U.S. v. Fresno Unified School Dist.

Decision Date12 March 1979
Docket NumberNo. 76-2539,76-2539
Citation592 F.2d 1088
Parties19 Fair Empl.Prac.Cas. 408, 20 Empl. Prac. Dec. P 30,193 UNITED STATES of America, Plaintiff-Appellant, v. FRESNO UNIFIED SCHOOL DISTRICT, Arnold Finch, Superintendent, John Toomasian, Keith Chun, Robert Arroyo, H. M. Ginsburg, Nancy Richardson, Members of the Board of Education of the Fresno Unified School District, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Robert M. Wash, County Counsel, Thomas J. Riggs (argued), Fresno, Cal., for defendants-appellees.

On Appeal from the United States District Court for the Eastern District of California.

Before WRIGHT and KILKENNY, Circuit Judges, and GRAY, * District Judge.

EUGENE A. WRIGHT, Circuit Judge:

In December 1975 the United States, through the Attorney General, filed a complaint alleging a pattern and practice of discrimination against women by the Fresno Unified School District (School District) in its appointment and promotion procedures for administrative and supervisory positions. The district court dismissed the complaint under Fed.R.Civ.P. 12(b) for lack of jurisdiction and failure to state a claim, holding that the 1972 amendments to the Civil Rights Act of 1964 (Civil Rights Act) § 707, 42 U.S.C. § 2000e-6 (1976), transferred authority to initiate pattern or practice suits against public employers to the Equal Employment Opportunity Commission (EEOC).

The issue here is whether the Attorney General may initiate a pattern or practice suit without a referral from the EEOC. We conclude that he may, and reverse the district court and remand for further proceedings consistent with this opinion.


Prior to the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103 (1972 amendments), the EEOC had investigatory and conciliatory functions under the Civil Rights Act, but could not bring suit in its own name. Civil actions based on individual complaints could be brought by the aggrieved party under § 706(e), 42 U.S.C. § 2000e-5(e) (1970), and suits alleging an intentional pattern or practice of employment discrimination could be filed by the Attorney General under § 707, 42 U.S.C. § 2000e-6 (1970). State and local governments and agencies were not covered by the Civil Rights Act.

The 1972 amendments enlarged the scope of the Civil Rights Act to include state and Section 706, 42 U.S.C. § 2000e-5 (1976), was amended to provide that, after exhaustion of various notice and conciliation procedures, the EEOC could itself bring civil actions against private employers. Only the Attorney General could bring such actions against a public employer. 42 U.S.C. § 2000e-5(f)(1) (1976).

local government employers. 42 U.S.C. § 2000e(a) (1976). The EEOC also received expanded enforcement powers.

Section 707, 42 U.S.C. § 2000e-6 (1976), was amended by the addition of three new subsections. Section 707(c) provided:

Effective two years after March 24, 1972, the functions of the Attorney General under this section (dealing with pattern or practice suits) shall be transferred to the Commission . . . unless the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of title 5, United States Code, inconsistent with the provisions of this subsection.

Section 707(d) provided that, upon the transfer of functions in 1974, the EEOC was to be substituted for the United States or the Attorney General in all pattern or practice suits commenced prior to the transfer. Section 707(e) provided that, upon enactment of the amendments in 1972, the EEOC would "have authority to investigate and act on a charge of a pattern or practice of discrimination . . .. All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 (§ 706) of this title."

On February 23, 1978, the President submitted Reorganization Plan No. 1 of 1978 to Congress. The plan provides in relevant part:

Section 5. Transfer of public sector 707 functions.

Any function of the Equal Employment Opportunity Commission concerning initiation of litigation with respect to State or local government, or political subdivisions under section 707 of title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-6) and all necessary functions related thereto, including investigations, findings, notice and an opportunity to resolve the matter without contested litigation, are hereby transferred to the Attorney General, to be exercised by him in accordance with procedures consistent with said title VII. The Attorney General is authorized to delegate any function under section 707 of said title VII to any officer or employee of the Department of Justice.

Reorganization Plan at 6-7, Reprinted in (1978) U.S.Code Cong. & Admin.News, pp. 593, 598.

While resolutions disfavoring the plan were submitted in both houses, the House resolution was defeated and the Senate took no action before expiration of the 60-day period for disapproval specified in 5 U.S.C.A. § 906 (West 1977). This section of the Reorganization Plan became effective on July 1, 1978. Executive Order No. 12,068, 43 Fed.Reg. 28,971 (1978).

This action was begun after the transfer of functions to the EEOC but prior to the issuance of the Reorganization Plan. After the effective date of the transfer in 1974, there was a question regarding the respective powers of the EEOC and Attorney General to bring pattern and practice suits against public employers. 1 We believe,

however, that the Reorganization Plan now makes clear that the Attorney General may bring a pattern or practice suit against such public employers as the School District.

A. Authorization to Issue the Plan.

The statute authorizing executive reorganizations provides:

A reorganization plan may not provide for, and a reorganization under this chapter may not have the effect of . . . authorizing an agency to exercise a function which is not expressly authorized by law at the time the plan is transmitted to Congress . . ..

5 U.S.C.A. § 905(a)(4) (West 1977).

The School District contends that the Reorganization Plan is ineffective because the Civil Rights Act as amended in 1972 "did not Expressly authorize the function that the reorganization plan purports to vest in the Attorney General. To the contrary, the law expressly disallows the Attorney General this function and vests it in the E.E.O.C."

The School District misconstrues the statute. The clear intent of5 U.S.C.A. § 905(a)(4) (West 1977) is to prevent the creation by " reorganization" of a function not given by law to Any agency. The statute specifically states that "(a)ny plan may provide for . . . the transfer of the whole or part of any agency, or of the whole or part of the functions thereof, to the jurisdiction and control of another agency . . .." 5 U.S.C.A. § 903(a)(1) (West 1977). The Reorganization Plan did not create the power to bring pattern or practice suits, but merely transferred to the Attorney General any authority the EEOC may have assumed in 1974 to bring such suits against public employers. 2

Even if we were to accept the School District's assertion that the 1972 amendments expressly withdrew from the Attorney General the authority to initiate pattern or practice suits, Congress stated that the transfer of functions to the EEOC would not be effective if "the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of Title 5, . . . inconsistent with the provisions of this subsection." § 707(c), 42 U.S.C. § 2000e-6(c) (1976). Congress specifically allowed for the issuance of a reorganization plan, such as the one under consideration here, that might change the statutory authorization to bring public employer pattern or practice suits.

B. Retroactive Application.

Once we conclude that the Reorganization Plan was properly issued and became effective in July 1978, we must decide whether it can be applied here to litigation that began in 1975.

1. Legislative History.

The Attorney General maintains that the legislative history of the Reorganization Plan establishes that it is merely a reaffirmation of, not a change in, his right to initiate pattern and practice suits against public employers.

The Senate Committee Report on the plan stated that the 1972 amendments transferred authority to initiate pattern or practice suits to the EEOC

except where the defendant is a State or Local Government. The Department of Justice was to retain jurisdiction to institute pattern or practice suits under title VII against State and Local Government employers subject to the Civil Rights Act.

However, subsequently the courts held that this residuum to the Justice Department Section 5 of the Reorganization Plan transfers to the Justice Department full authority over the procedures leading to the filing of pattern or practice suits under title VII against State and local governments.

relating to pattern or practice suits is dependent upon referral by the EEOC after that agency completes the same procedures specified by the Civil Rights Act for processing charges of discrimination in the private sector.

S.Rep.No.750, 95th Cong., 2d Sess. 4 (1978).

The House Committee Report is similar:

In 1972 Congress transferred this authority to bring pattern and practice suits to the Equal Employment Opportunity Commission. At the same time Congress gave to the Attorney General the authority to enforce equal employment practices against state and local government. Since then, however, some confusion has resulted in the courts and elsewhere regarding the Attorney General's right to file pattern and practice suits against such state and local governments.

It is the purpose of Section 5 of the Reorganization Plan to restore the certainty of this authority in the hands of the Attorney General so that he can fully carry...

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