JOHN LEWIS SMITH, JR., UNITED STATES DISTRICT JUDGE
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.
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.
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 only from the statute which the decree is intended to enforce." Gorsuch, supra. 718 F.2d at 1125 (citation omitted).
With the entry of the Consent Decree in this matter on October 12, 1983, the Court certified the plaintiff class as all Unsuccessful female applicants to become FSOs through the Junior Officer Program at any time between February 4, 1976 and June 21, 1983, who were not subsequently hired as FSOs, and who did not also apply for FSO positions through the mid-level, lateral entry or reappointment programs. C.D., p. 2. Various specific relief provisions in the decree outlined defendant's obligations to the certified plaintiff class, foremost among which was 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.
Defendant was additionally obligated to file prospective reports with the Court throughout the duration of the decree, "documenting the number of persons taking and passing written examination[s], by sex, and the procedures utilized to establish the passing score for each portion of the written examination.", C.D. para. 18(b), and to permit plaintiffs to inspect, inter alia "applications, written examination results, assessment center results, final review panel results, any policy statements or memoranda concerning the recruitment and hiring of junior level FSOs, and all other records of substantial importance and relating to the recruitment, selection and appointment of new junior level FSOs . . . ." C.D. para. 20. These reporting provisions were ostensibly negotiated to ensure defendant's compliance with the mandate in Paragraph (1) of the decree enjoining 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". Id.
In view of the injunction set forth in Paragraph (1) of the decree and the foregoing specific prospective reporting provisions, there can be little question that the parties intended the Court to retain jurisdiction throughout the effective duration of the decree for the specific purpose of monitoring the discriminatory impact, vel non, of post-decree examination procedures employed by the Department of State. The Court similarly finds that the injunction against defendant's employment of future discriminatory examination procedures, having been negotiated with the same precision as all of the other provisions of the decree, was intended by the parties to be equally enforceable with each of those other terms. In this regard, the Court presumes, as it must, that the parties intended all parts of the decree to have meaning. See Roberts v. St. Regis Paper Co., 653 F.2d 166, 171 (5th Cir. 1981). Absent a showing of defendant's compliance with all of the decree's provisions, including the injunction, the Court's jurisdiction to grant such relief as may be necessary to carry out the purposes of the decree remains in effect and the decree cannot be terminated. C.D. para. 25.
It should additionally be noted that defendant's denial of the use of discriminatory examination procedures in the past does not affect the enforceability of the injunction against the use of post-decree discriminatory practices. Stated more particularly, the absence of an adjudication on the merits of plaintiffs' claims has no effect upon the validity of the injunction entered pursuant to the consent decree. See United States v. Swift & Co., 286 U.S. 106, 114, 52 S. Ct. 460, 76 L. Ed. 999 (1932); see also Ennels v. Alabama Inns Associates, 581 F. Supp. 708, 710 (M.D.Ala.1984). In conclusion, the Court finds that the prohibition against defendant's employment of discriminatory post-decree examination procedures is a fully binding injunction, enforceable by the Court through such relief as is necessary to effectuate the purposes of the decree. Id.
Defendant claims that notwithstanding a finding by the Court that the terms of Paragraph (1) are applicable to post-decree examination procedures, the certified plaintiff class, i.e., all unsuccessful female FSO applicants between 1976 and 1983, have no standing to seek enforcement of the injunction for the benefit of non-class members who took written FSO examinations in 1985 and 1986. The Court disagrees.
Basic principles of contract law confer standing upon a promisee to a consent decree to bring an action against a breaching promisor for specific performance of the promisor's obligations. See Berger v. Heckler, 771 F.2d 1556, 1564 (2d Cir. 1985). Likewise, the promisee is entitled to obtain specific performance of a promisor's obligations under a consent decree on behalf of a third party intended beneficiary. Id. In either instance, the promisor's nonperformance constitutes a breach of contract as to the promisee, giving the promisee standing to seek enforcement of the terms of the decree against the promisor. Id. In conclusion, the Court finds that plaintiffs in the case at bar have standing in their own right to challenge defendant's compliance with all of the terms of the decree, including the injunction against defendant's use of post-decree examination procedures.
Scope of Relief
Defendant maintains that because Paragraph (2) of the consent decree purportedly grants the Department of State the exclusive authority to review its own examination practices and make any changes it deems appropriate to prevent disparate examination results against women, the Court has no authority to augment the Department's internal examination review procedure with any other form of relief. The Court disagrees.
Paragraph (2) is essentially nothing more than a general description of the Department of State's internal procedures for evaluating and improving its own examination practices.
This general policy statement can by no means however be construed as a preclusive limitation on the Court's jurisdiction to enforce the specific mandate in Paragraph (1) enjoining 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." On the contrary, Paragraphs (1) and (2) stand mutually independent from one another; the latter imposing a duty upon defendant to police its own examination practices, the former authorizing the Court to police defendant's compliance with the law.
Further in this regard, defendant's argument that the Department of State, "rather than plaintiffs or the Court," has the exclusive authority to determine whether any of the post-1983 examinations have had an adverse impact on women, is directly refuted by the various specific monitoring provisions of the decree requiring defendant to periodically file reports with both the plaintiffs and the Court, throughout the effective duration of the decree, documenting pass-fail ratios of male and female examinees. See C.D. paras. 18(b), 20. In conclusion, the Court finds that its jurisdiction to enforce the injunction in Paragraph (1) against defendant's employment of post-decree examination practices, is not in any way limited by the general statement of defendant's internal examination review procedures set forth in Paragraph (2).
Plaintiffs' Statement of a Prima Facie Case of Disparate Impact
Plaintiffs allege that the passing rate for women on the 1985 written FSO examination was 82.7 percent of the passing rate for men, a difference of 4.9 standard deviations. Plaintiffs further allege that the passing rate for women on the 1986 written examination was 84 percent of the passing rate for men, a difference of 4.1 standard deviations. Plaintiffs' allegations, if taken as true, would constitute a prima facie showing of disparate adverse impact against female examinees on the examinations in question. See generally, Palmer v. Shultz, 259 U.S. App. D.C. 246, 815 F.2d 84, 90-97 (D.C. Cir. 1987). Rather than responding to the merits of plaintiffs' allegations, defendant, in reliance on the various foregoing procedural objections, has "reserve[d] the right to challenge plaintiffs' statistical allegations in the event the Court ultimately determines that issue is even relevant to these cases." Because the Court has concluded that plaintiffs' allegations are indeed relevant to the issue of whether defendant has complied with the consent decree's injunction against the use of discriminatory post-decree examination procedures, an appropriate order will be entered directing defendant to file a timely substantive response to plaintiffs' statistical allegations. Defendant's motion to terminate the consent decree will accordingly be denied pending a showing of compliance with the injunction contained in Paragraph (1). Plaintiffs' motion to enforce the consent decree will be passed on the merits pending defendant's response to plaintiffs' statistical allegations relating to the 1985 and 1986 written FSO examinations in question.
An appropriate order follows.
Dated: December 28, 1988
Upon consideration of plaintiffs' motion to enforce junior-level consent decree, defendant's motion to terminate consent decrees, the parties' respective oppositions thereto, and the entire record, it is by the Court this 28th day of January, 1988
ORDERED that defendant shall within 20 days file a response to plaintiffs' statistical allegations relating to the Department of State's 1985 and 1986 written Foreign Service examinations; it is further
ORDERED that plaintiffs shall file their reply within 10 days of the filing of defendant's response; it is further
ORDERED that plaintiffs' motion to enforce the junior-level consent decree is passed on the merits pending defendant's response thereto; it is further
ORDERED that defendant's motion to terminate the junior-level consent decree is denied; and it is further
ORDERED that upon consideration of defendant's motion to terminate the Mid-Level Consent Decree, approved by the Court on March 5, 1985, plaintiffs' having no opposition thereto, the Mid-Level Consent Decree is hereby terminated.