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 o f
litigation to which the United States is a party. Courts have narrowly construed statutory
grants o f 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 o f the Equal Employment Opportunity Corporation (EEOC) is limited by
statute to suits brought on behalf o f 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 o f the President, to represent
on its own behalf a position in court independent o f or contrary to the position o f the United
States, would be inconsistent with the constitutional principle of the unitary executive.
March 13, 1983
M em orandum O p in io n for th e A s s is t a n t A t t o r n e y G e n e r a l ,
C iv il R ig h t s D iv is io n
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 o f 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 Fol
lowing 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 resub
1 See Williams v. C ity o /N e w O rleans, 543 F Supp 662 (E.D. La. 1982), re v 'd a nd remanded, 694 F.2d 987
(5th Cir. 1982).
57
mit a decree “propos[ing] 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 o f 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)(l)2 and 2000h-2,3 the Attorney General has certified that this
case is “o f 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 o f 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 o f 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.
W e 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 o f claims against private sector employees. This conclusion is
supported by the very terms o f 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
o f the EEOC’s litigating authority that would permit it, as an Executive Branch
agency subject to the supervision and control o f the President, to appear
independently and on its own behalf, in opposition to positions advanced by the
Attorney General, on behalf o f the United States.
L General ComsMeratioims
All questions o f the litigating authority o f Executive Branch agencies and
departm ents must begin with a recognition of the Attorney General’s plenary
authority over the supervision and conduct o f litigation to which the United
2 S ection 2 0 0 0 e -5 (f)(l) provides in p e rtin en t part:
U pon tim ely application, the court m ay , in its discretion, permit the C om m ission, or the A ttorney
G en era l in a case involving a governm ent, governm ental agency, or political subdivision, to
intervene in such civil action upon certificatio n that th e case is o f general public importance.
(E m phasis added.)
3 S ection 2000H-2 provides:
W h en ev er an action has been com m enced in any court o f the U nited States seeking relief from
the d enial o f eq u al protection o f th e law s under the fourteenth am endm ent to the C onstitution on
acco u n t o f race, color, religion, sex o r national origin, the A ttorney G eneral for o r in the nam e of
the U nited States m ay intervene in su ch action upon tim ely application if the A ttorney G eneral
certifies that the case is o f general p u b lic im portance. In such action the U nited States shall be
en titled to the sam e re lie f as if it h a d instituted the action.
4 It is u n clear w hether the Commission seek s to present its views as an amicus curiae or as an intervening
p arty -ap p ellan t. B ecause w e conclude th at th e C om m ission lacks the authority to appear on its ow n behalf in
any public secto r T itle VII litigation, the d istin ctio n betw een intervention and am icus appearances is without
sig n ifican ce to the con sid eratio n and resolution o f this issue.
58
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, 519.5 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 o f 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 o f 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 o f the Attorney G eneral’s Task
Force on Litigating Authority (Oct. 28, 1982)); Memorandum fo r the Attorney
General re: The Attorney G eneral’s role as C hief Litigator fo r the United
States, 6 Op. O.L.C. 47 (1982).
Notwithstanding Congress’ determination that the litigating functions o f the
Executive Branch be generally centralized in the Attorney General, the Attor
ney General’s “plenary” authority over litigation involving the United States is
limited to some extent by the “except as otherwise authorized by law” provi
sions 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 (8th Cir. 1968). See generally Report o f the Attorney General’s Task Force on
Litigating Authority, supra '. Memorandum fo r the Attorney General, supra.6
5 28 U.S.C. § 5 1 6 provides:
Except as otherw ise authorized by law, the conduct o f litigation in which the U nited States, an
agency, o r officer thereof is a party, o r is interested,and securing evidence therefor, is reserved to
officers o f the Department o f Justice, under the direction o f the Attorney G eneral.
28 U .S.C. § 519 provides:
Except as otherw ise authorized by law, the Attorney General shall supervise all litigation to w hich the
U nited States, an agency, o r officer thereof is a party, and shall direct all U nited States A ttorneys, A ssistant
U nited States A ttorneys, and special attorneys appointed under section 543 o f this title in the discharge of
their respective duties.
6 The T ask Force Report and the 1982 O ffice o f Legal Counsel M emorandum together provide an extensive
and thorough discussion o f the A ttorney G en eral's litigating authority for the Executive B ranch, including its
historical origins and developm ent since 1789, the ju d icial construction o f various “litigating authority*’
statutes, and the M emoranda o f U nderstanding entered into by the D epartm ent o f Justice to share litigating
functions with “clien t” agencies.
59
A. The E E O C ’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 con
duct o f litigation as p ro vid ed in sections 2000e-5 and
2 0 0 0 e-6 of this title.
(2) A ttorneys appointed under this section may, a t the direc
tion o f the Commission, appear fo r and represent the
Commission in any case in court, provided that the A t
torney General shall conduct a ll litigation to which the
Commission is a p a rty 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
governm ental agency o r political subdivision.
(Emphasis added.)
Sections 2000e-5 and 2000e-6, which constitute the enforcement provisions
for Title VII o f 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 discrimi
nation 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, governm ental agency, or political subdivi
sion nam ed in the charge. In the case o f a respondent which is a
government, governmental agency, o r political subdivision, if
the Commission has been unable to secure from the respondent
a conciliation agreement acceptable to the Commission, the
Comm ission shall take no further action and shall refer the case
to the A ttorney General who m ay bring a civil action against the
respondent in the appropriate United States district court. The
person or persons aggrieved shall have the right to intervene in a
60
civil action brought by the Commission or the Attorney General
in a case involving a governmental agency, or political subdivision.
(Emphasis added.) If, after investigation, the Commission dismisses the charge
or fails to file a civil action after the statutory period of reference has expired,
or “the Attorney General has not filed a civil action in a case involving a
government, governmental agency, or political subdivision,” the complainant
is entitled to bring suit in his or her individual capacity. In such cases, upon
timely application, the court may, in its discretion, permit the Commission, or
the Attorney General in a case involving a government, governmental agency,
or political subdivision, to intervene . . . upon certification that the case is of
general public importance. 42 U.S.C. § 2000e-5(f)(l) (emphasis added).
The enforcement provisions contained in § 2000e-5 clearly limit the EEOC’s
authority to bring civil actions on behalf of Title VII complainants, or to
intervene in such proceedings, to cases involving nongovernmental defendants.
That is, by its very terms, the EEOC’s litigation authority is limited to suits
brought on behalf of private sector employees. See General Telephone Co. o f
the Northwest v. EEOC, 446 U.S. 318, 324 & n.6 (1980) (in describing the
statutory scheme of Title VII, the Court stated that § 2000e-5(f)(l) “specifi
cally authorizes the EEOC to bring a civil action against any respondent not a
governm ental entity upon failure to secure an acceptable conciliation agree
ment,” and added that “[t]he Attorney General is authorized to bring suit
against a governmental entity”), (emphasis added).7 See also United States v.
Fresno Unified School D ist., 592 F.2d 1088 (9th Cir.), cert, denied, 444 U.S.
832(1979).
This limitation, and those contained in § 2000e-6 discussed below, are
incorporated into the general grant of litigating authority to the Commission in
§ 2000e-4(b).8 Thus, to the extent that the Commission bases its claim of
authority to appear in Title VII litigation against public sector employees on
§ 2000e-4(b)(2), it, in effect, claims that EEOC attorneys are not bound by the
constraints imposed on the litigating authority o f the General Counsel, under
whose supervision they work. Such a construction would be contrary to Con
gressional intent,9 the rule that exceptions to the Attorney General’s plenary
7 The C ourt further stated that the 1972 am endm ents to the Act expanded the C om m ission's enforcem ent
pow ers beyond the conciliation authority granted to it in 1964 by “authorizing the EEOC to bring a civil
action in federal district court against private em ployers reasonably suspected of violating Title V II.” 446
U.S. at 325 (em phasis added).
8 As indicated above, §§ 2000e-4(b)( 1) and (2) grant the G eneral Counsel “responsibility for the conduct o f
litigation as provided in sections 2000e-5 and 2000e-6," and attorneys “appointed under this section'1 the
authority to, “at the direction o f the Com m ission, appear for and represent the Com m ission in any case in
court," except the Suprem e Court. (E m phasis added.)
9 The C onference R eport to the 1972 am endm ents to T itle VII o f the C ivil R ights Act indicates that:
B oth the H ouse bill and the Senate am endm ent authorized the bringing o f civil actions in
Federal district courts in cases involving unlaw ful em ploym ent practices.
The Senate am endm ent pro vid ed that the A ttorney G eneral bring actions against state and
loca l governm ents. A s to other respondents, suits were to be brought by the Commission. The
Senate am endm ent perm itted suits by the Com m ission o r the Attorney G eneral if the Commis-
Continued
61
litigating authority are to be narrowly construed, and the plain language of the
statute.
The second provision outlining the scope of the EEOC’s authority to litigate
Title VII suits, § 2000e-6, relates to the prosecution of “pattern or practice”
suits.10 That provision, as amended by § 5 of the President’s Reorganization
Plan No. 1 of 1978,43 Fed. Reg. 19809,92 Stat. 3781 (Feb. 23,1978), vests the
authority for “initiation of litigation with respect to State or local government,
or political subdivisions under . . . [42 U.S.C. § 2000e-6] and all necessary
functions related thereto, including investigations, findings, notice and an
opportunity to resolve the m atter without contested litigation” in the Attorney
General. See 42 U.S.C. § 2000e-4 note (Supp. IV 1980).
9 ( . . . continued)
sion w as unable to secure from respondent “a conciliation agreem ent acceptable to the Com m is
s io n " w hile the H ouse bill permitted the C om m ission to sue if it is unable to obtain “voluntary
co m pliance." The Senate amendment perm itted aggrieved persons to intervene in suits and
allow ed a private action if no case is brought by the Com m ission or Attorney General within 150
days. T he H ouse bill permitted a p riv ate action after 180 days. The Senate amendment allowed
the G eneral C ounsel o r Attorney G eneral to intervene in private actions; the H ouse bill permitted
only the A ttorney G eneral to intervene. The Senate am endm ent perm itted a private action in a
case w here the C om m ission entered into a conciliation agreem ent to which the aggrieved person
w as not a party (i.e. a signatory).
T he conferees adopted a provision allow ing the Com m ission o r the Attorney G eneral in a
ca se a gainst a state o r local governm ent agency, to b n n g an action in Federal district courts if the
C om m ission is unable to secure from the respondent “a conciliation agreem ent acceptable to the
C o m m issio n ." A ggrieved parties a re perm itted to intervene. They may bring a private action if
the C om m ission o r A ttorney General has not brought suit within 180 days or the Com m ission has
entered into a conciliation agreem ent to which such aggrieved party is not signatory. The
C om m ission, o r the Attorney G enera) m a case involving state and local governm ents, may
intervene in such private action.
H .R. C onf. R ep. No. 899, 92d Cong , 2d S e ss. 17-18 (1972) (em phasis added).
10 42 U .S.C . § 2000e-6, as originally en acted in 1964, Pub. L. No. 88352, 78 Stat. 261 (July 2, 1964),
provided that:
(a) W henever the Attorney G eneral has reasonable cause to believe that any person or group
o f persons is engaged in a pattern o r practice o f resistance to the full enjoym ent of any o f the
rig h ts secured by this title, and that th e pattern o r practice is of such a nature and is intended to
deny the full exercise o f the rights herein described, the A ttorney General may bring a civil
action in the appropriate district c o u rt o f the U nited States by filing w ith it a com plaint (1) signed
by him (o r in his absence the Acting A ttorney G eneral), (2) setting forth facts pertaining to such
pattern o r practice, and (3) requesting such relief, including an application for a perm anent or
tem porary injunction, restraining o rd e r or other o rder against the person or persons responsible
fo r such pattern o r practice, as he d eem s necessary to insure the full enjoym ent o f the rights
herein described.
In 1972 the A ct was am ended. Pub. L. No. 9 2 -2 6 1 , 86 Stat. 107 (M ar 24, 1972), to provide that:
(c) E ffective tw o years after [M arch 24, 1972], the functions o f the Attorney General under
this section shall be transferred to th e [Equal Em ploym ent O pportunity] Com m ission, together
w ith such personnel, property, records, and unexpended balances o f appropriations, allocations,
and o th e r funds em ployed, used, held, available, o r to be made available in connection with such
functions unless the President subm its, and neither H ouse o f C ongress vetoes, a reorganization
plan pursuant to chapter 9 of Title 5, inconsistent with the provisions of this subsection. The
C om m ission shall carry out such functions in accordance with subsections (d) and (e) of this section.
42 U .S.C . § 2000e-6 (Supp. IV 1974).
In 1978, pursuant to the President’s Reorganization Plan No. 1, 92 Stat. 3781 (1978), the authority for
prosecuting ‘‘pattern o r practice” suits against governmental defendants under Title VII o f the Civil Rights Act, 42
U.S.C. § 2000e-6, was transferred back to the Attorney General. Section 5 of the Reorganization Plan provides that:
C ontinued
62
In his Message to Congress conveying the Reorganization Plan, the Presi
dent stated that the Plan was designed to “consolidate Federal equal employ
ment opportunity activities” by reducing the number of federal agencies with
enforcement responsibilities from fifteen to three,11 and to “bring coherence to
the equal employment enforcement effort.” Id. With respect to the Attorney
General’s responsibility for public sector “pattern or practice” litigation, the
President stated:
The Plan I am proposing will not affect the Attorney General’s
responsibility to enforce Title VII against State or local govern
ments or to represent the Federal government in suits against
Federal contractors and grant recipients. In 1972, the Congress
determ ined that the Attorney General should be involved in suits
against State and local governments. This proposal reinforces
that judgm ent and clarifies the A ttorney G eneral’s authority to
initiate litigation against State or local governments engaged in
a “pattern or p ra c tic e ” o f discrimination. This in no way dimin
ishes the EEOC’s existing authority to investigate complaints
filed against State or local governments and, where appropriate,
to refer them to the Attorney General. The Justice Department
and the EEOC will cooperate so that the Department sues on
valid referrals, as well as on its own or “pattern or practice”
cases.
Id. (emphasis added). On June 30, 1978, the President signed Executive Order
No. 12068,43 Fed. Reg. 28971 (1978), implementing § 5 of the Plan to transfer
10 (. continued)
Section 5. Transfer o f Public Sector 707 Functions
Any function o f the Equal Em ploym ent O pportunity Com m ission concerning initiation of
litigation w ith respect to State or local governm ent, o r political subdivisions under Section 707 of
Title VII o f the Civil R ights Act o f 1964, as am ended, (42 U S C. 2000e-6) and all necessary
functions related thereto, including investigations, findings, notice and an opportunity to resolve
the m atter w ithout contested litigation, are hereby transferred to the Attorney G eneral, 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 o f said Title VII to any officer
or em ployee o f the D epartm ent o f Justice.
42 U.S C. § 2000e-4 note (Supp. IV 1980). There has been considerable disagreem ent in the courts as to
w hether the 1972 am endm ents, which transferred the A ttorney G eneral’s functions regarding “pattern or
practice” litigation to the EEOC (effective 1974), stripped the A ttorney General o f his authority to file
“pattern o r practice” suits against state and local governm ents until enactm ent of the 1978 R eorganization
Plan. See, e.g.. U nited States v. City o f M iam i, 664 F 2d 435, 437 & n.l (5th Cir. 1981) (en banc); United
States v. Fresno U nified School D istrict, 592 F.2d at 1093. There is uniform agreem ent, how ever, on the
proposition that the EEOC no longer has authority to file “ pattern or practice” suits against state and local
governments.
11 The three agencies which retained Equal Em ploym ent O pportunity Enforcem ent responsibilities under
the R eorganization Plan are the EEOC, the L abor D epartm ent and the Department o f Justice. The respective
enforcem ent functions o f the agencies are clearly delineated in the Plan to prevent needless duplication and
overlap. See 42 U .S.C. § 2000e-4 note (Supp. IV 1980).
63
to the Attorney General the authority, previously exercised by the EEOC, to
prosecute “pattern or practice” suits against public sector defendants.12
As is evident from the foregoing analysis, a construction of § 2000e-6 that
would grant the EEOC authority to litigate “pattern or practice” suits against
State or local governments is contrary to the plain language of the 1978
amendments to the provision. That the EEOC’s independent litigating author
ity in Title VII suits brought under §§ 2000e-5, 6 is limited to private sector
suits is a position that is supported by the Department of Justice as well as the
courts. See U nited States v. C ity o f M iami, 664 F.2d 435, 437 (5th Cir. 1981)
(en banc) (“ [Defendants] contend[] that, after 1974, only the EEOC could
institute . . . [“pattern or practice”] actions against public employers; however,
Congress has now explicitly authorized only the Attorney General to do so.”)
(footnote omitted). See also U nited States v. Commonwealth o f Virginia, 620
F.2d 1018, 1022 (4th Cir.), cert, denied, 449 U.S. 1021 (1980); United States v.
Fresno Unified School District, 592 F.2d at 109293; United States v. State o f
North Carolina, 587 F.2d 625 (4th Cir. 1978), cert, denied, 442 U.S. 909
(1979).13
II. CoesttntatnomaJ Considerations
Apart from the foregoing statutory analysis, which we believe demonstrates
conclusively that the EEOC lacks authority to prosecute, intervene in, or
otherwise appear in, public sector Title VII litigation on its own behalf, the
constitutional considerations which bear on the issues raised by your request
require such a result. These considerations stem from the fundamental premise
that the whole o f the Executive power, created by Article II of the Constitution,
is vested exclusively in the President. M yers v. United States, 272 U.S. 52,
161-64 (1926). Included within the Executive power is the obligation to “take
care that the laws be faithfully executed,” art. II, § 3, which necessarily
encompasses the authority to exert “general administrative control of those
12 E xecutive O rder No. 12068 provides:
T ra n sfer o f C ertain F unctions to A ttorney General.
B y virtue o f the authority vested in me as President o f the U nited States by the C onstitution and
law s o f the U nited States, including Section 9 o f Reorganization Plan N um ber 1 o f 1978 (43 FR
19807), in o rd er to clarify the A ttorney G en eral's authority to initiate public sector litigation
un d er Section 707 o f T itle VII of th e C ivil R ights Act o f 1964, as am ended (42 U.S.C. 2000e-6),
it is ordered as follow s:
1.1. S ectio n 707 F unctions o f the A tto rn ey G eneral.
1-101. Section 5 o f Reorganization Plan N um ber 1 o f 1978 (43 FR 19807) shall become
effective on Ju ly 1, 1978.
1-102. The functions transferred to the A ttorney G eneral by Section 5 of R eorganization Plan
N um ber 1 o f 1978 shall, consistent w ith Section 707 o f T itle VII o f the C ivil Rights A ct o f 1964,
as am ended, be perform ed in accordance w ith D epartm ent o f Justice procedures heretofore
follow ed under Section 707.
See 42 U .S.C . § 2000e-6 note (Supp. IV 1980).
13 A lthough these decisions d o not ex p licitly lim it the C om m ission's authority to private sector suits, they
stand fo r the proposition that the 1978 R eorganization Plan transferred to the Attorney General the full and
com plete authority to initiate T itle VII litigation against state and local governm ents, leaving the EEOC with
w hatever T itle V ll litigation authority rem ained after the transfer, i.e., suits against private employees.
64
executing the law,” i.e., the Executive officers. M yers , 272 U.S. at 164. There
is no doubt that the EEOC, which performs functions that are “predominandy” 14
executive in nature — conciliation and the prosecution of civil law suits — is an
Executive Branch agency whose members serve at the pleasure of the President and
are removable without cause.15 See “Reorganization Plan No. 1 of 1978 — Equal
Employment Opportunity Comm’n,” 2 Op. O.L.C. 69,69 n. 1 (1978).
Because it is an executive agency subject to the authority of the President, to
permit the Commission to appear in a judicial proceeding in which the United
States has exercised its authority to appear as a party (or has otherwise pre
sented its views, e.g., as an amicus), and present views on its own behalf which
are independent of or contrary to those presented by the United States, would
be inconsistent with the integrity of the Executive in the exercise o f his Article
II powers and responsibilities. Such a circumstance would, literally, put the
Executive in the untenable position of speaking with two conflicting voices,
abdicating his constitutional responsibility to “take Care that the Laws [are]
faithfully executed.”
In 1979, President Carter signed Executive Order No. 12146, by which he
delegated to the Attorney General the Executive’s authority for solving intra
branch disputes regarding legal matters. That order provides:
1—401. Whenever two or more Executive agencies are unable to
resolve a legal dispute between them, including the question of
which has jurisdiction to administer a particular program or to
regulate a particular activity, each agency is encouraged to
submit the dispute to the Attorney General.
1—402. Whenever two or more Executive agencies whose heads
serve a t the pleasure o f the President are unable to resolve such
a legal dispute, the agencies shall subm it the dispute to the
A ttorney General p rio r to proceeding in any court, except where
there is specific statutory vesting of responsibility for a resolu
tion elsewhere.
Executive Order No. 12146 (July 18, 1979), reprinted in 28 U.S.C. § 509 note
(emphasis added). The EEOC, which is an agency “whose headfs] serve at the
pleasure of the President,” is prohibited by § 1—402 from proceeding in any
action, whether public sector or private sector litigation, in which the Attorney
General has, in the exercise of the dispute resolution function delegated to him
by the Executive, determined that the position of the United States is contrary
to that represented by the Commission.
14 See H um phrey's E x e c u to ry . U nited States, 295 U.S. 602, 624 (1935) (proposing a “functional” test fo r
determ ining w hether fo r purposes o f the President’s pow er o f removal, an agency is independent, and
therefore the President’s pow er o f rem oval o f its m em ber m ay be lim ited, or a part o f the Executive Branch,
in which case the m em bers serve at the pleasure o f the President). See also W iener v. United S tates, 357 U.S.
349(1958).
13 M em bers o f the C om m ission are appointed by the President, by and with the advice and consent o f the
Senate, for a term o f five years 42 U .S.C. § 2000e-4(a) The G eneral Counsel is appointed by the President,
by and w ith the advice and consent o f the Senate, fo r a term o f four years. 42 U .S.C . § 2000e-4(b)(l).
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III. Conclusion
The EEO C’s statutory litigating authority for the enforcement of Title VII of
the Civil Rights Act, 42 U.S.C. §§ 2000e-5, 6, is, by its very terms, limited to
civil actions against private sector employers, the responsibility for enforce
ment litigation against “government^], governmental agenc[ies], or political
subdivision[s]” having been vested in the Attorney General. This being the
case, the Commission lacks litigation authority with respect to Williams v. City
o f N ew O rleans, which is a Title VII enforcement action against a governmen
tal entity. As envisioned by the statutory scheme, the Attorney General has
petitioned the court to present the views of the United States in this litigation.
Apparently the EEOC seeks to present its views to the court in the Williams
case because it disagrees with the position taken by the Attorney General on
behalf o f the United States in the litigation; it is equally evident that as an
executive agency subject to the supervision and control of the President, the
Commission may not represent on its own behalf a position in court that is
contrary to that taken by the Executive, through his delegee, the Attorney
General. To perm it otherwise would raise serious constitutional issues con
cerning the unity and integrity o f the Executive. Accordingly, we conclude that
the EEOC lacks authority to petition the court o f appeals in Williams v. City o f
Wew O rleans for leave to file a brief or otherwise make an appearance.
Th eo d o re B. O lso n
A ssistant Attorney General
Office o f Legal Counsel
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