# Petition for Writ of Certiorari — Poss v. Howard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0266%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 1002 ## Text F. SPANIOL, JR. , CLERK rl Supreme Court of the United States October Term, 1989 ROBERT POSS, et al. Petitioners-Appellants MICHAEL HOWARD, et al., Plaintiffs-Respondents ™e JOHN L. McLUCAS, et al., Defendants-Respondents "™ - ~ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ns — Epwarb T. M. GarLAND The Garland Firm, P.C. 92 Luckie Street, N.W. Atlanta, Georgia 30303 (404) 577-2225 Counsel of Record Of Counsel: Hunter R. HUGHES Rogers & Hardin 2700 Cain Tower 229 Peachtree Street, N.E. Atlania, Georgia 30303 (404) 522-4700 August 31, 1989 Rosin N. Loes The Garland Firm, P.C. 92 Luckie Street, N.W. Atlanta, Georgia 30303 (404) 577-2225 Counsel for Petitioner Lex Publishing Company, 2161 Monroe Dr., Atlanta, Georgia 30324 (404) 875-5140 “ln > - s 7 ew 7 an fs ~ a = 7 = “|S Phy tone fn oe i A s —, - » mF - r # QUESTIONS PRESENTED 1. Whether a consent decree which sets aside promotional positions solely for blacks based upon a predicate of a statistically significant underutilization of blacks violates Title VII and the Constitution? 2. If such statistical underutilization is a sufficient predicate to permit a racial set-aside, was this consent decree sufficiently nar- rowly drawn to comply with Title VII and the Constitution? ii LIST OF PARTIES Trial Judge Wilbur D. Owens, Jr. Attorneys Jack Greenberg Ronald L. Ellis Bill Lann Lee Thomas M. Jackson Charles A. Mathis, Jr. Anne L. Weismann John L. Lynch Joseph F. Henderson Perry L. Anderson Michael A. Deep Edward T. M. Garland Robin N. Loeb Hunter R. Hughes Organizations Representing Parties NAACP Legal Defense Educational Fund Center for Law In The Public Interest Erion, Exum, Mathis & Wootan U. S. Department of Justice The Garland Firm, P.C. Rogers & Hardin American Federation of Govemment Employees, AFL-CIO U. S. Air Force The Wamer Robins Constitutional Rights Fund, Inc. (A nonprofit organization containing over 1100 members) Parties Michael Howard, Named Plaintiffs and Class of Black Employ- ees of Wamer Robins Air Logistics Center (WR-ALC) vac! iii Robert Poss, 137 Named Intervenors-Appellants, and other Non-Black Employees of Wamer Robins Air Logistics Center (WR-ALC) Affected by the Consent Decree The United States of America The United States Air Force Vv TABLE OF CONTENTS Page II... cssscaisaecreiiacniaiacanaiedll i a ccessssnanciinleouameseiaieiall ii I ooo ca ca cnc cccnsncncessecessosescevencecennnenns v a. cssamssionsecninninuamnnaneld vii OPINIONS BELOW ...0.......cccscsseesseeeenee RTE ta eR k 2 a ccleccdla destinies 2 STAR a eee LE. 3 CI a siciicscisccennsnk ens cscscnssscerenerearnernes 3 REASONS FOR GRANTING THE WRIT .......ccssssecssssesssseeeseees 11 I. The Decision Below Presents an Important Federa! Ques- tion That Has Not Been, But Should Be, Decided Nadas iattnsnienlsiitiseaateinebinniseieniedibadinhaintnibiageepentinhneens 11 II. The Decision Below Conflicts With The Decisions Of This Court With Regard To The Predicate Required gE RE ARTE EE AC 14 A. The Decision of the Eleventh Circuit is In- consistent With The Constitutional Standards SRS Ty THIS CIE ...xscnrsccsresccreescscscsiiscccscsees 14 1. This Court’s Prior Constitutional Affirmative Action Decisions ....................cc0e 14 2. The Eleventh Circuit Decision ...................00008 17 B. The Decision Of The Eleventh Circuit Is In- consistent With The Title VII Standards Es- I Ie IN INU acencaceticdcednbaiicstnnneeniniennsnnrnse 19 1. This Court’s Prior Title VII Affirma- I I sala caesiattiatiniteeciaconanceedcennn 19 2. The Eleventh Circuit Decision ..................000 21 vi III. The Decision Below Conflicts With The Decisions of This Court With Regard To Narrow Tailoving ................ A. The Consent Decree Is Unconstitutional Because It Is Not Narrowly Tailored .................... 1. The Eleventh Circuit's Failure to Con- sider Race-Neutral Altematives Violates Constitutional Standards Set er NN sppceriddhaicentntannnnsatnaneemencnencsee 2. The Consent Decree Does Not Satisfy Constitutional Standards For Identi- fying Victims Of Racial Discrimina- B. The Consent Decree Violates Title VII Because It Is Not Sufficiently Narrowly Drawn. ................. APPENDIX A. Opinion of the Court of Appeals ................. APPENDIX B. Opinion of the District Court ...............e APPENDIX C. Judgment of the Court of Appeals............... APPENDIX D. Order Denying Motion for Rehearing and Suggestion for Hearing En Banc................. Vii TABLE OF AUTHORITIES Cases Page Barhold v. Rodriquez, 863 F.2d 233 i ccncesenideenenansaheaneiianiin 22 Brown v. General Services Administration, ER A 18 City of Richmond v. J. A. Croson Company, 488 U.S. , 2 10-16, 22, 23, 24, 25 Croson v. City of Richmond, INTEL MOMEED scsacetvsaccrsssnenasenessniabesatetaneesenisants 20 Davis v. Passman, 7 SRE I RO RN TE AERA 18 DeFunis v. Odegaard, inca in cicimmmembaneseinhneeenenliamabean 10 Doe v. U. S. Postal Service, 37 F.E.P. Cases 1867 ai seeenapininetsnniannnntnncstansiien 18 EEOC v. Local 28 of the Sheet Metal Workers International Association, I EE 16 Franks v. Bowman, SET EEE ET 24 Frontero v. Richardson, cma senalusimennedeininialial 26 Fullilove v. Klutznick, TNE CO TER 12, 15, 22, 24 Hammon vy. Barry, OD a rsstmisbenmnstinalehalllica 18 Hammon v. Barry, ST in aiescaiedintaanehnemmanninnnnnniniehibdl 27 Hammon vy. Barry, ee ey ties acti CUPID Ge cesdnsencinenersivcinennenssnnannntsiacsonbnesn 13 viii Hildreth v. Union News Co., 315 F.2d 548 I SII ieilslacteicncisesisimepnseunstebicidiienanteserenmnasennesnemanenennens 10 Howard v. McLucas, 597 F. Supp. 1501 I iain eaincnnsahennnernnncipngeenemnnnnnd 4,5,6 Howard v. McLucas, 671 F. Supp. 756 SN IIE sti eiieciasheeeehchlanatnnnnnangnernemnesennne 2, 6, 7, 9, 10 Howard v. McLucas, 782 F.2d 956 EE ee 2,4,9 Howard v. McLucas, 871 F.2d 1000 (En 2, 3, 4, 9, 10, 23, 25 International Brotherhood of Teamsters v. Cesbanl Saban, SSE UB. SB6 CRG) o.accceecvsecvecevevevscsccscecscesesess 24 Johnson v. Transporiation Agency, Santa Clara County, California, 480 U.S. 616 (1987) ............... 11-14, 19-21, 27, 28 Krenzer v. Ford, 429 F. Supp. 499 I sas ensneemsecbenuenntinedtnetio 18 Local 28, Sheet Metal Workers v. EEOC, SO UE, ae CI icecncstscenntcnsecreseess 12, 14-17, 19, 20, 23, 26 Local 93, International Association of Firefighters v. City of Cleveland, I iia ce cscrnnnssennnsenasscnbinensinaition 12, 20, 23 Martin v. Wilks, US. , 109 S.Ct. 2180 (1989) .00... iansigsivaciedadetbadidasiuainysinninbaiaiiions 14 Personnel Administrator of Massachusetts v. as iccarstnenmannneninnecnaoncanatncen 15 Regents of the University of California v. Bakke, EE a 10, 11, 15 San Francisco Police Officers Assn v. San Francisco, 812 F.2d 1125 (9th Cir. 1987)... 20, 21 A’ ix Shurberg Broadcasting of Hartford, Inc. v. Federal Communications Commission, SS 24 Steelworkers v. Weber, EE 12, 20, 27 Thompson v. Sawyer, 678 F.2d 257 ne nen cnt nineeseescnnnesannciennesesssnenens 27 United States v. City of Chicago, RI TIE, IDE sacicncececccensecssssnsesnssnsnsncesecusevesese 27 United States v. Paradise, eB IO cxcetncecasenecenecenccecseeeeees 10, 12, 14, 16, 17, 22 Wygant v. Jackson Board of Education, _ ee 11, 12 Youngblood v. Dalzell, 804 F.2d 360 TIT ti iat ntiaenennnchnennindnstnenananasninetnssenedbpecteanens 23 Statutes: Title VII of the Civil Rights Act of 1964, Re NID, areccsnsccntnesececsscsenscecnensocsnensesensien passim CS CR 23 Constitutional Amendments: The Fifth Amendinent to the CRISS SUMS COMSUATION ......n.....cssececsscsessecssessescossesecssess passim Articles: Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 Harv. L. Rev. 1312 (1986) ................... 15 Days, D., Fullilove, 96 Yale L.J. 453, 459 Sa ueTnTTInT sisbsiiieielisdeishsttietehceasheltelihadeibinabdestnainenantinasuiannensssnensnsensenees 22 Ruthieglen & Ortiz, Affirmative Action Under the Constitition and Title Vil: From Confusion to Convenience, 35 U.C.L.A. L. Rev. 467 (1988) .........000cccc00 27 xX Schwartz, The 1986 and 1987 Affirmative Action Cases: It’s All Over But The Shouting, No. a ~~ In The Supreme Court of the United States October Term, 1989 ys - ROBERT POSS, et al. Petitioners-Appellants MICHAEL HOWARD, et al., Plaintiffs-Respondents vs JOHN L. McLUCAS, et al., Defendants-Respondents ys ~~ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT La > The Petitioners, Robert Poss and other non-black employees of the Warmer Robins Air Logistics Center, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eleventh Circuit entered on April 27, 1989. The Petition for Rehearing and Suggestion for ‘Hearing En Banc of that opinion was denicd on Junc 2, 1989. ; 70g 2 OPINIONS BELOW The opinion of the Court of Appeals for the Eleventh Circuit is reported at 871 F.2d 1000 (1989), and is reprinted in the Appendix A, infra. The opinion of the United States District Court for the Middle District of Georgia is reported at 671 F. Supp. 756 (1987), and is reprinted in the Appendix B, infra. The judgment of the Court of Appeals for the Eleventh Circuit is reprinted in the Appendix C, infra. The Order Denying the Petition for Rehearing and Suggestion of Rehearing En Banc is reprinted in the Appendix D, infra. JURISDICTION The original action in this case as brought by Plaintiffs/ Re- spondents alleges violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII’’); the Thir- teenth Amendment and § 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Fifth Amendment to the United States Constitution (the “Fifth Amendment”); 5 U.S.C. § 7151 and Executive Order 11478; and 5 CFR Part 713. It was brought in the United States District Court for the Middle District of Georgia on October 21, 1975. Sub- ject matter jurisdiction was based on 28 U.S.C. §§ 1331, 1343(4), 1346(a), 1361, 2201, 2202 and 42 U.S.C. § 2000e-16(c). In June, 1984, a consent order and decree was executed and filed. On July 31, 1984, Petitioners moved to intervene alleging that the consent order and decree violated their rights under Title VII and the Fifth Amend- ment. The District Court denied Petitioners’ motion and Petitioners appealed to the Eleventh Circuit. The Eleventh Circuit reversed in 1986 and the case was remanded to the District Court. Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986). Petitioners thereafter moved to vacate the promotion provisions of the consent decree. The Dis- trict Court denied Petitioners’ motion on September 30, 1987. How- ard v. McLucas, 671 F. Supp. 756 (M.D. Ga. 1987). See Appendix B, infra. Intervenors appealed and on April 27, 1989, the Eleventh Cir- Cuit entered an opinion affirming the district court’s order granting 3 full approval to the consent decree. Howard v. McLucas, 871 F.2d 1000 (11th Cir. 1989). See Appendix A, infra. On May 17, 1989, Petitioners moved for rehearing and sugges- tion of rehearing en banc, which motion was denied on June 2, 1989- See Appendix D, infra. Jurisdiction of the United States Supreme Court to review the judgment of the Eleventh Circuit exists under 28 U.S.C. § 1254(1). STATUTES INVOLVED 1. The Fifth Amendment to the United States Constitution provides, in pertinent part: No person shall . . . be deprived of life, liberty, or prop- erty without due process of law... . 2. Section 703(a)(1) and (2) of Title VII provide: (703(a)] It shall be an unlawful employment practice for an employer —— (1) to fail or refuse to hire or to discharge an indi- vidual, or otherwise to discriminate against any individ- ual with respect to his compensation, terms, conditions, or privileges of employment, because of such individ- ual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunitics or otherwise adverscly affect his status as an employee, because of such individual’s race, color, religion, sex, Or national origin. STATEMENT OF THE CASE This case arises from the affirmance by the Eleventh Circuit Court of Appeals of the District Court’s denial of the Petitioners’ motion to vacate the terms of a consent decrce entered in a race dis- crimination case which scts aside 240 promotions solely for black employees. The Petitioners are non-black intervenors who protested the entry of the decree alleging that it violated their rights under Title 4 VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Fifth Amendment to the United States Constitution. The original Complaint in this action was filed by a class of black employees (the “Plaintiffs’’) alleging discrimination by the United States (the “Government’”’) at Wamer Robins Air Logistics Center (“WR-ALC’”). In June, 1984, a consent order and decree was filed by the Plaintiffs and the Government. The decree set aside 240 pro- motions solely for black employees, foreclosing all non-black em- ployees from competing or being considered for promotion to any of those positions. Non-black employees (the “Petitioners” or “Interve- nors’’) sought and were denied intervention. Howard v. McLucas, 597 F. Supp. 1501 (M.D. Ga. 1984). The District Court approved the entry of the proposed consent order and decree, including the exclusion of the intervenors from consideration for promotion to the 240 black-only positions. How- ard v. McLucas, 597 F. Supp. 1504 (M.D. Ga. 1984). Intervenors appealed and the Eleventh Circuit reversed the District Court’s de- nial of intervention. Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986). On remand, the Petitioners’ moved to vacate the promotion provisions of the decree. The District Court denied the motion and approved the promotional provisions of the decree on September 30, 1987. Howard v. McLucas, 671 F. Supp. 756. Petitioner’s appealed, challenging the decree on the basis that it violated both Title VII and the Fifth Amendment of the Constitution. The Eleventh Circuit up- held the race-conscious set-aside finding that it violated neither the Constitution nor Title VII. Howard v. McLucas, 871 F.2d 1000 (11th Cir. 1989). The Predicate For Relief The consent decree in dispute was founded upon a record which contains no evidence of intentional or cgregious discrimination. To establish a factual basis for the Court’s approval of the proposed decree, the parties to the settlement placed before the Court certain agreed- upon stipulations of fact. The Court’s order approving the consent decree, reported as Howard v. McLucas, 671 F. Supp. 756 (M.D. Ga. 1987), notes that Plaintiffs’ analysis, controlling for occupational se- ries, showed statistical dispantics in WG grade groupings 1-4, 5-8, ~~ 5 9-12, and G3 grade groupings 1-4 for blacks employed from 1971 through 1979, but no statistically significant disparities in any GS grade grouping. The Plaintiffs concluded from this analysis that 234 jobs had been lost to blacks. 671 F. Supp. at 760, 761. The record re- veals no year-by-year breakdown of promotions indicating whether the promotion shortfall was attributable to only one or two years or whether the rates of promoting blacks out of the source jobs were consistent over the relevant years. The Goverment had earlier developed statistical evidence which it contended reflected that no pattem existed which would indicate that blacks were treated in a substantially different manner than non- blacks with regard to promotions. Because the Government decided to settle the matter and supported the decree, it did not cross-exam- ine Plaintiffs’ experts, nor did it present its rebuttal experts to contest the figures provided by the Plaintiffs. At no time, however, did the Government ever admit to any discrimination. At page 2 of the con- sent decree, it is recited that: In agreeing to the settlement of this litigation, defen- dants are not admitting liability, or any past or present discrimination; but to the contrary, assert the validity of their denial of the allegations of the complaints as well as the validity of the defenses they asscried in connec- tion with this litigation. Further, in paragraph 8 of the decree, it is stated that: Neither the terms of this settlement nor defendants’ agree- ment to enter herein shall be interpreted as an admis- sion or a finding by the Court that defendants’ person- nel policies, practices, or procedures have resulted in adverse impact on any class member or have not been validated in a manner consistent with appropriate guide- lines. No evidence was presenied at any time that the statistical defi- ciency asserted by the Plaintiffs in a small number of job categories had anything to do with “old patterns of segregation and hierarchy.” Indeed, the Goverment had an active affirmative action program at WR-ALC pursuant to which special programs were implemented with the goal that all minority groups be provided the opportunity to par- 6 ticipate fully in all employment opportunities provided at WR-ALC. Additionally, WR-ALC had maintained an “upward mobility” pro- gram to provide training and encouragement for all individuals in lower-level positions to develop the skills and confidence to move on to higher-level and better-paying jobs. Inasmuch as blacks held a greater proportion of GS-8 positions and below, they clearly had been the primary beneficiaries of the “upward mobility” program. Based upon Plaintiffs’ unrebutted statistics, the Court found that a prima facie case of discrimination existed and approved the consent decree stating that the non-victim race-conscious relief was clearly authorized. 671 F. Supp. at 766. ~ The Terms of the Decree The decree entered by the Court had, among other things, the following provisions: (1) 240 black class members are to be promoted into 38 differ- ent target positions from 38 specially-constructed registers consist- ing solely of black class members; (2) For each of the 240 promotions, ony black class members are eligible for consideration; (3) The promotions to be awarded on the basis of race alter- nate with merit-based promotions of both blacks and non-blacks, such that every other promotion is from the black-only promotion regis- ter, (4) Each race-conscious promotion register was created by rank- ordering class members pursuant to a system established by the de- cree. The class consists of approximatcly 3,200 black employees who were hired prior to January 1, 1980. None of these employees were identified as having been denied any promotion to any particular position or having been the victim of discrimination. Indeed, paragraph 15 of the conclusions of law contained in the District Court’s order origi- nally approving the consent decree states that: The actual victims cannot be identified due to the very nature of the Wamer Robins promotion scheme, i.e., there are no applicants for promotions. 597 F. Supp. at 1514. ll 7 Further, the parties to the decree contended that they could not identify victims because sufficient records had not been maintained by the Government to identify class members excluded from promo- tion unfairly. 671 F. Supp. at 763. Unable to identify actual victims, plaintiffs and defendants settled upon the process whereby they would seek to approximate victim spccificity. First, the promotions were to go to blacks who had been em- ployed on a part- or full-time basis for at least one day between 1971 and 1979. The decree did not take into account the length of time that the individual was employed at WR-ALC and so did not consider the length of time to which any employee was exposed to the allegedly discriminatory practice. a After identifying that individual as a potential promotee, the consent decree specifies the process by which the individual would be rank-ordered for promotion. First, the Govemment was to iden- tify all class members who met the minimum eligibility requirements for the promotions as of 1983. There was no requirement, however, that the employees be identified who met minimum eligibility re- quirements for the positions during the 1971 through 1979 relevant period when (s)he might be have been discriminatorily denied a promotion. The class member is then re-ranked by weighing supervisory appraisals as of 1983 (and not appraisals during the 1971 through 1979-relevant period). Finally, the employce is to be ranked pursuant to his or her seniority. The seniority sstilized was the “service compu- tation date” which is the date on which an individual first makes a contribution toward a federal pension. This seniority includes mili- tary service and work for any federal agency or facility. It generally applies to any time during which onc is a federal employee. Accord- ingly, the seniority utilized for the rank-ordering of class members includes the employment time at WR-ALC (where the discrimina- tion was alleged to have occurred) and other federal goverment em- ployment including military service. The consent decree failed to consider when a class member moved into or out of a source position so as to be exposed to the factors giving risc to the statistical shortfall in promotions. Class members who were in a source position for a short period of time where there 8 was a Statistical imbalance found were given the same ranking as class members who had been in a such a position throughout most or all of the relevant time. The decree also did not take into account special circumstances such as leaves of absence from WR-ALC where a class member might not even have worked at WR-ALC for most or all of the 1971-1979 period. These failings could have been addressed in the decree, but were not. To do so, the parties to the decree needed only to review personnel files and computer records to determine the personnel actions such as the date of hire at WR-ALC; date of promotion or demotion out of or into a source position;~and date of any leave of absence, suspension, or other break of service in a source position. The accu- mulation of that data would have resulicd in a WR-ALC seniority date bearing a close relationship to the underutilization in the case. While it would not identify victims, it would have ensured that indi- viduals not exposed to the offending practices were not highly ranked for set-aside positions. The decree agreed upon by the Plaintiffs and the Govemment causes some of the Petitioners to be denied consideration for 50% of the next 480 promotions to the target positions. Some Petitioners, in fact, did receive promotions and, of necessity, those promotions were delayed for unidentifiable periods of time, while others are being postponed in on-going promotional processes. These postponements reduce the compensation of affected Petitioners at the estimated value of $1,500 per year. Additionally, the postponements affect the pen- sion payments petitioners reccive upon retirement because, under the Civil Service Retirement System Act and the Federal Employees Retirement System Act of 1986, retirement benefits are computed by averaging the high 3-years’ salary and multiplying that base by the appropriate number of years in service. Further, if layoffs occur, delayed promotions may mean that certain petitioners will be layed off or downgraded who would otherwise retain their jobs. Competing employees at WR-ALC are released for a reduction in force in inverse order of the ranking on retention registers. Finally, because merit based pro- motional registers are reconstituted with regularity, a promotion de- layed is often a promotion denicd. Under the consent decree, special promotions from the black-only promotion list are substituted for half of the merit promotions until the number of black-only promo- 9 tional slots are filled. The promotion roster of rankings set by the decree never changes once set. The merit promotion roster, however, changes as often as every six months. The result of these two rosters working in tandem is that some non-black employees who would have been promoted but for the consent decree may be permanently denied promotions. Finally, there is no evidence that the parties to the decree con- sidered any race-neutral alternatives which would have reduced the burden of the operation of the decree upon the Petitioners. They did not consult with the Intervenors as to alterative relief proposals but instead went forward on the basis that race-conscious set-asides were mandatory. i The Ruling of the District Court The District Court approved the decree on two grounds. First, it found that notwithstanding the settling parties’ failure to identify any victim of discrimination, the decree was valid as make-whole relief. Alternatively, the District Court upheld the decree as satisfy- ing both Title VII and constitutional requirements on the theory that a manifest imbalance had been established and the consent decree ensured fair treatment of minonitics and non-minorities. 671 F. Supp. 756. The Ruling of the Court of Appeals The Eleventh Circuit pancl first addressed the Intervenors’ constitutional challenge to the decree, finding that the decree “must be considered equivalent to a voluntary affirmative action plan” (871 F.2d at 1006) and, therefore, a factual determination had to be made that the government had a strong basis of evidence for its conclusion that the plan as set out in the decree was necessary (871 F.2d at 1007).' ' Surprising!y, the panel bricfly addressed the issue of standing, stating that Peti- tioners had tenuous standing w contest the decree because they did not prove that any particular Intervenor was denicd a specific promotion by the operation of the decree. In Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986), the panel allowing intervention concluded without reservation that Intervenors had standing. “Interve- nors-Appellants claim they are incligible for these promotions solely on account of race because non-discriminatce class members are cligible for the target positions. 10 The panel stated that the strong basis was satisfied when the district court found that a prima facie case had been established by the statis- tical showing. /d. Using that statistical imbalance as a predicate, the panel found that under strict scrutiny, the racial preference was suffi- ciently narrowly tailored to meet the requirements established by United States v. Paradise, 480 U.S. 149 (1987). The panel then summarily disposed of the Intervenors’ Title VII challenge, holding that because the set-aside passed constitu- tional muster, it could not violate Title VII. Although the panel’s decision was issued on April 27, 1989, the Court did not consider the Supreme Court’s January 23, 1988 decision in City of Richmond v. J. A. Croson, 109 S.Ct. 706 (1989) assessing the constitutionality of a governmental affirmative action plan and discussing the predicate required before a racial preference may be approved. \ We hold that this is sufficient to confer standing to intervene.” /d. at 959. This deci- sion is the law of this case. See //ildreth v. Union News Co., 315 F.2d 548 (6th Cir. 1963). no It is not disputed thast the Intervenors have suffered some injury: both the Dis- trict Court and the pancl found that at least 30 of the 137 named Intervenors had been promoted to and so clearly were qualified for the target positions. See Howard v. McLucas, 671 F. Supp. at 767 n. 4; /loward v. McLucas, 871 F.2d at 2204 n. 6. By operation of the decree and because of their race, however, the Intervenors could only be promoted to 50% of the target positions available. Those merit register pro- motions were made only to every other available target position; a fortiori positions of the Intervenors who have been promoted to target positions were delayed. See Howard v. McLucas, 671 F. Supp. at 767; //oward v. McLucas, 871 F.2d at 1005. This injury confers standing. Furthermore, Intcrvenors did not need to prove they would have been promoted but for the decree: their injury arises from the decree’s mandate that they cannot even compete for 50% of the promotions solely because of their race. See Regents of the University of California v. Bakke, 438 U.S. 265, 280 at n. 14(1978). Such an exclusion was also found to be impermissible in City of Richmond v. JA. Croson Company, supra, where the court found that the plan denied “certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race.” 109 S. Ct. at 721. (Emphasis added) See also DeFunis v. Odegaard, 416 U.S. 312, 337 (1974) (Douglas, J., dissenting) (“Whatever his race, he had a constitutional right to have his application considered on its merits in a racially neutral manner.”) 11 REASONS FOR GRANTING THE WRIT I. The Decision Below Presents an Important Federal Question That Has Not Been, But Should Be, Decided By This Court. - This case first presents an important question of federal consti- tutional (Fifth Amendment) and Title VI! [42 U.S.C. § 2000(e) et seq.) law which has not been, but should be, expressly decided by this Court: Whether a consent decree which sets aside promotional positions solely for blacks based upon a predicate of a statistically significant underutilization of blacks vio- lates Title VII and the Constitution. This Court has now firmly established the constitutional and Title VII standard that some form of race-conscious affirmative ac- tion relief may be based upon a sufficiently strong evidentiary predi- cate of discrimination. Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987). In the constitutional sctting, this Court has on several occa- sions considered whether the evidence in the record would support a race-conscious set-aside. In three such cases, governmental set-aside plans were rejected as unconstitutional because there was insuffi- cient probative evidence of any discrimination and therefore no predi- cate for any relief, much less race-conscious set-asides or quotas. City of Richmond v. J.A. Croson Company, ____. U.S. ___, 109 S. Ct. 706 (1989); Wygant v. Jackson Board of Editation, supra; Re- gents of the University of California v. Bakke, 438 U.S. 265 (1978). The set-asides were approved by this Court in two other cases where the race-conscious governmental action was predicated upon a prior finding of long-standing, deliberate and egregious discrimi- nation, punctuated by intransigent resistance to cflorts aimed at remedying 12 such discriminatory conduct. United States v. Paradise, 480 U.S. 149 (1987); Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).? This petition presents an issue which falls squarely between this Court’s rulings in Paradise and Sheet Metal Workers on the one hand and Croson, Weant, and Bakke on the other. In this case, de- spite no finding of long-standing, egregious or deliberate discrimi- nation by recalcitrant discriminators as in Paradise and Sheet Metal Workers, the Eleventh Circuit approved the constitutionality of a racial set-aside based simply upon a prima facie statistical case. Thus, un- like previous constitutional affirmative action cases addressed by this Court, this case presents the question of whether consent decrees providing for racial set-asides are constitutionally permissible based upon a statistical predicate, without any showing of egregious, delib- erate discrimination by a recalcitrant discriminator. This same issue is presented under Title VII. In Sheet Metal Workers, this Court also found that egregious, long-standing and deliberate discrimination and a refusal to comply with remedial! court orders was a sufficient predicate to permit a racial set-aside under Title VII.° This Court has also addressed, and upheld under Title VII, two vol- untary affirmative action plans where the predicate consisted of sta- tistical evidence. Johnson v. Transportation Agency, supra, Steel- workers v. Weber, 433 U.S. 193 (1979). However, unlike the raw promotional racial sct-asides approved by the Eleventh Circuit in 2 In Fullilove v. Klutznick, 448 U.S. 448 (1986), this Court reveiwed a federal gov- ernment minority set-aside program, upholding it, inter alia, on the grounds that Congress had made a finding that a nation-wide history of past discrimination had reduced minority participation in federal construction grants and that the Congress had the power under § § of the Fourteenth Amendment to employ race-conscious remedial relief. Because this case does not involve any Congressional action such as found in Fullilove, the Court's analysis in that case is not directly applicable to or contro!ling of this case. > In so holding, this Court stated “{w]hether there might be other circumstances that justify the use of court-ordered affirmative action is a matter which we need not decide here.” Local 28, Sheet Metal Workers v. EEOC, supra at 476. In Local 93, International Association of Firefighters v. City of Cleveland, 478 U.S. 501, 526 (1988), this Court indicated that a consent decree could possibly provide broader relief than could a court under § 706(g) of Title VII, but went on to provide that parties to a decree could not take any action that violates Title VII or the Constitution. 13 this case, the Johnson and Weber plans only permitted treating race as a “plus factor” in promotional decisions or gave limited racial priorities in newly established affirmative action training programs. This case thus presents in both the Constitutional and the Tide VII setting an issue that has yet to be decided by this Court — whether the remedy of racial set-asides or quotas is permissible under either the Constitution or Title VII based solely upon the predicate of statis- tically significant underutilization. This question is an important one deserving review by this Court. The question of what predicate is necessary under Title VII and the Constitution before a sct-aside remedy may be considered lawful is an important question of affirmative action law that should be addressed for ai least two fundamental reasons. First, the consequences of a mistaken standard can be extremely costly to both public and private employcrs and to society as a whole. See Hammon vy. Barry, 841 F.2d 426 (D.C. Cir. 1988). Racial prefer- ences, by their very nature, involve the most central and sensitive area of employment law — the empioyee selection processes. The ability of a public or private entity to favor one race over another goes to the very core of the employment process. These decisions affect and, in many cases, control not only the financial well-being and seif-esteem of the parties involved, but of necessity affect the resulting relations between cmployces of difference race, national origin or gender. Employment decisions which are made pursuant to a standard which improperly favors one class of employees over another based upon immutable characteristics inevitably lead to business and social ills ranging from production issucs to employee strife. This Court, therefore, should address this question and establish a stan- dard which resolves this fundamental issue of employment law. Second, litigants who seck to scttle employment cases also need a Clear standard upon which to base such settlements. In a substantial portion of employment litigation today, plainu Ts’ proof consists pnmarily of statistical evidence of undcrutilization. While this Court has held that under both the Constitution (City of Richmond v. Croson, supra) and Tide VII Johnson v. Transportation Agency, supra) some form of voluntary relicf may be predicated upon a statistical showing, this cee eee 14 Court has yet to make a definitive holding approving or disapprov- ing set-asides such as those sanctioned by the lower court in this case without proof of long-standing, egregious or deliberate discrimina- tion. The absence of a definitive standard is particularly important in this area given this Court’s holding in Martin v. Wilks, ___ U.S. __, 109 S.Ct. 2180 (1989). In Wilks, this Court held that non-par- ties to settlement agreements and consent decrees may attack racial set-asides or quotas for substantial periods after the agreements have been entered. Following the Wilks decision, parties to employment litigations have been and will continue to be very reluctant to settle cases presenting affirmative action issues absent express guidance from this Court as to the strength of the evidence necessary to sup- port racial set-asides. If the parties settle without this guidance and include any form of racial set-asides, they expose themselves to years of further collateral litigation, despite attempts to buy peace through settling the original case. This, of course, undercuts the basic public policy favoring settlements and provides a further strong basis upon which this writ should be granted. Johnson v. Transportation Agency, supra at 640, 641. Il. The Decision Below Conflicts With The Decisions Of This Court With Regard To The Predicate Required for Racial Set-Asides. A. The Decision of the Eleventh Circuit is In- consistent With The Constitutional Standards Established By This Court. 1. This Court's Prior C onstitutional Affirma- tive Action Decisions. While this Court has not expressly decided whether racial set- asides may be predicated upon simple proof of a statistical under- utilization, it has made it clear that racial preferences are remedies of the last resort and are to be used only in the most “extreme” circumstances. City of Richmond v. Croson, supra at 729. In rejecting the city’s racial set-aside plan in Croson, this Court reaffirmed its decisions in Paradise and Sheet Metal Workers that fat ee ye 4 15 “some sort of narrowly tailored racial preference” was constitution- ally permissible in “extreme” circumstances. /d. In Croson, how- ever, this Court decided that ail racial classifications, regardless of victims or beneficiaries, are suspect and require strict judicial scru- tiny. Accordingly, governmental racial classifications of every type are required to be analyzed on a strict scrutiny basis, and will be upheld only if they are both justified by a compelling purpose and are narrowly tailored. /d. at 721. Under the first prong of the strict scrutiny test, this Court made it clear that a compelling governmental purpose is critical in analyz- ing all racial classifications because “preferential programs may only reinforce common stercotype holdings that certain groups are unable to achieve success without special protection based upon a factor having no relation to individual worth.” Regents of the University of California v. Bakke, supra at 298. Stated otherwise, “(c}lassifications based upon race carry a danger of stigmatic harm. Unless they are strictly reserved for remcdial settings, they may in fact promote no- tions of racial inferiority and lead to politics of racial hostility.” City of Richmond v. Croson, supra at 721. Yet again Justice Stevens ob- served in Fullilove that “because classifications based on race are potentially so harmful to the entire body politic, it is especially im- portant that reasons for such classifications be Clearly identified and unquestionably legitimate.” Fullilove v. Klutznick, supra at 534, 535 (Stevens, J., dissenting). It is for this reason that this Court has de- clared racial classifications “presumptively invalid.” Personnel Administrator of Massachusetts v. F eeney, 442 U.S. 254, 272 (1979). Not only do these racial classifications Carry with them an in- herent danger of stigmatic harm to the beneficiaries, those disadvan- taged by the racial classifications are often simply innocent victims themselves whose individual rights as guaranteed by the Constitution are being abused. Regents of the University of California v. Bakke, supra at 320. See Abram, Affirmative Action: Fair Shakers and So- cial Engineers, 99 Harv. L. Rev. 1312 (1986). This Court, having made it clear that racial classifications are inherently dangerous when used in non-remedial settings which do not constitute a compelling govermmental purposc, has several times 16 spoken as to what must be establishedrto constitute a sufriciently compelling basis for such race-conscious affirmative action relief. In United States v. Paradise, supra, a compelling interest was found and the narrowly tailored race-conscious relief was sanctioned by the Court where there was a judicial finding of pervasive, sys- temic, and intentional discrimination by the Alabama Department of Public Safety, and a consistent history by the Department of resis- tance to court orders and failure to comply with judicially approved commitments. Similarly, in Local 28, Sheet Metal Workers v. EEOC, supra, the union was repeatedly found guilty of discriminating against minorities and held in civil contempt for its bad faith refusal to comply with numerous remedial court orders. The Court of Appeals in that case found that the union had “‘consistently and egregiously violated Title VII.” EEOC v. Local 28 of the Sheet Metal Workers Interna- tional Association, 753 F.2d 1172 at 1186 (2d Cir. 1985). With dis- crimination predicates established at those extreme levels, this Court held in each case that narrowly tailored racial classifications could be constitutional. Local 28, Sheet Metal Workers v. EEOC, supra. To make it clear, however, that racial preferences and classifi- cations were to be limited only to factual circumstances as compel- ling as Paradise and Sheet Metal Workers, the plurality opinion in Croson reaffirmed the limitation the Constitution places on use of racial classifications. Specifically, the plurality opinion in Croson states: x In extreme cases, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion. 109 S. Ct. at 729 (emphasis added). The Croson decision thus left little doubt but that racial prefer- ence affirmative action decrees are constitutionally limited to ex- treme cases of deliberate discrimination in the mold of Paradise and Sheet Metal Workers. Furthermore, the plurality opinion in Croson underscored that point when it addressed the question of whether statistical under- utilization — as found in this case — may serve as a predicate for ee ek as ai Re 17 racial set-asides. 109 S. Ct. at 729. Justice O’Connor’s opinion Clearly provides that cases merely presenting proof of statistical underutili- zation do not constitute the extreme deliberate cases of discrimina- tion that would authorize narrowly tailored racial preferences; and, therefore, where proof is limited to statistics, the settling parties are to avoid racial set-asides and quotas in shaping remedies to dismantle the system giving rise to the discrimination. 2. The Eleventh Circuit Decision. Notwithstanding this clear road map, the Eleventh Circuit chose to create its own trail — a trail that Petitioners submit ends in uncon- stitutional racial set-asides. The record below reveals nothing in the way of egregious, pervasive, extreme, or deliberate discrimination on the part of the governmental defendant and there was certainly no resistance to ur refusal by the Government to comply with any court orders. The Eleventh Circuit relied solely upon statistical imbalance found at significant levels in 10 of 51 job groups. Such a finding carries with it no inference that the undcrutilization was intentional or deliberate. Indeed, the record reflects quitc the contrary. The Govemment had in place its own affirmative action plan, an outreach program for minorities, an equal opportunity office for complaints and a griev- ance procedure. The testing program claimed to be discriminatory by the plaintiffs had been replaced and the Goverment had offered a fund for payments to class members. The record here bears no rela- tionship to the conduct of the defendants in either Paradise or Sheet Metal Workers. Yet, in the face of this record, the Eleventh Circuit sanctioned the consent decree and in doing so established a standard for affirma- tive action plans in this Circuit that permits a statistically significant showing of underutilization of blacks standing alone to constitute a predicate that is equivalent to an “extreme case” of “deliberate” dis- crimination. It is a decree not aimed at dismantling a system that gives rise to statistical underutilization; but rather is a decree having as its purpose the promotion of blacks regardless of effects of the system upon them. 18 To permit race-conscious relief in the form of set-asides and quotas based upon this record is to open the door for such relief in all cases where statistically significant underutilization is found. Under the Eleventh Circuit’s standard, racial preferences become the rule — not the remedy of last resort. The Eleventh Circuit's interpreta- tion is a perverse twisting of this Court's prior constitutional rulings and merits this Court’s review.‘ 4 Plaintiffs, earlier in this litigation, argued that Title VI is the exclusive remedy for Federal employees alleging discrimination, relying upon Brown v. General Services Administration, 425 U.S. 820 (1976). In Brown, a federal employee filed a discrimi- nation action asserting claims pursuant to Title VII, the Declaratory Judgment Act, and 42 U.S.C. § 1981. The Court held that Title VII was the plaintiff's exclusive remedy. The plaintiff did not, however, assert a constitutional challenge and so the issue presented in this case was never addressed by the Court. The only question before the Court in Brown was the viability of the claim pursuant to 42 USC. § 1981. Recognizing this, the court in Krenzer v. Ford, 429 F. Supp. 499, 501 n. 1 (D.D.C. 1977), found that while Brown “establishe[d] Title VII as the sole statutory remedy against the Government for race . . . discrimination in employment . . . [it] does not foreclose plaintiff s constitutional rights”. (Emphasis added.) The logic supporting this distinction is obvious: As all parties to this case readily acknowledge, constitutional claims, like the ones presented by Appellants, stand apart from Title VII claims because the standards and the analysis under the Fifth Amendment are different from that under Title VII. In //ammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987). the court found that constitutional standards requiring that - race-conscious actions by employers be narrowly tailored to meet compelling gov- ernmental interests apply to the federal government cven in employment cases. It is clear, therefore, that a court could find a federal government employee to have been discriminated against in violation of the Constitution when that same employee has not been found to be a victim of Title VII discrimination. Moreover, with respect to those claims of appellants who have not yet been adversely affected by the decree and whose claims are still prospective in nature, Title VII procedures may not yet be available. To the extent that such claimants are “expressly unprotected by the stat- ute,” their Fifth Amendment claims are very much alive and should be protected by the Constitution. Doe v. U.S. Postal Service, 37 F.E.P. Cases 1867 (D.D.C. 1985), citing Davis v. Passman, 442 U.S. 228 (1978). 19 B. The Decision Of The Eleventh Circuit Is Inconsistent With The Title VII Standards Established By This Court. 1. This Court's Prior Title VII Affirmative Action Decisions. While the Eleventh Circuit opinion did not provide a specific framework for analyzing the Title VII issues of this case, it did hold that because the consent decree was constitutional, it necessarily did not violate Title VII. In doing so it, of necessity, held that Title VII permits a racial set-aside remedy based upon a predicate of statisti- cally significant underutilization. This Court has never sanctioned such a standard under Title VII and such a holding is inconsistent with this Court’s teachings in Johnson v. Transportation Agency, su- pra. As previously noted, this Court has sanctioned as nonviolative of Title VII race-conscious goals based on proof of long-standing, egregious, deliberate and pervasive discrimination. Local 28, Sheet Metal Workers v. EEOC, supra. In Johnson v. Transportation Agency, supra, it also approved the use of race as a “plus factor” based upon a predicate of “manifest imbalance.” It has not, however, sanctioned racial set-asides or quotas based solely upon a manifest imbalance or Statistical prima facie case. A review of Johnson demonstrates that such a predicate will not support racial set-asides or quotas. The affirmative action plan reviewed by this Court in Johnson was based upon a statistical underrepresentation of minorities and females in certain job groups at the defendant agency. Unlike the consent decree here at issue, that plan did not set aside any position solely for minorities or females. In approving the plan, this Court made it clear that a fundamental factor in its approval was the fact that sex was only one of several factors — including test scores, expertise, prior performance and other realistic factors — to be taken into consideration in the promotional process and that the plan did not guarantee any promotion based solely on gender. 480 U.S. at 637, 638. The Court in Johnson also spokc to the type of relief that would not be approved where the predicate is a statistical imbalance. In 20 reply to Justice Scalia’s contention in his dissent that the majority adopted the standard that underutilization is a sufficient predicate for all types of affirmative action relief, the majority states: Firefighters [Local 93, International Association of Fire- fighters v. City of Cleveland, where egregious, deliber- ate discrimination was the predicate] raised the issue of conditions under which parties could enter into a con- sent decree providing for explicit numerical quotas. By contrast, the affirmative action plan in this case sets aside no positions for minorities or women. Johnson v. Transportation Agency, 480 U.S. at 631 n. 8. Thus, this Court made it clear in Johnson that the predicate that will support the explicit numerical quotas found in this decree is egregious, deliberate discrimination, not simply the underutilization predicate found in Johnson. J.A. Croson v. City of Richmond, 822 F.2d 1355, 1362 (4th Cir. 1987). Throughout Johnson, this Court repeatedly reaffirms this point. For example, the Johnson opinion spccifically states that this Court would reject, as violative of Title VII, a plan that had mere under- utilization as its predicate, if that plan did not permit taking into consideration distinctions and qualifications of all candidates for promotion. A plan that simply calculated underutilization and then set aside positions based on the shortfall would impermissibly “dic- tate mere blind hiring by the numbers” and would, in effect, consti- tute the quota found unacceptable by Justice O’Connor in Sheet Metal Workers. Johnson v. Transportation Agency, supra at 636. The Court also reaffirms this point where it provides that the Johnson plan would not have been acceptable if it had becn implemented “solely by ref- erence to statistics”. /d. at 637.° 5 Weber is consistent with the holdings of Johnson. The Weber plan arose when the employer, who had a statistical imbalance in its work force, agreed to establish anew apprenticeship training program and reserved fifty percent of the new training slots for blacks. The actual hiring process, however, was unaffected by the nev. training program. As stated by the Ninth Circuit, the Weber plan did not adversely affect white employees at all because “it created additional opportunities by establishing new training programs for both blacks and whites.” San Francisco Police Officers 21 2. The Eleventh Circuit Decision. In finding that Title VII is not violated by the imposition of racial set-asides without a finding of egregious, deliberate discrimi- nation, the Eleventh Circuit has disregarded this Court’s Title VII admonitions announced in Johnson. It approved a consent decree that has as a predicate a determination that in 10 of 51 job groups the promotion rate of biacks was statistically lower than would have been expected had selections been strictly random. The settling parties then calculated the shortfall and set a black-oniy quota based on that shortfall, setting aside 240 positions solely for blacks and barring non-blacks from any consideration for those positions. By approving this racial set-aside plan, the Eleventh Circuit has permitted that which Johnson disapproved — it approved the calculation of imbalances in certain job groups according to the population of blacks in the labor pools, and then directed that promotions be blindly implemented based on such statistics. This process was spe- cifically rejected in Johnson. Id. at 637. In so holding, the Eleventh Circuit sets a standard that is not only inconsistent with this Court’s prior decisions, but also a standard that pennits racial set-asides to be the rule and not the exception reserved for extreme cases. Ill. The Decision Below Conflicts With The Decisions of This Court With Regard To Narrow Tailoring. A second important question is presented by this petition: If such statistical underutilization is a sufficient predi- Cate to permit a racial set-aside, was this consent decree sufficiently narrowly drawn to comply with Title VII and the Constitution? Assn. v. San Francisco, 812 F.2d 1125, 1132 (9th Cir. 1987). Thus, through the program mew opportunities were created for whites, not lost. Furthermore, the com- pany could consider all employees, black and white, for each new hire position that opened up. There was no obligation for the employer to hire minorities at any rate. Its only obliation was to leave the training program in place until the statistical im- balance in its workforce was remedicd. 22 A. The Consent Decree Is Unconstitutional Because It Is Not Narrowly Tailored. 1. The Eleventh Circuit's Failure to Consider Race-Neutral Alternatives Violates Con- stitutional Standards Set by This Court. This Court has repeatedly stated that in determining whether race-conscious remedies may be appropriately employed, there must, prior to the implementation of the affirmative action, be at least some meaningful consideration of the circumstances justifying such relief. For example, in United States v. Paradise, supra, this Court held that in considering whether the relief was narrowly tailored, the district court was required to make a determination of the “efficacy of alternative remedies” before its approval of a racial quota. 480 USS. at 171. In Fullilove v. Klutznick, supra, this Court’s principal opinion noted that Congress had actually unsuccessfully tried some race-neutral alternatives and had “carefully examined and rejected [other] race-neutral alternatives” before analyzing the set-asides. 448 US. at 463-467. In City of Richmond v. Croson, supra, this Court expressly considered whether race-neutral objectives had been con- sidered prior to the City’s enacting its set-aside plan and noted that “there is no evidence in this record that the Richmond City Council has considered any alternatives to a race-based quota.” 109 S.Ct. at 728. These cases unquestionably stand for the proposition that be- cause race-conscious remedies are so disfavored, prior to their im- plementation, race-neutral remedics must be thoroughly explored; and, if rejected, such a conclusion be reached only after a careful determination that such remedies offer no likelihood of success. Barhold v. Rodriquez, 863 F.2d 233 (2d Cir. 1988); Days, D., F ullilove, 96 Yale L.J. 453, 459 (1987). Despite this clear direction from this Court, the Eleventh Cir- cuit chose to ignore the failure of the Goverment and the Plaintiffs to undertake any consideration of several available race-neutral remedies. Further, it did so under circumstances where race-neutral alterna- tives could have been successful in increasing the utilization rates of 23 minorities. Changes in job description or in the promotion process itself could have been used as alternatives that could lead to greater minority participation. Special training and apprenticeship programs funded by the Government were other options that would assist mi- norities to increase their promotion rates. See generally 41 CFR 60- 2.20-2.26. Furthermore, even using set-asides, there were alternatives that would have ameliorated the effects of the race-conscious relief on innocent non-blacks. For example, simultaneously with the promo- tion of blacks from the black-only promotion list, promotions could have been made off the merit promotion list [see Youngblood v. Dalzell, 804 F.2d 360 (6th Cir. 1986)]; or the number of overall promotions could have been increased (see Local 93, International Association of Firefighters v. City of Cleveland, supra); or pay increases or sen- iority could have been provided to those individuals on the merit promotion list who were adverscly affected by the racial set-asides. None of these alternatives were considered or implemented. Despite this Court’s criticism of the City of Richmond in Croson that “there is no evidence thai [the Goverment or the Plaintiffs] consid- ered any alternatives to a race-based quota,” (109 S.Ct. at 728), the Eleventh Circuit simply ignored the parties’ failure to tailor this decree narrowly. Instead, the pancl deemed that failure irrelevant. Further, the Eleventh Circuit rejected Petitioners’ alternatives — which were raised during the litigation simply to demonstrate that rational race-neutral alternatives were available to the settling par- ties — finding that they did not “place plaintiffs in the rightful place nor do they do so expeditiously.” 871 F.2d at 1009. In so holding, the Eleventh Circuit erroneous!y adopted a new standard that requires the race-neutral affirmative action alternatives expeditiously to “place plaintiffs in their rightful place.” Such a standard is flatly inconsis- tent with this Court’s ruling in Sheet Metal Workers, where this Court pointed out that “(t]he purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior pattems of employment discrimination and to prevent discrimination in the future.” Local 28, Sheet Metal Workers v. EEOC, supra at 474. Under this erroncous standard, not only is no consideration of race-neutral alternatives required, but any race-neutral altemmatives 24 adopted would have to provide make-whole or immediate rightful place relief. If this Court permits such a standard to survive, race- conscious relief in the Eleventh Circuit will become the remedy of first rather than last resort. Virtually no race-neutral relief ever expe- ditiously provides “rightful place” or “make-whole” relief as man- dated by the lower Court. Such relief is reserved for cases where a victim of discrimination is identified, thereby making the appropri- ate remedy his/her immediate placement into the position he/she would have held absent the discrimination. /nternational Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Franks v. Bowman, 424 U.S. 747 (1976). But where no victim can be identified, as in this case, affirmative action relief must be aimed at dismantling dis- criminatory systems and preventing further violations of the laws. The Eleventh Circuit opinion sets a standard that distorts this funda- mental concept. ‘ee 2. The Consent Decree Does Not Satisfy Con- stitutional Standards For Identifying Vic- tims Of Racial Discrimination. Where employment decisions such as the promotions at issue can be made on a case-by-case basis, the plan or decree should treat all candidates individually, taking into consideration whether the beneficiary of the racial preference has suffered from the effects of discrimination. City of Richmond v. Croson, supra at 729, Fullilove v. Klutznick, supra at 515. In that regard, Croson further provides that where selections can be made on an individual basis, the relief should be made available to those “who truly have suffered the ef- fects of prior discrimination.” City of Richmond v. Croson, supra at 729; see Shurberg Broadcasting of Hartford, Inc. v. Federal Com- munications Commission, 876 F.2d 902, 915-16 (D.C. Cir. 1989). Administrative convenience will not justify either arbitrarily includ- ing or excluding class members from the benefits of the remedial ac- tion. Thus, under Croson, in order for relicf to be narrowly tailored, the decree must, to the extent feasible, treat candidates for promo- tions and other selections individually, rather than solely on the basis of race, and must use all available administrative tools to insure that the beneficiaries of the remedial action are persons “who truly have suffered the effects of prior discrimination.” City of Richmond v. Croson, supra at 729; see Fullilove v. Klutznick, supra at 469-71. 25 The process which the Eleventh Circuit approved for providing race-conscious relief conflicts with Croson. In approving the decree, the Eleventh Circuit ignored this Court’s directive that as the review- ing Court, it had an independent duty to examine the decree in accor- dance with the strict scrutiny standard and determine whether the selection mechanisms of the consent decree awarded relief to class members on a constitutionally permissible basis. City of Richmond v. Croson, 109 S. Ct. at 721. That duty included a de novo determina- tion by the Eleventh Circuit of whether any failure of the consent decree’s process to identify victims was driven by administrative con- venience or simply unavoidable under the circumstances. The Eleventh Circuit did not make such a de novo determina- tion. Instead it improperly adopted a “clearly erroneous” standard (Howard v. McLucas, 871 F.2d at 1010) and applied that standard to uphold the district court’s findings. If it had adopted the rroper standard and made a de novo re- view of the record as required by Croson, it wouid have concluded that the decree’s methodology for finding proxies for actual victims (actual victims not being ascertainable) did not meet constitution- ally-mandated narrow-tailoring standards. Arnong the decrec’s failures is its method of selecting class members who were to receive promotions from the black-only set-aside list. The decree allowed any black who had been at WR-ALC one or more days during the relevant 1971-1979 period to be eligible for promotion. Rather than analyzing each individual on a promotion- by-promotion basis and seeking to determine at least whether the individual was eligible for promotion during the relevant period, the decree ranked class members for promotion by their governmental (not WR-ALC) seniority and performance ia 1983. In structuring the decree in this fashion, the authors of the de- cree theorized that those class members who had the greatest senior- ity at the facility during the 1971-1979 period under consideration would have had the greatest probability of being affected by the challenged promotional practices, and that they should therefore be given prior- ity ranking on the black-only promotion list. However, the parties to the decree chose, for administrative reasons, not to determine for what period each class member was actually employed in a relevant 26 position at WR-ALC. Instead they used the retirement seniority date for each class member already in the government computers — i.é., overall federal governmental seniority — not WR-ALC seniority. This meant that a black who transferred to WR-ALC on December 31, 1979 after, for example, 20 years of employment in the military, postal service, or some other federal service, was ranked higher on the black-only promotion list than a class member who had the same evaluation in 1983 but who worked in a relevant position during the entire 1971-1979 period. Clearly the decree’s selection process was not narrowly tailored to identify those class members who had suffered the effects of past discrimination at WR-ALC during the relevant 1971-1979 period. The decree’s terms are driven by administrative convenience, not by an effort to identify those who suffered the effects of discrimination. In approving this decree, the Eleventh Circuit has again adopted an *ncorrect standard which is inconsistent with the mandate of this Court to reject administrative convenience as an excuse for not iden- tifying those who actually experienced the effects of discrimination. See Frontero v. Richardson, 411 U.S. 677, 690 (1973). This Court should accept this writ to prevent the perpetuation of this error. B. The Consent Decree Violates Title VII Be- cause It Is Not Sufficiently Narrowly Drawn. Failure of the settling parties to consider race-neutral alterna- tives appears not only to be violative of constitutional narrow tailor- ing requirements, but also of Title VII requirements that the race- conscious relief be narrowly drawn. While this Court has not been as explicit in requiring consideration of race-neutral alternatives in the Title VII setting as in the constitutional sctting, it appears that such considerations have been considered a prerequisite under Tide VII. Indeed, in Local 28, Sheet Metal Workers v. EEOC, supra, in dis- cussing the reasons why the Court-ordered relief was sufficiently narrowly drawn, this Court noted that the record was replete with in- stances where lesser remedics had been tried, but failed. 478 U.S. at 476, 477. The District of Columbia Court of Appeals has also addressed this issue specifically and found that “because available race-neutral a 27 altematives were not considered, the District's race-based hiring methods were not properly tailored to its remedial purposes . . . . Its use of the AAP thus stands condemned under Title VII for this reason as well.” Hammon v. Barry, 826 F.2d 73, $1 (D.C. Cir. 1987). See also Th- ompson v. Sawyer, 678 F.2d 257, 294 (D.C. Cir. 1982); United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981). Indeed, since the precise harms flowing from the inappropriate use of racial preferences noted by this Court in the constitutional cases are present when this issue rises in the Title VII setting, the Hammon decision is undoubtedly correct. See Ruthieglen & Ortiz, Affirmative Action Under the Constitition and Title VII: From Con- fusion to Convenience, 35 U.C.L.A. L. Rev. 467 (1988); Schwartz, The 1986 and 1987 Affirmative Action Cases: It's All Over But The Shouting, 86 Mich. L. Rev. 524 (1987). See also Johnson v. Trans- portation Agency, supra at 648, 649, 650. Nevertheless, Petitioners note that neither Weber nor Johnson expressly addressed the issue of whether the proponents of the re- spective plans considered race-neutral altematives prior to adopting the pian at issue. To the extent that this issue has not been defini- tively decided under Title VII as it has for constitutional cases, this Case presents an opportunity for the Court to decide this issue.® Irrespective of whether race-neutral altemmatives are to be con- sidered prior to adoption of a plan, the Eleventh Circuit erred in hold- ing that the consent decree at issuc passed Title VII muster. Under Johnson v. Transportation Agency, supra, to be suffi- ciently narrowly drawn, this decree had to be “a moderate, gradual, approach to eliminating the imbalance in its work force, one which establishes a realistic (and flexible) guide for [case-by-case] employ- ment decisions, and which visits minimal intrusion upon the Iegiti- mate expectations of other cmployces.” 480 U.S. at 640. \ * In Johnson v. Transportatic.. Agency, 107 S. Ct. 1442, 1461, 1463 (O'Connor, J. concurring) Justice O'Connor suggests that the standards for affirmative action under Title VII and the Equal Protection Clause should be the same, at least in regard to public employers. 28 Among other failings, this decree is neither “realistic” nor “flexible.” It is unrealistic because it provides no sensible guidance to the em- ployer in determining who to promote. As noted, unlike Johnson, where the selection process was based upon test scores, expertise, background, and other relevant factors, the selection process here for the 240 set-aside positions is two-pronged. To be eligible for one of the set-aside positions, one must be black and one must have met minimal qualifications by sometime after 1984 and worked at WR- ALC for at least one day during the period from 197i-1979. Where a black has sufficient govemment (not WR-ALC) seniority and he or she was evaluated highly in 1983 (performance in the relevant 1971- 1979 period was not considered), it is presumed that the class mem- ber was a victim of discrimination between 1971 and 1979 and en- titled to a priority promotion. Neither the scniority component nor the appraisal component is a realistic measure of either exposure to allegedly discriminatory practices or qualification for promotion during the 1971-1979 period. The decree also has no provisions that make it akin to the case- by-case approach required by Johnson. The plan in Johnson stressed that its percentages were goals, not sct-asidcs, and should not be construed as quotas that must be met. The Johnson plan set forth reasonable aspirations aimed at correcting the statistical imbalances in the agency’s workforce. Johnson v. Transportation Agency, supra at 635. Accord- ingly, the plan administrators and supervisors were to use sex as only one factor along with other criteria in making a promotion selection. Sex was nothing more than a plus in a particular applicant’s file. The agency’s plan required women to compcte with all other qualified applicants, and no persons were automatically excluded from con- sideration. Unlike the subject decree, all persons, regardless of race or sex, were able to have their qualifications weighed against those of other applicants. Here, non-blacks are barred from even compet- ing for the set-aside positions. For every other promotion within the target groups, blacks compete only against cach other and non-blacks are excluded from considcration. There is no doubt but that the de- cree’s untempered set-aside provisions fly in the face of the require- ments of the case-by-case analysis required by Johnson. 29 It is apparent that the parties to the decree created a plan aimed at eliminating statistical workforce imbalances within a very limited number of job categories, and then established a racial set-aside which requires blind promotion by the numbers to achieve the desired ra- Cial mix in 38 job groups. That type of plan is condemned by Johnson and violates Title VII. 30 CONCLUSION For the foregoing reasons, Petitioners respectfully pray that a writ of certiorari issue to review the decision of the Eleventh Circuit in this case. Respectfully submitted, Epwarp T. M. GARLAND The Garland Firm, P.C. 92 Luckie Street, N.W. Auanta, Georgia 30303 (404) 577-2225 Counsel of Record Of Counsel: Rosin N. Logs Hunter R. HUGHES . : The Garland Firm, P.C. Rogers & Hardin 92 Luckie Street, N.W 2700 Cain Tower atx pian 229 Peachtree Street, N.E. anaes 30303 Atanta, Georgia 30303 : (404) 522-4700 Counsel for Petitioner August 31, 1989 la Appendix A Michael HOWARD, et al., Plaintiffs-A ppellees, Vv. John L. McLUCAS, et al., Defendants-A ppellees, Robert Poss, et al., Intervenors-Appelilants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Plaintiffs-Appellees, Vv. John C. STETSON, etc., Defendant-Appellee, Robert Poss, et al., Intervenors-Appellants. No. 87-8817. United States Court of Appeals, Eleventh Circuit April 27, 1989 Appeal from the United States District Court for the Middle District of Georgia. Before RONEY, Chicf Judge, CLARK, Circuit Judge, and MORGAN, Senior Circuit Judge. CLARK, Circuit Judge: This is the second time this case has been before us. In Howard v. McLucas, 782 F.2d 956, 960-61 (11th Cir.1986) (Howard III), we held that white and nonminority employees (the intervenors) at the Wamer Robins Air Logistics Center (Wamer Robins) could inter- vene to challenge race-conscious promotional relief in a consent decree entered into by black employees (the plaintiffs) at Wamer Robins id 2a and the Secretary of the Air Force and others (the govemment). We admit that the issue presented in this appeal is problematic. While we decide the question of whether the promotional relief violates either Title VII of the Civil Rights Act of 1964 or the Fifth Amendment, we do so with the explicit recognition that the intervenors did not, on remand, present any evidence to the district court that the consent decree either had or would bave an adverse impact upon any of their promotional expectations. Nonetheless, because this court specifi- cally granted the intervenors the right to challenge the promotional remedy portion of the consent decree, we address the constitutional- ity of that relief. We agree with the district court, see Howard v.McLucas, 671 F.Supp. 756, 762-67 (M.D.Ga.1987) (Howard IV), that the pro- motional relief is not unlawful, and affirm its approval of the consent decree. I. BACKGROUND A. Facts Wamer Robins, which is part of the Air Force Logistics Com- mand, is located at Robins Air Force Base near Macon, Georgia. It employs 15,000 civilians to manage logistics for assigned aircraft and commodities, repair aircraft and technologies, receive, store, issue, and transport spare parts and systems, and award annual contracts for Air Force procurement responsibilities. Howard v. McLucas, 597 F.Supp. 1504, 1508 (M.D.Ga.1984) (Howard I). Wamer Robins’ blue collar employees are classified under the Wage Grade (WG) pay plan, which has fourteen grade levels.' Its white collar employees are classified under the General Schedule (GS) pay plan, which has sixteen grade levels: Under Wamer Rob- ins’ intemal promotion policy, employees in lower grades receive ' Employees in WG 1-4 generally perform unskilled labor. Employees in WG 5 are helpers in skilled mechanical trades or full performance journeymen in other fields of work. Employees in WG 6 are ordinary journcymen outside the skilled mechani- cal trades. Employees in WG 7-8 are journcymen or have intermediate positions in skilled mechanical trades. Employees in WG 9-11 are journeymen in skilled me- chanical trades. Record, Vol. 5, Tab 285 at 3. 3a the first opportunity to fill higher level positions. Except for job openings at GS 14 and above, all employees at Wamer Robins are initially considered for all vacancies. /d. at 1508-09; Faimess Hearing, Rec- ord, Vol. 11 at 61 (testimony of Gary Carter, Civilian Personnel Offi- cer at We-ner Robins). Candidates for competitive promotions at Warner Robins are identified through the use of skills locator systems which, unlike announcement or posting systems, do not require employees to apply to fill an individual vacancy. The E426 system, which was used until 1978, generated promotion registers of all qualified candi- dates and ranked the candidates based on qualification requirements. Under the E426 system, primary factors such as experience, written examinations, and written appraisals were used to determine basic eligibility for a promotion, while secondary factors such as awards and self-development activities were used to determine the final ranking within a register and evaluate the top five candidates. The PPRS system, which replaced the E426 system, screens all employees for potential eligibility on the basis of such factors as pay, type of appointment, and basic skills from information entered into a computer through a comprehensive series of skills code. Employees who satisfy the test of basic eligibility are then subject to progression level ranking. The number of progression levels is determined by the type and grade of the position to be filled. Each progression level contains up to five factors identifying general and specific skills, knov/ledge, and char- acteristics. Advancement from one level to another occurs only when the requirements of the previous level have been satisfied. A series of tiebreakers—which include supervisory appraisals, awards, and seniority—are used to rank employees within a given level and gen- erate promotion registers which usually last ninety days. /d. Consonant with the operation of a skills locator system, em- ployees at Wamer Robins do not apply for promotions and are not notified that they have been considered for vacancies unless they are at the top of a register. The E246 and PPRS systems do not maintain records of employees who are initially considered for a specific pro- motion. The systems only gencrate records of candidates who are found to be qualified. /d. at 1509. Under both systems, only the most current supervisory appraisals are used, and as they are updated, the old appraisals are destroyed. There are therefore no existing supervi- sory appraisals for the 1971-1978 period. Record, Vol. 5, Tab 285 at 4a 8. Because test scores are maintained only for current examinations and many examinations used by Wamer Robins prior to 1979 have been discontinued, test score data for the 1971-1978 period is incomplete. Id. B. Proceedings Leading to a Consent Decree In 1975 the plaintiffs? filed an action against the government, seeking injunctive and monetary relief to redress alleged discrimi- natory employment practices at Warmer Robins. Evidence gamered by the plaintiffs indicated that blacks “were concentrated in low level jobs and certain occupations.” Howard I], 597 F.Supp. at 1513. In 1973, the average grade of white WG employees was 9.2, while the average grade of black WG employees was 6.7. In 1975, the average grade of white WG employees was 9.3, while the average grade of ‘black WG employees was 6.8. /d. at 1510. Despite comprising ap- proximately 15% of the workforce at Wamer Robins, blacks consti- tuted 86% of all janitors, 81% of all laborers, 76% of all packers, 76% of all motor vehicle operators, 71% of all woodcrafters, and 67% of all parts and equipment operators. Faimess Hearing, Record, Vol. II at 27. Statistics compiled by the plaintiffs “demonstrated that black employees were promoted in proportions less than their representa- tion in the workforce or in lower grades.” Howard II, 597 F.Supp. at 1510. In 1973, 14.5% of minority employees received supervisory appraisals below 80, while only 6.2% of nonminority employees received such appraisals. In i979, 38.3% of black employees received super- visory appraisals over 96, while 49% of white employees received such appraisals. Faimess Hearing, Record, Vol. II at 29-30. The plain- tiffs’ initial statistical analysis showed disparities in promotion rates out of grade in WG 1-4 (6.01 standard deviations—67.98 expected promotions lost), WG 5-8 (16.03 standard deviations—-362 expected promotions lost), WG 9-12 (4.08 standard deviatioris—S0.06 expected promotions lost), and GS 1-4 (3.56 standard deviations—72.67 pro- ? The plaintiffs’ class, which numbers approximately 3,200, consists of blacks who were employed at Warmer Robins during the 1972-1979 period. Howard III, 782 F.2d at 958 & n. 2. ea! Sa motions lost).? From this analysis the plaintiffs concluded that blacks at Wamer Robins had lost a total of 553 promotions during the 1971- 1979 period. Howard II, 597 F.Supp. at 1510. A more conservative analysis, controlling for occupational series, showed smaller dispari- ties in promotion rates out of grade in WG 1-4 (3.53 standard devia- tions—36.68 expected promotions lost), WG 5-8 (8.19 standard deviations—162.84 expected promotions lost), and WG 9-12 (3.75 standard deviation—34.74 expected promotions lost). From this more conservative analysis, ihe plaintiffs concluded that blacks at Warmer Robins had lost a total of 234 promotions during the 1971-1979 period. Id. In 1984, after years of litigation, the parties entered into a con- sent decree, which was meant to ensure “that black employees were promoted internally [at Wamer Robins] on a fair and equal basis.” Consent Decree, Record, Vol. 4, Tab 256 at 5.* The decree awards $3.75 million in back pay to the plainfiffs and provides that 240 of the plaintiffs are to be promoted into 38 target positions (in WG 3- 11) from special promotion registers made up only of qualified plain- tiffs. The special promotion registers are to be created by ranking plaintiffs who are qualified under Federal Civil Service standards and meet “basic eligibility requirements” by equally weighing sen- iority and supervisory appraisals. The 240 promotions alternate with general promotions so that every other promotion io the target posi- 3 Fluctuations of more than 2 or 3 standard deviations undercut the hypothesis that selections for promotions were being made randomly without regard to race. See Castaneda v. Partida, 430 U.S. 482, 496 n. 17,97 S.Ct. 1272, 1281 n. 17, 51 L.Ed.2d 498 (1977). “ The consent decree provided that the government's settlement of the litigation did not constitute an admission of liability for past or present discrimination. Consent Decree, Record, Vol. 4, Tab 256 at 2. > The figure of 240 promotions was determined by using positions in WG 2, WG S5- 6, WG 8, and WG 10 as source grades. The 240 promotions were then apportioned across target positions to which blacks could be expected to be promoted, based on historical career progression patterns at Warner Robins, to determine the most likely jobs lost by blacks during 1971-1979 period. Once the jobs lost by blacks had been identified, the occupational : eries for those jobs were identified based on the projec- tion of vacancies at Warner Robins in 1982 and 1983. Record, Vol. 5, Tab 285 at 16. 6a tions is from the special promotion registers. The decree limits the 240 race-conscious promotions at Wamer Robins to the 38 target po- sitions. /d. at 7-9 & Exhibit A. C. The Challenge to the Consent Decree The district court, after denying the intervenors leave to intervene, see Howard v. McLucas, 597 F.Supp. 1501, 1504 (M.D.Ga. 1984) (Howard I), approved the consent decree in Howard II. We reversed the district court’s decision in Howard | and remanded the case to the district court, holding that the intervenors were entitled to intervene, but only in order to challenge certain portions of the consent decree: [The] [i]ntervenors are limited to challenging the portion of the remedy that reserves 240 target position promotional opportunities to [the plaintiffs]. They have no standing to contest the existence of past discrimina- tion or any other issue concerning the merits of the dis- pute and no standing to contest the backpay award or veto remedial measures in general. The only issue [the] intervenors shall be permitted to raise on remand is their contention that [they] will not be considered for promo- tion to the 240 target positions on an equal basis with non-discriminatee black employees solely on account of race. Howard II1, 782 F.2d at 960-61. We also recognized that the intervenors failed to show any direct injury as a result of the promo- tional remedy. We nonetheless held that they should be heard on the issue: “If the implementation (of the promotional remedy] would have an adverse impact upon the promotional expectations of intervenors, they should be granted the opportunity to demonstrate that and should be heard in opposition to these provisions.” /d. at 961 n. 5. Finally, we Suggested that the district court detemine whether the interve- nors’ claims, or any part thereof, had become moot because of the implementation of the decree’s promotiorial relief. /d. at 961 n. 4. On remand, the intervenors mounted a two-pronged attack on the promotional relief in the consent decree. First, they argued that there was no basis for the promotional relief because the plaintiffs 7a had not demonstrated any discrimination by the government and the government had not admitted any discrimination on its part. Second, they argued that even if discrimination had oeen shown, the promo- tional relief was unlawful. Before addressing the intervenors’ arguments, the district court held that the propriety of the promotional relief had been mooted to the extent that the targeted positions had been filled. According to the district court, by the time we issued our opinion in Howard III, 169 of the positions had been filled. Howard IV, 671 F.Supp. at 758. As to the intervenors’ first contention, the district court, pointing to its previous findings of facts in Howard I], 597 F.Supp at 1S09—10, held that the plaintiffs had “‘made out a prima facie case of employ- ment discrimination through the use of statistical evidence of dispro- portionate racial impact.” Howard IV, 671 F.Supp. at 760. The dis- trict court also held that for purposes of Title VII the fact that the government had entered into the decree without rebutting the plain- tiffs’ prima facie case amounted to an admission of unlawful dis- crimination. /d. at 761 (citing Kirkland v. New York State Dept. of Correctional Servs., 711 F.2d 1117, 1130-31 (2d Cir.1983), cert. de- nied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984)). As to the intervenors’ second contention, the district court first held that the promotional relief was not unlawful because it provided a rem- edy to actual victims of discrimination: the consent decree utilized the best method of determining actual victims in light of the fact that the skills locator systems did not require any employees at Wamer Robins to apply for promotions. /d. at 762-66: The district court then held that the promotional relief was narrowly tailored because it was directed only toward the grades where pervasive discnmination had been shown, was “ephemeral in nature,” and was flexible in that the remedial promotions given to qualified plaintiffs were made to every other next available vacancy in the specified positions. The district court also found that the relief did not unnecessarily trammel the intervenors’ rights because the 169 promotions which had already been given to qualified plaintiffs since the implementation of the decree constituted only 4.3% of the total! number of promotions made 8a at Warmer Robins during that period of time. /d. at 766-67.° Finally, the district court held that a mere racial preference would not pro- vide the “‘full relief recessary to remove promptly the remaining vestiges of discrimination at Wamer Robins.” /d. at 767. D. The Intervenors’ Standing Before commencing a discussion of the constitutionality of the promotional relief portion of the consent decree, we feel it incum- bent upon us to address the confusion that the intervenors’ challenge has engendered. Traditionally, a party seeking intervention must demonstrate a “direct, substantial, legally protectable interest in the proceeding” before that party will be granted intervenor status. See, e.g., Athens Lumber Company, Inc. v. Federal Election Commission, 690 F.2d 1364, 1366 (11th Cir.1982). The intervenors were not and have not been certified as a class. Thus, they should demonstrate some cognizable injury to themselves in order to challenge the con- sent decree. As noted above, our earlier opinion granting the night to inter- vene recognized that the intervenors were not relieved of their bur- den of demonstrating that the promotional remedy would have an adverse impact on their promotional expectations. In addition, our earlier opinion specifically stated that the intervenors could only challenge the promotional relief on the basis that “‘[they}will not be considered for promotion to one of the 240 targeted positions on an equal basis . .. Solely on account of race.” Howard I//, 782 F.2d at 961 (empha- sis added). On remand to the district court, however, the intervenors presented no evidence of injury. The district court noted: As of July, 1984, there were 137 Intervenors identified by name. Defendants have presented evidence that of the 137 named Intervenors, forty-three (43) have subse- quently been promoted ... ; forty (40) are not eligible for promotion to any of the target positions; one (1) claimed 6 In discussing the impact of the promotional relicf on white employees, the district court also noted that 43 of the 137 named intervenors had been promoted and that another 56 were not eligible for promotions to the target positions for one reason or another. Howard IV, 671 F.Supp. at 767 n. 4. 9a eligibility for a position that she already held; five (5) subsequently requested changes to lower grades in other occupations, thereby indicating that they did not aspire to one of the target positions, and ten (10) are no tonger employed by Wamer Robins. Intervenors do not dispute these figures, rather, they merely assert that they are ir- relevant so long as one Intervenor is eligible for a target position. 671 F.Supp. at 767 n. 4 (Record Cites omitted). The intervenors’ above argument to the district court is mis- placed because they did not present any evidence that any one of them otherwise eligible for a target position was denied that position. Employment, in and of itse!f, does not confer the right to challenge an affirmative action plan. For example, in /n re Birmingham Re- verse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir. 1987), an opinion that postdates our remand in this case, we held that claims that a consent decree resulted in reverse discrimination could not accrue until these secking redress were denied promotions. Id. at 1498-99. Aithough the intervenors in this case argue they have suffered injury because those among their ranks who received promotions necessarily received them later than they normally would have due to the structure of the promotional remedy, none of the iitervenors have presented evidence on the issue. In addition, the intervenors’ claim of delay is undercut in light of the fact that all those who have been promoted have received their promotions within a short time period resulting in a marginal effect on whites, if any. We recognize, however, that a fortiori some delay may have occurred. See Howard IV, 671 F.Supp. at 767. Therefore, despite the intervenors’ tenuous position to contest the consent decree, we proceed to discuss the constitutionality of the promotional remedy in accordance with our previous opinion granting the intervenors leave to launch such a chal- lenge. ieee 10a Il. THE MERITS A. Standard of Review In the past several years, the Supreme Court has had three Opportunities to addess the constitutionality of race-conscious pro- grams or orders.’ See United States v. Paradise, 480 U.S. 149, 169- 85, 107 S.Ct. 1053, 1066-74, 94 L.Ed.2d 203 (1987) (plurality opin- ion) (upholding temporary district court order requiring that equal number of blacks and whites be promoted to state trooper positions whenever promotions were required because order was necessary to ensure compliance with previous decrees and did not require gratui- tous promotions); Local 28 v. EEOC, 478 U.S. 421, 475-79, 106 S.Ct. 3019, 3050-52, 92 L.Ed.2d 344 (1986) (plurality opinion) (uphold- ing temporary district court order imposing nonwhite membership goal on union and its apprenticeship committee because order was necessary to combat the lingering effects of past discrimination, was not used to achieve and maintain racial balance, and had only a marginal effect on whites); Wygant v. Jackson Bd. of Education, 476 U.S. 267, 274-84, 106 S.Ct 1842, 1847-52, 90 L.Ed.2d 260 (1986) (plurality opinion) (striking down school board's policy of extending preferen- tial protection against layoffs to minority employees because alter- native means of remedying present effects of past discrimination, such as hiring goals, were available). Despite these recent opinions, the Supreme Court has yet to establish the standard by which to re- view equal protection challenges to governmental affirmative action programs. See Paradise, 107 S.Ct. at 1064. Some members of the Court believe that the remedial use of race is permissible only if it is justified by a compelling governmental interest and the means cho- sen to effectuate the government’s purpose are narrowly tailored. See ” Attempts by nonminority employees to challenge consent decrees which provide for race-conscivus relief have engendered a good deal of academic commentary. See, e.g., Cooper, The Collateral Attack Doctrine and the Rules of intervention: A Judicial Pincer Movement on Due Process, 1987 U.Chi. Legal F. 103; Schwarzschild, Public Law by Private Bargain: Title VIl Consent Decrees and the Fairness of Negotiated Institutional Reform, 1984 Duke L.J. 887; Note, Voluntary Public Employer Affirma- tive Action: Reconciling Title Vil Consent Decress with the Equal Protection Claims of Majority Employees, 28 B.C.L.Rev. 1007 (1987). lla Wygant, 106 S.Ct at 1846 (opinion of Powell, Rehnquist, Burger, and O’Connor, JJ.). Others contend that it is permissible if it serves important governmental objectives and is substantially related to the achievement of those objectives. See Regents of University of Cali- fornia v. Bakke, 438 U.S. 265, 359, 98 S.Ct 2733, 2783, 57 L.Ed.2d 750 (1978) (opinion of Brennan, White, Marshall, and Blackmun, JJ.). Justice O’Connor has observed, however, that the disparities between the two tests do not preclude a -fair measure of consensus. In particular, as regards cer- tain [governmental] interests commonly relied upon in formulating affirmative action programs, the distinction between a “compelling” and an “important” govemmen- tal purpose may be a negligible one. The Court is in agreement that, whatever the formulation employed, remedying past or present racial discrimination by a [government] actor is a sufficiently weighty [govern- mental] interest to warrant the remedial use of a care- fully censtructed affirmative action r:ogram. Wygant, 106 S. Ci. at 1853 (O'Connor, J., concurring in part and concurring in the judgment).® We need not delincate what standard of review should be em- ployed, for ve find that on this appeal the promotional relief in the consent decree “survives even strict scrutiny analysis: it is ‘narrowly tailored’ to serve a ‘compelling governmental purpose.” ” Paradise, 107 S.Ct. at 1064. Before addressing the merits, we emphasize that the intervenors bear the burden proving that the promotional relief is unconstitutional. Wygant, 106 S.Ct. at 1848. * The due process clause of the Fifth Amendment contains an equal protection component. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). Although Local 28, Wygant, and Paradise involved state affirmative action pro- grams challenged under the cqual protection clause of the Fourteenth Amendment, they are fully applicable in this case because the equa! protection guarantee of the Fifth Amendment is co-extensive with that of the Fourteenth Amendment. Paradise, 107 S.Ct. at 1064 n. 16. 12a B. Compelling/Important Interest The consent decree in this case “must be considered equivalent to a voluntary affirmative action plan for purposes of equal protec- tion analysis.” Birmingham Reverse Discrimination, 833 F.2d at 1501 n.23 (11th Cir.1987). Before a public employer such as the govern- ment embarks on an affirmative action program, it must have “con- vincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.” Wygant, 106 S.Ct. at 1848. But a “contempo- raneous or antecedent finding of past discrimination by a court or other competent body is not a constitutional prerequisite to a public employer’s voluntary agreement to an affirmative action plan.” /d. at 1855 (O’Connor, J., concurring in part and concurring in the judg- ment), 1863 (Marshall, Brennan, and Blackmun, JJ., dissenting), 1867 (Stevens, J., dissenting). As Justice O’Connor has explained, [t]he imposition of a requirement that public employers make findings that they have engaged in illegal discrimi- nation before they engage in affirmative action programs would severely undermine public employers’ incentive to meet voluntarily their civil nghts obligations. This result would clearly be at odds with [the Supreme] Court’s and Congress’ consistent emphasis on “the value of vol- untary efforts to further the objectives of the law.” The value of voluntary compliance is doubly important when it is a public employer that acts, both because of the example its voluntary assumption of responsibility sets and because the remediation of governmental discrimi- nation is of unique importance. Id. at 1855 (O’Connor, J., concurring in part and concurring in the judgment). Thus, when a pubic employer’s aifirmative action pro- gram ur a consent decree providing race-conscious relief is challenged as unconstitutional, the district court “must make a factual determi- nation that the [public] employer had a strong basis in evidence for its conclusion that remedial action was necessary.” /d. at 1848. Once the public employer 13a introduces its statistical proof as evidence of its reme- dial purpose, thereby supplying the [district] court with the means for determining that [it] had a firm basis for concluding that remedial action was appropriate, it is incumbent upon the nonminority [employees] to prove their case; they continue to bear the ultimate burden of persuading the [district] court that the [public employer’s] evidence did not support an inference of prior discrimi- nation and thus a remedial purpose, or that the plan in- stituted on the basis of this evidence was not sufficiently “narrowly tailored.” Id. at 1856 (O’Connor, J., concurring in part and concurring in the judgment). Assuming that our limited remand allowed the intervenors to challenge the legal effect of the plaintiffs’ statistical evidence, we hold that the government had a sufficient basis for concluding that remedial action was necessary. The district court’s finding that the plaintiffs had established a prima facie case of discrimination, How- ard IV, 671 F.Supp. at 760-61, was amply supported by the record. First, although blacks comprised 14% of the workforce at Wamer Robins in 1973, when the plaintiffs’ administrative charges were filed, they held only 3.3% of supervisory positions. Record, Vol. 5, Tab 285 at 9. Second, the average grade of white WG employees in 1973 and 1975 was two and half grades higher than that of black WG em- ployees (9.2 to 6.7 and 9.3 to 6.8). Howard IV, 671 F.Supp. at 760. Third, in 1973 approximately 75% of black WG employees were in grades 1-8 compared to less than 33% of white WG employees. /d. Fourth, as of November of 1974, black WG employees spent more time in lower grade positions than did white WG employees and the average length of service for blacks in WG source positions was greater than the average length of services for whites in those same positions (e.g., the average length of service for blacks and whites in WG 5 was 8.4 years and 2.7 years respectively). Record, Vol. 5, Tab 285 at 11-12. Fifth, EEO documents and computer data demonstrated sta- tistical disparities in the ranking factors (i.e., experience and train- ing, Supervisory appraisals, written examinations, and awards) used in both skills locators systems. /d. at 11; Faimess Hearing, Record, 14a Vol. 11 at 29-31. Sixth, conservative statistical studies for the 1971- 1978 period indicated standard deviations of 3.53 to 8.19 in the pro- motion rates for blacks out of WG source grades. Howard IV, 671 F.Supp. at 761. The intervenors argue that a showing of past discrimination must precede the implementation of the promotional relief and that this showing may be made only through the employer’s own admittance of such discrimination or through a judicial finding of past discrimi- nation. The intervenors argue that there was an insufficient predicate for the relief in this case because the consent decree contained a denial of liability and because Birmingham Reverse Discrimination, 833 F.2d at 1501 n. 22, forecloses the prima facie statistical showing from Operating as a judicial finding of discrimination. We find their argu- ment unpersuasive. First, as noted above, Wygant demonstrates that an employer’s denial of liability in the consent decree does not preclude approval of the decree. The govermment’s denial of liability did not bind the dis- trict court which was required to examine the consent decree, ascer- tain whether it represented a reasonable factual and legal determina- tion based on the record, and ensure that it did not violate federal law. See United States v. City of Miami, 664 F.2d 435, 441 (Sth Cir.1981) (Rubin, J., concurring); Cotton v. Hinton, 559 F.2d 1326, 1330-31 (Sth Cir.1977). Wygant also makes it clear that a judicial finding is not required before a public employer adopts an affirmative action program or enters into a consent decrec that provides race-conscious relief. Second, the footnote in Birmingham Reverse Discrimination, relied on by the intervenors, is inapposite and indeed irrelevant to the issue presented in this case. The footnote merely states that no judi- cial determination of discrimination had been made in that case, thereby distinguishing the affirmative action consent decree at issue in that case from court orders requiring affirmative action to remedy past discrimination. The footnote did not address the effect of a denial of liability in a consent decree nor did it state that a judicial determina- tion of discrimination was a necessary component of a constitutional consent decree. We therefore hold that the goverment had a com- pelling and/or important interest in taking remedial action because it 15a had sufficient evidence to justify a conclusion that there had been prior discrimination against blacks at Warmer Robins. C. Narrowly Tailored To satisfy strict scrutiny, the promotional relief in the consent decree must be narrowly tailored. As we previously explained, the promotional relief provides that 240 qualified plaintiffs, who were employed at Wamer Robins during the 1971-1979 period and are listed in special promotion registers, are to be promoted into 38 tar- get positions. The promotions from this list alternate with promo- tions from the general list so that every other promotion to the target positions is filled from the special promotion registers. In determin- ing whether the promotional relief is appropriate, we must look to several factors.These factors include the “necessity for the relief and the efficacy of alternative remedies,” the “flexibility and duration of the relief, including the availability of waiver provisions,” the “‘rela- tionship of numerical goals to the relevant labor market,” and the “impact of the relief on the rights of [the intervenors].” Paradise, 107 S.Ct at 1067. 1. Necessity for particular relief. The district court determined that the promotional relief was the only way of providing the “full relief necessary to remove promptly the remaining vestiges of discrimination at Wamer Robins,”’ espe- cially in light of the decade-long delay in the case, and noted that it had not been presented with any other less intrusive approach that might provide full relief to the plaintiffs within a reasonable time. Howard IV, 671 F.Supp. at 767. To evaluate the district court’s deter- mination that the promotional relief was necessary, “we must exam- ine the purposes the [relief] was intended to serve.” Paradise, 107 S.Ct at 1067. The consent decree was entered into to ensure the expeditious equal promotion of blacks at Wamer Robins and remedy the effects of years of discrimination. The district court found that “discrimina- tion in [the WG] source positions was pervasive throughout the en- tire period [in question],” and noted that the promotional relief was directed only to the wage grades where discrimination had occurred. Howard IV, 671 F.Supp. at 763. Cf. Paradise, 107 S.Ct. at 1067-70 (order requiring promotion of equal number of blacks and whites to — 16a state trooper positions in Alabama Department of Public Safety was necessary to eliminate the effects of the Department’s previous dis- crimination, to ensure expeditious compliance with previous decrees pertaining to that discrimination, and to eliminate the possible ef- fects of the Department’s delay in developing a procedure without adverse impact on blacks). The intervenors contend that the theory behind the number of promotions which are reserved for qualified plaintiffs is wrong be- cause the 6.5% attrition rate at Wamer Robins indicates that only 122 of the 240 plaintiffs who were discriminated against on the median date of January 1, 1975 remain in the workforce. Brief for Interve- nors at 42-43 & n. 18. We dismiss this argument as improperly raised. Our remand limited the issucs that the intervenors could raise and specifically denied them standing to challenge the existence of past discrimination or any other issue conceming the merits of the dispute. Howard III, 782 F.2d at 960-61. The intervenors also argue that the promotional relief was unnecessary because other remedial altcmatives were available. According to the intervenors, the relief could have been spread out over a longer period of time and double promotions (i.e., promoting off both the » gular register and the special promotion register) could have been used. These alternatives, however, are not feasible because they do not place the plaintiffs in their rightful place or do not do so as expe- ditiously.? The district court, which has been invoived with the litiga- tion between the govemment and the plaintiffs since its inception in 1975, did not err in finding that the promotional relief was necessary. The government’s efforts to eliminate the effects of past discrimina- tion would have been thwarted unless 240 qualified plaintiffs were promoted to the 38 target positions. 9 The intervenors’ argument that the promotional relief should have been tempered by red-circling of pay rates or seniority for white employees who would have been promoted but for the 240 promotions, Brief for Intervenors at 44, is unpersuasive. Those employees, like all others at Warner Robins, do not have a legitimate expecta- tion of being promoted, Howard IV, 671 F.Supp. at 766 n. 3, and, as we indicated earlier, there is no evidence that any given intervenor would have received a promo- tion but for the promotional relicf. 17a 2. Flexibility of relief. The flexibility and short duration of the promotional relief cannot seriously be called into question. First, the relief does not prevent white employees from being promoted to the affected wage grades because promotions to qualified plaintiffs alternate with general pro- motions so that every other promotion to a targeted position is from the special promotion registers. White employees are at most de- layed in receiving a promotion to a limited number of specified posi- tions. Second, to be promoted under the terms of the consent decree, the plaintiffs must meet certain qualification criteria. To be included on the special list the class member had to (1) “first meet the normal, basic eligibility requirements for the position sought; (2) the class member must have higher supervisory ratings in late 1984 than other blacks evaluated by the same supervisor, and (3) the seniority of the em- ployee as determined by his service computation date must be considered.” Howard IV, 671 F.Supp. at 763 (Record Cites omitted). Third, the government is not required to make a promotion unless one is neces- sary. Fourth, the relief is not meant to set employment percentage goals or ensure a racially balanced workforce, and it evaporates when the 240 promotions are made. Howard IV, 671 F.Supp. at 766-67. Simply put, the promotional relief does not constitute blind hiring by the numbers and does not amount to a rigid ard impermissible quota system. See Paradise, 107 S.Ct. at 1070-71 (order requiring promo- tion of equal number of blacks and whites was flexible and tempo- rary because it could be waived if there were no qualified blacks, and no gratuitous promotions had to be made). 3. Numerical goals. The relationship of the numerical goal of the promotional relief to the percentage of blacks in the labor force is not a relevant factor in this case. The 240 special promotions do not represent or achieve any aggregate proportionality. Once the 240 promotions are made, the promotional relief ceases, regardless of the percentage of blacks or whites in higher wage gradcs. 18a 4. Impact of the relief. We agree with the district court that the impact of the promo- tional relief on the intervenors is “relatively diffuse.” Howard IV, 671 F.Supp. at 767. To begin with, the relief does not have the drastic impact of layoff requirements found constitutionally impermissible in Wygant, and it does not impose a bar to the intervenors’ advancement. See Paradise, 107 S.Ct at 1073; Local 28, 106 S.Ct. at 3052-53. While the relief may delay the promotions of certain intervenors (those who are actually promoted) to the target positions, it does so only for a limited time. Moreover, “[a]lthough some white [employees] will have their promotions delayed, it is uncertain whether any individual [employee], white or black, would have achieved a different [grade], or would have achieved it at a different time, but for the promotion requirement.” Paradise, 107 S.Ct. at 1076 (Powell, J., concurring). Furthermore, the intervenors and other white employees who are delayed in possible promotions to the target positions are still eligible for other promotions. The 169 promotions that were made from December of 1984 to October of 1986 comprised only 4.3% of the promotions made at Wamer Robins during that period of time. Howard IV, 671 F.Supp. at 767. See also Howard II, 597 F.Supp. at 1503 (special promotions are expected to constitute only 6.5% of all promotions made during period of implementation of the consent decree). The diffused impact of the promotional relief on the interve- nors is further highlighted by the fact that 56 of ihe 137 named inter- venors are not eligible or otherwise unable to be promoted to the tar- get positions and that of the remaining 83 intervenors, 43 have been promoted. Howard IV, 671 F.Supp. at 767 n. 4. The intervenors assert that the promotional relief is not diffuse because it applies only to 38 target positions at Warner Robins and therefore burdens a small segment of the workforce. Brief for Inter- venors at 43. We disagree. As the government pointed out in the dis- trict court, over 8,000 whites are qualified for promotions to the tar- get positions. Government’s Memorandum in Opposition to Interve- nors’ Motion to Vacate Promotional Provisions of Consent Decree, Record, Vol. 7, Tab 323 at 25. See Workforce Statistics Exhibit, In- dex #275 at E2-3 (indicating the number and percentage of black and nonblack employcces qualified for promotions to each of the 38 target 19a positions). The burden imposed by the promotional relief does not fall upon a narrow segment of the workforce. Putting aside the numbers we have just mentioned, the intervenors’ argument proves too much. If the promotional relief extended to all positions at Warmer Robins, thereby satisfying the intervenors’ concems, it would be criticized on the ground that it was not narrowly tailored because it was not limited to those positions in which the plaintiffs had been denied promotions. Given the difficulties inherent in fashioning a proper remedy in this case, the promotion relief strikes the proper balance. 5. Actual victims. The intervenors argue that the best procedures were not used to determine which black employees were discriminatorily denied pro- motions. As we noted in part I. A., due to the nature of Wamer Rob- ins’ promotion system, there are no records that would permit such identification. It would also have been futile to inquire which of the plaintiffs applied for promotions, since all employees at Wamer Robins are initially considered for all vacancies without having to apply for them. The district court’s finding that the best method of determin- ing the actual victims of discrimination at Wamer Robins was util- ized in the consent decree, Howard IV, 671 F.Supp. at 763, is not clearly erroneous. See Association Against Discrimination in Em- ployment, Inc. v. City of Bridgeport, 479 F.Supp. 101, 115-16 (D.Conn.1979) (affirmative action program for nonvictims would be devised if identification process could not identify enough actual victims of discrimination to fill 102 positions which had been set aside), aff” d in part and vacated in part on other grounds, 647 F.2d 256 (2d Cir.1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). Cf. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 261 (Sth Cir. 1974) (individualized hearings to determine which employees were actual victims of discrimination entitled to award of back pay are not required when “the ambiguity of promotion or hiring practices or the multiple effects of discriminatory practices . . . calls forth the quag- mire of hypothetical judgment”). Our conclusion that the promotional relief is narrowly tailored is buttressed by the intervenors’ failure to show that any of the plaintiffs were not discriminated against. 20a Ill. TITLE VII CLAIM The Supreme Court has held that Title VII’s limits on a public employer’s adoption of affirmative programs or race-conscious re- lief embodied in consent decrees do not extend as far as those of the Constitution. See Johnson v. Transportation Agency, 480 U.S. 616, 627 n. 6, 107 S.Ct. 1442, 1449 n. 6, 94 L.Ed.2d 615 (1987); Steel- workers of America v. Weber, 443 U.S. 193, 206 n. 6, 99 S.Ct. 2721, 2729 n. 6, 61 L.Ed.2d 480 (1979). Our determination that the promo- tional relief does not violate the Fifth Amendment therefore means that it satisfies § 703 of Title VII, 42 U.S.C. § 2000e-2(a), which makes it unlawful for employers to discriminate on the basis of race, color, religion, sex, or national origin but does not completely pro- hibit all affirmative action programs. See Weber, 443 U.S. at 208, 99 S.Ct. at 2729.'° IV. CONCLUSION » We acknowledge that the two Icgal grounds upon which we base our opinion may be considered dicta. The intervenors’ argu- ment that the plaintiffs’ showing of past discrimination was insuffi- cient to overcome the intervenors’ Fifth Amendment nghts was ar- guably foreclosed by our opinion in Howard III. To foreclose that argument, we have answered it. '© Because a consent decree is not an “order” within the enforcement provisions of Title VI, it cannot be challenged on the ground that it violates § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) which prohibits a court from entering an order requiring an employer to give relief to an employee who suffers adverse job action if the action was taken for any reason other than discrimination on account of race, color, reli- gion, sex, or national origin. Local No. 93 v. City of Cleveland, 478 U.S. 501, 521- 24, 106 S.Ct. 3063, 3075-77, 92 L.Ed.2d 405 (1996). Even § 706(g), however, per- mits, in certain circumstances, remedies which are not limited to actual victims of discrimination. Local 28, 106 S.Ct. at 3047-49 (plurality opinion), 3054 (Powell, J., concurring). 21a The remand in Howard III as we interpret it gave intervenors the opportunity to prove that implementation of the decree would have an adverse impact on them and if so intervenors could attack the remedial provisions awarded to plaintiffs. Although intervenors failed to show any adverse impact, we nevertheless approve the promotional remedy based on the record in the case and the district court findings." AFFIRMED. "' Given our decision, we necd not address whether the intervenors’ challenge to the promotional relief was rendered moot to the extent that 169 plaintiffs had already been promoted by the time we rendered our opinion in Howard II]. 23a Appendix B IN THE UNITED STATES COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION MICHAEL HOWARD, et al., _—) Plaintiffs, ) ) CIVIL ACTION ) 75-168-MAC (WDO) VS. ) ) JOHN L. McLUCAS, et al., ) Defendants. ) OWENS, Chief Judge: The court’s duty at this moment is clear. It must once and for all put to rest the question of whether the proposed consent decree sub- mitted in this case by the plaintiffs and defendants is a fair, adequate, reasonable, and lawful resolution of this class action controversy. This court’s previous determination that the consent decree was, in fact, a fair, adequate, reasonable, and lawful resolution of this case has been set aside in part by the decision of the Eleventh Circuit Court of Appeals in Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986). That decision, however, was not a finding by the Circuit Court that the decree in question was unreasonable or unlawful. The Cir- cuit Court merely required that before this court could grant final ap- proval to the consent decree, Intervenors, white and non-black mi- nority employees at Warmer Robins Air Logistics Center (“Wamer Robins’’), must be allowed to intervene so that they may have an op- portunity to challenge the relief provided by the consent decree. In allowing the intervention, however, the Circuit Court limited Inter- venors’ challenge of the proposed consent decree soleiy to that por- tion of the decree that reserves 240 target position promotional op- portunities to class members. /d. at 960. Intervenors have no stand- ing to contest the backpay award or other remedial measures pro- 24a vided for in the consent decree. /d. at 960-61. Because of this limita- tion, the court’s previous determinations with regard to the appropri- ateness of the non- promotional relief provided for in the consent decree are hereby readopted and made a part of this order for the reasons stated in the court’s order dated November 20, 1984. The court next tums the issue of the adequacy and legality of the promotional relief. Appropriateness of the Promotional Relief Before discussing the legal issues raised by the granting of promotional relief, it is important to point out the additional limita- tions imposed on Intervenors by the Eleventh Circuit that they must face in disputing the appropriateness of the promotional relief. First, the Eleventh Circuit’s decision makes clear that Intervenors may not contest “the existence of past discrimination or any other issue con- ceming the merits of the dispute” between plaintiffs and defendants. Id. at 961. The second, and perhaps most important limitation, is the fact that the Eleventh Circuit refused to stay the implementation of the consent decree. By the time the Circuit court issued its decision, 169 target positions had been filled by members of the plaintiff class. To the extent that the targeted promotional positions have been filled, the issue of whether the promotional relief is appropriate has been mooted. /d. at 961 n.4. With these limitations thus stated, the court must now proceed to the merits of Intervenors challenge. The court begins its analysis by recognizing that voluntary set- tlement of Titie VII employment discrimination suits is pre [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0266%3A1. Public record. Not legal advice.