The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before the Court is plaintiffs' Motion for an Injunction enjoining the defendants Drug Enforcement Agency ("DEA" or "Agency") from promoting DEA Special Agents to the Senior Executive Service ("SES") unless the Agent has applied and been rated and ranked as a qualified applicant pursuant to the SES promotion procedures stipulated to by the parties and approved by this Court on March 12, 2002. Upon consideration of the numerous, substantial, and often exceptional briefs filed by the parties, oral arguments held on March 17 and 25, 2004, a tenday non-jury trial during which the Court heard from more than a dozen witnesses, the relevant case history and case law, and the entire record, including hundreds of exhibits, the Court concludes for the reasons discussed herein that plaintiffs' Motion for an Injunction must be DENIED. As a result of this conclusion, the Court further finds that no stipulation as to the procedures for promoting DEA Agents to the SES is in effect.
Therefore, as explained below, consistent with this Court's Orders of February 6, 1981 and February 17, 1982, and in order to comply with the Opinion issued by the U.S. Court of Appeals for the District of Columbia Circuit in Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), this Court will craft a remedy to address DEA's past discrimination against black agents. To that end, and barring any appeal, the Court schedules a status conference with the parties on May 2, 2006, at 11:00 a.m. to address further proceedings.*fn1
A. The Court's Initial Finding that DEA had Discriminated Against Black Agents
This lawsuit against DEA was filed on January 14, 1977, by a putative class consisting of African-American Special Agents, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-17 ("Title VII"). The complaint alleged that DEA discriminated against class members in "all aspects of the employment process," including initial grade assignments, types of appointment, type of work performed, training, discipline, supervisory evaluations, awards and promotions, and salary. See Segar v. Civiletti, 508 F. Supp. 690, 692 (D.D.C. 1981). In 1979, Judge Aubrey Robinson, Jr. of this Court held a bifurcated trial on the liability issues alleged in plaintiffs' Complaint. Id. at 693.
In a well-reasoned opinion issued after the trial, the Court made a number of findings related to DEA's employment practices; especially relevant for the present purposes are the Court's findings with respect to promotions. The Court found that at the DEA, promotions at the lower grades, GS-7 to GS-12, were non-competitive. Id. at 695. In order to be promoted at the higher grades, however, agents had to compete on a regional or agency-wide basis, satisfy time-in-grade requirements, be rated and ranked by a review board and placed on the best qualified list, and ultimately be selected by the appropriate official. Id. While the rating and ranking was based on a numerical system that assigned values for an agent's length of experience, breadth of experience, performance evaluation, and education and training, the Court found that the rating and ranking boards were given no guidance as to how to assign points for each category and, thus, points were alloted on the basis of the board members' judgment. Id.
Upon consideration of expert statistical evidence and individual testimony presented by both sides, Judge Robinson ultimately concluded that DEA had discriminated against black agents, in violation of Title VII, with respect to salary, grade at entry, work assignments, the supervisory evaluation process, discipline, and promotions. Id. at 712-715. Regarding promotions, the Court found Plaintiffs' statistical evidence did not establish a prima facie case regarding positions filled through the Career Board process. The statistics did establish, however, that a significant disparity exists in promotions from GS-11 to GS-12. The statistics involving promotions to GS-13 through GS-18 levels are insignificant, primarily due to the necessarily small number of agents considered in the regression analyses. Thus, the statistics alone did not establish a prima facie case of discrimination in promotions, with the exception of promotions from GS-11 to GS-12.
The non-statistical evidence firmly established discrimination in promotions, however. Work assignments, supervisory evaluations, and disciplinary actions all significantly affect an agent's promotional ability. In all of these areas, defendants discriminated against black agents. Thus, the Court concludes that plaintiffs proved a prima facie case of discrimination in promotions. Defendants failed to rebut plaintiffs' showing of discrimination. They have validated neither the Career Board scoring system nor the non-competitive promotion procedures... Thus, the Court concludes that defendants discriminated against black agents in promotions.
In accordance with its opinion, the Court ordered the DEA to cease its discriminatory practices and "immediately commence validity studies in order to implement effective, non-discriminatory supervisory evaluation, discipline, and promotion systems[,]... [and] to insure that said systems have neither a disparate impact on black agents nor effectuate disparate treatment of black agents[.]" Id. at 715. The Court further ordered the parties to address how to remedy the discrimination in salary, grade at entry, and promotion. Id.
B. The Court's Remedial Order
Following his determination that the defendants had violated Title VII, and after considering the parties' proposals for further relief, Judge Robinson issued an Order on February 17, 1982, granting plaintiffs' specific relief. Segar v. Smith, 1982 WL 214 (D.D.C. 1982). The Court ordered the defendants to pay backpay to remedy the salary discrimination, based on the regression analyses introduced at trial and according to guidelines established by the Court. Id. at *4-5. The Court further ordered the DEA to promote one black agent for every two non-black agents to grades GS-14 through 18, "until members of the plaintiff class constitute ten percent (10%) of the agents at that grade level, or until five years after the date of this Order, whichever is sooner." Id. at *6. The Court provided that if, in any year or after the five-year period ended, plaintiff class members did not make up ten percent of any grade level, plaintiffs could request additional relief from the Court. Id. The Court also ordered frontpay. Id. at *6-8.
The Court's remedial Order also established reporting requirements for DEA's Equal Employment Opportunity ("EEO") office, and established a monitoring committee, known as the Equal Employment Opportunity Monitoring Committee ("EEOMC" or "Committee"), made up of eight members of the plaintiff class.
The Committee was responsible for monitoring the DEA's compliance with the Court's order. Id. at *8. According to the Court's order, the EEOMC members were permitted to work up to twenty hours per month on Committee business, DEA was to appoint one person each from the offices of personnel, general counsel, and the EEO to act as liaisons with the EEOMC, the Committee was to be given the results of the EEO's studies and reports and any other employment information requested by the Committee, and had the authority to investigate complaints by special agents concerning DEA's compliance with the Court's Order. Id. at *8-9.
The Court further provided that any plaintiff class member could elect to assert an individual claim for backpay while a GS-7 or GS-9, or for reinstatement with backpay. Id. at *9. Finally, the Court determined that the various obligations it was imposing on DEA were ordered pursuant to the Court's equitable powers under Title VII, and the Court retained jurisdiction over the case to ensure compliance with its Order until "such time as the Court concludes that the rights of plaintiffs have been accorded and satisfied by defendants." Id.
C. The U.S. Court of Appeals for the District of Columbia Circuit Upholds the District Court's Liability Determination but Vacates Promotion Mandates
The DEA appealed both the District court's liability determination and its remedial scheme to the U.S. Court of Appeals for the District of Columbia Circuit. Segar v. Smith, 738 F.2d at 1259. The Court of appeals explicitly recognized that the trial court had based its findings of discrimination at the higher grades "on inferences from proven discrimination at the immediately preceding levels and ... in the factors that bear most directly on promotions[,]" and the Court soundly rejected DEA's challenge to the District court's liability determination. Id. at 1264.
On balance, we find no reversible error in the District Court's overall assessment of the evidence. The court properly attributed probative weight to plaintiffs' statistical analyses, and properly rejected the three aspects of DEA's case on rebuttal-the need for gross disparities, the insufficiency of the statistical studies, and the purported failure to account for prior law enforcement experience. In light of these findings, the court appropriately held that DEA had engaged in a pattern or practice of discrimination against black special agents ... and properly held that DEA's initial grade assignments, supervisory evaluations, imposition of discipline, and promotion process had disparate impacts on black agents... We therefore affirm the District Court's liability determination in its entirety.
As for the District court's remedial scheme, the DEA argued on appeal that the class-wide backpay award violated the individualized hearings required by Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), and compensated plaintiffs for non-actionable discrimination prior to 1972, and that the promotion goals and timetables exceeded the trial court's authority under Title VII and violated the equal protection clause of the Constitution. Segar, 738 F.2d at 1289.
The appellate court recognized that Title VII affords the courts broad authority to craft equitable relief following a determination of discrimination. Id. at 1288-89. The court quoted the Conference Report, which accompanied the 1972 amendment to Title VII: "The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible." Id. at 1289 (quoting Section-by-Section Analysis of H.R. 1746, accompanying the Equal Employment Opportunity Act of 1972-Conference Report, 118 Cong. Rec. 7166, 7168 (1972)). The court also noted that the Supreme Court has recognized the broad scope of the courts' remedial power. Segar, 738 F.2d at 1289 (citations omitted).
Turning to the DEA's contentions, the Court of appeals first found that the District court had not erred in ordering class-wide relief without individualized hearings. Id. at 1289-91. The appellate court remanded the backpay award for reconsideration by the trial court, however, because the court's formulation was tied to the regression analysis, which included to some degree non-actionable pre-1972 discrimination. Id. at 1293.
Next, while recognizing that generally promotion goals and timetables can be used to remedy discrimination, Id., the Court of appeals vacated the trial court's order that one black agent be promoted for every two white agents to GS grades above GS-12, because the District court "did not consider whether less severe remedies might prove equally efficacious in this case." Id. at 1294.
The reviewing court concluded:
On remand we encourage the District Court to consider other remedial options to ensure that black agents attain their rightful places at the upper levels of DEA. We note in particular that a promotion bottleneck appears to exist at the GS-12 level. While black agents manage to arrive at this level eventually, few progress beyond this point. In remedying promotion discrimination at this point and at all levels, the court is of course free to establish promotion guidelines and to monitor DEA's progress in meeting those guidelines, or to fashion any other appropriate relief.
Id. at 1295 (emphasis added).
D. Following the Court of Appeals' Decision, the Parties Enter a Series of Stipulations or Consent Decrees to Remedy Discrimination at DEA
On June 26, 1985, the parties informed the District court that the Supreme Court had denied certiorari of the Court of appeals' decision, that the case was therefore back before Judge Robinson on remand, and that the parties were working to settle those issues remanded by the Court of appeals. See Stipulation Regarding Status, Civ. No. 77-0081 (filed June 26, 1985).
On February 17, 1987, the parties stipulated to, and the Court approved, an agreement between the parties on the remedial issues remaining before the Court. See Stipulation and Order with Respect to Outstanding Claims Regarding Relief, Civ. No. 77-81 (filed Feb. 17, 1987). On the issue of promotions, the defendants agreed not to discriminate against black special agents "in any phase of the process through which promotions are determined and awarded at DEA" and to "continue as rapidly as possible with the development and validation of effective, nondiscriminatory personnel practices in accordance with the Court's Order dated February 6, 1981, the February 17, 1982 Order, the Joint Stipulation approved July 31, 1981, and the Stipulation approved April 28, 1983." Id. at 6.
As a review of the docket in this matter will attest, although there were periods of delay - often due to defendants' requests for extensions or because the parties continued to litigate a variety of new disputes - over the course of the next fifteen years, the parties continued to file, and the Court continued to approve, a series of Stipulations regarding various issues, including promotion procedures. See, e.g., Order Re: Establishment of Promotion System, Civ. No. 77-0081 (filed March 25, 1990); Stipulation and Order for Approval of Final Working Group and New Promotion System, Civ. No. 77-0081 (filed July 10, 1991); Stipulation Implementing A Promotion Process for Selecting DEA Criminal Investigators for Positions in the Senior Executive Service, Civ. No. 77-0081 (filed March 12, 2002).
It is the validity and interpretation of one of these stipulated promotion procedures, specifically the Stipulation Implementing A Promotion Process for Selecting DEA Criminal Investigators for Positions in the Senior Executive Service, that is the source of the instant dispute.
E. The Stipulation Implementing Promotion Procedures for the DEA Senior Executive Service
The Stipulation submitted to the Court states that on February 6, 1981, the Court ordered DEA to conduct validity studies and implement non-discriminatory employment practices, including promotions. See Stipulation Implementing A Promotion Process for Selecting DEA Criminal Investigators for Positions in the Senior Executive Service, Civ. No. 77-0081 (filed March 12, 2002)(No. 104)(hereafter "SES Stipulation") at 1. It also provides:
[T]he attached SES Special Agent Selection Process developed by the DEA, once ordered by the Court, will enact a system developed and constructed to provide DEA with a valid, non-discriminatory mechanism for selecting DEA special agent executives and to provide agency selection officials with the highest quality candidates from which to choose.
The Working Group and the Equal Employment Opportunity Monitoring Committee, which consists of and represents plaintiff class members ("the Segar Committee"), each of which was appointed by this Court to monitor and review DEA's employment practices, have reviewed the SES Special Agent Selection Process. Through this process, DEA has addressed the Working Group's and the Segar Committee's comments and concerns and has implemented their suggestions. The Working Group and the Segar Committee have approved the SES Special Agent Selection Process as drafted and submitted to this Court as Attachment A hereto. Id. at 1-2.
The SES Stipulation was signed by the then-United States Attorney for the District of Columbia, Roscoe C. Howard, Jr., and the parties' attorneys at that time, Jennie O'Flanagan for the plaintiffs and Mark Nagle and Laurie Weinstein for the defendants. This Court approved the Stipulation on March 12, 2002.*fn2
The document attached to and implemented by the SES Stipulation is titled "Review of Applications from Staff for SES Special Agent Positions" ("Stipulated Procedures") and describes a process through which candidates for promotion to the SES "must" submit their application to their SES-level supervisor, and that supervisor "must" complete a recommendation and evaluation form for the candidate. Stipulated Procedures at 1. The applications are then reviewed by a "Rating and Ranking Panel," which develops a "best qualified list" of candidates and submits the list to the Deputy Administrator of DEA. Id. at 3. The Deputy Administrator then reviews the names on the list and may remove an applicant from the list for any Office of Professional Responsibility or disciplinary issues; the reasons for any such removal from the list must be documented in writing. Id. Finally, according to the Stipulated Procedures, the DEA Administrator "will make his selection or non-selection from the list of candidates provided by the Deputy Administrator." Id.
On page one of the Stipulated Procedures, the title of the document includes a footnote. The footnote reads:
These procedures are meant to systematize the process of selecting individuals for Special Agent SES positions. However, nothing in these procedures are [sic] meant to reduce the authority of the Administrator in selecting persons to fill DEA positions.
See Stipulated Procedures at 1, n.1. Whether the parties intended this footnote to mean that the DEA Administrator could promote someone to the SES who had not applied through the process described in the Stipulated Procedures - i.e., by applying, being rated and ranked, and appearing on the best qualified list - is the crux of the dispute that this Court must resolve.
F. The Plaintiffs' Motion for an Injunction
After the Stipulated Procedures were enacted, then-DEA Administrator Asa Hutchinson made a number of promotions to the SES from among candidates who had applied and been rated and ranked in accordance with the process described in the Stipulated Procedures. See Plaintiffs' Proposed Findings of Fact and Conclusions of Law ("Pl. PFFCL") at 57 (citing to the record); Defendants' Findings of Fact and Conclusions of Law ("Def. PFFCL") at 42-43; Transcript of Asa Hutchinson ("Tr. Hutchinson") at 198-99. It is undisputed, however, that on August 28, 2003, DEA Administrator Karen Tandy promoted Special Agent Mary Cooper to the SES and that Ms. Cooper had not submitted an application or been rated and ranked and placed on the list sent to the Administrator. Pl. PFFCL at 60; Def. PFFCL at 57.
On March 12, 2004, plaintiffs filed a Motion for a Temporary Restraining Order to enjoin DEA from promoting any Special Agents to the SES who had not applied for promotion through the Stipulated Procedures process and to rescind Special Agent Mary Cooper's promotion to the SES. This Court held a hearing on plaintiffs' motion on March 17, and continued the hearing to March 25, 2004. The Court concluded that the meaning of the footnote in the Stipulated Procedures was ambiguous and determined that extrinsic evidence of intent was necessary to resolve the issues presented by plaintiffs' motion. On March 29, 2004, pursuant to Federal Rule of Civil Procedure 65(a)(2), the Court consolidated the hearing on plaintiffs' Motion for a Preliminary Injunction with a trial on the merits of plaintiffs' claims. Order, Civ. No. 77-0081 (March 29, 2004).
A non-jury trial was conducted on October 26-28, November 2, 5, 30, and December 13-14, 2004, and January 13, 2005, at which time the parties presented extrinsic evidence regarding their intent and understanding of the footnote, and the circumstances surrounding the development and implementation of the Stipulated Procedures. The parties made closing arguments on June 13, 2005.
A. Applicable Law and the Burden of Proof
A consent decree, such as the stipulation implementing DEA's SES promotion procedures, is essentially a contract. See Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1125 (D.C. Cir. 1983) ("construction of a consent decree is essentially a matter of contract law); Kilpatrick v. Paige, 193 F. Supp. 2d 145, 152 (D.D.C. 2002) ("A settlement agreement is a contract and, as such, it must fulfill the elements of a contract."). An enforceable contract requires "(1) agreement as to all material terms; and (2) intention of the parties to be bound." See Novecon Ltd. v. Bulgarian-Am. Enter. Fund, 190 F.3d 556, 564 (D.C. Cir. 1999) (citing Jack Baker, Inc. v. Office Space Dev. Corp., 664 A.2d 1236, 1238 (D.C. 1995); Georgetown Entm't Corp. v. District of Columbia, 496 A.2d 587, 590 (D.C. 1985)). In other words, there must be a "meeting of the minds" with respect to the material terms of the contract before the parties will be bound by it. See Davis v. Winfield, 664 A.2d 836, 838 (D.C. 1995) ("[T]o establish a contract the minds of the parties must be in agreement as to its terms.") (internal quotation marks omitted); see also Jack Baker, 664 A.2d at 1239 ("Where the parties fail to agree to all material terms, no contract is formed.").
As the party seeking relief and arguing the existence of an enforceable contract, it is plaintiffs' burden to show, by a preponderance of the evidence, that there was a "meeting of the minds" with respect to the Stipulated Procedures. See Ekedahl v. COREStaff, Inc., 183 F.3d 855, 858 (D.C. Cir. 1999); Bldg. Servs. Co. v. AMTRAK, 305 F. Supp. 2d 85, 92 (D.D.C. 2004).
B. Plaintiffs' Position with Respect to the Footnote
Plaintiffs insist that at the time the footnote was drafted and the stipulation was entered, both plaintiffs and DEA intended the Stipulated Procedures to be the only means for promotion to the SES. Plaintiffs further maintain that both parties meant the footnote only to reserve the Administrator's authority to laterally transfer SES agents to other SES positions and to fill specific SES positions with any of the qualified applicants (as opposed to the highest-ranked applicant, for example).*fn3 Pl. PFFCL at 27-33.
Finally, plaintiffs offer two arguments in the alternative. First, plaintiffs insist that even if the Court finds that the parties attached different meanings to the footnote, based on the contract construction theory of "misunderstanding," DEA is bound by plaintiffs' understanding because DEA knew or should have known of the interpretation plaintiffs attached to the footnote. Pl. PFFCL at 88-90 (citing Centron DPL Co. v. Tilden Fin. Corp., 965 F.2d 673, 675 (8th Cir. 1992); Downey v. Clauder, 811 F.
Supp. 338, 339-40 (S.D. Ohio 1992) (rejecting that there was no meeting of the minds where party knew or had reason to know of the other party's intended meaning of the agreement); United States v. Haas & Haynie Corp., 577 F.2d 568, 573-74 (9th Cir. 1978) (holding that binding contract was formed where neither party knew of the meaning attached by the other but one had reason to know of the meaning attached by the other); Merced County Sheriff's Employees' Ass'n v. County of Merced, 188 Cal. App. 3d 662, 670-74 (Cal. Ct. App. 1987) (where parties' negotiations made clear that party should have known the other party's intended meaning, the knowing party was bound by that meaning); Joyner v. Adams, 361 S.E.2d 902, 905 (N.C. Ct. App. 1987) (remanding for determination whether "the parties knew or had reason to know of the other's meaning of the disputed language"); 1 Restatement (Second) of Contracts § 20(2) (1981).
Second, plaintiffs insist that even if the Court finds that the footnote is susceptible to two reasonable but conflicting interpretations, the ambiguity must be construed against DEA, as the footnote's drafter.*fn4 See Pl. PFFCL at 107-08 (citing Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1486 (D.C. Cir. 1997) (construing contract against drafter); Mesa Air Group, Inc. v. Dep't of Transp., 87 F.3d 498, 506 (D.C. Cir. 1996); Intercounty Constr. Corp. v. District of Columbia, 443 A.2d 29, 32 (D.C. 1982) (if there is no one definite reasonable interpretation, "the ambiguities remaining in the contract will be 'construed strongly against the drafter . . . .'") (quoting 1901 Wyo. Ave. Coop. Ass'n v. Lee, 345 A.2d 456, 462 (1975); 2 Restatement (Second) of Contracts § 206 (1981) ("In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.").
C. Defendants' Position with Respect to the Footnote
Defendants, on the other hand, insist that there was no meeting of the minds and that the Stipulated Procedures are not enforceable. See Def. PFFCL at 71 (citing A.M. Castle & Co. v. United Steel Workers of America, 898 F. Supp. 602, 608 (N.D. Ill. 1995)). See also, e.g., Kilpatrick v. Paige, 193 F. Supp. 2d 145, 154 (2002) (no agreement); Estate of Taylor v. Lilienfield, 744 A.2d 1032, 1035 (D.C. 2000) (no contract arises,and any apparent contract is void, if the minds of the parties do not meet honestly and fairly without mistake or mutual misunderstanding upon all issues involved); In Re Wright, 51 B.R. 669, 674 (Bankr. D.D.C. 1985)(contract voided and rescinded).
In response to plaintiffs' misunderstanding argument, defendants insist that where a party is "consciously ignorant," that party may not seek enforcement based on their mistake. See Def. PFFCL at 81-82 (citing Restatement (Second) of Contracts § 154 ("A party bears the risk of mistake when ... (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient."). Instead, defendants maintain that the evidence deduced at trial clearly established not only that defendants did not mislead plaintiffs or have reason to suspect that plaintiffs misunderstood the footnote, but that the evidence in fact demonstrates that plaintiffs were made aware of the footnote and chose not to seek clarification of its meaning from anyone at the DEA. See, e.g., Def. PFFCL at 23-35.
At the outset, the Court notes that it credits the majority of plaintiffs' evidence. Throughout the trial, the Court found the plaintiffs' DEA witnesses to be truthful, credible, and knowledgeable. Moreover, the Court recognizes that these plaintiff class members have good reason to remember conversations and events and to have paid close attention to the development of the promotion procedures. After all, as the Court determined after the trial in 1979, the DEA had historically practiced wide-spread race discrimination against black special agents at almost every aspect of the employment process. However, the evidence, as credible as it is, simply does not support a legal conclusion that the parties each intended the Stipulated Procedures, including the footnote, to mean that the DEA Administrator could never promote a non-applicant to the SES.
The following recitation of the facts is based in large part on the parties' Proposed Findings of Fact, modified by the Court as necessary.*fn5
In summary, after considering all the evidence, including the credibility of the witnesses, the Court finds:
a. At the time the SES Promotion Procedures were stipulated to by the parties and entered by the Court as an Order, the plaintiffs believed that any special agent promoted to the SES had to have applied through the procedures and been selected from a list provided to the Administrator;
b. Although plaintiffs' interpretation of the footnote was reasonable, plaintiffs never confirmed with anyone at the DEA that their understanding of the footnote was that of the defendants;
c. While there seems to be some variation as to what the defendants intended the footnote to mean, at least two key people acting on DEA's behalf - Administrator Hutchinson, the DEA Administrator at the time the Stipulated Procedures were entered, and Laurie Weinstein, the attorney for the DEA at the time the Stipulated Procedures were entered, understood and intended the footnote to retain some discretion for the Administrator to select for promotion a special agent who had not applied through the process or appeared on a list;
d. Plaintiffs have not sustained their burden of proof that plaintiffs and defendants shared a common understanding of the footnote's meaning;
e. Plaintiffs cannot rely on a theory of misunderstanding or mistake in this case because the defendants brought the footnote to plaintiffs' attention and plaintiffs recognized the potential for the footnote to undermine the otherwise exclusive procedures for SES promotion; yet rather than confirm the meaning of the footnote with the DEA, plaintiffs and plaintiffs' counsel made assumptions and conferred only with each other as to the footnote's meaning.
1. History of the SES and Development of the New Promotion Procedures
1. Before the implementation of the SES Promotion Procedures, the process the DEA had employed to promote Special Agents into senior management positions was both unwritten and opaque - essentially the process was a mystery to the Special Agents. See Tr. 10/28/04 at 85:5-10 (Walker) ("Complete mystery, Your Honor. Somebody would get a phone call. And I remember asking people, how do you get promoted. And the people that I asked couldn't really tell me."), 118:9-16 (Reed) ("No one knew how one got on the list to be a SES."); see also id. at 62:22-64:9 (Walker). Prior promotion practices entailed the Career Board preparing a SES "short list" and forwarding it to the Administrator, who would usually select a person for promotion from that list, but was not required to do so. Tr. 12/13/04 at 140:7-141:18 (Marshall). The method used to compile the SES short list was entirely subjective-there were no standardized criteria, no rating and ranking, and no required qualifications. Tr. 10/26/04 at 77:23-81:12 (Gamble).
2. Faced with the Court's Orders requiring the implementation of a validated SES promotion process, the DEA concluded that it would be technically infeasible to validate its historical practices, which had "no formal promotion criteria," did not advise candidates of how they were being measured, and lacked any formal evaluation system. PX 3 at SES4416-18.
Accordingly, the DEA did not attempt to validate its existing SES promotion practices and instead chose to develop a non-discriminatory system that would have formal criteria and could be content validated as required by the Court's Orders. Id.; see also PX 8; PX 12 at SES4839-40 ("Given the numerically insignificant total [number] of SES positions selected in any year, the procedures implemented by the agency must be content valid.").
3. Mr. John Kraft, whom the DEA hired to develop the content validated, non-discriminatory SES Promotion Procedures, began drafting the Procedures in May 1996. Tr. 11/30/04 at 6:22-7:20 (Kraft). Language similar to that found in footnote one to the Procedures was not in any of Mr. Kraft's proposals and did not appear in the Stipulated Procedures until December 2000. PX 39; PX 40.
4. No version of the Procedures prior to December 2000 discusses or suggests that the Administrator could promote to the SES a Special Agent who had not applied using the Stipulated Procedures.*fn6 These pre-footnote Stipulated Procedures make clear that while the Administrator can only promote to the SES Special Agents who had applied pursuant to the Stipulated Procedures, the Administrator had the flexibility to fill SES positions by competitively promoting someone from the Best Qualified List, laterally reassigning a current SES-level Special Agent, placing a Special Agent in a temporary or developmental assignment, or leaving the position vacant. See, e.g., PX 23 at SES3150; PX 27 at S 003054, 98; PX 125 at SES3014; PX 126 at SES2472.
5. In February 1997, DEA Chief Counsel Ryan and DEA Associate Chief Counsel Walden advised that the Stipulated Procedures-which did not include the footnote or suggest in any way that the Stipulated Procedures would permit the Administrator to promote someone who had not applied - were legally sufficient. Tr. 12/13/04 at 207:9-208:23 (Ryan); PX 14 at SES4829; PX 165 at 54:20-55:12 (Walden Dep.).
6. Administrator Constantine met with Mr. Kraft, Chief Counsel Ryan, and several other executive staff members on December 30, 1997, to discuss the Stipulated Procedures. Contemporaneous notes of this meeting demonstrate that Administrator Constantine said he wanted to be able to open the process to GS-14 level Special Agents to permit them to apply, if necessary, PX 24 ¶ 4; DX 14 at SES2165; Tr. 11/30/04 at 87:14-88:14 (Kraft); Tr. 12/13/04 at 70:22-25, 73:9-10 (Ryan), but do ...