                  Federal Equal Employment Opportunity
                           Reporting Act of 1986

Legislation authorizing the Equal Em ploym ent Opportunity Com mission (EEOC) to subpoena
  em ployees o f federal agencies not in compliance with EEOC annual reporting requirements
  and to seek enforcem ent of such subpoenas in federal court would violate the doctrine of
  separation of powers by undercutting the President’s power to provide a single voice for the
  Executive Branch in the enforcement o f the laws.

One part o f the Executive Branch may not sue another part, as there can be no case or controversy
  betw een agencies that are all subject to the direction and control of the President.

T he proposed legislation's expansion of EEOC litigating authority would also undercut the
   A ttorney G eneral’s ability to speak for the Executive Branch with a single voice in the courts.

                                                                                     August 12, 1986

      M   em orandum         O p in io n   for the    A s s is t a n t A t t o r n e y G e n e r a l ,
                                     C i v i l R ig h t s D iv is io n


   This responds to your request for comments on §§ 4 and 5 of a draft bill, the
Federal Equal Employment Opportunity Reporting Act of 1986 (Act).
   The bill would require federal agencies to file annual reports with the Equal
Employment Opportunity Commission (EEOC) demonstrating their compli­
ance with several equal employment opportunity laws and affirmative action
requirements. Sections 4 and 5 of the bill give the EEOC new authority to
compel compliance with the reporting requirements. We have three objections
to § 4.
   First, § 4 authorizes the EEOC to issue a subpoena to any employee of the
United States government and to seek enforcement of that subpoena in court.1
Id. § 4(a)(2),(4). We believe the Department should oppose this provision. The
issuance of a subpoena to another federal agency raises questions both of
constitutionality and propriety. Fundamentally, the Department should oppose
this provision because we believe that to permit the EEOC to seek enforcement
  1 The EEO C already has the authority to subpoena individuals being investigated. 42 U.S.C. § 2000e-9
(adopting investigative pow ers o f the N ational Labor R elations Board, see 29 U.S.C. § 161). The EEOC has
independent litig atin g authority. 42 U.S.C. § 2000e-4(b)(2).

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of its subpoena in court is unconstitutional. The EEOC is an agency of the
federal government, whose members are appointed by the President. 42 U.S.C.
§ 2000e-4(a). The Constitution provides for a tripartite system of government,
with the President as the head of the Executive Branch. The President alone
may speak for the unitary interests of that branch. As a result, one part of the
Executive Branch may not sue another part; there can be no case or controversy
between agencies that are subject to the direction and control of the same
person.2 Therefore, the EEOC may not be authorized to seek the aid of a court
in enforcing compliance with its subpoena against another part of the Execu­
tive Branch.
   As to matters of propriety, the terms of the draft bill indicate that the EEOC
would most often issue these subpoenas to the heads of agencies, including, we
must assume, cabinet officers. It would be awkward for such senior officials to
decline to comply with an EEOC subpoena even on constitutional grounds
without adverse publicity, and we do not think the Department should support a
bill that would put them in that position.3
   Second, we object to § 4 because it expands the EEOC’s independent litigat­
ing authority by removing, for suits against federal employees, the present
requirement in 42 U.S.C. § 2000e-4(b)(2) that the Attorney General conduct
any EEOC litigation in the Supreme Court. Act, § 4(a)(2)(C). If the Executive
Branch is to speak with a single voice to the courts, it is obviously imperative
that it be represented in the Supreme Court by one individual — the Solicitor
General. The importance of having central direction and control of the
government’s litigation underlies the Department’s traditional resistance to
any efforts to erode the Attorney General’s litigating authority in the lower
courts. The issue becomes even more important when the question is what
position the Executive Branch will take before the Supreme Court. Thus, even
if there were not constitutional objections to permitting the EEOC to sue a
federal employee or agency, we believe that the Department should oppose
permitting the EEOC to appear in the Supreme Court without direction from
the Attorney General.
   Third, we object to § 4 because it provides individuals with a private right of
action to compel submission of a tardy agency report. If the EEOC does not
issue a subpoena or sue to compel compliance with its subpoena, any employee
of, applicant for employment with, or recognized labor organization of the non­
complying agency may sue the agency and collect attorney’s fees if the suit is
successful. Id. § 4(b). Normally, we would of course have no constitutional
objection to a private cause of action established by law. We are concerned in
this case, however, because § 4(b) essentially permits a third party to step into
the EEOC’s shoes to pursue a case which we believe it would be unconstitu­

  2 The courts have perm itted a lim ited exception to this rule where it is clear that there is a justiciable case or
controversy, usually evidenced by the presence o f a truly adverse private party. “ Proposed Tax A ssessm ent
A gainst the U nited States Postal Service,” 1 Op. O .L.C. 79 (1977).
  3 A lthough styled as a com m and, a subpoena has no effect until a court issues an order directing that the
parties com ply w ith it. W. G ellhom , C. Byse, & P. Strauss, Administrative Law 553-54 (1979).

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tional for the EEOC to pursue on its own. We believe the Department should
oppose the proposed private right of action unless § 4 is redrafted to eliminate
our objections to the EEOC’s role.

                                                D o u g l a s W . K m ie c
                                         Deputy Assistant Attorney General
                                             Office o f Legal Counsel




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