Frequently Asked Questions
Request for Additional Information Form
SETTLEMENT AGREEMENT IN GENERAL
1. What is the background information leading up to this Settlement Agreement?
Class Agent Lawrence D. Durnford, on behalf of himself and others similarly situated, filed an EEO complaint against the Agency on March 1, 1996, alleging discrimination on the basis of race (White) and sex (male). Mr. Durnford alleged discrimination in his non-selection for the position of Immigration Judge during 1994 and 1995. After several years of litigation on procedural and class certification issues, on April 25, 2002, the EEOC Administrative Judge (AJ) defined the Class as “White male applicants for employment not selected as Immigration Judges during 1994 and 1995.”
In September 2002, the EEOC AJ bifurcated the issue of liability from that of damages. That month, the parties entered into extensive liability-related discovery and preparation, which included deposing 35 witnesses, including expert witnesses, the disclosure of extensive amounts of documents and the exchange of expert reports. During the pendency of discovery, Mark Glickman was added as a Class Agent. The hearing on liability, initially scheduled for June 2003, was stayed pending mediation by a private mediator. Mediation took place in Washington, D.C. and Austin, Texas.
Throughout litigation, the Agency denied any wrongdoing or liability. The Class and the Agency disagreed as to liability and damages, including the amount recoverable if the Class prevailed and the calculation of monetary damages. In January 2004, after nearly nine years of litigation and five months of mediation, the Agency and the Class Agents reached an agreement in principle. The agreement in principle was the basis for the negotiations that led to the Settlement Agreement.
2. What are the terms of the Settlement Agreement?
The Agency will deposit $11.5 million into a Settlement Fund, which Class Counsel will establish as a qualified Settlement Fund under Part 468B of the Internal Revenue Code. A Claims Administrator, to be designated by Class Counsel, will administer the funds according to provisions of the Distribution Formula (Exhibit 7 to the Settlement Agreement). The formula allocates the recovery in proportion to the injury suffered by each Class Member. The amount to be distributed to each Class Member is not known at this time because it will depend on the number of Class Members who claim relief and the formula calculations particular to each Class Member. In addition, a portion of the Settlement Fund will be allocated to the Class Agents and other Class Members according to contributions made during the class action litigation. There will be no injunctive relief.
3. Where can I find a complete copy of the settlement agreement?
The Settlement Agreement can be found at http://www.katorparks.com/durnford agreement.htm.
4. Who has the authority to determine who is eligible to receive monetary relief?
The Claims Administrator will have the sole authority to determine who is eligible to receive monetary relief. Anyone determined by the Claims Administrator to be a Class Member will be eligible to receive monetary relief.
5. Can I opt out of the Settlement Agreement?
No. Pursuant to the Settlement Agreement and applicable regulations, no Class Member may opt out of the Settlement Agreement. However, any Class Member may elect not to receive the monetary relief afforded under this Settlement Agreement. Any monetary relief that is unclaimed or rejected will be reallocated to the participating Class Members pursuant to the distribution formula, if feasible.
6. What if I wish to receive monetary relief?
After final approval of the Settlement Agreement, each Class Member wishing to receive monetary relief of any kind must first complete the Claim Form and Release. The Claim Form and Release is Exhibit 1 to the Settlement Agreement.
7. What happens when the terms of the Settlement Agreement receive final approval?
Final approval of the terms of the Settlement Agreement shall bind all Class Members, including those not seeking recovery from the Settlement Fund. The Settlement Agreement extinguishes all claims, of all Class Members and the Class Agents, in the past, present, or the future against the Agency pertaining to the selection of applicants for the position of Immigration Judge during 1994 and 1995.
8. Who is responsible for distribution of the monetary relief?
Class Counsel are solely responsible for all aspects of the distribution of the monetary relief, including determining the distribution methodology set forth in Exhibit 7 to the Settlement Agreement and (by and through the appointed Claims Administrator) the determination of relief to be accorded each individual.
9. What information is confidential?
Except as specifically stated otherwise in the Claim Form and Release, all information provided to Class Counsel for administration and distribution of the Settlement Fund shall be treated as confidential. The confidentiality provisions in the Protective Order issued by the EEOC AJ in the administrative case will continue to govern materials used in the mediation, negotiation, and administration of the Settlement Agreement.
10. When does the Settlement Agreement become effective?
The Settlement Agreement is subject to Final Approval by the EEOC Administrative Judge presiding over this matter. The Settlement Agreement becomes effective upon the date that the EEOC AJ issues a decision approving the Settlement and all appeals have been finally determined or the time for filing appeals has expired. Once effective, the terms of the Settlement Agreement are binding on all Class Members, even those who do not seek recovery from the Settlement Fund.
11. Will I be notified when the Settlement Agreement becomes effective?
Yes. Class Counsel will be responsible for notifying Class Members of the EEOC AJ’s Final Approval of the Settlement Agreement and providing Class Members with the Claim Form (Exhibit 1 to the Settlement Agreement) necessary to seek monetary relief from the Settlement Fund. This Claim Form, and the Release therein, must be executed and timely submitted in order for a Class Member to receive monetary relief.
12. What are my choices as a class member?
Seek Monetary Relief or Do Nothing. After final approval of the Settlement Agreement, you may seek monetary relief provided you qualify for allocation under the distribution formula and timely submit the Claim Form and Release. You must submit a signed Claim Form and Release to obtain monetary relief under the Agreement. Despite your eligibility, you may elect to not seek monetary relief.
13. Who is class counsel?
Class Counsel is Kator, Parks, & Weiser, P.L.L.C., 812 San Antonio St., Suite 100, Austin, Texas 78701, Telephone (512) 322-0600, Facsimile (512) 477-2828, Email IJClass@katorparks.com.
14. What should I do if I object to any terms within the Settlement Agreement?
If you object to any terms within the Settlement Agreement because you believe they benefit only the Class Agents or are otherwise not fair, adequate and reasonable to the Class as a whole, you must file a written petition to vacate the Settlement Agreement, postmarked no later than 30 days from the date of this notice of resolution. The petition should be sent to Administrative Judge Richard E. Schneider, Equal Employment Opportunity Commission, Washington Field Office, 1801 L St., N.W., Suite 100, Washington, D.C. 20507-1002.
You must also send a copy of any objection to Class Counsel: David Weiser, Kator, Parks, & Weiser, P.L.L.C., 812 San Antonio St., Suite 100, Austin, Texas 78701; and to Agency Counsel: Bruce I. Waxman, Chief Counsel, Employee/Labor Relations, U.S. Department of Justice, Executive Office for Immigration Review, Office of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041.
If you do not submit your objection in a timely manner, you waive your opportunity to present such objection or otherwise appeal. Your objection must show proof that you are a Class Member, state the basis for any objection, and provide documentation to support the objection.
15. Will a fairness hearing take place?
Pursuant to 29 C.F.R. § 1614.204(g)(4), the Administrative Judge will hold a hearing to determine the fairness, adequacy, and/or reasonableness of the Settlement Agreement on November 5, 2004 at the Embassy Suites Hotels, 1900 Diagonal Road, Alexandria, VA, 22314 at 10:00 a.m.
16. What should I do if I want to appeal the determination of Final Approval?
If the EEOC AJ grants final approval to this Settlement Agreement despite objections or a petition to vacate, you will only be permitted to appeal the determination of Final Approval if you filed an objection or a petition to vacate with the EEOC AJ. The EEOC AJ will determine the rights of the Class Members with respect to the matters covered by the Settlement Agreement, and all Class Members are bound by the judgment.
CLASS MEMBERSHIP
1. Do I have to register to be a Class Member?
No. If you meet the class definition, then you need not “opt in” to join the class; in other words, you are “covered” automatically by the definition of the class. (On a related issue, pursuant to EEOC regulations, you cannot “opt out” of the class.) However, in order to seek part of the class relief, you will eventually need to submit a timely, fully-executed claim form and release after approval of the settlement agreement by the EEOC. Class members should not submit a claim form and release at this time. Only after final approval of the settlement by the EEOC AJ will potential class members be notified and provided a claim form and release to be completed and submitted with a specific deadline.
2. Do you know how many Class Members there are?
We do not know how many individuals meet the class definition. Based on information that we received during the litigation of this matter, we estimate that there are between 150 to 550 persons who meet the class definition.
3. Am I a Class Member if I submitted my Immigration Judge application after the posting period?
Any application for an Immigration Judge position submitted on or after October 31, 1995 is not to be considered by the claims administrator. Thus, if your first application for an Immigration Judge position was filed on or after October 31, 1995, you will not be considered a Class Member.
4. If I received a settlement notice package from the DOJ, can I assume that I am on one of the DOJ lists?
The mailing list used by DOJ was not reviewed by class counsel, and it is not known by class counsel exactly how the DOJ mailing lists were developed. Therefore, to determine whether your name is included on one of the DOJ lists, you should submit a Request for Additional Information form.
DISTRIBUTION FORMULA IN GENERAL
5. Why is there a complex distribution formula instead of a simple flat-amount award per Class Member?
In order to distribute the settlement funds in a fashion that is most fair and reasonable to the class as a whole, we developed a distribution formula that seeks to provide compensation to those class members who were most likely to have been harmed by the non-selection decisions, also taking into account the legal analysis applicable to relief issues at the EEOC. Imposition of a “flat amount” award would diminish these important factors, and, in our opinion, would not be fair and reasonable to the class as a whole.
6. Why do Class Members who were later selected as Immigration Judges receive additional compensatory damages points?
Class members who were later selected as Immigration Judges are, in general, among those individuals most likely to have been impacted by the discriminatory non-selection in 1994-95, as alleged in this case. In other words, since these persons were selected for IJ positions after the period of alleged discrimination (1994-95), one might argue that these are the applicants who would have been selected in 1994-95 if discrimination had not existed. The formula for allocating compensatory damages takes this factor into account.
7. Why separate later-selected Immigration Judges who were hired before and after December 31, 1996?
Under the class definition, any white male hired as an IJ in 1995 would not be a class member and would not be entitled to recovery under the class settlement. However, any white male who applied in 1994-95 and was hired as an IJ after 1995 may be a class member, and may seek recovery. The evidence indicates that persons hired as IJs in 1996 were “delayed hires” – that is, as a general matter, they were identified by the Agency as selectees in 1995 (or before), but for various reasons did not take office until 1996. Thus, one might argue that white males hired in 1996 are less likely to have been impacted by discriminatory practices in 1994-95. Reduced compensatory damage point totals are therefore allocated for 1996 selectees.
8. Why does the settlement not include any Immigration Judge positions for Class Members?
Among a variety of factors are these: First, despite intense and lengthy mediation sessions, the Agency would not agree to any settlement that included IJ positions for class members. Second, in order to be most fair to the class as a whole, class counsel determined that it would be more reasonable to accept a greater amount of financial relief from the Agency that all class members could share in the near future, rather than continue litigation for many more years in order to seek a relatively small number of positions that would be available to only a few class members. Third, even if further litigation proved to be successful in establishing class-wide discrimination, an argument could be raised to challenge whether any IJ positions should properly be included in the relief awarded.
9. What income must be reported for the Back Pay calculation?
All earned income, including overtime compensation, for each calendar year must be included. The only exception, pursuant to the Back Pay Act, is income earned from a "moonlighting" position that a Class Member would have maintained had he been selected as an Immigration Judge.
INDIVIDUAL CLASS MEMBER INFORMATION
10. Can I receive a copy of my application for Immigration Judge positions?
If class counsel has a copy of your application, we can provide it to you after you submit a Request for Additional Information form. However, please be aware that class counsel received a very limited number of the Immigration Judge applications from the DOJ. If class counsel does not have a copy of your application, please be aware that the Settlement Agreement in this case allows class members to use information other than the DOJ information to establish facts relevant to the claims process.
11. Can I receive information about my interview for an Immigration Judge position?
Class counsel can provide all information in our possession related to your interview for an IJ position after you submit a Request for Additional Information form. However, please be aware that class counsel received very limited information from the DOJ regarding IJ interviews. If class counsel does not have information about your IJ interview, please be aware that the Settlement Agreement in this case allows class members to use information other than the DOJ information to establish facts relevant to the claims process.
12. What information can I receive about my applications and interviews?
Class counsel can provide all information in our possession related to your application and interview for an IJ position (such as to which locations you applied) after you submit a Request for Additional Information form. However, please be aware that class counsel received very limited information from the DOJ regarding IJ applications and IJ interviews. If class counsel does not have information about your IJ applications and/or IJ interview, please be aware that the Settlement Agreement in this case allows class members to use information other than the DOJ information to establish facts relevant to the claims process.
13. Does this settlement have any bearing on my applications for Immigration Judge positions since 1996?
No, this settlement only deals with IJ applications prior to October 31, 1995.
CLAIM FORM INFORMATION
14. What information can I provide in support of my claim form to show that I did apply and was interviewed for an Immigration Judge position?
Pursuant to the distribution formula adopted as part of this settlement, it will be presumed that you applied for an IJ position in 1994-95 if your name appears on one of the lists produced by DOJ in litigation of this case. On the other hand, if your name does not appear on one of the DOJ lists, it will be presumed that you did not apply for an IJ position in 1994-95. If your name is not included on one of the DOJ lists, you may overcome the presumption that you are not a class member by providing additional documentation. Examples of documentation that may be considered by the Claims Administrator include: copies of application documents, copies of documents related to your application (such as a cover letter or letter of reference submitted on your behalf), correspondence from the DOJ related to your application, or a sworn affidavit from another individual who has personal knowledge regarding your application.
15. Please further define litigation experience, immigration law experience, and judicial experience.
Litigation experience includes legal work on matters being actively litigated before a court or another adjudicatory body. By contrast, legal work such as drafting contracts and wills is not considered litigation experience.
Immigration law experience includes legal work on matters involving immigration law, whether in litigation before an Immigration Court (or other adjudicative forum) or not in litigation.
Judicial experience includes work in a judicial capacity over a contested matter, whether in the context of working as a judge, an administrative judge, a hearing officer, or an arbitrator.
16. Does professional experience cover pre-bar admission experience?
No, the only experience that will be considered by the claims administrator is legal experience after admission to practice before the courts of a state or the District of Columbia. Time spent pre-admission as a law clerk or intern will not be considered under the distribution formula.
17. Does bar admission mean admission to practice law, or membership in the bar association?
“Bar admission” in the context of the distribution formula and the claim form means admission to practice before the courts of a state or the District of Columbia.
18. Does my time working as a judge count as both judicial experience and litigation experience?
No. Time spent on judicial matters will be counted as judicial experience, not as litigation experience.
19. Please clarify what income is to be included for the Back Pay / Front Pay calculation.
When determining a class member’s income for purposes of calculating Back Pay/ Front Pay points, income includes all amounts earned from employment, including all earnings or compensation which is subject to FICA and/or Self-Employment Tax on federal income tax returns, including overtime, with no deduction for taxes or withholdings. The only exception, pursuant to the Back Pay Act, is income earned from a "moonlighting" position that a Class Member would have maintained had he been selected as an Immigration Judge.
20. I earned more money than an Immigration Judge, but I would have taken the job anyway. Why does the Distribution Formula only credit Back Pay / Front Pay points where my earnings were less than that of an Immigration Judge?
Under federal discrimination law and practice, back pay is awarded only for deficiencies in earned income caused by discriminatory non-selection – that is, a claimant’s backpay shall be zero for a time period in which the claimant earned more than he would have if he were actually selected for the position in question. The settlement agreement in this case conforms to this accepted backpay principle in allocating Back Pay/Front Pay points. Of note, even if a class member may be awarded no Back Pay/Front Pay points, that same class member may obtain an award through the compensatory damages portion of the settlement fund.
21. How will the claims administrator determine the earnings of an Immigration Judge for purposes of determining Back Pay / Front Pay?
Consistent with the terms of the Back Pay Act, the claims administrator will determine the annual income of an Immigration Judge based on the earnings of an Immigration Judge who took office on January 1, 1995, including annual salary increases. In order to be most inclusive for purposes of back pay eligibility, the claims administrator will look to the highest “locality pay” category applicable to the Immigration Judge position for each year in question.
22. Are my expenses related to my Immigration Judge applications and interviews reimbursable under the Distribution Formula?
No, expenses related to a class member’s application for an IJ position and/or interviews for such positions are not reimbursable under this settlement.
23. Why include overtime in computing earned income for purposes of the Back Pay / Front Pay points?
Federal precedent generally supports the practice of including overtime in a claimant’s income for purposes of calculating a back pay award. The settlement agreement in this case follows this general practice.
24. Are benefits included in computing Back Pay / Front Pay?
No, benefits are not included in computing back pay and front pay points, either in terms of a class member’s benefits earned or the benefits earned by an Immigration Judge.
25. How is front pay calculated under the distribution formula?
Generally speaking, front pay compensates a claimant for income not obtained in the future because placement in the disputed position is unavailable or inappropriate. Under the distribution formula, front pay amounts are based on a class member’s back pay amounts.
26. Can I be compensated for my time related to this litigation.
No, class members’ time related to litigation of this matter is not compensated under the distribution formula for this settlement. Please note, however, that “contribution points” may be based on a class member’s activities related to litigation of this case (e.g., for having your deposition taken).
27. As a federal employee under the CSRS retirement system, I do not pay Social Security taxes. Can I receive a waiver of the Social Security taxes to be withheld by the claims administrator?
It is not clear at this time whether the claims administrator may avoid withholding of Social Security taxes related to your award. Nevertheless, if withholding is necessary, it appears that you may be able to obtain a subsequent “refund” of the employee-paid Social Security taxes by filing with the IRS. Please note that neither class counsel nor the claims administrator is in a position to provide you with tax advice, and you are advised to contact your own tax specialist with any tax-related questions.
CLASS MEMBER AWARDS
28. What money will the claims administrator withhold from my award?
Pursuant to the distribution formula, the administrator will withhold applicable federal, state, and local income taxes, applicable FICA tax (including the employer’s share), and Social Security tax (including the employer’s share).
29. Will my award include contributions to my retirement plan?
No, the award will not include additional contributions to a class member’s retirement plan.
30. Are my expenses related to the Class Member Information Session reimbursable under the Distribution Formula?
No, class member expenses related to the Class Member Information Session are not reimbursable. Only those class member expenses and financial contributions that were incurred in the litigation phase of this case (i.e., pre-settlement) will be reimbursed (if properly supported in a claim form).
31. When will the funds be distributed?
No funds shall be distributed until any administrative appeals of the EEOC AJ’s Final Approval to the EEOC have been fully and finally resolved or the time for such appeal has passed, and the Agency has affirmed the Settlement Agreement (or the Agency’s opportunity to abrogate the Settlement Agreement has expired) pursuant to part VII of the Settlement Agreement.
32. If I receive an award from the Settlement Fund, what are my tax obligations?
Although the Claims Administrator will withhold monies for payments of FICA, income and employment taxes (if any), each individual receiving an award from the Settlement Fund will be ultimately responsible for satisfying all personal tax obligations.
33. Who should I contact if I have further questions?
Further information about the Settlement Agreement and this Notice is available from Class Counsel Kator, Parks, & Weiser, P.L.L.C., 812 San Antonio St., Suite 100, Austin, Texas 78701, Facsimile (512) 477-2828, Email IJClass@katorparks.com. Neither the Agency nor the EEOC can provide additional details.
34. When the Claims Administrator calculates Back Pay, what comparative salaries will be utilized?
It is anticipated that, in order to be as inclusive as possible, the Claims Administrator will compare Claimants' salaries to the highest possible IJ salaries for the years in question, for an IJ who took office on January 1, 1995. Based on information currently available, the hypothetical IJ would have started at the GS-15, step 10 level with San Francisco locality pay. Based on current information, it is anticipated that the Claims Administrator will use the following annual salaries for the hypothetical IJ are:
1995: $95,516
1996: $98,381
1997: $102,427
1998: $106,143
1999: $120,477
2000: $129,510
2001: $133,700
2002: $138,200
2003: $142,500
Please note that these figures may be altered by the Claims Administrator depending
upon information that may be received.