707 F.2d 524 (D.C. Cir. 1983), 82-1477, Kizas v. Webster

Docket Nº:82-1477, 82-1511.
Citation:707 F.2d 524
Party Name:Adolph KIZAS, et al. v. William H. WEBSTER, et al., Appellants. Adolph KIZAS, et al., Appellants v. William H. WEBSTER, et al.
Case Date:April 26, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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707 F.2d 524 (D.C. Cir. 1983)

Adolph KIZAS, et al.


William H. WEBSTER, et al., Appellants.

Adolph KIZAS, et al., Appellants


William H. WEBSTER, et al.

Nos. 82-1477, 82-1511.

United States Court of Appeals, District of Columbia Circuit

April 26, 1983

Argued Jan. 14, 1983.

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Philip L. Chabot, Jr. and Mark S. Laufman, Washington, D.C., for appellants in 82-1511 and appellees in 82-1477.

Marleigh D. Dover, Atty., Dept. of Justice, with whom Stanley S. Harris, U.S. Atty. and Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees in 82-1511 and appellants in 82-1477.

Before WALD and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court in parts I and II filed by Senior Circuit Judge BAZELON.

Opinion for the Court in part III filed by Circuit Judge GINSBURG.

BAZELON, Senior Circuit Judge:

For many years, the Federal Bureau of Investigation ("FBI" or "Bureau") accorded a "special preference" to its clerical and support employees when making appointments to the position of Special Agent ("SA"). The Bureau substantially modified this preference in 1977 by adopting more stringent SA selection criteria and by implementing an affirmative SA hiring program for women and minorities. Adolph Kizas et al., representing a class of present and former FBI employees, challenge these changes. Named as defendants are FBI Director William H. Webster, former Director Clarence J. Kelley, and the United States of America.

In Number 82-1477, Webster et al. appeal a judgment of the district court holding that the modification of the special preference constituted a "taking" of the employees' "property" in violation of the fifth amendment and the Tucker Act. 1 In Number 82-1511, the employees cross-appeal an accompanying judgment dismissing their claim that the affirmative hiring program violates the fifth amendment and Title VII. 2

For the reasons set forth below, we (1) reverse the district court's determination that the employees possessed vested property rights in the former special preference, compensable under the fifth amendment's takings clause or the Tucker Act; and (2) affirm the district court's dismissal of the employees' equal protection and Title VII challenges to the Bureau's affirmative hiring program.


  1. The Controversy

    The FBI recruits Special Agents 3 through a variety of "programs" based on

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    professional skills. 4 Candidates are eligible for consideration in the "Modified Program" if they are at least twenty-three years old, have a college degree, and have at least three years of "professional, executive, complex investigative or other specialized experience." 5 Candidates meeting these threshold requirements undergo a battery of qualifying examinations, and are then competitively rank-listed. Once the Bureau determines the number of Modified Program slots in a given SA training class, 6 candidates from the list are considered for appointment in rank-order. 7

    Until 1977, a "special preference" governed the participation of FBI employees in the Modified Program. This preference, developed as part of the Bureau's Upward Mobility Plan, 8 permitted clerical and support personnel to count their time with the Bureau toward satisfaction of the professional experience requirement; outside clerical work, on the other hand, was not considered "professional" experience. Moreover, Bureau employees' qualifying examinations were evaluated on a pass/fail basis; the examinations of other SA candidates were graded on a competitive scale. Finally, Bureau employees who passed the examinations were considered for appointment on a chronological basis, according to their date of qualification; other SA candidates were considered in competitive rank-order.

    These features of the special preference were an attractive incident of employment with the FBI. 9 The parties agree that

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    many college graduates joined the Bureau as clerical and support personnel in order to take advantage of the preference. The parties part company, however, in their perceptions of the Bureau's encouragement of this practice. The employees contend that the Bureau offered the preference "as a recruitment device in order to entice the highly-qualified, college-trained plaintiffs to accept positions at the clerical level," and that they "would not have accepted work at the FBI if the promises for advancement had not been made." 10 The Bureau vigorously responds that it "neither gave any assurances that the then current requirements of the Modified Program would remain in effect, nor gave any guarantees that applicants would become Special Agents when qualified." 11 The employees counter, and the district court agreed on summary judgment, that these disclaimers merely went to the likelihood of appointment once an employee had qualified for the special preference, and did not sufficiently indicate that the preference itself might be modified. 12

    An FBI "Ad Hoc Task Force" unanimously concluded in 1976 that the special preference system should be overhauled. 13 Specifically, the group found that the system (1) was not ensuring the appointment of the best qualified Modified Program candidates to the Special Agent position, and (2) had caused morale problems among the Bureau's career personnel to reach a "critical state" by "erod[ing] the true meaning of career development and upward mobility for our experienced career-minded employee." 14

    Acting on the Task Force recommendations, Director Kelley ordered implementation of a "New Special Agent Selection

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    System" ("NSASS") in April 1977. 15 The NSASS has "radically" changed the Bureau's Upward Mobility Plan. 16 Although clerical and support employees can still count their time with the Bureau toward satisfaction of the professional experience requirement, pass/fail examinations and the chronological ranking system have been eliminated. Under the NSASS, Bureau employees seeking an SA appointment pursuant to the Modified Program are competitively ranked with all other Modified Program applicants on the basis of test and interview scores.

    Clerical and support personnel who had qualified for chronological consideration under the old system registered several complaints with the Bureau, requesting that their preferential status be "grandfathered." 17 The Bureau rejected these suggestions on the grounds that (1) the employee morale problems engendered by the old system demanded immediate rectification, and (2) the goal of selecting "only the best qualified individuals ... for further consideration" should proceed without delay. 18

    When the Bureau first implemented the NSASS in 1977, just over one percent of Special Agents were women, and fewer than five percent were minorities. Concluding that "certain investigative functions could be performed more effectively by particular minorities or by women," and that the SA force should on principle be "as representative of the community as possible," the Bureau modified the NSASS by adding two affirmative hiring programs--"Female" and "Minority"--to the existing SA selection programs. 19 The Bureau set the test score cut-offs for applicants in the new programs at a lower level than those for applicants in the other programs. 20

  2. The District Court Proceedings

    On May 31, 1978, a group of clerical and support employees filed a class action in district court against Director Webster and

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    former Director Kelley in their individual and official capacities. 21 Invoking general federal question jurisdiction, 22 the employees argued that their "expectation of special consideration was a property interest that arose out of their employment contract[s]" with the Bureau. 23 Webster and Kelley, they argued, had "unilaterally revoked" this property interest "without compensation or procedure" as required by the fifth amendment. 24 The employees sought relief in the form of (1) money damages for lost income and advancement and for violation of their constitutional rights, (2) an injunction preventing Webster "from continuing his unlawful acts," and (3) a writ of mandamus directing Webster to fulfill his "contractual obligation." 25

    The employees subsequently filed an amended complaint, which repeated in its first count ("the takings count") the allegations of the original complaint, and alleged in its second count ("the discrimination count") that the Bureau's affirmative hiring program for women and minorities violated Title VII 26 and the equal protection component of the fifth amendment's due process clause. 27 The amended complaint sought the identical relief requested in the original complaint.

    In a pre-judgment order, the district court held that the employees could pursue a Bivens-type action for damages, 28 implied directly from the fifth amendment's takings clause, 29 against Webster and Kelley. 30 On cross-motions for summary judgment, the court then held that the employees possessed "vested contractual rights" in the special preference accorded them under the former upward mobility system. 31 Because the preference was "a significant element of compensation," the court reasoned, "[t]he Bureau could no more take [it] away ... without liability than it could refuse to pay an agreed amount of salary to one of its employees." 32 The court also concluded,

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    however, that although Bivens damages for this "taking" could be awarded against Kelley and Webster in their official capacities, a qualified good-faith immunity shielded them from individual liability. 33

    Turning to the employees' request...

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