## Facts

- The FBI long gave clerical and support employees favorable consideration when applying for appointment as Special Agents through an internal “clerk-to-agent” practice.
- In 1977, the FBI adopted more formal Special Agent selection criteria and implemented an affirmative hiring program for women and minorities.
- As the new policies took effect, the prior clerk-to-agent preference was substantially modified and later terminated.
- Present and former clerical/support employees, proceeding as a certified class, alleged they relied on the preference in making career and educational decisions and lost a valuable benefit when the preference ended.
- In the district court, plaintiffs succeeded on a Fifth Amendment takings theory, obtaining a liability ruling that termination of the preference required compensation; the court later discussed difficulties of valuing damages.
- The district court rejected plaintiffs’ challenges to the FBI’s affirmative hiring program under the Fifth Amendment’s equal protection component and Title VII.
- The government appealed the takings ruling; plaintiffs cross-appealed the dismissal of their discrimination-based challenges.

## Issues

1. Whether termination of the FBI’s discretionary clerk-to-agent preference constituted a compensable taking of “property” under the Fifth Amendment and the Tucker Act.
2. Whether the FBI’s affirmative hiring program for women and minorities violated Title VII or equal protection principles applicable to the federal government.
3. Whether Title VII is the exclusive judicial remedy for federal employees’ job-related discrimination claims, foreclosing parallel constitutional or other statutory causes of action.

## Decision

- The court reversed the district court’s takings judgment, holding the employees lacked a vested, legally enforceable property interest in continuation of the clerk-to-agent preference.
- The court held that, absent a binding statute, regulation, or contract, the employees’ reliance and expectations amounted to a noncompensable expectancy rather than “property” protected by the Takings Clause.
- The court affirmed dismissal of plaintiffs’ challenges to the affirmative hiring program under Title VII and the Fifth Amendment.
- The court reiterated that Title VII generally provides the exclusive remedy for federal employment discrimination claims, displacing alternative statutory and constitutional theories aimed at the same alleged discriminatory conduct.

## Legal Principles

- A Fifth Amendment takings claim requires a cognizable property interest grounded in an independent source of law (such as statute, regulation, or contract), not merely subjective reliance on an agency practice.
- Discretionary federal personnel practices and promotion or appointment preferences ordinarily create no vested entitlement; a “mere expectancy” of favorable consideration is not “property.”
- The Tucker Act does not supply a right to damages without an underlying enforceable property or contract-like entitlement.
- Title VII is generally the exclusive judicial remedy for federal employees alleging discrimination in employment, barring parallel constitutional damages actions or other statutory claims premised on the same discriminatory employment decision.
- An affirmative hiring program does not violate Title VII or equal protection absent proof it unlawfully discriminates against nonbeneficiaries under the governing standards.

## Conclusion

The D.C. Circuit held that the FBI’s discontinuation of an internal clerk-to-agent preference did not effect a compensable taking because the practice created no vested entitlement, and it affirmed rejection of challenges to the FBI’s affirmative hiring program while emphasizing that Title VII ordinarily supplies the exclusive route for federal employment discrimination claims.


Kizas v. Webster, 707 F.2d 524 (D.C. Cir. 1983)