Petition for Writ of Certiorari — Orr v. Turner

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95-177 Pie

FILED

me JUL 31 1985

In the Supreme Court of the United States.

OCTOBER TERM, 1985

VERNE ORR, SECRETARY OF THE AIR FORCE, ET AL.,

PETITIONERS

VU.

WILLIAM C. TURNER, ET AL.,

PETITION FOR A WRIT OF CERTIORARI TO THE

UN®YTED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CHARLES FRIED

Acting Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney

General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARK W. PENNAK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

- BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether Section 706(g) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e-5(g¢), for-

bids a court, when construing a consent decree en-

tered in a suit brought under Title VII against a

public employer, from awarding a preference in pro-

motion and other relief on the basis of race to a

person who is not an actual victim of the employer’s

discrimination.

2. Whether the Due Process Clause of the Fifth

Amendment forbids a court, when construing a con-

sent decree entered in a suit against a federal em-

ployer, from awarding a preference in promotion on

the basis of race to a person who is not an actual

victim of the employer’s discrimination.

(I)

PARTIES TO THE PROCEEDING

The current case arises from an adjudication of a

claim filed by Raymond Little for an alleged violation

of a consent decree entered in 1981 in settlement of

a class action suit challenging civilian employment

practices at Eglin Air Force Base, Florida, under

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq. The defendants to the original suit

were the Secretary of the Air Force and the Director

of the Office of Personnel Management. The named

plaintiffs in that original suit were William C.

Turner; James G. Tanner; Robert A. Levis; Freddie

L. Cason; Charles A. Parker; Flora D. Bridges; Lor-

enzo Jones; Martha Ann Rodgers; Fredia Copeland;

Juanita Mathis; Jo Ann Valentine; James A. Skin-

ner; Novella Lewis; George L. E. Parks; Essie E.

Bethune; James C. Cherry; James Baker; Michael

W. Reynolds; National Association for the Advance-

ment of Colored People, Fort Walton Beach Chapter;

and the Progressive Community Improvement Or-

gai:ization of Fort Walton Beach, Florida. The class,

as certified by the district court, consists of “[a]I1l

Negroes who were employed as civilians by the Eglin

Air Force Base [Florida] on January 9, 1976, or at

any time thereafter, all Negroes who could have filed

administrative complaints of discrimina*ion against

Eglin Air Ferce Base on January 9, 1976, or at any

time thereafter, and all Negroes who may in the

future apply for employment at the Eglin Air Force

Base” (App., infra, 36a).

TABLE OF CONTENTS

Page

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pons snhtaniecuncncdusncvatheus 1

Constitutional and statutory provisions involved .......... 2

Sa ss wc auaacdnabblvansieacbbaccaaee 3

Reasons for granting the petition ............... AN RE a 12

ENR SECA R ES 25

a Sa HE Sa la

casa Sasnicnssuenaennennes 19a

Tene ee eT ential Narlllanhannansiie 21a

se ctnienaabcaotnvmnnoapannanies 23a

Tee ead iki pcacug nahaceesachshisierknnkontionian 3la

Ne as acca binsnmmeianatansnenes 35a

TABLE OF AUTHORITIES

Cases:

Arizona Governing Comm. Vv. Norris, 463 U.S.

ATEN aS RR Hier Matra oo eN 15

Barrows V. Jackson, 346 U.S. 249 .............................. 23

I A MS MO, OD conn cncancenncnccaarecenens 18

Carson V. American Brands, Inc., 450 U.S. 79... 21

Connecticut v. Teal, 457 U.S. 440 ..00000......... eee. 15

East Texas Motor Freight System, Inc. v. Rodri-

Neen Te ee een ees cas sivwudsnckananonenLaseccanens il

Firefighters Local Union No. 1784 v. Stotts, No.

82-206 (June 12, 1984) .......0000... ee... 11, 12, 14, 15, 18,

19, 20, 21, 25

Ford Motor Co. v. EEOC, 458 U.S. 219 ..................... 15, 19

Franks v. Bowman Transp. Co., 424 U.S. 747 .......... 14, 16

Fullilove v. Klutznick, 448 U.S. 448 20000000000... 22

Generali Bldg. Contractors Ass’n Vv. Pennsylvania,

Ne oc dataudaunsahucaienens 17, 23, 24

Hills v. Gautreaux, 425 U.S. 284 ...........0000.....002...... 17

(III)

Cases—Continued : Page

Insurance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 .......002..2222e ee. 21

Los Angeles Dep’t of Water & Power v. Manhart,

A ER Ria eae oem Same ics ~ NORA Ive REL 15

Milliken v. Bradley, 483 U.S. 267 ......................-.-.-- 23

Palmore v. Sidoti, No. 82-1734 (Apr. 25, 1984) ...... 23

Pope V. United States, 328 U.S. 1 .............................. 21

Shette ¥. Krmomer, BOG UB. Y: uncccccsncscccccieescsccncnenns 21, 23

System Federation No. 91 v. Wright, 364 U.S. 642.. 21

Teamsters V. United States, 431 U.S. 324....4, 11, 14-15, 19

United States v. ITT Continental Baking Co., 420

a IEE Ss scennsescrcescltvad acralikacmabl clei eh le et es 21

United States v. Swift & Co., 286 U.S. 106 ............ 21

United Steelworkers Vv. Weber, 443 U.S. 193 ...... ..12, 22, 23

Vanguards Vv. City of Cleveland, 753 F.2d 479, peti-

tion for cert. pending, No. 84-1999....11-12, 13, 14, 15, 25

Wygant v. Jackson Bd. of Educ., cert. granted,

No. 84-1340 (Apr. 15, 1985) ................ 14, 22, 23, 24, 25

Constitution, statutes, regulation and rule:

U.S. Const. :

UTNE sie ye 2,10, 12, 24

BP UCI CD anna iw vss nsceecceesicsi nimi 21

A | eébectecnnninteteectscghatndaeitleniatenss 12

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

Oe TI schcctccansco tine acledhahainedobeles pc btalaiak 3

§ 703 (h), 42 U.S.C. 2000e-2 (h) -................0000..... 11, 16

§ 706 (g), 42 U.S.C. 2000e-5 (g)......2, 11, 12, 13, 15, 16,

18, 19, 20, 24, 25

§ 717(a), 42 U.S.C. 2000e-16 (a) _..........222e.... 2

§ 717 (c), 42 U.S.C. 200038-16 (c) ...........222..22..-. 2

§ 717(d), 42 U.S.C. 20003-16(d) .......... 3

I as at 21

AF. Rew. 40-385 (tov. 18, 1900) .......<.................... 16

se a Be I nes cece hainicsiiniinsnescieescenaisaniiees aisieaineets 5

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No.

VERNE ORR, SECRETARY OF THE AIR FORCE, ET AL.,

PETITIONERS

WILLIAM C. TURNER, ET AL.,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Acting Solicitor General, on behalf of the Sec-

retary of the Air Force and the Director of the Office

of Personnel Management, petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-18a) is reported at 759 F.2d 817. The order of -

the district court (App., infra, 2la-22a) is unre-

ported. The orders of the special master (App.,

infra, 23a-34a) are unreported.

JURISDICTION

The judgment of the court of appeals (App., infra,

19a-20a) was entered on April 18, 1985. On July 11,

(1)

1985, Justice Rehnquist extended the time within

which to file a petition for a writ of certiorari to

and including August 16, 1985. The jurisdiction of

this Court is invoked under 28 U.S.C, 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

1. The Fifth Amendment provides in pertinent

part:

No person shall *** be deprived of life, liberty,

or property without due process of law * * *.

2. Section 706(g) of the Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e-5(g), provides

in pertinent part:

No order of the court shall require the * * * hir-

ing, reinstatement, or promotion of an individual

as an employee, or the payment to him of any

back pay, if such individual was * * * refused

employment or advancement * * * for any rea-

son other than discrimination on account of race,

color, religion, sex, or national origin * * *.

3. Section 717(a) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e-16(a), provides in per-

tinent part:

All personnel actions affecting employees or ap-

plicants for employment * * * in military depart-

ments as defined in section 102 of title 5, in

executive agencies as defined in section 105 of

title 5 * * * shall be made free from any dis-

crimination based on race, color, religion, sex, or

national origin.

4. Section 717(c) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e-16(¢), provides in per-

tinent part:

[A]n employee or applicant for emplcyment, if

aggrieved by the final disposition of his com-

plaint, or by the failure to take final action on

his complaint, may file a civil action as provided

in section 2000e-5 of this title, in which civil

action the head of the department, agency, or

unit, as appropriate, shall be the defendant.

5. Section 717(d) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e-16(d), provides:

The provisions of section 2000e-5(f) through

(k) of this title, as applicable, shall govern civil

actions brought hereunder.

STATEMENT

1. The case arises out of a complaint filed by re-

spondent Raymond Little’ alleging that petitioners

had violated the terms of a consent judgment en-

tered on January 12, 1981. That consent judgment

was entered in settlement of a class action suit

brought under Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seq., against, inter alia, the

Secretary of the Air Force, for allegedly discriminat-

ing against civilian black employees and job appli-

cants at Eglin Air Force Base, Florida, in connection

with hiring, promotion, and cther employment-related

matters.” The class of plaintiffs certified by the dis-

trict court included all blacks who had been employed

at the base or who could have complained that they

had been the victim of discrimination, as well as “all

Negroes who may in the future apply for employ-

1 Although there were numercus parties involved in the

original class action suit and the class defined by the district

court includes future job applicants, Raymond Little is the

only claimant involved in this particular suit.

? The consent judgment is reprinted in the Appendix, infra,

35a-69a.

ment” at the base (App., infra, 36a). However, the

consent judgment expressly recites that the decree

“is not premised upon a judicial finding of systemic

discrimination against plaintiffs or the class they rep-

resent” (id. at 37a).

The judgment contained several sections, which

address both the past and future conduct of the par-

ties. For instance, the decree required the parties to

make every reasonable effort to identify wnsuccessfu!

black applicants for employment at the %@se and

blacks who would have applied, but did not, ‘ecause

they believed that doing so would have been futile *

from March 24, 1972, until the date of the judgment

(App., infra, 40a-42a). The judgment also created

a fund to compensate those members of the plaintiff

class (id. at 42a-47a) and gave priority in hiring

decisions to “100 class members * * * who have been

previously rejected or dissuaded from employment”

at the base (id. at 47a; see id. at 47a-50a). The

defendants agreed “to make a good faith effort” to

achieve and maintain during the life of the decree

minimum, specified proportions of blacks for specific

job categories (id. at 50a; see id. at 50a-54a). In

Section X, the defendants also agreed to “make ev-

ery good faith effort” to promote blacks to super-

visory positions “in proportion to the percentage of

blacks in the occupancy category wherein the vacancy

arises” (id. at 59a; see id. at 59a-61a, 65a).

The decree also created a mechanism for resolving

disputes arising out of its implementation. Under

Section IX, complaints that the judgment has been

violated may be brought by the Plaintiffs’ Monitor-

3 This determination was to be made in accordance with the

guidelines established by Teamsters v. United States, 431

U.S. 324 (1978), and related cases (App., infra, 41la-42a).

ing Committee (PMC) before a special master, ap-

pointed pursuant to Fed. R. Civ. P. 53 (see App.,

infra, 58a), who is empowered to determine whether

a violation has occurred and, if so, to award “all

appropriate relief” (ibid.). Section VII creates spe-

cific procedures for determining when a failure to

meet the goals constitutes a violation of the decree,

essentially excusing such failures where the defend-

ants have made “every reasonable effort to recruit

and obtain black applicants” and “candidates could

not reasonably be made available for selection oppor-

tunities” (id. at 58a). The consent judgment also

establishes a guide for construction of its terms, pro-

viding that “[i]n interpreting the provisions of this

Judgment which may become disputed among the

parties, the law as set forth by Title VII of the Civil

Rights Act of 1964 as construed by the courts, shall

apply” (id. at 39a-40a).

2. a. In early 1982, respondent, an air condition-

ing mechanic at Eglin Air Force Base, applied for a

promotion to the position of “Air Conditioning Equip-

ment Mechanic Fcreman” (App., infra, 23a). Re

spondent, along with the other applicants, was con-

sidered for that pesition by a three-person selection

committee, which evaluated his qualifications on the

basis of his performance evaluations and his re-

sponses to questions put to him at a personal inter-

*The position was originally designated as a temporary

position, because it was listed among the “critical military

skills” category of positions, which cannot be filled by civilian

personnel on a permanent basis. See 1 Tr. 65-66; 3 Tr. 222-

225. After that position had heen filled, it was taken off that

list, and the person then holding the job (Arthur Kelly) was

elevated to permanent status. See, e.g., 1 Tr. 66-68, 79-80;

3 Tr. 166-167, 225-226.

view (see id. at 24a-25a).° Respondent was not

selected, and the position was filled by a white apyli-

cant, Arthur Kelly, on the basis of his superior qual-

ifications.°

b. In September 1983, the PMC filed a complaint

on respondent’s behalf with the special master, alleg-

ing the “[b]y not promoting [respondent] to the po-

sition [filled by Kelly], the [petitioners] failed to

‘recruit, hire, and maintain’ the required percentage

of black employees in the Craftsman category at the

supervisory level” (R.E. 51).7 Following an eviden-

tiary hearing, the special master ruled in respond-

ent’s favor in an order issued on October 25 (App.,

infra, 23a-39a).

The special master found that respondent was a

member of the plaintiff class, as defined by the decree,

that the position for which respondent had applied

was within the scope of the consent judgment’s goals,

and that repondent was qualified for that position

(App., infra, 24a-25a).* The master also held that

5 See also, e.g., 3 Tr. 139-140, 158-159, 177-178, 196-197;

10/7/83 Tr. 3-4, 5-7.

6 The master assumed, but did not decide, that Kelly was

more qualified for the position than respondent (App., infra,

29a). However, both Howard Brooks, the selec.iion committee

chairperson, and Sgt. James Sneed, another member of the

committee, testified that Kelly was the committee’s unanimous

choice for the position, on the ground that he was the most

qualified applicant. 3 Tr. 140-143, 181-182, 187.

7 The complaint also alleged that petitioners had also vio-

lated the decree by failing to promote respondent to another

foreman position ultimately given to a different applicant,

Gerald Dickey (R.E. 2). “R.E.” refers te the record excerpts

filed in the court of appeals.

8The special master reserved decision on the question

whether temporary positions were covered by the consent

petitioners had violated Section X of the consent

judgment, which requires petitioners to make every

“good faith effort” to promote blacks to supervisory

positions where the percentage of blacks in those

positions was less than a certain fixed ratio (id. at

28a).° Petitioners had violated the decree, the master

held, by failing to inform the selection committee that

the position of air conditioning foreman was listed

among the “goals” of the consent judgment (ibid.).

The master also rejected as legally insufficient peti-

tioners’ defense that they were entitled to select Kelly

because he was more qualified than respondent, on

the ground that the “good faith efforts” provision of

the judgment required more of petitioners than the

avoidance of discrimination (ibid.). Construing that

provision to allow petitioners to select the most qual-

ified candidate, which the master assumed was Kelly,

not respondent (id. at 29a), would render that provi-

sion superfluous since -he decree already forbade dis-

crimination. However, the master did not find that

respondent was denied the promotion because of his

race; nor did the master find that the respondent

would have been promoted “but for” the petitioners’

judgment, but held that this position was subject to the decree,

because petitioners had “admitted that at some point in time

the position should have been subject to the Consent J udgment

goals” (App., infra, 27a).

* The consent judgment set a hiring goal of 6% for the

craftsman category (App., infra, 51a). Under Section X,

petitioners agreed to make “every good faith effort” to fill

supervisory positions “in proportion to the percentage of

blacks in the occupational category wherein the vacancy

arises” (id. at 61a). The special master found that, during

the relevant time period, the number of blacks in the crafts-

man category was 5.67%, while the number of black super-

visors in that category wus 4.46% (id. at 25a).

failure properly to consider respondent’s application.

The master did not impose any remedy in his Octo-

ber 25 order. Instead, he directed the parties to re-

solve this issue.”®

ce, On November 28, 1983, after the parties were

unable to agree upon the appropriate remedy, the

master issued a second order, requiring petitioners

to promote respondent to a newly vacant foreman

position, and to award him retroactive seniority, back

pay, and “other appropriate relief’ from the date

that the position was filled by Kelly (App., infra,

31a-34a)." In that order, the master did not con-

sider whether alternative remedies would have fully

compensated respondent ‘or the violation that the

master had found, such as requiring petitioners to

reconsider respondent for a foreman _ position.

Rather, the master simply awarded respondent the

job outright.”

d. Petitioners appealed the special master’s Octo-

ber 25 and November 28 orders to the district court,

which affirmed the master’s orders (App., infra, 21a-

10 Given his conclusion that petitioners nad violated the con-

sent decree by selecting Kelly rather than respondent, the

master held that it was unnecessary to decide whether peti-

tioners had violated the consent judgment by selecting Dickey

rather than respondent for a different supervisory position

(App., infra, 29a).

11QOn November 8, the master orally directed petitioners to

place respondent in that position (App., infra, 32a). The

master’s November 28 order (which was dated November 14,

but not entered until November 28) was entered nunc pro

tune for November 8 (id. at 34a).

12 The master also denied petitioners’ mction for a stay of

his November 28 order (App., infra, 32a-34a).

22a). The district court upheld the master’s finding

that petitioners had violated the “good faith efforts”

provisions of the consent decree, on the ground that

the finding was not clearly erroneous (id. at 22a).

The court also sustained the relief awarded in the

master’s November 28 order on the ground that it

was “appropriate and supperted by legal authority”

(ibid.).

3. The court of appeals affirmed (App., infra,

la-18a). At the outset, the court upheld, as not

clearly erroneous, the master’s finding that petition-

ers had violated the “good faith efforts” provision

of the decree (id. at 4a-9a). The court explained

that petitioners’ failure to inform the selection com-

mittee that the position was subject to the consent

decree’s goals, or to take a variety of other steps to

ensure that respondent would be adequately con-

sidered for the position, violated the decree (id. at

6a)."* The court also agreed with the master that the

“good faith efforts” provisions did not allow peti-

tioners simply to select the most qualified applicant

for the position, on the ground that construing the

13 The court did not define the term “good faith efforts” for

purposes of the decree, but stated that petitioners could have

taken a variety of procedural steps to satisfy that requirement

(App., infra, 8a). As the court explainad (ibid.), “[{t]he Air

Force could have notified the supervisors that the consent

judgment goals applied to the vacancy, it could have taken

the time to interview Little thoroughly and to review his per-

sonnel file to learn of his supervisory experience, it could have

included minority members in the selection committee, it could

have evaluated carefully its selection criteria to determine if

the extra years of experience of the individual selected really

made him ‘better qualified’ than Little with his better educa-

tion and ample experience.” The master made no findings in

this regard, however.

judgment in that fashion would nullify the “good

faith efforts” provision (id. at 7a). In addition, the

court rejected the argument that the “good faith

efforts” provision of the decree was aspirational and

that the master’s order had construed that provision

to require promction “preferences” or “quotas” in

violation of Title VII and the Fifth Amendment

(App., infra, 8a-9a). In the court’s view, the master

had simply found as a matter of fact that petitioners

had failed to exhibit good faith on the facts of this

case (id. at 8a). Accordingly, the court held that it

was unnecessary in this case to decide whether the

master’s order could be upheld if it had required that

class members be afforded preferential treatment on

the basis of their race (id. at 8a-9a). |

The vourt next held that the relief awarded by |

the master was authorized by Section IX, paragraph

4, of the consent judgment (App., infra, 58a), which

empowers the master “to award all appropriate re-

lief’ for a violation of the decree (id. at 9a-10a).

Petitioners had argued that the master’s authority to

award “appropriate relief’ was limited by Section

706(g) of Title VII. The court rejected that argu-

ment, reasoning that “Title VII’s remedy provisions

are * * * of no assistance in determining what relief

is ‘appropriate’ for the * * * violation of [a] consent

judgment” because ‘Title VII deals with discrimina-

tion, not with violations of consent judgments” (App.,

infra, 10a). The remedial provisions of Title VII, the

cout thus held, are “of no assistance in determining

what relief is ‘appropriate’ for the Secretary’s viola-

tion of the consent judgment * * *” (ibid.) For the

same reason, the court rejected petitioners’ argument

that respondent was not entitled to be awarded a pro-

motion absent a finding that he would have received

the promotion “but for” the violation of the decree,

, |

as Title VII requires in cases of discrimination

(ibid. ) .**

Finally, the court rejected the argument that,

given the absence of any finding that respondent was

a victim of discrimination, the remedy ordered by

the master violated Section 706(g) of Title VII, as

recently construed in Firefighters Local Unicn No.

1784 v. Stotts, No. 82-206 (June 12, 1984) (App.,

infra, 10a-17a). The court found that Stotts was dis-

tinguishable from this case for three reasons. First,

unlike this case, Stotts involved a layoff order in-

fringing upon seniority rights, which are protected

under Section 703(h) of Title VII (42 U.S.C. 2000e-

2(h)) (App., wfra, 12a). Second, unlike the layoff

order at issue in Stotts, the order in this case did not

injure any innocent third party, because no one had

come forward to complain of the master’s order

(App., infra, 12a-13a).

The third and “most significant factor’ distin-

guishing this case from Stotts, according to the court

of appeals, was that the parties in this case had “‘vol-

untarily” adopted this consent judgment (App., infra,

13a). Stotts was thus inapposite because Section

706(g) “merely limits the power of a court to order

certain remedies under Title VII in the absence of a

finding that the promoted individual was a victim of

discrimination” and “does not limit the remedies to

which parties may voluntarily agree under a con-

sent judgment” (App., infra, 14a). Relying chiefly

upon the Sixth Circuit’s decision in Vangueards v.

City of Cleveland, 753 F.2d 479 (1985), petition for

14 See, e.g., Hast Texas Motor Freight System, Inc. V.

Rodriguez, 431 U.S. 395, 403-404 n.9 (1977) (employer may

prove that plaintiff would not have been hired or received a

promotion notwithstanding his proof of discrimination) ;

Teamsters, 431 U.S. at 369 n.53 (same).

cert. pending, No. 84-1999, and United Steelworkers

v. Weber, 443 U.S. 193 (1979), the court held that

“Tajs Weber made clear, Section 706(g) does not bar

voluntary affirmative action agreements, such as the

consent judgment in this case; it is merely a limit

on what a court may ‘require’ in a coercive action

under Title VII” (App., infra, 17a). Because the

master’s order was comparable to the affirmative

action plan upheld in Weber, the court held, that

order did not violate Section 706(g) as construed in

Stotts (App., infra, 17a).

REASONS FOR GRANTING THE PETITION

This case presents several questions of substantial

and recurring doctrinal and practical importance re-

garding the limitations upon the remedial authority

of the federal courts in the implementation of consent

decrees in litigation involving public employers

brought under Title VII of the Civil Rights Act of

1964 and the Fifth and Fourteenth Amendments.

Consent judgments, like the one at issue here, are

frequently used to settle lawsuits in Title VII cases.

This Court recently discussed the limitations that

Section 706(g) of Title VII imposes upon a court’s

remedial authority under a consent decree in Fire-

fighters Local Union No. 1784 v. Stotts, No. 82-206

(June 12, 1984). In this case, the court of appeals

held that the term “all appropriate relief,” which is

surely found in most, if not all, consent judgments,

empowers a court to remedy violations of a consent

decree in a manner that the court of appeals con-

ceded could not have been done under Section 706(g)

of Title VII. The court also ruled that Section 706

(g) is altogether inapplicable to a court’s exercise of

remedial authority under a consent judgment in liti-

gation brought under Title VII. Finally, the court

upheld the award of relief under a consent decree to

a person who was not a victim of discrimination

without at all considering the effect that such an or-

der wouid have upon the equal protection rights of -

innocent third parties. The effect of that ruling is

to empower the federal courts to rely upon the terms

of a consent decree as the basis for a court’s remedial

powers in derogation of the precise limitations upon

the court’s authority that Congress has imposed and

that this Court has recognized. The court of appeals’

ruling thus clearly warrants review by this Court.

We do not believe, however, that plenary review

of this case is the best course at this time. The ques-

tion presented by this case regarding the proper

scope of relief under Section 706(g) of Title VII is

essentially identical to the question presented in

Local No. 93, Int’l Ass’n of Firefighters v. City of

Cleveland (Vanguards), petition for cert. pending,

No. 84-1999, upon which the court of appeals in this

case relied (App., infra, 14a, 17a), and in Local 28,

Sheet Metal Workers’ Int'l Ass’n v. EEOC, peti-

tion for cert. pending, No. 84-1656.". We have filed

an amicus curiae brief in Vanguards urging the

15 Vanguards presents the question whether a district court

may enter a consent judgment that explicitly bestows promo-

tional preferences based upon race on persons who are not

proven victims of discrimination. (Vanguwards also presents

the question whether a consent judgment may be entered over

the objection of a party whose interests are adversely af-

fected by the decree.) Local 28 presents a similar issue,

but the case comes to this Court in the context of a contempt

citation. This case presents the question whether a court may

construe a disputed provision of a consent decree that does

not explicitly grant preferences based upon race to non-vic-

tims in a manner that has that effect.

Court to review the judgment of the court of appeals

in that case, and we have filed a response to the peti-

tion in Local 28 in which we have argued that the

petition in that case should be held and disposed of as

appropriate in light of Vanguards. We therefore do

not believe that it is necessary at this time for the

Court also to grant plenary review of this Title VII

question as it is presented in this case. Instead, we

request that the Court hold the petition in this case

pending its disposition or decision in Vanguards.

Should the Court conclude that Vanguards (or Local

28) is not an appropriate vehicle to resolve this Title

VII issue, we urge the Court to grant review in this

case.

Similarly, the constitutional question presented by

this case is similar to the issue currently pending

before the Court in Wygant v. Jackson Bd. of Educ.,

cert. granted, No. 84-1340 (Apr. 15, 1985), in which

we have also participated as an amicus curiae."* For

reasons similar to those given above, we request that

the Court hold the petition in this case pending its

decision in Wygant. Accordingly, we refer the Court

to the discussion of the Title VII and constitutional

questions that is contained in our briefs in Vanguards

(at 6-20) and Wygant (at 6-30)" and add only the

following observations that are pertinent to this case:

1. The Court’s decision in Stotts, like its earlier

rulings in Franks v. Bowman Transp. Co., 424 U.S.

747 (1976), and Teamsters v. United States, 431

16 Whereas Wygant involves a layoff preference based on

race, this case involves a preference in promotion based on

race.

17 We have served a copy of our briefs in Vanguards, Local

28, and Wygant upon counsel for respondents.

U.S. 324 (1977), recognized that Section 706(g) of

Title VII has as its underlying policy the award of

“make-whole relief only to those [persons] who have

been actual victims of discrimination” (Stotts, slip

op. 17; accord, slip op. 5-6 (O’Connor, J., concur-

ring) ).* The court of appeals did not disagree with

that principle. Rather, the court held that it was in-

applicable here, on the ground that the master’s au-

thority to award respondent a promotion stemmed

from the consent decree, not from Section 706(z),

and that in three respects the authority bestowed

upon the master by the consent judgment is not lim-

ited by Section 706(g¢) (App., infra, 9a-17a). That

analysis is flawed in each respect.

a. The first distinction offere. by the court of ap-

peals between this case and Stotts was that Stotts is

limited to orders that infringe upon seniority rights

(App., infra, 12a). But as we explained in our

18 That conclusion, as Stotts explained (slip op. 16-19), de-

rives from the language, legislative history, and purposes of

Section 706(g). Furthermore, the principle that Section 706

(z) limits a court’s equitable authority to ordering make-

whole relief for the actual victims of discrimination is also

consistent with both “the principal focus of the statute,”

which is on “the protection of the individual employee”

(Connecticut v. Teal, 457 U.S. 440, 453-454 (1982); see also

Arizona Governing Comm. Vv. Norris, 463 U.S. 1073, 1083-

1086 (1983) (Marshall, J., concurring in the judgment in

part) ; Los Angeles Dep’t of Water & Power v. Mankart, 435

U.S. 702, 708-709 (1978) ), and the equitable policy, reflected

in the statute, that courts, in crafting relief under the Act,

must consider the legitimate interests of “ ‘innocent third

parties’ (Ford Motor Co. v. EEOC, 458 U.S. 219, 239

(1982) (citation omitted) ; see also Stotts, slip op. 5-6 (O’Con-

nor, J., concurring) ; Norris, 463 U.S. at 1110 (O’Connor, J.,

concurring) ; Manhart, 435 U.S. at 722-723; Teamsters, 431

U.S. at 371-376).

amicus curiae brief in Vanguards (at 10-11), Sec-

tion 7038(h) of Title VII, 42 U.S.C. 2000e-2(h), pro-

tects bona fide seniority systems; that provision is

therefore directly relevant to the question of liability

and only indirectly relevant to remedial questions.

By contrast, Section 706(g), 42 U.S.C. 2000e-5(2),

broadly governs any order entered in a Title VII

case and focuses directly upon the remedies avail-

able once liability has been. established or a consent

indgment has been entered. Stotts, slip op. 16-17;

see Franks, 424 U.S. at 758. Moreover, the opportu-

nity to obtain a promotion may be as important to

employees as seniority rights. The court of appeals

therefore erred by limiting Stotts in this fashion.

b. The court of appeals also held that Stotts was

inapplicable because the master’s November 28 order

did not disturb the interests of any innocent third

party (App., infra, 12a-138a). But that ruling over-

looks the fact that, but for that order, the Air Force

would have accepted applications in a competitive

process for the position that was awarded to respond-

ent. See A.F. Reg. 40-335 (Nov. 12, 1980). The

court of appeals thus failed to recognize that the

master’s November 28 order itself foreclosed innocent

third parties from applying for that position.

ce. Finally, the court of appeals held that the ‘‘most

significant factor” distinguishing this case from

Stotts was that petitioners had agreed to the entry

of this consent decree, which the court likened to an

affirmative action program (App., infra, 13a, 15a).

Because petitioners had agreed to the terms of this

decree, the court explained, the special master’s or-

ders, which simply required petitioners to adhere to

their end of the bargain, was not a “coercive” order

of the type with which Section 706(g) is concerned

(App., infra, 15a-17a). That analysis is both fac-

tuaily and legally unsound.

i. The court’s error stems in part from its failure

to distinguish between the consent judgment and the

master’s October 25 and November 28 orders. Al-

though petitioners voluntarily entered into the con-

sent decree, by so doing petitioners did not thereby

consent to any and all orders that the special master

might enter under the decree. The judgment em-

powers the master to award “all appropriate relief”’

for a violation of its terms. The only violation of the

decree found by the master was petitioner’s failure to

inform the selection committee that the position at

issue was covered by the “goals” of the consent judg-

ment. We agree that the committee should have been

so informed to ensure that respondent was carefully

considered for the position.” However, it is well set-

tled that the remedial powers of the federal courts

extend no further than required by the nature and

extent of the legal infraction involved. See, e.g.,

General Bldg. Contractors Ass’n v. Pennsylvania, 458

U.S. 375, 398-899 (1982); Hills v. Gautreaux, 425

U.S. 284, 293-294 (1976). The appropriate remedy

in this case is to require petitioners to reconsider

respondent for the position and, if he is selected, to

award him appropriate “make whole” relief, not to

award him a promotion outright.*°

19 Although the court of appeals stated that petitioners had

failed “to make any effort to meet the consent judgment goal

in filling this vacancy (App., infra, 8a; see page 9 note 13,

supra), the only finding that the master made was that peti-

tioners had failed to notify the selection committee that this

position was covered by the consent decree’s goals.

2° We are informed by the Air Force that a grievance pro-

cedure and criteria for awarding promotions are contained

Moreover, the court of appeals failed to consider

the entire consent judgment when construing the

term “appropriate relief.” See Stotts, slip op. 11-12.

The consent device expressly recites that Title VII

“shall apply” to resolve disputed provisions of the

decree (App., infra, 39a-40a) and thereby incorpor-

ates the limitations that Section 706(g) imposes upon

the master’s remedial authority. The consent decree

itself therefore limits the relief that can be awarded

under its terms to what Section 706(g) allows. In-

deed, the term “all appropriate relief” contained in

the decree is similar to the 1972 amendment to Sec-

tion 706(g)—which added to the statute the term

“any other equitable relief as the court deems appro-

priate” (42 U.S.C. 2000e-5(g) )—tha. che Court held

in Stotts (slip op. 18-19 n.15) did not expand “a

court’s authority to award make whole relief” (id.

at 18). Finally, the court of appeals’ erroneous con-

struction of the decree is aggravated by the fact that

Title VII provides “the exclusive judicial remedy for

claims of discrimination in federal employment”

(Brown v. GSA, 425 U.S. 820, 885 (1976)). The

court of appeals thus erred by construing the term

“all appropriate relief’? to endow the master with

broader remedial power than Section 706(g) pro-

vides. Accordingly, to the extent that the court ap-

peals upheld the master’s November 28 order on the

ground that it was not “coercive” because petition-

ers had agreed in advance to relief of this sort,

the court read far more into the consent judgment

than its language will allow.

in a collective bargaining agreement that was not made a

part of the record below and was not referred to by any of

the lower courts.

Og a —

ii. The court cf appeals’ reasoning is more deeply

flawed, however, because of the court’s erroneous dis-

tinction between the remedial authority that a court

enjoys when enforcing a judgment entered after a

finding of liability and a judgment entered as a con-

sent decree. In the court of appeals’ view, Section

706(g) limits the relief that a court may award

pursuuut to a finding of liability, but does not re-

strict the remedies that a court may impose under a

consent decree. The remedial provisions of Title VII,

according to the Court, thus have no bearing upon the

power that a conseni judgment may bestow upon a

court. App., injra, 16a-17a. That reasoning is

plainly in error.

Most importantly, neither the text nor the legisla-

tive history of Section 706(g) supports the proposi-

tion that an order stemming from a consent decree

stands on a different footing than an order that is

entered following a judgment on the merits. See

Stotts, slip op. 16-19. The policy underlying Section

706(g¢)—to provide “make-whole” relief only to vic-

tims of discrimination (Stotts, slip op. 17) by slot-

ting them into their “rightful place” in the employ-

ment fabric (Teamsters, 181 U.S. at 372)—like-

wise does not support the court of appeal’s distinc-

tion. And an order like the one at issue here can

disturb “the competing interests of * * * innocent

employees * * * and the employer” (Stotts, slip op.

5-6 (O’Connor, J., concurring); Ford Motor Co. v.

EEOC, 458 U.S. 219, 239-240 (1982); see page 15

note 18, supra) to as great an extent as one entered

pursuant to a finding of liability after a trial on the

merits. Indeed, to the extent that Section 706(¢)

reflects the “policy” that the interests of innocent

third parties must be taken into account when courts

formulate reli-f under Title VII (see Stotts, slip op.

16, 20 n.17), the court of appeals’ reasoning is un-

sound even on its own terms. Accordingly, the ap-

propriate inquiry is not limited to the question

whether the master’s November 28 order is consistent

with the terms of the consent judgment and with the

substantive policies of Title VII; an essential part of

the analysis is whether that order may properly issue

consistently with Section 706(g).*

Moreover, under the court of appeals’ rationale, the

parties to a consent decree may endow a district court

with remedial powers concededy in excess of—or

directiy contrary to—those pov.ers that Congress has

authorized, so long as the resulting decree is not in-

consistent, in the court’s words, with any “substan-

tive policy of the underlying statute” (App., infra,

16a). Whatever the merits of that distinction where

no third-party rights are involved, that distinction

has no application to this case, because the interests

of innocent third-parties must be taken into account

when courts devise remedies under Title VII. A con-

sent judgment entered in a Title VII suit thus can-

21 Nor can the master’s November 28 order be sustained on

the ground that it awarded respondent relief that petitioners

could themselves have given him under an affirmative action

program. The short answer to this argument, like the one

given in Stotts (slip op. 20), is that petitioners did not award

petitioner this promotion under an affirmative action pro-

gram; the promotion was, instead, awarded by a court “order”

entered to enforce a consent decree in a suit brought under

Title VII, as to which Section 70€(g) in terms applies. In

addition, the 1972 amendments to Title VII, which the court

of appeals adverted to but did not rely upon (App., infra,

12a n.2), are inapposite. Stotts expressly ruled that these

amendments did rot modify Section 706(g). Slip op. 18-19

n.15.

SP ar atk

not be treated as a simple contract between two

parties.

To be sure, a consent decree has some of the attri-

butes of a contract (see United States v. ITT Conti-

nental Baking Co., 420 U.S. 228, 236 n.10 (1975) ),

but it is nonetheless a judgment backed by the co-

ercive power of the court (see Pope v. United States,

323 U.S. 1, 12 (1944) ; United States v. Swift & Co.,

286 U.S. 106, 115 (1982); ef. Carson v. American

Brands, Inc., 450 U.S. 79, 83-84 (1981)). In that

respect, the parties to a lawsuit cannot by agreement

confer remedial authority upon-a federal court be-

yond the limits fixed by Congress (see System Feder-

ation No. 91 v. Wright, 364 U.S. 642 (1961)) any

more than they can confer subject matter jurisdiction

upon the court (see Insurance Corp. of Ireland, Ltd.

v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

702 (1982) ) or demand that the court enforce a con-

tract that is substantively invalid (see 29 U.S.C. 107

(outlawing “yellow dog contracts’)); cf. Shelly v.

Kraemer, 334 U.S. 1 (1948)). The Court expressly

reaffirmed that principle in Stotts, holding that the

statute underlying a consent decree provides not only

the source but also the extent of a court’s authority

to enforce the terms of its judgment. Slip op. 13 n.9,

20 n.17; accord, slip op. 3 (O’Connor, J., concur-

ring).

2. The court of appeals’ decision also raises a

substantial question under the Fifth Amendmcat Due

Process Clause, as that provision applies the concept

of equal protection to the federal government.” To

22 The court of appeals reasoned (App., infra, 9a-10a) that

the master’s orders did not implicate the equal protection

rights of innocent third parties because the master’s construc-

tion of the “good faith efforts” provisions of the decree “does

the extent that the court of appeals is correct that the

consent decree required racial preferences or that

such a requirement may be viewed as voluntary ac-

tion by virtue of petitioners’ consent, the court of

appeals’ construction of the decree places the federal

government in the same position as the public em-

ployer in Wygant v. Jackson Bd. of Educ., supra. In

both cases, the public employer, responding to allega-

tions of past discrimination, would have undertaken

to make race a determinative factor in employment

decisions. Moreover, in both this case and Wygant,

the courts of appeals relied in part upon this Court’s

decision in United Steelworkers v. Weber, supra, as

a basis for upholding the consent decree. In that

respect, the court of appeals’ construction of the

decree squarely raises the question, expressly re-

not require an absolute promotion preference for class mem-

bers” (id. at 9a). The court failed to recognize, however, that

the master’s October 25 and November 28 orders raised an

equal protection issue in two separate ways: first, by constru-

ing the “good faith efforts” provisions of the decree to deny

petitioners the right to defend against an alleged violation

of the decree on the ground that they had promoted the most

qualified applicant; second, by awarding a promotion to re-

spondent, regardless of the relative qualifications of other

eligible employees, in the absence of a finding that he was

denied the promotion because of his race or that he would

have received that promotion “but for” proven discrimination

(see pages 6-8, supra). In these circumstances, the sole pos-

sible basis for awarding respondent such preferential treat-

ment was his race, not his status as a victim of discrimina-

tion. Such differential treatment in the allocation of govern-

ment benefits on the basis of “racial or ethnic criteria” (Fuwlli-

love v. Klutznick, 448 U.S. 448, 472, 480 (1980) (plurality

opinion) ) indisputably raises an equal protection issue con-

cerning the rights of those persons who were passed over the

relevant benefit.

served in Weber (443 U.S. at 209) and similar to

the one currently before the Court in Wygant, of

the constitutionality of non-victim-specific, race con-

scious hiring or promotion preferences by public em-

ployers. The position of the United States as to the

constitutionality of such decisions is fully set out

in our amicus curiae brief in Wygant.

Nor does the fact that such preferential treatment

is embodied in a consent judgment that was ratified

by a court lessen the appropriate degree of scrutiny.

On the contrary, it is firmly settled that the judicial

branch is subject to the same equal protection con-

straints that govern the executive and legislative

departments. See e.g., Palmore vy. Sidoti, No. 82-1734

(Apr. 25, 1984); Barrows v. Jackson, 346 U.S. 249

(1953); Shelly v. Kraemer, supra. Nor does the as-

pect of a decree as a remedial resolution of an alle-

gation of discrimination by an employer relieve this

objection, since to the extent that a consent decree

is remedial it may not travel outside the bounds of

what is necessary to remedy the wrong, i.e., provid-

ing relief to actual victims of discrimination. See,

e.g., General Bldg. Contractors Ass’n v. Pennsyl-

vania, 458 U.S. at 399; Milliken v. Bradley (Milliken

IT), 433 U.S. 267, 280-282 (1977). Since there was

no finding below that respondent was denied a pro-

motion because of his race, the master’s November

28 order cannot be sustained on the ground that it

compensated an identified victim of discrimination

for such a harm.

To the extent that the master’s November 28 order

can be taken less as a construction of the consent

decree itself and more as a remedy ordered for a

violation of what the master conceived to be peti-

tioners’ duty under the decree fairly to consider black

applicants, the same Fifth Amendment issue arises,

but only in connection with the master’s November

28 order. Conclwiing that petitioners have violated

their obligation under the consent decree and that

the decree—as we contend—does no more than estab-

lish procedures to assure fair consideration of minor-

ity applicants, then the remedy for such a violation

is to accord the victim the procedure and considera-

tion to which he was entitled. See General Bldg.

Contractors Ass’n v. Pennsylvania, 458 U.S. at 399

(the remedial power of the federal courts extends no

further than necessary to remedy a legal infraction).

By ordering his direct promotion, without allowing

others to compete for the position, as a remedy for

such a violation, the master’s November 28 order

conflicts with the equal protection component of the

Fifth Amendment, because that order, which prefers

respondent over other applicants on the basis of his

race, is not precisely “tailored” to remedy the wrong

that was done and cannot be shown to be necessary

to serve a compelling state interest in remedying

past discrimination. See, U.S. Brief as Amicus

Curiae Supporting Petitioners at 26-30, Wygant.

The court of appeals thus construed both the con-

sent decree and the master’s October 25 and Novem-

ber 28 orders in a manner that raises serious equal

protection questions not previously addressed by this

Court. Those questions, however, are best addressed

only after the Court has determined that Congress

clearly intended to authorize the courts to award

such relief. That is plainly not the case here. In this

case, the court of appeals adopted an erroneous con-

struction of a consent decree in a manner that con-

flicts with the terms of Section 706(g) of Title VIT,

the principles underlying that provision, as recently

discussed in Stotts, and the need to ensure, as a

matter of equity, that the interests of innocent third

parties are not disregarded when a court crafts re-

lief in Title VII litigation. In the absence of clearer

evidence than the court of appeals was able to muster

that Congress intended to allow a court to engage in

the type of balancing necessary to make these deci-

sions, the courts below should have construed Section

796(g) as prohibiting the master’s November 28

order and thereby avoid creating the difficult consti-

tutional issue raised by this case. Cf. Stotts, slip op.

11-12, 20.

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of as appropriate in light of the Court’s

disposition of Local Number 93, Int’l Ass’n of Fire-

fighters v. City of Cleveland ( Vanguards), petition

for cert. pending, No. 84-1999, and Wygant v. Jack-

son Bd. of Educ., cert. granted, No. 84-1340 (Apr.

15, 1985). However, if the petition for a writ of

certiorari in Vanguards is denied, the »etition in this

case should be granted.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney

General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARK W. PENNAK

Attorneys

JULY 1985

FE a a

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 84-3266

WILLIAM C. TURNER, ET AL.,

PLAINTIFFS-APPELLEES

Vv.

VERNE ORR, SECRETARY OF THE AIR FORCE, ET AL.,

DEFENDANTS-APPELLANTS

April 18, 1985

Appeal from the United States District Court

for the Northern District of Florida

Before GODBOLD, Chief Judge, HATCHETT,

Circuit Judge, and TUTTL#, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This case concerns a final order entered by a

special master and affirmed by the district court ap-

plying and enforcing the provisions of a consent judg-

ment. The consent judgment was entered January

12, 1981, in settlement of a class action suit brought

against the Air Force under Title VII of the Civil

(la)

Rights Act of 1964, 42 U.S.C. 2000e, for alleged

racial discrimination against civilian black employees

and applicants for employment at Eglin Air Force

Base in Florida. This consent judgment was adopted

by the district court after conducting a four-day fair-

ness hearing on February 4, 1980; September 16,

1980; December 16, 1980; and January 12, 1981.

Under the consent judgment, defendants agreed

“to make a good faith effort” to reach and maintain

specified racial proportions on a percentage basis for

specific job categories. (Judgment, § VII { 1). Simi-

larly, in Section X of the consent judgment, defend-

ants agreed to “make every good faith effort” to fill

supervisory positions with blacks “in proportion to

the percentage of blacks in the occupancy category

wherein the vacancy arises.” (Section X, 4/3). The

consent judgment defines the phrase “good faith ef-

fort” as meaning “every necessary and appropriate

step will be taken to realize the specified objectives.”

(Section II, 9). The percentages specified in the

consent judgment are stated not to be quotas; rather

the specified proportions are expressly referred to as

“goals.” (Section VII, {/ 2, 3, 4, 5).

Pursuant to § IX of the consent judgment, in Sep-

tember 1983, the plaintiffs’ monitoring committee

(“PMC”) brought before the special master the com-

plaint of Raymond Little, a member of the plaint.ff

class.

The complaint was in form of a statement filed by

the PMC in which the following language was used:

C. The Issues Brought Before The Special

Master:

Whether, in violation of Paragraph 4, Section

IX of the Consent Judge, the Defendants dis-

criminated against Raymond Little when they

failed to hire him for two positions. The two

vacancies at issue are both supervisory positions

in Series 5306 at the WS-7 level, Air Condition-

ing Equipment Mechanic Foreman. The first

was filled by Arthur Kelly on March 21, 1982.

The special master found that the defendants in

filling one of the supervisory positions had violated

the provision of the consent judgment that required

them to “make every good faith effort” to fill super-

visory positions with blacks “in proportion to the per-

centage of blacks in the occupancy category wherein

the vacancy arises.”” He ordered that Little be placed

in a vacant supervisory position and awarded back

pay. The court denied motion for stay, so Little is

filling the job now.

Appellees have questioned tk» jurisdiction of this

Court over this appeal. The special master ordered

the immediate promotion of Little and instructed

counsel to “calculate seniority, back pay, and other

appropriate relief.”’ Appellees contend that because

the amount of the damages was undetermined, this

was not an appealable final judgment. We disagree.

The calculation required under the special master’s

report is purely ministerial in nature—a simple

arithmetic calculation of back pay and _ seniority.

Such ministerial acts concerning the execution of a

judgment do not affect the finality of the decree.

I. ISSUES

The issues for decision by this Court are as follows:

1. Did the special master err in finding that the Air

Force had violated the “good faith” provisions of

the consent judgment?

2. Is the remedy ordered by the special master

authorized by the consent judgment?

3. Does the remedy ordered by the special master

violate Section 706(g) of Title VII?

II. DISCUSSION

A. Violation of the Consent Judgment

The special master held that the Air Force violated

the good faith provisions of the consent judgment.

The Secretary contends that this finding was based

on a construction of the consent judgment which is

contrary to the intent of the parties.

As a preliminary matter, we must determine the

appropriate standard of review. The district court

indicated that “The question whether defendants

acted in good faith is a pure question of fact with

the special master’s determination respecting it sub-

ject to review under the... clearly erroneous stand-

ard.” The Secretary argues that the clearly errone-

ous standard is inapplicable because construction of

a consent judgment is a question of law. He contends

that the special master’s finding of a violation was

based on an interpretation of the legal duties placed

on appellants by the term “good faith.” Hence, the

Secretary urges review de novo by this Court as a

legal question.

The Secretary’s argument fails to distinguish be-

tween construction of a consent judgment, which is a

question of law, and a finding that appellants’ actions

failed to comply with the standards established by the

consent judgment, which is a factual inquiry. As the

Supreme Court indicated in the recent case of Fire-

fighters Local Union No. 1784 v. Siotts, USS.

, 104 S.Ct. 2576, 2586, 81 L.Ed.2d 483 (1984)

(citation omitted), the “scope of a consent decree

must be discerned within its four corners.” Construc-

tion of a consent judgment is thus a question of law

subject to de novo review. In the instant case, how-

ever, the scope of the consent judgment is not in issue.

The consent judgment plainly requires that the Air

Force “make every good faith effort to fill [super-

visory] positions in proportion to the percentage of

blacks in the occupational category wherein the va-

cancy arises.” “Good faith effort” is defined in the

consent judgment to mean that “every necessary and

appropriate step will be taken to realize the specified

objectives.” The special master reviewed the specific

actions of the Air Force in filling the supervisory

vacancy and determined that those actions failed to

meet the good faith standard established by the con-

sent judgment. This is a factual determination which

Wwe review under the clearly erroneous standard.

The special master found that the good faith pro-

visions had been violated on alternative grounds, as

follows:

The Special Master determined that the good

. faith provisions of the Consent Judgment goals

section were violated by the Defendants when

the Defendants hired Mr. Kelly, a caucasian

male, without ever notifying the selecting super-

visor at any point in time that this was a Con-

sent Judgment goal position. Notifying selecting

supervisors, in some manner, that the position is

subject to the Consent Judgment goals would be

a minimal action necessary to meet the good

faith requirement of tne Consent Judgment.

The Special Master reaches the conclusion that

the good faith requirement was not meet [sic] in

this particular case on an alternative ground.

The essence of the closing argument by the De-

fendants was that even if Mr. Little were quali-

fied to fill the vacancy it was unreasonable to

select anyone other than Mr. Kelly because Mr.

Kelly was more qualified than Mr. Little... . De-

fendants’ argument misses the mark. One would

assume that in the absence of the Consent Judg-

ment that whenever selecting officials have a

number of qualified candidates from which to

choose the officials would hire the best qualified

applicant. If all that the good faith provision

requires in this situation is the selection of the

best qualified candidate then the provision is a

nullity. The drafters of the Consent Judgment,

by its express language, clearly intended that

additional effort be exerted by the Defendants in

meeting the goals. Thus, in this particular sit-

uation, assuming without deciding that Mr.

Kelly was the best qualified candidate, the De-

fendants’ argument that the good faith require-

ment was met because the supervisors selected

the best qualified candidate from a group of

qualified candidates is without merit.

These findings are amply supported by the record.

The Secretary concedes that the selecting supervisors

were not notified that the vacancy was one covered

by a consent judgment goal. When the vacancy was

filled originally on a temporary basis, the Air Force

unilaterally decided that the goals did not apply to

temporary positions. Later, the position was con-

verted to permanent status noncompetitively. Thus,

at no point were the selecting officials even notified

that good faith efforts to meet the consent judgment

goals were required.

Moreover, it is clear that good faith efforts were

not made. As the special master found, the Air Force

officials involved testified that they considered the

good faith requirement to be met if they selected the

best qualified candidate. The special master correctly

found that such an interpretation would render the

good faith requirement a nullity because discrimina-

tion is barred by Title VII and by Section II of the

consent judgment.

Little was well qualified for the supervisory posi-

tion. He had an Associate of Arts Degree, addi-

tional college courses, and specialized courses in air

conditioning. He had 12 years experience as an air

conditioning mechanic and extensive supervisory ex-

perience in the Army and Army reserve. Two of the

three members of the all white selection committee

testified that Little was less qualified than the indi-

vidual selected because he had less supervisory ex-

perience. Yet both admitted that they were unaware of

the full extent of Little’s supervisory experience and

had not reviewed his personnel file. Little testified

that he was asked no questions about his prior super-

visory experience and that his interview lasted ap-

proximately 15 minutes, while that of the selected

individual may have lasted an hour. One of the com-

mittee members testified that education was one of

three key factors in the selection, although he later

testified it was less important than the other factors.

The individual selected had only a GED high school

diploma, while Little had an Associate of Arts Degree

plus additiona! courses. One committee member testi-

fied that Little lacked the requisite mechanical skills,

but this was contradicted by his own written per-

formance appraisals of Little.

We need not decide what steps are sufficient to

meet the good faith requirement of the consent judg-

ment. Numerous opportunities for the Air Force to

make govd faith efforts are suggested by the facts in

this case, however. The Air Force could have notified

the supervisors that the consent judgment goals ap-

plied to the vacancy, it could have taken the time to

interview Little thoroughly and to review his person-

nel file to learn of his supervisory experience, it could

have included minority members in the selection com-

mittee, it could have evaluated carefully its selection

criteria to determine if the extra years of experience

of the individual selected really made him “better

qualified” than Little with his better education and

ample experience. We cannot find that the Air Force

demonstrated that it made any effort to meet the con-

sent judgment goal in filling this vacancy. Thus, the

special master’s finding that the Air Force failed to

comply with the good faith requirements of the con-

sent judgment is not clearly erroneous.

Before turning to the remaining issues in this case,

we must mention one false issue raised by the Secre-

tary. The Secretary repeatedly asserts in his briefs

that the special master construed the good faith pro-

visions to require “the Secretary to hire or promote

only class members until the ‘goals’ are met.” There

is simply no such holding in the speciai master’s

report. The special master held only that the steps

taken in this case were insufficient to meet the good

faith requirement and that the mere assertion that

the best qualified candidate was chosen does not con-

stitute a good faith effort. The Secretary builds on

his erroneous interpretation of the special master’s

holding by arguing that a decree according an

absolute promotion preference to class members vio-

lates both Title VII and the equal protection rights of

innocent third parties. Because the special master’s

order does not require an absolute promotion prefer-

ence for class members, we need not reach these

arguments.

B. Remedy for Consent Judgment Violation

Having found that defendants violated the consent

judgment, the special master ordered defendants to

promote Little to a vacant supervisory position with

back pay. The Secretary contends that this remedy is

not authorized by the consent judgment.

The consent judgment provides, ‘‘In the event that

the Special Master determines that a violation of the

Judgment has occurred, he shall be authurized to

order all appropriate relief therefor. .. .” We hold

that this provision fully authorized the special mas-

ter’s award of promotion and back pay in this case.

The special master found that defendants had vio-

lated the good faith provisions of the consent judg-

ment, and the relief he ordered was entirely appro-

priate for the violation.

The Secretary argues, however, that the remedies

available to the special master are limited by the gen-

eral provision in the consent judgment that “In inter-

preting the provisions of this Judgment which may

become disputed among the parties, the law as set

forth by Title VII of the Civil Rights Act of 1964 as

construed by the courts, shall apply.” The Secretary

contends that Title VII authorizes the remedies of

promotion and back pay only for actual victims of dis-

crimination and, hence, these remedies should be re-

served for victims of discrimination under the con-

sent decree. We see no merit in this argument. The

consent judgment specifically provides for “all ap-

propriate relief” to be given for consent judgment

violations. Nothing in Title VII addresses the ques-

10a

tion of what relief is appropriate for such violations

because Title VII deals with discrimination, not with

violations of consent judgments. Title VII’s remedy

provisions are therefore of no assistance in deter-

mining what relief is “appropriate” for the Secre-

tary’s violation of the consent judgment, and the

special master correctly relied upon a careful assess-

ment of the nature of the violation in this case in de-

ciding what relief was appropriate.

The Secretary also contends that the special master

could not order back pay and promotion in the ab-

sence of a specific finding that “but for’ the consent

judgment violation, Little would have been promoted.

The Secretary’s argument is based on analogy to the

principle under Title VII that even when discrimi-

nation has been proven, the plaintiff is not entitled to

relief if the defendants prove by a preponderance of

the evidence that plaintiff would not have been hired

even in the absence of discrimination. Lewis v.

Smith, 731 F.2d 1535, 1538 (11th Cir. 1984). The

Secretary’s analogy is faulty, however, because relief

here is being granted not for violation of Title VII,

but for violation of the consent judgment. The con-

sent judgment authorizes the special master to order

appropriate relief when he determines that the con-

sent judgment has been violated. No “but for’ find-

ing is required.

We hold, therefore, that the relief ordered by the

special master was authorized by the consent judg-

ment.

C. Title VII

The Secretary’s final contention is that the remedy

ordered by the special master is in violation of Sec-

tion 706(g) of Title VII of the Civil Rights Act of

lla

1964 as recently interpreted by the Supreme Court in

Stotts.

In Stotts the Supreme Court overturned an order

enjoining the city of Memphis from laying off fire-

fighters in accordance with the seniority system es-

tablished in a collective bargaining agreement. The

district court order was intended to prevent the lay-

offs from having a negative effect on minority gains

made under a previous consent decree setting hiring

and promotion goals for minorities. The Supreme

Court held that the order was neither authorized by

the original consent decree nor a legitimate modifica-

tion of that decree that could be iinposed on the city

without its consent.

The Secretary contends that under Stotts, Section

706(g¢) of Title VII bars any court from ordering a

promotion and back pay in the absence of a finding

that the complainant suffered actual discrimination.’

He points to the language in Stvits indicating that the

policy of Section 706(g) is “to provide make-whole

relief only to those who have been actual victims of

illegal discrimination.” Jd. 104 S.Ct. at 2589. He

notes that in this case there has been no finding of

discrimination against Little. He argues that the

Section 706(g) provides in pertinent part:

No order of the court shall require the admission or

reinstatement of an individual as a member of a union,

or the hiring, reinstatement, or promotion of an indi-

vidual as an employee, or the payment to him of any back

pay, if such individual was refused admission, suspended,

or expelled, or was refused employment or advancement

or was suspended or discharged for any reason other than

discrimination on account of race, color, religion, sex,

or national origin or in violation of section 704(a) of

this title.

12a

relief provided to Little violates t* rights of innocent

third parties.

We do not find the Stotts decision to be controlling

in the instant case. Stotts is distinguishable from the

case at bar in at least three respects.’ First, a pri-

mary basis of the Supreme Court’s holding in Stotts

is that the district court’s order required the city to

violate the provisions of a bona fide seniority system.

Section 703(h) of Title VEI specifically provides that

it is not an unlawful employment practice to apply

different standards pursuant to a bona fide seniority

system. The court identified the “issue at the heart”

of Stotts as ‘“‘whether the District Court exceeded its

powers in entering an injunction requiring white em-

ployees to be laid off, when the otherwise applicable

seniority system would have called for the layoff of

black employees with less seniority.” Jd. 104 S.Ct.

at 2585. In the case at bar there is no contention

that a bona fide seniority system will be affected by

the special master’s order.

A second factor distinguishing the current case

from Stotts is that no third party rights a-e involved.

In Stotts the court’s order would have resulted in

* Amicus NAACP Legal Defense and Educational Fund,

Inc., suggests a fourth distinction: In this case, unlike in

Stotts, the employer invelved is the federal government. When

Congress passed the Equal Employment Opportunity Act of

1972, one of its central concerns was the relegation of minor-

ities to low status jobs in the federal service. It therefore

enacted Section 717, not only making Title VII applicable to

the federal government, bul also imposing unique affirmative

action obligations on federal agencies. Amicus thus contends

that, at least as to the federal government, Section 706(¢)

does not bar enforcement of effective affirmative action. Be-

cause we find the court’s order fully supported on other

grounds, we need not reach this contention.

ee ee

13a

white employees being laid off in place of less senior

black employees. In this case, the special master or-

dered Little promoted to a vacant position. No white

employee was displaced to make room for Little.

That no third parties were injured is attested by the

fact that no non-class member has attempted to inter-

vene in this suit. When the consent judgment was

originally entered a fairness hearing was held, and

no non-class members objected to the consent judg-

ment, although notice was given throughout the Air-

Force base. The Secretary nevertheless argues that

the rights of innocent third parties were violated by

the spacial master’s order. We question the standing

of the Secretary to assert the rights of third parties

whom he has been unable to identify.

Finally, the most significant factor distinguishing

this case from Stotts is that the consent judgment

here was voluntarily entered into by the parties. In

Stotts, the city objected to the modified decree which

was before the Supreme Court. Stotts therefore dealt

with the power of a court to modify a censent judg-

ment over the objection of one of the parties. The

Supreme Court specifically held that the order of

the district court was not authorized by the original

consent decree. In contrast, we have held here that

the special master’s order was fully authorized by the

consent judgment agreed to by the Secretary and the

plaintiff class. Here, unlike in Stotts, the special

master specifically found that the Air Force had vio-

lated the consent judgment it had voluntarily entered.

This distinction makes the legal basis of Stotts in-

applicable. Stotts relied on Section 706(g) of Title

VII which provides that ‘‘[n]o order of the court

shall require the . . . promotion of an individual...

if such individual was refused ... advancement...

14a

for any reason other than discrimination.” This pro-

vision merely limits the power of a court to order

certain remedies under Title VII in the absence of

a finding that the promoted individual was a victim

of discrimination. It does not limit the remedies to

which parties may voluntarily agree under a consent

judgment. See Vanguards of City of Cleveland v.

City of Cleveland, 753 F.2d 479, 487-488 (6th Cir.

1985). The Supreme Court recognized that cases like

this are different from Stotts when it stated:

[T]he Court. of Appeals was of the view that

the District Court ordered no more than that

which the City unilaterally could have done by

way of adopting an affirmative action program.

Whether the City, a public employer, could have

taken this course without violating the law is

an issue we need not decide. The fact is that

in this case the City took no such action and that

the modification of the decree was imposed over

its objection.

Stotts, 104 S.Ct. at 2590.

Stotts must be read in light of the Supreme Court’s

holding in United Steelworkers of America v. Weber,

443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979).

In Weber, the Court approved a voluntary agreement

between the employer and the union providing for

affirmative action. The Court stated:

[S]ince the Kaiser-USWA plan was adopted

voluntarily, we are not concerned with what

Title VII requires or with what a court might

order to remedy a past proved viclation of the

Act. The only question before us is the narrow

statutory issue of whether Title VII forbids

private employers and unions from voluntarily

Midida eat mraten 22a ate Miah tin ADP 8 abt s

15a

agreeing upon bona fide affirmative action plans

that accord racial preferences in the manner

and for the purpose provided in the Kaiser-

USWA plan.

Id. at 200, 99 S.Ct. at 2726 (emphasis in original).

The Kaiser plan called for a 50-50 placing of blacks

and whites in the employer’s craft training program

until the number of black craft employees approxi-

mated the percentage of blacks in the labor force.

The Court found this not to be in violation of the

Act. The Court noted that:

fA]n interpretation of the sections that for-

bade all race-conscious affirmative action would

bring about an end completely at variance with

the purpose of the statute and must be rejecte:

Id. at 202, 99 S.Ct. at 2726 (citations omitted).

In the instant case, the Secretary_and the plaintiff

class voluntarily negotiated an agreement which,

when approved by the district court, became a con-

sent judgment. This agreement is in compliance with

Weber. It provides specific affirmative steps to be

taken by the Air Force and establishes a remedial

scheme for failure to comply with its requirements.

The Air Force failed to take the steps it had volun-

tarily agreed to take and the special master ordered

a remedy as authorized by the consent judgment.

Neither Section 706(g) nor the Stotts decision is ap-

plicable.

The Secretary contends, however, that Section

706(g) is a limitation on the court’s power and pre-

cludes the court from adopting a vcluntary consent

decree which includes remedies that a court could

not order in a coercive action under Title VII. He

16a

poit.. 3 to the following language in a footnote in

Stotts:

“(T]he District Court’s authority to adopt a

consent decree comes only from the statute

which the decree is intended to enforce,” not

from the parties’ consent to the decree. System

Federation No. 91 v. Wright, 364 U.S. 642, 651

[81 S. Ct. 368, 373, 5 L.Ed.2d 349] (1961). In

recognition of this principle, this Court in

Wright held that when a change in the law

brought the terms of a decree into conflict with

the statute pursuant to which the decree was

entered, the decree should be modified over the

objections of one of the parties bound by the

decree. By the same token, and for the same

reason, a district court cannot enter a disputed

modification of a consent decree in Title VII

litigation if the resulting order is inconsistent

with that statute.

Stotts 104 S.C. at 2587 n. 9. This footnote does not

indicate that a court is barred from approving a

consent decree that provides relief beyond that au-

thorized in the underlying statute. ‘Consent decrees

need not be limited to the relief that a court could

provide on the merits.” Sansom Committee v. Lynn,

735 F.2d 1535, 15388 (8rd Cir. 1984) (citation

omitted). The Court quoted the language from

Wright to support its holding that a court cannot

enter ‘‘a disputed -nodification” of a consent decree

which is inconsistent with the underlying statute.

Wright involved a decree which had become patently

inconsistent with the substantive policy of the under-

lying statute. As indicated in Citizens for a Better

Environment v. Gorsuch, 718 F.2d 1117, 1118, 1125

~ honest le se anal

17a

(D.C. Cir. 1983), cert. denied, —— U.S. , 104

S.Ct. 2668, 81 L.Ed.2d 373 (1984) (citation omitted),

The statement that a district court’s “author-

ity to adopt a consent decree comes only from

the statute which the decree is intended to en-

force” means only that the focus of the court’s

attention in assessing the agreement should be

the purposes which the statute is intended to

serve, rather than the interest of each party to

the settlement.

See Vanguards, at 488-489 (citation omitted). The

voluntary consent judgment in this case is entirely

consistent with the purposes of Title VII, “a law trig-

gered by a Nation’s concern over centuries of racial

injustice and intended to improve the lot of those

who had ‘been excluded from the American dream

for so long.” Weber, 443 U.S. at 204, 99 S.Ct. at

2728, quoting 110 Cong. Rec. 6552 (1964) (remarks

of Sen. Humphrey). As Weber made clear, Section

706{e2) does not bar voluntary affirmative action

agreements, such as the consent judgment in this

case; it is merely a limit on what a court may “re-

quire” in a coercive action under Title VII.

III. CONCLUSION

In conclusion, we hold that the special master and

the district court correctly found that the Air Force

had violated the good faith provisions of the consent

judgement. The remedy ordered for this violation is

fully authorized by the consent judgment and, there-

fore, is not in violation of Section 706(g) of Title

VII.

18a

The judgment of the district court is AFFIRMED.*

The mandate shall issue FORTHWITH.

* Before this panel is a motion of Raymond Little to con-

solidate with this appeal a subsequent appeal by the Secre-

tary of the Air Force from a judgment granting attorney’s

fees to Messrs. Spriggs and Warren. That appeal is No. 84-

3694. It is based in large part on the denial by the special

master of a motion to disqualify Messrs. Spriggs and Warren

as counsel for the PMC. The Secretary strongly objects to

such consolidation, one ground for such objection being “‘con-

solidation of these two appeals clearly would result in a sub-

stantial delay in deciding Mr. Little’s case, contrary to the

interests of both the Secretary and Mr. Little in a prompt

adjudication of the appeal.” Another ground for his opposi-

tion is stated: “A prompt decision in No. 84-3266 (this case)

is needed to provide guidance to the district court and the

parties in these other proceedings.”

Agreeing with the Secretary’s contention that a prompt de-

cision of the Little appeal is required, we have denied the

motion to consolidate the two appeals.

19a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-3266

D.C. Docket No. 76-00175

WILLIAM C. TURNER, ET AL., PLAINTIFFS-APPELLEES

versus

VERNE ORR, Secretary of the Air Force, ET AL.,

DEFENDANTS-APPELLANTS

Appeal from the United States District Court for the

Northern District of Florida

Before GODBOLD, Chief Judge, HATCHETT, Cir-

cuit Judge, and TUTTLE, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the transcript

of the record from the United States District Court

for the Northern District of Florida, and was ar-

gued by counsel;

ON CONSIDERATION WHEREOF, it is now or-

dered and adjudged by this Court that the judgment

of the said District Court in this cause be and the

same is hereby, AFFIRMED.

20a

It is further ordered that defendants-appellants

pay to plaintiffs-appellees, the costs on appeal to be

taxed by the Clerk of this Court.

Entered: April 18, 1985

For the Court: Spencer D. Mercer

Clerk

By: /s/ Miguel J. Cortez, Jr.

Deputy Clerk

Issued as Mandate: Apr. 18, 1985

2la

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PCA 76-175

WILLIAM C. TURNER, ET AL.. PLAINTIFFS

vs.

SECRETARY OF THE AIR FORCE, ET AL., DEFENDANTS

ORDER

Before this court is defendants’ appeal from the

Special Master’s ruling (doc. nos. 2338 and 2405)

respecting Raymond Little’s claim of consent judg-

ment violation.

Section IX, paragraph 4, of the consent judgment

does refer, in this type situation, to the right of a

party to “appeal” any such decision.

Under the recent ruling of Court of Appeals for

the Eleventh Circuit, however, the Special Master is

to be regarded as a Speciai Master appointed under

Rule 53, F.R.Civ.P.

Under that rule the Special Master prepares a

report in which, if required, there are included find-

ings of fact and conclusions of law. The court accepts

the Special Master’s findings of fact unless clearly

erroneous.

While some of the procedures provided for by Rule

53, F.R. Civ.P., may not have been strictly followed

in this particular instance, no party objects on such

22a

ground. Instead they appear in agreement that the

Special Master’s ruling on this claim is properly be-

fore this court for its decision.

The Special Master found the defendants violated

the good faith provision of the consent judgment.

This court concludes, under the holdings in Pullman-

Standard v. Swint, 456 U.S. 273 (1982), Jacobs v.

New Orleans, 484 F.2d 24 (Sth Cir. 1973), and

Boscarino v. Nelson, 518 F.2d 879 (7th Cir. 1975),

the question whether defendants acted in good faith

is a pure question of fact with the Special Master’s

determination respecting it subject to review under

the rule’s clearly erroneous standard.

Here the Special Master’s ruling is not clearly

erroneous. To the contrary, it is amply supported by

the record. Were the usual appeal standard of affirm-

ance unless prejudicial error appears here applied the

finding would be no such error appears.

The Special Master was also correct in his inter-

pretation of the requirements of the consent judg-

ment and the remedy provided by him in his order

dated November 14, 1984 is appropriate and sup-

ported by legal authority.

It is ORDERED as follows:

1. The Special Master’s order of October 25, 1983,

on the claim of Raymond Littie, and the relief chosen

by him, are treated by this court as a report under

Rule 53, F.R.Civ.P.

2. Treated as such report, it is now adopted in

whole by this court.

DONE AND ORDERED this 13th day of Febru-

ary, 1984.

/s/ Winston E. Arnow

WINSTON E. ARNOW

Senior Judge

23a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PCA 76-175

LITTLE, RAYMOND

WILLIAM C. TURNER, ET AL., PLAINTIFFS

Vv.

SERETARY OF THE AIR FORCE, ET AL., DEFENDANTS

[Filed Oct. 25, 1983]

ORDER

Before the Special Master is the claim of Mr. Ray-

mond Little, presented through the motion for hear-

ing served on the Defendants on September 9, 1983.

Mr. Little alleged a violation of section IX, para-

graph 4 of the Consent Judgment (January 12,

1981), in that the Defendants discriminated against

him when they failed to hire him for an Air Condi-

tioning Equipment Mechanic Foreman position,

WS 5306-7, filled by Mr. Arthur Kelly on March 21,

1982 (hereinafter the Kelly vacancy) and an Air

Conditioning Equipment Mechanic Foreman position,

WS 5306-7, filled by Mr. Gerald Dickey on December

12, 1982 (hereinafter the Dickey vacancy).

24a

On September 20, 1983, the Defendants served

upon the PMC their response to the PMC’s motion

for hearing alleging that the claim of Mr. Little

regarding the Dickey vacancy was not timely raised

by the claimant, and on September 20, 1983, the PMC

on behalf of Mr. Little served a motion on the De-

fendants i the nature of summary judgment regard-

ing voth the Kelly and the Dickey vacancies. The

Special Master heard oral argument on these matters

on September 23, 1983. The Special Master denied

both motions in an order dated October 3, 1983, nunc

pro tunc, September 23, 1983 (filed October 6, 1983).

The hearing on the merits of Mr. Little’s claim com-

menced October 3, 1983.

THE KELLY VACANCY

Findings of Fact.

1. Mr. Little is a member of the class. See Consent

Judgment, section I and section IX, paragraph 4.

2. Mr. Little was qualified for the Kelly vacancy.

Mr. Little was among the top fifteen candidates ulti-

mately referred to the selecting supervisor. Little

Exhibit 20. Mr. Little had an Associate of Arts

degree. Mr. Little had supervisory experience while

in the United States Army and in the Air Force

Reserves. Mr. Little received training in the air con-

ditioning field and had been working in this field for

a number of years. Mr. Little received either excel-

lent performance rating or average and above aver-

age ratings from his supervisor during the time in

question.

The Defendants attempted to show that Mr. Little

was not qualified for this position by testimony from

two of the selecting officials. This testimony revealed

arate aad? BOR. NO erie

25a

that Mr. Brooks’ decision was based primarily upon

the fact that past supervisory experience was very

important, but Mr. Brooks admitted he was unaware

of Mr. Little’s past supervisory experience. Mr.

Brooks stated that his decision was also based upon

Mr. Little’s lack of mechanical skills, but the per-

formance ratings prepared by Mr. Brooks for Mr.

Little contradict this assessment. Senior Master Ser-

geant Sneed stated that his decision was based upon

Mr. Little’s lack of supervisory experience, but he

also admitted that he was unaware of the full extent

of Mr. Little’s past experience. Upon reviewing all

the evidence, the Special Master is persuaded that

Mr. Little established that he was qualified to fill this

position.

3. Mr. Arthur Kelly, a caucasian male, was selected

to fill the vacancy and Mr. Little, although available,

was not selected. See Little Exhibit 13 & 15.

4. The position was one in which the Consent Judg-

ment goals applied. The position was a first level

supervisory position included in section X, paragraph

3 of the Consent Judgment. This position is in the

Craftsman occupational category. See Attachment C

of the Consent Judgment. During the time in ques-

tion the percentage of black first level supervisors in

the Craftsman category was 4.46%. See Little Ex-

hibit 25. During the time in question the percentage

of blacks in the Craftsman category was 5.67%. See

Little Exhibit 9A. Therefore, the provision of section

X, paragraph 3, “to fill said positions in proportion

to the percentage of blacks in the occupational cate-

gory wherein the vacancy arises” was not met.

The Defendants offered two arguments why this

position was not controlled by the Consent Judgment

goals. First, the Defendants argued that the Consent

26a

Judgment goals did not apply to this particular posi-

tion. The Defendants argued that if the goal for a

particular: category was, hypothetically, 10%, then

the first nine positions filled by Eglin Air Force Base

were not subject to the Consent Judgment goals and

only the tenth position was subject to the goals and

the additional good faith effort thereby imposed. The

Defendants stated that it was their practice to wait

until the tenth vacancy before flagging the Form 176

so as to inform the supervisors that a Consent Judg-

ment goal existed in the occupational category.

The Special Master has serious concern whether

the good faith language in the Consent Judgment can

possibly be met if the Defendants only inform super-

visors at the very last possible opportunity that the

occupational category is one in which the goals would

apply. Defendants’ counsel, after the close of the

hearing, stated in chambers that they inaccurately

represented the practice of Eglin Air Force Base and

that the practice in instances where there is such

underrepresentation is to inform the supervisors of

the Consent Judgment goal at the time that the first

vacancy occurs. Upon this representation, the Special

Master assume | that the Defendants withdrew this

argument regarding the lack of Consent Judgment

goals for this position.

Secondly, the Defendants argued that the Consent

Judgment goals did not apply when the Kelly vacancy

was originally filled in March 21, 1982, because it

was designated as a temporary fill action. Although

the position was filled competitively, the Defendants

unilaterally determined that the Consent Judgment

goals do not apply to temporary positions and so in-

formed the supervisors by not marking the referral

forms. See Little Exhibit 13. The position was con-

eae setae!

27a

verted to a permanent position on July 25, 1982. See

Defendants Exhibit 4. At that time, due to the man-

ner in which the conversion was processed by Mr.

George Bates, an Eglin Air Force Base Staffing Spe-

cialist, the only person who could obtain the pexma-

nent position was Mr. Kelly, a caucasian male. The

Defendants admitted in closing argument that this

manner of processing effectively removed this position

from being subject to the Consent Judgment goals at

any point in time. The Defendants admitted that

when the position was converted to a permanent posi-

tion it should have been filled competitively and it

should have been subject to the Consent Judgment

goals.

The Special Master determiries that the policy of

Eglin Air Force Base as implemented in this partic-

ular case had the practical effect of circumventing

the Consent Judgment goals. Without determining

whether the temporary position was subject to the

Consent Judgment goals, the Special Master deter-

mines that since in this particular case the Defend-

ants admitted that at some point in time the position

should have been subject to the Consent Judgment

goals, the Defendants’ argument is without merit.

Conclusions of Law.

The Consent Judgment, section VII, paragraph 1,

provides, “Throughout the life of the Judgment,

Eglin shall make every good faith effort to recruit,

hire and maintain at a minimum the following racial

proportions for the indicated series and occupational

categories.” Good faith is defined as “every neces-

sary and appropriate step will be taken to realize the

specified objectives.” Consent Judgment, section II,

28a

paragraph 9. These provisions are implemented

through section IX, paragraph 4 of the Consent Judg-

ment which provides, “‘All class members wishing to

present complaints of Judgment violation shall con-

tact the Plaintiffs’ Monitoring Committee. ... In

the event that the Special Master determines that a

violation of the Judgment has occurred, he shall be

authorized to order all appropriate relief therefor,

including the award of costs and attorneys fees.”

The Special Master determines that the good faith

provisions of the Consent Judgment goals section

were violated by the Defendants when the Defend-

ants hired Mr. Kelly, a caucasian male, without ever

notifying the selecting supervisor at any point in

time that this was a Consent Judgment goal position.

Notifying selecting supervisors, in some manner, that

the position is subject to the Consent Judgment goals

would be a minimal action necessary to meet the good

faith requirement of the Consent Judgment.

The Special Master reaches the conclusion that the

good faith requirement was not meet in this partic-

ular case on an alternative ground. The essence of the

closing argument by the Defendants was that even if

Mr. Little were qualified to fill the vacancy it was

unreasonable to select anyone other than Mr. Kelly

because Mr. Kelly was more qualified than Mr. Little.

The Defendants supported this argument by testi-

mony and documentary evidence attempting to show

that Mr. Kelly was more qualified for this position

than Mr. Little. The testimony of Mr. George Bates,

the Eglin Air Force Base Staffing Specialist who

filled this position, although called as the complain-

ant’s witness, is illustrative. Mr. Bates stated that

even if a black person is on a certificate for which a

Consent Judgment goal exists, the only criterion for

29a

selection is to determine who is the best qualified

candidate. In addition, Mr. Brooks, the Defendants’

witness, testified that even if he had known there was

a Consent Judgment goal it would have not affected

his decision to hire Mr. Kelly because all that is

required by the Consent Judgment is that extra con-

sideration be given to the black applicant, and one

should hire the black applicant if he is the best

qualified.

Defendants’ argument misses the mark. One

would assume that in the absence of the Consent

Judgment that whenever selecting officials have a

number of qualified candidates from which to choose

the officials would hire the best qualified applicant.

If all that the good faith provision requires in this

situation is the selection of the best qualified candi-

date then the provision is a nullity. The drafters of

the Consent Judgment, by its express language,

clearly intended that additional effort be exerted by

the Defendants in meeting the goals. Thus, in this

particular situation, assuming without deciding that

Mr. Kelly was the best qualified candidate, the De-

fendants’ argument that the good faith requirement

was met because the supervisors selected the best

qualified candidate from a group of | nee candi-

dates is without merit.

THE DICKEY VACANCY

Based on the foregoing resolution of the Kelly

vacancy and because the Dickey vacancy was for the

same type of position at the same grade level but was

filled later in time, the Special Master does not need

to reach the merits of the Dickey vacancy.

30a

CONCLUSION

Based on the foregoing, the Special Master deter-

mines that Mr. Little has proven that the Defendants

violated the good faith provisions of the Consent

Judgment when the Defendants selected Mr. Kelly

for the Air Conditioning Equipment Mechanic Fore-

man position, WS-5306-7. The Special Master orally

announced this ruling as to liability on October 7,

1983, stating that a written order would follow. At

that time counsel for the Defendants stated that there

was a WS-5306-7 position which had become vacant

and which would be frozen pending the written order.

Pursuant to an agreement between counsel, the

remedy portion of the hearing was held in abeyance

pending the outcome of the liability issue. The Spe-

cial Master directs counsel to attempt to resolve the:

remedy phase by stipulation to be approved by the

Special Master. If the parties are unable to resolve.

this matter, it may be presented to the Special Master

for resolution.

DONE AND ORDERED this 25th day of October,

1983, nunc pro tunc, October 7, 1988.

/s/ Harold B. Crosby

HAROLD B. CROSBY

Special Master

3la

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PCA 76-175

LITTLE, RAYMOND

WILLIAM C. TURNER, ET AL., PLAINTIFFS

SECRETARY OF THE AIR FORCE, ET AL., DEFENDANTS

[Filed Nov. 28, 1983]

ORDER

On October 25, 1983, the Special Master entered

an order in the above entitled cause which held:

Mr. Raymond Little has proven that the Defen-

dants violated the good faith provisions of the

Consent Judgment when the Defendants selected

Mr. Kelly for the Air Conditioning Equipment

Mechanic Foreman position, WS-5306-7 .... At

that time counsel for the Defendants stated that

there was a WS-5306-7 position which had be-

come vacant and which would be frozen pending

the written order. Pursuant te an agreement

between counsel, the remedy portion of the hear-

ing was held in abeyance pending the outcome

of the liability issue. The Special Master directs

82a

counsel to attempt to resolve the remedy phase

by stipulation to be approved by the Special

Master.

Turner v. Secretary of the Air Force, PCA 76-175

(Crosby, Special Master) (filed October 25, 1983).

On November 7, 1983, the Defendants requested

that the Special Master determine whether Mr. Little

was to be placed in the WS-5306-7 position as a por-

tion of the remedy. On the following day Defendants’

counsel reported that the pending vacancy was the

same type of position filled by Mr. Kelly, a WS-5306-

7 position in the Air Conditioning Refrigeration Shop

in the Civil] Engineering Organization. The Special

Master thereupon orally announced that the Defend-

ants were directed to immediately commence plac-

ing Mr. Little in the vacancy. The Special Master

directed the parties to endeavor to resolve the other

aspects of the remedy.

On November 11, 1983, at the Defendants’ request,

a telephone conference was held at which time the

Defendants orally announced that they would be

appealing the Special Master’s decision. The Defend-

ants requested that the Special Master stay the fill-

ing of the WS-4306-7 position, pending the appeal.

The parties agreed to argue the motion for a stay

orally at that time. After hearing argument from

both parties the Special Master took the matter under

advisement.

The granting of a stay is within the discretion of

the court. In determining whether to grant a motion

for stay, the Special Master must consider the follow-

ing four factors: whether the Defendants have made

a strong showing of likelihood of success on the mer-

its; whether the Defendants have made a showing

33a

of irreparable injury 11 cine eourt does not grant the

stay; whether the stay would substantially harm

other parties; whether the stay would serve the

public interest. Coastal States Gas Corp. v. Depart-

ment of Energy, 609 F.2d 736, 737 (5th Cir. 1979).

The Defendants’ only argument as to the first re-

quirement was that their appeal was not frivolous.

This argument does not meet the first requirement.

As to the second and fourth requirements, the De-

fendants argued that if their appeal was successful,

then the public interest would be harmed by the De-

fendants’ workforce being disrupted by Mr. Little

being placed in the position and subsequently removed.

In addition, the Defendants argued that they would

have difficulty in recovering the additional salary

that Mr. Little would receive. The Special Master

notes that the Defendants have frequently filled other

positions, and in fact filled this same type of position,

on a temporary basis without disrupting the work-

force. Therefore, the Special Master determines that

the filling of this position with a qualified individual

would not harm the public interest, even if Mr. Little

was subsequently removed. The Special Master ques-

tions whether the Defendants will have difficulty in

recovering the additional salary, but even if there

were such difficulty, the Special Master determines

that such difficulty would not support an irreparable

injury requirement. Finally, the Special Master

notes that even if the Defendants were to adjust Mr.

Little’s records so as to reflect an earlier starting date,

the loss of actual experience in a position to which

Mr. Little is entitled may harm his future ability to

advance. Thus, the granting of a stay may harm

other parties.

34a

After due consideration of the aforementioned

guidelines, the evidence adduced in the litigation of

this claim, and the argument of counsel, the Special

Master determines that the Defendants’ have not

met any of the requirements for a stay. Therefore,

the Defendants’ request for a stay should be and it is

hereby denied.

The Special Master directs that Defendants imme-

diately commence the placement of Mr. Little in the

pending, presently unfilled WS-5306-7 vacancy. Coun-

sel for Mr. Little shall calculate seniority, back pay

and other appropriate relief with the appropriate

set-offs, commencing as of March 21, 1982, the date

on which the Kelly vacancy was filled temporarily.

This calculation shall be submitted to the Defendants

for their comments, and then to the Special Master

for approval. The Special Master determines that

the presentation of this claim to the Special Master

was reasonable, and that in addition, Mr. Little pre-

vailed, and therefore counsel may submit a request

for an award of reasonable attorneys’ fees.

DONE AND ORDERED this 14th day of Novem-

ber, 1983, nune pro tune, the 8th day of November,

1983.

/s/ Harold B. Crosby

HAROLD B. CROSBY

Special Master

35a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

Civil Action No. PCA 76-175

WILLIAM C. TURNER, ET AL., PLAINTIFFS

HANS M. MARK, Secretary of the

Air Force, ET AL., DEFENDANTS

CONSENT JUDGMENT

SECTION I:

INTRODUCTION

This case arises under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-16, and was brought

against the Secretary of the Air Force and the Chair-

man of the Civ’i Service Commission [now Director,

United States Omice of Personnel Management

(OPM), substituted by Order, dated March 9, 1979].

The plaintiffs in this case are the Ft. Walton Branch

of the National Association for the Advancement of

Colored People, the Progressive Community Improve-

ment Organization, and 18 individual black employ-

ees of and applicants for employment at Eglin Air

Force Base. This case arose upon the informal ad-

ministrative complaint of the plaintiffs, Ft. Walton

NAACP, et al., filed in February 1976. The plain-

tiffs filed their Complaint with the Court on Novem-

ber 10, 1976.

36a

In their Complaint and Amended Complaint, the

plaintiffs have alleged that the defendant, Secretary

of the Air Force, has maintained patterns and prac-

tices of discrimination against black employees and

applicants for employment at Eglin AFB, which prac-

tices include discrimination in hiring, promotion,

transfer, conditions of employment and retaliation

against black and white employees for protesting un-

lawful employment practices. In his Answer, the

Secretary has denied the allegations of the Complaint.

The plaintiffs have also alleged that the defendant,

Director, Office of Personnel Management, has long

been aware of the unlawful discriminatory practices

existing at Eglin AFB and has failed to discharge

his statutory responsibilities with respect to these

practices. The Defendant Director has denied these

and related allegations to his Answer.

The Court, by Order of January 28, 1977, as mod-

ified by Order of November 14, 1978, has certified a

class pursuant to Rule 23(b) (2), described as fol-

lows:

All Negroes who were employed as civilians by

the Eglin Air Force Base on January 9, 1976,

or at any time thereafter, all Negroes who could

have filed administrative complaints of discrim-

ination against Eglin Air Force Base on Janu-

ary 9, 1976, or at any time thereafter, and all

Negroes who may in the future apply for em-

ployment at the Eglin Air Force Base.

The parties have vigorously conducted discovery

for over two years following the filing of the initial

Complaint. The parties have announced their inten-

tion to the Court to attempt resolution of the sub-

37a

stantive issues raised in the Complaint. This judg-

ment refiects the product of their negotiations.

WHEREAS plaintiffs and defendants consent to

the entry of this Judgment on the grounds that it

will further the objectives of the aforementioned Act,

resolve these matters without the time and expense

of further litigation, and fully protect the interest

of all the defendants’ employees and applicants for

employment and;

WHEREAS there has been a recent increase in

black participation in Eglin’s work force as a result

of affirmative efforts, and;

WHEREAS plaintiffs and defendants further

agree that this Judgment is not premised upon a

judicial finding of systemic discrimination against

plaintiffs or the class they represent; NOW, THERE-

FORE, prior to the taking of testimony in the trial

of this action and without adjudication of any issue

of law or fact herein and upon the consent of the

parties hereto, it is hereby ORDERED, ADJUDGED

AND DECREED AS FOLLOWS:

SECTION II:

GENERAL PROVISIONS

1. This Court has jurisdiction over the subject

matter of this action and of the parties hereto. The

Complaint states claims upon which relief may be

granted under 42 U.S.C. § 2000e-16, et seq.

2. This Court finds that the entry of this Judg-

ment is in the public interest, is in furtherance of

the objectives of the Equal Employment Opportunity

Act of 1972, 42 U.S.C. § 2000e-16, et seqg., and pro-

tects the rights of all interested class members. The

Court further finds that the class has been adequately

represented by plaintiffs and their attorneys. The

38a

provisions of this Consent Judgment are not intended

to eliminate any prospective rights otherwise avail-

able to complainants under Title VII of the Civil

Rights Act of 1964 as amended, or any other rights

provided by law.

3. The defendants, their officers, agents, servants,

employees, and attorneys, and those persons in active

concert or participation with them who receive actual

notice of this Judgment by personal service or other-

wise are hereby enjoined and restrained from en-

gaging in any act or practice with the purpose or

effect of discriminating or retaliating against any

named plaintiff or class member on the basis of race

and from failing to implement and comply with the

enumerated provisions of this Judgment.

4. Defendants shall not engage in or be party to

any act, policy or practice which has the purpose of

discriminating or retaliating in any manner against

any plaintiff, any employee or former employee, or

any applicant for employment because he or she has

furnished information or participated in any respect

in the prosecution of this action, or because he or

she has made charges, testified, ass.cted a claim or

participated in any manner in any investigation or

proceeding under 42 U.S.C. § 2000e-16, et seqg., or any

regulations promulgated thereunder.

5. This Judgment is intended to embrace all per-

sonnel practices of the Civilian Personnel Office of

the Eglin Air Force Base as well as the responsibil-

ities of the Office of Personnel Management with re-

gard to those practices. The provisions of this Judg-

ment are further intended to apply to all personnel

practices of the tenant organizations within the Air

Force serviced by the Eglin Air Force Base Civilian

Personnel Office, including Hurlburt Field.

39a

6. This Judgment shall remain in effect for a

period of seven (7) years following entry and ap-

proval by the Court during which time the Court will

retain jurisdiction to modify or enforce the Judg-

ment. Further, if at the end of the seven (7) year

period set forth above, plaintiffs believe that the re-

quirements of the Judgment have not been substan-

tially accomplished, they shall have the right to peti-

tion the Court for an Order extending the terms of

the Judgment for a specific period of time not to

exceed three (3) additional years.

7. The defendants shall ensure black representa-

tive(s) on the Civilian Policy Board * and any other

manpower or personnel policy making boards having

significant responsibility for advising or making de-

terminations with respect to civilian personnel or

manpower policy matters.

8. The defendants shall ensure that all occupa-

tional qualifications are in conformity with appli-

cable requirements as promulgated by appropriate

Federal agencies. Toward this end the defendants

specifically commit themselves to imposing a require-

ment that a candidate for employment as a stenog-

rapher be stenographically qualified and that vacant

secretarial or clerical positions shall not include or

maintain stenography as a mandatory qualification

requirement unless the pusition requires significant

(10% or more of the time) stenographic perform-

ance on the job.

9. In interpreting the provisions of this Judg-

ment which may become disputed among the rarties,

the law as set forth by Title VII of the Civil Rights

* The Civilian Policy Board is a board, appointed pursuant

to AFSC Regulation 40-3, dated June 6, 1980, whose function

is to advise the local command on civilian personnel matters.

40a

Act of 1964 as construed by the courts, shall apply. °

Where the phrase “good faith effort’ is used in this

Judgment all parties recognize this phrase to mean

that every necessary and appropriate step will be

taken to realize the specified objectives. Where the

word “employment” is used herein, it is used to in-

clude “re-employment” as well. References to the

masculine gender shall include the feminine gender.

SECTION III:

SPECIAL MASTER

1. The parties shall endeavor to agree upon the

designation of an individual to serve as a Special

Master for the purpose of resolving disputes between

the parties under the terms of the Judgment.

2. In the event that the parties cannot agree on

the designation of a Special Master and have so noti-

fied the Court within thirty (80) days from the en-

try of this Judgment, the Court shall make such

designation. The parties may tender suggestions to

the Court for this purpose at the time that the Court

is notified that no agreement can be reached.

3. If the Court appoints a Special Master for

whom it is appropriate to provide reasonable com-

pensation and expenses, this compensation and ex-

pense shall be borne by the defendants, in an amount

and in a manner to be determined by the Court.

SECTION IV:

CLASS MEMBER IDENTIFICATION

1. The parties shall make every reasonable effort

to identify black persons who have unsuccessfully

applied for employment at Eglin AFB from March

4la

24, 1972, to date. In order to be considered for a

monetary award, and other relief pursuant to this

Judgment the claimant must demonstrate:

a. that he or she is a class member, and

b. that an application for empioyment at Eg-

lin was made in a manner and under such

circumstances as to express an interest in

federal employment at the Base, and

ce. that because of an expression of continuing

interest or through such other circumstances,

he or she had sufficient reason to believe that

the application was current or active on Jaii-

uary 9, 1976, or thereafter, and

d. that he or she was qualified for the posi-

tion(s) sought.

2. The parties shall make every reasonable effort

to identify black persons who would have applied for

employment at Eglin AFB between March 24, 1972,

and the date of entry and approval of this Judgment.

Plaintiffs acknowledge that each claimant shall bear

the difficult burden of establishing that he or she

had a perception that applying for employment with

Eglin would have been a futile act on account of

his or her race. In order to be considered for a mon-

etary award, and other relief pursuant to this Judg-

ment, the claimant must successfully establish with

credible evidence other than or in addition to his own

testimony, that:

a. he would have applied for employment at

Eglin; and

b. he possessed the requisite qualifications for

the position(s) he would have sought.

42a

It is the further intention of the parties that this

determination shall be guided by the language of the

Supreme Court in Teamsters v. U.S., 431 U.S. 324

(1978), and related cases.

3. Persons as described in Paragraph 1 and 2

above will be furnished the notice in Attachment A

and B respectively!

SECTION V:

CLASS MEMBER COMPENSATION

1. For the purpose of establishing a fund for the

liquidation of damage claims of class members pur-

suant to this Section, the defendants shall expedi-

tiously cause to be deposited with the Clerk of this

Court the amount of $2,000,000.00. Until such funds

have been distributed pursuant to this Judgment,

they shall be prudently invested in obligations of ade-

quate security to satisfy the Court. All interest ac-

crued shall be added to the fund to be distributed to

the class members. :

2. Within sixty (60) days from the date of entry

of this Judgment the parties shall give notice to all

class members advising them that they may be con-

sidered for a damage award under the terms and

procedures described below. This notice shall be given

directly by mail or telephone where it is practicable

to do so, and it shall be given by publication in exist-

ing government periodicals and in public media in

the Northwest Florida community reasonably calcu-

lated to so inform afferted class members. This nctifi-

cation shall inform ciass members of the general

terms of this Judgment and it shall specify the date,

to be determined by Court Order, by which members

seeking to be considered for a damage award must

contact the Plaintiffs’ Monitoring Committee.

[* Attachments A and B have not been reprinted.]

SeCLIEieaieeee

EON woos

= Se 3

—_

le ts oor Os

SATE OT

43a

3. In order to receive a damage award from the

fund established under Paragraph 1, above, each class

member seeking such an award shall establish to the

satisfaction of the Plaintiffs’ Monitoring Committee

that:

a. He or she had applied for or attempted to

obtain Federal employment at the Eglin com-

plex at any time since January 9, 1974, and

that at the time of application or attempted

application he or she was qualified for such

employment under the standards published

in Civil Service Commission Handbook X-118

or X-118C, or that,

b. He or she would have applied for federal em-

ployment at the Eglin complex at any time

since January 9, 1974, but did not make such

an attempt based upon his or her perception

of existing discriminatory practices, PRO-

VIDED, however, that class members seek-

ing to establish their entitlement under this

sub-section shall be required to supply ex-

trinsic evidence of the fact that they would

have so applied for employment, and _ pro-

vided further that they can establish the year

in which they would have so applied and that

they were qualified for such employment. un-

der standards published in Civil Service Com-

mission Handbook X-118 or X-118C.

4. Promptly after the date established by the

Court as the deadline for class members to notify

the Plaintiffs’ Monitoring Committee of their desire

to be considered for a damage award, the Plaintiffs’

Monitoring Committee shall elicit all necessary in-

formation from the class member claimants in order

44a

to make its determinations as to eligibility under the

standards described to Paragraph 3, above.

To aid in‘substantiation of claims set forth herein,

defendants shall furnish any relevant documents and

evidence in its possession pertaining to each claimant,

as requested by the Plaintiffs’ Monitoring Committee.

Such documents and evidence shall be searched out,

assembled and delivered by defendants to the Plain-

tiffs’ Monitoring Committee promptly upon notice to

defendants that an individual has presented or in-

tends to present a claim. If no such documents or

evidence are in defendants’ possession, defendants

shall so certify.

5. Following the determination of eligibility by

the Plaintiffs’ Monitoring Committee, the Committee

shall apportion the eligible claimants’ damage awards

according to the following formula:

a. Class members establishing that they applied

or would have applied for employment at

Eglin in a Wage Grade or General Schedule

Level 1 through 4 position shall be credited

one point for each six month calendar period

or portion thereof between January 1, 1974,

and date of Court approval, following the

date of application, during which the class

member’s actual employment income was less

than he would have earned through Eglin

employment.

b. Class members establishing that they applied

or would have applied for employment at

Eglin in a Wage Grade or General Schedule

Level 5 through 9 position shall be credited

one and one-half points for each six month

calendar period or portion thereof between

RD ee Ra ee Ne i ee Te aetna, 20 aa ee knee oe

ee a eee

45a

January 1, 1974, and date of Court approval,

following the date of application, during

which the class member’s actual employment

income was less than he would have earned

through Eglin employment.

. Class members establishing that they applied

or would have applied for employment at

Eglin in a Wage Grade or General Schedule

Level 10 or above position shall be credited

with two points for each six month calendar

period or portion thereof between January 1,

1974, and date of Court approval, following

the date of application during which the class

member’s actual employment income was less

than he would have earned through Eglin em-

ployment.

. Those class members who unsuccessfully ap-

plied for Eglin employment on more than

one occasion will be credited only with the

single application which results in the largest

allocation of points.

. After the point allocations described in sub-

section a, b, c and d have been determined by

the Plaintiffs’ Monitoring Committee for each

class member claimant, each class member’s

share of the total damage award shall be cal-

culated by dividing that class member’s point

allocation by the total point allocation for all

class members. The formula governing dis-

tribution is as follows:

Accrued

Individual Point Allocation x ($2,000,000+ Interest)

Total of all Class Member

Point Allocations

46a

f. No individual class member shall receive a

damage award in excess of $40,000. In the

event that the fund established in paragraph

1 above is not exhausted by the distribution

formula set forth in this paragraph, any ex-

cess not so distributed shall revert to the

Government.

6. All calculations described and required by this

Section shall be conducted with the advice of Plain-

tiffs’ counsel and shall be certified as accurate by a

licensed Certified Public Accountant. Promptly fol-

lowing the certification of accuracy, the Plaintiffs’

Monitoring Committee shall provide it, as well as a

list of all class members and their corresponding

point allocations to the Special Master for his ap-

proval. All class members considered by the Com-

mittee shall be notified by the Plaintiffs’ Monitoring

Committee of the final determination of the Commit-

tee and they shall be given a period of fourieen (14)

days to file any complaints concerning such determi-

nations with the Special Master. The Special Master

shall resolve any complaints regarding Committee de-

terminations as quickly as possible.

7. The class members who have received a mone-

tary offer shall then have thirty (80) days after the

Special Master’s final determination of the amount

to be distributed hereunder within which to opt out

of this class. Those class nembers may opt out only

for purposes of contesting the amount of monetary

damages awarded under this Section. The amount

that would have been distributed to those class mem-

bers who opt out shall revert to the Government.

Those who opt may pursue an individual claim only

for monetary damages by further proceedings estab-

lished by the Court in this lawsuit. These proceed-

47a

ings will not provide for individual trials involving

issues of discrimination or liability therefor, as those

matters are forever settled by the class members and

parties to this Consent Judgment. The determination

of such greater amount shall be based on the criteria

articulated by applicable law. The Court will hold

hearings only on the issue of monetary damage

awards. Further, if seven (7) or more class mem-

bers elect to opt out under these provisions, the de-

fendants have the option to vacate this Consent Judg-

ment in its entirety with no obligation to negotiate

or confer with plaintiffs or the Court regarding the

basis of exercising such option. The defendants shall

have thirty (30) days after the expiration of the

time for class members to opt out to provide notice of

the exercise of their option to vacate this Consent

Judgment.

8. The Special Master shall, after the expiration

of the time set forth in paragraph 7 above, direct the

Clerk of this Court to distribute the fund and all in-

terest accrued to the class members who have not

elected to opt out and, if appropriate, the Govern-

ment, according to this Section.

SECTION VI:

PRIORITY EMPLOYMENT

1. The defendant Air Force shall hire 100 class

members at Eglin who have been previously rejected

or dissuaded from employment according to the fol-

lowing procedures:

a. The Plaintiffs’ Monitoring Committee shall

canvass the list of successful class member

claimants who received a damage award pur-

48a

suant to Section V, above. The Committee

shall prepare a list of names of those class

members receiving an award or who would

have received an award but elected to opt

out of the class to pursue an individual claim

for monetary damages whom the Committee

finds to be interested in Eglin employment

and generally qualified for such employment.

A personnel specialist from Eglin will be

made available to the Plaintiffs’ Monitoring

Committee to assist in this process.

The Plaintiffs’ Monitoring Committee =!)

transmit the list of names to Eglin for its m-

view of the qualifications of candidates. As

promptly as possible, Eglin shall indicate

those whom it agrees are generally qualified

for Eglin e.nployment.

A final list of class members shall be pre-

pared from those whom the Plaintiffs’ Moni:

toring Committee and Eglin have agreed to,

including those, if any, whom the Special

Master has determined are qualified for

Eglin employment. This list shall consist of

the class member’s name and the General

Schedule or Wage Grade series and grade for

which he or she has been found to be gener-

ally qualified and have indicated a desire for

employment under this section. In those in-

stances where more than one class member is

found to be qualified for the same position,

a panel shall be constituted composed of two

(2) representatives of the Plaintiffs’ Moni-

toring Committee and two (2) representa-

tives from Eglin Air Force Base whose duty

ee le et es

49a

it shall be to rank order those class members.

Should three (3) members of this panel fail

to agree on a rank order of those class mem-

bers; the rank ordering shall be resolved by

the Special Master. Eglin shall then hire

from this list according to the ranking ex-

cept for good cause shown. The Special Mas-

ter shall resolve all disputes over such selec-

tion.

d. All class members wh had communicated

their desire for Eglin employment to the

Plaintiffs’ Monitoring Committee shall be

given notice by the Plaintiffs’ Monitoring

Committee of the list prepared under this

Section. They shall be given a period of four-

teen (14) days following notice to lodge ob-

jections as promptly as possible with the

Special Master. Following the resolution of

such objections by the Special Master, he

shall order Eglin to hire from the list as set

forth below.

2. Eglin shall offer career, career-conditional, or

Career Overage Pending Assignment (COPA) em-

ployment to each class member whose name is listed

on the list established in Paragraph 1 as vacancies

occur in the positions for which they qualify. Notice

of the offer shall be given simultaneously to the Plain-

tiffs’ Monitoring Committee. This vbligation shall

supersede and take priority over any other employ-

ment preferences which may exist by law or civil

service procedures, PROVIDED, however that this

obligation shall terminate upon the occurrence of ei-

ther of the following conditions:

50a

a. The list of class members is exhausted, or

b. One hundred class members have accepted the

employment opportunities tendered. Class

members who voluntarily decline an offer of

emp!oyment shall have their names stricken

from the list and shail not be entitled to re-

ceive any other offers from that list.

Eglin’s goal is to meet this obligation within 18

months of the date of receipt of the final list of class

members pursuant to Paragraph 1, above. Should

Eglin, having made very good faith effort, fail to

meet this goal, an extension of six months may be

granted by the Court unless otherwise stipulated to

by the parties.

3. Class members shall be required to complete a

Standard Form 171 in order for their qualifications

to be evaluated. OPM shall assist as may be neces-

sary in the completion of Form 171.

4. Eglin shall transmit to the Plaintiffs’ Monitor-

ing Committee, upon the date this Judgment is ap-

proved, a listing of all existing vacancies, a projec-

tion of anticipated vacancies and the turnover rates

for all Eglin jobs.

5. All disputes regarding class member qualifica-

tions and job criteria shall be resolved by the Special

Master.

SECTION VII:

HIRING GOALS

1. Throughout the life of the Judgment, Eglir.

shall make every good faith effort to recruit, hire and

maintain at a minimum the following racial propor-

tions for the indicated series and occupational cate-

gories:

5la

a. OCCUPATIONAL CATEGORY *

Scientists and Engineers

Other professionals

Technical

Managers and Administrators

Clerical

Craftsman

Operatives

Service Workers

Laborers

b. SERIES TITLE

312

318

332

345

382

501

802

856

861

1920

1310

1520

2005

2614

4102

5378

5803

6907

7404

7407

6802

8852

Clerk-Stenographer

Secretary

Computer Operator

Program Analyst

Telephone Operator

General Accounting Admin.

Engineering Technician

Electronics Technican

Aerospace Engineer

Illustrator

Physicist

Mathematician

Supply Clerk and Technician

Electronics Mechanic

Painter

Powered Support Systems

Mechanic

Heavy Mobile Equipment

Mechanic

Warehouseman

Cook

Meatcutter

Aircraft Engine Repairer

Aircraft Mechanic

Goal (%)

Anrmaawwwrrhwrantowonranas

for)

* These categories contain the specific job series as listed

in Attachment C. For purposes of labor market analysis,

Attachment C contains the cross-mapping between the specific

52a

2. When detailed occupational data from the 1980

Census of Population becomes available, this data

will be used to recalculate all goals set forth in Para-

graph 1 above, using the following agreed upon labor

markets: