                The Authority of the Equal Employment
               Opportunity Commission to Order a Federal
              Agency to Pay a Monetary Award to Remedy a
                   Breach of a Settlement Agreement
 Based on principles of sovereign immunity, the Equal Employment Opportunity Commission lacks
  authority to order the Social Security Administration to pay a monetary award as a remedy for
  breach of a settlement agreement entered to resolve a dispute under Title VII of the Civil Rights Act
  of 1964.

                                                                                    August 13, 2014

                  MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                       SOCIAL SECURITY ADMINISTRATION

   This memorandum responds to your letter of March 28, 2013, requesting our
views on the authority of the Equal Employment Opportunity Commission
(“EEOC”) to order the Social Security Administration (“SSA”) to pay a monetary
award as a remedy for breach of a settlement agreement entered to resolve a
dispute under Title VII of the Civil Rights Act of 1964.1 We conclude, based on
principles of sovereign immunity, that EEOC lacks authority to order SSA to pay
such a monetary award for breach of the settlement agreement.

                                                  I.

   Title VII of the Civil Rights Act of 1964 prohibits employment discrimination
based on race, color, religion, sex, and national origin. 42 U.S.C. § 2000e-2(a)
(2012). A provision of Title VII extends this prohibition to employment by the
federal government. Title VII’s federal-sector provision states that “[a]ll personnel
actions affecting employees or applicants for employment . . . in executive

    1
      Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel
(“OLC”), from David Black, General Counsel, Social Security Administration, Re: Equal Employment
Opportunity Commission’s Monetary Award Authority (Mar. 28, 2013). In considering SSA’s request,
we received additional views from that agency. See E-mail for OLC from Andrew Maunz, Office of the
General Counsel, Social Security Administration, Re: Additional Questions (June 14, 2013) (“Maunz
E-mail”); E-mail for OLC from Jay Ortis, Director, Labor and Employment Division, Office of General
Law, Social Security Administration, Re: Fwd: Solicitation of Views (July 17, 2013 9:58 AM). We also
obtained the views of EEOC and the Civil Division of the Department of Justice. See Letter for John E.
Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, Legal
Counsel, Equal Employment Opportunity Commission, Re: Social Security Administration Request for
OLC Opinion (July 2, 2013; E-mail for OLC from Gary Hozempa, Office of Legal Counsel, Equal
Employment Opportunity Commission, Re: EEOC Breach of Settlement Decisions re Social Security
Administration (July 23, 2013 2:16 PM); E-mail for OLC from Kerry A. Bollerman, Civil Division,
Department of Justice, Re: Solicitation of Views (May 14, 2013 5:20 PM).




                                                  1
                 Opinions of the Office of Legal Counsel in Volume 38


agencies . . . shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” Id. § 2000e-16(a). Congress authorized EEOC
“to enforce the provisions of [section 2000e-16(a)] through appropriate remedies,
including reinstatement or hiring of employees with or without back pay.” Id.
§ 2000e-16(b). In addition, Congress authorized EEOC to “issue such rules,
regulations, orders and instructions as it deems necessary and appropriate to carry
out its responsibilities under [section 2000e-16].” Id.
    Title VII and EEOC regulations set out a procedure for the filing, processing,
and adjudication of complaints of unlawful discrimination in federal employment.
The regulations, however, reflect a preference for voluntary settlement of discrim-
ination complaints, see 29 C.F.R. § 1614.603 (2013), and treat settlement agree-
ments as binding on the parties, id. § 1614.504(a). If a complainant believes that
the respondent agency has failed to comply with the agreement, the regulations
allow the complainant to “request that the terms of the settlement agreement be
specifically implemented or, alternatively, that the complaint be reinstated for
further processing from the point processing ceased.” Id. If EEOC determines that
the agency is not in compliance with the settlement agreement, the regulations
provide that EEOC may “order . . . compliance with the . . . settlement agreement,
or, alternatively, . . . order that the complaint be reinstated for further processing
from the point processing ceased.” Id. § 1614.504(c). The regulations further
provide that “allegations that subsequent acts of discrimination violate a settlement
agreement shall be processed as separate complaints . . . rather than [through
actions to enforce the settlement].” Id.
    In 1995, a group of African-American male employees working in the Balti-
more, Maryland headquarters of SSA filed a class complaint alleging that the
agency had discriminated against them with respect to promotions, awards,
bonuses, and other personnel decisions. EEOC certified the class in 1998. The
parties subsequently decided to settle their dispute and entered into an agreement
under which the class members received monetary and non-monetary relief in
exchange for dismissing their complaint. See Settlement Agreement, Burden v.
Barnhart, EEOC Case No. 120-99-6378X (Jan. 11, 2002) (“Settlement Agree-
ment”). The Settlement Agreement made clear that it did not “represent an
admission of liability by [SSA].” Id. at 20.
    Pertinent here, Provision III.D of the Settlement Agreement, which appears
under the heading “Non-Monetary Relief,” reads in relevant part:

       [SSA] agrees that its policies and practices for granting performance
       awards and Quality Step Increases will be fair and equitable and
       consistent with merit principles. [SSA] agrees that it will correct any
       misapplications of its policies for granting performance awards and
       Quality Step Increases to ensure fair and equitable distribution of
       such awards, consistent with merit principles. At [SSA’s] discretion,



                                          2
          Authority of EEOC to Order Federal Agency to Pay Monetary Award


      an expert may be retained to recommend ways to assess these poli-
      cies and practices and to ensure compliance with relevant statutes,
      regulations, EEO principles, and applicable collective bargaining
      agreements in [SSA’s] awards process. Any corrections [SSA] im-
      plements will be made after providing a 30-day notice and comment
      period to the Oversight Committee. [SSA] will provide a report to
      the Administrative Judge within 6 months of the Effective Date of
      this agreement of the actions it has taken to comply with this para-
      graph.

Id. at 10. The Settlement Agreement provided that the Administrative Judge
(“AJ”) would “retain jurisdiction over this matter for a period of 4 years” to
monitor compliance with the agreement. Id. at 6.
   In 2005, the class contended that SSA had not fulfilled its obligation to correct
“misapplications of its policies for granting performance awards and Quality Step
Increases.” The class accordingly requested that the agency provide a “corrective
action plan.” Letter for John E. Bies, Deputy Assistant Attorney General, Office of
Legal Counsel, from Peggy R. Mastroianni, Legal Counsel, Equal Employment
Opportunity Commission, Re: Social Security Administration Request for OLC
Opinion at 2 (July 2, 2013) (“EEOC Letter”). SSA responded that the expert
analysis on which the class premised its request was flawed, and promised to hire
another expert. Id.
   SSA delivered a second expert report to the class in 2006. That report showed
underrepresentation of African-American males in the distribution of Quality Step
Increases (“QSIs”), cash awards, and honor awards in certain SSA offices. In a
September 2006 letter, SSA set forth a plan to address the areas of concern
identified in the report and to prevent future disparities.
   The class subsequently requested that the AJ find that SSA was not in compli-
ance with the Settlement Agreement, arguing that the agency had not offered a
plan to correct all of the disparities revealed in the second expert report. See
Jefferson v. Astrue, Hearing No. 120-99-6378X, slip op. at 11 (Apr. 28, 2011)
(“OFO Decision”). The judge denied the motion as moot because SSA had
provided the statistical information the class demanded. Id. at 12.
   The complainants appealed the AJ’s decision to EEOC’s Office of Federal
Operations (“OFO”). In their appeal, the class members requested specific
implementation of Provision III.D, which, they argued, included retroactive
awards and Quality Step Increases for class members who had been unfairly
denied those benefits. Class Brief in Support of Appeal at 13–14, Burden v.
Astrue, EEOC Case No. 120-99-6378X (May 20, 2008) (“Class Brief in Support
of Appeal”). SSA, on the other hand, took the position that implementation of
Provision III.D did not include retroactive awards and Quality Step Increases. The
Settlement Agreement, the agency contended, did not authorize prospective relief



                                         3
                 Opinions of the Office of Legal Counsel in Volume 38


for any alleged breach; while SSA had agreed to ensure that its policies for
awarding promotions and other honors would be fair and equitable and to correct
any misapplications of its policies, it had not agreed that the distribution of such
benefits would be mathematically exact, or that the class members would be
entitled to relief in the event they disagreed with the distribution of awards.
Agency’s Response to Class’ Brief on Appeal at 8–10, Burden v. Astrue, EEOC
Case No. 120-99-6378X (May 20, 2008) (“Agency’s Response to Class’ Brief on
Appeal”).
   OFO, acting on behalf of the Commission, reversed the AJ’s decision. Relying
on the 2006 expert report, OFO found that “the Agency did not ensure that its
policies and practices for granting performance awards and QSIs were fair and
equitable between April 1, 2003 and September 30, 2005.” OFO Decision at 18.
OFO further found that SSA had failed to correct misapplications of its policies to
ensure fair and equitable distribution of awards. OFO explained that there was no
evidence to show that the policies and procedures described in SSA’s September
2006 letter had been implemented or that the agency had effectively corrected the
misapplication of its policy for granting performance awards and QSIs. See id. at
19.
   Based on these conclusions, OFO determined that the complaining class mem-
bers were “entitled to specific enforcement of the class settlement agreement.” Id.
OFO then ordered that “all African-American males working for the Agency’s
Headquarters Office in Baltimore, Maryland from April 1, 2003, through Septem-
ber 30, 2005, [be] presumptively entitled to the average honor award, monetary
award, and QSI received during the relevant time.” Id. OFO added that “the
presumption of entitlement to the average honor award, monetary award, and QSI
can be rebutted if the Agency can establish by clear and convincing evidence that
an employee is not entitled to this relief.” Id. OFO remanded the case to an
administrative judge to oversee the processing of relief, including calculating the
total and individual amounts due. Id. at 20.
   SSA sought reconsideration of the decision, arguing that the relief awarded
exceeded the scope of EEOC’s authority. OFO denied the motion. Jefferson v.
Astrue, Hearing No. 120-99-6378X (Dec. 18, 2012). SSA then submitted its
request for the views of this Office on whether EEOC had authority to order the
agency to pay a monetary award for breach of a settlement agreement, contending
that the absence of an applicable waiver of sovereign immunity precludes EEOC
from ordering SSA to pay such a monetary award.




                                          4
          Authority of EEOC to Order Federal Agency to Pay Monetary Award


                                          II.

                                          A.

    The question whether EEOC has authority to issue a monetary award to remedy
a breach of a settlement agreement by a federal agency turns on the doctrine of
sovereign immunity, which bars suit against the federal government except to the
extent it has consented. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Consent to suit
must be provided by Congress explicitly, in clear statutory language; ambiguous
statements will not suffice. See Lane v. Pena, 518 U.S. 187, 192 (1996); see also
United States v. Shaw, 309 U.S. 495, 500–01 (1940) (explaining that “without
specific statutory consent, no suit may be brought against the United States. No
officer by his action can confer jurisdiction”). Waivers of sovereign immunity are
“strictly construed, in terms of [their] scope, in favor of the sovereign.” Lane, 518
U.S. at 192. Waivers for one type of relief, such as injunctive relief, do not thereby
waive immunity for other forms of relief, such as money damages. See id. at 195–
96; United States v. Nordic Village, 503 U.S. 30, 34–37 (1992) (relying on
sovereign immunity principles to construe statutory waiver of sovereign immunity
to permit equitable but not monetary claims); cf. Library of Congress v. Shaw, 478
U.S. 310, 317–19 (1986) (statutory waiver of immunity from attorney’s fees does
not thereby waive immunity from interest on those fees). Rather, “[t]o sustain a
claim that the Government is liable for awards of monetary damages, the waiver of
sovereign immunity must extend unambiguously to such monetary claims.” Lane,
518 U.S. at 192. We have previously explained that a statutory provision “does not
waive sovereign immunity for monetary claims” where the provision can plausibly
be read in a manner that would not authorize monetary relief. 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, 26–27 (2003) (“Navy Opinion”) (citing
Availability of Money Damages Under the Religious Freedom Restoration Act, 18
Op. O.L.C. 180, 180 (1994)). The rule that suit is permitted only on the terms
Congress has authorized extends as well to matters of forum; a waiver of immuni-
ty for suits in one forum does not necessarily constitute a waiver in all forums. See
Shaw, 309 U.S. at 501 (“Even when suits [against the United States] are author-
ized[,] they must be brought only in designated courts.”).
    As we observed in a prior opinion, “[a]lthough most of the sovereign immunity
case law arises in the context of suits before federal district courts, these principles
apply with equal force to agency adjudications.” Navy Opinion, 27 Op. O.L.C. at
27. “In our view, there can be no doubt that normal sovereign immunity presump-




                                           5
                     Opinions of the Office of Legal Counsel in Volume 38


tions apply” to the question whether an agency can itself grant a particular form of
relief against the government. Id. at 28.2
    In 2003, we considered whether the statute conferring authority on EEOC to
enforce Title VII’s federal-sector provision through “appropriate remedies,” 42
U.S.C. § 2000e-16(b), supplied the requisite waiver of sovereign immunity to
support an order of attorney’s fees against an agency as a sanction for failure to
follow an administrative judge’s orders. We concluded that it did not. We
observed that section 2000e-16(b) waives federal agencies’ immunity from suits
seeking remedies for unlawful discrimination, but “[a]ttorney’s fees imposed as a
sanction for failure to comply with AJ orders relating to the adjudicatory pro-
cess . . . are not a remedy for any act of discrimination.” Navy Opinion, 27 Op.
O.L.C. at 29. We further explained that “neither section 2000e-16(b), nor any
other statute, contains a provision that even pertains to violations of AJ orders,
much less provides an explicit waiver of the government’s immunity to monetary
sanctions for violations of such orders.” Id. Finally, we rejected EEOC’s argument
that the Federal Rules of Civil Procedure supplied the necessary waiver. “[E]ven if
Congress had waived sovereign immunity for violations of the Federal Rules of
Civil Procedure in federal court,” we explained, “it would not follow that it has
also waived immunity for arguably analogous (though formally distinct) violations
before an entirely different body where these rules do not apply.” Id. at 31.
“Indeed, . . . the doctrine of sovereign immunity requires the exact opposite
presumption.” Id.

                                                  B.

    Within this framework, we consider EEOC’s authority to award the monetary
relief at issue in this case. Our 2003 opinion, SSA argues, compels the conclusion
that EEOC may not issue such an award absent an express waiver of sovereign
immunity. No such waiver exists, the agency urges, because Title VII waives the
government’s immunity only for damage awards upon a finding of unlawful
discrimination, and the Settlement Agreement included no admission of liability.
Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of Legal
Counsel, from David Black, General Counsel, Social Security Administration, Re:
Equal Employment Opportunity Commission’s Monetary Award Authority at 3
(Mar. 28, 2013) (“SSA Memorandum”).

    2
      In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court suggested in dicta that “ordinary
sovereign immunity presumptions” may not apply to the question whether an agency may grant relief
against the government when Congress has unambiguously waived sovereign immunity with respect to
that form of relief for claims brought in district court. Id. at 217. In our 2003 opinion, we disagreed
with that suggestion, observing that “‘[i]t is settled law that a waiver of sovereign immunity in one
forum does not effect a waiver in other forums.’” Navy Opinion, 27 Op. O.L.C. at 27–28 (quoting
West, 527 U.S. at 226 (Kennedy, J., dissenting)).




                                                  6
          Authority of EEOC to Order Federal Agency to Pay Monetary Award


    EEOC responds that our 2003 opinion is inapposite because the Commission
did not impose sanctions on SSA for failing to comply with an AJ’s order. Rather,
“the relief awarded . . . pertains only to SSA’s breach of an EEOC settlement
agreement.” EEOC Letter at 10. In the past, EEOC observes, we have held that
“an agency can award through a settlement agreement any relief which a court
could order if a finding of prohibited discrimination were made.” Id. (citing
Proposed Settlement of Diamond v. Department of Health and Human Services,
22 Op. O.L.C. 257, 262 (1998) (“Diamond Opinion”)); see also Authority of
USDA to Award Monetary Relief for Discrimination, 18 Op. O.L.C. 52, 53 (1994)
(“USDA Opinion”). In EEOC’s view, it follows that, “when an agency breaches
an EEO settlement, EEOC can order as relief whatever a court could award upon a
finding of a breach.” EEOC Letter at 10. Hence, the Commission asserts, if a court
may order monetary relief upon finding that an agency has breached a Title VII
settlement, so too can EEOC.
    EEOC does not appear to dispute that the waiver of sovereign immunity in
Title VII applies only to claims of unlawful discrimination and does not extend to
monetary claims against the government for breach of a Title VII settlement. See
EEOC Letter at 5 & n.2. Rather, EEOC argues that courts may award money
damages for breach of a settlement agreement under the Tucker Act, which waives
the government’s sovereign immunity with respect to claims “founded . . . upon
any express or implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1)
(2012). EEOC notes that in Holmes v. United States, 657 F.3d 1303 (Fed. Cir.
2011), the Federal Circuit determined that the Court of Federal Claims may
exercise jurisdiction under the Tucker Act over suits alleging breach of a Title VII
settlement, provided that the agreement itself contemplates money damages in the
event of a breach. Id. at 1311–15. The agreement at issue in this matter, EEOC
argues, contemplates money damages in the manner Holmes requires. Therefore,
in EEOC’s view, the Tucker Act’s waiver applies, and sovereign immunity poses
no bar to the Commission’s order of the monetary relief at issue in this matter.
    EEOC further contends that “the fact that the waiver [of sovereign immunity]”
is found in the Tucker Act rather than Title VII “is not significant vis-à-vis
EEOC’s authority to award back pay.” EEOC Letter at 11. In West v. Gibson, 527
U.S. 212 (1999), EEOC notes, the Supreme Court held that EEOC may award
compensatory damages as an “appropriate remed[y]” for a violation of Title VII,
42 U.S.C. § 2000e-16(b), even though the provision authorizing that form of relief
is found in a 1991 Title VII amendment that expanded the remedial authority of
courts without explicitly referring to EEOC proceedings. 527 U.S. at 217.
Similarly, here, EEOC argues that the Commission has authority to award money
damages for breach of a Title VII settlement agreement because of the waiver of
immunity contained in the Tucker Act. A contrary conclusion, EEOC contends,
would “strip EEOC’s authority to enforce Title VII against agencies through



                                         7
                      Opinions of the Office of Legal Counsel in Volume 38


appropriate remedies, and rob it of the ability to ensure that an agency complies
with its Title VII settlement promises.” EEOC Letter at 11 (internal quotation
marks omitted).

                                                   III.

                                                    A.

   We are not persuaded by EEOC’s arguments. EEOC’s reliance on the Tucker
Act is misplaced because the Tucker Act confers jurisdiction only on the Court of
Federal Claims to hear contractual claims against the United States exceeding
$10,000. See 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United
States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort.”).3 That limited waiver of sovereign immunity does not authorize
EEOC to provide a forum for such disputes. See Shaw, 309 U.S. at 501 (“Even
when suits [against the United States] are authorized[,] they must be brought only
in designated courts.”); cf. Minnesota v. United States, 305 U.S. 382, 388 (1939)
(“[I]t rests with Congress to determine not only whether the United States may be
sued, but in what courts the suit may be brought.”).

                                                    1.

   In Holmes, on which EEOC places principal reliance, the Federal Circuit de-
termined that Title VII posed no bar to the Court of Federal Claims’ exercise of
jurisdiction under the Tucker Act to adjudicate a claim that an agency breached a
Title VII settlement agreement, notwithstanding Title VII’s comprehensive
remedial scheme and its conferral of jurisdiction on federal district courts. 657
F.3d at 1312–13.4 In so holding, the court relied on the Supreme Court’s decision
in Kokkonen v. Guardian Life Insurance, 511 U.S. 375 (1994), which held that a
court with jurisdiction over an underlying dispute does not necessarily also have
jurisdiction over claims that parties have breached an agreement settling that
dispute. Id. at 381. Rather, the Court ruled, an independent basis of jurisdiction is

    3
      28 U.S.C. § 1346, known as the “Little Tucker Act,” confers jurisdiction on United States district
courts for claims founded “upon any express or implied contract with the United States” that do not
exceed $10,000.
    4
      Neither party challenges this aspect of the Federal Circuit’s decision; we therefore assume that it
is correct for purposes of this opinion. As it is irrelevant to our resolution of the question presented, we
likewise take no position on the parties’ dispute over whether the contract at issue contemplates money
damages. Compare EEOC Letter at 6–8 with Maunz E-mail, supra note 1.




                                                     8
            Authority of EEOC to Order Federal Agency to Pay Monetary Award


generally needed for a federal court to adjudicate such breach of settlement claims.
Id.; see Holmes, 657 F.3d at 1312–13. Following Kokkonen, the Federal Circuit
explained that, “although the [settlement agreement] arose out of Title VII
litigation, [the plaintiff’s] suit for breach of contract is just that: a suit to enforce a
contract with the government.” 657 F.3d at 1312. The court therefore held that the
case was properly heard in the Court of Federal Claims under the Tucker Act,
rather than in the federal district courts authorized to hear claims under Title VII.
    Conversely, federal courts with jurisdiction over Title VII claims have held that
they may not adjudicate claims for damages resulting from a federal agency’s
breach of a Title VII settlement agreement. See Taylor v. Geithner, 703 F.3d 328,
334 (6th Cir. 2013); see also Munoz v. Mabus, 630 F.3d 856, 861–64 (9th Cir.
2010); Frahm v. United States, 492 F.3d 258, 262–63 (4th Cir. 2007); Lindstrom
v. United States, 510 F.3d 1191, 1194–96 (10th Cir. 2007). Those courts have
explained that the waiver of sovereign immunity in Title VII, which authorizes
suits against federal agencies for unlawful discrimination, “does not expressly
extend to monetary claims against the government for breach of a settlement
agreement that resolves a Title VII dispute.” Frahm, 492 F.3d at 262. And while
the waiver of sovereign immunity in the Tucker Act does extend to such claims,
“invoking the Tucker Act is a non sequitur” in federal district court, “because
where . . . a suit involves a claim for money damages over $10,000, the Act
waives the government’s immunity only in the Court of Federal Claims.” Frank-
lin-Mason v. Mabus, 742 F.3d 1051, 1054 (D.C. Cir. 2014); see id. at 1056 (“[T]he
Tucker Act does not contain a waiver of sovereign immunity in the district court
for breach of a Title VII settlement agreement seeking damages in excess of
$10,000.” (emphasis added)); accord Munoz, 630 F.3d at 864 (“Because [the
plaintiff’s] breach of settlement agreement claim is essentially a contract action
against the federal government whose resolution requires no interpretation of Title
VII itself, his claim cannot seek jurisdictional refuge in Title VII and belongs, if
anywhere, in the Court of Federal Claims.”).5
    This case law highlights why, even if we were to accept EEOC’s position that it
“can order as relief whatever a court could award upon a finding of a breach,”
EEOC Letter at 10, that standard does not help its case. The waiver of sovereign
immunity in the Tucker Act is limited to cases heard in the Court of Federal
Claims. It does not waive the federal government’s immunity, either in federal
district court or in EEOC proceedings, for claims arising from breach of a


    5
      Notably, “unlike the district courts, . . . the [Court of Federal Claims] has no general power to
provide equitable relief against the Government or its officers.” United States v. Tohono O’Odham
Nation, 563 U.S. 307, 313 (2011). And the Federal Circuit has found that “[e]xcept in strictly limited
circumstances . . . there is no provision in the Tucker Act authorizing the Court of Federal Claims to
order equitable relief.” Massie v. United States, 226 F.3d 1318, 1321 (2000).




                                                  9
                 Opinions of the Office of Legal Counsel in Volume 38


settlement agreement. As explained above, waivers of sovereign immunity are to
be “strictly construed, in terms of [their] scope, in favor of the sovereign.” Lane,
518 U.S. at 192. Consequently, the Tucker Act provides no authority for EEOC to
award money damages to remedy a federal agency’s breach of a Title VII
settlement.

                                         2.

    The Supreme Court’s decision in West does not compel a contrary result. In
that case, the Supreme Court construed the provision granting EEOC authority to
enforce Title VII “through appropriate remedies,” 42 U.S.C. § 2000e-16(b), as
including the power to order remedies Congress deemed appropriate for enforcing
Title VII’s substantive provisions in a later Title VII amendment. 527 U.S. at 218.
Because Congress determined that compensatory damages are an appropriate
remedy for victims of discrimination by federal agencies in the Civil Rights Act of
1991, the Court concluded, section 2000e-16(b) authorizes EEOC to afford such
relief in its enforcement proceedings. Id. at 218–19.
    West provides no support for construing the limited waiver of sovereign im-
munity in the Tucker Act to apply to breach of settlement proceedings before
EEOC. Unlike the Civil Rights Act of 1991, which amended Title VII itself, the
Tucker Act is an unrelated statute that predated Title VII by several decades and as
such says nothing about the remedies Congress considered suitable to effectuate
the aims of Title VII. Cf. id. at 218 (“[I]n context the word ‘appropriate’ most
naturally refers to forms of relief that Title VII itself authorizes.” (emphasis
added)). More fundamentally, this matter does not concern the scope of EEOC’s
authority to award “appropriate remedies” for workplace discrimination, but its
authority to award remedies for a federal agency’s breach of a settlement agree-
ment. See Frahm, 492 F.3d at 262–63 (section 2000e-16(b) waives the govern-
ment’s sovereign immunity with respect to substantive Title VII claims but “does
not expressly extend to monetary claims against the government for breach of a
settlement agreement that resolves a Title VII dispute”). The Court’s interpretation
of the term “appropriate remedies” as it appears in Title VII provides no basis for
reading the limited waiver of sovereign immunity in the Tucker Act to authorize
EEOC to award monetary relief for a federal agency’s breach of a Title VII
settlement agreement.

                                         B.

    In addition to considering EEOC’s argument that the Tucker Act allows it to
order a compensatory remedy for breach of a settlement agreement, we have also
considered whether EEOC’s award of monetary relief is authorized by Title VII
itself insofar as the award constitutes an order to perform on promises SSA made
in the Settlement Agreement—in particular, promises to “distribute performance



                                         10
            Authority of EEOC to Order Federal Agency to Pay Monetary Award


awards on a fair and equitable basis, consistent with merit principles” and “to take
corrective action if it did not keep this promise.” See EEOC Letter at 12 (“SSA
promised to distribute performance awards on a fair and equitable basis, consistent
with merit principles. It also promised to take corrective action if it did not keep
this promise. OFO found that SSA breached these promises. As relief, EEOC
ordered SSA to take corrective action, the very corrective action which SSA
promised to, but did not, take.”).
   As EEOC notes, this Office has repeatedly recognized that Title VII’s waiver
of sovereign immunity means that an agency may settle an administrative Title VII
complaint by awarding monetary relief to a complainant, even without admitting
liability for the alleged discrimination. USDA Opinion, 18 Op. O.L.C. at 52–54;
see Diamond Opinion, 22 Op. O.L.C. at 261 & n.6 (quoting Local No. 93, Int’l
Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 515 (1986)). As long as
the intended relief does not exceed the scope of remedies available in court, the
government’s consent to be sued for violations of Title VII ordinarily permits
voluntary settlement of a complaint alleging such violations. See Diamond
Opinion, 22 Op. O.L.C. at 261–62 & n.6; see also USDA Opinion, 18 Op. O.L.C.
at 53 (explaining that, under appropriations law, “agencies have authority to
provide for monetary relief in a voluntary settlement of a discrimination claim
only if the agency would be subject to such relief in a court action regarding such
discrimination brought by the aggrieved person”).
   It might follow from this principle that EEOC has authority in certain circum-
stances to enforce a settlement agreement by ordering an agency to perform on its
promises, even if those promises include a commitment to pay money to a
complainant. If, for example, the agency had settled a Title VII claim by promis-
ing to provide a particular amount of back pay or other monetary relief and the
complainant requested specific performance of that promise, EEOC might be able
to order that relief without violating the doctrine of sovereign immunity. In such a
circumstance, one could argue that the dispute is not, in essence, a contract dispute
with the federal government, but rather a continuation of the same Title VII
proceeding that gave rise to the settlement itself. Consequently, the same waiver of
sovereign immunity that permitted the agency to resolve the Title VII complaint
by voluntary settlement might also permit EEOC to compel the agency to make
good on its promise.6
   But whatever effect the waiver of sovereign immunity in Title VII might have
on EEOC’s authority to award monetary relief in other circumstances, we do not
believe it authorizes the monetary award at issue here. The award at issue was not


   6
     Editor’s Note: The text of this footnote has been redacted. It includes privileged information and
addresses an issue not necessary for the discussion here.




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                 Opinions of the Office of Legal Counsel in Volume 38


an order to perform on an agreement that provided back pay or other specific
monetary relief to settle an underlying Title VII claim alleging past misconduct.
Rather, it was an order to perform on a promise to take corrective action in the
future to remedy any failure to distribute performance awards and QSIs on a “fair
and equitable basis.” EEOC Letter at 12. Based on two principal considerations,
we conclude that, for purposes of the sovereign immunity analysis, the dispute at
issue here cannot fairly be characterized as merely a continuation of the same Title
VII proceeding that gave rise to the settlement itself. Accordingly, the remedy
EEOC awarded is not authorized by the waiver of sovereign immunity that
allowed SSA to settle the class complaint and provide relief to the claimants in the
first place.
    The nature of the present dispute over the meaning and application of Provision
III.D illustrates that the dispute was not merely a continuation of the Title VII
claim that gave rise to the settlement, but rather a distinct proceeding beyond the
scope of the waiver of sovereign immunity upon which the settlement rested. First,
the present dispute does not concern a specific settlement term that imposes clear
obligations on the SSA—such as an agreement to provide a particular sum in back
pay—but instead concerns SSA’s alleged failure to comply with a non-specific
prospective promise to “correct any misapplications of its policies for granting
performance awards and Quality Step Increases to ensure fair and equitable
distribution of such awards, consistent with merit principles.” Settlement Agree-
ment at 10. As SSA points out, in agreeing to this provision, it neither expressly
consented to a particular numerical distribution of awards and QSIs, nor expressly
agreed that the class members would be entitled to monetary relief in the event
that they were dissatisfied with the number of awards and promotions received.
Agency’s Response to Class’ Brief on Appeal at 8–10. Provision III.D, SSA
observes, “contains no discussion of a monetary component and neither memorial-
izes nor evidences a meeting of the minds between the parties that all class
members could receive the average monetary award, or any monetary award for
that matter, for the oversight period.” SSA Memorandum at 3–4. Rather, in SSA’s
view, the disputed settlement term simply required compliance with merit
principles and active oversight of its policies for issuing promotions and perfor-
mance awards. See Maunz E-mail, supra note 1 (“[S]pecific enforcement [of
Provision III.D] could include an ordered review of the agency’s policies, perhaps
even by an expert.”). As a consequence, the proceedings regarding the enforce-
ment dispute at issue required not only extensive debate over the meaning of
SSA’s promise to distribute awards and QSIs on a “fair and equitable basis” and to
“correct any misapplications of its policies,” but also extensive fact-finding




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             Authority of EEOC to Order Federal Agency to Pay Monetary Award


regarding SSA’s post-settlement conduct to determine whether the relevant
standards had been met. See OFO Decision at 16–19.7
    Second, the present dispute does not concern monetary remedies for the alleged
Title VII violations underlying the settlement, but monetary remedies for failure to
comply with a settlement term governing SSA’s future conduct, i.e., SSA’s failure
to distribute performance awards and QSIs on a “fair and equitable” basis after the
settlement was reached. That is apparent from the extensive fact-finding required
to determine SSA’s compliance with Provision III.D—if the monetary remedy
awarded to the class members in the present dispute rested on the conduct that
gave rise to their initial Title VII claims, there would have been no need for such
additional fact-finding because those claims were resolved by the Settlement
Agreement. It is, at a minimum, questionable whether the waiver of sovereign
immunity in Title VII that permitted SSA to enter the Settlement Agreement in the
first place would also permit SSA to promise to provide a monetary remedy in the
event it failed to abide by a promise to refrain from particular conduct in the
future. We have previously observed that, consistent with limitations on agencies’
ability to compromise or abandon claims made against the United States in
litigation, “settlement of a discrimination claim should be based on the agency’s
good faith assessment of the litigation risk that a court might find complainants
entitled to relief” based on the claims raised in their complaint. Diamond Opinion,
22 Op. O.L.C. at 262. An agreement to provide monetary relief in the event of
future noncompliance with a term of the settlement agreement would arguably be
an impermissible agreement to compensate complainants for injuries not alleged in
their complaint. Such conduct would not be at issue if the complainants were to
proceed to court on their original claim. As such, an agreement to provide

    7
      Although OFO characterized its order as “specific enforcement” of the Settlement Agreement, we
note that OFO’s order appears more akin to a legal remedy for breach than the equitable remedy of
specific performance as that term is generally understood in contract law. The Supreme Court has
observed that specific performance requires an agreement that is “certain, fair, and just in all its parts.”
Dalzell v. Dueber Watch-Case Mfg. Co., 149 U.S. 315, 325 (1893). “‘The contract which is sought to
be specifically executed ought not only to be proved,’” the Court explained, “‘but the terms of it should
be so precise as that neither party could reasonably misunderstand them.’” Id. at 326 (quoting Colson v.
Thompson, 15 U.S. (2 Wheat) 336, 341 (1817)). Accordingly, “‘[i]f the contract be vague or
uncertain . . . a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will
leave the party to his legal remedy.’” Id. (quoting Colson, 15 U.S. (2 Wheat) at 341); see also
Restatement (Second) of Contracts § 368 (1981) (“Specific performance . . . will not be granted unless
the terms of the contract are sufficiently certain to provide a basis for an appropriate order.”).
    In determining that the class members were presumptively “entitled to the average honor award,
monetary award, and QSI” (a number unknown at the time of decision), we do not believe that OFO
enforced a term “‘so precise as that neither party could reasonably misunderstand [it].’” Dalzell, 149
U.S. at 326 (quoting Colson, 15 U.S. (2 Wheat) at 341); cf. TAS Distributing Co., Inc. v. Cummins
Engine Co., Inc., 491 F.3d 625, 637 (7th Cir. 2007) (rejecting claim that district court abused its
discretion in refusing to order defendant to specifically perform on its “obligation to make ‘all
reasonable efforts’ to manufacture and market the subject technology”).




                                                    13
                      Opinions of the Office of Legal Counsel in Volume 38


monetary compensation for future noncompliance would raise significant ques-
tions about whether the agency had acted in a manner consistent with its obliga-
tion to provide settlement remedies based on a “good faith assessment” of the
complainants’ likely recovery from the pending complaint.8
   For both of these reasons, taken together, we conclude that the dispute at issue
was not merely a continuation of the underlying Title VII proceedings that resulted
in the Settlement Agreement, and that the waiver of sovereign immunity upon
which the settlement rested therefore cannot be said to authorize the award EEOC
provided to remedy SSA’s alleged failure to comply with Provision III.D of the
Settlement Agreement.9

                                                  IV.

    We conclude that the doctrine of sovereign immunity precludes the monetary
relief ordered in this case.

                                                             JOHN E. BIES
                                                    Deputy Assistant Attorney General
                                                        Office of Legal Counsel




    8
      We do not suggest that an agency is precluded from including in a settlement its promise not to
discriminate in the future. Title VII explicitly authorizes courts to enjoin agencies from engaging in
unlawful employment practices. 42 U.S.C. § 2000e-5(g)(1). And we have recognized that “an
appropriate remedy under Title VII . . . may include relief, including injunctive relief, that will make
the plaintiff whole, prevent future violations of the act, and prevent retaliation against complainants.”
Diamond Opinion, 22 Op. O.L.C. at 263. Because agencies may settle a discrimination claim and
award any relief that would be available in court, a promise to refrain from discriminatory behavior in
the future would be entirely proper.
    9
      As noted in Part I, EEOC’s regulations provide that “allegations that subsequent acts of discrimi-
nation violate a settlement agreement shall be processed as separate complaints . . . rather than [through
actions to enforce the settlement].” 29 C.F.R. § 1614.504(c). In proceedings before OFO, SSA argued
that this provision precluded the class from receiving relief on their claims that the agency’s unequal
post-settlement distribution of awards violated the Settlement Agreement. We express no view on this
question, and do not address the scope of EEOC’s regulations. Rather, we consider the fact that EEOC
effectively compensated the class members for discrimination that followed the settlement only insofar
as that fact informs our view that the Commission’s award is barred by the doctrine of sovereign
immunity.




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