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PALMER v. SHULTZ

December 28, 1988

ALISON PALMER, et al., Plaintiffs,
v.
GEORGE P. SHULTZ, Defendant. MARGUERITE COOPER, et al., Plaintiffs, v. GEORGE P. SHULTZ, Defendant



The opinion of the court was delivered by: SMITH, JR.

JOHN LEWIS SMITH, JR., UNITED STATES DISTRICT JUDGE

Introduction

 Plaintiffs currently seek enforcement of an injunction contained in a Consent Decree ("C.D.") approved by the Court in this matter on October 12, 1983, prohibiting defendant from engaging in "any act or practice which has the purpose or effect of discriminating against any female applicant for a junior level FSO position, including written examinations or other selection procedures. C.D. para. 1. Plaintiffs allege that defendant violated the injunction by administering written FSO examinations in both 1985 and 1986 which resulted in a discriminatory disparate impact against female examinees.

 In response, defendant maintains that plaintiffs have no standing to challenge the discriminatory impact of any post-decree examinations administered to FSO applicants who had not previously been certified as members of the plaintiff class. Alternatively, defendant contends that the decree grants the State Department, "not the plaintiffs or the Court," the exclusive authority to both monitor its examination practices and make any changes which it deems necessary to prevent disparate results against female examinees. Lastly, defendant claims that because he has complied with all of his specific relief obligations to the class plaintiffs, the Court should terminate the decree.

 For the reasons set forth in the accompanying discussion, the Court concludes that Paragraph (1) of the consent decree constitutes a binding and enforceable injunction against defendant's use of discriminatory post-decree examination procedures and that plaintiffs have standing in their own right as the promisees under the consent decree to seek enforcement of defendant's obligation to comply with the injunction.

 Background

 Plaintiffs instituted this sex discrimination action in 1976 on behalf of a class of female Foreign Service Officers ("FSOs") and female applicants to become FSOs, alleging that written FSO qualification examinations administered by the Department of State resulted in a disparate adverse impact against female examinees, in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq. On October 12, 1983, this Court approved a Consent Decree entered into between the parties, in which plaintiffs agreed to relinquish any further litigation of their claims in exchange for defendant's agreement to appoint seventy-five (75) class members to FSO positions through a qualification procedure which would not include the purportedly discriminatory written Foreign Service examination. C.D. paras. 4-10. The decree further enjoined defendant from engaging in any future "act or practice which ha[d] the purpose or effect of discriminating against any female applicant for a junior level FSO position, including written examinations or other selection procedures". C.D. para. 1.

 Various monitoring provisions in the decree required defendant to provide prospective reports to both the Court and plaintiffs, throughout the effective duration of the decree, for the specific purpose of ascertaining the gender-based impact of post-decree examination procedures employed by the Department of State. C.D. paras. 18(b), 20-21. The Court's jurisdiction over the implementation of the terms of the decree was to continue until such time as defendant made a showing that it had "provided all of the specific relief outlined in [the] Decree and ha[d] complied with the Decree's other provisions". C.D. para. 25.

 Discussion

 General Principles of Consent Decree Construction

 It should be noted by way of brief background that "[c]onsent decrees are entered by the parties to a case after careful negotiation has produced agreement on their precise terms." Citizens for a Better Environment v. Gorsuch, 231 U.S. App. D.C. 79, 718 F.2d 1117, 1124 (D.C. Cir. 1983)(citation deleted). In negotiating a consent decree, "the parties each give up something they might have won had they proceeded with the litigation." Id. The final terms of the decree embody as many of the opposing purposes of the respective parties as they have the bargaining power and skill to achieve. Id.

 While the construction of the consent decree itself is "essentially a matter of contract law," the decree must be treated "as a judicial act" enforceable by the Court's contempt powers. Id. at 1125. As with all contracts, "the scope of a consent decree must be discerned within its four corners." United States v Western Electric Co., Inc., 254 U.S. App. D.C. 415, 797 F.2d 1082, 1089 (D.C. Cir. 1986). Finally, the Court's "authority to adopt a consent decree comes ...


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