[Federal Register Volume 69, Number 186 (Monday, September 27, 2004)]
[Notices]
[Pages 57714-57716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21603]


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DEPARTMENT OF JUSTICE

[EOIR No. 148]


Executive Office for Immigration Review; Notice of Class Action 
Judgment in Durnford v. Ashcroft

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Notice.

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SUMMARY: This notice presents the Notice of Resolution of the class 
action settlement in Durnford v. Aschroft, EEOC Case No. 100-2000-
07059X (formerly EEOC Case No. 100-A0-7059X). The Notice of Resolution 
of Class Action sets forth the rights of class members for this 
settlement. This notice is published to inform class members of the 
class action settlement.

DATES: This notice is effective September 27, 2004.

FOR FURTHER INFORMATION CONTACT: Further information about the 
Settlement Agreement is available from Class Counsel, Kator, Parks, & 
Weiser, P.L.L.C., 812 San Antonio St., Suite 100, Austin, Texas 78701, 
Telephone (512) 322-0600. Further information about the publication of 
this notice is available from Paula Hatch, Office of the General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, VA 22041, Telephone (703) 305-0322 (Ms. Hatch 
is not to be contacted about the terms of the Settlement Agreement).

SUMMARY: The Executive Office for Immigration Review (EOIR) is 
publishing this notice to inform class members in the class action 
entitled Durnford v. Ashcroft, EEOC Case No. 100-2000-07059X, of the 
settlement reached in that action. Details of this case are set forth 
in the ``Background of Litigation'' Section of the Appendix below.
    White male applicants for employment not selected as immigration 
judges during 1994 and 1995 are class members in this case. 
Applications for immigration judge positions posted on October 31, 1995 
or

[[Page 57715]]

later are not covered by this case. In order to receive monetary relief 
under the settlement agreement, a class member must submit a signed 
claim form and release. The claim form and release must be submitted to 
the claims administrator within 65 days of the notice of final approval 
of the class action settlement, which has not yet occurred.
    Monetary relief is available under the settlement agreement. There 
will be no injunctive relief under the settlement agreement. The 
monetary relief available to each class member will be determined by a 
Claims Administrator, following a distribution formula attached to the 
settlement agreement.

    Dated: September 17, 2004.
Kevin A. Ohlson,
Acting Director, Executive Office for Immigration Review.


    Note: The appendix to this notice contains the Notice of 
Resolution of Class Action, Exhibit 4 to the settlement agreement.

Appendix

    The following is the text of the Notice of Resolution of Class 
Action in the Durnford v. Ashcroft settlement agreement. The Notice 
of Resolution of Class Action is referenced as Exhibit 4 in the 
settlement agreement.

Notice of Resolution of Class Action

To: White male applicants for employment not selected as immigration 
judges during 1994 and 1995.
From: David Weiser and Jeremy Wright of Kator, Parks, & Weiser, 
P.L.L.C., 812 San Antonio St., Suite 100, Austin, Texas 78701.
    Michael J. Kator of Kator, Parks, & Weiser, P.L.L.C., 1020 19th 
Street, NW., Suite 350, Washington, DC 20036.
    Mike Milligan, 303 Texas Avenue, Suite 808, El Paso, Texas 
79901.
    Bruce I. Waxman, Chief Counsel, Employee/Labor Relations, Office 
of the General Counsel, Executive Office for Immigration Review, 
U.S. Department of Justice.

    Please Read This Notice Carefully. This notice is sent to you 
because your rights may be affected by a proposed settlement 
agreement.

Overview

Purpose of this Notice.

    This notice is given pursuant to 29 CFR 1614.204(g). You are 
being sent this notice because you may be a Class Member. The 
purpose of the notice is to advise you of a proposed settlement 
agreement (the Settlement Agreement) between the Class Agents and 
the United States Department of Justice, EOIR (the Agency), in the 
above-captioned class action before the Equal Employment Opportunity 
Commission (EEOC). This Settlement Agreement will affect the rights 
of all Class Members. This Notice describes the rights you may have 
under the Settlement Agreement and how you may assert those rights.

Recovery Under the Proposed Settlement Agreement

    The Settlement Agreement, which is attached, provides that the 
Agency will pay a total of eleven million five hundred thousand 
dollars ($11.5 million), which will be deposited into a Settlement 
Fund. This $11.5 million is the entire payment by the Agency to 
settle this case. This payment covers all damages, interest, and 
taxes, as well as costs, fees, and expenses incurred by the Class 
Counsel for the totality of the litigation. A Claims Administrator 
designated by Class Counsel will be solely responsible for the 
distribution of the funds according to formulas which are attached 
as an exhibit to the Settlement Agreement. There will be no non-
monetary relief.

Reasons for the Settlement

    Continuing with the litigation would incur additional delay, 
risk and increasing expenditure. The parties are vigorously at odds 
over liability and damages. The Settlement provides benefit and 
certainty to the Class now instead of prolonging the disagreement.

Class Member Information Session

    Class Counsel will host an information session for Class Members 
regarding the settlement on October 5, 2004 at 10 a.m. at the 
following location: Grand Hyatt Washington, 1000 H Street, NW., 
Washington, DC (``Metro Center''). Class Counsel will discuss in 
detail the terms of the Settlement Agreement and the distribution 
formula. Class Counsel will be available to respond to any questions 
or concerns of Class Members regarding the settlement. Class Counsel 
strongly encourages Class Members to participate in the information 
session.

Further Information

    Further information about the settlement Agreement and this 
Notice is available from Class Counsel Kator, Parks, & Weiser, 
P.L.L.C., 812 San Antonio St., Suite 100, Austin, Texas 78701, 
Telephone (512) 322-0600, Facsimile (512) 477-2828, e-mail IJ 
[email protected]. Neither the Agency nor the EEOC can provide 
additional details.

Background of Litigation

    Class Agent Lawrence D. Durnford, on behalf of himself and 
others similarly situated, filed an EEO complaint against the Agency 
on March 1, 1996, alleging discrimination on the basis of race 
(White) and sex (male). Mr. Durnford alleged discrimination in his 
non-selection for the position of immigration judge during 1994 and 
1995. After several years of litigation on procedural and class 
certification issues, on April 25, 2002, the EEOC Administrative 
Judge (AJ) defined the Class as ``White male applicants for 
employment not selected as immigration judges during 1994 and 
1995.''
    In September 2002, the EEOC AJ bifurcated the issue of liability 
from that of damages. That month, the parties entered into extensive 
liability-related discovery and preparation, which included deposing 
35 witnesses, including expert witnesses, the disclosure of 
extensive amounts of documents and the exchange of expert reports. 
During the pendency of discovery, Mark Glickman was added as a Class 
Agent. The hearing on liability, initially scheduled for June 2003, 
was stayed pending mediation by a private mediator. Mediation took 
place in Washington, DC and Austin, Texas.
    Throughout litigation, the Agency denied any wrongdoing or 
liability. The Class and the Agency disagreed as to liability and 
damages, including the amount recoverable if the Class prevailed and 
the calculation of monetary damages. In January 2004, after nearly 
nine years of litigation and five months of mediation, the Agency 
and the Class Agents reached an agreement in principle. The 
agreement in principle was the basis for the negotiations that led 
to the Settlement Agreement.

Summary of Settlement Agreement

    This Notice provides only a summary of the terms of the 
Settlement Agreement. While every effort has been made to ensure the 
accuracy of this summary, the specific terms of the Settlement 
Agreement shall govern. The Settlement Agreement is attached to this 
Notice. It will also be posted on the Web site of the Class Counsel 
at http://www.katorparks.com/durnford.htm and the Agency Web site at 
http://www.usdoj.gov/eoir.
    The Agency will deposit $11.5 million into a Settlement Fund, 
which Class Counsel will establish as a qualified Settlement Fund 
under Part 468B of the Internal Revenue Code. A Claims 
Administrator, to be designated by Class Counsel, will administer 
the funds according to provisions of a distribution formula set 
forth in Exhibit 7 to the Settlement Agreement. The formula 
allocates the recovery in proportion to the injury suffered by each 
Class Member. The amount to be distributed to each Class Member is 
not known at this time because it will depend on the number of Class 
Members who claim relief and the formula calculations particular to 
each Class Member. In addition, a portion of the Settlement Fund 
will be allocated to the Class Agents and other Class Members 
according to contributions made during the Class aciton litigation. 
There will be no injunctive relief.
    The Claims Administrator will have the sole authority to 
determine who is eligible to receive monetary relief. Anyone 
determined by the Claims Administrator to be a Class Member will be 
eligible to receive monetary relief. Pursuant to the Settlement 
Agreement and applicable regulations, no Class Member may opt out of 
the Settlement Agreement. However, any Class Member may elect not to 
receive the monetary relief afforded under this Settlement Agreeent. 
Any monetary relief that is unclaimed or rejected will be 
reallocated to the participating Class Members pursuant to the 
distribution formula, if feasible.
    Final Approval of the terms of the Settlement Agreement shall 
bind all Class Members, including those not seeking recovery from 
the Settlement Fund. The Settlement Agreement extinguishes all 
claims, of all Class Members and the Class

[[Page 57716]]

Agents, in the past, present, or the future against the Agency 
pertaining to the selection of applicants for the position of 
immigration judge during 1994 and 1995. Each Class Member wishing to 
receive monetary relief of any kind must first complete the Claim 
Form and Release, which is Exhibit 1 to the Settlement Agreement.
    Class Counsel are solely responsible for all aspects of the 
distribution of the monetary relief, including determining the 
distribution methodology set forth in Exhibit 7 to the Settlement 
Agreement and (by and through the appointed Claims Administrator) 
the determination of relief to be accorded each individual.
    Except as specifically stated otherwise in the Claim Form and 
Release, all information provided to Class Counsel for 
administration and distribution of the Settlement Fund shall be 
treated as confidential. The confidentiality provisions in the 
Protective Order issued by the EEOC AJ in the administrative case 
will continue to govern materials used in the mediation, 
negotiation, and administration of the Settlement Agreement.
    Under the Settlement Agreement, class counsel has designated the 
sum of three million nine hundred sixty-six thousand six hundred 
sixty-six dollars ($3,966,666) to be allocated to a Litigation Fund 
for attorneys' fees, costs and expenses out of the Agency's total 
payment of $11.5 million. In addition to attorney fees, this sum 
covers such items as the cost of the services of expert witnesses, 
deposition transcripts, travel, and mediation.
    The Settlement Agreement is subject to Final Approval by the 
EEOC AJ. The Settlement Agreement becomes effective upon the date 
that the EEOC AJ issues a decision approving the Settlement and all 
appeals have been finally determined or the time for filing appeals 
has expired. Once effective, the terms of the Settlement Agreement 
are binding on all Class Members, even those who do not seek 
recovery from the Settlement Fund.
    Class Counsel will be responsible for notifying Class Members of 
the EEOC AJ's Final Approval of the Settlement Agreement and 
providing Class Members with the Claim Form, Exhibit 1 to the 
Settlement Agreement, necessary to seek monetary relief from the 
Settlement Fund. This Claim Form, and the Release therein, must be 
executed and timely submitted in order to receive monetary relief.
    No funds shall be distributed until any administrative appeals 
of the EEOC AJ's Fianl Approval to the EEOC have been fully and 
finally resolved or the time for such appeal has passed, and/or the 
Agency has affirmed the Settlement Agreement, and/or the Agency's 
opportunity to abrogate the Settlement Agreement has expired, 
pursuant to part VII of the Settlement Agreement.
    Although the Claims Administrator will withhold monies for 
payments of FICA, income and employment taxes (if any), each 
individual receiving an award from the Settlement Fund shall be 
ultimately responsible for satisfying all personal tax obligations.

Rights of Class Members

Seek Monetary Relief or Do Nothing

    You may seek monetary relief provided you qualify for allocation 
under the distribution formula and timely submit the Claim Form and 
Release. You must submit a signed Claim Form and Release to obtain 
monetary relief under the Agreement. Despite your eligibility, you 
may elect to not seek monetary relief.

Object to the Settlement Agreement

    If you object to any terms within the Settlement Agreement 
because you believe they benefit only the Class Agents or are 
otherwise not fair, adequate and reasonable to the Class as a whole, 
you must file a written petition to vacate the Settlement Agreement, 
postmarked no later than 30 days from the date of this notice of 
resolution.\1\ The petition should be sent to Administrative Judge 
Richard E. Schneider, Equal Employment Opportunity Commission, 
Washington Field Office, 1801 L St., NW., Suite 100, Washington, DC 
20507-1002.
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    \1\ The notice of resolution is dated September 15, 2004. This 
statement does not refer to the date of publication in the Federal 
Register.
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    You must also send a copy of any objection to Class Counsel: 
David Weiser, Kator, Parks, & Weiser, P.L.L.C., 812 San Antonio St., 
Suite 100, Austin, Texas 78701; and to Agency Counsel: Bruce I. 
Waxman, Chief Counsel, Employee/Labor Relations, U.S. Department of 
Justice, Exeuctive Office for Immigration Review, Office of the 
General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 
22041.
    If you do not submit your objection in a timely manner, you 
waive your opportunity to present such objection or otherwise 
appeal. Your objection must show proof that you are a Class Member, 
state the basis for any objection, and provide documentation to 
support the objection.

Fairness Hearing

    Pursuant to 29 CFR 1614.204(g)(4), the Administrative Judge will 
hold a hearing to determine the fairness, adequacy, and/or 
reasonableness of the Settlement Agreement on November 5, 2004, at 
the Embassy Suites Hotels, 1900 Diagnoal Road, Alexandria, VA, 22314 
at 10 a.m.
    If the EEOC AJ grants final approval to this Settlement 
Agreement despite objections or a petition to vacate, you will only 
be permitted to appeal the determination of Final Approval if you 
filed an objection or a petition to vacate with the EEOC AJ. The 
EEOC AJ will determine the rights of the Class Members with respect 
to the matters covered by the Settlement Agreement, and all Class 
Members are bound by the judgment.

[FR Doc. 04-21603 Filed 9-24-04; 8:45 am]
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