Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW LAMBERTH, District Judge. I. FINDINGS OF FACT A. Findings As to Fairness and Class Certification 1. This class action lawsuit was brought against the U.S. Department of Treasury’s Bureau of Alcohol, Tobacco, and Firearms (“ATF”), under Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e-16 et seq. Plaintiffs, fifteen (15) current and former African-American GS-1811 series Special Agents, allege class-wide racial discrimination and retaliation by ATF in a variety of personnel practices. Specifically, Plaintiffs allege that ATF discriminated on the basis of race in promotions, discipline, awards, assignments (including undercover assignments), special teams, Schedule A hiring, hostile work environment, terminations, employment performance evaluations, training assignments, and retaliated against them for their equal employment opportunity (“EEO”) activities. Plaintiffs allege both a disparate impact and disparate treatment ease. As relief, Plaintiffs seek widespread injunctive relief, retroactive promotions and tenure, back pay, compensatory damages and attorneys’ fees and costs. 2. This ease was filed in this Court in November of 1990 on behalf of two African-American ATF Special Agents, Larry D. Stewart and Mark Jones. Plaintiffs sought leave to file an Amended Complaint in January 1993, adding thirteen more named Plaintiffs and including additional alleged discriminatory acts and practices. This Court granted Plaintiffs’ Motion to Amend. Extensive discovery was undertaken by the parties, including written discovery and the depositions of all fifteen named Plaintiffs, the then-current Director of ATF and the statistical experts. In July 1994, the Plaintiffs filed their Motion for Class Certification, which was supported by statistical analysis, expert reports and the affidavits of about fifty (50) African-American ATF Special Agents. The Defendants also filed a comprehensive opposition to Class Certification that was supported by expert reports and statistical analysis. 3. In August 1994, the Court referred the case to the District Court’s Alternative Dispute Resolution program (“ADR”). Early in the mediation, ATF decided to hire an outside expert to assist the agency to revise ATF’s Law Enforcement Career Development Plan. Information concerning the hiring of this expert, its impact on ATF’s personnel systems, and the fact of the pendency of the mediation was disseminated by the Director of ATF to all employees throughout the agency by two teletypes. 4. Intensive settlement negotiations, through the mediation process, followed. The mediation included the participation of then-Undersecretary of the Treasury, Ronald Noble, other senior Treasury officials, the Director of ATF, defense counsel, Plaintiffs’ counsel and class representatives. The parties, after numerous face-to-face meetings and teleconferences, substantial drafting, and intense negotiations for over one and one-half years, reached a proposed Settlement Agreement, which was submitted to the Court for preliminary review and approval. 5. By Order filed July 9, 1996, the Court granted preliminary approval of the parties’ Settlement Agreement. Pursuant to that Order, ATF took steps designed to notify all class member and all current ATF Special Agents of the Settlement Agreement, the Court’s Fairness Hearing and the deadline for filing objections. See Def.Resp. at Exhibit 1. 6. The Settlement Agreement resolves all of Plaintiffs’ claims, including attorneys’ fees and costs. The Settlement Agreement provides individual monetary payments, sets forth a procedure for providing individualized non-monetary equitable relief, provides for the development of a new promotion assessment system, and provides for additional equitable relief in the areas of performance appraisals, training, transfers, awards, bonuses, discipline, and assignments to special teams. The essential features of the agreement as summarized by Defendant are as follows: A. A total of $4.7 million -will be awarded to the class as a whole, which may be awardable to each individual as determined according to two formulas. One formula is designed to provide the plaintiffs compensation for, among other things, backpay and front pay. Accordingly, $675,000 of the $4.7 million will be placed by plaintiffs’ counsel into a fund (“The Backpay Fund”) to satisfy those claims. The second formula is designed to take into account, among other things, claims for compensatory damages based upon emotional distress, mental anguish, and pain and suffering. The remaining $4,025 million of the $4.7 million accordingly will be placed by plaintiffs’ counsel into a “Compensatory Damages Fund.” See Settlement Agreement, at 7-9; Appendices B, C, G, H. B. Plaintiffs will receive reimbursement of $1.2 million in documented attorneys’ fees and expenses. In addition, plaintiffs will receive up to a maximum total of $150,000 for reasonable attorneys’ fees plus expenses and costs incurred after Entry of Judgment in the District Court until the expiration of the Settlement Agreement. See Settlement Agreement, at 37-38, Appendix D. C. The Settlement Agreement also provides a mechanism for granting individualized, non-monetary relief to plaintiffs. Any member of the plaintiff class who has a claim not yet resolved or dismissed between December 25,1981 and the Entry of Judgment in the District Court on grounds of discrimination on the basis of race in promotions, discipline, awards, assignments (including undercover assignments), details, terminations, performance evaluations, or training may submit a claim under the procedures set forth in the Settlement Agreement. No monetary relief may be granted under this procedure, which has elaborate safeguards, including the participation of a Recommending Official that is selected by mutual agreement of the parties. The Director of ATF is the final decision-maker on these claims, which are not further reviewable by any court or any other quasi-judicial or administrative body. See Settlement Agreement, at 9-14, Appendix G. D. ATF will retain a qualified individual approved by the plaintiffs (currently, Dr. Irwin Goldstein) to assist the agency in writing a work statement to be used in connection with the procurement of a new promotion assessment system. That system will be developed in accordance with the Uniform Guidelines issued by the U.S. Equal Employment Opportunity Commission, codified at 29 C.F.R. Part 1607, or other professional standards, and any applicable federal laws and regulations and shall, inter alia, minimize adverse impact on African-Americans who are GS-1811 series Special Agents employed by ATF. See Settlement Agreement, at 20-25. The Request For Proposals (“RFP”)/solicitation will be designed to select a contractor to develop a promotion assessment system to replace the existing Career Development Plan for the Office of Criminal Enforcement. The contract would also provide for a job analysis that would not only provide the basis for developing the new promotion assessment center, but it would provide the basis for developing other equitable relief in the areas of performance appraisals, training, transfers, awards and bonuses, and assignment to special teams. See Settlement Agreement, at 20-25, 27-33. E. ATF would convert to career conditional status all Special Agents who, on the Effective Date of this Settlement Agreement, are qualified for such conversion and are still in Schedule A status. See Settlement Agreement, at 18-19. Currently, there are three Special Agents remaining in Schedule A status. F. Plaintiffs’ counsel will be provided with information sufficient to monitor whether ATF is complying with the terms of the Settlement Agreement. To assist the parties in monitoring compliance, ATF will establish and maintain a computerized database containing relevant statistical data. An expert mutually acceptable to the parties will produce a report that analyzes the employment data to determine whether the employment practices or personnel systems at issue have had an adverse impact upon African-American Special Agents in the GS-1811 series during the previous data gathering period as well as cumulatively from the Entry of Judgment in the District Court. See Settlement Agreement, at 14 — 18. Def.Resp. at 3-6. 7. There has been overwhelming class support for the proposed settlement. There are approximately 245 members of the class. Yet, only one class member; Special Agent Davenport, has objected to the Settlement Agreement. Special Agent Davenport seeks to “opt out” of the Settlement Agreement and argues that class certification is inappropriate. The Settlement Agreement, however, states: No class member may opt-out of this Settlement Agreement, but any class members may elect not to accept the relief or any portion of the relief, provided under this Settlement Agreement. So doing, will not, however, revive or preserve any individual rights on the part of that class member. Settlement Agreement, at 6-7. 8. The remaining objections to the Settlement Agreement were filed by non-class members. There are 386 total objections from non-class members. All but 20 of these objections are made through a form (“form objections”) with no material distinction among them. 9. The Court conducted its Fairness Hearing on September 12, 1996. The ATF Hispanic Association (the “Association”) has objected to the Settlement Agreement and appeared, through counsel, at the Fairness Hearing. The Association’s main concern as articulated in oral argument is that the Settlement Agreement does not address alleged discrimination against its members. B. Findings As To Intervention 10. Vincent C. Noble, Leonor Magaletta, Michael S. Russell, Richard Issa, Frank Napoli and James L. Jorgenson, individually, and the National Association of Treasury Agents (“NATA”) (collectively, the “Putative Intervenors”), appeared through counsel at the Court’s Fairness Hearing. The Putative Intervenors moved to intervene in this action on August 28,1996. 11. The Putative Intervenors knew of the existence of this lawsuit for “some time.” Putative Intervenors’ Proposed Complaint ¶ 6. The fact of the filing of Plaintiffs’ Complaint in November 1990 and the details of the Complaint were reported widely in the press. See Exhibit A to Plaintiffs’ Opposition to the Motion to Intervene. 12. Intervenor NATA, from at least 1990 through 1995, regularly published and disseminated throughout its membership a newsletter known as “The Agent. ” The Agent was routinely circulated to ATF Special Agents, including the Putative Intervenors. The fact that this lawsuit has been filed was reported in The Agent, was thereafter periodically updated in following issues of The Agent, and was the subject of editorials and letters from unnamed ATF Special Agents. See Exhibit B to Plaintiffs’ Opposition to the Motion to Intervene. 13. As with the initial Complaint, the fact of the filing of the Amended Complaint was widely reported in the media, and particularly in a front-page article in The Washington Post. See Exhibit C to Plaintiffs’ Opposition to the Motion to Intervene. Copies of the Amended Complaint were circulated extensively throughout ATF. The Putative Intervenors, however, did not seek to intervene in this lawsuit until now, even in the face of the broad relief sought in the Amended Complaint. 14. Following the parties’ extensive discovery and Plaintiffs’ filing of the class certification motion, the issues concerning this lawsuit were again widely publicized in the press. See Exhibit D to Plaintiffs’ Opposition to the Motion to Intervene. Defendant opposed the class certification motion with extensive briefing and expert statistical reports. The Putative Intervenors, however, still did nothing with respect to this lawsuit. 15. Athough, as is the practice in this Court’s ADR Program, the content of the mediation was confidential, the Putative Intervenors were aware of the fact of the mediation and were aware that it was being conducted in confidence. Nevertheless, the Putative Intervenors did not seek to become a party and gain access to the mediation. 16. Early in the mediation, ATF decided to hire a mutually-aeceptable outside expert to assist the Agency to revise ATF’s Law Enforcement Career Development Plan. Information regarding the hiring of this expert, and its impact on the class settlement, was sent, on October 11, 1994, by the Director of ATF over a teletype to the entire agency. The teletype specifically referencing the settlement negotiations in the African American Special Agents’ class action. The teletype advised ATF employees as follows: AS A RESULT OF THE MEDIATION CURRENTLY TAKING PLACE BETWEEN THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS AND THE AFRICAN-AMERICAN SPECIAL AGENTS, ATF HAS AGREED TO RETAIN AN OUTSIDE EXPERT TO ASSIST THE AGENCY IN DESIGNING A NEW CAREER DEVELOPMENT PLAN AND PERFORMANCE APPRAISAL SYSTEM THAT HAS THE LEAST POSSIBLE ADVERSE IMPACT ON ANY GROUP OF EMPLOYEES. Exhibit C to Plaintiffs’ Opposition to the Motion to Intervene. 17. To ensure that all ATF employees received his first teletype, several weeks later the Director of the ATF distributed yet a second copy: THE ATTACHED TELECOMMUNICATIONS MESSAGE (ORIGINALLY TRANSMITTED ON 10/11/94) IS BEING RETRANSMITTED TO ENSURE THAT EVERY EMPLOYEE RECEIVES A COPY OF THIS MESSAGE. Id. 18. During this time, and after the circulation of the teletypes referred to above, The Agent, the newsletter of NATA, published a report concerning the status of the African-American Class Action mediation and stated that it was monitoring the situation “very carefully”: Black Class Action Scores Victory for All? Washington — The Bureau of Alcohol, Tobacco, and Firearms announced this week that pursuant to negotiations with representatives of the agents who filed a Black Class Action complaint, ATF has agreed to hire an outside consultant. This consultant will assist ATF officials in the development of a career plan and performance appraisal system which would have no disparate impact on any group of employees. NATA Notes ... NATA will be monitoring this situation very carefully. While we are extremely wary of plans which propose to ensure “group” rights, it is possible that if properly written and evenly administered, the proposed plans may ensure fairness and equity for ALL ATF agents rather than just a vocal minority. The Agent, December 1994. See Exhibit B to Plaintiffs’ Opposition to Motion to Intervene (emphasis in original). As of late 1994, however, the Putative Intervenors did not move to intervene. 19. In August of 1995, mediation intensified with participation of then-Undersecretary of Treasury Ronald Noble, along with other ATF and Treasury officials. Also in the summer of 1995, news broke of the “good old boys roundup” that had been conducted on an annual basis since approximately 1980. This “roundup” was widely-reported in the press. See Exhibit F to Plaintiffs’ Opposition to the Motion to Intervene. Many of these news articles discussed the pending African-American class action. 20. During this time period, The Agent also discussed the progress of the African-American Class Action and called for members to support litigation on behalf of NATA itself. See Exhibit B to Plaintiffs’ Opposition to the Motion to Intervene. Moreover, in October of 1995, Intervenor Jorgenson wrote a letter to NATA’s members on behalf of Intervenor NATA stating: Within the past few weeks, the National Association of Treasury Agents (NATA) has received numerous inquiries from eoncerned ATF special agents. The focus of these inquiries has been two-fold. First, many agents have heard rumors of an agreement to settle the lawsuit pending between ATF and Afro-American ATF agents. While no official settlement terms have been announced, those contacting NATA have been very upset with what they’ve heard thus far. The second area of inquiry to NATA pertains, once again, to the rumored massive transfers of senior ATF agents. While no official announcements have been made from ATF, it doesn’t take a brain surgeon to realize that, if true, such transfers would impact disparately on white male agents and supervisors over the age of 40. In response to these inquiries, NATA has agreed to serve as an initial administrator for a class action lawsuit for ATF agents concerned about the black agents settlement as well as for ATF agents worried about future transfers. These are two separate actions. They are open ONLY to active duty ATF agents. Enclosed are two flyers. One pertains to the black agents’ settlement while the other concerns that transfer of ATF agents. Please duplicate these flyers as needed and distribute in a variety of ways to active duty ATF agents in your area. If you are aware of ATF agents outside of your area, please ensure that they too, receive a copy. If sufficient response is not received from active duty ATF agents, no future action will be taken. Frankly, we can’t afford it! If there are any questions, call NATA at (202) 828-1960. Your assistance is appreciated. Exhibit C to Plaintiffs’ Opposition to the Motion to Intervene. 21. Despite Intervenor NATA’s solicitations, in 1995, to finance a lawsuit to challenge the perceived settlement, the Putative Intervenors did not file any such lawsuit and did not move to intervene in this lawsuit. 22. The parties continued to mediate and, eventually, exchanged draft settlement agreements. The Settlement Agreement went through over 15 iterations, involving intensive negotiations on a face-to-face basis, sometimes on a daily basis, over a myriad of details. Negotiations on the text of the Settlement Agreement lasted from August 1995 through April 1996. 23. The final proposed Settlement Agreement, reached in April 1996, was reviewed and approved by senior DOJ, ATF, and Department of the Treasury officials. 24. The fifteen named plaintiffs unanimously approved the Settlement Agreement, as well. 25. After all these reviews were completed, the Settlement Agreement was submitted to the Court for preliminary review and approval. On July 9, 1996, the Court preliminarily approved the Settlement Agreement, ordered any objections from any interested party filed by August 28, 1996, and set a Fairness Hearing for September 12, 1996. 26. Shortly thereafter, ATF took steps designed to notify every Special Agent in the Bureau of the terms and conditions of the settlement, and provide a copy of the Settlement Agreement to each ATF Special Agent. See Def s.Resp. at Exhibit 1. 27. On the last day for filing objections to the Settlement Agreement — August 28, 1996 — the Putative Intervenors filed their Motion to Intervene. The Motion, as filed, lacked any pleading as required by Fed. R.Civ.P. 24. The defect was cured on September 6, 1996, six days before the Fairness Hearing when the Putative Intervenors submitted a proposed Complaint in Intervention. On that same day, September 6, Plaintiffs filed their Opposition to the Motion to Intervene, which was joined by Defendant on September 9, 1996. On September 11, 1996, the day before the Fairness Hearing, Putative Intervenors filed a Reply which contained, for the first time, factual assertions in support of intervention. These “factual assertions,” however, were in the form of unsigned Declarations of some of the Putative Intervenors, with conclusory allegations concerning the Putative Intervenors’ interests. The purported declarants did not seek to speak at the Fairness Hearing or submit any testimony, written or otherwise, under oath. II. CONCLUSIONS OF LAW A. Class Certification 1. Standard of Review Under Rule 23 28. Fed.R.Civ.P. 23(e) imposes a duty on the district courts to review and approve all class action settlements. It is well established that in executing this fiduciary obligation to the class, the Court must decide at the conclusion of the Fairness Hearing whether the settlement is fair, reasonable, and adequate. See Luevano v. Campbell, 93 F.R.D. 68, 85 (D.D.C.1981); Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir.1983). The factors a court should consider before approving a settlement agreement include “the fairness of the decree to those affected, the adequacy of the settlement to the class, and the public interest.” Williams, 720 F.2d at 921. 29. There is a strong public policy in favor of the settlement of litigation, and “[djecisions emphasizing the preferred role of settlements under Title VII are legion.” Luevano, 93 F.R.D. at 85 (citing cases). As the Supreme Court has recognized, this policy is particularly important in the resolution of cases brought under Title VII of the Civil Rights Act of 1964 because of the “strong preference” of Congress for “encouraging voluntary settlement of employment discrimination claims.” Carson v. American Brands, 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981). In Alexander v. Cardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147 (1974), the Supreme Court explained that “Congress enacted Title VII ... to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin.... Cooperation and voluntary compliance were selected as the preferred means for achieving this goal.” 415 U.S. at 44, 94 S.Ct. at 1017, (quoted in Carson v. American Brands, Inc., 450 U.S. at 88 n. 14, 101 S.Ct. at 998 n. 14.) 30. Accordingly, “voluntary compromises of Title VII actions enjoy a presumption of validity, and should therefore be approved ‘unless ... [they] contain provisions that are unreasonable, unlawful, or against public policy.’ ” Kirkland v. New York State Dep’t of Correctional Services, 711 F.2d 1117, 1128-29 (2d Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984) (citations omitted). 31. A court should not withhold approval simply because the benefits accrued from a settlement agreement are not what a successful plaintiff might receive in a fully-litigated case. See United States v. Trucking Employers, Inc., 561 F.2d 313, 317 (D.C.Cir.1977). A settlement is a compromise which has been reached after the risks, expense, and delay of further litigation have been assessed. Moore v. City of San Jose, 615 F.2d 1265, 1271 (9th Cir.1980); Luevano, 93 F.R.D. at 86. Class counsel and the class representatives may compromise their demand for relief in order to obtain substantial and assured relief for the class. A court should defer to the judgment of experienced counsel who have competently evaluated the strength of the proof. See Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977); Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975); cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). Moreover, it must be emphasized that although a settlement agreement does not provide complete satisfaction' to all those it affects, this, in and of itself, is not enough to render it “unreasonable”. EEOC v. New York Times, 1995 WL 135577 at *4 (S.D.N.Y.1995). “Unless this were the case, only in the most rare instances would a Title VII case be settled by proposed compromises which in turn would frustrate Congress’s expressed preference for achieving Title VII compliance by voluntary means.” Id. 32. Courts have approved settlements to which a significantly greater percentage of the class objected than is the case here. See, e.g., Reed v. General Motors Corp., 703 F.2d 170, 174 (5th Cir.1983) (forty percent); Cotton v. Hinton, 559 F.2d at 1333 (fifty percent); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799, 803 (3rd Cir.1974) (twenty percent), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Boyd v. Bechtel Corp., 485 F.Supp. 610, 624 (N.D.Cal.1979) (sixteen percent); Grant v. Bethlehem Steel Corp., 823 F.2d 20 (2d Cir.1987) (thirty six percent); see also Van Horn v. Trickey, 840 F.2d 604, 606 (8th Cir.1988) (“a settlement may be approved over a significant percentage of objections from class members” (citation omitted)). Although the Court should not ignore the existence of objections in assessing the fairness, adequacy, and reasonableness of the Settlement Agreement, the existence or absence of objections is not per se controlling. Indeed, it has long been recognized that “ ‘[t]he Court [should not] make the proponents of the agreement justify each term of settlement against a hypothetical or speculative measure of what concessions might have been gained; inherent in compromise is a yielding of absolutes and an abandoning of highest hopes.’ ” EEOC v. New York Times, 1995 WL .135577 at *4 (quoting Milstein v. Werner, 57 F.R.D. 515, 524-25 (S.D.N.Y.1972)). 33. A court reviewing a class settlement should also consider whether the proposed agreement is consistent with the public interest. See United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.1981); Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir.1980). A settlement agreement which seeks to enforce a statute must be consistent with the public objectives sought to be attained by Congress. See Patterson v. Newspaper & Mail Deliverers’ Union, 514 F.2d 767, 771 (2d Cir.1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976). Such voluntary compliance through settlement will frequently contribute to the ultimate achievement of the public objectives. Settlement agreements minimize the delay, expense, psychological bitterness, and adverse publicity which frequently accompanies adjudication of both liability and remedies. See Village of Arlington Heights, 616 F.2d at 1014. Moreover, there is a strong public-interest in settling this dispute so that this important agency is not required to direct resources to litigation as opposed to its law enforcement mission. 2. Class Certification Is Proper Under Rule 23(b)(2) a. Plaintiff's Have Satisfied Rule 23(a) 34. Plaintiffs seek to certify a class under Fed.R.Civ.P. 23(b)(2) of “all African-American individuals who were ATF Special Agents in the GS-1811 Series at any time between December 25,1983 and the Entry of ' Judgment in the District Court.” Settlement Agreement at 3. 35. Rule 23(a) of the Federal Rules of Civil Procedure provides that individuals may bring suit as representative parties on behalf of members of a class if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); see also General Telephone Company v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372-73, 72 L.Ed.2d 740 (1982). The sole objecting class member, Special Agent Davenport, argues that an across-the-board class is not properly certifiable here under Falcon. The Court disagrees. 36. The Court finds that the Plaintiffs have satisfied all of the requirements of Fed. R.Civ.P. 23(a). First, Plaintiffs have satisfied the numerosity requirement of Rule 23(a). The approximately 245 class members are dispersed throughout the United States, making joinder of all of them impracticable. See Exhibit A to Settlement Agreement. 37. Plaintiffs have demonstrated to the satisfaction of the Court that there are questions of law and fact common to the class members. All of the allegations in this case arise from the Defendant’s alleged discriminatory employment policies and practices which allegedly rely upon excessive subjectivity in the employment-related decision-making process. These alleged discriminatory systems apply nationwide to all class members. Because the allegations arise from the same general alleged discriminatory policy, and manifest themselves in ways that have allegedly class-wide, discriminatory effects, the entire class of African-American Special Agents is bound together by a common legal and factual thread. 38. For these reasons as well, the claims of the representatives of the class are typical of the claims of the class as a whole. A plaintiff’s claim is typical “if it arises from the same event or practice or course of conduct that, gives rise to a claim of another class member’s where his or her claims are based on the same legal theory.” EEOC v. Printing Industry, 92 F.R.D. 51, 54 (D.D.C. 1981) (citing 1 Newberg, Class Actions, § 1115f at 191 (1977)). Although this is an across-the-board class (except as to hiring), at least one named plaintiff has a claim relating to each challenged practice for which relief is provided. Accordingly, the concerns of Falcon relating to the propriety of the across-the-board class are not implicated here. Thus, the Court finds that the claims of each class member present similar questions of fact and law arising out of the same alleged discrimination in the agency. 39. In addition, the Court finds that the named Plaintiffs fairly and adequately have protected and will protect the interests of the class. Indeed, only one class member, out of approximately 245, objects to the Settlement Agreement. Nothing in the record indicates that the named Plaintiffs have conflicting interests with those of other class members. See Richardson v. Coopers & Lybrand, 82 F.R.D. 335 (D.D.C.1978). It is also clear from the representations of counsel and the evidence before the Court that the named plaintiffs were involved in the negotiation of the Settlement Agreement and had regular communications with the class since the filing of this litigation. 40. Finally, the Court finds that, based upon the submissions of counsel and the Court’s observation of the conduct of this litigation, class counsel have appropriately represented the interests of the class. Plaintiffs’ counsel are qualified, experienced and able to represent the class, and no one has challenged the adequacy of class counsel. The Court therefore finds that the requirements of Rule 23(a) have been met. b. Rule 23(b)(2) is the Proper Method of Certification In This Case and No Opt-Out Rights Are Necessary 41. Rule 23(b)(2) is appropriate when the party opposing the class allegedly has “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The Advisory Committee Notes to Rule 23 explicitly state that “cases in the civil-rights field” are “illustrative” of the class actions meant to be certified under Rule 23(b)(2). See Advisory Committee Notes to 1966 Amendments to Rule 23(b)(2). 42. Special Agent Davenport, a female African-American Special Agent, objects to the settlement on the grounds that she believes her individual ease is unique and does not fit into the class allegations or the class-wide relief. Moreover, she seeks to “opt-out” of the class, arguing that certification under Rule 23(b)(2) is improper in this ease. 43. Special Agent Davenport has filed an. administrative EEO complaint against ATF, which she has attached to her objection. Special Agent Davenport alleges that ATF has discriminated against her on the basis, of race and sex. She also is a named defendant in an action brought against ATF by Putative Intervenor Special Agent Vincent Noble, although Special Agent Davenport’s Counsel represented that DOJ assumed the defense of that action on her behalf, having concluded that any alleged wrongful acts were in the course and scope of her employment, and represented that the action has recently been dismissed against Special Agent Davenport. 44. Special Agent Davenport first suggests that she is not a part of the class because of the nature of her race claims. She describes her claim as “discrimination ari[sing] from the racist conduct of a coworker and the BATF’s repeated failure to take corrective action.” Davenport Obj., at 3. Davenport, however, is a GS-1811 series Special Agent and is African-American. Moreover, the Settlement Agreement addresses all discrimination in employment claims, including discrimination on the basis of race in promotions, discipline, awards, assignments (including undercover assignments), details, Schedule A hiring, hostile work environment, terminations, performance evaluations, training assignments, and retaliation against them for their equal employment opportunity (EEO) activities. If Davenport’s claim is a hostile work environment claim based upon her race, it certainly is encompassed within this Settlement Agreement, to the extent it has been properly preserved. 45. Davenport also suggests that she is not a part of the class because she has gender claims and perhaps claims under the Freedom of Information Act, 5 U.S.C. § 552. See Davenport Obj., at 3, 11. These potential claims, which are not race claims or retaliation claims based upon race, certainly would not be precluded by the Settlement Agreement. Moreover, Davenport certainly is not precluded from defending her interests in the libel action that has been filed against her by a co-worker, see Davenport Obj., at 3, but which apparently has now been dismissed. Accordingly, none of these arguments provides a valid basis for objecting to the Settlement Agreement. (i) No Opt-Out Is Required to Protect SA Davenport’s Rights 46. There is no absolute right to opt-out of Fed.R.Civ.P. 23(b)(2) class actions. Laskey v. UAW, 638 F.2d 954, 956 (6th Cir. 1981); King v. South Cent. Bell Tel. & Tel., 790 F.2d 524, 580 (6th Cir.1986) (plaintiff “could not opt out because the action did not include that privilege”). In the absence of agreement by the parties, a class member is not allowed to opt out of a class action brought under Rule 28(b)(2). See Luevano v. Campbell, 93 F.R.D. at 85-86. So-called mandatory classes satisfying Rule 23(b)(1) or (2) were designed specifically to avoid the risks of inconsistency, prejudice, or inequity that would result to persons similarly situated in the absence of a unitary adjudication of their common claims. Thus, the protection of the rights of class members in non-opt-out classes is much more interdependent with the resolution of the rights of others similarly situated than is the case for Rule 23(b)(3) class members. See White v. National Football League, 822 F.Supp. 1389 (D.Minn.1993), aff'd on other grounds, 41 F.3d 402 (8th Cir.) cert. den.,—U.S.-, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1994); 1 Herbert Newberg & Alda Conte, Newberg on Class Actions § 1.20, at 1-48 (3d ed.1992); Note, “The Class Action Dilemma: The Certification of Classes Seeking Equitable Relief and Monetary Damages After Ticor Title Insurance Co. v. Brown, ” 63 Fordham L.Rev. 1745, 1770-71 (1995) (“Note, Ticor”). 47. Special Agent Davenport argues that she has a right to ophout of the Settlement Agreement based upon dicta in the Supreme Court’s decision in Ticor Title Insurance Co. v. Broum, 511 U.S. 117, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994). In Ticor, the Court noted in its per curiam decision that there was a “substantial possibility” that actions seeking monetary damages or perhaps primarily monetary damages can only be certified under Rule 23(b)(3), id. at 118-19, 114 S.Ct. at 1360-61, but declined to address the constitutional issue, with three members dissenting. 48. Nothing in Ticor precludes final approval of the Settlement Agreement. First, the referenced language in Ticor is dicta and merely raises a question; it does not decide an issue. Second, the Ticor opinion is not a decision on the merits, but a dismissal of a writ as improvidently granted. It is clear that a denial of a writ of certiorari “imports no expression upon the merits of the case, as the bar has been told many times.” United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923). Accord Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-18, 70 S.Ct. 252, 254-55, 94 L.Ed. 562 (1950). The fact that the Supreme Court has decided not to decide whether a class action seeking monetary damages must be certified under Rule -23(b)(3) is of no precedential value. 49. Davenport also relies heavily on the District Court’s decision in Celestine v. Citgo Petroleum Corp., 165 F.R.D. 463 (W.D.La.1995), which held that no class certification was appropriate in Title VII cases because of the new provisions of the Civil Rights Act of 1991, which allowed for trial by jury of individualized monetary awards. For the reasons set forth below, the Court rejects Davenport’s arguments. As an initial matter, the case did not involve the approval of a Settlement Agreement at all. Moreover, the extreme position of the court in Celestine has been rejected by other courts that have considered the same issue because of the need for uniformity and judicial efficiency. See Griffin v. Home Depot, Inc., 168 F.R.D. 187 (BNA) (E.D.La.1996); Butler v. Home Depot, Inc., 1996 WL 421436, 70 F.E.P. Cas. (BNA) 51 (N.D.Cal.1996); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994); see also Note, Ticor, supra (discussing Ticor and arguing that (b)(2) classes continue to be appropriate for certification even if monetary damages are sought). 50. Even if the Court were to follow the approach of Celestine, the facts of this case would lead to a quite different result. In Celestine, plaintiffs sought to certify a class of 1,000 African-American employees and applicants in a variety of facilities in which the opportunities for advancement were determined by the particular circumstances surrounding his or her employment. 165 F.R.D. at 470. The class to be certified included applicants as well as employees at two separate plant facilities, belonging to six different unions, all with different requirements for admission and advancement. Id. at 467. Thus, the Celestine court found that the class action device was not manageable or efficient in handing the over 1,000 individualized jury trials that would be required there. Although this Court does not believe those concerns prevent class certification in employment discrimination cases, the manageability problems referenced by the court in Celestine are not present in the instant case. First, the plaintiffs in the case at hand all work in the same job classification — GS-1811 series Special Agents. They are all subjected to the same promotional system, the same performance evaluation system, the same disciplinary system, as well as the same uniform and centralized hiring and employment procedures. Second, because of the mediated settlement, the posture of this case is much different than that of Celestine or any of the other cases referenced above requiring bifurcation, such as Butler. In ¡all of the referenced cases, the court’s decision was forward-looking — the ultimate outcome of litigation and the procedures that would be necessary to resolve the various individualized claims were yet unknown. In the case at hand, the relief that the class will receive has been negotiated between the parties. The Settlement Agreement creates procedures in which the individualized claims are managed and handled efficiently through claims procedures administered by class counsel. The manageability and efficiency of a class action settlement is quite different than that in a litigated case. 51. The only interest that counsel for Special Agent Davenport articulated at oral argument supporting her right to opt-out was the desire to have this ease litigated in Kentucky as opposed to Washington, D.C. Her right to a change of venue does not rise to the level of a constitutionally protected interest. The prejudice, if any, Special Agent Davenport would suffer by being bound to this settlement is far out-weighed by the substantial benefits to the class as a whole under the Settlement Agreement. Special Agent Davenport did not assert that class counsel had not protected or would not adequately protect her rights with respect to this Settlement Agreement, nor did she assert that there would be any greater relief available to her by litigating this ease in Kentucky as opposed to participating in the class action settlement. To the contrary, Special Agent Davenport will be entitled to seek backpay and up to $300,000 from the Compensatory Damages Fund, as well as utilize the equitable procedures set forth in the Settlement Agreement, with no diminution of her right to pursue her gender and/or FOIA claims, assuming that she has preserved such claims. 52. Special Agent Davenport does not challenge the fairness or adequacy of class counsel in the administration of the agreement. Even if she had, however, the Settlement Agreement provides that all tentative decisions of class counsel on the backpay compensatory damages are appealable to a neutral official chosen by the class. It is unnecessary to decide the constitutional question theoretically posed by Special Agent Davenport because the procedures set forth under the Settlement Agreement give her full relief and due process with respect to her claims of racial discrimination. 53. Indeed, in cases where sufficient alternative procedural safeguards are employed, opt-out rights are not required to satisfy notions of fundamental fairness or due process. See, e.g., Williams v. Burlington, Northern, Inc., 832 F.2d 100, 104 (7th Cir.1987) (even though plaintiff did not have right to opt out, court “provided [plaintiff] with the equivalent due process protection that would be accorded to a Rule (23)(b)(3) class member”), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988); National Football League, 822 F.Supp. at 1411-12. 54. Even though Special Agent Davenport may not opt out, the requirements of due process and fundamental fairness have been satisfied because the objector has been: (1) adequately represented by the named Plaintiffs; (2) adequately represented by capable and experienced class counsel; (3) provided with adequate notice of the proposed settlement; (4) given an opportunity to object to the settlement; and (5) assured that the settlement will not be approved unless the Court, after analyzing the facts and law of the case and considering all objections to the proposed settlement, determines it to be fair, reasonable and adequate. Indeed, Special Agent Davenport does not dispute any of these elements. (ii) Equitable Relief Predominates 55. The Advisory Committee Notes explain that class certification under Rule 23(b)(2), in a ease in which monetary relief is sought, may be impermissible if “the appropriate final relief relates exclusively or predominately to money damages. ” Notes, 39 F.R.D. at 102 (emphasis added). In the present action, the predominately equitable claims of the class members arose from a system of personnel actions that have been uniformly imposed on all class members. 56. Special Agent Davenport argues, however, that this class cannot be certified pursuant to Rule 23(b)(2) because she claims monetary damages are the predominate type of relief. Her argument is belied by the Settlement Agreement itself. Although the compensatory damage award is substantial, $4,025,000, it constitutes an average of less than $16,500 for each member of the class, and no class member is guaranteed any award from the Backpay or Compensatory Damage Funds unless he or she provides evidence of discrimination and resulting damage. Weighed against the possible receipt of $16,500 is each class member’s right to participate in the individualized equitable relief procedure, receive promotions, reinstatement, new or adjusted performance evaluations, adjusted personnel records, including awards, lateral changes of assignments, correction or removal of disciplinary action, and a host of other equitable measures. Any one of these equitable remedies could be worth more than $16,500 to a Special Agent for the life of his or her career. Cumulatively, they can make or break a Special Agent’s career. 57. The class members’ claims in this case also are interrelated because they were subject to the same processes for such things as competitive promotions. Accordingly, there is a significant identity of interest between class members for purposes of analyzing their economic injuries. Cf. National Football League, 822 F.Supp. at 1411. To provide a meaningful class remedy, any injuries must be redressed primarily through broad injunctive relief. In the absence of such relief, any award of monetary damages would merely be a stopgap measure, insufficient to prevent the reoccurrence of such injuries while likely generating an unending procession of lawsuits. 58. Pursuant to the Settlement Agreement, the class as a whole will receive substantial class-wide equitable relief. ATF is required to retain contractors to prepare job analyses, and redesign its entire promotion assessment system. It will also revise its procedures for performance appraisals, training procedures, discipline procedures, awards, bonus and assignments to special teams. It will make changes in the use of Schedule A in hiring and undertake more centralized approval of new agent hiring. ATF is also required to collect data for three (3) years after the implementation of the new promotion assessment system and that data will be used to determine whether the employment practices or personnel systems have an adverse impact. These far-reaching equitable measures — which have substantial value to the class as a whole and to the class members individually — far outweigh the $16,-500 average compensatory damage award. Thus, the Settlement Agreement as a whole is predominantly equitable in nature. 59. In sum, this Settlement Agreement is properly a (b)(2) settlement both by agreement of the parties and by law. The policy in favor of not allowing class members to opt out of Rule 23(b)(2) class actions stems from the concern that “defendants would not be inclined to settle where the result would likely be a settlement applicable only to class members with questionable claims, with those having stronger claims opting out to pursue their individual claims separately.” Kincade v. General Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir.1981). Thus, “lawsuits alleging class-wide discrimination are particularly well suited for Rule 23(b)(2) treatment since the common claim is susceptible to a single proof and subject to a single injunctive remedy.” Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). “In the interests of judicial economy and efficiency,” i.e., to avoid needless duplicative suits, courts should generally certify classes pursuant to Rule 23(b)(2) when the class members are seeking injunctive relief and, correspondingly, not allow class members to opt out. Laskey, 638 F.2d at 956. B. The Settlement Is Fair Under Section 108 of the Civil Rights Act 1. Standard of Review 60. The parties also seek to have this Court approve the Settlement Agreement pursuant to Section 108 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(n). If so approved, the Court’s order in this case would bar future challenges to the procedures and practices set forth in the Settlement Agreement. Section 108 requires that, in order to invoke this procedure, the Court must find that the Defendant has given: (I) Actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely effect the interest and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (II) A reasonable opportunity to present objections to such judgment or order. Id. 61. As set forth in Exhibit 1 to Defendant’s Response, Defendant undertook steps to provide actual notice of the Fairness Hearing and Settlement Agreement to all Special Agents of ATF (class members and non-class members), and to ensure that all current Special Agents signed a receipt for a full copy of the Settlement. Agreement, a summary of its provisions, as well as communications from the Director of ATF explaining the need to enter into the settlement. 62. This notice, under all of the circumstances, was sufficient to apprise interested parties of the proposed settlement and afford them an opportunity to comment on the terms of the Settlement Agreement at the Fairness Hearing. See, e.g., Weinberger v. Kendrick, 698 F.2d 61, 70-71 (2d Cir.1982) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); see also Granin v. International House of Pancakes, 513 F.2d 114, 121-22 (8th Cir.1975), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1983). The Settlement Agreement and Fairness Hearing Notice delivered to class members and non-class members reasonably conveyed the information that was required to be communicated and afforded a reasonable time for those interested to comment on the proposed settlement. Thus, proper notice was given to the class of the proposed settlement in accordance with Rule 23, section 108, and due process requirements. 63. On September 12, 1996, this Court held a Fairness Hearing at which time any person who filed written objections to the Settlement Agreement was given an opportunity to address their objections. Indeed, a substantial number of non-class members filed written objections to the Settlement Agreement, as discussed and resolved below. Accordingly, the Court finds that the Defendant has complied with the procedures of Section 108 of the Civil Rights Act of 1991. 2. Standard of Reviewing the Objections to the Settlement Agreement 64. Title VII of the Civil Rights Act of 1964, as amendéd, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2, 2000e-3. The statute “provides the exclusive judicial remedy for claims of discrimination in federal employment,” Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976), and “precludes actions [alleging employment discrimination] against federal officials for alleged constitutional violations as well as actions under other federal legislation.” Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). 65. The standard for determin-, ing whether affirmative relief is justified under Title VII is less stringent than under the Constitution. Under Title VII, a “manifest imbalance” in a “traditionally segregated job category” will justify the adoption of race-conscious relief. Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 630, 107 S.Ct. 1442, 1451, 94 L.Ed.2d 615 (1987); compare City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (requiring affirmative relief to be supported by a “compelling interest” under a strict scrutiny analysis employed for equal protection cases). Nor is a finding or admission of prior discrimination required in a Title VII case. Indeed, to adopt affirmative measures to resolve Title VII employment discrimination claims, the employer need not admit to any prior discrimination, nor point “to evidence of an ‘arguable violation’ on its part.” Johnson, 480 U.S. at 630, 107 S.Ct. at 1451. 66. Under the manifest imbalance standard, an employer is not required to show non-statistieal evidence of past discrimination as it would under the prima facie standard. Johnson, 480 U.S. at 633 n. 11, 107 S.Ct. at 1453 n. 11. There is no doubt that “[w]here gross statistical disparities can be shown, they alone in a proper case may constitute prima facie proof of a pattern or practice of discrimination” under Title VII. City of Richmond v. Croson, 488 U.S. at 501, 109 S.Ct., at 725-26 (quoting Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308, 97 S.Ct. 2736, 2741-2742, 53 L.Ed.2d 768 (1977)). A “gross” statistical disparity is where a disparity of 5% exists (equivalent to a one-in-twenty chance of random occurrence) in a relevant job category. “[A] court will infer from the numbers alone that, more likely than not, the disparity was a product of unlawful discrimination,” absent strong rebuttal evidence. Palmer v. Shultz, 815 F.2d 84, 91 (D.C.Cir.1987); Segar v. Smith, 738 F.2d 1249, 1283 (D.C.Cir.1984), cert. denied sub nom., Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). Under Title VII, as with constitutionally-based challenges, the burden is on the challenger to rebut the presumption that affirmative relief agreed to by the government is justified. Johnson, 480 U.S. at 626, 107 S.Ct. at 1448-49; Janowiak v. South Bend, 836 F.2d 1034, 1036 (7th Cir.1988), cert. denied sub nom., South Bend v. Janowiak, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). 67. A “manifest imbalance” can be shown by statistical evidence alone or through a combination of statistical and anecdotal evidence. Palmer, 815 F.2d at 91. Even when the statistical evidence shows less than 1.96 standard deviations, the Court of Appeals for the District of Columbia has held that a prima facie case of discrimination can be made relying on anecdotal evidence supporting the statistical showing. Palmer, 815 F.2d at 96-97. 68. Under Title VII, affirmative relief may not “unnecessarily trammel” the interests of non-minorities, United Steelworkers of America v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2729-30, 61 L.Ed.2d 480 (1979), but “innocent persons may be called upon to bear some of the burden of [an] affirmative remedy.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280-81, 106 S.Ct. 1842, 1850, 90 L.Ed.2d 260 (1986) (plurality opinion); compare Croson, 488 U.S. at 505, 109 S.Ct. at 727-28 (requiring affirmative relief to be “narrowly tailored” in constitutional cases). Thus, in a Title VII case, affirmative relief need not directly correspond to particular instances of discrimination. Wygant, 476 U.S. at 287, 106 S.Ct. at 1853-54; Local 93 of Firefighters v. City of Cleveland, 478 U.S. 501, 515, 106 S.Ct. 3063, 3071-72, 92 L.Ed.2d 405 (1986) (citing Local 28, Sheet Metal Workers’ Int’l Ass’n v. Equal Employment Opportunity Comm’n, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)). 69. Relevant factors in determining the proper scope of the affirmative relief include whether it is temporary and limited in nature, United States v. Paradise, 480 U.S. 149, 182, 107 S.Ct. 1053, 1072, 94 L.Ed.2d 203 (1987); whether it involves layoffs or less burdensome promotions, Wygant, 476 U.S. at 282-283, 106 S.Ct. at 1851-1852; Howard v. McLucas, 871 F.2d 1000, 1010 (11th Cir.1989), cert. denied sub nom., Poss v. Howard, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989); Howard, 871 F.2d at 1010 (affirmative promotional relief met more strict constitutional requirement that it be narrowly tailored in part because targeted promotions represented only 4.3% of similar promotions made during the same period); and the nature of the employment, see Paradise, 480 U.S. at 167 n. 18, 107 S.Ct. at 1064 n. 18 (noting cases suggesting a greater government interest in eliminating possibly discriminatory employment policies in law enforcement, but not reaching issue); accord Wittmer v. Peters, 87 F.3d 916 (7th Cir.1996) (Posner, J.) (discussing cases recognizing special nature of law enforcement in approving race-conscious remedies). 70. The Supreme Court’s decision in Croson, as well as its subsequent decision in Adarand Constructors, Inc. v. Pena,—U.S.-, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), may establish a stricter standard. There is some uncertainty as to whether the law of this Circuit requires that the Title VII standard of Johnson be applied in a discrimination case against the federal government as opposed to the strict scrutiny analysis required under the U.S. Constitution by Croson and Adarand. The Supreme Court stated in Adarand that, “We hold today that all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny.”—U.S. at-, 115 S.Ct. at 2112. This issue has been considered by another judge in this District in a quite similar action against the Federal Bureau of Investigation: [T]he FBI is a federal agency and, as such, is not subject to the equal protection clause of the Fourteenth Amendment. While the Fifth Amendment has been interpreted as imposing equal protection guarantees similar to those provided by the Fourteenth Amendment, the Court has been unable to find any post-Croson cases in which the Croson standard has been applied to voluntary race-conscious relief granted by a federal agency in the Title VII context. See Johnson et al v. Reno, C.A. No. 93-0206 (October 4, 1993) (Hogan, J.). This Court, however, does not need to decide whether the agreement meets only the requirements of Title VII, because the Court is satisfied that the Settlement Agreement has an adequate factual predicate to justify race-conscious relief under either Title VII or the U.S. Constitution, as set forth below. 3. The Evidence Meets the Strict Scrutiny Required For Approval Under Section 108 71. As an initial matter, the Court notes that the vast majority of the Settlement Agreement is race-neutral, and does not implicate either the Johnson or Croson standards for racial classifications. 72. All of the class-wide remedies for equitable relief are neutral as to race. For example, the career development system and new promotion assessment system is required to minimize adverse impact on any protected group by virtue of the Settlement Agreement’s explicit incorporation of the Uniform Guidelines of Employee Selection Criteria, 29 C.F.R. § 1607. The Agreement carefully notes that the system is supposed to be designed to minimize adverse impact “inter alia ... on African-Americans.” Settlement Agreement at 20. The Settlement Agreement ensures that the new personnel systems will be fair to all groups. Moreover, the Director of ATF has stated his intentions to apply the provisions of the Settlement Agreement to all protected groups to the maximum extent possible. See Exhibit B to Def.Resp. 73. The only provisions of the Settlement Agreement that are even arguably race-conscious are the interim promotion procedures, in which African-American Special Agents who are not selected for promotion will have the decision reviewed by a higher level of authority at ATF, and the disciplinary procedures, which require that the decision to commence the investigation of a named plaintiff or African-American agent who has filed an EEO complaint must be approved by the Assistant Director of Inspections. Otherwise, all of the provisions apply equally to all special agents. Even if any of the provisions of the Agreement are considered to constitute racial classifications, sufficient evidence is in the record, as discussed below, to satisfy the strict scrutiny-standard. 74. Plaintiffs have submitted to the Court sufficient statistical evidence that, if believed by a jury, would support their claims of discrimination. 75. Plaintiffs submitted evidence that the Treasury Enforcement Agents Exam (“TEA”) had a disparate impact. See Plaintiff’s Memorandum of Points and Authorities In Support of Motion for Class Certification, filed July 8, 1994 (“Pltfs.Mem.”) at 42-43. 76. Plaintiffs submitted evidence that African-American Special Agents of ATF are disproportionately hired through Schedule A hiring. Pltfs.Memo. at 46. Declaration of Charles R. Mann at ¶¶ 9-15 (“Mann Decl.”) 77. Plaintiffs submitted evidence that African-American Special Agents of ATF are hired at lower grades a