Authority of the Equal Employment Opportunity Commission to Conduct Defensive Litigation, 84-13
| Decision Date | 21 June 1984 |
| Docket Number | 84-13 |
| Citation | 8 Op. O.L.C. 146 |
| Parties | Authority of the Equal Employment Opportunity Commission to Conduct Defensive Litigation |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
Theodore B. Olson Assistant Attorney General Office of Legal Counsel.
In general, the Attorney General has plenary authority over the supervision and conduct of litigation to which the United States is a party. Courts have narrowly construed statutory grants of litigation authority to agencies to permit 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 Equal Employment Opportunity Commission is limited to that which is specifically provided by statute, namely, enforcement actions brought against private sector employers. 42 U.S.C. §§ 2000e-4(b), 2000e-5, 20OOe-6. Accordingly, the Commission may not independently defend suits brought against it in connection with its federal sector administrative and enforcement and adjudicative functions, or actions brought against it by its own employees challenging Commission personnel decisions. Such suits are to be handled by attorneys under the supervision of the Attorney General.
MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL, CIVIL DIVISIONThis responds to your memorandum seeking die views of this Office regarding die role that die 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 die EEOC in connection with its Federal sector administrative enforcement and adjudicative responsibilities, or in actions by its own employees challenging Commission personnel decisions. You have advised us that it has been die position of die Civil Division that die 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 die Attorney General's plenary authority over litigation on behalf of die United States and the narrow construction necessarily accorded exceptions to this authority, the EEOC's litigating authority in Tide VII suits is limited to that which is specifically provided by statute, namely enforcement actions brought against private sector employers. See 42 U.S.C. §§ 2000e-4(b), 2000e-5, 2000e-6. Likewise, die 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 [ 147] § 2000e-4 note (Supp. V 1981)), cannot fairly be read to embrace litigation involving challenges to its personnel decisions.[1] Nevertheless, while we conclude 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]
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 Confiscation 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) coordination 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 litigation 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 of the Attorney General's Task Force on Litigating Authority (Oct. 28, 1982)); [ 148] ''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 contained 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); ICC v. Southern Railway Co., 543 F.2d 534 (5th Cir. 1976), affd, 551 F.2d 95 (1977) (en banc); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968). See generally Report of 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 authority 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.
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.. . . [ 149] (2) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission 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)(1), (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)(1) (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 addition, § 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, Reorganization 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 generally 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...
To continue reading
Request your trial