This is the second time this case has been before us. In Howard v. McLucas,
I. BACKGROUND
A. Facts
Warner Robins, which is part of the Air Force Logistics Command, is located at Robins Air Force Base near Macon, Georgia. It employs 15,000 civilians to manage logistics for assigned aircraft and commodities, repair aircraft and technologies, receive, store, issue, and transport spare parts and systems, and award annual contracts for Air Force procurement responsibilities. Howard v. McLucas,
Warner Robins’ blue collar employees are classified under the Wage Grade (WG) pay plan, which has fourteen grade levels.
Consonant with the operation of a skills locator system, employees at Warner Robins do not apply for promotions and are not notified that they have been considered for vacancies unless they are at the top of a register. The E246 and PPRS systems do not maintain records of employees who are initially considered for a specific promotion. The systems only generate records of candidates who are found to be qualified. Id. at 1509. Under both systems, only the most current supervisory appraisals are used, and as they are updated, the old appraisals are destroyed. There are therefore no existing supervisory appraisals for the 1971-1978 period. Record, Vol. 5, Tab 285 at 8. Because test scores are maintained only for current examinations and many examinations used by Warner Robins prior to 1979 have been discontinued, test score data for the 1971-1978 period is incomplete. Id.
B. Proceedings Leading to a Consent Decree
In 1975 the plaintiffs
Statistics compiled by the plaintiffs “demonstrated that black employees were promoted in proportions less than their rеpresentation in the workforce or in lower grades.” Howard II,
In 1984, after years of litigation, the parties entered into a consent decree, which was meant to ensure “that black employees were promoted internally [at Warner Robins] on a fair and equal basis.” Consent Decree, Record, Vol. 4, Tab 256 at 5.
C. The Challenge to the Consent Decree
The district court, after denying the in-tervenors leave to intervene, see Howard v. McLucas,
[The] [i]ntervenors are limited to challenging the portion of the remedy that reserves 240 target position promotional opportunities to [the plaintiffs]. They have no standing to contest the existence of past discrimination or any other issue concerning the merits of the dispute and no standing to contest the backpay award or veto remedial measures in general. The only issue [the] intervenors shall be permitted to raise on remand is their contention that [they] will not be considered for promotion to the 240 target positions on an equal basis with non-discriminatee black employees solely on account of race.
Howard III,
On remand, the intervenors mounted a two-pronged attack on the promotional relief in the consent decree. First, they argued that there was no basis for the promotional relief because the plaintiffs had not demonstrated any discrimination by the government and the government had not admitted any discrimination on its part. Second, they argued that even if discrimination had been shown, the promotional relief was unlawful.
Before addressing the intervenors’ arguments, the district court held that the propriety of the promotional relief had been mooted to the extent that the targeted positions had been filled. According to the district court, by the time we issued our opinion in Howard III, 169 of the positions had been filled. Howard IV,
D. The Intervenors’ Standing
Before commencing a discussion of the constitutionality of the promotional relief portion of the consent decree, we feel it incumbent upon us to address the confusion that the intervenors’ challenge has engendered. Traditionally, a party seeking intervention must demonstrate a “direct, substantial, legally protectable interest in the proceeding” before that party will be granted intervenor status. See, e.g., Athens Lumber Company, Inc. v. Federal Election Commission,
As noted above, our earlier opinion granting the right to intervene recognized that the intervenors were not relieved of their burden of demonstrating that the promotional remedy would have an adverse impact on their promotional expectations.
As of July, 1984, there were 137 Inter-venors identified by name. Defendants have presented evidence that of the 137 named Intervеnors, forty-three (43) have subsequently been promoted ...; forty (40) are not eligible for promotion to any of the target positions; one (1) claimed eligibility for a position that she already held; five (5) subsequently requested changes to lower grades in other occupations, thereby indicating that they did not aspire to one of the target positions, and ten (10) are no longer employed by Warner Robins. Intervenors do not dispute these figures, rather, they merely assert that they are irrelevant so long as one Intervenor is eligible for a target position.
The intervenors’ above argument to the district court is misplaced because they did not present any evidence that any one of them otherwise eligible for a target position was denied that position. Employment, in and of itself, does not confer the right to challenge an affirmative action plan. For example, in In re Birmingham Reverse Discrimination Employment Litigation,
Although the intervenors in this case argue they have suffered injury because those among their ranks who received promotions necessarily received them later than they normally would have due to the structure of the promotional remedy, none of the intervenors have presented evidence on the issue. In addition, the intervenors’ claim of delay is undercut in light of the fact that all those who have been promoted have received their promotions within a short time period resulting in a marginal effect on whites, if any. We recognize, however, that a fortiori some delay may have occurred. See Howard IV,
II. THE MERITS
A. Standard of Review
In the past several years, the Supreme Court has had three opportunities to address the constitutionality of race-conscious programs or orders.
the disparities between the two tests do not preclude a fair measure of consensus. In particular, as regards certain [governmental] interests commonly relied upon in formulating affirmative action programs, the distinction between a “compelling” and an “important” governmental purрose may be a negligible one. The Court is in agreement that, whatever the formulation employed, remedying past or present racial discrimination by a [government] actor is a sufficiently weighty [governmental] interest to warrant the remedial use of a carefully constructed affirmative action program.
Wygant,
We need not delineate what standard of review should be employed, for we find that on this appeal the promotional relief in the consent decree “survives even strict scrutiny analysis: it is ‘narrowly tailored’ to serve a ‘compelling governmental purpose.’ ” Paradise,
B. Compelling/Important Interest
The consent decree in this case “must be considеred equivalent to a voluntary affirmative action plan for purposes of equal protection analysis.” Birmingham Reverse Discrimination,
[t]he imposition of a requirement that public employеrs make findings that they have engaged in illegal discrimination before they engage in affirmative action programs would severely undermine public employers’ incentive to meet voluntarily their civil rights obligations. This result would clearly be at odds with [the Supreme] Court’s and Congress’ consistent emphasis on “the value of voluntary efforts to further the objectives of the law.” The value of voluntary compliance is doubly important when it is a public employer that acts, both because of the example its voluntary assumption of responsibility sets and because the remediation of governmental discrimination is of unique importance.
Id. at 1855 (O’Connor J., concurring in part and concurring in the judgment). Thus, when a public employer’s affirmative action program or a consent decree providing race-conscious relief is challenged as unconstitutional, the district court “must make a factual determination that the [public] employer had a strong basis in evidence for its conclusion that remedial action was necessary.” Id. at 1848. Once the public employer
introduces its statistical proof as evidence of its remedial purpose, thereby supplying the [district] court with the means for determining that [it] had a firm basis for concluding that remedial action was appropriate, it is incumbent upon the nonminority [employees] to prove their case; they continue to bear the ultimate burden of persuading the [district] court that the [public employer’s] evidence did not support an inference of prior discrimination and thus a remedial purpose, or that the plan instituted on the basis of this evidence was not sufficiently “narrowly tailored.”
Id. at 1856 (O’Connor, J., concurring in part and concurring in the judgment).
Assuming that our limited remand allowed the intervenors to challenge the legal effect of the plaintiffs’ statistical evidence, we hold that the government had a sufficient basis for concluding that remedial action was necessary. The district court’s finding that the plaintiffs had established a prima facie case of discrimination, Howard IV,
The intervenors argue that a showing of past discrimination must precede the implementation of the promotional relief and that this showing may be made only through the employer’s own admittance of such discrimination or through a judicial finding of past discrimination. The inter-venors argue that there was an insufficient predicate for the relief in this case because the consent decree contained a denial of liability and because Birmingham Reverse Discrimination,
First, as noted above, Wygant demonstrates that an employer’s denial of liability in the consent decree does not pre-
Second, the footnote in Birmingham Reverse Discrimination, relied on by the in-tervenors, is inapposite and indeed irrelevant to the issue presented in this case. The footnote merely states that no judicial determination of discrimination had been made in that case, thereby distinguishing the affirmative action consent decree at issue in that case from court orders requiring affirmative action to remedy past discrimination. The footnote did not address the effect of a denial of liability in a consent decree nor did it state that a judicial determination of discriminаtion was a necessary component of a constitutional consent decree. We therefore hold that the government had a compelling and/or important interest in taking remedial action because it had sufficient evidence to justify a conclusion that there had been prior discrimination against blacks at Warner Robins.
C. Narrowly Tailored
To satisfy strict scrutiny, the promotional relief in the consent decree must be narrowly tailored. As we previously explained, the promotional relief provides that 240 qualified plaintiffs, who were employed at Warner Robins during the 1971-1979 period and are listed in special promotion registers, are to be promoted into 38 target positions. The promotions from this list alternate with promotions from the general list so that every other promotion to the target positions is fillеd from the special promotion registers. In determining whether the promotional relief is appropriate, we must look to several factors. These factors include the “necessity for the relief and the efficacy of alternative remedies,” the “flexibility and duration of the relief, including the availability of waiver provisions,” the “relationship of numerical goals to the relevant labor market,” and the “impact of the relief on the rights of [the intervenors].” Paradise,
1. Necessity for particular relief.
The district court determined that the promotional relief was the only way of providing the “full relief necessary to remove promptly the remaining vestiges of discrimination at Warner Robins,” especially in light of the decade-long delay in the case, and noted that it had not been presented with any other less intrusive approach that might provide full rеlief to the plaintiffs within a reasonable time. Howard IV,
The intervenors contend that the theory behind the number of promotions which are
The intervenors also argue that the promotional relief was unnecessary because other remedial alternatives were available. According to the intervenors, the relief could have been spread out over a longer period of time and double promotions (i.e., promoting off both the regular register and the special promotion register) could have been used. These alternatives, however, are not feasible because they do not place the plaintiffs in their rightful place or do not do so as expeditiously.
2.Flexibility of relief.
The flexibility and short duration of the promotional relief cannot seriously be called into question. First, the relief does not prevent white employees from being promoted to the affected wage grades because promotions to qualified plaintiffs alternate with general promotions so that every other promotion to a targeted position is from the special promotion registers. White employees are at most delayed in receiving a promotion to a limited number of specified positions. Second, to be promoted under the terms of the consent decree, the plaintiffs must meet certain qualification criteria. To be included on the special list the class member hаd to (1) “first meet the normal, basic eligibility requirements for the position sought; (2) the class member must have higher supervisory ratings in late 1984 than other blacks evaluated by the same supervisor; and (3) the seniority of the employee as determined by his service computation date must be considered.” Howard IV,
3.Numerical goals.
The relationship of the numerical goal of the promotional relief to the percentage of blacks in the labor force is not a relevant factor in this case. The 240 special promotions do not represent or achieve any aggregate proportionality. Once the 240 promotions are made, the promotional relief ceases, regardless of the percentage of blacks or whites in higher wage grades.
4.Impact of the relief.
We agree with the district court that the impact of the promotional relief on the intervenors is “relatively diffuse.” Ho
Furthermore, the intervenors and other white employees who are delayed in possible promotions to the target positions are still eligible for other promotions. The 169 promotions that were made from December of 1984 to October of 1986 comprised only 4.3% of the promotions made at Warner Robins during that period of time. Howard IV,
The intervenors assert that the promotional relief is not diffuse because it applies only to 38 target positions at Warner Robins and therefore burdens a small segment of the workforce. Brief for Inter-venors at 43. We disagree. As the government pointed out in the district court, over 8,000 whites are qualified for promotions to the target positions. Government’s Memorandum in Opposition to Intervenors’ Mоtion to Vacate Promotional Provisions of Consent Decree, Record, Vol. 7, Tab 323 at 25. See Workforce Statistics Exhibit, Index #275 at E2-3 (indicating the number and percentage of black and nonblack employees qualified for promotions to each of the 38 target positions). The burden imposed by the promotional relief does not fall upon a narrow segment of the workforce. Putting aside the numbers we have just mentioned, the intervenors’ argument proves too much. If the promotional relief extended to all positions at Warner Robins, thereby satisfying the intervenors’ concerns, it would be criticized on the ground that it was not narrowly tailored because it was not limited to those positions in which the plaintiffs had been denied promotions. Given the difficulties inherent in fashioning a proper remedy in this case, the promotional relief strikes the proper balance.'
5. Actual victims.
The intervenors argue that the best procedures were not used to determine which black employees were discriminatorily denied promotions. As we noted in Part I.A., due to the nature of Warner Robins’ promotion system, there are no records that would permit such identification. It would also have been futile to inquire which of the plaintiffs applied for promotions, since all employees at Warner Robins are initially considered for all vacancies without having to apply for them. The district court’s finding that the best method of determining the actual victims of discrimination at Warner Robins was utilized in the consent decree, Howard IV,
III. TITLE VII CLAIM
The Supreme Court has held that Title VII’s limits on a public employer’s adoption of affirmative action programs or race-conscious relief embodied in consent decrees do not extend as far as those of the Constitution. See Johnson v. Transportation Agency,
IV. CONCLUSION
We acknowledge that the two legal grounds upon which we base our opinion may be considered dicta. The intervenors’ argument that the plaintiffs’ showing of past discrimination was insufficient to overcome the intervenors’ Fifth Amendment rights was arguably foreclosed by our opinion in Howard III. To foreclose that argument, we have answered it.
The remand in Howard III as we interpret it gave intervenors the opportunity to prove that implementation of the decree would have an adverse impact on them and if so intervenors could attack the remedial provisions awarded to plaintiffs. Although intеrvenors failed to show any adverse impact, we nevertheless approve the promotional remedy based on the record in the case and the district court findings.
AFFIRMED.
Notes
. Employees in WG 1-4 generally perform unskilled labor. Employees in WG 5 are helpers in skilled mechanical trades or full performance journeymen in other fields of work. Employees in WG 6 are ordinary journeymen outside the skilled mechanical trades. Employees in WG 7-8 are journeymen or have intermediate positions in skilled mechanical trades. Employees in WG 9-11 are journeymen in skilled mechanical trades. Record, Vol. 5, Tab 285 at 3.
. The plaintiffs’ class, which numbers approximately 3,200, consists of blacks who were employed at Warner Robins during the 1972-1979 period. Howard III,
. Fluctuations of more than 2 or 3 standard deviations undercut the hypothesis that selections for promotions were being made randomly without regard to race. See Castaneda v. Partida,
. The consent decree provided that the government’s settlement of the litigation did not constitute an admission of liability for past or present discrimination. Consent Decree, Record, Vol. 4, Tab 256 at 2.
.The figure of 240 promotions was determined by using positions in WG 2, WG 5-6, WG 8, and WG 10 as source grades. The 240 promotions were then apportioned across target positions to which blacks could be expected to be promoted, based on historical career progression patterns at Warner Robins, to determine the most likely jobs lost by blacks during the 1971-1979 period. Once the jobs lost by blacks had been identified, the occupational series for those jobs were identified based on the projection of vacancies at Warner Robins in 1982 and 1983. Recоrd, Vol. 5, Tab 285 at 16.
. In discussing the impact of the promotional relief on white employees, the district court also noted that 43 of the 137 named intervenors had been promoted and that another 56 were not eligible for promotions to the target positions for one reason or another. Howard IV,
. Attempts by nonminority employees to challenge consent decrees which provide for race-conscious relief have engendered a good deal of academic commentary. See, e.g., Cooper, The Collateral Attack Doctrine and the Rules of Intervention: A Judicial Pincer Movement on Due Process, 1987 U.Chi.Legal F. 103; Schwarz-schild, Public Law by Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform, 1984 Duke L.J. 887; Note, Voluntary Public Employer Affirmative Action: Reconciling Title VII Consent Decrees with the Equal Protection Claims of Majority Emрloyees, 28 B.C.L.Rev. 1007 (1987).
. The due process clause of the Fifth Amendment contains an equal protection component. Washington v. Davis,
. The intervenors’ argument that the promotional relief should have been tempered by red-circling of pay rates or seniority for white employees who would have been promoted but for the 240 promotions, Brief for Intervenors at 44, is unpersuasive. Those employees, like all others ax Warner Robins, do not have a legitimate expectation of being promoted, Howard IV,
. Because a consent decree is not an “order" within the enforcement provisions of Title VII, it cannot be challenged on the ground that it violates § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), which prohibits a court from entering an order requiring an employer to give relief to an employee who suffers adverse job action if the action was taken for any reason other than discrimination on account of race, color, religion, sex, or national origin. Local No. 93 v. City of Cleveland,
. Given our decision, we need not address whether the intervenors’ challenge to the promotional relief was rendered moot to the extent that 169 plaintiffs had already been promoted by the time we rendered our opinion in Howard III.