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February 15, 1980

ADOLPH KIZAS, et al ., Plaintiffs,
WILLIAM H. WEBSTER, et al ., Defendants.

The opinion of the court was delivered by: OBERDORFER




 This case involves the adoption of a new system in April, 1977, for the selection of Specil Agents ("sa") for the Federal Bureau of Investigation and the removal of a preference formerly accorded clerical employees for consideration for positions as Special Agents. Named plaintiffs are 48 individuals who were employed in clerical positions on or before the adoption of the New Special Agent Selection System ("NSASS"). They allege that abrogation of the preference constituted a taking from them of valuable property rights in violation of the fifth amendment. In an amended complaint, plaintiffs also allege that as an integral part of the NSASS, the FBI instituted an affirmative action program that permitted minorities and women to meet the initial requirements for qualification as SA by achieving a lower score than was required of other applicants, including clerical employees. Plaintiffs contends that implementation of NSASS constituted discrimination against them in violation of their right to equal protection as applied to the federal government through the fifth amendment. Plaintiffs seek declaratory and injunctive relief as well as money damages against defendants William H. Webster and Clarence Kelley, respectively the present and immediate past directors of the FBI, who were sued in their official and individual capacities.

 On May 15, 1979, this Court certified the case as a class action. The class was defined as clerical and support employees who entered FBI service before April 19, 1977, who were interested in positions as SA's and who understood as a condition of their employment that once they had met certain minimum requirements, they would be given preferential consideration for those positions. After briefing and oral arguments on the parties' cross-motions for summary judgment, the Court issued an Order on July 5, noting its conclusion that (a) a cause of action may be directly implied under the Constitution for violations of the fifth amendment alleged in this case; and (b) plaintiffs were not precluded from pursuing their constitutional claims based upon alleged violations of equal protection. The Court requested further briefing on a number of issues, in part to consider the implication of the Supreme Court's decision in United Steelworkers of America v. Weber, U.S. , 47 U.S.L.W. 4851 (June 27, 1979), decided a few days before oral argument, and to clarify the evidence with respect to the existence of an allegedly protected interest of plaintiffs and to supplement the record with respect to the immunity issue.

 The Court has concluded on the basis of material facts not in dispute that plaintiffs are entitled to summary judgment and to a declaratory judgment with respect to their claim of a protected property interest; defendants are immune from damage liability in their individual capacities. The motions of both parties for summary judgment on the equal protection and Title VII claims are denied and dismissed as unnecessary for the Court to resolve.

 By accompanying Order, the Court has scheduled a status conference at which the parties shall address the standards to measure plaintiffs' damages and the appropriate procedure and forum for adjudicating the damage claims in light of the limits imposed upon this Court's jurisdiction by the Tucker Act, 28 U.S.C. ยง 1491 (1976).



 At the time the FBI employed plaintiffs, and for a substantial time before that, the FBI had in place a system by which a person could become a Special Agent through any one of five qualifying programs that were based on prior education and experience as: (1) an accountant; (2) a lawyer; (3) a scientist; (4) a language specialist; or (5) having accumulated three years of professional, executive, complex investigative or other specialized experience following four years of college (the so-called modified program). The Bureau regarded satisfactory service as a clerical support employee as equivalent to other specialized experience; similar clerical experience outside the Bureau did not qualify as other specialized experience.

 Prior to April, 1977, the modified program was subdivided into two distinct groups: Bureau clerical employees and non-Bureau employees. When a Bureau employee satisfied the threshold requirements for the SA position--including age, a college degree, a drivers license, and the requisite service as a clerical employee-he was scheduled for further processing. This processing included written examinations, an interview, a physical examination and a background investigation. The Bureau graded performance on these tests on a pass/fail basis. Bureau employees who passed all phases of the examinations were considered fully qualified for appointment and were assigned a chronological ranking, based upon their date of qualification. The Bureau employed this ranking to select clerical employees for consideration as Special Agents when appointments were made from the modified program. Other modified program applicants were not give the benefit of the chronological ranking.

 Although this special program for Bureau support staff was modified in some particulars over the years, its essential features remained unchanged until April, 1977. At that time, former Bureau clerical employees constituted twenty percent of all Special Agents on duty.

 On April 19, 1977, the FBI implemented the "New Special Agent Selection System." The NSASS differed from the former selection system in two important respects: first, this system eliminated pass/fail examinations and the chronological ranking from which clerical members of the modified class were formerly selected and substituted a system in which all applicants were ranked competitively based on their combined test and interview scores, regardless of their date of qualification; second, the new system added two new selection programs, one for women and one for minority groups.

 For each selection program, the Bureau now sets a minimum score required to qualify for an interview. The combined test and interview scores are used to select applicants from each category. The Bureau sets the minimum scores for each category on the basis of the number of appointments to be made from each program and the number of applicants in each program pool. Although the minimum scores are adjusted periodically, at all times since the NSASS was adopted, applicants in the modified program, which is composed over-whelmingly of Bureau employees, have been required to achieve the highest test score of applicants in any program in order to qualify for an interview.

 Plaintiffs do not claim that the former system accorded them an absolute right to become Special Agents, regardless of their qualifications or the needs of the Bureau. Nor do the defendants deny that members of plaintiffs' class have fared less well under the nsass/. The assertions of the parties are more discreet: plaintiffs maintain that the former "objective method" of testing and qualification *fn1" / -- premised on pass/fail examinations and chronological ranking--guaranteed them a "preference" for consideration as Special Agents which was a valuable incident to their employment as support personnel.They assert that this preference was a valuable property right arising through implied contract and protected by the fifth amendment. They also allege that the particulars of the NSASS violate the constitutional guarantee of equal protection.

 Defendants do not dispute the existence of the former selection policy. Their description of the policy does not differ from plaintiffs' in any material respect. However, defendants dispute the conclusion that the policy constituted a preference to clerical employees. Defendants maintain, moreover, that however the policy is characterized, the Bureau was legally free at any time to alter it without hearing or compensation to those affected. Defendants deny that the NSASS impermissibly discriminates against plaintiffs on account of their race or gender.

 Findings of Fact:



 1. For many years prior to April, 1977, the Bureau maintained a special program by which clerical employees could qualify for positions as Special Agents. The Bureau never formally codified the program by regulation or its equivalent. However, this policy was generally known throughout the Bureau, and was communicated to prospective clerical employees through defendants' agents charged with recruiting new clerical employees. *fn2" / The Bureau further made the policy known by promulgating changes in the program by official memorandum. *fn3"

 2. The Special Agent Pre-Employment Task Force of the Bureau summarized the mechanics of the program as follows:

 The basic prerequisites of the support program as it exists today consist of the employee possessing a four-year resident college degree, reaching age 23, serving three years in a support capacity, and being favorably recommended during the course of a formal interview by both his division head and a representative of the Inspection Staff. Upon attaining these pre-requisites and having maintained an acceptable work record as a support employee, he is listed chronologically with other support employees that have achieved these basic prerequisites. The employee is then afforded the SA written examinations which are given to all applicants under the Modified Program. Upon receiving passing grades on these tests, he will be afforded a complete physical examination at a Government medical facility and, upon being certified for strenuous physical exertion, will be assigned to a New Agents Class dependent upon our needs and vacancies. *fn4"

 3. The Bureau maintained a list of support employees who had fully qualified for Special Agent consideration in all respects in chronological order based upon the date of qualification. The Bureau made all appointments as Special Agents from among clerical employees qualifying through the Modified Program in order from this list. *fn5"

 4. Other applicants in the Modified Program from outside the Bureau did not receive the benefit of this chronological ranking.

 5. The ability of support employees to qualify for Special Agent consideration by the "objective method" based on pass/fail examinations and chronological ranking constituted a valuable benefit to clerical employees in a number of respects: first, it assured employees who had met the minimum qualifications that they would be considered for appointment on the basis of seniority; second, when Special Agent classes had to be filled on short-notice, the existence of a listing of qualified applicants gave clerical employees a substantial practical advantage over non-Bureau applicants, whose availability and qualifications could not be so easily and quickly ascertained; *fn6" / third, the procedure afforded the clerical employees an opportunity to meet all qualifications before vacancies were available, thus reducing a prospective applicant's uncertainty about whether he met SA qualifications and providing an early opportunity to cure deficiencies; fourth, the Modified Program permitted Bureau employees to qualify for appointment on the basis of work experience that would not meet the minimum requirements for entrance under the Modified Program if obtained outside the Bureau; and, fifth, the selection procedure guaranteed to a clerical employee that once qualified for appointment, he could not lose his position on the appointment list to a subsequent applicant, even if that applicant was subjectively better qualified.

 6. The Bureau recognized that the program for clerical employees was an exception to its normal policy of competitive recruitment of Special Agents and conferred a preference to those employees. *fn7"

 7. The Bureau made the former selection program known to prospective employees through Special Agents in field offices who were directed to and did recruit persons for clerical positions. *fn8"

 8. The Bureau actively fostered expectations by its clerical employees that upon meeting the minimum qualifications for Special Agent, they would be given preferred consideration for appointment. The clerk-to-agent program was specifically listed in the Bureau's upward mobility manual. *fn9" / It was the stated policy of the Bureau to promote from within, except where a specific skill was required.

 On two separate occasions when the Bureau altered aspects of the Modified Program, it expressly made these changes prospective only. In a Memorandum to All Special Agents in Charge (SAC), dated February 13, 1973, the Bureau specifically excepted clerical employees then on duty from a change in the required period of Bureau employment from two to three years, and a reduction of the maximum age for applicants to 36 years. *fn10"

 Similarly, defendant Kelley, in a memorandum dated May 18, 1976, excepted clerical employees interviewed prior to March 2, 1976, from a requirement that clerical employees receive an overall interview rating of "outstanding" (rather than "above average") in order to be considered for SA through the Modified Program. *fn11"

 9. Many college graduates, otherwise over-qualified for clerical positions, entered service with the express purpose of qualifying for the Special Agent position through the Modified Program. *fn12" /$0 Many of these persons would not have accepted clerical positions or maintained employment were it not for their expectation that the program would continue. *fn13"

 10. The defendants were aware that many college graduates accepted support positions with the express purpose of qualifying for Special Agent through the Modified Program. *fn14"

 11. At various times subsequent to 1972, certain documents contained disclaimers with respect to the possibility of a clerical employee becoming an SA, and, on one occasion, officials were directed to deliver oral disclaimers to clerical applicants. *fn15" / These statements, however, suggested only that there could be no guarantee (1) that a clerical employee would become an SA "regardless of qualification"; *fn16" / (2) that the minimum requirements applicable to all SA candidates would remain the same; *fn17" / or (3) that because of the number of vacancies available, a clerical employee would be considered for appointment after serving three years in a clerical position. *fn18"

 None of these disclaimers or reservations was in any way inconsistent with the existence of the preference for clerical employees as it was widely understood; and none of these acts by the Bureau in any way suggested or put plaintiffs on notice that the preference would be removed. *fn19"

 12. At the time of plaintiffs' employment and beyond April, 1977, the Bureau had a need for clerical employees that was described on more than one occasion as "dire." *fn20"

 13. In order to meet the need for clerical employees, the Bureau undertook active recruitment efforts, including the deployment of SA's for full-time recruitment activities, *fn21" / recruitment quotas for each field office, *fn22" / and cash bonuses for specific recruitment efforts. *fn23" / The Bureau considered recruiting to be an aspect of each Special Agent's duties, regardless of whether he was assigned specific recruitment tasks. *fn24"

 14. In part to fill this need, the Bureau actively recruited college students and graduates for lower-level support and clerical positions (GS-2 and above). *fn25" / The employment of many of these persons was at a grade level below that which their education and experience would ordinarily have qualified them. *fn26"

 15. The Bureau knew that Special Agents, in the course of recruiting clerical and support personnel, made promises of special treatment for clerical employees with regard to Special Agent consideration that may have exceeded the preference in fact accorded by regular Bureau policy. *fn27"

 16. On December 3, 1976, 219 support personnel had met the qualifications for consideration as Special Agents through the Modified Program under the former selection system. *fn28"


 17. On April 15, 1977, defendant Kelley adopted and in October of that year implemented the NSASS. *fn29"

 18. The new system had been recommended by a Task Force appointed by Kelley. Its 16 members represented the Training, Finance and Personnel, Planning and Transportation, and Legal Counsel Divisions of the Bureau and six separate field divisions. Its mandate was to evaluate selection procedure for Special Agents and recommend changes.

 19. The purpose of the new system was to ensure that only the best qualified Special Agent applicants are ultimately chosen for that position.

 20. The NSASS eliminated the chronological ranking and selection of clerical employees qualified for the SA position. The Task Force considered and rejected a proposal that this change be implemented prospectively, in order to protect clerical employees who had qualified under the former selection procedure. *fn30"

 21. The NSASS established seven selection programs consisting of the five former qualifying programs and, in addition, one each for minorities and females.

 22.Under the Nsass,/ testing for the position of Special Agent is divided into a written examination and oral interview.

 23. An applicant may score 50 points on the written test with an additional 5 points available to veterans.

 24. In order to qualify for an interview, an applicant must attain a score equal to or greater than the minimum cut-off score for the relevant selection category. The minimum cut-off score for each category is determined by subtracting the maximum interview score (55) from an average appointment score by selection program.In practice, therefore, the score required to obtain an interview will depend upon the number of persons to be appointed from a particular selection program, the performance of other members of the selection group, and the number of applicants in that program.

 25. As of November 8, 1978, and March 1, 1979, the cut-off scores for each selection category were as follows: *fn31" Nov. 8, 1978 March 1, 1979 Female 31.50 31.50 Minority 31.50 31.50 Accounting 32.32 32.21 Law 32.44 32.90 Science 32.08 33.62 Language 35.08 31.50 Modified 37.38 38.94


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