b'General Services Administration Printing Operations\n\nT h e J o in t C o m m itte e o n P rin tin g lacks the a u th o rity to a lte r the G e n e ra l S e rv ic e s A d m in is tra tio n \xe2\x80\x99s\np rin tin g o p e ra tio n s b e c a u s e th e only b a sis fo r th a t a u th o rity is an in v a lid le g isla tiv e veto p ro v isio n\nc o n ta in e d in 4 4 U .S .C . \xc2\xa7 5 0 1 .\n\nS e c tio n 2 0 7 o f P u b lic L a w N u m b e r 102-392 re q u ire s e x e c u tiv e b ra n c h e n titie s (o th e r th a n the C en tra l\nIn te llig e n c e A g e n c y , th e D e fe n se In te llig e n c e A g e n cy , a n d the N a tio n a l S e c u rity A g e n cy ) to p ro \xc2\xad\nc u re p rin tin g re la te d to th e p u b lic a tio n o f g o v e rn m e n t p u b lic a tio n s b y o r th ro u g h the G o v e rn m e n t\nP r in tin g O ffic e .\n\nSeptem ber 13, 1993\n\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nG e n e r a l S e r v ic e s A d m in is t r a t io n\n\nThis m em orandum responds to your request for our opinion on certain restric\xc2\xad\ntions that the Joint Committee on Printing (\xe2\x80\x9cJC P \xe2\x80\x9d) has attempted to place on the\nprinting operations of the General Services Administration (\xe2\x80\x9cGSA\xe2\x80\x9d). In particular,\nyou have asked us whether the JC P has the authority to restrict G SA \xe2\x80\x99s printing\nfunctions, and whether recent legislation has any effect on G SA \xe2\x80\x99s authority to en\xc2\xad\ngage in printing. W e conclude that the JCP does not have the authority to alter\nG SA \xe2\x80\x99s printing operations, but that section 207 o f Public Law Number 102-392,\n106 Stat. 1703, 1719 (1992) (codified as a note to 44 U.S.C. \xc2\xa7 501) mandates pro\xc2\xad\ncurem ent o f printing for executive branch agencies by or through the Government\nPrinting O ffice (\xe2\x80\x9cG PO \xe2\x80\x9d).\nI\nSection 501 of title 44 provides that all executive, congressional, and judicial\nprinting m ust be done at the GPO, except for printing in field plants operated by\nexecutive departm ents or independent offices \xe2\x80\x9cif approved by the Joint Committee\non Printing.\xe2\x80\x9d This Office issued an opinion in 1984 determining that the require\xc2\xad\nment o f approval by the JCP constitutes an unconstitutional legislative veto, be\xc2\xad\ncause it purports to em power a single com m ittee of Congress to take legislative\naction without meeting the Constitution\xe2\x80\x99s requirements of bicameral passage and\npresentm ent to the President. M emorandum for W illiam H. Taft, IV, Deputy Sec\xc2\xad\nretary o f Defense, from Theodore B. Olson, A ssistant Attorney General, Office of\nLegal Counsel, Re: Effect o f INS v. Chadha on 44 U.S.C. \xc2\xa7 501, \xe2\x80\x9cPublic Printing\nand D ocum ents\xe2\x80\x9d (M ar. 2, 1984); see INS v. Chadha, 462 U.S. 919 (1983) (holding\nlegislative veto unconstitutional for failure to com ply with constitutional require\xc2\xad\n\n54\n\n\x0cG eneral Services A dm inistration P rinting Operations\n\nments o f bicameralism and presentment). The opinion concluded that the provi\xc2\xad\nsion allowing field printing is severable from the invalid approval mechanism and\nthat the remainder of the statute, permitting field printing, remains effective.\nSection 501 of title 44 is the only statute that purports to give the JC P direct\nauthority over government field printing operations. Congress has not amended 44\nU.S.C. \xc2\xa7 501, nor has it passed any other legislation granting the JC P new authority\nover printing. Thus, the JCP lacks the authority to alter executive agencies\xe2\x80\x99 print\xc2\xad\ning operations; its only asserted authority to do so is contained in an invalid ap\xc2\xad\nproval mechanism.\nThe JCP has, on a number of occasions, asserted its authority to alter G SA \xe2\x80\x99s\nprinting operations. In particular, it has stated that it \xe2\x80\x9cmodified the charters of all\nGSA printing plants" by means of a letter sent to GSA on March 16, 1989. See\nLetter for Richard G. Austin, Administrator, General Services Administration,\nfrom the Honorable Charlie Rose, Chairman, and Senator W endell H. Ford, Vice\nChairman, Joint Committee on Printing, at 1 (Jan. 15, 1993). The March 16, 1989,\nletter apparently relied on the JC P \xe2\x80\x99s purported authority under 44 U.S.C. \xc2\xa7 501 in\nstating, \xe2\x80\x9cplease advise your [GSA\xe2\x80\x99s] field printing and duplicating organizations to\nrestrict their activities to providing services to Federal agencies within their im m e\xc2\xad\ndiate building com plexes.\xe2\x80\x9d Letter for Richard G. Austin, Acting Administrator,\nGeneral Services Administration, from Senator W endell H. Ford, Acting Chair\xc2\xad\nman, Joint Committee on Printing (Mar. 16, 1989). Because the JCP lacks the\nauthority to restrict G SA \xe2\x80\x99s printing operations, its attempt in 1989 to alter G S A \xe2\x80\x99s\nfield printing operations, as well as all other attempts by the JCP to modify unilat\xc2\xad\nerally the printing operations of executive agencies, are invalid.\n\nII\nAlthough Congress has not passed legislation granting the JCP direct authority\nover executive agencies\xe2\x80\x99 printing operations, it has passed legislation that requires\nexecutive branch agencies to procure printing through the GPO. Paragraph (a)(1)\no f section 207 o f Public Law Number 102-392 provides as follows:\nNone of the funds appropriated for any fiscal year may be obli\xc2\xad\ngated or expended by any entity of the executive branch for the pro\xc2\xad\ncurement of any printing related to the production of Government\npublications (including printed forms), unless such procurement is\nby or through the Government Printing Office.\nThe scope of section 207(a)(1) is quite broad: it applies to any appropriated funds\nexpended by any executive branch entity, which would encompass virtually all\n\n55\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nspending by all executive branch agencies.1 C f 5 U.S.C. app. \xc2\xa7 8E (Inspector\nGeneral Act of 1978) (defining the term \xe2\x80\x9cFederal entity\xe2\x80\x9d). Thus, section 207(a)(1)\nm andates that all executive agencies procure all o f their printing related to the pro\xc2\xad\nduction o f governm ent publications by or through the GPO.2\nThere are, however, three limitations on this provision. Section 207(a)(2) ex\xc2\xad\nempts from the strictures outlined above:\n(A) individual printing orders costing not more than $1,000, if the\nwork is not o f a continuing o r repetitive nature, and, as certified by\nthe Public Printer, cannot be provided m ore economically through\nthe G overnm ent Printing Office, (B) printing for the Central Intelli\xc2\xad\ngence A gency, the Defense Intelligence Agency, or the National Se\xc2\xad\ncurity Agency, [and] (C) printing from other sources that is\nspecifically authorized by law.\nThe first two exem ptions place clear, but narrow, limits on the scope of section\n207. Only the third exemption could potentially exempt GSA entirely from the\nrestrictions of section 207(a)(1). T h e sole rem aining question, then, is whether\nGSA may be exem pted pursuant to section 207(a)(2)(C), which exempts \xe2\x80\x9cprinting\nfrom other sources that is specifically authorized by law.\xe2\x80\x9d\nIll\n\nYou have identified tw o possible statutory bases for the proposition that G SA \xe2\x80\x99s\nprinting operations are specifically authorized by law. The first is 40 U.S.C.\n\xc2\xa7 481(a)(3), which authorizes the A dm inistrator of GSA to \xe2\x80\x9cprocure and supply\npersonal property and nonpersonal services for the use of executive agencies in the\nproper discharge of their responsibilities.\xe2\x80\x9d The second is 40 U.S.C. \xc2\xa7 293, which\nprovides in relevant part that, \xe2\x80\x9c[f]or the establishment o f a working capital fund\nthere is appropriated $50,000, without fiscal year limitation, for the payment of\nsalaries and other expenses necessary to the operation o f a central blue-printing,\nphotostating, and duplicating service.\xe2\x80\x9d\n1 P rev io u s v ersio n s o f the note to 44 U S C \xc2\xa7 501 (w here sectio n 207 is codified) contain sim ilar restnctions on p rin tin g p ro c u re d by entities of the e x ecu tiv e b ranch See, e.g , 4 4 U .S.C \xc2\xa7 501 note (Supp. II\n1990) (L eg islativ e B ran ch A ppropriations A ct, 1991, Pub. L No. 101-520, \xc2\xa7 206, 104 Stat. 2254, 2274\n(1990)) T h ese p rio r versions had a significantly narrow er sco p e, how ever, as they applied only to the pro\xc2\xad\ncurem en t o f p rin tin g \xe2\x80\x9c from com m ercial sources.\xe2\x80\x9d See id\n2 S ectio n 207 does not v iolate the separation o f powers by d e leg ating executive authority to the G PO See\nA p p lica b ility o f P o st-E m p lo xm en t Restrictions on Dealing w ith G overnm ent to F orm er Em ployees o f the\nG o vern m en t P rin tin g O ffice, 9 O p. O L.C 55 (1 985) (co n clu d in g that the G PO is a unit o f the legislative\nbranch fo r p u rp o ses o f post-em ploym ent restrictions) It d o es not give the G PO the authority to refuse to\npnnt any m aterials, b u t rath er m erely requires th a t printing be p ro cu red \xe2\x80\x9cby o r through*\xe2\x80\x99 the GPO . M oreover,\nbecause 44 U S.C . \xc2\xa7 1101 p ro v id es that *\xe2\x80\x98(t)he Public Printer sh all execute such printing and binding for the\nP resident as he m ay o rd e r an d m ak t requisition for,\xe2\x80\x9d the ex ec u tiv e branch retains its ability to ensure that\nm aterials are p rin ted\n\n56\n\n\x0cG eneral Services A dm inistration P rinting Operations\n\nSection 481(a)(3) of title 40 does not constitute specific authorization to print.\nThe provision does not mention printing or any printing-related services. This\nomission is particularly striking in light of the reference in a companion provision,\n\xc2\xa7 481(a)(1), to other aspects of \xe2\x80\x9cprocurement and supply of personal property and\nnonpersonal services,\xe2\x80\x9d such as \xe2\x80\x9ccontracting, inspection, [and] storage.\xe2\x80\x9d The spe\xc2\xad\ncific reference in \xc2\xa7 481 to such functions can be contrasted with the omission of\nany reference to printing. Moreover, there are no references to printing in the leg\xc2\xad\nislative history o f 40 U.S.C. \xc2\xa7 481. Thus printing is authorized by this provision\nonly as one of the many services that GSA provides. Such broad authorization to\nengage in certain categories of services is, by definition, general. There is no basis\nfor suggesting, therefore, that this provision satisfies the requirement that the\nprinting be \xe2\x80\x9cspecifically authorized by law.\xe2\x80\x9d\nSection 293 is a somewhat closer case, because it does mention \xe2\x80\x9cblue-printing,\nphotostating, and duplicating,\xe2\x80\x9d which could be construed to include most, and per\xc2\xad\nhaps all, of G SA \xe2\x80\x99s printing operations. The problem with this section is that, al\xc2\xad\nthough it specifically mentions these printing operations, it does not specifically\nauthorize them.\nSection 293 was originally enacted as a section of an appropriations act that was\npassed in 1945, Independent Offices Appropriation Act, 1946, Pub. L. No. 79-49,\n\xc2\xa7 101, 59 Stat. 106, 115 (1945), and has not been substantively amended since\nthen. This section of the appropriations act authorized the creation and m ainte\xc2\xad\nnance of a fund to pay salaries and other expenses; that is, it merely appropriated\nfunds. The operative effect o f the current version, similarly, is to authorize the use\no f certain money to fund ongoing operations. The structure of \xc2\xa7 293 is that it ap\xc2\xad\npropriates $50,000 for the payment of salaries and expenses necessary to the op\xc2\xad\neration of printing services. The phrase \xe2\x80\x9cnecessary to the operation of a central\nblue-printing, photostating, and duplicating service\xe2\x80\x9d indicates that the printing\nservice \xe2\x80\x94 and any authorization for it \xe2\x80\x94 exists irrespective of the appropriation in\n\xc2\xa7 293. The reference to printing merely clarifies the purposes for which the funds\nshall be used. Thus, \xc2\xa7 293 clearly contemplates that GSA3 will operate \xe2\x80\x9ca central\nblue-printing, photostating, and duplicating service,\xe2\x80\x9d but it does not, by its terms,\nauthorize such a service. The language of the section reveals that its operative\neffect is to authorize the use o f funds to pay for certain functions, not to authorize\nthose functions per se.\nArguably, the establishment o f a fund to pay for printing also constitutes an im\xc2\xad\nplied authorization to print. Such implicit authorization, however, does not appear\nto meet the requirement that the printing be \xe2\x80\x9cspecifically authorized by law.\xe2\x80\x9d\n\xe2\x80\x9cSpecifically\xe2\x80\x9d is defined as \xe2\x80\x9c[w]ith exactness and precision; in a definite manner,\xe2\x80\x9d\nW ebster\xe2\x80\x99s New International Dictionary 2415 (unabridged 2d ed. 1957), and\n3The original version o f 40 U S C \xc2\xa7 293 appropriated funds for blue-printing, photostating and duplicatm g by the Federal W orks A gency Section 103 o f the Federal Property and A dm inistrative Services A ct o f\n1949, Pub. L No 81-152, 63 Stat 377, 380, transferred all functions o f the Federal W orks A gency to G SA\n\n57\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\n\xe2\x80\x9cspecific\xe2\x80\x9d m eans \xe2\x80\x9c[ex p licitly set forth; definite.\xe2\x80\x9d American Heritage Dictionary\n1730 (3d ed. 1992). In this case, the authorization to print is not explicitly set forth\nor presented in a definite manner. A t most, it is indirectly entailed in the explicit\nauthorization to appropriate funds. The absence of an express authorization to\nprint defeats any argum ent that G S A \xe2\x80\x99s printing operations were \xe2\x80\x9cspecifically\nauthorized by law .\xe2\x80\x9d Thus, in 40 U.S.C. \xc2\xa7 293 there is a specific reference to\nprinting, and there may be an implied authorization to print, but there is no specific\nauthorization to print.\nT he legislative history o f 40 U.S.C. \xc2\xa7 293 does not affect this analysis of its\nlanguage, because such history reveals nothing with respect to Congress\xe2\x80\x99s intent\n(or lack thereof) specifically to authorize printing. W e are left, then, with the\nwords of the statute. The most natural reading of them is that they specifically\nauthorize the creation o f a fund to pay certain expenses, and that they may contain\nan implied authorization o f the printing that helps to create those expenses, but that\nthey do not specifically authorize printing, because the implication of authorization\ndoes not rise to the level o f specificity that section 207 requires.\n\nIV\nW e conclude that the JC P lacks the authority to alter G SA \xe2\x80\x99s printing operations,\nbecause the only basis for that authority is an invalid legislative veto contained in\n44 U.S.C. \xc2\xa7 501. W e also conclude that section 207 requires executive branch\nentities (other than the Central Intelligence Agency, the Defense Intelligence\nAgency, and the National Security Agency) to procure printing related to the pub\xc2\xad\nlication o f governm ent publications by or through the GPO. GSA is exempted\nfrom this requirem ent only with respect to certain individual printing orders costing\n$1,000 or less.\n\nW ALTER DELLINGER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n58\n\n\x0c'


b'Authority of the Equal Employment Opportunity\nCommission to Conduct Defensive Litigation\nIn general, the A ttorney General has plenary authority over the supervision and conduct of\nlitigation to w hich the United States is a party. Courts have narrowly construed statutory\ngrants o f litigation authority to agencies to perm it such power only when the authorizing\nstatutes are sufficiently clear and specific to ensure that Congress intended an exception to the\ngeneral rule.\nThe litigation authority of the E qual Employment Opportunity Commission is limited to that\nw hich is specifically provided by statute, namely, enforcem ent actions brought against private\nsector em ployers. 42 U.S.C. \xc2\xa7\xc2\xa7 2000e-4(b), 2000e-5, 2000e-6. Accordingly, the Commission\nmay not independently defend suits brought against it in connection with its federal sector\nadm inistrative and enforcement and adjudicative functions, or actions brought against it by its\nown em ployees challenging Com m ission personnel decisions. Such suits are to be handled by\nattorneys under the supervision o f the Attorney General.\n\nJune 21, 1984\nM\n\nem o ran d um\n\nO p in io n\n\nfor the\n\nA c t in g A s s is t a n t A t t o r n e y G\n\neneral,\n\nC iv il D iv is io n\n\nThis responds to your memorandum seeking the views of this Office regard\xc2\xad\ning the role that the Equal Employment Opportunity Commission (EEOC or\nCommission) plays in defending suits brought under Title VII of the Civil\nRights Act of 1964,42 U.S.C. \xc2\xa7\xc2\xa7 2000e et seq., as amended, against the EEOC\nin connection with its Federal sector administrative enforcement and adjudica\xc2\xad\ntive responsibilities, or in actions by its own employees challenging Commis\xc2\xad\nsion personnel decisions. You have advised us that it has been the position of\nthe Civil Division that the EEOC lacks independent litigating authority when it\nis sued as a result of personnel decisions regarding Federal employment. The\nEEOC contends that it can represent itself in court any time it is named as\ndefendant.\nAs discussed below, we conclude that, in view of the Attorney General\xe2\x80\x99s\nplenary authority over litigation on behalf of the United States and the narrow\nconstruction necessarily accorded exceptions to this authority, the EEOC\xe2\x80\x99s\nlitigating authority in Title VII suits is limited to that which is specifically\nprovided by statute, namely, enforcement actions brought against private sec\xc2\xad\ntor employers. See 42 U.S.C. \xc2\xa7\xc2\xa7 2000e-4(b), 2000e-5, 2000e-6. Likewise, the\nCommission\xe2\x80\x99s general grant of litigating authority, as set forth in \xc2\xa7 2000e-4(b)\nand Reorganization Plan No. 1 of 1978, 92 Stat. 3781 (reprinted in 42 U.S.C.\n146\n\n\x0c\xc2\xa7 2000e-4 note (Supp. V 1981)), cannot fairly be read to embrace litigation\ninvolving challenges to its personnel decisions.1 Nevertheless, while we con\xc2\xad\nclude that the Commission lacks the authority to litigate independently in these\ncases, we believe that Commission attorneys may assist Department of Justice,\nor other duly authorized, attorneys in such cases, or otherwise participate in\nsuch litigation under the general supervision of the Attorney General.2\nI. Background\nA. The Attorney General\xe2\x80\x99s Litigating Authority\n\nQuestions concerning the litigating authority of Executive Branch agencies\nnecessarily must begin with a recognition of the Attorney General\xe2\x80\x99s plenary\nauthority over the supervision and conduct of litigation to which the United\nStates, its agencies and departments, or officers thereof, is party. This plenary\nauthority is rooted historically in our common law and tradition, see Confisca\xc2\xad\ntion Cases , 74 U.S. (7 Wall.) 454,458-59 (1868); The Gray Jacket, 72 U.S. (5\nWall.) 370 (1866); and, since 1870, has been given a statutory basis. See 28\nU.S.C. \xc2\xa7\xc2\xa7 516, 519.3 See generally United States v. San Jacinto Tin Co., 125\nU.S. 273 (1888). The rationales underlying this grant of plenary authority to the\nAttorney General are many. The most significant are the need to centralize the\ngovernment\xe2\x80\x99s litigation functions under one authority to ensure (1) coordina\xc2\xad\ntion in the development of positions taken by the government in litigation, and\nconsideration of the potential impact of litigation upon the government as a\nwhole; and (2) the ability of the President, as head of the Executive Branch, to\nsupervise, through the Attorney General, the various policies of Executive\nBranch agencies and departments as they are implicated in litigation. Because\nof his government-wide perspective on matters affecting the conduct of litiga\xc2\xad\ntion in the Executive Branch, the Attorney General is uniquely suited to carry\nout these functions. See United States v. San Jacinto Tin Co., 125 U.S. at 27880. See also Report o f the Attorney General\xe2\x80\x99s Task Force on Litigating Author\xc2\xad\n1 Although you did not specifically request o ur views regarding the C om m ission\'s authority to conduct\ndefensive litigation arising out o f its enforcem ent responsibilities against private sector em ployers under\nTitle VII, the Equal Pay Act, 29 U .S.C. \xc2\xa7 206(d), and the Age D iscrim ination in Em ploym ent Act, 29 U .S.C.\n\xc2\xa7\xc2\xa7 621 et seq., because the issue appears to rem ain unsettled between the Department and the C om m ission,\nwe have provided o ur view s in Part U.B in an effort to provide a com prehensive analysis o f the C om m ission\'s\nauthority to conduct defensive litigation on its ow n behalf.\n2 W e understand th at in O ctober 1980, the A ssistant A ttorney General for the Civil D ivision reached an\nagreem ent with the C om m ission\xe2\x80\x99s D eputy G eneral Counsel that the Civil D ivision \xe2\x80\x9cw ould, as a m atter o f\npractice, perm it EEO C to defend itself in these law suits."\n328 U.S.C. \xc2\xa7 516 provides:\nExcept as otherw ise authorized by law, the conduct o f litigation in w hich the U nited States, an\nagency, o r o fficer thereof is a party, or is interested, and securing evidence therefor, is reserved\nto officers o f the D epartm ent o f Justice, under the direction o f the A ttorney General.\n28 U.S.C. \xc2\xa7 519 provides:\nExcept as otherw ise authorized by law, the Attorney General shall supervise all litigation to\nwhich the U nited States, an agency, o r o fficer thereof is a party, and shall direct all U nited States\nAttorneys, A ssistant U nited States A ttorneys, and special attorneys appointed under section 543\no f this title in the discharge o f their respective duties.\n\n147\n\n\x0city (Oct. 28, 1982)); \xe2\x80\x9cThe Attorney General\xe2\x80\x99s Role as Chief Litigator for the\n\nUnited States,\xe2\x80\x9d 6 Op. O.L.C. 47 (1982).\nNotwithstanding Congress\xe2\x80\x99 determination that the litigating functions of the\nExecutive Branch be centralized in the Attorney General, the Attorney General\xe2\x80\x99s\n\xe2\x80\x9cplenary\xe2\x80\x9d authority over litigation involving the United States is limited to\nsome extent by the \xe2\x80\x9cexcept as otherwise authorized by law\xe2\x80\x9d provisions con\xc2\xad\ntained in 28 U.S.C. \xc2\xa7\xc2\xa7 516, 519. Nevertheless, mindful of the considerations\nsupporting such centralization, the courts have narrowly construed statutory\ngrants of litigating authority to agencies in derogation of the responsibilities\nand functions vested in the Attorney General, and have permitted the exercise\nof litigating authority by agencies only when the authorizing statutes were\nsufficiently clear and specific to ensure that Congress indeed had intended an\nexception to the general rule. See, e.g., Case v. Bowles, 327 U.S. 92 (1946);\nIC C v. Southern Railway Co., 543 F.2d 534 (5th Cir. 1976), a ffd , 551 F.2d 95\n(1977) (en banc); FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968). See generally\nReport o f the Attorney General\xe2\x80\x99s Task Force on Litigating Authority, supra ; 6\nOp. O.L.C. 47, supra.\nMoreover, such exceptions are generally construed to grant litigating author\xc2\xad\nity only with respect to the particular proceedings referred to in the statutory\nprovision, and not as a broad authorization for the agency to conduct litigation\nin which it is interested generally. Id. See also \xe2\x80\x9cLitigation Authority of the\nEqual Employment Opportunity Commission in Title VII Suits Against State\nand Local Governmental Entities,\xe2\x80\x9d 7 Op. O.L.C. 57 (1983).\nIn short, the general rule regarding litigating authority on behalf of the\nUnited States is that it is presumed to be vested exclusively in the Attorney\nGeneral, to be exercised under the general supervision of the Attorney General\nor his delegees within the Department of Justice,4 unless such authority is\nclearly and unambiguously vested by statute in an officer other than the\nAttorney General.\nB. The E E O C \xe2\x80\x99s General Litigating Authority\n\n1. Title VII of the Civil Rights Act\nThe general litigating authority of the EEOC is set forth in Title VII of the\nCivil Rights Act of 1964. Section 705 provides in pertinent part:\n(1) . . . The General Counsel shall have responsibility for the\nconduct of litigation as provided in sections 2000e-5 and 2000e6 of this title. The General Counsel shall have such other duties\nas the Commission may prescribe or as may be provided by law\nand shall concur with the Chairman of the Commission on the\nappointment and supervision of regional attorneys.. . .\n4 28 U S.C . \xc2\xa7 510 authorizes the A ttorney G eneral \xe2\x80\x9c from time to tim e [to] make such provisions as he\nconsiders appropriate authorizing the perform ance by any other officer, employee, or agency o f the D epart\xc2\xad\nm ent o f Justice o f any function of the A ttorney G eneral.\xe2\x80\x9d\n\n148\n\n\x0c(2) Attorneys appointed under this section may, at the direc\xc2\xad\ntion of the Commission, appear for and represent the Commis\xc2\xad\nsion in any case in court, provided that the Attorney General\nshall conduct all litigation to which the Commission is a party in\nthe Supreme Court pursuant to this subchapter.\n42 U.S.C. \xc2\xa7\xc2\xa7 2000e-4(b)(l), (2). In addition, \xc2\xa7 2000e-4(g)(6) authorizes the\nCommission \xe2\x80\x9cto intervene in a civil action brought under \xc2\xa7 2000e-5 of this title\nby an aggrieved party against a respondent other than a governmental agency\nor political subdivision.\xe2\x80\x9d Sections 2000e-5 and 2000e-6, referred to above,\nconstitute the enforcement provisions for Title VII of the Act and set forth the\nenforcement responsibilities of the Commission and the Attorney General,\nrespectively. Section 2000e-5 authorizes the Commission, after investigating\nallegations of unlawful employment practices, filing charges and failing \xe2\x80\x9cto\nsecure from the respondent a [timely] conciliation agreement acceptable to the\nCommission,\xe2\x80\x9d to bring civil actions \xe2\x80\x9cagainst any respondent not a government,\ngovernmental agency, or political subdivision named in the charge . . . or to\nintervene in such civil action upon certification that the case is of general\npublic importance.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-5(f)(l) (emphasis added). In cases in\nwhich the respondent is a \xe2\x80\x9cgovernment, governmental agency, or political\nsubdivision,\xe2\x80\x9d litigation authority rests with the Attorney General. Id.5 In addi\xc2\xad\ntion, \xc2\xa7 2000e-5(i) authorizes the Commission to \xe2\x80\x9ccommence proceedings to\ncompel compliance\xe2\x80\x9d in any \xe2\x80\x9ccase in which an employer, employment agency,\nor labor organization fails to comply with an order of a court issued in a civil\naction brought under [\xc2\xa7 2000e-5].\xe2\x80\x9d Section 2000e-6, as amended by Reorgani\xc2\xad\nzation Plan No. 1 of 1978,92 Stat. 3781 (reprinted in 42 U.S.C. \xc2\xa7 2000e-4 note\n(Supp. V 1981)),6 limits the government\xe2\x80\x99s authority to engage in public sector\n\xe2\x80\x9cpattern or practice\xe2\x80\x9d enforcement litigation to the Attorney General. See gener\xc2\xad\nally 7 Op. O.L.C. 57.\nIn a 1983 memorandum to the Civil Rights Division, we opined that the\nlimitations on the General Counsel\xe2\x80\x99s authority which are set forth in \xc2\xa7 2000e4(b)(1) necessarily are incorporated into the \xe2\x80\x9clitigating authority\xe2\x80\x9d granted\nCommission attorneys in \xc2\xa7 2000e-4(b)(2). See 7 Op. O.L.C. at 61-62. We\n5 As noted above, the C om m ission retains authority to perform pre-litigation functions, e.g., investigations,\nthe filing o f charges, and the secu n n g o f voluntary com pliance and conciliation measures, w ith respect to\npublic sector em ployers.\n6 A lthough the tran sfer o f litigation authority in public sector \xe2\x80\x9cpattern or practice\xe2\x80\x9d suits from the EEOC to\nthe Attorney G eneral was accom plished pursuant to the P resident\'s authority under the R eorganization Act o f\n1977, 5 U.S.C. \xc2\xa7 9 0 1 , an Act which contains an unconstitutional legislative veto provision, see INS v.\nChadha, 462 U S. 919 (1983), the D epartm ent has taken the position that the legislative veto provision is\nseverable from the rem aining provisions o f the A ct granting the President reorganization authority See\nEEOC v. Hernando Bank , 724 F.2d 1188 (5th C ir. 1984); EEOC v Jackson County, No. 83-1 1 1 8 (W.D. Mo.\nDec. 13, 1983); Muller Optical Co. v. EEOC, 574 F. Supp 946 (W .D. Tenn. 1983), appeal pending , No. 8 3 5889. See also EEOC v. City o f Memphis , 581 F. Supp. 179 (W .D. Tenn. 1983) (holding that Congress has\nratified the EEOC\xe2\x80\x99s authority under Reorganization Plan No. 1 o f 1978). But see EEOC v. Westinghouse\nElectric Co , No. 83 -1 2 0 9 (W .D. Pa. Jan. 5, 1984); EEOC v. Allstate Insurance Co., 570 F. Supp. 1224 (S.D.\nMiss. 1983), appeal dismissed. No. 83-1 0 2 1 , 52 U.S.L.W . 3889 (June 11, 1984), appeal pending. No. 8 3 4652 (5th Cir.). See also EEOC v. Pan American World Airways, 576 F. Supp. 1530 (S.D .N .Y . 1984).\n\n149\n\n\x0cconcluded that to construe \xc2\xa7 2000e-4(b)(2) without regard to \xc2\xa7 2000e-4(b)(l)\nwould grant Commission attorneys authority which supersedes that of the\nGeneral Counsel, under whose supervision they work, pursuant to \xc2\xa7 2000e4(b)(1) and, moreover, that such a construction would be contrary to the\ngeneral rule that exceptions to the Attorney General\xe2\x80\x99s plenary litigating author\xc2\xad\nity are to be narrowly construed. See also Report o f the Attorney General\xe2\x80\x99s\nTask Force on Litigating Authority, supra.\n\nIn a memorandum to this Office, the Legal Counsel to the Commission\ndisputed this analysis.7 Although the Legal Counsel\xe2\x80\x99s argument is not entirely\nclear, she appears to contend that the Commission was granted broad litigating\nauthority when it was created by Title VII of the Civil Rights Act in 1964,\nwhich has not been diminished by subsequent amendments, i.e., \xc2\xa7 2000e4(b)(1), to the Act. Regarding the limitations on the General Counsel\xe2\x80\x99s author\xc2\xad\nity which are set forth in \xc2\xa7 2000e-4(b)(l), the Legal Counsel opined that\n\xe2\x80\x9csection [2000e-4](b)( 1) involves a different matter than section [2000e-4](b)(2),\ni.e., the enforcement function the Commission acquired in 1972,\xe2\x80\x9d adding that\n\xe2\x80\x9c[n]o support appears in the legislative history for the argument that [\xc2\xa7 2000e4](b)( 1) was intended to limit the broad grant of authority contained in [\xc2\xa7 2000e41(b)(2).\xe2\x80\x9d\nThe Legal Counsel correctly notes that in 1964, the newly created Commis\xc2\xad\nsion was granted authority to appoint attorneys who \xe2\x80\x9cmay, at the direction of\nthe Commission, appear for and represent the Commission in any case in\ncourt,\xe2\x80\x9d Pub. L. No. 88-352, \xc2\xa7 705(h), 78 Stat. 241, 259 (1964), but at that time\nthe only matters on which the Commission was authorized to appear in court\nwere those in which it commenced proceedings against private-sector employ\xc2\xad\ners to compel compliance with court orders issued in civil actions brought by\naggrieved parties under \xc2\xa7 20Q0e-5, see \xc2\xa7 706(i), 78 Stat. at 261 (codified at 42\nU.S.C. \xc2\xa7 2000e-5(i)).8 Thus, although the Commission was given broad \xe2\x80\x9cen\xc2\xad\nforcement\xe2\x80\x9d authority under the Act, including the authority to investigate\nallegations of unlawful employment practices and to undertake efforts to\nsecure voluntary compliance, with the exception noted above of suits to compel\ncompliance with court orders secured by aggrieved parties, none of . the\nCommission\xe2\x80\x99s powers under the Act at the time of its creation in 1964 entitled\nthe Commission to conduct litigation on its own behalf. Rather, the\nCommission\xe2\x80\x99s involvement in litigation under the Act was limited to \xe2\x80\x9crefer[ring]\n7 U ntil recently, the E E O C \'s Office o f th e Legal C ounsel was a subdivision of the O ffice o f the General\nC ounsel, headed b y the \xe2\x80\x9c A ssociate G eneral Counsel, Legal Counsel D ivision." We understand that, pursuant\nto a reorganization, the Legal Counsel D ivision has been removed from the G eneral C ounsel\xe2\x80\x99s Office,\nestablishing it as a separate office u n d er the C hairm an\xe2\x80\x99s control. A lthough we take no position on the\nC o m m is sio n s authority to effect such a reorganization, w e do not b elieve that through such a reorganization,\nlitigatin g authority vested by statute in th e General C ounsel could be transferred to an official outside o f the\nG eneral C o u n se l\xe2\x80\x99s control. N or do we believe that such authority could be \xe2\x80\x9ccreated\xe2\x80\x9d or \xe2\x80\x9c inferred,\xe2\x80\x9d if\npreviously nonexistent, and vested in the new ly constituted Legal C ounsel Division.\n8 A lthough the 1964 A ct authorized o n ly aggrieved parties to bring unlaw ful em ploym ent discrim ination\nsuits under \xc2\xa7 2000e-5, subsection (e) o f th a t provision (presently 42 U .S.C . \xc2\xa7 2 0 0 0 e \'5 (f\xc2\xbb did authorize the\ncourt, \xe2\x80\x9c in its discretion, [to] perm it the A tto rn ey G eneral!, upon timely application,] to intervene in such civil\naction if he certifies that the case is o f g en eral public im portance.\xe2\x80\x9d\n\n150\n\n\x0cmatters to the Attorney General with recommendations for intervention in a\ncivil action brought by an aggrieved party under section 706 [42 U.S.C.\n\xc2\xa7 2000e-5], or for the institution of a civil action by the Attorney General under\nsection 707 [42 U.S.C. \xc2\xa7 2000e-6, in cases involving allegations of a \xe2\x80\x98pattern or\npractice\xe2\x80\x99 of unlawful conduct], and to advis[ing], consulting] and assisting]\nthe Attorney General on such matters.\xe2\x80\x9d \xc2\xa7 705(g)(6), 78 Stat. at 259.\nIn 1972, the Act was amended to strengthen the Commission\xe2\x80\x99s enforcement\nauthority by establishing a General Counsel and authorizing him to bring\nactions in federal courts under certain provisions of the Act against private\nsector employees. See generally Pub. L. No. 92-261, 86 Stat. 103 (1972).9\nSection 706 of the Act, 42 U.S.C. \xc2\xa7 2000e-5, was amended to grant the\nCommission authority to \xe2\x80\x9cbring a civil action against any respondent not a\ngovernment, governmental agency, or political subdivision named in the charge,\xe2\x80\x9d\nand to intervene, at the court\xe2\x80\x99s discretion, in an action brought by an aggrieved\nparty against a nongovernmental employer \xe2\x80\x9cupon certification that the case is\nof general public importance.\xe2\x80\x9d See 42 U.S.C. \xc2\xa7 2000e-5(f). In addition, en\xc2\xad\nforcement authority in \xe2\x80\x9cpattern or practice\xe2\x80\x9d litigation pursuant to \xc2\xa7 707 of the\nAct, 42 U.S.C. \xc2\xa7 2000e-6, was transferred from the Attorney General to the\nCommission, effective March 24, 1974, by the 1972 amendments.10\nTo assist the Commission in the performance of these expanded enforcement\nfunctions, Congress provided for the appointment, by the President, of a\nGeneral Counsel, whose responsibilities would include \xe2\x80\x9cthe conduct of litiga\xc2\xad\ntion as provided in 42 U.S.C. sections 2000e-5 and 2000e-6 .. . [and] such\nother duties as the Commission may prescribe or as may be provided by law.\xe2\x80\x9d\n42 U.S.C. \xc2\xa7 2000e-4(b)(l). See also S. Rep. No. 681, 92d Cong., 2d Sess. 20\n(1972). It is clear from the legislative history of the 1972 amendments that\nCongress intended to commit all litigating functions of the agency to the\nsupervision of the General Counsel, and moreover, that the General Counsel\xe2\x80\x99s\nlitigating functions were to be \xe2\x80\x9cas provided in sections 706 and 707 of the Act.\xe2\x80\x9d\n118 Cong. Rec. 7169 (1972) (section-by-section analysis of H.R. 1746). Thus,\nto construe \xc2\xa7 2000e-4(b)(2) as providing a residual source of litigating author\xc2\xad\nity, unrelated to \xc2\xa7 2000e-4 (b)(1), which either expands upon the General\nCounsel\xe2\x80\x99s limited authority provided in \xc2\xa7 2000e-4(b)(l) or constitutes an inde\xc2\xad\npendent grant of litigating authority to Commission attorneys without regard to\n\xe2\x80\x99 Prior to 1972, the position o f General Counsel was not specifically provided for by statute, although the\nCom m ission generally appointed an attorney to assume the role o f supervising the C om m ission\xe2\x80\x99s legal staff\nin the perform ance o f its legal duties. During consideration o f the 1972 amendments, several bills to em pow er\nthe C om m ission to issue cease and desist orders, and to create an \xe2\x80\x9c independent\xe2\x80\x9d G eneral Counsel, who w ould\nbe appointed by the President and be outside o f the control o f the C hairm an and the Com m ission, and who\nw ould perform prosecutorial functions before such a quasi-adjudicative C om m ission, were debated at length.\nA lthough the b ills to vest the C om m ission with quasi-adjudicative authority were defeated in favor of those\ngranting the C om m ission authority to file civil actions in federal court, the provisions for a Presidentiaiiy\nappointed G eneral C ounsel remained. See generally Subcomm. on Labor o f the Senate Comm, on Labor and\nPublic W elfare, 92d Cong., 2d Sess., Legislative History o f the Equal Employment Opportunity Act o f 1972\n(1972).\n10 Section 5 o f Reorganization Plan No. 1 o f 1978, supra, transferred enforcem ent authority under \xc2\xa7 707 in\npublic sector cases back to the A ttorney General.\n\n151\n\n\x0cthe General Counsel, would fly in the face of well-established rules of statutory\nconstruction11 as well as the general statutory and policy constraints discussed\nabove on construing grants of litigating authority.12\n11 The Legal C o u n se l\'s interpretation is inconsistent w ith several general rules o f statutory construction,\nincluding the rules (1) that sections o f a statute should be construed \xe2\x80\x9c in connection with every other part or\nsection so as to produce a harmonious w hole,\xe2\x80\x9d 2A Sutherland Statutory Construction \xc2\xa7 46.05 (4th ed. 1973),\n(2) th at adoption o f an amendment is evidence that the legislature intends to change the provisions o f the\noriginal bill, see 2A Sutherland , supra, \xc2\xa7 48.18; and (3) that statutes in pari materia should be construed\ntogether, and if there exists \xe2\x80\x9can irreconcilable conflict betw een the new provision and the prior statutes . . .\nthe new provision w ill control as it is th e better expression o f the legislature,\xe2\x80\x9d 2A Sutherland , supra, \xc2\xa7 51.02.\nSee generally Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247 (1953); Bindczyck v. Finucane,\n342 U.S. 7 6 (1 9 5 1 ).\n12 The Legal C ounsel has cited tw o cases in support o f the argum ent that \xc2\xa7 2000e*4(b)(2) constitutes a\ngeneral g ran t o f litig atin g authority to Com m ission attorneys to conduct defensive litigation on the\nC o m m issio n \'s behalf, notwithstanding the lim itations on the General C ounsel\'s authority in \xc2\xa7 2000e-4(b)(l).\nThe first case, Falkowski v. EEOC, 719 F.2d 470 (D.C. Cir. 1983), is an action brought against the\nC om m ission and the Department o f Ju stic e by a disgruntled form er EEOC em ployee seeking reim bursem ent\nfor past legal expenses and a guarantee o f future legal representation in two suits brought against her by a\nsubordinate during h er tenure as director o f one o f the C om m ission\xe2\x80\x99s field offices. In granting the governm ent\xe2\x80\x99s\nm otion for sum m ary judgm ent \xe2\x80\x94 the governm ent was represented by Department o f Justice attorneys, with\nEE O C attorneys on the b r ie f \xe2\x80\x94 the co u rt stated in a footnote that EEOC attorneys could not have represented\nthe em ployee, Falkow ski, in the e arlie r litigation because o f \xe2\x80\x9cthe irreconcilable conflict o f interest that\nexisted betw een the agency and Ms. Falkow ski in that case.\xe2\x80\x9d 719 F.2d at 478 n.14. The court noted that the\nC om m ission and Falkow ski were adverse parties in litigation arising out o f the same underlying dispute, and\nthat it w ould have been \xe2\x80\x9chighly im proper for EEOC attorneys to undertake such dual representation.\xe2\x80\x9d id. That\nthe co u rt appears to assum e that EEO C attorneys w ould be representing the Commission in such litigation\ndoes not in any w ay negate Department o f Justice participation in and supervision o f the litigation on behalf\no f the C om m ission. The conflict of in terest arises sim ply from the fact o f the EEOC attorneys\xe2\x80\x99 involvement in\nthe C om m ission\xe2\x80\x99s defense, i.e., from hav in g participated in the c ase \'s preparation. Thus, it can hardly be said\nthat the Falkowski case stands for the proposition that the C om m ission\xe2\x80\x99s attorneys are statutorily authorized\nto co nduct defensive litigation, independently o f the A ttorney G eneral, on the C om m ission\'s behalf.\nThe second case cited by the Legal C ounsel is Dormu v. Walsh, No. 73-2014 (D.D.C. Mar. 5, 1975), a jfd\nmem. sub nom. Dormu v. Perry, 530 F.2d 1093 (D.C. C ir.), cert, denied , 429 U.S. 849 (1976). Dormu\ninvolved a series o f cases filed by a form er EEOC em ployee alleging, inter alia, Title VII violations, 42\nU .S.C . \xc2\xa7 2000e-16, by the Commission. In the particular case cited by the Commission, Dormu sought, and\nw as denied, p relim inary injunctive re lie f restraining the C om m ission from discharging him, pending the\nresolution o f his claim s on the m erits. Dormu m oved to disqualify the EEOC General Counsel from\nrepresenting the C om m ission, on the g round that \xe2\x80\x9c [u]nder 28 U.S.C. \xc2\xa7 516 only the D epartm ent o f Justice can\nc onduct any litigations [sic] in which th e United States, an agency, or officer thereof is a party.\xe2\x80\x9d The General\nC ounsel o pposed the m otion, citing his authority \xe2\x80\x9cto represent the C om m ission in any case in court, 42 U.S.C.\n\xc2\xa7 2 0 0 0 e-4(b)(2)\xe2\x80\x9d and the fact that the D epartm ent o f Justice had referred the case to the Com m ission, as it\nw as \xe2\x80\x9cth e practice o f the [Department] w hen the A ttorney G eneral [w as] served, to refer Title V II cases filed\nagainst the C om m ission to the C om m ission so that the C om m ission\'s O ffice of General Counsel may defend\nthe su it.\xe2\x80\x9d T he d istrict court denied D o rm u \'s m otion and, on appeal, the court in a footnote o f its memorandum\nopinion stated that \xe2\x80\x9c [a] ruling on the m otion was deferred and the issue was reserved for the merits panel. The\nstatute referred to in the text [42 U .S .C . \xc2\xa7 2000e-16(c)] and 42 U .S.C. \xc2\xa7 2000e-4(b) rebut appellant\'s\ncontention on this m atter.\xe2\x80\x9d The merits panel, by order, and w ithout a published opinion, dism issed D orm u\xe2\x80\x99s\naction.\nW e do not believe that the Dormu c ase provides any credible support for the Legal C ounsel\xe2\x80\x99s argument.\nFirst, C om m ission attorneys, as the G eneral Counsel acknow ledged, w ere defending the suit, \xe2\x80\x9cas was the\npractice,\xe2\x80\x9d pursuant to a specific \xe2\x80\x9cdelegation\xe2\x80\x9d o f litigation authority from the Department o f Justice \xe2\x80\x94 the\nC om m ission did not purport to rely solely on its statutory authorization. Equally significant is the fact that the\ncourt, although ruling against D orm u\'s motion, did not, in a published opinion, indicate the reasons for its\nruling, so th at its precedential value is extrem ely lim ited. Finally, we cannot fail to note that in the papers\nfiled by the C om m ission in Dormu, the G eneral Counsel did not p roffer a distinction, pressed upon us now by\nthe Legal C ounsel, betw een his authority under \xc2\xa7 2 0 0 0 e-4 (b )(l) and that o f Commission attorneys under\n\xc2\xa7 2000e-4(b)(2). R ather, the General C ounsel, albeit erroneously, considered him self, as the chief attorney\nfor the C om m ission, as deriving authority from both \xc2\xa7\xc2\xa7 2 0 0 0 e-4 (b)(l) and (b)(2).\n\n152\n\n\x0c2. Litigating Authority Acquired by the EEOC Under Reorganization Plan\nNo. 1 of 1978\nIn addition to its enforcement responsibilities under Title VII, in 1978 the\nEEOC assumed enforcement responsibilities relative to several additional fair\nemployment laws \xe2\x80\x94 the Equal Pay Act (EPA), 29 U.S.C. \xc2\xa7 206(d), the Age\nDiscrimination in Employment Act (ADEA), 29 U.S.C. \xc2\xa7\xc2\xa7 621 et seq., the\nRehabilitation Act, 29 U.S.C. \xc2\xa7 791, and Title VII of the Civil Rights Act as\napplied to federal workers, 42 U.S.C. \xc2\xa7 2000e-16. Pursuant to Reorganization\nPlan No. 1 of 1978, all enforcement authority which had been vested previ\xc2\xad\nously in the Administrator of the Wage and Hour Division of the Department of\nLabor, the Secretary of Labor, and the Civil Service Commission regarding\nenforcement of the EPA, the ADEA, the Rehabilitation Act, and Title VII of\nthe Civil Rights Act was transferred to the EEOC. See Reorganization Plan No.\n1 of 1978, 42 U.S.C. \xc2\xa7 2000e-4 note, supra. To the extent that any of those\nstatutes granted independent litigating authority to the persons or agencies\ncharged with their enforcement, a proposition which is the subject of consider\xc2\xad\nable disagreement between the Department of Justice and the EEOC,13 such\nauthority was transferred to the Commission by the 1978 Reorganization Plan.\nWith this understanding of the EEOC\xe2\x80\x99s general litigating authority, we turn\nnow to the specific questions raised in your memorandum to us.\nII. EEOC\xe2\x80\x99S Authority to Conduct Defensive Litigation\nYou have asked us to examine the Commission\xe2\x80\x99s role in defending suits\nbrought \xe2\x80\x9cin connection with [the Commission\xe2\x80\x99s] Federal sector administrative\nenforcement and adjudicative responsibilities\xe2\x80\x9d under Title VII of the Civil\nRights Act, and in actions brought \xe2\x80\x9cby its own employees challenging Com\xc2\xad\nmission personnel decisions.\xe2\x80\x9d As noted above, the Commission\xe2\x80\x99s general\nlitigating authority is derived from two sources: \xc2\xa7 705 of Title VII, 42 U.S.C.\n\xc2\xa7 2000e-4(b), and Reorganization Plan No. 1 of 1978, supra. Because the\nCommission\xe2\x80\x99s Federal sector enforcement authority under Title VII, the EPA,\nthe ADEA, and the Rehabilitation Act was transferred to the EEOC from the\nCivil Service Commission by the 1978 Reorganization, we must examine the\nCivil Service Commission\xe2\x80\x99s litigation authority regarding these statutes prior\nto the Reorganization.\nA. Litigation Authority Inherited from the Civil Service Commission\n\nAlthough the 1978 Reorganization Plan transferred to the EEOC all func\xc2\xad\ntions related to the enforcement of Title VII of the Civil Rights Act against\nfederal government employers which were previously vested in the Civil\n13 See Report o f the Attorney General\xe2\x80\x99s Task Force on Litigating Authority , supra. Com pendium at 40\n(\xe2\x80\x9c [f]or the present tim e, the C ivil Division and the Com m ission have \xe2\x80\x98agreed to disagree\' [about the\nC om m ission\'s independent litigating authority post-1978]").\n\n153\n\n\x0cCommission, see 42 U.S.C. \xc2\xa7 2000e-16, litigation was not among the Civil\nService Commission\xe2\x80\x99s functions under \xc2\xa7 2000e-16.14 Enforcement litigation\nauthority pursuant to \xc2\xa7 2000e-16 was retained by the Attorney General.15\nAlthough \xc2\xa7 2000e- 16(c) provides that \xe2\x80\x9can employee . . . aggrieved by the final\ndisposition of his complaint. . . may file a civil action as provided in section\n2Q00e-5 of this title, in which civil action the head of the department, agency,\nor unit, as appropriate, shall be the defendant,\xe2\x80\x9d whether an agency may repre\xc2\xad\nsent itself in such an action depends upon the nature and scope of the particular\ndefendant agency\xe2\x80\x99s litigating authority.16 As noted above in Part I. A., statutory\ngrants of litigating authority to agencies, in derogation of the Attorney General\xe2\x80\x99s\nplenary authority, must be construed narrowly to permit the exercise of such\nauthority only when clearly and specifically provided for. The EEOC\xe2\x80\x99s litigat\xc2\xad\ning authority under its authorizing statute, 42 U.S.C. \xc2\xa7 2000e-4, is limited, as\ndiscussed above, to the initiation of, and intervention in, civil actions against\nprivate sector employers.\nLikewise, the Civil Service Commission\xe2\x80\x99s functions under the ADEA and\nthe Rehabilitation Act, currently vested by statute in the EEOC, did not include\nlitigation on its own behalf of either an enforcement or a defensive nature.\nSection 633a(b) of Title 29 authorizes the EEOC\nto enforce the provisions of [29 U.S.C. \xc2\xa7 633a](a) [the ADEA as\napplied to federal employees] through appropriate remedies,\nincluding reinstatement or hiring of employees with or without\nback pay, as will effectuate the policies of this section. The\nEqual Employment Opportunity Commission shall issue such\nrules, regulations, orders, and instructions as it deems neces\xc2\xad\nsary and appropriate to carry out its responsibilities under this\nsection.\n\n,4 The C ivil Service Com m ission\'s functions under \xc2\xa7 2000e-16 included, inter alia, the review o f agencies\'\nnational and regional equal em ployment opportunity plans, the prom ulgation o f m les and regulations \xe2\x80\x9cas it\ndeem s n ecessary and appropriate to c arry out its responsibilities under this section,\xe2\x80\x9d and the issuance o f final\nagency o rd ers and appropriate remedies regarding discrim ination com plaints by federal employees.\n15 Section 2000e-16(d) provides th at \xe2\x80\x9c [t]he provisions o f sections 2000e-5(f) through (k) o f this title, as\napplicable, shall govern civil actions b rought hereunder.\xe2\x80\x9d As discussed above, \xc2\xa7 2000e-5 vests litigation\nauthority regarding public sector em ployers, including the federal governm ent, in the Attorney General. This\nvesting o f authority in the Attorney G eneral facilitates th e enforcem ent process by allow ing the Attorney\nG eneral, i f the EEO C is unsuccessful in reaching a satisfactory conciliation agreem ent, to perform the\ndispute- resolution functions delegated to him by the President in Executive O rder 12146, reprinted in 28\nU .S.C . | 509 note, in lieu o f suing o th e r Executive B ranch agencies in court. W ith respect to independent\nagencies, an d other governm ental en tities w ithin the scope o f \xc2\xa7 2000e-16\xe2\x80\x99s coverage which are not a part o f\nthe E xecutive B ranch, the Attorney G en eral may, in his discretion, sue if necessary to achieve a satisfactory\nresult.\n16 W e recognize that in such actions by federal em ployees, the EEO C, w hether o r not it is the defendant\nem p lo y er agency, may be named as a co-defendant because o f its role in processing em ployee com plaints in\nthe adm inistrative process. In such cases the A ttorney G eneral is m ost likely to be representing the defendant\nagency; to perm it the Commission to represent itself in such circum stances, independently o f the A ttorney\nG eneral, w ould create the risk of conflict in the courts as to the position o f the U nited States in such litigation,\ni.e., the E xecutive speaking with two co n flictin g voices.\n\n154\n\n\x0c(Emphasis added.) In addition, the EEOC is required to \xe2\x80\x9cprovide for the\nacceptance and processing of complaints of discrimination in Federal employ\xc2\xad\nment on account of age,\xe2\x80\x9d to receive notices of intent to sue by aggrieved\nindividuals prior to their filing a civil action in federal district court, and to\n\xe2\x80\x9cpromptly notify all persons named therein as prospective defendants in the\naction and take any appropriate action to assure the elimination of any unlawful\npractice.\xe2\x80\x9d 29 U.S.C. \xc2\xa7\xc2\xa7 633a(b)(3), (d). The EEOC\xe2\x80\x99s functions under the\nRehabilitation Act are similarly limited to voluntary conciliation and compli\xc2\xad\nance measures. See id. \xc2\xa7 791.\nWe thus conclude that the Commission lacks the authority to defend itself,\nindependently of the Attorney General, against suits brought under Title VII,\nthe ADEA, and the Rehabilitation Act in connection with its federal sector\nadministrative enforcement and adjudicative responsibilities, including suits\nbrought under those provisions by its own employees challenging Commission\npersonnel decisions. However, this conclusion does not preclude Commission\nattorneys from appearing as co-counsel with Department of Justice Attorneys,\nas is the case with attorneys from other \xe2\x80\x9cclient\xe2\x80\x9d agencies, filing joint briefs, or\notherwise actively participating in the Commission\xe2\x80\x99s defense, so long as such\nactivities are carried out under the general supervisory authority of the Attor\xc2\xad\nney General or his delegees within the Department of Justice.\nB Litigation Authority Inherited From the Secretary of Labor and the Ad\xc2\xad\nministrator of the Wage and Hour Division, Department of Labor\nHaving addressed the question of the Commission\xe2\x80\x99s authority to defend\nitself against suits brought under Title VII, the ADEA and the Rehabilitation\nAct in connection with its federal sector administrative enforcement and adju\xc2\xad\ndicative responsibilities, including suits initiated by its own employees, we\nnow consider the remaining issue of the EEOC\xe2\x80\x99s authority to defend itself in\nsuits arising in connection with its newly acquired enforcement responsibility\nin the private sector under the EPA and the ADEA. As we have seen in the\ncontext of the EEOC\xe2\x80\x99s general litigating authority statute, 42 U.S.C. \xc2\xa7 2000e4, and the authority transferred to the EEOC from the Civil Service Commis\xc2\xad\nsion pursuant to Reorganization Plan No. 1 of 1978, supra, the Commission\xe2\x80\x99s\nauthority to litigate on its own behalf is limited to certain types of enforcement\nactions, as distinguished from matters involving defensive litigation. Likewise,\nto the extent that \xe2\x80\x9clitigating authority\xe2\x80\x9d was vested in the Secretary of Labor and\nthe Administrator of the Wage and Hour Division by the EPA and the ADEA\nand transferred to the Commission by the 1978 Reorganization Plan, a proposi\xc2\xad\ntion regarding which the Department has expressed serious doubts, it was\nstrictly of an offensive enforcement nature and cannot fairly be construed to\nencompass defensive litigation.\nThe Secretary of Labor\xe2\x80\x99s \xe2\x80\x9clitigation\xe2\x80\x9d authority under the EPA and the\nADEA was limited to \xe2\x80\x9cthe filing of a complaint\xe2\x80\x9d and to \xe2\x80\x9cbringing] . . .\naction[s]\xe2\x80\x9d under 29 U.S.C. \xc2\xa7\xc2\xa7 206,207,215 and 217 to redress violations of the\n155\n\n\x0cacts on behalf of aggrieved complainants. 29 U.S.C. \xc2\xa7\xc2\xa7 216(b), (c), 626(b).\nThis Department has consistently taken the position, however, that such lan\xc2\xad\nguage, simply authorizing an agency to \xe2\x80\x9cfile a complaint\xe2\x80\x9d or to \xe2\x80\x9cbring an\naction\xe2\x80\x9d is insufficient to establish independent litigating authority. See Report\no f the Attorney General\xe2\x80\x99s Task Force on Litigating Authority,\xe2\x80\x9d supra\', 6 Op.\nO.L.C. 47, supra. See also IC C v. Southern Railway Co., 543 F.2d 534 (5th Cir.\n1976), a ffd , 551 F.2d 95 (1977) (en banc). Even if these provisions had vested\nlitigating authority in the Secretary of Labor, and by reference, in the EEOC,\nsuch \xe2\x80\x9cauthority\xe2\x80\x9d would be limited to litigation of an offensive, rather than a\ndefensive, nature. Moreover, whatever \xe2\x80\x9clitigation authority\xe2\x80\x9d the Commission\ninherited from the Administrator of the Wage and Hour Division was limited to\n\xe2\x80\x9cappear[ing] for and represent[ing] the [Commission] in any litigation, but all\nsuch litigation shall be subject to the direction and control o f the Attorney\nGeneral.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 204(b) (emphasis added).17\n\nConclusion\nAfter carefully reviewing the EEOC\xe2\x80\x99s authority pursuant to its general\nauthorizing statutes and those pursuant to which it inherited authority from the\nSecretary of Labor, the Administrator of the Wage and Hour Division and the\nCivil Service Commission, we conclude that the Equal Employment Opportu\xc2\xad\nnity Commission lacks the authority to defend itself, independently of the\nAttorney General, in suits brought under Title VII of the Civil Rights Act in\nconnection with its federal sector administrative enforcement and adjudicative\nresponsibilities, as well as in suits brought by its own employees challenging\nCommission personnel decisions. Our conclusion is compelled by the language\nof the statutes authorizing the Commission\xe2\x80\x99s fair employment enforcement\nactivities, as well as the general reservation of litigating authority on behalf of\nthe United States, unless otherwise expressly provided for, to the Attorney\nGeneral, which is mandated by 28 U.S.C. \xc2\xa7\xc2\xa7 516, 519.\nT heodore\n\nB.\n\nO lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n17 N otw ithstanding o u r view that the EEO C did not acquire any litigating authority from the Civil Service\nC om m ission, the Secretary o f Labor o r th e A dm inistrator o f the W age and Hour Division under these statutes\nby o p eration o f the 1978 R eorganization Plan, the EEOC has consistently m aintained that it has authority to\nconduct both offensive and defensive litigation on its ow n behalf under the statutes for which it acquired\nenforcem ent responsibilities. Although th e D epartm ent o f Justice has continued to oppose EE O C \xe2\x80\x99s assertions\no f such claim s, an agreem ent was reached in 1979 betw een the D epartm ent\xe2\x80\x99s Civil D ivision and the\nC om m ission w hereby the Department w ould continue to conduct the defensive litigation on behalf o f the\nC om m ission, w ith appropriate input fro m Com m ission attorneys.\n\n156\n\n\x0c'