Authority of the Equal Employment Opportunity Commission to Conduct Defensive Litigation ( 1984 )

Authority of the Equal Employment Opportunity
Commission to Conduct Defensive Litigation
In general, the A ttorney General has plenary authority over the supervision and conduct of
litigation to w hich the United States is a party. Courts have narrowly construed statutory
grants o f litigation authority to agencies to perm it such power only when the authorizing
statutes are sufficiently clear and specific to ensure that Congress intended an exception to the
general rule.
The litigation authority of the E qual Employment Opportunity Commission is limited to that
w hich is specifically provided by statute, namely, enforcem ent actions brought against private
sector em ployers. 42 U.S.C. §§ 2000e-4(b), 2000e-5, 2000e-6. Accordingly, the Commission
may not independently defend suits brought against it in connection with its federal sector
adm inistrative and enforcement and adjudicative functions, or actions brought against it by its
own em ployees challenging Com m ission personnel decisions. Such suits are to be handled by
attorneys under the supervision o f the Attorney General.
June 21, 1984
M em o ran d um O p in io n for the A c t in g A s s is t a n t A t t o r n e y G eneral,
C iv il D iv is io n
This responds to your memorandum seeking the views of this Office regard­
ing the role that the Equal Employment Opportunity Commission (EEOC or
Commission) plays in defending suits brought under Title VII of the Civil
Rights Act of 1964,42 U.S.C. §§ 2000e et seq., as amended, against the EEOC
in connection with its Federal sector administrative enforcement and adjudica­
tive responsibilities, or in actions by its own employees challenging Commis­
sion personnel decisions. You have advised us that it has been the position of
the Civil Division that the EEOC lacks independent litigating authority when it
is sued as a result of personnel decisions regarding Federal employment. The
EEOC contends that it can represent itself in court any time it is named as
defendant.
As discussed below, we conclude that, in view of the Attorney General’s
plenary authority over litigation on behalf of the United States and the narrow
construction necessarily accorded exceptions to this authority, the EEOC’s
litigating authority in Title VII suits is limited to that which is specifically
provided by statute, namely, enforcement actions brought against private sec­
tor employers. See 42 U.S.C. §§ 2000e-4(b), 2000e-5, 2000e-6. Likewise, the
Commission’s general grant of litigating authority, as set forth in § 2000e-4(b)
and Reorganization Plan No. 1 of 1978, 92 Stat. 3781 (reprinted in 42 U.S.C.
146
§ 2000e-4 note (Supp. V 1981)), cannot fairly be read to embrace litigation
involving challenges to its personnel decisions.1 Nevertheless, while we con­
clude that the Commission lacks the authority to litigate independently in these
cases, we believe that Commission attorneys may assist Department of Justice,
or other duly authorized, attorneys in such cases, or otherwise participate in
such litigation under the general supervision of the Attorney General.2
I. Background
A. The Attorney General’s Litigating Authority
Questions concerning the litigating authority of Executive Branch agencies
necessarily must begin with a recognition of the Attorney General’s plenary
authority over the supervision and conduct of litigation to which the United
States, its agencies and departments, or officers thereof, is party. This plenary
authority is rooted historically in our common law and tradition, see Confisca­
tion Cases , 74 U.S. (7 Wall.) 454,458-59 (1868); The Gray Jacket, 72 U.S. (5
Wall.) 370 (1866); and, since 1870, has been given a statutory basis. See 28
U.S.C. §§ 516, 519.3 See generally United States v. San Jacinto Tin Co., 125
U.S. 273 (1888). The rationales underlying this grant of plenary authority to the
Attorney General are many. The most significant are the need to centralize the
government’s litigation functions under one authority to ensure (1) coordina­
tion in the development of positions taken by the government in litigation, and
consideration of the potential impact of litigation upon the government as a
whole; and (2) the ability of the President, as head of the Executive Branch, to
supervise, through the Attorney General, the various policies of Executive
Branch agencies and departments as they are implicated in litigation. Because
of his government-wide perspective on matters affecting the conduct of litiga­
tion in the Executive Branch, the Attorney General is uniquely suited to carry
out these functions. See United States v. San Jacinto Tin Co., 125 U.S. at 278-
80. See also Report o f the Attorney General’s Task Force on Litigating Author­
1 Although you did not specifically request o ur views regarding the C om m ission's authority to conduct
defensive litigation arising out o f its enforcem ent responsibilities against private sector em ployers under
Title VII, the Equal Pay Act, 29 U .S.C. § 206(d), and the Age D iscrim ination in Em ploym ent Act, 29 U .S.C.
§§ 621 et seq., because the issue appears to rem ain unsettled between the Department and the C om m ission,
we have provided o ur view s in Part U.B in an effort to provide a com prehensive analysis o f the C om m ission's
authority to conduct defensive litigation on its ow n behalf.
2 W e understand th at in O ctober 1980, the A ssistant A ttorney General for the Civil D ivision reached an
agreem ent with the C om m ission’s D eputy G eneral Counsel that the Civil D ivision “w ould, as a m atter o f
practice, perm it EEO C to defend itself in these law suits."
328 U.S.C. § 516 provides:
Except as otherw ise authorized by law, the conduct o f litigation in w hich the U nited States, an
agency, o r o fficer thereof is a party, or is interested, and securing evidence therefor, is reserved
to officers o f the D epartm ent o f Justice, under the direction o f the A ttorney General.
28 U.S.C. § 519 provides:
Except as otherw ise authorized by law, the Attorney General shall supervise all litigation to
which the U nited States, an agency, o r o fficer thereof is a party, and shall direct all U nited States
Attorneys, A ssistant U nited States A ttorneys, and special attorneys appointed under section 543
o f this title in the discharge o f their respective duties.
147
ity (Oct. 28, 1982)); “The Attorney General’s Role as Chief Litigator for the
United States,” 6 Op. O.L.C. 47 (1982).
Notwithstanding Congress’ determination that the litigating functions of the
Executive Branch be centralized in the Attorney General, the Attorney General’s
“plenary” authority over litigation involving the United States is limited to
some extent by the “except as otherwise authorized by law” provisions con­
tained in 28 U.S.C. §§ 516, 519. Nevertheless, mindful of the considerations
supporting such centralization, the courts have narrowly construed statutory
grants of litigating authority to agencies in derogation of the responsibilities
and functions vested in the Attorney General, and have permitted the exercise
of litigating authority by agencies only when the authorizing statutes were
sufficiently clear and specific to ensure that Congress indeed had intended an
exception to the general rule. See, e.g., Case v. Bowles, 327 U.S. 92 (1946);
IC C v. Southern Railway Co., 543 F.2d 534 (5th Cir. 1976), a ffd , 551 F.2d 95(1977) (en banc); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968). See generally
Report o f the Attorney General’s Task Force on Litigating Authority, supra ; 6
Op. O.L.C. 47, supra.
Moreover, such exceptions are generally construed to grant litigating author­
ity only with respect to the particular proceedings referred to in the statutory
provision, and not as a broad authorization for the agency to conduct litigation
in which it is interested generally. Id. See also “Litigation Authority of the
Equal Employment Opportunity Commission in Title VII Suits Against State
and Local Governmental Entities,” 7 Op. O.L.C. 57 (1983).
In short, the general rule regarding litigating authority on behalf of the
United States is that it is presumed to be vested exclusively in the Attorney
General, to be exercised under the general supervision of the Attorney General
or his delegees within the Department of Justice,4 unless such authority is
clearly and unambiguously vested by statute in an officer other than the
Attorney General.
B. The E E O C ’s General Litigating Authority
1. Title VII of the Civil Rights Act
The general litigating authority of the EEOC is set forth in Title VII of the
Civil Rights Act of 1964. Section 705 provides in pertinent part:
(1) . . . The General Counsel shall have responsibility for the
conduct of litigation as provided in sections 2000e-5 and 2000e-
6 of this title. The General Counsel shall have such other duties
as the Commission may prescribe or as may be provided by law
and shall concur with the Chairman of the Commission on the
appointment and supervision of regional attorneys.. . .
4 28 U S.C . § 510 authorizes the A ttorney G eneral “ from time to tim e [to] make such provisions as he
considers appropriate authorizing the perform ance by any other officer, employee, or agency o f the D epart­
m ent o f Justice o f any function of the A ttorney G eneral.”
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(2) Attorneys appointed under this section may, at the direc­
tion of the Commission, appear for and represent the Commis­
sion in any case in court, provided that the Attorney General
shall conduct all litigation to which the Commission is a party in
the Supreme Court pursuant to this subchapter.
42 U.S.C. §§ 2000e-4(b)(l), (2). In addition, § 2000e-4(g)(6) authorizes the
Commission “to intervene in a civil action brought under § 2000e-5 of this title
by an aggrieved party against a respondent other than a governmental agency
or political subdivision.” Sections 2000e-5 and 2000e-6, referred to above,
constitute the enforcement provisions for Title VII of the Act and set forth the
enforcement responsibilities of the Commission and the Attorney General,
respectively. Section 2000e-5 authorizes the Commission, after investigating
allegations of unlawful employment practices, filing charges and failing “to
secure from the respondent a [timely] conciliation agreement acceptable to the
Commission,” to bring civil actions “against any respondent not a government,
governmental agency, or political subdivision named in the charge . . . or to
intervene in such civil action upon certification that the case is of general
public importance.” 42 U.S.C. § 2000e-5(f)(l) (emphasis added). In cases in
which the respondent is a “government, governmental agency, or political
subdivision,” litigation authority rests with the Attorney General. Id.5 In addi­
tion, § 2000e-5(i) authorizes the Commission to “commence proceedings to
compel compliance” in any “case in which an employer, employment agency,
or labor organization fails to comply with an order of a court issued in a civil
action brought under [§ 2000e-5].” Section 2000e-6, as amended by Reorgani­
zation Plan No. 1 of 1978,92 Stat. 3781 (reprinted in 42 U.S.C. § 2000e-4 note
(Supp. V 1981)),6 limits the government’s authority to engage in public sector
“pattern or practice” enforcement litigation to the Attorney General. See gener­
ally 7 Op. O.L.C. 57.
In a 1983 memorandum to the Civil Rights Division, we opined that the
limitations on the General Counsel’s authority which are set forth in § 2000e-
4(b)(1) necessarily are incorporated into the “litigating authority” granted
Commission attorneys in § 2000e-4(b)(2). See 7 Op. O.L.C. at 61-62. We
5 As noted above, the C om m ission retains authority to perform pre-litigation functions, e.g., investigations,
the filing o f charges, and the secu n n g o f voluntary com pliance and conciliation measures, w ith respect to
public sector em ployers.
6 A lthough the tran sfer o f litigation authority in public sector “pattern or practice” suits from the EEOC to
the Attorney G eneral was accom plished pursuant to the P resident's authority under the R eorganization Act o f
1977, 5 U.S.C. § 9 0 1 , an Act which contains an unconstitutional legislative veto provision, see INS v.
Chadha, 462 U S. 919 (1983), the D epartm ent has taken the position that the legislative veto provision is
severable from the rem aining provisions o f the A ct granting the President reorganization authority See
EEOC v. Hernando Bank , 724 F.2d 1188 (5th C ir. 1984); EEOC v Jackson County, No. 83-1 1 1 8 (W.D. Mo.
Dec. 13, 1983); Muller Optical Co. v. EEOC, 574 F. Supp 946 (W .D. Tenn. 1983), appeal pending , No. 8 3 -
5889. See also EEOC v. City o f Memphis , 581 F. Supp. 179 (W .D. Tenn. 1983) (holding that Congress has
ratified the EEOC’s authority under Reorganization Plan No. 1 o f 1978). But see EEOC v. Westinghouse
Electric Co , No. 83 -1 2 0 9 (W .D. Pa. Jan. 5, 1984); EEOC v. Allstate Insurance Co., 570 F. Supp. 1224 (S.D.
Miss. 1983), appeal dismissed. No. 83-1 0 2 1 , 52 U.S.L.W . 3889 (June 11, 1984), appeal pending. No. 8 3 -
4652 (5th Cir.). See also EEOC v. Pan American World Airways, 576 F. Supp. 1530 (S.D .N .Y . 1984).
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concluded that to construe § 2000e-4(b)(2) without regard to § 2000e-4(b)(l)
would grant Commission attorneys authority which supersedes that of the
General Counsel, under whose supervision they work, pursuant to § 2000e-
4(b)(1) and, moreover, that such a construction would be contrary to the
general rule that exceptions to the Attorney General’s plenary litigating author­
ity are to be narrowly construed. See also Report o f the Attorney General’s
Task Force on Litigating Authority, supra.
In a memorandum to this Office, the Legal Counsel to the Commission
disputed this analysis.7 Although the Legal Counsel’s argument is not entirely
clear, she appears to contend that the Commission was granted broad litigating
authority when it was created by Title VII of the Civil Rights Act in 1964,
which has not been diminished by subsequent amendments, i.e., § 2000e-
4(b)(1), to the Act. Regarding the limitations on the General Counsel’s author­
ity which are set forth in § 2000e-4(b)(l), the Legal Counsel opined that
“section [2000e-4](b)( 1) involves a different matter than section [2000e-4](b)(2),
i.e., the enforcement function the Commission acquired in 1972,” adding that
“[n]o support appears in the legislative history for the argument that [§ 2000e-
4](b)( 1) was intended to limit the broad grant of authority contained in [§ 2000e-
41(b)(2).”
The Legal Counsel correctly notes that in 1964, the newly created Commis­
sion was granted authority to appoint attorneys who “may, at the direction of
the Commission, appear for and represent the Commission in any case in
court,” Pub. L. No. 88-352, § 705(h), 78 Stat. 241, 259 (1964), but at that time
the only matters on which the Commission was authorized to appear in court
were those in which it commenced proceedings against private-sector employ­
ers to compel compliance with court orders issued in civil actions brought by
aggrieved parties under § 20Q0e-5, see § 706(i), 78 Stat. at 261 (codified at 42
U.S.C. § 2000e-5(i)).8 Thus, although the Commission was given broad “en­
forcement” authority under the Act, including the authority to investigate
allegations of unlawful employment practices and to undertake efforts to
secure voluntary compliance, with the exception noted above of suits to compel
compliance with court orders secured by aggrieved parties, none of . the
Commission’s powers under the Act at the time of its creation in 1964 entitled
the Commission to conduct litigation on its own behalf. Rather, the
Commission’s involvement in litigation under the Act was limited to “refer[ring]
7 U ntil recently, the E E O C 's Office o f th e Legal C ounsel was a subdivision of the O ffice o f the General
C ounsel, headed b y the “ A ssociate G eneral Counsel, Legal Counsel D ivision." We understand that, pursuant
to a reorganization, the Legal Counsel D ivision has been removed from the G eneral C ounsel’s Office,
establishing it as a separate office u n d er the C hairm an’s control. A lthough we take no position on the
C o m m is sio n s authority to effect such a reorganization, w e do not b elieve that through such a reorganization,
litigatin g authority vested by statute in th e General C ounsel could be transferred to an official outside o f the
G eneral C o u n se l’s control. N or do we believe that such authority could be “created” or “ inferred,” if
previously nonexistent, and vested in the new ly constituted Legal C ounsel Division.
8 A lthough the 1964 A ct authorized o n ly aggrieved parties to bring unlaw ful em ploym ent discrim ination
suits under § 2000e-5, subsection (e) o f th a t provision (presently 42 U .S.C . § 2 0 0 0 e '5 (f» did authorize the
court, “ in its discretion, [to] perm it the A tto rn ey G eneral!, upon timely application,] to intervene in such civil
action if he certifies that the case is o f g en eral public im portance.”
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matters to the Attorney General with recommendations for intervention in a
civil action brought by an aggrieved party under section 706 [42 U.S.C.
§ 2000e-5], or for the institution of a civil action by the Attorney General under
section 707 [42 U.S.C. § 2000e-6, in cases involving allegations of a ‘pattern or
practice’ of unlawful conduct], and to advis[ing], consulting] and assisting]
the Attorney General on such matters.” § 705(g)(6), 78 Stat. at 259.
In 1972, the Act was amended to strengthen the Commission’s enforcement
authority by establishing a General Counsel and authorizing him to bring
actions in federal courts under certain provisions of the Act against private
sector employees. See generally Pub. L. No. 92-261, 86 Stat. 103 (1972).9
Section 706 of the Act, 42 U.S.C. § 2000e-5, was amended to grant the
Commission authority to “bring a civil action against any respondent not a
government, governmental agency, or political subdivision named in the charge,”
and to intervene, at the court’s discretion, in an action brought by an aggrieved
party against a nongovernmental employer “upon certification that the case is
of general public importance.” See 42 U.S.C. § 2000e-5(f). In addition, en­
forcement authority in “pattern or practice” litigation pursuant to § 707 of the
Act, 42 U.S.C. § 2000e-6, was transferred from the Attorney General to the
Commission, effective March 24, 1974, by the 1972 amendments.10
To assist the Commission in the performance of these expanded enforcement
functions, Congress provided for the appointment, by the President, of a
General Counsel, whose responsibilities would include “the conduct of litiga­
tion as provided in 42 U.S.C. sections 2000e-5 and 2000e-6 .. . [and] such
other duties as the Commission may prescribe or as may be provided by law.”
42 U.S.C. § 2000e-4(b)(l). See also S. Rep. No. 681, 92d Cong., 2d Sess. 20
(1972). It is clear from the legislative history of the 1972 amendments that
Congress intended to commit all litigating functions of the agency to the
supervision of the General Counsel, and moreover, that the General Counsel’s
litigating functions were to be “as provided in sections 706 and 707 of the Act.”
118 Cong. Rec. 7169 (1972) (section-by-section analysis of H.R. 1746). Thus,
to construe § 2000e-4(b)(2) as providing a residual source of litigating author­
ity, unrelated to § 2000e-4 (b)(1), which either expands upon the General
Counsel’s limited authority provided in § 2000e-4(b)(l) or constitutes an inde­
pendent grant of litigating authority to Commission attorneys without regard to
’ Prior to 1972, the position o f General Counsel was not specifically provided for by statute, although the
Com m ission generally appointed an attorney to assume the role o f supervising the C om m ission’s legal staff
in the perform ance o f its legal duties. During consideration o f the 1972 amendments, several bills to em pow er
the C om m ission to issue cease and desist orders, and to create an “ independent” G eneral Counsel, who w ould
be appointed by the President and be outside o f the control o f the C hairm an and the Com m ission, and who
w ould perform prosecutorial functions before such a quasi-adjudicative C om m ission, were debated at length.
A lthough the b ills to vest the C om m ission with quasi-adjudicative authority were defeated in favor of those
granting the C om m ission authority to file civil actions in federal court, the provisions for a Presidentiaiiy
appointed G eneral C ounsel remained. See generally Subcomm. on Labor o f the Senate Comm, on Labor and
Public W elfare, 92d Cong., 2d Sess., Legislative History o f the Equal Employment Opportunity Act o f 1972
(1972).
10 Section 5 o f Reorganization Plan No. 1 o f 1978, supra, transferred enforcem ent authority under § 707 in
public sector cases back to the A ttorney General.
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the General Counsel, would fly in the face of well-established rules of statutory
construction11 as well as the general statutory and policy constraints discussed
above on construing grants of litigating authority.12
11 The Legal C o u n se l's interpretation is inconsistent w ith several general rules o f statutory construction,
including the rules (1) that sections o f a statute should be construed “ in connection with every other part or
section so as to produce a harmonious w hole,” 2A Sutherland Statutory Construction § 46.05 (4th ed. 1973),
(2) th at adoption o f an amendment is evidence that the legislature intends to change the provisions o f the
original bill, see 2A Sutherland , supra, § 48.18; and (3) that statutes in pari materia should be construed
together, and if there exists “an irreconcilable conflict betw een the new provision and the prior statutes . . .
the new provision w ill control as it is th e better expression o f the legislature,” 2A Sutherland , supra, § 51.02.
See generally Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247 (1953); Bindczyck v. Finucane,
342 U.S. 7 6 (1 9 5 1 ).
12 The Legal C ounsel has cited tw o cases in support o f the argum ent that § 2000e*4(b)(2) constitutes a
general g ran t o f litig atin g authority to Com m ission attorneys to conduct defensive litigation on the
C o m m issio n 's behalf, notwithstanding the lim itations on the General C ounsel's authority in § 2000e-4(b)(l).
The first case, Falkowski v. EEOC, 719 F.2d 470 (D.C. Cir. 1983), is an action brought against the
C om m ission and the Department o f Ju stic e by a disgruntled form er EEOC em ployee seeking reim bursem ent
for past legal expenses and a guarantee o f future legal representation in two suits brought against her by a
subordinate during h er tenure as director o f one o f the C om m ission’s field offices. In granting the governm ent’s
m otion for sum m ary judgm ent — the governm ent was represented by Department o f Justice attorneys, with
EE O C attorneys on the b r ie f — the co u rt stated in a footnote that EEOC attorneys could not have represented
the em ployee, Falkow ski, in the e arlie r litigation because o f “the irreconcilable conflict o f interest that
existed betw een the agency and Ms. Falkow ski in that case.” 719 F.2d at 478 n.14. The court noted that the
C om m ission and Falkow ski were adverse parties in litigation arising out o f the same underlying dispute, and
that it w ould have been “highly im proper for EEOC attorneys to undertake such dual representation.” id. That
the co u rt appears to assum e that EEO C attorneys w ould be representing the Commission in such litigation
does not in any w ay negate Department o f Justice participation in and supervision o f the litigation on behalf
o f the C om m ission. The conflict of in terest arises sim ply from the fact o f the EEOC attorneys’ involvement in
the C om m ission’s defense, i.e., from hav in g participated in the c ase 's preparation. Thus, it can hardly be said
that the Falkowski case stands for the proposition that the C om m ission’s attorneys are statutorily authorized
to co nduct defensive litigation, independently o f the A ttorney G eneral, on the C om m ission's behalf.
The second case cited by the Legal C ounsel is Dormu v. Walsh, No. 73-2014 (D.D.C. Mar. 5, 1975), a jfd
mem. sub nom. Dormu v. Perry, 530 F.2d 1093 (D.C. C ir.), cert, denied , 429 U.S. 849 (1976). Dormu
involved a series o f cases filed by a form er EEOC em ployee alleging, inter alia, Title VII violations, 42
U .S.C . § 2000e-16, by the Commission. In the particular case cited by the Commission, Dormu sought, and
w as denied, p relim inary injunctive re lie f restraining the C om m ission from discharging him, pending the
resolution o f his claim s on the m erits. Dormu m oved to disqualify the EEOC General Counsel from
representing the C om m ission, on the g round that “ [u]nder 28 U.S.C. § 516 only the D epartm ent o f Justice can
c onduct any litigations [sic] in which th e United States, an agency, or officer thereof is a party.” The General
C ounsel o pposed the m otion, citing his authority “to represent the C om m ission in any case in court, 42 U.S.C.
§ 2 0 0 0 e-4(b)(2)” and the fact that the D epartm ent o f Justice had referred the case to the Com m ission, as it
w as “th e practice o f the [Department] w hen the A ttorney G eneral [w as] served, to refer Title V II cases filed
against the C om m ission to the C om m ission so that the C om m ission's O ffice of General Counsel may defend
the su it.” T he d istrict court denied D o rm u 's m otion and, on appeal, the court in a footnote o f its memorandum
opinion stated that “ [a] ruling on the m otion was deferred and the issue was reserved for the merits panel. The
statute referred to in the text [42 U .S .C . § 2000e-16(c)] and 42 U .S.C. § 2000e-4(b) rebut appellant's
contention on this m atter.” The merits panel, by order, and w ithout a published opinion, dism issed D orm u’s
action.
W e do not believe that the Dormu c ase provides any credible support for the Legal C ounsel’s argument.
First, C om m ission attorneys, as the G eneral Counsel acknow ledged, w ere defending the suit, “as was the
practice,” pursuant to a specific “delegation” o f litigation authority from the Department o f Justice — the
C om m ission did not purport to rely solely on its statutory authorization. Equally significant is the fact that the
court, although ruling against D orm u's motion, did not, in a published opinion, indicate the reasons for its
ruling, so th at its precedential value is extrem ely lim ited. Finally, we cannot fail to note that in the papers
filed by the C om m ission in Dormu, the G eneral Counsel did not p roffer a distinction, pressed upon us now by
the Legal C ounsel, betw een his authority under § 2 0 0 0 e-4 (b )(l) and that o f Commission attorneys under
§ 2000e-4(b)(2). R ather, the General C ounsel, albeit erroneously, considered him self, as the chief attorney
for the C om m ission, as deriving authority from both §§ 2 0 0 0 e-4 (b)(l) and (b)(2).
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2. Litigating Authority Acquired by the EEOC Under Reorganization Plan
No. 1 of 1978
In addition to its enforcement responsibilities under Title VII, in 1978 the
EEOC assumed enforcement responsibilities relative to several additional fair
employment laws — the Equal Pay Act (EPA), 29 U.S.C. § 206(d), the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., the
Rehabilitation Act, 29 U.S.C. § 791, and Title VII of the Civil Rights Act as
applied to federal workers, 42 U.S.C. § 2000e-16. Pursuant to Reorganization
Plan No. 1 of 1978, all enforcement authority which had been vested previ­
ously in the Administrator of the Wage and Hour Division of the Department of
Labor, the Secretary of Labor, and the Civil Service Commission regarding
enforcement of the EPA, the ADEA, the Rehabilitation Act, and Title VII of
the Civil Rights Act was transferred to the EEOC. See Reorganization Plan No.
1 of 1978, 42 U.S.C. § 2000e-4 note, supra. To the extent that any of those
statutes granted independent litigating authority to the persons or agencies
charged with their enforcement, a proposition which is the subject of consider­
able disagreement between the Department of Justice and the EEOC,13 such
authority was transferred to the Commission by the 1978 Reorganization Plan.
With this understanding of the EEOC’s general litigating authority, we turn
now to the specific questions raised in your memorandum to us.
II. EEOC’S Authority to Conduct Defensive Litigation
You have asked us to examine the Commission’s role in defending suits
brought “in connection with [the Commission’s] Federal sector administrative
enforcement and adjudicative responsibilities” under Title VII of the Civil
Rights Act, and in actions brought “by its own employees challenging Com­
mission personnel decisions.” As noted above, the Commission’s general
litigating authority is derived from two sources: § 705 of Title VII, 42 U.S.C.
§ 2000e-4(b), and Reorganization Plan No. 1 of 1978, supra. Because the
Commission’s Federal sector enforcement authority under Title VII, the EPA,
the ADEA, and the Rehabilitation Act was transferred to the EEOC from the
Civil Service Commission by the 1978 Reorganization, we must examine the
Civil Service Commission’s litigation authority regarding these statutes prior
to the Reorganization.
A. Litigation Authority Inherited from the Civil Service Commission
Although the 1978 Reorganization Plan transferred to the EEOC all func­
tions related to the enforcement of Title VII of the Civil Rights Act against
federal government employers which were previously vested in the Civil
13 See Report o f the Attorney General’s Task Force on Litigating Authority , supra. Com pendium at 40
(“ [f]or the present tim e, the C ivil Division and the Com m ission have ‘agreed to disagree' [about the
C om m ission's independent litigating authority post-1978]").
153
Commission, see 42 U.S.C. § 2000e-16, litigation was not among the Civil
Service Commission’s functions under § 2000e-16.14 Enforcement litigation
authority pursuant to § 2000e-16 was retained by the Attorney General.15
Although § 2000e- 16(c) provides that “an employee . . . aggrieved by the final
disposition of his complaint. . . may file a civil action as provided in section
2Q00e-5 of this title, in which civil action the head of the department, agency,
or unit, as appropriate, shall be the defendant,” whether an agency may repre­
sent itself in such an action depends upon the nature and scope of the particular
defendant agency’s litigating authority.16 As noted above in Part I. A., statutory
grants of litigating authority to agencies, in derogation of the Attorney General’s
plenary authority, must be construed narrowly to permit the exercise of such
authority only when clearly and specifically provided for. The EEOC’s litigat­
ing authority under its authorizing statute, 42 U.S.C. § 2000e-4, is limited, as
discussed above, to the initiation of, and intervention in, civil actions against
private sector employers.
Likewise, the Civil Service Commission’s functions under the ADEA and
the Rehabilitation Act, currently vested by statute in the EEOC, did not include
litigation on its own behalf of either an enforcement or a defensive nature.
Section 633a(b) of Title 29 authorizes the EEOC
to enforce the provisions of [29 U.S.C. § 633a](a) [the ADEA as
applied to federal employees] through appropriate remedies,
including reinstatement or hiring of employees with or without
back pay, as will effectuate the policies of this section. The
Equal Employment Opportunity Commission shall issue such
rules, regulations, orders, and instructions as it deems neces­
sary and appropriate to carry out its responsibilities under this
section.
,4 The C ivil Service Com m ission's functions under § 2000e-16 included, inter alia, the review o f agencies'
national and regional equal em ployment opportunity plans, the prom ulgation o f m les and regulations “as it
deem s n ecessary and appropriate to c arry out its responsibilities under this section,” and the issuance o f final
agency o rd ers and appropriate remedies regarding discrim ination com plaints by federal employees.
15 Section 2000e-16(d) provides th at “ [t]he provisions o f sections 2000e-5(f) through (k) o f this title, as
applicable, shall govern civil actions b rought hereunder.” As discussed above, § 2000e-5 vests litigation
authority regarding public sector em ployers, including the federal governm ent, in the Attorney General. This
vesting o f authority in the Attorney G eneral facilitates th e enforcem ent process by allow ing the Attorney
G eneral, i f the EEO C is unsuccessful in reaching a satisfactory conciliation agreem ent, to perform the
dispute- resolution functions delegated to him by the President in Executive O rder 12146, reprinted in 28
U .S.C . | 509 note, in lieu o f suing o th e r Executive B ranch agencies in court. W ith respect to independent
agencies, an d other governm ental en tities w ithin the scope o f § 2000e-16’s coverage which are not a part o f
the E xecutive B ranch, the Attorney G en eral may, in his discretion, sue if necessary to achieve a satisfactory
result.
16 W e recognize that in such actions by federal em ployees, the EEO C, w hether o r not it is the defendant
em p lo y er agency, may be named as a co-defendant because o f its role in processing em ployee com plaints in
the adm inistrative process. In such cases the A ttorney G eneral is m ost likely to be representing the defendant
agency; to perm it the Commission to represent itself in such circum stances, independently o f the A ttorney
G eneral, w ould create the risk of conflict in the courts as to the position o f the U nited States in such litigation,
i.e., the E xecutive speaking with two co n flictin g voices.
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(Emphasis added.) In addition, the EEOC is required to “provide for the
acceptance and processing of complaints of discrimination in Federal employ­
ment on account of age,” to receive notices of intent to sue by aggrieved
individuals prior to their filing a civil action in federal district court, and to
“promptly notify all persons named therein as prospective defendants in the
action and take any appropriate action to assure the elimination of any unlawful
practice.” 29 U.S.C. §§ 633a(b)(3), (d). The EEOC’s functions under the
Rehabilitation Act are similarly limited to voluntary conciliation and compli­
ance measures. See id. § 791.
We thus conclude that the Commission lacks the authority to defend itself,
independently of the Attorney General, against suits brought under Title VII,
the ADEA, and the Rehabilitation Act in connection with its federal sector
administrative enforcement and adjudicative responsibilities, including suits
brought under those provisions by its own employees challenging Commission
personnel decisions. However, this conclusion does not preclude Commission
attorneys from appearing as co-counsel with Department of Justice Attorneys,
as is the case with attorneys from other “client” agencies, filing joint briefs, or
otherwise actively participating in the Commission’s defense, so long as such
activities are carried out under the general supervisory authority of the Attor­
ney General or his delegees within the Department of Justice.
B Litigation Authority Inherited From the Secretary of Labor and the Ad­
ministrator of the Wage and Hour Division, Department of Labor
Having addressed the question of the Commission’s authority to defend
itself against suits brought under Title VII, the ADEA and the Rehabilitation
Act in connection with its federal sector administrative enforcement and adju­
dicative responsibilities, including suits initiated by its own employees, we
now consider the remaining issue of the EEOC’s authority to defend itself in
suits arising in connection with its newly acquired enforcement responsibility
in the private sector under the EPA and the ADEA. As we have seen in the
context of the EEOC’s general litigating authority statute, 42 U.S.C. § 2000e-
4, and the authority transferred to the EEOC from the Civil Service Commis­
sion pursuant to Reorganization Plan No. 1 of 1978, supra, the Commission’s
authority to litigate on its own behalf is limited to certain types of enforcement
actions, as distinguished from matters involving defensive litigation. Likewise,
to the extent that “litigating authority” was vested in the Secretary of Labor and
the Administrator of the Wage and Hour Division by the EPA and the ADEA
and transferred to the Commission by the 1978 Reorganization Plan, a proposi­
tion regarding which the Department has expressed serious doubts, it was
strictly of an offensive enforcement nature and cannot fairly be construed to
encompass defensive litigation.
The Secretary of Labor’s “litigation” authority under the EPA and the
ADEA was limited to “the filing of a complaint” and to “bringing] . . .
action[s]” under 29 U.S.C. §§ 206,207,215 and 217 to redress violations of the
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acts on behalf of aggrieved complainants. 29 U.S.C. §§ 216(b), (c), 626(b).
This Department has consistently taken the position, however, that such lan­
guage, simply authorizing an agency to “file a complaint” or to “bring an
action” is insufficient to establish independent litigating authority. See Report
o f the Attorney General’s Task Force on Litigating Authority,” supra', 6 Op.
O.L.C. 47, supra. See also IC C v. Southern Railway Co., 543 F.2d 534 (5th Cir.
1976), a ffd , 551 F.2d 95 (1977) (en banc). Even if these provisions had vested
litigating authority in the Secretary of Labor, and by reference, in the EEOC,
such “authority” would be limited to litigation of an offensive, rather than a
defensive, nature. Moreover, whatever “litigation authority” the Commission
inherited from the Administrator of the Wage and Hour Division was limited to
“appear[ing] for and represent[ing] the [Commission] in any litigation, but all
such litigation shall be subject to the direction and control o f the Attorney
General.” 29 U.S.C. § 204(b) (emphasis added).17
Conclusion
After carefully reviewing the EEOC’s authority pursuant to its general
authorizing statutes and those pursuant to which it inherited authority from the
Secretary of Labor, the Administrator of the Wage and Hour Division and the
Civil Service Commission, we conclude that the Equal Employment Opportu­
nity Commission lacks the authority to defend itself, independently of the
Attorney General, in suits brought under Title VII of the Civil Rights Act in
connection with its federal sector administrative enforcement and adjudicative
responsibilities, as well as in suits brought by its own employees challenging
Commission personnel decisions. Our conclusion is compelled by the language
of the statutes authorizing the Commission’s fair employment enforcement
activities, as well as the general reservation of litigating authority on behalf of
the United States, unless otherwise expressly provided for, to the Attorney
General, which is mandated by 28 U.S.C. §§ 516, 519.
T heodore B. O lso n
Assistant Attorney General
Office o f Legal Counsel
17 N otw ithstanding o u r view that the EEO C did not acquire any litigating authority from the Civil Service
C om m ission, the Secretary o f Labor o r th e A dm inistrator o f the W age and Hour Division under these statutes
by o p eration o f the 1978 R eorganization Plan, the EEOC has consistently m aintained that it has authority to
conduct both offensive and defensive litigation on its ow n behalf under the statutes for which it acquired
enforcem ent responsibilities. Although th e D epartm ent o f Justice has continued to oppose EE O C ’s assertions
o f such claim s, an agreem ent was reached in 1979 betw een the D epartm ent’s Civil D ivision and the
C om m ission w hereby the Department w ould continue to conduct the defensive litigation on behalf o f the
C om m ission, w ith appropriate input fro m Com m ission attorneys.
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