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;
/ 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.
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.
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.
/ 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.
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.
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.
/$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.
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.
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.
/ These statements, however, suggested only that there could be no guarantee (1) that a clerical employee would become an SA "regardless of qualification";
/ (2) that the minimum requirements applicable to all SA candidates would remain the same;
/ 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.
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.
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."
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,
/ recruitment quotas for each field office,
/ and cash bonuses for specific recruitment efforts.
/ The Bureau considered recruiting to be an aspect of each Special Agent's duties, regardless of whether he was assigned specific recruitment tasks.
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).
/ The employment of many of these persons was at a grade level below that which their education and experience would ordinarily have qualified them.
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.
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.
17. On April 15, 1977, defendant Kelley adopted and in October of that year implemented the NSASS.
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.
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:
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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