B-224777, FEB 10, 1987, OFFICE OF GENERAL COUNSEL

B-224777: Feb 10, 1987

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WE ADVISE EEOC THAT WE OBJECT TO THE PROPOSED REGULATION BECAUSE: (1) WE ARE AWARE OF NO SPECIFIC LEGAL AUTHORIZATION FOR THE PROPOSED ENFORCEMENT ARRANGEMENT. (3) WE HAVE TRADITIONALLY DECLINED TO BECOME INVOLVED IN FEDERAL EMPLOYMENT DISCRIMINATION MATTERS. YOU EXPLAIN IN YOUR LETTER THAT EEOC HAS PROPOSED THE ABOVE-QUOTED PROVISION BECAUSE IT DOES NOT HAVE AUTHORITY UNDER SECTION 717 OF TITLE VII TO ENFORCE ITS OWN DECISIONS. WE ARE NOT AWARE OF ANY OTHER SOURCE PROVIDING SUCH AUTHORIZATION. WE NOTE THAT REGULATIONS OF THE MERIT SYSTEMS PROTECTION BOARD (MSPB) WHICH ARE CONTAINED IN 5 C.F.R. SEC. 1201.184 (1986) AND PRESCRIBE AN ENFORCEMENT PROCESS SIMILAR TO THAT WHICH EEOC NOW PROPOSES ARE BASED ON 5 U.S.C.

B-224777, FEB 10, 1987, OFFICE OF GENERAL COUNSEL

MISCELLANEOUS TOPICS - FEDERAL ADMINISTRATIVE/LEGISLATIVE MATTERS - EMPLOYMENT DISCRIMINATION - CORRECTIVE ACTIONS - ENFORCEMENT - GAO AUTHORITY DIGEST: THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) REQUESTS GAO'S COMMENTS ON A PROPOSED REGULATION WHICH ASSIGNS THE COMPTROLLER GENERAL A ROLE IN EEOC'S ENFORCEMENT OF ITS APPELLATE DECISIONS ON FEDERAL DISCRIMINATION COMPLAINTS. WE ADVISE EEOC THAT WE OBJECT TO THE PROPOSED REGULATION BECAUSE: (1) WE ARE AWARE OF NO SPECIFIC LEGAL AUTHORIZATION FOR THE PROPOSED ENFORCEMENT ARRANGEMENT; (2) OUR AUTHORITY TO SETTLE CLAIMS UNDER 31 U.S.C. SEC. 3702(A) DOES NOT EMPOWER US TO ENFORCE OTHER AGENCIES' LEGAL DETERMINATIONS; AND (3) WE HAVE TRADITIONALLY DECLINED TO BECOME INVOLVED IN FEDERAL EMPLOYMENT DISCRIMINATION MATTERS, IN VIEW OF EEOC'S STATUTORY AUTHORITY FOR HANDLING THOSE MATTERS.

RICHARD D. KOMER, ESQ.:

BY LETTER OF SEPTEMBER 18, 1986, YOU ASKED US TO COMMENT ON ONE OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S PROPOSED AMENDMENTS TO 29 C.F.R. PART 1613, THE REGULATIONS WHICH GOVERN EEOC'S PROCESSING OF DISCRIMINATION COMPLAINTS FILED BY FEDERAL EMPLOYEES UNDER SECTION 717 OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. SEC. 2000E-16 (1982). THE PROPOSED AMENDMENT IN QUESTION, 29 C.F.R. SEC. 1613.239, 51 FED.REG. 29,482, 29,491 (1986), ESTABLISHES A PROCEDURE THROUGH WHICH EEOC MAY ENFORCE ITS APPELLATE DECISIONS ORDERING REMEDIAL ACTION IN FAVOR OF AN EMPLOYEE IN THE EVENT THAT THE EMPLOYING AGENCY REFUSES TO COMPLY WITH THE DECISION. PROPOSED SECTION 1613.239(C) ASSIGNS THE COMPTROLLER GENERAL OF THE UNITED STATES A ROLE IN THE ENFORCEMENT PROCESS, STATING:

"(C) CERTIFICATION TO THE COMPTROLLER GENERAL. WHERE APPROPRIATE, THE COMMISSION MAY CERTIFY AN AGENCY'S REFUSAL TO COMPLY WITH A DECISION RENDERED BY THE COMMISSION IN ACCORDANCE WITH THE COMPTROLLER GENERAL'S AUTHORITY TO ADJUST ALL CLAIMS OR DEMANDS AGAINST THE GOVERNMENT PURSUANT TO 31 U.S.C. 71 NOW 31 U.S.C. SEC. 3702(A)."

YOU EXPLAIN IN YOUR LETTER THAT EEOC HAS PROPOSED THE ABOVE-QUOTED PROVISION BECAUSE IT DOES NOT HAVE AUTHORITY UNDER SECTION 717 OF TITLE VII TO ENFORCE ITS OWN DECISIONS. YOU SUGGEST THAT THE COMPTROLLER GENERAL HAS AUTHORITY TO ENFORCE EEOC'S DECISIONS BY VIRTUE OF 31 U.S.C. SEC. 3702(A) (1982), WHICH PROVIDES THAT THE COMPTROLLER GENERAL SHALL SETTLE ALL CLAIMS BY OR AGAINST THE GOVERNMENT. ADDITIONALLY, YOUR STAFF EXPLAINED TO US THAT ONE ENFORCEMENT METHOD CONTEMPLATED BY 29 C.F.R. SEC. 1613.239(C) WOULD INVOLVE THE WITHHOLDING OF PAY FROM THE AGENCY OFFICIAL WHO REFUSES TO IMPLEMENT EEOC'S DECISION.

WE OBJECT TO ISSUANCE OF THE PROPOSED AMENDMENT IN 29 C.F.R. SEC. 1613.239(C) BECAUSE WE FIND NO LEGAL BASIS SANCTIONING THE PROPOSED ENFORCEMENT ARRANGEMENT. SECTION 717 OF TITLE VII DOES NOT ITSELF AUTHORIZE EEOC TO CERTIFY AN AGENCY'S FAILURE TO COMPLY WITH ITS DECISIONS TO THE COMPTROLLER GENERAL OR TO ORDER THE WITHHOLDING OF PAY FROM A NONCOMPLYING AGENCY OFFICIAL, AND WE ARE NOT AWARE OF ANY OTHER SOURCE PROVIDING SUCH AUTHORIZATION. IN CONTRAST, WE NOTE THAT REGULATIONS OF THE MERIT SYSTEMS PROTECTION BOARD (MSPB) WHICH ARE CONTAINED IN 5 C.F.R. SEC. 1201.184 (1986) AND PRESCRIBE AN ENFORCEMENT PROCESS SIMILAR TO THAT WHICH EEOC NOW PROPOSES ARE BASED ON 5 U.S.C. SEC. 1205(D)(2) (1982), WHICH SPECIFICALLY EMPOWERS MSPB TO ENFORCE ITS FINAL DECISION BY ORDERING THE WITHHOLDING OF PAY FROM A NONCOMPLYING AGENCY OFFICIAL AND CERTIFYING THIS WITHHOLDING ORDER TO THE COMPTROLLER GENERAL.

IN THE ABSENCE OF SPECIFIC LEGAL AUTHORITY FOR THE ENFORCEMENT ARRANGEMENT PROPOSED IN 29 C.F.R. SEC. 1613.239(C), WE DO NOT AGREE THAT THE ARRANGEMENT FALLS WITHIN OUR CLAIMS SETTLEMENT JURISDICTION UNDER 31 U.S.C. SEC. 3702(A). OUR AUTHORITY UNDER SECTION 3702(A) TO SETTLE CLAIMS BY AND AGAINST THE GOVERNMENT PERMITS US TO ADMINISTRATIVELY DETERMINE THE VALIDITY OF A CLAIM, NOT TO ENFORCE LEGAL DETERMINATIONS MADE BY OTHER AGENCIES.

FINALLY, IN VIEW OF THE EXCLUSIVE ADMINISTRATIVE AUTHORITY WHICH SECTION 717 OF TITLE VII GRANTS TO EEOC, WE HAVE TRADITIONALLY DECLINED TO BECOME INVOLVED IN EEOC'S PROCESSING OF FEDERAL DISCRIMINATION COMPLAINTS. SEE 62 COMP.GEN. 239, 242 (1983); CLEM H. GIFFORD, B-193834, JUNE 13, 1979. WE HAVE BEEN WILLING TO ISSUE LEGAL DECISIONS ONLY ON QUESTIONS CONCERNING THE LEGALITY OF AWARDS AGREED TO BY AGENCIES IN THE INFORMAL SETTLEMENT OF DISCRIMINATION COMPLAINTS, AND OUR ASSUMPTION OF JURISDICTION IN THAT CONTEXT IS BASED ON OUR AUTHORITY UNDER 31 U.S.C. SEC. 3526 (1982) TO DETERMINE THE LEGALITY OF EXPENDITURES OF APPROPRIATED FUNDS. SEE 62 COMP.GEN. 239, CITED ABOVE.

ACCORDINGLY, FOR THE FOREGOING REASONS, WE URGE THAT YOU DELETE THE PROPOSED PROVISIONS OF 29 C.F.R. SEC. 1613.239(C) FROM THE FINAL REGULATIONS IN PART 1613.