110 F.3d 87 (D.C. Cir. 1997), 95-5336, Eubanks v. Billington

Docket Nº:95-5336, 95-5387.
Citation:110 F.3d 87
Party Name:Fed. 759, 37 Fed.R.Serv.3d 691 Walter Woodburn EUBANKS, Appellant, v. James H. BILLINGTON, Appellee. Tommy SHAW, Appellant, v. James H. BILLINGTON, Appellee.
Case Date:April 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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110 F.3d 87 (D.C. Cir. 1997)

Fed. 759,

37 Fed.R.Serv.3d 691

Walter Woodburn EUBANKS, Appellant,


James H. BILLINGTON, Appellee.

Tommy SHAW, Appellant,


James H. BILLINGTON, Appellee.

Nos. 95-5336, 95-5387.

United States Court of Appeals, District of Columbia Circuit

April 11, 1997

Argued Feb. 4, 1997.

Rehearing Denied June 13, 1997.

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Appeals from the United States District Court for the District of Columbia (No. 82cv00400).

Jeanne Goldberg, Alexandria, VA, and Alan D. Strasser, Washington, DC, argued the cause for appellants, with whom Victor M. Glasberg and Stephen R. Smith were on the briefs.

Madelyn E. Johnson, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee Billington, with whom Eric H. Holder, Jr., U.S. Attorney, R. Craig Lawrence and John O. Birch, Assistant U.S. Attorneys, were on the brief.

Marc L. Fleischaker, David L. Kelleher and Joseph M. Sellers, Washington, DC, were on the brief for appellees Howard R.L. Cook, et al. David E. Mills entered an appearance.

Before: EDWARDS, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellants Walter Woodburn Eubanks and Tommy Shaw appeal an order denying their motions to opt out of a settlement agreement in a class action alleging discriminatory employment practices by the Library of Congress. Appellants, who contend that they were denied promotions on account of their race, seek to opt out of the class, which was certified pursuant to FED. R. CIV. P. 23(b)(2), so that they can pursue individual claims that they are entitled to promotions and back pay. They contend that the district court erred as a matter of law in ruling that it lacked discretion to permit opt-outs from the (b)(2) class, and abused its discretion in ruling, alternatively, that appellants had failed to show that they were entitled to opt out. We agree with appellants that the district court erred in ruling it lacked discretion to permit appellants to opt out of the class, but we find no abuse of discretion by the court in denying their motions to do so.


In 1975, Howard Cook, David Andrews, and the Black Employees of the Library of Congress ("BELC") filed an administrative

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complaint with the Library of Congress alleging that it had engaged in discriminatory employment practices in violation of § 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. In 1982, after the Library rejected their administrative complaint, Cook and the BELC filed the instant lawsuit, alleging that the Library systematically discriminated against African American professional and administrative employees in promotion and advancement decisions. After permitting six new employees, including appellant Shaw, to intervene as plaintiffs, the court denied intervention by thirty-one additional employees and they appealed. This court reversed, holding that the thirty-one employees were entitled to intervene as a matter of right. Cook v. Boorstin, 763 F.2d 1462, 1471 (D.C.Cir.1985). In remanding the case, this court suggested that the district court reconsider its denial of class certification in light of the large number of employees to be granted intervention as a matter of right. Id. at 1471. The court noted that the district court had denied the plaintiffs' request for certification of a class action and instead had created six subclasses to match the facts alleged by the six named plaintiffs, but subsequently decertified all but one subclass, the Shaw 4(a) subclass, which consisted of black employees allegedly not promoted because of the Library's failure to post certain job openings, and did not include any of the Cook appellants. 1 Id. at 1465.

On remand, while the plaintiffs' renewed motion for class certification was pending, the Library conceded liability as to the Shaw 4(a) subclass, but not as to any individual, non-class claims. The district court enjoined the Library from making new appointments pursuant to § 4(a), assessed monetary damages in the amount of $805,264.01 for front pay and back pay, 2 and awarded $10,000 to appellant Shaw as the subclass representative. The money damages were to be allocated among class members on the basis of individual hearings before a magistrate judge.

Meanwhile, in 1988, the district court certified a class pursuant to FED.R.CIV.P. 23(b)(2) of:

All past, present, and future black employees at the Library of Congress who possess the minimum objective qualifications necessary to be eligible under valid, nondiscriminatory standards for selection or promotion to any professional or administrative position at the Library of Congress, and who have been, are being, or may in the future be, denied equal employment or promotional opportunities as a result of defendant's discriminatory practices....

On August 14, 1992, the district court granted the plaintiffs' motion for partial summary judgment, ruling that as to the (b)(2) class plaintiffs had made out a prima facie case of both disparate treatment and disparate impact in the competitive promotion process, and that the Library had failed to present any legitimate, nondiscriminatory justification for its employment selection procedure. Thereafter the parties entered into a settlement agreement.

The settlement agreement set new procedures for competitive selections and required non-competitive personnel actions to be

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based on "legitimate, nondiscriminatory job-related criteria." It also called for equal employment opportunity training of Library supervisors, and required the Library to provide plaintiffs' counsel with access to records to monitor compliance. In addition, the settlement agreement required the Library to pay $8.5 million "in full and complete satisfaction of all claims for back pay," and provided that "[t]he payment of this sum shall resolve all claims for monetary relief that are or could have been claimed in actions barred by the preclusive effect of this Agreement as provided in Paragraph 31, except for claims for attorneys' fees, costs, and interest on fees and costs." 3 The settlement included the $805,264.01 previously awarded by the district court to the Shaw 4(a) subclass. Further, the Library agreed to promote 40 class members and to reassign laterally up to 10 class members. All issues of class membership and the allocation or distribution of relief under the agreement were to be decided by a Settlement Committee of up to thirteen class members, subject to review by the district court. 4

The settlement agreement made no provision for class members to opt out of the settlement to pursue individual claims against the Library. In a separate letter to the Library's counsel, class counsel agreed to refrain from advocating opt-outs to class members, and to advise the court that the settlement was fair and reasonable to the class as a whole. Class counsel also agreed not to advise on the fairness or legality of opting out for individual class members and, if asked by the court, to state that the law appeared to give the court discretion to allow opt-outs in certain circumstances.

Appellant Eubanks, an economist who has a doctoral degree and has worked for the Library since 1984, holds a Senior Level II (GS-16 equivalent) position with the Congressional Research Service Economics Division. On January 7, 1993, he filed an administrative complaint with the Library, see 42 U.S.C. § 2000e-16, alleging that the Library had chosen a new chief of the Economics Division without competitive posting or other notice, in violation of Library regulations and the district court's order enjoining the use of § 4(a). Although the Library investigated the complaint, it took no final action. Eubanks subsequently submitted a claim form in the class action and was notified that he would receive $6,842.32, but no promotion, as his share of the settlement. 5 Eubanks thereafter moved for leave to opt out of the settlement so that he could pursue an individual Title VII claim against the Library.

Appellant Shaw, who has a doctorate in personnel and industrial psychology, has worked for the Library since 1974. In 1980, he filed an administrative complaint alleging that the Library had "systematically excluded""

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him from consideration for the position of Director of Personnel, selecting a white male instead. Shaw maintains that the Library failed to conduct any competitive selection process, and selected the new Director without posting notice pursuant to § 4(a). In 1981, Shaw filed a second administrative complaint. While these complaints were pending, Shaw intervened in the instant case and was certified as the sole representative of the 4(a) subclass. See Cook, 763 F.2d at 1465. Shaw asserts that under the settlement agreement, he would receive $25,791.74, and an increase in salary from the GS-14 to the GS-15 level. He filed an objection to the proposed settlement agreement, alleging that it was "unfair, inadequate and unreasonable" because the promotions and monetary relief for Shaw 4(a) subclass members were not commensurate with their losses as a result of discrimination. He also filed a "motion for a separate hearing on damages," asking the district court to exercise its "discretion to allow Dr. Shaw (or any other Plaintiff, for that matter) to have an individual hearing on the issue of damages, or even to opt out of the settlement entirely and proceed with a full blown hearing on the merits."

The district court denied the motions of four class members, including appellants, to opt out of the settlement agreement. The court ruled that "there is no right to opt out of this class certified pursuant to Fed.R.Civ.P. 23(b)(2) and, alternatively, that, even...

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