEO”) personnel in the Secret Service because they believed that the EEO personnel were neither qualified to address their concerns nor interested in doing so. (Id. ¶ 11.) Director Knight issued a letter to all Secret Service employees, urging them to refrain from uttering racist remarks and ordering all supervisors to handle reports of such incidents promptly and firmly. (Id. ¶ 14.)
Ten years later, representatives of the black special agents met with Kevin Houlihan, the Assistant Director of the Office of Investigations, and George Opfer, the Acting Assistant Director

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- 5 of Protective Operations. (Id. ¶ 15.) In that meeting, the black agents reiterated the same concerns that they had ten years before: continuing discrimination in recruiting and hiring, promotions, assignments and discipline. (Id.) In particular, the agents challenged the apparent lack of effort to recruit black agents, the Service’s failure to assign any black agents to the policy-making divisions at headquarters, the disproportionate relegation of black agents to undercover assignments, the differences experienced in matters of discipline, and the fact that black agents spent a longer time within promotion grades than their non-black counterparts. (Id. ¶¶ 16-20.) In response, Assistant Director Houlihan agreed to intensify recruitment efforts, to keep channels of communication open with the black agents, and to discuss their concerns with other Secret Service management personnel. (Id. ¶¶ 22-25.)
Two years later in 1989, representatives of the black special agents sent another memorandum to then-Director John R. Simpson, which detailed the same concerns that were outlined in 1987 and 1974.2 (Id. ¶ 33.) In that same year, the black agents of the Secret Service filed an EEO complaint requesting
2 In the 1989 memorandum, the black special agents added that the Secret Service discriminated when giving out awards as well. (See Compl. ¶ 28.)

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- 6 certification of a class of black special agents who were alleging widespread discrimination throughout the entire Secret Service. (See Mot. To Dismiss at 14-15.) The administrative judge handling the case recommended denying class certification in November 1990, and in 1991, the Department of the Treasury issued a Final Agency Decision accepting the recommendation. (Id. at 15-16.) The plaintiffs there did not appeal the decision. (Id. at 16.)
Seeing no improvement in the employment practices of the Service, the black special agents sent another memorandum outlining their concerns to then-Director John W. Magaw. (See Compl. ¶ 34.) Recounting no effort by Director Magaw to specifically address the issues raised by the black agents, plaintiffs allege that the Secret Service continued to adhere to an “old boy” system which systematically excludes black employees from desirable employment positions and subjects black agents within the organization to disparate treatment. Plaintiffs here filed this action on May 3, 2000. II. AGENTS’ INDIVIDUAL CLAIMS
A. Reginald Moore Lead plaintiff Reginald Moore alleges that he was the victim of a discriminatory selection process when he applied for and was

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- 7 denied promotions on two occasions in 1999. Plaintiff states that he applied for a position at the GS-14 level and was denied the promotion while a less-qualified white male received it. (Id. ¶ 50.) In addition, Moore claims that he has been subject to discriminatory performance evaluations. (Id. ¶ 61.) On October 12, 1999, Moore filed an individual complaint with the Department of the Treasury alleging that his non-selection was the product of discrimination. (See Pls.’ Mem. Of P. & A. in Opp’n to Def.’s Mot. To Dismiss (“Pls.’ Opp’n”) at 5, Ex. 1 & Ex. 2.)
B. John Turner John Turner alleges that he was discriminated against in the promotions process twice in 1999. Plaintiff asserts that he applied for and was denied a promotion to the GS-14 level in favor of two less-qualified white males. (See Compl. ¶ 52.) In addition, he claims that the Secret Service discriminated against him by giving him unfavorable treatment in performance evaluations. (Id. ¶ 62.) Turner also claims that the Secret Service discriminated against him when he was hired at the GS-5 level, despite his former status as a GS-8 while working for the Bureau of Prisons and despite three years of service in the Army. Turner also alleges that he was retaliated against for expressing

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- 8 concerns about the lack of diversity in Service leadership positions in 1995. (Id. ¶¶ 92, 120.) Turner filed a class action complaint with the Department of the Treasury on or about February 2, 2000.3 (See Pls.’ Opp’n at 5 & Ex. 1.)
C. Yvette Summerour Yvette Summerour applied for twelve promotions from January to December 1999 and was denied a promotion on each occasion while allegedly similarly situated or lesser-qualified white agents were promoted. (Id. ¶ 54.) Summerour also claims that she was discriminated against through deflated performance evaluations, by being given transfers and assignments that diminished her chances of promotion, and when a Service recruiter told her in the year she was hired that she could not apply directly from college though other white agents were hired straight from college. (Id. ¶¶ 63, 69, 93.) Summerour never filed an EEO complaint. D. Leroy Hendrix Leroy Hendrix claims that he was denied an assignment to a “whip” position while four white agents who were less qualified
3 The parties have advanced two different dates for the filing of Turner’s class action complaint. Defendant states that Turner filed on February 3, 2000, and plaintiffs contend that Turner filed on or about February 2, 2000. The parties do not allege that this discrepancy is of any consequence.

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-9than Hendrix were assigned to whip positions in 2000. (Id. ¶ 70.) In addition, he claims that the Secret Service discriminated against him by hiring him at a GS-7 level although he was previously a GS-9 in the Air National Guard. (Id. ¶ 94.) Furthermore, Hendrix asserts that he was discriminatorily forced to take the Treasury Enforcement Exam (“TEA”) three times before passing it, which delayed his employment as a special agent. Hendrix also alleges a hostile work environment claim because in 1989, a white agent used a racial epithet in his presence. (Id. ¶ 110.) Hendrix never filed an EEO complaint.
E. Cheryl Tyler Cheryl Tyler resigned from the Secret Service in 1999 after fifteen years of service. (Id. ¶ 55.) She alleges that during her time in the Secret Service, she was discriminated against in promotions and assignments, that she was subjected to a discriminatory test -- the TEA -- which she initially did not pass, and that she was subjected to a racially hostile work environment in the Atlanta, Georgia field office. (Id. ¶¶ 55, 87, 100, 111.) F. Luther Ivery Luther Ivery alleges that despite his ten years of employment with the Service, he has not been promoted from the

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 10 of 30
-10GS-13 level after having applied for fifty-three positions in nearly every division of the Secret Service between 1997 and 2000. (Id. ¶ 56.) In each instance, he was passed over, many times in favor of an allegedly similarly-situated white employee. (Id.) Ivery also claims that he was assigned to do undercover work without having been provided undercover training or a gun. (Id. ¶ 88.) In addition, he claims that the Service discriminated against him by hiring him at the GS-5 level when similarly-situated white agents were hired at the GS-7 level. (Id. ¶ 95.) Ivery also claims that he has suffered retaliation for taking part in this lawsuit (id. ¶ 121), and that he has endured a hostile work environment in the Los Angeles field office where racial epithets were uttered in his presence numerous times. (Id. ¶ 112.) Ivery never filed an EEO complaint.
G. Arthur Evans Arthur Evans, who retired in 1999, makes only one claim here. During his tenure in the Secret Service, he claims that he was subjected to a hostile work environment. (Id. ¶ 113.) While assigned to the Tampa, Florida office, he was under the allegedly harassing scrutiny of a white Special Agent in Charge (“SAIC”) who treated him worse than his white counterparts, and during a

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- 11 special agents’ training session in Washington, D.C., he heard a white agent refer to him with a racial slur. (Id.) Evans never filed an EEO complaint.
H. Robert Moore Robert Moore retired from the Secret Service in 1993. He alleges that he was subjected to discrimination in promotions, hiring, transfers and assignments; was subjected to a racially hostile work environment; and suffered retaliation for making racial discrimination complaints. (Id. ¶¶ 57, 71-73, 89, 96, 114, 122.) Moore never filed an EEO complaint. I. Donald Tucker Donald Tucker retired from the Secret Service in 1990. (Id. ¶ 41(i).) He claims that the Secret Service discriminated against him when it did not promote him to the GS-15 level after a tenure at headquarters as the Assistant Special Agent in Charge (“ASAIC”) of the counterfeit division. Tucker alleges that other white males who had held the ASAIC position transferred out of it at the GS-15 level. (Id. ¶ 58.) In addition, he claims that he received a discriminatory performance evaluation when he was the SAIC of the Phoenix, Arizona field office, that he was discriminated against when the Service made selections for bonuses and performance awards, and that he was subjected to a

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- 12 hostile work environment claim when agents posted swastikas and racial slurs on the walls of Service offices in 1987. (Id. ¶¶ 64, 107, 115.) Tucker never filed an EEO complaint.
J. Jenell G. Walker-Clark Jennell Walker-Clark resigned from the Secret Service in 1996. (Id. ¶ 41(j).) She claims that she received discriminatory performance evaluations, that she was discriminated against in transfers and assignments, and that she was denied career-enhancing opportunities. (Id. ¶¶ 65-66, 7484.) In addition, she claims that despite having a master’s degree, she was hired as a GS-7, while other white agents with master’s degrees were hired at the GS-9 level. (Id. ¶ 97.) Furthermore, she claims that she was subjected to retaliation during her tenure in the Atlanta field office after complaining about racial discrimination. (Id. ¶ 124.) Finally, she alleges that she was discriminated against in disciplinary matters, bonuses and awards, and that between 1990 and 1992, she was subjected to a racially hostile work environment. (Id. ¶¶ 104105, 108, 116-118.)

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- 13 DISCUSSION I. APPLICABLE LEGAL PRINCIPLES Before a court may address the merits of a complaint, it must be assured that it has the authority to exercise jurisdiction over the claims. See Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C. 2002) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998)). Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a claim based on the court’s lack of jurisdiction over the subject matter, and the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Forrester v. United States Parole Comm’n, 310 F. Supp. 2d 162, 167 (D.D.C. 2004); see also McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (noting that the plaintiff “must carry throughout the litigation the burden of showing that he is properly in the court”). Because subject matter jurisdiction focuses on the court’s authority to hear the claim, a court must “conduct a careful inquiry and make a conclusive determination whether it has subject matter jurisdiction or not,” 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d (“Wright & Miller”) § 1350 (1990), by examining the complaint and, “where necessary, . . . [by] consider[ing] the complaint supplemented by

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- 14 undisputed facts evidenced in the record. . ..” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003). If the defendant facially challenges the basis for subject matter jurisdiction, the plaintiff’s factual allegations are assumed to be true. See Wright & Miller, § 1350; see also Artis v. Greenspan, 223 F. Supp. 2d 149, 154 (D.D.C. 2002). If the jurisdictional ground pled in the complaint is “insufficient or entirely lacking, but there are facts pleaded in the complaint from which jurisdiction may be inferred, then the [Rule 12(b)(1)] motion must be denied.” Minebea Co., Ltd. v. Papst, 13 F. Supp. 2d 35, 38 n.2 (D.D.C. 1998) (citing Wright & Miller).
A defendant may move to dismiss a claim under Rule 12(b)(1) for plaintiff’s failure to exhaust her administrative remedies that are a condition precedent to filing suit. See Scott, 264 F. Supp. 2d at 9. Under Rule 12(b)(6), a court may dismiss for failure to state a claim only if the plaintiff would be unable to prove any set of facts that would entitle her to relief. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Alexis v. Dist. of Columbia, 44 F. Supp. 2d 331, 336 (D.D.C. 1999). A court must accept as true all well-pleaded facts alleged by the plaintiff, and must give the plaintiff the benefit of all reasonable inferences that can be derived in her

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- 15 favor. See Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 21 (D.D.C. 2000); see also Alexis, 44 F. Supp. 2d at 336. In order to determine whether the facts alleged by the plaintiff state a claim, the court may consider the facts in the complaint and any attached documents incorporated in it. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). The court need not, however, accept as true the legal conclusions that are drawn by the plaintiff. See Papasan v. Allain, 478 U.S. 265, 286 (1986).
In its motion to dismiss, defendant argues that plaintiffs failed to administratively exhaust both their individual and class claims, and that many of the individual claims are untimely. (See Mot. to Dismiss at 2.) Plaintiffs assert that the class claim has been administratively exhausted; that since the lead plaintiff exhausted his claims, the claims of the other plaintiffs may be deemed to have been vicariously exhausted; and that the defendant is equitably estopped from raising its exhaustion argument and that the doctrine of continuing violations renders their untimely claims timely. (See Pls.’ Opp’n at 3.)

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- 16 II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Prior to filing a Title VII suit, ordinarily a federal employee must exhaust her administrative remedies as described in 29 C.F.R. Part 1614. Failure to exhaust will deprive a court of jurisdiction over the Title VII claim. See 42 U.S.C. § 2000e5(b); Love v. Pullman Co., 404 U.S. 522 (1972). If an aggrieved employee believes that she has been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap, then she must consult an EEO counselor in an effort to informally resolve the situation. See 29 C.F.R. § 1614.105(a). This contact with the EEO counselor must occur within forty-five days of the alleged discriminatory action. See id. § 1614.105(a)(1).
If the EEO counselor is unable to informally resolve the matter within thirty days of the date of the aggrieved person’s first contact, the counselor must inform the party of her right to file a formal complaint of discrimination. See id. § 1614.105(d). The agency must then complete an investigation within 180 days of the filing. See id. § 1614.106(e)(2).
If a class complaint is filed with an agency, the agency must, within 30 days of receiving the complaint, forward the complaint and other relevant information to the EEOC. See id.

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- 17 § 1614.204(d)(1). The EEOC will assign the case to an administrative law judge or complaints examiner, who then makes a decision to accept or dismiss the complaint. See id. at § 1614.204(d)(1)-(7). The agency must take final action by issuing a final order within forty days of receiving the hearing record and administrative judge’s decision. See id. at § 1614.204(d)(7).
Section 1614.606 states that “[c]omplaints of discrimination filed by two or more complainants consisting of substantially similar allegations of discrimination or relating to the same matter may be consolidated by the agency or the Commission . . . .” 29 C.F.R. § 1614.606. Complaints which are consolidated with earlier filed complaints shall be investigated by the agency “within the earlier of 180 days after the filing of the last complaint or 360 days after the filing of the original complaint . . . .” Id. (emphasis added). A complainant has the right to file a civil action in federal district court after administrative remedies have been exhausted. See id. at § 1614.407.
While the remedial purposes underlying Title VII caution against engaging in overly technical interpretations which have the effect of “improperly imped[ing] the goal of making federal

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- 18 employment free from proscribed discrimination,” Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985), a court also “cannot allow liberal interpretation of an administrative charge to permit a litigant to bypass the Title VII administrative process.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). The extensive regulatory requirements permit a defendant to understand the nature of the claims and narrow the issues to be adjudicated. See id. More importantly, however, “it is part and parcel of the Congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel ‘primary responsibility’ for maintaining nondiscrimination in employment.’” Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983); see also Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (“Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary.”).
A. Class Claim On October 12, 1999, Reginald Moore filed an EEO complaint with the Department of the Treasury alleging that he had been discriminated against when he was passed over for two promotions in the summer of 1999. Turner filed an EEO complaint on or about

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- 19 February 2, 2000 on behalf of himself and a class of black agents who allegedly had been discriminated against while employed by the Secret Service. (See Pls.’ Opp’n at 4-5.) On or about March 9, 2000, the Treasury Department forwarded the case file to the Washington Field Office of the Equal Opportunity Employment Commission (“EEOC”). (See Pls.’ Opp’n Ex. 1.) The complaints were consolidated, and on March 20, 2000, the EEOC informed the parties that the class complaint could be deemed to have been filed on October 12, 1999. (Id. at 5.) Defendant urges, however, that the EEOC should have determined that the dispositive filing date was February 3, 2000, fewer than 180 days before plaintiffs filed this action.
Plaintiffs note that the regulation which was in place when Moore filed his complaint stated that “complaints of discrimination . . . may be consolidated . . . for joint processing . . . [and] [t]he date of the first filed complaint controls the applicable timeframes . . . .” See 29 C.F.R. § 1614.606 (1999) (emphasis added). Plaintiffs describe that the regulation was changed in 1999, to give the EEOC 180 days from the filing of the last complaint to complete its investigation of a matter. (See Pls.’ Supplemental Opp’n at 5.) Plaintiffs argue that the regulation did not take effect until November 1999 and

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- 20 that the EEOC elected not to apply the new regulation and instead, applied the regulation that was in force when Moore filed his complaint in October 1999. Id. They suggest that under Chevron v. National Resources Defense Council, 467 U.S. 837 (1984), the EEOC’s determination was a reasonable interpretation of an EEOC-administered regulation to which the court should now defer.
A court must defer to an agency’s interpretation of its own regulation unless it is “plainly erroneous or inconsistent with the regulation.” See First Am. Disc. Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008, 1016-17 (D.C. Cir. 2000) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also Auer v. Robbins, 519 U.S. 452, 461 (1997). In this case, applying the old regulation to the consolidated complaint was plainly erroneous. The new rule was published in the Federal Register on July 12, 1999, and in the section entitled “Applicability Dates,” the rule stated that “[a]ll actions taken by agencies and by the Commission after November 9, 1999 shall be in accordance with this final rule.” Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,644 (July 12, 1999). The consolidation was an action taken by the EEOC on March 20, 2000, well after the November 9, 1999 date. Accordingly, plaintiffs’

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- 21 class claim is deemed to have been filed when Turner filed his complaint in February 2000. Since this action was filed before the 180-day period for investigating the class claim had expired, the class claim will be dismissed for failure to exhaust administrative remedies.4
B. Individual Claims Defendant argues that many of the individual claims are untimely and/or unexhausted. A plaintiff may assert equitable defenses to failure to comply with a limitations period for initiating a charge. These timing requirements are not meant to be jurisdictional barriers to a plaintiff. Instead, these requirements are subject to the equitable considerations of estoppel and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Since a claim of untimeliness is an affirmative defense that must be pled by a defendant, a plaintiff has the burden of proving facts which support a ruling that he may avoid the consequences of his own untimeliness. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Plaintiffs have raised equitable arguments in support of maintaining claims dating back to 1974. Before making those arguments, however, the plaintiffs first state that lead 4 Thus, defendant’s argument that the class claim fails to state a claim need not be reached.

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- 22 plaintiff Reginald Moore did exhaust his claims, and the other claims can survive by means of vicarious exhaustion.
1. Vicarious Exhaustion Defendant argues that plaintiffs have failed to exhaust their administrative remedies with respect to their individual claims. Plaintiffs oppose, arguing that Reginald Moore’s exhausted claim operates to vicariously exhaust the claims of the other individual plaintiffs. Under the doctrine of vicarious exhaustion, a Title VII plaintiff who has failed to file an EEO charge may, under some circumstances, join his claim with that of another plaintiff who has filed properly an EEO charge. See Foster v. Gueory, 655 F.2d 1319, 1322 (D.C. Cir. 1981). A plaintiff may invoke the doctrine of vicarious exhaustion only if one plaintiff actually has exhausted his claims and if the exhausted claims are so similar to the unexhausted claims that “it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges . . . .” Id. In Foster, several non-union plaintiffs attempted to intervene in a Title VII suit brought by black union pile drivers who were alleging racial discrimination in employment. See id. at 1231. Despite alleging that the only difference between themselves and the other plaintiffs was their non-union status,

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- 23 the district court denied the motion to intervene, in part because the plaintiffs there had not exhausted their administrative remedies. Id. The court of appeals reversed, holding that the plaintiffs’ complaints were so similar to the timely-filed complaints that no conciliatory purpose would be served by requiring separate EEOC filings. Id. at 1323. The court noted however, that when “the two complaints differ to the extent that there is a real possibility that one of the claims might be administratively settled while the other can be resolved only by the courts,” the additional complaint should not be deemed vicariously exhausted. Id. Critical to the court’s reasoning was the opportunity for a defendant to be on notice of the charges against it. There, all of the plaintiffs’ claims were so similar that one individual filing was enough to make the alleged wrongdoers aware of the scope and nature of the charges. Id.
Similarly, in Cook v. Boorstin, 763 F.2d 1462, 1464 (D.C. Cir. 1985), thirty-one black employees of the Library of Congress were denied permission to intervene in a Title VII class action suit against the Library. The plaintiffs there -- most of whom had failed to exhaust their administrative remedies -- alleged that the Library systematically discriminated against black

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 24 of 30
- 24 employees in promotions and advancement decisions. Id. The court of appeals reversed the district court, holding that the plaintiffs’ claims were functionally identical. Though the individual circumstances giving rise to the claims differed, each plaintiff planned to prove the same thing: that a pervasive pattern and practice of racial discrimination existed in the area of promotion and advancement. Id. at 1466. Furthermore, since the final decision in the administrative class action had rejected the allegations of systemic discrimination, there was no possibility that the individual claims could be administratively settled. Id.; cf. Mayfield v. Meese, 669 F. Supp. 1123, 1133 (D.D.C. 1987) (holding that the plaintiffs who had failed to exhaust their administrative remedies could not make use of the vicarious exhaustion principle because there was a real possibility that their claims could be settled).
In this case, it is uncontested that Reginald Moore has exhausted his claim. He filed his individual EEO complaint on October 12, 1999, and on April 10, 2000, that claim was exhausted. Moore’s complaint described discriminatory failure to promote on two occasions. The only claims which could be sufficiently similar to Moore’s claim therefore, are the nonselection claims raised by Agents Turner, Summerour, Tyler,

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 25 of 30
- 25 -
Ivery, Robert Moore and Tucker.5 The other claims raised by
plaintiffs -- discrimination in hiring, performance evaluations,
and testing claims, hostile work environment, retaliation, and
discriminatory assignment claims, among others -- have the
generic thread of racial discrimination tying them together, but
are not the kinds of claims that the Secret Service could have
reasonably anticipated while investigating Reginald Moore’s
single complaint of promotion discrimination. While many of the
claims raised by plaintiffs certainly may have had an impact on a
decision to promote, it is entirely unclear that investigation of
Reginald Moore’s 1999 non-selections would have brought to light
every other claim that has been made here, or even the non-
5 In advancing a broad reach of the vicarious exhaustion doctrine, plaintiffs cite cases from two other circuits which suggest that a co-plaintiff who has not exhausted his or her claims need only assert claims on the periphery of issues that were asserted in the exhausted claims. See Griffin v. Carlin, 755 F.2d 1516, 1532 (11th Cir. 1985); see also Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). Although in Oatis, the court did hold that Title VII plaintiffs could join their unexhausted claims to exhausted claims, that ruling sought to ensure that individual claimants could protect their ability to participate in class actions. The defendants there tried to argue that class actions would lie only if all members of the class had previously filed a claim with the EEOC. See Oatis, 398 F.2d at 498. Griffin is also distinguishable because the complaint which spurred the internal investigation specifically described individual as well as group claims of discrimination, thereby ensuring that the defendant was on notice of the claims that the non-filers subsequently tried to assert. See Griffin, 755 F.2d at 1532.

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 26 of 30
- 26 -
selections occurring more than six (Robert Moore) and eight
(Tucker) years prior. Therefore, only the non-selection claims
of Turner, Summerour, Tyler and Ivery will be deemed to have been vicariously exhausted.6 All other individual claims will be
dismissed for failure to exhaust administrative remedies.
2. Equitable Tolling and Estoppel
Plaintiffs claim that defendant also is equitably estopped
from arguing that the statute of limitations bars some of their
non-promotion claims. Estoppel saves a claim from being time
barred “if the defendant takes active steps to prevent the
plaintiff from suing in time, as by promising not to plead the
statute of limitations.” Id. at 580. “[T]olling on estoppel
grounds is proper where ‘a claimant has received inadequate
notice, . . . where the court has led the plaintiff to believe
that she had done everything required of her, . . . [or] where
6 At oral argument, counsel for the government stated that the Secret Service changed its promotions system in 1997, and conceded that non-selection claims dating back to 1998 would thus be sufficiently similar to survive dismissal. If claims dating back to 1998 would be sufficiently similar, so too would any nonselection claim that postdates the implementation of the new promotions system in 1997. Certainly, then, all non-selection claims referred to in the complaint by Reginald Moore, Turner, Summerour, Tyler and Ivery that postdate the creation of this new system could be deemed vicariously exhausted. Whether “there is a real possibility that one of the claims might be administratively settled while the other[s] can be resolved only be the courts,” Foster, 655 F.2d at 1322, ought to await further development of the record.

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 27 of 30
- 27 affirmative misconduct on the part of the defendant lulled the plaintiff into inaction.’” Id.; see also Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091-92 (D.C. Cir. 1985) (holding that the plaintiff would be equitably excused from noncompliance with filing requirements because he relied on the assurances of an EEO officer who stated that he was in the process of rectifying the situation that led the plaintiff to eventually make a complaint); Currier v. Radio Free Europe, 159 F.3d 1363, 1367-68 (D.C. Cir. 1998) (holding that affirmatively misleading statements to an ex-employee gave rise to an equitable claim by the plaintiff).
Plaintiffs offer numerous instances that they claim show that the Secret Service was made aware of the discrimination that existed within the ranks of the organization and that show that it assured the plaintiffs -- albeit allegedly falsely -- that the problems would be meaningfully addressed. The plaintiffs argue that they did not press their rights before now because of their belief in and reliance upon assurances offered by the Service. Although the effectively undisputed7 facts concerning these
7 A footnote in the reply memorandum declares that the “Secret Service does not agree with plaintiffs’ narration of events.” (Def.’s Reply Mem. at 11 n.8.) However, the memorandum supplies no factual rebuttal to the relevant facts alleged by plaintiff concerning defendant’s representations, and argues its point on the assumption that plaintiffs’ facts are true. (Id. at

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 28 of 30
- 28 contacts as pled by the plaintiffs provide fairly thin support
their equitable argument, they suffice to defeat the motion to dismiss under Rule 12(b)(6).8
CONCLUSION
Despite plaintiffs’ compelling allegations of discrimination
within the Secret Service, the class claims must be dismissed
because of failure to exhaust, as must the claims of individual
plaintiffs that cannot be deemed to have been vicariously
exhausted. The non-selection claims raised by five plaintiffs
may survive the motion to dismiss because Reginald Moore’s claim
has been exhausted and there are facts that may equitably estop
the defendant from asserting the statute of limitations as a
defense. Accordingly, it is hereby
ORDERED that Secretary Tom Ridge, U.S. Department of
Homeland Security, be and hereby is, SUBSTITUTED for the
Secretary of the Treasury as the defendant. It is further
11.) 8 Plaintiffs also assert a theory of continuing violations
to save their untimely claims. Because a plaintiff must show that there is a series of related discriminatory acts, one of which falls within the limitations period, or prove the maintenance of a discriminatory system both before and during the limitations period to invoke the continuing violations defense, and because an EEO complaint with at least one timely filed claim is a predicate to the theory, plaintiffs who did not file an EEO complaint cannot save their untimely claims on that ground. See Anderson v. Zubieta, 180 F.3d 329, 336-37 (D.C. Cir. 1999).

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 29 of 30
- 29 ORDERED that defendant’s motion to dismiss [#19] be, and hereby is, GRANTED IN PART and DENIED IN PART. Plaintiffs’ class claim, and plaintiffs’ individual claims except for the discriminatory non-selection claims by Reginald Moore, Turner, Summerour, Tyler, and Ivery, are dismissed. It is further ORDERED that plaintiffs’ amended motion [#83] for class certification and defendant’s motions [#62, 84] to postpone briefing be, and hereby are, DENIED as moot. It is further ORDERED that plaintiffs’ motion for a hearing [#107] be, and hereby is, GRANTED. A separate order will issue scheduling an initial scheduling conference. In light of the fact that discovery may begin after the scheduling order is issued at the initial scheduling conference, it is further ORDERED that plaintiff’s motion [#110] for an order regarding preservation of documents be, and hereby is, DENIED. It is further ORDERED that plaintiffs’ motions [##120, 121] to expedite or to refer the case to a Magistrate Judge for all purposes and to reconsider recusal be, and hereby are, GRANTED in part and DENIED in part. As is ordered above, the case will be calendared for an initial scheduling conference in a separate order. Referral to a Magistrate Judge for all purposes is denied absent defendant’s

Case 1:00-cv-00953-RWR -DAR Document 129 Filed 10/24/04 Page 30 of 30
- 30 required consent. LCvR 73.1. Reconsideration of recusal is denied without prejudice at this time. It is further
ORDERED that the parties’ unopposed motions [##122, 124] for extensions be, and hereby are, GRANTED nunc pro tunc. It is further
ORDERED that the defendant’s motion [#126] for leave to file a sur-reply be, and hereby is, DENIED, and that plaintiffs’ response [#127] to defendant’s sur-reply be STRICKEN.
SIGNED this 24th day of October, 2004.
____________________________ RICHARD W. ROBERTS United States District Judge

 
 437 F.Supp.2d 156 (2006)
Reginald MOORE et al., Plaintiffs, v.
Michael CHERTOFF, Defendant.
Civil Action No. 00-953 (RWR)(DAR).
United States District Court, District of Columbia.
July 7, 2006.
1578 *157 *158 Jennifer I. Klar, John Peter Relman, Relman & Associates, PLLC, Deborah L. Boardman, E. Desmond Hogan, Sarah M. Berger, Hogan & Hartson, L.L.P., Washington, DC, for Plaintiffs.
Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Benton Gregory Peterson, Assistant United States Attorney, Civil Division, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
ROBERTS, District Judge.
Plaintiffs and defendant have moved for reconsideration of the March 30, 2006 Memorandum Opinion and Order ("March 2006 Opinion"), which ruled that plaintiffs could not plead their untimely filed claims dating back to 1974 under a theory of equitable estoppel, but plaintiffs' claims concerning the building blocks of promotion had been 159 vicariously exhausted and could be pled in the amended complaint. Plaintiffs argue that they are nonetheless *159 entitled to bring non-promotion claims dating back to 1993 because they have alleged a continuing violation which saves these otherwise untimely claims. Defendant argues, among other things, that claims of discrimination in the building blocks of promotion should not be deemed vicariously exhausted because the representative plaintiff's claim did not implicate the building blocks of promotion and he lacks standing to bring a class complaint for injuries he did not suffer. Both parties request that the time period of building block claims that plaintiffs may file be clarified. Because plaintiffs have properly alleged a continuing violation in a pattern and practice suit, they may plead non-promotion claims dating back to 1993. Because plaintiffs' timely filed and fully exhausted non-promotion class claim vicariously exhausts contemporaneous and subsequent building block claims, claims concerning the building blocks of promotion dating back to 1999 may be pled.
BACKGROUND[1]
Secret Service Agent John Turner timely contacted an EEO counselor in February 2000 after learning of his nonselection to a GS-14 position for which he had applied. Agent Turner also filed an administrative class complaint alleging that "the Secret Service has discriminated against African-American Agents through its personnel policies, practices, and procedures." (Pls.' Motion for Reconsideration, Ex. A, Second Amended Class Complaint ("Second Amended Class Complaint") ¶ 2.) In describing his own alleged discriminatory non-promotion, Agent Turner noted his strong qualifications, including a high job evaluation score. (See id. ¶¶ 35-40.) With regard to black agents as a class, the class complaint alleged enduring and systematic discrimination in selection for competitive positions; performance evaluations; transfers, assignments, and other career enhancing opportunities; assignment to undesirable work; hiring practices; testing; disciplinary policies and practices; and awards and bonuses. (See id. ¶¶ 12-25.)
At the time of Agent Turner's timely filed non-promotion class claim, the Secret Service's promotion policy was divided into two phases: (i) the Merit Promotion Plan ("MPP") scoring process,[2] a multi-tiered evaluation process that involves the scoring of candidates by supervisors and peers on the candidates' past performance and experience, and (ii) the bid and selection process, a process with limited directions and no written evaluation

procedures where the promotion Advisory Board selects the candidate for a given vacancy. (See Def.'s Opp'n to Pls.' Mot. for Reconsideration, Ex. 1, Decl. of Barbara Salinas ("Salinas Decl.") ¶¶ 4-19.) Only the applicants with the highest MPP scores for a given vacancy are able to be considered in the bid and selection phase of the promotion process. (See id. ¶¶ 14-15.)
The March 2006 Opinion held that plaintiffs could not plead their untimely filed claims dating back to 1974 under a theory of equitable estoppel, but plaintiffs could plead claims concerning the building blocks of promotion 160 because they had been *160 vicariously exhausted by Agent Turner's non-promotion class claim. Plaintiffs have moved for reconsideration arguing that they have alleged a continuing violation in a pattern and practice suit and are entitled to litigate non-promotion claims dating back to the inception of defendant's discriminatory policy. Defendant has moved for reconsideration arguing that plaintiffs' building block claims were not vicariously exhausted by Agent Turner's complaint, and that if building block claims were vicariously exhausted, only claims from July 2, 1999 to May 3, 2000 were exhausted.
DISCUSSION
I. DOCTRINE OF CONTINUING VIOLATIONS
Generally, a federal employee must contact an agency equal employment opportunity ("EEO") counselor within forty-five days of an alleged act of employment discrimination in order for the claim to be timely. 29 C.F.R. § 1614.105(a)(1). However, in a pattern and practice suit where there is a continuing violation, a plaintiff may "litigate claims that fall outside of the time-filing requirements if he proves either a `series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the statutory period.'" Pleasants v. Allbaugh, 185 F.Supp.2d 69, 73 (D.D.C.2002) (quoting Palmer v. Kelly, 17 F.3d 1490, 1495 (D.C.Cir.1994)); see Anderson v. Zubieta, 180 F.3d 329, 337 (D.C.Cir.1999) ("Where . . . discrimination is not limited to isolated incidents, but pervades a series or pattern of events which continue to within [45] days of the filing charge . . ., the filing is timely . . . regardless of when the first discriminatory incident occurred.") (quoting Laffey v. Northwest Airlines, 567 F.2d 429, 473 (D.C.Cir.1976)). Claims dating back to the inception of the continuing violation may be pled. See EEOC v. Dial Corp., No. Civ. A. 99C3356, 2002 WL 1974072, at *4 (N.D.Ill. July 23, 2002) (allowing to proceed in the litigation any claims falling within the time period of the violation); see also Anderson, 180 F.3d at 337 n. 10 (noting that plaintiffs may "recover for portions of the persistent process of illegal discrimination that antedated the limitations period.") (quoting McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C.Cir.1982)).
Plaintiffs argue that because Agent Turner timely filed an EEOC claim for non-promotion and plaintiffs have alleged the existence of a discriminatory policy both during and predating the statutory period, they are entitled to litigate non-promotion claims dating back to the inception of the discriminatory policy. Plaintiffs date the beginning of the violation to defendant's promotion policies in 1993 and, in any case, maintain that the defendant conceded a consistent policy, and thus a continuing violation, dating back to January 1, 1998. (See Pls.' Mot. for Reconsideration at 7-10.) The defendant counters that plaintiffs should not be able to plead claims predating 1999 on the theory of a continuing violation for several reasons. First, the defendant contends that Agent Turner's complaint of discrimination concerns only the bid and selection phase of the Service's promotion policy, and therefore, Agent Turner lacks standing to challenge the MPP given his high MPP score and cannot bring a class claim that challenges the MPP. (Id. at 7-9.) This argument is unpersuasive. The MPP is part and parcel of the promotion policy that governed the promotion decision that led to Agent Turner's complaint. Agent Turner's claimed injury is fairly traceable to that process, and he has standing to challenge it. Notably, the defendant cites 161 no factually analogous case where a plaintiff alleged *161 the existence of a discriminatory promotion policy and the plaintiff's challenge was limited to only a single phase of the alleged discriminatory policy. Moreover, the defendant's implied assertion that the phases of the promotion policy are mutually exclusive is unwarranted. By the defendant's own description of the policy, the MPP score could be taken into account in the bid and selection phase. (See Salinas Decl. ¶ 17 (noting that no instructions are provided to the selection committee on how to evaluate the candidates at this phase).) Although a candidate's score might be high enough for the candidate to reach the bid and selection phase, the score might not be high enough in relation to applicants competing at the

bid and selection phase for the candidate to be truly competitive for a given vacancy. Agent Turner's nonpromotion claim as pled sufficiently implicates the MPP to give him standing to challenge the policy.
Second, the defendant maintains that Agent Turner's complaint is not a pattern and practice case, but rather amounts to a series of claims of discrete acts of discrimination. Therefore, the defendant argues, National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), precludes application of the doctrine of continuing violations. However, plaintiffs have plainly and consistently challenged the promotion policies of the Secret Service. (See Second Amended Class Complaint ¶ 12) ("From the dates of their employment continuing up to and including the present time, plaintiffs and the plaintiff class have been discriminated against on the basis of their race, by the employment practices and policies of the Secret Service and by the manner in which these practices have been implemented.") (emphasis added); see also Compl. May 3, 2000 ¶ 47 ("From the dates of their employment, continuing up to and including the present time, plaintiffs and the plaintiff class have been discriminated against on the basis of their race, African-American, by the employment practices and policies of the Secret Service and by the manner in which these practices have been implemented.") (emphasis added). Plaintiffs are challenging the employment practices and policies of the Secret Service, and allege a pattern and practice claim. See Torres v. Mineta, Civil Action No. 04-015(GK), 2005 WL 1139303, at *4 (D.D.C. May 13, 2005) (noting that plaintiffs were challenging a policy or practice of discrimination, not discrete acts, and that Morgan had no applicability).[3]
Next, citing Taylor v. FDIC, 132 F.3d 753, 765 (D.C.Cir.1997) and recent district court cases relying on Taylor, defendant argues that the doctrine of continuing violations requires that a plaintiff be unaware of the alleged violation in order for the doctrine to save untimely claims. Taylor states that "[f]or statute of limitations purposes, a continuing violation is `one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the 162 limitations period[.]' Id. Plaintiffs dispute that Taylor is the law of the circuit and *162 counter with Anderson v. Zubieta, 180 F.3d 329, 337 n. 11 (D.C.Cir.1999), which held that the doctrine of continuing violations could be invoked notwithstanding the plaintiffs' knowledge of the nature of the challenged discriminatory policies. Plaintiffs here argue that Anderson and Taylor "squarely conflict" and urge the court to adopt Anderson because Anderson is the later decided case and adopting the rule in Taylor would collapse improperly the doctrine of continuing violations into the separate doctrine of equitable tolling. (See Pls.' Reply at 11-13) (citing Pleasants v. Allbaugh, 185 F.Supp.2d 69, 76 (D.D.C. 2002) (noting the tension in the holdings of Taylor and Anderson).) Defendant does not acknowledge the tension between the holdings of Anderson and Taylor in its opposition to plaintiffs' motion for reconsideration and offered no opinion at oral argument on the issue.
Plaintiffs' argument that Anderson essentially overruled Taylor is unavailing because "one three-judge panel . . . does not have the authority to overrule another three-judge panel of the court [of appeals]. That power may be exercised only by the full court[.]" LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (citation omitted). Because Anderson and Taylor were both three-judge panel decisions, both cases must be deemed binding, notwithstanding the tension between their holdings, and they require an effort to reconcile them.[4]
The doctrine of continuing violations is applicable where an actual violation of Title VII occurred during the statutory period and the current violation was either part of a series of related acts or caused by a discrimination policy or system. Palmer v. Kelly, 17 F.3d 1490 (D.C.Cir.1994). In Taylor, three former employees sued their employer claiming it retaliated against them for making protected disclosures, in violation of the Resolution Trust Corporation Whistleblower Act, 12 U.S.C. § 1441a(q), and the First Amendment. Taylor, 132 F.3d at 759. In order to save otherwise untimely claims, two of the employees alleged a continuing violation which comprised a litany of retaliatory discriminatory acts, including reassignment, misdirected mail, poor telephone service, and unsuitable work. Id. at 765. The panel in Taylor held that this series of acts "amply manifested itself as a possible retaliation from the start[,]" and so did not amount to a continuing violation. Id. In Anderson, black American citizens of Panamanian and Hispanic national origin challenged their employer's salary and benefits program because it paid them substantially less than other American citizens, who were largely white and nonPanamanian, working at the same jobs. Anderson, 180 F.3d at 332. The plaintiffs in Anderson alleged a continuing violation and sought to bring claims of discriminatory pay that occurred outside the applicable statutory period. Id. at 337. The panel in Anderson held that plaintiffs could bring their otherwise untimely claims under a

theory of a continuing violation, notwithstanding the fact that plaintiffs may have known of the allegedly discriminatory nature of the pay policy. Id. at 337 n. 11.

Taking both Anderson and Taylor as good law, the law of this circuit, though far from clear, precludes applying the 163 doctrine of continuing violations *163 where plaintiffs are aware of the discriminatory nature of the acts if the
basis for the continuing violation is a series of related acts. However, if plaintiffs challenge a discriminatory policy or system, the doctrine of continuing violations may apply without regard to the plaintiffs' awareness or knowledge of the discriminatory nature of that system. In this case, since plaintiffs challenge an alleged system of discrimination, Anderson governs and makes plaintiffs' knowledge of the nature of` the discriminatory system irrelevant. Defendant's argument, then, that plaintiffs are precluded from pleading a continuing violation because they knew of the discriminatory nature of the policy fails.

Finally, defendant argues that the doctrine of continuing violations is inapplicable because it would unduly prejudice the defendant. (See Def.'s Opp'n to Pis.' Mot. for Reconsideration at 23-26.) However, the defendant offers no authority for the proposition that prejudice to the defendant is taken into account in evaluating whether a continuing violation may be pled.

Because plaintiffs challenge an alleged pattern and practice of employment discrimination at the Secret Service, allege an actual violation of Title VII during the statutory period, and allege a continuing violation dating back to 1993, they may properly plead non-promotion claims dating back to 1993.

II. BUILDING BLOCKS OF PROMOTIONS

Under the doctrine of vicarious exhaustion, a Title VII plaintiff who has failed to file an EEO charge may, under some circumstances, join his claim with that of another plaintiff who has filed properly an EEO charge. See Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981). A plaintiff may invoke the doctrine of vicarious exhaustion only if one plaintiff actually has exhausted his claims and if the exhausted claims are so similar to the unexhausted claims that "it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges. . . ." Id. A timely non-promotion class claim will vicariously exhaust claims that involve discrimination in the building blocks of promotion. Contreras v. Ridge, 305 F.Supp.2d 126, 133-34 (D.D.C.2004) (holding that "any EEOC investigation of [a] denial of promotions [class] claim would necessarily involve investigation into the building blocks of promotion[,]" and so the claims concerning such discrimination could be vicariously exhausted by the non-promotion class claim).

The defendant moves for reconsideration of the vicarious exhaustion of plaintiffs' building block claims and advances several arguments in support of the motion. First, the defendant asserts that Contreras is distinguishable from the instant case. The defendant maintains that Agent Turner's complaint did not involve any discrimination in the building blocks of promotion, as demonstrated by his high MPP score, but in Contreras the plaintiff complained to the EEO counselor about being the recent victim of discrimination in building block-type claims. (See Def.'s Mot. for Reconsideration at 6-10.) This argument misses the mark. In Contreras, Judge Robertson held that

Because Contreras contacted an EEOC counselor three days after he was denied a promotion

opportunity, and because both the EEOC class counseling report and the class administrative

charge repeatedly allege discriminatory denial of promotions to Hispanic agents, I find that the

164

claim of discriminatory denial of promotions was timely exhausted. The class claims *164 that are

related to the denial of promotions claim 0907 concerning transfers, assignments, and other career-

enhancing opportunities, undercover and other undesirable work, discipline, awards and bonuses,

and training 0907 are like or reasonably related to the timely exhausted promotions claim because

they concern work opportunities that would credential or position Hispanic agents for promotions.

Any EEOC investigation of the denial of promotions claim would necessarily involve investigation

into the building blocks of promotion. Accordingly, because there is a reasonable relationship

between the class claim of denial of promotions and the class claims of transfers, assignments,

and other career-enhancing opportunities, undercover and other undesirable work, discipline,

awards and bonuses, and training, these claims are also appropriate for adjudication.

Contreras, 305 F.Supp.2d at 133-34. Like the plaintiff in Contreras, Agent Turner timely contacted an EEO counselor after his non-selection, and Agent Turner's timely filed complaint explicitly alleged discriminatory denial of promotions to black agents. This case and Contreras are analogous.
The defendant also maintains that Morgan and the October 2004 Opinion preclude application of Contreras, and that the government would be prejudiced by the addition of these claims. (See Def.'s Mot. for Reconsideration at 10-13.) Morgan is inapplicable here because plaintiffs allege a pattern and practice claim and the Supreme Court explicitly stated that it had no occasion to consider pattern and practice suits in Morgan. See Morgan, 536 U.S. at 115 n. 9, 122 S.Ct. 2061. The October 2004 Opinion does not preclude vicarious exhaustion of building block claims because, as the March 2006 Opinion explained, the October 2004 Opinion refused to hold as vicariously exhausted the claims concerning forms of discrimination other than non-promotion because the timely filed complaint at issue was an individual complaint. See Moore v. Chertoff, 424 F.Supp.2d 145, 151-52, Civil Action No. 00-953(RWR), 2006 WL 832465, at *5 (D.D.C. Mar. 30, 2006). Plaintiffs now have timely filed and exhausted a non-promotion class claim. Finally, the government's prejudice argument is unavailing. Because a reasonable investigation of a class allegation of non-promotion would involve the building blocks of promotion, the defendant was on notice and will not be unfairly prejudiced by the addition of these claims. See Contreras, 305 F.Supp.2d at 133.
The defendant next asserts that Agent Turner lacks standing to exhaust any building block claims because he had a high MPP score and any injury suffered by him was not fairly traceable to anything except the bid and selection phase of the promotion policy. (See Def.'s Mot. for Reconsideration at 13-14.) As is discussed above, the defendant has standing to challenge the Secret Service's promotion policy, including the MPP. Further, Agent Turner's complaint is sufficient to exhaust the building blocks of promotion because, like the plaintiff in Contreras, Agent Turner timely contacted an EEO counselor after his non-selection and the timely filed complaint explicitly alleged discriminatory denial of promotions to the entire class of agents.
The defendant also maintains that hiring practices, pre-employment testing, and awards and bonuses should not be allowed to be vicariously exhausted even if other building block claims may be pled. (See id. at 15-16.) The defendant contends that pre-employment testing and hiring practices are unrelated to promotions in general, and 165 that awards and *165 bonuses are not part of the Secret Service's promotion policy. (Id.) However, each of these forms of discrimination was named in the administrative class complaint. (See Second Amended Class Complaint ¶¶ 21-22, 24.) Plaintiffs allege that the Secret Service hired black agents into lower civil service grades because of discriminatory hiring practices and pre-employment testing. These alleged practices are reasonably related to a non-promotion class claim and may be vicariously exhausted. Claims of discrimination in awards and bonuses also may be vicariously exhausted. Even if awards and bonuses are not counted toward an MPP score, it is not clear that awards and bonuses of an agent may not be taken into account in the bid and selection phase. (See Salinas Decl. ¶ 17 (noting that no instructions are provided to the selection committee on how to evaluate the candidates at the bid and selection phase).) These claims, too, are reasonably related to a non-promotion class claim.
Because the defendant's arguments fail, plaintiffs may plead allegations concerning the building blocks of promotion. However, plaintiffs may not use the vicarious exhaustion of claims concerning the building blocks of promotion to revive claims from long past. See Foster, 655 F.2d at 1323 (holding that vicarious exhaustion was appropriate for untimely filed claims when the "principal functions of the EEOC filing requirements, . . . notice and to permit possible conciliation[,]" had been served by an earlier timely filed claim). The Secret Service was put on notice of potential building block claims by Agent Turner's class complaint. Therefore, only building block claims reasonably contemporaneous with and subsequent to Agent Turner's complaint may be pled. See id.; Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C.Cir.1985) (allowing untimely claims filed subsequent to the original complaint to be pled because the plaintiffs planned to prove their allegations "by demonstrating the same thing: a pervasive `pattern and practice' of racial discrimination in promotion and advancement" and "no substantial possibility that any of the individual claims might have been settled administratively" existed).

CONCLUSION
Plaintiffs challenge an alleged pattern and practice of employment discrimination at the Secret Service, allege an actual violation of Title VII during the statutory period, and allege a continuing violation dating back to 1993. Therefore, they may properly plead non-promotion claims dating back to 1993. Because the plaintiffs timely filed a non-promotion class claim complaining of discrimination in promotion against black agents as a class, claims concerning the building blocks of promotion are vicariously exhausted, and plaintiffs may plead such allegations that are reasonably contemporaneous with or subsequent to Agent Turner's timely filed complaint. Accordingly, it is hereby
ORDERED that plaintiffs' motion [315] for reconsideration be, and hereby is, GRANTED. It is further
ORDERED that defendant's motion [314] for reconsideration be, and hereby is, DENIED in part and GRANTED in part. Plaintiffs are directed to file a Second Amended Complaint consistent with this Memorandum Opinion and Order on or before August 7, 2006. It is further
ORDERED that defendant's motion [289] for reconsideration of the magistrate judge's discovery ruling on MPP scores that must be provided to plaintiffs, defendant's motion [328] for reconsideration of the magistrate judge's 166 ruling on further discovery, and plaintiffs' motion [270] for reconsideration of the magistrate judge's *166 discovery ruling on reasons for non-selections be, and hereby are, DENIED without prejudice to permit further proceedings on these issues before the magistrate judge in light of this Memorandum Opinion and Order. It is further
ORDERED that defendant's motion [338] to dismiss the amended complaint be, and hereby is, DENIED without prejudice to refiling it after plaintiffs file their second amended complaint. It is further
ORDERED that defendant's motion [356] for an extension of time to file a reply in support of the motion to dismiss be, and hereby is, DENIED as moot.
[1] The facts of this case are more fully recited in the March 2006 Opinion and in a Memorandum Opinion and Order issued on October 24, 2004 ("October 2004 Opinion").
[2] The Secret Service has changed the MPP over the years. The MPP in place at the time of Agent Turner's complaint was implemented in 1998. (See Pls.' Mot. for Reconsideration, Ex. B, Expert Report of Frank Landy at 7.) However, plaintiffs maintain that the MPP implemented in 1998 did not produce any substantive changes and that the Service's discriminatory promotion policy actually dates back to 1993. (See Pls.' Mot. for Reconsideration at 8-10.)
[3] The defendant also argues that plaintiffs have offered no statistical evidence of a policy of discrimination, and that in fact there is evidence that black agents are promoted at a slightly faster pace than other agents. (See Def.'s Opp'n to Pls.' Mot. for Reconsideration at 19-22.) Arguments regarding whether or not plaintiffs can demonstrate by a preponderance of evidence the existence of a pattern and practice of racial discrimination in the Secret Service's employment practices are best left for a motion for summary judgment or for trial.
[4] Recent district court opinions adopting the holding of Taylor do not cite or discuss Anderson. See Wilderson v. Snow, Civil Action No. 04-0708(RJL), 2006 WL 571930, at *3-4 (D.D.C. Mar. 7, 2006); Torres, 2005 WL 1139303, at *5; Wiggins v. Powell, Civil Action No. 02-1774(CKK), 2005 WL 555417, at *15-16 (D.D.C. Mar. 7, 2005); Schrader v. Tomlinson, 311 F.Supp.2d 21, 27 (D.D.C. 2004).
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 Case 1:00-cv-00953-RWR-DAR Document 742 Filed 05/13/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

REGINALD G. MOORE, et al.

)

)

Plaintiffs,

)

)

v.

)

Civ. No. 00-953 (RWR/DAR)

)

JANET NAPOLITANO

)

ORDER APPROVING FORM OF

SECRETARY, U.S.

)

CLASS NOTICE AND NOTICE PLAN

DEPARTMENT OF HOMELAND

)

SECURITY,

)

)

Defendant.

)

)

Having reviewed and considered the adequacy of the parties’ proposed forms of class

notice, and having evaluated the parties’ proposed notice plans, the Court finds that the following

class notice and notice plan comply with Rule 23 of the Federal Rules of Civil Procedure, and

otherwise satisfy class action notice requirements. IT IS on this 13th day of May, 2013,

ORDERED THAT:

(1) The form of class notice attached to this Order as Exhibit A is approved for mailing. (2) By May 28, 2013, Defendant shall provide to Class Counsel an electronic mailing list that identifies all current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995 to 2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995 to 2005 and were not promoted to GS-15 on the first bid list on which they bid. Defendant shall exclude from this list Special Agents who served as an

Case 1:00-cv-00953-RWR-DAR Document 742 Filed 05/13/13 Page 2 of 3
Assistant Director, a Deputy Director, or the Director of the Secret Service during the class period. (3) The mailing list provided by Defendant shall include the most current information available for each class member obtained through all reasonable efforts such as accessing any available Department of Homeland Security and federal government database(s) containing information on employees and/or retirees, including: (a) name; (b) address or P.O. Box; (c) city; (d) state; (e) zip code; and (f) telephone number. Social Security numbers also must be provided for class members who are no longer employees of the Secret Service and those current employee class members whose notices are returned as undeliverable. Contact information and Social Security numbers provided by Defendant will be treated subject to the protective order approved and entered in this case on March 10, 2005. (4) Using the contact information provided by Defendant and/or identified by Class Counsel, Class Counsel shall disseminate by June 11, 2013 by first class mail a true and correct copy of the approved Notice to each class member. Where a Notice is returned as undeliverable and Defendant or Class Counsel are able to obtain updated contact information, Class Counsel shall re-disseminate the Notice using the updated information. (5) When a Notice is returned as undeliverable: (a) Class Counsel will notify Defendant of the name of the individual whose Notice was returned as undeliverable; (b) Defendant shall make all reasonable efforts to secure and provide to Class Counsel updated/corrected contact information, including accessing any available Department of Homeland Security or federal government databases containing such information; (c) Class Counsel may also engage in their own efforts to locate accurate contact information for such individuals; and (d) once updated
2

Case 1:00-cv-00953-RWR-DAR Document 742 Filed 05/13/13 Page 3 of 3 contact information has been obtained, Class Counsel shall re-disseminate the Notice using the updated information. (6) Class members will be given 45 days from the date on which the Notice is mailed to opt out of the class; accordingly, the last day to opt out shall be July 26, 2013, and requests to be excluded from the class must be postmarked or faxed by that date. Where a Notice is redisseminated under paragraphs 4 and 5 of this Order, the 45-day opt-out period will run from the date the updated Notice is postmarked.
_________/s/_________________ RICHARD W. ROBERTS United States District Judge
3

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________

)

REGINALD G. MOORE, et al., )

)

Plaintiffs,

)

)

v.

)

)

JEH JOHNSON,

)

)

Defendant.

)

______________________________)

Civil Action No. 00-953 (RWR)

MEMORANDUM ORDER

Plaintiffs, African-American current and former special

agents of the United States Secret Service, bring this employment

discrimination action individually and on behalf of a class of

African-American special agents. The government moves to

reconsider the court’s September 3, 2013 Order (“Order”) denying

its request to reopen discovery. Because the government fails to

show that reconsideration is warranted, the government’s motion

will be denied.

The government moves under Federal Rule of Civil Procedure

54(b) to reconsider the Order denying the government’s request to

reopen expert and fact discovery. Def.’s Mot. for

Reconsideration of Sept. 3, 2013, Order Denying Post-

Certification Fact and Expert Discovery (“Govt.’s Mot.”). The

case was referred to Magistrate Judge Robinson to manage

discovery proceedings. Fact and expert discovery closed in 2008

- 2 -
and the class was certified in February 2013. The government initially asked to reopen discovery in the parties’ July 29, 2013 Joint Status Report, stating that the government “may explore additional areas of expert statistical evidence” and it “has a right to seek fact discovery from the class members as to the issue of liability and damages.” July 29, 2013 Joint Status Report and Proposed Order (“July 2013 JSR”) at 7. The government asserts that it was unable to engage in this discovery before now because it “did not know at that time that these individuals would be presenting anecdotal evidence on behalf of the class” and “now that the class is defined, defendant will seek to depose other now identified class members.” Id. This request was denied at a status hearing held on July 31, 2013 and in the Order.
Courts may reconsider any interlocutory decision, such as a discovery ruling, “at any time before the entry of a judgment adjudicating . . . all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b); see also DL v. District of Columbia, 274 F.R.D. 320 (D.D.C. 2011) (denying motion to reconsider discovery ruling under Rule 54(b)); Husayn v. Gates, 588 F. Supp. 2d 7 (D.D.C. 2008) (granting motion to reconsider discovery ruling under Rule 54(b)). “[R]elief upon reconsideration . . . is available ‘as justice requires.’” Estate of Botvin ex rel. Ellis v. Islamic Republic of Iran, 772 F. Supp. 2d 218, 223 (D.D.C.

- 3 -
2011) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). Under this standard, a court considers “whether [it] patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred.” In Def. of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 2008) (internal quotation marks omitted). “However, in order to promote finality, predictability, and economy of judicial resources, as a rule [a] court should be loathe to [revisit its own prior decisions] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” Pueschel v. Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d 82, 85 (D.D.C. 2009) (alterations in original) (internal quotation marks omitted). Nor is a motion for reconsideration to be used as an opportunity to rehash arguments previously made and rejected. Michilin Prosperity Co. v. Fellowes Mfg. Co., Civil Action No. 04-1025 (RWR), 2006 WL 3208668, at *1 n.1 (D.D.C. Nov. 7, 2006). “[W]here litigants have once battled for the court’s decision, they should [not] be . . . permitted[] to battle for it again.” Pueschel, 606 F. Supp. 2d at 85 (alterations in original) (internal quotation marks omitted).

- 4 -
The government’s motion reiterates that discovery should be reopened and that it would be prejudiced by a refusal to reopen discovery. However, as the government points out, it made these very arguments at the hearing. See Govt.’s Mot. at 11. The government has not shown that the Order resulted from any misunderstanding, or exceeded the scope of the parties’ arguments, or failed to consider information presented. See Negley v. FBI, 825 F. Supp. 2d 58, 60-61 (D.D.C. 2011). To the contrary, the transcript reflects consideration of the government’s argument about its need for additional discovery. Hr’g Tr., July 31, 2013, at 5:6-23. Neither has the government identified any “controlling or significant” legal changes warranting reconsideration. Negley, 825 F. Supp. 2d at 60.
The government argues that the Order was “based upon the misapprehension that the Secret Service was previously permitted to engage in full class discovery.” Govt.’s Mot. at 2. However, there is no misunderstanding about the facts. The initial scheduling order “was not limited to class certification, it was not limited to . . . experts on class certification; it was an order that permitted, essentially, general discovery on liability issues and everything else.” Hr’g Tr., July 31, 2013 at 5:20-23; see also Hr’g Tr., May 8, 2006 at 32:8-12 (“Simply put, there is no basis that has been presented which would suggest that this Court would appropriately exercise its discretion to . . .

- 5 -
otherwise limit discovery at this time.”). Many of the government’s arguments center on the inefficiency of conducting merits discovery before class certification, e.g., Govt.’s Mot at 14 (citing the Federal Judicial Center Manual to contend that “it is inefficient and inadvisable to require that all discovery occur before a class has been certified”); id. at 2 (explaining that discovery now “can be appropriately tailored so that it focuses on only the certified claims”), but that is not at issue here. The government’s request to bifurcate class certification and merits discovery was rejected, and discovery on both the individual and class claims was ordered to proceed. See Hr’g Tr., May 8, 2006 at 32:8-12 (denying bifurcation); id. at 34:1416 (ordering plaintiffs’ and defendant’s discovery on individual and class claims to begin immediately); Reply in Support of Mot. for Reconsideration of Sept. 3, 2013, Order Denying PostCertification Fact & Expert Discovery (“Reply”) at 4 (acknowledging that discovery on the class claims was ordered in 2006). The government’s need for the evidence for a trial on the class claims, Govt.’s Mot. at 14, does not necessitate reconsideration. The government has had an ample opportunity to explore the class issues since discovery closed in 2008, over a year after the second amended complaint was filed in August 2006. This discovery period was not limited to individual claims discovery by the second amended complaint, the scheduling order,

- 6 -
or any other court orders. Indeed, “there was no surprise that this was going to end up being a class case.” Hr’g Tr., July 31, 2013 at 8:17-22.
The government’s belated assertion that it was denied absent class discovery by Magistrate Judge Robinson’s ruling, Govt.’s Mot. at 6-7, 17, could -- and should -- have been squarely presented before now. Instead, the government merely asserted that it had a right to additional discovery, and that it could not engage in this discovery earlier because it did not know who the potential witnesses were. July 2013 JSR at 7; see also Hr’g Tr., July 31, 2013 at 7:6-21. Similarly, the government initially only cited general cases that allowed fact and expert discovery after the class certification discovery, cases which were rejected as inapposite, see Hr’g Tr., July 31, 2013, at 5:718. The government did not provide any legal authority justifying its request for absent class discovery, nor did it explain why the discovery it already had the opportunity to conduct was insufficient. A motion to reconsider is not “a vehicle for presenting theories or arguments that could have been advanced earlier.” Clay v. District of Columbia, Civil Action No. 03-466 (SBC), 2005 WL 1378768, at *1 (D.D.C. June 6, 2005).
The government repeatedly states that it believed that “there would be post-certification discovery of absent class members,” e.g., Reply at 5-8; Govt.’s Mot. at 7; July 2013 JSR at

- 7 -
8 (asserting that “[i]f pre-certification discovery was the only discovery to be allowed in this class action case, the parties should have been put on notice that no post-certification discovery would be allowed”), but as is discussed above, there was no indication that the government would be permitted to engage in additional discovery after the discovery period had ended. Indeed, the government specifically requested that discovery be revisited and a new schedule be set if the class was ultimately certified, see May 4, 2006 Joint Status Report at 5, 5 n.3, but this request was rejected. See Hr’g Tr., May 8, 2006 at 32:8-12. While the government moved for reconsideration of that order, the motion for reconsideration was denied without prejudice in the July 7, 2006 Memorandum Opinion and the government did not renew its objection.
The denial of the government’s motion to compel the plaintiffs to produce information “about potential class members prior to certification,” Reply at 5, does not compel another conclusion. Magistrate Judge Robinson did not say that additional discovery from the absent class members would be available later, the government did not then request that such discovery be available later, and the government did not appeal Magistrate Judge Robinson’s decision. The government’s claims about whether it received sufficient discovery, see, e.g., Govt.’s Mot. at 6, Reply at 5-6, from the plaintiffs during the

- 8 -
discovery phase is not at issue, nor is it relevant to determining whether reopening discovery is appropriate. See Childers, 197 F.R.D. at 188 (listing factors relevant to reopening discovery). Moreover, it is not clear that the government requested the same information then that it is requesting now. Compare Reply Ex. 4 (“What we’re seeking is information that Plaintiffs currently possess regarding people who are likely to be members of the class.”) with Govt.’s Mot. at 17 (asserting that the government should be able to now depose absent class members that provided declarations as well as “conduct related discovery about their assertions”). Thus, whether the government’s motion to compel written discovery from the plaintiffs was denied has little bearing on whether the government was previously foreclosed from pursuing the discovery it now seeks. Ultimately, the government provides no legal authority that its own misapprehension about the scope of discovery suffices to show either that discovery should be reopened or that reconsideration should be granted.
In any event, even if reconsideration was justified and the government raised this argument in its first request to reopen discovery, the government has not sufficiently demonstrated that it is entitled to absent class discovery. The government, as the requesting party, has the burden to show that discovery from absent class members is warranted, because, for example, the

- 9 -
discovery is necessary or unavailable from the representative parties. See United States v. Trucking Emp’rs, Inc., 72 F.R.D. 101, 104-05 (D.D.C. 1976). While the government now contends that it was prevented from obtaining discovery about potential class members and their claims by Magistrate Judge Robinson’s ruling, see Govt.’s Mot. at 6-7, 17, the government still has not answered the threshold question of why that discovery is warranted. The government rests on its argument that it “should be provided the opportunity to depose these declarants who have figured prominently in this case,” and because the members “‘may be witnesses, [defendant] has the right to discovery beyond what the absent class members have said to establish the factual incorrectness of what they have said or to see if their experiences were frequent or aberrational.’” Govt.’s Mot. at 17 (alteration in original) (quoting Disability Rights Council of Greater Wash. v. WMATA, Civil Action No. 04-498 (HHK/JMF), 2006 WL 2588710, at *1 (D.D.C. Sept. 7, 2006)). This fails to demonstrate why absent class member discovery is necessary or unavailable from the representative parties, what particular information is needed from the absent class members, or how that information relates to the common class issues. See, e.g., Barham v. Ramsey, 246 F.R.D. 60, 64 (D.D.C. Nov. 8, 2007) (denying absent class discovery because “[t]he Court is not persuaded this information is necessary” to resolve class issues

- 10 -
about the defendants’ motivations). Without information about how the discovery sought is relevant to the class issues, an assessment cannot be made about the necessity of that discovery.
The government also has not shown that a legal error occurred when the request to reopen expert discovery was rejected. Pueschel, 606 F. Supp. 2d at 85. The government did not offer any substantive arguments in support of its initial request to reopen expert discovery. See July 2013 JSR at 7; Hr’g Tr., July 31, 2013, at 7:21-8:16 (stating that the expert did not provide regression analysis but failing to state why the expert did not conduct regression analysis earlier). The government now argues that “the Court had suggested that post-certification discovery would be available,” e.g., Reply at 12, 12, but fails to point to any representation by the Court that postcertification expert discovery would be available. At best, the government’s proffered citations refer only to later factual discovery, not expert discovery. See Govt.’s Mot at 6-7; Reply at 5-9. The government also offers the fact that “[t]he Court did not address whether liability-stage expert class discovery might later proceed, should a class ultimately be certified on the basis of the pre-certification evidence, including that provided by plaintiffs’ statistical expert,” id. at 7, as support for this contention. Because expert discovery was not limited to particular claims and there was no representation that later

- 11 -
expert discovery would be permitted, this is insufficient to show that a manifest injustice would occur without reconsideration. The government’s attempt to re-litigate the same issues in its motion for reconsideration does not satisfy Rule 54(b)’s requirements, particularly when the government did not present sufficient arguments supporting its initial request to reopen discovery. See Clay, 2005 WL 1378768, at *1.
Further, the government readily admits that it did not initially request a more extensive expert report because, in part, “the belief that the substantial cost of a regression analysis could not be justified prior to the certification of a class.” Govt.’s Mot. at 8; see also Govt.’s Mot at 16 (repeating that “only now are the parties finally in a position to efficiently and cost-effectively evaluate statistically” the plaintiffs’ claims). The government also now argues that it could not conduct expert analysis before because “the parameters of any certified class were unknown,” Govt.’s Mot. at 7, and it “would have needed to conduct countless analyses, most of which would have been rendered useless.” Govt.’s Mot. at 16. These strategic decisions offer no reason to reconsider the Order. The government does not demonstrate that there would be a manifest injustice because of, for example, limitations in previous rulings or scheduling orders that prevented it from conducting the expert analysis it now desires before discovery closed.

- 12 -
Ultimately, regardless of whether bifurcation should have occurred, bifurcation of discovery between class certification and merits discovery did not happen. The parties each made strategic decisions with respect to which fact and expert discovery in which to engage and from which to abstain. Thus, the government’s failure to engage in full merits discovery before the class certification does not require either reopening discovery, or reconsidering the decision denying the request to reopen discovery. Because no error infected the decision to deny reopening discovery, and no manifest injustice will result from that decision, the government has not established that justice requires reconsideration. Accordingly, it is hereby
ORDERED that defendant’s motion [757] for reconsideration be, and hereby is, DENIED. It is further
ORDERED that plaintiffs’ motion [769] for leave to file a surreply is DENIED as moot.
SIGNED this 4th day of March, 2014.
/s/ RICHARD W. ROBERTS Chief Judge

 
 Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________

)

REGINALD G. MOORE, et al., )

)

Plaintiffs,

)

)

v.

)

)

JEH JOHNSON,

)

)

Defendant.

)

______________________________)

Civil Action No. 00-953 (RWR)

MEMORANDUM OPINION AND ORDER

The plaintiffs bring this employment discrimination class

action against the Secretary of the United States Department of

Homeland Security alleging that the United States Secret Service

engaged in a pattern and practice of racial discrimination in

its promotion of African-American Special Agents (“SAs”).

Magistrate Judge Deborah Robinson granted the plaintiffs’ motion

to strike the defendant’s expert report of Dr. Rick Jacobs --

the industrial psychologist the defendant selected to replace

the deceased original expert -- on the ground that the report

exceeded the scope of discovery this Court permitted for the

replacement expert, and the defendant objects. Because the

defendant has not shown that the magistrate judge’s order is

clearly erroneous or contrary to law, the defendant’s objections

will be overruled.

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 2 of 15 -2-
BACKGROUND The extensive factual and procedural history of this nearly fifteen-year-old case is detailed in previous memorandum opinions and orders. See, e.g., Moore v. Napolitano, 926 F. Supp. 2d 8, 12-16 (D.D.C. 2013), review denied sub nom. In re Johnson, 760 F.3d 66 (D.C. Cir. 2014). In brief, the individual plaintiffs filed their Second Amended Complaint on August 7, 2006, on behalf of themselves and a putative class of other similarly situated African-American current and former SA’s, alleging that the Secret Service violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981(a), by engaging in a pattern and practice of racial discrimination in its promotion of African-American SAs to GS-14 and GS-15 positions, and that the promotion process has an adverse impact upon AfricanAmerican SAs. Second Am. and Supplemental Class Compl., ECF No. 362 at 2-3. On February 2, 2013, this Court granted the plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23(b)(3). See Moore, 926 F. Supp. 2d at 35-36. Thereafter, the defendant notified this Court that the defendant’s industrial psychologist expert, Dr. Frank Landy, had unfortunately passed away over three years earlier. See Joint Status Report, ECF No. 746 at 4 n.2, 7. The defendant informed this Court that it was “in the process of trying to find a

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 3 of 15 -3-
replacement for [Dr. Landy],” see id. at 7, and requested a period of supplemental fact and expert discovery. In a status hearing on July 31, 2013, this Court ruled that the defendant would be permitted to find a replacement for Dr. Landy but limited the scope of any replacement expert discovery and outlined the limited scope and timeline of any new expert report and replacement expert discovery, stating in part:
And I think the government has asked simply to replace the expert, not to expand beyond what the expert, who is deceased unfortunately, has said, and I think it’s good cause to want to replace . . . an expert to have a live witness at the trial. But since it’s not new news that the expert has passed, what I want to do is to limit the amount of time for turnaround on these issues. 7/31/13 Status Hr’g Tr., at 12-13. A written order was then issued on September 3, 2013 (“9/3/13 Order”), in part setting a schedule for “limited supplemental expert discovery by an industrial psychologist expert[.]” 9/3/13 Order, ECF No. 752 at 1. The order stated clearly: “The Court will not permit the parties to conduct any further expert discovery other than that attendant to Defendant’s replacement of Dr. Landy.” Id. at 1-2. The defendant secured a replacement industrial psychologist expert –- Dr. Rick Jacobs -- and served the plaintiffs with a replacement expert report by September 16, 2013. On November 22, 2013, the plaintiffs moved to strike Dr. Jacobs’ replacement expert report in its entirety, asserting that the

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 4 of 15 -4-
defendant had exceeded the limited scope of replacement expert discovery permitted by this Court’s oral instructions and order, and arguing that the report “vastly exceeds the scope of Dr. Landy’s report and materially alters its substance.” Pls.’ Mot. to Strike Dr. Rick Jacobs’ Expert Report, ECF No. 760 at 12. The plaintiffs cited several “entirely new opinions” contained within the replacement expert report and asserted that the report relied on “dozens” of new sources. Id. at 3.
After reviewing full briefings on the plaintiffs’ motion to strike, the magistrate judge held an extensive hearing on March 10, 2014 addressing whether the replacement expert report submitted by the defendant complied with this Court’s order permitting limited supplemental expert discovery. The magistrate judge ultimately issued a memorandum order granting the plaintiffs’ motion to strike Dr. Jacobs’ replacement expert report and holding that the defendant “failed to comply” with this Court’s order and exceeded the scope of permissible replacement expert discovery. Magistrate Judge’s 9/19/14 Mem. Order, ECF No. 784 at 5. Additionally, the magistrate judge found that the “[d]efendant’s proposal to excise from the report the objectionable ‘sentences’ is unworkable[,]” and that “any effort to do so would effectively eviscerate the report.” Id. at 4.

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 5 of 15 -5-
The defendant now objects to the magistrate judge’s order striking Dr. Jacobs’ replacement expert report, arguing that the magistrate judge’s order “is clearly erroneous because it 1) ignores the context and guidelines expressed by this Court for the creation and production of Dr. Jacobs’ expert report, . . . and 2) fails to properly consider the lack of burden on plaintiffs[.]” Def.’s Objections to Magistrate Judge’s Ruling (“Def.’s Objections”), ECF No. 787 at 1. The defendant further asserts that the magistrate judge’s order would require a replacement expert to “simply parrot the language of defendant’s deceased expert,” and argues instead that “[t]his Court’s schedule providing for a rebuttal report by plaintiffs and depositions of both experts necessarily contemplated that the new report would not be only an exact recitation of the prior report.” Id. at 1-2.
DISCUSSION In a discovery dispute, “Federal Rule of Civil Procedure 72(a) and Local Civil Rule 72.2(b) allow a party to object to a magistrate judge's decision.” Greene v. Shegan, 917 F. Supp. 2d 146, 148 (D.D.C. 2013). “Upon consideration of objections filed . . . , a district judge may modify or set aside any portion of a magistrate judge’s order[.]” LCvR 72.2(c); see also Jerez v. Republic of Cuba, 964 F. Supp. 2d 52, 55 (D.D.C. 2013), aff'd, No. 13-7141, 2014 WL 7373506 (D.C. Cir. Dec. 30, 2014). A

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 6 of 15 -6-
magistrate judge’s findings and decision “are entitled to great deference, and may be modified or set aside only if found to be clearly erroneous or contrary to law.” Payne v. D.C., 859 F. Supp. 2d 125, 130-31 (D.D.C. 2012) (internal quotations and citations omitted); see also Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009).
“‘Clear error’ is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact.” Ornelas v. United States, 517 U.S. 690, 694 n.3 (1996). “The clear error standard requires [a court] to reverse a factual finding if on the entire evidence [the court is] left with the definite and firm conviction that a mistake has been committed.” Latif v. Obama, 677 F.3d 1175, 1200 (D.C. Cir. 2012) (internal quotations omitted). Accordingly, a court “may not set aside findings of fact ‘simply because [it is] convinced that [it] would have decided the case differently.’” Am. Soc. for the Prevention of Cruelty to Animals v. Feld Entm't, Inc., 659 F.3d 13, 22 (D.C. Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
The defendant asserts three objections to the magistrate judge’s order striking Dr. Jacobs’ expert report. The defendant argues that the magistrate judge erred in failing to follow the guidelines expressed by this Court regarding the scope of permissible replacement expert discovery and applying an

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 7 of 15 -7-
unreasonable standard that “require[d] the defendant to produce a replacement expert report that simply duplicated Dr. Landy’s report.” Def.’s Objections at 3. Additionally, the defendant asserts that the magistrate judge failed to conduct the “proper analysis” required –- namely, “examining the [initial and replacement] reports to assess whether the opinions and conclusions of Dr. Landy and Dr. Jacobs are the same.” Id. at 4; see also id. at 5-6, 14-15. Finally, the defendant argues that the magistrate judge erred by failing to identify “any prejudice to plaintiffs as a result of Dr. Jacobs’ expert report[,]” or to even “search for . . . any independent prejudice[.]” Id. at 14. I. LIMITED SCOPE OF THIS COURT’S 9/3/13 ORDER
The defendant argues that the magistrate judge erred in interpreting the scope of this Court’s 9/3/13 Order and thus applied an incorrect standard in her review. The defendant’s objection highlights his own interpretation inconsistencies, though. On one hand, the defendant argues that the magistrate judge takes a “hyper-literal and unreasonably narrow view of” this Court’s 9/3/13 Order. Def.’s Objections at 5. The defendant asserts that the magistrate judge read this Court’s 9/3/13 Order as requiring that the replacement expert report “simply parrot the language” of Dr. Landy’s initial report. Id. at 1. The defendant cannot, however, point to any instance in

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 8 of 15 -8-
the motions hearing transcript where the magistrate judge demands parroted language. Instead, the motions hearing transcript reflects that the magistrate judge attempted to clarify that neither she nor the plaintiffs advocated for an identical language standard. See, e.g., Tr. of 3/10/14 Hearing on Pls.’ Mot. to Strike Dr. Rick Jacobs’ Expert Report (“Mot. Hr’g Tr.”) at 17. The magistrate specifically outlined for the parties at the motions hearing the scope of her inquiry, unequivocally stating that she would not “opine with respect to . . . what some courts have done with respect to substitution of expert reports” but would “only determine whether the Defendant complied with [the Court’s] order.” Id. at 9.
On the other hand, the defendant argues that the proper scope of this Court’s 9/3/13 order and the appropriate inquiry for the magistrate judge is “whether ‘[i]t is unreasonable to expect two different experts to either share the exact same opinions about the same data or to express those opinions in the exact same way.’” Magistrate Judge’s 9/19/14 Mem. Order at 5 (quoting Def.’s Opp. to Mot. to Strike Dr. Rick Jacobs’ Expert Report, ECF No. 764 at 2). The defendant’s objections repeat the assertions presented to the magistrate judge -- that the magistrate judge should have focused on the fact that the “subject matter” and ultimate “conclusions” articulated in the two expert reports are the same. See, e.g., Def.’s Objections

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 9 of 15 -9-
at 6; Mot. Hr’g Tr. at 32 (defense counsel stating that “the concepts are going to be the same, [but] the verbiage will be different”).1 Thus, the defendant advances simultaneously two ends of a spectrum regarding the scope of permissible supplemental expert discovery: on one end, a requirement that the expert reports be virtually identical; and on the other end, a position that the second expert must simply focus on the concepts and conclusions contained within the first expert’s report.
The magistrate judge did not err, instead, in interpreting the plain language of this Court’s 9/3/13 Order as “presuppos[ing] that Defendant would not . . . seek to rely on additional opinions, opinions more thoroughly explained, and opinions based on additional authorities.” Magistrate Judge’s 9/19/14 Mem. Order at 4. Nor did the magistrate judge err in defining the issue for review as “whether or not Defendant complied with the Court’s order precluding the successor industrial psychologist from ‘expand[ing] beyond what the [first] expert said[.]’” Id. at 5 (quoting Tr. of 7/31/13 Status Hr’g at 14). Rather, the defendant erred in making assumptions about this Court’s intent instead of following this

1

At the motions hearing before the magistrate judge, defense

counsel was unable to provide any citation to a transcript or an

order from this Court containing the word “concepts.” See Mot.

Hr’g Tr. at 43-44.

Case 1:00-cv-00953-RWR-DAR Document 804 Filed 01/08/15 Page 10 of 15 -10-
Court’s oral and written instructions limiting the scope of replacement expert discovery. In contrast, the magistrate judge seemingly attempted to find the balance between the two ends of the defendant’s spectrum by looking to this Court’s oral and written instructions. II. SUFFICIENCY OF ANALYSIS BY THE MAGISTRATE JUDGE
The defendant also argues that the magistrate judge erred in conducting an insufficient analysis and inadequate comparison of the expert reports filed by Dr. Landy and Dr. Jacobs. See, e.g., Def.’s Objections at 4 (arguing that “the Magistrate Judge failed” to assess whether the opinions and conclusions contained within the two expert reports were the same); id. at 5 (asserting that “the Magistrate Judge apparently failed to consider the fact[] that Dr. Jacobs’ report is founded upon the exact same data that Dr. Landy used”); id. at 14 (stating that “the Magistrate Judge failed to explain how Dr. Jacobs’ opinions went ‘beyond’ what Dr. Landy had previously articulated”). The defendant’s characterization of the magistrate judge’s analytical process is not supported by the record in this case.
At the motions hearing on March 10, 2014, the magistrate judge notified the parties that she was prepared to go through each individual opinion, section, or point highlighted by the plaintiffs as violative of this Court’s 9/3/13 Order. See Mot.

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Hr’g Tr. at 7-9.2 The magistrate judge then went through the numerous examples highlighted by the plaintiffs as possible expansions beyond the scope of Dr. Landy’s original expert report, and examined the parallel citations presented by the defendant to demonstrate uniformity between both reports. As the plaintiffs recognize, “the Magistrate Judge spent literally hours on the record going through the two reports opinion by opinion and hearing argument from both sides as to whether Dr. Jacobs’[] replacement report contained new opinions not asserted by Dr. Landy.” Pls.’ Opp. to Def.’s Objections to the Magistrate Judge’s Ruling on Pls.’ Mot. to Strike, ECF No. 792 at 5.3
The record demonstrates that, contrary to the defendant’s assertions, the magistrate judge conducted a thorough analysis and inquiry into the alleged differences between the original expert report of Dr. Landy and Dr. Jacobs’ replacement expert report, with the goal of determining whether the defendant had complied with this Court’s 9/3/13 Order. Magistrate judges are not required to produce memorandum orders of any particular

2

Notably, defense counsel indicated that he was prepared to

go through each point raised by the plaintiffs, stating: “Your

Honor, we have no problem with doing that.” Mot. Hr’g Tr. at 9.

3

This extensive hearing was not the only opportunity for the

magistrate judge to consider the plaintiffs’ motion to strike.

Even before the hearing, the magistrate judge reviewed all of

the briefings, the transcript from the 7/31/13 Status Hearing,

and this Court’s 9/3/13 Order. See Mot. Hr’g Tr. at 3.

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length or specific depth. Rather, their opinions are reviewed by the district court in accordance with the “clear error” and “contrary to law” standards. Here, the defendant has not shown that the magistrate judge conducted an insufficient analysis or otherwise erred in her consideration of Dr. Jacobs’ expert report. She reached a conclusion fully supported by the record.4 III. PREJUDICE TO PLAINTIFFS
Finally, the defendant argues that the magistrate judge erred by failing to address whether Dr. Jacobs’ expert report actually prejudiced the plaintiffs. Specifically, the defendant argues that the magistrate judge’s order “is clearly erroneous” for disregarding the lack of prejudice to the plaintiffs. The defendant appears to rely on the “goals” of Federal Rule of Civil Procedure 26 to support its argument that a prejudice analysis is required. See Def.’s Objections at 14. However, the defendant points to no statutory or case law authority requiring that a magistrate judge analyze the issues of prejudice and “point to any unfair surprise[.]” See id. at 1416.

4

For example, the transcript of the March 10, 2014 motions

hearing contains references to Dr. Jacobs’ elaborations and

expansions of the concepts in Dr. Landy’s report, Mot. Hr’g Tr.

at 28-29, 56; additional details not contained within

Dr. Landy’s report, id. at 46; additional sources and

scholarship considered and cited by Dr. Jacobs, id. at 46, 48-

50; and additional opinions contained within Dr. Jacobs’ report,

id. at 63-64.

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The defendant asserts that by setting a schedule for depositions of a replacement expert and a rebuttal expert report, this Court “obvious[ly] anticipat[ed] . . . possible differences between” the expert reports and “provided for rebuttal and discovery mechanisms for plaintiffs[.]” Id. at 15. Thus, the defendant seemingly argues, the magistrate judge’s order is erroneous because it ignores the fact that any prejudice to the plaintiffs caused by additional information in Dr. Jacobs’ replacement expert report could be cured through a deposition and rebuttal report.
This Court’s statements during the July 31, 2013 status conference did not indicate any anticipation of a need for depositions or rebuttal reports, but rather simply addressed the possibility that the plaintiffs might want to engage with a replacement expert witness:
I think it would be fair, then to . . . give the plaintiffs a 45-day period . . . in which to depose that new expert if that’s what you all want to do. I suspect, if you want to produce some kind of a rebuttal expert report, I think we should limit it to a 30-day period beyond that deposition deadline, and I think that would be consistent with the notion of trying to move the case forward. Tr. of 7/31/13 Status Hr’g at 13 (emphasis added). Allowing for the plaintiffs to conduct ordinary follow-up discovery of a new defense expert is no implicit approval for the defendant to secure an expanded replacement expert report, particularly when

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securing such an expanded report contradicts this Court’s explicit instructions. Thus, the magistrate judge did not err in failing to address prejudice in the memorandum order granting plaintiffs’ motion to strike.5 The issue before the magistrate judge was whether the defendant had exceeded the bounds of the limited supplemental expert discovery permitted in this Court’s order, not whether any prejudice to plaintiffs stemming from Dr. Jacobs’ replacement expert report was unduly burdensome or capable of being cured by depositions and a supplemental expert report.
CONCLUSION AND ORDER The magistrate judge did not err in finding that the defendant exceeded the limited scope of supplemental expert discovery permitted by this Court’s September 3, 2013 Order. Because the defendant has not demonstrated that the magistrate judge’s order [784] striking the defendant’s replacement expert report was clearly erroneous or contrary to law, it is hereby ORDERED that the defendant’s objections [787] to the magistrate judge’s order be, and hereby are, OVERRULED. Because

5

At the motions hearing, the magistrate judge did address

the defendant’s argument that this Court’s 9/3/13 order

contemplated differences. See Mot. Hr’g Tr. at 68-71. The

defendant was unable to identify either language in this Court’s

9/3/13 order that contemplated “differences” in the expert

reports, or an instance where the defendant informed this Court

that it anticipated there being “differences in the report.”

Id. at 70-71.

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the defendant failed to comply with both this Court’s oral instructions and written order outlining the limited scope of supplemental expert discovery almost eighteen months ago, the defendant at trial in seeking to offer expert industrial psychologist evidence will be limited to offering the initial report and deposition testimony of Dr. Landy. Thus, it is further
ORDERED that the parties confer and file within 14 days a joint status report and proposed order outlining a schedule for briefing any remaining dispositive motions. It is further
ORDERED that the plaintiffs’ corrected motion [796] for a status hearing be, and hereby is, DENIED as moot. If the parties wish to enter mediation, as is suggested by the plaintiffs’ motion, the parties are directed to file a joint motion for referral to mediation. It is further
ORDERED that the plaintiffs’ motion [802] for entry of a scheduling order be, and hereby is, DENIED as moot.
SIGNED this 8th day of January, 2015.
/s/ RICHARD W. ROBERTS Chief Judge

 
 Case 1:00-cv-00953-PLF-DAR Document 828 Filed 01/17/17 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JEH C. JOHNSON, Secretary,

)

U.S. Department of Homeland Security, )

)

Defendant.

)

Civil Action No. 00-953 (PLF/DAR)

SETTLEMENT AGREEMENT, RELEASE, AND CONSENT DECREE

This Settlement Agreement, Release, and Consent Decree (hereinafter, “Agreement” or

“Settlement” or “Consent Decree”) is entered into by and between Reginald G. Moore, John E.

Turner, C. Yvette Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E.

Harris, Jr., and Kenneth Rooks (hereinafter, “Class Representatives”), on behalf of themselves

and a class of individuals they represent, and Camilla Simms and Lisa Robertson (hereinafter,

“Individual Plaintiffs”) (together with Class Representatives, collectively “Named Plaintiffs”), in

the above-captioned matter (hereinafter, “Litigation”), and Jeh Johnson, Secretary, U.S.

Department of Homeland Security (hereinafter, “Defendant”) (together with Named Plaintiffs

and Class Members, collectively “Parties”), with the approval and entry of the Court.

I. RECITALS AND BACKGROUND

WHEREAS, on May 3, 2000, ten (10) African-American Special Agents of the U.S.

Secret Service (“Secret Service”) filed a Complaint in the U.S. District Court for the District of

Columbia (hereinafter, the “district court” or the “Court”) initiating this Litigation, that alleged

race discrimination claims of disparate treatment and disparate impact under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, as

Case 1:00-cv-00953-PLF-DAR Document 828 Filed 01/17/17 Page 2 of 53
amended, 42 U.S.C. § 1981(a), dating back to 1974, concerning the Secret Service’s hiring practices, promotions (to the GS-14, GS-15, and SES levels), transfers and assignments, performance evaluations, bonuses and awards, discipline, retaliation, and the creation of a hostile work environment;
AND WHEREAS, over the course of the next sixteen (16) years, this Litigation was refined as amended complaints and pleadings were filed, claims and parties were dismissed and added, and relevant time periods were established by the Parties’ motions and the courts’ rulings;
AND WHEREAS, this Litigation has been vigorously prosecuted and defended with extensive discovery, including the production of tens of thousands of pages of documents, the taking of numerous depositions, and the exchange of multiple expert reports, and with the filing of numerous motions and appeals;
AND WHEREAS, on August 7, 2006, the Named Plaintiffs filed a Second Amended and Supplemental Complaint that is the operative complaint in this Litigation, alleging individual and putative class claims of disparate treatment and disparate impact based on race under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981(a);
AND WHEREAS, on February 25, 2013, the district court granted a motion for class certification, certifying disparate treatment and disparate impact race discrimination claims, pursuant to Federal Rule of Civil Procedure 23(b)(3), for a class defined as all current and former African-American Special Agents who bid for promotion to the GS-14 level during the years 1995-2004 and/or to the GS-15 level during the years 1995-2005, who were not promoted on the first bid list on which they bid, and who did not serve as an Assistant Director, Deputy Director, or the Director of the Secret Service during those defined periods;
2

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AND WHEREAS, on August 1, 2015, the U.S. Court of Appeals for the D.C. Circuit denied review of the district court’s certification order, in In re Johnson, 760 F.3d 66 (D.C. Cir. 2014);
AND WHEREAS, Defendant currently has two dispositive motions pending before the district court;
AND WHEREAS, since this Litigation began certain Named Plaintiffs and members of the class have been promoted within the Secret Service, and the Secret Service has changed and improved its promotions practices and processes;
AND WHEREAS, in July 2016, upon consent of the Parties, the district court informally stayed ruling on all pending motions so the Parties could attempt to negotiate a settlement to resolve this Litigation;
AND WHEREAS, the Parties have reached a settlement and now wish to resolve this longstanding action cooperatively and without resort to continued contested and protracted litigation with its attendant burden, expense and risk;
AND WHEREAS, the Parties agree that a settlement of this Litigation is in the public interest;
AND WHEREAS the Secret Service has independently and proactively undertaken and implemented numerous modifications to its policies and practices concerning promotions to the GS-14 and GS-15 levels;
AND WHEREAS, the Parties agree to the entry of this Agreement that resolves all issues raised in this Litigation, including, but not limited to, those raised in the operative complaint, i.e., the Second Amended and Supplemental Class Complaint filed on August 7, 2006;
3

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AND WHEREAS Defendant denies any and all liability or damages to anyone with respect to the alleged facts or causes of action asserted in this Litigation;
NOW THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement, as well as the good and valuable consideration provided for herein, the Parties hereto agree to a full and complete settlement of this Litigation on the following terms and conditions, and with the approval and entry of the Court, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows: II. DEFINITIONS AND PARTIES
A. Advisory Board. “Advisory Board” means and refers to an executive board, created through Secret Service policy, that makes selection decisions for GS-14 level vacancies and provides consensus selection recommendations for GS-15 level vacancies, when such vacancies are announced as vacant and to be filled through the Secret Service’s competitive GS1811 merit promotion process.
B. Agreement. “Agreement” or “Settlement” or “Consent Decree” means and refers to this Settlement Agreement, Release, and Consent Decree.
C. Claim Form. “Claim Form” means and refers to the Claim Form, as approved by the Court in substantially the form of the document attached to Plaintiffs’ Motion for Preliminary Approval of Distribution of Settlement Proceeds, whereby a Class Member may elect to participate in this Settlement.
D. Class Administrator. “Class Administrator” means and refers to the individual or entity retained and compensated by Class Counsel for purposes of obtaining assistance with implementing the administrative requirements of this Agreement.
E. Class Counsel. “Class Counsel” means and refers individually and collectively
4

Case 1:00-cv-00953-PLF-DAR Document 828 Filed 01/17/17 Page 5 of 53
to the law firm Hogan Lovells US LLP and the attorneys practicing therein, and the law firm Relman, Dane & Colfax PLLC and the attorneys practicing therein, which the Court found, in the context of its class certification ruling of February 25, 2013, to be capable of fairly and vigorously defending the interests of the Class Members in this Litigation.
F. Class Members. “Class Members” means and refers collectively to the class certified by the district court on February 25, 2013, defined as all current and former AfricanAmerican Special Agents who bid for promotion to the GS-14 level during the years 1995-2004 and/or to the GS-15 level during the years 1995-2005, who were not promoted on the first bid list on which they bid, and who did not serve as an Assistant Director, Deputy Director, or the Director of the Secret Service during those defined periods, excluding the seven (7) such individuals who requested to be excluded pursuant to the May 13, 2013 order of the district court approving the form of class notice and notice plan. Those seven (7) individuals who asked to be excluded from the class are: William Lewis, Jeffrey T. Gilbert, Isaiah Mapp, Jr., Michael A. Lee, Keith Hill, James L. Dunlap, and Paula A. Reid.
G. Class Period. “Class Period” means and refers to the relevant time periods for the class certified by the district court on February 25, 2013, defined as the years 1995-2004 for all current and former African-American Special Agents who bid for promotion to the GS-14 level, and the years 1995-2005 for all current and former African-American Special Agents who bid for promotion to the GS-15 level.
H. Class Representatives. “Class Representatives” means and refers collectively to Reginald G. Moore, John E. Turner, C. Yvette Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E. Harris, Jr., and Kenneth Rooks.
I. Court. “Court” means and refers to the U.S. District Court for the District of
5

Case 1:00-cv-00953-PLF-DAR Document 828 Filed 01/17/17 Page 6 of 53
Columbia where this Litigation was originally filed and is currently pending, also referred to in this Agreement as the “district court.”
J. Defendant. “Defendant” means and refers to the Secretary of Homeland Security—styled in the caption of this case as “Secretary, U.S. Department of Homeland Security”—who heads the U.S. Department of Homeland Security, of which the U.S. Secret Service is a component.
K. Effective Date. “Effective Date” of this Agreement means and refers to the latest of the following dates: (a) the date sixty-one (61) calendar days after the entry of an order by the district court granting final approval to this Agreement, if there are no appeals; or (b) if there is any appeal of the district court’s order granting final approval, the day after all appeals are finally resolved in favor of final approval of this Agreement.
L. Final Fairness Hearing. “Final Fairness Hearing” means and refers to the hearing before the district court relating to the Motion for Final Approval.
M. Final Approval Order. “Final Approval Order” means and refers to the order entered by the district court after the Final Fairness Hearing, approving the terms and conditions of this Agreement.
N. Individual Plaintiffs. “Individual Plaintiffs” means and refers collectively to Camilla Simms and Lisa Robertson, who are not members of the class.
O. Named Plaintiffs. “Named Plaintiffs” means and refers collectively to Class Representatives and Individual Plaintiffs.
P. Parties. “Parties” means and refers collectively to Named Plaintiffs, Class Members, and Defendant.
6

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Q. Plaintiffs. “Plaintiffs” means and refers collectively to Named Plaintiffs and Class Members.
R. Preliminary Approval Hearing. “Preliminary Approval Hearing” means and refers to the hearing before the district court relating to the Motion(s) for Preliminary Approval.
S. Secret Service. “Secret Service” means and refers to the U.S. Secret Service, which is a component of the U.S. Department of Homeland Security, which is headed by Defendant.
T. Settlement Class. “Settlement Class” means and refers collectively to Class Members and Individual Plaintiffs. The Settlement Class excludes any individual who has opted out of the class at the time of the execution of this Agreement or who opts out of the class in the future between the Preliminary Approval Hearing and the Final Fairness Hearing. Those excluded because they had opted out of the class at the time of the execution of this Agreement include the seven (7) such individuals who requested to be excluded pursuant to the May 13, 2013 order of the district court approving the form of class notice and notice plan. Those (7) seven individuals are: William Lewis, Jeffrey T. Gilbert, Isaiah Mapp, Jr., Michael A. Lee, Keith Hill, James L. Dunlap, and Paula A. Reid.
U. Settlement Class Members. “Settlement Class Members” means and refers collectively to the individuals who are members of the Settlement Class, but does not include, for purposes of a particular provision of this Agreement, any such individual or individuals who is or are expressly excluded for purposes of that particular provision of this Agreement.
V. Settlement Proceeds. “Settlement Proceeds” means the twenty-four million and No/100 dollars ($24,000,000.00), subject to the provisions of Section V.D.5., below, that Defendant will pay to settle this Litigation.
7

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III. MONETARY RELIEF A. Defendant shall pay the sum of twenty-four million and No/100 dollars
($24,000,000.00), subject to the provisions of Section V.D.5., below, in full and complete satisfaction of all claims made in this Litigation, including, without limitation, claims for economic and non-economic damages of any kind, back pay, front pay, interest (including both pre-judgment and post-judgment interest), compensatory damages, attorney’s fees, litigation expenses, and costs through the Effective Date of this Agreement.
B. Simultaneously with the filing of the Joint Motion for Preliminary Approval, Plaintiffs will file their Motion for Preliminary Approval of Distribution of Settlement Proceeds that delineates Plaintiffs’ proposal regarding the distribution of the Settlement Proceeds to the Plaintiffs, which will include a provision that no Plaintiff, including no Named Plaintiff and no Class Member, may be awarded monetary relief in excess of $300,000. The proposed distribution shall provide that the Settlement Proceeds will be entirely exhausted by distributions to Named Plaintiffs, Class Members, attorney’s fees and costs, service awards, and administrative costs, such that there are no remaining funds following those distributions. Defendant reserves its right, for ten (10) days after the filing of Plaintiffs’ Motion for Preliminary Approval of Distribution of Settlement Proceeds, to object or respond to Plaintiffs’ Motion for Preliminary Approval of Distribution of Settlement Proceeds. After the Preliminary Approval Hearing, and if Plaintiffs’ Motion for Preliminary Approval of Distribution of Settlement Proceeds is granted, Plaintiffs will provide notice to the Settlement Class of the distribution of the Settlement Proceeds in accordance with the notice procedures herein. No later than thirty (30) calendar days prior to the Final Fairness Hearing, Plaintiffs will file their brief in support of attorney’s fees and costs to be paid out of the Settlement Proceeds. While Defendant
8

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does not object to the reimbursement to Plaintiffs’ counsel for reasonable attorney’s fees and costs consistent with the controlling law, Defendant nonetheless reserves its right to object or respond to the Plaintiffs’ attorney’s fees and costs motion when it is filed.
C. Pursuant to the normal processing procedures of the U.S. Department of the Treasury, and after the accrual of the Effective Date of this Agreement, Defendant shall deposit the sum of twenty-four million and No/100 dollars ($24,000,000.00), subject to the provisions of Section V.D.5., below, into an account in a federally insured institution agreed to by the Parties. Class Counsel will propose in writing to Defendant a federally insured financial institution for deposit of the Settlement Proceeds no later than fourteen (14) calendar days after the entry of an order by the Court granting final approval of this Agreement. Defendant agrees to submit within five (5) days after the Effective Date of this Agreement a request to the U.S. Department of the Treasury that payment of the Settlement Proceeds be made.
D. Nothing in this Settlement constitutes an agreement by the United States concerning the characterization of any portion of the Settlement Proceeds for purposes of the Internal Revenue Code, Title 26 of the United States Code. IV. NON-MONETARY RELIEF
The following provisions herein Section IV. will become operative on the Effective Date of the Settlement, unless otherwise stated herein:
A. Scoring Phase of the Merit Promotion Plan The Secret Service utilizes a multi-phase Merit Promotion Plan (“MPP”) to make promotions of Special Agents to the GS-14 and GS-15 levels, which are supervisor ranks. The first phase of the MPP is the scoring phase.
9

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1. Since the Class Period, the Secret Service independently implemented substantial modifications to its scoring process for promotions to the GS-14 and GS-15 levels under the MPP. The Secret Service used an outside expert and subject matter experts to construct a competency-based model and conduct validation studies. Plaintiffs have reviewed these improvements and agree that they are satisfactory with respect to construction of the scoring system (the “2017 MPP scoring process”).
2. For the duration of this Agreement, the Secret Service agrees and commits to maintain a competency-based scoring process validated by an outside expert, chosen solely by the Secret Service, in accordance with standard federal government procurement procedures and appropriations laws, and subject to the availability of funds and to the restrictions of the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341. The Secret Service will continue to publish the competencies used in the scoring process. If testing reveals that the 2017 MPP scoring process’s reliability falls below the range generally accepted in the field based on the assessment of an outside expert, chosen solely by the Secret Service, in accordance with standard federal government procurement procedures and appropriations laws, and subject to the availability of funds and to the restrictions of the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341, the Secret Service will work with its outside expert to assess possible changes to improve reliability.
3. As of the date of this Agreement, the Secret Service is working with an outside expert and subject matter experts to update the competencies and make additional improvements to the 2017 MPP scoring process. The Secret Service will complete its testing of the validity and reliability of the 2017 MPP scoring process. The
10

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Secret Service will provide Plaintiffs the opportunity to review the final 2017 report reflecting the validity and reliability testing and, if any, efforts to improve reliability. The review of this report shall be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement. Plaintiffs, their counsel, and any experts or others who they may consult shall maintain the confidentiality of any information contained in this report that may be marked by the Secret Service as Law Enforcement Sensitive, as well as any information that may be contained in this report that constitutes Personally Identifiable Information (“PII”), which generally references information that can be used on its own or with other information to identify, contact, or locate an individual, or to identify an individual in context. B. Recommendation and Selection Phase of the MPP With respect to the final phase of the MPP, the recommendation and selection phase, the Secret Service agrees and commits to completing the further development and implementation of a competitive selection process that is based upon standardized evaluative factors that are jobrelated, and that provides for accountability and flexibility in decision-making. To that end, the Secret Service shall undertake the following actions:
1. Analysis of the MPP Recommendation and Selection Phase by an Outside Expert a. The Secret Service shall retain an outside expert, chosen solely by
the Secret Service, in accordance with standard federal government procurement procedures and appropriations laws, and subject to the availability of funds and to the restrictions of the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341, to assist in analyzing the existing MPP recommendation and
11

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selection procedures and to develop a list of job-related standardized evaluative factors to be used in making recommendation and selection decisions for vacancies at the GS-14 and GS-15 levels.
b. The outside expert will be responsible for determining the specific methodology for conducting the analysis and determining possible enhancements to the Advisory Board’s selection process.
c. The outside expert may seek information from sources it deems appropriate while conducting the analysis, which shall include working with subject matter experts to assist in identifying the experience, qualifications, and unique requirements for vacancies that may exist at the GS-14 and GS-15 levels.
d. As part of its analysis and development of standardized evaluative factors for selection, the outside expert may, but is not required to, consider grouping the vacancies into categories or batches utilizing position titles, location of the position, or primary function, or any other similar grouping.
e. The outside expert should consider as part of its analysis and development of standardized evaluative factors for selection whether the knowledge, skills, and abilities possessed by candidates already at the subject grade levels (i.e., laterals) are appropriate requirements for certain positions.
f. The outside expert will also analyze reasonable and legitimate organizational factors that may be considered, as set forth in Section IV.B.3.c., below, in narrowing candidate pools. These organizational factors may be driven by current events, budgetary considerations, or other organizational missionrelated factors.
12

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g. The outside expert’s analysis is not intended to replicate the competencies identified and assessed during the scoring phase of the MPP. It is intended that the standardized evaluative factors developed will involve objective elements, rather than subjective elements.
h. The Secret Service shall endeavor to have the outside expert complete the analysis within six (6) months of the Effective Date of this Agreement, subject to Section IV.B.1.a., above.
i. Upon completion of the analysis, the outside expert, using its professional judgment, will develop standardized evaluation factors to be used to guide Advisory Board recommendations and selections to vacancies at the GS-14 and GS-15 levels.
i. The Secret Service will provide Plaintiffs the final report of the outside expert subject to Section IV.E., below. This final report shall be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement. 2. Implementation of Standardized Evaluative Factors
a. The Secret Service shall adopt the use of objective standardized evaluative factors developed through the above-described analysis and, additionally, will consider including the use of any equal employment opportunity performance-related factors identified by the outside expert as a relevant evaluative factor.
13

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b. Regardless of the results of the outside expert’s analysis, the Secret Service shall not be required to assign “weights” or “scores” to any identified evaluative factors for any specific position or vacancy.
c. The work of the outside expert and implementation of any changes to the MPP made by the Secret Service will be completed as expeditiously as practicable, with an effort to complete this process within six (6) months from receipt of the outside expert’s final recommendations and proposals. If the process cannot be completed within this period, counsel for the Secret Service will advise Class Counsel with respect to the anticipated schedule for completion. 3. Use of Standardized Evaluative Factors and Organizational and Other
Factors a. The Secret Service shall use the standardized evaluative factors, as identified through the analysis conducted by the outside expert and adopted by the Secret Service, to consider and evaluate candidates whose names appear on the Best Qualified List (“BQL”), Reassignment Certificate, and, if utilized, Promotion Register, to the extent set forth in the Office of Personnel Management (“OPM”) regulations, for selection for those vacancies at the GS-14 and GS-15 levels that may be filled through competitive promotion. The Parties agree and acknowledge that any vacancy that is filled outside the MPP process through lateral reassignment is outside of the scope of this Agreement. b. The Secret Service retains discretion to determine whom to select from among the candidates on the BQL, Reassignment Certificate, and Promotion Register through the application of the standardized evaluative factors, the use of MPP scores (subject to Section IV.C., below), or the consideration of any job-
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related factor other than the standardized evaluative factors identified by the outside expert (pursuant to Section IV.B.3.d., below).
c. The Secret Service also retains the discretion to consider organizational factors, whether or not identified by the outside expert, in making selection decisions subject to the following restrictions:
i. The consideration of such organizational factors must be applied in a neutral and objective fashion and must not be prohibited by OPM regulations;
ii. Those organizational factors that are used regularly across a set of positions shall be published to Secret Service employees;
iii. Organizational factors are to be applied first to narrow the pool of candidates prior to the application of the standardized evaluative factors;
iv. A candidate who lacks an organizational factor identified by the Secret Service for that position shall not be selected for promotion to that position unless no other qualified candidates for the position are available; and
v. The use of organizational factors will be documented as provided for in Section IV.B.4., below. d. If, through the normal operation of the MPP selection process, the Secret Service finds it necessary to consider a job-related factor other than the standardized evaluative factors identified by the outside expert in order to fill a vacancy, nothing prevents the Secret Service from taking such a factor into
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consideration. However, if that factor is utilized in connection with more than ten (10) selections within a selection year for promotion or reassignment, the Secret Service shall utilize an outside expert, consistent with the procedure set out in Section IV.B.1., with the exception of Section IV.B.1.g., above, and chosen solely by the Secret Service, in accordance with standard federal government procurement procedures and appropriations laws, and subject to the availability of funds and to the restrictions of the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341, to evaluate that factor and determine if it is appropriate to add it to the formalized evaluative factors. The resulting final report will be provided to Plaintiffs subject to Section IV.E., below. This final report shall be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement.
e. The Secret Service retains discretion to work with an outside expert, chosen solely by the Secret Service, in accordance with standard federal government procurement procedures and appropriations laws, and subject to the availability of funds and to the restrictions of the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341, to modify the standardized evaluative factors as needed, following the procedure set forth in Section IV.B.1., with the exception of Subsection IV.B.1.g., above. If modified during the term of this Agreement, the resulting final report from the outside expert shall be provided to Plaintiffs subject to Section IV.E., below. This final report shall be
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used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement. 4. Documentation of Advisory Board Selection Decisions
a. The Secret Service agrees to create and maintain contemporaneous written records of decisions regarding MPP selections identified in Sections IV.B.3.a. through IV.B.3.d., above. The written record for each specific selection will include a brief record of the criteria considered and how they were applied in making the selection, including consideration of any organizational factor or any job-related factor other than the standardized evaluative factors identified by the outside expert, and the reason(s) for the candidate’s selection.
b. If a candidate is recommended for promotion/selection under the MPP, but is not ultimately selected because of information identified during the vetting process as described in the MPP, the Advisory Board will document the reason(s) for that candidate’s initial recommendation, the reason(s) for withdrawing this recommendation or non-selection, and the reason(s) for the recommendation and/or selection of the individual ultimately chosen to fill the vacancy.
c. All required documentation will be retained with the Secret Service’s MPP records in accordance with the applicable federal records retention and disposition schedules. 5. Notice of Modifications to the MPP Selection Procedures to Reflect
Standardized Evaluative Factors The Secret Service shall provide employees with notice of the new MPP selection procedures by publishing them as part of the MPP. This includes
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publication of the standardized evaluative factors and modification of the MPP to reflect the requirement that the Advisory Board will utilize the published standardized evaluative factors. 6. Advisory Board Training
a. The Secret Service shall ensure that Advisory Board members, and those reasonably likely to sit on an Advisory Board as the designee of an Advisory Board member, will be trained regarding changes to the selection process pursuant to this Agreement, including the standardized evaluative factors and their application. Advisory Board members, and those reasonably likely to sit on an Advisory Board as the designee of an Advisory Board member, shall also be instructed on how they should consider and compare multiple candidates, rather than focusing solely on one individual, if there are multiple candidates for a vacancy.
i. This training may consist of the provision of written guidelines for the use of the factors and the comparison of the candidates, and oral briefings concerning this same material.
ii. This training shall be conducted before the Advisory Board first uses the standardized evaluative factors to make recommendations and selections.
iii. Each new Advisory Board member and each of those reasonably likely to sit on an Advisory Board as the designee of an Advisory Board member shall be trained prior to taking part in an Advisory Board meeting. Once an Advisory Board member or a person
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reasonably likely to sit on an Advisory Board as a designee is trained, that individual does not need to go through training again unless there are relevant and material changes to the use of the standardized evaluative factors and the comparison of the candidates. b. Special Agents in Charge (“SAICs”) and Division Chiefs, however titled, shall also be trained regarding those portions of the new MPP selection process in which they are to be directly involved. This will include providing SAICs and Division Chiefs with training on the need to use the new standardized evaluative factors and the use of those factors in making recommendations as part of the MPP process. After the initial publication and informational period concerning the new selection process, those obtaining the position of SAIC or Division Chief will receive and be required to review these same training materials. 7. Compliance Review and Assurance a. The Secret Service’s Executive Chief of the Office of Human Resources (or equivalent position, however subsequently titled) (hereinafter referred to as “EC HUM”), or designee, shall attend all Advisory Board meetings where selection decisions are discussed and/or made, in order to provide assistance to the other Advisory Board members with the new selection procedures and application of their requirements. b. The Secret Service’s EC HUM, or designee, shall be responsible for ensuring that the Advisory Board members engage in discussions to consider multiple candidates for each vacancy (unless multiple candidates did not bid on
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the vacancy), during the course of Advisory Board proceedings. At the conclusion of Advisory Board proceedings when selections are finalized, the EC HUM, or designee, shall certify that such discussions and consideration occurred for each such vacancy for which a selection was finalized.
c. The Secret Service’s EC HUM, or designee, shall be responsible for determining if a factor has been utilized other than those adopted by the Secret Service from the outside expert’s recommendation, and the EC HUM, or designee, shall keep a record of the number of times any such factor is utilized. If such a factor is utilized in connection with more than ten (10) selections within a selection year for promotion or reassignment, the EC HUM, or designee, shall be responsible for alerting counsel for the Secret Service of this fact so that the provisions of this Agreement set forth in Section IV.B.3.d., above, may be implemented.
d. The Secret Service will conduct annual audits of the required MPP selection documentation as set forth in Sections IV.B.7.d.i. and IV.B.7.d.ii., below. The purpose of these audits is to ensure that the standardized evaluative factors are being used, that multiple candidates are being discussed and considered for each vacancy where multiple candidates exist, that organizational factors are applied in the manner prescribed by this Agreement, that the recommendation/selection decisions are being properly documented, and that the documentation is being maintained in accordance with policy and the provisions of this Agreement.
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i. The audits shall be conducted by the Secret Service’s Office of Equity, Diversity, and Inclusion Programs or its successor.
ii. The audits shall be conducted for four (4) years from the Effective Date of this Agreement, with the first audit to take place in 2019, which audit shall consist of a review of the selection documentation from 2018, and the final audit occurring in 2022, which audit shall consist of a review of the selection documentation from 2021. The audits shall randomly examine ten percent (10%) of the selection documentation. C. Consideration of MPP Scores Beginning with the 2017/2018 MPP cycle, the Secret Service’s Advisory Board will not consider MPP scores that are not different from each other in a statistically significant manner as a basis for differentiating between candidates with such scores. Nothing in this Agreement limits the ability and discretion of the Secret Service to determine what methodology will be utilized to ensure that scores that are not different from each other in a statistically significant manner are not used to distinguish between candidates with such scores in selection. Methodologies that the Secret Service may implement include, but are not limited to, modifying the scoring process such that final MPP scores that are not different from each other in a statistically significant manner will be identified as the same score, or instructing the Advisory Board that MPP scores that are not different from each other in a statistically significant manner cannot be used as a basis for differentiating between candidates with such scores. The Secret Service will notify Class Counsel of the manner in which it has implemented this requirement.
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D. Statistical Testing and Reporting

1. The Secret Service shall retain an outside expert, chosen solely by the

Secret Service, in accordance with standard federal government procurement procedures

and appropriations laws, and subject to the availability of funds and to the restrictions of

the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341, to

analyze data from specified stages of the MPP to determine whether that stage has an

adverse impact on African-American Special Agent candidates.

a. The outside expert will perform the following statistical testing on

these identified stages of the MPP:

i.

At the First Level Evaluation (FLE) score, the cut-off score

pass rate;

ii. At the final MPP score, a t-test of the total final scores of

all eligible scores;

iii. On the finalized Promotion Register at the start of a

selection cycle, a Mann-Whitney Rank Sum Test; and

iv. At the selection phase, a BQL-to-Selected Pools Analysis.

b. Adverse impact testing will be performed for African-American

Special Agent candidates as compared to white Special Agent candidates.

c. Adverse impact testing will be conducted separately for those

Special Agents competing for promotion to the GS-14 level and those competing

for promotion to the GS-15 level.

2. In testing for adverse impact, the four-fifths or 80% rule will be used for

the FLE cut-off score pass rate and BQL-to-Selected Pools analyses; a standardized

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mean difference of 0.50 will be utilized for the t-tests of the total final MPP scores and the Mann-Whitney Rank Sum Tests of the Promotion Register.
3. Should the results of the statistical testing indicate adverse impact under the standard in Section IV.D.2., above, for African-American Special Agent candidates versus white Special Agent candidates, an outside expert, chosen solely by the Secret Service, in accordance with standard federal government procurement procedures and appropriations laws, and subject to the availability of funds and to the restrictions of the Anti-Deficiency Act, including the prohibition codified at 31 U.S.C. § 1341, will assist the Secret Service in trying to ascertain the cause of the impact and will also assist the Secret Service in considering and testing alternatives to address the adverse impact. Nothing in this Agreement requires any specific change to be made to the MPP if adverse impact is identified. The final report of the outside expert will be provided to Plaintiffs subject to Section IV.E., below. This final report shall be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement.
4. Nothing in this Agreement will prevent or constrain the Secret Service from making modifications to the MPP should adverse impact be identified with respect to minority groups other than African-American Special Agents.
5. The analyses of the FLE cut-off score pass rate and the t-test of the total final MPP scores will be undertaken no later than sixty (60) calendar days after MPP scores have been finalized. The finalization process includes the completion of the Secret Service’s grievance procedure.
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6. The Mann-Whitney Rank Sum test of the Promotion Register will be performed sixty (60) calendar days after the finalization of the first Promotion Register of a selection cycle.
7. The BQL-to-Selected Pools Analysis will be undertaken no later than sixty (60) calendar days after the close of a selection cycle. A selection cycle is considered closed when the last selection for all vacancies announced in a calendar year is made.
8. All statistical testing and analyses will be conducted utilizing data obtained during the individual year and aggregated data dating back to the first analyses of the new 2017 scoring process and new selection procedures conducted under this Agreement, as outlined in Section IV.D.9., below.
9. The analyses of the FLE cut-off score pass rate and the total final MPP scores will be conducted beginning with the MPP scores obtained for the 2017/2018 promotion cycle and continuing through and including the MPP scores obtained for the 2020/2021 promotion cycle. The analyses of the Promotion Register and BQL-toSelected Pools will be conducted beginning with selections made utilizing the new selection procedures outlined in Section IV.B. For the purposes of this Agreement, that is expected to occur during the latter part of 2017, and will, as a result, encompass partial selection data from the 2016/2017 promotion cycle. These analyses will continue through and include the selections made as part of the 2020/2021 promotion cycle, concluding with 2021 selections being statistically analyzed in 2022. This timeline presumes the new selection procedures will be implemented by mid-2017. The Advisory Board currently meets on a quarterly cycle. Should implementation of the new selection procedures be delayed beyond the third quarterly Advisory Board cycle of 2017, then
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testing will be extended for an additional Advisory Board cycle for each Advisory Board cycle implementation is delayed.
10. All final reports of the statistical analysis required by this Section IV.D. will be provided to Plaintiffs subject to Section IV.E., below. E. Final Reports of Outside Expert(s) Provided to Plaintiffs The Secret Service shall provide Plaintiffs with a copy of all final reports provided to the Secret Service by the outside expert(s) described in the non-monetary relief provisions of Sections IV.A. through IV.D., above. The Secret Service shall be deemed to have provided any such final report to Plaintiffs by the Secret Service delivering a copy of such report to Class Counsel within thirty (30) calendar days of receipt of that final report by the Secret Service from the outside expert(s). These reports shall be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement. Plaintiffs, their counsel, and any experts or others who they may consult shall maintain the confidentiality of any information contained in these reports that may be marked by the Secret Service as Law Enforcement Sensitive, as well as any information that may be contained in these reports that constitutes Personally Identifiable Information (“PII”), which generally references information that can be used on its own or with other information to identify, contact, or locate an individual, or to identify an individual in context. F. Commitment to Equal Employment Opportunity and Diversity
1. Consideration of Equal Employment Opportunity Record in Selection Decisions
Through this Agreement, the Secret Service agrees and commits that if the Equal Employment Opportunity (“EEO”) Director is aware of information, beyond an official finding of discrimination or retaliation, about a promotion/reassignment candidate that
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may raise a concern, that information shall be shared with the Advisory Board. Such information includes, but is not limited to, objective evidence of inappropriate activity by an individual that is raised through the EEO Hotline or in an EEO Complaint, even if such activity does not rise to the level of actionable discrimination or if an investigation is ongoing; multiple complaints against a particular candidate for promotion that the Office of Equity, Diversity, and Inclusion Programs concludes are potentially indicative of poor management rather than discrimination; or multiple complaints about harassment that is not sexual and/or does not rise to the level of creating a hostile work environment. The determination of the amount and type of information that may raise a concern such that it should be shared with the Advisory Board is solely in the discretion of the EEO Director.
2. MPP Advisory Board Briefing Regarding Equal Employment Opportunity and Diversity Awareness
The Secret Service agrees and commits that, during the duration of this Agreement, it will provide a briefing to the Advisory Board on equal employment opportunity and diversity issues, including but not limited to unconscious bias and stereotyping. This briefing will be given to the Advisory Board once a year. The Secret Service will provide Plaintiffs with a copy of written briefing materials, if any, thirty (30) calendar days prior to the first briefing being given. This briefing shall be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement.
3. Equal Employment Opportunity Information a. In addition to the Advisory Board training referenced in Section
IV.F.2., above, the Secret Service will by no later than calendar year 2018
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incorporate training on unconscious bias into its diversity training given to all Special Agents.
b. Starting on the Effective Date of this Agreement and continuing for a period of three (3) years, the Secret Service shall document the Responsible Management Officials (RMOs) named in complaints filed by African-American Special Agents alleging race discrimination so that the Secret Service may evaluate whether any cognizable patterns exist.
c. Within sixty (60) calendar days of the Effective Date of this Agreement, the Secret Service shall create and publish to all Secret Service employees a policy to provide for the use of the existing Prevention of Harassment Hotline to be used as a mechanism for reporting incidents of misconduct and discrimination, including relating to race. Calls to the Hotline reporting incidents of discrimination against African-American Special Agents on the basis of race will be tracked by RMOs to determine if a cognizable pattern exists. The Secret Service will, through counsel, provide a copy of the newly created policy concerning the use of the Hotline to Plaintiffs’ Counsel. This policy may be used only in assessing compliance with this Agreement and shall create no independent cause of action unrelated to the enforcement of this Agreement. 4. Since the Class Period, the Secret Service independently implemented a specific discipline policy for those engaged in biased conduct or who fail to report biased conduct. The Secret Service agrees to maintain and publish a specific
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discipline policy for those engaged in biased conduct or who fail to report biased conduct. G. Second Look Process 1. The Secret Service agrees and commits that, once the selection process standardized evaluative factors have been created and adopted, the Secret Service shall give the following Class Representatives and Class Members a Second Look:
a. Such individuals who have not been promoted to the GS level to which they were seeking promotion during the Class Period, who are participating in the MPP scoring process for the 2016/2017 promotion cycle, and who receive a final score; and
b. Such individuals promoted to the GS-14 level after a longer period than the average non-African American Special Agent as determined by the Secret Service for the Class Periods, who are participating in the MPP scoring process of 2016/2017, and who receive a final score. 2. The Second Look Process shall consist of the following:
a. A review group will be established composed of an EEO representative, the Assistant Director of the Office of Investigations, and an Assistant Director who is a Class Member. If there are no Class Members who are Assistant Directors, then a Class Member at the SES level will serve on the review group. A member of the Office of Chief Counsel will serve as an advisor to the review group.
b. The review group will be provided with the following information for the applicable Settlement Class Members:
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i. MPP score for the years since the Class Period; ii. Bids for promotion since the Class Period, and, if the individual made the BQL, the BQL and Reassignment Certificate for the position; iii. Job history including entered-on-duty date, date of last promotion, positions held with the Secret Service, and length of time within each such position; and iv. The information that would be provided through the vetting process (as described in the MPP) for the Settlement Class Member under consideration. c. The above-listed information along with the newly created and adopted selection process standardized evaluative factors will then be considered by the review group in order to make a determination for each of the Settlement Class Members meeting the criteria stated as to whether that individual was mistakenly overlooked in the promotion process and should be referred to the Advisory Board for further consideration for promotion. d. If any Settlement Class Member is so referred pursuant to Section IV.G.2.c., for a period of one (1) year following that referral, the Advisory Board will give additional consideration to those individual(s) with regard to any position on which the individual bids and makes the BQL. e. Once the Second Look process has been completed, Defendant will, through counsel, advise Class Counsel in writing that that process has been completed.
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f. No right of action shall accrue for any individual who is or is not the subject of the above-described Second Look Process with respect to any of the actions or decisions of the Secret Service as part of this Second Look Process, including, but not limited to, being identified as someone who is or is not subject to a Second Look, the review conducted and determination made by the review group, whether or not an individual is referred to the Advisory Board, and whether or not an individual is selected for promotion by the Advisory Board. V. NOTICE OF SETTLEMENT AGREEMENT AND FAIRNESS HEARING A. Within two (2) days of execution of this Agreement, the Parties shall request from the Court an expeditious preliminary fairness hearing, and within ten (10) calendar days, the Parties shall file a joint motion with the Court for preliminary approval of this Agreement. In the Joint Motion for Preliminary Approval, the Parties will ask the Court 1. to set dates for individuals to opt out of this Agreement or to submit objections to this Agreement, which dates both will be thirty-six (36) calendar days from the date the Notice of Settlement and Fairness Hearing is transmitted to the Class Members, and 2. for a Final Fairness Hearing for Final Approval of the Settlement before the Court at the earliest practicable date following the sixtieth (60th) day after the Preliminary Approval Hearing. B. No later than fifty-one (51) calendar days prior to the Final Fairness Hearing, the Class Administrator shall mail a Notice of Settlement and Fairness Hearing (which will include notice of the proposed award of attorney’s fees and costs), Instructions for Filing an Objection Prior to the Fairness Hearing, and an Objection to the Approval and Entry of the Settlement
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Agreement form, in a form substantially similar to that provided to the Court as an Appendix to Plaintiffs’ Motion for Preliminary Approval of Distribution of Settlement Proceeds, via certified U.S. mail to the last known address of each and every Plaintiff, which includes the Named Plaintiffs and Class Members. The Secret Service will provide Class Counsel a list, which will include for each Class Member who is currently employed by the Secret Service, his or her full name, self-reported email address, last known street address, and last-known phone numbers.
C. If the Court denies the Preliminary Approval Motion, the Parties will work together in good faith to address the Court’s concerns and consider options for continuing to pursue a mutually agreed resolution to this Litigation. If these efforts are ultimately unsuccessful, this Litigation will resume as if no settlement had been attempted, and this Agreement will be null and void, with no force or effect.
D. Class Member Opt Outs. 1. Any Class Member who chooses to opt out of the monetary relief provided
through this Agreement must mail via First Class U.S. Mail, postage prepaid, a written, signed statement to the Class Administrator that states he or she is opting out of the Agreement, and include his or her name, address, e-mail address(es), and telephone number(s) and state, “I opt out of the Moore v. Johnson Settlement” (“Opt Out Statement”).
2. The end of the time period to opt out of this Agreement (“Opt Out Period”) shall be thirty-six (36) calendar days after the day on which the Class Administrator transmits a Notice to a Class Member.
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3. Any Class Member who does not properly submit an Opt Out Statement pursuant to this Agreement will be deemed to have accepted this Agreement and its terms, and will be eligible to participate as a Class Member by filing a Claim Form.
4. The Class Administrator will stamp the postmarked date on the original of each Opt Out Statement that it receives and shall send copies of each Opt Out Statement to Class Counsel and Defendant’s Counsel not later than three (3) calendar days after receipt thereof. The Class Administrator will also, within five (5) calendar days of the end of the Opt Out Period, file with the Clerk of Court stamped copies of any Opt Out Statements. The Class Administrator will retain the stamped originals of all Opt Out Statements and originals of all envelopes accompanying Opt Out Statements in its files until such time as the Class Administrator is relieved of its duties and responsibilities under this Consent Decree.
5. If, after the final date on which requests to opt out of the Settlement must be received, fifteen (15) or more individuals who would otherwise be Class Members pursuant to this Agreement opt out of the proposed Settlement as specified in the procedure in the Notice, then the Settlement Proceeds to be paid by Defendant shall be reduced by two million and No/100 dollars ($2,000,000.00), except that if, after the final date on which requests to opt out of the Settlement must be received, thirty (30) or more individuals who would otherwise be Class Members pursuant to this Agreement opt out of the proposed Settlement as specified in the procedure in the Notice, then Defendant has the sole discretion to choose whether the Settlement Proceeds to be paid by Defendant shall be reduced by three million and No/100 dollars ($3,000,000.00) or whether this Agreement shall be cancelled and null and void in its entirety.
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E. Objections. Persons who wish to object to the terms of this Agreement may submit objections, in accordance with the requirements and format described in the Appendix to the Joint Motion for Preliminary Approval, as follows:
1. Objections shall state the objector’s name, address, and telephone number; set forth a description of the objector’s basis for objecting; include copies of any documentation supporting the objections; state the name and address of the objector’s counsel, if any; and state whether the objector wishes the opportunity to be heard in Court at the Final Fairness Hearing on this Agreement.
2. Objectors shall file their objections on the docket with the Court, with service on Class Counsel and Counsel for Defendant.
3. Objections must be filed with the Court and served on Class Counsel and Counsel for Defendant no later than thirty-six (36) calendar days after the day on which the Class Administrator transmits the Notice of Settlement and Fairness Hearing to the Class Members.
4. A Class Member who has submitted an Opt Out Statement may not submit objections to this Agreement.
5. No later than five (5) calendar days prior to the Final Fairness Hearing on this Agreement, the Parties shall file their responses, if any, to all objections timely received by the Court in accordance with the deadlines set forth in this Section V.E. VI. APPROVAL AND ENTRY OF THIS AGREEMENT A. If the Court determines that the terms of this Agreement are fair, reasonable, equitable, and otherwise consistent with federal law, the Court may approve and enter this Agreement at or following the Final Fairness Hearing on this Agreement.
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B. As a part of the opt out and objection process, Class Counsel will inform each and every Plaintiff of his or her potential right under the Older Workers’ Benefit Protection Act, 29
U.S.C. § 626(f)(1)(A), and will provide each Plaintiff subject to the Act the statutorily required
time to consider this Agreement and to opt out of its provisions if so desired. Any such revocation must be made in writing and delivered to Class Counsel and counsel for Defendant on or before the seventh (7th) calendar day after each Plaintiff receives notice of these rights. Class counsel will ensure that each Plaintiff represents that he or she is represented by counsel in this action; that he or she has conferred with his or her attorney after receiving notice of this Agreement; that he or she has examined and understands the provisions of 29 U.S.C. § 626(f)(1)(A) through (E); and that the requirements of those provisions are fully met and satisfied in connection with this Agreement. VII. NO ADMISSION OF LIABILITY
This Agreement does not constitute and shall not be deemed to be a finding, determination, or adjudication by the Court, nor an admission by any Party, regarding the merits, validity, or accuracy of any of the allegations, claims, or defenses. This Agreement represents the compromise of disputed claims that the Parties recognize would require contested, protracted, costly, and burdensome litigation to otherwise resolve. Defendant denies that it or the Secret Service has any policy or engaged in any pattern or practice of unlawful discrimination, or that it has violated any applicable law, statute, regulation, or policy, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981(a).
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VIII. COLLATERAL USE OF THIS AGREEMENT PROHIBITED Defendant’s entry into this Agreement, its provisions, the negotiations leading up to this
Agreement, and/or the data, documents, and information exchanged between the Parties in the course of those negotiations, may not be offered, taken, construed, introduced, or admitted as evidence of liability or as an admission or statement of wrongdoing by Defendant and its officials, agents, managers, and employees, either in this Litigation or in any pending or subsequent proceeding of any nature. Defendant has voluntarily entered into this Agreement because it believes that the actions it has agreed to undertake herein demonstrate Defendant’s continued and strong commitment to equal employment opportunity and that resolution of this matter without further contested, protracted, costly, and burdensome litigation is in the best interest of the Parties and the public. IX. RIGHTS TO ENFORCE THIS AGREEMENT
Only Class Counsel who execute this Agreement may seek to enforce applicable provisions of this Agreement through the applicable dispute resolution process provided for herein. To the extent that individual Class Members and Settlement Class Members have complaints regarding Defendant’s implementation of the provisions of this Agreement, those individuals may bring those complaints to the attention of Class Counsel who, as appropriate, will decide whether to pursue such complaints through the applicable dispute resolution process provided for herein. X. COMPUTATION OF TIME AND DEADLINES
A. In computing any period of time prescribed or allowed by this Agreement, unless otherwise stated, “days” refers to business days. If any deadline referenced in this Agreement falls on a weekend or a federal holiday, the deadline will be moved to the next business day.
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B. The Parties recognize that, from time to time, unforeseen events, such as exigent business circumstances, personnel issues, and contract negotiations with third parties, cause delays in the accomplishment of objectives, no matter how well intentioned and diligent the Parties may be. Accordingly, with regard to provisions of this Agreement that require that certain acts be taken within specified periods, except as otherwise provided, the Parties understand and agree that Court approval will not be required for reasonable extensions of deadlines. In the event that any Party determines that an action required by this Agreement cannot be taken within the specified time period, that Party will promptly notify the other Party/Parties that it anticipates a delay, the reason for the delay, and a reasonable proposed alternative deadline. The Parties will endeavor to cooperate in reasonably adjusting such deadlines. XI. DISPUTE RESOLUTION AND DEFENSE OF THIS AGREEMENT
A. The Parties shall attempt to resolve informally any dispute(s) that may arise under this Agreement. If the Parties are unable to reach a resolution after reasonably seeking to resolve a dispute that arises under this Agreement, then either Party may move the Court for resolution, but only after:
1. Providing written notice to the other Party(ies) of the dispute at least thirty (30) calendar days prior to filing such a motion; and
2. Submitting with its motion a written certification that it has conferred with counsel for the other Party(ies) and unsuccessfully attempted to resolve the issue through reasonable negotiation.
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B. The thirty (30) calendar day period of written notice and attempted resolution may be waived by the Court if the matter, in the Court’s judgment, requires a more immediate resolution.
C. In the event this Agreement or its implementation is challenged by the filing of an action, including a claim for entitlement to damages arising out of the implementation of this Agreement, the Parties shall fully defend the lawfulness of this Agreement. If such collateral challenge arises in state court, the Parties shall promptly seek to remove such action to federal court. XII. COMMUNICATIONS WITH AND AMONG THE PARTIES
A. Except as otherwise provided in this Agreement, all notifications, reports, documents, or materials required to be delivered under this Agreement will be sent to the following representatives at the following addresses:
1. For Plaintiffs: Jennifer I. Klar and Megan Cacace Relman, Dane & Colfax PLLC 1225 19th Street NW Suite 600 Washington, DC 20026 (202) 728-1888
2. For Defendant: Marina Braswell, Benton Peterson, and Peter Pfaffenroth, Civil Division United States Attorney’s Office 555 Fourth Street NW Washington, DC 20530 (202) 252-7566.
B. Any Party may change such representative and/or address by written notice to the other Party(ies) setting forth the new representative and/or address for this purpose.
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XIII. ENTIRE AGREEMENT This Agreement, including all materials attached hereto, constitutes the entire agreement
between and among the Parties with respect to this Litigation and it supersedes all prior negotiations, representations, comments, contracts, writings, and agreements, written or oral, with respect thereto prior to the date of this Agreement. XIV. MODIFICATION
No waiver, modification, or amendment of any term of this Agreement will be effective unless made in writing, approved by Counsel for the Parties, and approved and entered by the Court. XV. SEVERABILITY AND CONSTRUCTION
A. Whenever possible, each term of this Agreement will be interpreted in such a manner as to be valid and enforceable, provided, however, that in the event any term of this Agreement should be determined to be or rendered invalid or unenforceable, all other terms of this Agreement will remain in force. If application of any term of this Agreement to any person or circumstance should be determined to be invalid or unenforceable, the application of such term to other persons and circumstances will remain in force and unaffected to the extent permitted by law.
B. The terms of this Agreement are the product of joint negotiation and will not be construed as having been authored by one party rather than another.
C. The captions or headings in this Agreement have been inserted for convenience of reference only and shall have no effect upon the construction or interpretation of any part of this Agreement.
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XVI. NON-RETALIATION Retaliation is prohibited by federal law, regulation, and agency policy. Defendant agrees
that it will not retaliate—as prohibited by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a), and the relevant decisions addressing retaliation from the Supreme Court of the United States and the U.S. Court of Appeals for the D.C. Circuit—against any Plaintiff, which includes the Named Plaintiffs and Class Members for commencing or pursuing the above-referenced case or any claims under this Agreement. Complaints of retaliation are processed through the procedures set out at 29 C.F.R § 1614.105, et seq. XVII. RELEASE
A. Upon the Effective Date of this Agreement, this Litigation will be dismissed with prejudice in its entirety and all claims and matters raised therein fully resolved, to include any and all claims of each and every Plaintiff, which includes the Named Plaintiffs and Class Members, except that the Court will retain jurisdiction over this matter and the Parties during the duration of this Agreement only for the purpose of enforcing this Agreement and issuing any orders necessary to implement this Agreement and the relief provided herein.
B. Upon the Effective Date of this Agreement, Defendant and all of its current, former, and future directors, officers, officials, managers, agents, employees, and designees, predecessors, and successors in interest, will be fully released and forever discharged from any and all past, present, and future individual and/or class-wide claims, liabilities, obligations, demands, charges, complaints, rights and causes of action of any kind, known or unknown, by each and every Plaintiff, which includes the Named Plaintiffs and Class Members including their heirs, assigns, and estates, whether seeking monetary and/or equitable relief of any sort which arise out of or are related to any and all issues that were or could have been raised in this action,
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and that accrued prior to or during the Class Period, including any future effects of the acts, practices, or omissions alleged in this action or which could have been therein alleged, pertaining to violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981(a), or any other federal, state, or local law or order, whether statutory, regulatory, or policy.
Notwithstanding any limitations in the prior sentence, this release also applies to claims brought by any Plaintiff who initiated formal equal employment opportunity administrative complaints for non-promotion after the Class Period, who agreed to stay, toll, or hold their complaints in abeyance pending resolution of this Litigation. This release is final and will survive the expiration of this Agreement.
C. This Agreement bars any claims and future claims, in law or equity, of each and every Plaintiff, which includes the Named Plaintiffs and Class Members, which any of them may have, may have had, or in the future may have against Defendant and all of its current, former, and future directors, officers, officials, managers, agents, employees, and designees, predecessors, and successors in interest, arising prior to or during the Class Period regarding race discrimination in promotions and the building blocks of promotion, and any and all claims brought or which could have been brought in connection with this action or any administrative or judicial action.
D. Res judicata will apply to each and every Plaintiff, which includes the Named Plaintiffs and Class Members with respect to all issues of law and fact and matters of relief within the scope of this action, including, without limitation, discrimination, retaliation, or hostile work environment against African-Americans and any alleged continuing violation(s) for the Class Period.
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E. Any Plaintiff, which includes the Named Plaintiffs and Class Members, so desiring may opt out of the Settlement Class with respect to the monetary relief provided in this Agreement, by following the procedures set forth in Section V.D., above. Any Plaintiff opting out will not be bound by this Agreement with respect to monetary damages claims, but will be bound by this Agreement with respect to all other claims covered by the Agreement, including, but not limited to, all claims for injunctive relief, discriminatory denial of employment opportunities, and all claims for punitive damages. XVIII. DURATION AND EFFECTIVENESS OF THIS AGREEMENT
A. This Agreement and its terms shall become effective upon accrual of the Effective Date as defined in Section II.K., above.
B. Unless otherwise specifically provided for herein, this Agreement and its terms shall remain in effect until the date on which the Secret Service delivers to Plaintiffs, by delivering to Class Counsel, the last statistical report required for the BQL-to-Selected Pools Analysis (as described in Section IV.D.). If no adverse impact, as defined by this Agreement, is identified in the last set of data provided, then this Agreement shall expire within five (5) days of the delivery of that data without any further action by the Parties or the Court absent any pending litigation to enforce this Agreement as provided for in Section XI. If adverse impact, as defined by this Agreement, is identified in the last set of data provided under this Agreement, then all provisions of this Agreement shall still expire on that date without further action by the Parties or the Court, except those provisions set forth in Section IV.D.3. and Section IV.E., above, which shall expire when completed without further action by the Parties or the Court. If there remains pending litigation to enforce this Agreement on the date on which the Secret Service delivers to Plaintiffs, by delivering to Class Counsel, the last statistical report for the BQL-to-Selected Pools
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Analysis, then all provisions of this Agreement shall still expire on that date without further action by the Parties or the Court, except that only those specific provisions of this Agreement that are relevant and material to that pending litigation will not expire until final resolution of that pending litigation, at which time they also shall expire without further action by the Parties or the Court.
C. In the event that the Effective Date of this Agreement does not accrue because one or more of the actions necessary for such accrual does not occur, nothing herein will be deemed to waive or affect Defendant’s objections and defenses to class certification, liability, or monetary, non-monetary, equitable, injunctive, or other relief, or any other issue, and this Agreement shall neither be admissible nor relied upon in any manner before any court, tribunal or other forum regarding any issues, claims, or subjects related to this Litigation. XIX. COSTS, EXPENSES, AND FEES
Except as set forth in this Agreement in Section III.A., above, each Party shall bear its own costs, expenses, and attorney’s fees incurred in connection with this Litigation, including any costs, expenses, and attorney’s fees incurred as a result of obligations imposed by this Agreement. XX. RETENTION OF JURISDICTION AND SIGNATURE
A. As of the Effective Date, the Court shall retain jurisdiction over this matter and the Parties during the duration of this Agreement only for the purpose of enforcing this Agreement and issuing any orders necessary to implement this Agreement and the relief provided herein. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the United States and the District of Columbia, and all claims relating in
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any rvay to this Agreement shali be brought in the United States District Court for the Distict of

Columbia.
B.

Any signature made and transn:itted by facsimile or email for the purpose of

executing this Agrecment shall be deemed an original signatre for purposes of this Agreement

and shall be binding upon the Parly whose counsel transmits thc signature page by facsirnile or

email.

Dated: -\-rU+

\\

Katnry'-n Marshall Ali (D.C. Bar #994633)
I{ogan Lovells USA 555 Thirteenth Street, N'W. Washingtorq D,C.20004 (202) 637-s6oA

D. Phillips (D.C. Bar # 41s793)

Benton C. Peterson (WI Bar # Peter C, Pfaffenroth (D.C. Bar # 496637) Assistant U.S. Attomeys, Civil Division 555 Fourth Strect, N.W' Washinglon, D.C, 20530 QAD252-2s61
Attorneys for Defendo nt

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ACCEPTED AND AGREED TO BY:
______________________________ Reginald G. Moore
______________________________ John E. Turner
______________________________ C. Yvette Summerour
______________________________ Leroy Hendrix
______________________________ Cheryl L. Tyler
______________________________ Luther K. Ivery Named Plaintiffs

______________________________ Andrew E. Harris, Jr.
______________________________ Kenneth Rooks
______________________________ Camilla Simms
______________________________ Lisa Robertson

SO ORDERED, ADJUDGED, AND DECREED, this ___ day of __________, 2017:

___________________________ U.S. DISTRICT JUDGE

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ACCEPTED AND AGREED TO BY: Reginald G. Moore

~~E~--\f(.
Andrew E. Harris, Jr.

John E. Turner

Kenneth Rooks

C. Yvette Summerour

Camilla Simms

Leroy Hendrix

Lisa Robertson

Cheryl L. Tyler

Luther K. Ivery Named Plaintiffs

SO ORDERED, ADJUDGED, AND DECREED, this _ day of

, 2017:

U.S. DISTRICT JUDGE

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 Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

Plaintiffs,

)

)

v.

)

)

JEH C. JOHNSON, Secretary,

)

U.S. Department of Homeland Security, )

Defendant.

)

)

Civil Action No. 00-953 (PLF/DAR)

JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 2 of 24
TABLE OF CONTENTS I. INTRODUCTION ...................................................................................................1 II. BACKGROUND .....................................................................................................2
A. Nature of the Lawsuit...................................................................................2 B. Procedural History .......................................................................................2
1. Litigation..........................................................................................2 2. Settlement Efforts ............................................................................4 III. THE PROPOSED SETTLEMENT ........................................................................4 A. Monetary Relief ..........................................................................................4 B. Modifications to and Testing of Special Agents GS-14 and GS-15 Selection Practices............................................................................5 1. The MPP Scoring Phase...................................................................5 2. The MPP Recommendation and Selection Phase ............................6 3. Statistical Testing.............................................................................7 C. Additional Injunctive Relief ......................................................................8 1. Training ...........................................................................................8 2. Equal Employment Opportunity and Diversity ..............................8 3. “Second Look” at Promotions Status...............................................9 D. Administration of the Settlement ..............................................................10 IV. ARGUMENT .........................................................................................................10 A. The Proposed Settlement Should Be Preliminarily Approved Under Federal Rule of Civil Procedure 23 ...........................................................10 1. Legal Standard for Preliminary Approval .....................................10
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2. The Settlement Is the Product of Arm’s Length Negotiations Between Experienced, Capable Counsel After Meaningful Discovery ...................................................................12
3. The Terms of the Settlement and Their Relationship to Plaintiffs’ Claims ..................................................13 a. The Proposed Settlement Achieves the Stated Goal the Class Sought to Obtain through this Litigation ......................................................13 b. The Proposed Settlement Affords Relief that Might Otherwise Not Be Attained through Litigation ..................16
4. The Status of the Litigation Favors Approval of the Settlement ............................................................................16
5. The Record Already Contains Significant Evidence That Class Members Support the Settlement.................................17
B. The Proposed Process for and Content of the Class Notice Is Reasonable and the Proposed Notice Should Be Disseminated to the Class ..........................................................................18
C. Proposed Schedule Related to Final Approval ..........................................20 V. CONCLUSION......................................................................................................21
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I. INTRODUCTION After vigorous advocacy and negotiation, Reginald G. Moore, John E. Turner, C. Yvette
Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E. Harris, Jr., and Kenneth Rooks (hereinafter, “Class Representatives”), on behalf of themselves and a class of individuals they represent, and Camilla Simms and Lisa Robertson (hereinafter, “Individual Plaintiffs”) (together with Class Representatives, collectively “Named Plaintiffs”), and Defendant Jeh Johnson, Secretary, U.S. Department of Homeland Security (hereinafter “Defendant”) (together with Named Plaintiffs and Class Members, collectively “Parties”), have agreed to a settlement of the claims in this 16-year old employment discrimination lawsuit. The Parties respectfully request, pursuant to Federal Rule of Civil Procedure 23, that the Court issue an order (1) preliminarily approving the proposed Settlement Agreement (Dkt. No. 828) (“proposed settlement” or “settlement”), a copy of which is attached hereto as Exhibit 1, and (2) approving the manner of giving notice of the settlement to Class Members.
The proposed settlement provides for both significant monetary and injunctive relief. The Parties negotiated the proposed settlement at arm’s length, believe it achieves a fair, reasonable, and adequate resolution of Plaintiffs’ claims, and that it merits preliminary approval by this Court.
This motion focuses on seeking preliminary approval of the injunctive relief agreed to by the Parties. Because the Defendant is not currently taking a position on the allocation of settlement proceeds to the Named Plaintiffs and Class Members, a separate motion is being filed by the Named Plaintiffs seeking preliminary approval of the distribution of those funds.
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II. BACKGROUND A. Nature of the Lawsuit This is a Title VII class action brought by African-American Special Agents of the U.S.
Secret Service (“Secret Service”), a component of the U.S. Department of Homeland Security, which is headed by Defendant, the Secretary of Homeland Security. Eight Class Representatives bring a pattern-or-practice disparate treatment race discrimination claim and a disparate impact race discrimination claim on behalf of approximately 121 African-American Special Agents. At issue in the class complaint portion of this case are promotions of African-American Special Agents who bid for promotion during the time period of 1995-2005 to positions at the GS-14 and GS-15 levels.
Plaintiffs filed this case on behalf of African-American Special Agents to obtain monetary relief and changes to the Secret Service’s promotion system at the GS-14 and GS-15 levels. The proposed settlement meets both of these objectives.
B. Procedural History 1. Litigation
This lawsuit was filed on May 3, 2000. It was assigned to Judge Roberts until his retirement in March 2016, and then reassigned to Judge Friedman. The operative complaint is the Second Amended Complaint (Dkt. No. 362) (Aug. 8, 2006).
The litigation has been long, complex, and hard fought, with over 800 docket entries. We do not attempt a complete chronology here, but we provide a high-level overview of the proceedings to date.
Extensive discovery by both Plaintiffs and Defendant was completed between 2005 and 2008. Numerous depositions were taken, to include both fact and Federal Rule of Civil
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Procedure 30(b)(6) depositions. Twelve expert reports were exchanged and seven days of expert testimony were taken. Hundreds of thousands pages of documents were produced. The Parties also responded to interrogatories and requests for admission.
The Court granted Plaintiffs’ motion for class certification on February 25, 2013, certifying a class of “all current and former African-American Special Agents who bid for promotion to a GS-14 position from 1995 to 2004 and were not promoted to GS-14 on the first bid list on which they bid; and all current and former African-American Special Agents who bid for promotion to a GS-15 position from 1995 to 2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, a Deputy Director, or the Director of the Secret Service during the class period.” Moore v. Napolitano, 926 F. Supp.2d 8, 35 (D.D.C. 2013). Eight Named Plaintiffs were designated Class Representatives, and undersigned counsel for Plaintiffs were appointed as class counsel. Id. After full briefing and oral argument, in 2014 the U.S. Court of Appeals for the D.C. Circuit denied Defendant’s request for interlocutory review and allowed the class certification decision to stand. In re Johnson, 760 F.3d 66, 69 (D.C. Cir. 2014). Notice was mailed to the 121-member potential class in accordance with Federal Rule of Civil Procedure 23(c)(2)(B). See Dkt. No. 742 (May 13, 2013). Seven potential class members opted out, and 114 current and former African-American Special Agents remain in the class.
Defendant moved for summary judgment on Plaintiffs’ class action claims on March 25, 2015. Dkt. No. 811. Defendant had also moved for summary judgment on those portions of the Second Amended Complaint (Dkt. No. 362), that were not included in the certified class, as well as on the claims of the two plaintiffs named in that complaint who were not class members. Dkt. No. 768. These motions are fully briefed and oral argument was held on May 5, 2016. The
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Court informally stayed ruling in July 2016 so the Parties could attempt to negotiate a settlement, which they successfully have done.
2. Settlement Efforts The Parties’ efforts to settle this litigation have been extensive. One such attempt was from November 2010 to September 2011 under the auspices of a private mediator. The Parties’ original agreement was to attempt mediation for up to four months, but the process continued much longer. The mediation entailed many face-to-face meetings, phone calls, and exchanges of proposals. Despite a very substantial allocation of resources to the process by all involved, and much progress, ultimately mediation was not successful. See Ex. 2 (J. Klar Decl.) at ¶¶ 3-4. The Parties made another effort to negotiate a settlement in July 2016, this time without the assistance of a neutral. Again, hundreds of hours were devoted to face-to-face meetings, phone calls, and the development of and negotiation over proposals. Efforts to craft mutually agreeable injunctive relief regarding the Secret Service’s promotions process were especially time consuming. After nearly six months, the Parties reached the settlement presented to the Court herein. Id. ¶¶ 6-8. III. THE PROPOSED SETTLEMENT A. Monetary Relief The settlement provides for the payment of $24 million by Defendant subject to certain opt-out thresholds. Settlement Agreement at 7 and 32. This includes funds for payments to all Named Plaintiffs and class members in full and complete satisfaction of all claims made in this litigation, including without limitation, claims for economic and non-economic damages of any kind, back pay, front pay, interest (including both pre-judgment and post-judgment interest),
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compensatory damages, attorney’s fees, and litigation expenses and costs, as well as administration of the settlement. Settlement Agreement at 8.
The proposed division of the funds is not set forth in the proposed Settlement Agreement or described in this joint motion. Instead, the proposed division will be described in a second motion for preliminary approval that will be submitted by Plaintiffs alone (styled “Plaintiffs’ Motion for Preliminary Approval of Distribution of Settlement Proceeds”). Although not anticipating the need to object to Plaintiffs’ proposed distribution, Defendant has retained a right to do so in the proposed Settlement Agreement.
B. Modifications to and Testing of Special Agent GS-14 and GS-15 Selection Practices
The settlement the Parties propose includes provisions affecting two of the phases of the Merit Promotion Plan for GS/GM-1811 Promotions (“MPP”): the scoring phase and the recommendation and selection phase.
1. The MPP Scoring Phase After the class period ended in 2005, the Secret Service independently implemented substantial modifications to its scoring process for promotions to the GS-14 and GS-15 levels under the MPP. The Secret Service used an outside expert and subject matter experts to construct a competency-based model and conduct validation studies. Plaintiffs have reviewed these improvements and agree that they are satisfactory with respect to construction of the scoring system. See Settlement at 9 and 10. The Secret Service is currently working with an outside expert to update those competencies and make additional improvements to the MPP scoring process (the “2017 MPP scoring process”). Id. In this proposed settlement, the Secret Service has agreed to continue to maintain a competency-based scoring system that is validated by an outside expert, and to continue to
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publish the competencies used in the scoring process, as it has since at least 2009. Id. at 10. Further, if statistical testing reveals that the 2017 MPP scoring process’ reliability falls below the range generally accepted in the field based on the assessment of an outside expert, the Secret Service will work with its outside expert to assess possible changes to improve reliability. Id. The Secret Service further agrees to provide Plaintiffs the opportunity to review the final 2017 report reflecting the validity and reliability testing, and efforts to improve reliability, if any. Id.
2. The MPP Recommendation and Selection Phase With respect to the recommendation and selection phase of the MPP, the Secret Service commits through this proposed settlement to completing the further development and implementation of a competitive selection process that is based upon standardized evaluative factors that are job-related, and that provides for accountability and flexibility in decisionmaking. Id. at 11. More specifically, the proposed settlement requires the Secret Service to engage an outside expert to assist in analyzing the existing MPP selection procedures and to develop a list of job-related standardized evaluative factors to be used in making recommendation and selection decisions for vacancies at the GS-14 and GS-15 levels. Id. at 1112. The outside expert’s analysis is not intended to replicate the competencies identified and assessed during the scoring phase of the MPP. It is intended that the standardized evaluative factors developed will involve objective elements, rather than subjective elements. Id. at 13. The Secret Service shall provide employees with notice of the new MPP selection procedures by publishing them as part of the MPP. Id. at 17-18. Under the terms of the proposed agreement, the Secret Service’s Advisory Board will use the identified standardized evaluative factors to consider and evaluate candidates for competitive promotion to GS-14 and GS-15 vacancies. Certain neutrally applied “organizational” factors
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may also be considered. Id. at 15. While the Secret Service retains discretion to consider MPP scores in evaluating promotion candidates, under the proposed agreement the Advisory Board will not consider MPP scores that are not different from each other in a statically significant manner as a basis for differentiating between candidates with such scores. Id. at 21. Within the framework set out in the proposed settlement, the Advisory Board retains discretion to determine whom to recommend and select for promotion. Id. at 13-17.
Further, the Secret Service’s Executive Chief of the Office of Human Resources (“EC HUM”), or designee, will attend all meetings of the Advisory Board where selection decisions are discussed and will ensure that multiple candidates are considered by the Board for each vacancy (unless multiple candidates did not bid on the vacancy). Id. at 19-20. When a candidate is ultimately selected for promotion, the Secret Service will create and maintain contemporaneous written records of decisions regarding MPP selections. Id. at 17. The Secret Service will conduct annual audits of the required MPP selection documentation. Id. at 20. The purpose of these audits is to ensure that the standardized evaluative factors are being used, that multiple candidates are being discussed and considered for each vacancy where multiple candidates exist, that organizational factors are applied in the manner prescribed by the proposed Settlement Agreement, that recommendation/selection decisions are being properly documented and that the documentation is being maintained in accordance with policy and the provisions of the settlement . Id. at 20.
3. Statistical Testing Through this proposed settlement, the Secret Service has agreed to retain an outside expert to analyze data from specified stages of the MPP to determine whether that stage has an adverse impact on African-American Special Agent candidates. Id. at 22-21. Should the results
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of the statistical testing indicate adverse impact for African-American Special Agents, an outside expert will assist the Secret Service in trying to ascertain the cause of the impact and will also assist the Secret Service in considering and testing alternatives to address the adverse impact. Id. at 23. For a term of years specified in the proposed settlement, the Secret Service will provide Plaintiffs with the expert’s final report regarding the testing and analysis of alternatives, if such analysis is needed. Id. at 24.
C. Additional Injunctive Relief 1. Training
The proposed settlement also requires certain forms of training. Those sitting on the Advisory Board or those Special Agents in Charge and Division Chiefs involved in the GS-14 and GS-15 promotion process will be trained on the application of the standardized evaluative factors. Advisory Board members will also receive a briefing on equal employment opportunity and diversity issues, including unconscious bias and stereotyping. Id. at 18 and 25.
2. Equal Employment Opportunity and Diversity The proposed settlement contains several provisions designed to highlight the Agency’s continuing commitment to equal employment opportunity concerns and diversity going forward. The Secret Service has agreed that when the Equal Employment Opportunity (“EEO”) Director is aware of information, beyond an official finding of discrimination or retaliation, about a promotion/reassignment candidate that may raise a concern, that information may be shared with the Advisory Board. Id. at 24-26. The Secret Service has in place a specific disciplinary offense for those engaging in biased conduct or the failure to report such conduct, and the Secret Service has agreed to maintain a specific disciplinary offense for such conduct. Id. at 26. In addition, the Agency has agreed to expand its existing Prevention of Harassment Hotline so that it can be used
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for reporting incidents of race discrimination. Id. at 26. The Agency has further agreed to track certain complaints of race discrimination—whether they are raised through the hotline or formal written complaints—by Responsible Management Official (“RMO”) in an effort to identify any patterns. Id. at 25-26.
3. “Second Look” at Promotions Status Through this proposed agreement, the Secret Service has agreed, once the selection process standardized evaluative factors have been created and adopted, that it will give the following Class Representatives and Class Members a Second Look for consideration for possible promotion to the GS-14 or GS-15 level: (a) those four individuals who have not been promoted to the GS level to which they were seeking promotion during the Class Period, who are participating in the MPP scoring process for the 2016/2017 promotion cycle, and who receive a final score; and (b) and those three individuals promoted to the GS-14 level after a longer period than the average non-African American Special Agent as determined by the Secret Service for the Class Periods, who are participating in the MPP scoring process of 2016/2017, and who receive a final score. Id. at 28. A group comprised of a representative from the Secret Service’s EEO Office, the Assistant Director of the Office of Investigations, and an Assistant Director (or other positioned individual) who is a Class Member will review relevant information regarding these seven “second look” Special Agents and consider the standardized evaluative factors to determine whether any such Agent was previously overlooked in promotions. Id. For any Agent identified as being overlooked, the Secret Service will refer that Agent to the Advisory Board for further consideration for promotion; the Advisory Board will give additional consideration to any such referred Special Agents for a period of one year with regard to any position for which that Agent bids and makes the Best Qualified List. Id. at 29
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D. Administration of the Settlement The Plaintiffs have selected Settlement Services, Inc., an experienced class action administration firm, to serve as Class Administrator. See Ex. 3 (Class Administrator Brochure).The Class Administrator will be responsible for various tasks including mailing notice of the proposed settlement and claim forms to Class Members, receiving requests to opt-out of the Settlement, processing checks, maintaining a website containing pertinent documents, and responding to inquiries from Class Members. IV. ARGUMENT We explain below why the non-financial components of the proposed settlement warrant preliminary approval under Rule 23. The separate motion being filed today by Plaintiffs explains why Plaintiffs believe that the financial components warrant preliminary approval, as well. The overarching legal standards applicable to all components of the settlement, set forth in Section IV.A.1., immediately below, are the same. A. The Proposed Settlement Should Be Preliminarily Approved Under Federal
Rule of Civil Procedure 23 1. Legal Standard for Preliminary Approval Judicial approval of a class settlement under Federal Rule of Civil Procedure 23(e) involves a two-step process. Manual for Complex Litigation (Fourth), §§ 13.14, 21.6632 (2004). First, “the proposal [is reviewed] preliminarily to determine whether it is sufficient to warrant public notice and a hearing.” Id. If the court finds that a proposed class settlement is “the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, . . . and falls within the range of possible [judicial] approval,” the court should grant preliminary approval and schedule a formal fairness hearing and direct notice to the class. In re Vitamins Antitrust Litig., No. 99-197, 1999 WL 1335318, at *5 (D.D.C. Nov. 23, 1999) (citing In re Shell
10

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 14 of 24
Oil Refinery, 155 F.R.D. 552, 555 (E.D. La. 1993)); Blackman v. Dist. of Columbia, 454 F. Supp. 2d 1, 8 (D.D.C. 2006) (“A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s length negotiations between experienced, capable counsel after meaningful discovery.”) (internal citations omitted); Manual for Complex Litigation (Fourth), at § 21.633.
The second step of the approval process follows preliminary approval and the provision of notice to the class with an opportunity for comment and objection. At this step, the Court must hold a hearing and determine whether the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). This inquiry is central to the first step, too, because the first step considers whether the settlement is “within the range of possible approval.”
To determine whether a settlement is “fair, reasonable, and adequate,” there is “‘no obligatory test’” in the D.C. Circuit. Blackman, 454 F. Supp. 2d at 8 (quoting Pigford v. Glickman, 185 F.R.D. 82, 98 (D.D.C. 1999)); Equal Rights Center v. Wash. Metro. Area Transit Auth., 573 F. Supp. 2d 205, 211 (D.D.C. 2008). Factors typically considered by courts in this Circuit are:
(1) whether the settlement is the result of arm’s-length negotiations; (2) the terms of the settlement in relation to the strengths of plaintiffs’ case; (3) the status of the litigation proceedings at the time of settlement; (4) the reaction of the class; and (5) the opinion of experienced counsel. Alvarez v. Keystone Plus Constr. Corp., 303 F.R.D. 152, 163 (D.D.C. 2014); see also, e.g., Ceccone v. Equifax Information Servs. LLC, No. 13-CV-1314, 2016 WL 5107202, at *4 (D.D.C. Aug. 29, 2016). Among these considerations, the primary task is to “evaluat[e] the terms of the settlement in relation to the strength of the[] case.” Pigford, 206 F.3d at 1217; see Thomas v. Albright, 139 F.3d 228, 231 (D.C. Cir. 1998) (“The Court’s primary task is to evaluate the terms of the settlement in relation to the strength of the plaintiffs’ case.”). A court’s discretion “to
11

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 15 of 24
reject a settlement is restrained by the ‘principle of preference’ that encourages settlements.” Pigford, 185 F.R.D. at 103 (citation omitted).
Application of the factors set forth above for both steps of the approval process confirms that the proposed settlement should receive preliminary approval.
2. The Settlement Is the Product of Arm’s Length Negotiations Between Experienced, Capable Counsel After Meaningful Discovery
As described above, the settlement is the product of extensive arm’s length negotiations by experienced counsel. Both sides were represented in those negotiations by accomplished and highly experienced counsel: the government by lawyers from the U.S. Department of Justice, the U.S. Department of Homeland Security, and the Secret Service, Plaintiffs by lawyers from Hogan Lovells and the civil rights firm of Relman, Dane & Colfax. Plaintiffs’ counsel have been appointed class counsel in numerous other cases, and the Court observed in appointing them class counsel in this case that “[t]here is no dispute as to whether the plaintiffs’ class counsel are appropriate, and there is no indication that class counsel lack the experience and knowledge required to represent the class.” Moore, 926 F. Supp. 2d at 35.
Counsel are well-informed of the strengths and weaknesses of the case. Both rounds of in-depth negotiations – in 2010/2011 and 2016 – came after the completion of discovery, and the second round came after summary judgment briefing and argument and after an appeal to the D.C. Circuit on class certification.
That the Parties were unable to reach an agreement during the first round, despite trying for ten months with the assistance of a highly-regarded mediator, is testament to how hardfought the negotiations were. It took nearly six more months in the second round to reach a resolution.
12

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 16 of 24
It is clear, in sum, that the settlement presented to the Court is “the product of serious, informed, non-collusive negotiations” “between experienced, capable counsel,” such that a “presumption of fairness, adequacy, and reasonableness” should attach. In re Vitiamins Antitrust Litig., 1999 WL 1335318, at *5; Blackman, 454 F. Supp. 2d at 8; see also In re Johnson, 760 F.3d at 72 (describing the government’s then-14-year defense of the case as “tenacious[]”).
3. The Terms of the Settlement and their Relationship to Plaintiffs’ Claims
The proposed settlement provides relief that is related to Plaintiffs’ claims, including monetary recoveries and non-monetary agreements. On the monetary side, the Secret Service has agreed to pay $24 million, subject to opt-out thresholds, to resolve all claims in this case. See Settlement at 7, 32. While the specific distribution of those funds is set forth in detail in Plaintiffs’ forthcoming Motion for Preliminary Approval of the Distribution of the Settlement Proceeds, it is undisputed that the settlement ensures that there are sufficient funds to compensate the class. In addition, the non-monetary relief afforded by this settlement effectuates the stated goals of the class, and provides certain relief that the class would have no guarantee of obtaining if they proceeded with litigation. Considered, as it must be, in the context of Plaintiffs’ goals and the risks they would face if the case proceeded to summary judgment adjudication and possible trial, the settlement achieves a favorable result for the class.
a. The Proposed Settlement Achieves the Stated Goal the Class Sought to Obtain through this Litigation
The injunctive relief achieved through this settlement addresses the specific issues the class asserted in this litigation.
First, the settlement ensures that the promotions system challenged by the class as discriminatory based on race is going-forward based on objective and job-related factors. During
13

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 17 of 24
the class period, the Secret Service used a scoring system in which an Agent’s MPP score was based on a supervisor’s evaluation and peer and/or second level evaluation. See Dkt. No. 677 at 5. Plaintiffs have alleged that the Secret Service’s use of these scores had an adverse impact on African-Americans. See, e.g., Dkt. No. 711 at 31-32. Selection recommendations were made by the Advisory Board without any written or published restriction or guidance as to what should be considered in selecting candidates for promotion from the Best Qualified Lists, and without any contemporaneous records of the reason(s) for any selection decision. See Dkt. No. 585 at 20-21. Plaintiffs have maintained that under this framework, at times during the class period fewer African Americans were selected for promotion than would be expected in the absence of discrimination at either the GS-14 or GS-15 levels. See, e.g., Dkt. No. 677 at 12. In addition, Class Representatives and Class Members described being turned down for promotion based on Agency considerations, when the same Agency consideration was alleged to have not applied to non-African-American Special Agents. See id. at 55-56. Plaintiffs’ expert opined that the MPP promotions system in place during the class period did not adhere to principles governing how selection policies should be designed in order to be valid, non-discriminatory, and job related (meaning that the selection procedures serve their purpose of identifying the characteristics of the most qualified candidate for the position at issue). See id. at 10-11.
These concerns as asserted by Plaintiffs are specifically addressed in the proposed settlement. It requires that the Secret Service to continue to maintain a competency-based scoring process validated by an outside expert such as that which was put in place by the Secret Service in 2009. See Settlement at 10. The settlement further obligates the Secret Service to complete further development and implementation of a set of standardized evaluative factors that are job-related, and that are to provide for accountability and flexibility in the final decision-
14

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 18 of 24
making stage of the existing MPP, the recommendation and selection phase; to continue to publish the competencies used in MPP scoring phase; to publish the standardized evaluative factors applied in the recommendation and selection phase; and to contemporaneously document the reasons(s) for each candidate’s selection for promotion or reassignment to a competitively bid GS-14 or GS-15 Special Agent vacancy. See Settlement at 10, 17-18; see also Dkt. No. 677 at 53-56. The settlement also requires statistical testing and reporting to identify possible adverse impact on African-American Special Agent candidates stemming from the MPP GS-14 and GS-15 promotion process. See Settlement at 21-25.
Second, the settlement contains several measures to ensure that changes to the MPP as implemented continue to be applied. Advisory Board members, Special Agents in Charge, and Division Chiefs are to be trained on the new standardized evaluative factors and the use of those factors in making recommendations as part of the MPP process. Id. at 18-19. In addition, the Secret Service’s EC HUM, or designee, must be present for all Advisory Board discussions of candidates and make sure that the standardized evaluative factors and the organizational factors are neutrally applied. See Settlement at 19-20. The Secret Service will also perform audits to confirm implementation of the changes to the recommendation and selection phase of the MPP. See Settlement at 20.
Third, the proposed settlement responds to the allegations made by class members that racial incidents went unaddressed. See, e.g., Dkt. 677 at 37-43. The Secret Service has agreed to create and publish to Secret Service employees a policy to provide for the use of the existing Prevention of Harassment Hotline to be used as a mechanism for reporting incidents of misconduct and discrimination. Id. at 27. Calls to the Hotline reporting incidents of discrimination against African-American Special Agents on the basis of race will be tracked by
15

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 19 of 24
RMOs to determine if a cognizable pattern exists. Id. And, as the Secret Service had already independently implemented a specific discipline offense for those engaged in biased conduct or who fail to report biased conduct, the Secret Service agreed to continue to maintain and publish a specific discipline policy for those who engage in biased conduct or who fail to report biased conduct. Id. at 27-28.
b. The Proposed Settlement Affords Relief that Might Otherwise Not Be Attained through Litigation
The settlement the Parties propose is not only favorable to class members in achieving the class’s goals, but it provides certainty of relief that would otherwise not be possible in litigation. If the class proceeded with litigation, there would be no certainty of any recovery, let alone the tailored injunctive relief set forth in this settlement or the monetary relief achieved here. Had this case proceeded to trial, even if Plaintiffs did prevail, any changes to the Secret Service’s MPP obtained through court order likely would not be as detailed or meticulously designed as those proposed here.
4. The Status of the Litigation Favors Approval of the Settlement Just as in In re Vitamins Antitrust Litigation, 305 F. Supp. 2d 100 (D.D.C. 2004), the matter has been ongoing for years and summary judgment, the resolution of which would substantially affect the Parties’ prospects, is pending. The Court in that case found that: [T]hese Settlements do not come too early to be suspicious nor too late to be a waste of resources. It is in fact at a desirable point in the litigation for the parties to reach an agreement and resolve these issues without further delay, expense, and litigation. Id. at 105. Those findings apply here in full. It is important to note that much more litigation would need to come, at substantial cost, if the case were litigated to conclusion. A trial would likely require the
16

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 20 of 24
better part of a month. Even assuming a win for Plaintiffs, each Plaintiff (except for the class representatives) would still need to go through individual “Teamsters hearings.” Each would need to establish his or her damages in those hearings. Moreover, Defendant would be free during those hearings to dispute the inference of discrimination with evidence that any particular non-promotion “was not based on its policy of discrimination.” Teamsters, 431 U.S. at 362; see also In re Johnson, 760 F.3d at 75. Additionally, at the end of this process Defendant would still be able to appeal the class certification decision, as well as other discovery-related decisions that, if set aside on appeal, could mean years more of litigation in this case.
The settlement comes after sufficient litigation to assure that the decisions on both sides are well-informed, and early enough – despite the many years the case has been pending – to save significant time and resources. It is an ideal time for a settled resolution.
5. The Record Already Contains Significant Evidence That Class Members Support the Settlement
In most class action settlements, the positions of class members are not known at the preliminary approval stage. That is because notice of the settlement providing an opportunity for class members to file objections or (in the case of Federal Rule of Civil Procedure 23(b)(3) classes) to opt out has not yet been distributed. In this case, support for the settlement is nonetheless already clear. Attached to this motion are declarations from fifteen class members stating their unequivocal support for the settlement. See Ex. 4 (Class Member Declarations); Ex. 5 (Class Representative Declarations). This includes all eight Class Representatives and seven additional class members. With respect to the components of the settlement that modify the Secret Service’s promotions policy, these class members all state that “the non-monetary terms
17

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 21 of 24
of the proposed settlement are good and fair” Ex. 4 ¶ 9; Ex. 5 ¶ 8. These class members all state that they “strongly support the settlement.” Id. ¶ 10
B. The Proposed Process for and Content of the Class Notice Is Reasonable and the Proposed Notice Should Be Disseminated to the Class
Prior to finally approving the proposed settlement, the Court “must direct notice in a reasonable manner to all class members who would be bound by the proposal.” This is in addition to the notice provided to all class members in 2013 when the class was certified. See Order Approving Form of Class Notice and Notice Plan (Dkt. No. 742) (May 13, 2013). The notice must be “direct[ed] in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Two other provisions of Federal Rule of Civil Procedure 23(e) affect the content of the notice: “the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so,” and “[a]ny class member may object to the proposal . . . .” Id. 23(e)(4), (5).
The Parties propose to give notice of the proposed settlement to all class members using the same method as the Court approved in 2013. That is, individual notice will be mailed directly to each class member via first-class mail using addresses previously provided by Defendant.1 Class counsel has repeatedly sent letters to all class members since 2013, and maintains a database of updated addresses; moreover, class counsel is in individual communication with a significant percentage of the class. In addition, the Secret Service will
1 This means all who meet the class definition, except for the seven who opted out in 2013. The language regarding exclusion in the 2013 notice included the following: “If you exclude yourself from the class – which is sometimes called ‘opting out’ of the class – you will not get any money or benefits from this lawsuit even if the Plaintiffs or class members obtain them after proving discrimination at trial or from any settlement that may be reached between Plaintiffs and the Secret Service.” Dkt. No. 742-1 (May 13, 2013) at § 14.
18

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 22 of 24
provide updated, current addresses for those approximately forty-two class members who remain employed by the Secret Service. If a notice is returned as undeliverable, the Class Administrator will make all reasonable efforts to provide updated/corrected contact information, and the notice will be remailed.
Providing mailed notice satisfies Federal Rule of Civil Procedure 23(e)(1)’s “reasonable manner” requirement because mailed notice “ordinarily satisfies” Rule 23(c)(2)(B)’s “best notice that is practicable under the circumstances” requirement, which if anything is more demanding. Peters v. National R.R. Passenger Corp., 966 F. 2d 1483, 1486 (D.C. Cir. 1992); see also, e.g., Brown v. Wells Fargo Bank N.A., 25 F. Supp. 3d 144, 149 (D.D.C. 2014). There is nothing out of the ordinary here. Mailed notice also satisfies the due process concerns implicated by (b)(3) class actions, namely “the opportunity to be excluded from the class action and not be bound by any subsequent judgment.” Id.
The parties’ proposed notice is attached here is Exhibit 6. The format and content of the notice will match the 2013 notice to the greatest extent possible. New language describing the financial and non-financial terms of the settlement and settlement-related procedures, as well as how to object, is set forth in the same style as the 2013 notice, and the notice continues to explain how a Class Member may opt out of the class and the consequences. New language also informs Class Members that they may obtain copies of the Settlement Agreement and other key documents from a web site that will be maintained by the Class Administrator, and that they may contact Class Counsel or the Class Administrator with any questions they may have regarding the settlements and the procedures that will be used to implement it. The notice will be provided to Class Members with adequate time for them to decide if they want to object or opt out. See
19

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 23 of 24

Settlement Agreement at 30-33 (opt-outs and objections due thirty-six days after deadline for mailing of notice); Ex. 6 (Proposed Notice) at 12-13.
C. Proposed Schedule Related to Final Approval If the Court grants preliminary approval of the proposed settlement, the Parties respectfully propose the following schedule for the remaining procedural steps leading to the Court’s final review:

Deadline for mailing of notice to Class Members

51 days prior to Final Fairness Hearing

Deadline for opting out

36 days after mailing of notice to Class Members

Deadline for Class Administrator to file opt 5 days after deadline for opting out out statements with the Court

Deadline for filing objections

36 days after mailing of notice to Class Members

Deadline for Plaintiffs to file motion for an award of attorneys’ fees and costs

30 days prior to Final Fairness Hearing

Deadline for filing motion for final approval of settlement, and to respond to any objections

5 days prior to Final Fairness Hearing

Final Fairness Hearing

60 days after the Court preliminarily approves the settlement

If this schedule is not convenient for the Court, Plaintiffs request that the Court use the same or greater intervals between each event listed to provide all Parties sufficient time to
20

Case 1:00-cv-00953-PLF-DAR Document 829 Filed 01/27/17 Page 24 of 24
comply and to provide Class Members sufficient time to review the terms of the proposed settlement, consider their options, and act accordingly. V. CONCLUSION
For the reasons set forth above, the Parties respectfully submit that that Court should grant preliminary approval to the Settlement Agreement and enter the proposed preliminary approval order in the form submitted herewith.
Respectfully submitted,

/s/ E. Desmond Hogan E. Desmond Hogan (D.C. Bar # 458044) Kathryn Marshall Ali (D.C. Bar #994633) Hogan Lovells USA 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5600

Channing D. Phillips (D.C. Bar # 415793) United States Attorney
for the District of Columbia
Daniel F. Van Horn (D.C. Bar # 924092) Chief, Civil Division

/s/ Jennifer I. Klar John P. Relman (D.C. Bar # 405500) Jennifer I. Klar (D.C. Bar # 479629) Megan Cacace (D.C. Bar # 981553) Relman, Dane & Colfax PLLC 1225 Nineteenth Street, N.W., Ste 600 Washington, D.C. 20036 (202) 728-1888
Attorneys for Plaintiffs & the Class
Dated: January 27, 2017

/s/ Marina Utgoff Braswell Marina Utgoff Braswell (D.C. Bar # 416587) Benton G. Peterson (WI Bar # 1029849) Peter C. Pfaffenroth (D.C. Bar # 496637) Assistant U.S. Attorneys, Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 252-2561
Attorneys for Defendant

21

 
 Case 1:00-cv-00953-PLF-DAR Document 832 Filed 01/31/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JEH C. JOHNSON, Secretary,

)

U.S. Department of Homeland Security, )

)

Defendant.

)

Civil Action No. 00-953 (PLF/DAR)

~RDER GRANTING JOINT MOTION FOR PRELIMIN~\RY
APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AND APPROVAL OF NOTICE

The Court having reviewed the Joint Motion for Preliminary Approval of Class Action

Settlement Agreement, the proposed Notice of Proposed Settlement ("Notice"), and the proposed

terms of settlement set forth in the executed Settlement Agreement, Release, and Consent Decree

(hereinafter, "Settlement Agreement" or "Settlement") by and between Reginald G. Moore, John

E. Turner, C. Yvette Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E.

Harris, Jr., and Kenneth Rooks (hereinafter, "Class Representatives"), on behalf of themselves

and a class of individuals they represent, and Camilla Simms and Lisa Robertson (hereinafter,

"Individual Plaintiffs") (together with Class Representatives, collectively "Named Plaintiffs"),

and Defendant Jeh Johnson, Secretary, U.S. Department of Homeland Security (hereinafter

"Defendant") (together with Named Plaintiffs and Class Members, collectively "Pa1ties"), in the

above-styled Civil Action, together with all exhibits thereto, the record in the Civil Action, and

r--- b\)-h.. (:.. -h... ,...... 1-,'!1.... o..-1 ~ f}(VW... ~

W:. the arguments of counsel; · a...,:l ~ -f-u.. ~ ~

~

IT IS HEREBY ORDERED AS FOLLOWS:

Case 1:00-cv-00953-PLF-DAR Document 832 Filed 01/31/17 Page 2 of 5
1. All terms and definitions used herein have the same meanings as set forth in the Settlement Agreement.
2. If a Class Member is deceased, the rights and obligations of that Class Member with respect to the Settlement shall apply to his or her estate.
3. The proposed tenns of Settlement set forth in the Settlement Agreement are hereby preliminarily approved as being within the range of possible final approval as fair, reasonable, and adequate such that notice thereof should be given to the Settlement Class Members for their consideration.
4. The Court finds that the method of providing notice to the Class Members proposed in the Settlement Agreement and the Joint Motion for Preliminary Approval of Settlement Agreement ("Joint Motion") is reasonable and constitutes valid, due, and sufficient notice to all Class Members of their rights and obligations, complying fully with the requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution, and any other applicable law.
5. The Notice of Proposed Settlement and Fairness Hearing attached as Exhibit 6 to the parties' Joint Motion for Preliminary Approval is hereby approved as reasonable and incorporated herein.
6. Settlement Services, Inc. is approved as the Class Administrator for the proposed Settlement. The Class Administrator will open and administer an interest-bearing Qualified Settlement Fund account ("QSF") with a unique Tax Payer Identification Number. Payment of the total sum of twenty-four million dollars ($24,000,000.00) shall be in accordance with Section lii.C of the Settlement Agreement.
2

Case 1:00-cv-00953-PLF-DAR Document 832 Filed 01/31/17 Page 3 of 5
7. The parties are directed to serve the Notice on Settlement Class Members as set forth in Section V.B. of the Settlement Agreement. Contact information provided by Defendant will be treated subject to the protective order approved and entered in this case on March 10, 2005.
8. When a Notice is returned as undeliverable: (a) the Class Administrator will notify Class Counsel and Defendant of the name of the individual whose Notice was retumed as undeliverable; (h) the Class Administrator shall use appropriate databases to determine, to the best extent possible and using its discretion, the most likely current address for each such individual; (c) Class Counsel and Defendant may also engage in their own efforts to locate accurate contact information for such individuals and provide that information to the Class Administrator; and (d) once updated contact information has been obtained, the Class Administrator shall re-disseminate the Notice using the updated information.
9. The procedures pursuant to which Class Members may exclude themselves ("optout") from the Settlement Class and the monetary benefits of the Settlement Agreement are set forth in the proposed Settlement Agreement at Section V.D., and in the Notice. Any opt-out request must be postmarked no later than thirty-six (36) calendar days after the day on which the Class Administrator transmits a Notice to a Class Member. A Class Member who does not properly submit an Opt-Out Statement, as set forth in the Settlement Agreement and the Notice, will be bound by the Order and Final Judgment dismissing the Civil Action on the merits and with prejudice.
I0. Within five (5) calendar days after the deadline for requesting exclusion from the Settlement Class, the Class Administrator shall file with the Cowt and serve on counsel for all
3

Case 1:00-cv-00953-PLF-DAR Document 832 Filed 01/31/17 Page 4 of 5

Parties stamped copies of any Opt-Out Statements, as well as a declaration stating that the

required notice has been completed in accordance with the provisions of this Order.

II. The Settlement Agreement at Section V.E., and the Notice set forth the

procedures pursuant to which members of the Settlement Class may object to: (a) the proposed

Settlement as contained in the Settlement Agreement and in the Distribution Motion, and

described in the Notice; (b) the payment of fees and expenses to Class Counsel; and/or (c) the

entry of the Order and Final Judgment dismissing the Civil Action on the merits and with

prejudice. Any objections must be ·filed with the Court and served on Class Counsel and

Counsel for Defendant no later than thirty-six (36) calendar days after the day on which the Class

Administrator transmits the Notice to the Class Member. Any Class Member :who does not

comply with these requirements will be deemed to have waived any objections, and will be

forever barred from making any objections to the proposed Settlement. A Class Member who

has opted-out of the Settlement Class may not submit an Objection.

L\_,'\ l'3,

/t 12.
~ /\)

A hearing (the ."Fairness Hearing") shall be held by the Court on tJY11

t<......,

W1 Cov,. ~"' .... d <j'

, 2017

\60 da~'S atlsr t!.s el!lte ofcnhy sf<kis Oreler et <he DishibtttieH Metiefl Order, vvhiehcvct is later)

to consider and determine whether the proposed Settlement of the Civil Action on the terms set

forth in the Settlement Agreement and in the Distribution Motion should be approved as fair,

reasonable, and adequate, whether Plaintiffs' Counsels' award of attorneys' fees and costs should

be approved, and whether the Order and Final Judgment approving the Settlement and

dismissing the Civil Action on the merits and with prejudice against Class Members should be

entered.

4

Case 1:00-cv-00953-PLF-DAR Document 832 Filed 01/31/17 Page 5 of 5

13. The Fairness Hearing may, from time to lime and without further notice to the Class Members (except those who have filed timely and valid objections), be continued or adjourned by Order of the Comt.
14. No later than thirty (30) calendar days prior to the Final Fairness Hearing, Plaintiffs shall file a motion for an award of attorneys' fees and costs. Defendant's response to Plaintiffs' motion, if any, shall be filed no later than ten (1 0) calendar days after receipt.
15. No later than five (5) calendar days prior to the Final Fairness Hearing, Plaintiffs shall move the Court to enter ari Order and Final Judgment granting final approval ofthe Settlement.
16. No later than five (5) calendar days prior to the. Final Fairness Hearing, the Parties shall file with the Court their response to any timely-filed written objections to the Settlement.
17. Counsel for the Parties are hereby authorized to utilize all reasonable procedures in connection with the administration of the Settlement which are not materially inconsistent with either this Order or the terms of the Settlement Agreement.
18. The Court hereby decrees that neither this Settlement Agreement, nor this preliminary Approval Order, nor the fact of a settlement, are an admission or concession by the Defendant of any liability or wrongdoing whatsoever.

Dated:~9

7(
'

2-c;/ ::r

C?c:uJ-2:~
Hon. Paul L. Friedman United States District Judge

5

 
 Case 1:00-cv-00953-PLF-DAR Document 835 Filed 02/16/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REGINALD G. MOORE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

JEH C. JOHNSON, Secretary,

)

U.S. Department ofi-Iomeland Security, )

)

Defendant.

)

Civil Action No. 00-953 (PLF/DAR)

~1~~-~~kOoRvDER [PR

GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY

AL OF DISTRIBUTION OF SETTLEMENT PROCEEDS

The Court having reviewed the proposed terms set forth in Plaintiffs' Motion for

Preliminary Approval of Distribution of Settlement Proceeds ("Distribution Motion") in

connection with the executed Settlement Agreement, Release, and Consent Decree (hereinafter, "Settlement Agreement" or "Settlement") by and between Reginald G. Moore, John E. Turner, C. Yvette Summerour, Leroy Hendrix, Cheryl L. Tyler, Luther K. Ivery, Andrew E. Harris, Jr.,

and Kenneth Rooks (hereinafter, "Class Representatives"), on behalf of themselves and a class of

individuals they represent, and Camilla Simms and Lisa Robertson (hereinafter, "Individual

Plaintiffs") (together with Class Representatives, collectively "Named Plaintiffs"), and

Defendant Jeh Johnson, Secretary, U.S. Department of Homeland Security (hereinafter "Defendant") (together with Named Plaintiffs and Class Members, collectively "Parties"), in the above-styled Civil Action, together with all exhibits thereto, the record in the Civil Action, and

the arguments of counsel;

Case 1:00-cv-00953-PLF-DAR Document 835 Filed 02/16/17 Page 2 of 3

IT IS HEREBY ORDERED AS FOLLOWS:

I.

All terms and definitions used herein have the same meanings as set forth in the

Settlement Agreement.

2.

The proposed distribution of settlement proceeds to the Named Plaintiffs and

Class Members, as set forth in the Distribution Motion, is hereby preliminarily approved as being

within the range of possible final approval as fair, reasonable, and adequate such that notice

thereof should be given to the Class Members, subject to paragraph 3 below.

3. If, after final distribution of the Settlement Fund to the Named Plaintiffs, Class Members,

and payment of attorneys' fees and costs and Settlement administrative fees, there are any funds

remaining, the remainder will be redistributed to the Class Members on a pro rata basis subject to

the $300,000 cap set forth in Paragraph lll.B. of the Settlement Agreement. Should funds

remain after redistribution to Class Members such that no further redistribution can be made,

then any funds still remaining at that point will revert to the government.

4.

The Claim Form and Questionnaire, which are attached hereto as Exhibits A and

B, are hereby approved as to form.

5.

Funds from the Settlement Fund may be dispersed, as reasonably required and

without further approval of the Court, to pay administration costs incurred other than those

incurred by Class Counsel, billed to Plaintiffs' Counsel as they become due, up to a total of

$200,000.

6.

This Order is intended to complement and operate in accordance with the Order

entered separately on January 3 I, 2017, granting the Parties' Joint Motion For Preliminary

Approval of Proposed Class Action Settlement and Approval ofNotice.

2

Case 1:00-cv-00953-PLF-DAR Document 835 Filed 02/16/17 Page 3 of 3

7.

This Order does not address any proposed payment of attorneys' fees and costs, as

that issue is not yet ripe for resolution.

c7~ ~-·___,
Dated: Hon. Paul L. Friedman
United States District Judge

\

3

 
 Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 1 of 103
CLOSED,JURY,STAYED,TYPE−E
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:00−cv−00953−PLF

MOORE, et al v. CHERTOFF Assigned to: Judge Paul L. Friedman Demand: $0 Cause: 42:2003 Job Discrimination
Plaintiff
REGINALD G. MOORE

Date Filed: 05/03/2000 Date Terminated: 05/03/2017 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant
represented by E. Desmond Hogan HOGAN LOVELL US LLP 555 13th Street, NW Washington, DC 20004 (202) 637−5493 Fax: (202) 637−5910 Email: desmond.hogan@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar RELMAN, DANE & COLFAX, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 (202) 728−1888 x111 Fax: (202) 728−0848 Email: jklar@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Peter Relman RELMAN, DANE & COLFAX, PLLC 1225 19th Street, N.W. Suite 600 Washington, DC 20036−2456 (202) 728−1888 Fax: (202) 728−0848 Email: jrelman@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Marshall Ali HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637−5771 Fax: (202) 637−5910 Email: kathryn.ali@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Cacace RELMAN, DANE & COLFAX, PLLC 1225 19th Street, NW Suite 600 Washington, DC 20036 (202) 728−1888 Fax: 202−728−0848 Email: mcacace@relmanlaw.com LEAD ATTORNEY

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 2 of 103
ATTORNEY TO BE NOTICED
Dana Carver Boehm HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004 (202) 637−5600 Fax: (202) 637−5910 Email: dana.boehm@hoganlovells.com TERMINATED: 12/13/2011
David J. Shaffer WASHINGTON METROPOLITAN TRANSIT AUTHORITY 600 Sixth Street, NW Suite 2D Washington, DC 20001 (202) 962−2820 Fax: (202) 962−2569 Email: dshaffer@wmata.com TERMINATED: 03/05/2006
Deborah L. Boardman HOGAN & HARTSON, L.L.P. Columbia Square 555 13th Street, NW Washington, DC 20004−1109 (202) 637−6620 Fax: (202) 637−5910 Email: dlboardman@hhlaw.com TERMINATED: 01/29/2008
Erica Knievel Songer HOGAN LOVELL US LLP 555 13th Street, NW Washington, DC 20004 (202) 637−6519 Fax: (202) 637−5910 Email: erica.songer@hoganlovells.com TERMINATED: 03/10/2016
Jennifer Wigman Feinberg DELOITTE LLP 1919 N Lynn Street Arlington, VA 22209 (202) 637−6997 Fax: (202) 637−5910 Email: jwfeinberg@hhlaw.com TERMINATED: 03/24/2010
Melissa N. Henke HOGAN & HARTSON LLP 555 Thirteenth Street, NW Washington, DC 20004−1161 (202) 637−5546 Email: mnhenke@hhlaw.com TERMINATED: 07/14/2009
Ronald A. Schmidt Shaffer, Rapaport & Schmidt LLP 506 First street, SE Washington, DC 20007 (202) 905−6217 Fax: (202) 547−2813 Email: schmidt@srslawfirm.com

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 3 of 103

TERMINATED: 03/05/2006

Sarah M. Berger HOGAN & HARTSON LLP 555 Thirteenth Street, NW Washington, DC 20004−1161 (202) 637−3597 Email: smberger@hhlaw.com TERMINATED: 01/03/2007

Thomas John Widor FEDERAL TRADE COMMISSION Bureau of Consumer Protection 600 Pennsylvania Avenue, NW Mail Stop: CC 10232 Washington, DC 20580 (202) 326−3039 Fax: (202) 326−3768 Email: twidor@ftc.gov TERMINATED: 06/12/2013

Plaintiff JOHN E. TURNER

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 4 of 103

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Plaintiff C. YVETTE SUMMEROUR

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 5 of 103

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Plaintiff LEROY HENDRIX

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Plaintiff

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 6 of 103

CHERYL L. TYLER

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Plaintiff LUTHER K. IVERY

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 7 of 103

Plaintiff
ARTHUR DEREK EVANS TERMINATED: 05/02/2006

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011
David J. Shaffer (See above for address) TERMINATED: 03/05/2006
Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008
Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016
Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010
Megan Cacace (See above for address) ATTORNEY TO BE NOTICED
Melissa N. Henke (See above for address) TERMINATED: 07/14/2009
Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006
Sarah M. Berger (See above for address) TERMINATED: 01/03/2007
Thomas John Widor (See above for address) TERMINATED: 06/12/2013
represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dana Carver Boehm (See above for address)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 8 of 103

TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Plaintiff
ROBERT J. MOORE TERMINATED: 05/02/2006

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Plaintiff
DONALD W. TUCKER TERMINATED: 05/02/2006

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 9 of 103

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Plaintiff
JENELL G. WALKER−CLARK Individually and on behalf of all other similarly−situated persons TERMINATED: 05/02/2006

represented by E. Desmond Hogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Peter Relman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

David J. Shaffer (See above for address) TERMINATED: 03/05/2006

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Ronald A. Schmidt (See above for address) TERMINATED: 03/05/2006

Sarah M. Berger (See above for address) TERMINATED: 01/03/2007

Plaintiff ANDREW E. HARRIS, JR.

represented by Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 10 of 103

(See above for address) TERMINATED: 12/13/2011

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Plaintiff
LISA ROBERTSON Individually and on behalf of all other similarly situated

represented by Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 11 of 103

Plaintiff KENNETH ROOKS

represented by Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Megan Cacace (See above for address)

Melissa N. Henke (See above for address) TERMINATED: 07/14/2009

Thomas John Widor (See above for address) TERMINATED: 06/12/2013

Plaintiff CAMILLA SIMMS

represented by Jennifer I. Klar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Marshall Ali (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana Carver Boehm (See above for address) TERMINATED: 12/13/2011

Deborah L. Boardman (See above for address) TERMINATED: 01/29/2008

Erica Knievel Songer (See above for address) TERMINATED: 03/10/2016

Jennifer Wigman Feinberg (See above for address) TERMINATED: 03/24/2010

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 12 of 103

Megan Cacace (See above for address)
Melissa N. Henke (See above for address) TERMINATED: 07/14/2009
Thomas John Widor (See above for address) TERMINATED: 06/12/2013

V. Defendant LAWRENCE H. SUMMERS Secretary, United States Department of the Treasury TERMINATED: 06/26/2001
Defendant PAUL H. O'NEILL Secretary, U.S. Department of the Treasury TERMINATED: 10/25/2004
Defendant TOM RIDGE Secretary, U.S. Department of Homeland Security TERMINATED: 07/21/2005
Defendant MICHAEL CHERTOFF Secretary of Homeland Security

represented by Brian J. Sonfield US DEPARTMENT OF TREASURY Office of the General Counsel 1500 Pennsylvania Avenue, NW Washington, DC 20220 (202) 622−0450 Email: brian.sonfield@treasury.gov TERMINATED: 07/29/2005 LEAD ATTORNEY
Benton Gregory Peterson U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2534 Fax: (202) 252−2599 Email: benton.peterson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brian J. Sonfield (See above for address) TERMINATED: 07/29/2005 LEAD ATTORNEY
Benton Gregory Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Brian J. Sonfield (See above for address) TERMINATED: 07/29/2005 LEAD ATTORNEY
Benton Gregory Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Brian J. Sonfield (See above for address) TERMINATED: 07/29/2005 LEAD ATTORNEY
Marina Utgoff Braswell

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 13 of 103

U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2561 Fax: (202) 252−2599 Email: Marina.Braswell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benton Gregory Peterson (See above for address) ATTORNEY TO BE NOTICED

Edith Margeurita Shine UNITED STATES ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, DC 20001 (202) 307−1249 Fax: (202) 514−8780 Email: edith.shine@usss.dhs.gov ATTORNEY TO BE NOTICED

Harry B. Roback U.S. ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, DC 20530 (202) 252−7754 Email: harry.roback@usdoj.gov TERMINATED: 02/05/2013 ATTORNEY TO BE NOTICED

Michelle Nicole Bradford U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−7803 Fax: (202) 514−7880 Email: michelle.bradford@usdoj.gov TERMINATED: 03/03/2009

Defendant
JANET A. NAPOLITANO Secretary, U.S. Department of Homeland Security

represented by Benton Gregory Peterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marina Utgoff Braswell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Pfaffenroth U.S. ATTORNEY'S OFFICE Civil Division 555 Fourth Street, NW Washington, DC 20530 (202) 252−2513 Fax: (202) 252−2599 Email: peter.pfaffenroth@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 14 of 103

Harry B. Roback (See above for address) TERMINATED: 02/05/2013 ATTORNEY TO BE NOTICED

Date Filed 05/03/2000
05/03/2000
05/03/2000
05/03/2000 05/17/2000 05/17/2000
05/30/2000 06/01/2000 06/01/2000 06/01/2000 06/01/2000 06/01/2000 06/01/2000 06/01/2000
06/06/2000 06/08/2000
06/12/2000 06/12/2000

# Docket Text
1 COMPLAINT filed by plaintiff REGINALD G. MOORE, plaintiff JOHN E. TURNER, plaintiff C. YVETTE SUMMEROUR, plaintiff LEROY HENDRIX, plaintiff CHERYL L. TYLER, plaintiff LUTHER K. IVERY, plaintiff ARTHUR DEREK EVANS, plaintiff ROBERT J. MOORE, plaintiff DONALD W. TUCKER, plaintiff JENNEL G. WAKER−CLARK; jury demand (bjsp) (Entered: 05/10/2000)
SUMMONS (3)issued to federal party(s) federal defendant LAWRENCE H. SUMMERS , and non−parties: U.S. Attorney and U.S. Attorney General. (bjsp) (Entered: 05/10/2000)
2 (ENTERED IN ERROR) MOTION (REQUEST) filed by plaintiffs for protective order protecting the use of materials sought by plaintiff through discovery that discloses information purposefully protected by the Federal Privacy Act (bjsp) Modified on 07/17/2000 (Entered: 05/10/2000)
3 MOTION filed by plaintiffs to expedite discovery EXHIBIT (MOTION FOR PROTECTIVE ORDER) (bjsp) Modified on 07/17/2000 (Entered: 05/10/2000)
4 ATTORNEY APPEARANCE for federal defendant LAWRENCE H. SUMMERS by Brian J. Sonfield (bjsp) (Entered: 05/18/2000)
5 RESPONSE by federal defendant LAWRENCE H. SUMMERS in opposition to motion to expedite discovery [3−1] by REGINALD G. MOORE . (bjsp) (Entered: 05/18/2000)
6 REPLY MEMORANDUM by plaintiffs to defendant's opposition to motion to expedite discovery [3−1] by REGINALD G. MOORE (bjsp) (Entered: 05/31/2000)
7 MOTION filed by plaintiffs to expedite discovery regarding preliminary injunction issues (bjsp) (Entered: 06/02/2000)
8 MOTION (APPLICATION) filed by plaintiff for preliminary injunction ; declaration (1); exhibits (13) (bjsp) (Entered: 06/02/2000)
9 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed upon U.S. Attorney General on 5/3/00 (bjsp) (Entered: 06/02/2000)
10 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed on 5/3/00 upon federal defendant LAWRENCE H. SUMMERS (bjsp) (Entered: 06/02/2000)
11 MOTION filed by plaintiffs for expedited hearing (bjsp) (Entered: 06/02/2000)
12 RETURN OF SERVICE/AFFIDAVIT of summons and complaint executed upon U.S. Attorney on 5/3/00 (bjsp) (Entered: 06/02/2000)
13 NOTICE OF FILING by plaintiffs a corrected copy of memorandum of points and authorities in support of plaintiffs' application for a preliminary injunction (adc) (Entered: 06/05/2000)
14 MOTION filed by federal defendant LAWRENCE H. SUMMERS for leave to file surreply EXHIBIT( surreply) (bjsp) (Entered: 06/07/2000)
15 MOTION filed by federal defendant LAWRENCE H. SUMMERS to extend time to 6/12/00 to file an opposition to plaintiffs' application for a preliminary injunction (jf) (Entered: 06/09/2000)
16 MOTION filed by plaintiffs to compel a case management conference ; exhibits (2) (bjsp) (Entered: 06/13/2000)
17 RESPONSE by federal defendant in opposition to motion for preliminary injunction [8−1] by REGINALD G. MOORE . ; exhibits (25) (bjsp) (Entered: 06/14/2000)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 15 of 103

06/23/2000 06/30/2000 06/30/2000 06/30/2000 06/30/2000 06/30/2000 07/13/2000
07/13/2000 07/14/2000 07/20/2000 07/21/2000 07/21/2000 07/21/2000 07/24/2000 07/25/2000 07/26/2000 07/26/2000 07/27/2000 07/28/2000

18 RESPONSE by federal defendant LAWRENCE H. SUMMERS in opposition to motion to compel a case management conference [16−1] by REGINALD G. MOORE . (ab) (Entered: 06/26/2000)
19 MOTION filed by federal defendant LAWRENCE H. SUMMERS to dismiss complaint [1−1] ; exhibits (17) (cjp) (Entered: 07/03/2000)
20 REPLY by plaintiffs to defendant's opposition to their motion for preliminary injunction [8−1]; exhibits (4) (cjp) (Entered: 07/03/2000)
21 REPLY by plaintiffs to defendant's opposition to their to motion to compel a case management conference [16−1] (cjp) (Entered: 07/03/2000)
22 MOTION (UNOPPOSED) filed by plaintiffs to extend time to file reply with supplemental declarations and a revised order for their application for preliminary injunction ; exhibit (1) (cjp) Modified on 07/03/2000 (Entered: 07/03/2000)
23 STATEMENT filed by plaintiffs regarding: statement of non−opposition to plaintiffs' motion to expedite discovery regarding preliminary injunction issues and plaintiff's motion for expedited hearing; exhibit (1) (cjp) (Entered: 07/03/2000)
24 MEMORANDUM AND ORDER by Judge Richard W. Roberts : granting motion to compel a case management conference [16−1] by REGINALD G. MOORE, denying motion for expedited hearing [11−1] by REGINALD G. MOORE, denying motion to expedite discovery [3−1] by REGINALD G. MOORE, granting motion to expedite discovery regarding preliminary injunction issues [7−1] by REGINALD G. MOORE, granting motion to extend time to 6/12/00 to file an opposition to plaintiffs' application for a preliminary injunction [15−1] by LAWRENCE H. SUMMERS supplement to application for prliminary injunction due by 8/10/00 ; response to supplement due by 8/21/00 ; motion hearing set for 10:00 9/1/00 ;, granting motion for leave to file surreply [14−1] by LAWRENCE H. SUMMERS (N) (lin) (Entered: 07/13/2000)
25 SURREPLY by federal defendant LAWRENCE H. SUMMERS in further opposition to plaintiffs' motion to expedite discovery; declaration (1) (bjsp) (Entered: 07/14/2000)
26 MEMORANDUM by plaintiff in opposition to motion to dismiss complaint [1−1] [19−1] by LAWRENCE H. SUMMERS; exhibits (40) (jf) (Entered: 07/17/2000)
27 ERRATA by plaintiffs' of original declarations to opposition to motion to dismiss dated 07/14/00 (jf) (Entered: 07/21/2000)
28 ORDER by Judge Richard W. Roberts : response to motion to compel due 7/26/00 ; (N) (lin) (Entered: 07/21/2000)
29 MOTION filed by plaintiff for order shortenting time for defendant to respond to the motion to compel and sanctions , and to expedite hearing (jf) (Entered: 07/24/2000)
30 MOTION filed by plaintiffs to compel discovery , and for sanctions , and for oral hearing on this motion ; exhibits (6) (bjsp) (Entered: 07/24/2000)
31 MOTION filed by federal defendant LAWRENCE H. SUMMERS to extend time to 8/7/00 to file a reply in support of motion to dismiss (jf) (Entered: 07/25/2000)
32 ORDER by Judge Richard W. Roberts : granting motion to extend time to 8/7/00 to file a reply in support of motion to dismiss [31−1] by LAWRENCE H. SUMMERS; reply due by 8/7/00 (N) (jaw) (Entered: 07/26/2000)
33 CASE MANAGEMENT REPORT by plaintiffs and federal defendants (bjsp) (Entered: 07/28/2000)
34 RESPONSE by federal defendant LAWRENCE H. SUMMERS in opposition to motion to compel discovery [30−1] and motion for sanctions [30−2] by REGINALD G. MOORE . (bjsp) (Entered: 07/28/2000)
35 REPLY by plaintiff to response to motion to compel discovery [30−1] and for sanctions [30−2] by REGINALD G. MOORE (jf) (Entered: 07/31/2000)
36 RESPONSE by federal defendant LAWRENCE H. SUMMERS to motion to compel discovery [30−1] and motion for sanctions [30−2] by REGINALD G. MOORE (bjsp) (Entered: 07/31/2000)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 16 of 103

07/28/2000 07/31/2000
08/01/2000 08/01/2000 08/02/2000
08/03/2000 08/04/2000 08/07/2000 08/08/2000 08/08/2000 08/10/2000 08/11/2000 08/11/2000 08/15/2000
08/15/2000 08/15/2000 08/16/2000 08/16/2000

37 MEMORANDUM (SUPPLEMENTAL) by plaintiffs in support of motion to compel discovery [30−1] and motion for sanctions [30−2] by REGINALD G. MOORE ; exhibits (5) (bjsp) (Entered: 08/01/2000)
38 SECOND SUPPLEMENTAL REPLY by plaintiffs to reply [35−1] by plaintiffs, including a transcript and summary charts, in support of motion to compel discovery [30−1] and for sanctions [30−2] by REGINALD G. MOORE; exhibits (3). (bm) (Entered: 08/02/2000)
39 MOTION filed by plaintiff to extend time to 8/15/00 to file motion for class certification (bm) (Entered: 08/02/2000)
40 REPLY (THIRD SUPPLEMENTAL) by plaintiffs including a transcript and summary charts, in support of their motion to compel discovery [30−1] and motion for sanctions [30−2] by REGINALD G. MOORE ; exhibits (3) (bjsp) (Entered: 08/02/2000)
42 REPLY (FOURTH SUPPLEMENTAL) by plaintiffs in support of motion for sanctions [30−2] ; motion for oral hearing on this motion [30−3] and motion for order shortenting time for defendant to respond to the motion to compel and sanctions [29−1] by CHERYL L. TYLER, LEROY HENDRIX, C. YVETTE SUMMEROUR, JOHN E. TURNER, REGINALD G. MOORE ; exhibits (5) (bjsp) (Entered: 08/03/2000)
41 MEMORANDUM AND ORDER by Judge Richard W. Roberts : granting in part, denying in part motion to compel discovery [30−1] (N) (lin) (Entered: 08/03/2000)
46 MOTION (UNOPPOSED) filed by federal defendant LAWRENCE H. SUMMERS to extend time to 8/11/00 to file a reply in support of motion to dismiss (jf) (Entered: 08/08/2000)
43 MOTION filed by federal defendant LAWRENCE H. SUMMERS for protective order in response to plaintiffs' oral representation that they intend to take additional depositions of defendant's Rule 30 (b) (6) witness (bjsp) (Entered: 08/08/2000)
44 ORDER by Judge Richard W. Roberts : extending time to 4/11/00 reply to dispositive motions due by 8/11/00 ; (N) (lin) (Entered: 08/08/2000)
45 ORDER by Judge Richard W. Roberts : granting motion to extend time to 8/15/00 to file motion for class certification [39−1] by plaintiffs motion(s) due by 8/15/00 ; (N) (lin) (Entered: 08/08/2000)
48 SUPPLEMENTAL BRIEF by plaintiffs in support of their application for a preliminary injunction ; exhibits (11) (bjsp) (Entered: 08/14/2000)
47 REPLY MEMORANDUM by federal defendant LAWRENCE H. SUMMERS in further support of motion to dismiss complaint [1−1] [19−1] by LAWRENCE H. SUMMERS ; exhibits (5) (bjsp) (Entered: 08/14/2000)
49 ORDER by Judge Richard W. Roberts :allowing plaintiffs until 8−15−00 to file any opposition to defendant's motion for protective order. (N) (rew) (Entered: 08/15/2000)
50 RESPONSE by plaintiff in opposition to motion for protective order in response to plaintiffs' oral representation that they intend to take additional depositions of defendant's Rule 30 (b) (6) witness [43−1] LAWRENCE H. SUMMERS; exhibits (4) . (jf) (Entered: 08/16/2000)
51 CROSS MOTIONS by plaintiffs' to compel defendant to comply with Court ordered discovery , and for sanctions against defendant for discovery conduct ; exhibits (4) (jf) (Entered: 08/16/2000)
52 MOTION filed by plaintiff to file excess pages limitation regarding plaintiffs' motion for class certification ; EXHIBIT (MOTION) (jf) Modified on 08/17/2000 (Entered: 08/16/2000)
53 STATEMENT filed by plaintiff REGINALD G. MOORE , regarding: submitting ancillary materials; attachments (cjp) (Entered: 08/17/2000)
54 ORDER by Judge Paul L. Friedman : response to cross motions due 8/17/00 ; (N) (jf) (Entered: 08/17/2000)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 17 of 103

08/17/2000 08/17/2000 08/18/2000 08/18/2000
08/21/2000 08/23/2000 08/23/2000 08/23/2000 08/25/2000 08/28/2000 08/29/2000 08/29/2000 08/29/2000 08/29/2000 08/31/2000 08/31/2000

55 REPLY by federal defendant LAWRENCE H. SUMMERS in further support of their motion for protective order in response to plaintiffs' oral representation that they intend to take additional depositions of defendant's Rule 30 (b) (6) witness [43−1] (cjp) (Entered: 08/18/2000)
56 RESPONSE by federal defendant LAWRENCE H. SUMMERS in opposition to cross motion for sanctions against defendant for discovery conduct [51−2] by plaintiffs (cjp) (Entered: 08/18/2000)
57 MOTION filed by federal defendant LAWRENCE H. SUMMERS to extend time to 8/23/00 to file response to plaintiffs' supplemental brief in support of their application for a preliminary injunction (ab) (Entered: 08/21/2000)
58 ORDER by Judge Richard W. Roberts : denying cross motion to compel defendant to comply with Court ordered discovery [51−1] by plaintiffs, granting motion for protective order in response to plaintiffs' oral representation that they intend to take additional depositions of defendant's Rule 30 (b) (6) witness [43−1] by LAWRENCE H. SUMMERS, and no further discovery is permitted until further order of the court. (N) (rew) (Entered: 08/21/2000)
59 RESPONSE by plaintiffs in opposition to motion to extend time to 8/23/00 to file response to plaintiffs' supplemental brief in support of their application for a preliminary injunction [57−1] by LAWRENCE H. SUMMERS . (ab) (Entered: 08/22/2000)
60 RESPONSE by federal defendant LAWRENCE H. SUMMERS to supplemental brief [48−1] by REGINALD G. MOORE ; exhibits (20) (bjsp) (Entered: 08/24/2000)
61 MOTION (UNOPPOSED) filed by federal defendant LAWRENCE H. SUMMERS for leave to file accompanying exhibit under seal EXHIBIT (accompanying exhibits) (bjsp) (Entered: 08/25/2000)
78 ERRATA (NOTICE OF FILING) by federal defendant LAWRENCE H. SUMMERS to the Court RE: the filing of exhibit 21 to defendant's response to plaintiff's supplemental brief in support of their application for a preliminary injunction; attachments (FILED UNDER SEAL IN ROOM 1800) (bjsp) (Entered: 09/21/2000)
62 MOTION filed by federal defendant LAWRENCE H. SUMMERS to postpone briefing with respect to plaintiffs' motion for class certification (bjsp) (Entered: 08/28/2000)
63 ERRATA (NOTICE OF FILING) by federal defendant LAWRENCE H. SUMMERS to the Court RE: the filing of an attached declaration of Robert F. Byers which is in support of plaintiffs' supplemental brief in support of their application for a preliminary injunction filed on 8/23/00 (bjsp) (Entered: 08/29/2000)
64 RESPONSE by federal defendant LAWRENCE H. SUMMERS in opposition to plaintiff's motion for live witnessess at the preliminary injunction hearing. (bjsp) (Entered: 08/30/2000)
65 OBJECTIONS by plaintiffs to defendant's evidence filed in this case with their response to plaintiffs' supplemental brief in support of plaintiffs' application for a preliminary injunction (bjsp) (Entered: 08/30/2000)
66 ERRATA (NOTICE OF FILING) by plaintiffs to the Court RE: the filing of a declaration of Cheryl Montgomery−White which is in support of their application for a preliminary injunction filed on 8/10/00 ; attachments (bjsp) (Entered: 08/31/2000)
67 MOTION filed by plaintiff for order granting live witnesses at the preliminary injunction hearing (bjsp) (Entered: 08/31/2000)
68 ORDER by Judge Richard W. Roberts: granting motion to extend time to file reply with supplemental declarations and a revised order for their application for preliminary injunction [22−1] by REGINALD G. MOORE. (N) (mlp) (Entered: 08/31/2000)
69 ORDER, nunc pro tunc, by Judge Richard W. Roberts: granting motion to extend time to 8/23/00 to file response to plaintiffs' supplemental brief in support of their application for a preliminary injunction [57−1] by LAWRENCE H. SUMMERS. (N) (mlp) (Entered: 08/31/2000)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 18 of 103

08/31/2000 08/31/2000 09/01/2000 09/07/2000 09/08/2000 09/08/2000 09/08/2000
09/15/2000 09/18/2000 10/18/2000 10/23/2000 10/30/2000 11/09/2000 11/14/2000 12/05/2000 05/24/2001 05/24/2001

70 ORDER by Judge Richard W. Roberts: granting motion for leave to file accompanying exhibit under seal [61−1] by LAWRENCE H. SUMMERS. (N) (mlp) (Entered: 08/31/2000)
71 ORDER by Judge Richard W. Roberts : denying motion for order granting live witnesses at the preliminary injunction hearing [67−1] by REGINALD G. MOORE (N) (lin) (Entered: 09/05/2000)
MOTION HEARING before Judge Richard W. Roberts taken under advisement by REGINALD G. MOORE motion for preliminary injunction [8−1] status hearing set for 3:00 10/18/00 ; Reporter: V. Marshall (lin) (Entered: 09/01/2000)
75 RESPONSE by plaintiff in opposition to motion to postpone briefing with respect to plaintiffs' motion for class certification [62−1] by LAWRENCE H. SUMMERS . (bjsp) (Entered: 09/11/2000)
72 MEMORANDUM OPINION by Judge Richard W. Roberts (N) (lin) (Entered: 09/11/2000)
73 ORDER by Judge Richard W. Roberts striking certain declarations from the record : denying in part and holding in abeyance in part motion for preliminary injunction [8−1] by REGINALD G. MOORE (N) (lin) (Entered: 09/11/2000)
74 STATEMENT filed by federal defendant LAWRENCE H. SUMMERS , regarding: material in response to a question that was raised by the Court during the hearing on plaintiffs' motion for a preliminary injunction and pursuant to the schedule established at that hearing for the submission of such material; attachment (1) (cjp) (Entered: 09/11/2000)
77 REPLY by federal defendant LAWRENCE H. SUMMERS in further support of their motion to postpone briefing with respect to plaintiffs' motion for class certification [62−1] (cjp) (Entered: 09/18/2000)
76 ORDER denying motion for preliminary injunction by Judge Richard W. Roberts : (N) (lin) (Entered: 09/18/2000)
MOTION HEARING before Judge Richard W. Roberts Reporter: V. Marshall (lin) (Entered: 10/23/2000)
SCHEDULING NOTICE: motion hearing set for 9:30 12/5/00 ; before Judge Richard W. Roberts . (lin) (Entered: 10/23/2000)
79 SUPPLEMENTAL MEMORANDUM by federal defendant LAWRENCE H. SUMMERS regarding BROWN V. BRODY and other matters (bjsp) (Entered: 10/31/2000)
80 MOTION filed by plaintiff REGINALD G. MOORE to extend time to 11/14/00 regarding plaintiffs' brief in opposition to defendant's motion to dismiss (cas) (Entered: 11/13/2000)
81 MEMORANDUM by plaintiffs in opposition to motion to dismiss complaint [1−1] [19−1] by LAWRENCE H. SUMMERS; Exhibits (2); Declarations (1) (ag) (Entered: 11/15/2000)
MOTION HEARING before Judge Richard W. Roberts taken under advisement by LAWRENCE H. SUMMERS motion to dismiss complaint [1−1] [19−1] Reporter: V. Marshall (lin) (Entered: 12/07/2000)
82 MOTION filed by plaintiff to file excess pages limitation for the memorandum of points and authorities in support of plaintiff's amended motion for class certification (jf) (Entered: 05/25/2001)
83 MOTION filed by plaintiff REGINALD G. MOORE, plaintiff JOHN E. TURNER, plaintiff C. YVETTE SUMMEROUR, plaintiff LEROY HENDRIX, plaintiff CHERYL L. TYLER, plaintiff LUTHER K. IVERY, plaintiff ARTHUR DEREK EVANS, plaintiff ROBERT J. MOORE, plaintiff DONALD W. TUCKER, plaintiff JENELL G. WALKER−CLARK for class certification ; exhibit's (44)/Declaration of class members; EXHIBIT'S (78) (cas) (Entered: 05/25/2001)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 19 of 103

06/05/2001 06/14/2001 06/25/2001 08/09/2001 09/04/2001 09/04/2001 11/06/2001
05/17/2002 05/30/2002 06/10/2002 06/18/2002 06/28/2002 09/03/2002 09/04/2002 09/05/2002 09/18/2002 10/15/2002 10/15/2002 10/18/2002

84 MOTION filed by federal defendant LAWRENCE H. SUMMERS to continue briefing with respect to plaintiffs' amended motion for class certification (ag) (Entered: 06/06/2001)
85 RESPONSE by plaintiffs in opposition to motion to continue briefing with respect to plaintiffs' amended motion for class certification [84−1] by LAWRENCE H. SUMMERS . (ag) (Entered: 06/19/2001)
86 REPLY by federal defendant PAUL H. O'NEILL in support of motion to continue briefing with respect to plaintiffs' amended motion for class certification [84−1] by LAWRENCE H. SUMMERS; Exhibits (2) (ag) (Entered: 06/26/2001)
87 NOTICE OF WITHDRAWAL of Susan Tahernia as counsel for the Plaintiffs, Reginald Moore, et al. (ag) (Entered: 08/10/2001)
88 ORDER by Judge Richard W. Roberts : granting motion to extend time to 11/14/00 regarding plaintiffs' brief in opposition to defendant's motion to dismiss [80−1] by REGINALD G. MOORE (N) (lin) (Entered: 09/04/2001)
89 ORDER by Judge Richard W. Roberts : denying motion to postpone briefing with respect to plaintiffs' motion for class certification [62−1] by LAWRENCE H. SUMMERS (N) (lin) (Entered: 09/04/2001)
90 NOTICE OF WITHDRAWAL of attorney David James Shaffer for JENELL G. WALKER−CLARK, DONALD W. TUCKER, ROBERT J. MOORE, ARTHUR DEREK EVANS, LUTHER K. IVERY, CHERYL L. TYLER, LEROY HENDRIX, YVETTE SUMMEROUR, JOHN E. TURNER, and REGINALD G. MOORE. (tth) (Entered: 11/07/2001)
91 MOTION filed by plaintiffs to consolidate case with 90cv2841 and 02cv923 ; Exhibits (7) (nmr) (Entered: 05/21/2002)
92 MOTION filed by federal defendant PAUL H. O'NEILL to extend time to 6/10/02 to respond to plaintiffs' motion to consolidate (nmr) (Entered: 05/31/2002)
93 RESPONSE by federal defendant PAUL H. O'NEILL in opposition to motion to consolidate case with 90cv2841 and 02cv923 [91−1] by plaintiffs; Exhibit (1). (nmr) (Entered: 06/11/2002)
94 MOTION filed by plaintiffs to extend time to 6/28/02 to file their Reply to Defendant's Opposition to Plaintiff's Joint Motion to Consolidate (nmr) (Entered: 06/19/2002)
95 REPLY by plaintiffs to response in opposition to motion to consolidate case with 90cv2841 and 02cv923 [91−1] by plaintiffs; Exhibits (7) (nmr) (Entered: 07/01/2002)
96 MEMORANDUM OPINION AND ORDER(copy) by Judge Royce C. Lamberth : denying motion to consolidate case with 90cv2841 and 02cv923 [91−1] by plaintiffs(original filed in 90cv2841) (N) (mon) (Entered: 09/03/2002)
97 ORDER(ERRATA)(copy) by Judge Royce C. Lamberth : changing date on page 4, line 9 of Court's 9/3/02 order to read "2002" rather than "1992".(original filed in 90cv2841) (N) (mon) (Entered: 09/05/2002)
98 NOTICE OF SUPPLEMENTAL AUTHORITY by federal defendant PAUL H. O'NEILL; Exhibits (2) (nmr) (Entered: 09/06/2002)
99 MOTION filed by plaintiff for briefing order to respond to defendant's notice of supplemental authority (nmr) (Entered: 09/23/2002)
100 ORDER by Judge Richard W. Roberts : granting motion for briefing order to respond to defendant's notice of supplemental authority [99−1] by plaintiffs response to brief due 10/15/02 ; (N) (lin) (Entered: 10/15/2002)
101 MOTION filed by plaintiffs to extend time for three days to respond to defendant's Notice of supplemental authority. (ks) (Entered: 10/16/2002)
102 RESPONSE (OPPOSITIONS) by plaintiffs to notice of supplemental authority [98−1] by PAUL H. O'NEILL; Exhibit (1) (nmr) (Entered: 10/21/2002)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 20 of 103

10/28/2002 10/31/2002 08/13/2003
01/06/2004 01/07/2004 01/21/2004 01/23/2004 01/30/2004 01/30/2004
02/03/2004 02/03/2004
02/05/2004 02/10/2004 02/11/2004
02/19/2004 02/20/2004

103 REPLY by federal defendant PAUL H. O'NEILL to response to notice of supplemental authority [98−1] by PAUL H. O'NEILL (nmr) (Entered: 10/29/2002)
104 ORDER by Judge Richard W. Roberts : granting motion to extend time for three days to respond to defendant's Notice of supplemental authority. [101−1] by REGINALD G. MOORE (N) (lin) (Entered: 10/31/2002)
105 ORDER by Judge Richard W. Roberts : granting nunc pro tunc motion to file excess pages limitation for the memorandum of points and authorities in support of plaintiff's amended motion for class certification [82−1] by plaintiffs, granting nunc pro tunc motion to file excess pages limitation regarding plaintiffs' motion for class certification [52−1] by plaintiffs (N) (rew) (Entered: 08/14/2003)
106 NOTICE of Appearance by Ronald A. Schmidt on behalf of all plaintiffs (Schmidt, Ronald) (Entered: 01/06/2004)
107 MOTION for Hearing Rule 16 Conference by REGINALD G. MOORE. (Attachments: # 1 Exhibit # 2 # 3 Text of Proposed Order)(Schmidt, Ronald) (Entered: 01/07/2004)
108 RESPONSE to Plaintiffs' Motion for Rule 16 Conference filed by PAUL H. O'NEILL. (Sonfield, Brian) (Entered: 01/21/2004)
109 REPLY in support of motion re 107 RULE 16 CONFERENCE filed by REGINALD G. MOORE. (Schmidt, Ronald) (Entered: 01/23/2004)
110 MOTION For an Order Directing Defendants and Their Counsel to Preserve Documents by REGINALD G. MOORE. (Attachments: # 1)(Schmidt, Ronald) (Entered: 01/30/2004)
111 MOTION re 110 MOTION For an Order Directing Defendants and Their Counsel to Preserve Documents Memorandum in Support Thereof by REGINALD G. MOORE. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Exhibit # 22 Exhibit # 23 Exhibit # 24 Exhibit # 25 Exhibit # 26 Exhibit # 27 Exhibit # 28 Exhibit # 29 Exhibit # 30 Exhibit # 31 Exhibit # 32 Exhibit # 33 Index of Exhibits)(Schmidt, Ronald) (Entered: 01/30/2004)
112 ENTERED IN ERROR.....NOTICE by REGINALD G. MOORE Supplemental Authority (Attachments: # 1 Exhibit N.Y. Times Article)(Schmidt, Ronald) Modified on 2/3/2004 (bcs, ). (Entered: 02/03/2004)
"NOTICE OF CORRECTED DOCKET ENTRY. Document No. 112 was entered in error and counsel was instructed not to refile the notice due to it was incorrectly filed in the wrong case and has been refiled in the correct case." (bcs, ) (Entered: 02/03/2004)
113 NOTICE by REGINALD G. MOORE Supplemental Authority (Attachments: # 1 Exhibit 1 − NY Times Article)(Schmidt, Ronald) (Entered: 02/05/2004)
114 Consent MOTION for Extension of Time to File Response/Reply as to 110 MOTION For an Order Directing Defendants and Their Counsel to Preserve Documents by PAUL H. O'NEILL. (Sonfield, Brian) (Entered: 02/10/2004)
MINUTE ENTRY ORDER granting 114 unopposed Motion for Extension of Time to 2/20/04 to File Response to plaintiff's motion for order directing defendants and their counsel to preserve documents. Issued by Judge Richard W. Roberts on 2/11/04. (AKG) (Entered: 02/11/2004)
115 RESPONSE to Plaintiffs' Notice of Supplemental Authority filed by PAUL H. O'NEILL. (Sonfield, Brian) (Entered: 02/19/2004)
116 Memorandum in opposition to motion re 110 ("Plaintiffs' Motion for an Order Directing Defendants And Their Counsel to Preserve Documents") filed by PAUL H. O'NEILL. (Attachments: # 1 Declaration of Robert Buchanan# 2 Declaration of Keith L. Prewitt, with attachments# 3 Declaration of Allen Hobson# 4 Declaration of Donald A. Flynn# 5 Declaration of John L. Moffat# 6 Declaration of Lanettae Scott)(Sonfield, Brian) (Entered: 02/20/2004)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 21 of 103

02/26/2004 03/03/2004 03/04/2004 03/05/2004
05/19/2004
05/19/2004 06/02/2004 06/09/2004 06/16/2004 06/24/2004
07/01/2004

117 RESPONSE to DEFENDANTS? RESPONSE TO PLAINTIFFS? NOTICE OF SUPPLEMENTAL AUTHORITY filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1 − Excerpts of Treasury OIG Report on Good O? Boy Roundup)(Schmidt, Ronald) (Entered: 02/26/2004)
118 MOTION for Extension of Time to File Response/Reply as to 116 Memorandum in Opposition, Defendants Response to Plaintiff's Motion For an Order Directing Defendants and Their Counsel to Preserve Documents by REGINALD G. MOORE. (Schmidt, Ronald) (Entered: 03/03/2004)
MINUTE ENTRY ORDER granting 118 Unopposed Motion for Extension of Time to 3/5/04 to File Reply to Defendants' Response to Plaintiff's Motion for Order for Defendants and Counsel to Preserve Documents. Issued by Judge Richard W. Roberts on 3/4/04. (AKG) (Entered: 03/04/2004)
119 REPLY to opposition to motion re 110 PLAINTIFFS? REPLY TO DEFENDANTS? RESPONSE TO PLAINTIFFS? MOTION FOR AN ORDER DIRECTING DEFENDANTS AND THEIR COUNSEL TO PRESERVE DOCUMENTS filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1− Table of Retention Notices# 2 Exhibit 2 − Retention Notice of February 13, 2004# 3 Exhibit 3 − Special Agent Reginald Moore's Administrative Charge# 4 Exhibit 4 − Declaration of Special Agent Cheryl L. Montgomery−White)(Schmidt, Ronald) (Entered: 03/05/2004)
120 MOTION to Expedite by REGINALD G. MOORE. (Attachments: # 1 Exhibit Plaintiff's Motion to Expedite List of Exhibits# 2 Exhibit 1 − DECLARATION OF SPECIAL AGENT REGINALD G. MOORE# 3 Exhibit 2 − Letter to White House Counsel Al Gonzalez# 4 Exhibit 3 − Correspondence between Special Agent Reginald Moore and Secret Service Director Basham# 5 Exhibit 4 − Senator Specter letter to Secretary O?Neill# 6 Exhibit 5 − Declaration of Special Agent Phillip Strother# 7 Exhibit 6 − July 13, 2000 Memorandum and Order# 8 Exhibit 7 − Rightmyer flyer# 9 Exhibit 8 − Former Asst. Customs Commissioner Walter Biondi Deposition excerpts# 10 Exhibit 9 − Declaration of Special Agent Jenell Walker−Clark# 11 Exhibit 10 − Declaration of Special Agent Cheryl Tyler# 12 Text of Proposed Order Order)(Schmidt, Ronald) Modified on 5/20/2004 (jf, ). (Entered: 05/19/2004)
121 MOTION for appointment of a Magistrate for all purposes by REGINALD G. MOORE. (to view document, click link #120) (jf, ) (Entered: 05/20/2004)
122 Unopposed MOTION for Extension of Time to File Response/Reply as to 121 MOTION for appointment of a Magistrate for all purposes, 120 MOTION to Expedite OR IN THE ALTERNATIVE FOR APPOINTMENT OF A MAGISTRATE by PAUL H. O'NEILL. (Sonfield, Brian) (Entered: 06/02/2004)
123 RESPONSE to Plaintiffs' Motion to Expedite Or In The Alternative For Appointment of a Magistrate filed by PAUL H. O'NEILL. (Attachments: # 1 Smith Declaration# 2 Saliunas Declaration# 3 Statement of Plaintiff Moore# 4 Williams Declaration# 5 Memoranda of Interviews# 6 Biography of James E. Johnson)(Sonfield, Brian) (Entered: 06/09/2004)
124 MOTION for Extension of Time to File Response/Reply as to 123 Response to any document, Defendants? response to Plaintiffs? Motion to Expedite or in the Alternative for Appointment of a Magistrate by REGINALD G. MOORE. (Schmidt, Ronald) (Entered: 06/16/2004)
125 REPLY to opposition to motion re 121 Expedite or in the Alternative for an Appointment of a Magistrate filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1 − Declaration of Special Agent Kimbert L. Frye# 2 Exhibit 2 − Declaration of Special Agent Andrew E. Harris, Jr..# 3 Exhibit 3 − Declaration of Special Agent Joseph S. Ravenell# 4 Exhibit 4 − Treasury OIG Charts# 5 Exhibit 5 − Photo of Sign from Treasury OIG# 6 Exhibit 6 − Treasury OIG Report Excerpts# 7 Exhibit 7 − Declaration of Special Agent Jenell G. Walker−Clark# 8 Exhibit 8 − Declaration of Special Agent Bobby F. Coates# 9 Table of Exhibits)(Schmidt, Ronald) (Entered: 06/24/2004)
126 MOTION for Leave to File Sur−reply in Further Response to Plaintiffs' Motion to Expedite or in the Alternative for Appointment of a Magistrate by PAUL H. O'NEILL. (Attachments: # 1 Defendant's Sur−reply in Further Response to Plaintiff's Motion to Expedite Or In The Alternative For Appointment of a Magistrate)(Sonfield, Brian)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 22 of 103

07/08/2004 10/07/2004 10/24/2004
10/25/2004 10/28/2004 11/05/2004 11/05/2004 11/15/2004 11/15/2004 11/22/2004 11/23/2004 11/23/2004 11/30/2004 11/30/2004 12/01/2004 12/01/2004 12/01/2004 12/03/2004

(Entered: 07/01/2004)
127 RESPONSE to Defendants Sur−Reply to Plaintiffs Motion to Expedite or in the Alternative For an Appointment of a Magistrate.pdf filed by REGINALD G. MOORE. (Schmidt, Ronald) (Entered: 07/08/2004)
128 NOTICE of Change of Address by John Peter Relman (Relman, John) (Entered: 10/07/2004)
129 MEMORANDUM OPINION AND ORDER SUBSTITUTING Secretary Tom Ridge as defendant, GRANTING IN PART and DENYING IN PART 19 defendant's motion to dismiss, DENYING AS MOOT 83 plaintiffs' amended motion for class certification and [62, 82] defendant's motions to postpone briefing, GRANTING 107 plaintiffs' motion for a hearing, DENYING 110 plaintiffs' motion for an order regarding preservation of documents, GRANTING IN PART and DENYING IN PART [120, 121] plaintiffs' motions to expedite or to refer the case to a Magistrate Judge for all purposes and to reconsider recusal, GRANTING nunc pro tunc [122, 124] parties' unopposed motions for extensions, and DENYING 126 defendant's motion for leave to file a sur−reply. Memorandum Opinion and Order also orders that plaintiff's response 127 to defendant's sur−reply be STRICKEN. Signed by Judge Richard W. Roberts on 10/24/04. (sem) (Entered: 10/24/2004)
130 ORDER setting initial scheduling conference for 12/03/04 at 4:00 p.m. Signed by Judge Richard W. Roberts on 10/25/2004. (nst) (Entered: 10/25/2004)
Set/Reset Hearings: Status Conference set for 12/3/2004 04:00 PM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 10/28/2004)
131 ANSWER to Complaint by TOM RIDGE.(Sonfield, Brian) (Entered: 11/05/2004)
132 MOTION 59(e) Motion for Clarification re 129 Memorandum & Opinion,,, by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Relman, John) (Entered: 11/05/2004)
133 RESPONSE to Plaintiffs' Rule 59(e) Motion for Clarification filed by TOM RIDGE. (Sonfield, Brian) (Entered: 11/15/2004)
NOTICE of Hearing: Status Conference set for 12/3/2004 02:45 PM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 11/15/2004)
134 REPLY to 133 Response to Plaintiffs' Rule 59(e) Motion for Clarification filed by REGINALD G. MOORE. (Relman, John) (Entered: 11/22/2004)
135 MEET AND CONFER STATEMENT. (Sonfield, Brian) (Entered: 11/23/2004)
136 MEMORANDUM (Defendant's Statement of Defenses) (Defendant's Statement of Defenses). (Sonfield, Brian) (Entered: 11/23/2004)
137 MOTION for Leave to File Sur−Reply In Further Response to Plaintiffs' Rule 59(e) Motion for Clarification by TOM RIDGE. (Sonfield, Brian) (Entered: 11/30/2004)
138 SURREPLY to Plaintiffs' Rule 59(e) Motion for Clarification filed by TOM RIDGE. (Attachments: # 1 Exhibit 1)(Sonfield, Brian) (Entered: 11/30/2004)
139 REPLY to 133 CORRECTED, to Response to Plaintiffs' Rule 59(e) Motion for Clarification filed by REGINALD G. MOORE. (Relman, John) (Entered: 12/01/2004)
140 MOTION for Leave to File Response to Defendants' Sur−Reply to Plaintiffs' Rule 59(e) Motion for Clarification by REGINALD G. MOORE. (Relman, John) (Entered: 12/01/2004)
141 RESPONSE to Defendants' Sur−Reply to Plaintiffs' 59(e) Motion for Clarification and Notice of Filing of Corrected Brief filed by REGINALD G. MOORE. (Relman, John) (Entered: 12/01/2004)
MINUTE ENTRY ORDER granting 137 Defendant's Motion for Leave to File Sur−Reply, granting 140 Plaintiffs' Motion for Leave to File Response to Defendant's Sur−Reply. Issued by Judge Richard W. Roberts on 12/3/04. (AKG) (Entered: 12/03/2004)

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12/03/2004
12/07/2004 12/08/2004 01/03/2005 02/15/2005 03/08/2005 03/10/2005
03/10/2005 03/22/2005 03/29/2005 05/04/2005 05/05/2005 05/05/2005 05/06/2005 05/06/2005 05/08/2005

Minute Entry for status call held before Judge Richard W. Roberts on 12/3/2004 : Discovery to proceed. Each side permitted 50 interrogatories and 20 depositions. Post−Discovery Status Conference set for 8/31/05 at 9:30 AM in Courtroom 9 before Judge Richard W. Roberts. Dispositive motions due by 9/30/05. Scheduling Order to be issued. (Court Reporter: Scott Wallace) (kk) (Entered: 12/06/2004)
142 SCHEDULING ORDER: Discovery due by 8/1/2005. Dispositive Motions due by 9/30/2005. Post−Discovery Status Conference set for 8/31/2005 at 09:30 AM before Judge Richard W. Roberts. See Order for additional deadlines. Signed by Judge Richard W. Roberts on 12/06/2004. (nst) (Entered: 12/07/2004)
Set Deadlines/Hearings: Discovery due by 8/1/2005. Dispositive Motions due by 9/30/2005. Status Conference set for 8/31/2005 09:30 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 12/08/2004)
143 TRANSCRIPT of Proceedings held on December 3, 2004 before Judge Richard W. Roberts. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (cp, ) (Entered: 01/04/2005)
144 STIPULATION (Protective Order) by REGINALD G. MOORE, TOM RIDGE, JOHN E. TURNER, C. YVETTE SUMMEROUR, CHERYL L. TYLER, LUTHER K. IVERY. (Sonfield, Brian) (Entered: 02/15/2005)
145 MOTION to Compel Deposition Testimony and Motion for Fees and Costs by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit C, cont'd# 5 Exhibit D)(Relman, John) (Entered: 03/08/2005)
MINUTE ORDER: It is hereby ORDERED that the stipulated protective order 144 be, and hereby is, approved and ENTERED. Issued by Judge Richard W. Roberts on 3/10/2005. NB: The court will no longer send attorneys courtesy paper copies of opinions and orders. Opinions and orders will be sent to attorneys only electronically under LCvR 5.4(b)(1). (es) (Entered: 03/10/2005)
CASE REFERRED to Magistrate Judge Deborah A. Robinson any Discovery Dispute. (jsc) (Entered: 03/15/2005)
146 Memorandum in opposition to motion re 145 to Compel Deposition Testimony and Motion for Fees and Costs filed by TOM RIDGE. (Attachments: # 1 Exhibit 1 (Part A)# 2 Exhibit 1 (Part B)# 3 Exhibit 2# 4 Exhibit 3# 5 # 6 Exhibit 5)(Sonfield, Brian) (Entered: 03/22/2005)
147 REPLY to opposition to motion re 145 Motion to Compel Deposition Testimony and Motion for Fees and Costs filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A)(Relman, John) (Entered: 03/29/2005)
148 MOTION for Protective Order by TOM RIDGE. (Attachments: # 1 Exhibit 1 −− Rule 30(b)(6) Notice# 2 Exhibit 2 −− Correspondence Between Counsel)(Sonfield, Brian) (Entered: 05/04/2005)
149 MOTION To Postpone May 11, 2005 Deposition Pending Resolution of Motion for Protective Order by TOM RIDGE. (Sonfield, Brian) (Entered: 05/05/2005)
150 MOTION to Expedite Consideration of Defendant's Motion to Postpone May 11, 2005 Deposition by TOM RIDGE. (Sonfield, Brian) (Entered: 05/05/2005)
Set Hearings: Motion Hearing on conduct of discovery set for 5/9/2005 at 02:00 PM in Courtroom 25 before Magistrate Judge Deborah A. Robinson. Plaintiffs' counsel shall be prepared to respond orally to defendant's motions (#148, #149, #150) (srr) (Entered: 05/06/2005)
151 Memorandum in opposition to motion re 149 Plaintiffs' Opposition to Defendants' Motion to Postpone May 11, 2005 Deposition filed by REGINALD G. MOORE. (Relman, John) (Entered: 05/06/2005)
152 Memorandum in opposition to motion re 148 for Protective Order filed by REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Exhibit Exhibit A)(Relman, John) (Entered: 05/08/2005)

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05/09/2005
05/12/2005 05/26/2005 05/31/2005
06/06/2005 06/13/2005
06/13/2005 06/14/2005 06/14/2005 06/16/2005 06/20/2005
06/20/2005 06/22/2005 06/23/2005 06/23/2005 06/24/2005

Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Motion Hearing held on 5/9/2005. re 145 is denied in part, MOTION to Compel Deposition Testimony to be withdrawn by the plaintiff; Motion for Fees and Costs is denied. re 148 , 149 , 150 are denied as moot. (Court Reporter Pro−typist.) (lm ) Modified on 5/26/2005 (EW, ). (Entered: 05/11/2005)
153 NOTICE of Appearance by Jennifer I. Klar on behalf of REGINALD G. MOORE (Klar, Jennifer) (Entered: 05/12/2005)
154 STIPULATION (Protective Order) by REGINALD G. MOORE, TOM RIDGE, JOHN E. TURNER, C. YVETTE SUMMEROUR, CHERYL L. TYLER, LUTHER K. IVERY. (Sonfield, Brian) (Entered: 05/26/2005)
155 MOTION to Amend/Correct Complaint by JENELL G. WALKER−CLARK, REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY, ARTHUR DEREK EVANS, ROBERT J. MOORE, DONALD W. TUCKER. (Attachments: # 1 Exhibit A)(Relman, John) (Entered: 05/31/2005)
MINUTE ORDER: The parties' stipulated protective order 154 is hereby approved. Issued by Judge Richard W. Roberts on 6/6/2005. (nst) (Entered: 06/06/2005)
156 MOTION for Protective Order by TOM RIDGE. (Attachments: # 1 A −− Plaintiff Moore's Individual Complaint of Discrimination# 2 B −− Declaration of Towanda McLeod# 3 C −− Letter from Plaintiffs' Counsel# 4 D −− Supervisory Conference on Employment Diversity Issues −− FY 2004 − #03)(Sonfield, Brian) (Entered: 06/13/2005)
159 TRANSCRIPT of Motions Hearing held on May 9, 2005 before Judge Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (lc, ) (Entered: 06/15/2005)
157 ERRATA by TOM RIDGE. (Sonfield, Brian) (Entered: 06/14/2005)
158 Memorandum in opposition to motion re 155 to amend and supplement complaint filed by TOM RIDGE. (Attachments: # 1 Second Administrative Class Complaint# 2 Transcript of December 3, 2004 Status Conference)(Sonfield, Brian) (Entered: 06/14/2005)
160 Consent MOTION for Extension of Time to File Response/Reply in Support of Plaintiffs' Motion to Amend and Supplement Complaint by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Relman, John) (Entered: 06/16/2005)
MINUTE ORDER: It is hereby ORDERED that plaintiff's consent motion 160 for extension of time until 6/28/2005 to file reply in support of its motion 155 to amend/correct complaint be, and hereby is, GRANTED. Reply due by 6/28/2005. Issued by Judge Richard W. Roberts on 6/20/2005. NB: The court will no longer send attorneys courtesy paper copies of opinions and orders. Opinions and orders will be sent to attorneys only electronically under LCvR 5.4(b)(1). (lcrwr3) (Entered: 06/20/2005)
161 NOTICE of Appearance by Benton Gregory Peterson on behalf of all defendants (Peterson, Benton) (Entered: 06/20/2005)
162 MOTION to Compel Defendants to Conduct a Thorough Search of Electronic Mail Accounts for Responsive Documents by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A)(Relman, John) (Entered: 06/22/2005)
163 MOTION to Compel Discovery Relating to Plaintiffs' Merit Promotion Plan Scores and Motion for Fees and Costs by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A)(Relman, John) (Entered: 06/23/2005)
164 MOTION to Compel Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion and Motion for Fees and Costs by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Relman, John) (Entered: 06/23/2005)
Set/Reset Deadlines: Replies due by 6/28/2005. (lin, ) (Entered: 06/24/2005)

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06/27/2005
06/28/2005 06/29/2005 07/01/2005 07/05/2005 07/06/2005 07/06/2005
07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/08/2005 07/08/2005 07/11/2005

165 Memorandum in opposition to motion re 156 PROTECTIVE ORDER filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1 − May 25 2005 Letter to Brian Sonfield# 2 Exhibit 2 − Plaintiffs Complaint pt. 1# 3 Exhibit 2 − Plaintiffs Complaint pt. 2# 4 Exhibit 3 − Moore Administrative Charge# 5 Exhibit 4 − Relevant Excerpts of Secret Service 30b6 dated February 11, 2005# 6 Exhibit 5 − Secret Service Memorandum# 7 Exhibit 6 − Diversity Conference − Question and Answer Session June 23, 2004# 8 Text of Proposed Order Order re Plaintiffs Opposition to Defendants Motion for a Protective Order)(Schmidt, Ronald) (Entered: 06/27/2005)
166 REPLY to opposition to motion re 155 to Amend and Supplement Complaint filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A)(Klar, Jennifer) (Entered: 06/28/2005)
167 Unopposed MOTION for Leave to File Surreply by TOM RIDGE. (Sonfield, Brian) (Entered: 06/29/2005)
168 Third Party MOTION to Quash Subpoena of Former Treasury Official by PAUL H. O'NEILL. (Attachments: # 1 Exhibit A (subpoena)# 2 Exhibit B (amended subpoena)# 3 Exhibit C (letter from Treasury))(Sonfield, Brian) (Entered: 07/01/2005)
169 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' "Motion to Compel Defendants to Conduct a Thorough Search of Electronic Mail Accounts for Responsive Documents" by TOM RIDGE. (Sonfield, Brian) (Entered: 07/05/2005)
170 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' "Motion to Compel Discovery Relating to Plaintiffs' Merit Promotion Plan Scores" by TOM RIDGE. (Sonfield, Brian) (Entered: 07/06/2005)
MINUTE ORDER granting 169 Consent Motion for Extension of Time to File Response/Reply re 162 Motion to Compel Defendants to Conduct a Thorough Search of Electronic Mail Accounts for Responsive Documents. Response due by 7/13/2005. Signed by Magistrate Judge Deborah A. Robinson on July 6, 2005. (srr) (Entered: 07/06/2005)
171 Memorandum in opposition to motion re 168 to Quash Subpoena filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 07/07/2005)
172 MOTION for Order Shortening Time and for Emergency Hearing by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 07/07/2005)
173 Memorandum in opposition to motion re 172 "for an order shortening time and for emergency hearing" filed by PAUL H. O'NEILL. (Sonfield, Brian) (Entered: 07/07/2005)
174 Memorandum in opposition to motion re 164 filed by TOM RIDGE. (Attachments: # 1 Defendant's Response to Plaintiffs' First Set of Document Requests# 2 Transcript of 5/9/05 Hearing)(Sonfield, Brian) (Entered: 07/07/2005)
MINUTE ORDER granting 172 Motion for Order Shortening Time and For Emergency Hearing. Signed by Magistrate Judge Deborah A. Robinson on July 7, 2005. (srr) (Entered: 07/07/2005)
Set Deadlines/Hearings: A Motion Hearing is set for Friday, July 8, 2005 at 3pm in Courtroom 25 before Magistrate Judge Deborah Robinson concerning Defendants' Motion to Quash Subpoena (#168). Reply is due by no later than 12 p.m. on Friday, July 8, 2005. (srr) (Entered: 07/07/2005)
175 REPLY to opposition to motion re 168 Defendant's Motion to Quash filed by TOM RIDGE. (Peterson, Benton) (Entered: 07/08/2005)
176 REPLY to opposition to motion re 156 filed by TOM RIDGE. (Attachments: # 1 Exhibit F −− Rule 30(b)(6) Notice# 2 Exhibit G −− 30(b)(6) Notice)(Sonfield, Brian) (Entered: 07/08/2005)
177 ERRATA by TOM RIDGE. (Attachments: # 1 Corrected Exhibit 1 (Defendant's Response to Plaintiffs' First Set of Interrogatories))(Sonfield, Brian) (Entered: 07/11/2005)

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07/11/2005 07/12/2005
07/13/2005
07/14/2005 07/15/2005 07/18/2005 07/18/2005 07/18/2005 07/18/2005 07/18/2005 07/18/2005
07/21/2005 07/22/2005 07/25/2005 07/25/2005 07/25/2005

Minute entry: Motion hearing held before Magistrate Judge Deborah A. Robinson on 7/11/05. ORAL ORDER RE 168 Motion to Quash, is denied for reasons set forth on the record. Oral motion by counsel for D.H.L.S. to continue deposition of Ms. Michaelson is denied for reason set for on the record. (lm ) (Entered: 07/13/2005)
178 ENTERED IN ERROR.....SURREPLY to Plaintiffs' Motion to Amend and Supplement Complaint filed by TOM RIDGE. (Attachments: # 1 Exhibit 1 (1989 Class Complaint)# 2 Exhibit 2 (Final Agency Decision and EEOC Decision)# 3 Exhibit 3 (Reply Memorandum in Support of Class Certification)# 4 Exhibit 4 (Saliunas Declaration))(Sonfield, Brian) Modified on 7/15/2005 (jf, ). (Entered: 07/12/2005)
179 Memorandum in opposition to motion re 162 "to compel defendants to conduct a thorough search of electronic mail accounts for responsive documents" filed by TOM RIDGE. (Attachments: # 1 Exhibit A (e−mails produced to plaintiffs)# 2 Exhibit B (e−mails provided by plaintiffs)# 3 Exhibit C (Message to Assistant Directors))(Sonfield, Brian) (Entered: 07/13/2005)
180 Memorandum in opposition to motion re 163 "to compel discovery relating to plaintiffs' merit promotion plan scores" filed by TOM RIDGE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 # 5 Exhibit 5# 6 Exhibit 6)(Sonfield, Brian) (Entered: 07/14/2005)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 178 Surreply, was entered in error and counsel was instructed to refile said pleading. (jf, ) (Entered: 07/15/2005)
181 Supplemental MOTION for Leave to File Surreply by TOM RIDGE. (Attachments: # 1 Surreply# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4)(Sonfield, Brian) (Entered: 07/18/2005)
182 MOTION to Compel Deposition Testimony of Special Agent Todd Babgy and Motion for Fees and Costs by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C)(Klar, Jennifer) (Entered: 07/18/2005)
183 MOTION for Order Shortening Time and for Emergency Hearing by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 07/18/2005)
184 Memorandum in opposition to motion re 183 "for an order shortening time and for emergency hearing" filed by TOM RIDGE. (Sonfield, Brian) (Entered: 07/18/2005)
185 REPLY to opposition to motion re 164 to Compel Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion and Motion for Fees and Costs filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 07/18/2005)
186 Unopposed MOTION for Leave to File Supplemental Memorandum in Support of Plaintiffs' Motion to Amend and Supplement Complaint by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A (Supplemental Memorandum in Support of Plaintiffs' Motion to Amend and Supplement Complaint))(Klar, Jennifer) (Entered: 07/18/2005)
187 Emergency MOTION to Expedite Review of Defendant's Motion for Protective Order, or In the Alternative, Motion to Postpone Deposition by TOM RIDGE. (Sonfield, Brian) (Entered: 07/21/2005)
188 MOTION for Extension of Time to Complete Discovery by REGINALD G. MOORE. (Shaffer, David) (Entered: 07/22/2005)
189 REPLY to opposition to motion re 162 Plaintiffs' Motion to Compel Defendants to Conduct a Thorough Search of Electronic Mail Accounts for Responsive Documents filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 07/25/2005)
MINUTE ORDER granting, nunc pro tunc, 170 Consent Motion for Extension of Time to Respond to Plaintiffs' Motion to Compel Discovery Relating to Plaintiffs' Merit Promotion Plan Scores. Signed by Magistrate Judge Deborah A. Robinson on July 25, 2005. (srr) (Entered: 07/25/2005)
190 REPLY to opposition to motion re 163 to Compel Discovery Relating to Plaintiffs' Merit Promotion Plan Scores and Motion for Fees and Costs filed by REGINALD G.

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 27 of 103

07/26/2005 07/26/2005
07/26/2005 07/26/2005 07/26/2005 07/27/2005 07/28/2005 07/28/2005
07/29/2005
07/29/2005 08/01/2005 08/01/2005
08/01/2005
08/01/2005 08/05/2005
08/08/2005

MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Klar, Jennifer) (Entered: 07/25/2005)
191 MOTION to Compel Answers to Requests for Admission Relating to Gender and Motion for Fees and Costs by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 07/26/2005)
MINUTE ORDER: Defendant's Motion for a Protective Order (Docket No. 156) is hereby GRANTED for the reasons set forth by Defendant in the full paragraph which appears on page seven of Defendant's reply memorandum. Signed by Magistrate Judge Deborah A. Robinson on 7/26/05. (EW) (Entered: 07/26/2005)
MINUTE ORDER denying as moot 187 Motion to Expedite. Signed by Magistrate Judge Deborah A. Robinson on 7/26/05. (EW) (Entered: 07/26/2005)
192 MOTION for Reconsideration and motion in limine by MICHAEL CHERTOFF. (Attachments: # 1 # 2 # 3)(Peterson, Benton) (Entered: 07/26/2005)
194 MOTION in Limine by MICHAEL CHERTOFF. (to view document, click on link #192) (jf, ) (Entered: 07/28/2005)
193 MOTION to Compel Production of Personel Files by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 07/27/2005)
195 NOTICE of Appearance by Marina Utgoff Braswell on behalf of MICHAEL CHERTOFF (Braswell, Marina) (Entered: 07/28/2005)
196 Memorandum in opposition to motion re 182 to compel the deposition of Special Agent Todd Bagby filed by MICHAEL CHERTOFF. (Attachments: # 1 Standard Form 50# 2 Secret Service Administrative Manual# 3 Organization Chart# 4 Memorandum Opinion, Lopez v. USA)(Sonfield, Brian) (Entered: 07/28/2005)
197 MOTION to Compel Complete Responses to Defendant's Discovery Requests by MICHAEL CHERTOFF. (Attachments: # 1 Defendant's Discovery Requests# 2 Defendant's July 21, 2005 Letter# 3 Plaintiffs' Responses to Interrogatories# 4 Plaintiffs' Responses to Document Requests# 5 Plaintiffs' July 28, 2005 Letter# 6 Spriggs Declaration# 7 E−mail from Plaintiff Moore# 8 Plaintiffs' Certifications)(Sonfield, Brian) (Entered: 07/29/2005)
198 NOTICE OF WITHDRAWAL OF APPEARANCE as to MICHAEL CHERTOFF. Attorney Brian J. Sonfield terminated. (Sonfield, Brian) (Entered: 07/29/2005)
199 MOTION to Compel Production of NFC Database and Other Responsive Documents by REGINALD G. MOORE. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Klar, Jennifer) (Entered: 08/01/2005)
200 MOTION to Strike Plaintiffs' Expert Reports or, in the Alternative, Motion for Extension of Time by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Braswell, Marina) (Entered: 08/01/2005)
201 ENTERED IN ERROR.....SUPPLEMENTAL MEMORANDUM IN RESPONSE TO PLAINTIFFS' "MOTION TO COMPEL DISCOVERY RELATING TO REASONS FOR PLAINTIFFS' NON−SELECTION FOR PROMOTION AND MOTION FOR FEES AND COSTS" filed by MICHAEL CHERTOFF. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(Peterson, Benton) Modified on 8/11/2005 (jf, ). (Entered: 08/01/2005)
202 MOTION to Compel Documents and Information relating to Good Ol' Boy Roundup by REGINALD G. MOORE. (Schmidt, Ronald) (Entered: 08/01/2005)
203 Memorandum in opposition to motion re 188 (Defendant's Partial Opposition) filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit 4# 5 Exhibit continuation of exhibit 4# 6 Exhibit)(Peterson, Benton) (Entered: 08/05/2005)
204 Consent MOTION for Extension of Time to File Response/Reply as to 192 MOTION for Reconsideration and motion in limine, 194 MOTION in Limine by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered:

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08/08/2005 08/09/2005 08/10/2005
08/10/2005 08/11/2005 08/11/2005 08/11/2005 08/11/2005 08/11/2005 08/12/2005
08/12/2005 08/15/2005 08/15/2005
08/18/2005 08/19/2005

08/08/2005)
205 REPLY to opposition to motion re 182 to Compel the Deposition of Special Agent Todd Bagby filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 08/08/2005)
206 Memorandum in opposition to motion re 191 filed by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/09/2005)
207 MOTION to Strike 201 Supplemental Memorandum, or in the alternative Motion for Leave to File Supplemental Memorandum by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A: Supplemental Memorandum in Support of Motion to Compel Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion)(Klar, Jennifer) (Entered: 08/10/2005)
208 Memorandum in opposition to motion re 193 filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Text of Proposed Order)(Peterson, Benton) (Entered: 08/10/2005)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. 201 Supplemental Memorandum, was entered in error and counsel was instructed not to re−file said pleading without seeking leave of Court by a motion. (jf, ) (Entered: 08/11/2005)
209 MOTION for Leave to File Sur−reply in opposition to plaintiffs' Motion to Compel Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion and Motion for Fees and Costs by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/11/2005)
210 Memorandum in opposition to motion re 209 for Leave to File Sur−Reply filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 08/11/2005)
211 Emergency MOTION to Seal Attachments to Defendant's Response to Plaintiffs' Motion to Compel Production of Personnel Files by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit Ex. 1# 2 Exhibit Ex.2# 3 Exhibit Ex.3# 4 Exhibit Ex. 3(a)# 5 Exhibit Ex.4# 6 Text of Proposed Order)(Peterson, Benton) (Entered: 08/11/2005)
214 TRANSCRIPT of Proceedings held on 7/8/05 before Judge Magistrate Deborah A. Robinson. Court Reporter: Pro−Typists. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 08/13/2005)
212 Unopposed MOTION for Extension of Time to File Response/Reply to 199 plaintiffs' Motion to Compel Production of NFC Database and Other Responsive Documents and 202 Motion to Compel Documents and Information relating to Good Ol? Boy Roundup. by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) Modified on 8/15/2005 (lc, ). (Entered: 08/12/2005)
213 Memorandum in opposition to motion re 197 to Compel Complete Responses to Defendants' Discovery filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Klar, Jennifer) (Entered: 08/12/2005)
215 REPLY to opposition to motion re 188 for Extension of Time to Complete Discovery filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Klar, Jennifer) (Entered: 08/15/2005)
216 Memorandum in opposition to motion re 200 to Strike Plaintiffs' Expert Reports or in the Alternative Motion for Extension of Time 188 filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Klar, Jennifer) Modified on 8/17/2005 (jf, ). (Entered: 08/15/2005)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 204 for extension of time to file response to defendants' motion 192 for Reconsideration and motion 194 in limine be, and hereby is, GRANTED. Plaintiffs' responses due by 8/23/2005. Issued by Judge Richard W. Roberts on 8/18/2005. (lcrwr3) (Entered: 08/18/2005)
217 Unopposed MOTION for Extension of Time to File Response/Reply to plaintiffs' opposition to defendant's motion to compel [document 213] and plaintiffs' opposition to defendant's motion to strike plaintiffs' expert reports [document 216]. by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson,

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08/19/2005
08/19/2005 08/22/2005 08/22/2005 08/22/2005 08/23/2005
08/24/2005 08/29/2005
08/29/2005 08/30/2005 08/30/2005 08/30/2005 08/30/2005 08/31/2005 08/31/2005

Benton) (Entered: 08/19/2005)
MINUTE ORDER: The docket reflects 18 outstanding discovery motions pending before the magistrate judge. To permit those motions to be resolved prior to the post−discovery status conference, it is hereby ORDERED that the post− discovery status conference set for August 31, 2005 be, and hereby is, CONTINUED to October 12, 2005 at 3:30 p.m. Issued by Judge Richard W. Roberts on 8/19/2005. (lcrwr3) (Entered: 08/19/2005)
218 Consent MOTION for Extension of Time to File Response/Reply as to 206 Memorandum in Opposition, 208 Memorandum in Opposition by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/19/2005)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 217 for extension of time to file replies re motions associated with docket entries #213 and #216 be, and hereby is, GRANTED. Replies due by 8/30/2005.Issued by Judge Richard W. Roberts on 8/22/2005. (lcrwr3) (Entered: 08/22/2005)
Set/Reset Hearings: Status Conference set for 10/12/2005 03:30 PM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 08/22/2005)
Set/Reset Deadlines: Replies due by 8/30/2005. (lin, ) (Entered: 08/22/2005)
219 Memorandum in opposition to motion re 192 U.S. Department of Treasury's and U.S. Department of Homeland Security's Motion for Reconsideration and Motion in Limine filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D)(Klar, Jennifer) (Entered: 08/23/2005)
Set Hearing: Status Conference set for Tuesday 9/27/2005 @ 10:30 AM in Courtroom 25 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 08/24/2005)
220 RESPONSE to 202 Plaintiffs' Motion To Compel Production of NFC Database and Other Responsive Documents filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit R. Brown# 2 Exhibit N. Walker# 3 Exhibit Uni.G# 4 Exhibit R.Colfax ltr.# 5 Exhibit R.Schmidt ltr# 6 Exhibit P.Cert# 7 Exhibit R.Schmidt ltr.2# 8 Exhibit R.Schmidt ltr.3# 9 Exhibit G.Bunting# 10 Exhibit Dep.30(b)6)(Peterson, Benton) Modified on 8/30/2005 (nmw, ). (Entered: 08/29/2005)
221 Memorandum in opposition to motion re 202 , plaintiffs' motion to compel discovery related to the Good Ol' Boy Roundup, filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4−15# 5 Exhibit 16# 6 Exhibit 17# 7 Exhibit 18)(Braswell, Marina) (Entered: 08/29/2005)
222 REPLY to opposition to motion re 191 to Compel Answers to Requests for Admission Relating to Gender and Motion for Fees and Costs filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Klar, Jennifer) (Entered: 08/30/2005)
223 REPLY to opposition to motion re 193 to Compel Production of Personnel Files filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A)(Klar, Jennifer) (Entered: 08/30/2005)
224 REPLY to opposition to motion re 197 filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit Plaintiffs' Supp. Production8−12−05)(Peterson, Benton) (Entered: 08/30/2005)
225 REPLY to opposition to motion re 200 filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit #1# 2 Exhibit #2# 3 Exhibit #3# 4 Exhibit #4# 5 Exhibit #5)(Peterson, Benton) (Entered: 08/30/2005)
226 REPLY to opposition to motion re 193 CORRECTED in Support of Plaintiffs' Motion to Compel Production of Personnel Files filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A)(Klar, Jennifer) (Entered: 08/31/2005)
227 REPLY to opposition to motion re 192 filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 08/31/2005)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 30 of 103

09/09/2005 09/09/2005 09/26/2005 09/26/2005 09/26/2005 09/26/2005 09/26/2005 09/26/2005 09/26/2005 09/27/2005
09/28/2005 09/28/2005 09/29/2005 09/29/2005 09/29/2005

228 REPLY to opposition to motion re 199 to Compel Production of NFC Database and Other Responsive Documents filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 09/09/2005)
229 REPLY to opposition to motion re 202 to Compel Discovery Related to the Good Ol' Boy Roundups filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Klar, Jennifer) (Entered: 09/09/2005)
ORDER granting 207 Motion to Strike Defendant's Supplemental Response to Plaintiffs'Motion to Compel Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion. Signed by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs) (Entered: 09/26/2005)
ORDER DENYING as Moot 183 Motion for an Order Shortening Time and for Emergency Hearing. Signed by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs ) (Entered: 09/26/2005)
ORDER DENYING 209 Motion for Leave to File Sur−Reply In Opposition to Plaintiffs' Motion to Compel Signed by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs) (Entered: 09/26/2005)
ORDER GRANTING 218 Motion for Extension of Time to File Replies in Support of Plaintiffs' Motions to Compel Answers to Requests for Admissions Relating to Gender and to Compel Production of Personnel Files. Signed by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs ) (Entered: 09/26/2005)
ORDER GRANTING 212 Unopposed Motion for Enlargement of TimeSigned by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs ) (Entered: 09/26/2005)
Defendant's Unredacted Attachments to Defendant's Response to Plaintiff's Motion to Compel Production of Personnel Files 208 are sealed. Signed by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs ) (Entered: 09/26/2005)
ORDER GRANTING 211 Defendant's Consent Motion to Seal Unredacted Attachments to Defendant's Response to Plaintiffs' Motion to Compel Production of Personnel Files. Signed by Magistrate Judge Deborah A. Robinson on 9/26/05. (jrs ) (Entered: 09/26/2005)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Status Conference held on 9/27/2005. Court permits the U.S. Attorney to file a Motion for Leave to file a corrected copy of docket #192. Court will order that the motion for leave be filed by 9/28/05. Court Order that if the U.S. Attorney wishes to enter an appearance on behalf of either the Department of Treasury or Cheryl Michaelson or both, that the U.S. Attorney file a Motion for Leave to do so by 9/28/05. Court order that all parties immediately meet and confer in an effort to narrow the dispute that remain; to determine which dispute that has become moot; and to file a joint status report no later than Friday 9/30/05. Motion Hearing set for 10/4/2005 03:30 PM in Courtroom 25 before Magistrate Judge Deborah A. Robinson. (Court Reporter Pro−typist.) (lm ) (Entered: 09/27/2005)
230 MOTION for Leave to File a Notice of Appearance by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 09/28/2005)
231 MOTION for Leave to File Corrected Copy of Docket No. 192 by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 09/28/2005)
232 ORDER denying 231 Defendant's Motion for Leave to File Corrected Copy of Docket No. 192 Signed by Magistrate Judge Deborah A. Robinson on 9/29/05. (jrs ) (Entered: 09/29/2005)
233 Consent MOTION for Extension of Time to File to file Motion for Summary Judgment by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 09/29/2005)
234 MOTION for Reconsideration re 232 Order on Motion for Leave to File Corrected Copy of Docket No. 192 by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 09/29/2005)

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09/30/2005 10/04/2005 10/05/2005 10/05/2005 10/05/2005 10/05/2005 10/06/2005
10/06/2005 10/06/2005 10/06/2005 10/06/2005 10/07/2005 10/07/2005 10/11/2005 10/12/2005 10/12/2005 10/12/2005 10/12/2005
10/12/2005 10/12/2005

235 STATUS REPORT on Discovery Motions (JOINT) by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 09/30/2005)
Minute Entry for Motion hearing held before Magistrate Judge Deborah A. Robinson : Courts ruling on the motions taken under advisement. (Court Reporter Pro−typists.) (lm) (Entered: 10/05/2005)
236 NOTICE of Filing of Proposed Order by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/05/2005)
237 STATUS REPORT on Discovery Motions (JOINT, SUPPLEMENTAL) by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 10/05/2005)
238 MOTION for Extension of Time to File Decision by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 10/05/2005)
239 NOTICE : Report to the Court by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 10/05/2005)
240 MOTION to Strike 239 Notice (Other) or, in the Alternative, Motion for Leave to File a Response to the Report by REGINALD G. MOORE. (Attachments: # 1 Exhibit A: Plaintiffs' Response to Defendants' October 5, 2005 Report to the Court Regarding the Good 'Ol Boy Roundup)(Klar, Jennifer) (Entered: 10/06/2005)
241 MOTION for Extension of Time to File Decision by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 10/06/2005)
242 MOTION to Seal (this is the same document as Docket No. 239) by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 10/06/2005)
243 NOTICE of Filing Under Seal by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 10/06/2005)
244 MOTION for Leave to File a response to the defendant's October 5, 2005 report by REGINALD G. MOORE. (See document no.240 for image) (td, ) (Entered: 10/07/2005)
245 Memorandum in opposition to motion re 240 filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 10/07/2005)
246 MOTION for Leave to File Supplemental Memorandum Under Seal by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/07/2005)
247 MOTION for Leave to File Supplemental Memorandum Under Seal by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 10/11/2005)
248 NOTICE of Appearance of E. Desmond Hogan for Plaintiffs by REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, CHERYL L. TYLER, LUTHER K. IVERY (Klar, Jennifer) (Entered: 10/12/2005)
249 NOTICE of Appearance of Deborah Boardman for Plaintiffs by REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, CHERYL L. TYLER, LUTHER K. IVERY (Klar, Jennifer) (Entered: 10/12/2005)
250 NOTICE of Appearance of Sarah Berger for Plaintiffs by REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, CHERYL L. TYLER, LUTHER K. IVERY (Klar, Jennifer) (Entered: 10/12/2005)
MINUTE ORDER: It is hereby ORDERED that the consent motion 233 for enlargement of time to file motion for summary judgment be, and hereby is, GRANTED nunc pro tunc.Issued by Judge Richard W. Roberts on 10/12/05. (lcrwr2) (Entered: 10/12/2005)
251 MOTION for Leave to File Document Under Seal by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 10/12/2005)
252 NOTICE of Filing of Document Under Seal Pending Decision on Motion for Leave to File Under Seal by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 10/12/2005)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 32 of 103

10/12/2005 10/14/2005 10/14/2005 10/14/2005
10/28/2005 11/01/2005 11/18/2005 12/02/2005 12/05/2005 12/07/2005 12/08/2005 12/08/2005 12/08/2005 12/12/2005 12/12/2005 12/12/2005

Minute Entry for proceedings held before Judge Richard W. Roberts : Status Conference held on 10/12/2005. Status Conference set for 12/16/2005 11:00 AM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott Wallace.) (lin, ) (Entered: 10/14/2005)
253 MOTION for Leave to File Documents Under Seal by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 10/14/2005)
254 RESPONSE to Plaintiffs' Supplemental Memorandum in Regard to Plaintiffs' Motion to Compel Documents and Information relating to the Good Ol' Boy Roundup filed by MICHAEL CHERTOFF. (Attachments: # 1 Declaration of B. Williams)(Peterson, Benton) (Entered: 10/14/2005)
255 SUPPLEMENTAL MEMORANDUM to re 241 MOTION for Extension of Time to File Decision, 197 MOTION to Compel Complete Responses to Defendant's Discovery Requests, 238 MOTION for Extension of Time to File Decision in Opposition to Defendants' Motion to Compel Complete Responses to Defendants' Discovery Requests Regarding Plaintiffs' Medical Records filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 10/14/2005)
256 Unopposed MOTION for Hearing re 155 MOTION to Amend/Correct Complaint by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 10/28/2005)
257 Amended MOTION for Hearing re 256 Unopposed MOTION for Hearing re 155 MOTION to Amend/Correct Complaint, 155 MOTION to Amend/Correct Complaint (Unopposed) by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 11/01/2005)
Status Conference regarding the conduct of discovery set for Thursday, 12/9/2005 @ 11:00 AM in Courtroom 25 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 11/18/2005)
258 MOTION for Leave to File Second Supplemental Memorandum Under Seal by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 12/02/2005)
259 MOTION for Leave to File Corrected Exhibit A to Second Supplemental Memorandum Under Seal by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 12/05/2005)
260 Memorandum in opposition to motion re 259 Second Supplemental Memoramdum in Support of plaintiffs' motion to Compel Documents Relating to Good Ol' Boy Roundup filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 12/07/2005)
261 ORDER: Parties are to submit status reports in conjunction with the written order by no later than 5:00 PM 12/8/2005.Signed by Magistrate Judge Deborah A. Robinson on 12/8/05. (jrs ) (Entered: 12/08/2005)
Set/Reset Hearing: Status Conference regarding the conduct of discovery re−set for Monday, 12/12/2005 @ 10:00 AM in Courtroom 25 before Magistrate Judge Deborah A. Robinson; Status Conference scheduled for Friday, 12/9/05 cancelled. (EW) (Entered: 12/08/2005)
262 STATUS REPORT (Joint) by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Klar, Jennifer) (Entered: 12/08/2005)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Hearing of oral arguments held on 12/12/2005 with respect to motions bearing docket numbers 193,164,197,163,199,202. (Court Reporter Pro−typist.) (lm ) (Entered: 12/14/2005)
ORDER granting 193 Motion to Compel Production of Personnel Files for reasons set forth on the record; Defendant shall produce or request from storage the documents responsive to Plaintiff's discovery request no later than 12/23/05. Signed by Magistrate Judge Deborah A. Robinson on 12/12/05. (lm ) (Entered: 12/14/2005)
MINUTE ORDER granting in part and denying i 164 Plaintiffs' Motion to Compel Discovery relating to reasons for Plaintiffs' Non−Selection for Promotion is

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12/12/2005 12/12/2005
12/12/2005
12/12/2005
12/13/2005
12/13/2005 12/14/2005 12/14/2005 12/15/2005 12/15/2005 12/16/2005 12/19/2005 12/23/2005

GRANTED IN PART; Defendant shall produce or request from storage all documents responsive to Plaintiffss request for production of documents no later than 12/23/05; in all other respects, said motion DENIED. . Signed by Magistrate Judge Deborah A. Robinson on 12/12/05. (lm ) (Entered: 12/14/2005)
MINUET ORDER 197 Motion to Compel Complete Responses to Discovery Requests is DENIED for reasons set forth on the record. Signed by Magistrate Judge Deborah A. Robinson on 12/12/05. (lm) (Entered: 12/14/2005)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Further consideration of 163 Plaintiffs' Motion to Compel Merit Promotion Plan Scores is STAYED for reasons set forth on the record; the parties shall meet and confer in an effort to resolve the dispute, and shall file a joint status report regarding their efforts no later than 12/19/05. (Court Reporter Pro−Typists.) (lm ) (Entered: 12/14/2005)
MINUTE ORDER on 199 Plaintiffs' Motion to Compel Production of NFC Database is GRANTED IN PART, and all "promotions materials" within the NFC database shall be produced or requested from storage by 12/23/05; Plaintiffs' request for production of the raw data used to prepare the Secret Service "Barrier Analysis" is GRANTED for the reasons set forth on the record; Defendant shall produce the responsive documents or request such documents from storage, no later than 12/23/05; in all other respects, said motion is DENIED. Signed by Magistrate Judge Deborah A. Robinson on 12/12/05. (lm, ) (Entered: 12/14/2005)
MINUTE ORDER: re 202 Plaintiffs'Motion to Compel Documents and Information Related to the Good Ol' Boy Roundup is GRANTED for the reasons set forth on the record; Defendant shall respond to the discovery requests which are the subject of the motion no later than 12/23/05.. Signed by Magistrate Judge Deborah A. Robinson on 12/12/05. (lm ) (Entered: 12/15/2005)
ORDER granting 238 Motion for Extension of Time to File, granting 241 Motion for Extension of Time to File, granting 242 Motion to Seal, granting 244 Motion for Leave to File, granting 246 Motion for Leave to File, granting 247 Motion for Leave to File, granting 251 Motion for Leave to File, granting 253 Motion for Leave to File, granting 258 Motion for Leave to File, granting 259 Motion for Leave to File . Signed by Magistrate Judge Deborah A. Robinson on 12/13/05. (lm ) (Entered: 12/13/2005)
263 ORDER withdrawing 162 Motion to Compel, withdrawing 182 Motion to Compel, withdrawing 188 Motion for Extension of Time to Complete Discovery, withdrawing 191 Motion to Compel, withdrawing 200 Motion to Strike . Signed by Magistrate Judge Deborah A. Robinson on 12/13/05. (lm ) (Entered: 12/13/2005)
264 ORDER denying as moot 192 Motion for Reconsideration, denying 194 Motion in Limine. Signed by Magistrate Judge Deborah A. Robinson on 12/14/05. (EW) (Entered: 12/14/2005)
265 ORDER denying 234 Motion for Reconsideration. Signed by Magistrate Judge Deborah A. Robinson on 12/14/05. (EW) (Entered: 12/14/2005)
MINUTE ORDER: It is hereby ORDERED that the post−discovery status conference scheduled for 12/16/05 be, and hereby is, RESCHEDULED to a date to be selected later. Issued by Judge Richard W. Roberts on 12/15/05. (lcrwr2) (Entered: 12/15/2005)
MINUTE ORDER: It is hereby ORDERED that the post−discovery status conference be, and hereby is, RESCHEDULED to 2/22/06 at 9:45 a.m. Issued by Judge Richard W. Roberts on 12/15/05. (lcrwr2) (Entered: 12/15/2005)
NOTICE of Hearing: Status Conference set for 2/22/2006 09:45 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 12/16/2005)
266 STATUS REPORT (JOINT) ON PLAINTIFFS MOTION TO COMPEL DISCOVERY RELATING TO PLAINTIFFS MERIT PROMOTION PLAN SCORES (DOCKET NO. 163) by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 12/19/2005)
268 TRANSCRIPT of Proceedings held on 12/12/05 before Judge Magistrate Deborah A. Robinson. Court Reporter: Pro−Typists. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday.

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12/27/2005 12/27/2005 12/27/2005
12/29/2005 01/10/2006
01/10/2006
01/10/2006
01/18/2006 01/20/2006 01/23/2006 01/23/2006 01/25/2006
01/25/2006 01/25/2006 01/27/2006 01/27/2006

(td, ) (Entered: 12/27/2005)
267 MOTION for Reconsideration re Order on Motion to Compel by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A)(Braswell, Marina) (Entered: 12/27/2005)
269 MOTION for Reconsideration Re: Motion in limine by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 12/27/2005)
270 MOTION for Reconsideration re Order on Motion to Compel, Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Errata B)(Klar, Jennifer) (Entered: 12/27/2005)
MINUTE ORDER denying as moot 230 Motion for Leave to File a Notice of Appearance.Signed by Magistrate Judge Deborah A. Robinson on 12/29/05. (jrs ) (Entered: 12/29/2005)
271 Memorandum in opposition to re 270 Plaintiffs' Motion to Reconsider a Portion of Magistrate's Order on Plaintiffs' Motion to Compel Discovery Relating to Reasons for Plaintiffs' Non−selection for promotion filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit #1# 2 Exhibit #2# 3 Exhibit #3# 4 Exhibit #4# 5 Exhibit #5)(Peterson, Benton) (Entered: 01/10/2006)
272 Memorandum in opposition to re 269 Defendants' Motion for Reconsideration of Magistrate Judge's Rulings Regarding the Deposition of Sherryl Michaelson filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F)(Klar, Jennifer) (Entered: 01/10/2006)
273 Memorandum in opposition to re 267 Defendants' Motion for Reconsideration of the Magistrate Judge's Order Denying Defendants' Motion to Compel Access to Plaintiffs' Medical Records filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A)(Boardman, Deborah) (Entered: 01/10/2006)
274 Consent MOTION for Extension of Time to File Response/Reply as to 271 Memorandum in Opposition, by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 01/18/2006)
275 ORDER granting 163 Motion to Compel. Signed by Magistrate Judge Deborah A. Robinson on 1/20/06. (EW) (Entered: 01/20/2006)
276 REPLY to opposition to motion re 269 Defendant's Motion to Quash and Motion in limine filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 01/23/2006)
277 Unopposed MOTION for Extension of Time to File Response/Reply as to 267 MOTION for Reconsideration re Order on Motion to Compel by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 01/23/2006)
278 ENTERED IN ERROR.....Joint MOTION for Extension of Time to Complete Expert Depositions and Deposition of Special Agent Bagby by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) Modified on 1/27/2006 (jf, ). (Entered: 01/25/2006)
279 Joint MOTION for Extension of Time to Complete Expert Depositions and Deposition of Special Agent Bagby (CORRECTED) by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 01/25/2006)
280 Unopposed MOTION for Extension of Time to File Response/Reply as to 273 Memorandum in Opposition, by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 01/25/2006)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 278 Joint MOTION for Extension of Time to Complete Expert Depositions and Deposition of Special Agent Bagby was entered in error as a duplicate to 279 (jf, ) (Entered: 01/27/2006)
MINUTE ORDER granting 274 Motion for Extension of Time to File Response/Reply ; 277 Unopposed MOTION for Extension of Time to File Response/Reply and 280 Unopposed MOTION for Extension of Time to File Response/Reply . Signed by Magistrate Judge Deborah A. Robinson on 1/27/06. (EW) Modified on 1/27/2006

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 35 of 103

01/27/2006 01/27/2006
01/31/2006 02/01/2006 02/02/2006 02/03/2006 02/03/2006 02/03/2006 02/03/2006
02/03/2006 02/03/2006
02/06/2006
02/14/2006 02/17/2006 02/17/2006

(EW). (Entered: 01/27/2006)
MINUTE ORDER granting 279 Motion for Extension of Time to Complete Expert Depositions and Deposition of Special Agent Bagby. Signed by Magistrate Judge Deborah A. Robinson on 1/27/06. (EW) (Entered: 01/27/2006)
281 REPLY to opposition to motion re 270 to Reconsider a Portion of Magistrate's Order on Plaintiffs' Motion to Compel Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Klar, Jennifer) (Entered: 01/27/2006)
282 MOTION for Extension of Time to Comply with the Order at Docket No. 275 by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 01/31/2006)
283 Unopposed MOTION for Extension of Time to Respond to Docket No. 273 by MICHAEL CHERTOFF. (Braswell, Marina). (Entered: 02/01/2006)
284 REPLY to opposition to motion re 267 filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 02/02/2006)
MINUTE ORDER Denying as Moot 240 Motion to Strike Signed by Magistrate Judge Deborah A. Robinson on 2/3/06. (jrs ) (Entered: 02/03/2006)
285 RESPONSE to Defendants' Motion for Enlargement of Time (Docket No. 282 filed by REGINALD G. MOORE. (Klar, Jennifer). (Entered: 02/03/2006)
286 REPLY to opposition to motion re 282 filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 02/03/2006)
287 ORDER denying 282 Motion for Enlargement of Time and staying the order through 2/22/06 the date on which counsel for the parties are scheduled to appear before the assigned United States District Judge. Signed by Magistrate Judge Deborah A. Robinson on 2/3/06. (EW) Modified on 2/3/2006 (EW, ). (Entered: 02/03/2006)
288 MOTION for Order on Clarification on Plaintiffs' Pending Non−Promotion Claims by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C)(Klar, Jennifer) (Entered: 02/03/2006)
289 MOTION for Reconsideration re 275 Order on Motion to Compel by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Errata 2# 3 Exhibit 3# 4 Errata 4 (Salianas dec.)# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Errata 13# 14 Exhibit 14# 15 Exhibit 15)(Braswell, Marina) (Entered: 02/03/2006)
290 Unopposed MOTION Leave to File Sur−reply to Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion to Reconsider a Portion of Magistrate's Order on Plaintiffs' Motion to Compel Discovery Relating to Reasons for Plaintiffs' Non−selection for Promotion re 281 Reply to opposition to Motion, by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 02/06/2006)
291 Unopposed MOTION to Seal Document Motion for Time to Complete Follow−Up Discovery on Documents Ordered Produced in Response to Plaintiffs' Motions to Compel by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 02/14/2006)
MINUTE ORDER granting 291 Unopposed Motion to File under Seal. Signed by Magistrate Judge Deborah A. Robinson on 2/17/06. (EW) (Entered: 02/17/2006)
292 NOTICE to Court Regarding the Post−Discovery Status Conference Scheduled for February 22, 2006 and Request for a Motions Hearing and Status Conference by REGINALD G. MOORE re 267 MOTION for Reconsideration re Order on Motion to Compel, 289 MOTION for Reconsideration re 275 Order on Motion to Compel, Notice of Hearing, 270 MOTION for Reconsideration re Order on Motion to Compel, Discovery Relating to Reasons for Plaintiffs' Non−Selection for Promotion, 269 MOTION for Reconsideration Re: Motion in limine, 288 MOTION for Order on Clarification on Plaintiffs' Pending Non−Promotion Claims, 155 MOTION to Amend/Correct Complaint (Boardman, Deborah) (Entered: 02/17/2006)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 36 of 103

02/17/2006 02/17/2006 02/17/2006 02/17/2006 02/17/2006 02/20/2006 02/21/2006 02/21/2006 02/21/2006 02/21/2006 02/22/2006
02/23/2006
02/23/2006 02/23/2006
02/27/2006 02/27/2006

293 MOTION for Reconsideration re 287 Order on Motion for Extension of Time to, by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 02/17/2006)
294 Memorandum in opposition to re 288 filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1, 2, 3, 5 & 6# 2 Exhibit 4)(Braswell, Marina) (Entered: 02/17/2006)
295 Memorandum in opposition to re 289 Motion for Reconsideration of Magistrate Judge's Ruling at Docket No. 275 filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Boardman, Deborah) (Entered: 02/17/2006)
308 MOTION for Extension of Time to complete follow−up discovery on documents ordered produced in response to plaintiff's motion to compel by REGINALD G. MOORE. (FILED UNDER SEAL) (jf, ) (Entered: 03/09/2006)
347 ENTERED IN ERROR.....MOTION for Time to complete follow−up discovery on documents ordered produced in response to plaintiffs' motions to compel by REGINALD G. MOORE. (FILED UNDER SEAL) (jf, ) Modified on 6/26/2006 (jf, ). (Entered: 06/26/2006)
296 REPLY to opposition to motion re 295 Memorandum in Opposition, 288 MOTION for Order on Clarification on Plaintiffs' Pending Non−Promotion Claims filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Klar, Jennifer) (Entered: 02/20/2006)
MINUTE ORDER granting 283 Unopposed Motion for Extension of Time & 290 Unopposed Motion for leave to file sur−reply. Signed by Magistrate Judge Deborah A. Robinson on 2/21/06. (EW) (Entered: 02/21/2006)
297 Unopposed MOTION for Hearing on Magistrate Judge's February 22, 2006 deadline by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 02/21/2006)
298 Joint MOTION for Extension of Time to Extend Period for Depositions of Statistical Experts Drs. Mann and White by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 02/21/2006)
299 SURREPLY to Plaintiffs' reply to opposition re 270 filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 02/21/2006)
Minute Entry for proceedings held before Judge Richard W. Roberts : Status Conference held on 2/22/2006. Motion for extension of time to complete discovery (Doc.# 298)granted; Motion for reconsideration (Doc. # 293)of order (Doc. #287) granted; Discovery due by 3/17/2006. Status Conference set for 5/26/2006 09:45 AM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott wallace.) (lin, ) (Entered: 02/23/2006)
MINUTE ORDER: It is hereby ORDERED that defendant's motion 181 for leave to file surreply in further opposition to plaintiffs' motion to amend the complaint and plaintiffs' motion 186 for leave to file supplemental memorandum in support of plaintiffs' motion to amend the complaint be, and hereby are, GRANTED. Issued by Judge Richard W. Roberts on 2/23/06. (lcrwr2) (Entered: 02/23/2006)
300 SURREPLY IN OPPOSITION to re 155 MOTION to Amend/Correct Complaint filed by MICHAEL CHERTOFF. (jf, ) (Entered: 02/24/2006)
301 SUPPLEMENTAL MEMORANDUM in support of re 155 MOTION to Amend/Correct Complaint filed by JENELL G. WALKER−CLARK, REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY, ARTHUR DEREK EVANS, ROBERT J. MOORE, DONALD W. TUCKER. (jf, ) (Entered: 02/24/2006)
302 REPLY to opposition to motion re 289 MOTION for Reconsideration re 275 Order on Motion to Compel filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Braswell, Marina) (Entered: 02/27/2006)
303 Memorandum in opposition to re 308 Defendant's Response to Plaintiffs' Motion for Time to Complete Follow−up Discovery on Documents Ordered on Documents Ordered Produced in Response to Plaintiffs' Motions to Compel filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Text of Proposed Order)(Peterson, Benton) Modified on 3/9/2006 (jf, ).

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02/28/2006 03/05/2006
03/05/2006
03/09/2006
03/09/2006 03/13/2006 03/14/2006 03/16/2006 03/17/2006 03/24/2006 03/28/2006 03/31/2006 04/05/2006
04/05/2006

(Entered: 02/27/2006)
304 Unopposed MOTION for Hearing to Reschedule May 26, 2006 Status Conference by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 02/28/2006)
305 NOTICE OF WITHDRAWAL OF APPEARANCE as to JENELL G. WALKER−CLARK, REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY, ARTHUR DEREK EVANS, ROBERT J. MOORE, DONALD W. TUCKER. Attorney David J. Shaffer terminated. (Shaffer, David) (Entered: 03/05/2006)
306 NOTICE OF WITHDRAWAL OF APPEARANCE as to JENELL G. WALKER−CLARK, REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY, ARTHUR DEREK EVANS, ROBERT J. MOORE, DONALD W. TUCKER. Attorney Ronald A. Schmidt terminated. (Schmidt, Ronald) (Entered: 03/05/2006)
307 Consent MOTION for Extension of Time to File a Reply in Support of Plaintiffs' Motion for Time to Complete Follow−Up Discovery on Documents Ordered Produced in Response to Plaintiffs' Motions to Compel by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 03/09/2006)
MINUTE ORDER granting 307 Motion for Extension of Time; Reply due 3/16/06. Signed by Magistrate Judge Deborah A. Robinson on 3/9/06. (EW) (Entered: 03/09/2006)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' unopposed motion 304 to reschedule the 5/26/06 hearing be, and hereby is, GRANTED. The status hearing is rescheduled to 5/25/06 at 12:00 p.m. Issued by Judge Richard W. Roberts on 3/13/06. (lcrwr2) (Entered: 03/13/2006)
Set/Reset Hearings: Status Conference set for 5/25/2006 12:00 PM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 03/14/2006)
309 REPLY to opposition to motion re 308 MOTION for Extension of Time to to Complete Follow−Up Discovery on Documents Ordered Produced in Response to Plaintiffs' Motion to Compel filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A)(Boardman, Deborah) (Entered: 03/16/2006)
310 Joint MOTION for Extension of Time to Depose Parties' Statistical Experts by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/17/2006)
MINUTE ORDER: It is hereby ORDERED that the joint motion 310 for a second enlargement of time to depose statistical experts be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 3/24/06. (lcrwr2) (Entered: 03/25/2006)
311 TRANSCRIPT of Status Conference held on February 22, 2006 before Judge Richard W. Roberts. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 03/29/2006)
312 MEMORANDUM AND OPINION. Signed by Judge Richard W. Roberts on 3/30/2006. (lcrwr2) (Entered: 03/31/2006)
Set Deadlines/Hearings: Discovery Hearing on Plaintiff's Motion for Clarification on Plaintiff's Pending Non−Promotion Claims 28 set for 4/12/2006 at 03:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson; counsel shall meet and confer in advance of the hearing in an effort to narrow the areas of disagreement; counsel shall file a joint status report regarding the results of their efforts no later than April 11, 2006. (jrs ) (Entered: 04/05/2006)
Set Deadlines/Hearings: Status Conference with respect to conduct of discovery regarding the amended complaint set for 5/8/2006 at 02:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson; counsel shall meet and confer in person in an effort to agree upon the scope of discovery regarding the amended complaint; counsel

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04/07/2006
04/11/2006 04/12/2006 04/12/2006 04/13/2006 04/14/2006 04/17/2006 04/21/2006 04/24/2006 04/25/2006 04/28/2006 05/01/2006 05/01/2006 05/01/2006 05/01/2006

shall file a joint status report and proposed scheduling order no later than May 4, 2006. (jrs ) (Entered: 04/05/2006)
Minute Entry: Discovery Hearing regarding 308 Plaintiff's Motion for Time to Complete Follow−up Discovery set for 4/12/2006 03:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson; parties shall meet and confer in an effort to narrow the issues in dispute and address this motion in the joint status report already ordered by the court. (jrs ) (Entered: 04/07/2006)
313 STATUS REPORT (JOINT) by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 04/11/2006)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Discovery Hearing held on 4/12/2006. (Court Reporter Pro−Typists.) (lm, ) (Entered: 04/13/2006)
Minute ORDER withdrawing 288 Motion for Order on Clarification on Plaintiffs' Pending Non−Promotion Claims.. Signed by Magistrate Judge Deborah A. Robinson on 4/12/06. (lm ) (Entered: 04/13/2006)
ORDER granting 308 Motion for Extension of Time; Parties have 60 days for follow−up on discovery to be concluded. . Signed by Magistrate Judge Deborah A. Robinson on 4/12/06. (lm ) (Entered: 04/13/2006)
314 MOTION for Reconsideration re 312 Memorandum & Opinion by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13)(Braswell, Marina) (Entered: 04/14/2006)
315 MOTION for Reconsideration re 312 Memorandum & Opinion by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D)(Klar, Jennifer) (Entered: 04/17/2006)
316 TRANSCRIPT of Proceedings held on 12/12/05 before Judge Magistrate Deborah A. Robinson. Court Reporter: Pro−Typists, Inc. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/24/2006)
317 Consent MOTION for Extension of Time to File Response/Reply as to 314 MOTION for Reconsideration re 312 Memorandum & Opinion by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 04/24/2006)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 317 for an extension of time to file a response to defendant's motion 314 for reconsideration be, and hereby is, GRANTED. Response due by 5/9/2006. Issued by Judge Richard W. Roberts on 4/25/06. (lcrwr2) (Entered: 04/25/2006)
318 MOTION to Continue May 8, 2006 Status Hearing and the May 4, 2006 Status Report Regarding Further Discovery in this Case by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 04/28/2006)
319 Memorandum in opposition to re 318 MOTION to Continue May 8, 2006 Status Hearing and the May 4, 2006 Status Report Regarding Further Discovery in this Case filed by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 05/01/2006)
320 REPLY to opposition to motion re 318 MOTION to Continue May 8, 2006 Status Hearing and the May 4, 2006 Status Report Regarding Further Discovery in this Case filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 05/01/2006)
321 ENTERED IN ERROR.....MOTION to Amend/Correct 1 Complaint, (FIRST AMENDED AND SUPPLEMENTAL COMPLAINT) by REGINALD G. MOORE. (Klar, Jennifer) Modified on 5/2/2006 (jf, ). (Entered: 05/01/2006)
322 AMENDED COMPLAINT against MICHAEL CHERTOFF filed by ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, REGINALD G. MOORE, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY.(jf, ) (Entered: 05/02/2006)

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05/02/2006 05/02/2006 05/02/2006 05/02/2006 05/04/2006 05/08/2006
05/09/2006 05/11/2006 05/11/2006 05/12/2006 05/12/2006 05/12/2006 05/16/2006 05/17/2006 05/19/2006 05/22/2006

NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 321 MOTION to Amend/Correct 1 Complaint, (FIRST AMENDED AND SUPPLEMENTAL COMPLAINT) was entered in error and counsel was instructed to refile said pleading with correct document (Motion). (jf, ) (Entered: 05/02/2006)
Set/Reset Deadlines: Response due by 5/9/2006 (lin, ) (Entered: 05/02/2006)
MINUTE ORDER denying 318 Motion to Continue Status Report & Status Hearing for the reasons offered by Plaintiffs in their opposition.Signed by Magistrate Judge Deborah A. Robinson on 5/2/06. (jrs) (Entered: 05/02/2006)
323 Memorandum in opposition to re 315 MOTION for Reconsideration re 312 Memorandum & Opinion filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit # 1# 2 Exhibit # 2# 3 Exhibit # 3# 4 Exhibit # 4# 5 Exhibit # 5# 6 Exhibit # 6# 7 Exhibit # 7# 8 Exhibit # 8# 9 Exhibit # 9)(Peterson, Benton) (Entered: 05/02/2006)
324 STATUS REPORT Joint Status Report by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 05/04/2006)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Status Hearing regarding the conduct of discovery held on 5/8/2006; Defendant?s motion to stay discovery, or for bifurcation of discovery (see 5/4/2006 Joint Status Report at 2−4) DENIED for the reasons set forth on the record; discovery with respect to the Amended Complaint shall begin immediately, and shall close on 10/2/2006; each side is limited to 35 depositions and 35 interrogatories; no limit is fixed on the number of requests for admission; parties shall meet and confer regarding the scheduling of expert discovery, which shall be completed by 10/2/2006. (Court Reporter Pro−Typists) (lm) (Entered: 05/09/2006)
325 Memorandum in opposition to re 314 MOTION for Reconsideration re 312 Memorandum & Opinion filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B)(Klar, Jennifer) (Entered: 05/09/2006)
326 Unopposed MOTION for Extension of Time to File Response to Amended Complaint by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 05/11/2006)
327 Unopposed MOTION Motion to Request to Utilize Information Subject to the Protective Order for Purposes Outside the Scope of the Protective Order by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 05/11/2006)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 5/12/06 granting 327 Unopposed Motion to request to utilize information subject to the protective order for purposes outside the scope of the protective order. (EW) (Entered: 05/12/2006)
328 MOTION for Reconsideration of Magistrate Judge Robinson's Oral Ruling on May 8, 2006 Regarding Further Discovery by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 05/12/2006)
329 REPLY to opposition to motion re 315 MOTION for Reconsideration re 312 Memorandum & Opinion filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Boardman, Deborah) (Entered: 05/12/2006)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 326 for an extension of time to respond to the amended complaint be, and hereby is, GRANTED. Issued by Judge Richard W. Roberts on 5/16/06. (lcrwr2) (Entered: 05/16/2006)
330 TRANSCRIPT of Status Hearing held on May 8, 2006 before Judge Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 05/18/2006)
331 REPLY to opposition to motion re 314 MOTION for Reconsideration re 312 Memorandum & Opinion filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 14# 2 Exhibit 15# 3 Exhibit 16)(Braswell, Marina) (Entered: 05/19/2006)
332 MEMORANDUM OPINION AND ORDER. Signed by Judge Richard W. Roberts on 5/22/06. (lcrwr2) (Entered: 05/22/2006)

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05/24/2006 05/24/2006 05/25/2006 05/31/2006 05/31/2006 05/31/2006
05/31/2006
05/31/2006 06/01/2006
06/02/2006 06/02/2006 06/02/2006 06/08/2006 06/08/2006 06/08/2006

NOTICE of Hearing: Status Conference set for 5/25/2006 12:00 PM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 05/24/2006)
333 Memorandum in opposition to re 328 MOTION for Reconsideration of Magistrate Judge Robinson's Oral Ruling on May 8, 2006 Regarding Further Discovery filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1)(Boardman, Deborah) (Entered: 05/24/2006)
Minute Entry for proceedings held before Judge Richard W. Roberts : Status Conference held on 5/25/2006. Status Conference set for 10/6/2006 11:30 AM in Courtroom 9 before Judge Richard W. Roberts. (Court Reporter Scott Wallace.) (lin, ) (Entered: 05/26/2006)
334 STATUS REPORT (JOINT) by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 05/31/2006)
335 Unopposed MOTION for Extension of Time to File Answer by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 05/31/2006)
336 NOTICE of Filing of Exhibits to Defendant's Motion for Partial Dismissal or, in the Alternative, for Partial Summary Judgment of the Amended Complaint by MICHAEL CHERTOFF (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10)(Braswell, Marina) (Entered: 05/31/2006)
337 NOTICE of Filing of Exhibits 11−23 to Defendant's Motion for Partial Dismissal or, in the Alternative, for Partial Summary Judgment on the Amended Complaint, by MICHAEL CHERTOFF (Attachments: # 1 Exhibit 11# 2 Exhibit 12# 3 Exhibit 13# 4 Exhibit 14# 5 Exhibit 15# 6 Exhibit 16# 7 Exhibit 17# 8 Exhibit 18# 9 Exhibit 19# 10 Exhibit 20# 11 Exhibit 21# 12 Exhibit 22# 13 Exhibit 23)(Braswell, Marina) (Entered: 05/31/2006)
338 MOTION to Dismiss in Part, or, in the Alternative, Partial, MOTION for Summary Judgment by MICHAEL CHERTOFF. (Attachments: # 1 Statement of Facts)(Braswell, Marina) (Entered: 05/31/2006)
339 ANSWER to Amended Complaint by MICHAEL CHERTOFF. Related document: 322 Amended Complaint filed by REGINALD G. MOORE,, JOHN E. TURNER,, C. YVETTE SUMMEROUR,, LEROY HENDRIX,, CHERYL L. TYLER,, LUTHER K. IVERY,, ARTHUR DEREK EVANS,, ANDREW E. HARRIS, JR., KENNETH ROOKS,, CAMILLA SIMMS,, LISA ROBERTSON,.(Peterson, Benton) (Entered: 06/01/2006)
340 MOTION for Extension of Time to File Response/Reply Plaintiffs' Opposition to Defendant's Motion for Reconsideration of Magistrate Judge Robinson's Oral Ruling on May 8, 2006 by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 06/02/2006)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 340 for an extension of time to file a reply in support of its motion for reconsideration be, and hereby is, GRANTED. Reply due by 6/12/2006. Issued by Judge Richard W. Roberts on 6/2/06. (lcrwr2) (Entered: 06/02/2006)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 335 for a one−day extension of time to answer the amended complaint be, and hereby is, GRANTED nunc pro tunc. Issued by Judge Richard W. Roberts on 6/02/06. (lcrwr2) (Entered: 06/02/2006)
Set/Reset Deadlines: Replies due by 6/12/2006. (lin, ) (Entered: 06/08/2006)
341 Consent MOTION for Extension of Time to File Response/Reply as to 338 MOTION to Dismiss in Part, or, in the Alternative, Partial MOTION for Summary Judgment by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 06/08/2006)
342 STRICKEN FROM THE RECORD SEE ORDER ENTERED 6/13/06 ........Consent MOTION for Extension of Time to Complete Discovery by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) Modified on

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06/12/2006 06/13/2006
06/13/2006 06/15/2006 06/26/2006 06/26/2006 06/28/2006
06/30/2006 07/03/2006 07/03/2006 07/04/2006 07/06/2006 07/06/2006

6/22/2006 (EW, ). (Entered: 06/08/2006)
343 REPLY to opposition to motion re 328 MOTION for Reconsideration of Magistrate Judge Robinson's Oral Ruling on May 8, 2006 Regarding Further Discovery filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 06/12/2006)
344 ORDERED that no later than June 15, 2006, Defendant shall show cause, in writing, why he should not be held in contempt for his willful disregard of the courts order to provide follow−up discovery by June 12, 2006, or to move for an extension of the deadline in accordance with Rule 6(b)(1) of the Federal Rules of Civil Procedure; FURTHER ORDERED that the so−called Consent Motion for Extension of Time for Plaintiffs to Complete Follow−Up Discovery (Docket No. 342) is hereby STRICKEN FROM THE RECORD for Defendants failure to comply with Rule 6(b)(1) of the Federal Rules of Civil Procedure; FURTHER ORDERED that if Defendant elects to move for an enlargement of the June 12, 2006 discovery deadline, then he shall file a motion for enlargement of time pursuant to Rule 6(b)(2) of the Federal Rules of Civil Procedure no later than June 15, 2006. Signed by Magistrate Judge Deborah A. Robinson on 6/13/06. (EW) (Entered: 06/13/2006)
345 TRANSCRIPT of Motion Hearing held on October 04, 2005 before Magistrate Judge Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 06/14/2006)
346 MEMORANDUM re 344 Order on Motion for Extension of Time to Complete Discovery,,, by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)(Braswell, Marina) (Entered: 06/15/2006)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 347 MOTION for Extension of Time to was entered in error due to clerical error and as a duplicate to # 308 . (jf, ) (Entered: 06/26/2006)
348 STRICKEN FROM THE RECORD SEE ORDER FILED 7/6/06..... MOTION for Protective Order by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Braswell, Marina) Modified on 7/6/2006 (EW, ). (Entered: 06/26/2006)
349 Memorandum in opposition to re 338 MOTION to Dismiss in Part, or, in the Alternative, Partial MOTION for Summary Judgment filed by REGINALD G. MOORE. (Attachments: # 1 Statement of Facts in Dispute# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I (Part 1)# 11 Exhibit I (Part 2)# 12 Exhibit J# 13 Exhibit K# 14 Exhibit L# 15 Exhibit M# 16 Exhibit N# 17 Exhibit O)(Klar, Jennifer) (Entered: 06/28/2006)
350 Consent MOTION for Order on Class Certification Briefing Schedule by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 06/30/2006)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 341 for extension of time to respond to defendant's motion 338] to dismiss be, and hereby is, GRANTED nunc pro tunc. Issued by Judge Richard W. Roberts on 7/3/06. (lcrwr2) (Entered: 07/03/2006)
351 NOTICE of Errata by MICHAEL CHERTOFF (Attachments: # 1 Attachment# 2)(Peterson, Benton) (Entered: 07/03/2006)
352 Consent MOTION for Extension of Time to Conduct Follow−Up Depositions by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3)(Klar, Jennifer) (Entered: 07/04/2006)
353 ORDER striking 348 Motion for Protective Order. Signed by Magistrate Judge Deborah A. Robinson on 7/6/06. (EW) (Entered: 07/06/2006)
354 ORDER granting 352 Consent Motion for Time to Conduct Follow−Up Depositions; FURTHER ORDERED, in accordance with Rule 37(b)(2)(E) of the Federal Rules of Civil Procedure, that Defendant shall pay Plaintiffs costs, including reasonable attorneys fees, of moving for additional time in which to conduct the 30(b)(6)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 42 of 103

07/06/2006
07/07/2006
07/07/2006
07/07/2006 07/12/2006 07/20/2006 08/04/2006 08/07/2006
08/07/2006 08/08/2006
08/08/2006 08/10/2006 08/22/2006 08/26/2006
08/29/2006 09/14/2006

deposition ; FURTHER ORDERED that the June 13, 2006 show cause order is hereby DISCHARGED; FURTHER ORDERED that Defendants Motion for Reconsideration of [the Show Cause] Order is DENIED AS MOOT. Signed by Magistrate Judge Deborah A. Robinson on 7/6/06. (EW) (Entered: 07/06/2006)
355 MOTION for Protective Order by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1(Motion)# 2 Exhibit 1(to memorandum)# 3 Exhibit 2(to memorandum)# 4 Exhibit 3(to memorandum)# 5 Exhibit 4(to memorandum)# 6 Text of Proposed Order)(Peterson, Benton) (Entered: 07/06/2006)
356 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss in Part or in the Alternative Motion for Partial Summary Judgment by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 07/07/2006)
357 Memorandum in opposition to re 355 MOTION for Protective Order Regarding Class Plaintiffs' First Set of Document Requests filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order Proposed Order# 2 Exhibit Ex. A)(Boardman, Deborah) (Entered: 07/07/2006)
358 MEMORANDUM OPINION AND ORDER. Signed by Judge Richard W. Roberts on 7/7/06. (lcrwr2) (Entered: 07/07/2006)
359 NOTICE OF WITHDRAWAL OF MOTION 355 by MICHAEL CHERTOFF (Peterson, Benton). (Entered: 07/12/2006)
360 MOTION for Reconsideration re 354 Order on Motion for Extension of Time to,, by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Braswell, Marina) (Entered: 07/20/2006)
361 Joint MOTION for Extension of Time to Complete Discovery Pertaining to "Follow−up" Discovery by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 08/04/2006)
362 SECOND AMENDED COMPLAINT against MICHAEL CHERTOFF filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY.(jf, ) (Entered: 08/07/2006)
363 NOTICE OF WITHDRAWAL OF MOTION by REGINALD G. MOORE re 350 Consent MOTION for Order on Class Certification Briefing Schedule (Boardman, Deborah) (Entered: 08/07/2006)
364 TRANSCRIPT of Status Conference held on May 25, 2006 before Judge Richard W. Roberts.. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 08/08/2006)
MINUTE ORDER granting 361 Joint Motion for Extension of Time to Complete Follow−up Discovery. Signed by Magistrate Judge Deborah A. Robinson on 8/8/06. (jrs ) (Entered: 08/08/2006)
365 MEMORANDUM ORDER. Signed by Judge Richard W. Roberts on 8/10/06. (lcrwr2) (Entered: 08/10/2006)
366 Unopposed MOTION for Extension of Time to Respond to Second Amended and Supplemental Class Complaint by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 08/22/2006)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 366 for an extension of time to respond to the second amended complaint be, and hereby is, GRANTED. Response due 9/18/06. Issued by Judge Richard W. Roberts on 8/25/06. (lcrwr2) (Entered: 08/26/2006)
Set/Reset Deadlines: Answer due by 9/18/2006. (lin, ) (Entered: 08/29/2006)
367 Joint MOTION for Extension of Time to Complete Discovery and Set Briefing Schedule by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 09/14/2006)

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09/18/2006 09/18/2006 09/20/2006 09/20/2006
09/21/2006
10/02/2006 10/03/2006 10/05/2006
10/05/2006 10/06/2006 10/06/2006 10/11/2006 10/13/2006 10/17/2006 10/18/2006

MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 9/18/06 granting 367 Motion for Extension of Time to Complete Discovery (EW) (Entered: 09/18/2006)
368 Unopposed MOTION for Extension of Time to Respond to Second Amended Complaint by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 09/18/2006)
369 Unopposed MOTION for Extension of Time to File Answer by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 09/20/2006)
370 MOTION to Dismiss in Part, or in the Alternative, MOTION for Summary Judgment in Part by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16)(Braswell, Marina) (Entered: 09/20/2006)
371 ANSWER to Amended Complaint by MICHAEL CHERTOFF. Related document: 362 Amended Complaint filed by REGINALD G. MOORE,, JOHN E. TURNER,, C. YVETTE SUMMEROUR,, LEROY HENDRIX,, CHERYL L. TYLER,, LUTHER K. IVERY,, ANDREW E. HARRIS, JR., KENNETH ROOKS,, CAMILLA SIMMS,, LISA ROBERTSON,.(Braswell, Marina) (Entered: 09/21/2006)
372 Joint MOTION to Continue Status Conference by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 10/02/2006)
373 Consent MOTION for Extension of Time to File Response/Reply as to 370 MOTION to Dismiss in Part, or in the Alternative MOTION for Summary Judgment in Part MOTION for Summary Judgment in Part by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/03/2006)
MINUTE ORDER: Treating the minute order of 9/18/06 as a report and recommendation (in light of paragraph 4 of the Scheduling Order entered on 12/7/04), it is hereby ORDERED that the recommendation be, and hereby is, ADOPTED, and the joint motion for an extension of discovery 367 is GRANTED. It is further ORDERED that the joint motion to continue 372 be, and hereby is, GRANTED. The post−discovery status conference is RESCHEDULED to May 4, 2007 at 9:30 a.m. Signed by Judge Richard W. Roberts on 10/5/06. (lcrwr3) (Entered: 10/05/2006)
Set/Reset Hearings: Status Conference set for 5/4/2007 09:30 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 10/05/2006)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed Motions for Extension of Time to Answer plaintiff's Second Amended Complaint [368, 369] be, and hereby are, GRANTED nunc pro tunc. Reply due by 9/21/2006. Issued by Judge Richard W. Roberts on 10/5/06. (lcrwr3) (Entered: 10/06/2006)
MINUTE ORDER: It is hereby ORDERED that plaintiffs consent motion for extension of time to oppose defendant's motion partial dismissal, partial summary judgment 373 be, and hereby is, GRANTED. Opposition is due by October 18, 2006. Signed by Judge Richard W. Roberts on 10/6/06. (lcrwr3) (Entered: 10/06/2006)
374 MOTION to Compel Reasons for Non−Selection by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F)(Boardman, Deborah) (Entered: 10/11/2006)
Set/Reset Deadlines: Response to Dispositive Motions due by 10/18/2006. (lin, ) (Entered: 10/13/2006)
375 TRANSCRIPT of Status Conference held on October 12, 2005 before Judge Richard W. Roberts. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 10/18/2006)
376 Memorandum in opposition to re 370 MOTION to Dismiss in Part, or in the Alternative MOTION for Summary Judgment in Part MOTION for Summary Judgment in Part filed by REGINALD G. MOORE. (Attachments: # 1 Statement of Facts # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I)(Boardman, Deborah) (Entered: 10/18/2006)

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10/20/2006 10/25/2006 10/26/2006 10/30/2006
10/30/2006 11/02/2006 11/02/2006 11/06/2006 11/13/2006 11/16/2006 11/16/2006 11/16/2006 11/16/2006 11/16/2006 11/17/2006

377 ORDER granting Motion for Reconsideration 360 . Signed by Judge Richard W. Roberts on 10/19/06. (lcrwr3) (Entered: 10/20/2006)
378 MOTION for Extension of Time to File Response/Reply to plaintiffs' Motion to Compel 374 by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 10/25/2006)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/26/06 granting 378 Motion for Extension of Time to File Response to motion to compel; Response due by 10/30/2006; Reply due by 11/6/2006.(EW) (Entered: 10/26/2006)
379 Memorandum in opposition to re 374 MOTION to Compel Reasons for Non−Selection filed by MICHAEL CHERTOFF. (Attachments: # 1 Saliunas Declaration# 2 Ex. 1, Saliunas Deposition excerpts# 3 Ex. 2, Plaintiffs' Interrogatory No. 5# 4 Ex. 3, Dec. 12, 2005 Transcript# 5 Ex. 4, Ivery Deposition excerpts# 6 Ex. 5, Tyler Deposition excerpts# 7 Ex. 6, August 1, 2006 letter)(Braswell, Marina) (Entered: 10/30/2006)
380 Unopposed MOTION for Extension of Time to File Response/Reply as to 370 MOTION to Dismiss in Part, or in the Alternative MOTION for Summary Judgment in Part MOTION for Summary Judgment in Part by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 10/30/2006)
MINUTE ORDER: It is hereby ORDERED that Defendant's Unopposed Motion 380 for Extension of Time to File a Responsive Pleading be, and hereby is, GRANTED. Response due by 11/13/06. Signed by Judge Richard W. Roberts on 11/2/06. (lcrwr3) (Entered: 11/02/2006)
381 ERRATA by MICHAEL CHERTOFF 379 Memorandum in Opposition, filed by MICHAEL CHERTOFF,. (Attachments: # 1 Corrected memorandum for Docket No. 379)(Braswell, Marina) (Entered: 11/02/2006)
382 REPLY to opposition to motion re 374 MOTION to Compel Reasons for Non−Selection filed by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 11/06/2006)
383 Unopposed MOTION for Extension of Time to File Response/Reply as to 370 MOTION to Dismiss in Part, or in the Alternative MOTION for Summary Judgment in Part MOTION for Summary Judgment in Part by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 11/13/2006)
MINUTE ORDER: It is hereby ORDERED that Defendant's Unopposed Motion 383 for Extension of Time to Reply to Plaintiffs' Opposition be, and hereby is, GRANTED. Reply due by 11/16/06. Signed by Judge Richard W. Roberts on 11/16/06. (lcrwr3) (Entered: 11/16/2006)
384 SUPPLEMENTAL MEMORANDUM to re 376 Memorandum in Opposition, filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit F)(Boardman, Deborah) (Entered: 11/16/2006)
385 MOTION for Leave to File Exhibits Under Seal by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 11/16/2006)
386 NOTICE of Withdrawal by REGINALD G. MOORE re 384 Supplemental Memorandum, 385 MOTION for Leave to File Exhibits Under Seal (Klar, Jennifer) (Entered: 11/16/2006)
387 REPLY to opposition to motion re 370 MOTION to Dismiss in Part, or in the Alternative MOTION for Summary Judgment in Part MOTION for Summary Judgment in Part filed by MICHAEL CHERTOFF. (Attachments: # 1 Karpowicz Declaration)(Braswell, Marina) (Entered: 11/16/2006)
Set Hearing: Motion Hearing on Motion to Compel [Docket No. 374] and Motion for leave to file Exhibits under Seal [Docket No. 385] set for Monday, 12/4/2006 @ 02:00 PM in Courtroom 4−2nd Floor, E.Barrett Prettyman Building before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 11/17/2006)

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11/20/2006 11/22/2006 11/22/2006
12/04/2006
12/04/2006 12/05/2006 12/14/2006 12/14/2006
12/22/2006 12/22/2006
12/22/2006 12/26/2006 12/29/2006 12/29/2006 01/03/2007

388 NOTICE of Appearance by Michelle Nicole Johnson on behalf of MICHAEL CHERTOFF (Johnson, Michelle) (Entered: 11/20/2006)
389 MOTION for Leave to File Exhibits Under Seal by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 11/22/2006)
390 MOTION for Leave to File Supplemental Memorandum to Plaintiffs' Opposition to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment of the Second Amended Complaint and Surreply to Defendant's Reply to Plaintiffs' Opposition by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Supplemental Memorandum & Surreply# 3 Exhibit F (to Supplemental Memorandum & Surreply)# 4 Exhibit G (to Supplemental Memorandum & Surreply))(Klar, Jennifer) (Entered: 11/22/2006)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Motion hearing not held on 12/4/2006. Court grants party's request to continue hearing on Plaintiff's motion to compel. Motion Hearing set for 12/14/2006 at 11:00 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Pro−typists.) (lm ) (Entered: 12/04/2006)
MINUTE ORDER denying as moot 385 Motion to File under seal, granting 389 Consent Motion to File under seal Exhibit A−E. Signed by Magistrate Judge Deborah A. Robinson on 12/4/2006. (EW) (Entered: 12/04/2006)
391 RESPONSE to Plaintiffs' Motion at Docket No. 390 filed by MICHAEL CHERTOFF. (Braswell, Marina) Modified on 12/6/2006 (jf, ). (Entered: 12/05/2006)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 12/14/07 granting 390 Motion for Leave to File.(CM) (Entered: 12/14/2006)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Motion Hearing held on 12/14/2006 re 374 MOTION to Compel Reasons for Non−Selection filed by REGINALD G. MOORE; heard and granted for reasons set forth on the record; defendant shall serve a complete response to interrogatory 4 (c) no later than 1/19/2007. (Court Reporter Pro−typist.) (tth, ) (Entered: 12/14/2006)
392 MOTION for Reconsideration on Magistrate's Oral Ruling on plaintiffs' Motion to Compel by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit Original Declaration B. Saliunas# 2 Exhibit Supp. Declaration B. Saliunas# 3 Exhibit 12.05transcript# 4 Text of Proposed Order)(Peterson, Benton) (Entered: 12/22/2006)
393 Emergency MOTION to Stay Magistrate Judge's December 14, 2006 Order pending defendant's Rule 72(a) appeal of that Order and Motion for Extension of Time to Comply with Order by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit Original Declaration B. Saliunas# 2 Exhibit Supplemental Declaration B. Saliunas# 3 Text of Proposed Order)(Peterson, Benton) (Entered: 12/22/2006)
394 Unopposed MOTION for Extension of Time to File Response/Reply to plaintiffs' supplemental memorandum and sur−reply by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 12/22/2006)
395 STIPULATION and Protective Order by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 12/26/2006)
MINUTE ORDER: It is hereby ORDERED that the Defendant's Unopposed Motion for Extension of Time to File Response/Reply 394 be, and hereby is, GRANTED. Reply due by 1/5/07. Signed by Judge Richard W. Roberts on 12/29/06. (lcrwr3) (Entered: 12/29/2006)
396 TRANSCRIPT of Proceedings held on 12/14/06 before Judge Magistrate Deborah A. Robinson. Court Reporter: Pro−Typists. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 01/03/2007)
397 Memorandum in opposition to re 392 MOTION for Reconsideration on Magistrate's Oral Ruling on plaintiffs' Motion to Compel filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Boardman, Deborah) (Entered: 01/03/2007)

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01/03/2007 01/03/2007 01/05/2007
01/08/2007 01/08/2007 01/16/2007 01/29/2007 01/29/2007 02/01/2007 02/15/2007 02/20/2007 02/21/2007
03/05/2007 03/05/2007 03/08/2007
03/08/2007

398 Memorandum in opposition to re 393 Emergency MOTION to Stay Magistrate Judge's December 14, 2006 Order pending defendant's Rule 72(a) appeal of that Order and Motion for Extension of Time to Comply with Order filed by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 01/03/2007)
399 NOTICE OF WITHDRAWAL OF APPEARANCE as to REGINALD G. MOORE. Attorney Sarah M. Berger terminated. (Boardman, Deborah) (Entered: 01/03/2007)
400 RESPONSE to Plaintiffs' Supplemental Memorandum to Plaintiffs' Opposition to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment of the Second Amended Complaint and Surreply to Defdendant's Reply to Plaintiffs' Opposition filed by MICHAEL CHERTOFF. (Attachments: # 1 Pupillo Declaration)(Braswell, Marina) (Entered: 01/05/2007)
401 REPLY to opposition to motion re 393 Emergency MOTION to Stay Magistrate Judge's December 14, 2006 Order pending defendant's Rule 72(a) appeal of that Order and Motion for Extension of Time to Comply with Order filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 01/08/2007)
402 REPLY to opposition to motion re 392 MOTION for Reconsideration on Magistrate's Oral Ruling on plaintiffs' Motion to Compel filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1, Letter dated July 21, 2006)(Johnson, Michelle) (Entered: 01/08/2007)
403 NOTICE of Appearance by Edith Margeurita Shine on behalf of MICHAEL CHERTOFF (Shine, Edith) (Entered: 01/16/2007)
404 Joint MOTION for Extension of Time to Complete Discovery by REGINALD G. MOORE. (Klar, Jennifer) (Entered: 01/29/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 1/29/2007 granting 404 Motion for Extension of Time to Complete Discovery.(CM) (Entered: 01/29/2007)
405 MOTION for Sanctions of Defendant for Failure to Comply with Court Order by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C)(Boardman, Deborah) (Entered: 02/01/2007)
406 Unopposed MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for Sanctions by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 02/15/2007)
MINUTED ORDER by Magistrate Judge Deborah A. Robinson on 2/20/07 granting 406 Unopposed Motion for Enlargement of time to reply to Plaintiffs' Motion for Sanctions. (EW) (Entered: 02/20/2007)
407 Memorandum in opposition to re 405 MOTION for Sanctions of Defendant for Failure to Comply with Court Order filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Attachment A# 3 Attachment B# 4 Attachment C# 5 Attachment D# 6 Attachment E# 7 Attachment F# 8 Attachment G# 9 Attachment H# 10 Attachment I# 11 Exhibit 2# 12 Exhibit 3# 13 Exhibit 4# 14 Exhibit 5# 15 Exhibit 6# 16 Text of Proposed Order)(nmw, ) (Entered: 02/23/2007)
408 Consent MOTION for Extension of Time to File Response/Reply as to 405 MOTION for Sanctions of Defendant for Failure to Comply with Court Order by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/05/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 3/5/07 granting 408 Motion for Extension of Time to File Response/Reply . Response due by 3/8/2007 Reply due by 3/15/2007. (EW) Modified on 3/5/2007 (EW, ). (Entered: 03/05/2007)
409 ERRATA by MICHAEL CHERTOFF 405 MOTION for Sanctions of Defendant for Failure to Comply with Court Order filed by REGINALD G. MOORE,. (Attachments: # 1 Cahill Declaration# 2 Attachment A# 3 Attachment B# 4 Attachment C# 5 Attachment D# 6 Attachment E# 7 Attachment F# 8 Attachment G# 9 Attachment H# 10 Attachment I)(Peterson, Benton) (Entered: 03/08/2007)
410 ERRATA to 409 by MICHAEL CHERTOFF. (Attachments: # 1 Saliunas Declaration)(Peterson, Benton). (Entered: 03/08/2007)

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03/08/2007 03/08/2007 03/08/2007 03/08/2007 03/16/2007 03/16/2007 03/16/2007
03/19/2007 03/19/2007 03/20/2007
03/20/2007 03/27/2007 03/28/2007 03/29/2007 03/29/2007

411 MOTION for Extension of Time to Complete Discovery of Six Weeks for Plaintiffs and that Defendant's Time to Respond to this Motion be Shortened by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order # 2 Text of Proposed Order # 3 Exhibit A# 4 Exhibit B)(Klar, Jennifer) (Entered: 03/08/2007)
412 REPLY to opposition to motion re 405 MOTION for Sanctions of Defendant for Failure to Comply with Court Order filed by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 03/08/2007)
413 NOTICE of Filing of Exhibits to Reply in Support of Motion for Sanction of Defendant for Failure to Comply with Court Order by REGINALD G. MOORE re 412 Reply to opposition to Motion (Attachments: # 1 Exhibit A# 2 Exhibit B)(Boardman, Deborah) (Entered: 03/08/2007)
417 MOTION to shorten time for defendant to respond to the motion of plaintiffs for extension of time for discovery 411 by REGINALD G. MOORE (Image of this entry is the same as document No. 411 and can be viewed by clicking on No. 411) (jeb, ) (Entered: 03/19/2007)
414 MOTION for Protective Order Limiting Testimony of Director Mark Sullivan by MICHAEL CHERTOFFMotions referred to Deborah A. Robinson. (Attachments: # 1 Exhibit A)(Braswell, Marina) (Entered: 03/16/2007)
415 MOTION to Compel Complete Responses to Defendant's Discovery Requests by MICHAEL CHERTOFFMotions referred to Deborah A. Robinson. (Attachments: # 1 Exhibit 1 (Resp to 3d Request for Docs))(Johnson, Michelle) (Entered: 03/16/2007)
416 NOTICE of Filing Additional Exhibits by MICHAEL CHERTOFF re 415 MOTION to Compel Complete Responses to Defendant's Discovery Requests (Attachments: # 1 Exhibit 2 (Resp to 2d Set of Rogs)# 2 Exhibit 3 (Resp to 4th Set of Rogs)# 3 Exhibit 4 (Resp to 4th Set of Doc Requests)# 4 Exhibit 5 (Resp to 2d Set of Admissions)# 5 Exhibit 6 (Resp to 3d Set of Admissions)# 6 Exhibit 7 (Letter dated March 1, 2007)# 7 Exhibit 8 (Letter dated March 9, 2007)# 8 Exhibit 9 (Letter dated Dec. 22, 2006)# 9 Exhibit 10 (Supp Resp to 2d Set of Interrogatories)# 10 Text of Proposed Order)(Johnson, Michelle) (Entered: 03/16/2007)
Set Hearing: Motion Hearing set for Thursday, 4/5/2007 @ 09:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 03/19/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 3/19/07 granting 417 Request that defendant's time to respond be shortened. Defendant must respond to Plaintiffs Motion by Tuesday, March 20, 2007. (EW) (Entered: 03/19/2007)
418 Memorandum in opposition to re 411 MOTION for Extension of Time to Complete Discovery of Six Weeks for Plaintiffs and that Defendant's Time to Respond to this Motion be Shortened filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1−5# 2 Exhibit 6−10# 3 Exhibit 11# 4 Exhibit 12−16# 5 Exhibit 17−21)(Braswell, Marina) (Entered: 03/20/2007)
423 MOTION for Protective Order by MICHAEL CHERTOFFMotions referred to Deborah A. Robinson. (to view document, click on link # 418 ) (jf, ) (Entered: 03/30/2007)
419 MOTION to Stay Consideration of Plaintiffs' Motion for Sanctions by MICHAEL CHERTOFFMotions referred to Deborah A. Robinson. (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 03/27/2007)
420 NOTICE by MICHAEL CHERTOFF (Attachments: # 1)(Peterson, Benton) (Entered: 03/28/2007)
Set/Reset Hearing: Motion Hearing reset for Thursday, 4/26/2007 @ 10:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 03/29/2007)
421 REPLY to opposition to motion re 411 MOTION for Extension of Time to Complete Discovery of Six Weeks for Plaintiffs filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Boardman, Deborah) Modified on 3/30/2007 (jf, ). (Entered: 03/29/2007)

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03/29/2007 03/29/2007 03/30/2007 03/30/2007 03/30/2007 03/30/2007
03/30/2007 03/30/2007
03/30/2007 04/02/2007 04/03/2007
04/04/2007 04/09/2007

422 ENTERED IN ERROR.....Memorandum in opposition to re 414 MOTION for Protective Order Limiting Testimony of Director Mark Sullivan filed by REGINALD G. MOORE. (to view document, click on link # 421 ) (jf, ) Modified on 3/30/2007 (jf, ). (Entered: 03/30/2007)
424 Memorandum in opposition to re 423 MOTION for Protective Order filed by REGINALD G. MOORE. (to view document, click on link # 421 ) (jf, ) (Entered: 03/30/2007)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 422 Memorandum in Opposition was entered in error and will be re−filed as to the correct document. (jf, ) (Entered: 03/30/2007)
425 Memorandum in opposition to re 414 MOTION for Protective Order Limiting Testimony of Director Mark Sullivan filed by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 03/30/2007)
426 Consent MOTION for Extension of Time to File Response/Reply as to 415 MOTION to Compel Complete Responses to Defendant's Discovery Requests by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 03/30/2007)
427 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jennifer W. Feinberg, :Firm− Hogan & Hartson LLP, :Address− 555 13th Street NW, Washington, DC 20009. Phone No. − (202) 637−5600. Fax No. − (202) 637−5910 by REGINALD G. MOORE (Attachments: # 1 Exhibit Application of Jennifer W. Feinberg for Admission Pro Hac Vice# 2 Text of Proposed Order)(Boardman, Deborah) (Entered: 03/30/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 3/30/2007 granting 426 Motion for Extension of Time to File Response/Reply re 415 MOTION to Compel Complete Responses to Defendant's Discovery Requests Responses due by 4/2/2007. (CM) (Entered: 03/30/2007)
428 Consent MOTION for Extension of Time to to Complete Expert Report and Enlargement of Subsequent Deadlines by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/30/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 3/30/2007 granting 428 Motion for Extension of Time to. (CM) (Entered: 03/30/2007)
429 Memorandum in opposition to re 415 MOTION to Compel Complete Responses to Defendant's Discovery Requests filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Boardman, Deborah) (Entered: 04/02/2007)
430 ORDERED that Plaintiffs Motion for Six−Week Extension of Discovery for Plaintiffs (Document No. 411) is GRANTED IN PART, and that the deadline for the completion of non−expert discovery is extended to May 8, 2007 for the sole purpose of allowing Plaintiffs limited follow−up discovery, for the reasons offered by Plaintiffs. See also Williams v. Johanns, 235 F.R.D. 116, 124−25 (D.D.C. 2006). Said follow−up discovery is limited to the requests for production of documents served by Plaintiffs on March 16, 2007; FURTHER ORDERED that in all other respects, Plaintiffs motion is DENIED WITHOUT PREJUDICE; FURTHER ORDERED, also for the reasons offered by Plaintiffs, that Defendants Motion for Protective Order (Document No. 423) is DENIED. Signed by Magistrate Judge Deborah A. Robinson on 4/3/07. (EW) (Entered: 04/03/2007)
MINUTE ORDER: It is hereby ORDERED that the Motion 427 for Leave to Appear Pro Hac Vice be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 4/4/07. (lcrwr3) (Entered: 04/04/2007)
431 REPLY to opposition to motion re 414 MOTION for Protective Order Limiting Testimony of Director Mark Sullivan filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 04/09/2007)

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04/10/2007 04/12/2007 04/17/2007
04/18/2007 04/18/2007 04/20/2007 04/25/2007 04/26/2007 04/26/2007
05/01/2007
05/01/2007 05/02/2007 05/08/2007

432 Memorandum in opposition to re 419 MOTION to Stay Consideration of Plaintiffs' Motion for Sanctions filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 04/10/2007)
433 REPLY to opposition to motion re 415 MOTION to Compel Complete Responses to Defendant's Discovery Requests filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A (4th Set of Doc Requests)# 2 Exhibit B (March 30th letter)# 3 Exhibit C (March 19th letter))(Johnson, Michelle) (Entered: 04/12/2007)
434 WITHDRAWN PURSUANT TO ORAL MOTION HEARD AND GRANTED IN HEARING HELD 6/26/08.....Appeal of Magistrate Judge Decision to District Court by MICHAEL CHERTOFF re 430 Order on Motion for Extension of Time to Complete Discovery,,,, Order on Motion for Protective Order,,, (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Braswell, Marina) Modified on 6/26/2008 (ks, ). (Entered: 04/17/2007)
MINUTE ORDER: It is hereby ORDERED that the Plaintiffs' Motion 390 for Leave to File Supplemental Memorandum and Surreply to Defendant's Motion to Dismiss be, and hereby is, GRANTED. Defendants have up to, and including, April 25, 2007 to respond. Signed by Judge Richard W. Roberts on 4/18/07. (lcrwr3) (Entered: 04/18/2007)
Set/Reset Deadlines: Supplemental Memorandum due by 4/25/2007. (lin, ) (Entered: 04/18/2007)
435 REPLY to opposition to motion re 419 MOTION to Stay Consideration of Plaintiffs' Motion for Sanctions filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 04/20/2007)
436 NOTICE of Filing by MICHAEL CHERTOFF re 400 Response to any document, (Johnson, Michelle) (Entered: 04/25/2007)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Oral argument on pending Discovery Motion held on 4/26/2007. (Court Reporter Pro−typists.) (lm ) (Entered: 04/26/2007)
Minute order: Oral arguments on pending discovery motions held; Defendant's motion to stay consideration of Plaintiffs' 419 motion for sanctions is DENIED ; Plaintiffs' 405 motion for sanctions of Defendant for failure to comply with court order is GRANTED; Defendant's 414 Motion for protective order limiting testimony of director Mark Sullivan is DENIED; Defendant's motion 415 to compel complete responses to Defendant's discovery requests is GRANTED IN PART; Plaintiff shall serve supplemental responses to interrogatories three and four of Defendant's second set of interrogatories by May 10, 2007; in all other respects, said motion is denied for reasons set forth on the record. Magistrate Judge Deborah A. Robinson on 4/26/07. (lm ) (Entered: 04/27/2007)
MINUTE ORDER: Because the parties have notified chambers that discovery will not be completed before the post−discovery status conference scheduled for May 4, 2007, that conference is hereby CANCELLED. The parties are ORDERED to file a joint written status report by May 14, 2007 indicating their latest projections on when discovery will be complete and providing any further information they wish to bring to the court's attention. Signed by Judge Richard W. Roberts on 5/1/07. (lcrwr3) (Entered: 05/01/2007)
437 RESPONSE to Defendant's Partial Objection to Magistrate Judge Robinson's April 3, 2007 Order 434 filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer). (Entered: 05/01/2007)
Set/Reset Deadlines: Status Report due by 5/14/2007. (lin, ) (Entered: 05/02/2007)
438 MEMORANDUM OPINION AND ORDER denying Motion 392 for Reconsideration and denying as moot Motion 393 to Stay Discovery. Signed by Judge Richard W. Roberts on 5/8/07. (lcrwr3) (Entered: 05/08/2007)

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05/08/2007 05/09/2007 05/09/2007
05/10/2007 05/11/2007 05/11/2007 05/11/2007 05/18/2007 05/22/2007 05/23/2007 05/24/2007 05/24/2007 05/29/2007 05/30/2007
06/01/2007

439 Unopposed MOTION for Extension of Time to Respond to "Class Plaintiffs Sixth Set of Requests for Producton of Documents by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 05/08/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 5/9/2007 granting 439 Motion for Extension of Time. (CM) (Entered: 05/09/2007)
440 MOTION for Leave to File Second Supplement to Plaintiffs' Opposition to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment [Docket No. 370] by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order # 2 Second Supplement to Plaintiffs' Opposition to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment# 3 Exhibit A to Second Supplement)(Klar, Jennifer) (Entered: 05/09/2007)
441 Appeal of Magistrate Judge Decision to District Court by MICHAEL CHERTOFF re Order on Motion for Sanctions,,,, Order on Motion for Protective Order,,,, Order on Motion to Compel,,,, Order on Motion for Miscellaneous Relief,,, (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Braswell, Marina) (Entered: 05/10/2007)
442 Joint MOTION for Extension of Time to File Joint Status Report by REGINALD G. MOOREMotions referred to Deborah A. Robinson. (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 05/11/2007)
443 REPLY in support of 441 Objection to Magistrate Judge Robinson's April 3, 2007Order filed by MICHAEL CHERTOFF. (Attachments: # 1 Ex 1# 2 Ex2# 3 Ex 3# 4 Ex 4)(Peterson, Benton) Modified on 5/14/2007 (jf, ). (Entered: 05/11/2007)
444 NOTICE of Appearance by Melissa N. Henke on behalf of REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (nmw, ) (Entered: 05/14/2007)
445 STATUS REPORT of Plaintiffs and Defendant by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 05/18/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 5/22/2007: Counsel shall prepare a proposed scheduling order on the terms discussed in their joint status report (Docket No. 445), and shall file said proposed scheduling order no later than Tuesday, May 29, 2007. (CM) (Entered: 05/22/2007)
446 TRANSCRIPT of Motions Hearing held on April 26, 2007 before Judge Magistrate Judge Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 05/23/2007)
447 RESPONSE to Defendant's Objection to Magistrate Judge Robinson's Oral Ruling on Plaintiffs' Motion for Sanctions filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9)(Boardman, Deborah) (Entered: 05/24/2007)
448 RESPONSE to Plaintiffs Second Supplement to Plaintiffs' Opposition to Defendant's Motion for Partial Dismissal filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Peterson, Benton) (Entered: 05/24/2007)
449 NOTICE by plaintiffs and defendant of filing of Proposed Scheduling Order by MICHAEL CHERTOFF re 445 Status Report (Attachments: # 1 Proposed Scheduling Order)(Peterson, Benton) (Entered: 05/29/2007)
450 SCHEDULING ORDER: Plaintiff expert report due on 9/14/07; defendant 45 days after plaintiff; Expert Discovery due by 11/30/2007; Plaintiff's motion to certify class due on 12/14/07; Defendant opposition due 1/29/08; Plaintiff's reply by due within 21 days after Defendant's opposition. Signed by Magistrate Judge Deborah A. Robinson on 5/30/07. (lm ) (Entered: 05/31/2007)
451 Unopposed MOTION for Extension of Time to File Response/Reply [to Dkt. No. 447] by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 06/01/2007)

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06/01/2007 06/01/2007 06/07/2007 06/07/2007
06/08/2007 06/12/2007
06/13/2007 06/27/2007 06/28/2007
06/28/2007 07/05/2007 07/05/2007
07/11/2007 07/13/2007 07/19/2007 07/19/2007

MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 6/1/07 granting 451 Unopposed Motion for Enlargement of Time ; Response due by 6/8/2007; Reply due by 6/15/2007. (EW) (Entered: 06/01/2007)
Set/Reset Deadlines: Responses due by 6/8/2007. Replies due by 6/15/2007. (cp, ) (Entered: 06/01/2007)
452 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition filed at Docket No. 447 by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 06/07/2007)
453 Unopposed MOTION for Extension of Time to provide remaining response to interrogatory 4(c) pursuant to the Court's May 8, 2007 Order by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 06/07/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 6/8/07 granting 442 Motion for Extension of Time. (EW) (Entered: 06/08/2007)
454 RESPONSE to 447 Plaintiffs' Opposition to Defendant's Objection to Magistrate Judge Robinson's Oral Ruling on Plaintiffs' Motion for Sanctions filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibits 1−2)(Braswell, Marina) . (Entered: 06/12/2007)
455 MOTION to Take Deposition by REGINALD G. MOORE (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Text of Proposed Order)(Henke, Melissa) (Entered: 06/13/2007)
456 STIPULATION re 455 MOTION to Take Deposition by MICHAEL CHERTOFF. (Johnson, Michelle) (Entered: 06/27/2007)
457 MOTION to Compel by REGINALD G. MOORE (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Text of Proposed Order)(Henke, Melissa) (Entered: 06/28/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 6/28/07 APPROVING Joint Stipulation [Docket No. 456] & withdrawing 455 Plaintiffs Motion for Leave to Take Deposition. (EW) (Entered: 06/28/2007)
MINUTE ORDER: It is hereby ORDERED that the Motion 452 for Extension of Time to File Response/Reply be, and hereby is, GRANTED nunc pro tunc. Signed by Judge Richard W. Roberts on 7/5/07. (lcrwr3 ) (Entered: 07/05/2007)
MINUTE ORDER: It is hereby ORDERED that the Unopposed Motion 453 for Extension of Time to Comply with Court's Order be, and hereby is, GRANTED nunc pro tunc. Signed by Judge Richard W. Roberts on 7/5/07. (lcrwr3) (Entered: 07/05/2007)
458 Unopposed MOTION for Extension of Time to File Response/Reply as to 457 MOTION to Compel by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 07/11/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 7/13/07 granting 458 Motion for Extension of Time to File Response/Reply re 457 MOTION to Compel Response due by 7/20/2007 ;Reply due by 7/27/2007. (EW) (Entered: 07/13/2007)
459 Unopposed MOTION for Enlargement of Time to File Response re 457 MOTION to Compel by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 07/19/2007)
460 MOTION to Compel by REGINALD G. MOORE (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25# 26 Exhibit 26# 27 Exhibit 27# 28 Exhibit 28# 29 Text of Proposed Order)(Henke, Melissa) (Entered: 07/19/2007)

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07/19/2007 07/19/2007 07/23/2007 07/24/2007 07/24/2007 07/24/2007
08/01/2007 08/01/2007 08/01/2007 08/01/2007 08/10/2007 08/10/2007 08/20/2007
08/21/2007 08/23/2007 08/30/2007 09/11/2007

MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 7/19/07 granting 459 Unopposed Motion for enlargement of time. (EW) (Entered: 07/19/2007)
Set/Reset Deadlines: Response to Motion to Compel (Docket No. 457)due by 7/23/2007,Reply due by 7/30/2007. (EW) (Entered: 07/19/2007)
461 Unopposed MOTION for Extension of Time to File Response/Reply as to 457 MOTION to Compel by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 07/23/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 7/24/07 granting 461 Motion for Extension of Time to File Response/Reply to 457 MOTION to Compel; Response due by 7/24/2007; Reply due by 7/31/2007. (EW) (Entered: 07/24/2007)
462 Memorandum in opposition to re 457 MOTION to Compel filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Braswell, Marina) (Entered: 07/24/2007)
463 NOTICE of Filing of Additional Exhibits by MICHAEL CHERTOFF re 462 Memorandum in Opposition (Attachments: # 1 Exhibit 7# 2 Exhibit 8# 3 Exhibit 9# 4 Exhibit 10# 5 Exhibit 11# 6 Exhibit 12# 7 Exhibit 13# 8 Exhibit 14# 9 Exhibit 15)(Braswell, Marina) (Entered: 07/24/2007)
464 MOTION for Extension of Time to File Response/Reply as to 457 MOTION to Compel by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 08/01/2007)
465 Unopposed MOTION for an Enlargement of Time to File Response re 460 MOTION to Compel by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 08/01/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 8/1/2007 granting 464 Motion for Extension of Time to File Response/Reply re 457 MOTION to Compel. Reply due by 8/10/2007. (CM) (Entered: 08/01/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 8/1/2007 granting 465 Defendant's Unopposed Motion for Enlargement of Time. Defendant's Opposition is due 8/13/2007. (CM) (Entered: 08/01/2007)
466 REPLY to opposition to motion re 457 MOTION to Compel (E−mails and Electronic Documents) filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A)(Henke, Melissa) (Entered: 08/10/2007)
467 Unopposed MOTION for an Enlargement of Time to Respond re 460 MOTION to Compel by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 08/10/2007)
468 Memorandum in opposition to re 460 MOTION to Compel filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A (Letter dated Aug. 15, 2007)# 2 Exhibit B (Letter dated Aug. 17, 2007)# 3 Exhibit C (Di Gregorio Decl.)# 4 Exhibit D (Mullen Decl.)# 5 Exhibit E (Letter dated Sept. 26, 2006)# 6 Exhibit F (Excerpts from 30(b)(6) testimony)# 7 Text of Proposed Order)(Johnson, Michelle) (Entered: 08/20/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 8/21/07 granting 467 Motion for enlargement of time. (EW) (Entered: 08/21/2007)
Set Hearing: Motion Hearing set for Thursday, 9/13/2007 @ 09:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 08/23/2007)
469 REPLY to opposition to motion re 460 MOTION to Compel filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Henke, Melissa) (Entered: 08/30/2007)
470 Consent MOTION for Extension of Time to Complete Expert Discovery by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 09/11/2007)

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09/13/2007
09/14/2007 09/14/2007 09/27/2007 09/27/2007 09/27/2007 09/27/2007 09/28/2007 09/28/2007 10/04/2007 10/04/2007 10/05/2007 10/05/2007

Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson on Plaintiffs' Motion to Compel (Document No.457). The Court GRANTS Plaintiffs' Motion to Compel for the reasons set forth on the record. It is ORDERED that the parties meet and confer to determine the reasonable period of time within which to conduct the search which is the subject of this motion. It is further ORDERED that the parties file a joint status report no later than September 27, 2007 concerning the length of time reasonably required to conduct a search for documents responsive to Plaintiffs' document requests. It is ORDERED pursuant to Rule 37 of the Federal Rules of Civil Procedure and for the reasons set forth on the record, that Plaintiffs are awarded their costs, including reasonable attorneys' fees, of moving to compel the discovery which was the subject of the motion. Sanctions are to be paid by October 12, 2007. The court denies without prejudice further requests by Plaintiffs for additional sanctions that were not specifically addressed in their Motion to Compel. The court grants the oral request of counsel to continue the hearing on Plaintiffs' Motion to Compel (Document No. 460). Both sides expressed a desire for additional time to use their best efforts to resolve the disputed discovery matters without the court's intervention. The parties shall file a joint status report no later than September 27, 2007 identifying any remaining disputed issues. If warranted, Oral Arguments on the Motion will be held 10/9/2007 at 03:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson;(Court Reporter Pro−typists.) (lm ) (Entered: 09/14/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 9/14/07 granting 470 Motion for Extension of Time. (EW) (Entered: 09/14/2007)
Set Deadlines: Plaintiffs expert report(s) due 9//28/07; Defendant's expert report(s) will be due 45 days after Plaintiffs' expert report; ExpertDiscovery will close 12/14/2007. (EW) (Entered: 09/14/2007)
471 Joint MOTION for Extension of Time to File Joint Report by MICHAEL CHERTOFF (Peterson, Benton) (Entered: 09/27/2007)
472 MOTION to Stay Enforcement of the Court's September 13, 2007 Order by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 09/27/2007)
473 MOTION for Reconsideration ( Objection to Magistrate Judge's Oral Ruling by MICHAEL CHERTOFF (Attachments: # 1 Exhibit 1 Hearing Transcript# 2 Exhibit 2 9th set of document responses# 3 Attachment A# 4 Attachment B# 5 Text of Proposed Order)(Peterson, Benton) (Entered: 09/27/2007)
474 TRANSCRIPT of Proceedings held on 9/13/07 before Judge Magistrate Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.,. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 09/28/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 9/28/07 granting 471 Joint Motion for Extension of Time to File Joint Status Report. (LMW) (Entered: 09/28/2007)
Set Deadlines: Joint Status Report due by 10/4/2007. (EW) (Entered: 10/01/2007)
475 STATUS REPORT (Joint) Regarding Plaintiffs' Motion to Compel Production of Discoverable Information by MICHAEL CHERTOFF. (Johnson, Michelle) (Entered: 10/04/2007)
476 Joint MOTION for Extension of Time to Comply with the Court's Order by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 10/04/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/5/07; No later than 10/10/07, the parties shall file the stipulation which is the subject of their 10/4/07 Joint Report.(EW) (Entered: 10/05/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/5/07 granting 476 Joint Motion for Extension of Time to Comply with the Court's Order. (LMW) (Entered: 10/05/2007)

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10/10/2007 10/11/2007 10/11/2007 10/11/2007 10/11/2007
10/11/2007 10/15/2007
10/15/2007
10/19/2007 10/22/2007 10/23/2007 10/23/2007 10/26/2007 10/29/2007 10/29/2007 10/29/2007

477 Joint MOTION for Extension of Time to File Joint Report and Stipulation by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 10/10/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/11/07 granting 477 Motion for Extension of Time to File. (EW) (Entered: 10/11/2007)
478 Memorandum in opposition to re 472 MOTION to Stay Enforcement of the Court's September 13, 2007 Order filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 10/11/2007)
479 STIPULATION (Joint) Resolving Remaining Issues in Plaintiffs' Motion to Compel Production of Discoverable Information by MICHAEL CHERTOFF. (Johnson, Michelle) (Entered: 10/11/2007)
480 Memorandum in opposition to Motion for Reconsideration/Objection to Magistrate Judge's Oral Ruling filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Text of Proposed Order)(Henke, Melissa) (Entered: 10/11/2007)
481 STATUS REPORT (Joint) RE: Electronic Search Protocol by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A# 2 Declaration Zitz# 3 Declaration Nagel)(Peterson, Benton) (Entered: 10/11/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/15/07 APPROVING 479 Joint Stipulation Resolving remaining issues in Plaintiffs' Motion to Compel Production of Discoverable Information.(Image of this entry is the same as document No. 479 and can be viewed by clicking on No. 479) (EW) (Entered: 10/15/2007)
482 ORDER that counsel for the parties again meet and confer in an effort to resolve the dispute regarding the deadline by which Defendant must complete the search which is the subject of the undersigneds September 13, 2007 Order. It is FURTHER ORDERED that by no later than October 22, 2007, counsel shall file a supplement to their joint status report and in it, address the issues discussed herein by the undersigned, and the status of their further efforts to resolve the remaining dispute regarding the deadline. Signed by Magistrate Judge Deborah A. Robinson on 10/15/07. (EW) (Entered: 10/15/2007)
483 Unopposed MOTION for Extension of Time to File Replies to plaintiffs' opposition to Motion for Reconsideration and Motion to Stay[Docket nos. 478 and 480] by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 10/19/2007)
484 Unopposed MOTION for Extension of Time to File Report to Comply with the Court's October 15, 2007 Order by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 10/22/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/23/07 granting 484 Motion for Extension of Time to File. (LMW) (Entered: 10/23/2007)
485 STATUS REPORT (Joint) by MICHAEL CHERTOFF. (Attachments: # 1 Declaration # 2 Declaration Zitz# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C)(Peterson, Benton) (Entered: 10/23/2007)
486 Unopposed MOTION for Extension of Time to File Response/Reply to Docket No. 480 by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 10/26/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/29/07 granting 486 Unopposed Motion for further brief three−day enlargement of time. (EW) (Entered: 10/29/2007)
487 REPLY to opposition to motion re 472 MOTION to Stay Enforcement of the Court's September 13, 2007 Order filed by MICHAEL CHERTOFF. (Johnson, Michelle) (Entered: 10/29/2007)
488 MOTION to Compel Defendant to Comply with His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and for Sanctions by

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11/01/2007 11/02/2007
11/02/2007
11/07/2007 11/08/2007 11/08/2007 11/09/2007 11/09/2007 11/09/2007 11/09/2007 11/09/2007 11/09/2007 11/13/2007

REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order # 2 Exhibits 1−4# 3 Exhibits 5−16# 4 Exhibits 17−27# 5 Exhibits 28−39)(Klar, Jennifer) (Entered: 10/29/2007)
489 REPLY to 480 opposition to 473 motion for reconsideration filed by MICHAEL CHERTOFF. (Braswell, Marina) . (Entered: 11/01/2007)
490 MOTION for Order Requiring Defendant to Show Cause and Request for a Hearing by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10)(Klar, Jennifer) (Entered: 11/02/2007)
491 APPLICATION for Shortened Time for Defendant to Respond to Plaintiffs' Motion for an Order Requiring Defendant to Show Cause and Request for a Hearing by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 11/02/2007)
492 RESPONSE re 491 to Docket No. 491, Plaintiffs' "Application" to Shorten Briefing Time filed by MICHAEL CHERTOFF. (Braswell, Marina) Modified link on 11/8/2007 (nmw, ). (Entered: 11/07/2007)
493 Unopposed MOTION for Extension of Time to File Response/Reply by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 11/08/2007)
494 RESPONSE re 492 Response to Document Defendant's Opposition 492 to Plaintiffs' Request to Shorten Time 491 filed by REGINALD G. MOORE. (Henke, Melissa) (Entered: 11/08/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 11/9/07 granting 483 Unopposed Motion for One−Week Enlargment of Time. (Nunc Pro Tunc 10/19/07) (EW) (Entered: 11/09/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 11/9/07 DENYING 491 Plaintiffs' Request to shorten time for defendant to respond to plaintiffs' motion for an order requiring defendant to show cause and request for a hearing. (EW) (Entered: 11/09/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 11/9/07 granting 493 Unopposed Motion for Extension of Time to File Response/Reply; Response due by 11/20/2007; Reply due by 11/28/2007. (EW) (Entered: 11/09/2007)
Set Hearing: Show Cause Hearing set for Monday, 12/10/2007 @ 10:00 AM in Courtroom 4−2nd Floor, E. Barrett Prettyman Building before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 11/09/2007)
495 Joint MOTION for Extension of Time to Expert Discovery Deadlines and Class Certification Briefing by MICHAEL CHERTOFF (Peterson, Benton) (Entered: 11/09/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 11/9/07 granting 495 Joint Motion for Extension of Time to Expert Discovery Deadlines and Class Certification Briefing. (lcdar1) (Entered: 11/09/2007)
Set/Reset Deadlines: Defendant's Expert Witness Report due by 11/27/2007, Expert Discovery due by 1/18/2008, Plaintiff's Motion for class certification due by 2/8/2008,Defendant's Response due within 45 days after the filing of plaintiffs' motion for class certification, Plaintiff's Reply due within 21 days after defendant's opposition is filed. (EW) (Entered: 11/13/2007)

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11/16/2007 11/20/2007 11/21/2007
11/26/2007 11/27/2007 11/29/2007 11/30/2007 11/30/2007 12/03/2007 12/03/2007
12/03/2007 12/03/2007 12/04/2007
12/04/2007

496 Memorandum in opposition to re 490 MOTION for Order Requiring Defendant to Show Cause and Request for a Hearing filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Braswell, Marina) (Entered: 11/16/2007)
497 Consent MOTION for Extension of Time to File Response/Reply to plaintiff's motion to compel and for sanctions (dkt. no. 488) by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 11/20/2007)
498 Memorandum in opposition to re 488 MOTION to Compel Defendant to Comply with His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and for Sanctions filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 2# 2 Exhibit 3# 3 Exhibit 4# 4 Exhibit 5# 5 Exhibit 6# 6 Exhibit 7# 7 Exhibit 8# 8 Exhibit 9# 9 Exhibit 10# 10 Errata 11# 11 Exhibit 12# 12 Exhibit 13# 13 Exhibit 14# 14 Exhibit 15(ENTERED IN ERROR)# 15 Exhibit 16# 16 Text of Proposed Order)(Peterson, Benton) Modified on 1/10/2008 (tg, ). (Entered: 11/21/2007)
499 NOTICE of filing/errata by MICHAEL CHERTOFF re 498 Memorandum in Opposition,, (Attachments: # 1 Attachment)(Peterson, Benton) (Entered: 11/26/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 11/27/07 granting 497 Consent Motion for one day enlargement of time to file response to plaintiffs' motion to compel and for sanctions. (Nunc Pro Tunc to 11/20/07). (EW) (Entered: 11/27/2007)
500 REPLY to opposition to motion re 490 MOTION for Order Requiring Defendant to Show Cause and Request for a Hearing filed by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 11/29/2007)
501 MOTION to Vacate Set/Reset Hearings for December 10, 2007 by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 11/30/2007)
502 MOTION Shorten Time to Respond re 501 MOTION to Vacate Set/Reset Hearings for December 10, 2007 by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 11/30/2007)
503 Memorandum in opposition to re 501 MOTION to Vacate Set/Reset Hearings for December 10, 2007 filed by REGINALD G. MOORE. (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 12/03/2007)
504 Consent MOTION for Extension of Time to File Response/Reply as to 488 MOTION to Compel Defendant to Comply with His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and for Sanctions by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 12/03/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 12/3/07 denying as moot 502 Motion to shorten time for plaintiffs to respond to Defendant's motion to vacate the December 10th show cause hearing; Defendant's reply due 12/4/07. (EW) (Entered: 12/03/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 12/3/07 granting 504 Motion for Extension of Time to File Reply; Reply due by 12/4/2007. (EW) (Entered: 12/03/2007)
505 REPLY to opposition to motion re 488 MOTION to Compel Defendant to Comply with His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and for Sanctions filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Henke, Melissa) (Entered: 12/04/2007)
506 Consent MOTION for Hearing re 488 MOTION to Compel Defendant to Comply with His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and for Sanctions by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 12/04/2007)

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12/04/2007 12/04/2007 12/06/2007 12/06/2007 12/07/2007 12/07/2007 12/10/2007 12/17/2007
12/17/2007 12/19/2007 12/19/2007 12/19/2007 12/19/2007 12/20/2007
12/21/2007

507 REPLY to opposition to motion re 501 MOTION to Vacate Set/Reset Hearings for December 10, 2007 filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 12/04/2007)
508 ERRATA by MICHAEL CHERTOFF 501 MOTION to Vacate Set/Reset Hearings for December 10, 2007 filed by MICHAEL CHERTOFF. (Attachments: # 1 Corrected filing)(Peterson, Benton) (Entered: 12/04/2007)
509 MEMORANDUM by MICHAEL CHERTOFF. (Attachments: # 1 Attachment A)(Braswell, Marina) (Entered: 12/06/2007)
510 NOTICE of Supporting Evidence for Show Cause Hearing by REGINALD G. MOORE (Henke, Melissa) (Entered: 12/06/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 12/17/07 denying 501 Motion to Vacate. (EW) (Entered: 12/07/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 12/7/07 granting 506 Motion for Hearing. (EW) (Entered: 12/07/2007)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Show Cause Hearing held on 12/10/2007.Show Cause Hearing continued to 12/17/2007 at 09:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr.) (rje) (Entered: 12/10/2007)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson : Show Cause Hearing held on 12/17/2007. Plaintiffs' proposed Finding of Facts are due no later than 1/9/08; Defendants Response due no later than 1/23/2008; Plaintiffs Reply due no later than 2/1/2008. Closing arguments set for 2/5/2008 at 10:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr.) (EW ) (Entered: 12/18/2007)
Set Deadlines/Hearings: Proposed Findings of Fact due by 1/9/2008, Responses due by 1/23/2008,Replies due by 2/1/2008,Motion Hearing set for Thursday, 12/20/2007 @ 09:30 AM; Closing arguments set for 2/5/2008 @ 10:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 12/18/2007)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson : Telephone Conference held on 12/19/2007. (EW) (Entered: 12/19/2007)
511 MEMORANDUM by MICHAEL CHERTOFF. (Attachments: # 1 Declaration of Rudolph Contreras# 2 Office of Legal Counsel Opinion)(Braswell, Marina) (Entered: 12/19/2007)
512 Unopposed MOTION to Designate Pages of Defendant's Exhibit 5 as Subject to the Protective Order that has Been Entered in this Case by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 12/19/2007)
513 ERRATA by MICHAEL CHERTOFF 512 Unopposed MOTION to Designate Pages of Defendant's Exhibit 5 as Subject to the Protective Order that has Been Entered in this Case filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A)(Johnson, Michelle) (Entered: 12/19/2007)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson on 12/20/2007 regarding the Parties Joint Status Report Regarding the Protocol for the Court−Ordered Electronic Search for and Production of Documents (Document No. 481) and the Supplement to the Joint Status Report Regarding the Length of Time Required to Complete the Court−Ordered Electronic Search for and Production of Documents (Document No. 485). For the reasons set forth on the record, it is ORDERED that the Defendant has until no later than March 20, 2008 to search for and produce responsive documents as so ordered on September 13, 2007. Oral argument regarding Plaintiffs Motion to Compel (Document No. 488) is continued to Friday, December 21, 2007 at 2:30 in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Lisa Hand.) (lcdar1, ) (Entered: 12/20/2007)
MINUTE ORDER Signed by Magistrate Judge Deborah A. Robinson on 12/21/07 denying 472 Defendant's Motion to Stay for the reasons offered in Plaintiffs' opposition.(lcdar1) (Entered: 12/21/2007)

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12/21/2007
01/03/2008 01/04/2008 01/07/2008 01/08/2008 01/09/2008 01/09/2008 01/09/2008 01/09/2008 01/10/2008
01/10/2008
01/11/2008 01/11/2008 01/14/2008 01/18/2008
01/22/2008

Minute Entry for Proceedings held before Magistrate Judge Deborah A. Robinson on 12/21/07 : Plaintiffs' Motion to Compel and for Sanctions [Document No. 488], heard, argued and granted for the reasons set forth on the record. All documents which are the subject of said motion shall be produced by 1/7/08. Plaintiffs are awarded their costs, including reasonable attorneys' fees, of moving to compel discovery; said costs shall be paid by no later than 2/15/08. Hearing with respect to the appropriate sanction scheduled for 9:30 AM on 1/10/08 in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter: Pro−Typists, Inc.; Ctrm. 4) (kk) (Entered: 12/26/2007)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 1/3/08 granting 512 Unopposed Motion to designate pages of Defendant's Exhibit 5 as subject to the Protective Order that has been entered in this case. (EW) (Entered: 01/03/2008)
514 NOTICE of Intent to Call Witness at January 10, 2008 Sanctions Hearing by REGINALD G. MOORE (Boardman, Deborah) (Entered: 01/04/2008)
515 NOTICE of Intent to Call Witnesses at the January 10, 2008 Hearing by MICHAEL CHERTOFF (Johnson, Michelle) (Entered: 01/07/2008)
516 NOTICE of Intent to Call Witnesses at January 10, 2008 Sanctions Hearing by REGINALD G. MOORE (Boardman, Deborah) (Entered: 01/08/2008)
517 Consent MOTION for Extension of Time to File Plaintiffs' Findings of Fact and Defendant's Response by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Boardman, Deborah) (Entered: 01/09/2008)
518 NOTICE of Errata Regarding Attachments to Kuhn Declaration by MICHAEL CHERTOFF re 498 Memorandum in Opposition,, (Attachments: # 1 Declaration of Arthur L. Kuhn (with Exhibit 1 attached))(Johnson, Michelle) (Entered: 01/09/2008)
519 Joint MOTION for Change to Scheduling Order by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 01/09/2008)
520 MOTION for Reconsideration re Motion Hearing,,, Set Deadlines/Hearings,, by MICHAEL CHERTOFF (Attachments: # 1 Exhibit A# 2 Text of Proposed Order)(Peterson, Benton) (Entered: 01/09/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re Exhibit 15 of Document Number 498 , Memorandum in Opposition, was entered in error. The document contains unredacted personal information of individuals. The Exhibit has been lodged under seal by the clerk, and counsel was instructed to redact the necessary information and refile said Exhibit. (tg, ) (Entered: 01/10/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson : Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 1/10/2008;Evidentiary Hearing continued to 1/18/2008 @ 02:30 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr.) (EW) (Entered: 01/11/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 1/11/08 granting 517 Motion for Extension of Time. (EW) (Entered: 01/11/2008)
522 TRANSCRIPT of Proceedings held on December 20, 2007 before Judge Magistrate Deborah A. Robinson. Court Reporter: Lisa M. Hand. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 01/15/2008)
521 Proposed Findings of Fact by REGINALD G. MOORE. (Boardman, Deborah) (Entered: 01/14/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 1/18/2008. Evidentiary Hearing will resume Friday, January 25, 2008 at 9:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Jacqueline Sullivan.)(lcdar1) (Entered: 01/18/2008)
Set/Reset Hearings: Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) will resume on Friday, 1/25/2008 at 9:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. The hearing will continue on Friday, 2/1/2008 at 3:00

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01/22/2008 01/22/2008 01/23/2008 01/25/2008
01/26/2008 01/28/2008
01/29/2008 01/29/2008 01/29/2008 01/30/2008 02/01/2008
02/04/2008 02/05/2008 02/05/2008 02/05/2008

PM and on Tuesday, 2/5/2008 1:30 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar1) (Entered: 01/22/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 1/22/08 granting 519 Joint Motion For Change to Scheduling Order. (lcdar1) (Entered: 01/22/2008)
Set/Reset Hearings: Show Cause Hearing Closing Argument currently scheduled for Feb. 5, 2008 at 10:30 am is VACATED. Closing Arguments will be rescheduled at a later date. (lcdar1) (Entered: 01/22/2008)
523 Memorandum in opposition to re 520 MOTION for Reconsideration re Motion Hearing,,, Set Deadlines/Hearings,, filed by REGINALD G. MOORE. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Boardman, Deborah) (Entered: 01/23/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 1/25/2008. Evidentiary Hearing will resume Friday, February 1, 2008 at 3:00 p.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr.)(lcdar1) (Entered: 01/25/2008)
524 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Proposed Findings of Fact and Conclusions of Law, Docket No. 521 by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 01/26/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 1/28/08 granting 524 Defendant's Unopposed Motion for an Enlargement of time. Defendant's Proposed Findings of Fact and Conclusions of Law in Response to Plaintiffs' Proposed Findings of Fact and Conclusions of Law (Document No. 521) shall be due no later than Tuesday, February 5, 2008. (lcdar1) (Entered: 01/28/2008)
SCHEDULING ORDER: In light of the extension of the discovery deadline to February 8, 2008, it is hereby ORDERED that the Post−Discovery Status Conference be, and hereby is, SCHEDULED for February 12, 2008 at 11:30 a.m. Signed by Judge Richard W. Roberts on 1/29/08. (lcrwr2) (Entered: 01/29/2008)
Set/Reset Hearings: Status Conference set for 2/12/2008 11:30 AM in Courtroom 9 before Judge Richard W. Roberts. (zlin, ) (Entered: 01/29/2008)
525 NOTICE OF WITHDRAWAL OF APPEARANCE as to REGINALD G. MOORE. Attorney Deborah L. Boardman terminated. (Henke, Melissa) (Entered: 01/29/2008)
526 TRANSCRIPT of Proceedings held on December 21, 2007 Motions Hearing before Judge Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (ztg, ) (Entered: 01/31/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/1/2008. Hearing will resume Tuesday, February 5, 2008 at 2:00 p.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson.(Court Reporter Catalina Kerr.)(lcdar1) (Entered: 02/01/2008)
527 REPLY to opposition to motion re 520 MOTION for Reconsideration re Motion Hearing,,, Set Deadlines/Hearings,, filed by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 02/04/2008)
528 Joint MOTION for Change to Scheduling Order by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 02/05/2008)
529 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs'Proposed Findings of Fact and Conclusions of Law by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 02/05/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/5/2008. Hearing will resume Monday, February 11, 2008 at 3:00 p.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson.(Court Reporter Catalina Kerr.)(lcdar1) (Entered: 02/05/2008)

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02/06/2008 02/06/2008
02/06/2008
02/08/2008 02/11/2008 02/11/2008
02/11/2008
02/12/2008 02/12/2008 02/16/2008
02/19/2008 02/19/2008 02/20/2008

530 Joint MOTION Memorandum re: Defendant's Assertion of Attorney Work−Product Doctrine by REGINALD G. MOORE (Henke, Melissa) (Entered: 02/06/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 2/6/08: Arguments of Defendants counsel on the record on February 5, 2008, supplemented by the further arguments set forth by Defendant in the Joint Memorandum (Document No. 530) filed on this date, treated as a motion for protective order; said motion denied for all of the reasons offered by Plaintiffs on the record on February 5, 2008 and in the Joint Memorandum (see also Banks v. Office of Senate Sergeant−at−Arms, 471 F.3d 1341, 1343 (D.C. Cir. 2006)); Defendant shall produce the entire document now being withheld by no later than 6:30 p.m. on this date. (lcdar1) (Entered: 02/06/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 2/6/08: Granting 529 Defendant's Unopposed MOTION for Extension of Time to File Response to Plaintiffs' Proposed Findings of Fact and Conclusions of Law. Defendant's proposed findings of fact and conclusions of law shall be due no later than February 8, 2008. (lcdar1) (Entered: 02/06/2008)
531 Proposed Findings of Fact by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 02/08/2008)
532 Joint MOTION to Continue Status Conference Scheduled for February 12, 2008 by REGINALD G. MOORE (Henke, Melissa) (Entered: 02/11/2008)
MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 528 to change the scheduling order be, and hereby is, GRANTED. The parties' proposed schedule is adopted in full. It is further ORDERED that the parties' motion 532 to continue the post−discovery status conference be, and hereby is, GRANTED. The post−discovery status conference currently scheduled for February 12, 2008 is CONTINUED to April 2, 2008 at 12:00 p.m. Signed by Judge Richard W. Roberts on 2/11/08. (lcrwr2) (Entered: 02/11/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/11/2008. Hearing will resume Tuesday, February 12, 2008 at 9:30 a.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson.(Court Reporter Catalina Kerr)(lcdar1) (Entered: 02/11/2008)
Set/Reset Hearings: Status Conference set for 4/2/2008 12:00 PM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 02/12/2008)
Minute Entry. Proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/12/2008. (Court Reporter Catalina Kerr)(lcdar1) (Entered: 02/12/2008)
533 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Proposed Findings of Fact and Conclusions of Law and Response to Plaintiffs' Proposed Findings of Fact and Conclusions of Law Relating to the Show Cause Hearing (D.E. 531) by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 02/16/2008)
Set Hearings: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) will resume Wednesday, February 20, 2008 at 2:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar1) (Entered: 02/19/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 2/19/08 granting 533 Consent Motion for Extension of Time to File Reply. Plaintiffs' Reply is now due no later than 2/22/2008. (lcdar1) (Entered: 02/19/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/20/2008. Hearing will resume Monday, February 25, 2008 at 9:30 a.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson. Defendant most file a notice of the witnesses he intends to call no later than Monday, February 25, 2008. (Court Reporter Catalina Kerr.)(lcdar1) Modified on 2/26/2008 (Obrien, Peggy). (Entered: 02/21/2008)

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02/22/2008 02/25/2008 02/25/2008
02/26/2008 02/28/2008 02/29/2008
03/03/2008
03/04/2008 03/04/2008 03/05/2008 03/05/2008

534 REPLY to Defendant's Proposed Findings of Fact and Conclusions of Law Relating to Show Cause Hearing (D.E. 531) filed by REGINALD G. MOORE. (Henke, Melissa) (Entered: 02/22/2008)
535 NOTICE of Potential Witnesses by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 02/25/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/25/2008. The Evidentiary Hearing will resume on Tuesday, 2/26/2008 at 2:00 PM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. The Evidentiary hearing will also continue on Wednesday, March 12, 2008 at 11:00 AM, Monday March 17, 2008 at 9:30 AM and Wednesday March 19, 2008 at 10:00 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr.) (lcdar1) Modified on 2/26/2008 (Obrien, Peggy). (Entered: 02/26/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 2/26/2008. The Evidentiary Hearing will resume on Wednesday, March 12, 2008 at 11:00 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Scott Wallace.)(lcdar1) (Entered: 02/27/2008)
536 TRANSCRIPT of Proceedings held on 2/26/08 before Judge Magistrate Deborah A. Robinson. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) Modified on 12/19/2008 (jf, ). (Modified to correct proceedings from 02/26/07 to 02/26/08) (Entered: 02/29/2008)
Set/Reset Hearings: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) will resume on Wednesday, March 5, 2008 at 9:30 AM in courtroom 4 before Magistrate Judge Deborah A. Robinson. The evidentiary hearing will also now continue on Thursday, March 6, 2008 at 10:30 AM. As previously scheduled, the evidentiary hearing will continue on Wednesday, March 12, 2008 at 11:00 AM, Monday March 17, 2008 at 9:30 AM, and Wednesday March 19, 2008 at 10:00 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar1) (Entered: 02/29/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 3/3/2008 (regarding hearing on Plaintiffs Motion for Sanctions, Document No. 488, part 2): The court has made available nearly two complete days this week for Defendant to call the witnesses listed by counsel for Defendant on its witness list (Document No. 535). However, on March 3, 2008, one of Defendants counsel informed chambers that he is unable to produce any of the witnesses (other than the one whose cross−examination will be resumed on March 5, 2008) during the previously agreed−upon schedule. It is ORDERED that no later than 2:00 p.m. tomorrow, Tuesday, March 4, 2008, Defendant shall file a status report indicating who his next witnesses will be, and if it remains the case that none of the remaining witnesses will be available on the afternoon of Wednesday, March 5, and on Thursday, March 6, what circumstances occasion their unavailability. If the Defendant does not intend to call additional witnesses, then he must inform the court and Plaintiffs counsel, so that Plaintiffs can prepare to proceed with their rebuttal case. (lcdar1) (Entered: 03/03/2008)
537 STATUS REPORT by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 03/04/2008)
538 ERRATA re 537 Status Report by MICHAEL CHERTOFF. (Attachments: # 1 Corrected status report)(Braswell, Marina) Modified on 3/5/2008 (jf, ). (Entered: 03/04/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 3/5/2008. (Court Reporter Catalina Kerr & Linda Russo.) (lcdar1) (Entered: 03/05/2008)
Set/Reset Hearings: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) will now resume on Thursday, March 6, 2008 at 2:00 PM. The Evidentiary Hearing will continue on Friday, March 7, 2008 at 9:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar1) (Entered:

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03/06/2008 03/07/2008 03/11/2008 03/11/2008 03/11/2008 03/13/2008 03/13/2008 03/14/2008
03/14/2008 03/17/2008
03/18/2008 03/19/2008

03/05/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 3/6/2008. The evidentiary hearing will resume on Friday, March 7, 2008 at 9:30AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr)(lcdar1) (Entered: 03/06/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) held on 3/7/2008. The evidentiary hearing will resume on Wednesday, March 12, 2008 at 11:00 a.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporter Catalina Kerr.) (lcdar1) (Entered: 03/07/2008)
539 Unopposed MOTION to Continue the Sanctions Hearing by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 03/11/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 3/11/08 granting 539 Motion to Continue Sanctions Hearing to March 17, 2008 @ 9:30. (EW ) (Entered: 03/11/2008)
Set/Reset Hearings: Evidentiary Hearing on Plaintiffs' Motion for Sanctions reset for 3/17/2008 09:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 03/11/2008)
540 TRANSCRIPT of Proceedings held on 2/5/08 before Judge Magistrate Deborah A. Robinson. Court Reporter: Pro−Typists, Inc.,. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 03/14/2008)
541 TRANSCRIPT of Proceedings held on 1/18/08 before Judge Magistrate Deborah A. Robinson. Court Reporter: Jacqueline Sullivan. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 03/14/2008)
542 NOTICE of Correction of Misrepresentation by Defendant to the Court by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY re Order, 479 Stipulation (Attachments: # 1 Exhibit 1−10)(Klar, Jennifer) (Entered: 03/14/2008)
543 NOTICE to the Court Regarding the Parties' Joint Stipulation at Docket No. 479 by MICHAEL CHERTOFF (Attachments: # 1 Exhibits 1−5)(Braswell, Marina) . (Entered: 03/14/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) resumed on 3/17/2008. For the reasons stated on the record, the court GRANTS IN PART Defendants oral motion for reconsideration of the courts ruling granting Plaintiffs' oral motion to strike witnesses 5 and 6 (see Document No. 535). Upon consideration of the concerns articulated by the court on the record, the parties shall meet and confer, and file a joint status report regarding Defendants determination with respect to whether Defendant will call additional witnesses by no later than March 18, 2008. The evidentiary hearing will resume on Wednesday, March 19, 2008 at 10:00 a.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson (Court Reporters Linda Russo and Jacqueline Sullivan)(lcdar1) (Entered: 03/18/2008)
544 STATUS REPORT , Joint by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 03/18/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) resumed on 3/19/2008. The parties shall meet and confer in an effort to resolve any objections to the admission of the further exhibits the Defendant wishes to offer, and the exhibits previously offered by Plaintiffs and admitted provisionally. The parties shall also meet and confer regarding a schedule for the filing (if at all) of proposed findings of fact and conclusions of law and closing arguments. The evidentiary hearing

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03/19/2008 03/20/2008 03/20/2008 03/24/2008
03/24/2008 03/25/2008 03/26/2008 03/26/2008
03/26/2008
03/28/2008 04/02/2008 04/04/2008

will resume on Friday, April 4, 2008 at 2:30 p.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (Court Reporters: Wendy Ricard & Scott Wallace) (lcdar1) (Entered: 03/19/2008)
Set Hearings: The evidentiary hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) will resume on Friday, April 4, 2008 at 2:30 p.m. in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar1) (Entered: 03/19/2008)
545 Unopposed MOTION for Extension of Time to Comply with the Court's Order by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 03/20/2008)
546 NOTICE of Filing by MICHAEL CHERTOFF (Attachments: # 1 Declaration of Barbara A. Saliunas)(Braswell, Marina) (Entered: 03/20/2008)
MINUTE ORDER: In light of the continuing evidentiary hearing before Magistrate Judge Robinson, it is hereby ORDERED that the post−discovery status conference currently scheduled for April 2, 2008 be, and hereby is, POSTPONED. It is further ORDERED that on or before April 25, 2008, the parties shall confer and submit a joint status report suggesting new potential dates for the post−discovery status conference. Signed by Judge Richard W. Roberts on 3/24/08. (lcrwr2) (Entered: 03/24/2008)
547 Joint MOTION to Amend/Correct Scheduling Order by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 03/24/2008)
548 TRANSCRIPT of Proceedings held on March 19, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Scott L. Wallace. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 03/26/2008)
Set/Reset Deadlines: Status Report due by 4/25/2008 (lin, ) (Entered: 03/26/2008)
549 ORDER granting 545 Motion for Extension of Time; Further ORDERED that the defendant shall produce any additional potentially responsive electronic documents from legacy data sources and also ORDERED to produce his privilege log for any documents withheld in their entirety on the basis of attorney−client privilege, work product privilege, or law enforcement sensitive privilege or any other privilege on or before April 3, 2008; it is further ORDERED that the defendant shall produce his privilege log that identifies the basis for withholding information that has been redacted on the electronic documents that were produced on March 20, 2008, on or before April 10, 2008.. Signed by Magistrate Judge Deborah A. Robinson on 3/26/08. (lm ) (Entered: 03/27/2008)
550 ORDER granting in part 547 Motion to Amend/Correct; The parties are permitted to conduct the deposition of Dr.James Sharf and Dr.Frank Landy outside of the expert discovery period on March 25 and 26, 2008, respectively. Defense counsel Benton Peterson is allowed an additional two hours of time to depose Plaintiff's expert, Dr. Charles Mann, outside of the expert discovery period and pursuant to the time and topic area limitation agreed upon by the parties and set forth in the joint Motion. The deposition is scheduled for April 10, 2008 at 2 p.m. at the office of Relman & Dane.. Signed by Magistrate Judge Deborah A. Robinson on 3/26/08. (lm, ) (Entered: 03/27/2008)
551 TRANSCRIPT of Damages Hearing held on March 17, 2008 before Judge Magistrate Judge Deborah A. Robinson. Court Reporter: Jacqueline Sullivan. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (jf, ) (Entered: 03/28/2008)
552 Joint MOTION to Amend/Correct Scheduling Order Relating to Class Certification Briefing by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 04/02/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Evidentiary Hearing on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) resumed on 4/4/2008. The parties shall continue to meet and confer. The evidentiary hearing will resume with a telephone status conference on Thursday, April 10, 2008 at 3:00 p.m. before Magistrate Judge Deborah A. Robinson. The parties shall jointly call chambers. (Court Reporter Catalina Kerr.) (lcdar1) (Entered: 04/10/2008)

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04/10/2008
04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/11/2008 04/11/2008

MINUTE ORDER for proceedings held before Magistrate Judge Deborah A. Robinson: Status conference concerning Plaintiffs Motion for Sanctions (Document No. 488, part 2) was held (by telephone) on 4/10/08. Upon consideration of the arguments of counsel regarding the schedule for further proceedings, it is hereby ORDERED that no later than Monday, April 14, 2008, the parties shall file the exhibit which will include a listing of the orders compelling Defendant to make discovery, denying a motion for a protective order, imposing sanctions upon Defendant pursuant to Rule 37, and affirming all such determinations. Additionally, the remaining exhibits to which there is no objection shall be filed no later than Monday, April 14, 2008. No later than April 14, 2008, Plaintiffs shall file a notice in which they state that they rest, in accordance with their representation in todays telephone status conference. It is further ORDERED that Plaintiffs shall file their proposed findings of facts two weeks thereafter, no later than Monday, April 28, 2008; Defendants response is due two weeks thereafter, no later than Monday, May 12, 2008; Plaintiffs reply is due no later than May, 22, 2008. Oral arguments regarding Plaintiffs Motion for Sanctions (Document No. 488, part 2) will be Thursday, May 29, 2008 at 9:30 in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar1) (Entered: 04/10/2008)
553 TRANSCRIPT of Proceedings held on December 10, 2007 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
554 TRANSCRIPT of Proceedings held on December 17, 2007 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
555 TRANSCRIPT of Proceedings held on January 10, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
556 TRANSCRIPT of Proceedings held on January 25, 2008 before Judge Magistrate Deboarh A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
557 TRANSCRIPT of Proceedings held on February 1, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) Modified on 4/14/2008 to correct hearing date (td, ). (Entered: 04/14/2008)
558 TRANSCRIPT of Proceedings held on February 5, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
559 TRANSCRIPT of Proceedings held on February 11, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
560 TRANSCRIPT of Proceedings held on February 12, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
561 TRANSCRIPT of Proceedings held on February 20, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
562 TRANSCRIPT of Proceedings held on February 25, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 65 of 103

04/11/2008 04/11/2008 04/14/2008 04/14/2008 04/16/2008
04/21/2008 04/25/2008
04/25/2008 04/25/2008
04/28/2008 04/29/2008 04/29/2008 05/02/2008 05/09/2008

563 TRANSCRIPT of Proceedings held on April 4, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/14/2008)
564 TRANSCRIPT of Proceedings held on April 4, 2008 before Judge Magistrate Deborah A. Robinson. Court Reporter: Catalina Kerr.; (SEALED) (td, ) (Entered: 04/14/2008)
Set/Reset Hearing: Closing Arguments previously scheduled for 2/5/08 (See Dec. 17, 2007 minute order) is now scheduled for Thursday, 6/12/2008 @ 09:30 AM before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 04/14/2008)
565 NOTICE re: Final Exhibits for and Status of Hearing on Plaintiffs' Motion for Sanctions (D.E. 488, Part 2) by REGINALD G. MOORE (Attachments: # 1 Exhibit Joint Ex. 2, # 2 Exhibit Joint Ex. 3, # 3 Exhibit Plfs' Ex. 72)(Henke, Melissa) (Entered: 04/14/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 4/16/08: Upon consideration of 565 the Joint Notice Regarding Final Exhibits, the exhibits enumerated therein are admitted. Plaintiffs rest their rebuttal case in the evidentiary hearing on Plaintiffs Motion for Sanctions (Document No. 488, part 2). (Plaintiffs previously withdrew their request to elicit rebuttal testimony from Inspector Arthur Kuhn). (lcdar1) (Entered: 04/16/2008)
566 TRANSCRIPT of Proceedings held on March 5, 2008 before Judge Magistrate Deborah A. Robinison. Court Reporter: Linda L. Russo. The public may view the document in the Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m, Monday through Friday. (td, ) (Entered: 04/22/2008)
567 STATUS REPORT (JOINT) Regarding Possible Dates for Post−Discovery Status Conference by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 04/25/2008)
MINUTE ORDER: In light of the parties' representations in their joint status report 567 , it is hereby ORDERED that the post−discovery status conference be, and hereby is, SCHEDULED for June 26, 2008 at 10:00 a.m. Signed by Judge Richard W. Roberts on 4/25/08. (lcrwr2) (Entered: 04/25/2008)
MINUTE ORDER: It is hereby ORDERED that the parties' joint motion 547 to change the scheduling order be, and hereby is, GRANTED IN PART. The deadline by which plaintiffs must file their motion for class certification is extended to May 12, 2008; defendant's opposition is due within 45 days after the filing of plaintiffs' motion; and plaintiffs' reply is due within 21 days after defendant's opposition is filed. Accordingly, the parties' joint motion 552 to change the scheduling order relating to class certification is DENIED AS MOOT. Signed by Judge Richard W. Roberts on 4/25/08. (lcrwr2) (Entered: 04/25/2008)
568 Proposed Findings of Fact by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 04/28/2008)
Set/Reset Hearings: Status Conference set for 6/26/2008 10:00 AM in Courtroom 9 before Judge Richard W. Roberts. (lin, ) (Entered: 04/29/2008)
Set/Reset Deadlines: Motions due by 5/12/2008. (lin, ) (Entered: 04/29/2008)
569 Consent MOTION to Amend/Correct Scheduling Order Relating to Class Certification Briefing by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 05/02/2008)
570 NOTICE Regarding Defendant's Additional Violation of Court Order for Consideration in Plaintiffs' Motion for Sanctions (Docket No. 488 , Part 2) by REGINALD G. MOORE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Henke, Melissa) . (Entered: 05/09/2008)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 66 of 103

05/12/2008 05/13/2008 05/19/2008
05/19/2008 05/22/2008 05/27/2008
05/27/2008 05/28/2008 05/29/2008
06/05/2008

571 STATUS REPORT Proposed Finding of Facts and Conclusions by MICHAEL CHERTOFF. (Peterson, Benton) (Entered: 05/13/2008)
572 ERRATA concerning Defendant's Proposed Findings of Fact and Conclusions of Law Regarding Plaintiffs' Motion for Sanctions by MICHAEL CHERTOFF. (Attachments: # 1 Attachment)(Peterson, Benton) (Entered: 05/13/2008)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 569 to amend the class certification briefing schedule be, and hereby is, GRANTED. Plaintiffs must file their motion for class certification by July 14, 2008; defendant must file his opposition within 60 days of the filing of plaintiffs' motion; and plaintiffs must file their reply within 21 days of the filing of defendant's opposition. Signed by Judge Richard W. Roberts on 5/19/08. (lcrwr2) (Entered: 05/19/2008)
Set/Reset Deadlines: Motion due by 7/14/2008. (lin, ) (Entered: 05/19/2008)
573 REPLY re 572 Errata Attaching Defendant's Proposed Findings of Fact and Conclusions of Law re Plaintiffs' Motion for Sanctions (D.E. 488, Part 2) filed by REGINALD G. MOORE. (Henke, Melissa) (Entered: 05/22/2008)
574 RESPONSE re 570 Notice (Other), Notice (Other) filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 5, Attachments, # 7 Exhibit 6, # 8 Exhibit 6, Attachment, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Braswell, Marina) (Entered: 05/27/2008)
NOTICE OF CORRECTED DOCKET ENTRY: re: Exhibit 5, Attachments 574 have been placed under seal and counsel is requested to electronically file a redacted version.(td, ) (Entered: 06/25/2008)
575 ERRATA by MICHAEL CHERTOFF 574 Response to Document, filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 05/28/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Closing Arguments on Plaintiffs' Motion for Sanctions (Document No. 488, part 2) heard on 5/29/2008; Motion taken under advisement. (Court Reporter Catalina Kerr.) (lcdar1) (Entered: 05/29/2008)
576 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on 03/05/08; Page Numbers: 1−111. Court Reporter/Transcriber Catalina Kerr, Telephone number 202.354.3258, Court Reporter Email Address : catykerr@msn.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

06/05/2008

Redaction Request due 6/26/2008. Redacted Transcript Deadline set for 7/7/2008. Release of Transcript Restriction set for 9/3/2008.(Kerr, Catalina) (Entered: 06/05/2008)
577 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on 05/29/08; Page Numbers: 1−102. Court Reporter/Transcriber Catalina Kerr, Telephone number 202.354.3258, Court Reporter Email Address : catykerr@msn.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 67 of 103

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

06/12/2008
06/23/2008 06/23/2008 06/25/2008 06/25/2008 06/26/2008
06/26/2008 07/03/2008

Redaction Request due 6/26/2008. Redacted Transcript Deadline set for 7/7/2008. Release of Transcript Restriction set for 9/3/2008.(Kerr, Catalina) (Entered: 06/05/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Oral arguments with respect to the show cause hearing (on December 10, 2007 and December 17, 2007) regarding Plaintiffs Motion for an Order Requiring Defendant to Show Cause and Request for a Hearing (Document No. 490) heard on 6/12/08. For the reasons set forth by the court on the record, the court DENIES Plaintiffs request for an order of civil contempt, and declines to impose any other sanction with respect to the issues presented by Document No. 490. (Court Reporter Catalina Kerr.)(lcdar1) (Entered: 06/12/2008)
578 Joint MOTION for Protective Order by MICHAEL CHERTOFF (Peterson, Benton) (Entered: 06/23/2008)
579 Unopposed MOTION to Withdraw 574 Response to Document, with respect only to attachments B & G to exhibit 5 and attachment A to exhibit 6 and to replace these attachments by MICHAEL CHERTOFF (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment G)(Braswell, Marina) (Entered: 06/23/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 6/25/08 APPROVING 578 Joint Stipulated Protective Order. (EW) (Entered: 06/25/2008)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 6/25/08 denying 579 Unopposed Motion to remove documents and replace them with redacted copies; Counsel for Defendant shall confer with the Clerk of Court regarding applicable ECF procedures.(EW) (Entered: 06/25/2008)
MINUTE ORDER: In light of the pending discovery litigation regarding plaintiffs' motion 488 for sanctions, the disposition of which could have an impact upon the resolution of defendant's motion 370 for partial dismissal or partial summary judgment, it is hereby ORDERED that defendant's motion 370 be, and hereby is, DENIED WITHOUT PREJUDICE. Accordingly, it is further ORDERED that plaintiffs' motion 440 for leave to file a second supplement to their opposition to defendant's motion 370 be, and hereby is, DENIED AS MOOT. Signed by Judge Richard W. Roberts on 6/26/08. (lcrwr2) (Entered: 06/26/2008)
Minute Entry for proceedings held before Judge Richard W. Roberts: Status Conference held on 6/26/2008, Oral motion of the defendant to withdraw its appeal (Document # 434)of Magistrate Judge Decision to District Court re Order # 430 granted; (Status Report due by 7/28/2008). (Court Reporter Scott Wallace.) (lin, ) (Entered: 06/26/2008)
580 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on 06/12/2008; Page Numbers: 1−79. Court Reporter/Transcriber Catalina Kerr, Telephone number 202.354.3258, Court Reporter Email Address : catykerr@msn.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 68 of 103

07/05/2008 07/10/2008
07/10/2008 07/28/2008 07/28/2008 07/30/2008 07/31/2008 08/04/2008
08/11/2008
09/09/2008
09/12/2008 09/16/2008 09/17/2008

Redaction Request due 7/24/2008. Redacted Transcript Deadline set for 8/4/2008. Release of Transcript Restriction set for 10/1/2008.(Kerr, Catalina) (Entered: 07/03/2008)
581 Consent MOTION for Extension of Time to File Motion for Class Certification by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 07/05/2008)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 581 for an extension of time until August 4, 2008 to file their motion for class certification be, and hereby is, GRANTED. Defendant's opposition will be due 60 days after the filing of plaintiffs' motion for class certification, and plaintiffs' reply will be due within 21 days of the filing of defendant's opposition. Signed by Judge Richard W. Roberts on 7/10/08. (lcrwr2) (Entered: 07/10/2008)
Set/Reset Deadlines: Motions due by 8/4/2008. (lin, ) (Entered: 07/10/2008)
582 STATUS REPORT of parties in accordance with the Court's June 26, 2008 Order by REGINALD G. MOORE. (Henke, Melissa) (Entered: 07/28/2008)
MINUTE ORDER: In light of the parties' joint status report 582 , it is hereby ORDERED that on or before September 11, 2008, the parties file a supplemental joint status report and proposed order. Signed by Judge Richard W. Roberts on 7/28/08. (lcrwr2) (Entered: 07/28/2008)
583 Unopposed MOTION for Leave to File Excess Pages in regard to Memorandum in Support of Plaintiffs' Motion for Class Certification by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 07/30/2008)
584 NOTICE of Appearance by Harry B. Roback on behalf of MICHAEL CHERTOFF (Roback, Harry) (Entered: 07/31/2008)
585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof by REGINALD G. MOORE (Attachments: # 1 Notice re: Bulky Exhibits Attachment, # 2 Notice of Filing of Sealed Material (Ex. 52), # 3 Notice re: Filing of Sealed Material (Ex. 96), # 4 Notice re: Filing of Sealed Material (Ex. 97), # 5 Notice re: Filing of Sealed Material (Ex. 98), # 6 Notice re: Filing of Sealed Material (Ex. 101), # 7 Text of Proposed Order)(Henke, Melissa) (Entered: 08/04/2008)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' unopposed motion 583 for leave to file a brief in support of their motion for class certification exceeding the page limit under Local Civil Rule 7(e) be, and hereby is, GRANTED. It is further ORDERED that defendant may file a memorandum in opposition to plaintiffs' class certification motion 585 that does not exceed 85 pages. Signed by Judge Richard W. Roberts on 8/11/08. (lcrwr2) (Entered: 08/11/2008)
586 STATUS REPORT (Joint Supplemental) of parties in accordance with the Court's June 26, 2008 Order and July 28, 2008 Minute Order by REGINALD G. MOORE, MICHAEL CHERTOFF, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 09/09/2008)
587 MEMORANDUM OPINION AND ORDER OVERRULING defendant's objection 520 to the magistrate judge's 12/26/07 Order. Signed by Judge Richard W. Roberts on 9/12/08. (lcrwr2) (Entered: 09/12/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Status Conference (by telephone) held on 9/16/2008; Counsel for all parties participated: Counsel directed to meet and confer regarding September 12, 2008 Order. Further status conference (by telephone) will be conducted on September 17, 2008 at 3:00 p.m. The parties are to jointly call chambers. (lcdar1) (Entered: 09/17/2008)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Status Conference (by telephone) held on 9/17/2008; Counsel for all parties participated. Counsel report that they were unable to narrow the areas of disagreement

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 69 of 103

09/24/2008 09/25/2008
09/30/2008

with respect to the September 16, 2008 Minute Entry. (lcdar1) (Entered: 09/17/2008)
588 Consent MOTION for Extension of Time to File Opposition to Plaintiffs' Motion for Class Certification by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 09/24/2008)
MINUTE ORDER: In light of the parties' supplemental joint status report 586 , it is hereby ORDERED that parties file a supplemental joint status report by the earlier of the following two dates: 30 days from the date of Magistrate Judge Robinson's ruling on Plaintiffs' Motion for Sanctions (Docket No. 488, Part 2); or 45 days from the date of the parties' supplemental joint status report 586 . The status report must include a proposed order. Signed by Judge Richard W. Roberts on 9/24/2008. (lcrwr2) (Entered: 09/25/2008)
589 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on March 17, 2008; Page Numbers: 1−99. Date of Issuance:September 30, 2008. Court Reporter/Transcriber Linda L. Russo, Telephone number 202 354−3244, Court Reporter Email Address : lindalrusso@gmail.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

09/30/2008

Redaction Request due 10/21/2008. Redacted Transcript Deadline set for 10/31/2008. Release of Transcript Restriction set for 12/29/2008.(Russo, Linda) (Entered: 09/30/2008)
590 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on 03/06/2008; Page Numbers: 1−51. Date of Issuance:09/20/2008. Court Reporter/Transcriber Catalina Kerr, Telephone number 202.354.3258, Court Reporter Email Address : catykerr@msn.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

09/30/2008

Redaction Request due 10/21/2008. Redacted Transcript Deadline set for 10/31/2008. Release of Transcript Restriction set for 12/29/2008.(Kerr, Catalina) (Entered: 09/30/2008)
591 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on 03/07/2008; Page Numbers: 1−61. Date of Issuance:09/30/2008. Court Reporter/Transcriber Catalina Kerr, Telephone number 202.354.3258, Court Reporter Email Address : catykerr@msn.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 70 of 103

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

10/03/2008

Redaction Request due 10/21/2008. Redacted Transcript Deadline set for 10/31/2008. Release of Transcript Restriction set for 12/29/2008.(Kerr, Catalina) (Entered: 09/30/2008)
592 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson of proceedings held on March 19, 2008; Page Numbers: 1−81. Court Reporter/Transcriber Wendy Ricard, Telephone number 202−354−3111, Court Reporter Email Address : Wacricard@aol.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

10/06/2008
10/08/2008 10/23/2008 10/24/2008
10/28/2008 10/30/2008

Redaction Request due 10/24/2008. Redacted Transcript Deadline set for 11/3/2008. Release of Transcript Restriction set for 1/2/2009.(Ricard, Wendy) (Entered: 10/03/2008)
MINUTE ORDER: It is hereby ORDERED that defendant's consent motion 588 for an extension of time to file his opposition to plaintiff's motion for class certification be, and hereby is, GRANTED. Defendant's opposition is due by October 30, 2008. Plaintiffs' reply in support of their motion for class certification is due by December 8, 2008.Signed by Judge Richard W. Roberts on 10/6/2008.(lcrwr2) (Entered: 10/06/2008)
Set/Reset Deadlines: Opposition to motion for class certification due by 10/30/2008; Reply due by 12/8/2008. (mpt, ) (Entered: 10/08/2008)
593 STATUS REPORT Second Supplemental Joint Status Report re: Docket No. 488, Part 2 by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/23/2008)
MINUTE ORDER: In light of the parties' second supplemental joint status report 593 , it is hereby ORDERED that parties file a third supplemental joint status report by the earlier of the following two dates: 30 days from the date of Magistrate Judge Robinson's ruling on Plaintiffs' Motion for Sanctions (Docket No. 488, Part 2); or 45 days from the date of the parties' second supplemental joint status report 593 . The status report must include a proposed order.Signed by Judge Richard W. Roberts on 10/23/08. (lcrwr2) (Entered: 10/24/2008)
594 Unopposed MOTION for Extension of Time to File Response/Reply as to 585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 10/28/2008)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 594 for an extension of time to file an opposition to plaintiffs' motion for class certification be, and hereby is, GRANTED. Defendant's opposition is due by 11/13/08. Plaintiffs' reply is due by 1/9/09. Signed by Judge Richard W. Roberts on 10/29/08. (lcrwr2) (Entered: 10/30/2008)

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10/31/2008 11/13/2008 11/19/2008 11/20/2008 11/21/2008 11/25/2008 11/26/2008
12/08/2008
12/09/2008
12/17/2008 12/17/2008 12/19/2008 01/08/2009 01/08/2009

Set/Reset Deadlines: Responses due by 11/13/2008 Replies due by 1/9/2009. (zlin, ) (Entered: 10/31/2008)
595 Unopposed MOTION for Extension of Time to File Response/Reply as to 585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 11/13/2008)
596 MOTION for Extension of Time to File Response/Reply as to 585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 11/19/2008)
597 Memorandum in opposition to re 585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 11/20/2008)
598 NOTICE Regarding Bulky Exhibits re 597 Memorandum in opposition to re 585 MOTION to Certify Classby MICHAEL CHERTOFF (Attachments: # 1 Exhibit Defendant's Exhibit List For Opposition to Plaintiffs' Class Certification Motion)(Roback, Harry) . (Entered: 11/21/2008)
599 ERRATA by MICHAEL CHERTOFF 597 Memorandum in Opposition filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 18 (Eldredge Declaration))(Johnson, Michelle) (Entered: 11/25/2008)
MINUTE ORDER: It is hereby ORDERED that defendant's unopposed motion 595 for an extension of time until November 19, 2008 to file defendant's opposition to plaintiff's motion for class certification be, and hereby is, GRANTED NUNC PRO TUNC. Signed by Judge Richard W. Roberts on 11/26/08. (lcrwr2) (Entered: 11/26/2008)
600 STATUS REPORT (Joint, Third Supplemental) by REGINALD G. MOORE, MICHAEL CHERTOFF, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 12/08/2008)
MINUTE ORDER: In light of the parties' third supplemental joint status report, it is hereby ORDERED that parties file a fourth supplemental joint status report and proposed order by the earlier of the following two dates: 30 days from the date of Magistrate Judge Robinson's ruling on Plaintiffs' Motion for Sanctions (Docket No. 488, Part 2); or 45 days from the date of the parties' third supplemental joint status report 600 .Signed by Judge Richard W. Roberts on 12/9/08. (lcrwr2) (Entered: 12/09/2008)
601 MEMORANDUM OPINION Signed by Magistrate Judge Deborah A. Robinson on 12/17/08 GRANTING 488 Plaintiffs' Motion for Sanctions (Document No. 488, Part 2). (lcdar1) (Entered: 12/17/2008)
602 ORDER Signed by Magistrate Judge Deborah A. Robinson on 12/17/08: For the reasons set forth in the Memorandum Opinion filed on this date, it is, ORDERED that Plaintiffs Motion for Sanctions (Document No. 488, Part 2) is GRANTED and sanctions are imposed. (lcdar1) (Entered: 12/17/2008)
603 MOTION for Extension of Time to File Objections to the Magistrate Judge's Memorandum Opinion by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 12/19/2008)
604 Unopposed MOTION for Leave to File Excess Pages for Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Class Certification by REGINALD G. MOORE (Attachments: # 1 Text of Proposed Order)(Henke, Melissa) (Entered: 01/08/2009)
605 MEMORANDUM re 602 Order, 601 Order on Motion to Compel by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 13, # 13 Exhibit 12, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit A, # 20 Exhibit B, # 21 Exhibit C, # 22 Exhibit D, # 23 Exhibit E, # 24 Exhibit F, # 25 Exhibit G)(Braswell,

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01/09/2009
01/15/2009 01/16/2009 01/22/2009
01/27/2009 01/27/2009 01/30/2009 01/30/2009
02/04/2009 02/05/2009 02/11/2009 02/11/2009 03/03/2009

Marina) (Entered: 01/08/2009)
606 REPLY to opposition to motion re 585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Klar, Jennifer) (Entered: 01/09/2009)
607 NOTICE of Appearance by Thomas John Widor on behalf of all plaintiffs (Widor, Thomas) (Entered: 01/15/2009)
608 STATUS REPORT , Joint, by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 01/16/2009)
609 Consent MOTION for Extension of Time to File Response/Reply of Three Business Days to Defendant's Objection to the Magistrate Judge's Sanctions Ruling (Docket No. 605) by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 01/22/2009)
610 NOTICE of Appearance by Megan Moran−Gates on behalf of REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Moran−Gates, Megan) (Entered: 01/27/2009)
611 RESPONSE re 605 Memorandum,, (Plaintiffs' Opposition to Defendant's Objections to the Magistrate Judge's Sanctions Ruling) filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 01/27/2009)
612 NOTICE to the Court by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 01/30/2009)
MINUTE ORDER: It is hereby ORDERED that defendant's motion 596 for a one−day extension of time to file his opposition to plaintiffs' motion for class certification; defendant's motion 603 for an extension of time to file objections; plaintiffs' unopposed motion 604 for leave to file reply memorandum in excess of page limit; and plaintiffs' consent motion 609 for an extension of time to file an opposition to defendant's objection be, and hereby are, GRANTED NUNC PRO TUNC.Signed by Judge Richard W. Roberts on 1/28/09. (lcrwr2) (Entered: 01/30/2009)
613 RESPONSE re 612 Notice (Other) filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 02/04/2009)
614 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendant's Objections to the Magistrate Judge's December 17, 2008 ruling by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 02/05/2009)
MINUTE ORDER: It is hereby ORDERED that the defendant's unopposed motion 614 for an extension of time until February 11, 2009 to file his reply in support of his objections be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 2/11/09. (lcrwr2) (Entered: 02/11/2009)
615 REPLY to opposition to objections filed at Docket No. 605 filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1)(Braswell, Marina) (Entered: 02/11/2009)
616 NOTICE OF WITHDRAWAL OF APPEARANCE as to MICHAEL CHERTOFF. Attorney Michelle Nicole Johnson terminated. (Johnson, Michelle) (Entered: 03/03/2009)

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03/13/2009 03/16/2009
03/16/2009
03/16/2009 03/16/2009 03/17/2009 03/17/2009 03/18/2009 03/27/2009 03/27/2009
03/30/2009 03/30/2009 03/31/2009

617 MOTION for Leave to File to File a Surreply by MICHAEL CHERTOFF (Attachments: # 1 Exhibit A/Surreply, # 2 Surreply Exh. 1, # 3 surreply Ex. 2, # 4 surreply ex. 3, # 5 surreply ex. 4)(Braswell, Marina) (Filed Under Seal pursuant to order of 3/31/09) (jf, ). (Entered: 03/13/2009)
618 MOTION to Strike 617 MOTION for Leave to File to File a Surreply by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Klar, Jennifer) (Entered: 03/16/2009)
619 MOTION to Expedite Briefing on Docket No. 618 and to Suspend Briefing on Docket No. 617 by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/16/2009)
620 Unopposed MOTION to Amend/Correct 617 MOTION for Leave to File to File a Surreply to Seal Exhibit 2 and Page 9 of Defendant's Memorandum by MICHAEL CHERTOFF (Braswell, Marina) Modified on 3/17/2009 (jf, ). (FILED UNDER SEAL) . (Entered: 03/16/2009)
621 Unopposed MOTION to Amend/Correct 617 MOTION for Leave to File to File a Surreply to Seal Exhibit 2 and Page 9 of Defendant's Memorandum by MICHAEL CHERTOFF (Braswell, Marina) Modified on 3/17/2009 (jf, ). (Entered: 03/16/2009)
NOTICE OF CORRECTED DOCKET ENTRY: Document Nos. re 620 621 Unopposed MOTION to Amend/Correct 617 MOTION for Leave to File to File a Surreply to Seal Exhibit 2 and Page 9 of Defendant's Memorandum, was entered in error and counsel was instructed to refile said pleading. (jf) (Entered: 03/17/2009)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 621 Unopposed MOTION to Amend/Correct 617 MOTION for Leave to File to File a Surreply to Seal Exhibit 2 and Page 9 of Defendant's Memorandum has been reinstated.(jf, ) (Entered: 03/17/2009)
622 Unopposed MOTION for Order Sealing Docket No. 620 by MICHAEL CHERTOFF (Braswell, Marina) (Entered: 03/18/2009)
MINUTE ORDER: It is hereby ORDERED that the defendant's unopposed motion 622 to seal filing at docket entry 620 be, and hereby is, GRANTED as unopposed. Signed by Judge Richard W. Roberts on 3/26/09. (lcrwr2) (Entered: 03/27/2009)
623 Consent MOTION for Extension of Time to File Response/Reply as to 617 MOTION for Leave to File to File a Surreply by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/27/2009)
624 Memorandum in opposition to re 619 MOTION to Expedite Briefing on Docket No. 618 and to Suspend Briefing on Docket No. 617 filed by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 03/30/2009)
625 Memorandum in opposition to re 618 MOTION to Strike 617 MOTION for Leave to File to File a Surreply MOTION to Strike 617 MOTION for Leave to File to File a Surreply filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A, # 2 Exhibit Ex. B, # 3 Text of Proposed Order)(Peterson, Benton) (Entered: 03/30/2009)
MINUTE ORDER: The defendant has moved without opposition to seal portions of its filing at docket entry 617 . It is hereby ORDERED that the motion 621 be, and hereby is, GRANTED IN PART. The Clerk shall seal the entirety of docket entry 617 , and the defendant shall file by April 3, 2009 a redacted version of the filing at docket entry 617 .Signed by Judge Richard W. Roberts on 3/31/09. (lcrwr2) (Entered: 03/31/2009)

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03/31/2009 04/03/2009 04/03/2009 04/06/2009 04/09/2009 04/10/2009 04/28/2009
07/13/2009 07/14/2009 07/27/2009
08/05/2009

626 Memorandum in opposition to re 617 MOTION for Leave to File to File a Surreply filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 03/31/2009)
627 ENTERED IN ERROR.....MOTION for Leave to File a Surreply, Redacted Copy, by MICHAEL CHERTOFF (Attachments: # 1 Exhibit A/Surreply, redacted, # 2 Surreply Exh. 1, # 3 Surreply Exh. 2, redacted, # 4 Surreply Exh. 3, # 5 Surreply Exh. 4)(Braswell, Marina) Modified on 4/6/2009 (jf, ). (Entered: 04/03/2009)
628 MOTION for Leave to File a Surreply, Redacted Copy, filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit A/Surreply, redacted, # 2 Surreply Exh. 1, # 3 Surreply Exh. 2, redacted, # 4 Surreply Exh. 3, # 5 Surreply Exh. 4)(Braswell, Marina) Modified on 4/6/2009 (jf, ). (Entered: 04/03/2009)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 627 MOTION for Leave to File a Surreply, Redacted Copy, was entered in error and refiled as 628 with corrected pleadings. (jf, ) (Entered: 04/06/2009)
629 REPLY in suppport of re 618 MOTION to Strike 617 MOTION for Leave to File to File a Surreply filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Exhibit 1)(Klar, Jennifer) Modified to add correct linkage on 4/13/2009 (jf, ). (Entered: 04/09/2009)
630 REPLY to opposition to motion re 617 MOTION for Leave to File to File a Surreply filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 04/10/2009)
631 ERRATA as to Docket No. 605 by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit 1, corrected, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, corrected, # 8 Exhibit 8, # 9 Exhibit 9, corrected, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, corrected, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, new, # 20 Exhibit A, # 21 Exhibit B, # 22 Exhibit C, # 23 Exhibit D, # 24 Exhibit E, # 25 Exhibit F, # 26 Exhibit G, # 27 objections memorandum, corrected)(Braswell, Marina) (Entered: 04/28/2009)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' motion to expedite briefing 619 be and hereby is, DENIED as moot. It is further ORDERED that the plaintiffs' consent motion for an extension of time to file an opposition to the defendant's motion for leave to file a surreply 623 be, and hereby is, GRANTED nunc pro tunc. Signed by Judge Richard W. Roberts on 7/10/09. (lcrwr2) (Entered: 07/13/2009)
632 NOTICE OF WITHDRAWAL OF APPEARANCE as to REGINALD G. MOORE. Attorney Melissa N. Henke terminated. (Henke, Melissa) (Entered: 07/14/2009)
633 MOTION in Limine To Exclude The Testimony Of Charles Mann Offered In Support Of Plaintiffs' Motion For Class Certification by MICHAEL CHERTOFF (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibit 1 (Malowane Decl.), # 3 Exhibit Exhibit 2 (Mann Decl. 5/31/00), # 4 Exhibit Exhibit 3 (Mann Decl. 7/18/05), # 5 Exhibit Exhibit 4 (White Report, 9/30/05), # 6 Exhibit Exhibit 5 (Mann Decl. 12/6/05), # 7 Exhibit Exhibit 6 (Mann Decl., 1/25/06), # 8 Exhibit Exhibit 7 (Mann Decl., 2/9/06), # 9 Exhibit Exhibit 8 (White Report, 3/23/06), # 10 Exhibit Exhibit 9 (Mann Decl., 9/28/07), # 11 Exhibit Exhibit 10 (White Decl., 12/21/07), # 12 Exhibit Exhibit 11 (Supp. Decl. Hoare, 7/24/09), # 13 Exhibit Exhibit 12 (Mann Dep. Tr.))(Roback, Harry) (Entered: 07/27/2009)
634 Consent MOTION for Extension of Time to File Response/Reply as to 633 MOTION in Limine To Exclude The Testimony Of Charles Mann Offered In Support Of Plaintiffs' Motion For Class Certification by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/05/2009)

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08/06/2009 08/07/2009 08/07/2009 08/21/2009 08/24/2009
08/25/2009
08/31/2009
09/03/2009 09/09/2009 09/09/2009 09/10/2009 09/10/2009 09/21/2009 09/21/2009

MINUTE ORDER: It is hereby ORDERED that the plaintiffs' consent motion 634 for an extension of time until August 26, 2009 to respond to the defendant's motion 633 to exclude the testimony of Charles R. Mann be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 8/5/09. (lcrwr2, ) (Entered: 08/06/2009)
Set/Reset Deadlines: Plaintiff's Response due by 8/26/2009. (hs) (Entered: 08/07/2009)
635 MEMORANDUM OPINION & ORDER overruling in part and sustaining in part the defendant's objections 441 and 473 to the magistrate judge's discovery rulings. Signed by Judge Richard W. Roberts on 8/7/09. (lcrwr2) (Entered: 08/07/2009)
636 MOTION for Reconsideration re 635 Memorandum & Opinion by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/21/2009)
637 Memorandum in opposition to re 636 MOTION for Reconsideration re 635 Memorandum & Opinion filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/24/2009)
638 Consent MOTION for Extension of Time to File Response/Reply as to 633 MOTION in Limine To Exclude The Testimony Of Charles Mann Offered In Support Of Plaintiffs' Motion For Class Certification by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/25/2009)
639 Memorandum in opposition to re 633 MOTION in Limine To Exclude The Testimony Of Charles Mann Offered In Support Of Plaintiffs' Motion For Class Certification and Plaintiffs' Motion to Strike filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1 Continued, # 3 Exhibit 2, # 4 Exhibit 2 Continued, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8)(Klar, Jennifer) (Entered: 08/31/2009)
640 Consent MOTION for Extension of Time to File Response/Reply by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 09/03/2009)
MINUTE ORDER: It is hereby ORDERED that the defendant's consent motion 640 for an extension of time until 9/9/09 to reply to the plaintiffs' opposition to defendant's motion for reconsideration be, and hereby is, GRANTED.Signed by Judge Richard W. Roberts on 9/9/09. (lcrwr2, ) (Entered: 09/09/2009)
641 REPLY to opposition to motion re 636 MOTION for Reconsideration re 635 Memorandum & Opinion filed by MICHAEL CHERTOFF. (Attachments: # 1 Declaration Saliunas)(Peterson, Benton) (Entered: 09/09/2009)
Set/Reset Deadlines: Defendant's Reply due by 9/9/2009. (hs) (Entered: 09/10/2009)
642 Consent MOTION for Extension of Time to File Response/Reply in Support of Defendant's Motion to Strike Testimony of Charles R. Mann by MICHAEL CHERTOFF (Roback, Harry) (Entered: 09/10/2009)
MINUTE ORDER: It it hereby ORDERED that the defendant's unopposed motion 642 for an extension of time until October 2, 2009 to reply to the plaintiff's opposition brief, be and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 9/21/09. (lcrwr2) (Entered: 09/21/2009)
MINUTE ORDER: It is hereby ORDERED that the plaintiff's motion 638 for a three−day extension of time until August 31, 2009 to file an opposition to the defendant's motion to exclude the testimony of Charles R. Mann, be and hereby is, GRANTED NUNC PRO TUNC. Signed by Judge Richard W. Roberts on 9/21/09. (lcrwr2) (Entered: 09/21/2009)

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09/21/2009 10/01/2009 10/05/2009 10/08/2009 10/08/2009 10/14/2009 10/15/2009 10/16/2009
10/21/2009 10/29/2009 11/02/2009 12/10/2009
12/18/2009 01/18/2010
03/24/2010
05/06/2010

Set Deadlines: Defendant's Reply due by 10/2/2009. (hs) (Entered: 09/21/2009)
643 Consent MOTION for Extension of Time to File Response/Reply by MICHAEL CHERTOFF (Roback, Harry) (Entered: 10/01/2009)
644 Unopposed MOTION for Leave to File Redacted Supplemental Stewart Declaration and Seal Unredacted Supplemental Stewart Declaration by MICHAEL CHERTOFF (Attachments: # 1 Redacted Supplemental Stewart Declaration)(Braswell, Marina) (Entered: 10/05/2009)
MINUTE ORDER: It is hereby ORDERED that the defendant's unopposed motion 643 for an extension of time until October 19, 2009 to reply to the plaintiff's opposition brief be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 10/8/09. (lcrwr2) (Entered: 10/08/2009)
Set/Reset Deadlines: Defendant's Reply due by 10/19/2009. (hs ) (Entered: 10/08/2009)
645 ORDER ;granting 644 Motion for Leave to File redacted supplemental Declaration, Signed by Judge Richard W. Roberts on 10/9/09. (hs) (Entered: 10/14/2009)
646 MOTION for Extension of Time to File Reply in Support of Daubert Motion by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 10/15/2009)
647 Memorandum in opposition to re 646 MOTION for Extension of Time to File Reply in Support of Daubert Motion filed by REGINALD G. MOORE, ANDREW E. HARRIS, JR, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, JOHN E. TURNER, C. YVETTE SUMMEROUR, LEROY HENDRIX, CHERYL L. TYLER, LUTHER K. IVERY. (Klar, Jennifer) (Entered: 10/16/2009)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 10/21/09granting 646 Motion for Extension of Time to File Reply in Support of Daubert Motion. (lcdar3) (Entered: 10/21/2009)
648 MOTION for Extension of Time to File Response/Reply In Support Of Defendant's Daubert Motion (One Business Day) by MICHAEL CHERTOFF (Roback, Harry) (Entered: 10/29/2009)
649 REPLY to opposition to motion re 633 MOTION in Limine To Exclude The Testimony Of Charles Mann Offered In Support Of Plaintiffs' Motion For Class Certification filed by MICHAEL CHERTOFF. (Roback, Harry) (Entered: 11/02/2009)
650 MOTION for Hearing re 585 MOTION to Certify Class and Memorandum of Points and Authorities in Support Thereof (Renewed Request for Oral Argument) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 12/10/2009)
651 RESPONSE to Plaintiff's 650 Renewed Request for Oral Argument filed by MICHAEL CHERTOFF. (Braswell, Marina) Modified on 12/22/2009 to add linkage (jf, ). (Entered: 12/18/2009)
652 MOTION for Order Setting a Status Conference by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 01/18/2010)
653 NOTICE OF WITHDRAWAL OF APPEARANCE as to ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. Attorney Jennifer Wigman Feinberg terminated. (Widor, Thomas) (Entered: 03/24/2010)
654 NOTICE of Firm Name Change by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER,

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 77 of 103

07/13/2010
07/13/2010 07/15/2010 07/16/2010
07/19/2010 07/22/2010 08/04/2010 08/04/2010 08/16/2010 09/29/2010
09/29/2010 09/30/2010 10/13/2010
10/18/2010

CHERYL L. TYLER (Widor, Thomas) (Entered: 05/06/2010)
MINUTE ORDER: It is hereby ORDERED that defendant's motion 628 for leave to file a sur−reply in further opposition to plaintiffs' motion for class certification be, and hereby is, GRANTED. It is further ORDERED that plaintiffs' motion 618 to strike the sur−reply be, and hereby is, DENIED. It is further ORDERED that defendant's motion 617 for leave to file a sur−reply be, and hereby is, DENIED as moot. Signed by Judge Richard W. Roberts on 7/13/10.(lcrwr2) (Entered: 07/13/2010)
655 SURREPLY to re 585 MOTION to Certify Class filed by JANET NAPOLITANO. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(jf, ) (Entered: 07/14/2010)
656 MEMORANDUM OPINION AND ORDER overruling the defendant's objections 605 to the magistrate judge's imposition of sanctions. Signed by Judge Richard W. Roberts on 7/15/10. (lcrwr2) (Entered: 07/15/2010)
657 NOTICE of Appearance by Dana C. Boehm on behalf of ARTHUR DEREK EVANS, ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, ROBERT J. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, DONALD W. TUCKER, JOHN E. TURNER, CHERYL L. TYLER, JENELL G. WALKER−CLARK (Boehm, Dana) (Entered: 07/16/2010)
658 NOTICE OF SUPPLEMENTAL AUTHORITY re 633 Motion for class certification by JANET NAPOLITANO (Roback, Harry) . (Entered: 07/19/2010)
MINUTE ORDER: It is hereby ORDERED that defendant's motion 648 for an extension of time to file a reply in support of defendant's Daubert motion be, and hereby is, GRANTED NUNC PRO TUNC. Signed by Judge Richard W. Roberts on 7/22/10. (lcrwr2) (Entered: 07/22/2010)
659 MEMORANDUM OPINION AND ORDER denying without prejudice plaintiffs' motion 585 for class certification and denying as moot defendant's motion 633 in limine and plaintiffs' motion 650 for oral argument. Signed by Judge Richard W. Roberts on 8/4/10. (lcrwr2) (Entered: 08/04/2010)
660 ORDER granting in part and denying in part defendant's motion 636 for reconsideration. Signed by Judge Richard W. Roberts on 8/4/10. (lcrwr2) (Entered: 08/04/2010)
661 ORDER of USCA as to 434 Appeal of Magistrate Judge Decision to District Court, filed by MICHAEL CHERTOFF ; ORDERED that this case be dismissed. USCA Case Number 10−5220. (mmh, ) (Entered: 08/16/2010)
MINUTE ORDER: In light of plaintiffs' motion 652 for a status conference, it is hereby ORDERED that the parties confer and file by October 13, 2010 a joint status report and proposed order reflecting three mutually agreeable dates on which to schedule a status conference. Signed by Judge Richard W. Roberts on 9/29/10. (lcrwr2) (Entered: 09/29/2010)
Set/Reset Deadlines: Joint Status Report due by 10/13/2010. (hs) (Entered: 09/29/2010)
Set/Reset Deadlines: Joint Status Report due by 10/13/2010. (hs) (Entered: 09/30/2010)
662 STATUS REPORT (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/13/2010)
MINUTE ORDER: In light of the joint status report 662 the parties filed on October 13, 2010, it is hereby ORDERED that a status conference take place on November 18, 2010 at 2:30p.m. Signed by Judge Richard W. Roberts on 10/18/10. (lcrwr2) (Entered: 10/18/2010)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 78 of 103

10/19/2010 11/18/2010 03/23/2011
03/25/2011 05/12/2011
05/16/2011 05/16/2011 07/01/2011 07/01/2011 07/05/2011 07/10/2011 08/01/2011 08/16/2011 08/30/2011

Set Hearings: Status Conference set for 11/18/2000 at 02:30 PM in Courtroom 9 before Judge Richard W. Roberts. (hs) (Entered: 10/19/2010)
Minute Entry; for proceedings held before Judge Richard W. Roberts: Status Conference held on 11/18/2010. Case to enter a mediation phase through 3/18/11. Joint Status Report and Proposed Order due by 3/25/2011. (Court Reporter Annie Shaw) (hs) (Entered: 11/18/2010)
663 STATUS REPORT (Joint) and Consent Notice Regarding Extension of Mediation Phase by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/23/2011)
664 ORDER; Regarding Extension of Mediation Phase; Mediation to conclude by 4/29/2011, Joint Status Report due by 5/6/2011, Signed by Judge Richard W. Roberts on 3/23/2011. (hs) (Entered: 03/25/2011)
665 STATUS REPORT (Second, Joint) and Consent Notice Regarding Extension of Mediation Phase by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 05/12/2011)
MINUTE ORDER: In light of the joint status report 665 filed on May 12, 2011, it is hereby ORDERED that the deadline for the close of mediation be extended to June 28, 2011. The parties shall file a joint status report and proposed order by July 1, 2011. Signed by Judge Richard W. Roberts on 5/13/11. (lcrwr2) (Entered: 05/16/2011)
Reset Deadlines: Mediation to conclude by 6/28/2011. Joint Status Report due by 7/1/2011. (hs) (Entered: 05/16/2011)
666 STATUS REPORT (Third, Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 07/01/2011)
667 NOTICE regarding extension of mediation phase by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (See Docket Entry 666 to view document) (jf, ) (Entered: 07/01/2011)
MINUTE ORDER: It is hereby ORDERED that the deadline for the close of mediation be, and hereby is, EXTENDED until July 28, 2011. The parties shall file a joint status report and proposed order by August 2, 2011. Signed by Judge Richard W. Roberts on 7/5/11. (lcrwr2) (Entered: 07/05/2011)
Set/Reset Deadlines: Mediation to conclude by 7/28/2011. Joint Status Report due by 8/2/2011. (hs) (Entered: 07/10/2011)
668 Joint MOTION for Extension of Time to File Joint Status Report by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/01/2011)
669 Joint MOTION for Extension of Time to File Joint Status Report by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/16/2011)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 8/30/11 denying as moot 668 Joint Motion to Extend Time to File Joint Status Report. (EW) (Entered:

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 79 of 103

08/30/2011 09/16/2011 09/20/2011 10/14/2011
10/14/2011 10/17/2011 10/19/2011 10/20/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011
10/27/2011

08/30/2011)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 8/30/11 Granting 669 Joint Motion to Extend Time to File Joint Status Report; Joint Status Report due by 9/16/2011. (EW) (Entered: 08/30/2011)
670 STATUS REPORT Regarding the Mediation Phase (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 09/16/2011)
671 ORDER; Plaintiff's Class Certifications Motions due by 10/17/2011, Signed by Judge Richard W. Roberts on 9/19/2011. (hs) (Entered: 09/20/2011)
672 Unopposed MOTION for Extension of Time to File Plaintiffs' Motion for Class Certification by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/14/2011)
MINUTE ORDER: It is hereby ORDERED that the motion 672 by plaintiffs Reginald Moore, et al. to delay until October 27, 2011 the deadline for moving for class certification be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 10/14/11. (lcrwr2) (Entered: 10/14/2011)
Set/Reset Deadlines: Plaintiff's request for Clase Certification due by 10/27/2011. (hs) (Entered: 10/17/2011)
673 NOTICE of Attorney Last Name Change by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Cacace, Megan) (Entered: 10/19/2011)
NOTICE OF ERROR re 673 Notice (Other); emailed to mmgates@relmanlaw.com, cc'd 0 associated attorneys −− The PDF file you docketed contained errors: 1. Please contact the Attorney Admission @ 354−3110 (jf, ) (Entered: 10/20/2011)
674 Consent MOTION for Order Allowing Plaintiffs to File Certain Exhibits to Plaintiffs' Motion for Class Certification Under Seal by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/27/2011)
675 NOTICE of Filing Under Seal by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 674 Consent MOTION for Order Allowing Plaintiffs to File Certain Exhibits to Plaintiffs' Motion for Class Certification Under Seal (Klar, Jennifer) (Entered: 10/27/2011)
676 Unopposed MOTION for Leave to File Excess Pages for Plaintiffs' Motion for Class Certification by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 10/27/2011)
677 MOTION to Certify Class by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Index of Exhibits)(Klar, Jennifer) (Additional attachment(s) added on 12/14/2011: # 3 Exhibit 1 (SEALED), # 4 Exhibit 14 (SEALED), # 5 Exhibit 45 (SEALED), # 6 Exhibit 82(SEALED), # 7 Exhibit 87 (SEALED), # 8 Exhibit 88 (SEALED)) (jf, ). (Entered: 10/27/2011)
678 LARGE ADDITIONAL ATTACHMENT(S) (Exhibit 1: Declarations of Current and Former Special Agents) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 80 of 103

10/27/2011
11/01/2011
11/01/2011 11/01/2011 11/11/2011 11/18/2011
11/18/2011 11/20/2011 11/21/2011 11/21/2011

SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER 677 MOTION to Certify Class filed by KENNETH ROOKS, LUTHER K. IVERY, C. YVETTE SUMMEROUR, LEROY HENDRIX, JOHN E. TURNER, ANDREW E. HARRIS, JR., CHERYL L. TYLER, REGINALD G. MOORE. (Attachments: # 1 Exhibit 1 (Part A), # 2 Exhibit 1 (Part B), # 3 Exhibit 1 (Part C), # 4 Exhibit 1 (Part D), # 5 Exhibit 1 (Part E))(Klar, Jennifer) (Entered: 10/27/2011)
679 LARGE ADDITIONAL ATTACHMENT(S) (Exhibits 2−98) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER 677 MOTION to Certify Class filed by KENNETH ROOKS, LUTHER K. IVERY, C. YVETTE SUMMEROUR, LEROY HENDRIX, JOHN E. TURNER, ANDREW E. HARRIS, JR., CHERYL L. TYLER, REGINALD G. MOORE. (Attachments: # 1 Exhibits 2−7, # 2 Exhibits 8−24, # 3 Exhibits 25−39, # 4 Exhibits 40−65, # 5 Exhibits 66−98)(Klar, Jennifer) (Attachment 3, 4, and 5 replaced on 3/27/2012, Pursuant to Order filed on 03/26/2012) (dr). (Entered: 10/27/2011)
MINUTE ORDER: It is hereby ORDERED that the unopposed motion 676 by plaintiffs Reginald Moore, et al. for leave to file a memorandum in support of their motion for class certification exceeding the page limit under LCvR 7(e) be, and hereby is, GRANTED. It is further ORDERED that defendant Secretary may file a memorandum in opposition to the plaintiffs' class certification motion that does not exceed eighty−five pages. Signed by Judge Richard W. Roberts on 11/1/11. (lcrwr2) (Entered: 11/01/2011)
MINUTE ORDER: It is hereby ORDERED that the motion 674 by plaintiffs Reginald Moore, et al. to file under seal certain exhibits to their motion for class certification be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 11/1/11. (lcrwr2) (Entered: 11/01/2011)
680 SEALED Exhibits re 677 MOTION to Certify Class filed by KENNETH ROOKS, LUTHER K. IVERY, C. YVETTE SUMMEROUR, LEROY HENDRIX, JOHN E. TURNER, ANDREW E. HARRIS, JR., CHERYL L. TYLER, REGINALD G. MOORE. (This document is SEALED and only available to authorized persons.)(zjf, ) (Entered: 11/02/2011)
681 Unopposed MOTION for Extension of Time to File Response/Reply as to 677 MOTION to Certify Class by JANET NAPOLITANO (Braswell, Marina) (Entered: 11/11/2011)
682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Klar, Jennifer) (Entered: 11/18/2011)
Set/Reset Hearings: Hearing on Plaintiff's Emergency Motion to Prohibit Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members (Document No. 682) set for 12/13/2011 at 10:00 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar3) (Entered: 11/18/2011)
683 NOTICE (REQUEST FOR TELEPHONE CONFERENCE CALL WITH THE COURT) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Klar, Jennifer) (Entered: 11/20/2011)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 11/21/2011: Plaintiffs' Emergency Request for a Telephone Conference with Magistrate Judge Robinson Monday, November 21 or Tuesday, November 22 (Document No. 683) is GRANTED. A telephone conference is hereby scheduled for 9:30 a.m. on Tuesday, November 22, 2011. (lcdar3) (Entered: 11/21/2011)
Set/Reset Hearings: Telephone Conference set for 11/22/2011 at 09:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar3) (Entered:

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11/21/2011 11/21/2011 11/21/2011 11/22/2011 11/22/2011
11/23/2011
11/23/2011 11/23/2011
12/01/2011 12/02/2011 12/02/2011 12/02/2011 12/02/2011 12/02/2011

11/21/2011)
NOTICE OF ERROR re 683 Notice (Other); emailed to jklar@relmanlaw.com, cc'd 30 associated attorneys −− The PDF file you docketed contained errors: 1. Please for future filings; Do Not Use All Caps (jf, ) (Entered: 11/21/2011)
684 WITHDRAWN PURSUANT TO 689 ..... MOTION to Stay and Response to Plaintiffs' Reference to Injunctive Relief in Docket No. 683, fn 3 by JANET NAPOLITANO (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Braswell, Marina) Modified on 12/5/2011 (jf, ). (Entered: 11/21/2011)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's motion 681 to delay from November 10, 2011 until December 15, 2011 the deadline for opposing the plaintiffs' motion for class certification be, and hereby is, GRANTED as unopposed. Signed by Judge Richard W. Roberts on 11/16/11. (lcrwr2) (Entered: 11/21/2011)
Set/Reset Deadlines: Defendant's Response due by 12/15/2011. (hs) (Entered: 11/22/2011)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Status hearing conducted on 11/22/2011; argument with respect to Plaintiffs' Emergency Motion to Prohibit Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members (Document No. 682), and Defendant's Motion to Stay Briefing on Class Certification Pending Resolution of Plaintiffs Emergency Motion, Docket No. 682 (Document No. 684, Part 2), heard; court's determination of the motions set forth on the record; counsel shall prepare written order and deliver said order to chambers by 5:00 p.m. on this date. (Court Reporter: Bowles Reporting Service.) (lcdar3) (Entered: 11/22/2011)
685 NOTICE of Proposed Order (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re Status Conference,, (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 11/23/2011)
686 JOINT PROPOSED ORDER signed by Magistrate Judge Deborah A. Robinson on 11/23/11. (ldc, ) (Entered: 11/23/2011)
Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson: Status Conference (telephone) conducted on 11/23/2011; with the agreement of the parties, the December 13, 2011 hearing is continued to a date to be determined after counsel meet and confer in an effort to resolve the remaining disputes.(lcdar3) (Entered: 11/23/2011)
687 Unopposed MOTION for Extension of Time to File Response/Reply as to 677 MOTION to Certify Class by JANET NAPOLITANO (Braswell, Marina) (Entered: 12/01/2011)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's motion 687 for an extension of time until December 22, 2011 to oppose the plaintiffs' renewed motion for class certification be, and hereby is, GRANTED as unopposed. Signed by Judge Richard W. Roberts on 12/2/11. (lcrwr2) (Entered: 12/02/2011)
Set/Reset Deadlines: Defendant's Response due by 12/22/2011 (hs) (Entered: 12/02/2011)
688 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 12/02/2011)
689 NOTICE OF WITHDRAWAL OF MOTION by JANET NAPOLITANO re 684 MOTION to Stay and Response to Plaintiffs' Reference to Injunctive Relief in Docket No. 683, fn 3 (Peterson, Benton) (Entered: 12/02/2011)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's motion 688 for an extension of time until January 11, 2012 to oppose the plaintiffs' emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 12/2/11.

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12/05/2011 12/13/2011 12/13/2011 12/22/2011 12/22/2011 12/22/2011
12/22/2011
12/22/2011
12/22/2011 01/10/2012 01/11/2012

(lcrwr2) (Entered: 12/02/2011)
Set/Reset Deadlines: Defendant's Response due by 1/11/2012 (hs) (Entered: 12/05/2011)
690 NOTICE of Appearance by Erica M. Knievel on behalf of ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Knievel, Erica) (Entered: 12/13/2011)
691 NOTICE OF WITHDRAWAL OF APPEARANCE as to ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. Attorney Dana Carver Boehm terminated. (Knievel, Erica) (Entered: 12/13/2011)
692 MOTION To File Certain Exhibits Under Seal by JANET NAPOLITANO (Roback, Harry) (Entered: 12/22/2011)
693 NOTICE of Filing Exhibits to Defendant's Opposition to Plaintiff's Fourth Motion for Class Certification by JANET NAPOLITANO (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Braswell, Marina) (Entered: 12/22/2011)
694 NOTICE of Filing Exhibits to Defendant's Opposition to Plaintiffs' Fourth Motion for Class Certification by JANET NAPOLITANO (Attachments: # 1 Exhibit List, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14, # 11 Exhibit 15, # 12 Exhibit 16, # 13 Exhibit 17, # 14 Exhibit 18, # 15 Exhibit 19, # 16 Exhibit 20, # 17 Exhibit 21, # 18 Exhibit 22, # 19 Exhibit 23)(Braswell, Marina) (Additional attachment(s) added on 2/24/2012: # 20 Exhibit 6 Attachment C (SEALED), # 21 Exhibit 6 Attachment E (SEALED), # 22 Exhibit 46 (SEALED)) (jf, ). (Entered: 12/22/2011)
695 NOTICE of Filing Exhibits to Defendant's Opposition to Plaintiffs' Fourth Motion for Class Certification by JANET NAPOLITANO (Attachments: # 1 Exhibit List, # 2 Exhibit 24, # 3 Exhibit 25, # 4 Exhibit 26, # 5 Exhibit 27, # 6 Exhibit 28, # 7 Exhibit 29, # 8 Exhibit 30, # 9 Exhibit 31, # 10 Exhibit 32, # 11 Exhibit 33, # 12 Exhibit 34, # 13 Exhibit 35, # 14 Exhibit 36, # 15 Exhibit 37, # 16 Exhibit 38, # 17 Exhibit 39, # 18 Exhibit 40, # 19 Exhibit 41)(Braswell, Marina) (Entered: 12/22/2011)
696 NOTICE of Filing Exhibits to Defendants' Opposition to Plaintiff's Fourth Motion for Class Certification by JANET NAPOLITANO (Attachments: # 1 Exhibit List, # 2 Exhibit 42, # 3 Exhibit 43, # 4 Exhibit 44, # 5 Exhibit 45, # 6 Exhibit 46, # 7 Exhibit 47, # 8 Exhibit 48, # 9 Exhibit 49, # 10 Exhibit 50, # 11 Exhibit 51, # 12 Exhibit 52, # 13 Exhibit 53, # 14 Exhibit 54, # 15 Exhibit 55, # 16 Exhibit 56, # 17 Exhibit 57, # 18 Exhibit 58, # 19 Exhibit 59, # 20 Exhibit 60, # 21 Exhibit 61, # 22 Exhibit 62)(Braswell, Marina) (Additional attachment(s) added on 2/24/2012: # 23 Declaration Julia Pierson (third), # 24 Exhibit 56(Sealed), # 25 Exhibit 5(Sealed)) (jf, ). (Entered: 12/22/2011)
697 Memorandum in opposition to re 677 MOTION to Certify Class filed by JANET NAPOLITANO. (Braswell, Marina) (Entered: 12/22/2011)
698 MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 01/10/2012)
699 Consent MOTION Replace Docket Nos. 678−2 and 679−4 with Attached Redacted Versions of Same re 678 Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s), 679 Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(Klar, Jennifer) (Entered: 01/11/2012)

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01/12/2012
01/12/2012 01/12/2012
01/18/2012 01/19/2012 01/19/2012 02/06/2012
02/07/2012 02/21/2012
03/12/2012
03/13/2012 03/26/2012

700 Consent MOTION Replace Docket Nos. 694−2, 695−6, 696−4, and 696−6 with Attached Redacted Versions of Same re 695 Notice (Other), Notice (Other), Notice (Other), 696 Notice (Other), Notice (Other), Notice (Other), 694 Notice (Other), Notice (Other), Notice (Other) by JANET NAPOLITANO (Attachments: # 1 Exhibit 6, # 2 Exhibit 28, # 3 Exhibit 44, # 4 Exhibit 46, # 5 Text of Proposed Order)(Braswell, Marina) (Entered: 01/12/2012)
701 MOTION File Exhibits Under Seal re 694 Notice (Other), Notice (Other), Notice (Other), 696 Notice (Other), Notice (Other), Notice (Other) Docket Nos. 694−2 and 696−6 by JANET NAPOLITANO (Braswell, Marina) (Entered: 01/12/2012)
702 Consent MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members, 677 MOTION to Certify Class by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 01/12/2012)
MINUTE ORDER: It is hereby ORDERED that the Secretary's motions [692, 701] to file certain exhibits under seal be, and hereby are, GRANTED. Signed by Judge Richard W. Roberts on 1/17/12. (lcrwr2) (Entered: 01/18/2012)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 01/19/2012: It is ORDERED that Defendant's [Unopposed] Motion for Further Extension of Time (Document No. 698 ) is GRANTED. (lcdar3) (Entered: 01/19/2012)
MINUTE ORDER by Magistrate Judge Deborah A. Robinson on 01/19/2012 granting motions bearing Document Nos. 699 , 700 and 702 . (lcdar3) (Entered: 01/19/2012)
703 MOTION in Limine to Exclude the Testimony of Charles R. Mann Offered in Support of Plaintiff's Fourth Motion for Class Certification by JANET NAPOLITANO (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13)(Braswell, Marina) (Entered: 02/06/2012)
704 NOTICE of Filing A Corrected Brief for Defendant's Opposition to Plaintiffs' Motion for Class Certification by JANET NAPOLITANO re 697 Memorandum in Opposition (Attachments: # 1 Corrected Brief, # 2 Revised Exhibit List, # 3 Exhibit 4, # 4 Exhibit 19, # 5 Exhibit 29, # 6 Exhibit 40, # 7 Exhibit 63, # 8 Exhibit 64, # 9 Exhibit 65, # 10 Exhibit 66, # 11 Exhibit 67)(Braswell, Marina) (Entered: 02/07/2012)
705 Consent MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members, 677 MOTION to Certify Class, 703 MOTION in Limine to Exclude the Testimony of Charles R. Mann Offered in Support of Plaintiff's Fourth Motion for Class Certification by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 02/21/2012)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' consent motion 705 for an extension of time until March 29, 2012 to file a reply as to the plaintiffs' motion for class certification and an opposition to defendant Secretary's motion to exclude expert testimony, be, and hereby is, GRANTED. It is further ORDERED that the Secretary's opposition to the plaintiffs' emergency motion shall be filed by March 29, 2012. Signed by Judge Richard W. Roberts on 3/12/12. (lcrwr2) (Entered: 03/12/2012)
Set Deadlines: Defendant's Response due by 3/29/2012. (hs) (Entered: 03/13/2012)
706 Consent MOTION Replace Doc. Nos. 679−3, 679−4, and 679−5 with Corrected Versions of Same re 679 Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 84 of 103

03/26/2012 03/29/2012 03/29/2012
03/29/2012
03/29/2012 03/29/2012 03/29/2012
03/29/2012 04/02/2012

SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Ex. 1 − Replacement to Doc. No. 679−3 Exhibit Nos. 25−36, # 3 Exhibit Ex. 2 − Replacement to Doc. No. 679−4 Exhibit Nos. 40−65, # 4 Exhibit Ex. 3 − Replacement to Doc. No. 679−5 Exhibit Nos. 66−98)(Klar, Jennifer) (Entered: 03/26/2012)
MINUTE ORDER: It is hereby ORDERED that the consent motion 706 by plaintiffs Reginald Moore, et al. to replace certain exhibits be, and hereby is, GRANTED. The Clerk's Office shall remove the documents docketed at [679−3] and [679−4] and replace them with the corrected versions attached to the instant motion. Signed by Judge Richard W. Roberts on 3/26/12. (lcrwr2) (Entered: 03/26/2012)
707 Consent MOTION for Order (Allowing Plaintiffs to File Certain Exhibits to Plaintiffs' Reply in Support of Plaintiffs' Motion for Class Certification Under Seal) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/29/2012)
708 NOTICE (Of Filing Under Seal) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 707 Consent MOTION for Order (Allowing Plaintiffs to File Certain Exhibits to Plaintiffs' Reply in Support of Plaintiffs' Motion for Class Certification Under Seal)Consent MOTION for Order (Allowing Plaintiffs to File Certain Exhibits to Plaintiffs' Reply in Support of Plaintiffs' Motion for Class Certification Under Seal) (Klar, Jennifer) (Entered: 03/29/2012)
709 Memorandum in opposition to re 703 MOTION in Limine to Exclude the Testimony of Charles R. Mann Offered in Support of Plaintiff's Fourth Motion for Class Certification filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Klar, Jennifer) (Entered: 03/29/2012)
710 MOTION for Leave to File Excess Pages re: Plaintiffs' Reply in Support of Their Motion for Class Certification by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/29/2012)
711 REPLY to opposition to motion re 677 MOTION to Certify Class filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Attachment A, # 2 Exhibit Index)(Klar, Jennifer) (Entered: 03/29/2012)
712 LARGE ADDITIONAL ATTACHMENT(S) to Plaintiffs' Reply in Support of Their Motion for Class Certification by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER 711 Reply to opposition to Motion, filed by CAMILLA SIMMS, LEROY HENDRIX, CHERYL L. TYLER, REGINALD G. MOORE, KENNETH ROOKS, LISA ROBERTSON, C. YVETTE SUMMEROUR, LUTHER K. IVERY, JOHN E. TURNER, ANDREW E. HARRIS, JR.. (Attachments: # 1 Exhibits 99−128, # 2 Exhibits 129−155)(Klar, Jennifer) (Additional attachment(s) added on 4/3/2012: # 3 Exhibit 147(SEALED), # 4 Exhibit 153(SEALED)) (jf, ). (Entered: 03/29/2012)
713 Unopposed MOTION for Extension of Time to File Response/Reply to Plaintiffs' Emergency Motion at Docket No. 682 by JANET NAPOLITANO (Braswell, Marina) (Entered: 03/29/2012)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' consent motion 707 to file under seal certain exhibits associated with their reply in support of their renewed motion for class certification be, and hereby is, GRANTED. Signed by Judge Richard

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 85 of 103

04/09/2012 04/09/2012 04/12/2012 04/12/2012
04/13/2012
04/16/2012 04/16/2012 04/16/2012 04/27/2012 05/02/2012 05/11/2012
05/11/2012 05/21/2012 05/29/2012

W. Roberts on 4/2/12. (lcrwr2) (Entered: 04/02/2012)
714 Memorandum in opposition to re 710 MOTION for Leave to File Excess Pages re: Plaintiffs' Reply in Support of Their Motion for Class Certification filed by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 04/09/2012)
715 Unopposed MOTION for Extension of Time to File Response/Reply as to 703 MOTION in Limine to Exclude the Testimony of Charles R. Mann Offered in Support of Plaintiff's Fourth Motion for Class Certification by JANET NAPOLITANO (Braswell, Marina) (Entered: 04/09/2012)
716 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 04/12/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 716 for an extension of time until May 3, 2012 to oppose the plaintiffs' emergency motion to prohibit coercive communications with class members be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 4/12/12. (lcrwr2) (Entered: 04/12/2012)
717 REPLY to opposition to motion re 710 MOTION for Leave to File Excess Pages re: Plaintiffs' Reply in Support of Their Motion for Class Certification filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 04/13/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 715 for an extension of time until May 4, 2012 to file a reply in support of its motion to exclude expert testimony be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 4/12/12. (lcrwr2) (Entered: 04/16/2012)
Set/Reset Deadlines: Defendant's Reply due by 5/4/2012. (hs) (Entered: 04/16/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 713 for an extension of time until April 12, 2012 to oppose the plaintiffs' emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 4/12/12. (lcrwr2) (Entered: 04/16/2012)
718 Consent MOTION for Extension of Time to File Response/Reply in Support of Motion in Limine to Exclude the Testimony of Charles R. Mann by JANET NAPOLITANO (Roback, Harry) (Entered: 04/27/2012)
719 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 05/02/2012)
MINUTE ORDER: It is hereby ORDERED that Defendant Secretary's unopposed motions [718, 719] for an extension of time until June 6, 2012 in which to file a reply in support of her motion to exclude expert expert testimony, and until May 21, 2012 to oppose the plaintiffs' emergency motion, be, and hereby are, GRANTED. Signed by Judge Richard W. Roberts on 5/11/12. (lcrwr2) (Entered: 05/11/2012)
Set/Reset Deadlines: Defendant's Reply in Support due by 6/6/2012. Defendant's Response due by 5/21/2012. (hs) (Entered: 05/11/2012)
720 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 05/21/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 720 for an extension of time until June 15, 2012 to oppose the plaintiff's emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W.

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 86 of 103

05/29/2012 06/05/2012 06/06/2012
06/06/2012 06/15/2012
06/19/2012
06/19/2012 06/22/2012 06/28/2012
07/02/2012
07/02/2012 07/12/2012
07/19/2012
07/19/2012 07/30/2012
08/01/2012

Roberts on 5/29/12. (lcrwr2) (Entered: 05/29/2012)
Set/Reset Deadlines: Defendant's Opposition to Plaintiffs' Emergency Motion due by 6/15/2012. (hs) (Entered: 05/29/2012)
721 Consent MOTION for Extension of Time to File Response/Reply in Support of Daubert Motion by JANET NAPOLITANO (Roback, Harry) (Entered: 06/05/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's motion 721 for an extension of time from June 6, 2012 until June 22, 2012 to file a reply in support of her motion 703 to exclude expert testimony be, and hereby is, GRANTED as unopposed. Signed by Judge Richard W. Roberts on 6/6/12. (lcrwr2) (Entered: 06/06/2012)
Set/Reset Deadlines: Defendant's Reply due by 6/22/2012. (hs) (Entered: 06/06/2012)
722 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 06/15/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 722 for an extension of time until June 29, 2012 to oppose the plaintiffs' emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 6/18/12. (lcrwr2) (Entered: 06/19/2012)
Set/Reset Deadlines: Defendant's Response due by 6/29/2012. (hs) (Entered: 06/19/2012)
723 REPLY to opposition to motion re 703 MOTION in Limine to Exclude the Testimony of Charles R. Mann Offered in Support of Plaintiff's Fourth Motion for Class Certification filed by JANET NAPOLITANO. (Roback, Harry) (Entered: 06/22/2012)
724 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 06/28/2012)
MINUTE ORDER: It is hereby ORDERED that the Secretary's unopposed motion 724 to delay from June 29, 2012 until July 13, 2012 the deadline for opposing the plaintiffs' emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 7/2/12. (lcrwr2) (Entered: 07/02/2012)
Set/Reset Deadlines: Defendant's Response due by 7/13/2012. (hs) (Entered: 07/02/2012)
725 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 07/12/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 725 to extend until July 30, 2012 the deadline for opposing the plaintiffs' emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 7/13/12. (lcrwr2) (Entered: 07/19/2012)
Set/Reset Deadlines: Defendant's Response due by 7/30/2012 (hs) (Entered: 07/19/2012)
726 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 07/30/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 726 to delay until August 31, 2012 the deadline for opposing the plaintiffs' emergency motion be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 7/31/12. (lcrwr2) (Entered: 08/01/2012)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 87 of 103

08/03/2012 08/31/2012 09/07/2012 09/10/2012 09/20/2012 09/25/2012 09/26/2012 10/19/2012 10/25/2012 10/25/2012 11/16/2012 12/06/2012 12/06/2012 12/14/2012
12/20/2012

Set/Reset Deadlines: Defendant's Response due by 8/31/2012. (hs) (Entered: 08/03/2012)
727 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 08/31/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 727 for an extension of time until September 21, 2012 to oppose the plaintiff's emergency motion 682 be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 9/7/12. (lcrwr2) (Entered: 09/07/2012)
Set/Reset Deadlines: Response to Plaintiffs' Emergency Motion due by 9/21/2012. (hs) (Entered: 09/10/2012)
728 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 09/20/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 728 for an extension of time until October 19, 2012 to oppose the plaintiff's emergency motion 682 be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 9/25/12. (lcrwr2) (Entered: 09/25/2012)
Set/Reset Deadlines: Defendant's Response due by 10/19/2012 (hs) (Entered: 09/26/2012)
729 Unopposed MOTION for Extension of Time to File Response/Reply as to 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members by JANET NAPOLITANO (Braswell, Marina) (Entered: 10/19/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 729 for an extension of time until November 19, 2012 to oppose the plaintiff's emergency motion 682 be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 10/25/12. (lcrwr2) (Entered: 10/25/2012)
Set/Reset Deadlines: Defendant's Response due by 11/19/2012 (hs) (Entered: 10/25/2012)
730 Unopposed MOTION for Extension of Time to File Defendant's Opposition to Plaintiffs' Emergency Motion (no. 682) by MICHAEL CHERTOFF (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 11/16/2012)
MINUTE ORDER: It is hereby ORDERED that defendant Secretary's unopposed motion 730 for an extension of time until December 17, 2012 to oppose the plaintiff's emergency motion 682 be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 12/6/12. (lcrwr2) (Entered: 12/06/2012)
Set/Reset Deadlines: Defendant's Response due by 12/17/2012 (hs) (Entered: 12/10/2012)
731 NOTICE of Proposed Order by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, JANET A. NAPOLITANO, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 682 Emergency MOTION for Order Prohibiting Defendant from Engaging in Coercive and Misleading Ex Parte Discovery Communications with Class Members, 685 Notice of Proposed Order, 686 Order (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 12/14/2012)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' motion 710 for leave to file a reply brief in support of their motion for class certification exceeding the page limit under Local Civil Rule 7(e) be, and hereby is, GRANTED. Signed by Judge Richard W. Roberts on 12/20/12. (lcrwr2) (Entered: 12/20/2012)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 88 of 103

01/25/2013 02/05/2013 02/25/2013
02/26/2013 02/26/2013 03/18/2013 03/22/2013 03/26/2013 05/08/2013 05/09/2013 05/13/2013
05/13/2013 05/22/2013
05/22/2013

732 ORDER: Signed by Magistrate Judge Deborah A. Robinson on 1/25/13. (lm) (Entered: 01/29/2013)
733 NOTICE OF WITHDRAWAL OF APPEARANCE as to JANET A. NAPOLITANO. Attorney Harry B. Roback terminated. (Roback, Harry) (Entered: 02/05/2013)
734 MEMORANDUM OPINION AND ORDER denying the defendant's motion 703 to exclude the testimony of Dr. Charles Mann and granting the plaintiffs' motion 677 for class certification under Federal Rule of Civil Procedure 23(b)(3). The plaintiffs shall file by March 18, 2013 a proposed order that complies with the requirements in Rule 23(c)(2)(B). Signed by Judge Richard W. Roberts on 2/25/13. (lcrwr2) (Entered: 02/25/2013)
Set/Reset Deadlines: Plaintiff's Proposed Order due by 3/18/2013. (hs) (Entered: 02/26/2013)
735 NOTICE of Appearance by Peter C. Pfaffenroth on behalf of JANET A. NAPOLITANO (Pfaffenroth, Peter) (Entered: 02/26/2013)
736 NOTICE of Proposed Order by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Notice of Class Action)(Klar, Jennifer) (Entered: 03/18/2013)
737 NOTICE of Objections by MICHAEL CHERTOFF re 736 Notice of Proposed Order, (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C)(Braswell, Marina) (Entered: 03/22/2013)
738 RESPONSE re 737 Notice (Other) filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Exhibit A (Redline), # 2 Exhibit B (Clean))(Klar, Jennifer) (Entered: 03/26/2013)
739 NOTICE (Request for Status Conference) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Klar, Jennifer) (Entered: 05/08/2013)
740 RESPONSE re 739 Notice (Other) as to Plaintiffs' Motion For A Status Hearing (Styled By Plaintiffs As A "Notice" of a "Request") filed by JANET A. NAPOLITANO. (Pfaffenroth, Peter) (Entered: 05/09/2013)
741 RESPONSE in support 739 request for status hearing re 740 Response to Document (Reply in Support of Plaintiffs' Request for a Status Conference) filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) Modified text on 5/14/2013 (td, ). (Entered: 05/13/2013)
742 ORDER approving form of class notice and notice plan. Signed by Judge Richard W. Roberts on 5/13/13. (Attachments: # 1 Exhibit A. Notice of Class Action, # 2 Exhibit B. Exclusion Request) (lcrwr2) (Entered: 05/13/2013)
MINUTE ORDER: Now that the class notice has been approved and the size of the class should be known by the July 26, 2013 deadline for class members to opt out, the parties soon thereafter will likely be in the best position to make informed judgments about how they should proceed and on what schedule. Therefore, it is hereby ORDERED that a status hearing be, and hereby is, SCHEDULED for August 6, 2013 at 10:00 a.m. The parties are directed to confer concerning engaging in alternative dispute resolution, scheduling briefing for dispositive motions, and all other topics relevant to a schedule on which the case should proceed, and are directed to file a joint status report and proposed order by August 2, 2013. Signed by Judge Richard W. Roberts on 5/22/13. (lcrwr2) (Entered: 05/22/2013)
Set/Reset Deadlines/Hearings: Joint Status Report due by 8/2/2013, Status Conference set for 8/6/2013 at 10:00 AM in Courtroom 9 before Judge Richard W. Roberts. (hs) (Entered: 05/22/2013)

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06/12/2013 06/24/2013 06/27/2013
06/28/2013
07/29/2013 07/31/2013 08/02/2013 08/03/2013
08/05/2013 08/05/2013 08/29/2013 09/04/2013 09/04/2013

743 NOTICE OF WITHDRAWAL OF APPEARANCE as to ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. Attorney Thomas John Widor terminated. (Songer, Erica) (Entered: 06/12/2013)
744 Unopposed MOTION to Continue August 6, 2013 status hearing to earlier date by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 06/24/2013)
MINUTE ORDER: It is hereby ORDERED that the defendant's unopposed motion 744 to continue the August 6, 2013 status hearing be, and hereby is, GRANTED. The August 6, 2013 is RESET for July 31, 2013 at 10:45 a.m. The parties are directed to confer concerning engaging in alternative dispute resolution, scheduling briefing for dispositive motions, and all other topics relevant to a schedule on which the case should proceed, and are directed to file a joint status report and proposed order by July 29, 2013 at 12:00 p.m. Signed by Judge Richard W. Roberts on 6/27/13. (lcrwr2) (Entered: 06/27/2013)
745 USCA ORDER. USCA Case Number 13−8002. ORDERED, on the court's own motion, that the petition be referred to a merits panel. The parties are directed to address in their briefs the issues presented in the petition rather than incorporate those arguments by reference. In addition to addressing whether the petition should be granted, the parties are also directed to address in their briefs whether the district court properly granted plaintiffs' motion for class certification under Fed. R. Civ. P. 23. (kb, ) (Entered: 06/28/2013)
746 STATUS REPORT (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 07/29/2013)
Minute Entry; for proceedings held before Chief Judge Richard W. Roberts: Status Conference held on 7/31/2013. (Court Reporter Scott L. Wallace.) (hs) (Entered: 07/31/2013)
747 NOTICE of Proposed Order by JANET A. NAPOLITANO (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 08/02/2013)
748 RESPONSE re 747 Notice of Proposed Order filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Exhibit A (Email), # 2 Exhibit B (Redline of Defendant's Proposed Order), # 3 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/03/2013)
749 RESPONSE re 747 Notice of Proposed Order filed by JANET A. NAPOLITANO. (Peterson, Benton) (Entered: 08/05/2013)
750 RESPONSE re 749 Response to Document filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Exhibit 1)(Klar, Jennifer) (Entered: 08/05/2013)
751 Consent MOTION for Extension of Time to File Dispositive Motion by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 08/29/2013)
752 ORDER setting a schedule for limited supplemental expert discovery by an industrial psychologist expert and a briefing schedule for dispositive motions. See order for further detail. Signed by Chief Judge Richard W. Roberts on 9/3/13. (lcrwr2) (Entered: 09/04/2013)
MINUTE ORDER: In light of the order 752 setting a briefing schedule for dispositive motions, it is hereby ORDERED that the parties' consent motion 751 for an extension of time be, and hereby is, DENIED as moot. Signed by Chief Judge Richard W. Roberts on 9/4/13. (lcrwr2) (Entered: 09/04/2013)

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09/27/2013 09/30/2013 09/30/2013 10/07/2013 10/10/2013
10/24/2013 10/25/2013 10/30/2013 11/10/2013
11/18/2013 11/18/2013 11/22/2013
11/26/2013

753 Consent MOTION for Extension of Time to File Dispositive Motions by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 09/27/2013)
MINUTE ORDER: It is hereby ORDERED that the defendant's consent motion 753 be, and hereby is, GRANTED. The dispositive motions are due by October 30, 2013. The oppositions to the dispositive motions are due by December 15, 2013. The replies in support of dispositive motives are due by January 10, 2014. Signed by Chief Judge Richard W. Roberts on 9/30/13. (lcrwr2) (Entered: 09/30/2013)
Set/Reset Deadlines: Dispositive Motions due by 10/30/2013. Response to Dispositive Motions due by 12/15/2013. Replies to Dispositive Motions due by 1/10/2014. (hs) (Entered: 09/30/2013)
754 Consent MOTION to Stay re 752 Order, Order on Motion for Extension of Time to File, by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 10/07/2013)
755 ORDER granting 754 Consent MOTION to Stay re 752 Order, Order on Motion for Extension of Time to File;and it is further ORDERED that the deadlines for the filing and briefing of dispositive motions in this case, and for the completion of expert discovery, are hereby stayed pending further order of this Court; and it is further ORDERED that within five business days of the resumption of funding for federal government operations and the end of the government shutdown, the parties shall file a joint proposed schedule with proposed deadlines for the filing and briefing of dispositive motions dealing with claims not involving non−promotions to the GS−14 and GS−15 and the completion of expert discovery. Signed by Chief Judge Richard W. Roberts on 10/9/2013. (tcb) (Entered: 10/10/2013)
756 NOTICE of Proposed Order (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 755 Order on Motion to Stay,,, (Klar, Jennifer) (Entered: 10/24/2013)
757 MOTION for Reconsideration re 752 Order by JANET A. NAPOLITANO (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Braswell, Marina) (Entered: 10/25/2013)
758 JOINT ORDER; Dispositive Motions due by 12/16/2013, Response to Dispositive Motions due by 1/20/2014, Reply to Dispositive Motions due by 2/10/2014, Signed by Chief Judge Richard W. Roberts on 10/29/2013. (hs) (Entered: 10/30/2013)
759 Unopposed MOTION for Extension of Time to File Response/Reply as to 757 MOTION for Reconsideration re 752 Order by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 11/10/2013)
MINUTE ORDER: It is hereby ORDERED that plaintiff's unopposed motion 759 for extension of time until November 26, 2013 to file an opposition to Defendant's Motion for Reconsideration 757 be, and hereby is, GRANTED. Defendant's reply is due December 13, 2013. Signed by Chief Judge Richard W. Roberts on 11/18/2013. (lcrwr2) (Entered: 11/18/2013)
Set/Reset Deadlines: Plaintiff's Response due by 11/26/2013; Defendant's Reply due by 12/13/2013. (hs) (Entered: 11/18/2013)
760 MOTION to Strike Dr. Rick Jacobs' Exert Report by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Klar, Jennifer) Modified on 11/25/2013 to correct docket event (jf, ). (Entered: 11/22/2013)
761 RESPONSE re 757 MOTION for Reconsideration re 752 Order filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Exhibit

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12/11/2013 12/11/2013 12/16/2013 12/16/2013 12/16/2013 12/16/2013 12/20/2013 12/30/2013 01/02/2014 01/02/2014 01/03/2014 01/16/2014
01/22/2014

A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Klar, Jennifer) (Entered: 11/26/2013)
762 Consent MOTION for Extension of Time to File Dispositive Motions by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 12/11/2013)
763 Consent MOTION for Extension of Time to File Reply in Support of Motion for Reconsideration by JANET A. NAPOLITANO (Pfaffenroth, Peter) (Entered: 12/11/2013)
MINUTE ORDER: It is hereby ORDERED that defendant's consent motion 762 for extension of time be, and hereby is, GRANTED. Dispositive motions shall be filed by January 16, 2014; oppositions shall be filed by February 20, 2014; replies shall be filed by March 10, 2014. Signed by Chief Judge Richard W. Roberts on 12/16/13. (lcrwr2) (Entered: 12/16/2013)
MINUTE ORDER: It is hereby ORDERED that defendant's consent motion 763 for extension of time be, and hereby is, GRANTED. Defendant's reply shall be filed by January 3, 2014. Signed by Chief Judge Richard W. Roberts on 12/16/13. (lcrwr2) (Entered: 12/16/2013)
Set/Reset Deadlines: Defendant's Reply due by 1/3/2014. (hs) (Entered: 12/16/2013)
Set/Reset Deadlines: Dispositive Motions due by 1/16/2014, Response to Dispositive Motions due by 2/20/2014, Reply to Dispositive Motions due by 3/10/2014. (hs) (Entered: 12/16/2013)
764 Memorandum in opposition to re 760 MOTION to Strike Dr. Rick Jacobs' Exert Report filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit #1, # 2 Exhibit #2, # 3 Exhibit #3, # 4 Exhibit #4)(Peterson, Benton) (Entered: 12/20/2013)
765 REPLY to opposition to motion re 760 MOTION to Strike Dr. Rick Jacobs' Exert Report filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 12/30/2013)
MINUTE ORDER: It is hereby ORDERED that plaintiff's motion 760 to strike Dr. Rick Jacobs' expert report be, and hereby is, REFERRED to Magistrate Judge Robinson for disposition. Signed by Chief Judge Richard W. Roberts on 1/2/14. (lcrwr2) (Entered: 01/02/2014)
766 CASE DIRECTLY REFERRED to Magistrate Judge Deborah A. Robinson for Resolution of Motion 760 . (md, ) (Entered: 01/03/2014)
767 REPLY to opposition to motion re 757 MOTION for Reconsideration re 752 Order Denying Post−Certification Fact and Expert Discovery filed by JANET A. NAPOLITANO. (Attachments: # 1 Exhibit 4 (further excerpts from Apr. 26, 2007 hrg. tr.))(Pfaffenroth, Peter) (Entered: 01/03/2014)
768 WITHDRAWN PURSUANT TO MINUTE ORDER FILED 1/31/17. . . . . MOTION to Dismiss in Part and/or, MOTION for Partial Summary Judgment of Second Amended Class Complaint by JANET A. NAPOLITANO (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit List, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28, # 33 Exhibit 29, # 34 Exhibit 30, # 35 Exhibit 31, # 36 Exhibit 32, # 37 Exhibit 33, # 38 Exhibit 34, # 39 Exhibit 35, # 40 Exhibit 36, # 41 Exhibit 37, # 42 Exhibit 38, # 43 Exhibit 39, # 44 Exhibit 40, # 45 Exhibit 41, # 46 Exhibit 42, # 47 Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45)(Pfaffenroth, Peter) Modified on 2/1/2017 (td). (Entered: 01/16/2014)
769 MOTION for Leave to File Surreply to Defendant's Motion for Reconsideration of September 3, 2013 Order Denying Post−Certification Fact and Expert Discovery

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02/10/2014 02/19/2014
02/26/2014 02/26/2014 03/04/2014 03/04/2014 03/10/2014
03/21/2014
03/27/2014 03/27/2014 04/23/2014

[Doc. 757] by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1 − Surreply)(Cacace, Megan) (Entered: 01/22/2014)
770 Memorandum in opposition to re 769 MOTION for Leave to File Surreply to Defendant's Motion for Reconsideration of September 3, 2013 Order Denying Post−Certification Fact and Expert Discovery [Doc. 757] filed by JANET A. NAPOLITANO. (Pfaffenroth, Peter) (Entered: 02/10/2014)
771 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 02/19/2014)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' consent motion 771 for extension of time to file an opposition to the defendant's motion for partial dismissal or summary judgment be, and hereby is, GRANTED. The plaintiffs' opposition shall be filed by March 24, 2014. The defendant's reply shall be filed by April 11, 2014. Signed by Chief Judge Richard W. Roberts on 2/26/14. (lcrwr2) (Entered: 02/26/2014)
Set/Reset Deadlines: Plaintiff's Response due by 3/24/2014, Defendant's Reply due by 4/11/2014. (hs) (Entered: 02/26/2014)
772 MEMORANDUM ORDER denying 757 motion for reconsideration and denying motion 769 for leave to file a surreply. Signed by Chief Judge Richard W. Roberts on 3/4/14. (lcrwr2) (Entered: 03/04/2014)
Set/Reset Hearings: Motion Hearing re: Plaintiffs' Motion to Strike Dr. Rick Jacobs' Expert Report (Document No. 760) is scheduled for Monday, March 10, 2014 at 10:30 AM in Courtroom 4 before Magistrate Judge Deborah A. Robinson. (lcdar3) (Entered: 03/04/2014)
Minute Entry for proceedings conducted before Magistrate Judge Deborah A. Robinson: Motion Hearing held on 3/10/2014 re 760 MOTION to Strike Dr. Rick Jacobs' Expert Report filed by KENNETH ROOKS, LUTHER K. IVERY, C. YVETTE SUMMEROUR, LEROY HENDRIX, JOHN E. TURNER, ANDREW E. HARRIS, JR., CHERYL L. TYLER, REGINALD G. MOORE. Argument heard by the Court, motion taken under advisement. (Court Reporter Bowles Reporting Service.) (tg, ) (Entered: 03/10/2014)
773 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/21/2014)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' consent motion 773 for extension of time to file an opposition to the defendant's motion for partial dismissal or summary judgment be, and hereby is, GRANTED. The plaintiffs' opposition shall be filed by April 23, 2014. The defendant's reply shall be filed by May 12, 2014. Signed by Chief Judge Richard W. Roberts on 3/27/14. (lcrwr2) (Entered: 03/27/2014)
Set/Reset Deadlines: Plaintiff's Response due by 4/23/2014 Defendant's Reply due by 5/12/2014. (hs) (Entered: 03/27/2014)
774 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER,

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04/29/2014 04/29/2014 05/22/2014
05/28/2014 05/28/2014 06/18/2014
06/23/2014 06/23/2014 08/05/2014
08/05/2014

CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 04/23/2014)
MINUTE ORDER: It is hereby ORDERED that plaintiff's consent motion 774 for extension of time be, and hereby is, GRANTED. Plaintiff's opposition shall be filed by May 23, 2014, and defendant's reply shall be filed by June 11, 2014. Signed by Chief Judge Richard W. Roberts on 4/29/14. (lcrwr2) (Entered: 04/29/2014)
Reset Deadlines: Plaintiff's Response due by 5/23/2014; Defendant's Reply due by 6/11/2014. (hs) (Entered: 04/29/2014)
775 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 05/22/2014)
MINUTE ORDER: It is hereby ORDERED that plaintiff's consent motion 775 for extension of time be, and hereby is, GRANTED nunc pro tunc. Plaintiff's opposition shall be filed by June 23, 2014, and defendant's reply shall be filed by July 11, 2014. Signed by Chief Judge Richard W. Roberts on 5/28/14. (lcrwr2) (Entered: 05/28/2014)
Set/Reset Deadlines: Plaintiffs' Opposition due by 6/23/2014; Replies due by 7/11/2014. (hs) (Entered: 05/28/2014)
776 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 06/18/2014)
MINUTE ORDER: It is hereby ORDERED that plaintiff's consent motion 776 for extension of time be, and hereby is, GRANTED. Plaintiff's opposition shall be filed by August 6, 2014, and defendant's reply shall be filed by September 26, 2014. Signed by Chief Judge Richard W. Roberts on 6/23/14. (lcrwr2) (Entered: 06/23/2014)
Set/Reset Deadlines: Plaintiff's Response due by 8/6/2014, Defendant's Reply due by 9/26/2014. (hs) (Entered: 06/23/2014)
777 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/05/2014)
778 TRANSCRIPT OF PROCEEDINGS before Chief Judge Richard W. Roberts Page Numbers: 1−33. Date of Issuance:7−31−13. Court Reporter/Transcriber Scott Wallace, Telephone number 202−354−3196, Court Reporter Email Address : Scottlyn01@aol.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 8/26/2014. Redacted Transcript Deadline set for 9/5/2014. Release of Transcript Restriction set for 11/3/2014.(Wallace, Scott) (Entered: 08/05/2014)

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08/11/2014 08/12/2014 08/26/2014 09/04/2014
09/08/2014
09/08/2014 09/17/2014 09/19/2014 09/22/2014 09/23/2014
09/29/2014 10/03/2014

779 STATUS REPORT (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 08/11/2014)
780 USCA ORDER. (USCA Case Number 13−8002) (certified copy) ORDERED that the petition be denied for the reasons stated in the opinion issued herein this date. Because no appeal has been allowed, no mandate will issue. The Clerk is directed to transmit to the United States District Court for the District of Columbia a certified copy of this order. (kb) (Entered: 08/12/2014)
781 MOTION for Hearing (Request for a Status Conference) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/26/2014)
782 Consent MOTION for Extension of Time to File Response/Reply as to 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 09/04/2014)
MINUTE ORDER: It is hereby ORDERED that plaintiff's consent motion 782 for extension of time be, and hereby is, GRANTED. Plaintiff's opposition shall be filed by September 23, 2014, and defendant's reply shall be filed by November 14, 2014. It is further ORDERED that plaintiff's consent motion 777 for extension of time be, and hereby is, DENIED as moot. It is further ORDERED that Plaintiff's motion 781 for a status conference be, and hereby is, DENIED. The parties shall file a joint status report and proposed order by September 17, 2014 updating the court on the status of the appeal and proposing a schedule for the case to proceed. Signed by Chief Judge Richard W. Roberts on 9/8/14. (lcrwr2) (Entered: 09/08/2014)
Set/Reset Deadlines: Plaintiffs' Response due by 9/23/2014, Reply due by 11/14/2014. Joint Status Report due by 9/17/2014 (hs) (Entered: 09/08/2014)
783 STATUS REPORT (Joint) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 09/17/2014)
784 ORDER granting 760 Plaintiffs' Motion to Strike Dr. Rick Jacobs' Expert Report. Signed by Magistrate Judge Deborah A. Robinson on September 19, 2014. (SRH) (Entered: 09/19/2014)
785 Unopposed MOTION for Leave to File Excess Pages by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 09/22/2014)
786 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service, # 3 Memorandum in Support, # 4 Statement of Facts, # 5 Exhibit, # 6 Exhibit)(Cacace, Megan) (Entered: 09/23/2014)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' consent motion 785 for leave to file excess pages be, and hereby is, GRANTED. The parties are permitted to file 25 additional pages on the plaintiffs' opposition and the defendant's reply. Signed by Chief Judge Richard W. Roberts on 09/29/2014. (lcrwr2) (Entered: 09/29/2014)
787 RESPONSE TO ORDER OF THE COURT re 784 Order on Motion to Strike filed by MICHAEL CHERTOFF. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 95 of 103

10/10/2014
10/14/2014 10/14/2014
10/14/2014 10/14/2014

Exhibit)(Peterson, Benton) (Entered: 10/03/2014)
788 Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Objections to Magistrate's Ruling by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Cacace, Megan) (Entered: 10/10/2014)
789 ORDER granting 786 Sealed Motion for Leave to File Document Under Seal. Signed by Chief Judge Richard W. Roberts on 10/14/14. (lcrwr2) (Entered: 10/14/2014)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' unopposed motion 788 for an extension of time until October 27, 2014 to submit plaintiffs' response to defendant's objections 787 to magistrate judge's ruling 784 be, and hereby is, GRANTED. Signed by Chief Judge Richard W. Roberts on 10/14/2014. (lcrwr2) (Entered: 10/14/2014)
Set/Reset Deadlines: Plaintiff's Response due by 10/27/2014 (hs) (Entered: 10/14/2014)
790 TRANSCRIPT OF PROCEEDINGS before Magistrate Judge Deborah A. Robinson. Motion Hearing held on 3/10/2014; Page Numbers: 1−97. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464−1083, Court Reporter Email Address : brs−ct@sbcglobal.net.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.

10/14/2014 10/24/2014 10/27/2014 11/06/2014 11/13/2014

Redaction Request due 11/4/2014. Redacted Transcript Deadline set for 11/14/2014. Release of Transcript Restriction set for 1/12/2015.(znmw, ) (Entered: 10/14/2014)
791 SEALED OPPOSITION filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2)(zjf, ) (Entered: 10/15/2014)
MINUTE ORDER: Upon consideration of the parties' joint status report 783 , and in light of the defendant's objections 787 to the magistrate judge's order 784 granting plaintiffs' motion 760 to strike Dr. Rick Jacobs' expert report, it is hereby ORDERED that the deadlines for expert depositions set forth in the 10/30/2013 order 758 be, and hereby are, STAYED pending resolution of the defendant's objections 787 . Signed by Chief Judge Richard W. Roberts on 10/24/2014. (lcrwr2) (Entered: 10/24/2014)
792 RESPONSE to Defendant's Objections to Magistrate's Ruling filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Exhibit)(Cacace, Megan) (Entered: 10/27/2014)
793 REPLY re 792 RESPONSE to Defendant's 784 Objections to Magistrate's Ruling filed by MICHAEL CHERTOFF. (Peterson, Benton) Modified on 11/7/2014 (jf, ). (Entered: 11/06/2014)
794 MOTION for Extension of Time to Reply in Support of Motion for Partial Dismissal and/or Partial Summary Judgment of Second Amended Complaint (ECF No. 768) by

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 96 of 103

11/14/2014
11/14/2014 11/14/2014 11/17/2014 11/19/2014 11/19/2014 12/01/2014
12/05/2014 12/05/2014 12/06/2014

JANET A. NAPOLITANO (Pfaffenroth, Peter) (Entered: 11/13/2014)
MINUTE ORDER: It is hereby ORDERED that the November 14, 2014 deadline for the defendant to reply to the plaintiffs' opposition 791 to the pending motion for partial dismissal and/or for partial summary judgment 768 be, and hereby is, SUSPENDED until further order of the Court. The plaintiffs shall have until November 19, 2014 to file any opposition to the defendant's pending motion 794 to enlarge time to reply, and the defendant shall have until November 24, 2014 to reply. Should no timely opposition be filed to the motion to enlarge, the motion will be granted and the deadline for replying to the plaintiffs' opposition 791 to the pending motion for partial dismissal and/or for partial summary judgment 768 will be December 5, 2014. Signed by Chief Judge Richard W. Roberts on 11/14/2014. (lcrwr2) (Entered: 11/14/2014)
Set/Reset Deadlines: Plaintiff's Response due by 11/19/2014; Defendant's Reply due by 11/24/2014. Reply to Motion for Partial Dismissal/Summary Judgment due by 12/5/2014. (hs) (Entered: 11/14/2014)
795 MOTION for Status Conference by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Cacace, Megan) (Entered: 11/14/2014)
796 MOTION for Order Setting Status Conference (Corrected) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Cacace, Megan) (Entered: 11/17/2014)
797 RESPONSE re 794 MOTION for Extension of Time to Reply in Support of Motion for Partial Dismissal and/or Partial Summary Judgment of Second Amended Complaint (ECF No. 768) filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Cacace, Megan) (Entered: 11/19/2014)
798 REPLY re 794 Motion, concerning extension motion for reply in support of motion for partial dismissal and/or partial summary judgment of Second Amended Complaint filed by JANET A. NAPOLITANO. (Attachments: # 1 Exhibit A (emails concerning extension request))(Pfaffenroth, Peter) Modified on 11/20/2014 (jf, ). (Entered: 11/19/2014)
MINUTE ORDER: In light of the plaintiffs' response 797 to the defendant's motion 794 for extension of time to file a reply in support of the defendant's motion 768 to dismiss in part and/or for partial summary judgment, it is hereby ORDERED that the defendant's motion 794 for extension of time be, and hereby is, GRANTED. The defendant shall have until Friday, December 5, 2014 to file a reply. Set/Reset Deadlines: Reply due by 12/5/2014. Signed by Chief Judge Richard W. Roberts on 12/1/2014. (lcrwr2) (Entered: 12/01/2014)
799 Consent MOTION for Leave to File Under Seal Defendant's Reply in Support of Motion for Partial Dismissal And/Or for Partial Summary Judgment, and related documents and exhibits by JANET A. NAPOLITANO (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 12/05/2014)
800 SEALED REPLY TO OPPOSITION filed by JANET A. NAPOLITANO re 768 MOTION to Dismiss in Part and/or MOTION for Partial Summary Judgment of Second Amended Class Complaint (Attachments: # 1 Statement of Facts Reply)(Pfaffenroth, Peter) (Entered: 12/05/2014)
801 SEALED DOCUMENT filed by JANET A. NAPOLITANO re 800 Sealed Reply, (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 46, # 2 Exhibit 47, # 3 Exhibit 48, # 4 Exhibit 49, # 5 Exhibit 50, # 6 Exhibit 51, # 7 Exhibit 52, # 8 Exhibit 53, # 9 Exhibit 54, # 10 Exhibit 55, # 11 Exhibit 56, # 12 Exhibit 57, # 13 Exhibit 58, # 14 Exhibit 59, # 15 Exhibit 60, # 16 Exhibit 61, # 17 Exhibit 62, # 18 Exhibit 63, # 19 Exhibit 64, # 20 Exhibit 65, # 21 Exhibit 66, # 22 Exhibit 67, # 23 Exhibit 68, # 24 Exhibit 69, # 25 Exhibit 70, # 26

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 97 of 103

12/15/2014 12/31/2014 01/02/2015 01/08/2015
01/22/2015 01/26/2015
01/26/2015 02/11/2015
02/11/2015
02/26/2015 03/02/2015

Exhibit 71, # 27 Exhibit 72, # 28 Exhibit 73, # 29 Exhibit 74, # 30 Exhibit 75, # 31 Exhibit 76, # 32 Exhibit 77, # 33 Exhibit 78, # 34 Exhibit 79)(Pfaffenroth, Peter) (Entered: 12/06/2014)
MINUTE ORDER: It is hereby ORDERED that the defendant's consent motion 799 for leave to file its reply and related documents under seal be, and hereby is, GRANTED. Signed by Chief Judge Richard W. Roberts on 12/15/14. (lcrwr2) (Entered: 12/15/2014)
802 MOTION for Scheduling Order by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2)(Klar, Jennifer) (Entered: 12/31/2014)
803 Memorandum in opposition to re 802 MOTION for Scheduling Order filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 01/02/2015)
804 MEMORANDUM OPINION AND ORDER overruling the defendant's objections 787 to the magistrate judge's order 784 granting the plaintiffs' motion 760 to strike Dr. Rick Jacobs' Expert Report; directing the parties to confer and file within 14 days a joint status report and proposed order; denying as moot the plaintiffs' corrected motion 796 for a status hearing; and denying as moot the plaintiffs' motion 802 for a scheduling order. Signed by Chief Judge Richard W. Roberts on 1/8/15. (lcrwr2) (Entered: 01/08/2015)
805 STATUS REPORT (Joint) and Proposed Order by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 01/22/2015)
MINUTE ORDER: Upon consideration of the parties' joint status report 805 , it is hereby ORDERED that the parties' request for an extended briefing schedule for any remaining dispositive motions be, and hereby is, GRANTED. Dispositive motions shall be filed by February 27, 2015; oppositions shall be filed by April 14, 2015; and replies shall be filed by May 8, 2015. Further scheduling will occur with the resolution of dispositive motions. Signed by Chief Judge Richard W. Roberts on 1/26/15. (lcrwr2) (Entered: 01/26/2015)
Set/Reset Deadlines: Dispositive Motions due by 2/27/2015, Response to Dispositive Motions due by 4/14/2015 and Reply to Dispositive Motions due by 5/8/2015. (hs) (Entered: 01/26/2015)
806 MOTION for Leave to File Surreply to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A (Surreply), # 3 Exhibit 72−78)(Cacace, Megan) (Entered: 02/11/2015)
807 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service, # 3 Exhibit Sealed Exhibit 74)(Cacace, Megan) (Entered: 02/11/2015)
808 Unopposed MOTION for Extension of Time to File Dispositive Motion by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 02/26/2015)
809 RESPONSE re 806 MOTION for Leave to File Surreply to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment filed by JANET A. NAPOLITANO. (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 03/02/2015)

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 98 of 103

03/09/2015 03/09/2015 03/17/2015
03/17/2015 03/17/2015 03/17/2015
03/19/2015 03/25/2015
03/31/2015
03/31/2015 03/31/2015 05/11/2015 05/11/2015

MINUTE ORDER: It is hereby ORDERED that the defendant's unopposed Motion 808 to Alter Briefing Schedule be, and hereby is, GRANTED. Dispositive motions shall be filed by March 18, 2015; oppositions shall be filed by May 4, 2015; and replies shall be filed by May 27, 2015. Signed by Chief Judge Richard W. Roberts on 3/9/15. (lcrwr2) (Entered: 03/09/2015)
Set/Reset Deadlines: Dispositive Motions due by 3/18/2015. Response to Dispositive Motions due by 5/4/2015. Reply to Dispositive Motions due by 5/27/2015. (hs) (Entered: 03/09/2015)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' motion 806 for leave to file a surreply to Defendant's motion 800 for partial dismissal and/or partial summary judgment be, and hereby is, GRANTED. It is further ORDERED that the plaintiffs' consent motion 807 to file under seal certain exhibits associated with their proposed surreply be, and hereby is, GRANTED. It is further ORDERED that the defendant shall have until March 31, 2015 by which to file any additional response to the plaintiffs' surreply. Signed by Chief Judge Richard W. Roberts on 3/17/15. (lcrwr2) (Entered: 03/17/2015)
Set/Reset Deadlines: Defendant's Response due by 3/31/2015 (hs) (Entered: 03/17/2015)
810 MOTION to Amend/Correct Order on Motion for Extension of Time to File, by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 03/17/2015)
MINUTE ORDER: In light of the defendant's assurance that "barring some unforeseen emergency no further extensions will be sought with respect to" dispositive motions, it is hereby ORDERED that the defendant's Motion 810 to Alter Briefing Schedule be, and hereby is, GRANTED. Dispositive motions shall be filed by March 25, 2015; oppositions shall be filed by May 11, 2015; and replies shall be filed by June 3, 2015. Signed by Chief Judge Richard W. Roberts on 3/17/15. (lcrwr2) (Entered: 03/17/2015)
Set/Reset Deadlines: Dispositive Motions due by 3/25/2015. Response to Dispositive Motions due by 5/11/2015. Reply to Dispositive Motions due by 6/3/2015. (hs) (Entered: 03/19/2015)
811 WITHDRAWN PURSUANT TO MINUTE ORDER FILED 1/31/17. . . . . MOTION for Summary Judgment on Plaintiffs' Class Claims by JANET A. NAPOLITANO (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 24, # 9 Exhibit 47, # 10 Exhibit 52, # 11 Exhibit 53, # 12 Exhibit 63, # 13 Exhibit 64)(Braswell, Marina) Modified on 2/1/2017 (td). (Entered: 03/25/2015)
812 RESPONSE re 806 MOTION for Leave to File Surreply to Defendant's Motion for Partial Dismissal and/or for Partial Summary Judgment (Defendant's Response to Plaintiffs' Surreply, as permitted by 3−17−15 Minute Order) filed by JANET A. NAPOLITANO. (Attachments: # 1 Exhibit 81 (discovery correspondence), # 2 Exhibit 82 (P. Edna dep. excerpt), # 3 Exhibit 83 (administrative leave policies))(Pfaffenroth, Peter) (Entered: 03/31/2015)
813 Consent MOTION for Leave to File Under Seal One Exhibit to Defendant's Response to Plaintiffs' Surreply by JANET A. NAPOLITANO (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 03/31/2015)
814 SEALED DOCUMENT filed by JANET A. NAPOLITANO re 812 Response to Document, (This document is SEALED and only available to authorized persons.)(Pfaffenroth, Peter) (Entered: 03/31/2015)
815 Unopposed MOTION for Leave to File Excess Pages by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 05/11/2015)
816 Memorandum in opposition to re 811 MOTION for Summary Judgment on Plaintiffs' Class Claims filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L.

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 99 of 103

05/27/2015 05/29/2015 05/29/2015 06/01/2015
06/02/2015 06/05/2015 06/05/2015 06/15/2015 08/27/2015
09/14/2015 03/01/2016 03/09/2016

TYLER. (Attachments: # 1 Response to Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16)(Klar, Jennifer) (Entered: 05/11/2015)
MINUTE ORDER: It is hereby ORDERED that the plaintiffs' unopposed motion 815 for leave to file excess pages be, and hereby is, GRANTED NUNC PRO TUNC. Signed by Chief Judge Richard W. Roberts on 5/27/15. (lcrwr2) (Entered: 05/27/2015)
817 MOTION for Extension of Time to File Response/Reply by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 05/29/2015)
818 Memorandum in opposition to re 817 MOTION for Extension of Time to File Response/Reply filed by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 05/29/2015)
MINUTE ORDER: On March 17, 2015, the Court granted the defendant's motion to delay the briefing schedule for the defendant's motion for summary judgment on the plaintiffs' class claims in light of the defendant's assurance that "barring some unforeseen emergency no further extensions will be sought with respect to this filing." The defendant now moves 817 for a 23−day extension of time to file its reply regarding its motion for summary judgment on the plaintiffs' class claims. Applying the same standard to the current motion as the defendant advanced before, the Court finds no facts articulated in the current motion that constitute an unforeseen emergency warranting a 23−day extension on the reply deadline. Accordingly, it is hereby ORDERED that the defendant's motion be, and hereby is, GRANTED IN PART AND DENIED IN PART. The defendant shall have until Friday, June 5, 2015 to file any reply regarding the defendant's motion for summary judgment on the plaintiffs' class claims. Signed by Chief Judge Richard W. Roberts on 6/1/15. (lcrwr2) (Entered: 06/01/2015)
Set/Reset Deadlines: Defendant's Reply due by 6/5/2015. (hs) (Entered: 06/02/2015)
819 Unopposed MOTION for Leave to File Excess Pages in Reply Brief by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 06/05/2015)
820 REPLY to opposition to motion re 811 MOTION for Summary Judgment on Plaintiffs' Class Claims filed by JANET A. NAPOLITANO. (Braswell, Marina) (Entered: 06/05/2015)
MINUTE ORDER: It is hereby ORDERED that the defendant's unopposed motion 819 for leave to file excess pages be, and hereby is, GRANTED NUNC PRO TUNC. Signed by Chief Judge Richard W. Roberts on 6/15/15. (lcrwr2) (Entered: 06/15/2015)
821 MOTION for Order Scheduling a Status Conference to Reserve a Trial Date, or in the Alternative, Reserving a Trial Date by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 08/27/2015)
822 Memorandum in opposition to re 821 MOTION for Order Scheduling a Status Conference to Reserve a Trial Date, or in the Alternative, Reserving a Trial Date filed by MICHAEL CHERTOFF. (Braswell, Marina) (Entered: 09/14/2015)
823 NOTICE of Filing Letter from Reginald Moore by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Letter from Reginald Moore)(Klar, Jennifer) (Entered: 03/01/2016)
MINUTE ORDER granting 821 Motion for Order Scheduling a Status Conference: It is hereby ORDERED that plaintiffs' motion 821 for a status conference be, and hereby is, GRANTED. It is further ORDERED that the parties confer and submit within 10 days a joint status report and proposed order reflecting three mutually agreeable dates on which to hold the status conference. The parties are directed to be prepared at the

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 100 of 103

03/10/2016 03/10/2016 03/21/2016
03/25/2016 04/01/2016 04/05/2016
04/06/2016 04/21/2016
05/05/2016
11/28/2016 12/16/2016 01/17/2017 01/23/2017

conference to report on the total number of witnesses they plan to present in their cases−in−chief; of those, the total numbers of expert, non−expert, and custodians of record witnesses, if any, that they plan to present; and how long they estimate their cases will take to present. Two sets of these projections per party are to be prepared −− one assuming the pending dispositive motions [768, 811] are granted and one assuming those motions are denied. Signed by Chief Judge Richard W. Roberts on 3/9/15. (lcrwr2) (Entered: 03/09/2016)
MINUTE ORDER; granting 813 CONSENT MOTION for Leave to File Under Seal One Exhibit to Defendant's Response to Plaintiffs' Surreply by JANET A. NAPOLITANO, by Chief Judge Richard W. Roberts on 3/9/2016. (hs) (Entered: 03/10/2016)
824 NOTICE OF SUBSTITUTION OF COUNSEL by Kathryn Marshall Ali on behalf of All Plaintiffs Substituting for attorney Erica Knievel Songer (Ali, Kathryn) (Entered: 03/10/2016)
825 Joint STATUS REPORT re: Court's 3/9/16 Minute Order by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Attachments: # 1 Text of Proposed Order)(Klar, Jennifer) (Entered: 03/21/2016)
826 NOTICE of Filing of Declaration of George D. Mulligan by JANET A. NAPOLITANO re 823 Notice (Other), (Attachments: # 1 Declaration of COO George D. Mulligan)(Pfaffenroth, Peter) (Entered: 03/25/2016)
Case directly reassigned to Judge Paul L. Friedman by consent. Judge Richard W. Roberts has retired and is no longer assigned to the case. (ztnr) (Entered: 04/01/2016)
MINUTE ORDER. Oral argument on the two pending motions before the Court, Dkt. Nos. 768 & 811, is scheduled for 10:00 a.m. on May 5, 2016. Each side will have thirty minutes, including rebuttal. The parties are directed to meet and confer and file a joint statement on or before April 21, 2016 as to how the time for argument will be allocated between the various issues. Signed by Judge Paul L. Friedman on April 5, 2016. (MA) (Entered: 04/05/2016)
Set/Reset Deadlines/Hearings: Joint statement due by 4/21/2016. Oral argument set for 5/5/2016 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. (cdw) (Entered: 04/06/2016)
827 Joint STATUS REPORT (Joint Statement re: Allocation of Oral Argument Time) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 04/21/2016)
Minute Entry for proceedings held before Judge Paul L. Friedman: Motion Hearing held on 5/5/2016 re 811 Motion for Summary Judgment on Plaintiffs' Class Claims filed by JANET A. NAPOLITANO, 768 MOTION to Dismiss in Part and/or Motion for Partial Summary Judgment of Second Amended Class Complaint filed by JANET A. NAPOLITANO. Motions heard and taken under advisement. (Court Reporter Lisa Moreira) (zmm) (Entered: 05/05/2016)
MINUTE ORDER directing the parties to file a Joint Status Report concerning the status of the case on or before December 20, 2016. Signed by Judge Paul L. Friedman on November 28, 2016. (MA) (Entered: 11/28/2016)
MINUTE ORDER terminating the parties' obligation to file a joint status report on or before December 20, 2016, based on the Court's telephone conference with counsel for all parties on December 15, 2015. Signed by Judge Paul L. Friedman on December 16, 2016. (lcplf2) (Entered: 12/16/2016)
828 NOTICE of Settlement : Settlement Agreement, Release, And Consent Decree by JANET A. NAPOLITANO (Braswell, Marina) (Entered: 01/17/2017)
MINUTE ORDER that the parties shall appear for a preliminary fairness hearing concerning the 828 Settlement Agreement, Release, and Consent Decree on January

Case: 1:00-cv-953 As of: 03/24/2019 11:41 PM EDT 101 of 103

01/25/2017 01/27/2017 01/27/2017
01/27/2017
01/31/2017
01/31/2017 01/31/2017 01/31/2017 02/06/2017 02/09/2017

31, 2017, at 9:30 a.m. Signed by Judge Paul L. Friedman on January 23, 2017. (MA) (Entered: 01/23/2017)
Set/Reset Hearings: Preliminary Fairness Hearing set for 1/31/2017 at 09:30 AM in Courtroom 29A before Judge Paul L. Friedman. (tj) (Entered: 01/25/2017)
829 Joint MOTION for Order Granting Preliminary Approval of Settlement by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6)(Klar, Jennifer) Modified on 1/30/2017 (jf). (Entered: 01/27/2017)
830 ERRATA by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER 829 Joint MOTION for Order Granting Preliminary Approval of Distribution of Settlement filed by CAMILLA SIMMS, LEROY HENDRIX, CHERYL L. TYLER, REGINALD G. MOORE, KENNETH ROOKS, LISA ROBERTSON, C. YVETTE SUMMEROUR, LUTHER K. IVERY, JOHN E. TURNER, ANDREW E. HARRIS, JR.. (Klar, Jennifer) (Entered: 01/27/2017)
831 MOTION for Order Granting Plaintiffs' Motion for Preliminary Approval of Distribution of Settlement Proceeds by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6)(Klar, Jennifer) (Entered: 01/27/2017)
Minute Entry for proceedings held before Judge Paul L. Friedman: Preliminary Fairness Hearing held on 1/31/2017. A Final Fairness Hearing is scheduled for 4/13/2017 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. A Motion Hearing is scheduled for 2/16/2017 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. The parties, as directed by the Court, will submit a joint scheduling order. Summary Judgment Motions docketed under ECF 768 and 811 , orally withdrawn by the Government. (Court Reporter Scott Wallace.) (tg) (Entered: 01/31/2017)
832 ORDER granting 829 joint motion for preliminary approval of proposed class action settlement and approval of notice. A fairness hearing shall be held on April 13, 2017 at 10:00 a.m. in Courtroom 29A. Signed by Judge Paul L. Friedman on January 31, 2017. (MA) (Entered: 01/31/2017)
MINUTE ORDER that, in light of the representations of counsel for the United States at the preliminary fairness hearing on January 31, 2017, that it wishes to withdraw 768 its motion to dismiss and/or for partial summary judgment and 811 its motion for summary judgment, the clerk of the Court is directed to withdraw both motions. Signed by Judge Paul L. Friedman on January 31, 2017. (MA) (Entered: 01/31/2017)
MINUTE ORDER directing the parties to appear at 10:00 a.m. on February 16, 2017, for a hearing on 831 plaintiff's motion for preliminary approval of distribution of settlement proceeds, and at 10:00 a.m. on April 13, 2017, for a final fairness hearing concerning 828 the settlement agreement, release, and consent decree. Signed by Judge Paul L. Friedman on January 31, 2017. (MA) (Entered: 01/31/2017)
833 RESPONSE re 831 MOTION for Order Granting Plaintiffs' Motion for Preliminary Approval of Distribution of Settlement Proceeds filed by MICHAEL CHERTOFF. (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 02/06/2017)
834 NOTICE of Proposed Order (Joint Scheduling Order) by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Klar, Jennifer) (Entered: 02/09/2017)

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02/09/2017 02/16/2017 02/16/2017 02/16/2017 03/13/2017 03/20/2017 04/07/2017
04/10/2017 04/12/2017 04/12/2017 04/13/2017 04/24/2017 04/28/2017

MINUTE ORDER vacating the hearing scheduled for 10:00 a.m. on February 16, 2017, in light of the parties' agreement on the wording of a proposed order granting 831 plaintiff's motion for preliminary approval of distribution of settlement proceedings, as described in 833 defendant's response to that motion. Signed by Judge Paul. L. Friedman on February 9, 2016. (lcplf2) (Entered: 02/09/2017)
835 ORDER granting 831 plaintiffs' motion for preliminary approval of distribution of settlement proceeds. Signed by Judge Paul L. Friedman on February 16, 2017. (MA) Attachments: # 1 Instructions to claim form, # 2 claim form, # 3 questionnaire) (tj). (Entered: 02/16/2017)
836 SCHEDULING ORDER. Signed by Judge Paul L. Friedman on February 16, 2017. The final fairness hearing is scheduled for April 13, 2017 at 10:00am in Courtroom 29A. (MA) (Entered: 02/16/2017)
Set/Reset Hearings: Fairness Hearing set for 4/13/2017 at 10:00 AM in Courtroom 29A before Judge Paul L. Friedman. (tj) (Entered: 02/16/2017)
837 MOTION for Attorney Fees by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Cacace, Megan) (Entered: 03/13/2017)
838 RESPONSE re 837 MOTION for Attorney Fees filed by JANET A. NAPOLITANO. (Pfaffenroth, Peter) (Entered: 03/20/2017)
839 NOTICE Regarding Defendant's Response to Plaintiff's Motion for an Award of Attorney's Fees and Costs by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 838 Response to motion (Attachments: # 1 Exhibit A)(Cacace, Megan) (Entered: 04/07/2017)
840 Joint MOTION for Order Granting Final Approval of Settlement by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Klar, Jennifer) (Entered: 04/10/2017)
841 ORDER re matters to be discussed at fairness hearing on April 13, 2017. Signed by Judge Paul L. Friedman on April 12, 2017. (MA) (Entered: 04/12/2017)
842 NOTICE OF PROPOSED ORDER Regarding Order on Fairness Hearing by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re 841 Order (Cacace, Megan) Modified text on 4/13/2017 (td). (Entered: 04/12/2017)
Minute Entry for proceedings held before Judge Paul L. Friedman: Fairness Hearing held on 4/13/2017. 840 Joint MOTION for Order Granting Final Approval of Settlement GRANTED for reasons stated on the record. 837 Plaintiff's MOTION for Attorney Fees GRANTED for reasons stated on the record. (Court Reporter: Scott Wallace.) (tj) (Entered: 04/13/2017)
MINUTE ORDER that on or before May 5, 2017, the parties shall submit modified proposed orders granting the joint motion for final approval of the class action settlement 840 and the motion for attorneys' fees 837 , which address the concerns that the Court raised at the April 13, 2017 final fairness hearing. Signed by Judge Paul L. Friedman on April 24, 2017. (MA) (Entered: 04/24/2017)
843 NOTICE of Proposed Order (Joint) Granting Final Approval of Settlement by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re Order, (Cacace, Megan) (Entered: 04/28/2017)

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04/28/2017 05/03/2017 05/03/2017 05/03/2017 07/11/2017
09/21/2017 12/07/2017

844 NOTICE of Proposed Order (Joint) Granting Motion for Attorney's Fees and Costs by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, LISA ROBERTSON, KENNETH ROOKS, CAMILLA SIMMS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER re Order, (Cacace, Megan) (Entered: 04/28/2017)
MINUTE ORDER granting nunc pro tunc to April 13, 2017 840 the Joint Motion for Final Approval of Settlement Agreement. Signed by Judge Paul L. Friedman on May 3, 2017. (MA) (Entered: 05/03/2017)
845 ORDER granting final approval of class action settlement. Signed by Judge Paul L. Friedman on May 3, 2017. (MA) (Entered: 05/03/2017)
846 ORDER granting 837 plaintiffs' motion for an award of attorney's fees and costs. Signed by Judge Paul L. Friedman on May 3, 2017. (MA) (Entered: 05/03/2017)
847 TRANSCRIPT OF PROCEEDINGS before Judge Paul L. Friedman held on 4−13−17; Page Numbers: (1−52). Date of Issuance:7−11−17. Court Reporter/Transcriber Scott Wallace, Telephone number 202−354−3196, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/1/2017. Redacted Transcript Deadline set for 8/11/2017. Release of Transcript Restriction set for 10/9/2017.(Wallace, Scott) (Entered: 07/11/2017)
848 STIPULATION Regarding Delayed Distribution of a Portion of Settlement Proceeds Due to Treasury Offset Program by ANDREW E. HARRIS, JR, LEROY HENDRIX, LUTHER K. IVERY, REGINALD G. MOORE, KENNETH ROOKS, C. YVETTE SUMMEROUR, JOHN E. TURNER, CHERYL L. TYLER. (Klar, Jennifer) (Entered: 09/21/2017)
849 ORDER that defendant shall provide to Class Counsel the Social Security numbers of participating Class Members awarded payment from the Settlement Proceeds, to be shared only with Class Administrator and used solely for the purpose of administration of the Settlement Proceeds in this case. Signed by Judge Paul L. Friedman on December 7, 2017. (MA) (Entered: 12/07/2017)