                                                                                                         March 16, 1978


78-17            MEMORANDUM OPINION FOR THE
                 ACTING DIRECTOR, OFFICE OF
                 MANAGEMENT AND BUDGET
                 Reorganization Plan No. 1 of 1978— Equal
                 Employment Opportunity Commission—
                 Transfer of Function

   This responds to your request for our opinion concerning two legal questions
raised by § 3(b) o f Reorganization Plan No. J o f 1978, 14 Weekly Comp. Pres.
Doc. 398, 43 F.R. 19807.
   Under § 3(a) of the Plan, the responsibility for enforcement of equal
opportunity in Federal em ploym ent, presently lodged in the Civil Service
Commission (CSC), would be transferred to the Equal Employment Opportu­
nity Commission (EEOC), an executive branch agen cy.1 Section 3(b) o f the
Plan would em power the EEOC to delegate to the CSC or a successor agency
“ the function of making a preliminary determination on the issue o f discrim ina­
tion,” whenever a Federal employee has alleged in a proceeding before the
EEOC that his rights under § 717 of the Civil Rights Act of 1964 have been
violated.2 Your questions arise because it is contemplated that the C SC ’s
successor agency for these purposes would be an independent regulatory
agency exercising quasi-judicial powers whose members would not serve at the
pleasure of the President.
   The first question is whether the independence o f this successor agency
would be affected by the transfer to it of the responsibility for making a
preliminary determination of the merits of a Federal em ployee’s allegation. The
task of making such determinations is purely adjudicatory. Under the rationale
of the most recent Supreme Court decisions dealing with this general question,

    'T h is o ffice has tak en th e p o sitio n , m o st recen tly in o u r le tte r to you o f F e b ru a ry 7 . 1978, that
c o m m issio n e rs o f the E E O C serv e at th e p le a su re o f (he P resid en t and that the A g e n c y is an,
e x ec u tiv e — as o p p o sed to an in d e p e n d en t re g u la to ry — a g en cy .
    2(b) T h e E qual E m p lo y m en t O p p o rtu n ity C o m m issio n m ay d e le g ate to the C ivil S e rv ic e
C o m m issio n o r its s u c c e sso r the fu n c tio n o f m a k in g a p re lim in a ry d e te rm in a tio n on the issu e o f
d iscrim in a tio n w h e n e v e r, as a part o f a c o m p la in t o r ap p eal b efo re the C ivil S e rv ic e C o m m issio n on
o th e r g ro u n d s, a F ed eral e m p lo y e e a lle g es a v io la tio n o f § 7 1 7 o f th e C ivil R ig h ts A ct o f 1964. as
a m ended (42 U.S.C. 2 0 0 0 e -1 6 ), p ro v id e d that th e E qual E m p lo y m en t O p p o rtu n ity C o m m issio n
retains the fu n c tio n o f m a k in g th e final d e te rm in a tio n .

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 assignment o f an adjudicatory function to an agency then recognized to be
 “ independent” would not alter its independent status in any way. Cf., Wiener
 v. United States, 357 U.S. 349 (1958). We see no basis for a different
 conclusion h ere.3
    The second question is whether limiting the successor agency to making a
 preliminary determination on the merits o f the em ployee’s allegation while
 retaining in the EEOC the “ function of making the final determination
 concerning such issue o f discrim ination . . . ” would affect the independence of
 the successor agency. In other words, does the placement of power in an
 executive agency to review and overturn a preliminary decision reached by an
 independent agency impinge on the independent status of the latter? We think
 the answer to this question is “ n o .”
    The proposition that executive agencies may be empowered by Congress to
 review and adopt or overturn decisions made by “ independent” agencies or
 hearing examiners without affecting the independent status of either is well
 established. For exam ple, the President is authorized by statute to review and
 reverse certain decisions made by the Civil Aeronautics Board; yet we have no
 doubt that members of that Board may be removed only for cause under 49
 U .S.C . § 1321. More recently, Congress has given the Secretary of Energy the
 power to implement or reject certain regulatory actions formulated by the
 Federal Energy Regulatory Com m ission, an independent agency.4 The confer­
 ence report indicates that Congress believed that such review power in the
 Secretary would not affect the independent status of the Commission. See H.
 Rept. No. 539, 95th C ong., 1st sess., at 78 (1977).
    Given the adjudicatory nature of the decisions to be reviewed by the EEOC
under § 3(b), we think the history of the use of independent administrative law
judges and hearing exam iners under the Administrative Procedure Act (APA)
of 1946 supports our position. Under § 11 of that A ct,5 these officers were
specifically made “ independent . . . in their tenure and com pensation.” 6 One
of the major functions performed by administrative law judges is to preside
over formal APA proceedings, 5 U .S.C . § 556(c), and then to make the initial
decision or recomm endation regarding the disposition of the matter before
them, 5 U .S.C . §§ 554(d) and 557(b). This decision may then be reviewed by
the agency, often an executive agency, which has “ all the powers which it
would have in making the initial decision . . . . ” 5 U .S.C . § 557(b).
   Thus, to conclude that EEOC review o f preliminary decisions made by a
successor agency pursuant to § 3(b) of the Plan would jeopardize the independ­
ence o f the latter agency would cast grave doubt on the principle under which



    3W e d re w th e sam e c o n c lu sio n w ith re g a rd to th is q u e stio n in o u r m e m o ra n d u m to W . H arriso n
W ellfo rd o f F e b ru a ry 2 3 , 1978.
    4D e p artm e n t o f E n e rg y O rg a n iz a tio n A c t, § 4 0 2 (c ), P u b . L. N o. 9 5 -9 1 , 91 S tat. 565.
    5S e c tio n II is n o w c o d ifie d in v a rio u s s e c tio n s o f 5 U .S .C ., n a m e ly , §§ 1305, 3 1 0 5 , 33 4 4 ,
4 3 0 K 2 X E ), 5 3 6 2 , an d 7 5 2 1 .
    6A d m in istra tiv e P ro ce d u re A ct— L e g isla tiv e H is to ry , S. D o c. N o. 2 4 8 , 7 9th C o n g ., 2d s e s s ., at
215 (1 9 4 6 ).


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administrative law judges and similar hearing officers have performed equiva­
lent adjudicatory functions for more than three decades during which their
independence has never been doubted, although subject to administrative
review.
   Thus, we conclude that the delegation under § 3(b) of the Plan will not raise
questions as to the independent status of the CSC successor agency.

                                               Jo h n M . H a r m o n
                                           Assistant Attorney General
                                                      Office o f Legal Counsel




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