          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
The doctrine of sovereign immunity precludes the Equal Employment Opportunity Commission from
  imposing monetary sanctions against federal agencies for violations of orders of EEOC administra-
  tive judges.

                                                                                   January 6, 2003

                 MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                         DEPARTMENT OF THE NAVY
                                               AND
                         ACTING DEPUTY GENERAL COUNSEL
                    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

   The Department of the Navy (“the Navy”) has asked our opinion as to whether
the Equal Employment Opportunity Commission (“EEOC”) has authority to
impose attorney’s fees against federal agencies as a sanction for failure to comply
with the orders of EEOC administrative judges (“AJs”) in connection with
hearings before AJs. In the past, for example, AJs have assessed such sanctions
against federal agencies for failures to comply with discovery orders. See Letter
for Randolph Moss, Assistant Attorney General, Office of Legal Counsel, from
Ellen J. Vargas, Legal Counsel, United States Equal Employment Opportunity
Commission at 3 n.4 (Jan. 9, 2001) (“EEOC Letter”). EEOC, of course, maintains
that it may impose such sanctions. We agree with the Navy that, pursuant to basic
principles of sovereign immunity, EEOC lacks authority to impose monetary
sanctions (such as attorney’s fees) on federal agencies for failure to comply with
AJ orders.

                                         I. Jurisdiction

   Before reaching the merits, we address EEOC’s concerns that this matter is not
appropriate for resolution by the Office of Legal Counsel. See EEOC Letter at 1.
We agree with the Navy that it is entitled to our opinion on this issue pursuant to
Executive Order 12146, 3 C.F.R. § 409 (1979) (“EO 12146”).1 As presented to us
by the Navy, this is a dispute between two executive agencies on a question of law
and therefore comes within the terms of section 1-401 of EO 12146, among other
provisions. The fact that one agency (here, EEOC) sits in an adjudicatory posture


   1
     EO 12146 authorizes the Attorney General to resolve certain legal disputes between agencies. The
Attorney General has delegated that function to this Office. See 28 C.F.R. § 0.25 (2002).




                                                 24
       Authority of EEOC to Impose Monetary Sanctions Against Federal Agencies


with respect to an agency requesting our opinion (here, the Navy) does not alter
this conclusion, and we have previously resolved such disputes. See, e.g., Authori-
ty of the General Services Board of Contract Appeals to Order Reimbursement of
the Permanent Judgment Fund for Awards of Bid Protest Costs, 14 Op. O.L.C.
111 (1990).
    Further, neither the fact that EEOC has authority to enforce Title VII in the
federal workplace nor the fact that agencies “shall comply” with EEOC rules and
orders, see 42 U.S.C. § 2000e-16(b) (2000), divests us of authority to issue this
opinion. The Navy contends that EEOC has exceeded its statutory authority. If that
is the case—and we conclude that it is—EEOC has no power to impose monetary
sanctions on federal agencies for failure to comply with AJ orders. At its base, the
present dispute is whether EEOC has exceeded its own jurisdiction; the dispute is
therefore entirely appropriate for resolution by this Office. See EO 12146, § 1-401
(listing questions of agency jurisdiction among the issues for resolution under that
section); see also Memorandum for Henry L. Solano, Solicitor, Department of
Labor, and Leigh A. Bradley, General Counsel, Department of Veterans Affairs,
from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re:
The Effect of Veterans’ Health Administration Nurses’ Additional Pay for Sunday
and Night Duty on Calculation of Workers’ Compensation Benefits (Jan. 19,
2001).

                             II. Sovereign Immunity

   Because the resolution of this dispute hinges on the doctrine of sovereign im-
munity, we begin by explaining its basic principles. Most fundamentally, the
federal government may not be sued without its consent, see, e.g., FDIC v. Meyer,
510 U.S. 471, 475 (1994); see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,
411–12 (1821). The absence of consent bars proceeding against the government.
See Meyer, 510 U.S. at 475. The authority to consent to suit—to waive sovereign
immunity—does not rest with the Executive Branch, see, e.g., 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”; “[n]o officer by his
action can confer jurisdiction”) (emphases added); Munro v. United States, 303
U.S. 36, 41 (1938); United States v. Horn, 29 F.3d 754, 761 (1st Cir. 1994), or
with the courts, see, e.g., Lane v. Pena, 518 U.S. 187, 192 (1996); Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 95 (1990); Shaw, 309 U.S. at 502, but solely with
Congress.
   Accordingly, waivers of the “Federal Government’s sovereign immunity must
be unequivocally expressed in statutory text.” Lane, 518 U.S. at 192 (emphasis
added); see also United States v. Nordic Village, 503 U.S. 30, 37 (1992). Further-
more, waivers must be “strictly construed, in terms of [their] scope, in favor of the
sovereign.” Lane, 518 U.S. at 192. It follows that waivers of immunity with
respect to one type of relief do not thereby waive immunity with respect to other



                                         25
                      Opinions of the Office of Legal Counsel in Volume 27


forms of relief. Thus, although the Clean Water Act and the Resource Conserva-
tion and Recovery Act waived the immunity of federal agencies with respect to
“coercive fines” designed to insure compliance with the statutes, those statutes did
not render such agencies liable for “punitive fines” for past violations. See Dep’t
of Energy v. Ohio, 503 U.S. 607, 614–20 (1992) (concluding that the statutes do
not contain a “clear and unequivocal waiver of anything more” than the coercive
fines and declining to infer “a broader reading”). And statutes that clearly waive
the government’s immunity from attorney’s fees do not thereby waive immunity
from interest on those fees, even if private parties would be liable for interest. See,
e.g., Library of Cong. v. Shaw, 478 U.S. 310, 317–19 (1986). Instead, the govern-
ment’s sovereign immunity must be clearly and specifically waived with respect to
each form of relief claimed. See id. at 314, 321; see also Nordic Village, 503 U.S.
at 34 (recognizing that a provision of the bankruptcy code waived sovereign
immunity from monetary claims in two settings but declining to find such a waiver
in a third setting); cf. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255 (1999).2
   The presumption against waivers of sovereign immunity is especially strong in
the context of monetary claims; it “operates on the broadest possible level” and
“stands as an obstacle to virtually all direct assaults against the public fisc, save
only those incursions from time to time authorized by Congress,” Horn, 29 F.3d at
761 (emphasis added). “To 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 (citing Nordic
Village, 503 U.S. at 34). As we have previously explained, a statutory provision
does not waive sovereign immunity for monetary claims if there exists any
plausible reading that would not authorize monetary relief. See Availability of


    2
      On close examination, several cases that may appear to be narrow exceptions to the traditional
sovereign immunity canons are actually consistent with them. The Court, for example, has held that
equitable tolling generally applies to suits against the government for which Congress has waived
immunity. See Irwin, 498 U.S. at 95–96. To reach this result, however, the Court first concluded that
application of equitable tolling “amounts to little, if any, broadening of the congressional waiver,”
because “[f]ederal courts have typically extended equitable relief only sparingly,” id. at 95–96. Even
so, the Court has shown great reluctance to extend Irwin. See Raygor v. Regents of Univ. of Minn., 534
U.S. 533, 543 (2002) (declining to extend Irwin to the context of state sovereign immunity). And
although the Court has sustained attorney’s fee awards for representation in administrative proceedings
under part of the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A) (2000) (providing
for such awards to a “prevailing party . . . in any civil action . . . for judicial review of agency action”)
(emphasis added), it did so only after first finding that the administrative proceedings at issue were “so
intimately connected with judicial proceedings as to be considered part of the ‘civil action’ for purposes
of a fee award.” Sullivan v. Hudson, 490 U.S. 877, 892 (1989); see id. at 885 (emphasizing that the
judicial review provision at issue entailed “a degree of interaction between a federal court and an
administrative agency alien to traditional review of agency action under the Administrative Procedure
Act”). In any event, the Court has stressed that such cases “do not . . . eradicate the traditional principle
that the Government’s consent to be sued must be construed strictly in favor of the sovereign and not
enlarge[d] beyond what the language required.” Nordic Village, 503 U.S. at 34 (alteration in original)
(quotations and citations omitted).




                                                     26
       Authority of EEOC to Impose Monetary Sanctions Against Federal Agencies


Money Damages Under the Religious Freedom Restoration Act, 18 Op. O.L.C.
180, 180 (1994).
   It follows that attorney’s fees may not be imposed against the United States
absent an express statutory waiver. In fact, such claims are treated more strictly
than other monetary claims because of, among other things, the so-called “Ameri-
can Rule.” Under the American Rule, even “the prevailing litigant is ordinarily not
entitled to collect a reasonable attorney’s fee from the loser.” Alyeska Pipeline
Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975); see also Buckhannon Bd.
and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598,
602 (2001). Moreover, prevailing-party requirements are often read into fee-
recovery statutes that do not explicitly require such. See, e.g., Ruckelshaus v.
Sierra Club, 463 U.S. 680, 686, 694 (1983) (holding that “a fee claimant must
‘prevail’ before it may recover attorney’s fees,” despite a provision of the Clean
Air Act, 42 U.S.C. § 7607(f) (2000), allowing the district court to “award costs
[and attorney’s fees against the United States] whenever it determines that such an
award is appropriate”). Further, the Supreme Court narrowly construes who
qualifies as a prevailing party. See, e.g., Buckhannon, 532 U.S. at 600 (concluding
that a plaintiff who secures the desired relief because a lawsuit induced the
defendant voluntarily to change its conduct is not a “prevailing party”). Finally,
even prevailing-party status may be insufficient. See, e.g., Farrar v. Hobby, 506
U.S. 103, 115 (1992) (concluding that “[i]n some circumstances, even a plaintiff
who formally ‘prevails’ under [42 U.S.C.] § 1988 should receive no attorney’s
fees at all”). Thus, multiple canons of construction come into play in considering
the imposition of attorney’s fees against the United States, all of which presume
that such awards are unavailable.
   Although 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. This follows most immediately, we believe, from the fact that, as
discussed above, Congress—not the Executive Branch—controls the terms of any
waiver of sovereign immunity. Moreover, any other rule would undermine
Congress’s ability to waive immunity in a specific forum to the exclusion of
another, see, e.g., McElrath v. United States, 102 U.S. 426, 440 (1880), and more
generally, to control the terms under which the United States would be liable to
private parties. And, unsurprisingly, the courts have applied the sovereign
immunity canons to proceedings before agencies and non-Article III courts. See,
e.g., Ardestani v. INS, 502 U.S. 129, 137 (1991) (holding that sovereign immunity
bars fee award to prevailing party in INS proceeding); Nordic Village, 503 U.S. at
30 (holding sovereign immunity presumptions applicable in Bankruptcy Court);
Foreman v. Dep’t of Army, 241 F.3d 1349, 1352 (Fed. Cir. 2001) (applying
sovereign immunity principles to conclude that the Merit Systems Protection
Board lacks authority to impose monetary damages). Cf. United States v. Sher-
wood, 312 U.S. 584, 587–88 (1941) (noting that “[e]xcept as Congress has con-
sented there is no jurisdiction in the Court of Claims [a legislative court] more



                                         27
                 Opinions of the Office of Legal Counsel in Volume 27


than in any other court to entertain suits against the United States”). This Office
has likewise opined that sovereign immunity principles govern agency awards of
monetary relief. See Authority of USDA to Award Monetary Relief for Discrimina-
tion, 18 Op. O.L.C. 52 (1994).
    Finally, we note that the Supreme Court has raised the question whether “ordi-
nary sovereign immunity presumptions” apply to the question whether an agency
may itself grant a specific form of relief against the government when Congress
has clearly waived immunity from such relief in suits brought before the district
courts. West v. Gibson, 527 U.S. 212, 222 (1999). The Court explicitly declined to
decide this question, however, concluding in that case that sufficient evidence of a
waiver before the agency existed under the traditional presumptions. See id. In our
view, there can be no doubt that normal sovereign immunity presumptions apply
even to the question of how “the waived damages remedy is to be administered,”
id. See also id. at 224–28 (Kennedy, J., dissenting). As the dissent in West pointed
out, “[i]t is settled law that a waiver of sovereign immunity in one forum does not
effect a waiver in other forums.” Id. at 226 (Kennedy, J., dissenting) (citing
McElrath, 102 U.S. at 440; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54
& n.6 (1944); and Case v. Terrell, 78 U.S. (11 Wall.) 199, 201 (1870)). But, in any
event, there is no suggestion in West that the existence of a waiver should be
ascertained differently in the administrative context than it would be in an Article
III court. It is also worth observing that the Court recently declined to distinguish
between “court-like administrative tribunals” and Article III proceedings for
purposes of state sovereign immunity. Fed. Mar. Comm’n v. S.C. State Ports
Auth., 535 U.S. 743, 759–60 (2002).

                                   III. Analysis

   Against this backdrop, we turn to EEOC’s arguments in support of its power to
impose attorney’s fees on federal agencies for failure to comply with AJ orders.
EEOC appears to put forth two main arguments supporting its authority to impose
such fees upon the government. First, EEOC contends that both its statutory
mandate to eliminate discrimination from the federal workplace “through appro-
priate remedies,” 42 U.S.C. § 2000e-16(b), and the Federal Rules of Civil
Procedure suffice to waive the federal government’s sovereign immunity from the
type of sanctions at issue here. Second, EEOC maintains that it has inherent
power, as an adjudicatory body, to impose these sanctions against federal agen-
cies. The doctrine of sovereign immunity forecloses both arguments.




                                         28
        Authority of EEOC to Impose Monetary Sanctions Against Federal Agencies


             A. No Express Waiver Allows EEOC to Impose Monetary
                 Sanctions on Federal Agencies in the Absence of a
                        “Prevailing Party” Determination

   EEOC cites 42 U.S.C. § 2000e-16(b) as evidence that Congress has waived the
federal government’s immunity from the sanctions at issue here. That section
empowers EEOC to enforce the prohibition on discrimination in the federal
workplace “through appropriate remedies,” id. (emphasis added). Attorney’s fees
imposed as a sanction for failure to comply with AJ orders relating to the adjudica-
tory process (such as discovery orders), however, are not a remedy for any act of
discrimination. Because the waiver contained in section 2000e-16 must be
interpreted in accordance with the above-mentioned rules of construction, this
statutory provision does not supply the authority EEOC seeks. EEOC’s reliance on
West v. Gibson, 527 U.S. 212 (1999), is therefore entirely misplaced. In West, the
Court determined that compensatory damages are an “appropriate remedy” for
violations of Title VII as applied to the federal workplace, see id. at 217, and that
EEOC therefore “possesses the legal authority to enforce” Title VII through such
awards. Id. at 223. As discussed above, the parties in West agreed that Congress
had waived the government’s sovereign immunity from compensatory damages.
By contrast, neither section 2000e-16(b), nor any other statute, contains a provi-
sion 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.
   EEOC next asserts that “the Federal Rules of Civil Procedure provide the statu-
tory waiver of sovereign immunity for payments by federal agencies of attorney’s
fees as sanctions incurred during the federal court adjudicatory process.” EEOC
Letter at 4. Without further analysis, EEOC simply declares that “[t]hose rules also
allow agencies engaged in administrative adjudicatory processes to sanction
parties before them, including federal agencies.” Id. Some courts have concluded
that the Federal Rules of Civil Procedure, either by their own force or through the
EAJA, waive the United States’ sovereign immunity from monetary sanctions
imposed by federal district courts. See, e.g., M.A. Mortenson Co. v. United States,
996 F.2d 1177, 1181–84 (Fed. Cir. 1993); Mattingly v. United States, 939 F.2d
816, 818 (9th Cir. 1991); Adamson v. Bowen, 855 F.2d 668, 671–72 (10th Cir.
1988). We disagree with this position. See Memorandum for Roger B. Clegg,
Associate Deputy Attorney General, Office of the Attorney General, from Larry L.
Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Departmental Policy on Special Masters (Oct. 2, 1984).3 But even were we to

   3
     In Mattingly, the Ninth Circuit noted that the Federal Rules of Civil Procedure “apply by their
own force to all litigants before the court” and that Rule 11 did not expressly exempt attorneys
representing the United States. 939 F.2d at 818. The court concluded that because Congress authorized
promulgation of the Rules, “applying them to the government with full force cannot be said to violate
the principles of sovereign immunity.” Id. Sovereign immunity principles, however, clearly foreclose




                                                 29
                      Opinions of the Office of Legal Counsel in Volume 27


agree with these holdings, nothing in them supports EEOC’s assertion that the
Federal Rules of Civil Procedure somehow work such a waiver for sanctions
imposed during the administrative process for violations of AJ orders.
   The Federal Rules of Civil Procedure do not even apply to EEOC proceedings,
see Fed. R. Civ. P. 1 (“These rules govern the procedure in the United States
district courts . . . .”) (emphasis added), a point on which EEOC has itself relied,
see Bell v. Dalton, EEOC Appeal No. 01940852, 1994 WL 741530, at *5 (Aug.
17) (“While the Federal Rules of Civil Procedure are used as guidance, they are
not binding upon the Commission.”). Thus, even if we accepted the proposition
that the Federal Rules of Civil Procedure waive the government’s sovereign

the result reached by the court, even assuming that the Federal Rules of Civil Procedure are functional-
ly equivalent to a statute for these purposes. Because the Rules wholly fail to mention the federal
government, it certainly cannot be said that they contain an unequivocal waiver of sovereign immunity.
See Lane, 518 U.S. at 192. And, of course, such waivers may not be implied. See, e.g., id.; Irwin, 498
U.S. at 95. The fact that the Rules seemingly apply equally to all parties appearing before the court
does not change the analysis. As the Supreme Court has explained, “when it comes to an award of
money damages, sovereign immunity place[s] the Federal Government on an entirely different footing
than private parties.” Lane, 518 U.S. at 196.
    Moreover, both the Rules Enabling Act, 28 U.S.C. § 2072 (2000), and the Federal Rules of Civil
Procedure themselves preclude the conclusion that the Rules constitute such a waiver. The Rules
Enabling Act provides that the Rules may not “enlarge substantive rights.” 28 U.S.C. § 2072(b). But by
awarding attorney’s fees under the Federal Rules of Civil Procedure, where such awards would
otherwise be unavailable, these courts have enlarged substantive rights. See, e.g., Alyeska, 421 U.S. at
259 n.31 (suggesting strongly that rules for awarding attorney’s fees are substantive for purposes of
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). Further, the Supreme Court has explained that “it
is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978); United States v. Sherwood, 312 U.S.
584, 589–90 (1941). The Federal Rules of Civil Procedure themselves clearly state that “[t]hese rules
shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue
of actions therein,” Fed. R. Civ. P. 82. Because, as we explained above, sovereign immunity is juris-
dictional, see, e.g., Meyer, 510 U.S. at 475, the Federal Rules of Civil Procedure are quite incapable of
providing a waiver.
    Although not discussed by EEOC, some courts have found that the EAJA, 28 U.S.C. § 2412
(2000), waives sovereign immunity for sanctions imposed for violations of the Federal Rules of Civil
Procedure. See, e.g., Mortenson, 996 F.2d at 1181–84 (finding it “permissible to look beyond the
specific language used” in the EAJA and resorting quite candidly to legislative history to find a waiver
of sovereign immunity for discovery sanctions imposed in violation of Rule 37(b)(2) of the U.S. Claims
Court); Adamson v. Bowen, 855 F.2d 668, 671–72 (10th Cir. 1988). But see Mattingly, 939 F.2d at 818
(declining to find the asserted waiver in the EAJA). This does not help EEOC either, if for no other
reason than that, as noted below, the Federal Rules of Civil Procedure do not apply to EEOC
proceedings. We must note, however, that the approach taken by these courts cannot be reconciled with
clear Supreme Court precedent, which requires that waivers of the “Federal Government’s sovereign
immunity must be unequivocally expressed in statutory text.” Lane, 518 U.S. at 192 (emphasis added).
The EAJA allows “the prevailing party in any civil action” to recover from the United States certain
costs and fees. 28 U.S.C. § 2412(a), (b) (emphases added). In Adamson, the court simply ignored the
pellucid prevailing-party requirement. Instead, the court relied on legislative history and its estimation
of Congress’s intent. See Adamson, 855 F.2d at 671–72. But this flouts the Supreme Court’s
admonition that “the ‘unequivocal expression’ of elimination of sovereign immunity that we insist upon
is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee
report.” Nordic Village, 503 U.S. at 37 (emphasis added) (citation omitted).




                                                    30
       Authority of EEOC to Impose Monetary Sanctions Against Federal Agencies


immunity from fee awards imposed by federal district courts for breach of those
rules, we do not see how this waiver could extend to agency proceedings in which
the rules do not apply. That is, even if Congress had waived sovereign immunity
for violations of the Federal Rules of Civil Procedure in federal court, 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. Indeed, as we have emphasized, the doctrine of sovereign immunity
requires the exact opposite presumption. See supra Part II; see also McElrath, 102
U.S. at 440.
    The tentative and unsupported suggestion in West—that the traditional sover-
eign immunity canons may not apply in determining whether an administering
agency may grant a form of relief for which sovereign immunity has clearly been
waived at least before the district courts—could not help EEOC, even if we
believed that it represented the best view of the law. See West, 527 U.S. at 222; see
also supra Part II. In West, everyone agreed that sovereign immunity from
compensatory damages had been waived; the only issue was when such damages
could be awarded. Because it is impossible to violate the Federal Rules of Civil
Procedure in EEOC proceedings for the simple reason that those rules do not
apply, there is no need to analyze the timing issue here.
    Finally and in light of the foregoing analysis, we note that Congress has in fact
waived sovereign immunity from attorney’s fees to a limited extent in the Title VII
context. Section 2000e-5(k) provides that “[i]n any action or proceeding under this
subchapter the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C.
§ 2000e-5(k) (2000) (emphasis added). When an agency violates an AJ order in an
EEOC proceeding, we do not yet have a prevailing party in an administrative
proceeding, let alone in a civil action. This consideration (among others) renders
section 2000e-5(k) inapplicable to violations of such AJ orders. Furthermore,
“[t]he clarity of [this] provision[] is in sharp contrast to the waiver [EEOC] seeks
to tease out of” other provisions, and “illustrates Congress’ ability to craft a clear
waiver of the Federal Government’s sovereign immunity against particular
remedies.” Lane, 518 U.S. at 194. Extending this waiver to cover awards of
attorney’s fees for violations of orders issued by AJs in the course of EEOC
proceedings would constitute an impermissible broadening of the terms and scope
of the waiver.
    Because EEOC points to no explicit statutory text in which we could begin to
find a waiver of sovereign immunity, let alone a waiver that “unambiguously . . .
extends to monetary claims,” Nordic Village, 503 U.S. at 34, we conclude that
EEOC lacks express authority to impose monetary sanctions on federal agencies
for failure to comply with AJ orders.




                                         31
                     Opinions of the Office of Legal Counsel in Volume 27


                 B. EEOC Does Not Have Inherent Power to Impose
                      Monetary Sanctions on Federal Agencies

   EEOC next argues that its power to impose attorney’s fees against federal
agencies flows from “the judicial doctrine of the ‘inherent powers’ of the forum.”
EEOC Letter at 3. EEOC directs our attention to Chambers v. NASCO, Inc., 501
U.S. 32 (1991), in which the Court discussed the inherent power of the federal
courts. But EEOC is not a federal court, and the sanctioned party in Chambers was
not a federal agency. Because we conclude that the latter difference proves
decisive, we address the former only in passing.
   To be sure, Congress has waived sovereign immunity to some extent by apply-
ing Title VII to the federal workplace and empowering EEOC to investigate and
remedy violations of the statute. Furthermore, agencies may possess some inherent
power to impose sanctions designed to protect the integrity of their proceedings, at
least against litigants other than the federal government. See, e.g., Touche Ross &
Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979) (upholding SEC rule enabling
agency to bar attorneys from practicing before it); see also Am. Bus Ass’n v.
Slater, 231 F.3d 1, 7 (D.C. Cir. 2000) (discussing inherent powers of agencies).
But see Slater, 231 F.3d at 9 (Sentelle, J., concurring) (“Agencies have no inherent
powers. They instead are creatures of statute and may act only because, and only
to the extent that, Congress has delegated them the power to act.”) (citations
omitted). And arguably, EEOC may have some inherent power to impose some
type of sanctions designed to maintain the integrity of its proceedings even against
federal agencies. One could infer this from the fact that Congress is presumed to
have made its statutory scheme effective.
   But it follows from our discussion above that whatever inherent power EEOC
may possess cannot possibly extend to the imposition of monetary sanctions
against the federal government. As we have explained, the imposition of such
sanctions would require a clear statement of consent in the text of a statute (the
very antithesis of inherent power). That is, as discussed above, the authority to
waive sovereign immunity (especially with respect to monetary claims) rests with
Congress, not the Executive Branch. Thus, no act of EEOC (including promulga-
tion or invocation of a regulation) can, by itself, waive the government’s sovereign
immunity. Because we have already concluded that Congress has not waived this
immunity, it follows that EEOC lacks the authority to impose these monetary
sanctions.4

    4
      EEOC contends that 29 C.F.R. § 1614.109(f)(3) (2002) provides AJs with the authority to impose
monetary sanctions against the Government. That provision allows AJs to impose certain sanctions for
failure to comply with their orders. Those sanctions include drawing adverse inferences against the
noncomplying party, exclusion of other evidence offered by the noncomplying party, issuing an
adverse ruling against that party, and taking “such other actions as appropriate.” Id. Noticeably absent
is any mention of monetary sanctions, a fact that has not evaded EEOC, see EEOC Letter at 3 (noting
that EEOC regulations “explicitly provide for sanctions other than attorney’s fees”). Even if this




                                                  32
        Authority of EEOC to Impose Monetary Sanctions Against Federal Agencies


   Finally, we note that significant controversy surrounds the question whether
even Article III courts enjoy inherent power to impose monetary sanctions against
the federal government. Compare Horn, 29 F.3d at 763–67; id. at 765 n.13 (noting
that “when the two doctrines [sovereign immunity and inherent powers] lock
horns, contempt is barred by sovereign immunity”), with Cobell v. Norton, 226 F.
Supp. 2d 1, 154–55 (D.D.C. 2002) (arguing that if sovereign immunity were to bar
the court from exercising its claimed inherent power, the court would be unable to
enforce its orders against the Executive Branch, a result that the court believed to
be inconsistent “with the tripartite framework established by the Constitution”);
see also United States v. Waksberg, 112 F.3d 1225, 1227 (D.C. Cir. 1997)
(characterizing the separation of powers argument as serious enough to invoke the
canon of constitutional avoidance); cf. Chambers, 501 U.S. at 58 (Scalia, J.,
dissenting) (agreeing with the majority that Article III courts derive a measure of
independent authority from the Constitution). Whatever the merit of this debate, it
has no application in this context, because EEOC and the Navy are both part of the
Executive Branch.

                                         IV. Conclusion

   We conclude that the doctrine of sovereign immunity bars EEOC from impos-
ing monetary sanctions against federal agencies for violations of AJ orders.

                                                         JOAN L. LARSEN
                                                  Deputy Assistant Attorney General
                                                      Office of Legal Counsel




provision were found in a statute (and not merely a regulation), the provision “fails to establish
unambiguously that the waiver extends to monetary claims,” Nordic Village, 503 U.S. at 34, and
therefore fails to waive immunity from those claims, see id. at 37. See also Availability of Money
Damages Under the Religious Freedom Restoration Act, 18 Op. O.L.C. 180, 181 (1994) (concluding
that the term “appropriate relief” in the Religious Freedom Restoration Act does not suffice to
authorize monetary relief against the federal government). Indeed, in United States v. Woodley, 9 F.3d
774, 781–82 (9th Cir. 1993), the Ninth Circuit refused to find a waiver of sovereign immunity in the
similarly-worded Federal Rule of Criminal Procedure 16(d)(2), under which “the court may order [a
non-complying] party to permit the discovery or inspection, grant a continuance, or prohibit the party
from introducing evidence not disclosed, or it may enter such other order as it deems just under the
circumstances” (emphasis added). The court found fatal the fact that Federal Rule of Criminal
Procedure 16(d)(2), unlike several provisions of the Federal Rules of Civil Procedure, “provides no
independent authority for a monetary sanction.” Woodley, 9 F.3d at 781–82. See also Tri-State Steel
Constr. Co. v. Herman, 164 F.3d 973, 980 (6th Cir. 1999) (concluding that agency rule providing for
non-monetary sanctions “indicates an intention to preclude monetary sanctions”).




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