United States of America v. State of Rhode Island Department of Corrections et al
Filing
22
MEMORANDUM AND ORDER denying 9 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge William E. Smith on 1/29/15. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 14-78 S
)
RHODE ISLAND DEPARTMENT OF
)
CORRECTIONS; and
)
STATE OF RHODE ISLAND,
)
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
The Court is confronted with a seemingly straightforward
pair
of
inquiries.
First,
what,
if
any,
procedural
prerequisites must the United States Attorney General abide by
in bringing a lawsuit under Section 707 of Title VII?
Second,
does any statute of limitations apply to such a lawsuit under
Section
questions
707(a)?
are
Upon
anything
consideration
but
simple
and
and
analysis,
require
an
these
extensive
examination of Title VII. 1
1
As some courts have noted, there is a “‘general dearth of
authority’ on the issue of what Title VII prerequisites the
United States is required to follow” under Section 707(a).
United States v. McHenry Cnty., No. 94 C 50086, 1994 WL 447419,
at *4 (N.D. Ill. Aug. 17, 1994) (quoting United States v. N.
Mariana Islands, Civ. A. No. 92–0016, 1993 WL 763588, at *1
Here,
the
United
States
Attorney
General
(“Attorney
General” or “Government”) initiated a lawsuit under Section 707
of Title VII against the Rhode Island Department of Corrections
(“DOC”)
and
the
State
of
Rhode
Island
(collectively
“Defendants”), alleging that the DOC engaged in a pattern or
practice of unintentional discrimination in its hiring practices
of correctional officers from 2000 to present.
The Attorney
General seeks an injunction to prevent future discrimination and
back-pay damages to “make whole” those who have been harmed by
the discriminatory practice in the past.
The DOC has moved to
dismiss the Complaint (ECF No. 9), arguing that the Attorney
General failed to comply with the procedural prerequisites set
out in Title VII, and did not bring this lawsuit within the time
period required to obtain back pay.
Because the Court determines that the Attorney General need
not clear the procedural hurdles set forth in Section 706 of
Title VII, and is not bound by a statute of limitations, the
DOC’s Motion to Dismiss is DENIED. 2
(D.N.M.I. Nov. 18, 1993)).
Since the McHenry and
Mariana Islands decisions this deficit has remained.
2
Northern
In practical effect the DOC’s Motion to Dismiss functions
alternatively as a Motion to Limit Damages, since it seeks to
partially cut off liability under a statute of limitations.
Consideration of this alternative is appropriate here because
the DOC advances a legal, not factual, argument. See Rob Evans
& Assoc., LLC v. United States, C.A. No. 12-cv-30130-MAP, 2013
WL 8351202 at *16 (D. Mass. Nov. 20, 2013) report &
2
I.
Background
Facts 3
A.
Since 2000, the DOC has used written and video examinations
for
screening
and
selecting
candidates
correction officer (“CO”) jobs.
for
entry-level
(Compl. ¶¶ 9-10.)
Candidates
must obtain passing scores on each of these exams to be placed
on an eligibility list for CO positions.
then
places
applicants
on
an
(Compl. ¶ 11.)
eligibility
list
in
DOC
descending
order based solely on their video examination scores.
From 2000 to 2011, approximately 94% of white applicants
passed
the
compared
to
written
74%
of
American applicants.
examination
Hispanic
for
entry-level
applicants
(Compl. ¶¶ 16-17.)
and
CO
74%
positions
of
African-
During the same time
period, approximately 66% of white applicants passed the video
examination
Hispanic
(Compl.
for
entry-level
applicants
¶¶
22-23.)
and
47%
CO
positions
of
Considering
compared
to
37%
of
African-American
applicants.
the
both
scores
from
tests
recommendation adopted, C.A. No. 12-cv-30130-MAP, 2014 WL
1304014 (D. Mass. Mar. 31, 2014) (holding Court may properly
consider limitation of damages on motion for judgment on
pleadings where question of limiting damages turns on legal
determination); see also Warner v. United States, C.A. No. 09036-ML, 2010 WL 2024766, at *1 (D.R.I. May 18, 2010) (limiting
damage recovery in pre-trial motion).
3
The facts are taken from Plaintiff’s Complaint and are
assumed to be true.
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007).
The parties also agree that they discussed a
negotiated settlement in November 2013, but no such agreement
was reached.
3
combined,
approximately
63%
of
white
applicants
passed
both
tests compared to 33% of Hispanic applicants and 41% of AfricanAmerican applicants from 2000 to 2011.
(Compl. ¶¶ 24-25.)
The
DOC initiated the written and video examination process most
recently in November 2013, but the results from this round of
testing have not been used.
On February 2, 2014, relying upon these statistics, the
United
States
Department
of
Justice
(“DOJ”)
initiated
this
lawsuit on behalf of the Attorney General, seeking injunctive
relief
and
back
pay
for
those
individuals
affected; 4
the
investigation into whether such a lawsuit should be filed began
long before that date.
DOJ
stated
that
it
In a letter sent in September 2009, the
had
information
indicating
that
“the
percentages of black, Hispanic and female correctional officers
at the [DOC] are significantly lower than would be expected for
an agency of this type.”
The letter further informed the DOC
that the DOJ would be conducting an investigation into whether a
pattern
or
practice
of
discrimination
was
to
blame
for
this
discrepancy.
4
While the Complaint alleges improper conduct by the DOC
since 2000, during oral argument, the DOJ specified that it
would only be seeking back pay for conduct “starting two years
before the notice of investigation letter when the United States
provided Rhode Island with notice that it could face Title VII
liability for the way it hires correction officers.”
(Tr. of
Mot. to Dismiss 23, ECF No. 21.)
4
This investigation concluded in November 2013, when the DOJ
notified the state of the Attorney General’s intention to bring
suit
if
a
negotiated
resolution
could
not
be
reached. 5
No
resolution was reached.
B.
Statutory Framework
1.
The
Title VII
Attorney
General
has
Section 707(a) of Title VII.
brought
this
case
pursuant
to
In pertinent part, this provision
states:
Whenever the Attorney General has reasonable cause to
believe that any person or group of persons is engaged
in a pattern or practice of resistance to the full
enjoyment of any of the rights secured by this
subchapter, and that the pattern or practice is of
such a nature and is intended to deny the full
exercise of the rights herein described, the Attorney
General may bring a civil action in the appropriate
district court of the United States by filing with it
a complaint . . . .
42 U.S.C. § 2000e-6(a).
Some courts have held that to initiate
a case under Section 707(a), the Attorney General must merely
comport
with
the
letter
of
this
statute
reasonable cause exists to file a suit.
and
believe
that
See United States v.
Masonry Contractors Ass’n. of Memphis, Inc., 497 F.2d 871, 87576 (6th Cir. 1974); United States v. New Jersey, 473 F. Supp.
1199, 1203-05 (D.N.J. 1979) (same); Lanning v. Se. Pennsylvania
Transp. Auth., 176 F.R.D. 132, 140 (E.D. Pa. 1997) (“It is well5
From September 2009 to November 2013, the DOC cooperated
with the Government investigation.
5
established that the administrative requirements of Section 706,
including the obligation to engage in conciliation, do not apply
to cases brought by the Attorney General under Section 707.”).
At
least
one
court,
however,
has
opined
that
the
Attorney
General is likely bound to follow the prerequisites found in
Section 706 of Title VII, which are discussed in more detail
below.
United States v. Fresno Unified Sch. Dist., 592 F.2d
1088, 1095-96 (9th Cir. 1979) (noting that it appeared as though
Congress intended to apply the requirements of Section 706 to
Section 707).
Meanwhile, a different subsection of Section 707 authorizes
the
Equal
Employment
Opportunity
Commission
(“EEOC”)
to
“investigate and act on a charge of a pattern or practice of
discrimination,
whether
filed
by
or
on
behalf
of
a
person
claiming to be aggrieved or by a member of the Commission.”
U.S.C § 2000e-6(e).
42
Such actions, however, “shall be conducted
in accordance with the procedures set forth in [Section 706] of
this title.”
Id.
These Section 706 procedures require, among other things,
that an individual alleging an unlawful employment practice must
file a charge with the EEOC within 180 days of the alleged
unlawful employment action.
Id. § 2000e-5(e)(1).
provides the employer with notice of this charge.
5(b).
Section
706
further
requires
6
that
the
The EEOC then
Id. § 2000eEEOC
promptly
investigate any unlawful employment action within 120 days.
at
§
2000e-5(b).
If
the
EEOC
determines
that
Id.
“there
is
reasonable cause to believe that the charge is true,” then it
must engage in conciliation to try to informally eliminate the
offending
action.
Id.
§
2000e-5(b).
Section
706(e)(3)(B)
limits back pay to two years preceding the filing of a charge
with the EEOC.
The
parties’
examination
of
contentions
the
history
in
case
require
Section
of
this
707.
While
a
close
“Section
707(a) of Title VII . . . has remained unchanged since its
enactment
States
as
v.
part
City
of
of
the
Civil
Yonkers,
592
Rights
F.
Act
Supp.
of
570,
1964,”
573
United
(S.D.N.Y.
1984), the 1970s saw significant upheaval with respect to the
remaining subsections of Section 707.
This statutory turmoil
was discussed in great detail in City of Yonkers and will be
recounted here briefly.
First, in 1972, Congress amended the definition of “person”
in
Title
VII,
to
include
“governments,
governmental
agencies
[and] political subdivisions.”
42 U.S.C. § 2000e(a); Pub. L.
No.
103
92-261,
§
2(1),
86
Stat.
Yonkers, 592 F. Supp. at 573.
subsections
707(d).
to
Section
707
(1972);
see
also
City
of
Second, Congress added two new
in
1972
--
Sections
707(c)
and
Section 707(c) provided that, effective March 24, 1974,
the EEOC would take over the functions of the Attorney General
7
“under this section . . . unless the President submits, and
neither House of Congress vetoes, a reorganization plan pursuant
to chapter 9 of Title 5, inconsistent with the provisions of
this subsection. The Commission shall carry out such functions
in accordance with subsections (d) and (e) of this section.”
Section 707(d) simply provided that when the functions of the
Attorney General were transferred to the EEOC, any pending case
“shall continue without abatement, all court orders and decrees
shall remain in effect, and the Commission shall be substituted
as
a
party
for
the
United
States
of
America,
the
Attorney
General, or the Acting Attorney General, as appropriate.”
From 1974 to 1978 confusion reigned in the federal courts
concerning
whether
Section
707(c)
completely
stripped
the
Attorney General of authority to initiate pattern or practice
lawsuits.
evolution
See New Jersey, 473 F. Supp. at 1203-05 (discussing
of
statute).
In
an
attempt
to
clear
up
this
confusion, in 1978 President Jimmy Carter issued Reorganization
Plan
No.
1
under
the
Reorganization
Act
of
1978.
Reorganization Plan stated:
Any function of the [EEOC] concerning initiation of
litigation with respect to State or local government,
or political subdivisions under Section 707 of Title
VII of the Civil Rights Act of 1964, as amended, (42
U.S.C. 2000e-6, [section 2000e-6 of this title] and
all necessary functions related thereto, including
investigation, findings, notice and an opportunity to
resolve the matter without contested litigation, are
hereby transferred to the Attorney General, to be
8
This
exercised
by
him in
accordance
with
procedures
consistent with said Title VII [section 2000e et seq.
of this title]. The Attorney General is authorized to
delegate any function under Section 707 of said Title
VII [section 2000e-6 of Title 42, The Public Health
and Welfare].
The Attorney General is authorized to
delegate any function under Section 707 of said Title
VII to any officer or employee of the Department of
Justice.
Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19807, 92 Stat.
3781, reprinted at 5 U.S.C. App. at 423.
This plan was transmitted by the President to Congress on
February
23,
1978.
United
States
v.
Baltimore
Cnty.,
Civil
Action No. H78-836, 1978 WL 93, at *2-3 (D. Md. July 3, 1978).
Through
Congressional
inaction
it
became
law.
See
5
U.S.C.
§ 906; H.R. Rep. 98-128 (noting that the current version of the
Reorganization
Act
important
–
way
reorganization
differs
namely
plans
from
the
became
the
pre-1984
pre-1984
effective
version
version
unless
in
provided
either
an
that
house
of
Congress passed a resolution disapproving of the plan within a
required period of time).
of
1978
Order
became
No.
clarify
effective,
12068,
the
At the time Reorganization Plan No. 1
President
specifying
Attorney
that
General's
Carter
this
issued
order
authority
to
was
Executive
meant
initiate
“to
public
sector litigation under Section 707 of Title VII of the Civil
Rights Act of 1964.”
Executive Order No. 12068 also specified
that “[t]he functions transferred to the Attorney General by
section 5 of the Reorganization Plan Number 1 of 1978 [set out
9
as a note under section 2000e-4 of this title] shall, consistent
with section 707 of Title VII of the Civil Rights Act of 1964,
as
amended
[this
Department
of
section 707.”
section],
Justice
be
performed
procedures
in
accordance
with
followed
under
heretofore
Exec. Order No. 12068, 43 Fed. Reg. 19807 (June
30, 1978).
2.
The Reorganization Act
Finally,
to
properly
examine
the
impact
of
the
Reorganization Act, one must understand that peculiar statute.
The Reorganization Act provides a mechanism for the President
“to
promote
effective
the
better
management
901(a)(1).
execution
of
the
of
executive
the
laws”
branch.”
and
5
“more
U.S.C.
§
Under this law, the President may “from time to time
examine the organization of all agencies and shall determine
what
changes
§ 901(d).
in
such
organization
are
necessary.”
Id.
at
When the President decides reorganization is needed,
he must send his proposal for such a change to Congress.
At the time President Carter sent Reorganization Plan No. 1
of
1978
to
Congress,
the
Reorganization
Act
contained
a
legislative veto provision, which permitted either the House of
Representatives or the Senate to derail a proposal by passing a
resolution.
Reorganization
See
id.
Plan
§
906;
No.
1
H.R.
of
10
Rep.
1978
98-128.
became
Therefore,
law
through
congressional
inaction,
rather
than
affirmative
approval
from
legislators. 6
DOC’s Motion to Dismiss argues that the Attorney General
failed to follow the required procedures set out in Section 706
of Title VII.
Alternatively, the DOC argues that the Attorney
General failed to file its lawsuit within the applicable statute
of limitations to obtain individual relief.
In response, the
DOJ asserts that the Attorney General is not required to comport
with any prerequisites and must merely have reasonable cause to
bring a suit under Section 707(a).
II.
Discussion
A.
Section 707(a) and Statutory Prerequisites
After careful consideration, the Court has determined that
the
Attorney
General,
while
bringing
a
lawsuit
pursuant
to
Section 707 of Title VII, is not required to adhere to any of
the
statutory
statute.
prerequisites
This
holding
is
found
in
consistent
Section
with
706
the
of
weight
that
of
authority on the issue.
New Jersey, 473 F. Supp. at 1203-05;
Lanning,
140;
176
F.R.D.
at
cf.
6
EEOC
v.
Freeman,
No.
RWT
Ultimately, in INS v. Chadha, 462 U.S. 919 (1983), the
Supreme Court held these kinds of legislative vetoes were
unconstitutional.
This Court need not delve into the impact
Chadha has on this case since Congress subsequently “ratifie[ed]
and affirm[ed] as law each reorganization plan” implemented
before the Chadha decision.
Pub. L. No. 98–532, § 1, 98 Stat.
2705 (1984); Guidry v. Sheet Metal Workers Int’l Ass’n, Local
No. 9, 10 F.3d 700, 709 (10th Cir. 1993).
11
09cv2573,
2010
WL
1728847,
at
*4
(D.
Md.
Apr.
27,
2010)
(“Suffice it to say, the EEOC's authority, unlike that possessed
by the DOJ, is restricted by the procedures set forth in Section
706.”).
There is no doubt that the Attorney General was under no
burden to comply with Section 706 prior to the 1972 amendments
to Section 707.
76.
See Masonry Contractors Ass’n, 497 F.2d at 875-
Whether these amendments, coupled with Reorganization Plan
No. 1 of 1978 and Executive Order No. 12068, created additional
obligations for the Attorney General is the question presented
here.
Executive
contain
slightly
Order
No.
12068
different
and
Reorganization
language.
Whereas
Plan
under
1
the
Executive Order the Attorney General is ordered to perform his
duties
consistent
policies,
with
Reorganization
“Section
Plan
No.
707
1
of
Title
calls
VII”
upon
and
the
DOJ
Attorney
General to act “in accordance with procedures consistent with
said Title VII [section 2000e et seq. of Title 42, The Public
Health and Welfare].”
In Executive Order No. 12068, President Carter identified
the United States Constitution and the Reorganization Act as his
sources
of
power.
“If
an
executive
order
has
a
specific
statutory foundation it is given the effect of a congressional
statute.”
City of Albuquerque v. U.S. Dep't of Interior, 379
F.3d
913-14
901,
(10th
Cir.
2004)
12
(holding
statute
giving
President authority to set “policies and directives” necessary
to enforce the Federal Property and Administrative Services Act
of
1949
related
provided
to
the
statutory
selection
foundation
of
federal
for
executive
space
office
order
urban
in
areas); Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 n.1
(5th
Cir.
procurement
1967)
(holding
provided
statute
statutory
related
foundation
for
to
government
executive
order
prohibiting discrimination in government contracting); see also
Contractors Ass'n of E. Pa. v. Sec'y of Labor, 442 F.2d 159,
167-71 (3d Cir. 1971) (discussing history of executive orders). 7
Meanwhile,
if
an
executive
order
conflicts
statute, the executive order must fall.
with
an
existing
See Chamber of Commerce
of U.S. v. Reich, 74 F.3d 1322, 1332-34 (D.C. Cir. 1996).
In this case, the Reorganization Act gave the President the
authority to issue Executive Order No. 12068.
F. Supp. at 1205 n.13.
Executive
Order
New Jersey, 473
Thus, both Reorganization Plan No. 1 and
12068
carry
the
effect
of
Congressionally
enacted statutes, which became effective at roughly the same
time
but
which
“[declines]
to
contain
read
the
somewhat
statutes
7
varied
as
language.
being
in
The
Court
irreconcilable
Supreme Court Justice Robert H. Jackson famously reasoned
that a President is acting at the height of his authority when
he acts pursuant to express or implied authorization from
Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635-38 (1952) (Jackson, J., concurring).
13
conflict
without
Congress.”
The
seeking
to
ascertain
the
actual
intent
of
Watt v. Alaska, 451 U.S. 259, 266 (1981).
1972
amendments
to
Section
707
were
widely
seen
as
divesting the Attorney General of the power to bring pattern or
practice lawsuits.
05.
See, e.g., New Jersey, 473 F. Supp. at 1203-
Reorganization Plan No. 1 sought to correct this apparently
unintended consequence.
See Executive Order No. 12068.
Nowhere
in the history surrounding the 1972 amendments, Reorganization
Plan No. 1, or Executive Order No. 12068 does Congress or the
President make plain their intention to impose new requirements
on
the
Attorney
707(a).
General
in
bringing
an
action
under
Section
Congress or the President “might be expected to have
mentioned
a
change”
that
would
so
significantly
obligations of the Attorney General under Title VII.
451 U.S. at 271.
alter
the
See Watt,
The best reading of Reorganization Plan No. 1
and Executive Order No. 12068 is the approach taken by most
courts to date, see, e.g., Lanning, 176 F.R.D. at 140, which
have held that these two documents clarify that the Attorney
General
may
bring
pattern
or
practice
lawsuits,
but
do
not
create additional requirements for the Attorney General in doing
so. 8
See
also New
Jersey,
473 F.
8
Supp.
at 1205
(reviewing
United States v. Fresno Unified Sch. Dist., 592 F.2d 1088,
1095-96 (9th Cir. 1979) remains the only case that cuts against
this determination 35 years after that opinion was issued. Even
still, the statement in Fresno that Congress intended to impose
14
legislative
amendment
history
in
1972
and
and
holding
that
Reorganization
following
Plan
No.
1
statutory
in
1978,
Attorney General was not required to follow prerequisites of
Section 706); Baltimore Cnty., 1978 WL 93, at *4 (“The terms of
the Reorganization Plan specify that the Attorney General should
exercise his authority ‘in accordance with procedures consistent
with said Title VII.’
The Attorney General is not under the law
required
regulations
to
follow
promulgated
by
the
Equal
Employment Opportunity Commission which apply where a private
employer is involved.”).
For the reasons stated above, the DOC’s Motion to Dismiss
with respect to the Attorney General’s obligations to follow the
prerequisites found in Section 706 of Title VII is denied. 9
B.
Section 707(a) and Statute of Limitations
The statutory prerequisites found in Section 706 discussed
above effectively limit the potential back-pay exposure faced by
defendants in a Title VII lawsuit to two years from the filing
of a charge with the EEOC. 42 U.S.C § 2000e-5(e)(3)(B).
For
the requirements of Section 706 on the Attorney General in
Section 707 is dicta.
The Ninth Circuit in Fresno recognized
that neither of the parties before it had addressed this issue
and that the question was not properly before the court.
9
Still, if the Attorney General was obligated to satisfy
these requirements, he did so by informing the DOC of the
charges leveled against it first in September 2009 and more
fully in November 2013, and then engaging in meaningful
conciliation.
15
this and other reasons, the Supreme Court held that no statute
of limitations applies to an action brought under Section 706.
Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367-72
(1977).
Section 707(a) has no similar prerequisites, and this
distinguishes the present case from Occidental.
It is at least
arguable that some statute of limitations or damage limitation
should be applied to an action brought by the Attorney General,
which
might
result
in
individuals
receiving
back
pay.
Otherwise, the Attorney General could wait for many years to
initiate a lawsuit, and then demand a vast back pay award for
putative victims of discrimination – a result that would be both
unfair
to
the
state
defendant,
and
virtually
impossible
to
administer.
The DOC argues that the Attorney General must be subject to
a statute of limitations when pursuing back pay for individuals,
citing authority from the Fifth Circuit Court of Appeals that is
now more than 40 years old.
See United States v. Georgia Power
Co., 474 F.2d 906, 919 (5th Cir. 1973). 10
10
The DOC proposes that
The DOC’s argument that a statute of limitations should
apply has logical appeal.
If no limitation period applies, a
defendant in a Section 707(a) case could face back pay liability
limited only by the passage of Title VII in 1964, whereas a
defendant to a lawsuit brought under Section 706 or Section
707(e) would face liability for only two years from the filing
of a charge.
Such a dynamic appears untenable.
On the other
hand, Section 707(a) contemplates lawsuits based on a “pattern
or practice.” Patterns or practices are not discrete events and
16
the
Rhode
Island
statute
of
limitations
against the state apply to this case.
for
actions
brought
However, for the reasons
that follow, the Court agrees with the Attorney General that
subsequent precedent has eroded the force of Georgia Power.
a
result,
the
DOC’s
Motion
to
Dismiss
with
respect
to
As
its
statute of limitations issue is denied.
Still,
the
Court
has
reservations
about
this
outcome.
These concerns are dissipated in part by the DOJ’s statement
during oral argument that it will only pursue back pay from
September 2007 onward.
Additionally, when the DOC submits its
Answer to the Complaint, the DOC could raise laches as a defense
in
an
attempt
to
further
limit
damages.
See
Marshall
v.
Intermountain Elec. Co., 614 F.2d 260, 261-62 (10th Cir. 1980).
Under
“such
Section
relief,
707(a),
including
an
the
Attorney
application
General
for
a
may
request
permanent
or
temporary injunction, restraining order or other order against
the person or persons responsible for such pattern or practice,
as he deems necessary to insure full enjoyment of the rights
herein described.”
Courts have understood this provision to
confer upon the Attorney General the right to obtain back pay
for
aggrieved
individuals.
Georgia
Power,
474
F.2d
at
919
(discussing legislative history of Title VII, which indicates
only come into focus through time, suggesting a hard and fast
limitation period may well be contrary to the will of Congress.
17
desire to permit Attorney General to pursue back pay); see also
Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360-62
(1977) (discussing ability of Government to pursue individual
relief in Title VII lawsuit).
Long-standing precedent establishes that the United States
Government need not adhere to any statute of limitation when
enforcing
sovereign
rights,
created a time limit.
States,
304
U.S.
unless
Congress
has
expressly
See Guar. Trust Co. of N.Y. v. United
126,
132-33
(1938)
(explaining
that
rule
exempting Government from statute of limitations “appears to be
a vestigial survival of the prerogative of the Crown” but may
not be justified “because its benefit and advantage extend to
every citizen, including the defendant, whose plea of laches or
limitation it precludes; and its uniform survival in the United
States has been generally accounted for and justified on grounds
of policy rather than upon any inherited notions of the personal
privilege of the king.”)
This proposition, however, does not
apply when the Government enforces private rights.
614 F.2d at 262.
Marshall,
Thus, the question here is whether pursuit of
back pay constitutes a public or private right under Section
707(a).
The
case
Georgia Power.
most
on
point
with
respect
to
this
issue
is
There, the Fifth Circuit Court of Appeals held
that when the Attorney General brings a lawsuit for back pay
18
under Section 707(a) the federal district court should “borrow
the limitations period prescribed by the state where the court
sits.”
Georgia Power, 474 F.2d at 923 (internal citation and
quotation marks omitted); see also Masonry Contractors Ass’n,
497
F.2d
at
877
(adopting
Georgia
Power’s
holding
that
applicable state statute of limitation should apply, but finding
that defendant had failed to raise statute of limitations as a
defense).
The
court
in
Georgia
Power
reasoned
that
when
a
pattern or practice lawsuit acts as a “legal conduit for the
recovery
of
treasury,
sums
it
is
a
due
individual
private
and
citizens
not
a
rather
public
than
action”
therefore subject to a statute of limitations.
the
and
is
Georgia Power,
474 F. 2d at 923.
The Attorney General argues that two United States Supreme
Court cases issued after Georgia Power and Masonry Contractors
Association
render
those
decisions
inapplicable
because
these
more recent cases establish that, even when pursuing individual
benefits in a Title VII case, the Government acts within its
sovereign capacity.
See EEOC v. Waffle House, Inc., 534 U.S.
279, 287-88 (2002); Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446
U.S. 318, 326 (1980).
In General Telephone, the Supreme Court
held that “[w]hen the EEOC acts, albeit at the behest of and for
the benefit of specific individuals, it acts also to vindicate
the
public
interest
in
preventing
19
employment
discrimination.”
446 U.S. at 326.
The Court reasoned that the 180 day exclusive
jurisdiction possessed by the EEOC under Section 706 established
that the agency was not serving merely as a proxy for bringing
these actions.
Id. at 323.
In Waffle House, while addressing
an unrelated issue, the Supreme Court reaffirmed its position
that
the
EEOC
did
not
merely
actions under Title VII.
serve
as
a
proxy
in
bringing
Waffle House, 534 U.S. at 288.
The
Government argues, with a great deal of persuasion, that when
bringing a Section 707(a) action the Attorney General similarly
acts for the benefit of individuals while vindicating the public
interest.
Waffle House and General Telephone are obviously not
directly
on
General,
and
point;
as
both
involved
discussed
above
the
EEOC,
there
are
not
the
Attorney
differences.
But
these differences do nothing to lessen the larger point made by
the Supreme Court in these cases – indeed, the interest of the
public may be even more central to an action brought by the
federal government against a state agency such as the DOC.
Without relying on General Telephone or Waffle House, the
district court in City of Yonkers reached the conclusion the
Attorney General champions.
589.
City of Yonkers, 592 F. Supp. at
There the district court exhaustively analyzed the history
of Section 707(a) and found that because Title VII vindicates a
broad public interest, a statute of limitation should not apply.
Id. at 588.
The Court reasoned: “Though the relief sought may
20
include
back
pay
for
specific
individuals
or
a
class,
the
pattern-or-practice action is decidedly not ‘a case where the
Government, although a nominal complainant party, has no real
interest in the litigation, but has allowed its name to be used
therein
for
the
sole
benefit
of
a
private
person.’”
Id.
(quoting United States v. Beebe, 127 U.S. 338, 344 (1888)); see
also Franks v. Bowman Transp. Co., 424 U.S. 747, 778 n.40 (1976)
(stating
that
claims
brought
“under
Title
VII
involve
the
vindication of a major public interest”).
City of Yonkers is forceful precedent and it is buttressed
by the Supreme Court holdings in General Telephone and Waffle
House.
But the question of how the holding of Georgia Power and
the rationale of Masonry Contractors Association is affected by
these two cases appears to be an open question, not directly
addressed to date by any court. 11
Thus, it is useful for the
Court to look to other federal statutes that potentially confer
both public and private benefits for guidance.
11
City of Yonkers conducted a similar inquiry but did not
rely on General Telephone and did not have the benefit of Waffle
House.
Additionally, when the Ninth Circuit Court of Appeals
heard EEOC v. Occidental Life Insurance Co. of Cal., that court
rejected the holding of Georgia Power, relying instead on Fifth
Circuit Court of Appeals precedent concerning the National Labor
Relations Act, which held that no statute of limitations applies
pursuant to that law even when pursuing back pay.
EEOC v.
Occidental Life Ins. Co. of Cal., 535 F.2d 533, 538 (9th Cir.
1976), aff'd, 432 U.S. 355 (1977).
21
Two examples shine through.
First, as discussed by the
Ninth Circuit in Occidental, when pursing back pay under the
National Labor Relations Act the Government is not subject to a
statute of limitations.
Nabors v. NLRB, 323 F.2d 686, 688-89
(5th Cir. 1963) (holding that NLRB acts in public capacity and
“[t]he
fact
that
these
proceedings
operate
to
confer
an
incidental benefit on private persons does not detract from this
public purpose”).
The Occupational Safety and Health Act of
1970 also provides a mechanism by which an arm of the federal
government, the Secretary of Labor, may secure monetary benefits
for individuals through litigation.
261-62.
See Marshall, 614 F.2d at
The Tenth Circuit Court of Appeals held that because
these actions implicate both public and private rights, no state
statute of limitation should apply.
Circuit
held,
Government
however,
vindicates
that
both
in
of
Id. at 263.
“hybrid”
those
actions
kinds
of
The Tenth
where
rights,
doctrine of laches may be applied . . . to limit relief.”
the
“the
Id.
After reviewing the history of Title VII in general and
Section
707(a)
in
particular,
analyzing
the
caselaw
decided
under Title VII, and reviewing caselaw from analogous federal
statutes, the Court finds that no statute of limitation should
apply to the Attorney General in this case, even though he seeks
both an injunction and back pay for individuals.
The potential
unfairness of this situation suggests some middle ground may be
22
appropriate.
The Court finds merit in the compromise found by
the Tenth Circuit in Marshall.
Here, the Attorney General vindicates sovereign rights by
obtaining
an
injunction
discriminatory
precluding
actions.
employment
the
He
public
employer
vindicates
private rights in obtaining individual back pay.
from
public
and
Therefore, the
DOC is not prohibited from seeking to limit damages further by
the application of laches at a later stage in this case. 12
For
now, however, the Attorney General is subject to no statute of
limitations, but will be held to its representation to the Court
at
oral
argument
that
he
will
only
pursue
back
pay
from
September 2007 onward.
III. Conclusion
For
the
reasons
set
forth
above,
Defendant’s
Motion
to
Dismiss is DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: January 29, 2015
12
The Supreme Court noted in Occidental that “when a Title
VII defendant is in fact prejudiced by a private plaintiff's
unexcused conduct of a particular case, the trial court may
restrict or even deny [back pay] relief . . . . The same
discretionary power to locate a just result in light of the
circumstances peculiar to the case, can also be exercised when
the EEOC is the plaintiff.”
Occidental 432 U.S. at 373
(internal citations and quotation marks omitted).
23
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