ANDREW A. HANDY, PETITIONER V. NATIONAL SECURITY AGENCY, ET AL.

   No. 87-249

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

   Memorandum for the Respondents in Opposition

   Petitioner contends that respondents -- the National Security
Agency (the NSA) and its officers -- denied him a promotion on the
basis of his race, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000 et seq.

   1. The NSA is the intelligence component of the Department of
Defense (Pet. App. 12a).  From October 1975 to April 1983, the NSA had
a defined Agency Promotion System (id. at 13a).  Under this system,
employees were eligible for promotion to Grade 13 if they had served
one year in Grade 12, and either were certified in a professional
career area or their promotion was nonetheless found to be "for the
good of the Service" (id. at 13a-14a).  Those employees who were
eligible for promotion to Grade 13 were reviewed quarterly under the
evaluation criteria established by the defined Agency Promotion System
(id. at 14a;  see also id. at 14a-22a).

   Petitioner, a black male, was hired by the NSA in 1965 and assigned
as a Grade 7 to the agency's Fort Meade, Maryland headquarters (Pet.
App. 22a).  In 1970, he received a law degree from the University of
Maryland (id. at 23a);  in 1972, he was professionally certified as a
Personnel Officer (id. at 22a);  and, in 1974, he was promoted to
Grade 12 (ibid.).  Although petitioner was evaluated on a quarterly
basis thereafter, he was not promoted to Grade 13 until April 1983
(id. at 31a).

   2. Beginning in 1980, petitioner filed a series of administrative
complaints concerning the NSA's failure to promote him to Grade 13
(Pet. App. 23a-24a).  These administrative complaints were denied for
a variety of procedural and substantive reasons (id. at 24a).
Petitioner then filed suit against the NSA and its officials, alleging
that the NSA had failed to promote him to a Grade 13 position prior to
April 1983 because of his race and in retaliation for his equal
employment opportunity complaints (id. at 29a, 31a).

   At a trial held with respect to his claims of disparate treatment,
/1/ petitioner did not introduce any direct evidence showing that his
supervisors were motivated by any discriminatory animus or that his
promotion was delayed due to his EEO claims (Pet. App. 33a-34a).
Rather, petitioner attempted to show that the subjective evaluation
system upon which NSA relied resulted in a slower promotion rate for
black employees at Grade 12 than for white employees at Grade 12 (id.
at 32a-35a);  among other things, he introduced evidence to the effect
that, between 1980 and 1982, the NSA promoted nine white employees
whose qualifications were allegedly inferior to his (id. at 36a-45a).
/2/ In response, the NSA presented evidence purporting to show that,
during the relevant period, 63 employees in the unit in which
petitioner worked -- the "M" organization -- became eligible for
promotion to Grade 13, that 55 of these persons (including the other
four black employees in the group) were promoted ahead of petitioner,
and that the median "time in grade" for all those promoted was the
same as the median "time in grade" for the five black employees in the
unit (id. at 47a-48a;  I C.A. App. 80, 91, 96-98);  in addition, the
NSA presented testimony of various supervisors and managers to the
effect that there were a limited number of promotions available and
that all employees promoted ahead of petitioner had superior
qualifications or evaluations (Pet. App. 45a-46a, 49a-54a).

   After reviewing all of the testimony and evidence, the district
court entered judgment in favor of respondents (Pet. App. 55a).  It
rejected reliance on petitioner's graduate and law degrees, noting
that petitioner's "work was not in the critical skills area" and that
"the law degree was not a requirement for (petitioner's) work" (id. at
45a).  The court further found that "plantiff was not selected for
promotion to Grade 13 until April 1983 because the similarly situated
people in the M organization, who were promoted to Grade 13 from
October 1975 to April 1983, were properly judged to be better
qualified for promotion than the plaintiff" (id. at 54a).  Finally, it
found that "there was no casual nexus between the plaintiff's race and
the fact that although he was eligible, he was not promoted to Grade
13 until April 1983" (ibid.).

   3. In a brief per curiam opinion, the court of appeals affirmed the
judgment of the district court (Pet. App. 1a-5a).  It "review(ed) * *
* the entire record" and found that the district court's "findings of
fact were not clearly erroneous" (id. at 4a).  Nor did it find "any
error of law in connection with the legal standards applied by (the
district court)" (ibid.).

   4. The decision below is correct.  It does not conflict with any
decision of this Court or any other court of appeals.  Accordingly,
review by this Court is not warranted.

   a. Petitioner first alleges (Pet. 10-19), contrary to the decisions
of the courts below, that what he calls respondents' "vague and
arbitrary two-track promotion system" unlawfully discriminated against
black employees such as himself.  But petitioner's suggestion does not
merit review by this Court.  To the extent that petitioner is
suggesting that the courts below should have held that respondents'
subjective evaluation system had an unvalidated disparate impact on
black employees, he is raising a claim that he expressly abandoned in
the district court (Pet. App. 11a).  He cannot raise that claim for
the first time in this Court.  See Youakim v. Miller, 425 U.S. 231,
234-236 (1976) (per curiam).  And to the extent that petitioner is
suggesting (Pet. 13-14) that the courts below should have held that
this subjective evaluation system is a "camouflage" for a
pattern-and-practice of "irrational and arbitrary" disparate
treatment, he is raising an entirely fact-bound argument that was
rejected by both courts below;  accordingly, the argument does not
merit certiorari review.  Accord Goodman v. Lukens Steel Co., No.
85-1626 (June 19, 1987), slip op. 7-8.  In any event, the record
overwhelming establishes that NSA's promotion system did not have a
disparate effect on black workers and that the people who were
promoted ahead of petitioner were objectively more qualified than he.
Thus, however petitioner's suggestion is viewed, it is clearly wrong.

   b. Petitioner also errs in suggesting (Pet. 19-23) that the
district court's decision to discount the significance of his graduate
and law degrees warrants review by this Court.  The district court did
not hold that graduate and law degrees are inherently insignificant or
unimportant job qualifications.  It merely held that they were not
manifestly related to the requirements of petitioner's work (Pet.App.
45a).  This factbound conclusion, affirmed by the court below, raises
no legal question warranting review by this Court.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1987

   /1/ Petitioner expressly abandoned any claim based on a disparate
impact theory prior to trial (Pet. App. 11a).

   /2/ Concomitantly, petitioner purported to show, through the
testimony of an expert witness, that between 1979 and 1983, the
agency-wide ratio of promotions to eligibility among black Grade 12
employees was only 59% that of whites (II C.A. App. 32).  The same
expert testified that there was a substantial disparity (from 1975 to
1983) between the proportion of black Grade 12's rated "outstanding"
and the proportion of white Grade 12's rated "outstanding" (II C.A.
App. 27).