Proposed Settlement of Diamond v. Department o f Health &

Human Services

The Department o f Health & Human Services may lawfully enter into a settlem ent providing that 

the positions o f specific em ployees will not be reclassified until they vacate the positions if, in 

light of the facts of the case and recognizing the inherent uncertainty of litigation, the agency 

concludes that a court m ight find that there was a cognizable danger o f recurrent sexual discrim ination in the reclassifications in violation of Title VII o f the Civil Rights Act of 1964.

December 4, 1998

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l

D e p a r t m e n t o f H e a l t h & H u m a n S e r v ic e s

This memorandum responds to your letter requesting our views on the lawfulness of a provision in a proposed settlement agreement in the case of Sarah

Diamond v. Department o f Health & Human Services, EEOC Case No. 110-96— 

8155X.1 We conclude that on a finding of discrimination in the reclassification, 

a court could enjoin reclassification of the positions of specific employees if the 

court found some cognizable danger of recurrent violation. If the record contained 

abundant evidence of consistent past discrimination, a court would likely presume 

an injunction was appropriate unless the agency presented clear and convincing 

proof of no reasonable probability of future noncompliance with the law. If the 

court found only an isolated occurrence of discrimination, plaintiffs would have 

to provide additional evidence of the cognizable danger of a recurrent violation 

to justify such an injunction. If, in addition, the facts indicated that the affected 

employees were close to retirement or, for other reasons, expected to vacate the 

positions in a relatively proximate and definite period of time, the injunction 

would be less vulnerable to challenge as overbroad than if the employees were 

relatively new or otherwise could be expected to stay on for several years.

The Department of Health & Human Services (“ HHS” ) thus may enter into 

a settlement providing that the positions of specific employees will not be reclassified until they vacate the positions if, in light of the facts and recognizing the 

inherent uncertainty of litigation, the agency concludes that a court might reasonably find that there was a cognizable danger of recurrent violation in the reclassifications. The risk that a court would find a cognizable danger of recurrent violation could be a risk of retaliation against the employees, of further use of discriminatory practices or procedures in the reclassification, or that the reclassification

1 Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Harriet S 

Raab, General Counsel, Department of Health & Human Services (Jan. 2, 1997) ( “ HHS Memorandum” ) Ordinarily, 

an inquiry of this nature would be answered by the litigating division of the Department handling the matter, and 

this Office would merely provide advice to that division if requested. This matter, however, involves an inter-agency 

dispute, and because the matter is before the Equal Employment Opportunity Commission, there is no litigating 

division directly involved. We have obtained the views of the Office of Personnel Management, the Equal Employment Opportunity Commission, and the Civil Rights and Civil Divisions of the Department of Justice

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Opinions of Ihe Office o f Legal Counsel in Volume 22

of these employees would perpetuate the effects of past discrimination. This is 

not to say the agency must conclude that it believes future violations will occur. 

Rather, the agency may settle where it concludes, on the basis of a good faith 

assessment of the litigation risk, that there is a genuine risk of an adverse judgment 

on the question.

The lawfulness of including such a term in a settlement, therefore, depends upon 

the particular facts. Because we are not in a position, and have not been asked, 

to evaluate the factual predicate for the proposed settlement, including the circumstances surrounding the employment and reclassification of the three 

employees who will be permitted to remain in their pre-classification positions, 

we cannot reach a conclusion regarding the final legality of this provision. We 

conclude, however, that there could be facts under which such relief would be 

lawful.

I. Background

Under Title 5 of the United States Code, each position in a covered federal 

agency is placed in the appropriate “ class” and “ grade” based upon the level 

of difficulty, responsibility, and qualification requirements of the work. See 5

U.S.C. §§5101, 5106 (1994). The Office of Personnel Management (“ OPM” ), 

after consulting with the relevant agencies, is charged with developing the standards for placing positions in their proper class and grade. See 5 U.S.C. §5105 

(1994). A covered agency has the authority and obligation to “ place each position 

under its jurisdiction in its appropriate class and grade in conformance with standards published by [OPM].” 5 U.S.C. §5107 (1994). Periodically, OPM must 

review a sample of the positions in each agency ‘ ‘to determine whether the agency 

is placing positions in classes and grades in conformance with or consistently 

with published standards.” 5 U.S.C. §5110(a) (1994). If, during the review pursuant to § 5 1 10(a), OPM finds that an agency has failed to place a position in its 

proper grade and class, the statute directs OPM to place the position in the appropriate grade and class. Id. § 5110(b). If OPM finds that an agency is not classifying 

positions in accordance with published standards, OPM “ may revoke or suspend 

the authority granted to the agency by section 5107 . . . and require that prior 

approval of [OPM] be secured’ ’ before a classification decision becomes effective 

for payroll and personnel purposes. 5 U.S.C. §5111 (1994).

This case arises from a 1995 position classification review at the Centers for 

Disease Control and Prevention ( “ CDC” ), an agency of HHS. Pursuant to the 

review, CDC downgraded eighty-two administrative positions. Sixty-eight of the 

affected employees were women.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e— 2000e-17 (1994 

& Supp. II 1996), requires that “ [a]ll personnel actions affecting employees or 

applicants for em ploym ent. . . in [federal] executive agencies . . . shall be made

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free from any discrimination based on race, color, religion, sex, or national 

origin.” 42 U.S.C. § 2000e-16(a). The Equal Employment Opportunity Commission ( “ EEOC” ) has authority to enforce Title VII against federal agencies through 

an administrative process. See 42 U.S.C. § 2000e-16(b). In February of 1996, 

Sarah Diamond, on behalf of herself and the other sixty-seven affected female 

employees, filed discrimination complaints against CDC and OPM with the EEOC 

challenging the classification review as discriminatorily targeting women’s jobs 

for downgrading and as having a discriminatory impact on women employees.2 

See Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office 

of Legal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel 

Management at 12 (May 1, 1998) (“ OPM Memorandum” ). The complaints 

alleged that sex discrimination tainted “ the entire process, from the identification 

of the positions which would be reviewed to the audits, and ultimately to the 

actual downgrades.” HHS Memorandum at Attachment 4 (Complainants’ 

Response to OPM’s Motion to Dismiss at 7 (May 30, 1997)).

The administrative law judge (“ A U ” ) assigned to the cases ordered that OPM 

be joined with CDC as a defendant in a single, consolidated case. See HHS Memorandum at 3. In April of 1997, OPM unsuccessfully moved to dismiss the complaint. OPM argued that the complainants had not exhausted administrative remedies and that the EEOC had no jurisdiction over the case. OPM offered three 

theories as to why EEOC lacked jurisdiction. First, it argued that reclassifying 

a position is not a “ personnel action” covered by Title VII. Second, OPM maintained that the EEOC did not have authority to remedy discrimination in a classification decision by ordering an agency to place a complainant in a grade different 

from the grade assigned by OPM. Third, OPM stated that the EEOC had no 

authority to review “ the classification system” —i.e. any actions taken under the 

classification statutes and the corresponding OPM regulations. Id. at Attachment 

2 (OPM’s Motion to Dismiss at 8-10 (Apr. 25, 1997)). The EEOC denied the 

motion to dismiss. Id. at Attachment 6 (Order Denying Motion to Dismiss (Jun.

10, 1997)).

After the ALJ denied OPM’s motion, CDC made efforts to locate other positions 

for the affected employees at their pre-review grade and pay. Many were moved 

to new positions. CDC restructured the duties of others in order to preserve their 

pre-review grade. At the time of the HHS request for our views, three class members remained for whom no grade-saving positions could be found. See HHS 

Memorandum at 2.

2 To prevail on a disparate impact claim under Title VII, the complainant must prove that a particular employment 

practice causes a disparate impact on a group protected by the statute, and the employer must fail to demonstrate 

that the challenged practice is job related and consistent with business necessity See 42 U S C. § 2000e-2(k) (1994). 

If the employer proves the challenged practice is consistent with business necessity, the complainant will prevail 

only if she shows that an alternative employment practice, without a similarly discriminatory effect, will accomplish 

the employer’s legitimate business purpose. See id., Albemarle Paper Co v. Moody, 422 U.S 405, 425 (1975).

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Opinions of the Office o f Legal Counsel in Volume 22

On July 10, 1997, HHS and the class reached a tentative settlement agreement. 

Paragraph 1 of the settlement provided:

The class members who have not (a) been placed in other positions 

at their original grade, or (b) otherwise voluntarily removed to 

another position, or (c) left the employment of the CDC, through 

resignation, retirement, or death, shall be allowed to remain in their 

current positions, at the grade they held prior to the classification 

review. Said positions will be subject to reclassification consistent 

with applicable classification standards when the class members 

who encumber them vacate said positions by any means, including 

but not limited to selection or reassignment to another position, resignation from CDC, retirement, or death.

OPM Memorandum at Attachment A (Settlement Agreement between Complainant Class and Department of HHS U 1 (Nov. 7, 1997)) (“ HHS Settlement Paragraph 1” ).

OPM objected to paragraph 1 of the proposed HHS settlement. OPM informed 

HHS that if HHS implemented this provision, OPM would, pursuant to 5 U.S.C. 

§ 5111(a), revoke or suspend HHS’s authority to classify positions at CDC. See

HHS Memorandum at 4.

On November 7, 1997, HHS and the plaintiff class executed a settlement that 

included paragraph 1 but conditioned its implementation on two events: a determination by the Office of Legal Counsel ( “ OLC” ) that the provision was lawful, 

and agreement by OPM not to revoke the classification authority of HHS or CDC 

for implementing that paragraph. See OPM Memorandum at Attachment A (HHS 

Settlement H 20).

HHS requested an OLC opinion on two questions.3 First, in a lawsuit arising 

out of a reclassification, could the appropriate court-ordered relief, upon a finding 

of discrimination, include changing the complainant’s classification back to the 

grade held prior to the discriminatory reclassification? Second, if such relief could 

be granted upon a finding of discrimination, could the agency grant such relief 

as part of a voluntary settlement? See HHS Memorandum at 13-14. HHS argued 

that the appropriate relief could include changing the complainant’s classification 

back to his or her pre-review grade and that an agency could grant such relief 

as part of a voluntary settlement.

Upon receiving the HHS Memorandum, we requested the views of OPM, the 

EEOC, and the Civil and Civil Rights Divisions of the Department of Justice. 

The EEOC, the Civil Division, and the Civil Rights Division all concurred in

3 Executive Order No. 12146 authorizes the Attorney General to issue binding resolutions of legal disputes between 

agencies whose heads serve at the pleasure of the President. Exec. Order No 12146, 3 C F.R 409 (1980). That 

function has been delegated to this office See 28 C.F R. § 0 25 (1998)

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HHS’s position.4 On May 1, 1998, after reviewing the submissions of the other 

four offices, OPM submitted its views. OPM did not squarely address the questions posed by HHS, and its memorandum suggests that the grounds of dispute 

between HHS and OPM have narrowed. OPM now appears to agree that, upon 

a finding of discrimination, the appropriate relief could include returning the class 

members to the positions they were in before the discriminatory actions and that 

a court or the EEOC could order such relief. See OPM Memorandum at 2. However, OPM maintains that this relief should be followed by “ a nondiscriminatory 

audit to determine the proper prospective grades of those positions.” Id. OPM 

continues to believe that paragraph 1 of the HHS Settlement is unlawful insofar 

as it “ goes beyond the appropriate relief and provides that the incumbents’ positions will be subject to reclassification only after they are vacated by the class 

members who encumber them.” Id. In OPM’s view, that provision inappropriately 

proposes ‘ ‘to shield these positions from application of pertinent, portions of title 

5 as long as the class members remain in them.” Id.

On June 6, 1998, OPM executed a settlement agreement with the class. See

Settlement Agreement, Diamond v. OPM, EEOC No. 110-96-8167X (June 6, 

1998) (“ OPM Settlement” ). The OPM Settlement notes OPM’s objection to paragraph 1 of the HHS Settlement, and states that OPM cannot make a determination 

concerning the effect of paragraph 1 until OLC renders its opinion on the issues. 

See OPM Settlement at U 1.

II. Analysis

Both OPM and HHS now appear to agree that the two questions submitted 

by HHS should be answered in the affirmative. First, in a case alleging discriminatory reclassification, the appropriate relief may include returning the complainant 

to the grade held prior to the discriminatory reclassification.5 Second, because 

an agency settlement may include any relief that-a court could award upon a 

finding of discrimination, an agency may grant such relief as part of a voluntary 

settlement.6 OPM and HHS continue to disagree, however, on whether, upon a

••Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Frank W. 

Hunger, Assistant Attorney General, Civil Diviston, Re: HHS/OPM Settlement Dispute (Apr 20, 1998); Memorandum 

for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from Ellen J Vargyas, Legal 

Counsel, EEOC (Feb. 25, 1998), Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of 

Legal Counsel, from Bill Lann Lee, Acting Assistant Attorney General, Civil Rights Division, Re' HHS Request

regarding settlement o f Title VII reclassification claim (undated)

5 In addition, OPM appears no longer to contend that a reclassification is not a “ personnel action” within the 

meaning of Title Vll.

6 It is established .that “ Congress intended voluntary compliance to be the preferred means .of achieving the objectives of Title VII.” Local No 93, Int'l Ass'n o f Firefighters v City o f Cleveland, 478 U S 501, 515 (1986) An 

agency therefore has the authority to settle an employment discrimination claim without a specific finding of discrimination See Shaw v. Library o f Congress* 479 F Supp. 945 (D.D.C 1979) (agency settlement of Title VII claim 

may include retroactive promotion and back pay without adjudicating ments of claim); 29 C F R § 1614 603 (1998) 

(EEOC regulations require agencies to consider settlement throughout the administrative process). This Office has 

recognized this principle in concluding that an agency settlement may include money damages if a court could

Continued

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finding of discrimination, the appropriate relief in this case could include relief 

of the nature and duration provided in paragraph 1. Specifically, OPM maintains 

that neither the EEOC nor a district court has the authority to bar reclassification 

of the complainants’ positions until they cease to occupy the positions.

An agency may settle an employment discrimination claim without a specific 

finding of discrimination. See supra note 6. An agency settlement should be based 

on the agency’s good faith assessment of the litigation risk that a court might 

find complainants entitled to relief. We derive this standard from that which governs the Attorney General in compromising or abandoning claims made against 

the United States in litigation. The Attorney General may “ compromise claims 

on the basis of her good faith assessment of the litigation risk’ ’ that a court might 

find complainants entitled to relief. See Waiver o f Statutes o f Limitations in

Connection with Claims Against the Department o f Agriculture, 22 Op. O.L.C. 

127, 139—40 (1998) ( “ USDA Opinion” ) (citing The Attorney General’s Role as

Chief Litigator fo r the United States, 6 Op. O.L.C. 47, 60 (1982)).7 Similarly, 

an agency settlement of a discrimination claim should be based on the agency’s 

good faith assessment of the litigation risk that a court might find complainants 

entitled to relief. We therefore consider whether a court, upon a finding of 

discrimination, could order the relief specified in paragraph 1.

A.

Title VII requires that “ [a]ll personnel actions affecting employees or applicants 

for employment . . . in [federal] executive agencies . . . shall be made free from 

any discrimination based on race, color, religion, sex, or national origin.” 42 

U.S.C. § 2000e-16(a). Title VII provides federal employees with both administrative and judicial remedies. The EEOC has authority to enforce Title VII against 

federal agencies “ through appropriate remedies, including reinstatement or hiring 

of employees with or without back pay, as will effectuate the policies of [§ 2000e16], and shall issue such rules, regulations, orders and instructions as it deems 

necessary and appropriate to carry out its responsibilities under this section.” 42

award such relief m an action by an aggrieved person upon a finding of discrimination See Authority o f USDA

to Award Monetary Relief fo r Discrimination, 18 Op. O.L.C. 52, 53 (1994) (concluding agency may provide money 

damages in the settlement of a claim under the Equal Credit Opportunity Act if a court could award monetary 

relief in a court action) (“ M onetary Relief Opinion” ). The Comptroller General has applied the same principle 

in evaluating agency authonty to settle claims under Title VII of the Civil Rights Act of 1964, 42 U.S C. §§ 2000e— 

2000e-17 (1994 & Supp. II 1996), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621- 

634 (1994 & Supp. II 1996) ( “ A D EA "). See Monetary Relief Opinion at 53 (discussing 62 Comp. Gen 239 (1983) 

and 64 Comp. Gen. 349 (1985)).

7 “ [The Attorney General’s] determination whether to compromise the claims on the basis of the litigation risk 

may be guided by her judgment that compromise, rather than litigation, would be in the best interests of the United 

States or would otherwise promote the ends of justice. [6 Op. O L C at 60]. But her settlement authonty does 

not allow her to discard a statutory requirement and determine that, on the basis of her own view of the equities, 

a claim should be paid, notwithstanding its legal invalidity. Rather, the Attorney General’s obligation "to administer 

and enforce the Constitution of the United States and the will of Congress as expressed in the public laws,’ requires 

that she enforce [statutory requirements] where they bar a plaintiffs claims. See id. at 62.” USDA Opinion, 22 

Op. O L C . at 140.

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Proposed Settlement o f Diamond v. Department o f Health & Human Services

U.S.C. § 2000e-16(b). In addition, after completing the administrative process set 

forth in § 2000e-16(b), a federal employee may file a civil action against his or 

her agency employer under the provisions governing actions by non-federal 

employees, which are set forth at 42 U.S.C. § 2000e-5(f). See 42 U.S.C. § 2000e16(c) & (d). Upon a finding that an employer has or is engaging in an unlawful 

employment practice charged in the complaint, “ the court may enjoin the 

respondent from engaging in such unlawful employment practice, and order such 

affirmative action as may be appropriate, which may include, but is not limited 

to, reinstatement or hiring o f employees, with or without back pay ..., or any

other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(l) 

(emphasis added).

Congress vested broad equitable discretion in the district courts “ to allow the 

most complete achievement of the objectives of Title VII that is attainable under 

the facts and circumstances of the specific case.” Franks v. Bowman Transp. Co.,

424 U.S. 747, 770-71 (1976). That discretion is not unbounded, but is guided 

by “ the principled application of standards consistent with [legislative] purposes.” 

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975). A district court decision regarding a Title VII remedy “ must therefore be measured against the purposes which inform Title VII.” Id.

Congress enacted Title VII to accomplish two main purposes. “ The primary 

objective was a prophylactic one” — to prevent employment discrimination and 

thereby “ achieve equality of employment opportunities.” Id. “ It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.” Id. at 418. An appropriate remedy under Title 

VII therefore may include relief, including injunctive relief, that will make the 

plaintiff whole, prevent future violations of the act, and prevent retaliation against 

complainants. See Thomas v. Albright, 139 F.3d 227, 231 (D.C. Cir. 1998) 

(affirming district court approval of settlement where injunction redresses past 

and deters future discrimination in assignments and inhibits future retaliation).

“ Once employment discrimination has been shown, . . . district judges have 

broad discretion to issue injunctions addressed to the proven conduct.” EEOC

v. Ilona o f Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir. 1997). In determining 

whether to award injunctive relief, courts look “ to whether the discriminatory 

conduct could possibly persist in the future.” Id. at 1578-79; c f United States

v. W.T. Grant Co., 345 U.S. 629, 633 (1953). In cases presenting “ abundant evidence of consistent past discrimination,” some courts have held that injunctive 

relief is mandatory “ absent clear and convincing proof that there is no reasonable 

probability of further noncompliance with the law.” NAACP v. Evergreen, 693 

F.2d 1367, 1370 (11th Cir. 1982); see James v. Stockham Valves & Fittings Co.,

559 F.2d 310, 354 (5th Cir. 1977) (court should enter injunction unless it can 

discern “ clear and convincing proof of no reasonable probability of further noncompliance with the law” ); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1519 (9th

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Cir. 1989) ( “ victims of employment discrimination generally are entitled to an 

injunction against future discrimination, unless the employer proves it is unlikely 

to repeat the practice” ); United States v. Gregory, 871 F.2d 1239, 1246—47 (4th 

Cir. 1989) (where court found pattern or practice of discrimination against women, 

government need not provide any further evidence to justify an award of prospective relief). In cases presenting isolated occurrences of discrimination, in contrast, 

the decision to issue an injunction is in the discretion of the district court and 

some courts do not presume injunctive relief is appropriate. Instead, the plaintiff 

must demonstrate “ ‘that there exists some cognizable danger of recurrent violation, something more than the mere possibility.’ ” Walls v. Mississippi State Dept,

o f Pub. Welfare, 730 F.2d 306, 325 (5th Cir. 1984) (quoting Grant, 345 U.S. 

at 633);8 see EEOC v. Alton Packaging Corp., 901 F.2d 920, 926 (11th Cir. 1990) 

(absent evidence of past discrimination, permanent injunction not mandatory); 

EEOC v. General Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989) (requiring 

“ some cognizable danger” of future violations); Hayes v. Shalala, 933 F. Supp. 

21, 27 (D.D.C. 1996) (same). Generally, “ courts have declined to issue injunctive 

relief where the employer has shown that its discrimination ceased well before 

the entry of judgment, where plaintiffs showed only isolated instances of discrimination by key individuals no longer employed, and where the employer otherwise 

has shown that injunctive relief is unnecessary to prevent future noncompliance.”

2 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1746- 

47 (Paul W. Cane, Jr., ed., 3d ed. 1996) (footnotes omitted).

The form of injunctive relief varies according to the specifics of the case. Courts 

often enjoin the use of specific, unlawful employment practices found discriminatory, and may enjoin the employer from future discrimination or retaliation against 

the plaintiffs and others in plaintiffs’ class. See id. at 1744—46. A district court’s 

judgment regarding the appropriate form of the injunction necessary to make the 

complainants whole and to prevent future violations of the act generally receives 

considerable deference. See Albemarle, 422 U.S. at 424—25; Williams v. OwensIllinois, Inc., 665 F.2d 918, 931 (9th Cir. 1982) (“ the particular remedy granted, 

however, is not limited to any specific or prescribed form; rather it is left largely 

to the broad discretion of the district court” ); Selgas v. American Airlines, Inc.,

104 F.3d 9, 13 (1st Cir. 1997) (“Trial courts have discretion to fashion the awards 

in Title VII cases so as to fully compensate a plaintiff in a manner that suits 

the specific facts of the case; this discretion includes the selection of the elements 

which comprise the remedial recovery.” ). While it therefore is difficult to generalize about the degree to which injunctive relief must be tailored to preventing

8 In Grant, the Supreme Court sustained the district court’s refusal lo award injunctive relief under the Clayton 

Act and held that the moving party must satisfy the court that injunctive relief is needed by demonstrating a cognizable danger of a recurrent violation The presumption that injunctive relief is warranted in cases with abundant 

evidence of consistent past discrimination is not inconsistent with this requirement. A plaintiff who shows that an 

employer engaged in a practice, pattern or policy o f discrimination has thereby demonstrated that there is “ some 

cognizable danger of recurrent violation” and therefore does not need to provide additional evidence to wanant 

injunctive relief

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Proposed Settlement o f Diamond v. Department o f Health & Human Services

continued discrimination or its effects, or retaliation, it is clear that some fit is 

required. See Malarkey v. Texaco, Inc., 983 F.2d 1204, 1215 (2d Cir. 1993) 

(upholding injunction against retaliation despite finding that last act of retaliation 

occurred ten years before in light of danger of future retaliation); Gaddy v. Abex

Corp., 884 F.2d 312, 318 (7th Cir. 1989) (holding injunction against retaliation 

overbroad where there had been no allegation that defendants had ever retaliated, 

but authorizing injunction tailored to findings of discrimination); Pecker v. 

Heckler, 801 F.2d 709, 711 n.3, 713 (4th Cir. 1986) (plaintiff who had proved 

discrimination and retaliation was entitled to injunction prohibiting such violations 

in the future); Brady v. Thurston Motor Lines, 726 F.2d 136, 146-47 (4th Cir. 

1984) (upholding injunction covering employment practices found to have been 

discriminatory but directing modification to delete reference to job placement 

practices, with respect to which no discrimination findings were made); EEOC

v. AIC Sec. Investigations, Ltd., 823 F. Supp. 571, 580 (N.D. 111. 1993) (injunction 

against retaliation not excessive where there was no allegation of retaliation but 

evidence demonstrated danger of retaliation), a jfd in part and rev’d in part on

other grounds, 55 F.3d 1276 (7th Cir. 1995).

As for duration, permanent injunctive relief usually does not contain a termination date. See, e.g., Malarkey, 983 F.2d at 1215; Gaddy, 884 F.2d at 318; 

Pecker, 801 F.2d at 711 n.3, 713; Brady, 726 F.2d at 146—47. In some circumstances, however, courts do specify a limited time period for an injunction 

to remain in effect. See AIC, 823 F. Supp. at 580 (judgment under Americans 

with Disabilities Act shall remain in effect for three years).

B.

Paragraph 1 of the HHS Settlement provides for the positions of the three covered complainants to remain at their pre-review grade for as long as those 

complainants occupy the positions. This settlement provision is permissible if a 

court, upon a finding of discrimination, could enjoin the reclassification of the 

positions for as long as the plaintiffs occupy them.

Courts issue a wide range of types of injunctive relief under Title VII. They 

may, for example, prohibit the use of specific employment practices found to be 

unlawful, require the employer to take (or refrain from taking) specified steps 

to remedy and prevent unlawful practices, or, more generally, they may simply 

bar future discrimination or retaliation against the plaintiffs and others in plaintiffs’ class. See Lindemann, supra at 1744-46. Paragraph 1 of the HHS Settlement 

appears to fall within the second category, prohibiting the agency from taking 

a specific action—reclassification—with respect to the positions of certain 

employees rather than barring the use of a specific standard or practice in reclassification, or simply barring discrimination or retaliation generally. That relief is 

analogous to lawful injunctions that preserve a complainant’s salary , or position

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notwithstanding an employer’s generally applicable personnel policies under 

which the salary or position might otherwise be downgraded. See, e.g., Pettway

v. American Cast Iron Pipe Co., 494 F.2d 211, 248 n.99 (5th Cir. 1974) (injunction requiring “ red circling,” whereby employees who transfer to new department 

as trainees to become eligible for higher paid and higher skilled work continue 

to receive wage rate of old job until eligible for higher pay in new department); 

United States v. Bethlehem Steel Corp., 446 F.2d 652, 665 (2d Cir. 1971) (same). 

In order to achieve the same effect of preserving the status quo ante for particular 

employees, other courts have required employers to obtain approval of changes 

in the employees’ status, see, e.g., United States v. City and County o f San Francisco, 699 F. Supp. 762, 768-69 (N.D. Cal. 1988) (enjoining demotions of firefighters, except for disciplinary reasons), or expressly placed the burden on the 

employer of showing that a proposed practice is nondiscriminatory, see, e.g.,

Hameed v. International Ass’n o f Bridge, Structural & Ornamental Iron Workers,

Local 396, 637 F.2d 506, 517-18 (8th Cir. 1980) (enjoining use of selection criteria with disparate impact until such time as they are proved to be job related). 

These injunctive provisions were appropriate because they were necessary “ to 

allow the most complete achievement of the objectives of Title VII that is attainable under the facts and circumstances of the specific case.” Franks, 424 U.S. 

at 770-71.

Evaluation of whether paragraph 1 is an appropriate remedy— that is, whether 

it will make the complainants whole or prevent future violations of the act, 

including preventing retaliation—thus requires reference to the alleged violation 

that it is to remedy and to the danger of a recurrent violation. Complainants allege 

that the entire reclassification process was tainted by illegal discrimination. See

HHS Memorandum at Attachment 4 (Complainant’s Response to OPM’s Motion 

to Dismiss at 7 (May 30, 1997)). The 1995 reclassification process included several steps. First, CDC conducted a position classification review. The initial CDC 

review identified questionable classification determinations, particularly in 

administrative and clerical support positions. Second, CDC conducted a detailed 

review of all positions in the administrative and clerical support occupational 

series. That review included audits of the duties and qualification requirements 

for each position. Third, based on the audits and classification standards developed 

by OPM, CDC identified several positions which appeared to be misclassified. 

Finally, CDC executed personnel actions to downgrade eighty-two positions. See

OPM Memorandum at 11. The complaint alleged a pattern of intentional discrimination and disparate impact affecting all stages of the process.

OPM maintains that the appropriate remedy is to rescind the reclassification 

and then conduct a nondiscriminatory audit of the positions. The propriety of the 

proposed remedy, however, depends on the nature of the violation that the remedy 

is designed to redress. As noted above, the complaint alleges that the entire 

reclassification process violated Title VII. If a court were to agree, it might, in

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light of all the circumstances, conclude that such pervasive discrimination 

indicates a cognizable danger of a recurrent violation that warrants an injunction 

against reclassification. Moreover, a court presented with evidence that an agency 

intended to continue to employ the very practices found discriminatory would 

have not only the authority, but the duty, to enjoin the agency from using those 

practices. See Albermarle, 422 U.S. at 418; Roe v. Cheyenne Mountain Conference

Resort, 124 F.3d 1221, 1231 (10th Cir. 1997) (district court abused its discretion 

by failing to enter injunction in face of defendant employer’s continued refusal 

to revoke its discriminatory policy). OPM’s suggested remedy would not provide 

the requisite relief if there were a cognizable danger of recurrent violations and 

the agency failed to present clear and convincing proof that there is no reasonable 

probability of further noncompliance with the law.

On a finding of discrimination in the reclassification, a court could enjoin 

reclassification of the positions of specific employees if there exists “ ‘some cognizable danger of recurrent violation, something more than the mere possibility.’ ” 

See Walls, 730 F.2d at 325 (quoting Grant, 345 U.S. at 633). If the record contained “ abundant evidence of consistent past discrimination,” a court likely would 

presume an injunction was appropriate unless agencies could present “ clear and 

convincing proof of no reasonable probability of future noncompliance with the 

law.” See Evergreen, 693 F.2d at 1370. If the discrimination was found to be 

an isolated occurrence, plaintiffs would have to provide additional evidence of 

the cognizable danger of a recurrent violation. See Walls, 730 F.2d at 325.

The injunction must fit, to some degree, the possible recurrent violation it is 

to remedy. See supra Part II.A. We are not familiar with the factual record in 

this case, in particular the circumstances surrounding the employment of the three 

affected complainants. We can, however, conceive of findings that would justify 

such an injunction. If, for example, the record demonstrated a cognizable danger 

of retaliation against the three complainants or their class, an injunction barring 

reclassification of the positions of the three employees until they vacate the positions would address that possible recurrent violation. Such an injunction might 

also be justified where the record demonstrated a cognizable danger that the 

agency would use discriminatory practices or procedures in the reclassification, 

or that the reclassification of these employees would perpetuate the effects of past 

discrimination. If, in addition, the facts indicated that the affected employees were 

close to retirement or otherwise expected to vacate the positions in a relatively 

short period of time, the injunction would be less vulnerable to challenge as 

overbroad than if the employees were relatively new and could be expected to 

stay on for many years.

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c

OPM maintains that an injunction providing the relief specified in paragraph 

1 would violate 5 U.S.C. §5107, which requires agencies to place positions in 

the appropriate class and grade pursuant to OPM’s classification standards. In 

OPM ’s view, such an injunction also would contravene OPM’s statutory authority 

to mandate and conduct reclassifications under 5 U.S.C. §§5110 and 5112. See

OPM Memorandum at 13. OPM therefore argues that the settlement is barred 

under the principle that the authority to settle litigation ‘ ‘does not include license 

to agree to settlement terms that would violate the civil laws governing the 

agency.” See Executive Bus. Media v. Department o f Defense, 3 F.3d 759, 762 

(4th Cir. 1993) (“EBM” ).

EBM involved a settlement arising from a publishing firm’s allegations that the 

Department of Defense (“ DOD” ) breached its contract to publish a DOD 

employee newsletter. The publishing firm offered to dismiss its suit if DOD modified the newsletter contract to provide for the firm to publish an annual DOD 

guidebook that was not covered by the original contract. Plaintiff EBM, a competitor publishing firm, sued to void the contract for the guidebook on grounds that 

DOD failed to comply with regulations requiring competitive bidding. The Fourth 

Circuit found in favor of the plaintiff, holding that the Attorney General’s plenary 

authority over litigation “ does not include license to agree to settlement terms 

that would violate the civil laws governing the agency.” EBM, 3 F.3d at 762.

The proposed HHS Settlement can be distinguished from EBM. The relief provided in the EBM settlement was not within the class of remedies available to 

a court upon a finding of breach of contract. See United States v. Sherwood, 312 

U.S. 584 (1941). If a court found that the CDC reclassification violated Title VII, 

EBM would not preclude the court from enjoining OPM and HHS from using 

any employment practices found discriminatory until those standards and procedures were found non-discriminatory. Nor would it preclude an order barring the 

reclassification of certain employees for a specific duration. In those circumstances, the injunction would not require the government to perform acts 

unauthorized by statute. Rather, it would order the government to cease discriminating in the performance of authorized acts.

If, as described above in part II.A, the Diamond settlement provision is sufficiently tied to a possible violation of Title VII and necessary to make plaintiffs 

whole, that provision differs from the guidebook contract offered in settlement 

in EBM. Title VII reflects a congressional determination that federal personnel 

decisions shall be free from discrimination, and that the equity powers of the 

courts are available to enforce this principle. By authorizing Title VII actions 

against federal agencies, Congress has empowered the courts to order the relief 

required to cure violations of the act. See Mitchell v. DeMario Jewelry, Inc., 361 

U.S. 288, 291-92 (1960) ( “ When Congress entrusts to an equity court the enforce268
Proposed Settlement o f Diamond i'. Department o f Health & Human Services

ment of prohibitions contained in a regulatory enactment, it must be taken to have 

acted cognizant of the historic power of equity to provide complete relief in the 

light of the statutory purposes.” ); see also Porter v. Warner Holding Co., 328 

U.S. 395, 397-98 (1946).

III. Conclusion

HHS may enter into a settlement providing that the positions of specific 

employees will not be reclassified until they vacate the positions if, in light of 

the facts and recognizing the inherent uncertainty of litigation, the agency concludes that a court might find that there was some cognizable danger of recurrent 

violation in the reclassifications. The possible finding of a cognizable danger of 

recurrent violation could be a danger of retaliation against the employees, of the 

use of discriminatory practices or procedures in the reclassification, or that the 

reclassification of these employees would perpetuate the effects of past discrimination. If, in addition, the facts indicated that the affected employees were close 

to retirement or otherwise expected to vacate the positions shortly, the provision 

would more closely fit the danger of a recurrent violation than if the employees 

were relatively new and could be expected to stay on for many years.

RANDOLPH D. MOSS 

Acting Assistant Attorney General

Office o f Legal Counsel

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