March 16, 1978

78-17 MEMORANDUM OPINION FOR THE

ACTING DIRECTOR, OFFICE OF

MANAGEMENT AND BUDGET

Reorganization Plan No. 1 of 1978— Equal

Employment Opportunity Commission—

Transfer of Function

This responds to your request for our opinion concerning two legal questions 

raised by § 3(b) of Reorganization Plan No. J of 1978, 14 Weekly Comp. Pres. 

Doc. 398, 43 F.R. 19807.

Under § 3(a) of the Plan, the responsibility for enforcement of equal 

opportunity in Federal employment, presently lodged in the Civil Service 

Commission (CSC), would be transferred to the Equal Employment Opportunity Commission (EEOC), an executive branch agency.1 Section 3(b) of the 

Plan would empower the EEOC to delegate to the CSC or a successor agency 

“ the function of making a preliminary determination on the issue of discrimination,” whenever a Federal employee has alleged in a proceeding before the 

EEOC that his rights under § 717 of the Civil Rights Act of 1964 have been 

violated.2 Your questions arise because it is contemplated that the CSC’s 

successor agency for these purposes would be an independent regulatory 

agency exercising quasi-judicial powers whose members would not serve at the 

pleasure of the President.

The first question is whether the independence of this successor agency 

would be affected by the transfer to it of the responsibility for making a 

preliminary determination of the merits of a Federal employee’s allegation. The 

task of making such determinations is purely adjudicatory. Under the rationale 

of the most recent Supreme Court decisions dealing with this general question,

'T h is office has taken the position, m ost recently in o u r letter to you o f F ebruary 7. 1978, that 

com m issioners o f the E E O C serve at the pleasure o f (he President and that the A gency is an, 

executive— as opposed to an independent regulatory— agency.

2(b) T he Equal E m ploym ent O pportunity C om m ission m ay delegate to the C ivil Service 

C om m ission or its successor the function o f m aking a prelim inary determ ination on the issue o f 

discrim ination w henever, as a part o f a com plaint or appeal before the C ivil S ervice C om m ission on 

other grounds, a Federal em ployee alleges a violation o f § 717 o f the C ivil R ights Act o f 1964. as 

am ended (42 U.S.C. 2000e-16), provided that the Equal E m ploym ent O pportunity C om m ission 

retains the function o f m aking the final determ ination.

69
assignment of an adjudicatory function to an agency then recognized to be 

“ independent” would not alter its independent status in any way. Cf., Wiener

v. United States, 357 U.S. 349 (1958). We see no basis for a different 

conclusion here.3

The second question is whether limiting the successor agency to making a 

preliminary determination on the merits of the employee’s allegation while 

retaining in the EEOC the “ function of making the final determination 

concerning such issue of discrimination . . . ” would affect the independence of 

the successor agency. In other words, does the placement of power in an 

executive agency to review and overturn a preliminary decision reached by an 

independent agency impinge on the independent status of the latter? We think 

the answer to this question is “ n o .”

The proposition that executive agencies may be empowered by Congress to 

review and adopt or overturn decisions made by “ independent” agencies or 

hearing examiners without affecting the independent status of either is well 

established. For example, the President is authorized by statute to review and 

reverse certain decisions made by the Civil Aeronautics Board; yet we have no 

doubt that members of that Board may be removed only for cause under 49 

U.S.C. § 1321. More recently, Congress has given the Secretary of Energy the 

power to implement or reject certain regulatory actions formulated by the 

Federal Energy Regulatory Commission, an independent agency.4 The conference report indicates that Congress believed that such review power in the 

Secretary would not affect the independent status of the Commission. See H. 

Rept. No. 539, 95th Cong., 1st sess., at 78 (1977).

Given the adjudicatory nature of the decisions to be reviewed by the EEOC 

under § 3(b), we think the history of the use of independent administrative law 

judges and hearing examiners under the Administrative Procedure Act (APA) 

of 1946 supports our position. Under § 11 of that Act,5 these officers were 

specifically made “ independent . . . in their tenure and compensation.” 6 One 

of the major functions performed by administrative law judges is to preside 

over formal APA proceedings, 5 U.S.C. § 556(c), and then to make the initial 

decision or recommendation regarding the disposition of the matter before 

them, 5 U.S.C. §§ 554(d) and 557(b). This decision may then be reviewed by 

the agency, often an executive agency, which has “ all the powers which it 

would have in making the initial decision . . .. ” 5 U.S.C. § 557(b).

Thus, to conclude that EEOC review of preliminary decisions made by a 

successor agency pursuant to § 3(b) of the Plan would jeopardize the independence of the latter agency would cast grave doubt on the principle under which

3W e drew the sam e conclusion w ith regard to this q uestion in our m em orandum to W . H arrison 

W ellford o f February 23, 1978.

4D epartm ent o f E nergy O rganization A ct, § 4 0 2 (c), Pub. L. N o. 95-91, 91 Stat. 565.

5Section II is now codified in various sections o f 5 U .S .C ., nam ely, §§ 1305, 3105, 3344, 

4 3 0 K 2 X E ), 5362, and 7521.

6A dm inistrative P rocedure A ct— L egislative H istory, S. D oc. N o. 248, 79th C o n g ., 2d sess., at 

215 (1946).

70
administrative law judges and similar hearing officers have performed equivalent adjudicatory functions for more than three decades during which their 

independence has never been doubted, although subject to administrative 

review.

Thus, we conclude that the delegation under § 3(b) of the Plan will not raise 

questions as to the independent status of the CSC successor agency.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

71