VERNE ORR, SECRETARY OF THE AIR FORCE, ET AL., PETITIONERS V. WILLIAM C. TURNER, ET AL., No. 85-177 In the Supreme Court of the United States October Term, 1985 The Acting Solicitor General, on behalf of the Secretary of the Air Force and the Director of the Office of Personnel Management, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit PARTIES TO THE PROCEEDING The current case arises from an adjudication of a claim filed by Raymond Little for an alleged violation of a consent decree entered in 1981 in settlement of a class action suit challenging civilian employment practices at Eglin Air Force Base, Florida, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The defendants to the original suit were the Secretary of the Air Force and the Director of the Office of Personnel Management. The named plaintiffs in that original suit were William C. Turner; James G. Tanner; Robert A. Lewis; Freddie L. Cason; Charles A. Parker; Flora D. Bridges; Lorenzo Jones; Martha Ann Rodgers; Fredia Copeland; Juanita Mathis; Jo Ann Valentine; James A. Skinner; Novella Lewis; George L. E. Parks; Essie E. Bethune; James C. Cherry; James Baker; Michael W. Reynolds; National Association for the Advancement of Colored People, Fort Walton Beach Chapter; and the Progressive Community Improvement Organization of Fort Walton Beach, Florida. The class, as certified by the district court, consists of "(a)ll Negroes who were employed as civilians by the Eglin Air Force Base (Florida) on January 9, 1976, or at any time thereafter, all Negroes who could have filed administrative complaints of 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" (App., infra, 36a). TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-18a) is reported at 759 F.2d 817. The order of the district court (App., infra, 21a-22a) is unreported. The orders of the special master (App., infra, 23a-34a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 19a-20a) was entered on April 18, 1985. On July 11, 1985, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including August 16, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The Fifth Amendment provides in pertinent part: No person shall * * * be deprived of life, liberty, or property without due process of law * * *. 2. Section 706(g) of the Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(g), provides in pertinent part: No order of the court shall require the * * * 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 * * * . 3. Section 717(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(a), provides in pertinent part: All personnel actions affecting employees or applicants for employment * * * in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin. 4. Section 717(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 20003-16(c), provides in pertinent part: (A)n 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. 5. Section 717(d) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16(d), provides: The provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder. QUESTIONS PRESENTED 1. Whether Section 706(g) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(g), forbids a court, when construing a consent decree entered in a suit brought under Title VII against a public employer, from awarding a preference in promotion and other relief on the basis of race to a person who is not an actual victim of the employer's discrimination. 2. Whether the Due Process Clause of the Fifth Amendment forbids a court, when construing a consent decree entered in a suit against a federal employer, from awarding a preference in promotion on the basis of race to a person who is not an actual victim of the employer's discrimination. STATEMENT 1. The case arises out of a complaint filed by respondent Raymond Little /1/ alleging that petitioners had violated the terms of a consent judgment entered on January 12, 1981. That consent judgment was entered in settlement of a class action suit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., against, inter alia, the Secretary of the Air Force, for allegedly discriminating against civilian black employees and job applicants at Eglin Air Force Base, Florida, in connection with hiring, promotion, and other employment-related matters. /2/ The class of plaintiffs certified by the district court included all blacks who had been employed at the base or who could have complained that they had been the victim of discrimination, as well as "all Negroes who may in the future apply for employment" at the base (App., infra, 36a). However, the consent judgment expressly recites that the decree "is not premised upon a judicial finding of systemic discrimination against plaintiffs or the class they represent" (id. at 37a). The judgment contained several sections, which address both the past and future conduct of the parties. For instance, the decree required the parties to make every reasonable effort to identify unsuccessful black applicants for employment at the base and blacks who would have applied, but did not, because they believed that doing so would have been futile /3/ from March 24, 1972, until the date of the judgment (App., infra, 40a-42a). The judgment also created a fund to compensate those members of the plaintiff class (id. at 42a-47a) and gave priority in hiring decisions to "100 class members * * * who have been previously rejected or dissuaded from employment" at the base (id. at 47a; see id. at 47a-50a). The defendants agreed "to make a good faith effort" to achieve and maintain during the life of the decree minimum, specified proportions of blacks for specific job categories (id. at 50a; see id. at 50a-54a). In Section X, the defendants also agreed to "make every good faith effort" to promote blacks to supervisory positions "in proportion to the percentage of blacks in the occupancy category wherein the vacancy arises" (id. at 59a; see id. at 59a-61a, 65a). The decree also created a mechanism for resolving disputes arising out of its implementation. Under Section IX, complaints that the judgment has been violated may be brought by the Plaintiffs' Monitoring Committee (PMC) before a special master, appointed pursuant to Fed. R. Civ. P. 53 (see App., infra, 58a), who is empowered to determine whether a violation has occurred and, if so, to award "all appropriate relief" (ibid.). Section VII creates specific procedures for determining when a failure to meet the goals constitutes a violation of the decree, essentially excusing such failures where the defendants have made "every reasonable effort to recruit and obtain black applicants" and "candidates could not reasonably be made available for selection opportunities" (id. at 53a). The consent judgment also establishes a guide for construction of its terms, providing that "(i)n interpreting the provisions of this Judgment which may become disputed among the parties, the law as set forth by Title VII of the Civil Rights Act of 1964 as construed by the courts, shall apply" (id. at 39a-40a). 2. a. In early 1982, respondent, an air conditioning mechanic at Eglin Air Force Base, applied for a promotion to the position of "Air Conditioning Equipment Mechanic Foreman" (App., infra, 23a). /4/ Respondent, along with the other applicants, was considered for that position by a three-person selection committee, which evaluated his qualifications on the basis of his performance evaluations and his responses to questions put to him at a personal interview (see id. at 24a-25a). /5/ Respondent was not selected, and the position was filled by a white applicant, Arthur Kelly, on the basis of his superior qualifications. /6/ b. In September 1983, the PMC filed a complaint on respondent's behalf with the special master, alleging the "(b)y not promoting (respondent) to the position (filled by Kelly), the (petitioners) failed to 'recruit, hire, and maintain' the required percentage of black employees in the Craftsman category at the supervisory level" (R.E. 51). /7/ Following an evidentiary hearing, the special master ruled in respondent's favor in an order issued on October 25 (App., infra, 23a-30a). The special master found that respondent was a member of the plaintiff class, as defined by the decree, that the position for which respondent had applied was within the scope of the consent judgment's goals, and that respondent was qualified for that position (App., infra, 24a-25a). /8/ The master also held that petitioners had violated Section X of the consent judgment, which requires petitioners to make every "good faith effort" to promote blacks to supervisory positions where the percentage of blacks in those positions was less than a certain fixed ratio (id. at 28a). /9/ Petitioners had violated the decree, the master held, by failing to inform the selection committee that the position of air conditioning foreman was listed among the "goals" of the consent judgment (ibid.). The master also rejected as legally insufficient petitioners' defense that they were entitled to select Kelly because he was more qualified than respondent, on the ground that the "good faith efforts" provision of the judgment required more of petitioners than the avoidance of discrimination (ibid.). Construing that provision to allow petitioners to select the most qualified candidate, which the master assumed was Kelly, not respondent (id. at 29a), would render that provision superfluous since the decree already forbade discrimination. However, the master did not find that respondent was denied the promotion because of his race; nor did the master find that the respondent would have been promoted "but for" the petitioners' failure properly to consider respondent's application. The master did not impose any remedy in his October 25 order. Instead, he directed the parties to resolve this issue. /10/ c. On November 28, 1983, after the parties were unable to agree upon the appropriate remedy, the master issued a second order, requiring petitioners to promote respondent to a newly vacant foreman position, and to award him retroactive seniority, back pay, and "other appropriate relief" from the date that the position was filled by Kelly (App., infra, 31a-34a). /11/ In that order, the master did not consider whether alternative remedies would have fully compensated respondent for the violation that the master had found, such as requiring petitioners to reconsider respondent for a foreman position. Rather, the master simply awarded respondent the job outright. /12/ d. Petitioners appealed the special master's October 25 and November 28 orders to the district court, which affirmed the master's orders (App., infra, 21a-22a). The district court upheld the master's finding that petitioners had violated the "good faith efforts" provisions of the consent decree, on the ground that the finding was not clearly erroneous (id. at 22a). The court also sustained the relief awarded in the master's November 28 order on the ground that it was "appropriate and supported by legal authority" (ibid.). 3. The court of appeals affirmed (App., infra, 1a-18a). At the outset, the court upheld, as not clearly erroneous, the master's finding that petitioners had violated the "good faith efforts" provisions of the decree (id. at 4a-9a). The court explained that petitioners' failure to inform the selection committee that the position was subject to the consent decree's goals, or to take a variety of other steps to ensure that respondent would be adequately considered for the position, violated the decree (id. at 6a). /13/ The court also agreed with the master that the "good faith efforts" provisions did not allow petitioners simply to select the most qualified applicant for the position, on the ground that construing the judgment in that fashion would nullify the "good faith efforts" provision (id. at 7a). In addition, the court rejected the argument that the "good faith efforts" provision of the decree was aspirational and that the master's order had construed that provision to require promotion "preferences" or "quotas" in violation of Title VII and the Fifth Amendment (App., infra, 8a-9a). In the court's view, the master had simply found as a matter of fact that petitioners had failed to exhibit good faith on the facts of this case (id. at 8a). Accordingly, the court held that it was unnecessary in this case to decide whether the master's order could be upheld if it had required that class members be afforded preferential treatment on the basis of their race (id. at 8a-9a). The court next held that the relief awarded by the master was authorized by Section IX, paragraph 4, of the consent judgment (App., infra, 58a), which empowers the master "to award all appropriate relief" for a violation of the decree (id. at 9a-10a). Petitioners had argued that the master's authority to award "appropriate relief" was limited by Section 706(g) of Title VII. The court rejected that argument, reasoning that "Title VII's remedy provisions are * * * of no assistance in determining what relief is 'appropriate' for the * * * violation of (a) consent judgment" because "Title VII deals with discrimination, not with violations of consent judgments" (App., infra, 10a). The remedial provisions of Title VII, the court thus held, are "of no assistance in determining what relief is 'appropriate' for the Secretary's violation of the consent judgment * * *" (ibid.) For the same reason, the court rejected petitioners' argument that respondent was not entitled to be awarded a promotion absent a finding that he would have received the promotion "but for" the violation of the decree, as Title VII requires in cases of discrimination (ibid.). /14/ Finally, the court rejected the argument that, given the absence of any finding that respondent was a victim of discrimination, the remedy ordered by the master violated Section 706(g) of Title VII, as recently construed in Firefighters Local Union No. 1784 v. Stotts, No. 82-206 (June 12, 1984) (App., infra, 10a-17a). The court found that Stotts was distinguishable from this case for three reasons. First, unlike this case, Stotts involved a layoff order infringing upon seniority rights, which are protected under Section 703(h) of Title VII (42 U.S.C. 2000e-2(h)) (App., infra, 12a). Second, unlike the layoff order at issue in Stotts, the order in this case did not injure any innocent third party, because no one had come forward to complain of the master's order (App., infra, 12a-13a). The third and "most significant factor" distinguishing this case from Stotts, according to the court of appeals, was that the parties in this case had "voluntarily" adopted this consent judgment (App., infra, 13a). Stotts was thus inapposite because Section 706(g) "merely limits the power of a court to order certain remedies under Title VII in the absence of a finding that the promoted individual was a victim of discrimination" and "does not limit the remedies to which parties may voluntarily agree under a consent judgment" (App., infra, 14a). Relying chiefly upon the Sixth Circuit's decision in Vanguards v. City of Cleveland, 753 F.2d 479 (1985), petition for cert. pending, No. 84-1999, and United Steelworkers v. Weber, 443 U.S. 193 (1979), the court held that "(a)s Weber made clear, Section 706(g) does not bar voluntary affirmative action agreements, such as the consent judgment in this case; it is merely a limit on what a court may 'require' in a coercive action under Title VII" (App., infra, 17a). Because the master's order was comparable to the affirmative action plan upheld in Weber, the court held, that order did not violate Section 706(g) as construed in Stotts (App., infra, 17a). REASONS FOR GRANTING THE PETITION This case presents several questions of substantial and recurring doctrinal and practical importance regarding the limitations upon the remedial authority of the federal courts in the implementation of consent decrees in litigation involving public employers brought under Title VII of the Civil Rights Act of 1964 and the Fifth and Fourteenth Amendments. Consent judgments, like the one at issue here, are frequently used to settle lawsuits in Title VII cases. This Court recently discussed the limitations that Section 706(g) of Title VII imposes upon a court's remedial authority under a consent decree in Firefighters Local Union No. 1784 v. Stotts, No. 82-206 (June 12, 1984). In this case, the court of appeals held that the term "all appropriate relief," which is surely found in most, if not all, consent jugments, empowers a court to remedy violations of a consent decree in a manner that the court of appeals conceded could not have been done under Section 706(g) of Title VII. The court also ruled that Section 706 (g) is altogether inapplicable to a court's exercise of remedial authority under a consent judgment in litigation brought under Title VII. Finally, the court upheld the award of relief under a consent decree to a person who was not a victim of discrimination without at all considering the effect that such an order would have upon the equal protection rights of innocent third parties. The effect of that ruling is to empower the federal courts to rely upon the terms of a consent decree as the basis for a court's remedial powers in derogation of the precise limitations upon the court's authority that Congress has imposed and that this Court has recognized. The court of appeals' ruling thus clearly warrants review by this Court. We do not believe, however, that plenary review of this case is the best course at this time. The question presented by this case regarding the proper scope of relief under Section 706(g) of Title VII is essentially identical to the question presented in Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland (Vanguards), petition for cert. pending, No. 84-1999, upon which the court of appeals in this case relied (App., infra, 14a 17a), and in Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC, petition for cert. pending, No. 84-1656. /15/ We have filed an amicus curiae brief in Vanguards urging the Court to review the judgment of the court of appeals in that case, and we have filed a response to the petition in Local 28 in which we have argued that the petition in that case should be held and disposed of as appropriate in light of Vanguards. We therefore do not believe that it is necessary at this time for the Court also to grant plenary review of this Title VII question as it is presented in this case. Instead, we request that the Court hold the petition in this case pending its disposition or decision in Vanguards. Should the Court conclude that Vanguards (or Local 28) is not an appropriate vehicle to resolve this Title VII issue, we urge the Court to grant review in this case. Similarly, the constitutional question presented by this case is similar to the issue currently pending before the Court in Wygant v. Jackson Bd. of Educ., cert. granted, No. 84-1340 (Apr. 15, 1985), in which we have also participated as an amicus curiae. /16/ For reasons similar to those given above, we request that the Court hold the petition in this case pending its decision in Wygant. Accordingly, we refer the Court to the discussion of the Title VII and constitutional questions that is contained in our briefs in Vanguards (at 6-20) and Wygant (at 6-30) /17/ and add only the following observations that are pertinent to this case: 1. The Court's decision in Stotts, like its earlier rulings in Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), and Teamsters v. United States, 431 U.S. 324 (1977), recognized that Section 706(g) of Title VII has as its underlying policy the award of "make-whole relief only to those (persons) who have been actual victims of discrimination" (Stotts, slip op. 17; accord, slip op. 5-6 (O'Connor, J., concurring)). /18/ The court of appeals did not disagree with that principle. Rather, the court held that it was inapplicable here, on the ground that the master's authority to award respondent a promotion stemmed from the consent decree, not from Section 706(g), and that in three respects the authority bestowed upon the master by the consent judgment is not limited by Section 706(g) (App., infra, 9a-17a). That analysis is flawed in each respect. a. The first distinction offered by the court of appeals between this case and Stotts was that Stotts is limited to orders that infringe upon seniority rights (App., infra, 12a). But as we explained in our amicus curiae brief in Vanguards (at 10-11), Section 703(h) of Title VII, 42 U.S.C. 2000e-2(h), protects bona fide seniority systems; that provision is therefore directly relevant to the question of liability and only indirectly relevant to remedial questions. By contrast, Section 706(g), 42 U.S.C. 2000e-5(g), broadly governs any order entered in a Title VII case and focuses directly upon the remedies available once liability has been established or a consent judgment has been entered. Stotts, slip op. 16-17; see Franks, 424 U.S. at 758. Moreover, the opportunity to obtain a promotion may be as important to employees as seniority rights. The court of appeals therefore erred by limiting Stotts in this fashion. b. The court of appeals also held that Stotts was inapplicable because the master's November 28 order did not disturb the interests of any innocent third party (App., infra, 12a-13a). But that ruling overlooks the fact that, but for that order, the Air Force would have accepted applications in a competitive process for the position that was awarded to respondent. See A.F. Reg. 40-335 (Nov. 12, 1980). The court of appeals thus failed to recognize that the master's November 28 order itself foreclosed innocent third parties from applying for that position. c. Finally, the court of appeals held that the "most significant factor" distinguishing this case from Stotts was that petitioners had agreed to the entry of this consent decree, which the court likened to an affirmative action program (App., infra, 13a, 15a). Because petitioners had agreed to the terms of this decree, the court explained, the special master's orders, which simply required petitioners to adhere to their end of the bargain, was not a "coercive" order of the type with which Section 706(g) is concerned (App., infra, 15a-17a). That analysis is both factually and legally unsound. i. The courtS error stems in part from its failure to distinguish between the consent judgment and the master's October 25 and November 28 orders. Although petitioners voluntarily entered into the consent decree, by so doing petitioners did not thereby consent to any and all orders that the special master might enter under the decree. The judgment empowers the master to award "all appropriate relief" for a violation of its terms. The only violation of the decree found by the master was petitioner's failure to inform the selection committee that the position at issue was covered by the "goals" of the consent judgment. We agree that the committee should have been so informed to ensure that respondent was carefully considered for the position. /19/ However, it is well settled that the remedial powers of the federal courts extend no further than required by the nature and extent of the legal infraction involved. See, e.g., General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 398-399 (1982); Hills v. Gautreaux, 425 U.S. 284, 293-294 (1976). The appropriate remedy in this case is to require petitioners to reconsider respondent for the position and, if he is selected, to award him appropriate "make whole" relief, not to award him a promotion outright. /20/ Moreover, the court of appeals failed to consider the entire consent judgment when construing the term "appropriate relief." See Stotts, slip op. 11-12. The consent decree expressly recites that Title VII "shall apply" to resolve disputed provisions of the decree (App., infra, 39a-40a) and thereby incorporates the limitations that Section 706(g) imposes upon the master's remedial authority. The consent decree itself therefore limits the relief that can be awarded under its terms to what Section 706(g) allows. Indeed, the term "all appropriate relief" contained in the decree is similar to the 1972 amendment to Section 706(g) -- which added to the statute the term "any other equitable relief as the court deems appropriate" (42 U.S.C. 2000e-5(g)) -- that the Court held in Stotts (slip op. 18-19 n.15) did not expand "a court's authority to award make whole relief" (id. at 18). Finally, the court of appeals' erroneous construction of the decree is aggravated by the fact that Title VII provides "the exclusive judicial remedy for claims of discrimination in federal employment" (Brown v. GSA, 425 U.S. 820, 835 (1976)). The court of appeals thus erred by construing the term "all appropriate relief" to endow the master with broader remedial power than Section 706(g) provides. Accordingly, to the extent that the court appeals upheld the master's November 28 order on the ground that it was not "coercive" because petitioners had agreed in advance to relief of this sort, the court read far more into the consent judgment than its language will allow. ii. The court of appeals' reasoning is more deeply flawed, however, because of the court's erroneous distinction between the remedial authority that a court enjoys when enforcing a judgment entered after a finding of liability and a judgment entered as a consent decree. In the court of appeals' view, Section 706(g) limits the relief that a court may award pursuant to a finding of liability, but does not restrict the remedies that a court may impose under a consent decree. The remedial provisions of Title VII, according to the Court, thus have no bearing upon the power that a consent judgment may bestow upon a court. App., infra, 16a-17a. That reasoning is plainly in error. Most importantly, neither the text nor the legislative history of Section 706(g) supports the proposition that an order stemming from a consent decree stands on a different footing than an order that is entered following a judgment on the merits. See Stotts, slip op. 16-19. The policy underlying Section 706(g) -- to provide "make-whole" relief only to victims of discrimination (Stotts, slip op. 17) by slotting them into their "rightful place" in the employment fabric (Teamsters, 431 U.S. at 372) -- likewise does not support the court of appeal's distinction. And an order like the one at issue here can disturb "the competing interests of * * * innocent employees * * * and the employer" (Stotts, slip op. 5-6 (O'Connor, J., concurring); Ford Motor Co. v. EEOC, 458 U.S. 219, 239-240 (1982); see page 15 note 18, supra) to as great an extent as one entered pursuant to a finding of liability after a trial on the merits. Indeed, to the extent that Section 706(g) reflects the "policy" that the interests of innocent third parties must be taken into account when courts formulate relief under Title VII (see Stotts, slip op. 16, 20 n.17), the court of appeals' reasoning is unsound even on its own terms. Accordingly, the appropriate inquiry is not limited to the question whether the master's November 28 order is consistent with the terms of the consent judgment and with the substantive policies of Title VII; an essential part of the analysis is whether that order may properly issue consistently with Section 706(g). /21/ Moreover, under the court of appeals' rationale, the parties to a consent decree may endow a district court with remedial powers concededly in excess of -- or directly contrary to -- those powers that Congress has authorized, so long as the resulting decree is not inconsistent, in the court's words, with any "substantive policy of the underlying statute" (App., infra, 16a). Whatever the merits of that distinction where no third-party rights are involved, that distinction has no application to this case, because the interests of innocent third-parties must be taken into account when courts devise remedies under Title VII. A consent judgment entered in a Title VII suit thus cannot be treated as a simple contract between two parties. To be sure, a consent decree has some of the attributes of a contract (see United States v. ITT Continental Baking Co., 420 U.S. 223, 236 n.10 (1975)), but it is nonetheless a judgment backed by the coercive power of the court (see Pope v. United States, 323 U.S. 1, 12 (1944); United States v. Swift & Co., 286 U.S. 106, 115 (1932); cf. Carson v. American Brands, Inc., 450 U.S. 79, 83-84 (1981)). In that respect, the parties to a lawsuit cannot by agreement confer remedial authority upon a federal court beyond the limits fixed by Congress (see System Federation No. 91 v. Wright, 364 U.S. 642 (1961)) any more than they can confer subject matter jurisdiction upon the court (see Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)) or demand that the court enforce a contract that is substantively invalid (see 29 U.S.C. 107 (outlawing "yellow dog contracts")); cf. Shelly v. Kraemer, 334 U.S. 1 (1948)). The Court expressly reaffirmed that principle in Stotts, holding that the statute underlying a consent decree provides not only the source but also the extent of a court's authority to enforce the terms of its judgment. Slip op. 13 n.9, 20 n.17; accord, slip op. 3 (O'Connor, J., concurring). 2. The court of appeals' decision also raises a substantial question under the Fifth Amendment Due Process Clause, as that provision applies the concept of equal protection to the federal government. /22/ To the extent that the court of appeals is correct that the consent decree required racial preferences or that such a requirement may be viewed as voluntary action by virtue of petitioners' consent, the court of appeals' construction of the decree places the federal government in the same position as the public employer in Wygant v. Jackson Bd. of Educ., supra. In both cases, the public employer, responding to allegations of past discrimination, would have undertaken to make race a determinative factor in employment decisions. Moreover, in both this case and Wygant, the courts of appeals relied in part upon this Court's decision in United Steelworkers v. Weber, supra, as a basis for upholding the consent decree. In that respect, the court of appeals' construction of the decree squarely raises the question, expressly reserved in Weber (443 U.S. at 200) and similar to the one currently before the Court in Wygant, of the constitutionality of non-victim-specific, race conscious hiring or promotion preferences by public employers. The position of the United States as to the constitutionality of such decisions is fully set out in our amicus cruiae brief in Wygant. Nor does the fact that such preferential treatment is embodied in a consent judgment that was ratified by a court lessen the appropriate degree of scrutiny. On the contrary, it is firmly settled that the judicial branch is subject to the same equal protection constraints that govern the executive and legislative departments. See e.g., Palmore v. Sidoti, No. 82-1734 (Apr. 25, 1984); Barrows v. Jackson, 346 U.S. 249 (1953); Shelly v. Kraemer, supra. Nor does the aspect of a decree as a remedial resolution of an allegation of discrimination by an employer relieve this objection, since to the extent that a consent decree is remedial it may not travel outside the bounds of what is necessary to remedy the wrong, i.e., providing relief to actual victims of discrimination. See, e.g., General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. at 399; Milliken v. Bradley (Milliken II), 433 U.S. 267, 280-282 (1977). Since there was no finding below that respondent was denied a promotion because of his race, the master's November 28 order cannot be sustained on the ground that it compensated an identified victim of discrimination for such a harm. To the extent that the master's November 28 order can be taken less as a construction of the consent decree itself and more as a remedy ordered for a violation of what the master conceived to be petitioners' duty under the decree fairly to consider black applicants, the same Fifth Amendment issue arises, but only in connection with the master's November 28 order. Concluding that petitioners have violated their obligation under the consent decree and that the decree -- as we contend -- does no more than establish procedures to assure fair consideration of minority applicants, then the remedy for such a violation is to accord the victim the procedure and consideration to which he was entitled. See General Bldg, Contractors Ass'n v. Pennsylvania, 458 U.S. at 399 (the remedial power of the federal courts extends no further than necessary to remedy a legal infraction). By ordering his direct promotion, without allowing others to compete for the position, as a remedy for such a violation, the master's November 28 order conflicts with the equal protection component of the Fifth Amendment, because that order, which prefers respondent over other applicants on the basis of his race, is not precisely "tailored" to remedy the wrong that was done and cannot be shown to be necessary to serve a compelling state interest in remedying past discrimination. See U.S. Brief as Amicus Curiae Supporting Petitioners at 26-30, Wygant. The court of appeals thus construed both the consent decree and the master's October 25 and November 28 orders in a manner that raises serious equal protection questions not previously addressed by this Court. Those questions, however, are best addressed only after the Court has determined that Congress clearly intended to authorize the courts to award such relief. That is plainly not the case here. In this case, the court of appeals adopted an erroneous construction of a consent decree in a manner that conflicts with the terms of Section 706(g) of Title VII, the principles underlying that provision, as recently discussed in Stotts, and the need to ensure, as a matter of equity, that the interests of innocent third parties are not disregarded when a court crafts relief in Title VII litigation. In the absence of clearer evidence than the court of appeals was able to muster that Congress intended to allow a court to engage in the type of balancing necessary to make these decisions, the courts below should have construed Section 706(g) as prohibiting the master's November 28 order and thereby avoid creating the difficult constitutional issue raised by this case. Cf. Stotts, slip op. 11-12, 20. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland (Vanguards), petition for cert. pending, No. 84-1999, and Wygant v. Jackson Bd. of Educ., cert. granted, No. 84-1340 (Apr. 15, 1985). However, if the petition for a writ of certiorari in Vanguards is denied, the petition in this case should be granted. Respectfully submitted. CHARLES FRIED Acting Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General PAUL J. LARKIN, JR. Assistant to the Solicitor General ROBERT S. GREENSPAN MARK W. PENNAK Attorneys JULY 1985 /1/ Although there were numerous parties involved in the original class action suit and the class defined by the district court includes future job applicants, Raymond Little is the only claimant involved in this particular suit. /2/ The consent judgment is reprinted in the Appendix, infra, 35a-69a. /3/ This determination was to be made in accordance with the guidelines established by Teamsters v. United States, 431 U.S. 324 (1978), and related cases (App., infra, 41a-42a). /4/ The position was originally designated as a temporary position, because it was listed among the "critical military skills" category of positions, which cannot be filled by civilian personnel on a permanent basis. See 1 Tr. 65-66; 3 Tr. 222-225. After that position had been filled, it was taken off that list, and the person then holding the job (Arthur Kelly) was elevated to permanent status. See, e.g., 1 Tr. 66-68, 79-80; 3 Tr. 166-167, 225-226. /5/ See also, e.g., 3 Tr. 139-140, 158-159, 177-178, 196-197; 10/7/83 Tr. 3-4, 5-7. /6/ The master assumed, but did not decide, that Kelly was more qualified for the position than respondent (App., infra, 29a). However, both Howard Brooks, the selection committee chairperson, and Sgt. James Sneed, another member of the committee, testified that Kelly was the committee's unanimous choice for the position, on the ground that he was the most qualified applicant. 3 Tr. 140-143, 181-182, 187. /7/ The complaint also alleged that petitioners had also violated the decree by failing to promote respondent to another foreman position ultimately given to a different applicant, Gerald Dickey (R.E. 2). "R.E." refers to the record excerpts filed in the court of appeals. /8/ The special master reserved decision on the question whether temporary positions were covered by the consent judgment, but held that this position was subject to the decree, because petitioners had "admitted that at some point in time the position should have been subject to the Consent Judgment goals" (App., infra, 27a). /9/ The consent judgment set a hiring goal of 6% for the craftsman category (App., infra, 51a). Under Section X, petitioners agreed to make "every good faith effort" to fill supervisory positions "in proportion to the percentage of blacks in the occupational category wherein the vacancy arises" (id. at 61a). The special master found that, during the relevant time period, the number of blacks in the craftsman category was 5.67%, while the number of black supervisors in that category was 4.46% (id. at 25a). /10/ Given his conclusion that petitioners had violated the consent decree by selecting Kelly rather than respondent, the master held that it was unnecessary to decide whether petitioners had violated the consent judgment by selecting Dickey rather than respondent for a different supervisory position (App., infra, 29a). /11/ On November 8, the master orally directed petitioners to place respondent in that position (App., infra, 32a). The master's November 28 order (which was dated November 14, but not entered until November 28) was entered nunc pro tunc for November 8 (id. at 34a). /12/ The master also denied petitioners' motion for a stay of his November 28 order (App., infra, 32a-34a). /13/ The court did not define the term "good faith efforts" for purposes of the decree, but stated that petitioners could have taken a variety of procedural steps to satisfy that requirement (App., infra, 8a). As the court explained (ibid.), "(t)he Air Force could have notified the supervisors that the consent judgment goals applied to the vacancy, it could have taken the time to interview Little thoroughly and to review his personnel file to learn of his supervisory experience, it could have included minority members in the selection committee, it could have evaluated carefully its selection criteria to determine if the extra years of experience of the individual selected really made him 'better qualified' that Little with his better education and ample experience." The master made no findings in this regard, however. /14/ See, e.g., East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403-404 n.9 (1977) (employer may prove that plaintiff would not have been hired or received a promotion notwithstanding his proof of discrimination); Teamsters, 431 U.S. at 369 n.53 (same). /15/ Vanguards presents the question whether a district court may enter a consent judgment that explicitly bestows promotional preferences based upon race on persons who are not proven victims of discrimination. (Vanguards also presents the question whether a consent judgment may be entered over the objection of a party whose interests are adversely affected by the decree.) Local 28 presents a similar issue, but the case comes to this Court in the context of a contempt citation. This case presents the question whether a court may construe a disputed provision of a consent decree that does not explicitly grant preferences based upon race to non-victims in a manner that has that effect. /16/ Whereas Wygant involves a layoff preference based on race, this case involves a preference in promotion based on race. /17/ We have served a copy of our briefs in Vanguards, Local 28, and Wygant upon counsel for respondents. /18/ That conclusion, as Stotts explained (slip op. 16-19), derives from the language, legislative history, and purposes of Section 706(g). Furthermore, the principle that Section 706(g) limits a court's equitable authority to ordering make-whole relief for the actual victims of discrimination is also consistent with both "the principal focus of the statute" which is on "the protection of the individual employee" (Connecticut v. Teal, 457 U.S. 440, 453-454 (1982); see also Arizona Governing Comm. v. Norris, 463 U.S. 1073, 1083-1086 (1983) (Marshall, J., concurring in the judgment in part); Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 708-709 (1978)), and the equitable policy, reflected in the statute, that courts, in crafting relief under the Act, must consider the legitimate interests of "'innocent third parties'" (Ford Motor Co. v. EEOC, 458 U.S. 219, 239 (1982) (citation omitted); see also Stotts, slip op. 5-6 (O'Connor, J., concurring); Norris, 463 U.S. at 1110 (O'Connor, J., concurring); Manhart, 435 U.S. at 722-723; Teamsters, 431 U.S. at 371-376). /19/ Although the court of appeals stated that petitioners had failed "to make any effort to meet the consent judgment goal in filling this vacancy (App., infra, 8a; see page 9 note 13, supra), the only finding that the master made was that petitioners had failed to notify the selection committee that this position was covered by the consent decree's goals. /20/ We are informed by the Air Force that a grievance procedure and criteria for awarding promotions are contained in a collective bargaining agreement that was not made a part of the record below and was not referred to by any of the lower courts. /21/ Nor can the master's November 28 order be sustained on the ground that it awarded respondent relief that petitioners could themselves have given him under an affirmative action program. The short answer to this argument, like the one given in Stotts (slip op. 20), is that petitioners did not award petitioner this promotion under an affirmative action program; the promotion was, instead, awarded by a court "order" entered to enforce a consent decree in a suit brought under Title VII, as to which Section 706(g) in terms applies. In addition, the 1972 amendments to Title VII, which the court of appeals adverted to but did not rely upon (App., infra, 12a n.2), are inapposite. Stotts expressly ruled that these amendments did not modify Section 706(g). Slip op. 18-19 n.15. /22/ The court of appeals reasoned (App., infra, 9a-10a) that the master's orders did not implicate the equal protection rights of innocent third parties because the master's construction of the "good faith efforts" provisions of the decree "does not require an absolute promotion preference for class members" (id. at 9a). The court failed to recognize, however, that the master's October 25 and November 28 orders raised an equal protection issue in two separate ways: first, by construing the "good faith efforts" provisions of the decree to deny petitioners the right to defend against an alleged violation of the decree on the ground that they had promoted the most qualified applicant; second, by awarding a promotion to respondent, regardless of the relative qualifications of other eligible employees, in the absence of a finding that he was denied the promotion because of his race or that he would have received that promotion "but for" proven discrimination (see pages 6-8, supra). In these circumstances, the sole possible basis for awarding respondent such preferential treatment was his race, not his status as a victim of discrimination. Such differential treatment in the allocation of government benefits on the basis of "racial or ethnic criteria" (Fullilove v. Klutznick, 448 U.S. 448, 472, 480 (1980) (plurality opinion)) indisputably raises an equal protection issue concerning the rights of those persons who were passed over the relevant benefit. APPENDIX