or efficient in handing the over 1,000 individualized jury trials that would be required there. Although this Court does not believe those concerns prevent class certification in employment discrimination cases, the manageability problems referenced by the court in Celestine are not present in the instant case. First, the plaintiffs in the case at hand all work in the same job classification -- GS-1811 series Special Agents. They are all subjected to the same promotional system, the same performance evaluation system, the same disciplinary system, as well as the same uniform and centralized hiring and employment procedures. Second, because of the mediated settlement, the posture of this case is much different than that of Celestine or any of the other cases referenced above requiring bifurcation, such as Butler. In all of the referenced cases, the court's decision was forward-looking -- the ultimate outcome of litigation and the procedures that would be necessary to resolve the various individualized claims were yet unknown. In the case at hand, the relief that the class will receive has been negotiated between the parties. The Settlement Agreement creates procedures in which the individualized claims are managed and handled efficiently through claims procedures administered by class counsel. The manageability and efficiency of a class action settlement is quite different than that in a litigated case.
51. The only interest that counsel for Special Agent Davenport articulated at oral argument supporting her right to opt-out was the desire to have this case litigated in Kentucky as opposed to Washington, D.C. Her right to a change of venue does not rise to the level of a constitutionally protected interest. The prejudice, if any, Special Agent Davenport would suffer by being bound to this settlement is far out-weighed by the substantial benefits to the class as a whole under the Settlement Agreement. Special Agent Davenport did not assert that class counsel had not protected or would not adequately protect her rights with respect to this Settlement Agreement, nor did she assert that there would be any greater relief available to her by litigating this case in Kentucky as opposed to participating in the class action settlement. To the contrary, Special Agent Davenport will be entitled to seek backpay and up to $ 300,000 from the Compensatory Damages Fund, as well as utilize the equitable procedures set forth in the Settlement Agreement, with no diminution of her right to pursue her gender and/or FOIA claims, assuming that she has preserved such claims.
52. Special Agent Davenport does not challenge the fairness or adequacy of class counsel in the administration of the agreement. Even if she had, however, the Settlement Agreement provides that all tentative decisions of class counsel on the backpay compensatory damages are appealable to a neutral official chosen by the class. It is unnecessary to decide the constitutional question theoretically posed by Special Agent Davenport because the procedures set forth under the Settlement Agreement give her full relief and due process with respect to her claims of racial discrimination.
53. Indeed, in cases where sufficient alternative procedural safeguards are employed, opt-out rights are not required to satisfy notions of fundamental fairness or due process. See, e.g., Williams v. Burlington Northern, Inc., 832 F.2d 100, 104 (7th Cir. 1987) (even though plaintiff did not have right to opt out, court "provided [plaintiff] with the equivalent due process protection that would be accorded to a Rule (23)(b)(3) class member"), cert. denied, 485 U.S. 991, 99 L. Ed. 2d 508, 108 S. Ct. 1298 (1988); National Football League, 822 F. Supp. at 1411-12.
54. Even though Special Agent Davenport may not opt out, the requirements of due process and fundamental fairness have been satisfied because the objector has been: (1) adequately represented by the named Plaintiffs; (2) adequately represented by capable and experienced class counsel; (3) provided with adequate notice of the proposed settlement; (4) given an opportunity to object to the settlement; and (5) assured that the settlement will not be approved unless the Court, after analyzing the facts and law of the case and considering all objections to the proposed settlement, determines it to be fair, reasonable and adequate. Indeed, Special Agent Davenport does not dispute any of these elements.
(ii) Equitable Relief Predominates
55. The Advisory Committee Notes explain that class certification under Rule 23(b)(2), in a case in which monetary relief is sought, may be impermissible if "the appropriate final relief relates exclusively or predominately to money damages." Notes, 39 F.R.D. at 102 (emphasis added). In the present action, the predominately equitable claims of the class members arose from a system of personnel actions that have been uniformly imposed on all class members.
56. Special Agent Davenport argues, however, that this class cannot be certified pursuant to Rule 23(b)(2) because she claims monetary damages are the predominate type of relief. Her argument is belied by the Settlement Agreement itself. Although the compensatory damage award is substantial, $ 4,025,000, it constitutes an average of less than $ 16,500 for each member of the class, and no class member is guaranteed any award from the Backpay or Compensatory Damage Funds unless he or she provides evidence of discrimination and resulting damage. Weighed against the possible receipt of $ 16,500 is each class member's right to participate in the individualized equitable relief procedure, receive promotions, reinstatement, new or adjusted performance evaluations, adjusted personnel records, including awards, lateral changes of assignments, correction or removal of disciplinary action, and a host of other equitable measures. Any one of these equitable remedies could be worth more than $ 16,500 to a Special Agent for the life of his or her career. Cumulatively, they can make or break a Special Agent's career.
57. The class members' claims in this case also are interrelated because they were subject to the same processes for such things as competitive promotions. Accordingly, there is a significant identity of interest between class members for purposes of analyzing their economic injuries. Cf. National Football League, 822 F. Supp. at 1411. To provide a meaningful class remedy, any injuries must be redressed primarily through broad injunctive relief. In the absence of such relief, any award of monetary damages would merely be a stopgap measure, insufficient to prevent the reoccurrence of such injuries while likely generating an unending procession of lawsuits.
58. Pursuant to the Settlement Agreement, the class as a whole will receive substantial class-wide equitable relief. ATF is required to retain contractors to prepare job analyses, and redesign its entire promotion assessment system. It will also revise its procedures for performance appraisals, training procedures, discipline procedures, awards, bonus and assignments to special teams. It will make changes in the use of Schedule A in hiring and undertake more centralized approval of new agent hiring. ATF is also required to collect data for three (3) years after the implementation of the new promotion assessment system and that data will be used to determine whether the employment practices or personnel systems have an adverse impact. These far-reaching equitable measures-which have substantial value to the class as a whole and to the class members individually-far outweigh the $ 16,500 average compensatory damage award. Thus, the Settlement Agreement as a whole is predominantly equitable in nature.
59. In sum, this Settlement Agreement is properly a (b)(2) settlement both by agreement of the parties and by law. The policy in favor of not allowing class members to opt out of Rule 23(b)(2) class actions stems from the concern that "defendants would not be inclined to settle where the result would likely be a settlement applicable only to class members with questionable claims, with those having stronger claims opting out to pursue their individual claims separately." Kincade v. General Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981). Thus, "lawsuits alleging class-wide discrimination are particularly well suited for Rule 23(b)(2) treatment since the common claim is susceptible to a single proof and subject to a single injunctive remedy." Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.), cert. denied, 429 U.S. 870, 50 L. Ed. 2d 150, 97 S. Ct. 182 (1976). "In the interests of judicial economy and efficiency," i.e., to avoid needless duplicative suits, courts should generally certify classes pursuant to Rule 23(b)(2) when the class members are seeking injunctive relief and, correspondingly, not allow class members to opt out. Laskey, 638 F.2d at 956.
B. The Settlement Is Fair Under Section 108 of the Civil Rights Act
1. Standard of Review
60. The parties also seek to have this Court approve the Settlement Agreement pursuant to Section 108 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(n). If so approved, the Court's order in this case would bar future challenges to the procedures and practices set forth in the Settlement Agreement. Section 108 requires that, in order to invoke this procedure, the Court must find that the Defendant has given:
(I) Actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely effect the interest and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and
(II) A reasonable opportunity to present objections to such judgment or order.
61. As set forth in Exhibit 1 to Defendant's Response, Defendant undertook steps to provide actual notice of the Fairness Hearing and Settlement Agreement to all Special Agents of ATF (class members and non-class members), and to ensure that all current Special Agents signed a receipt for a full copy of the Settlement Agreement, a summary of its provisions, as well as communications from the Director of ATF explaining the need to enter into the settlement.
62. This notice, under all of the circumstances, was sufficient to apprise interested parties of the proposed settlement and afford them an opportunity to comment on the terms of the Settlement Agreement at the Fairness Hearing. See, e.g., Weinberger v. Kendrick, 698 F.2d 61, 70-71 (2d Cir. 1982) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652(1950)), cert. denied, 464 U.S. 818, 78 L. Ed. 2d 89, 104 S. Ct. 77; see also Grunin v. International House of Pancakes, 513 F.2d 114, 121-22 (8th Cir. 1975), cert. denied, 423 U.S. 864, 46 L. Ed. 2d 93, 96 S. Ct. 124 (1983). The Settlement Agreement and Fairness Hearing Notice delivered to class members and non-class members reasonably conveyed the information that was required to be communicated and afforded a reasonable time for those interested to comment on the proposed settlement. Thus, proper notice was given to the class of the proposed settlement in accordance with Rule 23, section 108, and due process requirements.
63. On September 12, 1996, this Court held a Fairness Hearing at which time any person who filed written objections to the Settlement Agreement was given an opportunity to address their objections. Indeed, a substantial number of non-class members filed written objections to the Settlement Agreement, as discussed and resolved below. Accordingly, the Court finds that the Defendant has complied with the procedures of Section 108 of the Civil Rights Act of 1991.
2. Standard of Reviewing the Objections to the Settlement Agreement
64. Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2, 2000e-3. The statute "provides the exclusive judicial remedy for claims of discrimination in federal employment," Brown v. General Services Administration, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), and "precludes actions [alleging employment discrimination] against federal officials for alleged constitutional violations as well as actions under other federal legislation." Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 542 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042, 79 L. Ed. 2d 173, 104 S. Ct. 709 (1984).
65. The standard for determining whether affirmative relief is justified under Title VII is less stringent than under the Constitution. Under Title VII, a "manifest imbalance" in a "traditionally segregated job category" will justify the adoption of race-conscious relief. Johnson, 480 U.S. at 630; compare City of Richmond v. J.A. Croson Co., 488 U.S. 469, 102 L. Ed. 2d 854, 109 S. Ct. 706 (1989) (requiring affirmative relief to be supported by a "compelling interest" under a strict scrutiny analysis employed for equal protection cases). Nor is a finding or admission of prior discrimination required in a Title VII case. Indeed, to adopt affirmative measures to resolve Title VII employment discrimination claims, the employer need not admit to any prior discrimination, nor point "to evidence of an 'arguable violation' on its part." Johnson, 480 U.S. at 630.
66. Under the manifest imbalance standard, an employer is not required to show non-statistical evidence of past discrimination as it would under the prima facie standard. Johnson, 480 U.S. at 633 n.11. There is no doubt that "where gross statistical disparities can be shown, they alone in a proper case may constitute prima facie proof of a pattern or practice of discrimination" under Title VII. City of Richmond v. Croson, 488 U.S. at 501 (quoting Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977)). A "gross" statistical disparity is where a disparity of 5% exists (equivalent to a one-in-twenty chance of random occurrence) in a relevant job category.
"[A] court will infer from the numbers alone that, more likely than not, the disparity was a product of unlawful discrimination," absent strong rebuttal evidence. Palmer v. Shultz, 259 U.S. App. D.C. 246, 815 F.2d 84, 91 (D.C. Cir. 1987); Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1283 (D.C. Cir. 1984), cert. denied sub nom., Meese v. Segar, 471 U.S. 1115, 86 L. Ed. 2d 258, 105 S. Ct. 2357 (1985). Under Title VII, as with constitutionally-based challenges, the burden is on the challenger to rebut the presumption that affirmative relief agreed to by the government is justified. Johnson, 480 U.S. at 626; Janowiak v. South Bend, 836 F.2d 1034, 1036 (7th Cir. 1988), cert. denied sub nom., South Bend v. Janowiak, 489 U.S. 1051, 103 L. Ed. 2d 579, 109 S. Ct. 1310 (1989).
67. A "manifest imbalance" can be shown by statistical evidence alone or through a combination of statistical and anecdotal evidence. Palmer, 815 F.2d at 91. Even when the statistical evidence shows less than 1.96 standard deviations, the Court of Appeals for the District of Columbia has held that a prima facie case of discrimination can be made relying on anecdotal evidence supporting the statistical showing. Palmer, 815 F.2d at 96-97.
68. Under Title VII, affirmative relief may not "unnecessarily trammel" the interests of non-minorities, United Steelworkers of America v. Weber, 443 U.S. 193, 208, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979), but "innocent persons may be called upon to bear some of the burden of [an] affirmative remedy." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280-81, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (plurality opinion); compare Croson, 488 U.S. at 505 (requiring affirmative relief to be "narrowly tailored" in constitutional cases). Thus, in a Title VII case, affirmative relief need not directly correspond to particular instances of discrimination. Wygant, 476 U.S. at 287; Local 93 of Firefighters v. City of Cleveland, 478 U.S. 501, 515, 92 L. Ed. 2d 405, 106 S. Ct. 3063 (1986) (citing Local 28, Sheet Metal Workers' Int'l Ass'n v. Equal Employment Opportunity Comm'n, 478 U.S. 421, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986)).
69. Relevant factors in determining the proper scope of the affirmative relief include whether it is temporary and limited in nature, United States v. Paradise, 480 U.S. 149, 182, 94 L. Ed. 2d 203, 107 S. Ct. 1053 (1987); whether it involves layoffs or less burdensome promotions, Wygant, 476 U.S. at 282-283; Howard v. McLucas, 871 F.2d 1000, 1010 (11th Cir. 1989), cert. denied sub nom., Poss v. Howard, 493 U.S. 1002, 107 L. Ed. 2d 555, 110 S. Ct. 560 (1989); Howard, 871 F.2d at 1010 (affirmative promotional relief met more strict constitutional requirement that it be narrowly tailored in part because targeted promotions represented only 4.3% of similar promotions made during the same period); and the nature of the employment, see Paradise, 480 U.S. at 167 n.18 (noting cases suggesting a greater government interest in eliminating possibly discriminatory employment policies in law enforcement, but not reaching issue); accord Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996) (Posner, J.) (discussing cases recognizing special nature of law enforcement in approving race-conscious remedies).
70. The Supreme Court's decision in Croson, as well as its subsequent decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995), may establish a stricter standard. There is some uncertainty as to whether the law of this Circuit requires that the Title VII standard of Johnson be applied in a discrimination case against the federal government as opposed to the strict scrutiny analysis required under the U.S. Constitution by Croson and Adarand. The Supreme Court stated in Adarand that, "We hold today that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny." 115 S. Ct. at 2112. This issue has been considered by another judge in this District in a quite similar action against the Federal Bureau of Investigation:
The FBI is a federal agency and, as such, is not subject to the equal protection clause of the Fourteenth Amendment. While the Fifth Amendment has been interpreted as imposing equal protection guarantees similar to those provided by the Fourteenth Amendment, the Court has been unable to find any post-Croson cases in which the Croson standard has been applied to voluntary race-conscious relief granted by a federal agency in the Title VII context.