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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 ...

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