Full opinion text
MEMORANDUM OPINION SULLIVAN, 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 ten-day 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. I. Background 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 allotted 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. Id. at 714-15. 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 agentsf.]” 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, genei'al 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. Id. at 1288. 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, 97 S.Ct. 1843, 52 L.Ed.2d 396 (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. Ree. 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 nonactionable 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. 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 (“PI. 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. PI. 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. II. Discussion 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). 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 Sheriffs Employees’ Ass’n v. County of Merced, 188 Cal. App.3d 662, 670-74, 233 Cal.Rptr. 519 (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, 87 N.C.App. 570, 361 S.E.2d 902, 905 (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. See PI. 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. Co-op. 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 Steelworkers 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)(eontract 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. D. Findings of Fact 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. 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 Hon- or. 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. 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 not mention any discussion whatsoever of the Administrator being able to promote someone who had not applied, PX 24; DX 14. 7. Shortly after the meeting, Mr. Kraft revised the Procedures to reflect the changes requested by Administrator Constantine, ie., to ensure that GS-14 level Special Agents could apply for promotion, Tr. 11/30/04 at 88:19-89:9 (Kraft); see PX 126; PX 156G, and consistent with Administrator Constantine’s request, these revised December 1997 Procedures permit GS-14s to apply. PX 126 at SES2481. Like the meeting notes, PX 24; DX 14, these revised Stipulated Procedures mention nothing about promoting a person who had not applied, PX 126; Tr. 11/30/04 at 88:19-89:9, 89:18-24 (Kraft), even where they address how to deal with a situation where not enough candidates are qualified, PX 156G at SES2578; Tr. 11/30/04 at 90:16-91:14 (Kraft). Indeed, Mr. Kraft admits that at this point, he had not discussed with anyone at the DEA any alternative means for promoting someone to the SES who had not applied. Tr. 11/30/04 at 92:9-11 (Kraft). 8. On January 15, 1998, Administrator Constantine approved the Procedures, which neither contained the footnote nor any language purporting to authorize the Administrator to promote a Special Agent who had not applied. Id. at 9:6-11; 92:6-8 (Kraft); PX 164 at 173:9-12, 174:2-4 (Kraft Dep.). 9. The Segar Working Group (“Working Group” or “Work Group”) is a Court-created panel of experts tasked with ensuring that the DEA complies with the Court’s remedial orders by overseeing the development and implementation of validated and non-discriminatory employment procedures. Tr. 10/26/04 at 40:2-10 (Gold-stein); Tr. 11/30/04 at 92:21-24 (Kraft); PX 12 at SES4839; PX 13 at SES4831; see 7/31/81 Joint Stipulation Regarding Procedures to be Followed in Implementing the Court’s Order of Feb. 6, 1981; 4/24/81 Defs.’ Status Report to the Court. Before the DEA could implement any of the new non-discriminatory procedures, the Working Group had to approve them. Tr. 11/30/04 at 92:17-20 (Kraft); PX 12 at SES4840; PX 13 at SES4831. 10. In January 1998, the Working Group received the Stipulated Procedures, recently approved by Administrator Constantine, from the DEA. Tr. 11/30/04 at 92:6-16 (Kraft). Dr. Irwin Goldstein, who has been plaintiffs’ representative on the Working Group for about twenty years, Tr. 10/26/04 at 39:17-19 (Goldstein), testified that the Procedures properly listed the Administrator’s options for filling SES positions: “pick anyone from this list for promotion,” “pick an SES person for a lateral transfer into the position,” “pick a GS 15 to fill the position on a temporary basis [developmental assignment],” or leave the position “vacant.” Id. at 43:13, 44:5-45:20 (Goldstein); PX 126 at SES2472; see also PX 156G at SES2578 (listing methods for filling positions when not enough candidates are qualified). Promoting a Special Agent to the SES who had not applied was not an identified option; rather, to be promoted to the SES, the Procedures required Special Agents to apply using the Procedures. PX 126 at SES2453-54, 70-72, 80-81. 11. Dr. Goldstein understood that there was no other means of promoting Special Agents into the SES, Tr. 10/26/04 at 45:17-20 (Goldstein), and no one ever told Dr. Goldstein that once the Procedures were implemented there would be a means for promoting someone who had not applied. Id. at 46:21-25 (Goldstein). Mr. Kraft discussed the Procedures with the Working Group, Tr. 11/30/04 at 93:2-8 (Kraft), and he never told the Working Group that the Administrator could promote someone who had not applied — before (or after) the footnote was added, id. at 93:12-19 (Kraft); PX 164 at 164:4-165:2 (Kraft Dep.). 12. The Working Group approved the Procedures in 1998. Tr. 10/26/04 at 47:3-7,73:21-74:6 (Goldstein); Tr. 11/30/04 at 93:9-11 (Kraft); PX 149. Significantly, the Procedures, as approved by the Working Group, did not contain the footnote or any suggestion that the Administrator could promote someone who had not applied. 13. The EEOMC first received the SES Promotion Procedures to review in July 1999. Tr. 10/26/04 at 81:23-83:18 (Gamble); Tr. 10/27/04 at 124:11-20 (Fenner); PX 27; PX 28 at S 001189. 14. The DEA was the sole author of the Procedures. By the time the DEA first shared the Procedures with plaintiffs, the Procedures had been approved by Administrator Constantine, the Working Group, and the U.S. Attorney’s Office. PX 25 at S 000702; PX 26 at S 003510; Tr. 10/27/04 at 126:12-127:14 (Ms. Fenner discussing PX 25). Although the DEA sought the EEOMC’s concurrence before submitting the Procedures to the Court, plaintiffs had no role in drafting the Procedures. Tr. 10/27/04 at 109:10-13, 218:15-20, 219:21-220:2 (Fenner). 15. The EEOMC discussed the Procedures internally and with Dr. Goldstein. Id. at 125:17-129:16 (Fenner). Mr. Gamble, a member of the EEOMC in 1999, testified that he and the EEOMC understood that the Procedures established a process whereby the Administrator would promote (or not promote) Special Agents to the SES from the pool of Special Agents who applied and were rated and ranked, pursuant to the Procedures, Tr. 10/26/04 at 82:17-83:18, 84:18-85:8 (Gamble); see also PX 27 at S 003055, 57, and that if the Administrator chose not to promote from the pool to fill a particular position, he could fill the position with a lateral transfer of a Special Agent currently in the SES or reopen the application process. Tr. 10/26/04 at 84:23-85:8 (Gamble); see also PX 27 at S 003054, 56. Dr. Goldstein informed the EEOMC that the Working Group had approved the Stipulated Procedures, thereby providing assurance that the Procedures were validated and nondiscriminatory, as required by the 1982 Relief Order. Tr. 10/27/04 at 126:12-15 (Fenner); see Tr. 10/26/04 at 40:2-10 (Dr. Goldstein testifying about the purpose of the Working Group). 16. After reviewing the Procedures and meeting with Dr. Goldstein, the EEOMC sent a list of 23 comments, questions, and suggestions regarding the Procedures to the DEA. PX 31; Tr. 10/27/04 at 127:15-129:19 (Ms. Fenner discussing PX 31); Tr. 10/28/04 at 134:12-20 (Mr. Reed discussing PX 31). All of the EEOMC’s comments address how the process set forth in the Procedures would operate. See PX 31. For example, the EEOMC was concerned about how plaintiff class members would fare in the rating and ranking process, especially given that the DEA often did not place them in career enhancing or “springboard” GS-14 and 15-level positions. Tr. 10/27/04 at 125:24-126:11, 128:5-129:12 (Fenner); PX 31. The EEOMC also asked about the eligibility of GS-14-level Special Agents under the Procedures. PX 31 ¶ 19. None of the EEOMC’s concerns indicate that the EEOMC understood the Procedures as permitting an alternative process whereby the Administrator could promote to the SES a Special Agent who had not applied for promotion pursuant to the Procedures. PX 31; Tr. 10/27/04 at 128:18-129:16 (Fenner). 17. The Court finds that plaintiffs’ testimony regarding their understanding of the Procedures provided to them in 1999 is consistent internally, consistent with the documentary evidence, logical, and credible. Accordingly, the Court finds that the EEOMC believed these Procedures set forth the exclusive process for the promotion of Special Agents to the SES. 18. DEA officials were scheduled to meet with the EEOMC on August 11, 2000, to discuss a number of issues, including the EEOMC’s comments on the Procedures. PX 34 at SES0526. On August 7, in preparation for that meeting, DEA Chief Counsel Ryan and other members of the DEA executive staff briefed Deputy Administrator Julio Mercado on the SES Promotion Procedures. PX 33 (same document as DX 22); Tr. 12/13/04 at 80:22-81:8 (Ryan). 19. Ms. Ryan’s notes from this meeting indicate DEA’s understanding of the Procedures as of August 2000; namely, once implemented, the SES Promotion Procedures would not permit the Administrator to promote a Special Agent to the SES who had not applied. Tr. 12/13/04 at 82:4-83:8, 217:3-10 (Ryan); PX 33; PX 162 at 57:21-24, 58:3-59:25 (Ryan Dep.). Ms. Ryan’s notes state, “Can Administrator] select someone outside of SES pool? Ansfwer]: Once process validated, NO.” PX 33 at SES2162; Tr. 12/13/04 at 84:8-85:10 (Ryan). There is no suggestion in Ms. Ryan’s notes that anyone at this briefing disputed this understanding (which was identical to plaintiffs’ understanding), or suggested that the Procedures should be changed in any way to produce a different answer to this key question. PX 33. In contrast, the notes did reflect a need to “readdress eligibility of a GS-14” in response to the question, “Can Administrator] select a GS-14?” — the issue that former Administrator Constantine raised and the issue raised in the EEOMC’s comments. PX 31 ¶ 19; PX 33 at SES2162. 20. On August 9, 2000, DEA Chief Counsel Ryan sent a memorandum to EEOMC Chairperson Fenner with the DEA’s responses to each of the EEOMC’s 23 questions concerning the operation of the SES Promotion Procedures. Tr. 10/27/04 at 129:17-130:2 (Fenner); PX 34. 21. On August 11, 2000, the EEOMC met with the DEA to discuss the EEOMC’s concerns regarding the Procedures. Tr. 10/27/04 at 130:19-131:3 (Fenner); PX 34 at SES0526. Ms. Fenner’s notes from that meeting demonstrate that the EEOMC and the DEA engaged in a point-by-point discussion of the EEOMC’s April 3, 2000 Memorandum. PX 35 at S 001149-50; Tr. 10/27/04 at 130:22-131:12 (Fenner). At the meeting, someone from the DEA made a “passing comment” to Ms. Fenner “to look for something in the revisions concerning the Administrator’s authority to promote or select for the SES.” Tr. 10/27/04 at 132:8-134:4, 134:24-135:9 (Fenner). The reference to a revision appears in Ms. Fenner’s notes between references to rating and identifying benchmarks and the developmental category. PX 35 at S 001150. Ms. Fenner testified credibly and with certainty that she was not warned of a major change, and was not told what the change would be; she was merely told-without further discussion-that there would be a revision. Tr. 10/27/04 at 133:22-23,134:6-13,134:24-135:20 (Fenner); Tr. 10/28/04 at 45:22-46:9 (Fenner). 2. The Addition Of Footnote One 22. As of August 2000, it appears that both the EEOMC and the DEA understood and intended the Procedieres not to permit the Administrator to select a Special Agent for promotion to the SES who had not applied using the Procedures. However, the Court finds that this understanding and intent changed with the addition of the footnote. 23. On November 2, 2000, the DEA conducted an internal meeting to brief the new Administrator, Mr. Marshall, on the EEOMC’s April 3, 2000 comments regarding the SES Promotion Procedures. Tr. 11/30/04 at 93:20-22, 94:19-23 (Kraft); PX 38; DX 25. The Administrator, Chief Counsel Ryan, Associate Chief Counsel Walden, Mr. Kraft, and other members of the Administrator’s staff attended the meeting. DX 25; Tr. 12/13/04 at 224:13-225:8 (Ryan). No EEOMC members were present. Tr. 12/13/04 at 224:22-225:8 (Ryan). 24. As the DEA’s August 9, 2000 Memorandum, PX 34, forecasted, the eligibility of GS-14s to apply for promotion to the SES was discussed at this meeting. Id. at SES0534; PX 38.¶4; DX 26. This issue had been in play throughout the development of the SES Promotion Procedures, PI. PPFF ¶¶ 13-14, and by November 2000, the Procedures already incorporated Administrator Constantine’s directive that the Procedures allow GS-14s to apply for promotion, PX 27 at S 003055-56, 107. The summaries of the November 2, 2000 meeting reflect Administrator Marshall’s decision to leave the SES Promotion Procedures unchanged on this point, PX 38 ¶ 4; DX 26; see also Tr. 11/30/04 at 95:9-14 (Kraft), despite the EEOMC’s concerns regarding this issue, see PX 31 ¶ 19; PX 46 at S 001843; see also PX 57 at SES1705 (in 2001 the SAC Advisory Committee also opposed making GS-14s eligible for promotion to the SES). 25. Although the DEA concedes that a “person or persons working for or on behalf of the DEA was the original author of the footnote,” PX 167 ¶ 3 (Stipulations), and that “[t]he footnote does not contain any words added or modified by any person ... who either was a member of the plaintiff class or was working for [or] on behalf of the plaintiff class,” PX 120 ¶¶ 11, 12 (Defs.’ Resp. to Pls.’ Req. for Admis.), none of the DEA witnesses involved in the development of the Procedures recalls who wrote the footnote and no one will admit to writing the footnote. 26. Mr. Kraft, the author of the Procedures, first saw the footnote in December 2000, Tr. 11/30/04 at 20:8-10 (Kraft), when someone handed him a piece of paper containing the footnote language and told him to add it as a footnote. Id. at 63:7-64:23 (Kraft). He had not expected to receive it, had not discussed the language in any-meeting, had no knowledge of its origin, and received no explanation of its meaning. Id. at 63:21-65:13 (Kraft). He inserted the footnote without question and, even though he had spent four years drafting the Procedures, he never discussed the footnote with anyone-the EEOMC or the Administrator-before it became part of the March 2002 Order. Id. at 65:23-68:6 (Kraft). 27. Former Chief Counsel Ryan testified that she first saw the footnote when it appeared in the December 13, 2000 draft of the Procedures, and she made no changes to it. Tr. 12/13/04 at 239:11-20, 240:11-14 (Ryan). She does not recall discussing the footnote with anyone at the DEA before March 2002-not even the Administrator who allegedly had requested the footnote, id. at 240:15-241:17 (Ryan)nor is she aware of anyone discussing the footnote with the Administrator. Id. at 241:13-17 (Ryan). 28. In a December 14, 2000 Memorandum from Ms. Fulmore to Chief Counsel Ryan and Assistant Administrator of Human Resources Mathis, Ms. Fulmore forwarded a revised version of the SES Promotion Procedures that, for the first time, included the footnote. PX 39; see also PX 40. Her memorandum calls Ms. Ryan’s attention to “changes ... listed in the attached Summary of the Meeting with the Administrator on November 2, 2000,” PX 39 at SES4233 (referencing the summary at SES4235-36); see also PX 40 at SES0737, which lists nine issues and the Administrator’s resolution of each issue and does not mention the footnote, PX 39 at SES4235-36. Without any elaboration or emphasis, Ms. Fulmore’s memorandum also notes that “[o]ne addition not listed in the attached summary.... [is] the footnote at the beginning of each document.” PX 39 at SES4233; PX 40 at SES0737. 29. In early January, Ms. Fulmore also created a table listing all of the changes to the Procedures; this summary of changes also does not include the footnote or any mention of an exception to the process. PX 45A & B at SES0855; PX 163 at 104:1-105:4, 105:12-17, 107:5-7, 107:22-108:11 (Fulmore Dep.); see PX 43 (request by Mathis for table). Instead, the list of issues closely tracks the Summary of the Meeting with the Administrator on November 2, 2000. Compare PX 45A & B at SES0855, mth PX 39 at SES4235-36. 30. On January 12, 2001, Chief Counsel Ryan sent the SES Promotion Procedures to EEOMC Chairperson Fenner, along with a cover memorandum explaining that Administrator Marshall had been informed of the EEOMC’s concerns with “the proposed examination,” that he had “approved” some changes suggested by the EEOMC, and that the enclosed “copy of the SES Examination ... contains the changes that Mr. Marshall has approved and a summary of the changes.” PX 46 at S 001842. Ms. Ryan draws the EEOMC’s attention to an included “summary of changes,” see PI. PPFF ¶ 43, but the summary of changes does not mention the footnote, nor does the memorandum ever mention the footnote. PX 46 at S 001842-43. 31. Although the DEA was required to obtain the Working Group’s approval of the Procedures as validated and non-discriminatory and in compliance with the 1982 Relief Order, no one from the DEA ever suggested to the Working Group that the Procedures had been changed from the proposal approved by the Working Group in April 1998, see PX 149, to permit the Administrator to promote someone who had not applied. Tr. 10/26/04 at 56:21-57:14 (Goldstein). 32. On January 31, 2001, Ms. Fulmore transmitted a packet of materials, including the December 13, 2000 Procedures, which included the newly added footnote, to the Working Group. PX 47. Like the cover memorandum Ms. Ryan sent to the EEOMC, Ms. Fulmore’s cover letter mentioned the attached summary of changes chart and suggested that all'changes pertained to the EEOMC’s concerns; it did not mention the addition of the footnote. Id. at S 003947. 33. A few days later, on February 6, 2001, Ms. Fulmore sent another letter to the Working Group that also addressed the December 13, 2000 Procedures. This letter, approved by Associate Chief Counsel Walden, repeatedly described the recent changes to the Procedures as “minor.” PX 48 ¶ 3; PX 165 at 99:2-13 (Walden Dep.) (discussing Mr. Walden’s 2/5/01 approval of Dep. Ex. 19/PX 48 at SES1062); Tr. 10/26/04 at 56:1-57:14 (Goldstein). 34. The EEOMC understood the Procedures to set forth a formal, standardized application, rating and ranking, and promotion process, which was designed to be the exclusive means by which Special Agents could be promoted to the SES. See, e.g., Tr. 10/26/04 at 85:5-21 (Gamble); Tr. 10/28/04 at 119:23-121:14 (Reed); Tr. 1/13/05 pt. 2 at 17:21-18:24, 30:16-22 (Walker); PX 46. Mr. Gamble, Ms. Fenner, Mr. Walker and Mr. Reed, who were all members of the EEOMC during the development of the Procedures, all consistently testified that a Special Agent could be promoted to the SES only by negotiating the process outlined in the Procedures. Tr. 1/13/05 pt. 1 at 67:21-24, 70:8-15 (Gamble); Tr. 10/27/04 at 109:23-111:3 (Fenner); Tr. 10/28/04 at 73:17-74:20, 75:8-17, 91:25-92:4 (Walker), 119:23-121:14 (Reed); see also Tr. 10/28/04 at 152:22-153:7 (Reed). As expressed by Ms. Fenner, the EEOMC’s understanding was that “this process will be the only process used to make promotions to the SES.... [T]here would be no other process.” Tr. 10/27/04 at 110:18-111:3 (Fenner). 35. The DEA’s addition of the footnote did not change the EEOMC’s understanding of how the Procedures were to operate. Tr. 10/28/04 at 72:8-14 (Walker), 148:18-22 (Reed); Tr. 1/13/05 pt. 1 at 69:15-70:2 (Gamble); see also Tr. 10/28/04 at 146:1-5 (Reed). As Mr. Walker testified, “the footnote didn’t mean anything.... [I]t didn’t change the spirit, the content, the intent of what we were trying to accomplish here.” Tr. 10/28/04 at 72:25-73:5 (Walker). 36. The EEOMC understood the first sentence of the footnote to reiterate the fact that the Procedures established a systemized process for promoting Special Agents to the SES. See, e.g., Tr. 10/27/04 at 113:6-14 (Fenner); Tr. 10/28/04 at 121:24-122:4,136:10-19 (Reed); Tr. 1/13/05 pt. 1 at 72:1-3 (Gamble); Tr. 1/13/05 pt. 2 at 20:8-21:2 (Walker); see also Tr. 10/27/04 at 21:16-22:7 (O’Flanagan). 37. The EEOMC understood the second sentence, in turn, to reiterate the discretion that the Administrator retained within the process for filling DEA positions. The Administrator had the discretion to fill positions by promoting Special Agents using the Procedures, which granted the Administrator flexibility to promote anyone on the list of best qualified candidates, to widen the pool of candidates by holding another open season and receiving more applications, to allow grades lower than GS-15 to apply for promotion to the SES (thereby allowing a GS-14 to apply), to have a special call-out for “hard to fill” positions and specifically designate the qualifications applicants should have, or to select a Special Agent who had previously applied for, but refused, an SES position. See, e.g., Tr. 10/26/04 at 84:18-85:3, 90:12-91:19, 93:14-18 (Gamble); Tr. 10/27/04 at 21:16-22:7 (O’Flanagan), 111:5-18 (Fenner); Tr. 10/28/04 at 55:18-56:7 (Fenner), 69:13-70:2 (Walker), 151:7-152:5 (Mr. Reed); Tr. 1/13/05 pt. 1 at 70:16-72:16, 81:22-85:2 (Gamble); Tr. 1/13/05 pt. 2 at 20:8-22:20 (Walker); see also Tr. 10/26/04 at 102:7-103:10 (Mr. Gamble discussing PX 84, July 12, 2002 Draft Application Handbook); PX 64, Reviewer Instructions at 1-3 (discussing “agency’s discretion” for “filling]” positions), Applicant Instructions at 1 (same); PX 68 at SES3589. Rather than promoting from the pool of eligible applicants, according to the EEOMC’s understanding, the Administrator also retained the discretion to fill any SES position by laterally transferring (reassigning) a pre-existing SES member. See Tr. 10/26/04 at 84:18-85:3 (Gamble); Tr. 10/27/04 at 111:5-18 (Fenner); Tr. 10/28/04 at 69:13-70:2 (Walker), 151:16-152:5 (Reed); Tr. 1/13/05 pt. 2 at 21:3-22:20, 24:14-25:1 (Walker). Moreover, the Administrator could choose not to fill the position. PX 64, Reviewer Instructions at 3. In all instances, the discretion to fill DEA positions that the EEOMC understood the footnote to preserve was discretion within the process set forth in the Procedures. 38. Contemporaneously with the development of the SES Promotion Procedures, the EEOMC and the DEA were also engaged in discussions regarding the promotion process to the GS-14 and GS-15 levels (“14/15 Promotion Process”), Tr. 10/27/04 at 116:4-117:11 (Fenner); Tr. 10/28/04 at 65:12-66:7 (Walker); PX 25; PX 26, which is a competitive and mandatory promotion process, Tr. 10/26/04 at 70:24-72:3, 72:17-20 (Goldstein); see also PX 61 n. 1, that, like the Stipulated Procedures, resulted from this Court’s Orders, see 1981 Opinion, 508 F.Supp. 690. The EEOMC understood the Procedures to accomplish the same goal as the 14/15 Promotion Process to provide a single standardized, transparent process for promotion. See Tr. 10/28/04 at 65:1-66:11, 70:3-71:1 (Walker); Tr. 1/13/05 pt. 2 at 18:10-19:15 (Walker). 39. The EEOMC’s understanding of the Procedures and the footnote was informed by the DEA’s longstanding insistence, in the context of the 14/15 Promotion Process, that the DEA had the ability to fill GS-14 and GS-15 positions by reassigning laterals rather than through promoting. Tr. 10/26/04 at 54:4-55:3 (Goldstein); Tr. 10/27/04 at 22:18-23:23 (O’Flanagan); Tr. 10/27/04 at 206:19-207:12, 207:22-208:6 (Fenner); Tr. 10/28/04 at 137:23-139:2 (Reed). With respect to the 14/15 Promotion Process, the EEOMC was concerned that plaintiff class members were missing out on key assignments because the DEA would fill such positions with laterals rather than filling them by promotions. Tr. 10/27/04 at 116:4-22, 206:19-207:12 (Fenner). The DEA insisted “that [the EEOMC] had no say-so on how [the DEA] fill[s] positions laterally.” Id. at 116:4-117:5 (Fenner). Similarly, the EEOMC raised this issue of lateral transfers and initial assignments of plaintiff class members numerous times during discussions of the SES Promotion Procedures. See, e.g., Tr. 10/26/04 at 103:15-105:12, 112:24-113:1 (Gamble); Tr. 10/27/04 at 113:20-114:1, 116:4-117:11, 128:20-129:12, 130:22-132:7 (Fenner); PX 31 ¶ 5; PX 54 at S 000710. Given that context, the EEOMC apparently assumed that, just like the 14/15 Promotion Process, see, e.g., Tr. 10/26/04 at 54:4-55:3, 70:14-23 (Goldstein); Tr. 10/27/04 at 22:18-23:23 (O’Flanagan), 116:4-117:5 (Fenner), the SES Promotion Procedures were the exclusive means to promote, but also permitted the Administrator to retain the discretion to laterally reassign Special Agents within the SES ranks to particular SES positions, Tr. 10/27/04 at 208:2-6 (Fenner); Tr. 10/28/04 at 136:12-139:2 (Reed); Tr. 1/13/05 pt. 1 at 69:15-72:12 (Gamble); Tr. 1/13/05 pt. 2 at 18:10-22:20 (Walker). 40.The DEA developed the SES Promotion Procedures to comply with this Court’s Orders requiring the DEA to implement validated, non-discriminatory promotion procedures to remedy prior discrimination and prevent future discrimination. Tr. 10/27/04 at 109:14-22 (Fenner); Tr. 10/28/04 at 64:21-25 (Walker). Consequently, both the EEOMC and the DEA understood that the purpose of the Procedures was to establish a non-discriminatory and validated promotion process for the SES. See Tr. 10/27/04 at 22:9-17, 39:5-22 (O’Flanagan), 109:14-22 (Fenner); Tr. 11/30/04 at 77:8-11, 101:16-19 (Kraft); PX 165 at 19:7-20:1 (Walden Dep.); PX 166 at 40:12-17 (Weinstein Dep.). 41. For precisely this reason, the new Procedures were designed to “eliminate the mystery” of the prior discriminatory practices and provide a “systematic transparent open process to get promoted to the SES level.” Tr. 10/28/04 at 64:21-65:8 (Walker). As Ms. O’Flanagan, plaintiffs’ former counsel, testified, it would be contrary to the very purpose of the Procedures to permit the DEA to promote outside of the formalized process they set forth: I think that the nondiscriminatory promotion process has been an incredibly long process. And that the systems have been-or from an EEOMC’s perspective, they’ve been fighting this battle for their entire careers here. And they wanted to get an SES process ... to be a nondiscriminatory process. And it was extremely important to them to get that. To have ... access through an objective system, a nondiscriminatory system, to get to the upper echelon of the DEA.... And to think that we would agree to a process which is-I don’t want to, you know, use the word “optional”, but that the administrator could choose to follow or not follow is completely-it’s ludicrous. Tr. 10/27/04 at 55:11-25 (O’Flanagan); see also id. at 31:4-11 (O’Flanagan); Tr. 1/13/05 pt. 2 at 18:10-19:15, 44:2-13 (Walker). 42. Moreover, because the EEOMC knew that the comprehensive Procedures were being developed pursuant to a judicial directive, the addition of the footnote did not change its understanding of the Procedures as establishing an exclusive and validated promotion process: [O]ne of the reasons [the footnote] wouldn’t have concerned me is because the process-the Court had said back in 1981 that DEA was to put in place a validated employment system. And what I thought was being put in place was a validated employment system dealing with employment practices, within the DEA. Tr. 10/27/04 at 90:1-21 (Gamble). 43.Consistent with the Court’s Orders, the Procedures developed by the DEA outlined a detailed process designed to minimize disparate impact and to maintain a representative SES workforce. Tr. 11/30/04 at 71:14-16, 72:3-12, 74:10-76:21 (Kraft). The Procedures require those seeking promotion to the SES to submit an application in which they describe their qualifications in four areas-leading programs; leading people; leading and building law enforc