Equal Employment Opportunity Commission Actions Against Public Employers to Enforce Settlement or Conciliation Agreements

Decision Date08 September 2003
Docket Number03-18
PartiesEqual Employment Opportunity Commission Actions Against Public Employers to Enforce Settlement or Conciliation Agreements
CourtOpinions of the Office of Legal Counsel of the Department of Justice

HOWARD C. NIELSON, JR., Deputy Assistant Attorney General Office of Legal Counsel

Equal Employment Opportunity Commission Actions Against Public Employers to Enforce Settlement or Conciliation Agreements

The Equal Employment Opportunity Commission lacks the authority to initiate an action in federal court against a public employer to enforce a settlement or conciliation agreement negotiated by the EEOC during its administrative process.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL CIVIL RIGHTS DIVISION

This memorandum responds to your Office's request for our opinion regarding whether the Equal Employment Opportunity Commission ("EEOC") has the authority to initiate an action in federal court against a public employer to enforce a settlement or conciliation agreement negotiated by the EEOC during its administrative process. We examine the issue in light of the Attorney General's presumptively plenary authority over litigation on behalf of the United States, as well as the corollary principle that statutory exceptions to this authority are narrowly construed. We conclude that, because the relevant statutes do not clearly and unambiguously grant the EEOC authority to sue public employers to enforce settlement or conciliation agreements any such actions must be brought by the Attorney General.

I. Background
A. The Attorney General's Litigating Authority

Any analysis concerning the litigating authority of an Executive Branch agency must begin with the presumption that the Attorney General retains "full plenary authority over all litigation, civil and criminal, to which the United States, its agencies, or departments, are parties." The Attorney General's Role as Chief Litigator for the United States, 6 Op. O.L.C. 47, 48 (1982) ("Attorney General as Chief Litigator"). This authority is rooted in 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), as well as the constitutional grant of all executive power to the President and the duty of the President to "take Care that the Laws be faithfully executed, " see U.S. Const, art. II, §§ 1, 3.

Enforcing the nation's laws through litigation is an unquestionably executive function. Because the President "alone and unaided could not execute the laws, " he does so "by the assistance of the Attorney General, over whom the President exerts "general administrative control." Myers v. United States, 272 U.S. 52, 117 & 161-64 (1926). Centralizing federal litigation authority facilitates presidential

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management and supervision of the various policies of Executive Branch agencies and departments as they are implicated in litigation. Centralization also ensures coordination in the development of positions taken by the government in litigation and consideration of the impact of litigation on the government as a whole. Because of the Attorney General's government-wide perspective on matters affecting the conduct of litigation in the Executive Branch, he is uniquely suited to carry out these functions. See United States v. San Jacinto Tin Co., 125 U.S. 273, 278-80 ( 1888 ); Attorney General as Chief Litigator, 6 Op. O.L.C. at 54-55.

Congress codified the Attorney General's preeminent role in litigation for the United States in 1870, when it first created the Department of Justice and placed the Attorney General at its head. See Act of June 22, 1870, ch. 150, 16 Stat. 162.[1]The current version of the relevant law reads:

Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to the officers of the Department of Justice, under the direction of the Attorney General.

28 U.S.C. § 516 (2000). Similarly, section 519 provides that "[e]xcept as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party." 28 U.S.C. § 519 (2000).[2] In codifying the Attorney General's otherwise plenary litigating authority,

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Congress did provide a limited exception where "otherwise authorized by law." 28 U.S.C. §§ 516, 519. Nevertheless, in light of the constitutional and policy considerations supporting centralized control of the federal government's litigation, only "a clear and unambiguous expression of the legislative will" suffices to establish an exception to the Attorney General's exclusive authority to litigate on behalf of the United States. United States v. Morgan, 222 U.S. 274, 282 (1911); see also United States v. Hercules, Inc., 961 F.2d 796, 798-99 (8th Cir. 1992) ("The Supreme Court has indicated. . . that the statutory authority of the Attorney General to control litigation is not diminished without a clear and unambiguous directive from Congress.") (citations omitted); Attorney General as Chief Litigator , 6 Op. O.L.C. at 48 (The Attorney General retains "full plenary authority" over all litigation to which the United States is a party "absent clear legislative directives to the contrary."); cf. 28 U.S.C. § 1345 (2000) ("[T]he district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.") (emphasis added).

Although admittedly the case law is not entirely uniform, courts have, consistent with this interpretive principle, repeatedly rejected claims that agencies, rather than the Attorney General, have the authority to pursue litigation, "in the absence of an express congressional directive." Marshall v. Gibson's Prods., Inc., 584 F.2d 668, 676 n.ll (5th Cir. 1978) (holding that only the Attorney General, and not the Secretary of Labor, had authority to petition the court for an injunction to enforce its inspection authority); see also FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968) (holding that only the Attorney General, and not the FTC, had power to seek court enforcement of FTC subpoenas because Congress had not "specifically] authoriz[ed]" it to do so); United States v. Santee Sioux Tribe, 135 F.3d 558, 562-63 (8th Cir. 1998) (holding that the Attorney General has the authority to enforce National Indian Gaming Commission orders because the relevant statute was silent on the issue). This Office has likewise rejected claims of independent litigation authority ungrounded in clear and unambiguous statutory text. See, e.g., Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 7 Op. O.L.C. 57, 59 (1983) ("EEOC Litigation Authority Against State and Local Governments " ) (concluding that the EEOC lacked authority to present its views in court independently of the Attorney General in litigation against public employers); see generally Attorney General as Chief Litigator, 6 Op. O.L.C. at 56 ("[T]he 'otherwise authorized by law' language creating the exception to the Attorney General's As to any case referred to the Department of Justice for prosecution or defense in the courts, the function of decision whether and in what manner to prosecute, or to defend, or to compromise, or to appeal, or to abandon prosecution or defense, now exercised by any agency or officer, is transferred to the Department of Justice.

Exec. Order No. 6166 (1933), reprinted in 5 U.S.C. § 901 note (2000).

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authority in 28 U.S.C. §§ 516 and 519 has been narrowly construed to permit litigation by agencies only when statutes explicitly provide for such authority.").

Furthermore, courts have construed statutory grants of independent litigating authority to confer such authority only with respect to the particular proceedings to which the statutory provision refers, and not as a broad authorization for the agency to conduct litigation in which it is interested generally. See, e.g., Marshall, 584 F.2d at 672-76 (holding that congressional authorization to the Secretary of Labor to bring suit under certain circumstances would not be interpreted to authorize the Secretary to institute litigation to enforce investigatory orders); ICC v. Southern Ry. Co., 543 F.2d 534, 536-39 (5th Cir. 1976), aff'd, 551 F.2d 95 (1977) (en banc) (holding that congressional authorization of the ICC to intervene in enforcement suits and to continue such suits "unaffected by the action or nonaction of the Attorney General" as well as grants to the district courts of jurisdiction over suits for injunctions "upon complaint of the Commission" did not vest the ICC with authority to institute actions for injunctions) (citations and quotations omitted). Once again, this Office has followed the same interpretive practice. See, e.g., Authority of the Equal Employment Opportunity Commission to Conduct Defensive Litigation, 8 Op. O.L.C. 146, 156 (1984) ("EEOC Defensive Litigation Authority") (concluding that the congressional grant to the EEOC of authority to bring suits against private employers does not authorize it to conduct defensive litigation in suits brought "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").

B. The EEOC's Litigating Authority

An examination of the EEOC's litigation authority begins with 42 U.S.C. § 2000e-4:[3]

There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate,...

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