The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me by Judge Kennedy for a Report and Recommendation or determination of various motions. Most of these motions relate to whether plaintiffs can seek certain discovery regarding the design and implementation of the Foreign Service Written Examination by the Department of State. Upon consideration of the motions, oppositions, replies, and the entire record, Defendant's Motion for a Protective Order ("Def.'s Mot.") [#570] is denied as moot;*fn1 Plaintiffs' Motion for Discovery Pursuant to Rule 56(f) and to Stay the Time for Responding to Defendant's Motion to Terminate the Requirements in the 1996 Global Consent Decree Regarding the Foreign Service Written Examination Until Discovery Is Complete ("Pls.' Mot.") [#591] is granted; Defendant's Renewed Motion for a Protective Order Regarding June 4, 2004 Discovery on Examination Issues ("Def.'s Renewed Mot.") [#597] is denied; and Defendant's Motion to Terminate the Requirements in the 1996 Global Consent Decree Regarding the Foreign Service Written Examination ("Mot. to Term.") [#582] is denied without prejudice pending further discovery and may be renewed once discovery is complete.
In 1976, plaintiffs brought this lawsuit on behalf of a class of female Foreign Service Officers ("FSOs") and female applicants to become FSOs. They alleged that the Department of State ("State") had discriminated against women in their opportunities for hire as FSOs and in their employment opportunities once hired, in violation of Title VII of the Civil Rights Act of 1964. Some of plaintiffs' claims have been resolved by Consent Decrees, while others have been litigated. The pending motions focus on plaintiffs' claims regarding the administration of the Foreign Service Written Examinations ("FSWEs" or "Examinations") beginning in the mid-1990s.
On January 19, 1989, this court found that defendant's use of the 1985, 1986, and 1987 FWSEs had an adverse impact on women, was not justified by business necessity, and violated Title VII and a 1983 Consent Decree that had been negotiated by the parties and approved by the court. Order, Jan. 19, 1989, as amended by Order, Mar. 22, 1989 ("Order") at 1. The court then enjoined defendant from administering Examinations in such a manner that they had an adverse impact, defined as a discrepancy in male and female pass rates of 1.96 or more standard deviations. Id. at 4. The court then authorized State to use a certain scoring methodology for the 1988 Examination, and if the government intended to use a different methodology, State had to submit it for court approval. Indeed, the court ordered defendant to "submit for [c]court approval a method for scoring future examinations until a new, non-discriminatory examination is designed and implemented." Id.
C. The Global Consent Decree
On January 29, 1996, the court approved a Global Consent Decree ("GCD" or "Decree") that had been negotiated by the parties to "resolve any and all claims . . . regarding employment discrimination on the basis of sex by the defendant from February 4, 1976, through December 31, 1994, as to any promotions from grade 3 to grade 2, Superior Honor Awards, the Foreign Service examination, stretch and downstretch, out-of cone to consular, program direction, Deputy Chief of Mission assignments, and potential ratings in evaluations." GCD at 4-5. Notwithstanding this agreement, plaintiffs specifically reserved the right to claim, inter alia: (1) discrimination in the FSWE beginning in 1991, and (2) discrimination after December 31, 1994. Id. at 5-6.
Under a section entitled "Prospective Relief," the GCD prohibits State from discriminating against female applicants for junior level Foreign Service career candidate positions, including discrimination in Examinations and other selection procedures. Id. at 10.
The GCD also contains a section entitled "Reporting and Inspection of Records." Within this section, the GCD set out the requirement that defendant submit reports to the court and plaintiffs on July 31, 1996 and July 31, 1997. These reports covered the periods from January 1, 1996 through June 30, 1996 and July 1, 1996 through June 30, 1997, respectively. The reports had to include various information, including data about any Examinations administered within the relevant time periods. Aside from these reports, defendant was not required to file any other "reports" with the court. Nothing in the GCD states that these reporting requirements prevented plaintiffs from seeking additional information as they saw fit.
However, the GCD also placed certain requirements on plaintiffs. For example, on or before October 31 of each reporting year (or no later than 90 days after State submitted the relevant report to the court), plaintiffs' counsel had to notify defendant's counsel of whether plaintiffs believed State was in compliance with the Decree during the preceding reporting period. Id. at 39. Plaintiffs' counsel had the option of stating that they needed further information to determine whether State was in compliance. Id. If they chose to request such information, plaintiffs had 90 days after receipt of the data to determine whether they believed State was in compliance with the Decree for the preceding year. If plaintiffs failed to contact defendant's counsel within this time frame, State would be deemed to be in compliance with the Decree.
Finally, the Decree stated that the court retained jurisdiction to enforce the Decree or order "such further relief as may be necessary to effectuate the purposes of the Decree." Id. at 40. It also established automatic termination dates for the injunction and reporting requirements as they related to certain categories of information, but not as they related to the FSWE, Special Honor Awards, and potential ratings in performance appraisals. The injunctions regarding the awards and ...