b'NLRB Quorum Requirements\nThe National Labor Relations Board may issue decisions even when only two of its five seats are filled,\nif the Board, at a time when it has at least three members, delegates all its powers to a three-member\ngroup and the two remaining members are part of this group and both participate in the decisions.\n\nMarch 4, 2003\n\nMEMORANDUM OPINION FOR THE SOLICITOR\nNATIONAL LABOR RELATIONS BOARD\nYour office has asked for our opinion whether, having delegated all of its powers to a group of three members, the National Labor Relations Board (\xe2\x80\x9cBoard\xe2\x80\x9d)\nmay issue decisions and orders in unfair labor practice and representation cases\nonce three of the five seats on the Board have become vacant.1 We believe that the\nBoard may issue such decisions and orders if the two remaining members are part\nof the three-member group to which the Board delegated all of its powers and if\nthey both participate in such decisions and orders.*\nI.\nThe Board consists of five members, who are appointed by the President with\nthe advice and consent of the Senate and serve staggered terms of five years. 29\nU.S.C. \xc2\xa7 153(a) (2000). The Board may \xe2\x80\x9cdelegate to any group of three or more\nmembers any or all of the powers which it may itself exercise.\xe2\x80\x9d Id. \xc2\xa7 153(b).\nAlthough a \xe2\x80\x9cvacancy in the Board shall not impair the right of the remaining\nmembers to exercise all of the powers of the Board,\xe2\x80\x9d the Board is subject to\nquorum requirements: \xe2\x80\x9c[T]hree members of the Board shall, at all times, constitute\na quorum of the Board, except that two members shall constitute a quorum of any\ngroup designated pursuant to\xe2\x80\x9d the provision on delegation to groups of three or\nmore members. Id.\nThe \xe2\x80\x9cprimary function of the Board is to adjudicate any contested issues that\narise in . . . unfair labor practice and representation cases, i.e. to issue final\ndecisions and orders in the cases, usually after an initial or recommended decision\nhas been issued by an administrative law judge (in unfair labor practice cases), or\nby a hearing officer or regional director (in representation cases).\xe2\x80\x9d Board Letter at\n1\n\nLetter for Jay Bybee, Assistant Attorney General, Office of Legal Counsel, from Henry S. Breiteneicher, Acting Solicitor, National Labor Relations Board, Re: Request for OLC Opinion (May 16, 2002)\n(\xe2\x80\x9cBoard Letter\xe2\x80\x9d). In accordance with our Office\xe2\x80\x99s policies, the Board has agreed to be bound by the\npresent opinion. Id. at 7.\n*\nEditor\xe2\x80\x99s Note: In New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2640 (2010), the Supreme\nCourt reached a contrary conclusion, interpreting section 3(b) of the National Labor Relations Act, 29\nU.S.C. \xc2\xa7 153(b), to require \xe2\x80\x9cthat the delegee group [of Board members] maintain a membership of\nthree in order for the delegation to remain valid\xe2\x80\x9d (emphasis in original).\n\n82\n\n\x0cNLRB Quorum Requirements\n\n3\xe2\x80\x934 (footnotes omitted); see 29 U.S.C. \xc2\xa7\xc2\xa7 158, 159 (2000). As a matter of\nprudence, when the membership on the Board has fallen to two members, the\nBoard has not issued decisions and orders in such cases. Board Letter at 2. The\nBoard has not attempted to resolve whether a Board with three serving members\ncould delegate its powers to itself as a three-member group and, when the\nmembership of the Board and of the group fell to two, continue to issue decisions\nand orders on the theory that a quorum of two for the three-member group would\nremain. See id. at 2\xe2\x80\x933.2\nII.\nIn our view, if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum\nof two members remained.\nA.\nThe statute permits the Board to \xe2\x80\x9cdelegate to any group of three . . . members\nany or all of the powers which it may itself exercise.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 153(b). In the\nproposed arrangement, the three remaining members of the Board would constitute\nthemselves a \xe2\x80\x9cgroup\xe2\x80\x9d of the Board and would delegate to that group \xe2\x80\x9call of the\n[Board\xe2\x80\x99s] powers.\xe2\x80\x9d The statute further declares that, where the Board has delegated power to a group of three or more members, a quorum of the group shall be two\nmembers. Id. The provision for a two-member quorum of such a group is an\nexpress exception to the requirement that a quorum of the Board shall be three\nmembers: \xe2\x80\x9c[T]hree members of the Board shall, at all times, constitute a quorum\nof the Board, except that two members shall constitute a quorum of any group\ndesignated\xe2\x80\x9d by the Board. Id. Moreover, the statute states that \xe2\x80\x9c[a] vacancy in the\nBoard shall not impair the right of the remaining members to exercise all of the\npowers of the Board.\xe2\x80\x9d Id. (emphasis added).3 We therefore conclude that the plain\nterms of section 153(b) provide that the Board could form a \xe2\x80\x9cgroup\xe2\x80\x9d that could\nexercise all of the Board\xe2\x80\x99s powers as long as it had a quorum of two members.\n\n2\nThe Board Letter might be read to leave open the possibility that the last two members, even\nwithout a delegation from three members, could act as a group with a two-member quorum. Because\nonly \xe2\x80\x9c[t]he Board is authorized to delegate to any group of three or more members any or all of [its]\npowers\xe2\x80\x9d and \xe2\x80\x9cthree members of the Board shall, at all times, constitute a quorum of the Board,\xe2\x80\x9d 29\nU.S.C. \xc2\xa7 153(b), it is unclear how the remaining two members could take action in those circumstances.\n3\nIn the construction of an Act of Congress, \xe2\x80\x9cunless the context indicates otherwise\xe2\x80\x94words importing the singular include and apply to several persons, parties, or things.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 1 (2000). Thus, the\nprovision under which \xe2\x80\x9c[a] vacancy in the Board shall not impair the right of the remaining members,\xe2\x80\x9d\n29 U.S.C. \xc2\xa7 153(b), also applies to more than one vacancy, as long as the quorum requirement is met.\nCf. R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1341 (D.C. Cir. 1983) (interpreting term\n\xe2\x80\x9cvacancies\xe2\x80\x9d).\n\n83\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nThere is judicial authority for reading this statute to mean that the departure of\none member of a three-member group designated by the Board would not prevent\nthe remaining two members from acting. In Photo-Sonics, Inc. v. NLRB, 678 F.2d\n121 (9th Cir. 1982), the Ninth Circuit upheld the decision of a three-member group\nwhen one member\xe2\x80\x99s resignation had become effective on the day that the group\xe2\x80\x99s\ndecision had been issued. The court ruled that even if the resignation precluded the\nmember from taking part in the decision, \xe2\x80\x9ca decision by two members of the panel\nwould still be binding.\xe2\x80\x9d Id. at 122. The court relied specifically on section 153(b)\xe2\x80\x99s\nprovision that two members of a group to which the Board has delegated powers\nshall constitute a quorum. Id. (referring to section 153(b) as section 3(b) of the\nNational Labor Relations Act). In defining the term \xe2\x80\x9cquorum,\xe2\x80\x9d the court drew an\nanalogy to cases where courts having three members \xe2\x80\x9chave issued decisions by a\nquorum of two judges when the third died or was ill.\xe2\x80\x9d Id. (citations omitted). In\nthese cases, \xe2\x80\x9c[c]ourts have interpreted \xe2\x80\x98quorum\xe2\x80\x99 to mean the \xe2\x80\x98number of the\nmembers of the court as may legally transact judicial business.\xe2\x80\x99\xe2\x80\x9d Id. (quoting\nTobin v. Ramey, 206 F.2d 505, 507 (5th Cir. 1953)). Applying the analogy to the\nBoard, the Ninth Circuit held that \xe2\x80\x9c[u]nder the view that \xe2\x80\x98quorum\xe2\x80\x99 means the\nnumber of members that may legally transact business, the Board\xe2\x80\x99s decision in this\ncase is valid . . . because a \xe2\x80\x98quorum\xe2\x80\x99 of two panel members supported the decision.\xe2\x80\x9d Id. The resignation of one member thus did not take away the remaining\nmembers\xe2\x80\x99 power to act.\nWe note that the legislative history of the statute, though far from exact on this\npoint, is consistent with the view that delegations to groups of members may be\nused to ensure the Board\xe2\x80\x99s capacity to accomplish its business\xe2\x80\x94a capacity that\nwould otherwise be destroyed in the circumstances you have posited. The\nprovision on delegations to groups of three or more members was first enacted in\n1947 as part of the Taft-Hartley Act. The bill, as passed by the House, provided\nfor a Board of three members\xe2\x80\x94the same number as under prior law. See 93 Cong.\nRec. 3549 (1947). The Senate bill called for expanding the Board to seven\nmembers, of whom four would be a quorum, and allowing delegation to any group\nof three members, of whom two would be a quorum. See S. Rep. No. 80-105, at 33\n(1947). The purpose of this arrangement was to \xe2\x80\x9cpermit [the Board] to operate in\npanels of three, thereby increasing by 100 percent its ability to dispose of cases\nexpeditiously in the final stage, and to leave the remaining member, not presently\nassigned to either panel, to deal with the problems of administration[,] personnel,\nexpenditures, and the preparation of the budget.\xe2\x80\x9d Id. at 8. The conference committee, without giving any reasons, settled on a Board of five members, but retained\nthe provisions for delegations to groups of three. H.R. Conf. Rep. No. 80-510, at\n37 (1947). The intent thus seems to have been generally to enable the Board to\nhandle more cases by dividing itself into panels. As the District of Columbia\nCircuit declared in a case upholding the National Mediation Board\xe2\x80\x99s delegation of\nits authority to a single member expected to remain in office, \xe2\x80\x9cit would seem that\nif the [National Mediation] Board can use its authority to delegate in order to\n\n84\n\n\x0cNLRB Quorum Requirements\n\noperate more efficiently, then a fortiori the Board can use its authority in order to\ncontinue to operate when it otherwise would be disabled.\xe2\x80\x9d R.R. Yardmasters of\nAm. v. Harris, 721 F.2d 1332, 1340 n.26 (D.C. Cir. 1983).4\nB.\nWe recognize that, here, the Board would be creating a three-member \xe2\x80\x9cgroup\xe2\x80\x9d\nwith the intent that it operate as a two-member group upon the departure of the\nthird member. In Photo-Sonics, where the Ninth Circuit upheld the decision of a\ngroup whose membership had fallen to two, the Board evidently had not created\nthe three-member group with the intent that it function with only two members,\nand there appears even to have been a dispute whether in fact only two members\nof the group had participated in the decision. 678 F.2d at 122. Furthermore, in\nPhoto-Sonics, the Board as a whole continued to have four members, even after\none member of the \xe2\x80\x9cgroup\xe2\x80\x9d resigned. See 254 Decisions and Orders of the\nNational Labor Relations Board, at III (1982). Here, the Board itself would lack its\nquorum of three members, and the proposed arrangement would be designed with\nthe purpose of dealing with that situation.\nNevertheless, the statute provides that once a delegation is made to a group of\nthree or more members, the quorum of the group becomes two. It imposes no\nrequirement that the group continue to have three members, as long as the twomember quorum continues. Furthermore, even if the three-member quorum of the\nBoard as a whole no longer exists, a prior delegation of the Board would remain\nvalid, because a vacancy in the position of a delegating authority does not\ninvalidate prior delegations of institutional power by that authority. See, e.g.,\nYardmasters, 721 F.2d at 1343; Champaign Cnty. v. U.S. Law Enforcement\nAssistance Admin., 611 F.2d 1200, 1207 (7th Cir. 1979); but see Yardmasters, 721\nF.2d at 1346\xe2\x80\x9347 (Wald, J., dissenting). In addition, when the Board\xe2\x80\x99s membership\nhas fallen to three members, the Board has developed a practice of designating\nthose members as a \xe2\x80\x9cgroup\xe2\x80\x9d in cases where one member will be disqualified, and\nthen proceeding to a decision with a quorum of the two members able to participate. Board Letter at 5\xe2\x80\x936. This practice suggests that three-member groups may be\nconstituted even when it is foreseen that only two members will actually participate in a decision.\nWe also recognize that our conclusion arguably is in tension with dictum in\nYardmasters. There, a divided panel of the District of Columbia Circuit held that a\n4\nBut cf. Hunter v. Nat\xe2\x80\x99l Mediation Bd., 754 F.2d 1496, 1498 n.1 (9th Cir. 1985) (because the final\nadministrative action in the case was taken by a quorum of the NMB, the court does not \xe2\x80\x9creach the\nquestion of the limits of NMB authority to delegate powers in the event of . . . vacancies\xe2\x80\x9d and \xe2\x80\x9cadopt[s]\nthe rationale of Yardmasters only insofar as necessary for [the] conclusion that interim actions by [the\nsingle Board member] did not affect the ultimate validity\xe2\x80\x9d of the NMB\xe2\x80\x99s action); Scheduled Skyways,\nInc. v. Nat\xe2\x80\x99l Mediation Bd., 738 F.2d 339, 341 (8th Cir.) (the \xe2\x80\x9cquestion of one-member certification\xe2\x80\x9d\nhad become moot, and the court did not reach the issue), appeal dismissed, 746 F.2d 456 (1984).\n\n85\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nsingle member of the National Mediation Board (\xe2\x80\x9cNMB\xe2\x80\x9d), acting under a\ndelegation, could exercise the powers of that body when vacancies on the NMB\ntemporarily had deprived it of its statutory quorum. The court ruled that the\nstatutory provision allowing for delegation did not limit the powers that could be\ndelegated; that the loss of a quorum on the NMB did not vitiate the delegation,\nbecause the statute provided that vacancies on the NMB would not affect the\npowers of the remaining members; and that the delegation did not conflict with the\nquorum requirement, because the statutory provision on delegation provided an\nindependent mode for the NMB to conduct its business, apart from transacting\nbusiness at NMB meetings. In answering the dissenting judge\xe2\x80\x99s argument that a\nsingle member could abuse the powers vested in the NMB, the court stressed that,\n\xe2\x80\x9c[u]nlike the National Labor Relations Board, the [NMB] is not principally\nengaged in substantive adjudications\xe2\x80\x9d and \xe2\x80\x9cdoes not adjudicate unfair labor\npractices or seek to enforce individual rights under [its governing statute].\xe2\x80\x9d 721\nF.2d at 1345. The court might thus be understood to have disapproved of the use\nof delegations to deal with the lack of a quorum where an agency exercises the sort\nof substantive power that is vested in the Board. The court, however, did not\nanalyze the statute applicable to the Board, and, under this statute, there is a\nseparate quorum requirement for a three-member group. The arrangement that\nwould be used to deal with vacancies on the Board, therefore, would not confer\npower on a number of members smaller than the number for which Congress\nexpressly provided in setting the quorum. The possible abuse of the delegation\npower that the dissenting judge raised in Yardmasters, and the majority sought to\navoid, would not arise under the statute governing the Board.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n86\n\n\x0c'


b'Legality of EEOC\xe2\x80\x99s Class Action Regulations\nThe Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised\nwith respect to the Equal Employment Opportunity Commission\xe2\x80\x99s class action regulations.\nThe Equal Employment Opportunity Commission\xe2\x80\x99s class action regulations applicable to administrative complaints against federal government agencies are not contrary to Title VII in the manners\nsuggested by the United States Postal Service: the regulations do not purport to prevent claimants\nfrom filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and\nthey do not forestall the running of the limitations period.\n\nSeptember 20, 2004\n\nMEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL\nUNITED STATES POSTAL SERVICE\nYou have asked whether certain class action regulations promulgated by the\nEqual Employment Opportunity Commission (\xe2\x80\x9cEEOC\xe2\x80\x9d) applicable to administrative complaints against federal government agencies are contrary to Title VII of\nthe Civil Rights Act of 1964. We conclude that they are not inconsistent with Title\nVII in the manners you suggest.\nI.\nWe 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\nactions of the federal government, including those of the United States Postal\nService (\xe2\x80\x9cUSPS\xe2\x80\x9d), \xe2\x80\x9cshall be made free from any discrimination based on race,\ncolor, religion, sex, or national origin.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-16(a) (2000). Section\n2000e-16 then specifically assigns the EEOC the authority to enforce this requirement:\nExcept as otherwise provided in this subsection, the Equal Employment Opportunity Commission shall have authority to enforce the\nprovisions 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.\nId. \xc2\xa7 2000e-16(b). In pursuance of this authority, the EEOC has created a detailed\nadministrative procedure for resolving claims of discrimination by federal\nemployees or applicants for federal employment, including hearings before\nadministrative law judges and appeals to the EEOC itself. The complaining\nemployee or applicant may, subject to conditions, seek relief in the federal courts\nif he is dissatisfied with the results of this administrative process. Id. \xc2\xa7 2000e-\n\n254\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\n16(c). An agency, however, may not seek judicial review of the decisions of the\nEEOC. See id. \xc2\xa7 2000e-16(b), (c).\nYour specific questions involve the EEOC\xe2\x80\x99s administrative process for resolving class action complaints. See 29 C.F.R \xc2\xa7 1614.204 (2003). This process begins\nwhen an aggrieved individual, after completing a counseling process, files a class\ncomplaint with the agency that allegedly discriminated against him. See id.\n\xc2\xa7 1614.204(b), (c). The agency then has thirty days to forward the complaint to the\nEEOC, which assigns the complaint to an administrative judge. Id. \xc2\xa7 1614.204(d).\nThe administrative judge first must decide whether to recommend certification of\nthe class, which he may do if the proposed class meets the requirements of\nnumerosity, commonality and typicality, and if the complainant who is the\nproposed agent for the class will \xe2\x80\x9cfairly and adequately protect the interests of the\nclass.\xe2\x80\x9d Id. \xc2\xa7 1614.204(a)(2), (d)(2). Once the administrative judge makes his\nrecommendation, the agency must, within forty days, decide whether or not to\naccept the complaint. Id. \xc2\xa7 1614.204(d)(7). If the agency dismisses the class\ncomplaint, the complainant may appeal to the EEOC or file a civil action. Id. If the\nagency accepts the class complaint, it must notify the class members. Id.\n\xc2\xa7 1614.204(e).\nDiscovery then begins and lasts not less than sixty days. Id. \xc2\xa7 1614.204(f).\nOnce discovery has concluded, the administrative judge conducts a hearing and\nissues a report and recommendations on the merits of the complaint. Id.\n\xc2\xa7 1614.204(h), (i). Upon receipt of this report, the agency has sixty days to issue a\n\xe2\x80\x9cfinal decision\xe2\x80\x9d stating whether it will \xe2\x80\x9caccept, reject, or modify the [administrative judge\xe2\x80\x99s] findings.\xe2\x80\x9d Id. \xc2\xa7 1614.204(j)(1). This \xe2\x80\x9cfinal decision . . . shall, subject\nto subpart D of this part [addressing the appeal rights of the complainant and the\nagency], be binding on all members of the class and the agency.\xe2\x80\x9d Id.\n\xc2\xa7 1614.204(j)(6). The agency must then notify the complainants of its final\ndecision, as well as of their appeal rights under subpart D. Id. \xc2\xa7 1614.204(j)(7),\n(k). Where the agency has found discrimination, members of the class may then\nfile claims for individual relief. Id. \xc2\xa7 1614.204(l).\nIf the class agent or any member who has filed a claim for individual relief is\nunsatisfied with the final action of the agency, he may either appeal to the EEOC\nor file a civil action in federal court. Id. \xc2\xa7\xc2\xa7 1614.401(c), 1614.407. In addition, if\nat any time during this process, more than 180 days has passed since the filing of\nthe initial complaint, an individual or the class may file an action in federal court.\nId. \xc2\xa7 1614.407. With respect to appeals to the EEOC, the EEOC has delegated the\nresponsibility for handling them to the Office of Federal Operations (\xe2\x80\x9cOFO\xe2\x80\x9d). Id.\n\xc2\xa7 1614.403\xe2\x80\x93.405. There is no time limit in which the OFO must act; however, 180\ndays after the filing of the appeal, the class or a member who has filed a claim for\nindividual relief may file a civil action in federal court. Id. \xc2\xa7 1614.407(d).\nAlternatively, the class may await the decision of the OFO and, if dissatisfied, may\nfile a civil action within ninety days of that decision. Id. \xc2\xa7 1614.407(c). The\n\n255\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nagency is not authorized to proceed in federal court should it be dissatisfied with\nthe results of the administrative process. See id. \xc2\xa7\xc2\xa7 1614.407, 1614.502.\nThe class agent and the agency may resolve the complaint by written agreement\nat any time. Id. \xc2\xa7 1614.204(g)(2), (3). Notice of the resolution must be provided to\nall class members, who may then petition to have the resolution vacated on the\nground that it is \xe2\x80\x9cnot fair, adequate and reasonable to the class as a whole.\xe2\x80\x9d Id.\n\xc2\xa7 1614.204(g)(4). The administrative judge considers these petitions. If he finds\nthat the resolution is fair, adequate and reasonable, then the resolution binds all\nmembers of the class. Id. If, on the other hand, the administrative judge determines\nthat the proposed resolution is unfair to the class as a whole, he vacates the\nresolution and restarts the adjudicatory process. Id.\nWith this statutory and regulatory background in mind, we now turn to the legal\nquestions presented by your request.\nII.\nWe first address the EEOC\xe2\x80\x99s arguments that, under Executive Orders 12067\nand 12146, we should refrain from resolving the legal questions you raise. For the\nreasons explained below, we conclude that neither argument establishes that this\nOffice lacks the authority to resolve the legal questions here presented.\nA.\nThe EEOC first argues that section 1-307 of Executive Order 12067 prohibits\nthis Office from addressing the merits of the legal questions at issue. Section 1307(b) provides:\nWhenever 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,\nprocedure, order or any matter covered by this Order, the Chairman\nof the Equal Employment Opportunity Commission or the head of\nthe affected department or agency may refer the matter to the Executive Office of the President. Such reference must be in writing and\nmay not be made later than 15 working days following receipt of the\ninitiating agency\xe2\x80\x99s notice of intent publicly to announce an equal\nemployment opportunity rule, regulation, policy, procedure or order.\nIf no reference is made within the 15 day period, the decision of the\nagency which initiated the proposed issuance will become effective.\nExec. Order No. 12067, 3 C.F.R. \xc2\xa7 208 (1979). The EEOC argues that USPS\n\xe2\x80\x9cshould not be permitted to raise a matter under the general dispute resolution\nmechanism of E.O. 12146 that could have and should have been raised under the\n\n256\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\nmore specific process for resolving disputes between agencies over EEO-related\nregulations\xe2\x80\x9d set forth in section 1-307(b). Letter for Noel J. Francisco, Deputy\nAssistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni,\nAssociate Legal Counsel, Equal Employment Opportunity Commission, Re:\nEEOC\xe2\x80\x99s Class Complaint Regulation at 2 (Nov. 14, 2003) (\xe2\x80\x9cEEOC Letter\xe2\x80\x9d).\nWe disagree with the EEOC\xe2\x80\x99s interpretation of Executive Order 12067. The\nEEOC\xe2\x80\x99s argument appears to rest on the assumption that section 1-307 sets forth\nthe exclusive mechanism by which an agency may challenge an equal employment\nopportunity rule, regulation, policy, procedure or order. Were this true, then, for\nexample, the only recourse open to an agency that has, after issuance and in light\nof practical experience, come to believe that a particular regulation reflects bad\npublic policy, would be to seek an amendment to the Executive Order. It could not\nsimply seek to have that regulation withdrawn or amended through ordinary\ninteragency processes, since, under the EEOC\xe2\x80\x99s view of Executive Order 12067,\nsuch processes would be precluded by operation of section 1-307(b). Nothing in\nsection 1-307(b) requires such a result. Rather, section 1-307(b) simply establishes\na process that must be followed before a proposed rule or regulation can take\neffect. As the last sentence of that section states, \xe2\x80\x9c[i]f no reference is made within\nthe 15 day period, the decision of the agency which initiated the proposed issuance\nwill become effective.\xe2\x80\x9d Section 1-307(b) does not, however, preclude an agency\nfrom challenging a rule or regulation\xe2\x80\x94be it on policy or legal grounds\xe2\x80\x94after the\nregulation has been issued.1\nWe thus conclude that section 1-307 poses no bar to our addressing the legal\nquestions you have raised.\nB.\nThe EEOC also argues that this Office lacks authority to address the questions\npresented under Executive Order 12146. Sections 1-401 and 1-402 of that Order\nprovide:\n1-4. Resolution of Interagency Legal Disputes\n1-401. Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which\nhas jurisdiction to administer a particular program or to regulate a\n\n1\n\nAlthough we have not previously addressed the issue raised by the EEOC here, we have in the past\nresponded to requests for opinions that challenged EEOC regulations after they had been issued. See, e.g.,\nAuthority of the Equal Employment Opportunity Commission to Impose Monetary Sanctions Against\nFederal Agencies for Failure to Comply With Orders Issued by EEOC Administrative Judges, 27 Op.\nO.L.C. 24 (2003) (discussing whether the EEOC has the authority to award attorney\xe2\x80\x99s fees against an\nagency as the EEOC had pursuant to 29 C.F.R. \xc2\xa7 1614.109 and Management Directive 110).\n\n257\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nparticular activity, each agency is encouraged to submit the dispute\nto the Attorney General.\n1-402. Whenever two or more Executive agencies whose heads serve\nat the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General\nprior to proceeding in any court, except where there is a specific\nstatutory vesting of responsibility for a resolution elsewhere.\nExec. Order No. 12146, 3 C.F.R. \xc2\xa7 411 (1980). The EEOC makes two arguments\nwith respect to section 1-4 of this Executive Order, both of which we find\nunpersuasive.\nFirst, the EEOC argues that section 1-402 is inapplicable because the Postmaster General \xe2\x80\x9cdoes not serve at the pleasure of the President.\xe2\x80\x9d EEOC Letter at 2.\nEven if so, section 1-402 does not prevent us from resolving the merits of this\ndispute. As we recently explained, section 1-402 does not prohibit an agency from\nrequesting, or the Attorney General from rendering, an opinion properly requested\npursuant to some other authority, such as section 1-401 of the Executive Order.\nSee Applicability of Anti-Discrimination Statutes to the Presidio Trust, 28 Op.\nO.L.C. 84, 85\xe2\x80\x9390 (2004) (\xe2\x80\x9cPresidio Trust\xe2\x80\x9d). Rather, \xe2\x80\x9call that section 1-402 does is\nestablish a requirement that agencies must satisfy before they are permitted to\nbring action in court.\xe2\x80\x9d Id. at 87. Thus, even if the head of the USPS does not serve\nat the pleasure of the President\xe2\x80\x94a question on which we express no view\xe2\x80\x94that\nwould simply mean that the USPS is not bound by the procedural requirements of\nsection 1-402. It would not, however, prevent the USPS from seeking our views or\nprohibit us from addressing the questions you have raised.\nThis brings us to the EEOC\xe2\x80\x99s second argument: that we lack authority to resolve this issue under section 1-401 of the Executive Order because there is no\nunresolved dispute here within the meaning of that section. In particular, the\nEEOC states that \xe2\x80\x9c[a]lthough EEOC met with USPS last year to discuss our class\ncomplaint regulation, USPS did not raise any of the specific objections raised in its\nAugust 13 letter [to this Office].\xe2\x80\x9d EEOC Letter at 2. Thus, explains the EEOC,\n\xe2\x80\x9c[n]ot only has there been no attempt to resolve the \xe2\x80\x98dispute\xe2\x80\x99 at hand, EEOC did\nnot learn of USPS\xe2\x80\x99[s] allegation that our class complaint regulation violates Title\nVII until we received a copy of their letter from your office.\xe2\x80\x9d Id. We would, of\ncourse, 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\ndeprive us of authority under section 1-401 to render an opinion on the legal\nquestions that USPS has presented. Nothing in section 1-401 establishes a\nprocedure by which agencies must attempt to resolve a dispute before seeking an\nopinion from the Attorney General: all that is required by that section is the\npresence of a legal dispute that they have been \xe2\x80\x9cunable to resolve.\xe2\x80\x9d And here, the\nletters to us from the EEOC and the USPS make clear that these agencies have\n\n258\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\nbeen \xe2\x80\x9cunable to resolve\xe2\x80\x9d the question whether the EEOC\xe2\x80\x99s class action regulations\nare contrary to Title VII. Compare Letter for M. Edward Whelan III, Acting\nAssistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons,\nVice President and General Counsel, United States Postal Service, Re: EEOC\nClass Actions at 1 (Aug. 13, 2003) (\xe2\x80\x9cUSPS Letter\xe2\x80\x9d) (\xe2\x80\x9cThe Commission\xe2\x80\x99s class\naction regulations are invalid because they are contrary to three fundamental\nprinciples embodied in Title VII of 1964.\xe2\x80\x9d), with EEOC Letter at 3 (\xe2\x80\x9cWe believe\nthat USPS is misinterpreting our regulation, and disagree with their allegations that\nour regulation conflicts with Title VII.\xe2\x80\x9d). See also Presidio Trust, 28 Op. O.L.C. at\n86 n.4 (noting that \xe2\x80\x9cas the submissions to us from the Trust and the EEOC make\nclear, the Trust and the EEOC have not resolved their dispute on this broader legal\nissue\xe2\x80\x9d) (internal citation omitted).\nWe therefore reject the view that USPS\xe2\x80\x99s failure to raise with the EEOC the\nlegal basis for its challenge before coming to us deprives us of the authority to\nresolve this ongoing dispute.\nIII.\nWe now turn to the merits of the legal questions you have raised. In particular,\nyou have challenged the EEOC\xe2\x80\x99s class action regulations as \xe2\x80\x9ccontrary to three\nfundamental principles embodied\xe2\x80\x9d in Title VII, the statutory scheme they are\nintended to enforce. USPS Letter at 1. First, you state that the regulations purport\nto bind complainants to EEOC determinations in violation of their statutory right\nto bring an action in federal court once they have exhausted their administrative\nremedies. Id. at 1, 2\xe2\x80\x934. Second, you state that the regulations are inconsistent with\napplicable exhaustion requirements because they frustrate the agency\xe2\x80\x99s ability to\nresolve administrative complaints and because they create the possibility that class\nmembers will be able to sue in federal court without having filed an administrative\ncomplaint. Id. at 1, 4\xe2\x80\x937. And third, you state that the regulations are inconsistent\nwith the applicable statute of limitations, again because, by creating the possibility\nthat class members will be able to sue in federal court without having filed an\nadministrative complaint and by failing to provide for notice of final agency action\nto non-filing members, they forestall the running of the statutory limitations period\nwith respect to such members. Id. at 1, 7\xe2\x80\x938. For the reasons explained below, we\ndo not believe that the EEOC\xe2\x80\x99s class action regulations are inconsistent with Title\nVII in the manners you suggest.2\n\n2\n\nOur opinion is limited to whether EEOC\xe2\x80\x99s class action regulations are contrary to the statute on\nthe three bases you indicate; we do not address here any other possible grounds for challenging the\nregulations.\n\n259\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nA.\nResolution of the legal issues presented here is guided by the administrative law\nprinciples applied by the Supreme Court in United States v. Mead Corp., 533 U.S.\n218 (2001), the Court\xe2\x80\x99s recent extended application of the doctrine first set out in\nChevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In\nMead, the Court addressed both the circumstances in which deference under\nChevron is owed to an agency\xe2\x80\x99s implementation of a statute as well as the\nsubstantive scope of that deference.\nWith respect to the former, the Court explained that Chevron deference is due\nwhere \xe2\x80\x9cthe agency\xe2\x80\x99s generally conferred authority and other statutory circumstances\xe2\x80\x9d suggest that \xe2\x80\x9cCongress would expect the agency to be able to speak with\nthe force of law when it addresses ambiguity in the statute or fills a space in the\nenacted law.\xe2\x80\x9d Mead, 533 U.S. at 229. Paradigmatic of such circumstances are\n\xe2\x80\x9cexpress congressional authorizations to engage in the process of rulemaking or\nadjudication that produces regulations or rulings for which deference is claimed.\xe2\x80\x9d\nId. As the Court summarized:\n[A]dministrative implementation of a particular statutory provision\nqualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the\nforce of law, and that the agency interpretation claiming deference\nwas promulgated in the exercise of that authority. Delegation of such\nauthority may be shown in a variety of ways, as by an agency\xe2\x80\x99s power to engage in adjudication or notice-and-comment rulemaking, or\nby some other indication of a comparable congressional intent.\nId. at 226\xe2\x80\x9327; see also id. at 230 (\xe2\x80\x9cIt is fair to assume generally that Congress\ncontemplates administrative action with the effect of law when it provides for a\nrelatively formal administrative procedure tending to foster the fairness and\ndeliberation that should underlie a pronouncement of such force . . . . Thus, the\noverwhelming number of our cases applying Chevron deference have reviewed the\nfruits of notice-and-comment rulemaking or formal adjudication.\xe2\x80\x9d).\nNotice-and-comment rulemaking, however, is not a prerequisite for Chevron\ndeference, provided that \xe2\x80\x9cit appears that Congress delegated authority to the\nagency generally to make rules carrying the force of law, and that the agency\ninterpretation claiming deference was promulgated in the exercise of that authority,\xe2\x80\x9d a delegation, the Court explained, that \xe2\x80\x9cmay be shown in a variety of ways.\xe2\x80\x9d\nId. at 226\xe2\x80\x9327. In Mead, the Court thus observed that \xe2\x80\x9cas 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\nChevron deference even when no such administrative formality was required and\nnone was afforded.\xe2\x80\x9d Id. at 230\xe2\x80\x9331. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997)\n\n260\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\n(An agency\xe2\x80\x99s \xe2\x80\x9cinterpretation of [its own regulations] is . . . controlling unless\n\xe2\x80\x98plainly erroneous or inconsistent with the regulation.\xe2\x80\x99 \xe2\x80\x9c). And even where an\nagency rule does not qualify for Chevron deference, it still may be entitled to\ndeference under a lesser standard. See Mead, 533 U.S. at 234\xe2\x80\x9335.\nWhere Chevron deference is due, the Court explained that the scope of an\nagency\xe2\x80\x99s regulatory authority is broad indeed:\nWhen Congress has \xe2\x80\x98explicitly left a gap for an agency to fill, there is\nan express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,\xe2\x80\x99 and any ensuing regulation\nis binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.\nMead, 533 U.S. at 227 (quoting Chevron, 467 U.S. at 843\xe2\x80\x9344); see also id. at 229\n(where Chevron deference is due, \xe2\x80\x9ca reviewing court has no business rejecting an\nagency\xe2\x80\x99s exercise of its generally conferred authority to resolve a particular\nstatutory ambiguity simply because the agency\xe2\x80\x99s chosen resolution seems unwise,\nbut is obliged to accept the agency\xe2\x80\x99s position if Congress has not previously\nspoken to the point at issue and the agency\xe2\x80\x99s interpretation is reasonable\xe2\x80\x9d).\nHere, it is clear that the EEOC\xe2\x80\x99s class action regulations are entitled to Chevron\ndeference: Congress has specifically authorized the EEOC \xe2\x80\x9cto enforce the\nprovisions of subsection (a) of this section through appropriate remedies . . .\nand . . . issue such rules, regulations, orders and instructions as it deems necessary\nand appropriate to carry out its responsibilities under this section,\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 2000e-16(b), and in furtherance of this authority, the EEOC promulgated these\nregulations pursuant to notice-and-comment rulemaking, in which federal\ngovernment agencies fully participated. See 57 Fed. Reg. 12,634 (Apr. 10, 1992);\n64 Fed. Reg. 37,644 (July 12, 1999).3 It is for this reason, perhaps, that you have\nnot suggested that these regulations are \xe2\x80\x9cprocedurally defective\xe2\x80\x9d or \xe2\x80\x9carbitrary or\ncapricious in substance.\xe2\x80\x9d Mead, 533 U.S. at 227. The question before us, then, is\nwhether they are \xe2\x80\x9cmanifestly contrary to the statute\xe2\x80\x9d that they are intended to\n\n3\nIt is true that the Supreme Court has not accorded Chevron deference to certain of the EEOC\xe2\x80\x99s\nsubstantive regulations. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Gen. Elec.\nCo. v. Gilbert, 429 U.S. 125, 141 (1976). But that is because \xe2\x80\x9c\xe2\x80\x98Congress, in enacting Title VII, did not\nconfer upon the EEOC\xe2\x80\x99\xe2\x80\x9d such authority. Arabian Am. Oil Co., 499 U.S. at 257 (quoting Gen. Elec. Co.,\n429 U.S. at 141). Here, the EEOC\xe2\x80\x99s regulations are procedural in nature, and Congress has expressly\ngranted the EEOC the authority \xe2\x80\x9cto enforce the provisions of subsection (a) of this section through\nappropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems\nnecessary and appropriate to carry out its responsibilities under this section.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-16(b).\nSee also Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002) (noting that \xe2\x80\x9c[t]he first [threshold\nquestion] is whether the [EEOC\xe2\x80\x99s] rulemaking exceeded its authority to adopt \xe2\x80\x98suitable procedural\nregulations,\xe2\x80\x99 42 U.S.C. \xc2\xa7 2000e-12(a), and instead addressed a substantive issue over which the EEOC\nhas no rulemaking power\xe2\x80\x9d) (citations omitted); id. at 122\xe2\x80\x9323 (O\xe2\x80\x99Connor, J., concurring).\n\n261\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nimplement in any of the three ways you have indicated. Id. It is to these questions\nthat we now turn.\nB.\nYou have asserted three ways in which you believe that the EEOC\xe2\x80\x99s class\naction regulations are contrary to Title VII. We address each in turn.\n1.\nYou first state that the EEOC\xe2\x80\x99s regulations are inconsistent with Title VII\nbecause they purport to \xe2\x80\x9cbind\xe2\x80\x9d complainants when, pursuant to the statute,\ncomplainants may proceed in federal court if they are dissatisfied with the results\nof the administrative proceeding. USPS Letter at 1, 2\xe2\x80\x934. In particular, you note\nseveral portions of the class action regulations that state or suggest that class\nmembers are \xe2\x80\x9cbound\xe2\x80\x9d by the results of the administrative proceeding, including 29\nC.F.R. \xc2\xa7 1614.204(e)(2)(iii) (requiring the agency to provide complainants with\n\xe2\x80\x9c[a]n explanation of the binding nature of the [agency\xe2\x80\x99s] final decision or resolution of the complaint on class members\xe2\x80\x9d), 29 C.F.R. \xc2\xa7 1614.204(g)(4) (\xe2\x80\x9cIf the\nadministrative judge finds that the resolution [of the complaint by the agency and\nthe agent of the class] is fair, adequate and reasonable to the class as a whole, the\nresolution shall bind all members of the class.\xe2\x80\x9d), and 29 C.F.R. \xc2\xa7 1614.204(j)(6)\n(\xe2\x80\x9cA final decision on a class complaint shall, subject to subpart D of this part, be\nbinding on all members of the class and the agency.\xe2\x80\x9d). See USPS Letter at 2 (citing\nthe foregoing authorities); see also id. at 2 n.5 (citing EEOC Management Directive (\xe2\x80\x9cMD\xe2\x80\x9d) 110, ch. 8, \xc2\xa7 V.C (\xe2\x80\x9cThe class members may not \xe2\x80\x98opt out\xe2\x80\x99 of the\ndefined class\xe2\x80\x9d), available at http://www.eeoc.gov/federal/md110/chapter8.html\n(last visited Sept. 14, 2004)). In contrast, you note that Title VII expressly provides\nthat \xe2\x80\x9can employee or applicant for employment, if aggrieved by the final disposition of his complaint . . . may file a civil action\xe2\x80\x9d in federal district court. 42 U.S.C.\n\xc2\xa7 2000e-16(c). It is your view that the former regulatory provisions are inconsistent with the latter statutory one.\nWe disagree. If the cited regulations purported to preclude a complainant from\nfiling a civil action in federal district court, then your assertion might have merit.\nBut they do not. Quite to the contrary, the regulations expressly permit the filing of\nan action by a complainant in federal court once administrative remedies are\nexhausted. They thus expressly provide that \xe2\x80\x9c[a] final decision on a class complaint shall, subject to subpart D of this part, be binding on all members of the\nclass and the agency.\xe2\x80\x9d 29 C.F.R. \xc2\xa7 1614.204(j)(6) (emphasis added). Subpart D, in\nturn, details, in relevant part, the manner in which the complainant may file a civil\naction in federal district court. Id. \xc2\xa7 1614.401\xe2\x80\x93.409. In particular, subpart D authorizes class agents and class members who have \xe2\x80\x9cfiled an individual complaint [or]\na claim for individual relief pursuant to a class complaint\xe2\x80\x9d to file an action directly\n\n262\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\nin federal court either within ninety days of receipt of notice of final agency action\nor 180 days after the date of filing the class complaint. Id. \xc2\xa7 1614.407(a), (b). The\nregulation also recognizes the right to file a complaint in federal district court\nfollowing the completion of the EEOC appeals process or 180 days after the filing\nof the appeal. Id. \xc2\xa7 1614.407(c), (d).\nTo be sure, several of the EEOC\xe2\x80\x99s regulations refer to various aspects of the\nadministrative process as \xe2\x80\x9cbinding\xe2\x80\x9d complainants. But read in context\xe2\x80\x94particularly in the context of the regulatory provisions expressly authorizing a complainant\nto bring a civil action in federal district court\xe2\x80\x94it is evident that these references\nmean only that complainants are \xe2\x80\x9cbound\xe2\x80\x9d insofar as the administrative process is\nconcerned.4 Indeed, one of the regulations that you cite expressly so recognizes.\nSee id. \xc2\xa7 1614.204(j)(6) (\xe2\x80\x9cA final decision on a class complaint shall, subject to\nsubpart D of this part, be binding on all members of the class and the agency.\xe2\x80\x9d)\n(emphasis added); see also id. \xc2\xa7 1614.204(j)(7) (\xe2\x80\x9cThe final decision shall inform\nthe agent of the right to appeal or to file a civil action in accordance with subpart\nD of this part and of the applicable time limits.\xe2\x80\x9d) (emphasis added). And the other\nregulatory provisions that you cite in no way purport to close the federal court\navenue that other regulatory provisions (and the statute) expressly recognize as\nopen. In short, as the EEOC acknowledges, its \xe2\x80\x9cregulation is binding in the administrative, not the judicial, process.\xe2\x80\x9d EEOC Letter at 4.\nIt may well be, as you state in your letter, that \xe2\x80\x9c[t]he Commission\xe2\x80\x99s intent to\nbind agencies to a class action process that cannot bind class members is contrary\nto the proper purpose of class action regulations,\xe2\x80\x9d USPS Letter at 3, and we\nrecognize that the ability of dissatisfied class members to bring suit in federal court\nmay significantly hamper an agency\xe2\x80\x99s ability to resolve complaints on a truly\nclass-wide basis. But the distinction between complainants and agencies is drawn\nin Title VII itself, which guarantees a right to proceed in federal court only to\ncomplainants. See 42 U.S.C. \xc2\xa7 2000e-16(c). Nor are we entitled to second-guess\nEEOC policy choices made within the bounds of the law. It is the EEOC, and not\nthis Office or the USPS, that Congress directed to \xe2\x80\x9cissue such rules, regulations,\norders and instructions as it deems necessary and appropriate to carry out its\nresponsibilities under this section.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-16(b) (emphasis added).\n\n4\nThis conclusion is true even with respect to an individual who did not file an administrative\ncomplaint that, had it been filed, would have been subsumed within a class complaint. If the EEOC\nwere to reject the class complaint on the merits, and this individual were then to file an administrative\ncomplaint, then the individual likely would be \xe2\x80\x9cbound\xe2\x80\x9d by the EEOC\xe2\x80\x99s prior decision in the administrative context. In other words, the EEOC likely would reject this individual\xe2\x80\x99s complaint under principles\nof res judicata. See 29 C.F.R. \xc2\xa7 1614.107(a)(1); id. \xc2\xa7 1614.204(d)(2). Nothing in the EEOC\xe2\x80\x99s regulations, however, prohibits this individual from then proceeding to file an action in federal court.\nLikewise, nothing in those regulations prohibits a class member from filing a civil action if he is\ndissatisfied with a resolution of a class complaint approved by the administrative judge in accordance\nwith 29 C.F.R. \xc2\xa7 1614.204(g).\n\n263\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n2.\nYou next assert that the EEOC\xe2\x80\x99s class action regulations frustrate the ability of\nagencies to resolve claims within the 180-day period that Congress prescribed.\nUSPS Letter at 1, 4\xe2\x80\x937. You thus explain that, in your view, 42 U.S.C. \xc2\xa7 2000e16(c) reflects Congress\xe2\x80\x99s intention that an agency have the opportunity to resolve\nan employment discrimination claim within 180 days. That statutory provision\nprovides that a complainant may file a civil action in federal district court \xe2\x80\x9cafter\none 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\nby the failure to take final action on his complaint.\xe2\x80\x9d Id. The EEOC\xe2\x80\x99s class action\nregulations, you explain, frustrate an agency\xe2\x80\x99s ability to resolve a claim within this\n180-day period in two distinct ways. We address each separately and conclude that\nneither demonstrates an inconsistency between the regulations and 42 U.S.C.\n\xc2\xa7 2000e-16.\na.\nThe first way in which you believe that the EEOC\xe2\x80\x99s class action regulations are\ninconsistent with 42 U.S.C. \xc2\xa7 2000e-16(c)\xe2\x80\x99s 180-day period is that, where the\nadministrative judge takes longer than 180 days to decide whether to certify a\nclass, 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\nhas run. In particular, MD 110 states that an \xe2\x80\x9cagency shall, within thirty (30) days\nof receipt of a decision dismissing a class complaint, . . . process . . . each individual complaint that was subsumed into the class complaint.\xe2\x80\x9d MD 110, ch. 8,\n\xc2\xa7 III.C.5 Since the regulations prescribe no time limit for the administrative judge\xe2\x80\x99s\ndecision, it is possible that such decision will not issue until shortly before or even\nafter the 180-day period has run. If so (and for purposes of this opinion, we will\nassume arguendo that this is a common scenario), then it is your contention that an\nindividual complainant will be authorized to file a civil action in federal district\ncourt before the agency has ever had an opportunity to resolve the claim administratively.\nThe premise of this argument is that 42 U.S.C. \xc2\xa7 2000e-16(c) accords an agency the right to address a complaint during the 180-day period. Even assuming\n\n5\nUnlike the EEOC\xe2\x80\x99s regulations, MD 110 was not promulgated pursuant to notice-and-comment\nrulemaking. We need not decide whether it is entitled to Chevron deference, however, because, for the\nreasons set forth in text, we believe it clear that the quoted provision is consistent with 42 U.S.C.\n\xc2\xa7 2000e-16(c)\xe2\x80\x99s 180-day rule, see Edelman, 535 U.S. at 114 (\xe2\x80\x9cBecause we so clearly agree with the\nEEOC, there is no occasion to defer and no point in asking what kind of deference, or how much.\xe2\x80\x9d),\nand because the USPS has identified no other basis upon which the portion of the management\ndirective that it cites could be called into question.\n\n264\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\narguendo that this interpretation of that provision is an accurate one,6 there simply\nis nothing in EEOC regulations or MD 110 that precludes an agency from acting\nupon a class complaint or an individual complaint subsumed therein within the\n180-day period, regardless of whether an administrative judge has rendered the\nclass certification decision. With respect to individual complaints, the EEOC\nregulations generally require an agency to act within 180 days. See 29 C.F.R.\n\xc2\xa7 1614.108(e). All that MD 110 does is relieve the agency of this obligation with\nrespect to class complaints and individual complaints subsumed therein, replacing\nit with the obligation to act \xe2\x80\x9cwithin thirty (30) days of receipt of a decision\ndismissing a class complaint.\xe2\x80\x9d MD 110, ch. 8, \xc2\xa7 III.C. Nothing in the regulations\nor MD 110, however, prohibits the agency from acting sooner, as the EEOC\nacknowledges. See EEOC Letter at 6\xe2\x80\x937 (\xe2\x80\x9c[T]he agency can always attempt to\nresolve the class complaint during the first 180 days that it is pending.\xe2\x80\x9d).7\nb.\nSecond, you believe that individuals who do not file administrative complaints\nmay, under the EEOC\xe2\x80\x99s regulations, be entitled to initiate a civil action in federal\ndistrict court, again preventing the agency from ever having an opportunity to\nresolve that complaint administratively. This argument, as we understand it, is\npredicated on the notion that an individual who, had he filed an administrative\ncomplaint, would have been subsumed into the certified class, but who does not in\nfact file an administrative complaint, would be allowed to initiate a suit in district\ncourt in the same manner as those class members who did file administrative\nclaims. This argument, again, as we understand it, is predicated upon the so-called\n\xe2\x80\x9csingle-filing rule,\xe2\x80\x9d pursuant to which lower federal courts have allowed an\nindividual who did not file an administrative complaint to join the civil suit of\nanother individual who did exhaust the administrative process, where the claims of\nthe two individuals are sufficiently similar. See, e.g., Snell v. Suffolk Cnty., 782\nF.2d 1094, 1100\xe2\x80\x9302 (2d Cir. 1986); De Medina v. Reinhardt, 686 F.2d 997, 1012\xe2\x80\x93\n13 (D.C. Cir. 1982); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1380\xe2\x80\x9381 (11th\nCir. 1983); Greene v. City of Boston, 204 F. Supp. 2d 239, 241\xe2\x80\x9343 (D. Mass.\n2002).\n6\n\nIt is not at all clear that this assumption is a correct one. The EEOC argues that 42 U.S.C.\n\xc2\xa7 2000e-16(c) is simply a \xe2\x80\x9crestriction on the employee\xe2\x80\x99s right to file suit,\xe2\x80\x9d EEOC Letter at 5; it does\nnot, in other words, entitle or require an agency to do anything. We need not resolve this issue,\nhowever, because even assuming arguendo that USPS\xe2\x80\x99s characterization of section 2000e-16(c) is\ncorrect, it is not in conflict with EEOC\xe2\x80\x99s class action regulations.\n7\nIt is true that some EEOC administrative decisions suggest that the normal course of action is for\nan agency to consider the merits of the complaint after the certification issue is decided. See, e.g.,\nFosnacht v. Apfel, Appeal No. 01992528, 2000 WL 361743 (EEOC Mar. 29, 2000); Travis v. Potter,\nAppeal No. 01992222, 2002 WL 31359446 (EEOC Oct. 10, 2002). These decisions, however, did not\naddress whether, much less hold that, an agency is prohibited from acting until after it receives the class\ncertification decision.\n\n265\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nAgain, however, this argument points to no inconsistency between the EEOC\xe2\x80\x99s\nclass action regulations and Title VII. The only individuals EEOC\xe2\x80\x99s class action\nregulations specifically authorize to initiate an action in federal court are those\nwho file individual complaints, those who file class complaints, and those who\nhave filed a claim for individual relief pursuant to a class complaint. See 29 C.F.R.\n\xc2\xa7 1614.407 (\xe2\x80\x9cA complainant who has filed an individual complaint, an agent who\nhas filed a class complaint or a claimant who has filed a claim for individual relief\npursuant to a class complaint is authorized . . . to file a civil action in an appropriate United States District Court.\xe2\x80\x9d). Nothing in these regulations authorizes\nindividuals who do not file administrative complaints or claims for individual\nrelief to bring civil actions in federal court; it therefore follows that nothing in\nthese regulations authorizes an individual to bring a civil action notwithstanding\nthe exhaustion requirement set out in 42 U.S.C. \xc2\xa7 2000e-16(c), which, as we have\nexplained, authorizes an individual to bring a civil action only 180 days after he\nhas filed an administrative complaint. And significantly, the EEOC itself seems to\naccept this view of its regulations, explaining to us:\nOur regulations only recognize suit rights for class members who file\nindividual complaints, class complaints, or individual claims for relief under a class complaint. Therefore, if class certification is denied\nor class discrimination is not found, those individuals who did not\nfile individual complaints may have lost the ability to file suit. In\nother words, filing an individual complaint is the only way for a potential class member to ensure his or her right to sue with certainty.\nEEOC Letter at 6.\nIt is true that under the so-called \xe2\x80\x9csingle-filing rule,\xe2\x80\x9d some courts have allowed\nan individual who did not file an administrative complaint to join the civil suit of\nanother individual who did exhaust the administrative process, where the claims of\nthe two individuals are sufficiently similar. But even assuming that courts would\nextend this rule in the manner that you suggest\xe2\x80\x94such that an individual who did\nnot 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\ndistrict court to the same extent as a class member who did file an administrative\ncomplaint8\xe2\x80\x94the result would still point to no inconsistency between 42 U.S.C.\n\xc2\xa7 2000e-16(c) and the EEOC\xe2\x80\x99s class action regulations. The single-filing rule does\nnot rest on an interpretation of EEOC regulations; rather, it rests on an interpretation of 42 U.S.C. \xc2\xa7 2000e-16(c) or other analogous provisions\xe2\x80\x94one in which the\nstatutes have been construed to permit an individual who did not exhaust his\n\n8\n\nBut see Commc\xe2\x80\x99n Workers of Am. v. N.J. Dep\xe2\x80\x99t of Personnel, 282 F.3d 213, 218 (3d Cir. 2002)\n(\xe2\x80\x9c[I]f plaintiffs choose to bring suit individually, they must first satisfy the prerequisite of filing a\ntimely EEOC charge.\xe2\x80\x9d) (citation and quotation omitted).\n\n266\n\n\x0cLegality of EEOC\xe2\x80\x99s Class Action Regulations\n\nadministrative remedies to piggyback upon an individual who did. See, e.g., Snell,\n782 F.2d at 1100\xe2\x80\x9302 & n.7; Greene, 204 F. Supp. 2d at 240. The EEOC\xe2\x80\x99s regulations do not expressly expand the single-filing rule in the manner you suggest, and\nto the extent that the courts may construe them to do so, the courts would construe\nthem so as to be consistent with\xe2\x80\x94not to conflict with\xe2\x80\x94the statute. (Conversely,\nwere it determined that 42 U.S.C. \xc2\xa7 2000e-16(b) does not permit the single-filing\nrule to be extended in the manner that you suggest, we have little doubt that the\nregulations too would be similarly construed.9)\nAccordingly, the possibility you have presented\xe2\x80\x94that an individual would be\npermitted to initiate an action in federal court without ever having to file an\nadministrative complaint\xe2\x80\x94again points to no inconsistency between the statute\nand EEOC\xe2\x80\x99s regulations in implementation thereof.\n3.\nFinally, you contend that EEOC\xe2\x80\x99s class action regulations are inconsistent with\nthe limitations period set forth in 42 U.S.C. \xc2\xa7 2000e-16(c), which allows a\ncomplainant to file a civil action in federal district court only within ninety days of\nreceipt of notice of final agency or EEOC action. As you note, this ninety-day\nperiod does not begin to run until \xe2\x80\x9creceipt of notice of final action\xe2\x80\x9d on a complaint\nof discrimination. 42 U.S.C. \xc2\xa7 2000e-16(c). But, you state, under the EEOC\xe2\x80\x99s\nregulations, not all members who have a right to bring suit in federal court will\nreceive the required notice; these class members who never receive notice,\ntherefore, will be entitled to bring suit in federal court even after the ninety-day\nperiod. USPS Letter at 7.\nUnder the EEOC\xe2\x80\x99s regulations, however, every complainant who files an administrative claim will receive the requisite notice of final agency or EEOC action.\nIf the class is certified, then \xe2\x80\x9c[t]he agency shall notify class members of the final\ndecision and relief awarded, if any.\xe2\x80\x9d 29 C.F.R. \xc2\xa7 1614.204(k). If the class is not\ncertified, then, in addition to notifying the class agent, id. \xc2\xa7 1614.204(d)(7), the\nagency \xe2\x80\x9cshall, within thirty (30) days of receipt of a decision dismissing a class\ncomplaint . . . issue the acknowledgment of receipt of an individual complaint . . .\nand process . . . each individual complaint that was subsumed into the class\ncomplaint,\xe2\x80\x9d MD 110, ch. 8, \xc2\xa7 III.C. And if the class complaint is settled, \xe2\x80\x9c[n]otice\nof the resolution shall be given to all class members . . . [including notification]\nthat . . . any member of the class may petition the administrative judge to vacate\n9\nTo the extent your argument is based on case law arising under Rule 23 of the Federal Rules of\nCivil Procedure (and hence, outside of the administrative context), see, e.g., USPS Letter at 6 & n.29,\nwe believe it fails for the same reason. If such case law were extended to permit an individual who fails\nto satisfy the administrative exhaustion requirement nevertheless to file suit in federal court, this\napparently unprecedented application of Rule 23 case law would necessarily be predicated upon an\ninterpretation of Title VII and regulations that rendered them consistent, rather than in conflict with,\none another.\n\n267\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe resolution.\xe2\x80\x9d 29 C.F.R. \xc2\xa7 1614.204(g)(4). Every individual who files an administrative complaint, in other words, will receive notice of final agency action and\nthus will be fully subject to 42 U.S.C. \xc2\xa7 2000e-16(c)\xe2\x80\x99s ninety-day limitation\nperiod. See also EEOC Letter at 7 (\xe2\x80\x9cThe regulation requires notice to all individuals except those potential members of a class that was not certified who did not file\nindividual complaints.\xe2\x80\x9d).\nThat leaves only individuals who do not file an administrative complaint. But\nwith respect to these, your arguments fail for the same reasons discussed in Part\nII.B.2.b, supra: First, the regulations on their face only authorize those individuals\nwho have filed an administrative complaint to bring suit in federal court; these\nindividuals, we have explained, will receive notice and thus will be subject to the\nninety-day period. And second, to the extent that courts would allow individuals\nwho have not filed administrative claims to bring suit in federal court notwithstanding 42 U.S.C. \xc2\xa7 2000e-16(c), this result would follow from a construction of\nthe statute itself, not a construction of the regulations that would render them\ninconsistent with the statute.\nIV.\nFor the foregoing reasons, we conclude that the EEOC\xe2\x80\x99s class action regulations are not contrary to Title VII in any of the three ways you have suggested.\nNOEL J. FRANCISCO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n268\n\n\x0c'


b"August 3, 1979\n\n79-57\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nConstitutional Law\xe2\x80\x94Article II, Section 2,\nClause 3\xe2\x80\x94Recess Appointments\xe2\x80\x94Compensation\n(5 U.S.C. \xc2\xa7 5503)\n\nWe are responding to your inquiry whether the President can make ap\xc2\xad\npointments under Article II, Section 2, Clause 3 of the Constitution' dur\xc2\xad\ning the forthcoming recess o f the Senate, that is expected to last from\nabout August 2 until September 4, 1979. It is our opinion that the Presi\xc2\xad\ndent has this power.\nA preliminary question is whether the President\xe2\x80\x99s authority to make ap\xc2\xad\npointments under this clause, commonly called \xe2\x80\x9c recess appointm ents,\xe2\x80\x9d\napplies to all vacancies that exist during a recess o f the Senate or whether it\nis limited to those vacancies that arise during the recess. A long line of\nopinions o f the Attorneys General, going back to 1823 (see 41 Op. A tt\xe2\x80\x99y\nGen. 463, 465 (1960) ), and which have been judicially approved (see,\nAllocco v. United States, 305 F.(2d) 704 (2d Cir. 1962) ), has firmly\nestablished that the words \xe2\x80\x9c may happen\xe2\x80\x9d is to be read as meaning, \xe2\x80\x9c may\nhappen to exist during the recess o f the Senate,\xe2\x80\x9d rather than as, \xe2\x80\x9c may\nhappen to occur during the recess o f the Senate.\xe2\x80\x9d The President\xe2\x80\x99s power\nto make recess appointm ents thus is not limited to those vacancies that oc\xc2\xad\ncurred after the Senate went into recess, but extends to all vacancies ex\xc2\xad\nisting during the recess regardless o f the time when they arose. It should be\nnoted, however, that where a vacancy existed while the senate was in ses\xc2\xad\nsion, the recipient o f the recess appointm ent may be paid for his services\nonly if the conditions o f 5 U .S.C . \xc2\xa7 5503 have been met. We discuss this\nm atter in more detail later in this opinion.\n\n'Article II, \xc2\xa7 2, cl. 3, provides:\nThe President shall have Pow er to fill up all Vacancies that may happen during the\nRecess o f the Senate, by granting Commissions which shall expire at the End o f their\nnext Session.\n\n314\n\n\x0cThe question whether an intrasession recess o f the Senate constitutes a\nrecess within the meaning o f Article II, Section 2, Clause 3, o f the C on\xc2\xad\nstitution has a checkered background. Attorney General Knox ruled in\n1901 that an adjournm ent o f the Senate during the Christmas holidays,\nlasting from December 19, 1901, to January 6, 1902, was not a recess dur\xc2\xad\ning which the President could make recess appointm ents. 23 Op. A tt\xe2\x80\x99y.\nGen. 599 (1901). That interpretation was overruled in 1921 by Attorney\nGeneral Daugherty, who held that the President had the power to make\nappointments during a recess o f the Senate lasting from August 24 to\nSeptember 21, 1921. 33 Op. A tt\xe2\x80\x99y. Gen. 20 (1921). The opinion concluded\nthat there was no valid distinction between a recess and an adjournm ent,\nand it applied the definition of a recess as described by the Senate\nJudiciary Committee in its report o f March 2, 1905:\nthe period o f time when the senate is not sitting in regular or ex\xc2\xad\ntraordinary session as a branch o f the Congress, or in extraor\xc2\xad\ndinary session fo r the discharge o f executive functions; when its\nmembers owe no duty o f attendance; when its Chamber is empty;\nwhen, because o f its absence, it can not receive communications\nfrom the President or participate as a body in making appoint\xc2\xad\nments * * * . [S. Rept. 4389, 58th Cong., 3d sess., 1905; 39\nC o n g r e s s i o n a l R e c o r d 3823. [(Emphasis added.)]\nThe Attorney General, however, closed with the warning that the term\n\xe2\x80\x9c recess\xe2\x80\x9d had to be given a practical construction. Hence, he suggested\nthat no one \xe2\x80\x9c would for a moment contend that the Senate is not in ses\xc2\xad\nsion\xe2\x80\x9d in the event o f an adjournm ent lasting only 2 days, and he did not\nbelieve that an adjournm ent for 5 or even 10 days constituted the recess in\xc2\xad\ntended by the Constitution. He adm itted that by \xe2\x80\x9c the very nature o f things\nthe iine o f demarcation cannot be accurately draw n.\xe2\x80\x9d He believed, never\xc2\xad\ntheless, that:\nthe President is necessarily vested with a large, although not\nunlimited, discretion to determine when there is a real and gen\xc2\xad\nuine recess making it impossible for him to receive the advice and\nconsent o f the Senate. Every presumption is to be indulged in\nfavor the validity o f whatever action he may take. But there is a\npoint, necessarily hard o f definition, where palpable abuse of\ndiscretion might subject his appointm ent to review.\nThis opinion was cited and quoted with approval by the Comptroller\nGeneral in 28 Comp. Gen. 30, 34 (1948), and reaffirmed by Acting A t\xc2\xad\ntorney General Walsh in. 1960 in connection with an intrasession summer\nrecess lasting from July 3, 1960, to August 15, 1960. 41 Op. A tt\xe2\x80\x99y Gen.\n463 (1960). Presidents frequently have made recess appointm ents during\nintrasession recesses lasting for about a month.\nIn the winter o f 1970 the Senate recessed from December 22 to\nDecember 28, 1970, and the House adjourned from December 22 to\nDecember 29, 1970. When the Office was informally approached about\npossible appointm ents during that recess, we advised against their making\n315\n\n\x0cin the light o f the warning in A ttorney General Daughtery\xe2\x80\x99s opinion. In\nconnection with the Pocket Veto Clause o f the Constitution, Article I,\nSection 7, Clause 2, the President, however, decided without awaiting our\nadvice that the 6-day adjournm ent o f the Senate constituted an adjourn\xc2\xad\nment which prevented the return o f a Senate bill; hence, that he could\npocket veto S. 3418, The Family Practice o f Medicine Act. Senator Ken\xc2\xad\nnedy, who had voted in favor o f the bill, thereupon sought a declaratory\njudgm ent that the bill had become law without the signature o f the Presi\xc2\xad\ndent because the President had failed to return the bill within the 10-day\nperiod provided for in Article I, Section 7, Clause 2, and that the 6-day\nintrasession adjournm ent did not prevent the return o f the bill. The D.C.\nCircuit Court o f Appeals held that the bill had become law. That decision\nwas based on the considerations that the 6-day adjournm ent had not\nprevented the return o f the bill on account o f its short duration, and that it\nwas an in trasessio n a d jo u rn m e n t and \xe2\x80\x9c a p p ro p ria te a rran g e\xc2\xad\nments * * * for receipt o f presidential messages\xe2\x80\x9d had been made. Ken\xc2\xad\nnedy v. Sampson, 511 F.(2d) 430, 442 (C .A .D .C . 1974). The decision rests\non an extrapolation o f Wright v. United States, 302 U.S. 583 (1938), but is\ninconsistent with im portant passages in the Pocket Veto Case, 279 U.S.\n655, 683-687 (1929), which considered such \xe2\x80\x9c appropriate arrangements\nfor the receipt o f Presidential messages\xe2\x80\x9d to be ineffective. The executive\nbranch did not, however, seek Supreme C ourt review o f Kennedy.\nAs the result o f Kennedy v. Sampson, President Ford indicated that he\nwould not invoke the pocket veto power during an intrasession recess.\nMoreover, in view o f the functional affinity between the pocket veto and\nrecess appointm ent powers, Presidents during recent years have been hesi\xc2\xad\ntant to make recess appointm ents during intrasession recesses o f the\nSenate.\nWe have carefully reexamined the pertinent opinions o f the Attorneys\nGeneral and have concluded that we should follow the opinions o f Attorney\nGeneral Daugherty and Acting Attorney General Walsh, which hold that\nthe President is authorized to make recess appointments during a summer\nrecess o f the Senate o f a m onth\xe2\x80\x99s duration. The decision in Kennedy does\nnot require a departure from those rulings. While the Pocket Veto and\nRecess Appointm ent Clauses deal with similar situations, namely, the Presi\xc2\xad\ndent\xe2\x80\x99s powers while Congress is not in session, they, nevertheless, are not\nidentical. The Pocket Veto Clause deals with an adjournm ent o f the C on\xc2\xad\ngress that prevents the return o f a bill, the Recess Appointm ent Clause\nwith a recess o f the Senate. If the Founding Fathers had wanted the two\nclauses to cover the same situation, it is reasonable to assume that they\nwould have selected identical language for both. See, Holmes v. Jennison,\n14 Pet. 540, 570-571 (1840). Moreover, the effect o f a pocket veto and o f a\nrecess appointm ent is different. A pocket veto is final. It kills the legisla\xc2\xad\ntion absolutely and it can be revived only by resuming the legislative proc\xc2\xad\ness from the beginning. A recess appointm ent, on the other hand, results\nonly in the tem porary filling o f an office, and, as a practical matter,\n316\n\n\x0cCongress can force the recess appointee to resign by rejecting his nom ina\xc2\xad\ntion. Pursuant to an annual appropriation rider, a rejection has the effect\no f cutting o ff his com pensation.2 Finally, since, as pointed out above,\nKennedy v. Sampson is in conflict with an im portant aspect o f the deci\xc2\xad\nsion o f the Supreme Court in the Pocket Veto Case, supra, we do not con\xc2\xad\nsider it the last word on the question whether the President may exercise\nhis pocket veto power during an intrasession adjournm ent o f a m onth\xe2\x80\x99s\nduration.\nShould the President decide to exercise his recess appointm ent power\nduring the forthcoming recess o f the Senate, the following technical points\nshould be considered.\nA. If the vacancy existed while the Senate was in session, the recess ap\xc2\xad\npointee can be compensated pursuant to 5 U.S.C. \xc2\xa7 5503, only if: the\nvacancy arose within 30 days o f the end o f the session o f the Senate, or, if\na nomination for the office was pending before the Senate at the end o f the\nsession, or if a nomination for the office was rejected by the Senate within\n30 days before the end o f the session. In addition, a nom ination to fill the\nvacancy referred to above must be submitted to the Senate not later than\n40 days after the beginning o f the next session o f the Senate. No nom ina\xc2\xad\ntion need be submitted where the vacancy occurred during the recess o f the\nSenate.\nB. A recess appointm ent presupposes the existence o f a vacancy. If\nthere is an incumbent in office the recess appointm ent in itself does not ef\xc2\xad\nfect a removal o f the incumbent so as to create a vacancy. See, Peck v.\nUnited States, 39 Ct. Cl. 125 (1904); 23 Op. Atty Gen. 30, 34-35 (1900).\nBefore the President can exercise his recess appointm ent power in such a\ncase he must exercise his constitutional removal power to the extent it is\navailable, or, if not available, the incumbent must resign.\nLarry A . H am m\n\nond\n\nActing Assistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99For the last pertinent statute, see Treasury, Postal Service and General Governm ent A p\xc2\xad\npropriations A ct, 1979, \xc2\xa7 604 92 Stat. 1015.\n\n\x0c"


b'Constitutionality of the Matthew Shepard\nHate Crimes Prevention Act\nThe prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate\nCrimes Prevention Act\xe2\x80\x94against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, \xe2\x80\x9cbecause of the actual or perceived race, color, religion, or national origin of any person\xe2\x80\x9d\xe2\x80\x94would be a permissible\nexercise of Congress\xe2\x80\x99s authority to enforce the Thirteenth Amendment, at least insofar\nas the violence is directed at members of those religions or national origins that would\nhave been considered races at the time of the adoption of the Thirteenth Amendment.\nThe prohibition in proposed section 249(a)(2) of S. 909 \xe2\x80\x94against willfully causing bodily\ninjury to any person, or attempting to cause bodily injury to any person through the use\nof fire, a firearm, a dangerous weapon, or an explosive or incendiary device, \xe2\x80\x9cbecause\nof the actual or perceived religion, national origin, gender, sexual orientation, gender\nidentity or disability of any person\xe2\x80\x9d\xe2\x80\x94would be a permissible exercise of Congress\xe2\x80\x99s\nauthority under the Commerce Clause, because it would require the government to\nallege and prove beyond a reasonable doubt in each case that there is an explicit and\ndiscrete connection between the proscribed conduct and interstate or foreign commerce.\nJune 16, 2009\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL\nOFFICE OF LEGISLATIVE AFFAIRS\nYou have asked for our views on the constitutionality of a pending bill,\nthe Matthew Shepard Hate Crimes Prevention Act, S. 909, 111th Cong.\n(as introduced in the Senate, Apr. 28, 2009). In particular, you have asked\nus to review section 7(a) of S. 909, which would amend title 18 of the\nUnited States Code to create a new section 249, which would establish\ntwo criminal prohibitions called \xe2\x80\x9chate crime acts.\xe2\x80\x9d\nFirst, proposed section 249(a)(1) would prohibit willfully causing bodily injury to any person, or attempting to cause bodily injury to any person\nthrough the use of fire, a firearm, a dangerous weapon, or an explosive or\nincendiary device, \xe2\x80\x9cbecause of the actual or perceived race, color, religion, or national origin of any person.\xe2\x80\x9d This provision is similar to an\nexisting federal law, 18 U.S.C. \xc2\xa7 245 (2006), the principal difference\nbeing that the new section 249(a)(1), unlike section 245, would not re240\n\n\x0cConstitutionality of the Matthew Shepard Hate Crimes Prevention Act\n\nquire the prosecutor to prove that the victim was or had been \xe2\x80\x9cparticipating in or enjoying any benefit, service, privilege, program, facility or\nactivity provided or administered by any State or subdivision thereof.\xe2\x80\x9d\nSecond, proposed section 249(a)(2) would prohibit willfully causing\nbodily injury to any person, or attempting to cause bodily injury to any\nperson through the use of fire, a firearm, a dangerous weapon, or an\nexplosive or incendiary device, \xe2\x80\x9cbecause of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person,\xe2\x80\x9d S. 909, sec. 7(a), \xc2\xa7 249(a)(2)(A), but only if the\nconduct occurs in at least one of a series of defined \xe2\x80\x9ccircumstances\xe2\x80\x9d that\nhave a specified connection with or effect upon interstate or foreign\ncommerce, id. \xc2\xa7 249(a)(2)(B). This new provision would prohibit certain\nforms of discriminatory violence\xe2\x80\x94namely, violence committed because\nof a person\xe2\x80\x99s actual or perceived gender, sexual orientation, gender identity or disability\xe2\x80\x94that are not addressed by the existing section 245 of title\n18. 1\nS. 909 is, in these respects, nearly identical to a bill this Office reviewed in 2000. 2 In our analysis of that proposed legislation, which your\nOffice transmitted to Congress, we concluded that the bill would be\nconstitutional. See Letter for Edward Kennedy, United States Senate, from\nRobert Raben, Assistant Attorney General, Office of Legislative Affairs,\nDepartment of Justice (June 13, 2000); see also S. Rep. No. 107-147, at\n15\xe2\x80\x9323 (2002) (\xe2\x80\x9cSenate Report\xe2\x80\x9d) (reprinting the OLA letter containing the\n2000 OLC analysis as an explanation of the constitutional basis for such\nlegislation). In 2007, however, the Office of Management and Budget\nindicated to the 110th Congress that one provision of such legislation\nwould raise constitutional concerns, see Statement of Administration\nPolicy on H.R. 1592 (May 3, 2007), as did the Attorney General, see\nLetter for Carl Levin, Chairman, Senate Committee on Armed Services,\n\nA new proposed section 249(a)(3) would make the same conduct unlawful if done\nwithin the special maritime or territorial jurisdiction of the United States\xe2\x80\x94a provision\nthat does not raise any serious questions with respect to Congress\xe2\x80\x99s authority. See United\nStates v. Sharpnack, 355 U.S. 286, 288 (1958).\n2 The principal material difference is that section 249(a)(2) of S. 909 encompasses\nviolence on the basis of a person\xe2\x80\x99s real or perceived gender identity, something that the\n2000 legislation did not address.\n1\n\n241\n\n\x0c33 Op. O.L.C. 240 (2009)\n\nfrom Michael B. Mukasey, Attorney General, at 6 (Nov. 13, 2007) (regarding section 1023 of H.R. 1585).\nWe have carefully reviewed the relevant legal materials and now conclude, as we did in 2000, that the legislation is constitutional. The Attorney General concurs in this view.\nI.\nAs we explained in 2000, see Senate Report at 16\xe2\x80\x9318, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to\nextinguish the relics, badges and incidents of slavery. Congress may\nrationally determine, as it would do in S. 909, that \xe2\x80\x9celiminating racially\nmotivated violence is an important means of eliminating, to the extent\npossible, the badges, incidents, and relics of slavery and involuntary\nservitude,\xe2\x80\x9d and that \xe2\x80\x9c[s]lavery and involuntary servitude were enforced\n. . . through widespread public and private violence directed at persons\nbecause of their race.\xe2\x80\x9d S. 909, \xc2\xa7 2(7); see also H.R. 1585, 110th Cong.\n\xc2\xa7 1023(b)(7) (2007) (same). 3\nLike the current 18 U.S.C. \xc2\xa7 245, proposed section 249(a)(1) of title 18\nwould not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed \xe2\x80\x9cbecause of the actual or\nperceived race, color, religion, or national origin of any person.\xe2\x80\x9d S. 909\nexplains that \xe2\x80\x9cin order to eliminate, to the extent possible, the badges,\nincidents, and relics of slavery, it is necessary to prohibit assaults on the\nbasis of real or perceived religions or national origins, at least to the\nextent such religions or national origins were regarded as races at the time\nof the adoption of the 13th, 14th, and 15th amendments.\xe2\x80\x9d Id. \xc2\xa7 2(8).\nAs we have previously concluded, under existing case law the proscription of violence motivated by \xe2\x80\x9creligion\xe2\x80\x9d and \xe2\x80\x9cnational origin\xe2\x80\x9d would\nconstitute a valid exercise of Congress\xe2\x80\x99s Thirteenth Amendment authority\ninsofar as \xe2\x80\x9cthe violence is directed at members of those religions or national origins that would have been considered races at the time of the\nGiven our conclusion that Congress possesses authority to enact this provision under\nthe Thirteenth Amendment, we do not address whether Congress might also possess\nsufficient authority under the Commerce Clause or the Fourteenth Amendment.\nSee United States v. Nelson, 277 F.3d 164, 174\xe2\x80\x9375 & n.10 (2d Cir. 2002).\n3\n\n242\n\n\x0cConstitutionality of the Matthew Shepard Hate Crimes Prevention Act\n\nadoption of the Thirteenth Amendment.\xe2\x80\x9d Senate Report at 17\xe2\x80\x9318; see also\nSaint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610\xe2\x80\x9313 (1987) (holding\nthat the prohibition of race discrimination in 42 U.S.C. \xc2\xa7 1981, a Reconstruction-era statute that was enacted pursuant to, and contemporaneously\nwith, the Thirteenth Amendment, extends to discrimination against Arabs,\nas Congress intended to protect \xe2\x80\x9cidentifiable classes of persons who are\nsubjected to intentional discrimination solely because of their ancestry or\nethnic characteristics\xe2\x80\x9d); Shaare Tefila Congregation v. Cobb, 481 U.S.\n615, 617\xe2\x80\x9318 (1987) (holding that Jews can state a claim under 42 U.S.C.\n\xc2\xa7 1982, another antidiscrimination statute enacted pursuant to, and contemporaneously with, the Thirteenth Amendment, because Jews \xe2\x80\x9cwere\namong the peoples [at the time the statutes were adopted] considered to be\ndistinct races\xe2\x80\x9d); Hodges v. United States, 203 U.S. 1, 17 (1906) (\xe2\x80\x9cSlavery\nor involuntary servitude of the Chinese, of the Italian, of the AngloSaxon, are as much within its compass as slavery or involuntary servitude\nof the African.\xe2\x80\x9d); United States v. Nelson, 277 F.3d 164, 176\xe2\x80\x9378 (2d Cir.\n2002) (concluding that 18 U.S.C. \xc2\xa7 245 could be applied constitutionally\nto protect Jews against crimes based on their religion, because Jews were\nconsidered a \xe2\x80\x9crace\xe2\x80\x9d when the Thirteenth Amendment was adopted). While\nit is true that the institution of slavery in the United States, the abolition\nof which was the primary impetus for the Thirteenth Amendment, primarily involved the subjugation of African Americans, it is well established by Supreme Court precedent that Congress\xe2\x80\x99s authority to abolish\nthe badges and incidents of slavery extends \xe2\x80\x9cto legislat[ion] in regard to\n\xe2\x80\x98every race and individual.\xe2\x80\x99\xe2\x80\x9d McDonald v. Santa Fe Trail Transp. Co.,\n427 U.S. 273, 288 n.18 (1976) (quoting Hodges, 203 U.S. at 16\xe2\x80\x9317). 4\nAlthough \xe2\x80\x9cthere is strong precedent to support the conclusion that the\nThirteenth Amendment extends its protections to religions directly, and\nthus to members of the Jewish religion, without the detour through historically changing conceptions of \xe2\x80\x98race,\xe2\x80\x99\xe2\x80\x9d Nelson, 277 F.3d at 179, it remains\nan open question whether and to what extent the Thirteenth Amendment\nempowers Congress to address forms of discrimination short of slavery\n\nIn McDonald, for example, the Supreme Court held that 42 U.S.C. \xc2\xa7 1981, a Reconstruction-era statute that was enacted pursuant to, and contemporaneously with, the\nThirteenth Amendment, prohibits racial discrimination in the making and enforcement of\ncontracts against all persons, including whites. 427 U.S. at 286\xe2\x80\x9396.\n4\n\n243\n\n\x0c33 Op. O.L.C. 240 (2009)\n\nand involuntary servitude with respect to religions and national origins\nthat were not considered \xe2\x80\x9craces\xe2\x80\x9d in 1865. Accordingly, to the extent\nviolence is directed at victims on the basis of a religion or national origin\nthat was not regarded as a \xe2\x80\x9crace\xe2\x80\x9d at the time the Thirteenth Amendment\nwas ratified, prosecutors may choose to bring actions under the Commerce Clause provision of S. 909, i.e., proposed 18 U.S.C. \xc2\xa7 249(a)(2), if\nthey can prove the elements of such an offense. See Senate Report at 15.\nProposed section 249(a)(1) differs from the current 18 U.S.C. \xc2\xa7 245 in\nthat it would not require the government to prove that the defendant\ncommitted the violence because the victim was or had been \xe2\x80\x9cparticipating\nin or enjoying any benefit, service, privilege, program, facility or activity\nprovided or administered by any State or subdivision thereof.\xe2\x80\x9d 5 The outer\nlimits of the expansive list of specified activities in section 245 have not\n\nSection 245(b)(2) makes it a crime, \xe2\x80\x9cwhether or not acting under color of law, by\nforce or threat of force willfully [to] injure[], intimidate[] or interfere[] with, or attempt[]\nto injure, intimidate or interfere with . . . any person because of his race, color, religion or\nnational origin and because he is or has been\xe2\x80\x94\n5\n\n\xe2\x80\x9c(A) enrolling in or attending any public school or public college;\n\xe2\x80\x9c(B) participating in or enjoying any benefit, service, privilege, program, facility or\nactivity provided or administered by any State or subdivision thereof;\n\xe2\x80\x9c(C) applying for or enjoying employment, or any perquisite thereof, by any private\nemployer or any agency of any State or subdivision thereof, or joining or using the\nservices or advantages of any labor organization, hiring hall, or employment agency;\n\xe2\x80\x9c(D) serving, or attending upon any court of any State in connection with possible\nservice, as a grand or petit juror;\n\xe2\x80\x9c(E) traveling in or using any facility of interstate commerce, or using any vehicle,\nterminal, or facility of any common carrier by motor, rail, water, or air;\n\xe2\x80\x9c(F) enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment which provides lodging to transient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain,\nor other facility which serves the public and which is principally engaged in selling\nfood or beverages for consumption on the premises, or of any gasoline station, or of\nany motion picture house, theater, concert hall, sports arena, stadium, or any other\nplace of exhibition or entertainment which serves the public, or of any other establishment which serves the public and\n\xe2\x80\x9c(i) which is located within the premises of any of the aforesaid establishments\nor within the premises of which is physically located any of the aforesaid establishments, and\n\xe2\x80\x9c(ii) which holds itself out as serving patrons of such establishments.\xe2\x80\x9d\n\n244\n\n\x0cConstitutionality of the Matthew Shepard Hate Crimes Prevention Act\n\nbeen conclusively defined, but courts have concluded that the section\nprotects, inter alia, drinking beer in a public park (see United States v.\nAllen, 341 F.3d 870 (9th Cir. 2003)), and walking on a city street (see\nNelson, 277 F.3d 164). Although it is not clear that Congress included the\nactivities element of section 245 in order to justify an exercise of its\nThirteenth Amendment enforcement powers, 6 the courts have held that\nsection 245 is proper Thirteenth Amendment legislation. See, e.g., Nelson,\n277 F.3d 164; Allen, 341 F.3d 870.\nThe Supreme Court\xe2\x80\x99s decisions in Jones v. Alfred H. Mayer Co., 392\nU.S. 409 (1968), and Griffin v. Breckenridge, 403 U.S. 88 (1971), support\nthe further judgment that the Thirteenth Amendment does not require such\na federal-activities element. In Jones, the Court upheld section 1 of the\nCivil Rights Act of 1866 (now 42 U.S.C. \xc2\xa7 1982) as a valid exercise of\nCongress\xe2\x80\x99s Thirteenth Amendment enforcement authority. The statute in\nJones was limited to discriminatory interferences with the rights to make\ncontracts and buy or sell property, but the Court did not rest its approval\non that limitation. Instead, the Court wrote, \xe2\x80\x9c[s]urely Congress has the\npower under the Thirteenth Amendment rationally to determine what are\nthe badges and the incidents of slavery, and the authority to translate that\ndetermination into effective legislation.\xe2\x80\x9d 392 U.S. at 440. Similarly, in\nGriffin, the Court held that the Thirteenth Amendment supported application of the Ku Klux Klan Act (now 42 U.S.C. \xc2\xa7 1985) to a case of racially\nmotivated violence intended to deprive the victims of what the Court\ncalled \xe2\x80\x9cthe basic rights that the law secures to all free men,\xe2\x80\x9d 403 U.S. at\n105\xe2\x80\x94which in that case, according to the complaint, included the \xe2\x80\x9cright\nto be secure in their person\xe2\x80\x9d and \xe2\x80\x9ctheir rights to travel the public highways without restraint,\xe2\x80\x9d id. at 91\xe2\x80\x9392. The Court again endorsed the broad\nJones formulation, which contains no interference-with-protectedactivities limitation: \xe2\x80\x9cCongress has the power under the Thirteenth\nAmendment rationally to determine what are the badges and the incidents\nof slavery, and the authority to translate that determination into effective\nlegislation.\xe2\x80\x9d Id. at 105. To be sure, \xe2\x80\x9cthere exist indubitable connections\n\nSee Nelson, 277 F.3d at 191 n.26 (explaining that Congress included the \xe2\x80\x9cparticipating in or enjoying civil rights\xe2\x80\x9d requirement in section 245 for purposes of providing a\nbasis for the provision under the Fourteenth Amendment and possibly also the Fifteenth\nAmendment).\n6\n\n245\n\n\x0c33 Op. O.L.C. 240 (2009)\n\n. . . between post Civil War efforts to return freed slaves to a subjugated\nstatus and private violence directed at interfering with and discouraging\nthe freed slaves\xe2\x80\x99 exercise of civil rights in public places.\xe2\x80\x9d Nelson, 277\nF.3d at 190. But there are also such \xe2\x80\x9cindubitable connections\xe2\x80\x9d \xe2\x80\x9cbetween\nslavery and private violence directed against despised and enslaved\ngroups\xe2\x80\x9d more generally. Id. 7 In light of these precedents, and consistent\nwith our conclusion in 2000, see Senate Report at 16\xe2\x80\x9317, we think it\nwould be rational at the very least for Congress to find that \xe2\x80\x9c[s]lavery and\ninvoluntary servitude were enforced . . . through widespread public and\nprivate violence directed at persons because of their race\xe2\x80\x9d and that \xe2\x80\x9celiminating racially motivated violence is an important means of eliminating,\nto the extent possible, the badges, incidents, and relics of slavery and\ninvoluntary servitude,\xe2\x80\x9d S. 909, \xc2\xa7 2(7), regardless of whether the perpetrator in a particular case is attempting to deprive the victim of the use of the\nactivities covered by the current section 245.\nWe therefore conclude, as we did in 2000, that the prohibition of discriminatory violence in proposed section 249(a)(1) would be a permissible exercise of Congress\xe2\x80\x99s broad authority to enforce the Thirteenth\nAmendment.\nII.\nProposed section 249(a)(2) would be a proper exercise of Congress\xe2\x80\x99s\nauthority under the Commerce Clause, U.S. Const. art. I, \xc2\xa7 8, cl. 3, because it would require the government to allege and prove beyond a\nreasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce.\n7 As the Second Circuit noted in Nelson, the Supreme Court has limited the scope of\nCongress\xe2\x80\x99s enforcement authority under section 5 of the Fourteenth Amendment in a\nseries of recent cases. 277 F.3d at 185 n.20. But as that court also noted, these precedents\ndo not address the Thirteenth Amendment, which contemplates an inquiry that the Supreme Court has referred to as the \xe2\x80\x9cinherently legislative task of defining involuntary\nservitude.\xe2\x80\x9d Id. (quoting United States v. Kozminski, 487 U.S. 931, 951 (1988)). The court\nof appeals in Nelson further explained that \xe2\x80\x9cthe task of defining \xe2\x80\x98badges and incidents\xe2\x80\x99 of\nservitude is by necessity even more inherently legislative.\xe2\x80\x9d Id. Finally, we note that the\nThirteenth Amendment, unlike the Fourteenth Amendment, contains no state-action\nrequirement, a distinction of relevance in determining Congress\xe2\x80\x99s authority to regulate\nprivate, racially motivated violence. See Senate Report at 18.\n\n246\n\n\x0cConstitutionality of the Matthew Shepard Hate Crimes Prevention Act\n\nIn particular, it would require that the offense have occurred \xe2\x80\x9cin any\ncircumstance described in [proposed 18 U.S.C. \xc2\xa7 249(a)(2)(B)].\xe2\x80\x9d Those\nenumerated circumstances are that:\n(i) the conduct described in subparagraph (A) occurs during the\ncourse of, or as the result of, the travel of the defendant or the victim\xe2\x80\x94\n(I) across a State line or national border; or\n(II) using a channel, facility, or instrumentality of foreign\ncommerce;\n(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);\n(iii) in connection with the conduct described in subparagraph\n(A), the defendant employs a firearm, dangerous weapon, explosive\nor incendiary device, or other weapon that has traveled in interstate\nor foreign commerce; or\n(iv) the conduct described in subparagraph (A)\xe2\x80\x94\n(I) interferes with commercial or other economic activity in\nwhich the victim is engaged at the time of the conduct; or\n(II) otherwise affects interstate commerce.\nS. 909, sec. 7(a), \xc2\xa7 249(a)(2)(B). As we explained in 2000, see Senate\nReport at 18\xe2\x80\x9323, requiring proof of at least one of these \xe2\x80\x9cjurisdictional\xe2\x80\x9d\nelements would \xe2\x80\x9censure, through case-by-case inquiry, that the [offense]\nin question affects interstate commerce.\xe2\x80\x9d United States v. Lopez, 514 U.S.\n549, 561 (1995). Nothing in the law since 2000 calls this analysis into\nquestion. 8\n\n8 See, e.g., United States v. Dorsey, 418 F.3d 1038, 1045\xe2\x80\x9346 (9th Cir. 2005) (upholding 18 U.S.C. \xc2\xa7 922(q)(2)(A), which makes it a crime \xe2\x80\x9cknowingly to possess a firearm\nthat has moved in or that otherwise affects interstate or foreign commerce at a place the\nindividual knows, or has reasonable cause to believe, is a school zone\xe2\x80\x9d); United States v.\nCapozzi, 347 F.3d 327, 335\xe2\x80\x9336 (1st Cir. 2003) (upholding the Hobbs Act, 18 U.S.C.\n\xc2\xa7 1951(a), which makes it a federal crime to commit or attempt to commit extortion that\n\xe2\x80\x9cin any way or degree, obstructs, delays or affects [interstate] commerce\xe2\x80\x9d).\n\n247\n\n\x0c33 Op. O.L.C. 240 (2009)\n\nIII.\nFor these reasons we adhere to our 2000 conclusion that the new criminal offenses created in S. 909 would be wholly constitutional.\nMARTIN S. LEDERMAN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n248\n\n\x0c'