               Legality of EEOC’s Class Action Regulations
The Office of Legal Counsel has the authority to resolve the legal questions the Postal Service raised
  with respect to the Equal Employment Opportunity Commission’s class action regulations.
The Equal Employment Opportunity Commission’s class action regulations applicable to administra-
  tive complaints against federal government agencies are not contrary to Title VII in the manners
  suggested by the United States Postal Service: the regulations do not purport to prevent claimants
  from filing actions in federal court; they do not frustrate the statutory exhaustion requirement; and
  they do not forestall the running of the limitations period.

                                                                                September 20, 2004

    MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL
                   UNITED STATES POSTAL SERVICE

   You have asked whether certain class action regulations promulgated by the
Equal Employment Opportunity Commission (“EEOC”) applicable to administra-
tive complaints against federal government agencies are contrary to Title VII of
the Civil Rights Act of 1964. We conclude that they are not inconsistent with Title
VII in the manners you suggest.

                                                  I.

   We begin with a brief overview of the applicable statutory and regulatory pro-
visions at issue. Section 2000e-16 of title 42, U.S. Code, provides that personnel
actions of the federal government, including those of the United States Postal
Service (“USPS”), “shall be made free from any discrimination based on race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a) (2000). Section
2000e-16 then specifically assigns the EEOC the authority to enforce this require-
ment:

        Except as otherwise provided in this subsection, the Equal Employ-
        ment Opportunity Commission shall have authority to enforce the
        provisions of subsection (a) of this section through appropriate rem-
        edies . . . and shall issue such rules, regulations, orders and instruc-
        tions as it deems necessary and appropriate to carry out its responsi-
        bilities under this section.

Id. § 2000e-16(b). In pursuance of this authority, the EEOC has created a detailed
administrative procedure for resolving claims of discrimination by federal
employees or applicants for federal employment, including hearings before
administrative law judges and appeals to the EEOC itself. The complaining
employee or applicant may, subject to conditions, seek relief in the federal courts
if he is dissatisfied with the results of this administrative process. Id. § 2000e-




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                      Legality of EEOC’s Class Action Regulations


16(c). An agency, however, may not seek judicial review of the decisions of the
EEOC. See id. § 2000e-16(b), (c).
    Your specific questions involve the EEOC’s administrative process for resolv-
ing class action complaints. See 29 C.F.R § 1614.204 (2003). This process begins
when an aggrieved individual, after completing a counseling process, files a class
complaint with the agency that allegedly discriminated against him. See id.
§ 1614.204(b), (c). The agency then has thirty days to forward the complaint to the
EEOC, which assigns the complaint to an administrative judge. Id. § 1614.204(d).
The administrative judge first must decide whether to recommend certification of
the class, which he may do if the proposed class meets the requirements of
numerosity, commonality and typicality, and if the complainant who is the
proposed agent for the class will “fairly and adequately protect the interests of the
class.” Id. § 1614.204(a)(2), (d)(2). Once the administrative judge makes his
recommendation, the agency must, within forty days, decide whether or not to
accept the complaint. Id. § 1614.204(d)(7). If the agency dismisses the class
complaint, the complainant may appeal to the EEOC or file a civil action. Id. If the
agency accepts the class complaint, it must notify the class members. Id.
§ 1614.204(e).
    Discovery then begins and lasts not less than sixty days. Id. § 1614.204(f).
Once discovery has concluded, the administrative judge conducts a hearing and
issues a report and recommendations on the merits of the complaint. Id.
§ 1614.204(h), (i). Upon receipt of this report, the agency has sixty days to issue a
“final decision” stating whether it will “accept, reject, or modify the [administra-
tive judge’s] findings.” Id. § 1614.204(j)(1). This “final decision . . . shall, subject
to subpart D of this part [addressing the appeal rights of the complainant and the
agency], be binding on all members of the class and the agency.” Id.
§ 1614.204(j)(6). The agency must then notify the complainants of its final
decision, as well as of their appeal rights under subpart D. Id. § 1614.204(j)(7),
(k). Where the agency has found discrimination, members of the class may then
file claims for individual relief. Id. § 1614.204(l).
    If the class agent or any member who has filed a claim for individual relief is
unsatisfied with the final action of the agency, he may either appeal to the EEOC
or file a civil action in federal court. Id. §§ 1614.401(c), 1614.407. In addition, if
at any time during this process, more than 180 days has passed since the filing of
the initial complaint, an individual or the class may file an action in federal court.
Id. § 1614.407. With respect to appeals to the EEOC, the EEOC has delegated the
responsibility for handling them to the Office of Federal Operations (“OFO”). Id.
§ 1614.403–.405. There is no time limit in which the OFO must act; however, 180
days after the filing of the appeal, the class or a member who has filed a claim for
individual relief may file a civil action in federal court. Id. § 1614.407(d).
Alternatively, the class may await the decision of the OFO and, if dissatisfied, may
file a civil action within ninety days of that decision. Id. § 1614.407(c). The




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agency is not authorized to proceed in federal court should it be dissatisfied with
the results of the administrative process. See id. §§ 1614.407, 1614.502.
    The class agent and the agency may resolve the complaint by written agreement
at any time. Id. § 1614.204(g)(2), (3). Notice of the resolution must be provided to
all class members, who may then petition to have the resolution vacated on the
ground that it is “not fair, adequate and reasonable to the class as a whole.” Id.
§ 1614.204(g)(4). The administrative judge considers these petitions. If he finds
that the resolution is fair, adequate and reasonable, then the resolution binds all
members of the class. Id. If, on the other hand, the administrative judge determines
that the proposed resolution is unfair to the class as a whole, he vacates the
resolution and restarts the adjudicatory process. Id.
    With this statutory and regulatory background in mind, we now turn to the legal
questions presented by your request.

                                         II.

   We first address the EEOC’s arguments that, under Executive Orders 12067
and 12146, we should refrain from resolving the legal questions you raise. For the
reasons explained below, we conclude that neither argument establishes that this
Office lacks the authority to resolve the legal questions here presented.

                                         A.

   The EEOC first argues that section 1-307 of Executive Order 12067 prohibits
this Office from addressing the merits of the legal questions at issue. Section 1-
307(b) provides:

      Whenever a dispute which cannot be resolved through good faith ef-
      forts arises between the Equal Employment Opportunity Commis-
      sion and another Federal department or agency concerning the issu-
      ance of an equal employment opportunity rule, regulation, policy,
      procedure, order or any matter covered by this Order, the Chairman
      of the Equal Employment Opportunity Commission or the head of
      the affected department or agency may refer the matter to the Execu-
      tive Office of the President. Such reference must be in writing and
      may not be made later than 15 working days following receipt of the
      initiating agency’s notice of intent publicly to announce an equal
      employment opportunity rule, regulation, policy, procedure or order.
      If no reference is made within the 15 day period, the decision of the
      agency which initiated the proposed issuance will become effective.

Exec. Order No. 12067, 3 C.F.R. § 208 (1979). The EEOC argues that USPS
“should not be permitted to raise a matter under the general dispute resolution
mechanism of E.O. 12146 that could have and should have been raised under the



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                          Legality of EEOC’s Class Action Regulations


more specific process for resolving disputes between agencies over EEO-related
regulations” set forth in section 1-307(b). Letter for Noel J. Francisco, Deputy
Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni,
Associate Legal Counsel, Equal Employment Opportunity Commission, Re:
EEOC’s Class Complaint Regulation at 2 (Nov. 14, 2003) (“EEOC Letter”).
   We disagree with the EEOC’s interpretation of Executive Order 12067. The
EEOC’s argument appears to rest on the assumption that section 1-307 sets forth
the exclusive mechanism by which an agency may challenge an equal employment
opportunity rule, regulation, policy, procedure or order. Were this true, then, for
example, the only recourse open to an agency that has, after issuance and in light
of practical experience, come to believe that a particular regulation reflects bad
public policy, would be to seek an amendment to the Executive Order. It could not
simply seek to have that regulation withdrawn or amended through ordinary
interagency processes, since, under the EEOC’s view of Executive Order 12067,
such processes would be precluded by operation of section 1-307(b). Nothing in
section 1-307(b) requires such a result. Rather, section 1-307(b) simply establishes
a process that must be followed before a proposed rule or regulation can take
effect. As the last sentence of that section states, “[i]f no reference is made within
the 15 day period, the decision of the agency which initiated the proposed issuance
will become effective.” Section 1-307(b) does not, however, preclude an agency
from challenging a rule or regulation—be it on policy or legal grounds—after the
regulation has been issued.1
   We thus conclude that section 1-307 poses no bar to our addressing the legal
questions you have raised.

                                                   B.

   The EEOC also argues that this Office lacks authority to address the questions
presented under Executive Order 12146. Sections 1-401 and 1-402 of that Order
provide:

        1-4. Resolution of Interagency Legal Disputes

        1-401. Whenever two or more Executive agencies are unable to re-
        solve a legal dispute between them, including the question of which
        has jurisdiction to administer a particular program or to regulate a



   1
     Although we have not previously addressed the issue raised by the EEOC here, we have in the past
responded to requests for opinions that challenged EEOC regulations after they had been issued. See, e.g.,
Authority of the Equal Employment Opportunity Commission to Impose Monetary Sanctions Against
Federal Agencies for Failure to Comply With Orders Issued by EEOC Administrative Judges, 27 Op.
O.L.C. 24 (2003) (discussing whether the EEOC has the authority to award attorney’s fees against an
agency as the EEOC had pursuant to 29 C.F.R. § 1614.109 and Management Directive 110).




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      particular activity, each agency is encouraged to submit the dispute
      to the Attorney General.

      1-402. Whenever two or more Executive agencies whose heads serve
      at the pleasure of the President are unable to resolve such a legal dis-
      pute, the agencies shall submit the dispute to the Attorney General
      prior to proceeding in any court, except where there is a specific
      statutory vesting of responsibility for a resolution elsewhere.

Exec. Order No. 12146, 3 C.F.R. § 411 (1980). The EEOC makes two arguments
with respect to section 1-4 of this Executive Order, both of which we find
unpersuasive.
    First, the EEOC argues that section 1-402 is inapplicable because the Postmas-
ter General “does not serve at the pleasure of the President.” EEOC Letter at 2.
Even if so, section 1-402 does not prevent us from resolving the merits of this
dispute. As we recently explained, section 1-402 does not prohibit an agency from
requesting, or the Attorney General from rendering, an opinion properly requested
pursuant to some other authority, such as section 1-401 of the Executive Order.
See Applicability of Anti-Discrimination Statutes to the Presidio Trust, 28 Op.
O.L.C. 84, 85–90 (2004) (“Presidio Trust”). Rather, “all that section 1-402 does is
establish a requirement that agencies must satisfy before they are permitted to
bring action in court.” Id. at 87. Thus, even if the head of the USPS does not serve
at the pleasure of the President—a question on which we express no view—that
would simply mean that the USPS is not bound by the procedural requirements of
section 1-402. It would not, however, prevent the USPS from seeking our views or
prohibit us from addressing the questions you have raised.
    This brings us to the EEOC’s second argument: that we lack authority to re-
solve this issue under section 1-401 of the Executive Order because there is no
unresolved dispute here within the meaning of that section. In particular, the
EEOC states that “[a]lthough EEOC met with USPS last year to discuss our class
complaint regulation, USPS did not raise any of the specific objections raised in its
August 13 letter [to this Office].” EEOC Letter at 2. Thus, explains the EEOC,
“[n]ot only has there been no attempt to resolve the ‘dispute’ at hand, EEOC did
not learn of USPS’[s] allegation that our class complaint regulation violates Title
VII until we received a copy of their letter from your office.” Id. We would, of
course, encourage agencies to attempt to resolve legal disputes amongst them-
selves prior to seeking the views of this Office. But the failure to do so does not
deprive us of authority under section 1-401 to render an opinion on the legal
questions that USPS has presented. Nothing in section 1-401 establishes a
procedure by which agencies must attempt to resolve a dispute before seeking an
opinion from the Attorney General: all that is required by that section is the
presence of a legal dispute that they have been “unable to resolve.” And here, the
letters to us from the EEOC and the USPS make clear that these agencies have




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                         Legality of EEOC’s Class Action Regulations


been “unable to resolve” the question whether the EEOC’s class action regulations
are contrary to Title VII. Compare Letter for M. Edward Whelan III, Acting
Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons,
Vice President and General Counsel, United States Postal Service, Re: EEOC
Class Actions at 1 (Aug. 13, 2003) (“USPS Letter”) (“The Commission’s class
action regulations are invalid because they are contrary to three fundamental
principles embodied in Title VII of 1964.”), with EEOC Letter at 3 (“We believe
that USPS is misinterpreting our regulation, and disagree with their allegations that
our regulation conflicts with Title VII.”). See also Presidio Trust, 28 Op. O.L.C. at
86 n.4 (noting that “as the submissions to us from the Trust and the EEOC make
clear, the Trust and the EEOC have not resolved their dispute on this broader legal
issue”) (internal citation omitted).
   We therefore reject the view that USPS’s failure to raise with the EEOC the
legal basis for its challenge before coming to us deprives us of the authority to
resolve this ongoing dispute.

                                                III.

   We now turn to the merits of the legal questions you have raised. In particular,
you have challenged the EEOC’s class action regulations as “contrary to three
fundamental principles embodied” in Title VII, the statutory scheme they are
intended to enforce. USPS Letter at 1. First, you state that the regulations purport
to bind complainants to EEOC determinations in violation of their statutory right
to bring an action in federal court once they have exhausted their administrative
remedies. Id. at 1, 2–4. Second, you state that the regulations are inconsistent with
applicable exhaustion requirements because they frustrate the agency’s ability to
resolve administrative complaints and because they create the possibility that class
members will be able to sue in federal court without having filed an administrative
complaint. Id. at 1, 4–7. And third, you state that the regulations are inconsistent
with the applicable statute of limitations, again because, by creating the possibility
that class members will be able to sue in federal court without having filed an
administrative complaint and by failing to provide for notice of final agency action
to non-filing members, they forestall the running of the statutory limitations period
with respect to such members. Id. at 1, 7–8. For the reasons explained below, we
do not believe that the EEOC’s class action regulations are inconsistent with Title
VII in the manners you suggest.2




   2
     Our opinion is limited to whether EEOC’s class action regulations are contrary to the statute on
the three bases you indicate; we do not address here any other possible grounds for challenging the
regulations.




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                                         A.

    Resolution of the legal issues presented here is guided by the administrative law
principles applied by the Supreme Court in United States v. Mead Corp., 533 U.S.
218 (2001), the Court’s recent extended application of the doctrine first set out in
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In
Mead, the Court addressed both the circumstances in which deference under
Chevron is owed to an agency’s implementation of a statute as well as the
substantive scope of that deference.
    With respect to the former, the Court explained that Chevron deference is due
where “the agency’s generally conferred authority and other statutory circum-
stances” suggest that “Congress would expect the agency to be able to speak with
the force of law when it addresses ambiguity in the statute or fills a space in the
enacted law.” Mead, 533 U.S. at 229. Paradigmatic of such circumstances are
“express congressional authorizations to engage in the process of rulemaking or
adjudication that produces regulations or rulings for which deference is claimed.”
Id. As the Court summarized:

      [A]dministrative implementation of a particular statutory provision
      qualifies for Chevron deference when it appears that Congress dele-
      gated authority to the agency generally to make rules carrying the
      force of law, and that the agency interpretation claiming deference
      was promulgated in the exercise of that authority. Delegation of such
      authority may be shown in a variety of ways, as by an agency’s pow-
      er to engage in adjudication or notice-and-comment rulemaking, or
      by some other indication of a comparable congressional intent.

Id. at 226–27; see also id. at 230 (“It is fair to assume generally that Congress
contemplates administrative action with the effect of law when it provides for a
relatively formal administrative procedure tending to foster the fairness and
deliberation that should underlie a pronouncement of such force . . . . Thus, the
overwhelming number of our cases applying Chevron deference have reviewed the
fruits of notice-and-comment rulemaking or formal adjudication.”).
   Notice-and-comment rulemaking, however, is not a prerequisite for Chevron
deference, provided that “it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in the exercise of that authori-
ty,” a delegation, the Court explained, that “may be shown in a variety of ways.”
Id. at 226–27. In Mead, the Court thus observed that “as significant as notice-and-
comment rulemaking is in pointing to Chevron authority, the want of that proce-
dure here does not decide the case, for we have sometimes found reasons for
Chevron deference even when no such administrative formality was required and
none was afforded.” Id. at 230–31. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997)




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                          Legality of EEOC’s Class Action Regulations


(An agency’s “interpretation of [its own regulations] is . . . controlling unless
‘plainly erroneous or inconsistent with the regulation.’ “). And even where an
agency rule does not qualify for Chevron deference, it still may be entitled to
deference under a lesser standard. See Mead, 533 U.S. at 234–35.
   Where Chevron deference is due, the Court explained that the scope of an
agency’s regulatory authority is broad indeed:

        When Congress has ‘explicitly left a gap for an agency to fill, there is
        an express delegation of authority to the agency to elucidate a specif-
        ic provision of the statute by regulation,’ and any ensuing regulation
        is binding in the courts unless procedurally defective, arbitrary or ca-
        pricious in substance, or manifestly contrary to the statute.

Mead, 533 U.S. at 227 (quoting Chevron, 467 U.S. at 843–44); see also id. at 229
(where Chevron deference is due, “a reviewing court has no business rejecting an
agency’s exercise of its generally conferred authority to resolve a particular
statutory ambiguity simply because the agency’s chosen resolution seems unwise,
but is obliged to accept the agency’s position if Congress has not previously
spoken to the point at issue and the agency’s interpretation is reasonable”).
   Here, it is clear that the EEOC’s class action regulations are entitled to Chevron
deference: Congress has specifically authorized the EEOC “to enforce the
provisions of subsection (a) of this section through appropriate remedies . . .
and . . . issue such rules, regulations, orders and instructions as it deems necessary
and appropriate to carry out its responsibilities under this section,” 42 U.S.C.
§ 2000e-16(b), and in furtherance of this authority, the EEOC promulgated these
regulations pursuant to notice-and-comment rulemaking, in which federal
government agencies fully participated. See 57 Fed. Reg. 12,634 (Apr. 10, 1992);
64 Fed. Reg. 37,644 (July 12, 1999).3 It is for this reason, perhaps, that you have
not suggested that these regulations are “procedurally defective” or “arbitrary or
capricious in substance.” Mead, 533 U.S. at 227. The question before us, then, is
whether they are “manifestly contrary to the statute” that they are intended to



    3
      It is true that the Supreme Court has not accorded Chevron deference to certain of the EEOC’s
substantive regulations. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Gen. Elec.
Co. v. Gilbert, 429 U.S. 125, 141 (1976). But that is because “‘Congress, in enacting Title VII, did not
confer upon the EEOC’” such authority. Arabian Am. Oil Co., 499 U.S. at 257 (quoting Gen. Elec. Co.,
429 U.S. at 141). Here, the EEOC’s regulations are procedural in nature, and Congress has expressly
granted the EEOC the authority “to enforce the provisions of subsection (a) of this section through
appropriate remedies . . . and . . . issue such rules, regulations, orders and instructions as it deems
necessary and appropriate to carry out its responsibilities under this section.” 42 U.S.C. § 2000e-16(b).
See also Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002) (noting that “[t]he first [threshold
question] is whether the [EEOC’s] rulemaking exceeded its authority to adopt ‘suitable procedural
regulations,’ 42 U.S.C. § 2000e-12(a), and instead addressed a substantive issue over which the EEOC
has no rulemaking power”) (citations omitted); id. at 122–23 (O’Connor, J., concurring).




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                  Opinions of the Office of Legal Counsel in Volume 28


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

                                           B.

   You have asserted three ways in which you believe that the EEOC’s class
action regulations are contrary to Title VII. We address each in turn.

                                           1.

    You first state that the EEOC’s regulations are inconsistent with Title VII
because they purport to “bind” complainants when, pursuant to the statute,
complainants may proceed in federal court if they are dissatisfied with the results
of the administrative proceeding. USPS Letter at 1, 2–4. In particular, you note
several portions of the class action regulations that state or suggest that class
members are “bound” by the results of the administrative proceeding, including 29
C.F.R. § 1614.204(e)(2)(iii) (requiring the agency to provide complainants with
“[a]n explanation of the binding nature of the [agency’s] final decision or resolu-
tion of the complaint on class members”), 29 C.F.R. § 1614.204(g)(4) (“If the
administrative judge finds that the resolution [of the complaint by the agency and
the agent of the class] is fair, adequate and reasonable to the class as a whole, the
resolution shall bind all members of the class.”), and 29 C.F.R. § 1614.204(j)(6)
(“A final decision on a class complaint shall, subject to subpart D of this part, be
binding on all members of the class and the agency.”). See USPS Letter at 2 (citing
the foregoing authorities); see also id. at 2 n.5 (citing EEOC Management Direc-
tive (“MD”) 110, ch. 8, § V.C (“The class members may not ‘opt out’ of the
defined class”), available at http://www.eeoc.gov/federal/md110/chapter8.html
(last visited Sept. 14, 2004)). In contrast, you note that Title VII expressly provides
that “an employee or applicant for employment, if aggrieved by the final disposi-
tion of his complaint . . . may file a civil action” in federal district court. 42 U.S.C.
§ 2000e-16(c). It is your view that the former regulatory provisions are incon-
sistent with the latter statutory one.
    We disagree. If the cited regulations purported to preclude a complainant from
filing a civil action in federal district court, then your assertion might have merit.
But they do not. Quite to the contrary, the regulations expressly permit the filing of
an action by a complainant in federal court once administrative remedies are
exhausted. They thus expressly provide that “[a] final decision on a class com-
plaint shall, subject to subpart D of this part, be binding on all members of the
class and the agency.” 29 C.F.R. § 1614.204(j)(6) (emphasis added). Subpart D, in
turn, details, in relevant part, the manner in which the complainant may file a civil
action in federal district court. Id. § 1614.401–.409. In particular, subpart D autho-
rizes class agents and class members who have “filed an individual complaint [or]
a claim for individual relief pursuant to a class complaint” to file an action directly




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                          Legality of EEOC’s Class Action Regulations


in federal court either within ninety days of receipt of notice of final agency action
or 180 days after the date of filing the class complaint. Id. § 1614.407(a), (b). The
regulation also recognizes the right to file a complaint in federal district court
following the completion of the EEOC appeals process or 180 days after the filing
of the appeal. Id. § 1614.407(c), (d).
    To be sure, several of the EEOC’s regulations refer to various aspects of the
administrative process as “binding” complainants. But read in context—particular-
ly in the context of the regulatory provisions expressly authorizing a complainant
to bring a civil action in federal district court—it is evident that these references
mean only that complainants are “bound” insofar as the administrative process is
concerned.4 Indeed, one of the regulations that you cite expressly so recognizes.
See id. § 1614.204(j)(6) (“A final decision on a class complaint shall, subject to
subpart D of this part, be binding on all members of the class and the agency.”)
(emphasis added); see also id. § 1614.204(j)(7) (“The final decision shall inform
the agent of the right to appeal or to file a civil action in accordance with subpart
D of this part and of the applicable time limits.”) (emphasis added). And the other
regulatory provisions that you cite in no way purport to close the federal court
avenue that other regulatory provisions (and the statute) expressly recognize as
open. In short, as the EEOC acknowledges, its “regulation is binding in the admin-
istrative, not the judicial, process.” EEOC Letter at 4.
    It may well be, as you state in your letter, that “[t]he Commission’s intent to
bind agencies to a class action process that cannot bind class members is contrary
to the proper purpose of class action regulations,” USPS Letter at 3, and we
recognize that the ability of dissatisfied class members to bring suit in federal court
may significantly hamper an agency’s ability to resolve complaints on a truly
class-wide basis. But the distinction between complainants and agencies is drawn
in Title VII itself, which guarantees a right to proceed in federal court only to
complainants. See 42 U.S.C. § 2000e-16(c). Nor are we entitled to second-guess
EEOC policy choices made within the bounds of the law. It is the EEOC, and not
this Office or the USPS, that Congress directed to “issue such rules, regulations,
orders and instructions as it deems necessary and appropriate to carry out its
responsibilities under this section.” 42 U.S.C. § 2000e-16(b) (emphasis added).



    4
      This conclusion is true even with respect to an individual who did not file an administrative
complaint that, had it been filed, would have been subsumed within a class complaint. If the EEOC
were to reject the class complaint on the merits, and this individual were then to file an administrative
complaint, then the individual likely would be “bound” by the EEOC’s prior decision in the administra-
tive context. In other words, the EEOC likely would reject this individual’s complaint under principles
of res judicata. See 29 C.F.R. § 1614.107(a)(1); id. § 1614.204(d)(2). Nothing in the EEOC’s regula-
tions, however, prohibits this individual from then proceeding to file an action in federal court.
Likewise, nothing in those regulations prohibits a class member from filing a civil action if he is
dissatisfied with a resolution of a class complaint approved by the administrative judge in accordance
with 29 C.F.R. § 1614.204(g).




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                                                 2.

   You next assert that the EEOC’s class action regulations frustrate the ability of
agencies to resolve claims within the 180-day period that Congress prescribed.
USPS Letter at 1, 4–7. You thus explain that, in your view, 42 U.S.C. § 2000e-
16(c) reflects Congress’s intention that an agency have the opportunity to resolve
an employment discrimination claim within 180 days. That statutory provision
provides that a complainant may file a civil action in federal district court “after
one hundred and eighty days from the filing of the initial charge with the depart-
ment, agency, or unit . . . if aggrieved by the final disposition of his complaint, or
by the failure to take final action on his complaint.” Id. The EEOC’s class action
regulations, you explain, frustrate an agency’s ability to resolve a claim within this
180-day period in two distinct ways. We address each separately and conclude that
neither demonstrates an inconsistency between the regulations and 42 U.S.C.
§ 2000e-16.

                                                 a.

    The first way in which you believe that the EEOC’s class action regulations are
inconsistent with 42 U.S.C. § 2000e-16(c)’s 180-day period is that, where the
administrative judge takes longer than 180 days to decide whether to certify a
class, the practical effect of the regulations is to prevent an agency from consider-
ing the merits of individual claims of discrimination until after the 180-day period
has run. In particular, MD 110 states that an “agency shall, within thirty (30) days
of receipt of a decision dismissing a class complaint, . . . process . . . each individ-
ual complaint that was subsumed into the class complaint.” MD 110, ch. 8,
§ III.C.5 Since the regulations prescribe no time limit for the administrative judge’s
decision, it is possible that such decision will not issue until shortly before or even
after the 180-day period has run. If so (and for purposes of this opinion, we will
assume arguendo that this is a common scenario), then it is your contention that an
individual complainant will be authorized to file a civil action in federal district
court before the agency has ever had an opportunity to resolve the claim adminis-
tratively.
    The premise of this argument is that 42 U.S.C. § 2000e-16(c) accords an agen-
cy the right to address a complaint during the 180-day period. Even assuming



    5
      Unlike the EEOC’s regulations, MD 110 was not promulgated pursuant to notice-and-comment
rulemaking. We need not decide whether it is entitled to Chevron deference, however, because, for the
reasons set forth in text, we believe it clear that the quoted provision is consistent with 42 U.S.C.
§ 2000e-16(c)’s 180-day rule, see Edelman, 535 U.S. at 114 (“Because we so clearly agree with the
EEOC, there is no occasion to defer and no point in asking what kind of deference, or how much.”),
and because the USPS has identified no other basis upon which the portion of the management
directive that it cites could be called into question.




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arguendo that this interpretation of that provision is an accurate one,6 there simply
is nothing in EEOC regulations or MD 110 that precludes an agency from acting
upon a class complaint or an individual complaint subsumed therein within the
180-day period, regardless of whether an administrative judge has rendered the
class certification decision. With respect to individual complaints, the EEOC
regulations generally require an agency to act within 180 days. See 29 C.F.R.
§ 1614.108(e). All that MD 110 does is relieve the agency of this obligation with
respect to class complaints and individual complaints subsumed therein, replacing
it with the obligation to act “within thirty (30) days of receipt of a decision
dismissing a class complaint.” MD 110, ch. 8, § III.C. Nothing in the regulations
or MD 110, however, prohibits the agency from acting sooner, as the EEOC
acknowledges. See EEOC Letter at 6–7 (“[T]he agency can always attempt to
resolve the class complaint during the first 180 days that it is pending.”).7

                                                    b.

   Second, you believe that individuals who do not file administrative complaints
may, under the EEOC’s regulations, be entitled to initiate a civil action in federal
district court, again preventing the agency from ever having an opportunity to
resolve that complaint administratively. This argument, as we understand it, is
predicated on the notion that an individual who, had he filed an administrative
complaint, would have been subsumed into the certified class, but who does not in
fact file an administrative complaint, would be allowed to initiate a suit in district
court in the same manner as those class members who did file administrative
claims. This argument, again, as we understand it, is predicated upon the so-called
“single-filing rule,” pursuant to which lower federal courts have allowed an
individual who did not file an administrative complaint to join the civil suit of
another individual who did exhaust the administrative process, where the claims of
the two individuals are sufficiently similar. See, e.g., Snell v. Suffolk Cnty., 782
F.2d 1094, 1100–02 (2d Cir. 1986); De Medina v. Reinhardt, 686 F.2d 997, 1012–
13 (D.C. Cir. 1982); Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1380–81 (11th
Cir. 1983); Greene v. City of Boston, 204 F. Supp. 2d 239, 241–43 (D. Mass.
2002).

   6
      It is not at all clear that this assumption is a correct one. The EEOC argues that 42 U.S.C.
§ 2000e-16(c) is simply a “restriction on the employee’s right to file suit,” EEOC Letter at 5; it does
not, in other words, entitle or require an agency to do anything. We need not resolve this issue,
however, because even assuming arguendo that USPS’s characterization of section 2000e-16(c) is
correct, it is not in conflict with EEOC’s class action regulations.
    7
      It is true that some EEOC administrative decisions suggest that the normal course of action is for
an agency to consider the merits of the complaint after the certification issue is decided. See, e.g.,
Fosnacht v. Apfel, Appeal No. 01992528, 2000 WL 361743 (EEOC Mar. 29, 2000); Travis v. Potter,
Appeal No. 01992222, 2002 WL 31359446 (EEOC Oct. 10, 2002). These decisions, however, did not
address whether, much less hold that, an agency is prohibited from acting until after it receives the class
certification decision.




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    Again, however, this argument points to no inconsistency between the EEOC’s
class action regulations and Title VII. The only individuals EEOC’s class action
regulations specifically authorize to initiate an action in federal court are those
who file individual complaints, those who file class complaints, and those who
have filed a claim for individual relief pursuant to a class complaint. See 29 C.F.R.
§ 1614.407 (“A complainant who has filed an individual complaint, an agent who
has filed a class complaint or a claimant who has filed a claim for individual relief
pursuant to a class complaint is authorized . . . to file a civil action in an appropri-
ate United States District Court.”). Nothing in these regulations authorizes
individuals who do not file administrative complaints or claims for individual
relief to bring civil actions in federal court; it therefore follows that nothing in
these regulations authorizes an individual to bring a civil action notwithstanding
the exhaustion requirement set out in 42 U.S.C. § 2000e-16(c), which, as we have
explained, authorizes an individual to bring a civil action only 180 days after he
has filed an administrative complaint. And significantly, the EEOC itself seems to
accept this view of its regulations, explaining to us:

        Our regulations only recognize suit rights for class members who file
        individual complaints, class complaints, or individual claims for re-
        lief under a class complaint. Therefore, if class certification is denied
        or class discrimination is not found, those individuals who did not
        file individual complaints may have lost the ability to file suit. In
        other words, filing an individual complaint is the only way for a po-
        tential class member to ensure his or her right to sue with certainty.

EEOC Letter at 6.
   It is true that under the so-called “single-filing rule,” some courts have allowed
an individual who did not file an administrative complaint to join the civil suit of
another individual who did exhaust the administrative process, where the claims of
the two individuals are sufficiently similar. But even assuming that courts would
extend this rule in the manner that you suggest—such that an individual who did
not file an administrative complaint but whose claim, had it been filed administra-
tively, would have fallen within the class, could initiate a civil action in federal
district court to the same extent as a class member who did file an administrative
complaint8—the result would still point to no inconsistency between 42 U.S.C.
§ 2000e-16(c) and the EEOC’s class action regulations. The single-filing rule does
not rest on an interpretation of EEOC regulations; rather, it rests on an interpreta-
tion of 42 U.S.C. § 2000e-16(c) or other analogous provisions—one in which the
statutes have been construed to permit an individual who did not exhaust his


   8
      But see Commc’n Workers of Am. v. N.J. Dep’t of Personnel, 282 F.3d 213, 218 (3d Cir. 2002)
(“[I]f plaintiffs choose to bring suit individually, they must first satisfy the prerequisite of filing a
timely EEOC charge.”) (citation and quotation omitted).




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administrative remedies to piggyback upon an individual who did. See, e.g., Snell,
782 F.2d at 1100–02 & n.7; Greene, 204 F. Supp. 2d at 240. The EEOC’s regula-
tions do not expressly expand the single-filing rule in the manner you suggest, and
to the extent that the courts may construe them to do so, the courts would construe
them so as to be consistent with—not to conflict with—the statute. (Conversely,
were it determined that 42 U.S.C. § 2000e-16(b) does not permit the single-filing
rule to be extended in the manner that you suggest, we have little doubt that the
regulations too would be similarly construed.9)
    Accordingly, the possibility you have presented—that an individual would be
permitted to initiate an action in federal court without ever having to file an
administrative complaint—again points to no inconsistency between the statute
and EEOC’s regulations in implementation thereof.

                                                   3.

    Finally, you contend that EEOC’s class action regulations are inconsistent with
the limitations period set forth in 42 U.S.C. § 2000e-16(c), which allows a
complainant to file a civil action in federal district court only within ninety days of
receipt of notice of final agency or EEOC action. As you note, this ninety-day
period does not begin to run until “receipt of notice of final action” on a complaint
of discrimination. 42 U.S.C. § 2000e-16(c). But, you state, under the EEOC’s
regulations, not all members who have a right to bring suit in federal court will
receive the required notice; these class members who never receive notice,
therefore, will be entitled to bring suit in federal court even after the ninety-day
period. USPS Letter at 7.
    Under the EEOC’s regulations, however, every complainant who files an ad-
ministrative claim will receive the requisite notice of final agency or EEOC action.
If the class is certified, then “[t]he agency shall notify class members of the final
decision and relief awarded, if any.” 29 C.F.R. § 1614.204(k). If the class is not
certified, then, in addition to notifying the class agent, id. § 1614.204(d)(7), the
agency “shall, within thirty (30) days of receipt of a decision dismissing a class
complaint . . . issue the acknowledgment of receipt of an individual complaint . . .
and process . . . each individual complaint that was subsumed into the class
complaint,” MD 110, ch. 8, § III.C. And if the class complaint is settled, “[n]otice
of the resolution shall be given to all class members . . . [including notification]
that . . . any member of the class may petition the administrative judge to vacate

    9
      To the extent your argument is based on case law arising under Rule 23 of the Federal Rules of
Civil Procedure (and hence, outside of the administrative context), see, e.g., USPS Letter at 6 & n.29,
we believe it fails for the same reason. If such case law were extended to permit an individual who fails
to satisfy the administrative exhaustion requirement nevertheless to file suit in federal court, this
apparently unprecedented application of Rule 23 case law would necessarily be predicated upon an
interpretation of Title VII and regulations that rendered them consistent, rather than in conflict with,
one another.




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                 Opinions of the Office of Legal Counsel in Volume 28


the resolution.” 29 C.F.R. § 1614.204(g)(4). Every individual who files an admin-
istrative complaint, in other words, will receive notice of final agency action and
thus will be fully subject to 42 U.S.C. § 2000e-16(c)’s ninety-day limitation
period. See also EEOC Letter at 7 (“The regulation requires notice to all individu-
als except those potential members of a class that was not certified who did not file
individual complaints.”).
    That leaves only individuals who do not file an administrative complaint. But
with respect to these, your arguments fail for the same reasons discussed in Part
II.B.2.b, supra: First, the regulations on their face only authorize those individuals
who have filed an administrative complaint to bring suit in federal court; these
individuals, we have explained, will receive notice and thus will be subject to the
ninety-day period. And second, to the extent that courts would allow individuals
who have not filed administrative claims to bring suit in federal court notwith-
standing 42 U.S.C. § 2000e-16(c), this result would follow from a construction of
the statute itself, not a construction of the regulations that would render them
inconsistent with the statute.

                                         IV.

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

                                              NOEL J. FRANCISCO
                                          Deputy Assistant Attorney General
                                              Office of Legal Counsel




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