See Kizas v. Webster, 492 F.Supp. 1135, 1144-50 (D.D.C. 1980) (finding liability under fifth amendment) [hereinafter cited without cross-reference as "Opinion I"]; Kizas v. Webster, 492 F.Supp. 1151, 1153-56 (D.D.C. 1980) (on motions to amend judgment and amend complaint) (adding Tucker Act jurisdiction) [hereinafter cited without cross-reference as "Opinion II"]. See also Kizas v. Webster, 532 F.Supp. 1331 (D.D.C. 1982) (damage award) [hereinafter cited without cross-reference as "Opinion III"].

See Opinion I, 492 F.Supp. at 1151; Opinion II, 492 F.Supp. at 1152-53. The employees also challenge the methodology of the district court's damage award, see Opinion III, and the court's ruling that Webster and Kelley are immune from individual liability, see Opinion I, 492 F.Supp. at 1150-51.

Special Agents "conduct criminal, security, and civil investigations covering a variety of classifications of cases over which the FBI has investigative jurisdiction." Federal Bureau of Investigation, Upward Mobility Plan, app. at iii (undated) [hereinafter cited without cross-reference as "Plan"], reprinted in II Joint Appendix ("JA") at 355.

In addition to the "Modified Program," these programs include "Accounting," "Law," "Science," and "Language." In 1977 the Bureau added two additional selection programs — "Female" and "Minority." See infra notes 19-20 and accompanying text.

Opinion I, 492 F.Supp. at 1139.

In determining this number, the Bureau considers its need for the special skills offered by applicants from the several qualifying programs. Brief for Appellees at 4. The law and accounting programs typically have received the highest priority. See Memorandum from R.G. Hunsinger to Mr. Walsh, at 4 (Mar. 10, 1975), reprinted in II JA at 363.

A favorable ranking does not guarantee appointment to a training class; candidates must successfully complete further "processing" requirements, including a physical examination, a background investigation, and a round of interviews. The mechanics of these procedures are outlined in Memorandum from Clarence M. Kelley to All Special Agents in Charge (July 20, 1977), reprinted in II JA at 407-14.

"Upward mobility is defined as a systematic management effort that focuses Federal personnel policy and practice on the development and implementation of specific career opportunities for employees who are in positions which do not enable them to realize their full work potential." Plan at 1, reprinted in II JA at 346. Pursuant to Civil Service Commission and Department of Justice instructions, the Bureau is required to identify "target positions" to which employees may advance under the Plan. In addition to the Special Agent position, Bureau employees may aspire to "Fingerprint Identification," "Fingerprint Correspondence," "Supervisory Support and Service," "Typing and Stenographic," "Special Clerk," or "Paraprofessional Accounting Technician." Id. app. at i-iii, reprinted in II JA at 353-55.

The district court summarized the attractions of the special preference as follows:

[F]irst, it assured employees who had met the minimum qualifications that they would be considered for appointment on the basis of seniority; second, when Special Agent classes had to be filled on short-notice, the existence of a listing of qualified applicants gave clerical employees a substantial practical advantage over non-Bureau applicants, whose availability and qualifications could not be so easily and quickly ascertained; third, the procedure afforded the clerical employees an opportunity to meet all qualifications before vacancies were available, thus reducing a prospective applicant's uncertainty about whether he met SA qualifications and providing an early opportunity to cure deficiencies; fourth, the Modified Program permitted Bureau employees to qualify for appointment on the basis of work experience that would not meet the minimum requirements for entrance under the Modified Program if obtained outside the Bureau; and, fifth, the selection procedure guaranteed to a clerical employee that once qualified for appointment, he could not lose his position on the appointment list to a subsequent applicant, even if that applicant was subjectively better qualified.

Opinion I, 492 F.Supp. at 1141 (footnotes omitted).

Complaint ¶¶ 8, 19, Kizas v. Webster, Civ. No. 78-983 (D.D.C.) (filed May 31, 1978) [hereinafter cited without cross-reference as "Complaint"], reprinted in I JA at 27, 30.

Brief for Appellees at 4-5 (citations omitted). In support of these assertions, the Bureau cites to various disclaimers in recruiting brochures, clerical application forms, personnel circulars, and internal memoranda. See, e.g., id. at 4-6; Reply Brief for Appellees at 3-4; documents reprinted in II JA at 360-64, 365-67, 396-97.

The court concluded that,

[t]o be effective in defeating expectations of clerical employees, the [disclaimers] would have to have been clearly addressed to the preference at issue . . . . The notices by defendants after 1972 that clerical employees could not be "guaranteed" advancement to Special Agent are too vague, too broad, and too imprecise to limit the preference here at issue, . . . particularly in view of the importance, duration, and widespread knowledge of the policy. Indeed, plaintiffs have never claimed a "guarantee" of advancement, only a preference for consideration.

Opinion I, 492 F.Supp. at 1148 (citation omitted).

See Special Agent Pre-Employment Selection System, Task Force Findings (March 1977) [hereinafter cited without cross-reference as "Task Force Findings"], reprinted in part in II JA at 384-401. The Task Force was comprised of 16 Special Agents and support personnel, and was assisted by an outside management consulting firm. Its mission was not limited to revising the Upward Mobility Plan, but covered recruitment and testing of SA applicants under all of the Bureau's qualifying programs.

Memorandum from W.K. DeBruler to the Director, at 34-35 (Dec. 16, 1976), reprinted in II JA at 382-83. The employee morale problems arose because

[f]requently, the college educated employee who begins his Bureau career in a low level support position does so with the clear intent of becoming eligible for and receiving promotion to the Special Agent position in three years. During this waiting period, particularly at FBIHQ, these employees receive very little experience and/or expertise in FBI work responsibilities and very often develop a "shelf-time" attitude. . . .

Many high school graduates work their way through the support ranks, while sacrificing to obtain a college degree. A great many of these employees become extremely skilled and experienced in many areas of the Bureau's work during this time while obtaining a college degree to become eligible for the Special Agent position. This is understandable since the majority have as much as seven to ten years of Bureau service by this time. Under current policy, these veteran employees are then placed on the eligibility list for Special Agent consideration behind the on-board college graduate who has three years' service.

Id.; see also Task Force Findings at 20-22, reprinted in II JA at 395-97.

Memorandum from Clarence M. Kelley to All Employees (Apr. 19, 1977), reprinted in II JA at 402-03.

Affidavit of Clarence M. Kelley ¶ 5 (July 27, 1979) [hereinafter cited without cross-reference as "Kelley Affidavit"], reprinted in I JA at 97.

See, e.g., Memorandum from S.R. Burns to Mr. Long (May 23, 1977) (summarizing employee requests for addition of "grandfather clause" to the NSASS), reprinted in II JA at 404-06; Letter from Philip L. Chabot, Jr. to William H. Webster (Apr. 18, 1978) (threatening litigation), reprinted in II JA at 425-26; Memorandum from W.O. Cregar to R.E. Long (Oct. 24, 1978) (NSASS "will . . . work a severe hardship" on clerical and support employees; "a hard pill for them to swallow"), reprinted in II JA at 450-51.

Memorandum from Clarence M. Kelley to SAC, Sacramento (Aug. 17, 1977), reprinted in II JA at 415-16. Under the NSASS, SA applicants in all qualifying programs were required to be "reprocessed" pursuant to the new procedures, regardless of whether they had already qualified under the old system. Director Kelley stated that "[t]o revert to a previous selection procedure for a single applicant or group of applicants would negate the objective of the new system . . . ." Memorandum from Clarence M. Kelley to All Special Agents in Charge, at 7 (July 20, 1977), reprinted in II JA at 413; see also Letter from William H. Webster to Philip L. Chabot, Jr. (May 9, 1978), reprinted in II JA at 427.
In response to employee discontent, however, the Bureau did make one important adjustment to the NSASS: Prior to April 4, 1978, the Bureau permitted only current employees to qualify for the special preference. After that date, clerical and support personnel who had satisfied the three-year service requirement could qualify for consideration even if they subsequently left the Bureau's employ. See Brief for Appellees at 8.

Brief for Appellees at 7. The genesis of the affirmative hiring program is ambiguous. Compare Kelley Affidavit ¶ 6 ("[T]he NSASS as I approved it and, to my knowledge, during my tenure as FBI Director did not contain provisions for affirmative hiring."), reprinted in I JA at 97, with Affidavit of William H. Webster ¶ 6 (Aug. 13, 1979) ("Shortly after I assumed my responsibilities as Director, members of my personal staff determined that the NSASS as originally approved . . . had been modified after its implementation . . . and prior to my appointment as Director. . . . I approved of this modification at the time it came to my attention and continue to approve of it.") [hereinafter cited without cross-reference as "Webster Affidavit"], reprinted in I JA at 100.

See Opinion I, 492 F.Supp. at 1143-44; see also documents reprinted in II JA at 428-49, 452-65.

The employees sought to represent a class defined as

those members of the FBI clerical and support staff who were employed prior to April 19, 1977 and who (a) were interested in positions as Special Agents, and (b) understood, as a condition of their employment, that once they satisfied minimum requirements for the Special Agent positions they would be given preferential consideration for future Special Agent positions.

Complaint ¶ 4, reprinted in I JA at 25. The district court certified the class under Fed.R.Civ.P. 23(b)(1)(A). Kizas v. Webster, Civ. No. 78-983 (D.D.C. May 15, 1979) (memorandum and order certifying class) [hereinafter cited without cross-reference as "Class Certification"], reprinted in I JA at 72-80.

28 U.S.C. § 1331 (1976 Supp. V 1981).

Complaint ¶ 21, reprinted in I JA at 30.

Id. ¶ 22, reprinted in I JA at 30.

Id. at 10-11, reprinted in I JA at 31-32.

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (1976 Supp. IV 1980).

Amended Complaint, Kizas v. Webster, Civ. No. 78-983 (D.D.C.) (filed Jan. 15, 1979) [hereinafter cited without cross-reference as "Amended Complaint"], reprinted in I JA at 54-68. The district court granted the employees' motion to amend their complaint on February 16, 1979. See District Court Civil Docket Sheet, reprinted in I JA at 1, 12.

See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation").

Kizas v. Webster, Civ. No. 78-983 (D.D.C. July 5, 1979) (order) [hereinafter cited without cross-reference as "Pre-Judgment Order"], reprinted in I JA at 94. The court's sole analysis in support of this decision was a citation to Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), which extended Bivens to the equal protection component of the fifth amendment's due process clause. See infra note 42.

Opinion I, 492 F.Supp. at 1144-49.

Id. at 1147. The court emphasized that its decision "does not imply that every aspect of FBI employment gives rise to vested contractual rights and that defendants are never free to alter the terms of employment without compensation." Id. (citation omitted). The distinguishing features of the preference, the court reasoned, were that it "was significant both to the Bureau and to the affected employees; it was well-understood and regularly used, and stood apart in character and significance from other aspects or incidents of FBI employment. It was not a mere condition of employment." Id.

Id. at 1150. The court reasoned that the case presented "difficult questions of constitutional law," and noted the absence of any evidence that Kelley or Webster had acted with malicious intent. Id. at 1151.

The court stated that the defendants "should not be prevented from bringing about substantial changes that they find necessary and appropriate." Id. at 1149-50 (footnote omitted).

Id. at 1151.

28 U.S.C. §§ 1346(a)(2), 1491 (1976 Supp. V 1981). Section 1491 provides:

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

Section 1346(a)(2) gives the district courts concurrent jurisdiction over Tucker Act claims that do not exceed $10,000.

Opinion II, 492 F.Supp. at 1153.

The government did not object. See id. at 1156.

See supra note 36. The functions of the Court of Claims have been transferred to the United States Court of Appeals for the Federal Circuit. See Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25.

The court transferred the claims of 612 employees. See Complaint, Alford v. United States, No. 249-81C (Ct.Cl.) (filed Apr. 17, 1981). That action is being held in abeyance pending resolution of the instant appeal.

The district court awarded a total of $490,603 to 70 class members. Its theory of damages was that the employees should be placed in the financial position they would have been in had they not accepted clerical and support positions with the Bureau. Accordingly, the court awarded "reliance expenditures" — moving expenses incurred in order to accept FBI employment — and "reliance losses" — defined as the difference between (1) the employees' actual salaries from the time they joined the Bureau until either (a) the time they left or (b) April 4, 1978, whichever was earlier; and (2) the average amounts that persons of their age, sex, race and educational levels earned. Opinion III, 532 F.Supp. at 1333-34. The court denied compensation for the alleged 20-year diminution in the employees' earning capacities resulting from their service with the Bureau; moving expenses of employees who left the Bureau after the special preference was modified; college expenses allegedly incurred in reliance on the Modified Program; and alleged reduced wages of spouses. Id. at 1334-35.

Our disposition does not require that we decide whether the district court properly implied a Bivens-type action for damages directly from the fifth amendment's takings clause. See supra note 30 and accompanying text. Resolution of this question would involve an analysis whether (a) the Tucker Act is an equally effective remedy, and (b) Congress intended the Tucker Act to supplant other remedies. See Carlson v. Green, 446 U.S. 14, 18-23, 100 S.Ct. 1468, 1471-74, 64 L.Ed.2d 15 (1980) (also noting necessity for inquiry into "special factors counselling hesitation in the absence of affirmative action by Congress") (citation omitted). See also Bush v. Lucas, 647 F.2d 573, 576-77 (5th Cir. 1981) (federal employment relationship "is a special consideration which counsels hesitation in inferring a Bivens remedy"), cert. granted, ___ U.S. ___, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982). The district court did not undertake such an analysis. We are unaware of any other case extending Bivens to the takings clause.

Thus we need not reach the other issues presented by the district court's judgment on the takings count. In addition to the propriety of a Bivens-type remedy, see supra note 42, these include (1) whether summary judgment on the contested facts of the case was proper; (2) whether, assuming the employees possessed vested property rights in the special preference, the Bureau's modification of the preference resulted in a constitutionally cognizable taking, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); (3) whether Kelley and Webster were individually immune from Bivens liability; and (4) whether the district court properly calculated the employees' damages.

Complaint ¶ 21, reprinted in I JA at 30.

Id. ¶¶ 19-21, reprinted in I JA at 30.

Opinion I, 492 F.Supp. at 1145, 1147 (footnotes omitted).

Id. at 1145. In support of this conclusion, the court reasoned that,

[t]o secure fifth amendment protection, an interest need not have any special "constitutional" character; rather, constitutional protection is accorded interests that are derived independently from such sources as state law or contract. A contract right, such as the one at issue here, is plainly property for purposes of the fifth amendment, which the government cannot destroy without due process or just compensation.

Id. (citations and footnotes omitted).

Kania v. United States, 650 F.2d 264, 268 (Ct.Cl.) (citation omitted), cert. denied, 454 U.S. 895, 102 S.Ct. 393, 70 L.Ed.2d 210 (1981).

United States v. Larionoff, 431 U.S. 864, 869, 97 S.Ct. 2150, 2154, 53 L.Ed.2d 48 (1977) (footnote omitted). See also Army Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 2124-26, 72 L.Ed.2d 520 (1982) (federal employment regulations do not create implied-in-fact contracts); Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961) ("common-law rules governing private contracts have no place" in federal employment); Bigler v. United States, No. 234-81C, slip op. at 3 (Ct.Cl. May 18, 1982); Shaw v. United States, 640 F.2d 1254, 1260 (Ct.Cl. 1981) ("Federal officials who by act or word generate expectations in the persons they employ, and then disappoint them, do not ipso facto create a contract liability running from the Federal Government to the employee, as they might if the employer were not the government."); Urbina v. United States, 428 F.2d 1280, 1284 (Ct.Cl. 1970).

Riplinger v. United States, 695 F.2d 1163, 1164 (9th Cir. 1983). See also United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976) (courts may not "tamper" with doctrines of federal employment out of desire to be "responsive to a particular conception of enlightened governmental policy"); Shaw v. United States, supra note 49, 640 F.2d at 1260 (government employees' claims that are founded on contract principles are "moral, not legal").

See, e.g., Riplinger v. United States, supra note 50, 695 F.2d at 1164; National Treasury Employees Union v. Reagan, 663 F.2d 239, 249-50 (D.C. Cir. 1981) (government not estopped from applying hiring freeze to individuals who had received written confirmation of their appointment to government service); Ganse v. United States, 376 F.2d 900, 902 (Ct.Cl. 1967); Price v. United States, 80 F.Supp. 542, 542-43 (Ct.Cl. 1948).

See, e.g., Qualls v. United States, 678 F.2d 190, 193-97 (Ct.Cl. 1982); Applegate v. United States, 211 Ct.Cl. 380, 380-82 (1975) (federal promotion freeze, negating oral and written assurances of promotion, did not constitute breach of contract); Peters v. United States, 534 F.2d 232, 234-35 (Ct.Cl. 1975).

See, e.g., Johnston v. United States, 175 F.2d 612, 617-19 (4th Cir. 1949); cf. Bielec v. United States, 456 F.2d 690, 696 (Ct.Cl. 1972).

Army Air Force Exch. Serv. v. Sheehan, supra note 49, 102 S.Ct. at 2124-26 (regulations governing separation procedures do not create implied-in-fact contract); Chu v. Schweiker, 690 F.2d 330, 332-34 (2d Cir. 1982) (promises to Public Health Service doctors that their residency programs would not be terminated); Shaw v. United States, supra note 49, 640 F.2d at 1260 (promises not to redesignate employee's position from career to noncareer status); Abbott v. United States, 200 Ct.Cl. 384, 388-90 (1973) (alleged contract regarding computation of retirement pay: "[N]o property has been taken from [plaintiffs] by the government. They are in reality complaining about what they would have received if the system had not been changed."), cert. denied, 414 U.S. 1024, 94 S.Ct. 448, 38 L.Ed.2d 315 (1973).

Reply Brief for Appellants at 9.

Id. at 10.

See, e.g., Riplinger v. United States, supra note 50, 695 F.2d at 1164 (employee left private sector and began government service in reliance on promises of particular salary level); National Treasury Employees Union v. Reagan, supra note 51, 663 F.2d at 245-46 ("federal government played hide-and-seek with job-seekers, assuring them that jobs awaited them and only later — on occasion, after the prospective employee had acted on the assurance of a job — reversing itself"); Shaw v. United States, supra note 49, 640 F.2d at 1255 (employee "burned his bridges" in reliance on government promises); Applegate v. United States, supra note 52, 211 Ct.Cl. at 380-81; Abbott v. United States, supra note 54, 200 Ct.Cl. at 390; Ganse v. United States, supra note 51, 376 F.2d at 902.

Congress has carved out exceptions, see, e.g., 5 U.S.C. § 5102(c) (1976 Supp. V 1981), but it is undisputed that the employees in the instant case were Government Schedule ("GS") personnel covered by the provisions of Title 5.

Id. § 5301 et seq.

See id. § 5107 (GS classifications of positions "are the basis for pay and personnel transactions"); id. § 5301 (compensation of GS workers "shall be fixed and adjusted in accordance with the principles" set forth in Title 5); id. § 5536 ("An employee or a member of a uniformed service whose pay or allowance is fixed by statute or regulation may not receive additional pay or allowance for the disbursement of public money or for any other service or duty, unless specifically authorized by law and the appropriation therefor specifically states that it is for the additional pay or allowance.") (emphasis added).

These principles underlie two opinions holding that veterans' civil service preference rights do not create contractual or other property interests. In Monaco v. United States, 523 F.2d 935 (9th Cir. 1975), cert. denied, 424 U.S. 914, 96 S.Ct. 1114, 47 L.Ed.2d 319 (1976), a group of retired military personnel challenged a 1964 statutory modification of the Veterans' Preference Act of 1944, as amended, 5 U.S.C. §§ 3313- 3315, 7511-7512, 7701 (1976 Supp. V 1981). They argued that, "by enlisting in the military service between 1944 and 1964," they had acquired "vested, unrepealable" contract rights to the preference in effect at the time of their military service. Id. at 939. The court rejected their claim, holding that the veterans' preference is a mere "gratuity" rather than a "condition" of military service. Id. at 939-40. "[W]hatever anticipations a serviceman entertained between 1944 and 1964 with respect to preferential advantage in the federal civil service were no more than some sort of floating expectancy entirely dependent upon the government's bounty. A claim of unconstitutional deprivation cannot be built upon this foundation." Id. at 940. See also Mack v. United States, 635 F.2d 828, 832 (Ct.Cl. 1980) (provisions of Veterans' Preference Act "do not create an interest in property subject to being taken for public use"), cert. denied, 451 U.S. 913, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981).

Johnston v. United States, supra note 53, 175 F.2d at 617 (emphasis in original) (quoting statutory predecessor of 5 U.S.C. § 5536).

Mullett's Adm'x v. United States, 150 U.S. 566, 570, 14 S.Ct. 190, 192, 37 L.Ed. 1184 (1893). See also United States v. Saunders, 120 U.S. 126, 129, 7 S.Ct. 467, 468, 30 L.Ed. 594 (1887); Urbina v. United States, supra note 49, 428 F.2d at 1285; Schaible v. United States, 135 Ct.Cl. 890, 898 (1956) (Title 5 eliminates "[a]ny suggestion of barter and trade in public employment").

The employees appear to argue, however, that the Director's broad delegated discretion over Bureau personnel management, see 28 C.F.R. § 0.137 (1982), supplants the compensation scheme set forth in Title 5. This argument easily fails. It is well-established that general grants of discretion do not override the extra-compensation prohibitions unless explicitly spelled out by statute. See, e.g., Johnston v. United States, supra note 53, 175 F.2d at 615-17 (collecting cases). For examples of such explicit exceptions, see 5 U.S.C. §§ 5922, 5942, 5947 (1976 Supp. V 1981); 22 U.S.C. §§ 287e- 1, 2389, 2513 (1976 Supp. V 1981); 39 U.S.C. § 1001 (1976). Rather, general grants of discretion with respect to "compensation" extend only to those details of pay administration that have been delegated by Congress. See, e.g., 5 U.S.C. § 5545(c) (1976 Supp. V 1981) (determining appropriate method for calculating overtime pay).

United States v. Testan, supra note 50, 424 U.S. at 401, 96 S.Ct. at 954. See also Army Air Force Exch. Serv. v. Sheehan, supra note 49, 102 S.Ct. at 2124-25; United States v. Hopkins, 427 U.S. 123, 130, 96 S.Ct. 2508, 2512, 49 L.Ed.2d 361 (1976).

United States v. Testan, supra note 50, 424 U.S. at 400, 96 S.Ct. at 954 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009, 178 Ct.Cl. 599 (Ct.Cl. 1967)). This rule derives from the familiar principle that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). See also Army Air Force Exch. Serv. v. Sheehan, supra note 49, 102 S.Ct. at 2124-25; Donovan v. United States, 580 F.2d 1203, 1206-08 (3d Cir. 1978) (failure to promote employee in accordance with applicable regulations not remediable through back-pay award); Mack v. United States, supra note 61, 635 F.2d at 832 (Army's alleged failure to accord plaintiff a disabled veteran's hiring preference not remediable through money damages).

5 U.S.C. § 5596 (1976 Supp. V 1981) (Back Pay Act); see also, e.g., 42 U.S.C. §§ 2000e- 5, 2000e-16 (1976 Supp. IV 1980) (Title VII back pay and other retroactive relief).

United States v. Testan, supra note 50, 424 U.S. at 404, 96 S.Ct. at 956.

Army Air Force Exch. Serv. v. Sheehan, supra note 49, 102 S.Ct. at 2125.

This jurisdictional limitation does not, of course, extend to the employees' Bivens-type action against Kelley and Webster. Even assuming the propriety of such a remedy, see supra note 42, the employees' claim is defeated because no vested right subject to a taking existed in the first place. See supra notes 48-64, infra notes 71-88, and accompanying text.

United States v. Larionoff, supra note 49, 431 U.S. at 879, 97 S.Ct. at 2159 (distinguishing the "serious constitutional questions [that] would be presented" by such a case from instances of mere prospective reductions in anticipated pay).

United States v. Testan, supra note 50, 424 U.S. at 402, 96 S.Ct. at 955. The district court also cited to this language in support of its holding. Opinion I, 492 F.Supp. at 1148-49.

Reply Brief for Appellants at 10.

Reliance on other language is similarly unavailing. In holding that jurisdiction to award money damages against the United States "cannot be premised on the asserted violation of regulations that do not specifically authorize awards of money damages," for example, the Court has noted an exception for suits seeking the return of property "improperly exacted or retained." Army Air Force Exch. Serv. v. Sheehan, supra note 49, 102 S.Ct. at 2125 n. 11 (quoting United States v. Testan, supra note 50, 424 U.S. at 401, 96 S.Ct. at 954). It might be argued that the employees fall within this exception, on the theory that the Bureau "improperly exacted" their services through promises of preferential consideration. The "improperly exacted or retained" rule, however, is simply a recognition that the Tucker Act protects private property from illegal government levy, regardless of whether any other statute or regulation authorizes recovery. See Eastport S.S. Corp. v. United States, supra note 66, 372 F.2d at 1007-08. Where a claimant alleges that property rights have been created through the operation of statutes or regulations, on the other hand, damages may be recovered only if the relevant provisions so authorize. See supra notes 65-66 and accompanying text. Because the employees' compensation rights can only be defined by reference to statute and regulation, they do not fall within the scope of the "improperly exacted or retained" exception.
The employees attempted to bolster their claim at oral argument through citation to a series of habeas corpus cases permitting rescission of military enlistment commitments procured through official misrepresentations. See, e.g., Pence v. Brown, 627 F.2d 872 (8th Cir. 1980); Helton v. United States, 532 F.Supp. 813 (S.D.Ga. 1982); Withum v. O'Connor, 506 F.Supp. 1374 (D.P.R. 1981). As those cases have themselves emphasized, however, they are "quite different from a suit against the government for misrepresentations in contracting in which the complaint seeks money damages or specific performance." Pence v. Brown, supra, 627 F.2d at 874.

Response in Opposition to Motion to File Affidavits at 2 (filed Nov. 8, 1982).

Id. at 1-2. See also Reply Brief for Appellants at 8 ("The district court did not premise liability upon a contract.").

Response in Opposition to Motion to File Affidavits, supra note 75, at 2.

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

See generally G. GUNTHER, CONSTITUTIONAL LAW 646-61, 668-69 (10th ed. 1980).

Colm v. Vance, 567 F.2d 1125, 1131 (D.C. Cir. 1977); see also Ashton v. Civiletti, 613 F.2d 923, 928-29 (D.C. Cir. 1979).

Colm v. Vance, supra note 80, 567 F.2d at 1128 (citations omitted).

J. SACKMAN, NICHOLS' THE LAW OF EMINENT DOMAIN § 4.3, at 187 (rev. 3d ed. Cum.Supp. 1982) (footnote omitted) (emphasis in original). But see L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 9-2, at 459 n. 11 (1978) ("The body of rules determining which expectations constitute compensable property interests and which do not . . . plainly requires reconsideration in light of the broader definition of property interests now employed in the law of procedural due process. There seems no good reason why the broader definition should not be extended to the takings context.") (citations omitted).

O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 796, 798, 100 S.Ct. 2467, 2481, 2482, 65 L.Ed.2d 506 (1980) (Blackmun, J., concurring in the judgment) (emphasis added) ("Public benefits are not held in fee simple."). See also Geneva Towers Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483, 494 n. 2 (9th Cir. 1974) (Hufstedler, J., dissenting) ("The interest in a benefit that gives rise to an entitlement cannot be an absolute right. If the beneficiary's right to receive the benefit were absolute, the Government without awarding him just compensation could not deprive him of the right even after prior notice and hearing."); Wilkinson, Goss v. Lopez: The Supreme Court As School Superintendent, 1975 SUP.CT.REV. 25, 58-59 (procedural due process doctrine "does not interfere with a state's substantive law-making capacity . . . . The whole concept of entitlement, in fact, only takes its cue from state or federal substantive law.").

404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).

Belcher v. Richardson, 317 F.Supp. 1294, 1297-98 (S.D.W.Va. 1970).

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The district court viewed Goldberg as effectively overruling Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), which held that contributors to the social security fund have no indefeasible property rights to receive benefits.

404 U.S. at 81, 92 S.Ct. at 257 (citation omitted).

The employees' complaints charged not only that the Bureau had deprived them of vested rights to the special preference, but that it had done so in a procedurally defective manner. See, e.g., Complaint ¶ 23 (Bureau "did not provide any hearing or notice to plaintiffs" prior to adopting the NSASS; employees "had no opportunity to contest the termination of their privileged status"), reprinted in I JA at 31. This claim of a due process right to participate in Bureau modifications of the Upward Mobility Plan confuses disputes involving an individual's entitlement to a benefit with situations involving across-the-board revocation of the benefit itself. The distinction is critical. As Justice Blackmun cogently observed in O'Bannon v. Town Court Nursing Center:

The Constitution would not have entitled John Kelly to a fair hearing if New York had chosen to disband its public assistance programs rather than to cut off his particular award. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Nor would Texas have had to afford process to Professor Sindermann had it decided for budgetary reasons to close Odessa Junior College. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). And we would be surprised to learn that Dwight Lopez had a constitutional right to procedures before the Ohio Department of Education suspended classes at Columbus High School for 10 days due to the discovery of faulty electrical wiring requiring that much time for repair work. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

Supra note 83, 447 U.S. at 798, 100 S.Ct. at 2482 (Blackmun, J., concurring in the judgment).
Even assuming arguendo that the employees had due process "property interests" in retention of the special preference, the procedures available to them for challenging the NSASS were constitutionally sufficient. Theirs was manifestly not a case of "grievous loss" requiring prior notice and hearing. Compare Memphis Light, Gas Water Div. v. Craft, 436 U.S. 1, 12-22, 98 S.Ct. 1554, 1561-67, 56 L.Ed.2d 30 (1978); Goldberg v. Kelly, supra note 86, 397 U.S. at 264, 90 S.Ct. at 1018. After the Bureau announced its implementation of the NSASS, the employees were given several administrative opportunities to challenge the new system, and the Bureau gave rational, legitimate reasons in rejecting their requests that the NSASS be applied only to prospective clerical and support personnel. See supra notes 17-18 and accompanying text. And the employees have had, of course, a full opportunity to federal court review of the Bureau's action. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976). No further safeguards were constitutionally required.

The original complaint, filed May 31, 1978, stated only the takings count, see supra text at notes 21-25; an order granting leave to file an amended complaint adding the discrimination count was filed February 16, 1979. See supra note 27.
We refer in this part of the opinion to the employees as "the Kizas complainants," and designate, as their complaint does, the takings claim as "Count I," the discrimination count as "Count II."

This phase was introduced after the initial implementation of the NSASS. See supra note 19 and accompanying text.

The discrimination count alleged that "[t]here has never been a judicial finding that the FBI discriminates on the basis of race or sex." Amended Complaint ¶ 36, reprinted in I JA at 66. The Bureau's Special Agent employment profile, however, is not in doubt. As the district court found:

Between 1960 and 1972 [the year Title VII was extended to cover federal employment], the number of black Special Agents was less than one percent of the total number of agents; between 1973 and mid-1979, the percentage of black Special Agents has risen from one percent to 2.55 percent. No female Special Agents were permitted before 1972; since then, the percentage of female Special Agents has risen to 2.18 percent.

Opinion I, 492 F.Supp. at 1144.

At oral argument, counsel for the Kizas complainants stated that the class of clerical employees whose preference had been removed numbered several hundred and that the class included only a few women and a few members of minority groups. (No female clerical employee could have held a preference prior to 1972; until that year, the FBI excluded women from positions as Special Agents. See supra note 91.) The district court's class action certification, see supra note 21, framed to fit Count I, the takings count, also encompassed Count II, the employment discrimination count. The court recognized, however, that, for Count II purposes, redefinition of the class eventually might be required "to exclude that subclass of minorities and women who fare better under the present regime." Class Certification at 8, reprinted in I JA at 79.

Prior to this definitive ruling on Count II, the district court had shifted its position on this aspect of the complaint. Initially, in an order dated July 5, 1979, the district court declared that race and sex discrimination "constitutional claims" were not precluded. Pre-Judgment Order at 1, reprinted in I JA at 94. On February 15, 1980, however, after holding in plaintiffs' favor on Count I, the district court declared that it was "not necessary" to address Count II because plaintiffs were likely to receive full relief through their recoveries under Count I. Opinion I, 492 F.Supp. at 1151. Plaintiffs then moved for reconsideration, urging that relief under the two counts would not be coextensive. The district court, at that point, arrived at its final view of the matter. On April 25, 1980, it denied the motion for reconsideration and directed dismissal of Count II for the two reasons set out in the text accompanying this note. Opinion II, 492 F.Supp. at 1152-53.

5 U.S.C. § 105 (1976) reads: "For the purpose of this title, `Executive agency' means an Executive department, a Government corporation, and an independent establishment."

On brief, counsel for the Kizas complainants suggested that, because FBI employment is not within the competitive service, it was doubtful whether Title VII covered Bureau employees. As note 94 and the accompanying text indicate, however, Title VII's coverage of executive agency employees is comprehensive, reaching excepted service as well as competitive service employees. At oral argument, counsel for Kizas conceded that the statute applies to Bureau employees.

The Court contrasted private sector employment discrimination claims, citing its holding in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), that "in the context of private employment Title VII did not pre-empt other remedies." 425 U.S. at 833, 96 S.Ct. at 1968 (emphasis in original). See also, e.g., Poolaw v. City of Anadarko, 660 F.2d 459 (10th Cir. 1981); Garner v. Giarrusso, 571 F.2d 1330 (5th Cir. 1978) (state and municipal government employees may maintain employment discrimination claims under Civil Rights Act of 1866).

See also Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981), ___ U.S. ___, 103 S.Ct. 3110, 77 L.Ed.2d 1365 (1983) (relying on Brown v. GSA in holding that Age Discrimination in Employment Act preempts judicial remedies based directly on the Constitution for claims of age discrimination in federal employment).

Although the Kizas complainants assert that Manning's charge was filed in 1977, Brief for Appellants at 24, the documents submitted to the district court indicate that the charge was filed in October 1978, after unsuccessful informal exchanges between Manning and the Equal Employment Opportunity Counselor in the FBI's New Orleans office. See Attachments to Memorandum to Court Addressing New Evidence of Plaintiffs' Exhaustion of Administrative Remedies (filed Apr. 23, 1980), reprinted in I JA at 141, 153.

The Equal Employment Opportunity (EEO) regulations currently in effect appear at 29 C.F.R. §§ 1613.201-.283 (1982). They recodify, without significant change, rules originally issued by the Civil Service Commission, codified at 5 C.F.R. §§ 713.201-.283 (1978). The recodification occurred in 1979 after enforcement and related functions vested in the Civil Service Commission under section 717 of Title VII were transferred to the EEOC pursuant to section 3 of President Carter's Reorganization Plan No. 1 of 1978, 43 Fed.Reg. 19807 (1978), 92 Stat. 3781.
Summarized generally, the regulations require a federal employee to bring his or her complaint to the attention of one of the agency's EEO counselors ordinarily within 30 days of the alleged Title VII violation. If the matter is not resolved at this threshold, the complaint is formally filed with the agency. After the agency's investigation, if relief acceptable to the employee is not offered, the employee may request an evidentiary hearing before an examiner who is not employed by the agency. Final decision is entrusted to the head of the agency or an official designated by the agency head. The employee may appeal the agency's final decision to the EEOC or, in certain cases, the Merit Systems Protection Board, but a court action may be initiated without pursuing administrative relief beyond the agency level.

42 U.S.C. § 2000e-16(c) (1976 Supp. IV 1980). In its entirety, the provision reads:

Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

But cf. 29 U.S.C. § 633a(d) (1976 Supp. V 1981) (federal employees alleging discrimination under the Age Discrimination in Employment Act need only give notice to appropriate federal official of intent to sue; pursuit of administrative remedies is optional); Ososky v. Wick, 704 F.2d 1264 at 1265-1267 (D.C. Cir. 1983) (under Equal Pay Act, in contrast to Title VII, federal employee is not required to seek administrative relief before commencing civil action in court). See generally Ralston, The Federal Government as Employer: Problems and Issues in Enforcing the Anti-Discrimination Laws, 10 GA.L.REV. 717, 724-34 (1976).

See infra note 104 and accompanying text.
The Kizas complainants cite Davis v. Bolger, 496 F.Supp. 559 (D.D.C. 1980), as an instance in which a court applied to a federal sector Title VII claim the rule that "where recourse to agency procedures would be futile because the agency's position is firm a litigant need not first exhaust his administrative remedies before bringing his case to court." Id. at 567. But the extraordinary context in which the Davis v. Bolger court made this statement has no parallel in this case.
The plaintiff in Davis made two routine Title VII claims: he alleged that he was denied a promotion because of his race and sex and that he was the subject of reprisals after he filed his EEO complaint. The Davis plaintiff, in short, did not bypass the charge-filing requirement.
In his court complaint, however, the Davis plaintiff included a third, more novel claim that had not been presented initially to the Postal Service. He assailed the Postal Service's practice, then followed in other federal agencies as well, of paying Postal Service employees who attended Title VII trials as witnesses for the defense for time spent in court, but requiring employees who served as witnesses for Title VII plaintiffs to attend court on their own time. The Davis court held that this practice violated Title VII, construed "in conjunction with 5 U.S.C. § 6322," which "provides on its face for paid leave for a witness summoned `on behalf of any party.'" Id. at 566. The Postal Service had argued, inter alia, that "witnesses who wish to be paid must first file an EEO claim and exhaust their administrative remedies." Id. at 567. In rejecting this argument, the court specifically noted: "It is not at all clear that witnesses themselves would have administrative remedies under EEO procedures, since they could not allege discrimination of the type prohibited by Title VII against themselves." Id. at n. 34.
Davis, in sum, does not aid the Title VII plaintiff who proceeds directly to court on a race or sex discrimination claim. It is simply an example of an altogether appropriate readiness of courts to avoid excessively technical interpretations of the statute. See, e.g., Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981) (plaintiff who filed EEOC charge complaining of discrimination based on religion and national origin could assert in civil action on that claim an ancillary claim, not filed with the EEOC, for retaliation growing out of the original charge). See also Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982).

Indeed, even before the Supreme Court's decision in Zipes, this court viewed Title VII's time provisions as subject to equitable modification. See Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 474-75 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978).

For the full text of section 717(c), 42 U.S.C. § 2000e-16(c) (1976 Supp. IV 1980), see supra note 100. In Porter v. Adams, supra, 639 F.2d at 276, the Fifth Circuit considered the matter and concluded: "The exhaustion requirement . . . is found in § 717(c) and is an absolute prerequisite to suit under that section." But cf. supra note 101.

Brief for Appellants at 24.

Manning's administrative complaint alleged that he was passed over in favor of less qualified applicants drawn from the women's and minorities' selection program. See Attachments to Memorandum to Court Addressing New Evidence of Plaintiffs' Exhaustion of Administrative Remedies (filed Apr. 23, 1980), reprinted in I JA at 141, 148.

Id. at 145-46.

Manning initially requested a hearing before a complaints examiner, but withdrew the request a few weeks before he commenced his court action. Id. at 151.

On January 29, 1980, on joint motion of Manning and the Bureau, Manning's action was stayed pending either decertification of the class or final adjudication in the Kizas action. Manning v. Webster, supra (order staying proceedings), reprinted in I JA at 171.

The motion was made on October 23, 1980, and was granted by order filed November 19, 1980. District Court Civil Docket Sheet, reprinted in I JA at 1, 17.

As a final argument, the Kizas complainants urge that even if they could not pursue Title VII relief in an independent action because they failed to file a charge with the FBI, the district court nevertheless should have decided their race and sex discrimination class claim as a matter "ancillary" to their Count I claim. The district court held that the exercise of ancillary jurisdiction would be "inappropriate" in this case. Opinion II, 492 F.Supp. at 1153; see Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C. Cir. 1969). That ruling is unquestionably correct. The concept of "ancillary" jurisdiction is not properly invoked to circumvent Title VII's firm charge-filing requirement for federal employees. Moreover, our disposition of the takings count leaves no principal action to which the discrimination count could be linked.