congressional mandate. There is no such mandate here.
Plaintiffs rely for support of their position in this regard on the Administrative Procedure Act, 5 U.S.C. § 553, and on Executive Order No. 12067, 43 Fed. Reg. 28967 (1978).
The APA provides that review may be had in the courts for "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. The complaint in this case fails with respect to both parts of that standard.
First. "Final agency action" is characterized by the imposition of an obligation, the denial of a right, or the fixing of a legal relationship. Department of Justice v. Federal Labor Relations Authority, 727 F.2d 481, 493 (5th Cir. 1984); see also New York Stock Exchange v. Bloom, 183 U.S. App. D.C. 217, 562 F.2d 736, 741-42 (D.C. Cir. 1973). The Supreme Court has squarely held that the initiation of enforcement proceedings is not subject to APA review inasmuch as the filing of a complaint is no more than a threshold determination that further inquiry is warranted and has no legal force except to the extent of requiring a response. Federal Trade Commission v. Standard Oil of California, 449 U.S. 232, 241-42, 66 L. Ed. 2d 416, 101 S. Ct. 488 (1980). So here. If the Attorney General decides to file, has filed, or files in the future motions to reopen or modify decrees in various courts, those acts alone cannot and will not deny rights or create legal obligations or relationships.
Only the courts to which the Attorney General's motions are addressed have the power to take any of these steps, and it is these courts, not the Attorney General, which take final action.
Second. Plaintiffs likewise cannot satisfy the second prong of the APA requirement, for almost by definition they have an adequate remedy in a court, that is, the remedy of opposing the Attorney General's motions in the court in which he files his papers. Not only would the filing of such an opposition there be a judicial remedy obviating the need for resort to the APA in this District, but it is a far more appropriate, far more logical remedy than a lawsuit here seeking injunctive relief. See Part II, infra.9
Plaintiffs fare no better under Executive Order 12067. That order, issued in 1978, grants to the EEOC a "leadership" and "coordination" role with respect to equal employment discrimination prohibited by Title VII. See section 1-2 of the Executive Order, reprinted at 42 U.S.C.A. § 2000e at 25 (1981).
There is nothing whatever in these rather vague terms -- or indeed in the history of the order -- that would suggest that it requires the Department of Justice to conform the exercise of its statutory responsibilities to the policies adopted by the EEOC.
Almost since the inception of the Republic, the Attorney General has had the responsibility for litigation in the courts in the name of the United States, subject, of course, to the direction of the President.
The Attorney General's power is now codified in several explicit sections of the United States Code, 28 U.S.C. §§ 516, 517, and 519. See also, Heckler v. Chaney, supra. If the President had intended by his Executive Order to have the EEOC dictate to the Attorney General with respect to individual prosecutions or to prosecution policy generally,
that intention would have been expressed in far more mandatory, far less ambiguous language.
In fact, the last subsection of the Executive Order conveys a far different intent: it specifically provides that "nothing in this order shall limit the Attorney General's role as the legal adviser to the Executive Branch." Section 1-502.
In short, the constitutional principle of the separation of powers stands as an obstacle to the relief requested by plaintiffs.
As noted, the complaint requests the issuance of an order which would, inter alia, preclude the Attorney General from filing motions for modification in lawsuits pending in other courts and prohibit him from consenting to any such modification. Any such order would, of course, directly affect the course of the litigation in these courts, and it would, indeed, interfere directly with their jurisdiction over the lawsuits.
The pernicious effect of such interference can be demonstrated by a few simple examples. Suppose there were circumstances in a case pending in a particular court which called for a genuine, good faith request for a modification. Is one of the parties to the lawsuit, i.e., the Department of Justice, to be precluded by another court, sitting in Washington, D.C., from presenting the new factual or legal situation to the tribunal having jurisdiction over the action?
Even more, suppose another party to the lawsuit in the court having jurisdiction of the substantive controversy requests a reopening or modification of the decree. Should the Department of Justice be compelled to advise the court that it is unable to respond to the request because of an order issued by this Court? These questions illustrate the breadth of the relief requested by plaintiffs and its contravention of principles of comity.
It must also be remembered that circumstances may and usually do vary substantially from city to city and from case to case. Yet plaintiffs are requesting this Court to prohibit any acquiescence by the Department of Justice in the reopening or modification of decrees although this Court does not and cannot know what is contained in any particular decree, what factual record underlies either the decree or the request for modification, what parties are involved in the lawsuit other than the United States, and what compliance there has been with the provisions of a particular decree. It is obvious that, if only from a practical point of view, decisions concerning reopening and modification, whether requested by the Department of Justice or by any other party, can be made only by the court that has jurisdiction over the substantive controversy.
The law takes full account of these practicalities. As the Court of Appeals for the Fifth Circuit said in Mann Manufacturing, Inc. v. Hortex, Inc., 439 F.2d 403, 407-08 (5th Cir. 1971), quoting in part from Lapin v. Shulton, 333 F.2d 169, 172 (9th Cir. 1964):
It is well settled that the issuing court has continuing power to supervise and modify its injunctions . . . When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, "considerations of comity and orderly administration of justice demand that the nonrendering court should decline jurisdiction . . . and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there."