In re Johnson

• Citation: 760 F.3d 66
• Decision Date: 01 August 2014
• Docket Number: No. 13–8002.,13–8002.
• Parties: In re Jeh Charles JOHNSON, Secretary of the U.S. Department of Homeland Security, Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

760 F.3d 66

In re Jeh Charles JOHNSON, Secretary of the U.S. Department of Homeland Security, Petitioner.

No. 13–8002.

United States Court of Appeals,District of Columbia Circuit.

Argued April 21, 2014.

Decided Aug. 1, 2014.

On Petition for Permission to Appeal from the United States District Court for the District of Columbia, (No. 1:00–cv–00953).

Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for petitioner. With her on the briefs were Stuart F. Delery, Assistant Attorney General, U.S. Department of Justice; Douglas N. Letter, Director; Marleigh D. Dover and Charles W. Scarborough, Attorneys; Ronald C. Machen Jr., U.S. Attorney; and R. Craig Lawrence, Benton G. Peterson, and Peter C. Pfaffenroth, Assistant U.S. Attorneys.

Catherine E. Stetson argued the cause for respondents. With her on the brief were E. Desmond Hogan, Erica Knievel Songer, Jennifer I. Klar, John P. Relman, and Megan Cacace.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, and GINSBURG, Senior Circuit Judge.

GINSBURG, Senior Circuit Judge:

Eight African–American Secret Service agents who were denied promotions to the GS–14 or GS–15 level, allegedly because of their race, were certified by the district court to sue the Secretary of the Department of Homeland Security on behalf of a class comprising all similarly situated agents, of whom there are approximately 120. The Government argues the plaintiffs are not eligible to proceed as a class under Federal Rule of Civil Procedure 23 because they do not meet the requirements of Rule 23(a) that there be “questions of law or fact common to the class” and that “the representative parties will fairly and adequately protect the interests of the class,” nor the requirements of Rule 23(b)(3) that “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.” The Government asks this court to exercise its discretion under Rule 23(f) to grant interlocutory review of the class certification order on the ground either that the decision is “manifestly erroneous” or that it presents “an unsettled and fundamental issue of law relating to class actions ... that is likely to evade end-of-the-case review.” In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C.Cir.2002). Because we conclude neither of these reasons for Rule 23(f) review is applicable, we shall not at this time review the order of the district court certifying the class.

I. Background ^*

The Secret Service employs about 3,000 Special Agents in seven major offices, each headquartered in Washington, D.C. Each office is run by an Assistant Director who reports to the Deputy Director and the Director of the Secret Service.

The Secret Service used a multistage process known as the Merit Promotion Plan (MPP) to select Special Agents for promotion to the GS–14 and GS–15 positions at issue in this case. In the first stage of the process, a Special Agent received numerical scores from (1) his or her immediate supervisor (First Level Evaluation), (2) a panel comprising a representative from each Assistant Director's office (Second Level Evaluation), and (3) for promotion to a GS–14 position, a panel comprising six peers and two alternates who are selected and convened annually by the Deputy Director (Peer Panel Evaluation). The MPP prescribed the criteria each of the three groups had to use to assign scores and the training that scorers received, provided common evaluation forms to scorers and applicants, and assigned weights to each of the component scores in order to come up with a final MPP score for each candidate. A Special Agent seeking a promotion used his or her final MPP score to “bid” for one or more available positions. Bidders for each position were ranked by their scores and the top 30 or the top 25%, whichever was greater, were placed on a “best qualified list” (BQL). Then the Advisory Board, comprising the Deputy Director, the seven Assistant Directors, and the Chief Counsel, reviewed the BQL for each position and made a recommendation to the Director of the Secret Service, who made the final promotion decision.

The named plaintiffs in this suit are current and former African–American Special Agents who bid for but did not receive GS–14 or GS–15 promotions under the MPP in the period from 1995 to 2005. They allege both that the Secret Service engaged in a pattern or practice of racial discrimination in making promotions and that the MPP had a disparate impact upon African–American Special Agents seeking promotions, 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 request relief in the form of back pay and compensatory damages to the extent the discrimination cost them promotions, and also ask for a declaratory judgment and an injunction requiring the Secret Service to end its allegedly discriminatory promotion practices. In order to support their two theories of discrimination, the plaintiffs proffered evidence that African–American Special Agents were disadvantaged both in the scoring process and in the final selection process.

BQLs were used to narrow the pool of applicants for approximately half the vacancies that arose during the class period; for the other half, there were few enough applicants that all were placed on the relevant BQL. The plaintiffs have proffered statistical evidence that the use of scores pursuant to the MPP disproportionately disqualified African–American Special Agents from reaching the BQLs throughout the class period. Additionally, their statistical evidence shows that when African–American Special Agents were included in the BQLs, they had lower mean ranks than would be expected in the absence of discrimination and more frequently failed to score as high as did the lowest-scoring agent who was promoted that year. The plaintiffs have also proffered statistical evidence that even when African–American Special Agents made it onto the BQLs, for certain years in the class period (1998 to 2000 for GS–14 promotions and 2002 to 2005 for GS–15 promotions), fewer of them were selected for promotion than would be expected in the absence of discrimination. Additionally, the plaintiffs have pointed to a “substantial continuity” throughout the class period among the personnel serving on the rating panels, on the Advisory Board, and as the Director, suggesting class members experienced in common whatever racial bias may have affected the subjective elements of the promotions process.

The named plaintiffs seek to represent the class of all similarly situated African–American Special Agents. The order here challenged by the Government was issued after the plaintiffs' fourth attempt to define the class so as to meet the requirements of Rule 23 for certification. Rule 23(a) requires that (1) the class be so numerous that joinder is impracticable, (2) there be at least one question essential to the resolution of the suit that can be answered in common for all members of the class, (3) the claims of the named plaintiffs be typical of the claims of all class members, and (4) the representative parties, i.e. the named plaintiffs and their counsel, will fairly and adequately protect the interests of the class. Rule 23(b)(3) requires a class seeking damages to show 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).

The class, as certified by the district court, comprises the following individuals, numbering approximately 120:

[A]ll 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 (2013). The plaintiffs arrived at this definition after having been denied class certification for including in the putative class Special Agents against whom class members had made “direct accusations of discrimination.” Id. at 31–32 (quoting Moore v. Napolitano, 269 F.R.D. 21, 34 (2010)). Finding no such conflict of interest in a class excluding those agents, the district court determined the plaintiffs met the adequacy of representation requirement. Id. at 32. The court also analyzed the admissibility of the plaintiffs' statistical evidence and determined it was reliable and relevant to the question of discrimination vel non under Title VII. Id. at 27. Having determined that each of the four requirements of Rule 23(a) was met, that common issues predominated over individual ones, and that the class device was superior to other methods, the court certified the class under Rule 23(b)(3). Id. at 35. The Government then petitioned for interlocutory review per Rule 23(f), challenging the court's determinations with respect to commonality, adequacy of representation, predominance, and superiority.

II. Analysis

This court has identified three reasons for which interlocutory review of a class certification order is appropriate under Rule 23(f):

(1) when a “questionable” class certification decision creates a “death-knell situation” for either party; (2) when the certification decision presents “an unsettled and fundamental issue of law relating to class actions ... that is likely to evade end-of-the-case review”;...