Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 83-8

• Citation: 7 Op. O.L.C. 57
• Decision Date: 13 March 1983
• Docket Number: 83-8
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities

7 Op. O.L.C. 57

Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities

No. 83-8

United States Department of Justice

March 13, 1983

Theodore B. Olson Assistant Attorney General Office of Legal Counsel

Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities

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 the exercise of 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 Corporation (EEOC) is limited by statute to suits brought on behalf of private sector employees. 42 U.S.C. §§ 2000e-4 to 2000e-6. Furthermore, litigation authority for Title VII "pattern or practice" suits against State and local government entities is specifically vested in the Attorney General.

To permit the EEOC, an executive agency subject to the authority of the President, to represent on its own behalf a position in court independent of or contrary to the position of the United States, would be inconsistent with the constitutional principle of the unitary executive.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION

This responds to your request for the opinion of this Office regarding the litigation authority of the Equal Employment Opportunity Commission (EEOC) in suits brought against state or local governmental entities to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1976), as amended. Your question arises in the context of litigation brought in the United States District Court in Louisiana by a class of black applicants and members of the New Orleans Police Department against the City of New Orleans, the New Orleans Civil Service Commission (CSC) and various municipal and CSC officials, seeking redress from injuries suffered due to alleged racially discriminatory policies in the selection training and promotion of city police officers.^[1] Following pretrial settlement discussions, the parties moved jointly for the court's approval of a proposed consent decree in settlement of the plaintiffs' claims. The district court denied approval of the decree on the ground that "the proposed quota exceeds its remedial objectives while seriously jeopardizing the career interests of nonblack officers, " and encouraged the parties to resubmit [ 58] a decree "proposing] further measures that the parties deem appropriate, so long as they are precise, remedial in nature, and attentive to the interests of third parties." 543 F.Supp. at 686.

On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed, holding that the district court's rejection of the proposed consent decree on the stated grounds constituted an abuse of the court's discretion, and remanded with instructions to enter the decree. We understand that pursuant to 42 U.S.C. §§ 2000e-5(f)(1)^[2] and 2000h-2, ^[3] the Attorney General has certified that this case is "of general public importance" and has moved the Court of Appeals for permission to intervene, on behalf of the United States, as a party-appellee, for the purpose of filing a suggestion for rehearing en banc. We understand further that the EEOC is prepared to petition the court for leave to present, in some capacity, ^[4] views of the Commission which are independent of, and possibly contrary to, those presented by the Attorney General. You now seek the advice of this Office as to whether the EEOC has authority to make such an appearance.

We believe that, as the following discussion makes clear, the EEOC's litigating authority under Title VII of the Civil Rights Act is limited to the enforcement of claims against private sector employees. This conclusion is supported by the very terms of the enforcement provisions of Title VII, 42 U.S.C. §§ 2000e-5, 6, as well as the legislative history of those provisions. In addition, the more general constitutional and statutory considerations investing the Attorney General with the responsibility for the conduct of all litigation on behalf of the United States, would, in any event, counsel against a construction of the EEOC's litigating authority that would permit it, as an Executive Branch agency subject to the supervision and control of the President, to appear independently and on its own behalf, in opposition to positions advanced by the Attorney General, on behalf of the United States.

I. General Consideration

All questions of the litigating authority of Executive Branch agencies and departments must begin with a recognition of the Attorney General's plenary authority over the supervision and conduct of litigation to which the United [ 59] 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.^[5] 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 of which is the need to centralize the federal 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 27880. See also Report of the Attorney General's Task Force on Litigating Authority (Oct. 28, 1982)); Memorandum for the Attorney General re: 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 generally 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 §§ 516 and 519. Nevertheless, mindful of the considerations supporting such centralization, the courts have narrowly construed statutory grants of litigation authority to agencies in derogation of the responsibilities and functions vested in the Attorney General to permit the exercise of litigating authority by agencies only when the authorizing statutes are sufficiently clear and specific to ensure that Congress indeed intended an exception to the general rule. See, e.g.. Case v. Bowles, 327 U.S. 92 (1946); ICC v. Southern Ry. Co., 543 F.2d 534 (5th Cir. 1976); Federal Trade Comm'n v. Guignon, 390 F.2d 323 (8m Cir. 1968). See generally Report of the Attorney General's Task Force on Litigating Authority, supra; Memorandum for the Attorney General, supra.^[6] [ 60]

A. The EEOC's Litigating Authority

The EEOC's general litigating authority is found in the Commission's authorizing statute, 42 U.S.C. § 2000e-4. Subsection (b) of that section, which governs the appointment and functions of the Commission's General Counsel, provides in pertinent part:

(b) (1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 2000e-5 and 2000e-6 of this title.

(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.

(Emphasis added.) In addition, subsection (g)(6) of § 2000e-4 authorizes the Commission

to intervene in a civil action brought under section 2000e-5 of this title by an aggrieved party against a respondent other than a governmental agency or political subdivision.

(Emphasis added.)

Sections 2000e-5 and 2000e-6, which constitute the enforcement provisions for Title VII of the Act, set forth the functions and responsibilities of the EEOC and the Attorney General respectively, for enforcement of the Act. Section 2000e-5 outlines the various procedures for filing charges of alleged discrimination with the Commission and the Commission's responsibilities for timely investigation and attempted conciliation of those charges. Subsection (f)(1) provides that if, after a given period of time, the Commission is unable to secure an acceptable conciliation agreement,

the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney

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