254 

Legality of EEOC’s Class Action Regulations 

The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised 

with respect to the Equal Employment Opportunity Commission’s class action regulations. 

The Equal Employment Opportunity Commission’s class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners 

suggested by the United States Postal Service: the regulations do not purport to prevent claimants 

from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and 

they do not forestall the running of the limitations period. 

September 20, 2004 

MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL 

UNITED STATES POSTAL SERVICE

You have asked whether certain class action regulations promulgated by the 

Equal Employment Opportunity Commission (“EEOC”) applicable to administrative complaints against federal government agencies are contrary to Title VII of 

the Civil Rights Act of 1964. We conclude that they are not inconsistent with Title 

VII in the manners you suggest. 

I. 

We begin with a brief overview of the applicable statutory and regulatory provisions at issue. Section 2000e-16 of title 42, U.S. Code, provides that personnel 

actions of the federal government, including those of the United States Postal 

Service (“USPS”), “shall be made free from any discrimination based on race, 

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a) (2000). Section 

2000e-16 then specifically assigns the EEOC the authority to enforce this requirement: 

Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission shall have authority to enforce the 

provisions of subsection (a) of this section through appropriate remedies . . . and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. 

Id. § 2000e-16(b). In pursuance of this authority, the EEOC has created a detailed 

administrative procedure for resolving claims of discrimination by federal 

employees or applicants for federal employment, including hearings before 

administrative law judges and appeals to the EEOC itself. The complaining 

employee or applicant may, subject to conditions, seek relief in the federal courts 

if he is dissatisfied with the results of this administrative process. Id. § 2000e-
Legality of EEOC’s Class Action Regulations 

255 

16(c). An agency, however, may not seek judicial review of the decisions of the 

EEOC. See id. § 2000e-16(b), (c). 

Your specific questions involve the EEOC’s administrative process for resolving class action complaints. See 29 C.F.R § 1614.204 (2003). This process begins 

when an aggrieved individual, after completing a counseling process, files a class 

complaint with the agency that allegedly discriminated against him. See id.

§ 1614.204(b), (c). The agency then has thirty days to forward the complaint to the 

EEOC, which assigns the complaint to an administrative judge. Id. § 1614.204(d). 

The administrative judge first must decide whether to recommend certification of 

the class, which he may do if the proposed class meets the requirements of 

numerosity, commonality and typicality, and if the complainant who is the 

proposed agent for the class will “fairly and adequately protect the interests of the 

class.” Id. § 1614.204(a)(2), (d)(2). Once the administrative judge makes his 

recommendation, the agency must, within forty days, decide whether or not to 

accept the complaint. Id. § 1614.204(d)(7). If the agency dismisses the class 

complaint, the complainant may appeal to the EEOC or file a civil action. Id. If the 

agency accepts the class complaint, it must notify the class members. Id.

§ 1614.204(e). 

Discovery then begins and lasts not less than sixty days. Id. § 1614.204(f). 

Once discovery has concluded, the administrative judge conducts a hearing and 

issues a report and recommendations on the merits of the complaint. Id.

§ 1614.204(h), (i). Upon receipt of this report, the agency has sixty days to issue a 

“final decision” stating whether it will “accept, reject, or modify the [administrative judge’s] findings.” Id. § 1614.204(j)(1). This “final decision . . . shall, subject 

to subpart D of this part [addressing the appeal rights of the complainant and the 

agency], be binding on all members of the class and the agency.” Id.

§ 1614.204(j)(6). The agency must then notify the complainants of its final 

decision, as well as of their appeal rights under subpart D. Id. § 1614.204(j)(7), 

(k). Where the agency has found discrimination, members of the class may then 

file claims for individual relief. Id. § 1614.204(l). 

If the class agent or any member who has filed a claim for individual relief is 

unsatisfied with the final action of the agency, he may either appeal to the EEOC 

or file a civil action in federal court. Id. §§ 1614.401(c), 1614.407. In addition, if 

at any time during this process, more than 180 days has passed since the filing of 

the initial complaint, an individual or the class may file an action in federal court. 

Id. § 1614.407. With respect to appeals to the EEOC, the EEOC has delegated the 

responsibility for handling them to the Office of Federal Operations (“OFO”). Id.

§ 1614.403–.405. There is no time limit in which the OFO must act; however, 180 

days after the filing of the appeal, the class or a member who has filed a claim for 

individual relief may file a civil action in federal court. Id. § 1614.407(d). 

Alternatively, the class may await the decision of the OFO and, if dissatisfied, may 

file a civil action within ninety days of that decision. Id. § 1614.407(c). The 
Opinions of the Office of Legal Counsel in Volume 28 

256 

agency is not authorized to proceed in federal court should it be dissatisfied with 

the results of the administrative process. See id. §§ 1614.407, 1614.502. 

The class agent and the agency may resolve the complaint by written agreement 

at any time. Id. § 1614.204(g)(2), (3). Notice of the resolution must be provided to 

all class members, who may then petition to have the resolution vacated on the 

ground that it is “not fair, adequate and reasonable to the class as a whole.” Id.

§ 1614.204(g)(4). The administrative judge considers these petitions. If he finds 

that the resolution is fair, adequate and reasonable, then the resolution binds all 

members of the class. Id. If, on the other hand, the administrative judge determines 

that the proposed resolution is unfair to the class as a whole, he vacates the 

resolution and restarts the adjudicatory process. Id.

With this statutory and regulatory background in mind, we now turn to the legal 

questions presented by your request. 

II. 

We first address the EEOC’s arguments that, under Executive Orders 12067 

and 12146, we should refrain from resolving the legal questions you raise. For the 

reasons explained below, we conclude that neither argument establishes that this 

Office lacks the authority to resolve the legal questions here presented. 

A. 

The EEOC first argues that section 1-307 of Executive Order 12067 prohibits 

this Office from addressing the merits of the legal questions at issue. Section 1-

307(b) provides: 

Whenever a dispute which cannot be resolved through good faith efforts arises between the Equal Employment Opportunity Commission and another Federal department or agency concerning the issuance of an equal employment opportunity rule, regulation, policy, 

procedure, order or any matter covered by this Order, the Chairman 

of the Equal Employment Opportunity Commission or the head of 

the affected department or agency may refer the matter to the Executive Office of the President. Such reference must be in writing and 

may not be made later than 15 working days following receipt of the 

initiating agency’s notice of intent publicly to announce an equal 

employment opportunity rule, regulation, policy, procedure or order. 

If no reference is made within the 15 day period, the decision of the 

agency which initiated the proposed issuance will become effective. 

Exec. Order No. 12067, 3 C.F.R. § 208 (1979). The EEOC argues that USPS 

“should not be permitted to raise a matter under the general dispute resolution 

mechanism of E.O. 12146 that could have and should have been raised under the 
Legality of EEOC’s Class Action Regulations 

257 

more specific process for resolving disputes between agencies over EEO-related 

regulations” set forth in section 1-307(b). Letter for Noel J. Francisco, Deputy 

Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, 

Associate Legal Counsel, Equal Employment Opportunity Commission, Re: 

EEOC’s Class Complaint Regulation at 2 (Nov. 14, 2003) (“EEOC Letter”). 

We disagree with the EEOC’s interpretation of Executive Order 12067. The 

EEOC’s argument appears to rest on the assumption that section 1-307 sets forth 

the exclusive mechanism by which an agency may challenge an equal employment 

opportunity rule, regulation, policy, procedure or order. Were this true, then, for 

example, the only recourse open to an agency that has, after issuance and in light 

of practical experience, come to believe that a particular regulation reflects bad 

public policy, would be to seek an amendment to the Executive Order. It could not 

simply seek to have that regulation withdrawn or amended through ordinary 

interagency processes, since, under the EEOC’s view of Executive Order 12067, 

such processes would be precluded by operation of section 1-307(b). Nothing in 

section 1-307(b) requires such a result. Rather, section 1-307(b) simply establishes 

a process that must be followed before a proposed rule or regulation can take 

effect. As the last sentence of that section states, “[i]f no reference is made within 

the 15 day period, the decision of the agency which initiated the proposed issuance 

will become effective.” Section 1-307(b) does not, however, preclude an agency 

from challenging a rule or regulation—be it on policy or legal grounds—after the 

regulation has been issued.1

We thus conclude that section 1-307 poses no bar to our addressing the legal 

questions you have raised. 

B. 

The EEOC also argues that this Office lacks authority to address the questions 

presented under Executive Order 12146. Sections 1-401 and 1-402 of that Order 

provide: 

1-4. Resolution of Interagency Legal Disputes 

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 

 1

 Although we have not previously addressed the issue raised by the EEOC here, we have in the past 

responded to requests for opinions that challenged EEOC regulations after they had been issued. See, e.g., 

Authority of the Equal Employment Opportunity Commission to Impose Monetary Sanctions Against 

Federal Agencies for Failure to Comply With Orders Issued by EEOC Administrative Judges, 27 Op. 

O.L.C. 24 (2003) (discussing whether the EEOC has the authority to award attorney’s fees against an 

agency as the EEOC had pursuant to 29 C.F.R. § 1614.109 and Management Directive 110). 
Opinions of the Office of Legal Counsel in Volume 28 

258 

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 

at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General 

prior to proceeding in any court, except where there is a specific 

statutory vesting of responsibility for a resolution elsewhere. 

Exec. Order No. 12146, 3 C.F.R. § 411 (1980). The EEOC makes two arguments 

with respect to section 1-4 of this Executive Order, both of which we find 

unpersuasive. 

First, the EEOC argues that section 1-402 is inapplicable because the Postmaster General “does not serve at the pleasure of the President.” EEOC Letter at 2. 

Even if so, section 1-402 does not prevent us from resolving the merits of this 

dispute. As we recently explained, section 1-402 does not prohibit an agency from 

requesting, or the Attorney General from rendering, an opinion properly requested 

pursuant to some other authority, such as section 1-401 of the Executive Order. 

See Applicability of Anti-Discrimination Statutes to the Presidio Trust, 28 Op. 

O.L.C. 84, 85–90 (2004) (“Presidio Trust”). Rather, “all that section 1-402 does is 

establish a requirement that agencies must satisfy before they are permitted to 

bring action in court.” Id. at 87. Thus, even if the head of the USPS does not serve 

at the pleasure of the President—a question on which we express no view—that 

would simply mean that the USPS is not bound by the procedural requirements of 

section 1-402. It would not, however, prevent the USPS from seeking our views or 

prohibit us from addressing the questions you have raised. 

This brings us to the EEOC’s second argument: that we lack authority to resolve this issue under section 1-401 of the Executive Order because there is no 

unresolved dispute here within the meaning of that section. In particular, the 

EEOC states that “[a]lthough EEOC met with USPS last year to discuss our class 

complaint regulation, USPS did not raise any of the specific objections raised in its 

August 13 letter [to this Office].” EEOC Letter at 2. Thus, explains the EEOC, 

“[n]ot only has there been no attempt to resolve the ‘dispute’ at hand, EEOC did 

not learn of USPS’[s] allegation that our class complaint regulation violates Title 

VII until we received a copy of their letter from your office.” Id. We would, of 

course, encourage agencies to attempt to resolve legal disputes amongst themselves prior to seeking the views of this Office. But the failure to do so does not 

deprive us of authority under section 1-401 to render an opinion on the legal 

questions that USPS has presented. Nothing in section 1-401 establishes a 

procedure by which agencies must attempt to resolve a dispute before seeking an 

opinion from the Attorney General: all that is required by that section is the 

presence of a legal dispute that they have been “unable to resolve.” And here, the 

letters to us from the EEOC and the USPS make clear that these agencies have 
Legality of EEOC’s Class Action Regulations 

259 

been “unable to resolve” the question whether the EEOC’s class action regulations 

are contrary to Title VII. Compare Letter for M. Edward Whelan III, Acting 

Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, 

Vice President and General Counsel, United States Postal Service, Re: EEOC 

Class Actions at 1 (Aug. 13, 2003) (“USPS Letter”) (“The Commission’s class 

action regulations are invalid because they are contrary to three fundamental 

principles embodied in Title VII of 1964.”), with EEOC Letter at 3 (“We believe 

that USPS is misinterpreting our regulation, and disagree with their allegations that 

our regulation conflicts with Title VII.”). See also Presidio Trust, 28 Op. O.L.C. at 

86 n.4 (noting that “as the submissions to us from the Trust and the EEOC make 

clear, the Trust and the EEOC have not resolved their dispute on this broader legal 

issue”) (internal citation omitted). 

We therefore reject the view that USPS’s failure to raise with the EEOC the 

legal basis for its challenge before coming to us deprives us of the authority to 

resolve this ongoing dispute. 

III. 

We now turn to the merits of the legal questions you have raised. In particular, 

you have challenged the EEOC’s class action regulations as “contrary to three 

fundamental principles embodied” in Title VII, the statutory scheme they are 

intended to enforce. USPS Letter at 1. First, you state that the regulations purport 

to bind complainants to EEOC determinations in violation of their statutory right 

to bring an action in federal court once they have exhausted their administrative 

remedies. Id. at 1, 2–4. Second, you state that the regulations are inconsistent with 

applicable exhaustion requirements because they frustrate the agency’s ability to 

resolve administrative complaints and because they create the possibility that class 

members will be able to sue in federal court without having filed an administrative 

complaint. Id. at 1, 4–7. And third, you state that the regulations are inconsistent 

with the applicable statute of limitations, again because, by creating the possibility 

that class members will be able to sue in federal court without having filed an 

administrative complaint and by failing to provide for notice of final agency action 

to non-filing members, they forestall the running of the statutory limitations period 

with respect to such members. Id. at 1, 7–8. For the reasons explained below, we 

do not believe that the EEOC’s class action regulations are inconsistent with Title 

VII in the manners you suggest.2

 2

 Our opinion is limited to whether EEOC’s class action regulations are contrary to the statute on 

the three bases you indicate; we do not address here any other possible grounds for challenging the 

regulations. 
Opinions of the Office of Legal Counsel in Volume 28 

260 

A. 

Resolution of the legal issues presented here is guided by the administrative law 

principles applied by the Supreme Court in United States v. Mead Corp., 533 U.S. 

218 (2001), the Court’s recent extended application of the doctrine first set out in 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In 

Mead, the Court addressed both the circumstances in which deference under 

Chevron is owed to an agency’s implementation of a statute as well as the 

substantive scope of that deference. 

With respect to the former, the Court explained that Chevron deference is due 

where “the agency’s generally conferred authority and other statutory circumstances” suggest that “Congress would expect the agency to be able to speak with 

the force of law when it addresses ambiguity in the statute or fills a space in the 

enacted law.” Mead, 533 U.S. at 229. Paradigmatic of such circumstances are 

“express congressional authorizations to engage in the process of rulemaking or 

adjudication that produces regulations or rulings for which deference is claimed.” 

Id. As the Court summarized: 

[A]dministrative implementation of a particular statutory provision 

qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the 

force of law, and that the agency interpretation claiming deference 

was promulgated in the exercise of that authority. Delegation of such 

authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or 

by some other indication of a comparable congressional intent. 

Id. at 226–27; see also id. at 230 (“It is fair to assume generally that Congress 

contemplates administrative action with the effect of law when it provides for a 

relatively formal administrative procedure tending to foster the fairness and 

deliberation that should underlie a pronouncement of such force . . . . Thus, the 

overwhelming number of our cases applying Chevron deference have reviewed the 

fruits of notice-and-comment rulemaking or formal adjudication.”). 

Notice-and-comment rulemaking, however, is not a prerequisite for Chevron

deference, provided that “it appears that Congress delegated authority to the 

agency generally to make rules carrying the force of law, and that the agency 

interpretation claiming deference was promulgated in the exercise of that authority,” a delegation, the Court explained, that “may be shown in a variety of ways.” 

Id. at 226–27. In Mead, the Court thus observed that “as significant as notice-andcomment rulemaking is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for 

Chevron deference even when no such administrative formality was required and 

none was afforded.” Id. at 230–31. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997) 
Legality of EEOC’s Class Action Regulations 

261 

(An agency’s “interpretation of [its own regulations] is . . . controlling unless 

‘plainly erroneous or inconsistent with the regulation.’ “). And even where an 

agency rule does not qualify for Chevron deference, it still may be entitled to 

deference under a lesser standard. See Mead, 533 U.S. at 234–35. 

Where Chevron deference is due, the Court explained that the scope of an 

agency’s regulatory authority is broad indeed: 

When Congress has ‘explicitly left a gap for an agency to fill, there is 

an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,’ and any ensuing regulation 

is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.

Mead, 533 U.S. at 227 (quoting Chevron, 467 U.S. at 843–44); see also id. at 229 

(where Chevron deference is due, “a reviewing court has no business rejecting an 

agency’s exercise of its generally conferred authority to resolve a particular 

statutory ambiguity simply because the agency’s chosen resolution seems unwise, 

but is obliged to accept the agency’s position if Congress has not previously 

spoken to the point at issue and the agency’s interpretation is reasonable”). 

Here, it is clear that the EEOC’s class action regulations are entitled to Chevron

deference: Congress has specifically authorized the EEOC “to enforce the 

provisions of subsection (a) of this section through appropriate remedies . . . 

and . . . issue such rules, regulations, orders and instructions as it deems necessary 

and appropriate to carry out its responsibilities under this section,” 42 U.S.C. 

§ 2000e-16(b), and in furtherance of this authority, the EEOC promulgated these 

regulations pursuant to notice-and-comment rulemaking, in which federal 

government agencies fully participated. See 57 Fed. Reg. 12,634 (Apr. 10, 1992); 

64 Fed. Reg. 37,644 (July 12, 1999).3

 It is for this reason, perhaps, that you have 

not suggested that these regulations are “procedurally defective” or “arbitrary or 

capricious in substance.” Mead, 533 U.S. at 227. The question before us, then, is 

whether they are “manifestly contrary to the statute” that they are intended to 

 3

 It is true that the Supreme Court has not accorded Chevron deference to certain of the EEOC’s 

substantive regulations. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Gen. Elec. 

Co. v. Gilbert, 429 U.S. 125, 141 (1976). But that is because “‘Congress, in enacting Title VII, did not 

confer upon the EEOC’” such authority. Arabian Am. Oil Co., 499 U.S. at 257 (quoting Gen. Elec. Co., 

429 U.S. at 141). Here, the EEOC’s regulations are procedural in nature, and Congress has expressly 

granted the EEOC the authority “to enforce the provisions of subsection (a) of this section through 

appropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems 

necessary and appropriate to carry out its responsibilities under this section.” 42 U.S.C. § 2000e-16(b). 

See also Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002) (noting that “[t]he first [threshold 

question] is whether the [EEOC’s] rulemaking exceeded its authority to adopt ‘suitable procedural 

regulations,’ 42 U.S.C. § 2000e-12(a), and instead addressed a substantive issue over which the EEOC 

has no rulemaking power”) (citations omitted); id. at 122–23 (O’Connor, J., concurring). 
Opinions of the Office of Legal Counsel in Volume 28 

262 

implement in any of the three ways you have indicated. Id. It is to these questions 

that we now turn. 

B. 

You have asserted three ways in which you believe that the EEOC’s class 

action regulations are contrary to Title VII. We address each in turn. 

1. 

You first state that the EEOC’s regulations are inconsistent with Title VII 

because they purport to “bind” complainants when, pursuant to the statute, 

complainants may proceed in federal court if they are dissatisfied with the results 

of the administrative proceeding. USPS Letter at 1, 2–4. In particular, you note 

several portions of the class action regulations that state or suggest that class 

members are “bound” by the results of the administrative proceeding, including 29 

C.F.R. § 1614.204(e)(2)(iii) (requiring the agency to provide complainants with 

“[a]n explanation of the binding nature of the [agency’s] final decision or resolution of the complaint on class members”), 29 C.F.R. § 1614.204(g)(4) (“If the 

administrative judge finds that the resolution [of the complaint by the agency and 

the agent of the class] is fair, adequate and reasonable to the class as a whole, the 

resolution shall bind all members of the class.”), and 29 C.F.R. § 1614.204(j)(6) 

(“A final decision on a class complaint shall, subject to subpart D of this part, be 

binding on all members of the class and the agency.”). See USPS Letter at 2 (citing 

the foregoing authorities); see also id. at 2 n.5 (citing EEOC Management Directive (“MD”) 110, ch. 8, § V.C (“The class members may not ‘opt out’ of the 

defined class”), available at http://www.eeoc.gov/federal/md110/chapter8.html 

(last visited Sept. 14, 2004)). In contrast, you note that Title VII expressly provides 

that “an employee or applicant for employment, if aggrieved by the final disposition of his complaint . . . may file a civil action” in federal district court. 42 U.S.C. 

§ 2000e-16(c). It is your view that the former regulatory provisions are inconsistent with the latter statutory one. 

We disagree. If the cited regulations purported to preclude a complainant from 

filing a civil action in federal district court, then your assertion might have merit. 

But they do not. Quite to the contrary, the regulations expressly permit the filing of 

an action by a complainant in federal court once administrative remedies are 

exhausted. They thus expressly provide that “[a] final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the 

class and the agency.” 29 C.F.R. § 1614.204(j)(6) (emphasis added). Subpart D, in 

turn, details, in relevant part, the manner in which the complainant may file a civil 

action in federal district court. Id. § 1614.401–.409. In particular, subpart D authorizes class agents and class members who have “filed an individual complaint [or] 

a claim for individual relief pursuant to a class complaint” to file an action directly 
Legality of EEOC’s Class Action Regulations 

263 

in federal court either within ninety days of receipt of notice of final agency action 

or 180 days after the date of filing the class complaint. Id. § 1614.407(a), (b). The 

regulation also recognizes the right to file a complaint in federal district court 

following the completion of the EEOC appeals process or 180 days after the filing 

of the appeal. Id. § 1614.407(c), (d). 

To be sure, several of the EEOC’s regulations refer to various aspects of the 

administrative process as “binding” complainants. But read in context—particularly in the context of the regulatory provisions expressly authorizing a complainant 

to bring a civil action in federal district court—it is evident that these references 

mean only that complainants are “bound” insofar as the administrative process is 

concerned.4

 Indeed, one of the regulations that you cite expressly so recognizes. 

See id. § 1614.204(j)(6) (“A final decision on a class complaint shall, subject to 

subpart D of this part, be binding on all members of the class and the agency.”) 

(emphasis added); see also id. § 1614.204(j)(7) (“The final decision shall inform 

the agent of the right to appeal or to file a civil action in accordance with subpart 

D of this part and of the applicable time limits.”) (emphasis added). And the other 

regulatory provisions that you cite in no way purport to close the federal court 

avenue that other regulatory provisions (and the statute) expressly recognize as 

open. In short, as the EEOC acknowledges, its “regulation is binding in the administrative, not the judicial, process.” EEOC Letter at 4. 

It may well be, as you state in your letter, that “[t]he Commission’s intent to 

bind agencies to a class action process that cannot bind class members is contrary 

to the proper purpose of class action regulations,” USPS Letter at 3, and we 

recognize that the ability of dissatisfied class members to bring suit in federal court 

may significantly hamper an agency’s ability to resolve complaints on a truly 

class-wide basis. But the distinction between complainants and agencies is drawn 

in Title VII itself, which guarantees a right to proceed in federal court only to 

complainants. See 42 U.S.C. § 2000e-16(c). Nor are we entitled to second-guess 

EEOC policy choices made within the bounds of the law. It is the EEOC, and not 

this Office or the USPS, that Congress directed to “issue such rules, regulations, 

orders and instructions as it deems necessary and appropriate to carry out its 

responsibilities under this section.” 42 U.S.C. § 2000e-16(b) (emphasis added). 

 4

 This conclusion is true even with respect to an individual who did not file an administrative 

complaint that, had it been filed, would have been subsumed within a class complaint. If the EEOC 

were to reject the class complaint on the merits, and this individual were then to file an administrative 

complaint, then the individual likely would be “bound” by the EEOC’s prior decision in the administrative context. In other words, the EEOC likely would reject this individual’s complaint under principles 

of res judicata. See 29 C.F.R. § 1614.107(a)(1); id. § 1614.204(d)(2). Nothing in the EEOC’s regulations, however, prohibits this individual from then proceeding to file an action in federal court. 

Likewise, nothing in those regulations prohibits a class member from filing a civil action if he is 

dissatisfied with a resolution of a class complaint approved by the administrative judge in accordance 

with 29 C.F.R. § 1614.204(g). 
Opinions of the Office of Legal Counsel in Volume 28 

264 

2. 

You next assert that the EEOC’s class action regulations frustrate the ability of 

agencies to resolve claims within the 180-day period that Congress prescribed. 

USPS Letter at 1, 4–7. You thus explain that, in your view, 42 U.S.C. § 2000e16(c) reflects Congress’s intention that an agency have the opportunity to resolve 

an employment discrimination claim within 180 days. That statutory provision 

provides that a complainant may file a civil action in federal district court “after 

one hundred and eighty days from the filing of the initial charge with the department, agency, or unit . . . if aggrieved by the final disposition of his complaint, or 

by the failure to take final action on his complaint.” Id. The EEOC’s class action 

regulations, you explain, frustrate an agency’s ability to resolve a claim within this 

180-day period in two distinct ways. We address each separately and conclude that 

neither demonstrates an inconsistency between the regulations and 42 U.S.C. 

§ 2000e-16. 

a. 

The first way in which you believe that the EEOC’s class action regulations are 

inconsistent with 42 U.S.C. § 2000e-16(c)’s 180-day period is that, where the 

administrative judge takes longer than 180 days to decide whether to certify a 

class, the practical effect of the regulations is to prevent an agency from considering the merits of individual claims of discrimination until after the 180-day period 

has run. In particular, MD 110 states that an “agency shall, within thirty (30) days 

of receipt of a decision dismissing a class complaint, . . . process . . . each individual complaint that was subsumed into the class complaint.” MD 110, ch. 8, 

§ III.C.5

 Since the regulations prescribe no time limit for the administrative judge’s 

decision, it is possible that such decision will not issue until shortly before or even 

after the 180-day period has run. If so (and for purposes of this opinion, we will 

assume arguendo that this is a common scenario), then it is your contention that an 

individual complainant will be authorized to file a civil action in federal district 

court before the agency has ever had an opportunity to resolve the claim administratively. 

The premise of this argument is that 42 U.S.C. § 2000e-16(c) accords an agency the right to address a complaint during the 180-day period. Even assuming 

 5

 Unlike the EEOC’s regulations, MD 110 was not promulgated pursuant to notice-and-comment 

rulemaking. We need not decide whether it is entitled to Chevron deference, however, because, for the 

reasons set forth in text, we believe it clear that the quoted provision is consistent with 42 U.S.C. 

§ 2000e-16(c)’s 180-day rule, see Edelman, 535 U.S. at 114 (“Because we so clearly agree with the 

EEOC, there is no occasion to defer and no point in asking what kind of deference, or how much.”), 

and because the USPS has identified no other basis upon which the portion of the management 

directive that it cites could be called into question. 
Legality of EEOC’s Class Action Regulations 

265 

arguendo that this interpretation of that provision is an accurate one,6 there simply 

is nothing in EEOC regulations or MD 110 that precludes an agency from acting 

upon a class complaint or an individual complaint subsumed therein within the 

180-day period, regardless of whether an administrative judge has rendered the 

class certification decision. With respect to individual complaints, the EEOC 

regulations generally require an agency to act within 180 days. See 29 C.F.R. 

§ 1614.108(e). All that MD 110 does is relieve the agency of this obligation with 

respect to class complaints and individual complaints subsumed therein, replacing 

it with the obligation to act “within thirty (30) days of receipt of a decision 

dismissing a class complaint.” MD 110, ch. 8, § III.C. Nothing in the regulations 

or MD 110, however, prohibits the agency from acting sooner, as the EEOC 

acknowledges. See EEOC Letter at 6–7 (“[T]he agency can always attempt to 

resolve the class complaint during the first 180 days that it is pending.”).7

b. 

Second, you believe that individuals who do not file administrative complaints 

may, under the EEOC’s regulations, be entitled to initiate a civil action in federal 

district court, again preventing the agency from ever having an opportunity to 

resolve that complaint administratively. This argument, as we understand it, is 

predicated on the notion that an individual who, had he filed an administrative 

complaint, would have been subsumed into the certified class, but who does not in 

fact file an administrative complaint, would be allowed to initiate a suit in district 

court in the same manner as those class members who did file administrative 

claims. This argument, again, as we understand it, is predicated upon the so-called 

“single-filing rule,” pursuant to which lower federal courts have allowed an 

individual who did not file an administrative complaint to join the civil suit of 

another individual who did exhaust the administrative process, where the claims of 

the two individuals are sufficiently similar. See, e.g., Snell v. Suffolk Cnty., 782 

F.2d 1094, 1100–02 (2d Cir. 1986); De Medina v. Reinhardt, 686 F.2d 997, 1012–

13 (D.C. Cir. 1982); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1380–81 (11th 

Cir. 1983); Greene v. City of Boston, 204 F. Supp. 2d 239, 241–43 (D. Mass. 

2002). 

 6

 It is not at all clear that this assumption is a correct one. The EEOC argues that 42 U.S.C. 

§ 2000e-16(c) is simply a “restriction on the employee’s right to file suit,” EEOC Letter at 5; it does 

not, in other words, entitle or require an agency to do anything. We need not resolve this issue, 

however, because even assuming arguendo that USPS’s characterization of section 2000e-16(c) is 

correct, it is not in conflict with EEOC’s class action regulations. 7

 It is true that some EEOC administrative decisions suggest that the normal course of action is for 

an agency to consider the merits of the complaint after the certification issue is decided. See, e.g., 

Fosnacht v. Apfel, Appeal No. 01992528, 2000 WL 361743 (EEOC Mar. 29, 2000); Travis v. Potter, 

Appeal No. 01992222, 2002 WL 31359446 (EEOC Oct. 10, 2002). These decisions, however, did not 

address whether, much less hold that, an agency is prohibited from acting until after it receives the class 

certification decision. 
Opinions of the Office of Legal Counsel in Volume 28 

266 

Again, however, this argument points to no inconsistency between the EEOC’s 

class action regulations and Title VII. The only individuals EEOC’s class action 

regulations specifically authorize to initiate an action in federal court are those 

who file individual complaints, those who file class complaints, and those who 

have filed a claim for individual relief pursuant to a class complaint. See 29 C.F.R. 

§ 1614.407 (“A complainant who has filed an individual complaint, an agent who 

has filed a class complaint or a claimant who has filed a claim for individual relief 

pursuant to a class complaint is authorized . . . to file a civil action in an appropriate United States District Court.”). Nothing in these regulations authorizes 

individuals who do not file administrative complaints or claims for individual 

relief to bring civil actions in federal court; it therefore follows that nothing in 

these regulations authorizes an individual to bring a civil action notwithstanding 

the exhaustion requirement set out in 42 U.S.C. § 2000e-16(c), which, as we have 

explained, authorizes an individual to bring a civil action only 180 days after he 

has filed an administrative complaint. And significantly, the EEOC itself seems to 

accept this view of its regulations, explaining to us: 

Our regulations only recognize suit rights for class members who file 

individual complaints, class complaints, or individual claims for relief under a class complaint. Therefore, if class certification is denied 

or class discrimination is not found, those individuals who did not 

file individual complaints may have lost the ability to file suit. In 

other words, filing an individual complaint is the only way for a potential class member to ensure his or her right to sue with certainty. 

EEOC Letter at 6. 

It is true that under the so-called “single-filing rule,” some courts have allowed 

an individual who did not file an administrative complaint to join the civil suit of 

another individual who did exhaust the administrative process, where the claims of 

the two individuals are sufficiently similar. But even assuming that courts would 

extend this rule in the manner that you suggest—such that an individual who did 

not file an administrative complaint but whose claim, had it been filed administratively, would have fallen within the class, could initiate a civil action in federal 

district court to the same extent as a class member who did file an administrative 

complaint8

—the result would still point to no inconsistency between 42 U.S.C. 

§ 2000e-16(c) and the EEOC’s class action regulations. The single-filing rule does 

not rest on an interpretation of EEOC regulations; rather, it rests on an interpretation of 42 U.S.C. § 2000e-16(c) or other analogous provisions—one in which the 

statutes have been construed to permit an individual who did not exhaust his 

 8

 But see Commc’n Workers of Am. v. N.J. Dep’t of Personnel, 282 F.3d 213, 218 (3d Cir. 2002) 

(“[I]f plaintiffs choose to bring suit individually, they must first satisfy the prerequisite of filing a 

timely EEOC charge.”) (citation and quotation omitted). 
Legality of EEOC’s Class Action Regulations 

267 

administrative remedies to piggyback upon an individual who did. See, e.g., Snell, 

782 F.2d at 1100–02 & n.7; Greene, 204 F. Supp. 2d at 240. The EEOC’s regulations do not expressly expand the single-filing rule in the manner you suggest, and 

to the extent that the courts may construe them to do so, the courts would construe 

them so as to be consistent with—not to conflict with—the statute. (Conversely, 

were it determined that 42 U.S.C. § 2000e-16(b) does not permit the single-filing 

rule to be extended in the manner that you suggest, we have little doubt that the 

regulations too would be similarly construed.9

) 

Accordingly, the possibility you have presented—that an individual would be 

permitted to initiate an action in federal court without ever having to file an 

administrative complaint—again points to no inconsistency between the statute 

and EEOC’s regulations in implementation thereof. 

3. 

Finally, you contend that EEOC’s class action regulations are inconsistent with 

the limitations period set forth in 42 U.S.C. § 2000e-16(c), which allows a 

complainant to file a civil action in federal district court only within ninety days of 

receipt of notice of final agency or EEOC action. As you note, this ninety-day 

period does not begin to run until “receipt of notice of final action” on a complaint 

of discrimination. 42 U.S.C. § 2000e-16(c). But, you state, under the EEOC’s 

regulations, not all members who have a right to bring suit in federal court will 

receive the required notice; these class members who never receive notice, 

therefore, will be entitled to bring suit in federal court even after the ninety-day 

period. USPS Letter at 7. 

Under the EEOC’s regulations, however, every complainant who files an administrative claim will receive the requisite notice of final agency or EEOC action. 

If the class is certified, then “[t]he agency shall notify class members of the final 

decision and relief awarded, if any.” 29 C.F.R. § 1614.204(k). If the class is not 

certified, then, in addition to notifying the class agent, id. § 1614.204(d)(7), the 

agency “shall, within thirty (30) days of receipt of a decision dismissing a class 

complaint . . . issue the acknowledgment of receipt of an individual complaint . . . 

and process . . . each individual complaint that was subsumed into the class 

complaint,” MD 110, ch. 8, § III.C. And if the class complaint is settled, “[n]otice 

of the resolution shall be given to all class members . . . [including notification] 

that . . . any member of the class may petition the administrative judge to vacate 

 9

 To the extent your argument is based on case law arising under Rule 23 of the Federal Rules of 

Civil Procedure (and hence, outside of the administrative context), see, e.g., USPS Letter at 6 & n.29, 

we believe it fails for the same reason. If such case law were extended to permit an individual who fails 

to satisfy the administrative exhaustion requirement nevertheless to file suit in federal court, this 

apparently unprecedented application of Rule 23 case law would necessarily be predicated upon an 

interpretation of Title VII and regulations that rendered them consistent, rather than in conflict with, 

one another. 
Opinions of the Office of Legal Counsel in Volume 28 

268 

the resolution.” 29 C.F.R. § 1614.204(g)(4). Every individual who files an administrative complaint, in other words, will receive notice of final agency action and 

thus will be fully subject to 42 U.S.C. § 2000e-16(c)’s ninety-day limitation 

period. See also EEOC Letter at 7 (“The regulation requires notice to all individuals except those potential members of a class that was not certified who did not file 

individual complaints.”). 

That leaves only individuals who do not file an administrative complaint. But 

with respect to these, your arguments fail for the same reasons discussed in Part 

II.B.2.b, supra: First, the regulations on their face only authorize those individuals 

who have filed an administrative complaint to bring suit in federal court; these 

individuals, we have explained, will receive notice and thus will be subject to the 

ninety-day period. And second, to the extent that courts would allow individuals 

who have not filed administrative claims to bring suit in federal court notwithstanding 42 U.S.C. § 2000e-16(c), this result would follow from a construction of 

the statute itself, not a construction of the regulations that would render them 

inconsistent with the statute. 

IV. 

For the foregoing reasons, we conclude that the EEOC’s class action regulations are not contrary to Title VII in any of the three ways you have suggested. 

 NOEL J. FRANCISCO 

 Deputy Assistant Attorney General 

 Office of Legal Counsel