Turner v. Secretary of the Air Force Brief of Appellants

    No. 84-3265

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, ^
Plaintiffs-Appellees,
V.

SECRETARY OF THE AIR FORCE, ^
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA

BRIEF OF APPELLANTS, THE SECRETARY OF THE AIR FORCE, ET AL.

RICHARD K. WILLARD
Acting Assistant Attorney General

W. THOMAS DILLARD
United States Attorney

ROBERT S. GREENSPAN
MARK W . PENNAK
Attorneys, Appellate Staff 
Civil Division, Room 3125 
Department of Justice 
Washington, D.C. 20530 
Telephone: (202) 633-4214



STATEMENT REGARDING PREFERENCE
This case is not entitled to any preference in procession or 

disposition under Rule 11 of the Rules of this Court.

STATEMENT REGARDING ORAL ARGUMENT 
The defendants-appellants, the Secretary of the Air Force, 

et ( 'the Secretary"), strongly urge oral argument in this
case. This appeal involves highly important issues concerning 
the proper interpretation of race-conscious hiring goals imposed 
by a Consent Judgment entered under Title VII of the Civil 
Rights Act of 1954, 42 U.S.C. 2000e. The resolution of such 
issues involves important constitutional issues as well as 
application of the Supreme Court's recent decision in 
Firefighters Local Union No. 1784 v. Stotts, 104 S.Ct. 2575 
(1984), with which the district court's decision in this case is 
in conflict. For these reasons, the Secretary believes that 
oral argument will be of benefit to this Court.

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TABLE OF CONTENTS
Page

STATEMENT REGARDING PREFERENCE ..........................  i
STATEMENT REGARDING ORAL ARGUMENT .......................  i
TABLE OF CONTENTS .......................................  ii
TABLE OF AUTHORITIES ....................................  iv
QUESTIONS PRESENTED .....................................  1
STATEMENT OF THE CASE ...................................  2

A. Statement of Facts ..............................  2
1. Raymond Little's Complaint .................  5
2. The facts concerning the denial of

complainant's application for promotion .....  6
3. The procedures employed by defendants 

in considering Consent Judgment goals
in employment and promotion decisions ...... 9

B. Proceedings Before the Special Master
and the District Court ..........................  11
1. The Special Master's rulings ...............  11
2. The District Court's affirmance ............  13

C. Statement Of The Standard For Appellate Review ... 14
SUMMARY OF ARGUMENT .....................................  14
STATEMENT OF JURISDICTION ...............................  17
ARGUMENT ................................................  18
I. INTRODUCTION ........................................  18
II. THE SPECIAL MASTER'S CONSTRUCTION OF THE CONSENT 

JUDGMENT IS CONTRARY TO THE INTENT OF THE PARTIES ... 19
A. A Consent Decree Must Be Construed

Within Its "Four Corners" .......................  19
B. The Special Master's Construction of the

Good Faith Provisions Is Legally Erroneous .......  22

1 1  -



III. THE SPECIAL MASTER'S CONSTRUCTION IS DIRECTLY
CONTRARY TO SECTION 706(G) OF TITLE VII ...........  28

A. Preliminary Statement ...........................  28
B. Section 706(g) Prohibits An Award Of 

Back Pay And A Promotion In The Absence
Of A Finding of Discrimination ..................  29

C. The Special Master's Construction Ignores The 
Rights Of Innocent Third-Parties In Violation
Of Section 706(g) and Stotts ...................  31

IV. THE SPECIAL MASTER'S CHOICE OF REMEDIES IS BARRED 
BY SECTION 706(G) AND UNSUPPORTED BY ANY FINDING
OF "BUT FOR" CAUSATION .............................  3 6

A. Section 706(g) Bars The Relief Awarded
In The Absence Of A Finding Of Discrimination .... 37

B. An Award Of Back Pay And Promotion Is Barred
In The Absence Of A Showing Of Causation ........  38

V. THE CONSENT JUDGMENT SHOULD BE INTERPRETED SO AS TO
AVOID THE SERIOUS CONSTITUTIONAL ISSUE CREATED BY THE 
SPECIAL MASTER'S CONSTRUCTION .......................  40

CONCLUSION ..............................................  50

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TABLE OF AUTHORITIES
Cases: Page
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ...... 39
Bonner v. City of Prichard, 661 F.2d 1206 
(11th Cir. 1981) (en banc) ............................  46

*Day V. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) ......... 39
*Firefiqhters Local Union No. 1784 v. Stotts,

104 S.Ct. 2576 (1984) .............................  passim
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ............ 35
*Fullilove V. Klutznick, 448 U.S. 448 (1980) ...... 17,41-44
*General Building Contractors Ass'n v. Pennsylvania,
458 U.S. 375 (1982) ........ '..........................  45

Hamilton v. Liverpool, London & Globe Insurance Co.,
136 U.S. 242, 255 (1890) ..............................  22

Harbison v. Goldschmidt, 693 F.2d. 115 (10th Cir. 1982) . 39
*Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

(5th Cir. 1974) .......................................  39
Los Angeles Department of Water & Power v. Manhart,
435 U.S. 702 (1978) ...................................  34

Manduj ano v. Basic Vegetable Products, Inc., 541 F.2d 832,(9th Cir. 1976) .......................................  35
Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.), 
cert, denied, 419 U.S. 895 (1974) .....................  46

Mt. Healthy City School District Bd. of Education v.
Doyle, 429 U.S. 274 (1977) ............................  39
NLRB V. Catholic Bishop, 440 U.S. 490 (1979) ...........  49
Regents of the University of California v. Bakke,
438 U.S. 265 (1978) ...................................  45
Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977) ........ 39
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), 
pet. for cert. dismissed, 404 U.S. 1006 (1971) ........  39
South Florida Chapter Of The Associated General 
Contractors of America, Inc, v. Metropolitan Dade 
County, 723 F.2d 846 (11th Cir. 1984), cert, denied,
53 U.S.L.W. 3240 (U.S., Oct. 2, 1984) .................  44

IV -



Stallworth v. Monsanto Co., 558 F.2d 257 
(5th Cir. 1977) .......................................  35

*Teamsters v. United States, 431 U.S. 324 (1977) ... 30,31,33
*Turner v. Orr, 722 F.2d 661 (11th Cir. 1984) ....4,21,24,27
United States v. Atlantic Refining Co.,
360 U.S. 19 (1959) .................................  20,23

^United States v. Armour & Co., 402 U.S. 673 (1971) ..... 20
United States v. City of Miami, 614 F.2d 1322 (5th Cir.
1981), vacated, 664 F.2d 435 (5th Cir. 1981) (en banc).. 46

United States v. ITT Continental Baking Co.,
420 U.S. 223 (1975) .............................  20,22,24

United States v. City of Alexandria, 614 F.2d 1358 
(5th Cir. 1980) ......................................  46

United States v. Security Industrial Bank,
459 U.S. 70 (1982)   49

*Williams v. City of New Orleans, 729 F.2d 1554
(5th Cir. 1984) (en banc) .............................  46

Statutes and Regulations:
Title VII of the Civil Rights Act of 1964;

42 U.S.C. 2000e .....................................  i, 1
* Section 706(g), 42 U.S.C. 2000e-5(g)..............  passim
Air Force Regulations 40-335, UlO, Tables 2, 5 ..........  9
Rule 53 of the Federal Rules of Civil Procedure .... 4,6,22
28 U.S.C. 1291 .........................................  17
28 U.S.C. 1292(a)(1)   17

V -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 84-3256

WILLIAM C. TURNER, ^  ,

Plaintiffs-Appellees,
V.

SECRETARY OF THE AIR FORCE, ^  ,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA

BRIEF OF APPELLANTS, THE SECRETARY OF THE AIR FORCE, ET AL.

QUESTIONS PRESENTED
1. Whether the district court improperly disregarded the 

terms of the Consent Judgment and the intent of the parties in 
holding that the "good faith" provisions of a Consent Judgment 
required the defendants, the Secretary of the Air Force, et al., 
to meet the promotion goals specified in a Consent Judgment 
entered under Title VII of the Civil Rights Act of 1954, 42 
U.S.C. 2000e, by engaging in racial discrimination against 
innocent third-party job applicants in favor of class-members 
who have never been victims of racial discrimination by 
defendants.



2. Whether the district court violated the policies of 
Section 706(g) of the Civil Rights Act of 1964, 42 U.S.C. 2000e- 
5(g), in construing the Consent Judgment as requiring the 
Secretary to engage in racial discrimination against innocent 
third-party job applicants in favor of class-members who have 
never been found to be victims of racial discrimination.

3. Whether the district court erred in awarding back pay 
and a promotion to a class member without any finding of 
discrimination and without a causation finding that "but for" 
the alleged Consent Judgment violation the class member would 
have been awarded the position.

4. Whether the district court's construction of the Consent 
Judgment mandating the creation of racial quotas benefitting non­
victim class members to the direct disadvantage of innocent 
third-parties unconstitutionally infringes the equal protection 
rights of such innocent third-parties.

STATEMENT OF THE CASE
A. Statement of Facts
This case concerns a final order entered by a special master 

and affirmed by the district court applying and enforcing the 
provisions of a Consent Judgment. The Consent Judgment was 
entered January 12, 1981, in settlement of a class action suit 
brought against the Air Force under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e, for alleged racial 
discrimination against civilian black employees and applicants 
for employment at Eglin Air Force Base in Florida.^ The

The certified class consisted of:
(CONTINUED)

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Consent Judgment provides that "[i]n interpreting the provisions
of this Judgment which may become disputed among the parties,
the law as set forth by Title VII of the Civil Rights Act of
1954 as construed by the courts, shall apply." (Judgment,

2Section II, U9; R. 20). This Consent Judgment was adopted by 
the district court after conducting a four-day fairness hearing 
on February 4, 1980; September 16, 1980; December 16, 1980; and 
January 12, 1981.^

Under the Consent Judgment, defendants agreed "to make a 
good faith effort" to reach and maintain specified racial 
proportions on a percentage basis for specific job categories. 
(Judgment, §VII 111; R. 30). Similarly, in Section X of the 
Consent Judgment, defendants agreed to "make every good faith 
effort" to fill supervisory positions with blacks "in proportion 
to the percentage of blacks in the occupancy category wherein 
the vacancy arises." (Section X, 3̂; R. 39). The Consent

(FOOTNOTE CONTINUED)

All Negroes who were employed as civilians by the 
Eglin Air Force Base on January 9, 1975, or at 
any time thereafter, all Negroes who could have 
filed administrative complaints of discrimination 
against Eglin Air Force Base on January 9, 1976, 
or at any time thereafter, and all Negroes who 
may in the future apply for employment at the 
Eglin Air Force Base. (R. 17).

A copy of the Consent Judgment is set forth at R. 15-45.
2 The Record on this appeal is referred to in this brief as "R. ___ ."
3 The transcripts of these fairness hearings are included in 
the Supplemental Record certified and transmitted to this Court 
after the appeal had been docketed.

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Judgment defines the phrase "good faith effort" as meaning 
"every necessary and appropriate step will be taken to realize 
the specified objectives." (Section II, H9; R. 20). The 
percentages specified in the Consent Judgment are not quotas; 
rather the specified proportions are expressly referred to as 
"goals." (Section VII, 2,3,4,5; R. 31, 32).

Under the Consent Judgment, violations of the Judgment are 
treated under Section IX, under which employees or applicants 
are accorded a choice of pursuing claims of discrimination under 
the Civil Rights Act of 1964, the Civil Service Reform Act of 
1978, or under the Consent Judgment. (R. 35). If an employee 
or applicant elects to proceed under the Consent Judgment, 
complaints of violations of the Consent Judgment are first 
brought by the complainant to the "Plaintiffs Monitoring 
Committee," which, upon screening, may refer the complaint to a 
Rule 53 special master appointed under Section III of the 
Consent Judgment to oversee its implementation. (Section IX U4;

4R. 36). The special master is empowered to determine if a 
violation has occurred and order relief as appropriate.

The district court in this case had previously held that 
the special master appointed under this Consent Judgment was 
not a Rule 53 special master and that his rulings were final 
and non-appealable to either the district court or to this 
Court. This interpretation of the Consent Judgment was 
emphatically rejected by this Court in a series of prior 
appeals taken by the Secretary. See Turner v. Orr, 722 F.2d 
661 (11th Cir. 1984); Turner v. Orr, Nos. 83-3290, 83-3354, 83- 
3504 and 83-3356, summary reversal/dismissal granted, Feburary 
27, 1984. Accordingly, as the district court recognized in the 
order at issue in this appeal (R. 291), there is no’doubt that 
the special master's rulings at issue on this appeal were 
properly reviewable under Rule 53.

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(I_d.). All parties have the right to appeal any special 
master decision to the district court with other rights of 
appeal preserved. (Id.).

1. Raymond Little's Complaint
Pursuant to Section IX of the Consent Judgment, in September 

1983, the Plaintiffs Monitoring Committee ("PMC") brought before 
the special master the complaint of Raymond Little, a member of 
the plaintiff class ("complainant").^ Complainant asserted 
that defendants had violated the hiring goals of the Consent 
Judgment by failing to promote him from his existing position at 
Eglin Air Force base to a temporary supervisory foreman position 
(WS-5307-07) which had been filled on March 21, 1982, with a 
white applicant, Arthur Kelly (the "Kelly position"). (R.
48). Complainant did not allege that he had been a victim of 
past discrimination predating the Consent Judgment or that the 
defendants had engaged in discrimination in failing to promote 
him to the Kelly position. Specifically, complainant alleged 
only that "[b]y not promoting [complainant] to the position, the 
Defendants failed to 'recruit, hire, and maintain' the required 
percentage of black employees in the Craftsman category at the 
supervisory level." (R. 51). All these allegations were

The "PMC's Motion for Hearing and Presentation of the 
Claim of Raymond Little" ("the Little complaint") is the 
functional equivalent of a complaint in the context of this 
case and is thus reproduced (without exhibits) in the 
accompanying Record Excepts. The Little complaint with 
exhibits is set forth in full in the Record at R. 47-179.
0 Complainant also alleged that defendants had violated the 
Consent Judgment hiring goals by failing to hire him for

(CONTINUED)

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denied by defendants on the ground that the Kelly position was 
filled on the basis that "Mr. Kelly was highly qualified for

nthis foreman position while Mr. Little was not." (R. 185).
2. The facts concerning the denial of

c omplainant's application for promotion
After denying complainant's motion for summary judgment (R.

202), the special master conducted a four-day hearing on the
complaint during October 3-5, 7, 1983. The facts material to
this appeal, as developed during this hearing, are largely
undisputed. On January 12, 1982, the Operations Branch of'the
Civil Engineering Squadron ("Operations Branch") at Eglin Air
Force Base decided to fill the position of WS-5306-07, Air
Conditioning Mechanic Foreman. (R. 78). At that time, the
position could be filled with a civilian on only a temporary
basis because of its placement on the critical military skills

0list. (Vol. 4 at 65-55) Positions on the critical military

(FOOTNOTE CONTINUED)
another supervisory position filled by another white applicant 
Gerald Dickey (the "Dickey position"). (R. 48). The special 
master based its holding solely on the defendants' failure to 
place complainant in the Kelly position, expressly refusing to 
reach the merits concerning the Dickey position. (R. 215). 
Similarly, in reviewing the special master's findings under 
Rule 53, the district court did not reach the merits of the 
Dickey position. Accordingly, this brief focuses solely on the Kelly position.
7 The "Defendants' Response To PMC's Motion for Hearing" is 
the functional equivalent of an answer in the context of this 
case and is thus reproduced in the accompanying Record 
Excepts. This Response is set forth in the Record at R. 184- 199 .
0 The transcripts of these hearings are Record Volumes 3- 
7. Because these transcripts were not assigned page numbers

(CONTINUED)

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skills list may not be filled by a civilian employee on a 
permanent basis. (Vol. 5 at 224-225).

In accordance with established Air Force procedures, upon 
deciding to fill the position, the Operations Branch forwarded a 
completed Standard Form 52 to the Office of Civilian Personnel 
which initiated action to fill the position by producing a list 
of employees who were eligible for the position. (Vol. 4 at 55-

Q56). This list, which included the complainant and Mr.
Kelly, were selected with the aid of a computerized system known 
as the Promotion, Placement and Referral System ("PPRS") which 
rates relevant qualifications of existing employees. (Vol 6 at 
216-20). Through this PPRS process, Mr. Kelly was rated sixth 
while complainant was ranked thirteenth. (R. 153). On February 
16, 1982, this list of employees was then referred to a panel of 
selecting officials via a "promotional certificate" for further 
review and competitive selection. (R. 113-114).

This selection panel, which consisted of two civilians and 
an Air Force non-commissioned officer, interviewed each 
applicant listed on the promotion certificate with a standard

8 (FOOTNOTE CONTINUED)
independent of the transcript page numbers, these transcripts 
are referred to in this brief by reference to volume numhier of 
the Record (rather than transcript volume) and page number of 
the transcript. The same practice is followed with respect to 
the transcripts of the fairness hearings conducted in 1980 and 
1981 on the Consent Judgment itself.
g Placement on the promotion certification did not, however, 
indicate that the particular individual was necessarily 
"qualified" for the position. (Vol. 6 at 163). That 
determination was made by the selecting officers. (Id. ) .

7 -



list of ten questions and accorded each applicant the 
opportunity to expand upon or explain his qualifications.
(Vol. 6 at 139). Upon consideration, the panel unanimously 
selected Mr. Kelly for the position on the ground that "Mr.
Kelly was far and above the most qualified for the job." (Vol.
5 at 182). See also Vol. 5. at 140. This judgment was based on 
Mr. Kelly's 24 years of experience in the air conditioning 
field, including eight years of experience acting as a 
supervisor whenever his supervisor had been absent. In 
addition, Mr. Kelly missed none of the ten questions (Vol. 5 at 
159) and his responses to the questions were judged excellent by 
the panel. (Vol. 6 at 182, 205-208). The panel also judged 
Mr. Kelly to have "proven himself" with respect to his 
supervisory skills. (Vol. 6 at 182).

In contrast, after weighing complainant's qualifications and 
reponses to the question, the panel concluded that complainant's 
qualifications were not "even comparable" to those possessed by 
Mr. Kelly. (Vol. 6 at 143). More specifically, while noting 
that complainant had some supervisory experience in the Army 
(Vol. 6 at 184), the panel felt that complainant was not 
qualified for this supervisory position because "[h]e did not 
have . . . enough . . . supervision experience." (Vol. 5 at
141). See also R. 153. Complainant had been employed in air 
conditioning only nine years and had not demonstrated the 
technical knowledge necessary for this supervisory position. 
(Vol. 5 at 140-44, 170-76, 200). Complainant did not answer all 
ten questions correctly and some of his answers were considered 
marginal by the panel. (Vol. 5 at 159). The panel thus

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selected Mr. Kelly over complainant and the other applicants 
because his qualifications were simply "the best." (Vol. 6 at 
143 ) .

Four months after the selection of Mr. Kelly, the position 
was unexpectedly removed from the critical military skills list 
and thus could be filled by a civilian on a permanent basis.
(Vol. 4 at 67).^^ The position was then filled, on a non­
competitive basis, by Mr. Kelly because Mr. Kelly had been 
selected for the temporary position as the result of full 
competition. Such non-competitive placement is specifically 
authorized by Air Force regulations. See Air Force Regulations 
40-335, 1̂0, Tables 2, 5.^^ Because the position was filled 
non-competitively, however, the Air Force did not consider the 
hiring goals of the Consent Judgment.

3. The procedures employed by defendants 
in considering Consent Judgment goals 
in employment and promotion decisions

The foregoing decision-making process was conducted pursuant 
to Air Force procedures then in effect. Since the entry of the 
Consent Judgment in this case, the Air Force has employed a 
procedure designed to ensure that the selecting officers are 
advised of the Consent Judgment's hiring goals. Stated briefly, 
whether a given position is covered by the goals of the Consent

The practice of the Civilian Personnel Office was to 
apply the Consent Judgment goals to temporary positions where 
it was thought that the position would soon become permanent. (Vol. 4 at 75-77) .

A copy of the pertinent portions of these regulations are 
reproduced in the accompanying Statutory Addendum.

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Judgment is first indicated on the Form 52 sent to the Office of 
Civilian Personnel by the organization requesting the 
position. (Vol. 4 at 70). Upon receipt of the Form 52 an 
officer at the Civilian Personnel Office would use the Form 52 
to fill out a Form 176.to advise the selecting officers whether 
the position was covered by the Consent Judgment. (Vol. 4 at 71- 
71). This completed Form 175 is then transmitted with the 
promotion certificate to the selecting officers. (R. 117).
Where the position was recognized as covered by the hiring goals 
of the Consent Judgment, the selecting officer's approach was to 
"[m]ake every effort to hire that man [the class-member] if he 
meets the qualifications, if he is the best qualified." (Vol. 6 
at 165). Thus, "special consideration" was given to class 
member applicants, but a class member would not be selected over 
a more qualified non-class member. (Vol. 5 at 188-89).

In this particular case, the Air Force operated under the 
understanding that temporary positions were not covered by the 
Consent Judgment. (Vol. 4 at 63-74). This conclusion was based 
on the Consent Judgment itself, which provides that "temporary 
VRAs and temporary overhires . . . shall not be regarded as
incumbents" for purposes of determining whether the defendants 
have met the goals. (Judgment §VII, H5; R. 33). Accordingly, 
in this case, the Form 52 sent to the Office of Civilian 
Personnel indicated that the position was not covered by the 
Consent Judgment. (R. 120). Similarly, the Form 175 
accompanying the promotional certificate and sent to the 
selecting officers indicated that the position was not covered 
by the Consent Judgment. (R. 117). When the position became

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permanent the position was filled non-competitively by the 
occupant, Mr. Kelly, in accordance with Air Force regulations.
(Vol. 4 at 7Q). However, the record is uncontradicted that even 
had the goals been considered by the selecting panel, the 
position would have been nonetheless awarded to Mr. Kelly on the 
basis of Mr. Kelly's superior qualifications. (Vol. 5 at 188- 
89) .

B. Proceedings Before the Special Master 
and the District Court_______________
1. The Special Master's rulings 

In an opinion issued October 25, 1983, the special master 
found for the complainant, holding that defendants had violated 
the "good faith" requirement of the Consent Judgment. (R. 207- 
215). This finding was based on two, alternative grounds.
First, after making a factual finding that the complainant was 
minimally qualified for the position filled by Mr. Kelly (R.
209), the special master ruled that the Air Force had violated 
the good faith requirement of the Consent Judgment by filling 
the position with a white applicant "without ever notifying the 
selecting supervisor at any point in time that this was a 
Consent Judgment goal position." (R. 213). In so holding, the 
special master did not reach the Air Force's contention that the 
Consent Judgment did not apply to temporary positions, reasoning 
that the Air Force should have at least advised the selecting 
officers of the goals when the position became permanent. (R. 212) 

Second, as "an alternative ground" (R. 213), the special 
master also ruled that the good faith requirement imposed by the 
Consent Judgment required defendants to fill vacant positions

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with any class member who was merely qualified for the position-- 
regardless of whether the class member was the best qualified 
applicant. (R. 213-215). In so holding, the special master did 
not dispute that the record demonstrated that Mr. Kelly was more 
qualified than complainant and that Mr. Kelly would have been 
selected on the basis of his qualifications even if the Air 
Force had considered the goals of the Consent Judgment. (R. 213- 
214). Rather, the special master summarily concluded that 
"assuming without deciding that Mr. Kelly was the best qualified 
candidate, the Defendants' argument that the good faith 
requirement was met because the supervisors selected the best 
qualified candidate from a group of qualified candidates is 
without merit." (R. 214-215). The special master made no 
finding that complainant had been discriminated against on the 
account of his race, holding only that defendants had "violated 
the good faith provisions of the Consent Judgment when the 
Defendants selected Mr. Kelly for the Air Conditioning Equipment 
Mechanic Foreman postion, WS-5306-7." {R. 215). The special
master thereupon directed the parties to confer on an 
appropriate remedy. (Id.).

After the parties were unable to agree on the remedy, in a 
order entered November 25, 1983, the special master ordered 
defendants to "immediately commence the placement of 
[complainant] in the pending, presently unfilled WS-5306-7
vacancy. (R. 232). 12 The special master also awarded

12 The position which the special master ordered defendants
(CONTINUED)

-  12



"seniority, back pay and other appropriate relief" from the date 
the temporary position was first filled with Mr. Kelly, ordering 
counsel for complainant to make the necessary calculations and 
submit the results for approval. (Id.). The defendants' 
request for a stay pending appeal to the district court was 
denied by the special master in the same order. The special 
master made no finding that the complainant would have been 
selected for the postion but for the violation of the Consent 
Judgment.

2. The District Court's affirmance 
Defendants filed objections to the special master's report 

pursuant to Rule 53 of the Federal Rules Of Civil Procedure, 
contending that the special master's rulings were legally 
erroneous as well as unsupported by the evidence. (R. 241). 
Specifically, defendants objected to the special master's report 
on grounds that the special master's construction of the Consent 
Judgment as requiring the defendants to give racial preferences 
to class members over better qualified non-class members 
converted the goals of the Consent Judgment into quotas in 
violation of both the Constitution and Title VII. (R. 251). In 
addition, defendants objected to the award of the position and 
back pay as unsupported by any record evidence that complainant

12 (FOOTNOTE CONTINUED)
to fill with complainant was a vacancy in the same type of 
position previously filled by Mr. Kelly. (R. 230). Because of 
the fortuitous opening of this vacancy, defendants were not 
forced by the special master's order to demote Mr. Kelly to 
comply with the order.

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would have received the position in the absence of the failure 
to notify the selecting panel of the applicability of the 
Consent Judgment goals. (R. 254).

In a three-page Order filed February 13, 1984, the district 
court summarily affirmed the special master in all respects.
The court reasoned first that "the question whether defendants 
acted in good faith is a pure question of fact with the Special 
Master's determination respecting it subject to review under 
[Rule 53's] clearly erroneous standard." (R. 292). Ruling that 
the special master's rulings were not clearly erroneous, the 
court held "[tjhe Special Master was also correct in his 
interpretation of the requirements of the consent judgment and 
the remedy provided by him in his order dated November 14, 1984 
[sic] is appropriate and supported by legal authority."
(Id.). The district court "adopted in whole" the special 
master's orders. (R. 293). Defendants filed a timely notice of
appeal from this district court order on April 11, 1984. (R.
294) .

Statement Of The Standard For Appellate Review 
The standard of review on this appeal is whether the 

district court erred in formulating and applying the legal 
standards under which the court affirmed the special master's
finding of a Consent Judgment violation and imposition of the 
remedy.

SUMMARY OF ARGUMENT
On the facts of this case, the Secretary does not dispute 

that the selecting officers in this matter did not consider the 
Consent Judgment goals in filling the position. Accordingly,

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for purposes of this appeal, the Secretary does not challenge in 
this Court the special master's holding that this failure 
constitutes a technical "violation" of the "good faith" 
provisions of the Consent Judgment. However, notwithstanding 
this finding, the special master and the district court plainly 
erred as a matter of law in construing the Consent Judgment as 
authorizing the special master to award back pay and a promotion 
to complainant to the direct prejudice of innocent third-party 
non-class members.

A. First, the relief awarded in this case cannot be 
justified on the basis of the special master's ruling that the 
Consent Judgment requires the Secretary to hire or promote 
minimally qualified class members in preference to better 
qualified non-class members without any finding that such class 
members had suffered discrimination at the hands of 
defendants. This construction of the good faith provisions 
indisputably requires the Secretary to engage in racial 
discrimination against qualified white and other non-class 
members. This holding, which essentially interprets the Consent 
Judgment as imposing mandatory hiring quotas, is flatly contrary 
to the language of the Consent Judgment as well as the intent of 
the parties in entering into the Consent Judgment. On this 
ground alone, the special master's interpretation of the Consent 
Judgment cannot stand.

B. More fundamentally, the special master's construction of 
the Consent Judgment requiring the Secretary to give racial 
preferences to non-victims of discrimination flies in the face 
of the prohibition of Section 705(g) of the Title VII, 42

- 15



U.S.C. 2000e-5(g), as most recently construed by the Supreme 
Court in Firefighters Local Union No. 1784 v. Stotts, 104
S. Ct. 2575 (1984). Under Section 705(g), a court is prohibited 
from requiring the "promotion of individual . . .  or the payment 
to him of any back pay, if such individual was . . . refused
. . . advancement for any reason other than discrimination
• • • ." Stotts squarely holds that the prohibition of Section
705(g) strips any court of the authority to impose, over a 
party's objection, an award of back pay and a promotion to a non­
victim of discrimination. On the record of this Consent 
Judgment, there can be no doubt that the Secretary did not 
consent to any such relief in circumstances such as presented by 
this case. Indeed, the record in this case reveals absolutely 
no indication that the district court ever considered the rights 
of innocent third-parties, such as Mr. Kelly, or made any effort 
to conduct the necessary balancing of competing interests.

C. Third, the special master also erred in awarding back 
pay and a promotion on the basis of the finding that the 
Secretary had violated the Consent Judgment in failing to advise 
the selecting officers of the applicability of the Consent 
Judgment goals. While the Secretary does not challenge this 
finding on this appeal, the award of back pay and a promotion on 
the basis of this "violation" is contrary to Section 705(g) in 
that it issupported neither by a finding of discrimination nor 
any finding that, "but for" the violation, complainant would 
have received the position instead of Mr. Kelly. Since the award 
is supported neither by a finding of discrimination nor any showing 
of "but for" causation, the relief awarded below cannot be

16 -



sustained on the basis of the failure to advise the selecting 
officers of the applicability of the Consent Judgment's goals.

D. Finally, the special master's construction of the 
Consent Judgment must be overturned as violative of the equal 
protection rights of innocent third-parties. First, in the 
absence of a supportable finding of discrimination, the equal 
protection guaranties of the Due Process Clause of the Fifth 
Amendment simply bars awarding racially based hiring and 
promotional preferences to non-victims to the direct 
disadvantage of innocent third-parties. Second, assuming 
arguendo that such preferences are ever permissible, the 
preferences accorded by the special master in this case cannot 
the survive the "most searching examination" required by Chief 
Justice Burger and Justice Powell in Fullilove v. Klutznick, 448 
U.S. 448 (1980). However, this Court should avoid this 
constitutional issue by holding that the special master's 
construction is unsupported by the intent of the parties or is 
violative of Section 706(g) of Title VII.

STATEMENT OF JURISDICTION
By letter dated May 4, 1984, this Court requested the 

parties to advise the Court of their respective positions 
concerning this Court's appellate jurisdiction. The Secretary 
filed a response May 15, 1984, and a Reply May 25, 1984. These 
prior pleadings, which are incorporated herein by reference, 
make clear that this Court has jurisdiction under either 28 
U.S.C. 1291 or 28 U.S.C. 1292(a)(1). By letter dated June 19, 
1984, the Clerk of this Court advised counsel that "it has been 
determined that this Court has probable jurisdiction to consider 
the appeal . . . ."

17 -



ARGUMENT
I. INTRODUCTION

As outlined above, under the special master's construction 
of the Consent Judgment, the Secretary may promote only class 
members possessing minimal or better qualifications until such 
time the Secretary has satisfied the percentage goals specified 
in the Consent Judgment. There can be no dispute on the facts 
of this case that this interpretation of the Consent Judgment, 
as "adopted" by the district court, creates a mandatory racial 
quota by requiring the Secretary to give a racial preference to 
class-member applicants and thereby engage in racial discrimin­
ation against white and other non-class member applicants.

In this respect, it is critical to note that this preference 
is not limited to those members of the class who have suffered 
racial discrimination. Complainant has never alle'ged that 
defendants engaged in racial discrimination against complainant 
in selecting Mr. Kelly for the promotion. The special master 
never made any finding of such discrimination. The special 
master found a violation of the Consent Judgment even after 
"assuming" that Mr. Kelly's qualifications were superior to 
those of the complainant. Thus, under the special master's 
construction of the Consent Judgment, the Secretary could have 
avoided a violation in this case only by according the 
complainant, a non-victim, a preference based solely on 
complainant's race, thereby engaging in direct racial 
discrimination against Mr. Kelly.

-  18



The special master's finding of liability is not limited to 
the complainant or merely the facts of this case. Rather, the 
special master accorded the preference to complainant solely on 
the basis of complainant's status as a class-member. The 
certified class protected by the Consent Judgment and whose 
members are entitled to bring complaints for non-compliance 
includes "[a]11 Negroes who were employed as civilians by the 
Eglin Air Force Base on January 9, 1975, or at any time 
thereafter . . . [and] all Negroes who may in the future apply
for employment at the Eglin Air Force Base." (R. 17; emphasis 
supplied). There is no contention that these persons ever 
suffered racial discrimination at Eglin. Indeed, as noted, the 
Consent Judgment itself recites that the Judgment is not based 
on any finding of discrimination. (Judgment HI; R. 17).

It is thus clear beyond peradventure that the special
master's construction of the Consent Judgment necessarily
results in discrimination against innocent non-class members and
discrimination in favor of class-members who had never been
shown to be the victim of any racial discrimination at Eglin.
For the reasons set forth below, this interpretation of the
Consent Judgment cannot be permitted to stand.
II. THE SPECIAL MASTER'S CONSTRUCTION OF THE CONSENT 

JUDGMENT IS CONTRARY TO THE INTENT OF THE PARTIES
A. A Consent Decree Must Be Construed 

Within Its "Four Corners"_________
It is well established that a consent judgment is 

contractual in nature and is to be construed to give effect to 
the intent of the parties. As the Supreme Court noted most 
recently, "'the scope of a consent decree must be discerned

- 19



within its four corners, and not by reference to what might 
satisfy the purposes of one of the parties to it' or by what 
'might have been written had the plaintiff established his 
factual claims and legal theories in litigation.'" Firefighters 
Local Union No. 1784 v. Stotts, 104 S.Ct. 2576, 2586 (1984), 
quoting United States v. Armour & Co., 402 U.S. 673, 681-82 
(1971). See also United States v. Atlantic Refining Co., 360
U. S. 19, 23 (1959)("the language of a consent decree" should be 
construed by reference to "its normal meaning"); United States
V. ITT Continental Baking Co., 420 U.S. 223, 234 (1975)
(consent decree language should be construed in its "natural 
sense") (emphasis the Court's).

These principles were most recently applied by the Supreme 
Court in Stotts. There, a Title VII consent decree had been 
entered to remedy the alleged discriminatory hiring and 
promotion practices of the Memphis Fire Department. This decree 
adopted hiring goals, requiring the city to increase "the 
proportion of minority representation in each job classification 
in the Fire Department to approximately the proportion of blacks 
in the labor force . . . "  (104 S.Ct. at 2581). No violation
was admitted. Subsequently, when the city announced plans to 
lay-off workers in the fire department pursuant to a seniority 
system, the district court modified the consent decree, which 
did not address lay-offs, to enjoin the city from laying-off 
black workers, thereby resulting in the lay-off of white workers 
who would not have been laid off under the city's seniority 
plan. The Sixth Circuit affirmed, on the theory that, in using 
a seniority system having the effect of reducing the percentage

20  -



of black employees, the city had violated the decree by 
breaching its "obligation to use its best efforts to increase 
the proportion of blacks on the force." (104 S.Ct. at 2585).

In a 5-3 decision, the Supreme Court reversed, holding that 
the Sixth Circuit had misapplied the consent decree.
Reaffirming the "four corners" rule noted above, the Court noted 
that the decree made no mention of lay-offs and there was no 
suggestion within the "four corners" of the decree that the 
parties had intended to depart from the existing seniority 
system. The Court reasoned that "[h]ad there been any intention 
to depart from the seniority plan in the event of layoffs or 
demotions, it is much more reasonable to believe that there 
would have been an express provision to that effect." (104 
S.Ct. at 2585). The Court thus squarely rejected the Sixth 
Circuit's rationale that the injunction was justifiable under 
the city's general obligations under the decree.

The "four corners" rule reiterated in Stotts was applied 
most recently by this Court in Turner v. Orr, 722 F.2d 551 (11th 
Cir. 1984), a case involving the special master's and the 
district court's construction of a different part of the same 
Consent Judgment at issue in this case. There, the special 
master and the district court had held that the term "special 
master" as used in the Consent Judgment did not mean a special 
master under Rule 53 but rather meant an "arbitrator" whose 
decisions were final and unreviewable. This Court emphatically 
rejected this misreading of the Consent Judgment, holding that 
"the district court had erred in going outside the four corners 
of the consent judgment to find that what the judgment labelled

-  21



a 'special master' was instead an 'arbitrator.'" (722 F.2d at 
654). The Court further held that the district court had also 
erred in giving controlling weight to the views of one party, 
noting that "it is clear that not all the parties to the consent 
judgment shared the same intent . . . (722 F.2d at 665).

B. The Special Master's Construction of the 
Good Faith Provisions Is Legally Erroneous

As the "four corners" rule implies, construction of the
terms of a consent decree is a question of law for the court --
not, as the district court apparently believed, a factual 

13question. This follows from the principle that "[cjonsent 
decrees and orders have attributes both of contracts and of 
judicial decrees . . . ." United States v. ITT Continental
Baking Co., 420 U.S. 223, 235 n.lO (1975). The meaning of a 
judicial decree is, of course, a question of law for the 
court. Similarly, it has long been established in the law of 
contracts that "construction of the correspondence in writing 
between the parties, present[s] a pure question of law, to be 
decided by the court." Hamilton v. Liverpool, London & Globe 
Insurance Co., 136 U.S. 242, 255 (1890).

Under foregoing principles, there can be little doubt that 
the special master and the district court misconstrued the good 
faith provisions of the Consent Judgment. First, as an initial 
matter, the district court committed plain error in holding that

13 As noted, the district court suggested that "the question 
whether defendants acted in good faith is a pure question of 
fact with the Special Master's determination respecting it 
subject to review under the rule's [Rule 53] clearly erroneous standard." (R. 292).

22



"the question whether defendants acted in good faith is a pure 
question of fact." (R. 292). The special master's deter­
mination that defendants had violated the Consent Judgment was 
not based on findings of fact. Rather, this determination was 
based on the special master's interpretation of the term "good 
faith" and of the legal duties placed on the Secretary by the 
"good faith" provisions. Indeed, the facts in this case are 
essentially undisputed. The question is thus not whether the 
special master was "clearly erroneous" under Rule 53 in his 
factual findings, but whether the special master's inter­
pretation of the "good faith" provisions was legally 
erroneous. The district court simply erred in failing to review 
this legal question ^  novo.

Viewed under the proper legal standard, the special master 
committed plain error in construing the "good faith" provisions 
as requiring the Secretary to hire or promote only class members 
until the "goals" are met. This holding converts the "goals" of 
the Consent Judgment into iron-clad, mandatory racial quotas-- 
something to which the defendants simply never agreed. The 
numeric racial proportions are called "HIRING GOALS" and are 
referred to throughout the Section as "goals." (Section VII, 
11112,3,4,5; R. 30-33). The term "quota" is never used in the 
Consent Judgment.

As the "normal meaning"and "natural

14 United States v. Atlantic Refining Co., 350 U.S. 19, 23 
(1959)("the language of a consent decree" should be construed 
by reference to "its normal meaning").

- 23 -



sense"^^ of the term "goal" implies, the "goals" provisions of 
the Consent Judgment are aspirational. The parties realized in 
entering into the Consent Judgment that the racial proportions 
specified in the Consent Judgment were objectives which may or 
may not be reached depending on the circumstances. Compliance 
with the "goals" of the Consent Judgment was thus intended to be 
measured over time -- not with respect to particular employment 
decisions. Like the parties in Stotts, had the parties in this 
case intended to have "goals" mean mandatory quotas under which 
minimally qualified class members would be hired or promoted 
regardless of the qualifications of non-class member applicants, 
"it is much more reasonable to believe that there would have 
been an express provision to that effect." (104 S.Ct. at 
2586). See Turner v. Orr, 722 F.2d 661, 664 (11th Cir. 1984).

Moreover, the Consent Judgment does not require that these 
goals actually be met, mandating only that defendants make only 
a "good faith" effort. For example. Section VII, pertaining to 
non-supervisory positions, requires only that "[t]hroughout the 
life of the Judgment, Eglin shall make every good faith effort 
to recruit, hire and maintain at a minimum the following racial 
proportions for the indicated series and occupational 
categories." (R. 30; emphasis supplied). Similarly, Section X, 
pertaining to supervisory positions, requires only that "Eglin 
shall make every good faith effort to fill said positions in

United States v. ITT Continental Baking Co., 420 U.S.
223, 234 (1975) (consent decree language should be construed in 
its "natural sense") (emphasis the Court's).

24



porportion to the percentage of blacks in the occupational 
category wherein the vacancy arises." (R. 39; emphasis 
supplied). "Good faith" is defined by the Consent Judgment in 
subjective and aspirational terms as meaning only that "every 
necessary and appropriate step will be taken to realize the 
specified objectives." (R. 20). This language, taken in 
combination with the parties' use of the term "goal," is simply 
inconsistent with the imposition of racial quotas.

Other portions of the Consent Judgment suggest that no such 
mandatory requirement was contemplated. For example, a failure 
to meet the non-supervisory numerical "goals" specified in 
Section VII was not deemed an automatic violation of the Consent 
Judgment. Rather, Section VII provides that such a failure, 
once proved, is excused if the defendants are able to show that 
"[a.] every reasonable effort to recruit and obtain black 
applicants from available sources had been effectuated, and [b.] 
candidates could not reasonably be made available for selection 
oportunities." (Section VII, H4; R. 32). Indeed, Section X, 
which controls defendants' obligations with respect to 
supervisory positions, is even more general than Section VII, 
imposing neither express numeric goals nor creating any specific 
procedures for determining when defendants' obligations as to 
supervisory positions have been violated.

It should be noted that neither the special master nor 
the district court made any finding that defendants had 
"failed" to meet the racial porportions of the Consent Judgment 
as that term is used in Section VII, 114. In this respect, 
because the position sought by complainant is supervisory, the

(CONTINUED)

25 -



Plainly, there is nothing in the Consent Judgment that 
suggests, much less mandates, the special master's holding that 
the defendants must meet their "good faith" obligations to 
achieve the goals of the Consent Judgment by hiring and 
promoting only class members in preference to better qualified 
non-class members. There is nothing in the Judgment that 
suggests that the parties intended that such goals were to be 
achieved by requiring the Secretary to engage in racial 
discrimination against innocent non-class members to the benefit 
of class members who have never been the victim of discrimin­
ation by defendants. Indeed, the special master's reliance on 
the "good faith" provision as the basis for imposing racial 
quotas is indistinguishable from the Sixth Circuit's reliance in 
Stotts on the city's obligation under the decree "to use its 
best efforts to increase the proportion of blacks on the force." 
(104 S.Ct. at 2585). As Stotts makes clear, such a general 
provision simply cannot support creation of obligations of the 
type imposed by the special master in this case.

Finally, contrary to the view of the special master (R. 214), 
the "good faith" obligation is not rendered a "nullity" in the 
absence of the special master's interpretation. Defendants take 
their obligations under the Consent Judgment very seriously. To

16 (FOOTNOTE CONTINUED)
operative Section of the Consent Judgment is not Section VII 
but Section X. Section X requires only that Eglin "make every 
good faith effort to fill said [supervisory] positions in 
proportion to the percentage of blacks in the occupational 
category wherein the vacancy arises." (Section X, 3̂; R. 39).

- 26 -



avoid the unfairness to non-class members of the type created by 
the special master's interpretation, the Secretary has focused 
its efforts in the area of recruitment in an attempt to increase 
the availability of class members for the positions covered by 
the Judgment. More specifically, these efforts have included 
attempts to encourage class members to apply as well as 
informing selecting officials of the availability of blacks at 
Eglin so that such individuals may be considered by the 
selecting officials. Indeed, as the record in this case 
illustrates, the selecting officials would have selected com­
plainant for the position filled by Mr. Kelly if the complainant 
had merely been as well qualified. (Vol. 6 at 155). The 
"goals" of the Consent Judgment thus serve as counterweights to 
potential discrimination by precluding discrimination against 
class members where all other factors are equal. These efforts 
fully satisfy the good faith obligations imposed by the Judgment.

The Secretary does not dispute that the special master's 
interpretation affords members of the plaintiff class greater 
rights to employment at Eglin Air Force Base. However, as this 
Court stressed in Turner v. Orr, 722 F.2d 661, 565 (11th Cir. 
1984), a consent judgment must be interpreted by reference to 
the views of both parties--not simply objectives of the 
plaintiffs. Similarly immaterial is the relief that could have 
been ordered had this case gone to judgment and plaintiffs had, 
in fact, established a violation of Title VII. A consent decree 
is not to be construed by reference to what the plaintiff could 
have achieved by litigating the case to judgment. Stotts, 104 
S.Ct. at 2585. As in Stotts, there is no finding of

27 -



discrimination in this case. Indeed, the Consent Judgment 
expressly recites that "this Judgment is not premised upon a 
judicial finding of systemic discrimination against plaintiffs 
or the class they represent." (R. 17).

P-lainly, the Consent Judgment must be regarded as a 
compromise between the parties reached to settle this litig­
ation. For example, during the December 16, 1980, fairness 
hearing on the Consent Judgment, Dr. Rosenblum, the chief 
economist of the Equal Employment Opportunity Commission, 
testified that "the goals . . . fairly and reasonably reflect
the efforts of the parties to resolve the matter in such a way 
that it is equitable and reasonable . . . ." (Dec. 16, 1980,
Tr. at 48). Counsel joined in this conclusion. See î . at 62- 
64. Viewed as such, the special master's finding that defen­
dants' violated their good faith obligations simply cannot stand.
III. THE SPECIAL MASTER'S CONSTRUCTION IS DIRECTLY 

CONTRARY TO SECTION 706(G) OF TITLE VII______
A. Preliminary Statement
The foregoing discussion makes eminently clear that the 

special master erred in construing the Consent Judgment as 
requiring the Secretary to discriminate against non-class member 
applicants by hiring or promoting class members simply because 
of their membership in the class. However, separate and apart 
from the special master's failure to give effect to the parties' 
intent, the special master's interpretation of the Consent 
Judgment also flatly conflicts with Section 706(g) of Title VII, 
42 U.S.C. 2000e-5(g). As detailed below. Section 706(g) bars 
any court from awarding such relief, over a party's objections,

- 28



in the absence of a finding that the complainant suffered actual 
discrimination. The special master simply ignored these 
principles in interpreting the Consent Judgment in this case.

B. Section 705(g) Prohibits An Award Of
Back Pay And A Promotion In The Absence 
Of A Finding of Discrimination_________

Defendants' argument that the special master erred in his
construction of the "good faith" obligations of the Consent
Judgment is confirmed by the limitations placed on the power of
the courts by Section 705(g) of Title VII. The last sentence of
Section 705(g) provides in pertinent part:

No order of the court shall require the * * * 
hiring, reinstatement, or promotion of an 
individual as an employee, or the payment to him 
of any back pay, if such individual was * * * 
refused employment or advancement *  *  * for any 
reason other than discrimination on account of 
race, color, religion, sex, or national origin *
•k -k  -k

On the facts of this case, there is no dispute that the special 
master's construction of the Consent Judgment requires the award 
of back pay and the promotion of class members over better 
qualified non-class members without any showing that such class 
members had been denied a position due to racial 
discrimination. This construction is simply unsupportable.

The Supreme Court's decision in Stotts is conclusive on the 
scope of the district court's power to award such relief under 
Title VII. As noted, in that case, the district court modified 
a class action consent decree to enjoin the City of Memphis from 
applying a seniority system to lay off blacks in the Fire 
Department. After disposing of the contention that this 
modification was a proper interpretion of the consent decree.

29 -



the Court then held that the injunction could not be justified 
on the Sixth Circuit's alternative holding that the district 
court had inherent authority to modify the decree which, if 
carried out, would undermine the affirmative goals of the decree 
and impose hardship on the plaintiffs. (104 S.Ct. at 2587). In 
so holding, the Court started from the premise that "a district 
court cannot enter a disputed modification of a consent decree 
in Title VII litigation if the resulting order is inconsistent 
with that statute." (104 S.Ct. at 2587 n.9). The issue thus 
presented was whether the injunction imposed by the district 
court under the consent decree was in conflict with any 
provision of Title VII.

The Court found two such conflicts in Stotts. First, the 
Court found that the injunction setting aside the city's 
seniority system was in conflict with Section 703(h), 42 U.S.C. 
2000e-2(h), which provided that discrimination on the basis of a 
bona fide seniority system was not violative of the Act. The 
Court agreed that "actual victims of the discriminatory practice 
. . . may be awarded competitive seniority" under Section
703(h). (104 S.Ct. at 2588). Relying on Teamsters v. United
States, 431 U.S. 324 (1977), the Court stressed, however, that 
"mere membership in the disadvantaged class is insufficient to 
warrant a seniority award; each individual must prove that the 
discriminatory practice had an impact on him. " (I_d. ) .
Noting that "there was no finding that any of the blacks 
protected from layoff had been a victimi of discrimination," the 
Court held that the district court had no authority on these 
facts to disregard the city's seniority system. (^. ) . As

- 30 -



the Court summarized in a footnote, "Title VII precludes a 
district court from displacing a non-minority employee with 
seniority . . . absent either a finding that the seniority
system was adopted with discriminatory intent or a determination 
that such a remedy was necessary to make whole a proven victim 
of discrimination." (104 S.Ct. at 2587 n.9).

As the second source of conflict, the Court looked to 
Section 705(g), stating that "[o]ur ruling in Teamsters that a 
court can award competitive seniority only when the beneficiary 
of the award has actually been a victim of illegal discrimin­
ation is consistent with the policy behind § 706(g) of Title 
VII, which affects the remedies available in Title VII 
litigation." (104 S.Ct. at 2588-89). Relying heavily on the 
legislative history of Section 705(g), the Court held that the 
policy of Section 706(g) was "to provide make-whole relief only 
to those who have been actual victims of illegal discrimin­
ation ." (104 S.Ct. at 2589)(emphasis supplied). This legis­
lative history, the Court found, "made clear that a court was 
not authorized to give preferential treatment to non-victims." 
(^. ) . The Court thus concluded that "[t]he Court of 
Appeals holding that the District Court's order was permissible 
as a valid Title VII remedial order ignores not only our ruling 
in Teamsters but the policy behind § 705(g) as well." (104 
S.Ct. at 2590).

C. The Special Master's Construction Ignores The 
Rights Of Innocent Third-Parties In Violation 
Of Section 706(g) and Stotts_________________

Stotts makes clear that a district court has no power to 
impose on a party, over that party's objections, any order

- 31



awarding back pay and requiring the promotion of class members 
without any showing that the particular class member had been a 
victim of racial discrimination. Title VII thus "preclude[d]" 
the district court in this case from awarding the type of relief 
awarded by the special master in the absence of "a determination 
that such a remedy was necessary to make whole a proven victim 
of discrimination." Stotts, 104 S.Ct. at 2587 n.9. In this 
case, there has never been any finding of actual discrimination, 
either in the Consent Judgment or in the specific case brought 
by complainant. In light of Section 705(g), there is simply no 
justification for the special master's construction of the good 
faith provisions as requiring the Secretary to accord 
preferential treatment, under the hiring goals, to non-victims 
of racial discrimination.

As discussed above, nothing in the Consent Judgment remotely 
indicates that the defendants ever agreed to provide such racial 
preferences as the means of meeting the hiring goals. While the 
Consent Judgment creates a $2 million fund for the liquidation 
of damages claims of class members and requires the Secretary to 
hire precisely 100 class members (Judgment §§V, VI; R. 22-29), 
this relief is expressly limited to claims pre-dating the 
January 12, 1981, entry of the Consent Judgment. The Consent 
Judgment thus provides that "[ijn order to be considered for a 
monetary award, and other relief pursuant to this Judgment the 
claimant must demonstrate," inter alia, that he was a qualified 
class menaber "who had unsuccessfully applied for employment at 
Eglin AFB from March 24, 1972, to date," and that his 
application "was current or active on January 9, 1975, or 
thereafter." (Judgment §IV, TTl; R. 20-21).

32



Similarly, the Consent Judgment accords relief for otherwise 
qualified class members "who would have applied for employment 
at Eglin AFB between March 24, 1972, and the date of entry and 
approval of this Judgment." (Judgment §IV, V 2 ; R. 21). Each 
member of this group of class members is required to "bear the 
difficult burden of establishing that he or she had a perception 
that applying for employment with Eglin would have been a 
futile act on account of his or her race." (Judgment, §IV, H2;
R. 21). Section IV further provides that "[i]t is the further 
intention of the parties that this determination [that applying 
would have been futile] shall be guided by the language of the 
Supreme Court in Teamsters v. United States, 431 U.S. 324 
(1978), and related cases." (M.). The temporal and other 
limitations on relief listed above, coupled with the parties' 
reliance on Teamsters as the guide for relief, strongly suggest 
that the parties did not contemplate the displacement of 
innocent third-parties in future hiring and promotion decisions.

These specific provisions relating to pre-Judgment claims 
contrast sharply with the general provisions of Section IX of 
the Consent Judgment relating to remedies for post-Judgment 
violations of the Consent Judgment. Section IX states only that 
the special master is "authorized to order all appropriate 
relief" where a violation of the Consent Judgment has been 
proven. (Judgment §9, 1T4; R. 35). In contrast to the very 
specific provisions relating to pre-Judgment claims, there is no 
indication whatsoever that the phrase "appropriate relief" was 
intended to include back pay and promotions or other types of

33 -



relief barred by Section 705(g) in the absence of a finding of 
discrimination. Such relief was left to be governed by the 
general provision that the Consent Judgment was to be 
interpreted in accordance with Title VII (Judgment §11, H9),
which, as noted, precludes a court from awarding back pay and a 
promotion in the absence of a finding of discrimination.

These considerations are even more compelling in the context 
of a consent judgment entered without any finding of discrimin­
ation. Given this absence of any finding of discrimination and 
the parties' express limitation of the damages and other 
specific relief to pre-Judgment claims, it is simply incredible 
to conclude that the parties intended to create a racial 
preference to the direct disadvantage of non-class members by 
authorizing an award of back pay and a promotion to non-victims 
for any and all future violations of the Consent Judgment. This 
is particularly true in the context of a complex Consent 
Judgment, a violation of which could be based, as this case 
illustrates, on a variety of events other than discrimination.
To construe the Consent Judgment as permitting the special 
master to order preferential treatment otherwise barred by 
Section 706(g) for every technical, non-discriminatory violation 
of the Consent Judgment is not only absurd but would trivialize 
the legitimate interests of innocent third-parties.

Such disregard for the rights of innocent third-parties is 
directly contrary to Title VII. As noted in Los Angeles 
Department of Water & Power v. Manhart, 435 U.S. 702, 709 
(1978), "the basic policy of [Title VII] requires that [courts]

34 -



focus on fairness to individuals rather than fairness to 
classes." It is thus well established that such preferential 
rights over innocent third-parties must be supported by record 
evidence demonstrating that the rights of such third-parties 
were carefully considered by the district court. As the Court 
stated in Stotts, "[e]ven when an individual shows that the 
discriminatory practice has had an impact on him, he is not 
automatically entitled to have a non-minority employee laid off 
to make room for him." (104 S.Ct. at 2588; emphasis 
supplied). Rather, as Justice O'Connor observed, "a district 
court may award preferential treatment only after carefully 
balancing the competing interests of discriminatees, innocent 
employees, and the employer." Stotts, 104 S.Ct. at 2593 
(O'Connor, J., concurring). See also Ford Motor Co. v. EEOC,
458 U.S. 219, 239-40 (1982); Teamsters, 431 U.S. at 371-376. 
Thus, as noted by the Fifth Circuit, some courts have 
"insist[ed] that the district court consider the interest of 
employees who are not members of the affected class in assessing 
the propriety of proposed settlements in Title VII suits." 
Stallworth v. Monsanto Co., 558 F.2d 257, 259 (5th Cir. 1977), 
citing Manduj ano v. Basic Vegetable Products, Inc., 541 F.2d 
832, 837 (9th Cir. 1976).

The record preceding the approval of the Consent Judgment is 
barren of any evidence remotely suggesting that the district 
court ever considered the interests of such innocent third- 
parties or made any attempt to balance the competing interests 
created by the availability of such preferential treatment. For 
example, the district court held four days of fairness hearings

- 35 -



17prior to approving the Consent Judgment in 1981. In none of
these hearings is there the slightest indication that either the
parties or the district court ever contemplated the type of

18relief awarded by the special master in this case. There is 
no indication that innocent third parties were ever apprised 
that the Consent Judgment provided such relief. Given this 
record, the special master's construction of the Consent 
Judgment as requiring the Secretary to accord preferential 
treatment to every non-victim class member cannot be permitted 
to stand.
IV. THE SPECIAL MASTER'S CHOICE OF REMEDIES IS BARRED 

BY SECTION 706(G) AND UNSUPPORTED BY ANY FINDING 
OF "BUT FOR" CAUSATION___________________________
As detailed above, it is clear that a violation of the 

Consent Judgment cannot be predicated on a mere failure to 
promote complainant for non-discriminatory reasons. Accord­
ingly, the only remaining basis upon which the relief awarded 
below can rest is the special master's alternative holding that 
the Secretary violated the Consent Judgment by failing to advise 
the selecting officers of the applicability of the Consent 
Judgment's goals. Again, on the unique facts presented in this 
case, the Secretary does not challenge on this appeal the

17 The transcripts of the hearings are set forth in the 
Supplemental Record transmitted to this Court after the case 
had been docketed and the briefing schedule established.
18 There is nothing in the district court's January 12,
1981, Findings of Fact and Conclusions of Law approving the 
Consent Judgment that remotely indicates that Judge Arnow 
conducted the requisite balancing of interests. This Order is 
reproduced in the appendix accompanying this brief.

- 36 -



special master's holding that the defendants should have advised 
the selecting officers of the applicability of the Consent 
Judgment when the position became permanent. However, as 
explained below, this finding of violation cannot serve as a 
basis for the relief awarded.

A. Section 705(g) Bars The Relief Awarded
In The Absence Of A Finding Of Discrimination

Assuming arguendo that the special master was correct in 
holding that defendants violated the Consent Judgment in failing 
to advise the selecting officers of the applicability of the 
Consent Judgment goals to the Kelly position, the special master 
nonetheless erred in awarding back pay and a promotion as the 
remedy for this violation. For all the reasons discussed above. 
Section 705(g) bars such relief in the absence of a finding that 
complainant had been discriminated against on the basis of his 
race by defendants.

Plainly, a finding that the defendants violated their good 
faith obligations by failing to advise the selecting officers of 
the Consent Judgment's goals is not equivalent to a finding of 
discrimination--especially on the facts of this case where the 
defendants reasonably believed that the temporary position was 
not covered by the Consent Judgment. Indeed, as noted, the 
special master made no finding that such conduct constituted 
"discrimination" otherwise violative of Title VII. A s the above 
discussion of Section 705(g) and Stotts makes clear, in the 
absence of a such a finding of discrimination, the special 
master simply had no authority to award back pay and a 
promotion. On this ground alone, the remedy awarded in this 
case cannot stand.

- 37



B. An Award Of Back Pay And Promotion Is Barred 
In The Absence Of A Showing Of Causation____

Second, apart from Section 705(g)'s requirement of a finding 
of discrimination. Section 705(g) also precludes the type of 
relief awarded here in the absence of any finding that "but for" 
the violation, complainant would have received the promotion in 
lieu of Mr. Kelly. No such finding was made by the special 
master. Indeed, on the uncontradicted facts of record, it is 
clear that the failure to advise the selecting officers of the 
applicability of the Consent Judgment goals made absolutely no 
difference in the selection decision. Accordingly, the judgment 
must be reversed on this additional ground.

As an initial matter, it is clear that the scope of relief 
available for a violation of the Consent Judgment is defined by 
the scope of relief normally available upon proof of a violation 
of Title VII itself. As noted, the Consent Judgment expressly 
provides that "[i]n interpreting the provisions of this Judgment 
which may become disputed among the parties, the law as set 
forth by Title VII of the Civil Rights Act of 1954 as construed 
by the courts, shall apply." (Judgment, §11, 1̂9; R. 20). 
Moreover, Stotts makes clear that even in the absence of such a 
provision, a Consent Judgment entered under Title VII may not be 
interpreted in conflict with Title VII. Stotts, 104 S.Ct. at 
2587 n.9. Accordingly, if a "but for" causation showing would 
be required under Title VII, such a showing is also required 
under the Consent Judgment.

- 38



There can be no doubt that such a "but for" showing is 
required under Title VII. Stated simply, a Title VII plaintiff 
is entitled only to what he would have received in the absence 
of discrimination. Albemarle Paper Co. v. Moody, 422 U.S.
405, 418-19 (1975). Thus, before a court may award retroactive 
relief, such as awarded in this case, the court must make a "but 
for" determination, i.e., that but for the alleged violation the 
plaintiff would have been entitled to the position. See, e.g., 
Mt. Healthy City School District Bd. of Education v. Doyle,
429 U.S. 274, 287 (1977); Harbison v. Goldschmidt, 593 F.2d.
115, 117 (10th Cir. 1982) ("We must conclude that the statute 
requires a 'but for' finding . . . ."); Richerson v. Jones, 551
F.2d 918, 923 (3d Cir. 1977) ("[T]he district court in this case 
could order retroactive promotion . . . only if it found that
Richerson would have attained that position but for the 
defendant's unlawful employment practices."); Day v. Mathews,
530 F.2d 1083, 1085 (D.C. Cir. 1975) (holding that back pay and 
promotion "are available only where the employee would have 
received the promotion had he not been the victim of 
discrimination"); Johnson v. Goodyear Tire & Rubber Co., 491 
F.2d 1354, 1374-75 (5th Cir. 1974); Robinson v. Lori Hard 
Corp., 444 F.2d 791, 802 (4th Cir.), pet. for cert. dismissed, 
404 U.S. 1005 (1971).

In this case, the special master made no finding whatsoever 
that but for the failure to advise the selecting officers of the 
applicability of the Consent Judgment goals complainant would 
have received the position filled by Mr. Kelly. On the 
contrary, the evidence is uniform and uncontradicted that the 
selecting panel would have chosen Mr. Kelly for the position

- 39 -



even had they been informed of the Consent Judgment's 
applicability. As one member of the panel testified:

Q. If it had been a Consent Judgment job, how would 
that have changed the way you went about making a decision? * * * *

A. If it had been a Consent Judgment, I'm sure we 
would have given special consideration, but I 
don't think we could have given any more than we 
did. I think the selection was still -- would 
have been the same. (Vol. 5 at 188-89).

As noted, the basic reason for this conclusion was simply 
that "Mr. Kelly was far and above the most qualified for the 
job." (Vol. 6 at 182). See also Vol. 6 at 140, 206-208. 
Complainant's qualifications were not "even comparable" to those 
possessed by Mr. Kelly. (Vol. 5 at 143). Since the selecting 
officers, while giving extra consideration to class member on 
positions covered by the Consent Judgment, would not select a 
class member over a better qualified non-class member (Vol. 6 at 
155, 188-89), it is plain that complainant would not have 
received the promotion even if the selecting officers had been 
advised of the Consent Judgment's applicability. Complainant 
is, therefore, not entitled to the relief awarded by the special 
master.
V. THE CONSENT JUDGMENT SHOULD BE INTERPRETED SO AS TO

AVOID THE SERIOUS CONSTITUTIONAL ISSUE CREATED BY THE
SPECIAL MASTER'S CONSTRUCTION________________________
The special master's construction of the consent judgment, 

as implemented by the relief awarded in this case, raises the 
issue of the constitutionality of a race conscious order under 
the equal protection guaranties of the Due Process Clause of the 
Fifth Amendment. Obviously, the special master's order 
classifies on the basis of race by requiring the Secretary to

40



accord preferences to one group of people (class members) solely 
on the basis of their race. It is also clear that this 
construction directly disadvantages other persons (non-class 
members) because of their race.

The constitutional issue, of course, need not be addressed 
by this Court if the Court holds that the special master and the 
district court erred in construing the Consent Judgment as 
requiring the racial classifications for purposes of complying 
with the good faith provisions of the Judgment. If, however, 
this Court should hold that the special master's construction 
was correct under the Judgment, the Court must then reach the 
issue of whether entry and enforcement of such a consent decree 
violates the equal protection rights of otherwise eligible 
persons, such as Mr. Kelly, who are denied a job or a promotion 
due to the preference accorded class members. As set forth 
below, if the Court reaches this issue, it should hold that the 
Consent Judgment, as construed by the special master, 
unconstitutionally deprives non-class member applicants equal 
protection of the laws.

Setting aside the question of whether Congress could provide
19for relief of the type ordered in this case, there is not a 

shred of evidence that Congress, in enacting Title VII, intended 
to authorize a district court to require a federal governmental 
entity to accord racial preferences to non-victims of 
discrimination in making hiring and promotion decisions. The

19 Cf. Full!love V. Klutznick, 448 U.S. 448 (1980)

- 41 -



issue in this case thus does not involve the broad remedial 
powers of Congress or the policy choices of a legislative or ad­
ministrative body. Rather, the constitutional issue focuses on 
the "limited remedial powers of a federal court." Fullilove v. 
Klutznick, 448 U.S. 448, 483 (1980) (opinion of Burger, C.J.).

The opinions of the Chief Justice and Mr. Justice Powell in 
Fullilove are most instructive. In Fullilove, the Supreme 
Court upheld, in a 3-3-2-1 decision, the provisions of the 
Public Works Employment Act of 1977, 42 U.S.C. 5701 ^  seq., 
requiring that at least 10% of the federal grants for local 
public works projects be used to obtain services from minority 
groups. In an opinion joined by Justice Powell and Justice 
White, Chief Justice Burger stressed that "we are not dealing 
with a remedial decree of a court but with the legislative 
authority of Congress" (448 U.S. at 480), noting that unlike 
"the limited remedial powers of a federal court," the remedial 
powers of Congress were the most "comprehensive." (448 U.S. at 
483). Observing that the Act "may press the outer limits of 
congressional authority," the Chief Justice cautioned that 
"[a]ny preference based on racial or ethic criteria must 
necessarily receive a most searching examination to make sure 
that it does not conflict with constitutional guarantees."
(448 U.S. at 490, 491). Holding that these tests were 
satisfied, the Chief Justice found the Act constitutional.

These considerations were even more strongly stressed by 
the concurring opinion of Mr. Justice Powell. Stressing that 
"[rjacial classifications must be assessed under the most 
stringent level of review because immuntable characteristics.

- 42 -



which bear no relation to individual merit or need, are 
irrelevant to almost every governmental decision," Justice 
Powell found the Act sustainable because it "serves the 
compelling governmental interest in eradicating the continuing 
effects of past discrimination identified by Congress." (448 
U.S. at 496). This finding of discrimination. Justice Powell 
explained, was a necessary predicate for the Act "[b]ecause the 
distinction between permissible remedial action and 
impermissible racial preference rests on the existence of a 
constitutional or statutory violation." (448 U.S. at 498). As 
Justice Powell further noted, "this Court has never approved 
race-conscious remedies absent judicial, administrative, or 
legislative findings of constitutional or statutory 
violations." (448 U.S. at 497).

Justice Stewart, joined by Justice Rehnquist, disdented in 
Fullilove on grounds that "any official action that treats a 
person differently on account of his race or ethnic origin is 
suspect and presumptively invalid." (448 U.S. at 523).
Justice Stevens also dissented, arguing that the broad relief 
granted by the Act was not "a legitimate method of providing 
class-wide relief." (448 U.S. at 539). This relief, Justice 
Stevens noted, accorded a statutory preference to firms as to 
which there was "no reason to believe . . . had been wrongfully
excluded from the market for public contracts." (448 U.S. at 
541). Such a preference. Justice Stevens concluded, "cannot be 
justified as a remedial measure." ( I_d. ) . Only three 
members of the Court (Justices Marshall, Brennan and Blackmun) 
would have sustained the Act on broad grounds. See 448 U.S. at 
517 (opinion of Marshall, J.).

43



As is apparent, the opinions of Chief Justice Burger and 
Mr. Justice Powell represent the "swing votes" in Fullilove. 
Three other members of the Court would have invalidated the 
statute for failure to meet stricter tests of
constitutionality. Thus, the analyses of Chief Justice Burger 
and Justice Powell represent the minimum standard that Congress 
must meet in enacting a statute providing for racial preferences 
as a remedial measure. Under this approach, the race 
preferences at issue in Fullilove were sustained only because of 
a legislative finding of past discrimination and only because 
the means chosen were "narrowly tailored" to the legislative 
goals and were supported by Congressional findings which had 
survived the "most searching examination." This approach to 
legislative remedies was recently adopted by this Circuit. See 
South Florida Chapter Of The Associated General Contractors of 
America, Inc, v. Metropolitan Dade County, 723 F.2d 845, 852 
(11th Cir. 1984), cert, denied, 53 U.S.L.W. 3240 (U.S., Oct. 2, 
1984).

Plainly, racial preferences ordered by a federal court, with 
its more "limited remedial powers," can be sustained only under 
a test stricter than that applied to Congress in Fullilove.
Thus, federal courts may accord racial preferences only to 
actual victims of past discrimination and only "[w]hen 
effectuating a limited and properly tailored remedy to cure the 
effects of prior discrimination." Fullilove, 448 U.S. at 484 
(opinion of Burger, C.J.). This result is simply an application 
to the constitutional context of the more general principle that

44 -



"the remedial powers of the federal courts . . . could be
exercised only on the basis of a violation of the law and could 
extend no farther than required by the nature and the extent of 
that violation." General Building Contractors Ass'n v. 
Pennsylvania, 458 U.S. 375, 399 (1982) (holding, in the con­
text of an employment discrimination suit brought under 42 
U.S.C. 1981, that a minority hiring quota is "not the sort of 
remedy that may be imposed without regard to a finding of lia­
bility." (458 U.S. at 400). At the barest minimum, such prefer­
ences must be supported by specific findings of past discrimin­
ation, be narrowly tailored and survive the "most searching 
examination." (448 U.S. at 491) (opinion of Burger, C.J.).

These principles make clear that the special master's 
interpretation of the Consent Judgment violates the equal 
protection rights of innocent third-parties. Stated simply, as 
between non-victims and innocent third-parties, "it cannot be 
said that government has any greater interest in helping one 
individual than in refraining from harming another." Regents of 
the University of California v. Bakke, 438 U.S. 265, 308-309 
(1978) (opinion of Powell, J.). Accordingly, because government 
has no compelling interest in according such preferential 
treatment to non-victims at the expense of innocent third- 
parties, judicial imposition of the type of racially based quota 
imposed by the special master in this case is unconstit­
utional .20

20 The Secretary acknowledges that the Fifth Circuit has
(CONTINUED)

- 45 -



The recent, pre-Stotts, decision of the Fifth Circuit in 
Williams v. City of New Orleans, 729 F.2d 1554 (5th Cir.
1984) (en banc), is illustrative of the constitutional problems 
raised by racial quotas. There, in a badly split decision, the 
Fifth Circuit, sitting en banc, affirmed a district court's de­
cision refusing to approve a consent decree requiring the pro­
motion of black and white police officers in the New Orleans 
Police Department on a one-to-one ratio until blacks constit­
uted 50% of all ranks. Three members of the court affirmed on 
the basis that while such a quota would have been proper under 
Section 706(g), the district court had not abused its dis­
cretion in denying approval. See 729 F.2d at 1555 (opinion of 
Williams, J.). These three members did not reach the 
propriety of the proposed decree under the Constitution. See

20 (FOOTNOTE CONTINUED)
countenanced employment quotas and other race-conscious 
remedies in employment discrimination cases. See, e.g.. Morrow 
V. Crisler, 491 F.2d 1053, 1055 (5th Cir.), cert, denied, 419 U.S. 895 (1974). United States v. City of Miami, 614 F.2d 
1322 (5th Cir. 1981), vacated, 564 F.2d 435 (5th Cir. 1981) (en 
banc). In United States v. City of Alexandria, 514 F.2d 1358 
(5th Cir. 1980), a panel of the Fifth Circuit upheld the 
constitutionality of a consent decree containing race-conscious 
hiring and promotion quotas. However, in City of Alexandria, 
no party had challenged the constitutionality of the racial 
quotas in either the district court or the court of appeals. 
(514 F.2d 1353). See also City of Alexandria, 514 F.2d at 
1372 (Gee, J. concurring specially). Accordingly, City of 
Alexandria should not be considered binding on this Court under 
the rule announced in Bonner v. City of Prichard, 551 F.2d 1205 (11th Cir. 1981) (en banc).
21 The views of these members of the Fifth Circuit on the 
Section 705(g) question as well as the prior holdings of the 
Fifth Circuit in City of Alexandria, 514 F.2d at 1361, and in 
other cases on this issue, must be regarded as overruled by Stotts.

- 45 -



729 F.2d at 1572. Four members of the court affirmed on the 
basis that approval of the decree would have either violated 
the Constitution or would have been violative of Section 
705(g). See 729 F.2d at 1565 (opinion of Gee, J.); id., 
(opinion of Higginbotham, J.). A six member minority of the 
court dissented. See 729 F.2d at 1570 (opinion of Wisdom, J.).

The Secretary respectfully submits that the concurring 
opinions of Judge Higginbotham and Judge Gee are the better 
reasoned. Judge Gee, joined by Judge Garwood, rejects Judge 
Williams' "general approbation of racial quotas," stating that 
"I do not believe that the Constitution authorizes the imposi­
tion of a decree that requires a unit of state government to 
discriminate on the basis of race without reference to whether 
those favored have ever been the victims of discrimination or 
those injured have either practiced or benefited from it."
(729 F.2d at 1555). Judge Gee reasons that "[s]uch quotas are 
desperate measures, inherently invidious as calculated denials 
of the rights of one citizen in order to ehnance those of 
another -- both done on the frank ground of race."
(Id.). Such quotas can be justified, if ever. Judge Gee 
concluded, "only . . . as a last resort, when it is clear that
nothing else will suffice." (Id.).

Similarly persuasive is Judge Higginbotham's concurring 
opinion. Unlike Judge Gee, Judge Higginbotham, joined by Judge 
Garwood and Judge Jolly, did not reach the issue of whether 
racial quotas "can constitutionally ever include non­
victims." (729 F.2d at 1568). Rather, relying on Chief 
Justice Burger's and Justice Powell's opinions in Fullilove,

- 4'



Judge Higginbotham started from the premdse that "'a most 
searching examination' is the minimum standard of scrutiny for 
a remedial plan that forthrightly employs race as an employment 
criterion." (729 F.2d at 1558; emphasis in original; citations 
omitted). This test, Judge Higginbotham opined, was not satis­
fied by the proposed consent decree at issue in that case 
because "it regards all members of the black race as a single 
class, rather than recognizing that the group is composed of 
individuals, some of whom have suffered the invidious effects 
of past discrimination and some of whom have not." (729 F.2d 
at 1559).

What Judge Higginbotham found objectionable about the 
proposed quota rejected by the district court in Williams was 
that the "quota made no effort to correlate prior victim status 
to future advantage; to be black ipso facto would be to benefit 
under this plan." (729 F.2d at 1559). The special master's 
construction of the Consent Judgment and award of relief here 
contains precisely the same flaw. Indeed, the preference 
accorded in this case is even more invidious than the one-to- 
one hiring ratio rejected in Williams in that here the 
Secretary is required to hire and promote no one but class 
members (assuming that a minimally qualified class member has 
applied) until the goals are reached, for the entire seven year 
life of the Judgment -- a Judgment which may be extended, at 
the option of plaintiffs, for an additional three years. 
(Judgment §11, U5; R. 19).

In the absence of any finding of discrimination, this seven- 
to-ten year absolute hiring preference, and the consequent

48



disadvantage imposed on innocent non-class members, is totally 
unjustifiable. This Court should emphatically reject, as Judge 
Higginbotham rejected in Williams, the proposition that a quota 
advantaging non-victims "is the sine qua non of effective 
relief." (729 F.2d at 1568). Thus, even assuming that racial 
preferences for non-victims are ever constitutionally per­
missible, the special master's holding that all class members 
are entitled to a racial preference simply cannot survive the 
minimal standard of a "most searching examination."

In view of the substantial nature of constitutional problems 
presented by the special master's interpretation of the Consent 
Judgment, this Court should interpret the Consent Judgment to 
avoid the difficult constitutional question. Such an approach 
is particularly appropriate in this case where there is no clear 
indication that Congress intended that Title VI I be interpreted 
as permitting the racial preferences mandated by the special 
master interpretation of the Consent Judgment. Since a wholly 
reasonable construction of the Consent Judgment will avoid the 
constitutional issue, such a construction should be adopted 
here. See, e.g, United States v. Security Industrial Bank,
459 U.S. 70, 78 (1982); NLRB V. Catholic Bishop, 440 U.S. 490, 
507 (1979).

49 -



CONCLUSION
For all the foregoing reasons, the judgment of the district 

court should be reversed.

Respectfully submitted,

CHARD K. WILLARD
/ Acting Assistant Attorney General

W. THOMAS DILLARD
United States Attorney

ROBERT S. GREENSPAN
MARK W. PENNAK

Attorneys, Appellate Staff 
Civil Division, Room 3125 
Department of Justice 
Washington, D.C. 20530 
Telephone: (202) 633-4214

OCTOBER 1984

- 50 -



APPENDIX



IN T V .Z I'NITED STATES DISTRICT COURT KOR THE NOR'DiERN DISTRICT OF FLORIDA PENSACOLA DIVISION

WILLIAM C. TURNER, et al., 
Plaintiffs,

HANS M. MARX, Secretary of the Air Force, et al. .
Defendants

CIVIL ACTION NO. PCA 76-175

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
Upon the record before me in this case, including the case 

file, conferences with the parties, hearings held, and affidavits of
counsel and representatives of the parties, the Court hereby enters j(the following Findings of Fact and Conclusions of Law, approving the 
settlement of this class action according to the terms of the Consent 
Judgment on file in this case: '

FINDINGS OF FACT
1. This case was filed as a class action on November 10, 1976 

by the Ft. Walton NAACP, the Progressive Community Improvement Organlzatii 
and eighteen (13) Individual black employees and applicants for 
employment at the Eglin Air Force Base. The defendants are the Secretary 
of the United States Air Force and the Director of the United States 
Office of Perscmiel M.inagement.

2. By Orders of January 28, 1977, and November 14. 1978,
the Court certified the following class to be represented by the Plaintlf:

All Negroes who were employed as civilians by the Eglin Air Force Base on January 9, 1976, or at any time thereafter, all Negroes who could have filed administrative complaints of dl.scriminat Ion against Eglin Air Force Base on January 9.1976. or at any time thereafter, and all Negroes who may in the future apply for employment at the Eglin Air Force Base.
3. Discovery between the parties in this case was ccmnenced 

after the dace of filing and was concluded in 1980. The case was 
scheduled for fin.al pretrial at that time.

. .4 • The Court was presented with a proposed Consent Judgment,
s Igned by. tl-.e p.uLie:;. at a pretrial conference on September 16, 1980.
.Ac chat time, the Court srhedulod a preliminary hearing for September 

‘ - “ tu: 1223, 1980, Co'̂ eon:: i Her uiui’ier the cei:ns of die proposed settlement were 
sufficiently .ide'iu.ii o .a.s relief far die class and whether class notices

l U



of the proposed i-ecr. Icn'.ent shoulc be Issued.
3 At tl'.e pre lunl.-iarv htsring on SepLOT-ber 23, 19CU, the 

parties filed briefs n̂d affidavits discussing che requirements of 
Section 1.̂ 5 and 1.A6 of the !<anual for Complex Litigation, and 
describing the terms of the proposed Consent Judgment in relation to 
the factual <Jisccvery in the case. Giving particular attention to 
Che eight factors itemized in Section 1.46 cf the Manual, the Court 
was informed of the following facts:

a. 'Fhe proposed settlement was achieved at the conclusion of discovery immediately prior to the final pretrial conference.
b. Sufficient facts had been established during discovery upon which estimates of probable liability and the range of possible damages could be based.
c. The proponents could submit economic and other data to establish the reasonableness of the proposed settlement.
d. All of the parties were represented during the negotiation
e. All counsel concurred in urging the Court's consideration of the proposed Consent Judgment.
f. The proposed Consent Judgment addressed itself to relief for Cue entire class.
g. All costs and fees were to be paid by the defendants and approved by Che Court at a later date and such funds would not bo drawn from the settlement fund.
h. Although the amount of costs and fees do not affect class member participation in the secclenent, counsel Lor the plaintiffs estimated costs at $100,000 and fees in excess of $1,000,000. Neither the defendants nor:he Court has had an opportunity to evaluate the reason- ■bieness of the plaintiffs' estimates.
Ac ihe conclusion of this preliminary hearing, the Court was 

satisfied that rn'i ice lo the class • hould be given and a hearing held 
at which the parties would present evidence as to the settlement's 
fairness and a<iequacy. At chat hearing, class members would be given 
the opportunity to voice any objections which they may have. On Septembe 
29, 1930. .in Order was otvtored directing the parties to issue class 
notices ar.vl a he.iring wu.s scheduled for December 16, 1980, for the 
presentation of evidence .ind the hearing of objections from class members 
if any.

6. Hy Dcc«-;iibi'r io. 1980, counsel and representatives of 
the parties had filed affidavits with the Court describing the manner 
in which nocicfs of proposed soctlemcnt liad been given to the class.
With one exci’pi ion, d i < u.- s i'd in Pimling No. 7, below, the Court was 
informed that .ill nu.;d)ors of the cla.s:i for whom the parties had a name



and address had been reailed a suitmary of the setclomenc, approved
by Che Court, which described the steps which they were to cake In the
event that they desired to voice an objection to the settlement. In
addition, newspaper notices were given for a period of one month which
was reasonably calculated Co inform class members residing in Che
Northwest Florida, South' Alabama area. Finally, notices were posted
at Air Force bases and certain Office of Personnel Management offices
which were reasonably calculated to inform class members seeking
federal employment at Eglin,

7 On December 12, 1980, the Court was informed Chat a
file was discovered at Eglin containing the names and addresses of 378
people who had applied for employment at Eglin in Che past. The parties
had reason to believe that most of these applicants were black and
therefore class members. The Court directed chat Che defendants
should send the approved notices Co these class members as quickly ss
possible and the final hearing was scheduled for January 12, 1980, to
hear any objections which these class members may wish to raise with
the Court. All objections from class members ocher than this latter
group would be considered at Che December 16, 1980, hearing,

8. Ac Che hearing on December 16, 1980, the plaintiffs
filed extensive exhibits pertaining to racial hiring and employment
practices at Eglin for Che period 1972 to 1980. Testimony was taken
from the plaintiffs' labor mar'xec expert, Dr. Marc Rosenblum, and
affidavits were received which were prepared by Dr. Rosenblum and one
of Che defend.-mes' statistical experts, Dr. Janes E. Gibson. These
affidavits were discussed in detail at Che hearing, and they constitute

a large portion of the economic data upon which the Court evaluated
the fairness and adequacy of several significant terms of Che proposed
Consent Judgment. With respect to the estimates of liability and
range of possible damages, Che economic data reflected by the parties

experts indicates the following:
a. Plaintiffs' labor market analysis of Eglin's hiring and employment patterns indicated that Eglin should have had approximately 153 black employees on its payroll̂  in addition to chose whom it had employed in 1976, the year that Che suit was filed. The plaintiffs’ analysis of hiring indicates that Eglin should have hired 93 black employees in .idilition to I hose bl.ack employees that were aclu.illy liirod for Che period 1973-1977 . The defendants' .inalysis showed that Eglin was 88 black onployt'f̂ s below p.iricy the time that the suit was ftlec rile I'l* fi) 1 e , i !ic C o n s e n t  Judj^iiicnt' s provision calling for K e l i n  ( o l ; i i o  100 c l . i s s  members tails between the defendar



K:v C3'.ir.acu i:.e p 1 ■> i r;; 1 f f u ’ hi^h eJCl:-L;t;j
t‘ p .1 r i c V .

b. Tl'.f dt* I t'noariL ' G  ̂c at. - i. c i‘in e3Cir.;ateC thec ii. t:he ba,iO had hired blael' tn.ployees at a rate exceas i;f Cheir calculateJ availability from 1973 to date, those black employees would have earned between $1.39 and SI. 9'. million. Therefore, the Consent Judgment's provision tor a $e million damage fund to be shared by those class membera who were harmed 'ov not being h.tred is .ilightly in e>;cess of the ran̂ e of possible damages for the class.
j. *phe defendants' expert estimated that If the blackworkforce at Eglin had received promotions proportional to their percentage of employment for the years 1973-1975, there would have been an additional .1 black ptomotions during that period. Therefore, the Consent judjmenc's provision calling for 25 black promotion.s is in excess of what perity would dictate. Slack promotions frcm_1976 forward were in proportion to the black wor’.tforce at sglin. The pa'-ment of $3,000 per black promocee reflccca Che p.artlcs' best estimate of what each of the 25 black promotions wculd have been wcrch in increased income 

for a three year period.
d. Tlie p.irties calculated the amount that a class  ̂rai'ir.ber would have earned at Eglin 'nad he been niced ii.Co the highest entry level job in 197A and received priide fvemocions in 1975 .and 1976. Subtracted from this ; aount was what that class member woulw h.ave ’arned elsewhere had he held a minimum-wage JoD. d.iCa ..liows Chat the class member would have iO_sC $s9,03/ by not receiving a job at Eglin. Therefore, cne Consent Judgment's provision estaolishing a tdO.OOO ceiling ,in any class member's share of the damage fund reasenaoly reflects f:he taiixiiTi'im a»riount: chat a class uieniber couxa -ecetve rnrou^h coarinuod, successful iicigaticn or 

hIs cl .i i.ms .
9. ether doci':r,cnr.iry evideiica submitted and described 

by the plaintiffs at the hearing on December 16, 1930, indicates that 
PC 3 trial ip,. p lai i'.t i I f.s would .itcenipC to prove that Eglin's past 
pr.acticcs of ra.ial di s cr i minac ion h.ad not been fully cured 'oy the time 
cf trial and : hat .idditional, .iffirmacive injunctive relief would have 
been w.irr.nitcd. P 1 a ii. t i f fs ' covmr.el estimated chat the proot of llaail’- 
or, this issue was quite strong. Tnerelore, the parties urged 
the Court that the creation of a Plaintiffs' Monitoring Ccmmiccee with 
ongoing monitoring and litigation powers, the establishment of a 
supplemental EEC complaint system before a Special Master, and special 
personnel pr.u'tice leviivs Co be c,.-nducted by the Office of Personnel 
Management were sufficient .s.s f"; ,uards for Che class Co preve.it possible 
future EEO problems betwein the p.srcles for Che life of Che Judgment.

10, Significantly, at the Court's hearing on December IS. 
'l9S0, which w.is well .sccended by class mom.bers, there were no objection 
from any cl.-;s ■run:.i,er lo the proposed sectletnenc.



Conclusions ol Law

Based upon tJie foregoing Findings of Face and Che record 
herein, the Court concludes that;

1. The negotiation of the proposed Consent Judgment was 
conducted with the benefit of a fully developed factual record and was 
the result of good faith, arms length bargaining. The class was 
adequately represented by the plaintiffs and their representatives 
during the negotiations and all claims of Che class known Co Che plain­
tiffs were included and bargained for during the negotiations.

2. The class was notified of the terms of the proposed 
Consent Judgment and their opportunity to object in full conformity 
to the requirements of the Manual for Complex Litigation, Rule 23 (e) 
of the Federal Rules of Civil Procedure, and the requirements of due 
process of law,

3. There was no objection from any class member lodged
with the Court, and over 1,500 notices were directly mailed to individual 
class members and publicity regarding the settlement was widespread 
in a manner reasonably calculated to inform class members for whom the 
parties had no name or address,

4. The parties have satisfied the Court that employment and 
promotion provisions of the Judgment, as well as the financial remuneraci 
to the class are within, and in some Instances exceed, that which
the Court would award in the event of continued, successful litigation. 
The Court is furtlier satisfied that the provisions of the Consent Judgmen 
permitting class members to opt out of their damage awards and litigate 
individual claims, allowing individual litigation of claims arising 
during the pendency of tills lawsuit before a Special Master, and providln 
for future monitoring ami enforcement during the life of the Judgment 
are fair, reasonable and adequate rem.edies for all members of the 
class .

5. In addition to the adequacy of the relief contained in 
the Judgment for harm which the plaintiffs have alleged, the Court 
concludes that the time and expense which further litigation would 
consume gives the Consent Judgment added value and warrants the Court 8 
approval of ic ac this

at• There were no ubjo.-Lions at the rtwci;i>ir 16, 1980 hearLng or/tha J.anuary 12,1981 hearing.
5



U5 O

6. For the reaJor.G sec foiCh above, chj Courc b.rreby 
grants I c s  approval of the Cor.sent judgr.ent \r. full s e t C t  of 

this case, according Co the terrr.s of Cbe Conaent Jud'.';inenc.

IT IS SO ORDERED, this day of January, 1931.
Pensacola, Florida

ôrT Wins con E . *Arnow Chief Judge, U.S.D.C.



STATUTORY ADDENDUM



DEPARTMENT OF THE AIR FORCE 
Headquarters US Air Force 
Washington DC 20330

--  •
AF REGULAFION 40-335 

12 November 1980

Civilian Personnel
THE MERIT PROMOTION PROGRAM

This regulation states the”basic policy and key principles of the Federal merit promotion policy , as implemented by the Air
Force Promotion Program. It applies to employees, supervisors, civilian personnel offices, and other management officials of
the Air Force.

This regulation is affected by the Privacy Act of 1974. The Promotion Career Brief requires a Privacy Act Statement.

Section A—General Provisions Paragraph Page
Policy Objectives.............................................................................................................................................1 2
Key Principles................................................................................................................................................2 2
Managers Have the Right To Select or Nonselect From Among a Group of Best

Qualified Promotion Candidates................................................................................................................ 3 3
Promotion Program .......................................................................................................................................4 3
Terms Explained.............................................................................................................................................5 3
General Coverage............................................................................................................................................ 6 3
Applicability To Positions Outside the Competitive Service.................................................................... 7 3

Section B—Restrictions and Priorities
Promotion P lans.............................................................................................................................................8 3
General Requirements.....................................................................................................................................9 4
.Applying Competitive Promotion Procedures ......................................................................................... 10 4
Considering Applicants From Outside the Air Force............................................................................. 11 4
Selection for Details..................................................................................................................................... 12 5
Promotions Not Subject To Competition.................................................................................................. 13 5
Repromotion of Previously Dovvmgraded Employees...............................................................................14 5
Special Categories......................................................................................................................................... 15 6
Areas of Consideration................................................................................................................................. 16 6

Section C—Identification. Evaluation, and Certification
Methods of Locating Candidates and Identifying Eligibles.....................................................................17 6
Promotion Evaluation Pattern ...................................................................................................................18 7
PPRS Selection Requests............................................................................................................................. 19 7
Determining Initial and Basic Eligibility....................................................................................................20 7
Wage System Positions................................................................................................................................. 21 7
Identifying Best-Qualified Candidates....................................................................................................... 22 7
Candidate Evaluation................................................................................................................................... 23 7
Appraisals and Evaluations of Potential....................................................................................................24 8
Promotion Registers..................................................................................................................................... 25 8
Certification for Promotion......................................................................................................................... 26 9
Optional Certification Procedure.............................................................'............................................... 27 9
Career Brief and Qualifications Profile......................................................................................................28 9
Selecting From the Certificate..................................................................................................................... 29 9

Section D—Miscellaneous Additional Requirements
Corrective Action Involving Nonselected Employees................................................................................ 30 9
Employee Audit of Data in Master Personnel File (MPF) ....................................................................31 10
Considering Employees in Military Service, Serving With International Organizations, or in

Leave Without Pay Status While in Receipt of Compensation.......................................................... 32 10
Temporary Promotions................................................................................................................................. 33 10

Supersedes AFR 40 335, 9 January 1976. (See signature page for summary of changes.)
No of Printed Pages; 27
OPR; MPKS (Mr, Peter J, Sharp)
Approved by; Mr. J. Craig Cumbey 
Writer-Editor; D. Britford
Distribution; F; X (Special non-.Air Force List Kept by Distribution Center)



AFR 40-335

Paragraph Page
Section E—Relationships With Employees and Organizations

Relationships With Labor Organizations.................................................................................................. 34 11
. Keeping Employees Informed...................................................................................................................35 11

Information About Specific Promotion Actions .....................................................................................36 11
Handling Employee Complaints and Resolving Dissatisfactions............................................................37 11

«
Section F—Records and Review

Promotion Records......................................................................................................................................38 11
Review of Promotion Programs.................................................................................................................39 11

Attachments Page
1. Manual or Non-PPRS Processing Policy...............................................................................................................  19
2. Air Force Appraisal System and Test Usage.........................................................................................................  25

Tables
1. The Merit Promotion Process..................................................................................................................................  12
2. Application of the Competitive Process.................................................................................................................  12
3. Upgrading a Position by Classification Action .....................................................................................................  14
4. Temporary Promotions............................................................................................................................................  15
5. Terminating Temporary Promotion and Placement of Employee........................................................................  17

Forms Implemented Paragraph Page
AF 971, Supervisor’s Record of Employee....................................................................................................... 12b 5
AF 2455, Supervisory Evaluation of Employee Potential for First-Level Supervisory Positions............ 3, atch 2 26
AF 2456, Supervisory Appraisal of Employee Current Performance—Middle and High Level Managerial

and Executive.............................................................................................................................................. Ig, atch 2 25
AF 2457, Supervisory Appraisal of Employee Current Performance—General Schedule

(Nonsupervisory).........................................................................................................................................2b, atch 2 26
‘AF 2458, Supervisory Appraisal of Employee Current Performance—Operations Analyst................... 2c, atch 2 26
• AF 2459, Supervisory Appraisal of Employee Current Performance—Supervisor (General

Schedule and W age)....................................................................................................................................Ig, atch 2 25
AF 2460, Supervisory Appraisal of Employee Current Performance—Clerical.......................................2e, atch 2 26
AF 2461, Supervisory Appraisal of Employee Current Performance—Secretarial................................... 2f, atch 2 26
AF 2462, Supervisory Appraisal of Employee Current Performance—A uditor.......................................2g, atch 2 26
AF 2463, Supervisory Appraisal of Employee Current Performance—Scientist and Engineer.............2h, atch 2 26
AF 2464, Supervisory Appraisal of Employee Current Performance—Wage Grade

(Nonsupervisory).......................................................................................................................................  2i, atch 2 26
AF 2465, Supervisory Appraisal of Employee Current Performance—Counter-Intelligence...............  2j, atch 2 26
SF 52, Request for Personnel Action............................................................................................................... 32a(2) 10
AF 1287, C iv i l i a n  P o t e n t i a l  A p p ra is a l
SECTION A-GENERAL PROVISIONS broadening their experiences and increasing the.r
1. Policy Objectives. Air Force promotion policy is based on qualifications.
strict conformance with merit principles specified in Federal e. Making sure employees are placed in positions for
Personnel Manual chapter 335. Identifying, qualifying, which they are best qualified.
evaluating, or selecting candidates must be made without f Making sure that the skills, qualifications,
regard to political, religious, labor organization affiliation achievements, and promotion potential of employees are 
or nonaffiliation, marital status, race, color, sex, national recognized and fairly considered in the staffing process, 
origin, nondisqualifying physical handicap, or age and must Encouraging employees to improve their performance
^  based solely on job-related criteria according to knowledges, skills, and abilities
legitimate position requirements. A sound promotion (KSAs)

» program, properly administered and fully supported by
. managers and employees at all levels, is essential to the Key Principles. The following principles form the basis of 
 ̂ staffing of an effective and highly motivated civilian work ^ ê Air Force Merit Promotion Program:

force. The program is directed toward: ... , • . •  ̂ . r • , •. . . . . ... a. All employees within a designated area of consideration
• a Accomplishing mission goals by staffing positions with the'minimum qualification standards, and any

Ig qua ity emp oyees. legal or regulatory requirements imposed by the Office of
b. Providing career opportunities for employees and Personnel Management (OPM) are considered eligible for 

making sure that all employees are fully informed of these promotion.
opportunities. Areas of consideration within which employees are

c. Making sure management is aware of high quality identified to compete for advancement are established and
employees who have the capacity to perform in more adjusted, as necessary, to provide management with an 
responsible assignments. adequate number of high quality employees from which to

d. Encouraging employees to be mobile in the interest of choose and to provide employees with adequate



AFR 40-335

opportunities for promotion.
c. Appropriate job-related criteria are applied with 

fairness in evaluating promotion candidates to differentiate 
among their qualifications and to identify those best 
qualified for advancement.

d. Selections must be made without discrimination for 
any nonmerit reason and without favoritism based on 
personal relationships or patronage.

e. Consideration may be given to candidates from outside 
the Air Force.

f. Consideration is given to input from employees, 
employee groups, and recognized labor organizations in 
developing and establishing merit promotion procedures.

g. Promotions and placements into positions with known 
promotion potential are usually competitive. Promotions 
without competition are authorized with due consideration 
to recognized merit principles.

h. Employees are kept informed about the promotion 
program, the provisions and procedures for promotion 
plans affecting them eligibility requirements, advancement 
opportunities, and how to take advantage of these 
opportunities.

3. Managers Have the Right To Select or Nonselect From 
Among a Group of Best Qualified Promotion Candidates.
Managers have the right and the responsibility to select from 
other appropriate sources, determining which is most likely 
to meet mission objectives, contribute new ideas and 
viewpoints, and meet the Air Force Affirmative Action 
Program objectives and goals.

4. Promotion Program. The promotion program is 
administered through promotion plans developed, 
established, and issued by HQ USAF, or installations with 
central civilian personnel offices (CCPs). They are based 
on guidelines published by 0PM in FPM chapter 335 and as 
implemented by this regulation. Each plan identifies the 
positions it covers and describes the procedures that apply 
in identifying, evaluating, and selecting employees for 
advancement to positions covered by the plan. Servicing 
CCPOs make these plans available to supervisors and 
employees serviced by them.

5. Terms Explained:
a. Promotion. The change of an employee to a position at 

a higher grade level when both the old and new positions are 
under the General Schedule or under the same wage-grade 
schedule, or to a position with a higher rate of basic pay 
when both the old and new positions are under the same type 
of upgraded wage schedule or in different pay-method 
categories.

b. Demotion. The change of an employee to a lower grade 
when both the old and the new positions are under the 
General Schedule or under the same wage-grade schedule, 
or to a position with a lower rate of basic pay when both the 
old and new positions are under the same type of ungraded 
wage schedule or in different pay-method categories.

c. Reassignment. The change of an employee from one 
position to another without promotion or demotion.

d. .Area of Consideration. The area designated by the local 
promotion plan in which the CCPO should reasonably 
expect to locate enough high-quality candidates, as 
determined by the CCPO, to fill vacancies in the positions

covered by the plan.
e. Qualified Candidates. Those who meet established 

qualification requirements for the position.
f. Selective Placement Factors. Knowledges, skills, 

abilities, or other requirements essential for satisfactory- 
performance that represent an addition to the basic 
standard for a position.

g. Ranking Factors. Validated evaluation criteria that go 
beyond the minimum requirements specified by the 
qualification standard used to permit meaningful ranking of 
eligible candidates. Factors to be considered include KSAs 
and personal characteristics that are the best predictors of 
future Job success.

h. Promotion Registers. Listings of qualified competitors 
in order of their relative standing as determined against 
applicable ranking criteria.

1. Pay System. Payment under such parameters as the 
General Schedule, the Federal Wage System, etc.

6. General Coverage. This regulation implementing FPM 
chapter 335 sets Air Force policies and regulatory 
requirements for the Merit Promotion Program for use 
under the Promotions and Placements Referral Subsystem 
(PPRS). PPRS is an automated referral capability available 
through the Personnel Data System-Civilian (PDS-C). The 
system documentation covering PPRS is specified in AFM 
30-130, volume 4. chapter 14. When the CCPOs start PPRS 
processing, the policies prescribed in this regulation will 
apply. They apply when positions in the competitive service 
are filled by promotion and when other actions are taken 
that may later lead to a promotion. (.Attachment I specifies 
manual or non-PPRS requirements.)

7. Applicability To Positions Outside the Competitive 
Service:

a. When all or a majority of the positions at an activity are 
in the Excepted Service and are under the same appointment 
authority, a merit promotion plan is established to provide a 
systematic and equitable method of selecting employees for 
promotion. .Major commands (.MAJCOMs) determine the 
type of merit promotion plan for excepted service positions 
under their Jurisdiction. The policies and procedures of this 
regulation should be followed to the extent practicable.

b. This regulation applies to positions under the Canal 
Zone Merit System, to the extent that they can be followed 
and are consistent with policies of the Canal Zone Civilian 
Personnel Policy Coordinating Board.

c. This regulation does not apply to positions in the Senior 
Executive Service (SES).

d. Current .Air Force employees in the Excepted Service 
having personal competitive status and serving in like 
positions as covered in FPM chapter 335 are entitled to 
consideration for competitive serv'ice positions according to 
this regulation. They call for the same consideration given 
regular competitive service employees in terms of career 
progression and merit selection principles.

SECTION B—RESTRICTIONS AND PRIORITIES
8. Promotion Plans. .All promotions within the .Air Force in 
the competitive service are made under a career 
management program established by the Department of 
Delense (DOD) or HQ US.AF or a promotion plan 
developed and operated according to FPM chapter 335.



AFR 40-335

implementing Air Force regulatory coverage and any 
special provisions approved by HQ USAF.

a. Each activity assigned a CCPO must develop and 
publish a promotion plan, or plans, for the positions 
serviced by that office that are not specifically excluded by 
coverage under a DOD or HQ USAF career management 
program or an occupational group plan developed by HQ 
USAF or a MAJCOM for positions under its jurisdiction. 
The plan developed by an activity includes local 
determinations and provisions established under the 
guidance in FPM chapter 335, Air Force regulatory 
coverage, and any supplementary instructions issued by the 
MAJCOM headquarters.

b. Career management programs established by HQ 
USAF for specific occupations and grade levels are 
developed in consonance with merit promotion principles 
and follow the guidelines of the Federal Merit Promotion 
Policy and the Air Force Merit Promotion Program. The 
procedures prescribed by the AFR 40-110, volume 1, and 
other volumes to be set up for specialized career programs 
apply to selecting employees for entry into and advancement 
to positions covered by these programs.

c. Employees in other DOD agencies who are entitled to 
referral and promotional consideration under an 
established DOD career program must be considered on the 
same basis as current Air Force employees covered by the 
program.

d. When justified, separate merit promotion plans may be 
established for occupational groups of employees either Air 
Force-wide or command-wide. Promotion plans for 
occupational groups Air Force-wide are developed jointly 
by the HQ USAF staff office(s) involved and the HQ USAF 
Directorate of Civilian Personnel and are published in an 
appropriate regulation. Plans for occupational groups on a 
command-wide basis are developed by the command staff 
officefs) concerned and the command Director of Civilian 
Personnel, acting for the commander. Special command­
wide promotion plans are sent to the servicing CCPO 
involved through civilian personnel channels. The plans 
must provide promotional opportunities regardless of 
geographic location. These may be in place of or in addition 
to the promotion plan of the servicing CCPO based on the 
decision of HQ USAF or command offices responsible for 
developing the special plan. Usually, separate merit 
promotion plans are established only for professional, 
scientific, technical, and management positions.

9. General Requirements:
a. Equal Opportunity for Advancement. The authority 

for personnel management functions is normally delegated 
to the lowest practicable level of supervision. However, 
when training, employment, or promotion patterns in an 
organization indicate that the principle of equal opportunity 
may not have been fully observed, the authority to select 
employees for promotion may be withdrawn by the 
commander and assigned to higher level supervisors 
pending the outcome of an appropriate inquiry.

b. Considering Employees Before Eligibility 
Requirements are Fully Mel. Employees who are within 3 
months of attaining full eligibility for promotion may be 
entered on a promotion register for future certification, if 
the method of locating candidates provides for the 
identification and inclusion of all employees who will 
become eligible within the specified period. These

candidates will not be certified for promotional 
consideration until they are fully qualified and meet all 
eligibility requirements unless certification is being made for 
a shortage category position for which there is an 
inadequate supply of fully qualified promotion eligibles. An 
employee who is referred in advance for a shortage category 
position must be fully qualified and eligible before the 
promotion is made. When fully qualified candidates are 
available, certification will not be delayed to enable the 
referral and consideration of candidates on the register who 
have not attained full eligibility.

c. Releasing Employees for Promotion. Employees must 
be released promptly for promotion according to AFR 
40-300.

10. Applying Competitive Promotion Procedures;
a. General. Table 2 lists personnel actions that are subject 

to competition and those that are not. It also shows whether 
the locally established area of consideration must be used in 
the competitive process or whether a special area may be 
used. Processing procedures are outlined in table I. The 
civilian personnel officer (CPO) is responsible for 
determining whether an action is, or should be, subject to 
competition and the extent of that competition. When a 
proposed action is not specifically covered by the table, 
basic merit principles should be applied in deciding whether 
to require competition. Even when the table exempts an 
action from the requirement for competition, the CPO may 
choose to apply the competitive process when use of 
competitive procedures would be consistent with merit 
principles and will be in the best interests of management.

b. Considering .Air Force Employees Certified From 
0PM  Registers. Air Force employees serving on 
nontemporary appointments who are certified from an 0PM 
register for a higher grade position or a position with known 
promotion potential may be either referred for 
consideration from that list of candidates or from the group 
of best qualified in-service candidates, depending on the 
sources used.

c. Formal Trainee or Apprentice Type Positions.
Employees encumbering formal trainee or apprentice type 
positions may be excluded, at CCPO determination, from 
competitive promotion consideration up to and including 
the target grade level of the program in which enrolled. For 
such denial, employees must have been made aware of this 
exclusion as part of the full range of conditions of 
employment at the time of enrollment into the formal 
trainee or apprentice position. Employees encumbering 
formal trainee or apprentice type positions may not be 
denied consideration into another career field in which the 
established career ladder offers a target grade level higher 
than that in which currently enrolled. Any exclusion under 
this paragraph must be specifically addressed in local merit 
promotion plans.

11. Considering Applicants From Outside the Air Force.
Even though there are Air Force promotion candidates 
available for competitive referral does not prevent 
considering applicants from outside the Air Force. To be 
considered for a position of higher grade or a position with 
known promotion potential, current nontemporary 
employees of other Federal agencies and all former federal 
employees eligible for noncompetitive appointment may be 
considered for a position of higher grade than currently or



AFR 40-335

last held. However, they must be evaluated, to the extent 
possible, against the same evaluation criteria and by the 
same methods specified in the Promotion Evaluation 
Pattern (PEP) for competing Air Force employees. Since 
such candidates may not have an Air Force appraisal of 
current performance o r  it may be possible to get this 
appraisal, these candidates may be referred by separate 
listing provided they meet or exceed all other progression 
level factors as the lowest ranking Air Force competitor 
certified. Documentation supporting the selectee's rank 
order and certification is retained with the promotion 
register.

12. Selection for Details:
a. The requirement to use competitive procedures when 

selecting employees for details applies only to assignment to 
officially classified positions (or to duties identical to those 
of an officially classified position) at a higher grade or of 
known promotion potential when the duration of the detail 
and the nature of the assignment are such that the employee 
can be expected to perform the majority of the grade­
controlling duties.

b. The supervisor must record short-term details of 30 
days or less that meet the above criteria on AF Form 971, 
Supervisor’s Record of Employee. If a detail is to be 
extended, or if a subsequent detail of that individual is 
necessary, the CCPO must be contacted so proper actions 
can be taken according to AFR 40-321.

13. Promotions Not Subject To Competition:
a. Career Promotions. An employee may be 

noncompetitively promoted when at an earlier stage he or 
she was selected from an 0PM register or under competitive 
promotion procedures for an assignment intended to 
prepare the employee for the position being filled. The intent 
must be made a matter of record and career ladders 
documented. Requests for approval of other provisions for 
career promotions or exceptions to competition in 
situations affecting a group of employees or positions must 
be sent to the Office of Civilian Personnel Operations 
(OCPO) for consideration and submission to the central 
office of the OPM if warranted.

b. Classification of a Position to a Higher Grade. When a 
classification review reveals that a position warrants a 
higher grade, the reason for the upgrading must be identified 
and examined to determine whether the basis for upgrading 
entitles the employee to promotion, makes him or her 
eligible for noncompetitive promotion, or requires that 
selection for the higher grade position be made under 
competitive procedures. So, an employee may be 
noncompetitively promoted following reclassification of the 
incumbent’s position at a higher grade because of the 
assignment of additional duties and responsibilities 
provided:

(1) The employees continues to perform ihe same basic 
function(s) as in the former position and there is clear 
evidence that the newly classified position is a successor to 
the former position as jointly determined by classification 
and staffing functions and/or CPO.

(2) The employee meets all requirements for 
promotion.

(3) There are no other employees serving in similar or 
identical positions to whom those duties could be assigned. 
(See tables 2 and 3 for appropriate action to place 
incumbent.)

c. Other Actions Not Subject to Competitive Procedures:
(1) A career ladder prom otion following 

noncompetitive conversion of a cooperative education 
student according to the requirements of FPM, chapter 308.

(2) A position change from a position having known 
promotion potential to a position that does not have higher 
potential. In cases where employees so changed would gain 
greater skills, and future promotional opportunities, CPOs 
may choose to use competitive procedures as specified in 
paragraph 10a.

(3) Placement of Employees Entitled to Grade 
Retention. Employees eligible for grade retention will be 
selected for positions at grades up to and including their 
retained grade with same pay system from which demoted 
according to the priorities and policies set up in AFR 
40-300. An exception to this selection policy can be granted 
only by the' activity commander or a designated 
representative. If an employee declines a position offer at a 
grade which is lower (intermediate) than the level of grade 
retention, further consideration under this policy is ended at 
and below the grade level declined.

14. Repromotion of Previously Downgraded Employees:
a. Employees who are entitled to pay retention, (except 

those in formal development, upward mobility positions, or 
those who accepted change to lower grade in response to 
solicitation for a hard-to-fill position) will be accorded 
priority consideration for noncompetitive repromotion in 
the same pay system from which downgraded before 
candidates referred through the competitive process. Such 
an employee initially not selected, who is later referred for 
consideration on a competitive promotion certificate, must 
be selected if the position to which referred is no higher than 
the minimum grade which will satisfy the condition of a 
reasonable offer under OPM regulation 536.209. The 
activity commander or a designated representative can only 
grant exception to this mandatory selection policy. For 
example, consider the case of an employee changed from 
GS-11 to GS-7 with entitlement to pay retention. While on 
pay retention, the employee receives one-half of subsequent 
schedules pay adjustments for GS-7, step 10. As time passes, 
grades below GS-11 will become reasonable offers 
whenever the top step of those lower grades equal or exceed 
the employees’ retained rate. Thus, while priority referral 
and consideration are required up to and including GS-11 
during the pay retention period, mandatory selection (If 
competitively referred) applies only up to and including the 
lowest grade that is determined to be a reasonable offer.

b. If a selected employee declines a position that is less 
than a reasonable offer, further priority consideration will 
be terminated at the grade level offered and at lower grade 
levels (unless through subsequent salary adjustment that 
level represents a reasonable offer as explained above).

c. Other nontemporary employees who have been 
changed to lower grade without personal cause and not at 
their own request while serving under a career or career



12 AFR 40-335

TABLE I

THE M ER IT PR O M O TIO N  P R O C E S S

S
T
F
P

A B

Required Actions Considerations, Determinations, and Actions

I. Determine the applicability of 
competitive procedures.

Review nature of action proposed and length of assignment .Apply table 2 to determine if 
exempt from competition. Determine eligibility of proposed candidate, if any. for non­
competitive placement. Process action noncompetitively if authorized or proceed to step 2.

2. Conduct job analysis and 
establish promotion evaluation 
pattern (PEP).

Based on job analysis, determine qualifications requirements, selective placement factors, 
if any, screening factors, and ranking factors. Review established PEPs to determine 
whether appropriate or if new PEP is justified because of new or unique factors associated 
with the position. Consider nature of action, type of position, probable availability of 
candidates. Affirmative .Action Program goals. Equal Employment Opportunity 
Recruitment Plan. etc. The area of consideration is the area designed by the local 
promotion plan in which the CCPO should reasonably expect to locate enough high- 
quality candidates, as determined by the CCPO. to fill vacancies.

3. Identify competing 
candidates.

Certify from existing register, if established. If not established, process selection request 
or issue announcement either simultaneously or successively. Included may be voluntary 
applicants from other Air Force installations, employees entitled to priority placement 
consideration serviced by the same CCPO. employees entitled to consideration in 
absentia, and additional competitors identified through EEO Program initiatives.

4. Refer eligible downgraded 
employees entitled priority 
consideration.

Priorities in AFR 40-300 must be followed. PPRS priority consideration list identifies 
employees and consideration to which entitled If no candidate from the list is selected and 
all requirements for nonselection have been met. proceed to step 5.

5. Rank competing 
candidates.

All employees in the prescribed area of consideration are screened against initial and basic 
eligibility criteria. Those meeting basic eligibility are ranked by applying PEP enteria 
through the selection request. Final rank order is determined by appraisal, test, and award 
parameters; final ties arc broken by RIF SCD. If area is extended, repeat steps 3,4, and 5; 
then proceed to step 6. For GS-15 positions, refer to paragraph 22 and AFR 40-3IX).

6. Certify eligible 
candidates.

Determine number to be certified. Refer allowaole number of best-qualified candidates 
from the PPRS roster. Competitors on 0PM certificates are sent for consideration under 
separate listing without regard to rank order; current nontemporary employees from 
other federal agencies and all former federal employees eligible for noncompetitive 
appointment arc ranked and may be referred by separate listing.

T A B L E  2

A P P L IC A T IO N  OF THE C O M P E T IT IV E  P R O C E S S

R
U
L
E

A B C D

When the proposed 
action is to position and

Then competition 
is required 
(note 1)

1. promotion without 
time limitation

of higher grade 
under same pay schedule

the action is not covered by rules M 
thru 23

yes.

2. reassignment I at same ̂rade under 
1 same pay schedule
i

i

position IS one with known promotion potential 
and employee will gain eligibility for non­
competitive career promotion

yes.

3. Position is n o t one with known 
promotion potential

no.

4. change to | of lower grade under
lower grade j same pay schedule

11

________________ _̂____________________

position is one with known promotion potential and 
employees will gam eligibility lor non­
competitive career promotion to grade higher 
than previously held

yes

5. position is n o t one with known promotion 
potential

no
_________________



AFR 40-335 13
T A B L E  2— Continued

A P P L IC A T IO N  OF THE C O M PE TIT IV E  PR O C ES S

____^ ^ _______ B C D
R
U
L
E

When the propoied 
action is to position and

then competition 
is required 
(note 1)

6. assignment from 
one pay schedule

of higher representative 
rate under different 
pay schedule

yes.

7. of same or lower 
representative rate 
under different 
pay schedule

employee's pay will be 
set at higher rate yes.

8. employee's pay will be set at same or 
lower rate, but the position is one with 
known promotion potential

yes.

9. employee's pay will be set at same or 
lower rate, but the position is n o t one 
with known promotion potential

no.

10. reinstatement 
or transfer

at higher grade 
then last held yes.

11. at same grade or 
lower than that 
last held

position is one with known promotion 
potential and the employee will gain 
eligibility for noncompetitive career 
promotion to grade higher than that 
previously held

yes.

12. position is n o t one with known 
promotion potential no.

13. appointment from 
an OPM Register

of higher grade, 
same grade or lower 
grade than that 
currently held

a. Position is one with promotion potential 
and employee will gain eligibility
for noncompetitive career

or
b. Position is no/ one with known 
promotion potential

no.

14. detail of the same grade 
and is not one with 
known promotion 
potential

the detail is for any len g th no.

15. of higher grade or to 
position of same grade 
with known promotion 
potential

the detail is for 120 days or less (note 2) no.

U. the detail is lor m o r e  th a n 120 days (note 2) yes. (notes 3 and 4 |

17. temporary promotion 
or extention of 
temporary pro­
motion

a. Of higher grade 
under same pay 
schedule

or
b. Under different 
pay schedule when 
action is processed 
as promotion or 
represents a pro­
motion under rules 
6 or 8

See table 4

18. conversion of tem­
porary promotion to 
permanent promotion 
(removal of te m p o r a ry  
restriction)

See table 5.

19. placement following 
temporary pro­
motion by reassign­
ment or change to 
lower grade without 
time limitation

a. Under same pay 
schedule at a grade 
higher than the 
position from which 
temporarily promoted

or
b. Under different pay 
schedule at higher 
grade (or level) than 
position from which 
temporarily promoted

See table 5.



14 AFR 40-335
TABLE 2— Continued
APPLICATION OF THE COMPETITIVE PROCESS

R
U
L
E

A B c D

When the proposed 
action is to position and

then competition 
is required 
(note 1)

20. selection for 
training leading 
to promotion

N'A successful completion of training is 
a necessary condition of eligibility for 
promotion

yes.

21. promotion upgraded by 
classification

reason for upgrading is regarding of incumbent's 
position without significant change in duties and 
responsibilities (classification error or new or revised 
standards)

no. (note 5)

22. reason for upgrading is reconstitution of incumbent's 
position into successor position with clearly and solely 
indentifiable duties of former position a n d there are no 
other employees serving in similar or identical positions 
to whom the duties could have been assigned

no. (note 5)

23. reason for upgrading is reconstitution of incumbent's 
position into successor position and position is n o t a 
clear successor o r there are other employees serving in 
similar or identical positions to whom these duties 
could have been assigned

yes. (notes 4 and 5)

24. promotion from 
position of known pro­
motion potential

a. Originally identi­
fied as the target position 
to which employee would 
advance without 
competition

or
b. Which represents 
the full performance 
level of a career 
ladder

competitive procedures were fully applied at the time of 
placement into position of known promotion potential, 
and all competitors were informed that selection for the 
entry position could lead to promotionwithout further 
competition

no.

25. promolion to position to which 
employee was detailed 
for training or evaluation

the employee was selected for detail under f u l l com­
petitive procedures (including the normal area of con­
sideration) and all competitors were informed that the 
detail could lead to promotion without further 
competition)

no.

NOTES:
I. "Yes" entries d o  n o t apply when:
a. Candidate is eligible for noncompetitive promotion because full 

competition was applied earlier, or
b. Candidate may have noncompetitive promotion elgibility as a 

previously downgraded employee, or
c. Candidate is entitled by RIF regulations to the position under the 

representative rate rules, or
d. Candidate is administratively assigned for physical disability reasons 

or in place of a RIF action, to a position of higher representative rate 
without an increase in the rate of pay.

2. Time spent on temporary promotion or detail to higher position(s) 
during preceding year is counted toward the 120 day-limitation.
3. Competition is not required when detail is for purpose of qualifying 
employee whose position has been upgraded under situations described in 
rules 21 and 22.
4. Area of consideration may be limited to employees serving in identical or 
similar positions or organizations to which the duties could have been 
assigned.
5. if employee does not meet minimum OPM standards or other legal or 
regulatory requirements for promotion, refer to table 3. rules 5 and 7.

TABLE 3
UPGRADING A POSITION BY CLASSIFICATION ACTION

A B C D E
- R If an occupied and the then action alternative actions remarks

4 U position is incumbent usually taken permitted are
L upgraded under is
E situation 

described in
1. rules 21 and 22. is qualified promote the imeumbent None. The employee may be taken out

table 2 and eligible without competition. of the position only under adverse 
action procedures for reasons 
unrelated to the upgrading 
decision, (note 1) RIF pro­
cedures m a y  n o t be used to place 
employee.



TABLE 5 1

T E R M IN A T IN G  T E M P O R A R Y  PR OM OTION  A N D  P L A C E M E N T  OF EM P LO YE E

A B C D • E F

R
IJ

E

If proposed 
placement is

temporary promo­
tion was initially 
for 1 year, or pend­
ing permanent 
promotion and full 
competitive procedures 
were used (note 1)

employee is cur­
rently within reach 
under competitive 
procedures for 
permanent promotion

nolilicilion and 
ducumcntilion were 
pruperly fulluwcd 
al Ihc time uf 
tempurary promulion

employee 
consent to the 
placement

then action may 
be taken

1. a. Permanent reten­
tion in position (note 2) __________________ not required N/A not required yes.

2.
b Reassignment 
(without time lim- no yes N/A not required yes.

3.
itation) to posi­
tion ol same grade no no N/A N/A no.

4. rcluri) (o former posiljon N/A N/A ves not required yes.
5. N / a N/A no not required only after adverse 

action procedures 
arc followed.

6. change to lower 
glade position N/A N/A yes yes yes.

7~ at same grade as 
former position N/A N/A yes no yes.

i. s Ta N/A no not required only after adverse 
action procedures 
are followed

yes not required yes yes yes.
lo . no (note 3) N/A.
II change grade to lower no yes yes.
12. grade position at no (note 4) N/A.
7X intermediate grade yes yes yes.
I T no (note 3) N /A .
15. no yes yes.
|6. no (note 4) N /A .
TT no no N/A N/A no.
It. promotion (from 

r̂adc held on 
temporary pro­
motion

N/A yes N/A N/A yes.
19. N/A no N, A N/A no.

>

I
( J t

l O i  r . s

he coiuluions in iliî column arc met only when:
a The icinporary piomoiion was initially niailc lor I year, or was made lor a shorter period but it 
,ai known ai the ouibct that the temporary promotion would be converted to permanent (for 
Aample, at the completion ul extended sick leave ol an employee scitednled for disability 
eiiiement)
b I ull compeiinve procedures were used, including application ol llie standard area of 
unsidcratmn and its extension when required, application of the provisions in paragraph 14a for

mandatory selection of downgraded employees referred lor compcutive consideration, and 
notification to all eligible competitors that (he temporary promotion could, or would, lead to 
permanent promotion without further competition.
2. If the reason for the temporary promotion ceases to exist and the conditions ol rules 1. 2. or 3 are 
met. the promotion may be changed to permanent by removing the limitation according to the 
instructions in l-PM supplement 296 31
3. Keturn to former position or grade under rules 4 or 6.
4. Keuirii to former position or grade under rules 5 or 6.



18 AFR 40-335

BY ORDER OF THE SECRETARY OF THE AIR FORCE

OFFICIAL LEW ALLEN, JR., General, USAF 
Chief of Staff

VAN L. CRAWFORD, JR., Colonel, USAF 
Director of Administration

SUMMARY OF CHANGES
This revision brings the Air Force Merit Promotion Program into conformance with revised Federal policy as in FPM 
Chapter 335. It incorporates most of the provisions of the superseded AFR 40-335 together with previous Air Force policy 
contained in AF supplement to Basic FPM chapter 335 and appendices A and B. This revision represents a single-document 
policy reference. Specified areas of consideration have been eliminated and made a matter of local determination (para 5); 
increased latitude to select from a variety of sources to comply with the Civil Service Reform Act provisions have been 
included (paras 10 and 11); priority consideration of repromotion eligibles has been left to local determination other than 
those cases specified by higher authority (paras 13 and 14); greater latitude to effect noncompetitive promotions under 
planned management conditions has been given (para 13 and table 3); priority consideration in cases involving corrective 
actions for nonselected employees is to be determined locally (para 30); the requirement for mandatory acceptance of Air 
Force voluntary applications outside the area of consideration has been eliminated (para 16); positive requirement for 
conducting job analysis has been included (para 18); reference to the “highly qualified group” has been eliminated, and the 
term “best qualified,” substituted (para 22); Promotions and Placements Referral Subsystem (PPRS) processing has been 
incorporated throughout and specifically addressed in paragraph 23; definitive guidance on the crediting of education and 
training, and its validation is given in paragraph 23b(2)(c); requirement to e.xtend secondary ranking credit for self­
development has been eliminated substituting its valid relationship to the knowledges, skills and abilities (KSAs) of the 
position being filled (para 23); up to 10 employees, ot to exceed 15 if ties exist, may be certified for promotion consideration 
(para 26); details to higher grade positions have been extended from 60 days to 120 days as now specified in FPM chapter 335 
(table 2); the 60-day minimum period for temporary promotions has been eliminated (table 4); processing under a manual (or 
non-PPRS) made is addressed separately in atch 1; test and appraisal is incorporated into a single reference (atch 2).



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al,
Plaintiffs-Appellees,

)

V.

VERNE ORR, Secretary of the Air 
Force, et al.,

Defendants-Appellants.

) Nos. 84-3256

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of October 1984, I 
served two copies of the foregoing "BRIEF OF APPELLANTS, THE 
SECRETARY OF THE AIR FORCE, ET AL." upon the following named 
counsel, by first-class Mail, postage prepaid, to:

Spriggs & Warren, P.A.
117 S. Martin Luther King, Jr. Blvd. 
Tallahassee, Florida 32301

PENNAK
1 for Defendants-Appellants



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