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

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

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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.

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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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