# Appendix — Thomas v. Powell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2219%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 534 U.S. 951 ## Text i tesa 2 « 2001 Cin 6) AOPACE OF THE CLenk Supreme Court of the (CInited States WALTER J. THOMAS, et al., Petitioners, COLIN L. POWELL, Secretary of the Department of State, et al., Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Appendix to Petition for Writ of Certiorari G Arthur Robbins Counsel of Record ATTORNEY AT LAW 116 Cathedral Street Suite E Annapolis, Maryland 21401 (410) 295-7100 Counsel for Petitioners THE LEX GROUP ¢ 1108 East Main Street # Suite 1400 @ Richmond, VA 23219 \\ (804) 644-4419 @ (800) 856-4419 Fax: (804) 644-3660 ¢ www.thelexgroup.com Nu TABLE OF CONTENTS Appendix to Petition Page Opinion United States Court of Appeals for the District of Columbia Circuit Record No. 00-5022 ONIONS FOUN 27 BOON sc hcnsisnainvisscnsiiosnectoninninnnninsnsiiians App. 1 Opinion United States District Court for the District of Columbia Circuit Case No. 86-2850 (SS) entered December 6, 1999 .........:::cssssesrcsrccsssrsensenes App. 19 Order United States District Court for the District of Columbia Circuit Case No. 86-2850 (SS) Opinion United States Court of Appeals for the District of Columbia Circuit Record Nos. 97-5004(L), 97-5018 EE NE Fs BE aii sascascthccaccecneninamimensneaaxen App. 44 Opinion United States District Court for the District of Columbia Circuit Case No. 86-2850 (SS) entered November 7, 1996 .............cscccsscsssssssssanecsees App. 65 App. i Order United States District Court for the District of Columbia Circuit Case No. 86-2850 (SS) entered November 7, 1996.00... .ccccccccccccsoceceseseses.. App. 109 Complaint Superior Court of the District of Columbia Civil Division Case No. 99cal898 eked Dilemcts 10, SOU ca App. 111 Retainer Agreement by and between Washington Lawyers’ Committee for Civil Rights and Akin, Gump, Strauss, Hauer & Feld and Walter J. Thomas dated December 1988 ............cceccescsscsscssoscoscosees.-.. App. 133 Transcript of Hearing Proceedings before The Honorable Stanley Sporkin On Maren 20, FIRB cc cisescsrcknatakde ew App. 136 Excerpts of Transcript of Hearing Proceedings before The Honorable Stanley Sporkin on July 15, 1996........ Wil lcsisahnepheicinimuslabadbaabentibsadiasaie App. 179 Testimony of Alan Latimer: Direct Examine... ccsaccsssssocimrceaisarensac ccc. App. 225 Cross ExaniiR ssccvcccenuleistieens, ol App. 241 Testimony of Bruce Thomas: Direct EG ci cucisccucniin gale App. 243 Transcript of Hearing Proceedings before The Honorable Stanley Sporkin on July 15, 1996, continued: Testimony of Odie Fields: Direct Examimation. .............:cccccceeeeseeseneeeeseereneeeenens App. 255 Testimony of Ray Robinson: Direct Examination. ...........cccccseceeeeesereeeeeeeeeneenees App. 261 Testimony of Mary Smoot: Direct Examination. ............cccccccceceeeeseeeeeneeeeeennentees App. 268 Cross Examimation.............:ccccceetecceeeseeeeeeeeeeeeeeneeees App. 273 Testimony of Dorothy Watson: Direct Examination. .:..........:cccccccceeeeseeeeseeeseeeneeneens App. 274 Testimony of Alfred Neal, Jr.: Direct Examimation.............cccsceceeesseeeeeeeeeeeseeneeetenes App. 280 Cross Examimation.............ccccssseseeeeeeseseeeeeseneeneeeenes App. 284 Testimony of Bisa Williams-Manigault: Direct Examination. ............ccccccceseseseeensereeeeeeeeenenees App. 285 Testimony of Odie Fields, recalled: Direct Examination. ..........cccccssseseeeeeseereseeenensenenenes App. 289 Testimony of Charlotte Williams: Direct Examination. ............cccsececeeeseereeeeeneeeeseenenees App. 296 Transcript of Hearing Proceedings before The Honorable Stanley Sporkin on July 15, 1996, continued: Testimony of Bernard Johns: RIE III i soscincchieighicce ah ene cr App. 299 Testimony of Lisa Ruth Layne: RSE EIS NOE eae App. 302 Testimony of Edith Spruill: | ATA TL App. 305 Testimony of Robert Watkins. Jr.: I I a App. 309 Testimony of Earle Scarlett: PP NN App. 311 Testimony of Walter Thomas: Ne RIO iiiiritiinsinctnnccdisaececicickn App. 326 Transcript of Hearing Proceedings before The Honorable Stanley Sporkin OR Te a lei App. 353 RG Ricca App. 367 App. iv I of 6 DOCUMENTS WALTER J. THOMAS, ET AL., APPELLANTS v. COLIN L. POWELL, SECRETARY OF THE DEPARTMENT OF STATE, ET. AL., APPELLEES No. 00-5022 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 247 F.3d 260, 2001 U.S. App. LEXIS 7687 January 18,2001, Argued April 27, 2001, Decided April 27, 2001, Filed PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Columbia. (86cvO2850). : DISPOSITION: | Affirmed. CASE SUMMARY PROCEDURAL POSTURE: Plaintiffs took part in a federal class action, which settled. Afterward, plaintiffs sued defendant class counsel in state court for professional negligence. On defendant's motion, the United States District Court for the District of Columbia enjoined plaintiffs from pursuing their state court suit. Plaintiffs appealed. App. | OVERVIEW: Plaintiffs cited the Anti-Injunction Act as the reason why the district court erred in issuing an injunction barring them from prosecuting their state court lawsuit. In that lawsuit, plaintiffs claimed that defendant breached duties owed to them with respect to the class settlement. Plaintiffs also claimed their retainer agreement imposed additional duties on defendant. The Anti-Injunction Aces relitigation exception clearly applied to the settlement-related claims since the district court, in approving the settlement, found it was fair, adequate, and reasonable, and was not the product of collusion between the parties. Further, the district court found that defendant fairly and adequately protected the interests of the class. The remaining retainer-related claim also entailed relitigating an issue already decided in the federal courts. Accordingly, plaintiffs were barred from pursuing their state court complaint. OUTCOME: The judgment was affirmed. CORE CONCEPTS Civil Procedure: State & Federal Interrelationships Anti- Injunction Act The Anti-Injunction Act forbids federal courts from granting injunctions to stay proceedings in a state court, with three exceptions. 28 US.C.S. § 2283. Civil Procedure: State & Federal Interrelationships Anti- Injunction Act One of the exceptions to the Anti-Injunction Act permits a federal court to enjoin state proceedings when necessary to protect or effectuate its judgments. 28 US.CS. $ 2283. App. 2 Civil Procedure: Preclusion & Effect of Judgments Collateral Estoppel The doctrine of collateral estoppel, or as it is now commonly called "issue preclusion," provides that once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. : Civil Procedure: State & Federal Interrelationships Anti- Injunction Act The relitigation exception to the Anti-Injunction Act permits federal courts to enjoin state court adjudication of claims or issues that actually have been decided by the federal court. Civil Procedure: Settlements: Settlement Agreements Before approving a class action settlement, the district court must determine whether the settlement is fair, adequate, and reasonable and is not the product of collusion between the parties. Torts: Malpractice Liability: Attorneys In the District of Columbia, a legal malpractice plaintiff is required to demonstrate duty, breach, causation, and harm. As with any tort action, legal malpractice liability is predicated on a finding that the injury was proximately caused by the breach of duty. Civil Procedure: Class Actions: Prerequisites If an opt out right cannot be justified, there is no reason to certify a class action under Fed. R. Civ. P. 23(b)(3) rather than Fed. R. Civ. P. 23(b)(1) or (2). App. 3 COUNSEL: G. Arthur Robbins argued the cause for appellants. On the briefs was David G. Whitworth, Jr. Henry F. Schuelke, III argued the cause for appellees. With him on the brief were. S. Robert Sutton, Henry Morris, Jr., and Marc L. Fleischaker. JUDGES: Before: EDWARDS, Chief Judge, SENTELLE and RANDOLPH, Circuit Judges. Opinion for the Court filed by Circuit Judge RANDOLPH. Dissenting opinion filed by Circuit Judge SENTELLE. OPINION BY: RANDOLPH OPINION; [*261] RANDOLPH, Circuit Judge: The Anti-Injunction Act forbids federal courts from granting injunctions "to stay proceedings in a State court,” with three exceptions. 28 US.C § 2283. One of the exceptions permits a federal court to enjoin state proceedings when "necessary ... to protect or effectuate its judgments." 28 US.C. § 2283. The scope of this "relitigation exception" is the central issue in this case. Walter J. Thomas cites the Anti-Injunction Act as the reason why the district court erred in issuing an injunction barring him and his co-plaintiffs from prosecuting a lawsuit in the Superior [**2] Court for the District of Columbia. We shall assume, without deciding, that the District of Columbia is a "State" within § 2283's meaning. A lawsuit Thomas and others brought in the Superior Court complains about the performance of their attorneys in a class action filed in the United States District Court for the District of Columbia in 1986. Much of the history is recounted in Thomas v. Albright, 139 F. 3d 22 7 (D. C. Cir. 1998). The federal App. 4 action began when Thomas and another plaintiff filed a complaint in district court seeking certification as a class action and alleging that the Department of State discriminated against black Foreign Service Officers. See id. at 229. After six years of discovery, an amended complaint allowing 30 additional individuals to intervene, the addition of still more class representatives and lengthy settlement negotiations, attorneys (*262] for parties signed a consent decree resolving the case and agreeing that the district court should certify the class and approve the settlement pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. See Thomas, 139 F.3d at 229. By this point, however, the relationship [**3] between class counsel and Thomas and several other class representatives had frayed. At a hearing on January 31, 1996, Thomas complained at length that several of the named class action plaintiffs had neither been informed of, nor agreed with the impending settlement. One month earlier, in December 1995, Thomas had retained another attorney-Barbara B. Hutchinson--to represent his interests. On March 20, 1990 me district cowl held a preliminary fairness hearing. The new attorney representing Thomas and Allen Latimer (a co-plaintiff in the Superior Court action) argued that because her clients disagreed with parts of the proposed settlement, the court could and should modify it. An attorney representing Odie Fields, Mary Cynthia Smoot, and Alfred Neal (the remaining coplaintiffs in the Superior Court action) argued against the consent decree and urged the district court to reject it. Thomas personally asked the court not to give preliminary approval ‘to the proposed settlement. Despite Thomas’s plea, me court tentatively approved the settlement and ordered notice to be given to the 359 putative class members, of which 34 wrote to me cowl supporting the settlement, while 55 wrote [**4] in opposition to it. See Thomas, 139 F.3d at 230. On July 15 and 23, 1996, the court held an additional fairness hearing. Attorneys for Thomas and other class members again urged the court to modify or to reject the settlement. App. 5 ee se Ey I gd ES BASE age Oe ERE —————————— In its final judgment, the district court concluded that the settlement was fair and reasonable, but the court added a provision permitting nine class members to opt out of the settlement. See id. On appeal, we held that the district court had abused in discretion in allowed these class members to opt out. We also concluded that the overall class settlement was fair. See id. at 233. Five of the class members then sued the class counsel for professional negligence in the Superior Court of the District of Columbia. On a motion by the class counsel defendants, the district court enjoined these class members from pursuing their suit. See Thomas v. Albright, 77F Supp. 2d 114,124 (D.D.C. 1999). Thomas and his co-plaintiffs think the Anti Injunction Act barred the injunction and that the relitigation exception does not apply. The exception rests on the idea that federal courts should not be forced to rely ["5] on sot court application of resjudicata or estoppel principles to protect federal court judgments and decrees. See Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147, 100 L. Ed. 2d 127, 108 S. Ct. 1684 (1988); Toucey v. New York Life Ins. Co., 314 US. 1180 1-46, 86 L. Ed. 100, 62 S. Ct. 139 (1941) (Reed, J., dissenting). Although the attorney-defendants in the Superior Court action case were not parties to the concluded federal action, traditional preclusion principles may nonetheless bar Thomas and his coplaintiffs from prosecuting that action against them. See Parklane Hosiery Co. v. Shore, 439 US. 322, 326 n.5, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979); Ethnic Employees of the Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1409 (D.C. Cir. 1985); RESTATEMENT (SECOND) OF JUDGMENTS § 29 (1980). The doctrine of collateral estoppel, or as it is now commonly called "issue preclusion," see RESTATEMENT, supra, at |, provides that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a [**6] (*263] different cause of App. 6 action involving a party to the prior litigation." Montana v. United States, 440 US. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979); see McLaughlin v. Bradlee, 256 US. App. D.C. 119. 803 F2d 1197, 1201-02 & n. I (D.C. Cir. 1986); Otherson v. Department of Justice, 228 US. App. D.C. 481, 711 F.2d 267, 273 (D.C. Cir. 1983). The relitigation exception to the AntiInjunction Act therefore permits federal courts to enjoin state court adjudication of those "claims or issues ... [that] ... actually have been decided by the federal court." Chick Kam Choo v. Exxon Corp., 486 US. at 148. Even if a federal court had not decided all the issues raised in the state court action, the relitigation exception could still apply. Assume, for instance, that issues not decided in the federal action would be resolved in plaintiffs favor in the state court. If the plaintiff still could not prevail because an essential element of his state cause of action had already been determined against him in the federal suit, the relitigation exception would permit an injunction against the state proceedings. See, eg [**7] , Next Level Communications v. DSC Communications Corp., 179 F3d 244, 256-57 (Sth Cir. 199%) (enjoining entire state court action where state court would be required to decide issues already litigated in federal court), see also United States v. District of Columbia, 210 US. App. D. C. 87, 654 F.2d 802, 809-10 (D.C. Cir. 1981) (finding that relitigation exception permits federal courts to enjoin state proceedings that raise a different cause of action, but still threaten judgment in federal proceeding). In this case, we must therefore compare the complaint in the Superior Court to the record in the class action in order to determine whether, in order for the plaintiff to succeed in Superior Court, that court will have to rule upon an issue or claim already decided by the federal district court or the court of appeals. See Chick Kam Choo, 486 US.. at 148. App. 7 In their Superior Court complaint, Thomas and his coplaintiffs alleged the following: L U2 The class action attorneys breached a duty of undivided loyalty to Thomas by " 'selling out’ and betraying [the Plaintiffs] ... when they- entered into (a) secret agreement” to settle the case [**8] without seeking Thomas's approval first. See Complaint for Professional Negligence P 28, Thomas v. Akin, Gump, Strauss, Hauer & Feld, L.L.C., No. 99cal898 (D.C. Super. Ct. filed Mar. 19, 1999); see also id. P P 37, 46, 55, 64 (making same allegations for Thomas's coplaintiffs). The class action attorneys failed to disclose the alleged conflict of interest created by acting as class counsel and failed to inform Thomas of the negotiating position they would take with the State Department. See id. P 29; see also id. P P 38, 47, 56, 65 (making same allegations for Thomas's co- plaintiffs). The class action attorneys failed to follow Thomas's "express instructions regarding the certification of the class action as a Rule 23(b)(3), which would have provided for him to ‘opt-out’ of the class in order to receive his full measure of damages...... Jd. P 26; see also id. P P 35, 44, 53, 62 (making same allegation for Thomas's co-plaintiffs). Thomas and his co-plaintiffs claimed that because of these alleged breaches of duty, they lost their federal cause of action and the potential damages they might have derived from it. See id P 31; see also id. [**9] P P 40, 49, 58, 66 (making same allegations for Thomas's coplaintiffs). They also alleged that they suffered damages by having to retain separate counsel and spend additional time and money dealing with the [*264] federal lawsuit. See id. P P 30,39, 482 57, 65. App. 8 As to the first two of these claims there can be no doubt that the district court's injunction falls within the exception to the Anti-Injunction Act. Before approving the class action settlement, the district court performed its duty of determining whether the "settlement is fair, adequate, and reasonable and is not the product of collusion between the parties." Pigford v. Glickman, 340 US. App. D.C. 420, 206 F3d 1212, 1215 (D.C Cir 2000) (internal quotations omitted). The court found that the "settlement was clearly negotiated at arras length and presents no danger of collusion" between the parties. See Thomas v. Christopher, 169 F.R.D. 224, 239 (D.D.C. 1996). The court further found that class counsel “fairly and adequately protected the interests of the class." Jd. While the Superior Court complaint alleges that the class action attorneys "sold out" their clients, that they engaged [**10] in collusive secret — negotiations to the detriment of their clients, the district court squarely decided otherwise. The Superior Court plaintiffs may not relitigate these matters and an injunction preventing them from doing so in the Superior Court was in order. The third claim set forth above rests partly on the retainer agreement between Thomas and the class action attorneys, an agreement Thomas says imposed additional duties on the class action attorneys. nl Thomas's complaint pointed to this language in the agreement: In the event there is any offer of settlement that would compromise and resolve all the plaintiffs’ claims in Walter J Thomas v. Shultz, C.A. No. 86-2850, the Client hereby agrees to abide by the wishes of the majority of the plaintiffs with respect to the acceptance or rejection of Be settlement offer. Compl. P 9. App. 9 nl Though the Superior Court complaint does not make this distinction, the retainer agreement is between the class action attorneys and Thomas alone. His claim[**I1] regarding their retainer agreement is part of a larger argument about whether the class action attorneys committed professional negligence. In the District of Columbia, a legal malpractice plaintiff is required to demonstrate duty, breach, causation, and harm. "As with any tort action, legal malpractice liability is predicated on a finding that the injury was proximately caused by the breach of duty." Dalo v. Kivitz, 596 A.2d 35. 41 (D.C. 1991). For the sake of argument we shall assume that Thomas (and his co-plaintiffs) would be able to make his case in the Superior Court that the class action attorneys had a duty and breached it. Thomas would still have to prove that he suffered a harm as a result. According to the complaint, his harm or injury consisted in his loss of the ability to pursue a potentially lucrative individual claim for damages. See Compl. P 3 1. In explaining his theory of damages to us he adds that had "Conflicted Counsel timely informed the Named Class Representatives of the conflict, or withdrawn pursuant to the retainer agreements, the Named Class Representatives would have earlier engaged independent counsel to protect their personal interests. (** 12] Brief of Appellants at 17. This separate counsel would have protected Thomas's personal interests, he thinks, by having the class action certified with opt-out provisions allowing for individual suits. In other words, if the class action had been certified under Federal Rule of Civil Procedure 23(b)(3), rather than Rule 23(b)(2), Thomas and his coplaintiffs would have been able to opt-out and pursue individual actions (in which they suppose they would have done better). [*265] See Compl. P P 13-14. To prove this case in the Superior Court, the plaintiffs would have to establish that they were damaged App. 10 because the class should have been certified under Rule 23(b)(3). See Macktal v. Garde, IMI F. Supp. 2d 18, 21 (D. D.C. 2000) (to prove malpractice, must establish that plaintiff had a valid claim); Mosi v. Aiello, 69 A.2d 57, 60 (D.C 1949) (same). But that necessarily would entail relitigating an issue already decided in the federal courts. In Thomas vy. Albright, 139 F.3d at 235, we rejected the district court's decision to create a hybrid class certified under Rule 23(b)(2) with an opt-out clause. See Thomas, 139 F.3d at 230. [**13] n2 The district court had made no Endings that the class was appropriately certified under Rule 23(b)(3); but the court had "made all the factual findings- necessary to show that a hybrid class was not appropriate." Thomas, 139 F.3d at 235. We found it unnecessary to remand the case to the district court because "the dissidents do not allege any alternative basis that, if proved, would enable the district court upon remand to permit them to opt out." /d. at 237. In our view the claims of the dissident plaintiffs-Thomas and the others--were not "different in kind from those of other class members." /d. at 236. We thus held that the class was properly certified under Rule 23(b)(2) with no opt-outs. Thomas's malpractice action could survive only if that holding were relitigated and found to be incorrect. n2 Our conclusion in Thomas that there was no basis for certifying a hybrid class necessarily meant that there was no basis for certifying a class under Rule 23(b)(3). Though the case considered the propriety of a hybrid class action--which is different from a pure (b)(3) class action-we explicitly concluded that no plaintiffs claim was sufficiently atypical to justify permitting class members to opt out, which is the key characteristic of both hybrid and (b)(3) class actions. See Thomas, 139 F.3d at 236. If an App. |1 opt out right could not be justified, there would be no reason to certify the class action under 23(b)(3) rather than 23(b)(1) or (2). See I HERBERT NEWBERG & ALBA CONTE. NEWBERG ON CLASS ACTIONS § 4.20 . (3d ed. 1992) (arguing that Rule 23 requires a court to certify a class action as a (b)(3) class action only if it cannot be certified under (b)(1) or (2)). Moreover, a hybrid class action is certified under both (b)(2) and (b)(3). See Thomas, 139 F.3d at 234; Eubanks vy. Billington, 324 US. App. D.C. 41, 110 F 3d 87, 96 (D.C. Cir. 1997). By finding that a hybrid class action was unjustified, we necessarily found that the claims did not meet (b)(3)'s criteria for an opt out class action. See Thomas, 139 F 3d at 235 (noting that the district court did not make findings necessary for a (b)(3) class action and then noting that "to the contrary, the court made all the factual findings to show that a hybrid class was not appropriate"). We therefore disagree with the dissent that the federal proceedings left open the question whether the class could be certified under Rule 23(b)(3). [**14] The only other claim Thomas might have is that the alleged defects in representation damaged him to the extent that he had to hire outside counsel to represent him in the fairness disputes. See Compl. P P 30, 39, 48, 57, 64. Under District of Columbia law, one can sue to recover the cost of retaining additional counsel in response to a lawyer's malpractice. See Knight v. Furlow, 553 A. 2d 1232, 1235 (D.C. 1989). But that narrow claim is undercut by Thomas's App. 12 own litigation posture here, which is that he wanted the opportunity to bring in individual counsel earlier in the process. It is senseless to suppose that damages resulted from failing to bring in individual counsel to advance the losing claim that the class should be certified either as a hybrid class or a Rule 23(b)(3) class. As we have held, that claim could prevail if and only if Thomas were permitted to relitigate the issues already decided in the class action. We therefore conclude that if the Anti-Injunction Act applies to the District of [*266] Columbia, the relitigation exception to the Act permitted the district court to enjoin Thomas and his co-plaintiffs from pursuing their complaint in the Superior [**15] Court. Since Thomas has not argued that the court abused its discretion in issuing the injunction, we have no reason to question the court's judgment that the balance of interests, both public and private, weighed in favor of issuing the injunction. See Thomas, 77 F. Stipp. 2d at 123-24. Affirmed. DISSENTBY: SENTELLE DISSENT: SENTELLE, Circuit Judge, dissenting: The decision reached by the majority in this case depends upon the proposition that all issues that could be raised in the malpractice action brought by Walter J. Thomas and his co- plaintiffs were precluded by the disposition of the class action. While this is almost true, I do not think it is entirely SO. In their complaint before the District of Columbia Superior Court, the plaintiffs allege that their counsel entered into a consent decree certifying the class pursuant to Rule 23(b)(2), "contrary to the express instructions and wishes of the Plaintiffs." The plaintiffs further allege that their attorneys breached a fiduciary duty because the plaintiffs "had rejected any compromise or settlement which would result in a certification of the class pursuant to Rule 23(b)(2), rather than 23(b)(3), which would [**16] allow the individual Plaintiffs to 'opt out' of the class in order to maintain their individual causes of action." It would appear that Thomas and his co-plaintiffs are stating, or attempting to state, a cause of action depending upon the propositions that class counsel had an individual duty to the plaintiffs and that the plaintiffs had instructed counsel not to agree to the (b)(2) certification. These propositions raise factual issues that should be resolved by the D.C. Superior Court. When the district court approved the settlement in the underlying action and certified the class under Rule 23(b)(2), it noted that "Plaintiffs moved for certification under Rule 23(b)(2)." Thomas v. Christopher, 169 F.R.D. 224, 239 (D.D. C. 1996). Similarly, on appeal, this Court stated that "class counsel repeatedly requested certification App. 14 pursuant to (b)(2), [and] the consent decree stated that the parties agreed to certification pursuant to (b)(2)." Thomas v. Albright, 139 F.3d 227, 235 (D.C. Cir. 1998). Indeed, the consent decree barred the district court from "modifying the terms of the agreement." /d. at 233. Although the plaintiffs argued [**17] for the right to opt out of the settlement during the fairness hearings and again on appeal, they did so within the confines of Rule 23(b)(2). Their arguments would have been unnecessary if their counsel had negotiated for a Rule 23(b)(3) certification. The majority mistakenly asserts that in order to prevail in their Superior Court case, "the plaintiffs would have to establish that they were damaged because the class should have been certified under Rule 23(b)0)." Slip Op. a 7. Rather to prevail, the plaintiffs simply would have to establish that the class could have been certified under Rule 23(b)(3). nl That question has never been litigated. n 1 I disagree with the majority's analysis of the rules governing class actions. The majority states that "no plaintiffs claim was sufficiently atypical to justify permitting class members to opt out, which is the key characteristic of ... (b)(3) class actions." Slip Op. at 8 n.2. Rule 23(a) unequivocally states that one prerequisite to any class action is that the representative parties’ claims are "typical of the claims ... of the class." FED. R. CIV. P. 23(a). Specifically, a 23(b)(3) class action is justified whenever "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." FED. R. App. 15 CIV. P. 23(b)(3). The district court undoubtedly could have certified the Thomas class under 23(b)(3), even though--and, perhaps, because--the plaintiffs' claims were "no different in kind from those of other class members." /39 F.3d at 236 Nevertheless, because the consent decree compelled the district court to certify the class under 23(b)(2), it had no reason to confront this question. Cf Eubanks v. Billington, 324 U.S. App. D.C. 41, 110 F.3d 87, 96 (DC Cir. 1997) (refusing to address whether "full (b)(3) protections" should be afforded to the plaintiffs because "the plaintiffs did not seek certification as ... a (b)(3) ... class"). [**18] (*267] Although the plaintiffs were represented separately during the fairness hearings, they contend that they essentially were not represented at the table when counsel negotiated with the State Department. If they had been adequately represented, then their views on opting out surely would have been expressed in the precertification negotiations. If the plaintiffs had instructed counsel not to agree to a 23(b)(2) certification and if counsel had an individual duty to the plaintiffs (two very big "ifs"), then, as the plaintiffs allege, counsel may have violated its fiduciary duty by (1) not telling them about the conflict between the interests of the plaintiffs and the class as a whole and (2) not advocating the plaintiffs’ position in the negotiations. These issues were not addressed by the district court in its initial decision or by this Court on appeal. In fact, these issues could not have been litigated because the consent decree negotiated by counsel locked the district court in to certifying the class pursuant to Rule 23(b)(2). See Thomas, 139 F. 3d at 233. App. 16 The majority assumes, without deciding, that the District of Columbia is a "State” within the meaning [**19] of the Anti-Injunction Act, 28 U.S.C. § 2283, suggesting that the scope of the Act's relitigation exception "is the central issue in this case,” Slip Op. at 2. In this case, the Court need not assume, much less decide, that the Act applies to D.C. n2 The scope of the relitigation exception is not the central issue in this case. With or without the Anti-Injunction Act, the United States District Court cannot enjoin the ongoing litigation in the Superior Court without some legal basis for doing so. Here, as I understand the appellees’ complaint, the basis is that the issues involved in the Superior Court case have been heretofore litigated in the federal litigation. It may be that the appellees should ultimately prevail, but in my view it should be achieved after the litigation of what appear to me to be open issues in the Superior Court. n2 As I have noted before, some sections of the Court Reform Act, Pub. L. No. 91-358, 84 Stat. 473 (1970), require D.C. courts "to be treated as state courts, others do not." United States v. Mills, 296 US. App. D.C. 65, 964 F.2d 1186, 1198 (D.C. Cir. 1992) (en banc) (Sentelle, J., dissenting). "Congress has not, for example, plainly extended the prohibition upon the issuance of federal injunctions staying state court proceedings, see 28 US.C § 2283, to District proceedings.” Id. Indeed, whether D.C. courts are protected by § 2283 is a valid question that has not been resolved. There is no reason to suggest that the Anti-Injunction Act plays any role in the outcome of this case. [**20] A court cannot issue a permanent injunction without first finding that the applicant has demonstrated actual success on the merits. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 94 L. Ed. 2d 542, 107 S. Ct. 1396 (1987). Here, to establish success on the merits. counsel must show that Thomas and his co-plaintiffs are collaterally estopped from asserting the issues raised in their malpractice claims. The plaintiffs have not actually litigated the issues I discuss above, nor has any court decided those [*268] issues. Whether we apply the Anti-Injunction Act or the general law governing issue preclusion, our analysis is the same, and the district court plainly erred when it enjoined the D.C. Superior Court. Compare Chick Kam Choo v. Euon Corp., 486 U.S. 140, 149, 100 L. Ed. 2d 127. 108 S. Ct. 1684 (1988) (holding that for the Act! s relitigation exception to apply the party moving for an injunction must show that.the issue "was itself actually litigated and decided by the District Court"), with Davis v. Davis, 663 A.2d 499, 50] (D.C. 1995) (explaining that issue preclusion applies when "the issue is actually litigated [**21] and ... determined by a valid, final judgment on me merits’). The majority may be correct that Thomas and his coplaintiffs suffered no harm, but that seems to me a merits question and not a preclusion one. That is, if the injunction is lifted, it may well be that the Superior Court can rule that there is no harm, and therefore no cause of action, but I believe that is for the Superior Court to determine and not for us. Like my colleagues, I agree that Thomas and his coplaintiffs' malpractice claim is very shaky. Unlike my colleagues, however, I believe that ruling is not for this Court to make. For these reasons, I respectfully dissent. App. 18 LEXSEE 77 F. Supp. 2d 114,AT 124 WALTER THOMAS, et al., Plaintiffs, v. MADELINE K. ALBRIGHT, Defendant Civil Action No. 86-2850 (SS) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 77 F. Supp. 2d 114; 1999 U.S. Dist. Lexis 19006 December 7, 1999, Decided December 8, 1999, Filed DISPOSITION: [**1] Class counsel's application for permanent injunctive relief GRANTED, and Walter J. Thomas, Alan B.C. Latimer, Mary Cynthia Smoot, Odie Fields, and Alfred Neal, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them, acting individually or as representatives of a class, enjoined from prosecuting the lawsuit styled Thomas, et al. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., et al., C.A. No. 1898-99 in the Superior Court for the District of Columbia. CASE SUMMARY PROCEDURAL POSTURE: Class counsel filed an application for preliminary and pen-nanent injunctive relief. Class counsel sought to enjoin a lawsuit styled as a malpractice action brought in a state court by a group of five former class action plaintiffs. App. 19 OVERVIEW: Class counsel filed an application for preliminary and permanent injunctive relief Class counsel sought to enjoin a lawsuit styled as a malpractice action brought in a state court by a group of five former class action plaintiffs. The former class action plaintiffs were a part of a group of African- American foreign service officers who sued their employer for racial discrimination. While that class action suit had settled, the five plaintiffs were dissident concerning its settlement, contending that their individual rights had been disserved by the class settlement. They had sought to opt out. After a fairness hearing, they were not permitted to opt out. The court granted class counsel's application to enjoin the malpractice suit against them. Class counsel's competence had been ruled on in the class action, barring collateral attack. Class counsel's responsibility was to the class as a whole, not to individual class members. OUTCOME: Class counsel's application to enjoin a malpractice suit brought by dissident class members was granted because counsel's competence had been established in the class action. Collateral estoppel barred relitigation of that issue. CORE CONCEPTS Civil Procedure: State & Federal Interrelationships: Anti-Injunction Act See 28 US. CS, § 2283. Civil Procedure: State & Federal Interrelationships: Anti-Injunction Act Civil Procedure: Preclusion & Effect of Judgments: Res Judicata App. 20 Civil Procedure: Preclusion & Effect of Judgments: Collateral Estoppel The exception provided in 28 US.C.S. § 2283 that allows an injunction in aid of the court's jurisdiction, or to protect or effectuate its judgments is commonly referred to as the "relitigation exception." The relitigation. exception allows a federal court to enjoin a state court action where, in effect, the state court is asked to relitigate matters already determined by a federal court, This is to preserve the full fruits and advantages of a federal Court's judgment. Under such circumstances, a federal court may issue an injunction to protect the finality of its judgment. Thus, a federal court may enjoin an action in a state court when issue preclusion (collateral estoppel) or claim preclusion (res judicata) is the source of the movant's application for relief. Civil Procedure: Preclusion & Effect of Judgments Collateral Estoppel Issue preclusion prevents a party in the same or subsequent action from gaining a redetermination of an issue of fact or law when (1) the issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum. Civil Procedure: Class Actions Class counsel is required to act in the best interests of the class considered as a unit. rear Civil Procedure: Class Actions Class counsel is responsible for protecting the interests of the class, even in circumstances where the class representatives -- their direct clients -- take a position that counsel considers contrary to those interests. App. 21 Civil Procedure : Injunctions To succeed, movants must demonstrate a likelihood of success on the merits, that irreparable injury will result without injunctive relief, that no other parties will be harmed by a grant of such relief, and that the public interest is served by the issuance of the injunction. COUNSEL: For WALTER J. THOMAS, BERNARD JOHNS, plaintiffs: Charles Lindsay Warren, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, DC. For WALTER J. THOMAS, BERNARD JOHNS, ARNOLD NC ISSACS, plaintiffs: Warren Eugene Connelly, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L-P., Washington, DC. For WALTER J. THOMAS, plaintiff. Barbara Bethune Hutchinson, New Carrollton, MD. For WALTER J. THOMAS, BERNARD JOHNS, plaintiffs: Carl E. Anderson, WALTER & HAVERFIELD, Cleveland, OH. For WALTER J. THOMAS, BERNARD JOHNS, ARNOLD M. ISAACS, plaintiffs: David Gregg Whitworth, Jr.,. WHITWORTH & SMITH, P.A., Crofton, MD. For SUSAN E. ALEXANDER, ISAIAH M. ALDRIDGE, LAWRENCE [**2] ATCHERSON, HERMAN 0. BAILEY, JOHNEY BROOKS, TUSHINDE COOPER, E. LLOYD DAVIS, ODIE FIELDS, CASTE GHEE, CONSTANCE E. HUGGINS, ERIC JAMES, ALAN B.C. LATIMER, LISA LAYNE, MAURICE MCLEGGAN, ALPHONSO G. MARQUIS WARD D. MORROW, ALFRED NEAL, RAYMOND G. ROBINSON, MARY CYNTHIA SMOOT, MELVIN T. SPENCE, LAURANCE STANLEY, VANDOSTER TABB, JUDITH OD. TONOHOU, AUBREY VERDUN, ROBERT WATKINS, DOROTHY WATSON, CHARLOTTE WILLIAMS, JOSZET H. ZIEGLER, JOHNITY MARY MILLER, App. 22 ANITA BANKS, intervenors-plaintiffs: Charles Lindsay Warren, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, DC. For SUSAN E. ALEXANDER, ISAIAH M. ALDRIDGE, LAWRENCE ATCHERSON, HERMAN 0. BAILEY, JOHNEY BROOKS, TUSHINDE COOPER, E. LLOYD DAVIS, ODIE FIELDS, CASTE GHEE, CONSTANCE E. HUGGINS, ERIC JAMES, ALAN B.C. LATIMER, LISA LAYNE, MAURICE MCLEGGAN, ALPHONSO G. MARQUIS, WARD D. MORROW, ALFRED NEAL, RAYMOND G. ROBINSON, MARY CYNTHIA SMOOT, MELVIN T. SPENCE, LAURANCE STANLEY, VANDOSTER TABB, JUDITH OD. TONOHOU, AUBREY VERDUN, ROBERT WATKINS, DOROTHY WATSON, CHARLOTTE WILLIAMS, JOSZET H. ZIEGLER, intervenors-plaintiffs: Warren Eugene Connelly, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, DC. For SUSAN E. ALEXANDER, [**3] ISAIAH M. ALDRIDGE. LAWRENCE ATCHERSON, HERMAN 0. BAILEY. JOHNEY BROOKS, E. LLOYD DAVIS, ODIE FIELDS. CASTE GHEE, CONSTANCE E. HUGGINS, ERIC JAMES, ALAN B.C. LATIMER, LISA LAYNE, MAURICE MCLEGGAN, ALPHONSO G. MARQUIS2 MARY MILLER, WARD D. MORROW, ALFRED NEAL, DIANNA RITTER, RAYMOND G. ROBINSON, MARY CYNTHIA SMOOT, MELVIN T. SPENCE, LAURANCE STANLEY, VANDOSTER — TABB, JUDITH D. TONOHOU, AUBREY VERDUN, ROBERT WATKINS, DOROTHY WATSON, CHARLOTTE WILLIAMS, HUGH WILLIAMS, JOSZET H. ZIEGLER, intervenors-plaintiffs: Joseph Marc Sellers, COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C., Washington, DC. For SUSAN E. ALEXANDER, ISAIAH M. ALDRIDGE, LAWRENCE ATCHERSON, HERMAN 0. BAILEY. JOHNEY BROOKS, TUSHINDE COOPER, E. App. 23 LLOYD DAVIS, ODIE FIELDS, CASTE GHEE, CONSTANCE E. HUGGINS, ERIC JAMES, ALAN B.C. LATIMER, LISA LAYNE, MAURICE MCLEGGAN, ALPHONSO G. MARQUIS; MARY MILLER, WARD D. MORROW, ALFRED NEAL, DIANNA RITTER, RAYMOND G. ROBINSON, MARY CYNTHIA SMOOT, MELVIN T. SPENCE, LAURANCE STANLEY, VANDOSTER TABB, JUDITH D. TONOHOU, AUBREY VERDUN, ROBERT WATKINS, DOROTHY WATSON. CHARLOTTE WILLIAMS, HUGH WILLIAMS, JOSZET H. ZIEGLER, intervenors-plaintiff's: Carl E. Anderson, WALTER & HAVERFIELD, Cleveland, (**4] OH. For ALAN B.C. LATIMER, intervenor-plaintiff. Barbara Bethune Hutchinson, New Carroliton, MD. For ALPHONSO G. MARQUIS, WARD D. MORROW, ALFRED NEAL, RAYMOND G. ROBINSON, MARY CYNTHIA SMOOT, MELVIN T. SPENCE, ROBERTS WATKINS, DOROTHY WATSON, intervenors- plaintiffs: Theresa Grace Lawhorn Watson, Washington, DC. For JAMES A. BAKER, III, defendant: Richard Neal Reback, U.S. DEPARTMENT OF INTERIOR, Washington, D.C. For WARREN CHRISTOPHER, defendant: John Oliver Birch, Cynthia Ann Schnedar, U.S. ATTORNEY’S OFFICE, Washington , D.C. For MADELEINE K. ALBRIGHT, _ federal defendant: Meredith Manning, U.S. ATTORNEY'S OFFICE, Washington, D.C. For AKIN, GUMP, STRAUSS, HAUER & FELD, WARREN E. CONNELY, CHARLES L. WARREN, MICHAEL J. MADIGAN, JOSEPH M. SELLERS, AVIS E. BUCHANAN, Non Parties: S Robert Sutton, JANIS, SHUELKE & WECHSLER, Washington, D.C. App. 24 JUDGES: Judge Stanley Sporkin, United States District Court. OPINION BY: Stanley Sporkin OPINION: [*166] MEMORANDUM OPINION This matter is before the Court on Class counsel’s application for preliminary and permanent injunctive relief. Class Counsel seeks to enjoin a lawsuit [**5] styled as a malpractice action brought in the Superior Court for the District of Columbia by a group of five former class action plaintiffs. n1 nl Thomas, et al. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., et al. C.A. No. 1898- 99, Superior Court for the District of Columbia. The five plaintiffs in that case are Walter J. Thomas, Alan B.C. Latimer, Mary Cynthia Smoot, Odie Fields, and Alfred Neal; each either named plaintiffs or plaintiff- intervenors in the class action (sometimes referred to herein as the “dissident plaintiffs”). Judge Diaz of the Superior Court has stayed that matter pending the outcome of class counsel’s application for injunctive relief here. The Underlying Class Action The substantive claims in this case have long since been resolved. In 1986, a group of African-American Foreign Service Officer (“FSOs”) sued their employer, the United States Department of State. Plaintiffs alleged discrimination by the State Department in the assignment, promotion, tenuring, performance evaluation, [**6] and termination of African American FSOs. The lawsuit sought monetary damages and appropriate injunctive relief. Following nearly ten years of extensive discovery and negotiations, a proposed settlement was reached by class counsel and the State Department in 1996. The parties agreed that the class should be certified for settlement under Rule 23(b)(2). The State Department agreed to a draft consent decree that required substantial changes in the Department’s employment practices, and enjoined the agency from discriminating on the basis of race against African-American FSOs. Additionally, the Department agreed to pay $3.8 million in monetary damages, reinstate four terminated class members, and retroactively promote seventeen class members. The law firm of Akin, Gump, Strauss, Hauer & Feld, L.L.P., through Warren E. Connelly, Charles L. Warren, and Michael J. Madigan, and others, served as counsel for the putative plaintiff class, and for the class as certified. Joseph M. Sellers and Avis E. Buchanan, of the Washington Lawyers’ Committee for Civil Rights & Urban Affairs, also represented the class. This group of attorneys prosecuted the case and engaged the State Department in the [**7] settlement negotiations. N2 To help effectuate the settlement, class counsel and lawyers for the State Department agreed that the issue of whether any plaintiff could opt-out of the settlement would be a decision left solely for the Court to determine with class counsel taking no position on this issue. Class counsel communicated to the plaintiffs that the consent App. 26 ————— decree would be silent on the opt-out issue, and that plaintiffs unhappy with the settlement could argue for the right to opt-out of the settlement before the consent decree was entered, at the fairness hearing to be conducted by the Court. n3 n2 These attorneys are the named defendants in the Superior Court action. n3 Settlement of a class action lawsuit under Rule 23(e) requires court approval of the settlement and notice to the class members of the proposed settlement. Fairness hearings are con0ducted to solicit testimony and argument on the fairness of the settlement and adequacy of class counsel’s representation of the class in negotiating the settlement. [**8] The five "dissident" plaintiffs each engaged separate counsel to represent their individual interests at the class action fairness [* 117] hearing. Thomas and Latimer were represented by Barbara B. Hutchinson; Fields, Neal, and Smoot retained Theresa L. Watson to represent their individual interests. Ms. Hutchinson was retained in December 1995, while the settlement was being negotiated. The dissident plaintiffs, and others, had hired Carl Anderson as additional co-counsel for the class in 1994, but terminated his representation before the fairness hearing in 1996. Court- approved notice of the proposed settlement was transmitted to all class members, informing them of their right to file comments concerning the proposed consent decree, and to appear at the hearing. The objections of Ms. Watson's and Ms. Hutchinson's clients were included in the notice sent to all class members. App. 27 The fairness hearing was held on three days in July 1996. At the hearing, the Court heard from every class member who requested an opportunity to speak, and from | their legal representatives. Plaintiffs Thomas, Latimer, Fields, Neal, and Smoot, along with others represented by Ms. Watson and Ms. Hutchinson, objected [**9] to the consent decree on the ground that it failed to provide an adequate remedy for the wrongs alleged in the complaint. Those plaintiffs argued that they were not fairly compensated for their individual injuries. Those plaintiffs also made it clear that if the Court rejected their arguments and approved the settlement, they should have the right to individually pursue their underlying causes of action. In other words, those plaintiffs sought the right to opt-out of the settlement On the merits of the compromise, the Court approved the settlement under Rule 23(e). It found the consent decree "as a whole [was] fair, reasonable, and adequate to the class," and "was clearly negotiated at arm’s length and [presented] no danger of collusion.” Thomas v. Christopher, 169 F.R.D. 224, 239 (D.D.C. 1996), affd in part and revd in part, Thomas v. Albright, 139 F3d 227 (D.C. Cir.), cert. denied, 525 US. 1033, 142 L. Ed. 2d 480, 119 S. Ct. 576 (1998). The Court found the settlement to be in the best interests of the class as a whole. While the settlement may not have provided the degree of relief that some individual members sought, the Court approved [**10] the settlement based on the benefits it provided to the class generally. The Court specifically found "that class counsel .. fairly and adequately protected the interests of the class." 169 F.R.D. at-239. The Court addressed the opt-out issue at length. After hearing each of the individual plaintiffs’ objections to the settlement, me Court found that some of the plaintiffs had individual equities that would not be satisfied by the agreement. Accordingly, the Court ordered the right to opt- out be made available to class members who did not believe App. 28 that the settlement and consent decree provided them with appropriate relief for the injury they sustained. It stated: If Defendant is right and those who want to opt out do have the strongest cases, what a grave injustice would then be done to those parties if the Court were to extinguish their individual rights. The Court has been impressed with the vehemence with which some members of the class have opposed the settlement. It is quite clear that those members will believe themselves to have been "sold out" if this Court refuses to allow opt out of the settlement. Thomas v. Christopher, 169 F. R. D. at 245. [**11] A group of unsatisfied class members, including the dissident plaintiffs, appealed. On appeal, they argued that the settlement (1) did not effectively address the Department's assignment system retaliatory acts, or employee records tarnished with discriminatory decisions; (2) did not provide adequate relief in the form of additional or enhanced promotions; (3) was insufficient regarding reinstatement; (4) did not adequately compensate the dissident plaintiffs; and (5) was improperly approved over the objections of the dissident plaintiffs, who were named plaintiffs. Thomas v. Albright, [*118] 139 F.3d at 231-33. Additionally, the dissidents argued that class counsel did not adequately protect the individual interests of the dissident plaintiffs when class counsel agreed to take no position on the opt-out issue, and agreed to a "no modifications" clause in the settlement agreement. The Court of Appeals noted succinctly that "the dissidents complain about particular App. 29 eS portions of the overall settlement and claim that they are individually entitled to more." /d., 139 F. 3d at 233. Despite the dissidents’ arguments, the Court of Appeals affirmed this Court's (**12] finding on the fairness of the settlement, and rejected the challenge to the adequacy of legal representation by class counsel. Particularly, the Court of Appeals wrote: Finally, the dissidents argue that class counsel did not act in the interest of the class when counsel agreed to argue that the consent decree was fair and not to advocate the right to opt out, and agreed to the provision of the consent decree stating that the court may not modify the agreement. In our view counsel more than adequately represented the class as a whole. Thomas v. Albright, 139 F 3d at 233. This Court's granting the right to dissenters to opt out of the settlement was reversed. The Court of Appeals held that under intervening law, that option was not available in this case. Id. at 233-36, citing Eubanks v. Billington, 324 US. App. D.C 41, 110 F.3d 87 (D.C Cir. 1997). This holding did not affect the findings that the settlement was fair, and that class counsel adequately represented the class. The Superior Court Action The class action having been finally and fully adjudicated, in March 1999, five dissident plaintiffs brought [**13] a lawsuit for alleged malpractice against class counsel in the Superior Court for the District of Columbia. The dissident plaintiffs alleged that under a retainer agreement with class counsel, signed by Walter Thomas and others, App. 30 class counsel was retained to represent plaintiff class members’ individual claims as well as their putative class claims. The dissident plaintiffs alleged that class counsel owed fiduciary duties to Thomas and others, as their attorneys, including a duty to represent their interests "without undivided loyalty." The dissident plaintiffs "do not take issue with this Court's decision on the adequacy" of class counsel's representation of the class, and are not trying to set aside the consent decree or obtain additional remedies not provided for in the settlement. These plaintiffs claim that the Superior Court malpractice action seeks only to recover damages against class counsel "due to the breach of the fiduciary duties owed to Thomas, et al. not as members of the class, but as individuals whom the Attorney Defendants signed retainer agreements with before the inception of the class." Thomas Response Brief at 11. Class counsel, now defendants in the Superior [**14] Court, moved to dismiss the Superior Court action, stating that the fiduciary duty relied upon by the dissident plaintiffs is non-existent, and that the complaint is barred by the doctrine of collateral estoppel. Class counsel received a stay in that court pending the current motion for injunctive relief in this Court. Class counsel describes the so-called malpractice action as a "collateral attack" on this Court's decision, and states that it will suffer irreparable harm by having to endure wasteful relitigation of the adequacy of their representation of the dissident plaintiffs. This Court has ancillary jurisdiction in this matter to vindicate its authority and effectuate its decree in the underlying class action settlement and consent decree. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 380, 128 £. Ed. 2d 391, 114S. Ct. 1673 (1994). Neither party has suggested otherwise. Class counsel also suggests that the Court retains jurisdiction and injunctive power to [*I 191 effectuate its judgment under the All Writs Act, 28 US.C. § 1651. App. 31 The Relitigation Exception to the Anti-Injunction Act Class counsel argues that the Anti-Injunction [**15] Act. 28 US.C. § 2283, does not preclude this Court from enjoining Plaintiffs’ action in the Superior Court. The Anti- Injunction Act provides: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. 28 US.C § 2283. The purpose of the statute is to promote comity and avoid unseemly conflicts and friction between state and federal courts. Signal Properties, Inc. v. Farha, 482 F.2d 1136 (Sth Cir. 1973); Euge v. Smith, 418 F.2d 1296 (8th Cir. 1969). The statute was designed to precisely limit and describe a federal court's authority to enjoin state court actions. The exception provided in the statute that allows an injunction "in aid of [the Court’s] jurisdiction, or to protect or effectuate its judgments" is commonly referred to as the "relitigation exception." The relitigation exception allows a federal court to enjoin a state court action where, in effect, the state court is asked to relitigate matters already determined [** 16] by a federal court. This is to preserve the "full fruits and advantages of a federal court's judgment." Jn Re National Student Marketing Litigation, 655 F. Supp. 659, 664 (D.D.C 1987); see also Samuel C Ennis & Co. v. Woodmar Realty Co., 542 F.2d 45, 49 (7th Or. 1976), cert. denied, 429 U& 1096, 51 L. Ed.2d 543, 97S. Ct. 11 12 (1977). Under such circumstances, a federal court may issue an injunction to protect the finality of its judgment. Thus, a federal Court may enjoin an action in a App. 32 state court when issue preclusion (collateral estoppel) or claim preclusion (res judicata) is the source of the movant's application for relief Chick Kam Choo v. Exxon Corp., 486 US. 140, 147, 100 L. Ed. 2d 1270 108 S. Ct. 1684 (1988); Golden v. Pacific Maritime Ass'n, 786 F2d 14250 1427 (9th Cir. 1986). The central question is whether an injunction is necessary to protect or effectuate this Court's judgment entered in the class action. This question must be evaluated by first examining class counsel's argument that the Superior Court action is barred on grounds of issue preclusion. Issue preclusion prevents [** 17] a party in the same or subsequent action from gaining a redetermination of an issue of fact or law when "(1) the issue is actually _ litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum." Davis v. Davis, 663 A.2d 499, 501 (D.C. 1995), quoting Washington Medical Center v. Holle, 573 A.2d 1269, 1283 (D.C. 1990). Class counsel argues that as a matter of law, judicial approval of the adequacy of class counsel's representation under Rule 23(e) necessarily precludes class members from later suing class counsel for alleged malpractice. Class counsel asserts that the adequacy of their legal representation of the dissident plaintiffs was litigated, and fully and finally decided by this Court. They state that the dissident plaintiffs objections to the settlement and adequacy of class counsel were fully addressed at the faimess hearing. They note that the dissident plaintiffs were represented by individual counsel at the fairness hearing, and the Court was [**18] there presented with objections and argument on behalf of the dissidents. The Court, in approving the settlement, expressly found that class counsel adequately represented the plaintiffs, and class counsel submits that finding was necessary to the Court's approval of the settlement and consent decree under Rule 23(e). App. 33 in Moreover, class counsel submits [*120] that the finding on the adequacy of class counsel was not mere dictum, but essential to the Court's judgment approving the settlement and consent decree. Accordingly, class counsel states that any claim alleging the inadequacy of class counsel would be precluded under the doctrine of collateral estoppel. Class counsel points to cases in the Sixth, Ninth, Seventh, and Fifth circuits that support their position. In Laskey v. International Union (UAW), 638 F. 2d 954 (6th Cir. 1981), members of a class action sued class counsel for malpractice after the underlying class action was resolved by a judicially-approved settlement under Rule 23(e). As in this case, in Laskey, the dissatisfied class members claimed that class counsel's interests conflictec: with their own; that counsel | failed to inform members of their right to [** 19] opt-out of the settlement, failed to inform the class of counsel's claim for reimbursement from settlement proceeds, and that the court improperly accepted settlement over the named plaintiffs objections. The District Court granted summary judgment and injunctive relief in favor of class counsel, and the Sixth Circuit affirmed, stating: Since appellants had the opportunity to object to the legal representation at the prior settlement hearing and since a finding that the class was adequately represented is necessary for finding the settlement was fair and reasonable, which in turn was essential to approving the settlement ... appellants are collaterally estopped from now asserting that the legal representation was not adequate and that [class counsel] committed legal malpractice. Laskey, 638 F. 2d at 95 7. App. 34 The Ninth Circuit, in Golden, also applied the “relitigation exception" in favor of class counsel to uphold an injunction against a state court malpractice and fraud proceeding. There, class counsel had successfully negotiated a judicially-approved consent decree, but dissatisfied plaintiffs sued class counsel in state court, alleging that class [**20] counsel falsely informed plaintiffs that their suit was not a class action, and that class counsel had falsely informed the District Court that plaintiffs endorsed the class action format and setilement. The District Court enjoined the state malpractice case, finding that the "conduct of [class] counsel and the relevant attorney-client relationship were litigated in the Golden action during the fairness hearings and addressed by (the] court after [plaintiffs] had a full and fair opportunity to present evidence in favor of their claims." Golden, 786 F2d at 1428. The Ninth Circuit affirmed that finding, noting that plaintiffs had a full and fair opportunity to litigate their malpractice and fraud claims at the fairness hearing, and that the state malpractice action was an attempt to harass class counsel and was in effect "an abuse of the court process." Jd. at 1429. Class counsel also cite Samuel C. Ennis & Co., Inc. v. Woodinar Realty Co., 542 F 2d 45 (7th Cir. 1976), cert. denied, 429 US. 1096, 51 L. Ed. 2d 543, 97 S. Ct. 1112 (1977) (collateral estoppel precluded state malpractice action against bankruptcy [**21] attorneys because the bankrupt had a full and fair opportunity to litigate the fraud issue in the underlying bankruptcy work-out proceeding), and other cases where class action attorneys successfully enjoined state malpractice cases, through the relitigation exception, based on inherent findings of fairness and adequacy of representation in the underlying case. See, In re Corrugated Container Litig., 643 F.2d 195 (5th Cir. 1981), rehg denied, 655 F.2d 1131 (Sth Cir. 1981); Hutton Construction Co. v. County of Rockland, 1997 U.S. Dist. LEXIS 7666 (S.D.N.Y. June 2, 1997). App. 35 The dissident plaintiffs argue that in the underlying class action. while the fairness of the settlement and class counsel's representation of the plaintiff class was actually litigated, the discreet issue of whether those attorneys failed to properly represent the dissident plaintiffs individual interests was not a part of the fairness determination. [*121] Plaintiffs argue that Laskey and the cases cited by class counsel are not applicable because in those cases, the dissident plaintiffs suggested malpractice arising out of class counsel's conduct in obtaining relief [**22] for the class. Plaintiffs claim that in their Superior Court action, they are not contesting the fairness of the settlement or the adequacy of class representation. Rather, they submit that the attorneys failed to properly represent the plaintiffs’ individual interests, apart from the class, and thus collateral estoppel would not be applicable. Plaintiffs cite only one case for that proposition -- Beckwith v. Llewellyn, 326 N. C. 569, 391 S. E. 2d 189 (N. C. 1990). In Beckwith, a woman brought a malpractice action against the attorney who had represented her and her children in her husband's wrongful death suit. The underlying wrongful death case had been settled for roughly $ 4 million. The settlement and the payment of attorneys’ fees from the settlement were approved by the trial court, as required by North Carolina law where the deceased was survived by minor children--the would-be beneficiaries of the settlement. Plaintiff then filed the claim for malpractice against her attorneys, alleging that the calculation and payment of attorneys’ fees was in excess of her initial agreement with counsel, and that counsel never informed the plaintiff that under a second [**23] agreement to represent the plaintiff, the fee calculation had changed. The trial court in the malpractice action granted summary judgment in counsel's favor on collateral estoppel grounds, but the North Carolina Court of Appeals reversed, finding that the plaintiffs complaint was grounded on allegations of breach of fiduciary App. 36 duties and negligence, and therefore "does not constitute a collateral attack by plaintiff on [the] settlement." Beckwith, 3918S. E 2d at 190. Beckwith is distinguishable from the instant matter. In Beckwith, the complaining plaintiff and her trial attorneys were on the same side in requesting the trial court to approve the settlement along with counsel fees as being fair to the minors involved. The complaining plaintiff did not argue in the underlying matter that the settlement was unfair, or that counsel had taken advantage of her. Thus, the appellate court found that "the focus in the prior case was not whether the attorneys had taken advantage of their client but whether the settlement ... was fair to the minors involved. ... Plaintiff and her attorneys were on the same side." Beckwith, 391 S.E. 2d at 191-92. In [**24] this case, the dissident plaintiffs did object to the terms of settlement, and argued that the settlement was unfair. They retained separate counsel to represent their individual interests at the fairness hearing. Jn Beckwith the trial court did not address the adequacy of counsel's representation of the plaintiff, but rather it only considered the fairness of the settlement to the minor children. The Court finds that the adequacy of the representation provided by Akin, Gump and the Washington Lawyers' Committee for Civil Rights was actually litigated in this matter. The Court entered a valid, final judgment on the merits after a full and fair opportunity for the dissident plaintiffs to address the merits of class counsel's representation. In fact, those plaintiffs did make their objections known to the Court, and by their individual attorneys argued that the settlement did not fully address their individual rights. Indeed, this Court agreed with dissident. plaintiffs that they should be allowed to opt out of the settlement so that they could assert their individual causes of action. App. 37 The Court's finding that the settlement was fair, and that class counsel did in fact adequately [**251 represent the class was essential to its judgment. Rule 23(e) required the Courts finding of fairness as a condition to approval of the settlement. Thus, what is clear is that the settlement and consent decree rest on the essential finding that class counsel adequately represented the plaintiffs. [*122] The dissident plaintiffs, through the Superior Court action, now seek from class counsel the monetary relief that counsel could not obtain in its negotiations with the State Department. While plaintiffs claim not to be attacking the settlement or consent decree, or the adequacy of class counsel's representation in negotiations with the State Department, it is impossible to read that action as anything but a collateral attack on the findings of this Court (and the Court of Appeals) that class counsel fairly and adequately carried out its duties to the members of the class. Dissident plaintiffs’ complaint that class counsel failed zealously to protect the individual interests of the plaintiffs, over those of the class, has no merit. First, the dissident plaintiffs had their own counsel representing their individual interests at the fairness hearing and beyond. That procedure assured that [**26] the interests of the dissident plaintiffs would be properly represented, and was the proper route to take when the conflict arose over the settlement. See Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072 2d Cir. 1995). To argue that their individual interests were not zealously prosecuted is to ignore the role played by dissidents' individual counsel, who were retained while settlement negotiations were ongoing, and who appeared as counsel in the proceedings before this Court. Second, the dissident plaintiffs' complaint that Akin, Gump and Lawyers’ Committee attorneys failed to advance their individual interests runs counter to the requirements of class counsel in a class action. Class counsel is required to act in the "best interests of the class considered as a unit." App. 38 ————————————— NT Distro, Osan esieiee ts Parker v. Anderson, 667 F.2d 1204, 1211 (Sth Cir.), cert. denied, 459 U.S. 828, 74 L. Ed. 2d 650 103 S. Ct. 63 (1982). The Manual for Complex Litigation states clearly that class counsel is responsible for protecting the interests of the class, "even in circumstances where the class representatives -- their direct clients -- take a position that counsel consider [**27] contrary to those interests." Manual for Complex Litigation (Third) § 30.43. Clearly, the action in Superior Court thus attempts to relitigate issues that have already been finally and fully litigated in this forum -- the appropriateness of. the representation of these plaintiffs by Akin, Gump and the Lawyers' Committee. That action can only be viewed as an attempt to attack and relitigate the findings of this Court and the Court of Appeals. As such, the dissident plaintiffs seek to burden class counsel with the needless expense of "relitigation" in Superior Court. If such a case were allowed to go forward, the consequences to future class actions could be quite severe. First, the threat of a state malpractice action, despite findings of fairness and adequacy of representation in the class action, could discourage future class counsel from attempting to settle and compromise a class action. This is especially true in cases where the class numbers in the hundreds or thousands of individual members -- it would be near impossible to satisfy the individual interests of every member of the class. And if class counsel did attempt to satisfy ali of those interests, counsel's hands would [**28] be impossibly tied in any type of settlement negotiation. The result of such a policy is clear: more protracted litigation without settlement or compromise of the claims and allegations brought by the class. In actions where a class seeks prospective and retroactive injunctive relief, such handcuffing would sound a death knell to class counsel's ability to evaluate its case and negotiate a workable settlement in the best interest of the class as a whole, in a timely manner. App. 39 The threat of a malpractice suit of this kind could significantly discourage attorneys from bringing future meritorious class actions. Groups like the Lawyers’ Committee, and law firms that are willing to devote their resources essentially on a pro bono basis, would be greatly discouraged from reaching out to help deserving class litigants if to do so would likely expose them to the "double jeopardy" of a [* 123] state malpractice action. n4 In a world fraught with numerous injustices that can only be vindicated through the vehicle of a class action, attorneys should not be dissuaded from bringing meritorious actions by the threat of a state court malpractice law suit. n4 This case lasted over a period of ten years. Class counsel at the Lawyers’ Committee, Akin, Gump, and Walter & Haverfield devoted more than 30,000 hours litigating and negotiating the settlement, which provided S 1.4 million for legal fees, approximating S 47 per hour, well below those attorneys’ normal hourly rates and the D.C. Circuit guidelines. See Thomas vy. Christopher, 169 F.R.D. at 235. It is clear that this case was taken on a quasi-pro bono basis, in the best traditions of the legal profession. *29] The Court is concerned that allowing the malpractice action to proceed necessarily implies a nullification of this Court's findings on the adequacy of counsel's representation of the plaintiffs. It removes one of the Court's most important functions in a class action - protecting the interests of the class members through fairness hearings and other procedures designed to assure that members of the class as a whole are not compromised by the individual interests of a minority of the App. 40 . + Peat a $ > wen 4 location and upon further consideration, two weeks isn't enough time for them to respond. We think a month would be appropriate because we want them to be in a position where they could actually talk about it with a lawyer, because I'm not sure they all understand the consequences. So our notice, which we'll give you a copy tomorrow, would basically put a return time of 30 days after the Court signed it. THE COURT: I think you ought to make it after October 1. There are people on vacation. I realize you want to get this thing finished, but I think you ought to make it on -- give them about 60 days so -- the other thing I think ought to be done is somehow there ought to be someone in the State Department in the Legal Advisors Office to be able to answer questions. MR. BIRCH: I think that would be a conflict of interest, Your Honor. THE COURT: Well, I think you're right on that, but I'm just wondering -- Ms. Hutchinson, what would you suggest? MS. HUTCHINSON: I would be willing to answer questions for people who were in this posture. THE COURT: I got to get a neutral evaluator of some kind. Now, how can we do that? MR. BIRCH: I think that -- MS. HUTCHINSON: How about one of the members of the review panel since they're already -- THE COURT: That sounds really good. MR. BIRCH: Or alternatively Judge Kay who has done work on -- THE COURT: Judge Kay would be good. The only thing is I can't have Judge Kay giving advice. That's the only thing. What about a lawyer? We got Mr. Barry who is an attorney on the review panel. [ don't know if he'd want to do it. I'd assume his expenses could be paid by -- I guess we could find a way to App. 221 get his expenses paid, but, Mr. Barry, would you come forward and see what you think about that thought. What do you think, Mr. Barry? , MR. BARRY: Good afternoon, Your Honor. Well, Your Honor, as I just said to my co-review panel member, Ms. Bruce, I don't think that I or, frankly, anyone on the review panel is qualified to undertake this task. And the reason is that I'm the only lawyer on the panel. I have never represented anybody in a Title VII class action and last read about opting in a civil procedure in law school, which was some number of years ago. And while if the Court thinks that that is the best option under the circumstances. I would undertake to do it. I would need a considerable amount-of help from plaintiffs counsel and defense counsel to get it to the point where I would feel comfortable advising these folks. THE COURT: Well, I think we got to make it someone different than -- I think in the notice that would go out, would say that to get information, but not legal advise, we've made available Mr. Barry who can be reached at so- and-so collect. Then I would think that you would explain to that person just the options and what is involved. What the person would have to understand, what would be incumbent upon that person to have to establish. Then I would say that you would then give up -- if they wanted to be in touch with either the class action lawyers, you give up their name, plus you give up the names of Ms. Hutchinson and Ms. Watson, and I think you could almost have a script that would be approved by the parties. But at least the thing that would impress me about it would be -- well, John raised the problem about one of the people that -- have you made determinations as to only -- you only determined the four people who would -- MR. BARRY: Be reinstated? THE COURT: Yes. MR. BARRY: Yes. App. 222 GRE, ROR Ee ta: a Z ‘i i. 2 rd . % = & 3 THE COURT: But as to those four people, they know what they have to do to get a lawyer and I think you would advise them that anybody would be able to -- then what I would do is mention Watson and Hutchinson and then have the name of three plaintiffs’ lawyers in town that are good. Ms. Bernabei -- what's the other name of that fellow that does a lot of these? Chuzi, yes, Chuzi has tried before me. there are about three or four lawyers that do this and then you could give them the panel of a group of people that if you're interested in pursuing this, these are the people you should call. MR. BARRY: Your Honor, if plaintiff's counsel and defense counsel could agree on a script, that would make me feel much more comfortable doing it. My only other question would be whether my services in that capacity would be covered under the existing immunity order. THE COURT: Well, we'd have to do it. We'd have to amend it. We'd amend it to do it. But I think it seems to me that they need somebody who is so-called impartial in this thing, and would be able to talk to them. Then I would have a list of three or four -- Chuzi is good, and Bernabei is good and I don't know the third. It's somebody from Chuzi's office, a lady there that's awfully good, too. MS. HUTCHINSON: Kalijarvi. THE COURT: Is that the one that had the case before us? | MR. SELLERS: Your Honor, we'd be happy to give Mr. Barry a list of a number of lawyers in town that -- THE COURT: But those I gave you are good. [| mean, I've had them, and they are very good. All right. Let's see if we can't get that set up that way. I think it's the only fair thing to do. And it seems to me that we ought to say that if they don't meet that deadline, that that's an important deadline, that that would be it. MR. BARRY: All right. Your Honor, counsel committing to get together and work on a script? App. 223 THE COURT: Well, we haven't yet figured it out. We'll try to figure it out. All right. Anything else? MR. SELLERS: Yes, Your Honor. THE COURT: Go ahead. MR. SELLERS: During the lunch break we gave Ms. Watson a copy, which I'm happy to hand up to the Court if you like, of the distribution -- THE COURT: By letters? MR. SELLERS: Actually they're just by name. Want to make that Exhibit 2? The first is a list of -- THE COURT: Well no, Exhibit 1 is a government exhibit, isn't it? Make this -- MR. SELLERS: Plaintiffs Exhibit 1 (Plaintiffs' Class Exhibit No. 1 marked for identification.) MR. SELLERS: The first list is a distribution for those who are intervenors and the plaintiffs. That latter list are names of people who are receiving some recovery and the amounts, but they don't correspond to each other, so it would protect the privacy of the individuals that way. THE COURT: Okay. Now, how do you want to proceed. Ms. Hutchinson? Do you want to call a witness or do you want to go right down the list here? MS. HUTCHINSON: Your Honor, I would like to call a witness, but I have a couple of questions about the affirmative action plant that's Exhibit 1. And maybe I can just propose it to Mr. Birch and get an answer to the situation. Somebody could answer it or something like that? THE COURT: Well, you want to have to do that on the record or can you do it privately? I'd like to get this hearing moving. That's the only problem. MS. HUTCHINSON: Okay. I'll ask privately, but I don't know. My impression is that this affirmative action plan was done before this consent decree went -- App. 224 THE COURT: Well, it is because they go back a number of years, don't they, Mr. Birch? This is the normal -- I assume it's their affirmative action plan that they have. It has nothing to do with this case, does it? MR. BIRCH: Your Honor, we could probably spend half an hour talking about it, but I'll be glad to talk to Ms. Hutchinson at her earliest convenience and try and straighten it out, because I'm sure we've got answers to all her questions, not necessarily time to answer them now. MS. HUTCHINSON: If, in fact, my questions don't - - I don't feel they're resolved, you know, can I do something written? THE COURT: Yes. Now, let's see how we want to handle this. We've got two lists here, against and favor, and one neutral, three lists. Now, should I just call these people or do you want to present people? How do you want to handle it? MS. HUTCHINSON: I think just calling the witnesses. THE COURT: All right. Just call the people then. Start with the opposed lists. Madame Clerk, go ahead. Just call them. THE DEPUTY CLERK: Alan Latimer. THE COURT: Mr. Latimer, would you prefer to sit in the witness chair? MR. LATIMER: I prefer to sit in the witness chair please. THE COURT: All right. Well, then we'll swear you and put you in the witness chair. Please to have you here. ALAN LATIMER, SWORN THE WITNESS: Can you turn the microphone up? There are some people who can't hear behind the glass. THE COURT: I don't know if you know there was a stabbing in the courthouse today, so that might show you why that’s necessary. App. 225 THE WITNESS: I'm glad you have the glass in place. THE COURT: Go ahead. You want to ask Mr. Latimer questions or would you like to make a statement, Mr. Latimer? MS. HUTCHINSON: I'll ask him questions and maybe it will go faster. THE COURT: All right. DIRECT EXAMINATION BY MS. HUTCHINSON Q. Mr. Latimer, can you tell us our name and your address and your current employment and your position and your grade. A. My name is Alan Latimer, and I am currently residing at 1622 Neely Road in Silver Spring, Maryland. I'm assigned at the moment to the American Embassy in Nairobi, Kenya, as the U.S. permanent representative to the United Nations Environment Program and the United Nations Program for Human Settlement. Q. And what is your grade and your position? A. I'm a Foreign Service Officer, Class 1 Q. And how long have you been -- THE COURT: Is Class | better than Class 4 or not -- I don't know which way they go. That's the problem. THE WITNESS: Well, for my purposes, the Senior Foreign Service is better than Class 1. That's the next level above where I am. Class | is higher than Class 4. THE COURT: In other words, the lower the number the better? MS. HUTCHINSON: Yes. THE WITNESS: Yes. THE COURT: Until you get to the Foreign Service; is that it? MS. HUTCHINSON: Until you get to ambassador. App. 226 THE COURT: Ambassador. So you're right below an ambassador? THE WITNESS: I wish that I was, sir. I'm right below the Senior Foreign Service. In order to become an ambassador, you have to first enter the Senior Foreign Service. THE COURT: I understand it. Go ahead. BY MS. HUTCHINSON Q. Now, how long have you been employed with the Department of State? A. Nineteen years, 11 months, two weeks. Q. And in terms of your most recent promotion, can you tell us when it was? A. My most recent promotion was October, 1993. Q. And prior to your promotion in October, 1993, what was the date that you last had a promotion? A. October, 1988. Q. And in terms of your particular employment as a Foreign Service Officer, what were your performance evaluations like? A. They have been consistently outstanding and before that superlative, the top ratings. Q. And have you received any types of awards during the time that you've been employed? A. I've received two meritorious step increases in lieu of promotions by the selection boards; two meritorious honor awards; one group superior honor award, and an individual superior honor award. Q. And in terms of your experience in this position with the Department of State, can you tell me have you ever had any kind of advice on promotions or guidance as to how you can get promoted in the Foreign Service? A. No, because the system is an ad hoc system, and you're expected to be your own career candidate advisor. Q. And how does it work that you get recommended for promotion? How does the system work actually? App. 227 A. Do you want me to describe the selection boards on the promotion system? Q. Yes. A. Well, it's a force rating system. That means that the panel members have to assign numerical ratings to individual files, and they read a series of files, and there is a horse trading procedure. People receive from various members of the board a rating from | to 10. Then the scores that are given by each of the panel members to the individual files are tallied at the end of the process, and those who have advocates, people on the promotion panels, selection board who know them, they in turn are able to get higher ratings and usually they're able to get promoted. Q. And have you ever been rated or ranked by any of these promotion panels? A. Yes, I have been. Q. Did you know anybody on any of the promotion panels that rated and ranked you? A. I knew one member who I subsequently approached strictly by accident, because he happened to tell me that he had served on my panel, and I asked him why at that particular time I was not promoted. Q. And in turn, what did the person tell you? A. Well, he told me that I had not been assigned to managerial level jobs up to that time. Q. And in terms of the promotion process as it works, could you personally have reviewed the documents that the rating and ranking panel used or seen their opinions as to whether or not you were promoted? A. No, there is no formal procedure for the selection board to issue a written statement to any individual who did not get promoted as a result of their decision. Q. And in terms of this current consent decree that's being proposed for someone in your position, will it make any changes to the promotion process that you know of that would change the system as you've seen it? App. 228 SLA SON TSN I A. No, it will not. Q. Okay. And in terms of the current -- let me withdraw that. Did you file a discrimination complaint with the Department of State during your employment? A. Yes, I did. I filed a complaint because I was not being promoted at the same rate as similarly situated white Foreign Service Officers. Q. And when you say similarly situated white Foreign Officers, to whom were you referring? A. I'm referring to those members of my particular class who started with me in the orientation course in July 26, 1976. Q. And in terms of this current consent decree, to the best of your knowledge, were you compared for any type of relief with individuals in your particular class? A. No, I was compared with white male Foreign Service Officers, but not those members in my class. Q. And in terms of the complaint that you filed, did it deal with more than just promotions? Did your complaint cover more than just promotions? A. It specifically dealt with promotions, but you can't deal with promotion problems without talking about the impact that a lack of assignment to career enhancing jobs has on your promotion prospects. Q. Can you tell us in your experience currently how does the assignment process work, and how does it relate to your promotion? A. Do you want me to describe the entire process? Q. Yes. A. When a Foreign Service Officer is due to be reassigned, he's required to submit to Central Personnel six bids in three geographical regions at least. And one those bids are entered into the computer system, this is an automated system. I know about it, because I had some input in designing it. The bids are confirmed through the automated system, and there is a bid book that is distributed later to the bureaus, the geographic and functional bureaus. And on the basis of the bid book which contains the names of the bidders and the preference that they have indicated for various vacancies, the bureau principals will then decide based on their knowledge of the individuals, whether they have a good or bad corridor reputation, if they qualify according to their assessment for the vacant jobs. Q. And in terms of this process, what's been your experience as you bid on particular positions? A. My experience as a bidder or my experience serving in personnel? Q. As a bidder -- A. Well, I've found that most of the bids that I've made have usually not been reacted to in a favorable fashion, because many of the positions have already been filled. Unfortunately, though for me, when I looked at the bid vacancy list, they indicated that the bids were still available because the list indicates vacant positions. Q. And in terms of the bidding process as a bidder, have you ever had discussions with anybody in personnel to talk about your bids? A. No, I would describe my experience as being an invisible man where personnel is concerned. I've been my own career development officer. I've found out on my own how the system works, and I've had to since receiving tenure, when I've been seeking competitive assignments. I've had to find my own assignments. Q. Now, you mentioned corridor reputation. What is corridor reputation? A. Well, that's when various information is passed on whether or not you have a good reputation, meaning that you're a good prospect for the job according to your corridor reputation, whether you have gone along with the system and not made any waves. App. 230 BS as ce. * 3 a s 4 ex ~ ey: fe FE % $4 i Ee s re: af = My j a sg ‘g =a ; re: ¥ pe! it Ex cg & fess ie i ea f ‘ 4 ia & \ a Q. Now, in terms of your experience and the current proposed consent decree, does it deal in any way with this assignment process that you have to go through in order to get assignments? A. No, it does not. Q. Okay. And during the processing of this civil action, did you as an individual raise concerns about the assignment process? A. I have consistently rejected in writing and also orally the settlement proposal. Q. And was one of your concerns about the promotion opportunities and the assignment process? A. Yes, Those are my primary concerns. Q. Now, let me ask you. What happens to you today if this consent decree goes into effect in terms of your future prospects with the Department? A. Well, I won't have any future prospects, because I will be involuntarily retired. Q. Okay. Tell us why you'll be involuntarily retired? A. Because I have approximately eight years to be promoted into the Senior Foreign Service. And if past history is any guide, it will be extremely difficult for me to get the type of assignments that I will need to make me competitive for a promotion. It is almost impossible in the State Department to get an assignment to a job that is managerially challenging, such as a deputy chief of mission job or principal officer job. THE COURT: I don't get it yet. Let me see if I get it. | assume they have and up or out system there, right? THE WITNESS: That's correct. THE COURT: New, when are you up and out point? Have you reached that yet? THE WITNESS: Well, I have reached the point where it's up or out. I will officially reach that point October of this year. THE COURT: Is that when you have 20 years in? App. 231 THE WITNESS: No, it's 20 years from the time that you were tenured. See, I will be officially considered for a promotion starting this year into the Senior Foreign Service. THE COURT: And you'll have until October of 1996 to obtain it? THE WITNESS: No. That is when I will first be eligible for consideration. I was not eligible before because you have to at grade for three years, and my last promotion was October, 1993. THE COURT: So you have eight years from '96 to get it? THE WITNESS: I know I will not get it. THE COURT: Well, how do we know that? THE WITNESS: Because I've already been tagged with a negative corridor reputation for being involved in this case. So I'm not going to be assigned to the career enhancing jobs that I need to be assigned to in order to get promoted. THE COURT: Well, wait a second. BY MS. HUTCHINSON THE COURT: Wel, wait a minute. I'm still confused here. You're saying you believe that because you're involved in this case that somehow that's going to react to your detriment; 1s that it? THE WITNESS: This is exactly what I'm saying. There have been individuals who have been involved with activities far less identifiable than this, and they have been labeled as troublemakers, and they have not been given assignments. THE COURT: But isn't there something in -- there's a retaliation provision in here, right? Isn't there? MR. BIRCH: yes. MS. HUTCHINSON: It says they will not retaliate, yes. THE COURT: Well, I don't know what more we can do, but you got eight years. If they keep doing it -- App. 232 THE WITNESS: Well, we can change the assignment system and the promotion system. That would stop it. THE COURT: Well, how do you do that? How do you change that? THE WITNESS: By having those provisions in the consent decree. THE COURT: Which would do what? THE WITNESS: Well, which would force the system to change, to become and open system, a fair system. It's not that way now. THE COURT: Well, tell me where the system breaks down now? THE WITNESS: Well, I'll give you an example. If you talk about assignments, I mentioned the bureaus. If the bureaus decide for whatever reason that you are not a viable candidate, then irrespective of your record, and I'm talking - about your performance file, which contains your evaluations, you will not get the assignment. And if they're not assigning you to the career enhancing jobs, sir, how would you expect me to be promoted. THE COURT: You're saying there in an element of subjectivity in the assignment system; is that what you're saying? THE WITNESS: I am saying that the system is completely subjective. It's arbitrary, and it is not fair. THE COURT: But I mean. I'm not a -- you got to understand what the power of the Court is. It's a discrimination case. I can't go and tell a company or an agency to redo it whole system to make it fair. I've got -- in other words, there is nothing in the law that says the system can't be subjective, as long as it's not discriminatory. Is it a Mackenzie system? Who is it, Mackenzie that goes out and does this stuff? MS. HUTCHINSON: Well, that -- App. 233 THE COURT: Tries to go and evaluate systems, but it seems to me that I think you're asking this Court, not only this judge, but this Court to do something that is beyond our paypack if that makes sense to you. It's not within our jurisdiction to do it. MS. HUTCHINSON: But, Your Honor, I think that the issue here is, and Mr. Latimer is my client, and I'd like to respond to that, is that this decree does not address this system at all, and not time was spent on it, even though that was the complaint. The question becomes whether or not this assignment system is subjective based solely on just subjectivity or is it subjective based on race. THE COURT: But there is nothing in the law that says and organization can't have a subjective system. MS. HUTCHINSON: But the question is is it subjective based upon race? THE COURT: These law firms in this city I assume have subjective systems ail over the place. MS. HUTCHINSON: I don't know. , THE COURT: I don't know either. I was in the same position you're in, but the point is that, you know, I don't think we can go and change the world. MS. HUTCHINSON: But the question becomes is there something that can be done that would assist black and minorities if they felt that they were being improperly denied assignments based upon their race. THE COURT: I think there is going to be -- you got this Council, and I assume they're going to hear complaints, are they not? It's being set up? No? Aren't they going to hear complaints, Council? MR. BIRCH: Yes. MS. HUTCHINSON: I don't know if they hear complaints. MR. BIRCH: Yes, they are. App. 234 THE COURT: Look, you know, I think for this Court to speculate in eight years from now as to what the situation is going to be I think is asking -- you bosses might not even be around in that period of time. THE WITNESS: Well, Your Honor, the fact that there is not even enough black Foreign Service Officers at the senior levels to constitute a percentage for the purposes of statistical analysis suggests to me that in eight years, I will be in trouble if the system is not fundamentally changed. THE COURT: I don't know about that. I don't know what's going to happen in eight years. You don't know what's going to happen in eight years. THE WITNESS: I know what's happened to me, sir, in 19 years, 11 months, and two weeks. THE COURT: I understand that. I understand that. But, you know, there are a lot of changes that take place. There are a lot of changes that take place in eight years, and I think for us to have to design a system and anticipate what takes place in eight years -- but I'll listen to you. But I'll tell you, I'm not overwhelmed with the business of worrying about eight years. I think we got to watch what happened to you. We got four years to go under this decree and maybe you ought to report back after -- see where we are after a few years. MS. HUTCHINSON: Your Honor, this gentleman filed a complaint of discrimination. He didn't file a complaint to wait another four years to find out whether or not he has to come back and file again. That's the issue here. If, in fact, the whole import of a consent decree is well, okay, you filed a complaint of discrimination, but wait a little while longer. Let's see if you're truly harmed. App. 235 THE COURT: No, I'm not saying that if he can now -- | think what he was talking about is prospective. He wasn't talking about if he had a prior -- if he was discriminated against in the past. He's talking about prospectively now. If, in the past, then, of course he has his options. THE WITNESS: Can I address that? I think there may be a misunderstanding. I talked about what I thought would happened to me based on my past experiences. I did not discuss my past experiences. THE COURT: That's right. THE WITNESS: And the fact that I despite my record, and I described that to you when I first started speaking, I have been consistently behind the promotion pattern of similarly situated white officers who started out with me in July, 1976, and who are still in the system. Let's deal with that. THE COURT: They're up at the next level? THE WITNESS: There are many, at least three that I know of, who are already in the Senior Foreign Service. I started out with approximately 30 in my class. THE COURT: In your class. How many were minority? THE WITNESS: Sir, I'm the only one. I was the only minority, because the other person dropped out of the class. So, there is only one other minority to compare them with, and that's me. ; THE COURT: Now, of the 30, how many are left at the Department? THE WITNESS: Approximately 26. THE COURT: The rest stayed in, right? THE WITNESS: The rest stayed in. THE COURT: Of those 26, so I assume 25 of them are white? THE WITNESS: I would assume so, because I'm the only minority. App. 236 THE COURT: Now, where are those 25 now? Three of them you say are in the ambassadorial service, the Senior Foreign Service? THE WITNESS: Three of them are in the Senior Foreign Service as far as I know. THE COURT: What about, that leaves about 22. Where are they? THE WITNESS: They are at various levels. Most of them are at the FSO-1 level. THE COURT: Which is your level? THE WITNESS: Yes. THE COURT: So you're saying that 22 of these people are at your level? THE WITNESS: I'm saying that as far as I know, yes. THE COURT: Well, I'm not asking -- THE WITNESS: But there is another point that you might be missing. Many of these people have already reached Level 1 before me. And if you look at the average rate of their promotions, it is considerably faster than my rate. And there is a final issue, and that is if they do not op to be promoted into the Senior Foreign Service, then they won't be considered until their total time in service expires. THE COURT: Well, but also, they might be in a worse position than you in the sense that -- THE WITNESS: There are none who are in a worse position than I am as far as I know. THE COURT: Well, if they got in earlier than you, don't they have the --doesn't the eight years start running from the time they get in that position? THE WITNESS: No, I think you might be misunderstanding something. There are several other issues here. One is that in order to be considered for some of these career enhancing jobs that I mentioned to your, you have to reach a certain level. Most of these jobs are at the | level. App. 237 So if they have been at the | level longer than me, they've had more opportunities to be considered for these managerial jobs. THE COURT: Yes, but I thought you mentioned to me that once you reached that October date, you have eight years? THE WITNESS: Yes, but you're eliminating one factor. That is you have a total of 20 plus years to be promoted into the Senior Foreign Service once you have been tenured. So it depends on when you were tenured. THE COURT: And you've been tenured? THE WITNESS: I was tenured in 1982. THE COURT: 1982. THE WITNESS: Yes, sir. THE COURT: How many years do you have from '82? Twenty years? From"82, 10 years, how many? THE WITNESS: From '82 I believe it's 22 years. THE COURT: Twenty-two years. Well, all I'm trying to ask if a very simple question. Are there some who because they got ahead of you on the line, and if they don't make the next point will be out before you have to get out? Is my question clear to you? Some of them have used up some of their time, so to speak? THE WITNESS: Well, it depends. Some of them have, yes. THE COURT: In other words, some of them better shape up or they're going to be -- no, the only thing I was mentioning, too, eights years things can happen. For example, suppose that you find that the complexion of that group over there has changed by then. And that's not unrealistic. THE WITNESS: But if you were in my position and you had my experiences, why would you assume that in eight years things would change? Or would you be willing to jeopardize your career to wait, hoping that they would change. App. 238 THE COURT: No, but the only point is there's a lot of things that are dynamically -- that are changing. But I think your counsel made a good point, namely, the past. I was just looking at the future. Obviously if you have an actionable case based upon past discrimination. I thought we were just talking about now about the prospective relief which was to change the whole system to prevent something like this from happening. But if you have, and I assume you do have -- I assume you do have allegations of past discrimination that has prevented you from getting to the | position sooner; is that what you're saying? THE WITNESS: Yes, I filed an EEO complaint because of my slow promotion rate, and -- THE COURT: Where is that complaint now? THE WITNESS: I have not heard anything on the complaint for the last 13 years. MS. HUTCHINSON: They're all pending. My understanding is they agreed, I don't know, but there's some kind of pending agreement, so they left them all pending. THE COURT: So in other words, because of this lawsuit, they're all pending? MS. HUTCHINSON: Yes. THE WITNESS: Yes, sir, I would assume that's the case. THE COURT: I see. MS. HUTCHINSON: Because they said they wanted to process this and not do the same thing -- THE COURT: And then that gets wiped out if this case goes -- MS. HUTCHINSON: His complaint would be gone. THE COURT: But I assume if you don't op in, then you -- this will not touch his complaint I assume if he opts out? Even under you theory, Mr. Birch. MR. BIRCH: If you allow him to opt out, then he would proceed with his individual claim. App. 239 THE COURT: And I assume that is what you want to do? THE WITNESS: That is exactly what I plan to do. THE COURT: Anything further? THE WITNESS: No, sir. I would just like to point out that the plaintiff interveners have consistently rejected this proposal. It is not fair. It does not deal with the systemic discriminatory practices in the areas of promotion assignments and selection out. And if the Court doesn't craft or have some input on devising a system that is fairer, then I really don't understand what we're doing here, sir. THE COURT: Well, again, -- THE WITNESS: With all due respect. THE COURT: Well, I think you've got to understand what my role is. My role as I see it, and I could be wrong, I go as far as I believe I can in my role,. but I believe that I can't go and tell the State Department to adopt another system because it would be a fairer system. I can only -- unless it's a discriminatory system, the system the have. and i don't know if anybody has ever held that a subjective system is per se discriminatory, and I think that's what I'd have to find to change it. Do you gentleman agree with me or don't agree with me? MR.. BIRCH: I think in essence, you're right, Your Honor. {there are all sorts of laws that allow subjectivity determinations. The ultimate questions is what is the impact? THE COURT: Well, let me hear from plaintiffs’ counsel. How do you feel about that? MR. SELLERS: Your Honor, we've been confronted with this difficulty since we began this case that there is no question that the system has a lot of subjectivity in it. But as we understand the prevailing law, absent evidence that is operated in a discriminatory fashion, there is no authority that we have to be able to impose changes. App. 240 And I might add that the prospective relief provisions of the decree provide that -- permit us to detect disparities in the future and to bring them to the attention of the Court. So if these problems, if they are systemic in nature, persist on a racial basis, we'll be right back here to ask the Court to take them up. THE COURT: What you're saying is the discrimination is very subtle or maybe not so subtle. THE WITNESS: I'm saying that it's both. In many respects, it's very subtle, and it's extremely difficult -- THE COURT: They never come out and tell you that it's because of race that this is what's happened to you? THE WITNESS: No. And I would describe it as having an abscessed tooth. You know the tooth is aching. You know the abscess is there, but sometimes it's very hard to identify what the infection is so you can address it. THE COURT: All right. Thanks. You've been helpful. Any cross-examination? MR. BIRCH: No question, Your Honor. THE COURT: Thanks very much. Call the next person. Oh, you have a question? Identify yourself for the record again. MS. BUCHANAN: Avis Buchanan on behalf of the plaintiff class and with the Washington Lawyer's Committee. CROSS EXAMINATION BY MS. BUCHANAN Q. Good afternoon. Mr. Latimer, I just have a question about your career at the State Department. You served as DCM is that right? A. Yes, I did. Q. And could you describe for the Court what that is? App. 241 A. Before I describe what it is, sir, if I can just give you some background. That particular assignment, although the system is claiming that they have had some influence over my getting the job, that particular assignment, I got that assignment myself. The ambassador in question who selected me at his DCM found out about me because he was serving at a nearby post. I was serving in West Africa. He then contacted me directly on the telephone. | went up to his post in Conakry, Guinea. At the time I was in Freetown, Sierra Leone. He interviewed me. I spent the weekend with his family, and he selected me as his DCM. Central Personnel had absolutely nothing to do with it. They didn't broker the job. They simply went through the formality of assigning me because an ambassador can select whomever he chooses to serve as his DCM. THE COURT: See, you've now described where subjectivity is to your benefit. That's clearly a subjective -- under your system, that couldn't happen. THE WITNESS: But how many examples do you have of Alan B.C. Latimers getting DMSships based on subjectivity? That's exactly my argument. I'm the exception to the rule. So if black Foreign Service Officers were being assigned to those kinds of career enhancing jobs, then we wouldn't have any need to be here in the Court today. THE COURT: But I'm saying: I think the point counsel is making is the subjectivity worked to your favor. THE WITNESS: Yes, sir, but in most cases, it doesn't. THE COURT: I understand that. THE WITNESS: That's the problem. THE COURT: But I think that's why counsel here have indicated why the subjectivity alone isn't enough. THE WITNESS: Well, but if the subjectivity is discriminatory, correct me if I'm wrong, sir, doesn't that fall within the purview of this Court? App. 242 THE COURT: No question about it. And I think that is what is agreed upon. Anything further? MS. BUCHANAN: No. Thank you. THE COURT: Thank you very much. That was helpful. All right. What is DCM now again? Just remind of that. THE WITNESS: It's Deputy Chief of Mission, the number two person in an embassy. It's the ambassador's deputy. (Witness excused.) THE COURT: All right. Get the next one. THE DEPUTY CLERK: Bruce E. Thomas. BRUCE E. THOMAS, SWORN THE COURT: Who is going to handle this? Is that your witness. Ms. Hutchinson? MS. HUTCHINSON: If he want to just speak independently -- THE WITNESS: I would prefer to have you ask questions. MS. HUTCHINSON: All right. DIRECT EXAMINATION BY MS. HUTCHINSON Q. Can you state your name for the record and your position, where you're employed and your grade for us please. A. My name is Bruce E. Thomas. I am employed by the Department of State. I'm an FSO-1, and I'm currently assigned to the U.S. Embassy in Ankara, Turkey as political military counselor. Q. And Mr. Thomas, how long have you been employed with the Department of State? A. Since June or July 1979. App. 243 Q. And during that time have you had any experience with the system in terms of promotions and in your positions? A. Certainly, yes. Q. And can you tell us or tell the Court what your experience has been in term of promotion for you as an individual Foreign Service Officer? A. Well, you learn early on in the service that in order to be promoted, you have to be assigned to jobs that areas we refer to them career enhancing. If you, like I am, are a political officer, you have to be assigned to an embassy where there is something happening, something encompassing the vital interests of the United States. For instance, like Bosnia. If you are assigned to our embassy in Sarajevo, one cuuld reasonably expect to be promoted as a consequence of that assignment. Or if you served in El Salvador or the Philippines during the Philippine revolution. Wherever there is something of a vital nature happening, you have a reasonable expectation of being promoted. Q. And have you had an opportunity in your position to participate in the assignment process that gets individuals assigned to positions? A. In what way? Q. In terms of your particular assignments that you receive for your job, have you participated in the assignment system that the Department has? A. Weli, it's referred to as the open assignment system, but there is nothing open about it. As Alan described, the way most Foreign Service Officers are assigned to positions is they go to the bureaus, because they know someone in the bureau or there is someone who is connected to that bureau through previous service who can speak on that officer's behalf and the assignments are usually brokered in that way. App. 244 In other words, the bureaus generally have a preferred candidate for the high profile jobs that will get you promoted. Q. When was -- when did you get promoted to the FS-1 level? A. In October, 1993. Q. And prior to -- THE COURT: That was a good year. Everybody -- THE WITNESS: Yes, it's very curious, Your Honor. BY MS. HUTCHINSON Q. Now, prior to that time when was your last promotion? Do you recall? A. I believe it was in 1989. Q. And in terms of your particular experience, did you have any feelings or do you have an opinion as to whether or not being a black Foreign Service Officer had any effect on your employment. A. Certainly. Because I developed a corridor reputation during my first assignment in the Foreign Service because I raised some issues having to do with racial discrimination, not against me, but against someone else in the mission. Q. And who was the individual that you raised information about? A. I won't use a name, but it was a person employed by the United States Information Service, which is the arm of USIA overseas. THE COURT: This was a person you were befriending? THE WITNESS: This was a friend of mine, yes. BY MS. HUTCHINSON Q. And can you tell me in terms of this corridor reputation, what effect did that have? A. Well, in my next assignments, my first meeting with the ambassador, he said to me, I heard about all of that civil rights nonsense that you were involved in in Caracas, c App. 245 and I'd like to let you know that there won't be any of that here. And I asked him, what, Mr. Ambassador, civil rights? And he said, that's just what I'm talking about. I don't need that from you. THE COURT: Was he a career ambassador? THE WITNESS: No, he was a political appointee. BY MS. HUTCHINSON: Q. Now, in terms of you say corridor reputation, is that a formal practice in the Department or -- A. No, there is nothing formal about it. When the people who make decisions about who is to be assigned where, because of their positions in the geographic bureaus or in functional bureaus sit down to discuss informally assignments, they have lists that they compare, either lists in their heads or they have little notes that they've scribbled of the people who they prefer to put into those positions. Everyone knows that that is how the system works. Q. Is this corridor reputation, is it a term that people in the Department use on a regular basis? A. Certainly. In fact. I am certain that they have used that term on the sixth floor in the Director General's Office. They've talked about people's corridor reputations. THE COURT: Let me ask you. On this anecdote thai you mentioned about the ambassador. Had you been appointed to the job? THE WITNESS: Yes, sir, I had been assigned. THE COURT: And you were the DCM; is that -- THE WITNESS: No, no. It was only my second tour in the Foreign Service, and I was in a consular job, although tome as a political officer, so I was assigned to a consular position. And for a political officer or any other officer in his or her cone, if you are not competing against your contemporaries, then you are behind the curve. App. 246 THE COURT: Let me ask you this. Could you just help me a little bit. I've been so far away from this. What's the difference between a consular officer and a political officer? THE WITNESS: A consular officer is someone who performs consular functions, such as issuing visas or someone who may work in the area of American citizens services overseas, like registration of births, issuing passports, authentications and things of that nature. A political officer is someone who attempts to collect political intelligence for the use of the United States Government. THE COURT: And it's better to be a political officer than a consular officer? THE WITNESS: Some seem to think so, yes. THE COURT: In other words, do you get more leeway, more discretion? THE WITNESS: Difficult to say. Most ambassadors come from the political or economic cones, very few from the consular and administrative cones. THE COURT: And there is a so-called economic officer, too? THE WITNESS: They wouldn't call themselves so called. There are economic officers, yes. THE COURT: What do they call those fellows? What are they called? THE WITNESS: They call themselves economic officers, sir. THE COURT: They do? THE WITNESS: Yes. THE COURT: They're not supplied by the Treasury Department, are they? THE WITNESS: No. An Econ officer is an FSO and performs in the Econ cone. There are officers assigned to missions who perform commercial duties, and they are supplied to our missions abroad by the Department of Commerce. App. 247 THE COURT: I remember in one overseas trip I met a Treasury official at our embassy in Britain. Would that be normal or not normal? THE WITNESS: It depends on the size of the mission, Your Honor. Some of our larger embassies will have representatives of virtually every agency and department of the U.S. Government at that mission. So you could find -- THE COURT: A Treasury -- THE WITNESS: -- Treasury officials. There would be people from the Internal Revenue Service, FBI agents, Customs officials, people from the Department of Agriculture. It usually depends on the size of the mission. THE COURT: I see. I'm sorry. Go ahead. BY MS. HUTCHINSON Q. Now, what effect would the provisions concerning promotions have on you as an employee who is at an FS-1 level in this consent decree? A. I don't know that they would have any effect on me. Q. Are you -- also, your next promotion, would it be into the Senior Foreign Service level? A. Yes. Q. Okay. And if you don't get promoted to the Senior Foreign Service within your 20 year time span are you also -- will you have to leave the service? A. Well, I haven't applied for the Senior Foreign Service, simply because I know that in the last two years ! have not been assigned to jobs that have made me promotable. In fact, I wasn't eligible. But even with that, when the panel looks at you for promotion into the Senior Foreign Service, they will go back to the point where you became eligible, even though you were not considered until you apply. Q. So, when did you first become eligible? App. 248 A. Well, when I was promoted to FO-1, I knew that my first year of eligibility would be this year that I could apply for the Senior Foreign Service, but I chose not to do that. Q. And if you don't get promoted in a certain time period into the Senior Foreign Service, will you have to leave the Foreign Service. A. That's correct. THE COURT: That's eight years? THE WITNESS: I'm not certain. I believe the tick is between 20 and 22 years. I'm not absolutely certain of that point. THE COURT: And you've been how many years in service? THE WITNESS: I've been in the service for 17 years. THE COURT: Seventeen, so it would be five years then? THE WITNESS: I believe so. THE COURT: And since -- THE WITNESS: We'll it's from the time of teruring, sir. THE COURT: Pardon me? THE WITNESS: It's from the time of your tenuring. THE COURT: When was that? When were you tenured? THE WITNESS: I was tenured in 1984. THE COURT: So you would have until 2004. So that's about eight years. MS. HUTCHINSON: Yes, 2004. THE COURT: Let me -- well, since '93 what were your assignments, since you became an FS -- THE WITNESS: 1993 and 1994 I worked in the office of the Undersecretary for Political Affairs, Peter Turnoff as his special assistant for Latin America, the Caribbean and Africa. App. 249 THE COURT: That would seem to be a heck of a high position. Does it just sound that way or is it? THE WITNESS: No, it was a very good job, sir. THE COURT: Why wouldn't that put you in the position to get the next spot? THE WITNESS: Well -- THE COURT: Is it because of time? You haven't had that much time? THE WITNESS: No, it depends on what your principal wants to do on your behalf. If he or she we = to make phone calls to tell people that they would like you considered for a certain position, it's usually automatic that the person receiving a phone call from the Undersecretary of State for Political Affairs would get the message that he wants that person to get the job. If the Undersecretary chose to do so. THE COURT: Well, all right. But that obviously is something that the Undersecretary -- it's up to him [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2219%3A2. Public record. Not legal advice.