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HAMMON v. BARRY

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 6, 1990

MARVIN K. HAMMON, et al., Plaintiffs,
v.
MARION S. BARRY, JR., et al., Defendants. KEVIN MICHAEL BYRNE, et al., Plaintiffs, v. THEODORE R. COLEMAN, et al., Defendants

The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 On August 20, 1990 the three parties to the above-captioned class action lawsuit -- the class of black firefighters ("Hammon plaintiffs" or "Hammon class"), the class of white firefighters ("Byrne plaintiffs" or "Byrne class"), and the District of Columbia defendant ("the City") -- executed a Settlement Agreement through duly authorized counsel. See Agreement, Appendix I. The two-part Settlement Agreement clearly states that it is binding on all parties, that it resolves all claims raised in this litigation, and that it sets forth all essential terms of the settlement. Moreover, the Settlement Agreement contemplated that the parties would work with Special Master Stephen Saltzburg to provide the Court with a detailed decree to implement the terms of the Settlement Agreement. Pursuant to Fed. R. Civ. P. 23(e), the Court must now decide whether to approve the Settlement Agreement as a fair, adequate, and reasonable resolution of the parties' claims. Having carefully considered all of the pleadings submitted by the parties, the Special Master's Reports, all of the objections submitted in writing or made orally at the October 23, 1990 Fairness Hearing, the entire record herein, and the underlying law, the Court will approve the parties' August 20, 1990 Settlement Agreement. Furthermore, the Court will conditionally enter its own decree, which adopts -- with some modifications -- the consent decree proposed by the Special Master, the Byrne plaintiffs and the City but which shall only go into effect only after the parties have had one final opportunity to submit a consent decree signed by all three parties to this litigation.

 I. Factual Background

 The parties' acrimonious dispute, involving charges of discrimination and reverse discrimination, has been burning for over six years. The direct result of this dispute is that the District of Columbia Fire Department administered its last promotional examination (usually given every two years) in 1984 and has made no promotions since 1986.

 The Hammon plaintiffs' part of this has been pending before the Court since March 1984, and the Byrne plaintiffs' part of this lawsuit has been pending since March 1985. In ruling on an affirmative action plan that the City had adopted in response to recommendations by a hearing examiner at the administrative level, the Court approved the affirmative action plan in part, holding "that the hiring aspects of the plan satisfy the minimal requirements of Title VII and the Constitution, but that the promotion aspects cannot survive Title VII scrutiny." Hammon v. Barry, 606 F. Supp. 1082, 1084 (D.D.C. 1985). However, addressing only the hiring part of the affirmative action plan on appeal, a panel majority reversed and struck down the plan's hiring aspects. Hammon v. Barry, 259 U.S. App. D.C. 50, 813 F.2d 412 (D.C. Cir.), reh'g denied, 264 U.S. App. D.C. 1, 826 F.2d 73 reh'g granted, 266 U.S. App. D.C. 117, 833 F.2d 367 (D.C. Cir. 1987), order vacated 841 F.2d 426, cert. denied, 486 U.S. 1036, 100 L. Ed. 2d 610, 108 S. Ct. 2023 (1988).

 Since the Court of Appeals' decision and remand, the parties have tried, with this Court's assistance, to settle this case without proceeding to trial. To facilitate these settlement negotiations and assist the parties in reaching an agreement, the Court, pursuant to Fed. R. Civ. P. 53, appointed Stephen Saltzburg as Special Master in April 1990, and each of the parties agreed to pay one-third of his fees and expenses. The considerable efforts of the parties and the Special Master culminated in a draft of a proposed Settlement Agreement. Then, the Court met with counsel for all the parties to tell them that it was their decision whether to sign the proposed Settlement Agreement and that the Court had neither read the proposal nor decided whether to approve it in the event the parties did sign it.

 The Hammon plaintiffs were informed of the proposed Settlement Agreement, and, after considering it for some time, the Hammon plaintiffs, by class counsel Joan Burt, signed the Settlement Agreement. At a subsequent status conference with the Court, Dovey J. Roundtree (who entered her appearance during February 1989 as co-counsel for the Hammon plaintiffs) independently registered her approval of the Settlement Agreement. Having been notified of and having considered the Special Master's proposal, the Byrne plaintiffs, by class counsel George Cohen, also signed the Settlement Agreement, which was subsequently voted upon and ratified by Local 36. Finally, the City took the proposal under advisement, and, by Corporation Counsel Dr. Herbert O. Reid, Sr., the City also signed the Settlement Agreement.

 Thus, on August 20, 1990, the parties all executed a Settlement Agreement that is final and binding on all the parties and that resolves any and all claims of discrimination -- whether based upon the Constitution or federal or local statutes -- raised by the classes and the individual members at any point during this lawsuit. Although the Settlement Agreement is one integrated document, it contains two parts to reflect the different claims of the Hammon and Byrne plaintiffs: Part A (signed by the Hammon plaintiffs and the City) addresses all of the lawsuit's claims involving hiring and vestiges of discrimination but not the dispute over future promotions and Part B (signed by the Hammon plaintiffs, the Byrne plaintiffs, and the City) addresses the future promotions issue. The Settlement Agreement explicitly states that it "sets forth all essential terms of the settlement;" Agreement, Appendix I, Part A para. 1, Part B para. 1 (emphasis added), and that "Parts A and B together resolve all claims and bind all class members with respect to all claims of discrimination as of the date of this agreement," id. Part A P 21 (emphasis added); see id. Part B P 2.

 Without going into an overly detailed description of the Settlement Agreement, which speaks for itself, the Court notes that it provides for various forms of relief. The Hammon plaintiffs will receive a $ 3.5 million lump-sum payment from the City, which does not include attorneys fees and which will be divided among the class members based upon how many years each firefighter worked as well as other criteria. See id. Part A PP 4, 8-17. Moreover, the Settlement Agreement provides for: about 180 immediate promotions (based upon an attached schedule) to fill most outstanding vacancies; the creation of a new (fourth) platoon of firefighters with many new Sergeant, Lieutenant, and Captain positions; the development and administration of fair promotional examinations to fill some outstanding and all future vacancies. See id. Part B PP 5-13. In return for the foregoing, the City avoids any finding of liability and enhances the public safety by improving Fire Department working conditions and morale and making long overdue promotions. Finally, all parties avoid the risks and costs of proceeding to trial.

 In short, while each of the parties benefits from the Settlement Agreement, none of the parties has obtained a perfect result for itself. As is common when a case settles rather than proceeding to trial, the Settlement Agreement contains various trade-offs and concessions that the parties agreed to when faced with the prospects of litigating and perhaps losing some or all aspects of this case.

 There is nothing on the record before the Court to indicate that any party attempted to modify or change the Settlement Agreement between the date of its signing on August 20, 1990 until the Fairness Hearing on October 23, 1990. Moreover, at the Fairness Hearing itself, counsel for all the parties reaffirmed the Settlement Agreement. Only after the Fairness Hearing and after the City and the Byrne plaintiffs had already signed the Proposed Consent Decree did it become clear that Joan Burt, counsel for the Hammon plaintiffs, was refusing to sign the Proposed Consent Decree -- although she had several times stated on the record that she would, see October 16, 1990 Meeting with Special Master Tr. at 6, 12, 13 -- and was even attempting to renege on the essential terms of the Settlement Agreement.

 The Settlement Agreement envisioned that the parties would work with the Special Master to develop a decree for the Court's approval, see Agreement, Appendix I, Part A para. 1, but the Settlement Agreement nowhere indicates that it could be implemented only by a consent decree signed by all the parties. In fact, the Special Master has stated to the Court that he purposely did not use the term "consent decree" when drafting the Settlement Agreement, in light of the many previous instances throughout this litigation in which the parties were unable to cooperate. Thus, the record is clear that the parties originally agreed that the Court could enter its own decree in accordance with the essential terms contained in the Settlement Agreement in the event that the parties failed to agree upon one consent decree.

 Since the date the Settlement Agreement was signed by all of the parties, the parties have worked with the Special Master and the Test Development Committee ("TDC") to develop promotional examinations as required by the Settlement Agreement. *fn1" The first promotional test is scheduled for December 1990, and it will provide hundreds of firefighters, who have been studying for weeks, with their first opportunity for a promotion.

 The parties and the Special Master notified the class members of the October 23, 1990 Fairness Hearing in various ways. All current Fire Department members received personal notice, and retired firefighters and others who requested notice received personal notice. In addition, class members received publication notice in five different publications. See Notices, Appendix III. Judging by the written objections the Court received pursuant to this notice procedure and the responses at the Fairness Hearing, the Court is satisfied that the various notices succeeded in alerting the class members to the proceedings.

 In anticipation of the Fairness Hearing, the Special Master met with counsel for all the parties on October 16 and 17, 1990 to discuss the class members' written objections and formulate responses. The record is clear that all counsel present agreed with and supported the Special Masters' proposed responses to the class members' objections, see October 17, 1990 Meeting with Special Master Tr. at 21-55. Before the Fairness Hearing, no counsel for any of the parties requested the Special Master to suggest to the Court that any of the class members' objections had any merit, except for one minor modification (agreed to by all the parties) enabling the heirs or estates of deceased firefighters, who otherwise would have been eligible to share in the settlement fund to submit claims. Nor did counsel for any of the parties argue at the Fairness Hearing that any of the class members' objections should prevent Court approval of the Settlement Agreement.

 II. Analysis

 A. Jurisdiction Despite Notice of Appeal

 A threshold issue is whether this Court continues to have jurisdiction to proceed in this matter in light of the Hammon plaintiffs' Notice of Appeal from the Court's September 12, 1990 Order extending the period of the Special Master's reference and responsibility. The Hammon plaintiffs have not filed a motion for a stay pending appeal with this Court nor have they ever indicated on the record, orally or in writing, that this Court should hold these proceedings in abeyance until their appeal is resolved. Moreover, as far as the Court is aware, the Hammon plaintiffs have filed only a Notice of Appeal with the Court and, to the Court's knowledge, have done nothing further about pressing their appeal at this time. That is not surprising since the use of special masters has been approved "in a wide variety of remedial contexts . . . including cases . . . remedying various . . . statutory or constitutional violations." Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc), rev'd on other grounds, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981).

 In any event, the Notice of Appeal does not divest this Court of jurisdiction because the order from which the Hammon plaintiffs seek to appeal is an interlocutory, non-appealable order. See 9 Wright & Miller, Federal Practice and Procedure § 2615, at 813 ("An order of reference to a master is interlocutory and not appealable."). Instead of allowing the Hammon plaintiffs to willy-nilly deprive this Court of jurisdiction, "thus bringing [these] proceedings to a standstill while a non-appealable ruling wends its way through the appellate process," Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985), the Court will "disregard the notice of appeal [from a non-appealable order] and proceed with the case," Hammerman v. Peacock, 623 F. Supp. 719, 721 (D.D.C. 1985) (citing 9 Moore's Federal Practice P 203.11, at 3-52 (citing cases)); see also SEC v. American Bd. of Trade, Inc., 829 F.2d 341, 344 (2d Cir. 1987), cert. denied, 486 U.S. 1034, 100 L. Ed. 2d 605, 108 S. Ct. 2018 (1988); United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir. 1982), cert. denied, 460 U.S. 1091, 76 L. Ed. 2d 358, 103 S. Ct. 1790 (1983).

 B. Number of Objecting Class Members

 Turning to the merits of whether the Court should approve the Settlement Agreement as a fair resolution of this case, the Court first examines the number of the objections received. Although approximately 85 individuals objected to some aspect of the Settlement Agreement, *fn2" that is a relatively low level of dissatisfaction considering that the Hammon and Byrne classes comprise at least 2,000 individuals. *fn3" Moreover, the number of objectors is somewhat misleading because that figure includes about 33 members of the Fire Prevention unit who made essentially the same objection based on the absence of a separate test and insufficient pay and whose concerns are discussed in more detail below. See infra Section G. Thus, as best as the Court can determine, it appears that less than five percent (85 out of 2,000) of the class members objected, and that figure drops to less than three percent (52 out of 2,000) if the Fire Prevention common objection is put to one side. Compare Cotton v. Hinton, 559 F.2d 1326, 1333 (5th Cir. 1977) (affirming district court's approval of class action settlement over objection of counsel purporting to represent almost half of the class); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3d Cir.) (affirming district court's approval of class action settlement over objections by over twenty percent of class), cert. denied, 419 U.S. 900, 42 L. Ed. 2d 146, 95 S. Ct. 184 (1974).

 While the fact that a relatively small percentage of the class members objects to a proposed settlement is not dispositive, "courts have taken the position that one indication of the fairness of a settlement is the lack of or small number of objections." 2 H. Newberg, Newberg on Class Actions § 11.47, at 463 (2d ed. 1985) (citing Laskey v. International Union (UAW), 638 F.2d 954 (6th Cir. 1981)). The low percentage of objectors in this case is one factor in the Court's conclusion that the Settlement Agreement is fair and that almost all of the class members are looking forward to its approval so that the promotions can be made, the promotional tests given, and the settlement fund disbursed.

 C. Adequacy of Monetary Aspect of Settlement

 Next, the Court considers the adequacy of the $ 3.5 million lump-sum payment that the City would make to the Hammon plaintiffs under the Settlement Agreement. As far as the Court can tell there has been only one objection -- a general objection at that -- to the amount of the monetary relief. In view of the factual and legal uncertainties that the Hammon plaintiffs face if they were to proceed to trial, *fn4" as well as the substantial harm they would continue to suffer by being precluded from receiving immediate promotions and taking promotional exams, the Court holds that the $ 3.5 million settlement amount is well within the range of a reasonable and adequate settlement. Id. § 11.44, at 457 (citing Newman v. Stein, 464 F.2d 689 (2d Cir.), cert. denied, 409 U.S. 1039, 34 L. Ed. 2d 488, 93 S. Ct. 521 (1972)). Another factor in the Court's analysis is that the Special Master argues in support of the reasonableness of the $ 3.5 million figure. Most important, however, is that counsel -- who represent three very different parties, who have been deeply involved in this case from the beginning and can evaluate their cases better than anyone else, and who have failed to agree for so long -- all agreed after extensive arms-length negotiations that $ 3.5 million was a fair settlement. See id. § 11.46, at 462 ("'The court should give great weight to the fact that the lawyers for substantially all of the plaintiffs and defendant who have been engaged in this arduous litigation for seven years unanimously support the settlement.'" (quoting Cannon v. Texas Gulf Sulphur Co., 55 F.R.D. 308, 316 (S.D.N.Y. 1972))).

 It is well established that a court deciding whether to approve a class action settlement should not substitute its judgment for that of the proponents of the settlement, id. § 11.44, at 457 (citing Steinberg v. Carey, 470 F. Supp. 471 (S.D.N.Y. 1979)), and that "unless the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy and expensive litigation with uncertain results," id. § 11.49, at 466. Consequently, the Court sees no reason on this record to reject or modify the $ 3.5 million figure negotiated by the parties. *fn5" Any argument that the Hammon plaintiffs would recover much more than $ 3.5 million if they proceeded to trial not only is pure speculation, *fn6" but also fails to take into account that this $ 3.5 million would go immediately and directly to the class (without attorneys' fees or any further costs being subtracted) whereas another amount disbursed pursuant to a judgment, if any, after trial would probably reach the class members only after several years of trial and appellate litigation.

 D. Apportionment of Settlement Fund

 A large percentage of the objections represent challenges to the way in which the $ 3.5 million settlement fund would be apportioned among Hammon class members. Under the Settlement Agreement and Proposed Consent Decree, that $ 3.5 million would be apportioned as follows: (1) at least $ 2.4 million as compensation for pre-1980 discrimination claims to be divided among all members of the Hammon class who were members of the Fire Department on January 1, 1980, Agreement, Appendix I, Part A paras. 8-10; (2) no more than $ 1 million as compensation for post-1980 discrimination in hiring claims to be divided among all members of the Hammon class who completed the 1980 hiring test and either were never hired or were hired after the average date on which white test-takers were hired (July 1, 1982), id. Part A PP 12-14; and (3) $ 100,000 as compensation for individual class members who contributed to the litigation by rendering services on their own time or who bore "special burdens . . . during this litigation," Proposed Consent Decree, Appendix II, Part I para. 25.

 About forty retired firefighters (most of whom were represented at the Fairness Hearing by Joel P. Bennett) object to the cut-off date of January 1, 1980 because it would preclude them from sharing in the settlement fund. The Special Master and counsel for all the parties chose this cut-off date only after extensive discussions and careful consideration of the relative weakness of these retirees' claims due to the City's potentially devastating statute-of-limitations defense. *fn7" The City made it very clear to everyone involved in this lawsuit that, if settlement talks were to break down, the City would assert and vigorously litigate a statute-of-limitations defense since the discrimination giving rise to the pre-1980 claims occurred, if at all, over four years before the filing of this lawsuit. However, to avoid litigating this issue and having to determine precisely when acts occurred on a case-by-case basis for the numerous members of the Hammon class, the City agreed to waive its statute-of-limitations defense, and counsel for all the parties (including the Hammon plaintiffs' attorney) as well as Special Master agreed that it was highly likely that claims by any firefighter who retired before January 1, 1980 would be time-barred. *fn8"

  Although the Court feels great sympathy and admiration for the older retired firefighters who probably suffered the most (enduring that period when discrimination in the Fire Department was institutionalized and its most extreme), the Court must evaluate the strengths and weaknesses of the class members' claims within the framework of their likelihood of establishing liability and damages at trial. See In Re "Agent Orange" Prod. Liability Litig., 818 F.2d 145, 171 (2d. Cir. 1987) (evaluating district court's approval of settlement by examining strength of claims, which were allegedly "serious" judging by amount of damage class members suffered, in terms of the likelihood of prevailing on liability), cert. denied, 484 U.S. 1004, 98 L. Ed. 2d 647, 108 S. Ct. 695 (1988). Moreover, in evaluating the formula for apportioning the settlement fund, the Court keeps in mind that "district courts enjoy 'broad supervisory powers over the administration of class-action settlements to allocate the proceeds among the claiming class members equitably.'" In Re "Agent Orange" Prod. Liability Litig., 818 F.2d 179, 181 (2d. Cir 1987) (quoting Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir. 1978)), cert. denied, 487 U.S. 1234, 101 L. Ed. 2d 932, 108 S. Ct. 2898 (1988). In view of the likelihood that the retirees' claims would be time-barred and the fact that counsel for all the parties (including the Hammon plaintiffs' counsel when signing the Settlement Agreement) and the Special Master all agreed that the January 1, 1980 cut-off date was proper, the Court holds that the Settlement Agreement is fair, adequate, and reasonable and must be approved over the retirees' objections. *fn9" See id. at 182 (district court has "discretion to adopt whatever distribution plan [it] determine[s] to be in the best interests of the class as a whole notwithstanding the objections of class counsel or of a large number of class members " (emphasis added; citations omitted)).

 Another objection to the allocation of the settlement fund envisioned by the Settlement Agreement and the Proposed Consent Decree -- not raised until the Hammon Plaintiffs' Post-Fairness Hearing Report to the Court -- is that certain named plaintiffs and individual class members claiming under them should receive additional money for suffering more serious discrimination than the other class members. See supra note 6. Under the Settlement Agreement, the named plaintiffs -- who are properly members of the Hammon class *fn10" -- would receive: (1) a share of the $ 2.4 million (if working for the Fire Department on January 1, 1980) allocated to pre-1980 discrimination claims in direct proportion to how many years that plaintiff worked for the Fire Department or (2) a share of the $ 1 million allocated to claims arising out of the administration of the 1980 hiring test. In addition to the foregoing, the Proposed Consent Decree addresses the possibility that certain class members experienced more serious discrimination by allowing them to submit claims for shares of the $ 100,000 amount set aside for those members who made litigation contributions or bore "special burdens" as identified by the Hammon plaintiffs.

 Thus, although nothing is definite yet since claims forms have not been submitted and precise calculations have not been made, it appears to the Court on this record that, as a result of these three sub-divisions of the settlement fund, each of the named plaintiffs would receive some amount of monetary relief (as well as promotions or the opportunity to take promotional tests). *fn11" Therefore, the Court is not persuaded that the Settlement Agreement should be rejected because certain plaintiffs do not receive more money.

 Finally, about two objectors argued that the heirs or estates of those deceased firefighters who otherwise would have shared in the settlement fund should be entitled to recover monetary relief on behalf of the decedent. All the parties and the Special Master have agreed to modify the proposed Claims Form to accommodate the heirs or estates of deceased firefighters in accordance with these few objections, see October 16 Meeting with Special Master Tr. at 19-20, and the Court also approves of this slight modification to the Claims Form, especially since the Settlement Agreement did not address this issue one way or the other.

 E. Union Voting Procedures

 The Court received about six objections based on the voting procedure utilized to determine whether Local 36 would ratify the Settlement Agreement signed, subject to Local 36 ratification, by the counsel for the Byrne plaintiffs and Local 36. Instead of resorting to mail notice of the proposed settlement -- which would have consumed four or five weeks that could not be spared in view of the rapidly approaching December test date -- the Special Master directed that voting occur within one week of the Settlement Agreement's being signed, and the Union President and counsel agreed that this procedure was feasible. Consequently, the Settlement Agreement was widely circulated among union members and was even posted in the varfirehouses. In light of the great attention this litigation has received among union members, the ensuing vigorous debate, and the representations of the Union President, counsel for the Byrne plaintiffs, and the Special Master, the Court is fully satisfied that the notice and voting procedures were perfectly proper and that all interested union members had a fair opportunity to be heard. Indeed, the packed Courtroom, with standing room only, at the October 23, 1990 Fairness Hearing demonstrates that all interested parties are aware of what has taken, and is taking, place in this case and that the various notices were effective. See Notices, Appendix III.

 F. Use of Lists For Immediate Promotions

 Of the total number of objections registered against the Settlement Agreement orally or in writing, a relatively large number challenge some aspect of the procedure for making about 180 immediate promotions (for vacancies existing as of March 1, 1989) from lists based upon the last promotional exam administered in 1984. Some class members want more immediate promotions while others argue that those who served in an acting capacity should have preference for promotions, and still others contend that these lists should not be relied upon to fill all of the vacancies because they usually would be valid for only two years.

  However, most, if not all, of these objections are motivated by the self-interest of the individual objector, and none of them indicate that the Settlement Agreement's procedure for making immediate promotions unfairly benefits any one group of firefighters at the expense of any other group. *fn12" Moreover, the objections that rely upon the usual two-year life-span of promotional lists overlook the unfortunate but undeniable reality that nobody -- not the parties, not the Special Master, and not this Court -- can turn back the clock and duplicate exactly what would have occurred if promotional tests had been given in 1986 and 1988. In short, because this is no longer a "usual" situation, the "usual" rules and procedures utilized to make promotions in the past should not be blindly applied. All of the parties recognized that immediate promotions are absolutely essential for the public safety, not to mention improving Fire Department morale for both the Hammon and the Byrne classes. *fn13" The Court is satisfied that using the 1984 promotional lists to make immediate promotions while also creating a new (fourth) platoon is a fair, reasonable, and non-race-based procedure relying upon seniority and past test results, which comes as close as possible to remedying the lengthy delay in promotions in the Fire Department. *fn14"

 G. Administration of New Promotional Tests

 Under the Settlement Agreement and Proposed Consent Decree, fair, non-discriminatory, job-related promotional tests would be administered: (1) in December 1990 to fill vacancies arising after March 1, 1989 and before June 1, 1991 (including the 89 new Sergeant, Lieutenant, and Captain vacancies arising from the creation of a fourth platoon by June 1, 1991) and (2) sometime in 1991 so as to permit announcement of the promotional registry by August 1, 1991 to fill vacancies arising after June 1, 1991. Some class members object that it is unfair to permit their colleagues who benefit from the immediate promotions discussed above to also take these two soon-to-be-administered promotional tests. However, these objections in effect argue for applying rules and procedures developed for usual situations to this highly unusual situation, displaying the same fallacious reasoning rejected above. See supra Section F. The City needs immediate promotions based upon fair promotional tests; the TDC has been working diligently, with the Special Master's assistance, to complete the December 1990 promotional test; and class members on both sides of this lawsuit have already waited much too long for the "privilege" of taking a promotional test. In fact, for many class members the December 1990 promotional test will be their first opportunity for a promotion. Under these unique and unfortunate circumstances, the Court sees nothing wrong with a Settlement Agreement that increases the opportunities for all long-suffering firefighters to take promotional tests quickly to make up for the absence of promotional tests during the last six years.

 One common objection to the Settlement Agreement's procedures for administering promotional tests has been raised by some, if not all, of the members of the "Fire Prevention" unit of the Fire Department (as opposed to the much more larger "Fire Suppression" unit), who contend that the Settlement Agreement should be modified to require a promotional test for Fire Suppression separate from the Fire Prevention test. However, the Special Master, the Byrne plaintiffs, and the City have presented several persuasive reasons why this objection is insufficient to require rejection of the Settlement Agreement: (1) the number of vacancies in the Fire Suppression unit is so low (perhaps only one) that administering entirely different Sergeant, Lieutenant, and Captain promotional tests for the Fire Suppression unit is not economically sound; (2) in the short time remaining, the TDC cannot complete the December 1990 promotional test and also develop separate Fire Prevention tests; (3) Fire Prevention personnel would be eligible to take the unitary promotional tests and compete with Fire Suppression personnel for vacancies throughout the Fire Department; and (4) fully cognizant of the City's historic practice of administering one unitary promotional test, Fire Prevention personnel nevertheless voluntarily elected to serve in that unit instead of Fire Suppression.

 However, despite the foregoing convincing reasons that militate against the objections by Fire Prevention personnel, all of the parties and the Special Master have pledged that they would continue to give serious consideration to these objections, and the City has agreed to reserve any vacancy or vacancies in the Fire Prevention unit until the parties, working with the Special Master, have arrived at a fair promotional system for the Fire Prevention personnel. In light of the factors supporting the administration of a unitary promotional test at this time and the assurances by all the parties and the Special Master that they are receptive to the Fire Prevention objectors' concerns and are working diligently to consider alternatives to accommodate the Fire Prevention unit, *fn15" the Court holds that the objections submitted by members of the Fire Prevention unit are insufficient to preclude this Court from approving the Settlement Agreement as a fair resolution of this litigation.

 H. Final Certification

 Having decided that the Settlement Agreement signed by all the parties on August 20, 1990 should be approved pursuant to Fed. R. Civ. P. 23(e), the Court must also make a final certification of the two classes in this case as required by Fed. R. Civ. P. 23(c)(3), since this lawsuit is clearly a Rule 23(b)(2) type of class action and properly has been treated as such throughout this litigation. Only for purposes of settlement and entry of the Court's Decree implementing the parties' Settlement Agreement, the Court makes a final certification that the Hammon plaintiffs represent a class composed of black uniformed D.C. Fire Department employees and past, present, and future applicants for employment therein and that the Byrne plaintiffs represent a class composed of white uniformed D.C. Fire Department employees who took the 1984 examinations for promotions to the ranks of Sergeant, Lieutenant, and Captain. Furthermore, the Court finds that: (1) the Hammon and Byrne classes are so numerous that joinder of their respective members is impracticable; (2) there are questions of law and fact common to each of the classes; (3) the claims of the respective named plaintiffs are typical of the claims of each of the classes they represent; and (4) the representatives of the Hammon and Byrne classes fairly and adequately protected the interests of their respective classes. See Fed. R. Civ. P. 23(a).

 I. Minor Modifications and Entry of Conditional Decree

 The parties have consistently agreed that this Court, once it approves the Settlement Agreement, may enter its own Decree in accordance with the terms of that Settlement Agreement should all three parties be unable to agree upon a consent decree. The Court holds that the Proposed Consent Decree, which has been proffered and supported by the Special Master and signed by the City and the Byrne plaintiffs, see Proposed Consent Decree, Appendix II, properly implements the Settlement Agreement and is in no way inconsistent therewith. Furthermore, the Court holds that Joan Burt's objections and suggested modifications to the Proposed Consent Decree contained in the Hammon Plaintiffs' Post-Fairness Report to the Court not only are meritless but also directly contradict the final and binding Settlement Agreement that she signed on the Hammon plaintiffs' behalf as well as her on-the-record statements approving the Proposed Consent Decree. Therefore, the Court will adopt -- with some modifications -- the Proposed Consent Decree, attached hereto as Appendix II, as its own Decree, but will order that the Decree will not become effective for several days to give the parties one last opportunity to submit a consent decree signed by all three parties.

 In addition, the Court will make certain modifications -- not inconsistent with the Settlement Agreement -- to the Proposed Consent Decree before adopting it as the Court's Decree. First, the Court sees no reason why the City should be held to its end of the bargain contemplated by the Proposed Consent Decree and required to make an immediate lump-sum payment of $ 150,000 to the Hammon plaintiffs as interim attorneys' fees when it no longer has the assurance that the Hammon plaintiffs, who refused to sign the Proposed Consent Decree, will not appeal the Court's Decree entered in accordance with the Settlement Agreement. Therefore, the Court will modify those provisions that require the City to make a lump-sum $ 150,000 payment for interim attorneys' fees to counsel for each of the classes and will order that these payments be placed in separate funds (also separate from the $ 3.5 million special fund) under the Special Master's supervision and be disbursed only to Joan Burt and Dovey Roundtree (for the Hammon plaintiffs) and to the law firm of Bredhoff and Kaiser (for the Byrne plaintiffs) and only after the period for appeals expires and appeals, if any are decided or dismissed. *fn16"

 Second, the Court recognizes the unfortunate fact that, since all the parties did not sign the Proposed Consent Decree, they are not bound by the provisions contained therein prohibiting parties from appealing the Court's Decree. However, notwithstanding the foregoing, the Court expresses its sincerest hope that all of the parties will realize that it is not in their best interest to attack and further delay the substantial benefits they would receive under the Settlement Agreement and Decree.

 Finally, the Court will approve the Claims Form, see Appendix IV, upon the condition that the Special Master and the parties modify the form to: (1) enable heirs or estates of deceased firefighters to submit claims; (2) make it clear that class members may submit claims for special burdens borne during the course of this litigation (as well as special services rendered on behalf of the class); (3) make January 2, 1991 the deadline for submission of claims forms; and (4) require that the forms be sent, not to the Clerk of the Court, but to a post office box under the Special Master's supervision.

 III. Conclusion

 It is well established that, "particularly in class action suits, there is an overriding public interest in favor of settlement." Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). Moreover, "litigants should be encouraged to determine their respective rights between themselves." Id. In this case, three parties who have been antagonistic and unable to agree on much of anything over a period of several years have now agreed upon one document to resolve this lawsuit, and all three parties signed this document, referred to herein as the Settlement Agreement, on August 20, 1990. Furthermore, the Court has been intimately involved in this case since 1984, has reviewed and considered all of the objections submitted against the Settlement Agreement, and has "'closely and carefully scrutinize[d] the . . . [Settlement Agreement] to make sure that it [is] fair, adequate and reasonable.'" County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1323 (2d Cir. 1990) (quoting Plummer v. Chemical Bank, 668 F.2d 654, 658 (2d Cir. 1982)). In light of the foregoing, the Court, in the exercise of its broad discretion in this matter, see id., approves the parties' Settlement Agreement as a fair, adequate and reasonable resolution to this litigation and conditionally enters a Decree to implement that Settlement Agreement.

 The Court will issue an Order of even date herewith in accordance with the foregoing Opinion.

 DECREE AND ORDER - November 6, 1990, Filed

 In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 6th day of November, 1990,

 ORDERED that the August 20, 1990 Settlement Agreement signed by all of the parties shall be, and hereby is, APPROVED as a fair, adequate, and reasonable resolution of this class action; and it is

 FURTHER ORDERED that, to implement the Settlement Agreement approved in the preceding ordered paragraph, the Court adopts as its Decree and incorporates by reference herein the Proposed Consent Decree attached hereto as Appendix II in its entirety, with the modifications set forth below:

 (1) the last sentence of the first full paragraph on page 2 and the last sentence on page 2 shall be, and hereby are, deleted;

 (2) the following shall be added at the end of paragraph 15 on page 10: "Once the period for appeals has expired and all appeals, if any, have been completely decided or dismissed, and if the settlement is upheld, interest on the $ 3,500,000 special fund shall accrue to the Hammon plaintiffs for disbursement to individual class members as the Hammon plaintiffs and the Special Master see fit. If the settlement is not upheld, all funds shall be returned to the City, subject only to approval of the Court.";

 (3) paragraph 29 on page 14 shall be, and hereby is, deleted;

 (4) paragraph 31 on page 15 shall be, and hereby is, deleted and replaced by the following: "The Court approves the claims form attached to this Decree as Appendix IV so long as the Special Master and the parties modify the form to: (a) permit heirs or estates to submit claims on behalf of deceased firefighters, (b) make it clear that class members may submit claims for special burdens borne during the course of this litigation (as well as for special services rendered on behalf of the class), (3) make January 2, 1991 the deadline for submitting claims forms, and (4) change the address, to which claims forms should be sent, to a post office box under the Special Master's supervision. So modified, this claims form shall be distributed to all class members who currently are Fire Department employees and to all persons who file, or have already filed, a request for a claims form in response to mail, publication, or personal notice. All claims forms must be received by the Special Master on or before January 2, 1991. Only members of the class who file timely claims forms may receive compensation, although all members of the class are bound by the provisions of this Decree.";

 (5) paragraph 33 on page 15 shall be, and hereby is, deleted and replaced by the following: "Within 10 days of the effective date of this Decree, the City shall place in a fund, under the Special Master's supervision but separate from the $ 3,500,000 special fund referred to in paragraph 15 supra, $ 150,000 for interim attorneys' fees for the Hammon plaintiffs' counsel, Joan Burt and Dovey Roundtree. The parties agree that, unless this settlement is not upheld, the Hammon class is a prevailing party to a significant extent and that therefore Joan Burt and Dovey Roundtree, as class counsel, are entitled to apply for costs (which shall not include Special Masters' fees) and reasonable attorneys' fees as set forth in paragraph 34 infra. If disbursed, the $ 150,000 interim attorneys' fees payment shall be set-off against any costs and attorneys' fees recovered later. No distribution of the $ 150,000 shall be made until the period for appeals expires and appeals, if any, are completely decided or dismissed. Any interest accruing on this $ 150,000 fund pending appeal, if any, may be used to pay part of the Hammon plaintiffs' portion of the Special Master's fees and expenses, and the remainder, if any, of the interest shall be returned to the City.";

 (6) the first sentence of paragraph 34 on page 16 shall be, and hereby is, deleted and replaced by the following: "Within 30 days of the date on which the period for appeals expires and appeals, if any, are completely decided or dismissed, unless the 30-day period is extended upon written application to the Special Master, Joan Burt and Dovey J. Roundtree, counsel for the Hammon plaintiffs, shall submit to the Special Master any applications they may have with respect to attorneys' fees and costs.";

 (7) paragraph 35 on page 16 shall be, and hereby is, deleted and replaced by the following: "No attorneys' fees shall be awarded for any time spent filling out claims forms by, or on behalf of, individual class members.";

 (8) paragraph 17 on page 22 shall be, and hereby is, deleted and replaced by the following: "Within 10 days of the effective date of this Decree, the City shall place in a fund, under the Special Master's supervision but separate from the $ 3,500,000 special fund referred to in paragraph 15, Part One supra, $ 150,000 for interim attorneys' fees for the Byrne plaintiffs' counsel, the law firm of Bredhoff and Kaiser. The parties agree that, unless this settlement is not upheld, the Byrne class and Local 36 are prevailing parties to a significant extent on those issues in which they participated and that therefore Bredhoff and Kaiser, as class counsel, are entitled to apply for costs (which shall not include Special Masters' fees) and reasonable attorneys' fees. If disbursed, the $ 150,000 interim attorneys' fees payment shall be set-off against any costs and attorneys' fees recovered later. No distribution of the $ 150,000 shall be made until the period for appeals expires and appeals, if any, are completely decided or dismissed. Any interest accruing on this $ 150,000 fund pending appeal, if any, may be used to pay part of the Byrne plaintiffs' portion of the Special Master's fees and expenses, and the remainder, if any, of the interest shall be returned to the City. Within 30 days of the date on which the period for appeals expires and appeals, if any, are completely decided or dismissed, unless the 30-day period is extended upon written application to the Special Master, Bredhoff and Kaiser, counsel for the Byrne plaintiffs and Local 36, shall submit to the Special Master any applications they may have with respect to attorneys' fees and costs. The Special Master shall work with all counsel and the defendants in an effort to arrive at an agreement on fees to be paid. If the parties are unable to reach agreement, the Special Master shall make findings and recommendations to the Court, and the Court shall decide the amount of fees and costs to be awarded."; and it is

 FURTHER ORDERED that all of the parties shall be, and hereby are, permanently enjoined to carry out the terms of the Settlement Agreement and to do all that is required by the procedures set forth in this Decree; and it is

 FURTHER ORDERED that the City shall refrain from making promotions to fill any and all vacancies in the Fire Prevention unit of the Fire Department until such time as the parties working with the Special Master have arrived at a fair promotional system for Fire Prevention personnel; and it is

 FURTHER ORDERED that, in light of the importance of proceeding with the implementation of the terms of this Decree to permit administration of the December 1990 promotional test, no stay of any portion of this Decree shall be granted; and it is

 FURTHER ORDERED that, if any party files an appeal, this Court will determine what bond, if any, to require pursuant to Fed. R. Civ. P. 62(c); and it is

 FURTHER ORDERED that, notwithstanding anything contained herein, the Hammon plaintiffs, the Byrne plaintiffs, and the City shall each remain obliged to promptly pay one-third of the Special Master's fees and expenses, as set forth in previous Court orders, and counsel for all the parties are reminded of their fiduciary obligations as officers of the Court to see that said fees and expenses are promptly paid; and it is

 FURTHER ORDERED that this Decree shall automatically become effective at 4:00 p.m., November 9, 1990, unless before then the parties, with the Special Master's assistance, submit for the Court's approval a consent decree signed by all three parties, in which case this Decree will not become effective until the Court determines whether to accept the parties' newly-proposed consent decree or enter its own decree; and it is

 FURTHER ORDERED that the administration of the promotional tests required under the Settlement Agreement and this Decree shall proceed; and it is

 FURTHER ORDERED that, within 10 days of the date on which this Decree takes effect, the City shall place $ 3,500,000 in a special fund under the Special Master's supervision and shall also place the two $ 150,000 payments for interim attorneys' fees in separate funds under the Special Master's supervision; and it is

 FURTHER ORDERED that, because all the parties agreed to settle all of their disputes and terminate this litigation by signing the Settlement Agreement, the above-captioned consolidated cases shall be, and hereby are, DISMISSED, without prejudice, subject only to the Court's continuing jurisdiction over issues related to attorneys' fees, Special Master's fees, or implementation of this Decree.

 APPENDIX I

 SPECIAL MASTER'S PROPOSED FINAL AGREEMENT AMONG HAMMON PLAINTIFFS, BYRNE PLAINTIFFS, AND LOCAL 36 AND THE CITY

 This agreement has been drafted by the Special Master, who has for purposes of encouraging discussions, circulated for private consideration other drafts, but who has asked that all prior drafts be considered privileged, preliminary discussion material and not circulated beyond counsel and principal representatives of each party. In an effort to promote settlement and to clear the air with respect to what the Special Master believes would be a fair and equitable -- but by no means perfect -- resolution of all claims and disputes, the Special Master has prepared a proposed agreement. It may be shown to anyone and is not intended to be confidential.

 It should be clear that no party approved this proposed settlement agreement prior to its circulation. The proposed agreement represents a way of resolving all issues at a cost to the City which the Special Master believes is reasonable and defensible, provides compensation for alleged past discrimination, some of which might otherwise be barred by a statute of limitations in the interests of achieving substantial justice; and assures that no individual is favored or disadvantaged with respect to job opportunities in the Fire Department on the basis of race.

 The views of no one party predominate. Some provisions of this agreement are included despite the Special Master's knowledge that they are objectionable to one or even two parties. But, the Special Master is persuaded that the agreement is fair overall, that it provides all parties with knowledge as to what amount of money is to be paid and what other remedies are to be provided, it will provide much needed promotions sooner than any other plan, and the public should find it responsive to its needs as well as the needs of all litigants.

 This proposed agreement is divided into two parts. The first relates to hiring and all related claims. The second relates to promotions. If the Hammon plaintiffs, the Byrne plaintiffs and the City together agree on Part B and sign it, And, if the Hammon plaintiffs and the City agree on Part A and sign it, the Special Master will ask the Court to approve the agreement, notwithstanding any opposition from the Byrne plaintiffs or from any other source to the monetary amount provided or any other remedy set forth in Part A. Neither Part A nor Part B will be effective unless both parties are ratified by the parties thereto.

 PART A

 SETTLEMENT AGREEMENT AS TO HIRING AND RELATED ISSUES BETWEEN THE HAMMON PLAINTIFFS AND THE CITY

 Summary of Agreement

 1. This agreement sets forth all essential terms of the settlement of hiring and related issues (defined as all issues other than future promotions). It does not set forth in detail all procedures and details, which shall be provided in a more comprehensive decree which the Hammon plaintiffs and the City shall develop with the Special Master for submission to the Court.

 2. This agreement between the Hammon plaintiffs and the City is executed simultaneously with an agreement on future promotions (Part B) among the Hammon plaintiffs, the Byrne plaintiffs, and the City.

 3. This agreement and the simultaneous agreement on future promotions, resolve all claims and binds all members of the Hammon class, and no member of the Class may sue the City or any department or representative, or any party to this settlement with respect to any matter raised in this litigation. The agreement resolves all disputes as to matters arising as of the date it is executed, but does not resolve disputes resulting from future events, tests, decisions, etc. that occur after the date of this agreement.

 4. This agreement provides substantial monetary relief to the Hammon class. The City shall pay $ 3,500,000, to the Hammon class, independent of attorney's fees which may be sought subsequently, and this entire sum shall be distributed to the Hammon class as provided in this agreement.

  5. The monetary compensation provided herein has been allocated, to the greatest extent practicable, in accordance with the strength of the individual claims of class members.

 6. The amount of compensation $ 3,500,000 shall be placed in a special fund prior to October 15, 1990, and shall be distributed as soon as possible thereafter in accordance with this agreement, provided that the promotions set forth in Part B, paragraph 5 have been made.

 7. The Special Master will work with the parties to provide a detailed decree for consideration by the Court as early as possible.

 Pre-1980 Compensation

 8. Of the $ 3,500,000, $ 2,400,000 is allocated to members of the Hammon class who were also members of the Fire Department on January 1, 1980. Each member of the class shall receive compensation for each year from 1962-1979 in which he or she served as a member of the Department. The compensation will be allocated as follows: (a) 70% of the total amount is allocated to the years 1962-1968, (b) 20% of the total amount is allocated to the years 1969-1972, and (c) 10% of the total amount is allocated to the years 1973-1979.

 9. Under paragraph 8, $ 1,680,000 will be allocated to the years 1962-1968, $ 480,000 to the years 1969-1972, and $ 240,000 to the years 1973-1979.

  10. Allocation of these sums will be made as follows: The amount allocated to each of the three periods will be divided by the total number of firefighter years of the eligible member of the Hammon class. For example, if 50 eligible firefighters each worked all seven years from 1962-1967, and if 50 other eligible firefighters worked five of the years from 1962-1967, the total number of workyears would be 600 (50 x 7= 350, 50x5= 250). The $ 1,680,000 would be divided by 600, and the figure of $ 2800 per workyear would used as the basis for awarding this portion of the pre-1980 monetary award. An identical process would be used for the periods, 1969-1972, and 1973-1979. The total award for any firefighter eligible for pre-1980 damages would be based on the total of the work year figures for the three periods.

  11. In addition to the $ 2,400,000, an additional sum may be available to be paid as additional damages for the years 1962-1968, as provided in paragraphs 15 and 17, infra. If any such sum is available, it will be divided by the total work years for this period, and a resulting award for eligible firefighters will be made as a supplementary payment.

  Post-1980 Claims

  12. The total amount available for compensation for post-1980 claims is $ 1,000,000. This amount will be distributed as stated in paragraphs 13, 14 and 15, infra.

  13. Each member of the Hammon class who completed the 1980 hiring examination and who was hired by the Fire Department will receive the following: $ 150 per month for each month between July 1, 1982 and the actual date of employment as a firefighter.

  14. Each member of the Hammon class who completed the 1980 hiring examination and was never hired by the Fire Department will receive the following: $ 100 per month for each month between July 1, 1982, and the date when the City notified the class member that a position as a firefighter was available. The total paid to these class members shall not exceed $ 500,000.

  15. Should the total amount of the payments made pursuant to paragraphs 13 and 14 be less than $ 1,000,000, the remainder shall be used to pay supplemental damages for pre-1980 claims for the years 1962-1968, as provided in paragraph 11, supra.

  16. The Special Order issued by the Fire Department which provided an EOD date of April 12, 1981 for all firefighters hired from the 1980 list, including all members of the Hammon class, shall remain in full force and effect in the future.

  LITIGATION CONTRIBUTIONS

  17. A total of $ 100,000 shall be set aside to compensate individual members of the Hammon class for services rendered in this litigation on their own time. Any member of the Hammon class may submit a claim to the Special Master indicating the hours worked, the services rendered, and the amount claimed. The Special Master shall have discretion to award an appropriate amount to any such claimant, and to distribute the $ 100,000 equitably among claimants. Should the total amount of the distributions made pursuant to this paragraph be less than $ 100,000, the remainder shall be used to pay supplemental damages for pre-1980 claims for the years 1962-1968, as provided in paragraph 11, supra.

  18. The Hammon plaintiffs will proposes a schedule of payments and rationales, which the Special Master will approve under a reasonableness standard.

  Privacy Rights

  19. The Special Master will approve all payments made pursuant to the provisions set forth above, and the total amounts paid are, by the nature of this document, public. Each member of the Hammon class shall have the right to protect the fact that he or she received payment and the amount of any payment from public disclosure.

  Timing

  20. No promotions pursuant to Part B of the settlement agreement may be made until the $ 3,500,000 has been set aside in a fund, which will be more specifically described in the comprehensive decree to be drafted under paragraph 1, supra.

  Finality

  21. This agreement resolves all claims other than future promotional claims of the members of the Hammon class. Parts A and B together resolve all claims and bind all class members with respect all claims of discrimination as of the date of this agreement.

  Joan Burt, Esq. Counsel for Hammon Plaintiffs Joan Burt, Esq.

  For the District of Columbia PART B

  SETTLEMENT AGREEMENT AS TO PROMOTIONS AMONG THE BYRNE PLAINTIFFS AND LOCAL 36, THE HAMMON PLAINTIFFS AND THE CITY

  Summary of Agreement

  1. This agreement sets forth all essential terms of the settlement of all issues concerning promotions which are in dispute. It will be formalized in a decree to be submitted to the Court.

  2. This agreement among the Hammon plaintiffs, the Byrne plaintiffs and Local 36, and the City is executed simultaneously with Part A, an agreement between the Hammon class and the City on all other claims raised by members of the Hammon class. Together Parts A and B resolve all claims and bind all members of the Hammon and Byrne classes, and no member of either class may hereafter sue the City, any department or representative, or any party to the settlement agreement, with respect to any matter raised in this litigation.

  3. This agreement resolves all disputes as to matters arising as of the date it is executed, but does not resolve disputes resulting from future events, tests, decisions, etc. that occur after the date of this agreement. In addition, this agreement does not resolve issues regarding attorney's fees and costs, and the parties reserve all rights on these issues.

  4. One fundamental goal of this agreement is to enable firefighters who have waited for promotion longer than any party to this case would have wished to be promoted without further delay and to assure that future promotional opportunities will be available on a nondiscriminatory basis as soon as possible, and that equal and expedited opportunities for promotion will exist.

  Promotions to Vacancies as of March 1, 1989

  5. Promotions to Sergeant, Lieutenant and Captain will be made by using the lists attached to the October 2, 1989 Byrne/Hammon Joint Proposal to fill vacancies as of March 1, 1989. All those promoted from these lists shall be eligible to compete for promotion to the next highest rank in the examinations referred to in paragraph 7, infra.

  6. A fourth platoon will be instituted by June 1, 1991, with the result that 24 new Sergeant positions, 56 new Lieutenant positions and 9 new Captain positions will be created.

  Promotional Tests

  7. To fill vacancies arising after March 1, 1989 and before June 1, 1991, the City will develop a fair promotional examination for promotions to Sergeant, Lieutenant and Captain that shall be administered and the resulting promotional registers announced on or before February 1, 1991. The period in which materials will be available for this examination may be as short as two months. The Special Master shall work with the City to find a way to meet this deadline, and shall have full authority to compel any of the parties and their consultants to do whatever is reasonably necessary to assure that the examination and announcement of the resulting promotional registers take place no later than February 1, 1991.

  8. To fill vacancies arising after June 1, 1991 and for two years thereafter, the City will develop a fair promotional examination for promotions to Sergeant, Lieutenant and Captain that shall be administered and the resulting promotion registers announced on or before August 1, 1991. The period in which materials will be available for this examination may be as short as two months. The Special Master shall work with the City to find a way to meet this deadline, and shall have full authority to compel any of the parties and their consultants do whatever is reasonably necessary to assure that the examination and announcement of the resulting promotional registers take place no later than August 1, 1991.

  9. The development of these examinations is considered to be of the utmost importance, and the parties will cooperate in all reasonable ways to assist in meeting these deadlines and assuring the opportunities for nondiscriminatory promotions are present in the Fire Department.

  10. The Hammon and Byrne plaintiffs retain the right to challenge the tests referred to in paragraph 7 and 8, supra, and any subsequent examinations, the process in which they are developed, and the administration or use of tests.

  Announcement of Promotions

  11. As soon as possible after this agreement is ratified by all parties, members of the Fire Department will be informed of the fact that the City plans to offer the promotional tests set forth in paragraphs 7 and 8, supra.

  12. Prior to October 1, 1990, the Special Master shall indicate to the parties the plan he has found to be adequate to provide the tests set forth in paragraphs 7 and 8, supra.

  Timing

  13. Promotions pursuant to paragraph 5, supra, shall be made on or before 30 days after the Court's approval of this settlement agreement, but no promotions pursuant to this settlement agreement may be made until the amount specified in Part A has been set aside in a fund, as provided therein.

  Joan Burt, Esq.

  Counsel for the Hammon

  Plaintiffs

  ___

  For the City

  Herbert O. Reid, Sr.

  Corporation Counsel

  For the City

  George Cohen, Esq.*

  Counsel for the Byrne Plaintiffs and Local 36 August 20, 1990 Schedule A - Sergeant 1. Herlihy 21. Deily 41. Deaton 61. Sims 2. Wilk 22. Grambo 42. Dutton 62. Neal 3. Clark 23. Wood 43. Lockman 63. Gaskins 4. Grace 24. Vermeire 44. McGurk 64. Weissmueller 5. Foley 25. Wilson 45. Heckendorn 65. Mattox 6. Thurman 26. Rudder 46. Flynn 66. Lee 7. Sellitto 27. McCartney 47. Alston 67. R.H. Clark 8. Blair 28. Locksley 48. Faison 68. Shipp 9. B. Washington 29. Byrne 49. Thompson 69. Fitzgerald 10. E. L. Smith 30. Jamison 50. Barnard 70. Graves 11. Barchers 31. Donahue 51. Kefauver 71. Taylor 12. Reid 32. Miller 52. D.R. Smith 72. Subacz 13. Settle 33. Lopford 53. Tanis 73. J.R. Martin 14. Kelly 34. Tyson 54. C.R. Johnson 74. A. Crochran 15. Benson 35. Quirk 55. Knott 75. T. Burrell 16. Norris 36. Yocum 56. Gross 76. J. Monahan 17. Strawderman 37. Moore 57. Gerry Jackson 18. Lokey 38. Gray 58. Gallagher 19. Talbert 39. Bloom 59. McCray 20. McNally 40. Wallace 60. Schellenberg Schedule B - Lieutenant 1. Funk 18. Mould 35. Dean 52. Cochran 2. Herr 19. Anderson 36. Diggs 53. Handley 3. Harney 20. Deck 37. Sullivan 54. Lewis 4. Goldsmith 21. Bingham 38. Jardine 55. Reese 5. Settle 22. Coughlin 39. Spaulding 56. T.C. Johnson 6. Roberts 23. Chroniger 40. Williams 57. Bartek 7. Godfrey 24. Whitley 41. Wiggleswort 58. P.C. Johnson 8. Schaefer 25. James 42. Bruce 59. Robinson 9. Wood 26. Zollares 43. Tyndell 60. Martin 10. Pugh 27. G. Johnson 44. High 61. M.L. Smith 11. Belcher 28. Haller 45. Grant 62. Dunn 12. Wooten 29. Proctor 46. Hall 63. L. Buck 13. Skinner 30. E.A. Jackson 47. Drumming 64. G. Buck 14. Winokur 31. Beacham 48. Warner 65. Neville 15. Pestone 32. McDuffie 49. Waters 66. Gross 16. Biggs 33. Dwyer 50. Stewart 67. Rupard 17. McDonald 34. Flowers 51. Dutton 68. Smith Schedule C - Captains 1. Bullock 10. Crapo 19. Danner 28. Brown 2. Galloway 11. Edwards 20. Askins 29. Mansfield 3. Grimes 12. Chipouras 21. Holmes 30. Carter 4. Watts 13. Lancaster 22. N. Peterson 31. D'Amico 5. Partain 14. Stancovich 23. Gourlay 32. Harrison 6. Arthur 15. Ford 24. Walsh 33. Forman 7. Gilbert 16. Garrott 25. Moton 34. Lucas 8. Callaway 17. Francisco 26. Sheffield 35. O'Leary 9. Madison 18. Gould 27. Abell 36. Kavelak

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