[00:00:01] Speaker 00:
Case number 13-5153, William E. Shea, Appellant versus John F. Kerry, Secretary of State in his official capacity.

[00:00:08] Speaker 00:
Mr. Thompson for the appellant, Mr. Valdez for the appellee.

[00:00:51] Speaker 02:
Good morning.

[00:00:53] Speaker 02:
Good morning, Your Honor.

[00:00:54] Speaker 02:
May please report Joshua Thompson on behalf of Appellant William Shea.

[00:00:57] Speaker 02:
I've asked to reserve three minutes for rebuttal.

[00:01:00] Speaker 02:
Shay challenged the Department of State's decision to make entry-level Foreign Service officers eligible for mid-level placement on the basis of race.

[00:01:08] Speaker 02:
The fundamental issue in this case is whether Shay must bear the burden of proving the Department's race-conscious conduct was illegal, or whether the Department must demonstrate, through a strong basis in evidence, that its race-conscious action was legal.

[00:01:26] Speaker 05:
The open brief on page 9 accurately quotes Donald Douglas as requiring that the plaintiff had applied and qualified for a job which the employer received an affidavit.

[00:01:40] Speaker 05:
And after reciting that, you never again return to the issue of application.

[00:01:48] Speaker 05:
Now, it's correct to note that he did make no application for

[00:01:54] Speaker 05:
certainly not for the race-conscious plan, nor for the non-race-conscious plan.

[00:02:01] Speaker 05:
That is correct, Your Honor.

[00:02:03] Speaker 05:
And there are cases indicating that one cuts slack to a plaintiff who has

[00:02:14] Speaker 05:
It was not made an application where difficulties are presented.

[00:02:21] Speaker 05:
We're not sure, at least I'm not sure on this record what difficulties were presented, but the test there has made reasonable efforts to apply.

[00:02:32] Speaker 05:
make his or her interest known.

[00:02:36] Speaker 05:
So could you just lay out what you see as the factors presenting difficulty for him in making an application, and second, what reasonable efforts he made to overcome those difficulties?

[00:02:54] Speaker 02:
I think this Court's decision in Douglas V. Donovan declares that if an employee is denied the opportunity

[00:03:04] Speaker 02:
dispute here that Shea was denied the opportunity to compete for placement within the mid-level affirmative action plan.

[00:03:10] Speaker 02:
He's denied that opportunity.

[00:03:12] Speaker 05:
That is sufficient.

[00:03:13] Speaker 05:
But he wasn't, at least it gives denial a different meaning to say that he was denied the opportunity to compete for the non-race-conscious parallel plan.

[00:03:26] Speaker 02:
Yes, your honor.

[00:03:27] Speaker 02:
The plans are not the same plan.

[00:03:29] Speaker 02:
I understand.

[00:03:32] Speaker 02:
They certainly operate together, right?

[00:03:34] Speaker 02:
I think that they have significant differences in his preclusion from being able to compete for the mid-level affirmative action plan is significant.

[00:03:43] Speaker 02:
It's significant in a number of respects.

[00:03:44] Speaker 02:
The department makes the error in its brief

[00:03:47] Speaker 02:
a couple times of saying that when you are an entry-level officer, you choose your cone that you want to pursue.

[00:03:53] Speaker 02:
That is simply untrue.

[00:03:55] Speaker 02:
When you are an entry-level officer, for the first five years, you are unconed.

[00:03:59] Speaker 02:
So this certificate of need program, where there's one need in a particular cone within the Foreign Service, Shea was precluded from applying for mid-level applications in those cones which were not

[00:04:14] Speaker 02:
did not have a certificate of need, and he had the opportunity, were he of a different race, to apply to all of these other cones.

[00:04:22] Speaker 02:
But because he was of the wrong race, the cones were limited, and he was denied the opportunity to compete for mid-level promotion in other cones.

[00:04:33] Speaker 04:
But I thought there was a certificate of need in the Consular Cone.

[00:04:38] Speaker 02:
There was a certificate of need issued in the Consular Cone, but that does not mean that Shay was allowed to compete for those cones where there was not a certificate of need issued.

[00:04:49] Speaker 04:
But I thought we were talking about Consular Cone.

[00:04:52] Speaker 04:
Is that incorrect?

[00:04:53] Speaker 02:
That is incorrect, Your Honor.

[00:04:54] Speaker 02:
I believe that Shea should have the opportunity to compete for mid-level promotion in any cone.

[00:04:59] Speaker 02:
He ended up in the consular cone only after first being admitted to the administration cone, only after first asking to be placed in the political and economics cone.

[00:05:09] Speaker 02:
The fact that 20 years down the line he ends up in the consular cone does not mean that he should have been denied the opportunity to compete for mid-level placement in these other cones.

[00:05:20] Speaker 02:
And simply by virtue of the fact that there was one certificate of need available in this cone that he ended up in 20 years later does not mean that he had the opportunity to compete for mid-level placement in those cones which there was not a certificate of need issued.

[00:05:36] Speaker 05:
And that is... At least it was unclear to me from the record what precipitates certificates of need being issued.

[00:05:47] Speaker 05:
Parts of the record suggest that that's a sort of applicant prodded process, not something that comes down on high from the particular cone.

[00:06:01] Speaker 02:
Is that correct?

[00:06:02] Speaker 02:
I do not believe that is correct, Your Honor.

[00:06:05] Speaker 02:
precisely the reverse of that.

[00:06:06] Speaker 02:
I think when the State Department identifies a deficiency in the mid-levels in a particular cone that it seeks out applicants that may qualify outside of the Foreign Service to apply for those mid-level positions.

[00:06:19] Speaker 02:
So because the mid-level affirmative action plan, of course, is completely different, there you get automatic qualification for any code.

[00:06:29] Speaker 02:
And that's not the only significant difference between the two programs.

[00:06:34] Speaker 02:
I think another significant difference is the race-neutral mid-level placement program, where the certificate of need is necessary.

[00:06:40] Speaker 02:
There, of course, there's only the slot available for that certificate of need.

[00:06:44] Speaker 02:
So the individual has to compete against many other people of all races.

[00:06:49] Speaker 02:
Whereas let's say that certificate of need is filled by a person of any race, a person of a race that qualifies for the mid-level affirmative action plan can still apply for that cone even after the certificate of need is filled.

[00:07:02] Speaker 02:
So the competition is much less great because they have less

[00:07:07] Speaker 05:
That takes us to the merits, but in terms of what Shay did and might have done, it doesn't help us.

[00:07:18] Speaker 05:
As far as I can tell from the record, the first action we have on his part showing concern about this problem is in 2001, which is eight years after the program has been terminated.

[00:07:39] Speaker 05:
If we're posing the question, which some of the circuit courts have, to the probability of his applying, had he known of the race neutral program, it sounds that the probability is very low.

[00:07:57] Speaker 02:
I don't think that is a relevant consideration here, Your Honor, when this Court has clearly held that the denial of the opportunity to compete is sufficient to show a Title VII violation.

[00:08:07] Speaker 02:
The fact that he didn't bring suit eight years later does not preclude his claiming that his paycheck is significantly less by virtue of that original discrimination.

[00:08:18] Speaker 01:
Is there some practical, just apart from the law for a second, is there some practical reason not to apply for the race neutral route to a mid-level position?

[00:08:31] Speaker 02:
I think after consulting with my client, he was simply not aware of the race neutral program, Your Honor.

[00:08:36] Speaker 02:
It was, as I said earlier, a targeted program where, as my understanding, the Foreign Service would go out and target specific individuals for that.

[00:08:44] Speaker 02:
He was well aware of the mid-level affirmative action plan, knew that he did not qualify as a white male by racial descent.

[00:08:50] Speaker 01:
And that is the reason why he specifically did not apply for the race neutral program, where there was only these one or two slots, whereas... It looks like in the record that other individuals who didn't qualify for the affirmative action route became aware of the race neutral route and then sought a way to get their application put in the right place.

[00:09:11] Speaker 02:
And I think looking at those applications, there's a few applications in the record, and they're letters where one of the applicants has written to State saying, thank you for contacting me and notifying me of this application.

[00:09:23] Speaker 02:
I will now pursue the race neutral program for mid-level placement.

[00:09:33] Speaker 02:
There's no dispute that the mid-level race neutral program existed.

[00:09:37] Speaker 02:
Shay, from what he tells me and what I can tell from this court, was not aware of it.

[00:09:42] Speaker 02:
The extent to which that was made aware to entry-level foreign service officers, most of whom would never qualify for mid-level placement.

[00:09:52] Speaker 02:
Shay wouldn't qualify because he was in the Naval J Corps, he had a law degree, and he had these other qualifications.

[00:10:00] Speaker 02:
But as a general practice, the mid-level affirmative action plan is going to be available to every Foreign Service entry-level officer, whereas the race-neutral mid-level placement is simply not going to be available to every Foreign Service officer.

[00:10:13] Speaker 02:
So I think he did not apply because he did not know of it.

[00:10:16] Speaker 01:
So can I ask another question along these lines about what he was or wasn't supposed to do at the time to indicate a requisite level of interest?

[00:10:26] Speaker 01:
You could have a situation in which it's absolutely obvious that somebody's going to want to apply for a position because it involves the very same set of responsibilities, but you had paid more.

[00:10:35] Speaker 01:
At that point, economic rationality just kicks in and says, well, the person would like to have the position that pays more.

[00:10:41] Speaker 01:
But more often what happens is when you get paid more, it's because you have to do more.

[00:10:46] Speaker 01:
And so it doesn't follow necessarily as a matter of course that somebody's going to want to have the greater responsibility that might beget the greater compensation.

[00:10:53] Speaker 01:
And I think here you have that kind of situation, I think, because the mid-level Foreign Services officers were more of as expected of them.

[00:11:00] Speaker 01:
So you could envision a situation in which somebody applies for the entry-level position, but they don't actually want to have the greater responsibility that, true enough, it begets greater compensation, but they don't want to have that.

[00:11:10] Speaker 01:
And so what do we look at in the record to know that Shea, at the time, was actually interested in having the higher level physician that came with greater responsibility and greater pay?

[00:11:21] Speaker 02:
I think that's the improper question to ask, Ron, or I don't think there is necessarily anything in the record that would demonstrate Shea's

[00:11:27] Speaker 02:
desire at that time to move up to the mid-level and get more pay, you're absolutely correct, there were more responsibilities.

[00:11:34] Speaker 02:
I think what the proper inquiry is, whether the Department of State discriminated against him on the basis of an employment decision.

[00:11:42] Speaker 02:
Here, it was an employment decision that affected pay.

[00:11:44] Speaker 02:
There's no dispute about that, and that is sufficient to make out his prime official case under Title VII.

[00:11:50] Speaker 01:
But suppose you have it undisputed in the record.

[00:11:52] Speaker 01:
In fact, he files an affidavit that says, I had no interest in being a mid-level employee because it was really, I just didn't feel qualified for it.

[00:11:59] Speaker 01:
It was, and not qualified in the sense of formal job qualifications, just that I wasn't ready.

[00:12:04] Speaker 01:
I felt I needed more experience, and so I never wanted to have the mid-level position.

[00:12:08] Speaker 01:
then I don't think he can bring a case, right?

[00:12:11] Speaker 01:
He can't bring a challenge to a policy that actually wouldn't have affected him because he had no interest in the job.

[00:12:17] Speaker 02:
I'm not sure that that's true, Your Honor.

[00:12:18] Speaker 02:
I think that this Court has held that if a promotional opportunity is simply denied to it, by virtue of his race, he is unable to apply, the Court does not inquire into whether he would have attained that position or whether he would have applied for that position.

[00:12:31] Speaker 04:
In most of our cases, I think what we're getting at is there's been some indication by the employee

[00:12:37] Speaker 04:
of an interest.

[00:12:41] Speaker 02:
Your Honor, I think this court's decision in Douglas decided just five years ago makes clear that that is not a requirement.

[00:12:50] Speaker 01:
So what if the affirmative action program wasn't in the Foreign Service at all?

[00:12:55] Speaker 01:
It exists in the Treasury Department.

[00:12:59] Speaker 01:
And Shea applies for a job in the Foreign Service.

[00:13:01] Speaker 01:
I mean, by your understanding of Douglas, he was still denied an equal opportunity to apply for the Affirmative Protection Program in the Treasury Department.

[00:13:07] Speaker 01:
It's just we have no reason to think he has any interest in being in the Treasury Department at all.

[00:13:10] Speaker 02:
I don't think that that's an employment decision that affects him under Title VII, Your Honor.

[00:13:14] Speaker 05:
Well, effect isn't effect, the key thing.

[00:13:17] Speaker 05:
It's only if we have some reason to believe that he

[00:13:23] Speaker 05:
at least would have as likely to apply that it could be said to affect him at all, meeting the causation requirement standard.

[00:13:34] Speaker 02:
Your Honor, I believe that this certainly did affect him.

[00:13:36] Speaker 02:
He was precluded the opportunity to compete with the significant differences between the two plans.

[00:13:42] Speaker 02:
I think that there's no dispute that those are real, substantial differences.

[00:13:46] Speaker 01:
If he wanted it.

[00:13:47] Speaker 01:
And I think, I mean, your answer may be that he did want it, or that it's obvious he wanted it, or there's things in the record that show us that he, in fact, wanted it.

[00:13:53] Speaker 01:
I guess I'm just not entirely, it doesn't seem right to me, or at least it's not obviously right to me, to say that even if he didn't want it, he still gets to bring a claim.

[00:14:03] Speaker 01:
Excuse me.

[00:14:04] Speaker 01:
Well, although I understand that to be your position.

[00:14:07] Speaker 02:
I think to answer your Treasury Department hypothetically, Your Honor, I don't think that that within the meaning of Title VII is an employment decision that affects him.

[00:14:15] Speaker 02:
An employment decision that affects him is someplace where he has employment.

[00:14:19] Speaker 02:
His employer is the Foreign Service.

[00:14:22] Speaker 02:
And that was their decision to preclude him from applying.

[00:14:26] Speaker 01:
Well, I mean, you can obviously manipulate the hypothetical so that it's different divisions within the same agency.

[00:14:32] Speaker 01:
But you still, at some point, it seems like the plaintiff would need to show that the plaintiff had an interest in the position as to which he was denied an equal opportunity to compete.

[00:14:42] Speaker 01:
Otherwise, the fact that there's, in the abstract, a policy that could have affected him if he was interested wouldn't

[00:14:49] Speaker 01:
give rise to a cognizable claim because he actually didn't have a desire to have that position.

[00:14:54] Speaker 02:
I think, in this scenario, I don't think we need to go down that road because we have a scenario where the employment decision is made by his direct employer for a position that he was clearly qualified to be in.

[00:15:04] Speaker 02:
In that scenario, where you have an employment decision by your boss, where people in your class are receiving that race-conscious promotion,

[00:15:12] Speaker 02:
that then if I just understand your your your position so you would say that even if it was undisputed in the record that he didn't want the position because it came with it attended uh... increased responsibilities that he could still bring a claim I think given the fact that it was in his particular class given the fact that it was his employer the fact that he was precluded I did not believe that he needed to apply or that he needed to express a willingness

[00:15:42] Speaker 02:
a willingness to apply, and to draw some parallels to equal protection jurisprudence, where the Supreme Court says you don't need to submit yourself to an unconstitutional process in order to challenge the constitutionality of that process.

[00:15:54] Speaker 05:
Similar here, she's not just saying that people who think it would be great to go to the University of Texas law school can just

[00:16:04] Speaker 05:
file a suit and say, if I applied, I would be discriminatorily treated.

[00:16:11] Speaker 05:
You weren't saying that, are you?

[00:16:13] Speaker 02:
I'm saying if the university I don't think it does, Your Honor, because I think Title VII constrains the injury that we're alleging here.

[00:16:22] Speaker 02:
In the constitutional scenario where you're applying for admission to the University of Texas Law School, you have to have some sort of injury in fact and

[00:16:33] Speaker 02:
to bring your equal protection claim.

[00:16:35] Speaker 02:
And if the University of Texas is using race, the fact that you can apply to that university should be enough.

[00:16:40] Speaker 02:
You do not, in fact, necessarily have to apply, as long you do not have to submit yourself to an unconstitutional process in order to challenge the constitutionality of that process.

[00:16:50] Speaker 02:
That's Northeast Florida contractors.

[00:16:52] Speaker 02:
It comes up frequently in contracting cases.

[00:16:54] Speaker 01:
But I agree with that, and it seems intuitively apparent that that would apply if it would be futile to apply.

[00:17:01] Speaker 01:
So you could just say, I don't want to go through the empty exercise of applying because it would be futile, but yeah, I'd like to have it.

[00:17:07] Speaker 01:
But it's the like to have it that keeps tripping me up.

[00:17:10] Speaker 01:
And is your, maybe I can ask some questions this way.

[00:17:16] Speaker 01:
One were to think that the law required the plaintiff to demonstrate an interest in the position that he's been precluded from competing on an equal basis for.

[00:17:24] Speaker 01:
Are you saying that then your client can't win because he didn't have that interest?

[00:17:31] Speaker 02:
I'm not saying that, Your Honor.

[00:17:32] Speaker 02:
I'm saying that at that point, it becomes a factual dispute upon which the district court has not ruled.

[00:17:36] Speaker 02:
I believe that there is evidence in the record that Shea would have, had he known about it, would have applied for that.

[00:17:43] Speaker 01:
He did know.

[00:17:45] Speaker 01:
You're taking the position that he didn't.

[00:17:46] Speaker 01:
He did know about it, though, right?

[00:17:47] Speaker 02:
I'm not taking that position, Your Honor.

[00:17:49] Speaker 02:
I think the record... He came to know about it, clearly.

[00:17:52] Speaker 02:
Right.

[00:17:52] Speaker 02:
At least through the course of the litigation, he came to know about it.

[00:17:55] Speaker 05:
Well, he must have known about it when he filed his administrative complaint.

[00:18:00] Speaker 05:
If that's part of the litigation, yes.

[00:18:04] Speaker 02:
That he knew about the race-neutral one?

[00:18:06] Speaker 01:
No, not the race-neutral one, because at this point what we're talking about is whether he's... At least I'm not talking about that.

[00:18:14] Speaker 01:
Did he at least know about the opportunity to

[00:18:19] Speaker 01:
the denial of the opportunity to compete for the race-based slice.

[00:18:24] Speaker 02:
Absolutely.

[00:18:24] Speaker 02:
He knew about that at the time that he applied to the Foreign Service.

[00:18:27] Speaker 02:
The mid-level affirmative action plan was well known.

[00:18:29] Speaker 01:
Right.

[00:18:30] Speaker 01:
So he knows that there are mid-level positions to which certain individuals can directly go.

[00:18:35] Speaker 01:
Then the one question I think is, is he interested in actually having one of those mid-level positions, given that it has different responsibilities?

[00:18:44] Speaker 01:
And as I understand your argument, it is that it doesn't matter if he's interested.

[00:18:47] Speaker 01:
He can still bring a claim.

[00:18:49] Speaker 01:
And then my question is, suppose that one were to think it does matter if he's interested, then can we say from this record that he was, in fact, interested?

[00:18:58] Speaker 01:
Or do we just not know?

[00:18:59] Speaker 02:
Your Honor, it wasn't disputed in the court below to the best of my knowledge.

[00:19:05] Speaker 02:
I don't know the contents of the record to answer that question faithfully.

[00:19:09] Speaker ?:
OK.

[00:19:09] Speaker ?:
Thanks.

[00:19:10] Speaker 02:
I see my time is almost up.

[00:19:15] Speaker 02:
Instead of moving to the Ritchie question, I would like to make one point on the Ritchie issue.

[00:19:21] Speaker 02:
If this court were to suppose for a moment that the department's mid-level affirmative action plan were pursued for constitutional reasons, in other words, to avoid an unconstitutional disparate impact and to avoid past racial discrimination,

[00:19:39] Speaker 02:
If that were its purpose, I mean, the department argues that it's to pursue racial balancing, which we know is unconstitutional, but let's say that they actually chose a constitutional purpose.

[00:19:48] Speaker 02:
Then Ricci says that a decision to avoid or to remedy an illegal disparate impact must satisfy the strong basis in evidence tests.

[00:19:59] Speaker 05:
So if they pursue... Is there any circuit court that has understood Ricci to apply

[00:20:06] Speaker 05:
not to changes in a race that has already been run, reducing winners and losers, but to apply to a new

[00:20:16] Speaker 05:
race new competition for positions going forward.

[00:20:20] Speaker 02:
To the best of my knowledge, Your Honor, this court will be the first to decide that issue.

[00:20:24] Speaker 05:
I do not know of any other any other court that has... Doesn't that suggest that the other circuits are following the Supreme Court's frequently issued injunction that we're not supposed to overturn its precedents such as Johnson?

[00:20:40] Speaker 05:
We're supposed to leave it to do that.

[00:20:42] Speaker 02:
I don't think it does, Your Honor, because the converse is also not true.

[00:20:45] Speaker 02:
There is no circuit court that has held that post-Reachie, Johnson survives.

[00:20:50] Speaker 02:
And I think the circumstances of Johnson and Reachie are so similar, it's hard to argue that Reachie did not overrule Johnson on that point.

[00:20:57] Speaker 05:
The majority of Reachie didn't seem to feel any need to discuss Johnson at all.

[00:21:02] Speaker 02:
You're right, Your Honor.

[00:21:03] Speaker 05:
And the discussion by the dissent is peripheral.

[00:21:07] Speaker 05:
Also true, Your Honor.

[00:21:09] Speaker 05:
However... That doesn't sound like a court driving a major hole or at least consciously driving a major hole in Johnson.

[00:21:17] Speaker 02:
I think, Your Honor, that Ricci cannot be squared with Johnson in this respect.

[00:21:22] Speaker 02:
To the extent that remedying an illegal disparate impact must satisfy the strong basis and evidence test, Johnson, for that point, can no longer stand.

[00:21:33] Speaker 02:
Johnson was a race conscious or a gender conscious

[00:21:37] Speaker 02:
affirmative action plan that was through a competitive process, much like we have here, and at the end, instead of throwing out the test results, it promoted people above.

[00:21:51] Speaker 02:
That distinction seems to be

[00:21:53] Speaker 02:
an illusory one to say that Johnson survived simply because, instead of throwing the test results out, you give people a boost at the end.

[00:22:01] Speaker 01:
So can I ask this question about the relationship with Reaching and Johnson?

[00:22:04] Speaker 01:
So in Reaching, the court says, our analysis begins with this premise.

[00:22:10] Speaker 01:
The city's actions would violate the disparate treatment prohibition of Title VII, absent some valid defense.

[00:22:15] Speaker 01:
And so it's starting with the premise that, but for some explanation, the action violates Title VII.

[00:22:23] Speaker 01:
Johnson doesn't have that presumption and your argument I think is that

[00:22:30] Speaker 01:
Now Johnson must be jettisoned because every case is governed by that presumption.

[00:22:37] Speaker 01:
But I don't think Johnson has to be read that way, because Johnson can just say, no, it's not the case that the entity's actions would violate the disparate treatment prohibition, absent some valid defense.

[00:22:49] Speaker 01:
We have to engage in the affirmative inquiry to determine whether there's a violation to begin with.

[00:22:55] Speaker 02:
Yeah, Your Honor, I think, I don't read Johnson, I don't read Ricci that way.

[00:22:59] Speaker 02:
I read Ricci as saying that any facially discriminatory conduct, which we have here, that that must be, that that is the premise that disparate treatment applies.

[00:23:07] Speaker 02:
And once that premise is hit, that is when the strong basis and evidence standard kicks in.

[00:23:14] Speaker 02:
And here we have a facially discriminatory conduct.

[00:23:16] Speaker 02:
Frankly, the McDonnell-Douglas assistance court has held previous cases.

[00:23:19] Speaker 02:
The McDonnell-Douglas formula doesn't really work that well in a case where you have a facially discriminatory conduct, because we don't need circumstantial evidence.

[00:23:27] Speaker 02:
We have direct evidence here of discriminatory behavior.

[00:23:30] Speaker 01:
But there's a difference, I think, between facially discriminatory and invalidly discriminatory.

[00:23:34] Speaker 01:
And what our cases have said and what the Supreme Court's cases have said is that just because a plan like the one at issue here or at issue in Weber or Johnson does discriminate in some descriptive sense, it doesn't make it invariably discriminatory, whereas the premise of Ritchie is that there would have been a violation.

[00:23:56] Speaker 02:
Yeah, right, right, Your Honor, and I think Ricci is controlling on that point.

[00:24:01] Speaker 02:
I think that, or you could read Ricci to say, to constrain Johnson to showing what does it mean in Johnson to have a valid defense.

[00:24:10] Speaker 02:
It can't be the case, and here we can move on to the Johnson portion of our argument, but simply holding up a napkin saying we have an affirmative action program is enough.

[00:24:17] Speaker 02:
You have to show a valid affirmative action program.

[00:24:20] Speaker 02:
And that's for, I think, one point that may not come clear in the briefs,

[00:24:24] Speaker 02:
is that there is absolutely no evidence in the record, not the GAO report from 1989 and not that multi-year affirmative action report from 1990.

[00:24:34] Speaker 02:
There is no evidence that shows a statistical imbalance of any race other than Asian Americans in 1989 for the affirmative action.

[00:24:44] Speaker 02:
They don't have the factual predicate, any statistical showing that there's an imbalance here.

[00:24:50] Speaker 02:
for mid-level.

[00:24:51] Speaker 02:
For mid-level, precisely.

[00:24:53] Speaker 02:
Which is the focus of the affirmative action plan.

[00:24:56] Speaker 02:
They have put the focus on the mid-level because there is no imbalance in the mid-level with respect to any race by 1990.

[00:25:06] Speaker 02:
They cannot say that this is a valid affirmative action plan.

[00:25:09] Speaker 01:
But I read the government to be shifting the focus from the mid-level as an end in itself and taking the cue given by Judge Lamberth in his opinion, which is that the mid-level is a pipeline to the senior foreign service.

[00:25:23] Speaker 01:
And there was an imbalance in the Senior Foreign Service.

[00:25:27] Speaker 01:
And the purpose, the now stated purpose of the plan, regardless of what was in the minds of the architects at the time, and the basis upon which it can be upheld, is that the pipeline had to improve in order to remedy the disparity, the underrepresentation in the Senior Foreign Service.

[00:25:46] Speaker 02:
You're right, that is now the argument that the department puts forth.

[00:25:50] Speaker 02:
I think there's a couple of responses to that.

[00:25:52] Speaker 02:
One, I don't think that that's what the courts are to look to when you're talking about a manifest imbalance in a traditionally segregated job category.

[00:26:01] Speaker 02:
I think you have to look to where the preference is given, and here there is no imbalance.

[00:26:09] Speaker 02:
As this court said in Hammond, manifestly no imbalance at all in the mid-levels.

[00:26:13] Speaker 02:
I think the second point is, as you pointed out earlier, not only is the mid-level significantly more job responsibility than the entry level, but the senior foreign service is a completely different ballgame.

[00:26:27] Speaker 02:
And to say that you are going to create more senior foreign service officers by over-inflating the mid-levels past its natural balancing point,

[00:26:37] Speaker 02:
assuming balancing was a legitimate purpose to begin with.

[00:26:41] Speaker 02:
It's simply untrue.

[00:26:43] Speaker 02:
You need Congress to vote on these.

[00:26:45] Speaker 02:
You need presidential appointment.

[00:26:46] Speaker 02:
It is so fraught with uncertainty and subjectivity that you cannot say with any degree of specificity that skipping over these entry-level levels and directly into the mid-levels, where in entry-levels you're going to learn a lot of the basics of Foreign Service work,

[00:27:02] Speaker 02:
that by skipping over that, you're going to increase representation in senior levels.

[00:27:06] Speaker 02:
There's certainly no evidence in the record of that.

[00:27:09] Speaker 02:
And I think it is simply illogical to say that overinflating the mid-levels will achieve.

[00:27:14] Speaker 04:
Well, there is some evidence in the record.

[00:27:16] Speaker 04:
You may not think it's enough, but there is evidence in the record about it increasing the probability that there would be more senior levels.

[00:27:27] Speaker 04:
if you had a different pool from which to draw.

[00:27:31] Speaker 04:
I mean, there is evidence there.

[00:27:34] Speaker 04:
Testimony before Congress, but in any event.

[00:27:38] Speaker 02:
Your Honor, I think the congressional testimony speaks in favor of Shea.

[00:27:42] Speaker 02:
The congressional testimony is almost exclusively related to entry-level officers with some discussion of senior and almost no discussion of mid-level.

[00:27:49] Speaker 04:
Moreover, another- Except, as I referred,

[00:27:55] Speaker 02:
Fair enough, your honor.

[00:27:55] Speaker 02:
I think one last point with respect to the Johnson issue and with respect to the congressional record is that the State Department here did not employ race neutral alternatives.

[00:28:06] Speaker 02:
If you look at the Thomas and the Bremer reports on page

[00:28:10] Speaker 02:
413 through 417, they list a litany of race-neutral alternatives that the Department could have used here.

[00:28:17] Speaker 02:
As this Court had said in Hammond, that must be the first resort.

[00:28:20] Speaker 02:
They cannot employ the race-conscious plan when all of these neutral options, as given by Congress and given by these reports, were available to it.

[00:28:30] Speaker 04:
Instead, the Department should show them to the... So it has to do all of them?

[00:28:32] Speaker 04:
I mean, I just need to be clear, because it said it did some, and it was doing others.

[00:28:37] Speaker 02:
I'm sorry, Your Honor, I didn't catch the question.

[00:28:40] Speaker 04:
I said, your position is then that it has to do all of those that are in the Thomas and Brimmer?

[00:28:46] Speaker 04:
I just need to be clear on your position.

[00:28:49] Speaker 02:
No, it's not my position that they needed to employ each of those.

[00:28:53] Speaker 02:
It's my position that they needed to consider some.

[00:28:56] Speaker 04:
But the record is clear they considered some.

[00:28:59] Speaker 04:
I mean, they did a number of things.

[00:29:01] Speaker 04:
You may not think it's enough, but they did things.

[00:29:03] Speaker 02:
Your Honor, I think the record is clear that when they adopted the mid-level affirmative action plan, they went race conscious and there is no evidence in that record that those race neutral alternatives, some 30, were considered by state before it chose to go race conscious.

[00:29:19] Speaker 02:
In fact, state went race conscious three years before that.

[00:29:23] Speaker 01:
Can I just get back to the senior foreign service as the ultimate end if you view the mid-levels of the pipeline?

[00:29:30] Speaker 01:
So conceptually, you don't disagree with the proposition that if you increase underrepresented populations' appearance in the mid-level, then that creates the possibility of ascension to the senior service.

[00:29:44] Speaker 01:
Conceptually, that just seems

[00:29:46] Speaker 01:
like mathematically it's true.

[00:29:49] Speaker 01:
And then the question becomes, is that actually a viable pathway?

[00:29:53] Speaker 01:
And it also seems undisputed from the materials that the lion's share of the positions that are filled in the senior foreign service come from people who are within.

[00:30:04] Speaker 01:
So it's the experience that one gains from participation as a mid-level foreign service officer that is perceived to prepare you to ascend to the senior foreign service.

[00:30:13] Speaker 01:
So it's also the tried and true pathway.

[00:30:16] Speaker 01:
Does that seem right to you?

[00:30:17] Speaker 02:
I think with one notable exception, Your Honor, I don't think it's the tried-and-true pathway to jump the entry levels and get to the mid-level.

[00:30:25] Speaker 02:
I think the tried-and-true pathway is to go through the entry levels, develop the experience, get placed in the cone that you are most appropriate for, develop many years of mid-level experience, and then get promoted to the senior foreign service.

[00:30:38] Speaker 01:
So your view is that in order to actually do right by the State Department's own policies, someone would have to go through the entry level.

[00:30:49] Speaker 01:
and get the experience there, or else they're not going to be sufficiently well qualified to go to the senior foreign service from the mid-levels?

[00:30:56] Speaker 02:
I wouldn't say necessarily.

[00:30:58] Speaker 02:
I would say that in order to justify their race-conscious mid-level program because of an imbalance in the senior levels, if we can see that there is no imbalance in the mid-levels,

[00:31:11] Speaker 02:
that they must demonstrate a little bit more evidence than simply the mathematical probability that there are more people in the mid-levels, there'll be more people in the senior levels.

[00:31:20] Speaker 02:
They have to show that connection, but this mid-level affirmative action program actually will increase.

[00:31:26] Speaker 01:
So in other words, the mid-level affirmative action program wasn't broad enough.

[00:31:29] Speaker 01:
It should have expanded to encompass entry level 2.

[00:31:33] Speaker 01:
Is that the way you would look at it?

[00:31:34] Speaker 01:
Because then you would have representation in the entry level 2.

[00:31:38] Speaker 01:
So the fault of the program is that it was too narrow.

[00:31:40] Speaker 02:
I think the fault of the program is that it wasn't targeting where the imbalance existed.

[00:31:45] Speaker 02:
I think, as we said in our brief, if they wanted to increase representation in the senior levels, then maybe a tailored preference at the senior level decision-making process would make sense.

[00:31:55] Speaker 02:
But I don't think you can constitutionally, or under Title VII, overinflate through racial discrimination these fully represented levels in order to get to that unbalanced level.

[00:32:08] Speaker 01:
Even though in Weber, it seemed like what was going on is that there was an overinflation at one level acknowledged.

[00:32:16] Speaker 01:
It had to be under the record that the target percentage exceeded the percentage in the population.

[00:32:22] Speaker 01:
But the whole purpose of that is to create a broad pool.

[00:32:26] Speaker 02:
Right, but the preference was at the level where the discrimination was occurring, where there was traditional segregation, where the steelworkers had for years excluded blacks, and it was to run out by its own terms once parity was achieved.

[00:32:44] Speaker 04:
Okay, thank you.

[00:32:45] Speaker 02:
Thank you.

[00:32:48] Speaker 04:
All right, Councilor Epley.

[00:32:55] Speaker 03:
Good morning.

[00:32:56] Speaker 06:
Good morning.

[00:32:57] Speaker 03:
My name is Darrell Valdez, and I'm with the United States Attorney's Office, and I represent the State Department in this case.

[00:33:05] Speaker 03:
I apologize for my voice, your honor.

[00:33:07] Speaker 03:
I'm kind of losing it.

[00:33:09] Speaker 05:
As far as you know, does the record have anything on either the State Department's

[00:33:18] Speaker 05:
revelation of the Race Neutral Program or Mr. Shea's awareness of it?

[00:33:27] Speaker 03:
Your Honor, there's nothing in the record.

[00:33:28] Speaker 03:
Nothing?

[00:33:28] Speaker 03:
With respect to... On either of those.

[00:33:30] Speaker 03:
Correct.

[00:33:30] Speaker 03:
Mr. Shea, in the record it is that Mr. Shea claims he did not know of the Race Neutral Program, and that is the only fact in the record we have.

[00:33:39] Speaker 03:
There's no fact about whether or not he wanted to apply or he had a desire to.

[00:33:44] Speaker 04:
So his application says something like,

[00:33:47] Speaker 04:
I apply for, I'll get the numbers wrong, but level six or any other position for which I am qualified.

[00:33:57] Speaker 04:
Doesn't it say something like that?

[00:33:59] Speaker 04:
Or any other level?

[00:34:01] Speaker 03:
Does it say that?

[00:34:02] Speaker 04:
No, I'm asking you.

[00:34:03] Speaker 03:
Your Honor, it is not in the record, correct?

[00:34:08] Speaker 03:
I'm sorry.

[00:34:09] Speaker 03:
His application is, but I don't believe that's on his application.

[00:34:13] Speaker 03:
Your Honor, if I may, I want to point out real quick that with respect to the Certificate of Need and the Race Neutral Program,

[00:34:21] Speaker 03:
in both of them, you could apply at any time, whether or not there was a certificate of need even established in a section, you could still apply.

[00:34:29] Speaker 03:
And in fact, that's what Anne Haslech did, and that is in the record.

[00:34:33] Speaker 03:
She applied for the mid-level race neutral program.

[00:34:37] Speaker 03:
After she was accepted, they then found where her talents

[00:34:41] Speaker 03:
would be best placed, and then they went and obtained the certificate of need for her.

[00:34:47] Speaker 03:
So there didn't have to be a certificate of need.

[00:34:48] Speaker 05:
What was her basis for applying for it?

[00:34:50] Speaker 03:
I'm sorry.

[00:34:51] Speaker 05:
What was her basis for applying for it?

[00:34:53] Speaker 03:
If I'm correct, Your Honor, it was that she had heard that there was a race neutral program.

[00:34:59] Speaker 03:
She inquired, or I'm sorry, she heard about the affirmative action program.

[00:35:03] Speaker 03:
She inquired as to whether or not she could apply, and they told her, no, there is another program that you can apply to.

[00:35:08] Speaker 05:
So it was her inquiry about the

[00:35:11] Speaker 05:
race-based program that led to her information.

[00:35:14] Speaker 05:
That is correct, Your Honor.

[00:35:17] Speaker 05:
Any basis for inferring similar inquiry by Shay would or would not have led to the same result?

[00:35:26] Speaker 05:
Did you just pick the right person to ask?

[00:35:29] Speaker 03:
The problem being, Your Honor, is that the

[00:35:31] Speaker 03:
system was there, the program was there, if he wanted to, if he asked if there was a program which he could apply to the mid-levels, then the answer would have been, of course, yes there is, we have the career replacement program.

[00:35:44] Speaker 03:
And in fact, if I may, Your Honor, even minorities who applied through the affirmative action program and who were qualified still didn't get in.

[00:35:53] Speaker 03:
There had to be the certificate of need for a minority.

[00:35:56] Speaker 03:
under the affirmative action program was not based purely upon their minority status, but was also based, was quote, as established by the goals set forth in the applicable affirmative action plan.

[00:36:08] Speaker 03:
So if there were no vacancy or if there was no underrepresentation for minority or there wasn't a minority needed to increase representation in the section,

[00:36:17] Speaker 03:
They wouldn't get a certificate of need.

[00:36:19] Speaker 03:
They couldn't be placed.

[00:36:20] Speaker 03:
And in fact... Wait, I don't understand.

[00:36:22] Speaker 01:
Why do they need a certificate of need?

[00:36:23] Speaker 01:
I thought the whole point of the affirmative action plan was that you don't need a certificate of need.

[00:36:27] Speaker 03:
Well, it's that which you can apply, but it says, and if you read on pages, I'm sorry, the 1987 plan was at record of 146 and then... 146?

[00:36:40] Speaker 03:
And the 1992 plan is at 441.

[00:36:44] Speaker 03:
Both of them state that the placement of a minority is based upon the goal set forth.

[00:36:56] Speaker 05:
criterion itself is applied on an applicant by applicant basis in some way.

[00:37:04] Speaker 03:
That is correct.

[00:37:05] Speaker 03:
And that was made even more so, Your Honor, in the 1992 program where the affirmative action program says with each time you hire you need to look at

[00:37:16] Speaker 03:
What are the needs or what are the affirmative action goals of the goals of reaching?

[00:37:21] Speaker 01:
So I saw that argument in your brief, and I guess, and the district court alluded to it in its decision too, but I guess from the record evidence that I looked at, there's no way to understand concretely what that meant.

[00:37:33] Speaker 01:
I mean, in other words, the argument you're making is that although the affirmative action program was open to all minorities,

[00:37:39] Speaker 01:
And there may have been a lack of under-representation or even over-representation with respect to certain populations that really, at the end of the day, all that the State Department focused on was those particular populations as to which there was under-representation.

[00:37:55] Speaker 01:
That seems to be your point.

[00:37:58] Speaker 03:
is kind of the goals of what it is.

[00:38:00] Speaker 03:
So it would be, one, is where there was under-representation in the mid-levels, or two, where there was under-representation in the senior levels as would be, could have been assisted or, you know, kind of addressed by promotions at the mid-levels as we talked about.

[00:38:15] Speaker 04:
No, but I thought the point is, in your brief, you said that the department set the percentage goals only for those groups it found there was

[00:38:28] Speaker 04:
this statistical disparity based on its own workforce studies?

[00:38:34] Speaker 03:
Correct, Your Honor.

[00:38:35] Speaker 03:
And if I may actually point out something, though, in counsel's reply brief, they talked about, on page 216, about how there was no underrepresentation of black males, and yet they hired a black male into the consulate calling.

[00:38:49] Speaker 03:
Actually, Your Honor, counsel was pointing to the wrong site.

[00:38:53] Speaker 03:
I think he cited page 218, which are the specialists.

[00:38:56] Speaker 03:
The consulate code was at 216, which is the generalists, and in page 216, black males were noted as being underrepresented.

[00:39:04] Speaker 01:
That's okay.

[00:39:05] Speaker 01:
I want to understand exactly what you're saying here.

[00:39:06] Speaker 01:
So in your brief at pages 40 to 41,

[00:39:11] Speaker 01:
You say that the 9092 Affirmative Action Program corrected for the weaknesses identified by the GAO and specifically identified the manifest imbalances in each specific minority group within which Foreign Service Conal System, as compared to more timely data for a comparator population, and then set goals for only those underrepresented groups.

[00:39:32] Speaker ?:
Correct.

[00:39:33] Speaker 01:
And other than just the statement in the plans that something to the effect of, you know, you should be looking at the groups for which there's under-representation, what concretely happened with that supposed targeting of specific minority groups?

[00:39:47] Speaker 01:
Because you also acknowledge right next to that, right below that, and although all minorities could apply, so all minorities could apply to the program, but then supposedly there's some sort of targeting that goes on after that, where you only set goals for those under-represented groups.

[00:40:03] Speaker 01:
And where do we look to see practically what that meant?

[00:40:06] Speaker 01:
Because all I got from the record was that the program is open to all minority groups.

[00:40:13] Speaker 01:
There's some statement in the plan to the effect that, you know, look at the groups for which there's shown to be underrepresentation, and then it identifies particular groups.

[00:40:23] Speaker 01:
But it never tells anybody what to do with that.

[00:40:25] Speaker 03:
Well, yes, sir.

[00:40:25] Speaker 03:
And if you look at page 441 of the record, at the very bottom, certificate of need of her other documentation, talks about for the minority groups.

[00:40:34] Speaker 03:
It says that as the annual hiring goals established by the Secretary constitutes the certificate of need for such candidate.

[00:40:42] Speaker 03:
So you'd have to look at the annual hiring goals of the sections as they come out to determine what... Wait, where are you looking on 441, sir?

[00:40:51] Speaker 03:
441, the very bottom.

[00:40:52] Speaker 03:
Okay.

[00:40:54] Speaker 03:
Under a certificate of need and other documentation.

[00:41:03] Speaker 01:
And then same thing with... And where are the annual hiring goals?

[00:41:07] Speaker 01:
I'm sorry.

[00:41:08] Speaker 01:
Where are the annual hiring goals?

[00:41:10] Speaker 03:
That we didn't have, Your Honor, but those were not in the record.

[00:41:12] Speaker 03:
Those were not presented in the record.

[00:41:13] Speaker 01:
So how do we know that the annual hiring goals go to specific minority groups as opposed to what I think's been...

[00:41:21] Speaker 01:
the general understanding of the case so far, which is that the hiring goals applied to minorities writ large.

[00:41:26] Speaker 03:
We couldn't find the annual hiring goals because of the lack of time, because of the passage of time.

[00:41:31] Speaker 03:
But in this case, since Johnson and Weber was applying, it was time to burden to show that the hiring was, that the statistics were against us and that it was not narrowly tailored.

[00:41:42] Speaker 03:
And he didn't show that.

[00:41:42] Speaker 03:
He couldn't show that.

[00:41:44] Speaker 03:
He didn't go back and make any statistical analysis show that

[00:41:49] Speaker 03:
any of the hires were in violation or in areas where there was either correct representation or over-representation.

[00:41:58] Speaker 04:
I just need to be clear, though.

[00:42:00] Speaker 04:
There is in the record a page that shows various categories by race and ethnicity and gender, and then it has percentages for some of those.

[00:42:14] Speaker 04:
Are not those

[00:42:16] Speaker 04:
The hiring goals?

[00:42:18] Speaker 03:
No, Your Honor, they were not.

[00:42:19] Speaker 04:
What are those?

[00:42:21] Speaker 03:
I think you're talking about the GAO report.

[00:42:26] Speaker 03:
I think that's what you're talking about.

[00:42:29] Speaker 03:
And we talked about where there was under and overrepresentation.

[00:42:31] Speaker 04:
I also remember in the Department of State's workforce study,

[00:42:37] Speaker 03:
Yes.

[00:42:38] Speaker 04:
All right.

[00:42:39] Speaker 04:
They had these percentages.

[00:42:40] Speaker 03:
Yes, ma'am.

[00:42:41] Speaker 04:
And then that the secretary had issued some directive saying we need to do more, we need to do more.

[00:42:46] Speaker 04:
Yes, ma'am.

[00:42:46] Speaker 04:
And so we have these percentages.

[00:42:48] Speaker 04:
Your Honor, those who?

[00:42:49] Speaker 04:
And that there were some instructions to supervisors that when vacancies come up, you should give consideration to the fact that we're trying to increase.

[00:42:59] Speaker 04:
But is that it?

[00:43:01] Speaker 03:
Yes, Your Honor, if you're talking about pages 530, 531, those pages, those are, they're talking about, what they do is they took some of the information about how many promotions, how many percentage of people are coming in through promotions.

[00:43:13] Speaker 03:
530?

[00:43:14] Speaker 04:
531, you said.

[00:43:18] Speaker 01:
I only have 400, oh 654, sorry.

[00:43:21] Speaker 03:
But if you're talking about the GAO report, Your Honor, where they found that there was no underrepresentation of black males, don't forget at the bottom of that, GAO noted that it's

[00:43:33] Speaker 03:
the data that he was using was clearly outdated.

[00:43:36] Speaker 01:
I think what Judge Rogers may be, I don't, 530 and 531 is just a spreadsheet with a bunch of statistics.

[00:43:42] Speaker 01:
Right, correct.

[00:43:42] Speaker 03:
The spreadsheet that shows the promotion rates of how it was being promoted.

[00:43:47] Speaker 01:
So on page 234, if you look at 234 of the JA, this may be what Judge Rogers was thinking about because it says,

[00:43:56] Speaker 01:
This is part of the 90-92 plan, I think.

[00:43:58] Speaker 01:
And it says, objective, to reduce manifest imbalance of the affected EEO groups in foreign service and civil service.

[00:44:05] Speaker 01:
So it's talking about the affected EEO groups, not all minorities, but the affected groups.

[00:44:09] Speaker 01:
And then action items, Foreign Service Generalists, and it lists some... I'm sorry, which page are you looking at?

[00:44:14] Speaker 01:
234.

[00:44:14] Speaker 01:
Oh, 234.

[00:44:15] Speaker 01:
Yeah.

[00:44:17] Speaker 01:
In volume one.

[00:44:20] Speaker 01:
So 234, and it lists which particular groups

[00:44:27] Speaker 01:
are associated with which particular percentage.

[00:44:29] Speaker 01:
So this is not, this is subgroups as to which there in fact is under representation.

[00:44:35] Speaker 01:
But again what I come back to is that although there is this suggestion that the objective is to reduce manifest imbalance of the affected EEO groups as opposed to minorities writ large, how was this ever actuated?

[00:44:52] Speaker 01:
It's just not, other than this kind of general suggestion that

[00:44:56] Speaker 01:
The objective is to reduce the imbalance with respect to these groups as opposed to with respect to minorities as a class.

[00:45:03] Speaker 03:
I'm wondering why you're looking at 224 or 216.

[00:45:07] Speaker 03:
234.

[00:45:07] Speaker 03:
216 is a relevant page for consular?

[00:45:10] Speaker 01:
Well 234 is Foreign Service Generalists.

[00:45:12] Speaker 03:
It doesn't have like the consular or anything but I mean it has of course general service officers, yes, where there's black males listed as underrepresented.

[00:45:26] Speaker 04:
In other words, were these aspirational and nothing happened?

[00:45:32] Speaker 03:
No, you know, I don't believe that is so.

[00:45:34] Speaker 04:
Well, there's some testimony.

[00:45:36] Speaker 04:
Let's see, when was the congressional testimony?

[00:45:38] Speaker 04:
That's 87, 89, saying that, you know, even though the secretary put out this letter, even though there were these exhortations, nothing changed.

[00:45:49] Speaker 04:
And so then you have the GAO report.

[00:45:52] Speaker 04:
Then you have Congress telling the State Department to do more.

[00:45:55] Speaker 04:
You have EEOC telling the Department.

[00:45:59] Speaker 04:
But it is hard to figure out what happened.

[00:46:02] Speaker 03:
Yeah, it is.

[00:46:03] Speaker 03:
But from the report, you can gather, Your Honor, that what the State Department did was they kind of did a multi-faceted approach.

[00:46:09] Speaker 03:
They kind of improved their recruiting process, which... That didn't work.

[00:46:15] Speaker 03:
Well, it didn't work before.

[00:46:16] Speaker 03:
That's correct, because they recruited, kind of, as the record showed.

[00:46:20] Speaker 04:
So the point is, the record doesn't tell us, is that correct, what actually happened after these goals were set?

[00:46:29] Speaker 03:
Other than who was hired and who wasn't, that is correct, Your Honor.

[00:46:33] Speaker 04:
Where do we know who was hired and who wasn't?

[00:46:36] Speaker 03:
If you go to record at, I'm looking at 489 and I think that we list, if you give me more, I'm sorry, Your Honor, 517 and 516.

[00:46:58] Speaker 03:
So we talked about who all was hired under both the minority mid-level program and who was hired under the race neutral program.

[00:47:09] Speaker 01:
So what I'm having a little trouble following is, if it's true that the program, in fact, at the end of the day, targeted only those specific populations as to which there was under-representation, meaning the particular populations listed at 234 and it is, you say, 224,

[00:47:27] Speaker 01:
If it's true that it targeted only those, then why are you only making an argument with respect to the senior foreign service?

[00:47:32] Speaker 01:
Because then you would have had... Your Honor, I'm sorry.

[00:47:34] Speaker 03:
And I apologize if you got that impression that I'm only making an argument with respect to senior foreign service, because I'm not.

[00:47:39] Speaker 03:
I'm making the argument with respect to both the mid-levels and the seniors.

[00:47:43] Speaker 03:
Because it was found, the GAO report found that there was under-representation, actually all the reports that were done, including the Brammer report, found that there was under-representation in both the mid-levels and the senior levels.

[00:47:54] Speaker 01:
But with the mid-levels, at least as of 1992, which is, I think, the relevant numbers because those are the most latent time numbers, there wasn't under-representation vis-a-vis minorities writ large.

[00:48:08] Speaker 01:
There was under-representation with respect to particular populations, as the 1992 plan itself indicates.

[00:48:13] Speaker 03:
I think that's correct.

[00:48:14] Speaker 03:
I think that's not correct, Your Honor.

[00:48:15] Speaker 03:
I think that you found that there was

[00:48:17] Speaker 03:
under-representation of minorities at large.

[00:48:20] Speaker 01:
The only time... But I thought with respect to some minority populations, there was, in fact, over-representation at the mid-levels.

[00:48:26] Speaker 03:
No, no, no, Your Honor.

[00:48:27] Speaker 03:
In fact, the only place where there was full representation was at the lower junior levels, the entry level.

[00:48:32] Speaker 03:
But I believe that there was, as you can see from the 90 report, there was still quite a bit of under-representation.

[00:48:38] Speaker 03:
Looking at page 216 and those, there was quite a bit of under-representation of minorities in the mid-levels.

[00:48:44] Speaker 01:
But then why doesn't...

[00:48:47] Speaker 01:
First of all, 224 is Foreign Service Specialists, and I don't think that's the right word.

[00:48:51] Speaker 01:
We're looking at Foreign Service Generalists.

[00:48:52] Speaker 01:
Right, that's 216.

[00:48:54] Speaker 01:
So 222 says, um, Conal Analysis for Foreign Service Generalists.

[00:49:00] Speaker 01:
And it gives us particular populations.

[00:49:04] Speaker 01:
White females, black females, Hispanic females, consular white females, American Indian males.

[00:49:09] Speaker 01:
So it's not including every minority population.

[00:49:12] Speaker 01:
Presumably that's because, as to some specific populations,

[00:49:16] Speaker 01:
there was not, not only was there not an under-representation, but there may have even been an over-representation.

[00:49:21] Speaker 01:
But putting that to one side, it looks like under the State Department's own analysis, there wasn't an under-representation with respect to every group, that there was subgroups as to which there was under-representation.

[00:49:32] Speaker 03:
That's correct.

[00:49:34] Speaker 03:
But I thought, okay, I understood your question being that generally that there was minorities wanting to represent the answers.

[00:49:39] Speaker 03:
Yes, they were.

[00:49:40] Speaker 03:
But there were some specific groups that were not in certain areas.

[00:49:44] Speaker 03:
That is correct as well.

[00:49:45] Speaker 03:
What you need to do is you need to do the analysis for each of the areas, which Mr. Shea did not do.

[00:49:50] Speaker 03:
He didn't use it using the timely data, census data.

[00:49:55] Speaker 03:
And so he didn't sustain his burden of showing that this was over-inclusive and that it was not narrowly tailored.

[00:50:02] Speaker 01:
But he says the program is open to all minorities.

[00:50:10] Speaker 01:
That's true, I think.

[00:50:12] Speaker 03:
All minorities can apply, correct.

[00:50:13] Speaker 01:
Right.

[00:50:14] Speaker 01:
And unless there's something going on at the back end that cabins the selection only to those subgroups as to which there's underrepresentation, then the program is not commensurate with the problem because it's allowing for everybody to get a leg up.

[00:50:32] Speaker 03:
First of all, the case law in this jurisdiction says that even though everybody can apply, it doesn't mean that it's too general in itself.

[00:50:41] Speaker 03:
It's what is the action that is being taken that makes it too general?

[00:50:45] Speaker 03:
In this case, are they putting people in places that they're not needed?

[00:50:49] Speaker 03:
Then it becomes too general.

[00:50:50] Speaker 03:
But opening it up to everybody doesn't mean that it's wrong.

[00:50:53] Speaker 03:
In fact, it increases the pool of who you get to choose from and where you want to put them.

[00:50:58] Speaker 03:
there may be an under-representation in the finance office, I'm sorry, say in one of the general offices, doesn't mean that the person doesn't have a good background to put them in the finance office.

[00:51:09] Speaker 03:
So it all depends on what you're looking at when you're figuring out where to put this person in the mid-level.

[00:51:14] Speaker 03:
Secondly, Your Honor, I think for the same reason why the whites could apply and anybody else could apply in the certificate of need program is you apply, anybody could apply in the certificate of need program too, white or minority.

[00:51:26] Speaker 03:
And if they're placed on where they were needed as well.

[00:51:28] Speaker 03:
And it was based on where they looked, where their talents were.

[00:51:34] Speaker 03:
So that didn't make that one too general.

[00:51:36] Speaker 03:
It just made it so that they had a bigger pool to choose from, but their action that was taken was placing them where they were needed.

[00:51:43] Speaker 01:
I think I'm missing something basic and I'll just ask one more time and then I'll stand down.

[00:51:46] Speaker 01:
I apologize.

[00:51:49] Speaker 01:
I'm not talking about across jobs.

[00:51:51] Speaker 01:
I'm talking about specific subgroups.

[00:51:53] Speaker 01:
So just take the following as a given.

[00:51:55] Speaker 01:
Suppose that it's undisputed as a matter of numbers that there's great over-representation of Hispanics in the mid-level foreign service.

[00:52:05] Speaker 01:
Great over-representation.

[00:52:06] Speaker 01:
So there's nothing that needs to be done in order to get to any sort of level that's commensurate with the qualified population writ large.

[00:52:15] Speaker 01:
But then the program is open to everybody, including the population, as to which there's great over-representation.

[00:52:21] Speaker 01:
Are you taking the position that it doesn't matter that the program actually benefits everybody even though there's over-representation as to one benefited population?

[00:52:30] Speaker 03:
The fact that the person is able to apply doesn't make the conduct of the program unlawfully honored.

[00:52:36] Speaker 03:
It's where they place that person.

[00:52:38] Speaker 03:
Did they accept that person and did they

[00:52:40] Speaker 01:
Okay, so then I'm with you.

[00:52:43] Speaker 01:
Then where do we see that in fact the hiring, it sounds like what you're saying is the fact that everybody got to apply doesn't matter unless people actually hired.

[00:52:52] Speaker 01:
And what I don't understand is where in the record does it show that the hiring, the ultimate decisions were only with respect to those populations as to which there was under-representation?

[00:53:02] Speaker 03:
Okay.

[00:53:03] Speaker 03:
Your Honor, in that respect, we believe that it is in the policy itself.

[00:53:06] Speaker 03:
Okay.

[00:53:06] Speaker 03:
And secondly, when you look at page 216 to show that there was underrepresentation.

[00:53:11] Speaker 03:
Now, the only thing that Mr. Shea argues is that, as far as I've understood from his reading of the brief, was that there was a black male that was hired into the mid-levels of the consular program at the time he came in under the program, and he claimed, looking at page 218, there was no underrepresentation of black males.

[00:53:28] Speaker 03:
Problem is that 218 is not the consular program, 216 is.

[00:53:32] Speaker 03:
And 216 shows that there is an under-representation of black males in the consular section.

[00:53:38] Speaker 05:
Is it the premise of the program that there has to be, that race-based appointments are suitable whenever there is a sub-segment of the foreign service that does not match

[00:53:57] Speaker 03:
Well, Your Honor, I think in this case, the evidence is... And I think that can be answered.

[00:54:03] Speaker 03:
Well, I don't believe that that's what we've been arguing.

[00:54:05] Speaker 03:
I don't think that's the facts in this case.

[00:54:06] Speaker 03:
This case's evidence shows that from far back as 1975, the records have shown that there's been this manifest imbalance all the way back to at least 1975 when they started looking at it.

[00:54:17] Speaker 05:
Let's assume it's entirely theoretical, maybe important theory.

[00:54:22] Speaker 05:
So long as there is manifest imbalance, to use the actual term, so long as there is manifest imbalance in

[00:54:33] Speaker 05:
the economic section of the Foreign Service with respect to a particular racial group, then an advantage is suitable for appointment in the economic section, regardless of whether that group is fully represented, overrepresented, whatever, in the rest of the Foreign Service.

[00:54:59] Speaker 03:
I would have to say that probably there are some people who would argue that and some courts that would find that.

[00:55:04] Speaker 03:
However, in this case, the court did not do that.

[00:55:06] Speaker 05:
It went on further and said, these are men balancing the case.

[00:55:16] Speaker 05:
Would it be lawful?

[00:55:18] Speaker 03:
Oh, then it requires that not only there be some imbalance around it, but there has to be some connect with some sort of discrimination in this case.

[00:55:25] Speaker 03:
In the particular, so that... Oh, I see what you're talking about.

[00:55:32] Speaker 03:
Okay, good.

[00:55:32] Speaker 03:
I think it's all about the... If I can't remember, I think the problem is we're getting lost in

[00:55:37] Speaker 03:
This is kind of the shifting burdens here, okay?

[00:55:39] Speaker 03:
Because in the shifting burdens here, what the government has to show is that there was a manifest imbalance and that it required the necessity for the affirmative action program and that there was some sort of connection, okay?

[00:55:49] Speaker 03:
then the burden shifts to the plaintiff to show that it was not narrowly tailored, that maybe that there were some sections that were not underrepresented, and you were still hiring into those, and therefore it was not narrowly tailored.

[00:56:02] Speaker 05:
I think it's the reverse of that situation that I'm trying to get at.

[00:56:06] Speaker 05:
The situation where there isn't, looking at the foreign service as a whole, imbalance.

[00:56:14] Speaker 05:
question of whether the objective of balancing can apply within some narrow group, at least something less than the entirety of the foreign service, because there's imbalance there.

[00:56:28] Speaker 03:
Well, I think the answer is yes.

[00:56:30] Speaker 03:
If you found an imbalance within a section, and again, and I want to, as soon as I finish this conversation, I'm going to talk real quick about something else about the use of the word imbalance, but I think that is correct.

[00:56:39] Speaker 05:
If you find that there is an imbalance, if on the whole... So thereby creating

[00:56:45] Speaker 05:
and imbalance the other way, right, if you look at the Foreign Service as a whole.

[00:56:52] Speaker 05:
In other words, by segmenting the Foreign Service, the State Department requires a justification for creating more imbalance in one direction than existed before, is that right?

[00:57:10] Speaker 03:
I'm sorry, Your Honor, and I really have trouble following what you're saying.

[00:57:14] Speaker 05:
I'll try to make it quite simple.

[00:57:17] Speaker 05:
Let's assume there's a quote, manifest imbalance in the economic section.

[00:57:21] Speaker 05:
Yes.

[00:57:22] Speaker 05:
Okay?

[00:57:24] Speaker 05:
And there's no, with respect to this racial group, there's no manifest imbalance in the Foreign Service as a whole.

[00:57:32] Speaker 05:
You are telling me, I think, that under the plan there can be a preferential appointment in the economic section.

[00:57:41] Speaker 05:
Is that right?

[00:57:43] Speaker 03:
If there is a history of manifest and balance.

[00:57:45] Speaker 03:
Correct, John.

[00:57:45] Speaker 03:
Yes.

[00:57:46] Speaker 05:
Manifest and balance in the economic section.

[00:57:49] Speaker 05:
Correct.

[00:57:53] Speaker 03:
Your Honor, I think we're kind of going a little too simplistic here, I think, because the test wasn't just an imbalance, but there should be something more.

[00:58:02] Speaker 03:
And in fact, the court did find there was something more in this case, that there was the tie-in with discrimination.

[00:58:07] Speaker 03:
And in this case, like I said, there was a fact to show that there was unequal treatment of minorities as they were being promoted all the way up.

[00:58:16] Speaker 03:
Now, in that case, Your Honor, if you're showing that just by chance,

[00:58:20] Speaker 03:
Or that everything is fine everywhere else but in the economic section.

[00:58:24] Speaker 03:
And there's a manifest imbalance in the economic section.

[00:58:26] Speaker 03:
But that's not caused by, say for instance, the fact of some sort of discrimination.

[00:58:32] Speaker 03:
But in fact, just fewer minorities are applying for that spot.

[00:58:36] Speaker 05:
Are you saying then that we have section by section data on the section's discrimination?

[00:58:47] Speaker 05:
I'm not saying overall, I'm saying the particular section.

[00:58:52] Speaker 03:
If you have discrimination in a certain section, yes, I think that you can act to pass the criminal act.

[00:59:01] Speaker 05:
What you're saying is, are you saying that under this plan, it would only be the case of evidence of discrimination in a particular section

[00:59:13] Speaker 05:
that there would be application of the Race Conscious Plan in favor of minority, notwithstanding complete balance across the Foreign Service.

[00:59:27] Speaker 03:
Well, yes.

[00:59:29] Speaker 03:
I think that's part of the narrow tailoring of the program.

[00:59:34] Speaker 05:
You're saying that the record has evidence at that micro level of discrimination.

[00:59:44] Speaker 03:
We have evidence of the discrimination, like I said, through – when the plan was established at the onset about how the discrimination was occurring, then while it's addressing it – And that's section by section.

[00:59:58] Speaker 03:
There was a section by section notice.

[01:00:00] Speaker 03:
Yes, Your Honor, the GAO report and I believe the Brennan report and the other one report also took them section by section and said in the specialist sections there's under-representation and they went through each one.

[01:00:13] Speaker 05:
I'm not talking about under-representation, I'm talking about discrimination.

[01:00:16] Speaker 05:
I think he talked about why there was... You said it was based on evidence of discrimination.

[01:00:22] Speaker 03:
Well, I think that for the purposes of establishing the plan in the first place, it was their discrimination to support the plan.

[01:00:31] Speaker 03:
I don't think we have to go section by section for the purposes of justifying it under the person.

[01:00:39] Speaker 03:
of the first tests of Johnson and Weber, then when it goes to determining was it narrowly tailored, that's when you start to go by the section by section analysis and whether or not the conduct or the plan addressed each of those sections and was it narrow enough, was it narrowed down to address those sections where there was underrepresentation.

[01:00:57] Speaker 03:
And I believe that that's what the court found we did in this case and the record supports that.

[01:01:03] Speaker 05:
I noticed that in your brief, you cite Hammond on a couple of occasions, but never to distinguish it from this case.

[01:01:12] Speaker 05:
I was puzzled at that.

[01:01:16] Speaker 03:
applies Johnson and Weber and so on.

[01:01:19] Speaker 03:
Yes.

[01:01:20] Speaker 03:
Right.

[01:01:21] Speaker 05:
But the outcome with some statistics that Judge McFaul pointed to that seem a little hard to square with your approach here.

[01:01:35] Speaker 03:
did not square with us.

[01:01:36] Speaker 03:
I think in Hammond the statistics were quite broad and were not specific enough for the purposes of determining whether it was narrowly tailored.

[01:01:49] Speaker 04:
Hammond seemed to take the approach that things were okay now, that you couldn't have a plan that addressed messages of discrimination that continued in the department.

[01:02:06] Speaker 04:
Maybe that's what the judge is getting to.

[01:02:09] Speaker 04:
And so the question is, is this panel bound by approaching this case that way?

[01:02:19] Speaker 04:
in terms of its interpretation of Johnson?

[01:02:21] Speaker 03:
Well, no, Your Honor.

[01:02:23] Speaker 03:
Again, we're talking about the shifting of burdens.

[01:02:28] Speaker 03:
Because I think initially, no.

[01:02:31] Speaker 03:
In this case, since we are looking at overall, I think if you're saying I have an affirmative action plan for just one section, then I think you have to look at that section.

[01:02:40] Speaker 03:
But in this case, we're saying we have an affirmative action plan for all the minority hiring in the mid-levels and senior levels of this Foreign Service.

[01:02:47] Speaker 03:
And there, we're entitled to show

[01:02:48] Speaker 03:
that on the whole, on the whole, there was disparate treatment, disparate numbers.

[01:02:58] Speaker 03:
And then, when the burden then shifts to the plaintiff to show that it was not narrowly tailored, then the question comes was, is it, were there violations of that?

[01:03:06] Speaker 03:
Were there people, were there, and in that case, we think that he cited wrong facts.

[01:03:11] Speaker 05:
You're reading Johnson, then, is that,

[01:03:16] Speaker 05:
In the hypo that I gave you earlier, the case where the numbers are disparate in a narrow subsection, it is the plaintiff's burden to show that where the department relies on that in making a race-based promotion, it is the obligation of the plaintiff to show

[01:03:42] Speaker 05:
that that discrepancy is not the result, narrowly calculated discrepancy, is not based on actual discrimination.

[01:03:54] Speaker 01:
Correct.

[01:04:00] Speaker 01:
Can I just back you up to the very beginning for a second, which is on the question of standing?

[01:04:04] Speaker 01:
Yes, sir.

[01:04:05] Speaker 01:
You raise a number of

[01:04:08] Speaker 01:
points in your brief to the effect that there were positions available to which Mr. Shea could have applied but didn't, et cetera.

[01:04:14] Speaker 01:
But you never actually make the argument that he liked standing.

[01:04:17] Speaker 03:
Well, Your Honor, because the problem with the standing argument is that it didn't come about until the plaintiff raised Ritchie.

[01:04:26] Speaker 03:
Because in Ritchie, there has to have been some conduct taken against the plaintiff.

[01:04:31] Speaker 03:
Something had to be taken away from him.

[01:04:33] Speaker 03:
in which in this case there was nothing taken away from him because he never applied, he never got a promotion, and they said, I'm sorry you can't have it because we need to give it to a minority.

[01:04:42] Speaker 03:
That never happened in this case.

[01:04:44] Speaker 03:
In fact, plaintiff has not presented any evidence that any white applicant or any white person who was qualified was denied a promotion or a placement in the mid-levels

[01:04:56] Speaker 03:
in lieu of a minor.

[01:04:57] Speaker 01:
So are you taking the position that he lacks standing or are you not contesting?

[01:05:02] Speaker 03:
We didn't bring that in the standing kind of as more in the context of the prima facie case.

[01:05:06] Speaker 01:
So you think there is standing?

[01:05:08] Speaker 03:
I think he has standing to challenge the affirmative action program under Weber and Johnson, but he lacks a prima facie case.

[01:05:18] Speaker 05:
How does that meet the, how can there be a meeting of the primate?

[01:05:24] Speaker 05:
If it fails to meet the primate spatial case on the question of applying, how can he meet the causation requirement for standing?

[01:05:32] Speaker 03:
Well, I think that as a minority who applied, and since the, I'm sorry, as a member of the majority who applied, and there was a provision that applied only to the minorities, I think that he would have standing to challenge it.

[01:05:43] Speaker 03:
But the question is, is then, once he gets through the door, and again, we're talking about saying, which is just getting in the courtroom door, once he gets across the threshold, he's got to establish the prima facie case, or the burdens under McDonnell Douglas, when I'm being the prima facie case.

[01:05:58] Speaker 05:
So we believe that... If he hasn't applied or shown that he would have applied had he known more, given the State Department's disclosures, how does he meet the causality requirement?

[01:06:18] Speaker 03:
Um, for standing or?

[01:06:22] Speaker 03:
Okay.

[01:06:22] Speaker 05:
Um, well, I mean, not that your position is at all controlling this.

[01:06:27] Speaker 03:
All right.

[01:06:27] Speaker 03:
I understand.

[01:06:29] Speaker 03:
My problem is that we hadn't raised the standing below.

[01:06:32] Speaker 03:
And so we didn't think that, um, that it was proper to raise it again or to raise it in this one.

[01:06:38] Speaker 03:
But we also believe that, um,

[01:06:42] Speaker 03:
We don't think there's really a distinction.

[01:06:44] Speaker 03:
There's a fine distinction, Your Honor, about the distinction between the standing and the pineal fascia cases.

[01:06:50] Speaker 03:
I think he could bring the suit, but if he's not affected in any way by the affirmative action program, then I think he lacks the pineal fascia case.

[01:06:57] Speaker 05:
You seem to have stated the conditions for lack of standing, if he's not affected at all by the program.

[01:07:02] Speaker 06:
I'm sorry.

[01:07:04] Speaker 05:
I'm trying to quote your words exactly.

[01:07:07] Speaker 05:
If he is not affected at all by the program, then you say he hasn't made his prima facie case.

[01:07:12] Speaker 05:
Yes, but the other thing would follow equally.

[01:07:16] Speaker 05:
He hasn't shown the causation element necessary for standing.

[01:07:20] Speaker 03:
Well, if you're willing to find that he lacks the standing.

[01:07:23] Speaker 03:
I'm not going to object to it at all.

[01:07:25] Speaker 05:
But you seem to be drawing an intellectual distinction.

[01:07:28] Speaker 03:
I agree.

[01:07:29] Speaker 03:
It is somewhat of an intellectual distinction.

[01:07:31] Speaker 03:
And that's why I'm thinking that we're kind of talking a distinction without much of a difference.

[01:07:35] Speaker 03:
But if you think the issue is standing, then I'll go with you, Your Honor.

[01:07:41] Speaker 05:
I understand that.

[01:07:42] Speaker 05:
You'd like to win the case.

[01:07:43] Speaker 04:
But the argument would be that for purposes of standing, we have to take the allegations of the complaint as true.

[01:07:50] Speaker 04:
Right.

[01:07:51] Speaker 04:
All right.

[01:07:51] Speaker 04:
And he says he's an employee.

[01:07:53] Speaker 04:
He says he's been, he doesn't use the word Bard, but the affirmative action program barred him from getting this job in the mid-level.

[01:08:02] Speaker 04:
And there's a hole in the brief, in the complaint, that we have been exploring extensively.

[01:08:09] Speaker 04:
And Judge Williams in his earlier question said, what we're really talking about is not prima facie.

[01:08:16] Speaker 04:
We're talking about no causation, standing.

[01:08:21] Speaker 03:
I'm telling you, the reason why I argued it the way we did was that reason.

[01:08:26] Speaker 03:
If the court finds out that standing, I'll live with that.

[01:08:30] Speaker 01:
But wait, but just to clarify.

[01:08:33] Speaker 01:
Yes.

[01:08:35] Speaker 01:
If it's a lack of standing, why does that end the case?

[01:08:38] Speaker 03:
Why, what?

[01:08:39] Speaker 01:
Why does it end the case?

[01:08:40] Speaker 01:
In other words, if you're right that there's no prima facie case, then we affirm.

[01:08:44] Speaker 01:
Right.

[01:08:44] Speaker 01:
If there's a lack of stand, if we think that there's a question as to standing,

[01:08:49] Speaker 01:
then is the appropriate relief to affirm or is it to send it back to allow him to do whatever?

[01:08:56] Speaker 01:
He won't introduce facts that establish his standing.

[01:08:58] Speaker 03:
Well, that's just his job.

[01:09:00] Speaker 03:
He's got to introduce the facts to show his standing.

[01:09:03] Speaker 03:
And if you find that there was nothing in the record to show standing, then I think that based on the record, the court can make that determination.

[01:09:12] Speaker 01:
I don't know.

[01:09:12] Speaker 01:
I mean, I think we usually, of course, often give somebody a chance if they think that the allegations are insufficient to establish standing to say whatever needs to be said.

[01:09:23] Speaker 01:
Now, maybe that as a matter of fact, he can't say it.

[01:09:25] Speaker 01:
Because if the problem is that the question is whether he was interested in applying, then maybe if he wasn't interested in applying, and if that's a problem with standing, then he can't say it.

[01:09:33] Speaker 01:
But if he could say it, and the only failure is that he hasn't said it so far, then we typically give somebody a chance to do that.

[01:09:39] Speaker 03:
Which would then send the case back to the district court to do another step, which I think is kind of unnecessary, because I believe that the district court was correct under Webber and Johnson, the State Department wins this case.

[01:09:51] Speaker 03:
Either way, even on the fact.

[01:09:53] Speaker 01:
We have to look at standing.

[01:09:55] Speaker 03:
I understand that, John, but I'm just saying that it's kind of, as we call it often in the criminal side, an error that, I'm sorry, there was no prejudice.

[01:10:08] Speaker 03:
There was no prejudice.

[01:10:09] Speaker 04:
I'm sorry, Your Honor.

[01:10:10] Speaker 03:
No, go ahead.

[01:10:11] Speaker 03:
Well, there's no prejudice.

[01:10:11] Speaker 03:
I mean, there's nothing.

[01:10:13] Speaker 03:
It may have been a mistake, but it was not a mistake.

[01:10:15] Speaker 01:
I'm sorry?

[01:10:16] Speaker 01:
We can't do that with standing.

[01:10:17] Speaker 01:
I know.

[01:10:17] Speaker 03:
I know that, John.

[01:10:18] Speaker 03:
But what I'm saying is that in this case, we address it as a prima facie, and we think that that was kind of the appropriate place to place it.

[01:10:28] Speaker 04:
All right.

[01:10:29] Speaker 04:
Thank you.

[01:10:29] Speaker 04:
Anything further, quickly?

[01:10:31] Speaker 03:
No, Your Honor.

[01:10:33] Speaker 03:
With that, I think I would ask the court for the decision.

[01:10:36] Speaker 03:
Thank you.

[01:10:38] Speaker 04:
All right.

[01:10:38] Speaker 04:
Council for Appellate.

[01:10:44] Speaker 02:
Thank you, Your Honors.

[01:10:45] Speaker 02:
I'll try to be brief.

[01:10:46] Speaker 02:
I'd like to first discuss some of the imbalance issues that the Court was struggling with, and then briefly touch on standing at the end.

[01:10:52] Speaker 02:
I think we can cut through the record with a couple pages.

[01:10:56] Speaker 02:
The Court would look at pages 211.

[01:11:00] Speaker 02:
of the record and 210.

[01:11:02] Speaker 02:
These are the only data set, other than the GAO report, which counsel concedes fails to show imbalance.

[01:11:11] Speaker 02:
These are the only data sets.

[01:11:12] Speaker 04:
No, he didn't concede that.

[01:11:13] Speaker 04:
Quite the contrary.

[01:11:15] Speaker 02:
The GAO report?

[01:11:16] Speaker 02:
Yes.

[01:11:17] Speaker 04:
Well, then the report could be- Let's not talk about concessions.

[01:11:19] Speaker 04:
Let's make your argument.

[01:11:20] Speaker 04:
Yeah.

[01:11:22] Speaker 02:
Fair enough.

[01:11:22] Speaker 02:
Then there's two data sets here at issue in this case.

[01:11:25] Speaker 02:
The GAO report at 285, which explicitly states no imbalance for four of the six races, and the data set on pages 211 and 210 of the record.

[01:11:36] Speaker 02:
on page 210 for 1989, black male, Hispanic male, American Indian male, and Asian American male each lists a number.

[01:11:44] Speaker 02:
If you then compare that to their own comparator on page 217, each of those races, every single one that I listed is overrepresented.

[01:11:55] Speaker 02:
That is the only data that they have showing imbalance at the mid-level.

[01:12:01] Speaker 02:
That's it.

[01:12:03] Speaker 02:
And each data set

[01:12:05] Speaker 02:
fails to demonstrate an imbalance.

[01:12:08] Speaker 02:
There is no imbalance here.

[01:12:09] Speaker 02:
They cannot show it.

[01:12:11] Speaker 02:
They have no evidence of it.

[01:12:13] Speaker 02:
And in fact, overrepresentation is rampant.

[01:12:16] Speaker 01:
So can I just ask you on this data?

[01:12:18] Speaker 01:
Absolutely.

[01:12:18] Speaker 01:
Page 216, I think, comes from the same rough set of data.

[01:12:24] Speaker 01:
Maybe it's cutting it a little differently or something.

[01:12:26] Speaker 01:
But 216 says, Patco analysis for foreign service generalists

[01:12:32] Speaker 01:
And it lists certain populations as to which there's a manifest imbalance.

[01:12:37] Speaker 02:
Absolutely.

[01:12:37] Speaker 01:
And is that because those include entry-level?

[01:12:40] Speaker 02:
It includes entry-level and senior levels, Your Honor.

[01:12:42] Speaker 02:
It does not include mid-level.

[01:12:44] Speaker 02:
If you only look at mid-level data, there's no imbalance.

[01:12:46] Speaker 02:
And they can't point to anything in the record that demonstrates an imbalance in the mid-level.

[01:12:50] Speaker 01:
Okay, so you're looking at the mid-level alone, which would be FS2 through 2 and 3.

[01:12:57] Speaker 02:
Yes, and there's no imbalance there.

[01:13:01] Speaker 01:
Well, as to certain populations.

[01:13:02] Speaker 02:
As to every population that receives the preference.

[01:13:07] Speaker 01:
I thought there was at least one or two populations as to which there was under-representation.

[01:13:13] Speaker 01:
You may be right that there's over-representation as to some, but

[01:13:16] Speaker 02:
I believe if you look at black males, they're 5.4 and 5.0.

[01:13:21] Speaker 02:
In 1989, in 1990, they're 5.0 and 5.0.

[01:13:25] Speaker 02:
The balance should be 4.5.

[01:13:27] Speaker 01:
You'd have to include females, obviously.

[01:13:29] Speaker 01:
Pardon?

[01:13:29] Speaker 01:
You'd have to include females, I think, if you're going to do a racial... Well, there was also a female preference program in place that we haven't... No, but I mean, if you're going to do it based on...

[01:13:37] Speaker 01:
Racial classification, you'd include both males and females.

[01:13:42] Speaker 02:
That calculation I have not calculated in my head.

[01:13:45] Speaker 01:
That may be the discrepancy.

[01:13:48] Speaker 02:
I'd like to briefly go back to standing.

[01:13:50] Speaker 02:
As my friend pointed out, the only evidence in the record here is that Shay did not know of the race neutral program.

[01:13:57] Speaker 02:
That is the only evidence in the record.

[01:13:58] Speaker 02:
We are on summary judgment.

[01:14:00] Speaker 02:
There's nothing demonstrating that this was an advertised or known neutral program.

[01:14:06] Speaker 02:
I also would like to re-emphasize that he came into the Foreign Service un-coned.

[01:14:11] Speaker 02:
They do not say that you go to the consular cone where there's a certificate of need.

[01:14:15] Speaker 04:
So when he applied, he sent his application where?

[01:14:22] Speaker 02:
I'm not sure precisely where he sent it.

[01:14:24] Speaker 04:
Well, what I'm getting at, the Department of State has a human resources personnel department or something like that.

[01:14:31] Speaker 04:
So your application goes in.

[01:14:33] Speaker 06:
Right.

[01:14:37] Speaker 04:
He's saying, I want a job.

[01:14:43] Speaker 02:
That's correct, Your Honor.

[01:14:44] Speaker 02:
And for the first four to five years of your employment as a Foreign Service Officer at levels five and four, I believe you jumped to level four after one and a half years as a matter of course.

[01:14:54] Speaker 02:
But after five years, that is when this coning happens.

[01:14:58] Speaker 02:
You go to a panel, if you're going to be a tenured Foreign Service Officer, which

[01:15:02] Speaker 02:
my client became, that is when they decide which cone you go into.

[01:15:06] Speaker 02:
As a matter of fact, my client's first cone was not consular.

[01:15:09] Speaker 02:
My client's first cone was administrative.

[01:15:12] Speaker 02:
My client's preferred cone was not consular.

[01:15:14] Speaker 02:
My client's preferred cone was politic, politics, and economics.

[01:15:17] Speaker 04:
So there's nothing in the record to show he ever asked the question that the white female asked.

[01:15:23] Speaker 04:
Is there anything in the record to show that he inquired about what

[01:15:32] Speaker 04:
opportunities were available and indicated his interest.

[01:15:37] Speaker 04:
That's all I just want to know.

[01:15:38] Speaker 02:
I do not know of anything in the record.

[01:15:40] Speaker 02:
All right.

[01:15:40] Speaker 02:
Thank you.

[01:15:41] Speaker 02:
But as I believe the only evidence in the record is that he did not know of it, and my pre-olsaide client had no idea that he needed to introduce that evidence when it was not disputed until the score prior.

[01:15:55] Speaker 04:
Which was not disputed?

[01:15:56] Speaker 02:
That he had to make a prime official case and that we believe he the the element that he needed to Demonstrate a desire to apply for these positions was never in doubt By the department we certainly believe that we could produce you could get a stranger on the street All right, who says gee I would have applied That's all we're trying to tie this down a little bit

[01:16:21] Speaker 02:
I believe the tie down and the limiting factors come from Title VII itself.

[01:16:26] Speaker 04:
All right.

[01:16:26] Speaker 04:
So it doesn't matter if you've applied or if you have any interest in applying.

[01:16:31] Speaker 04:
Your prima facie case is established.

[01:16:33] Speaker 02:
I think the element that he needs to show is that opportunities within his employer were precluded from him because of his skin color.

[01:16:42] Speaker 04:
Even though they weren't?

[01:16:44] Speaker 02:
They absolutely were, Your Honor.

[01:16:45] Speaker 04:
No, I'm saying there was this other program available to him.

[01:16:48] Speaker 02:
There was another program that had one certificate of need available in a cone.

[01:16:52] Speaker 02:
There was another program that had opportunities in many cones.

[01:16:56] Speaker 04:
But it's not as though, you know, Supreme Court cases talking about he was barred across the department.

[01:17:04] Speaker 04:
That's all I'm trying to understand.

[01:17:06] Speaker 02:
I believe he was barred across many cones, as flatly barred.

[01:17:12] Speaker 02:
And that is a significant opportunity to advance to the mid-level.

[01:17:16] Speaker 02:
The Title VII prohibits the State Department.

[01:17:19] Speaker 04:
You say he was flatly barred across the cones, but he was assigned to be an administrative cone.

[01:17:27] Speaker 02:
Six years down the line once he went through the entry levels.

[01:17:30] Speaker 04:
Well, he wasn't eligible before that.

[01:17:32] Speaker 02:
Precisely.

[01:17:32] Speaker 02:
But if he were of a different race, he would have been eligible.

[01:17:36] Speaker 04:
But there was that.

[01:17:38] Speaker 04:
Anyway, I get it.

[01:17:40] Speaker 04:
OK.

[01:17:40] Speaker 04:
Thank you.

[01:17:41] Speaker 02:
Thank you.

[01:17:42] Speaker 04:
We will take the case under advisement.