Before KOELSCH and TRASK, Circuit Judges, and PALMIERI,* District Judge.

PALMIERI, District Judge.

This is an appeal by plaintiff-intervenor Equal Employment Opportunity Commission (EEOC or Commission) from an order dismissing it with prejudice 'except for the administration of any Consent Decree entered' in the case. This action was filed in August 1972 by private plaintiffs alleging sex discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. II, 1972). Certifying that the case was one of general public importance, the EEOC moved for leave to intervene1 as a plaintiff in March 1973. Intervention was permitted by order of the District Court in June 1973. Following a motion by the private plaintiffs, supported by the Commission which promised to shoulder a large portion of the burden of managing the litigation, the suit was certified as a class action pursuant to Rule 24(b)(2), Fed.R.Civ.P., in July 1974. The scope of the class defined by the court was a very large one and included a nationwide class defined as 'all present female employees * * * all past female * * * employees who have terminated employment since September 1969 and all female applicants for jobs * * * since January 1, 1973.' The Commission gave unqualified assurances to the court that it was able and willing to assume management of any relief ordered by the court2 for this large, nationwide class, and pledged its impressive resources to this end.

After the successful intervention of EEOC and during the entire period of its participation in the litigation, one of its chief trial attorneys was assigned as its attorney of record. The large number of persons affected by the litigation, the extensive and diverse geographical areas involved, the lengthy period of time covered by the lawsuit and the nature of the evidence relevant to the issues, made the case one of considerable difficulty and complexity. The discovery undertaken was expensive and voluminous. It was energetically litigated and required the appointment of a special master. The District Court was justifiably concerned with the management problems posed by this litigation. The trial was expected to take at least three months. Following a motion by the private plaintiffs and the EEOC, it was ultimately set for December 16, 1974, and the trial judge reserved the three month period for the trial.

The situation which has precipitated this appeal arose within the context of settlement discussions. The discussions had begun in July 1974, and plaintiffs' and defendants' counsel had succeeded in agreeing upon a proposed consent decree by November 17, 1974.3 The EEOC was represented throughout the negotiations, actively participated in all phases of the discussions, and succeeded in conforming parts of the proposed decree to suit its interest. However, despite the professed satisfaction therewith by legal representatives of the EEOC, including the attorney of record, the settlement itself was in jeopardy because of the lack of formal consent by the EEOC--in effect the office of its General Counsel in Washington, D.C. In consequence, the District Court found itself on November 18, 1974, in a very unhappy position. It was faced with a commitment to undertake this lengthy and complex trial within less than one month, with discovery suspended and incomplete, and with the private plaintiffs and the defendants in accord regarding settlement but with counsel for the EEOC representing themselves to be without authority to commit the agency to a definitive position. On that date, all counsel, including the EEOC lead counsel, met with the district judge. In an effort to have the EEOC commit itself to a position on the settlement, counsel for the plaintiffs and defendants urged the judge to sign an order to show cause, returnable in one week, requiring the General Counsel for the EEOC or someone with authority to bind the EEOC to appear before the court and show cause why it should not execute the Consent Decree. The judge signed such on Order.4 It was clear to those present that this was intended to require the EEOC to have someone appear before the court who had authority to bind the EEOC.

This Order was served on the EEOC General Counsel on November 19. During that week the EEOC lead counsel in this case, who had been present at the signing of the Order, went to Washington, D.C. with one of the attorneys for the plaintiff class to talk with EEOC officials. The General Counsel did not meet with the them. The judge spoke by telephone with the General Counsel on November 22nd and 23rd and obtained an indication of his willingness to appear in court if the local EEOC representative so requested. However, on the return date, November 25, neither the General Counsel nor an agent with authority to bind the EEOC appeared. The court then advised the Commission that it had failed to comply with the court's Order, requested it to communicate with its General Counsel to tell him to appear the next day and took under advisement a motion to hold the EEOC in contempt.

Again, on November 26, neither the General Counsel nor an agent with authority to bind the EEOC appeared. The District Court found that the Commission had failed to comply with its order and that its non-compliance warranted the Commission's dismissal from the lawsuit. Thereupon the District Court entered its order of November 26, 1974, providing for the provisional dismissal which is the basis for this appeal.5

The District Court later filed findings of fact and conclusions of law on December 20, 1974, a part of which are worth quoting because they plainly describe the painful dilemma in which the court and the counsel for the private parties found themselves.6

The EEOC argues that the District Court dismissed it with prejudice for failing to sign a consent decree and that this was error because the court could not force it to sign a consent decree. The EEOC further argues that, if it has been properly dismissed, the court lacks jurisdiction to order it to administer the consent decree.

The appellees admit that the court has no authority to force the EEOC to sign a consent decree, but argue that the EEOC was properly dismissed with prejudice for failure to obey a court order. They further argue that estoppel and the inherent power of the court to regulate litigation and effectuate its decrees are sufficient authority for the court to retain jurisdiction over the EEOC and to require it to manage a settlement fashioned in reliance on its repeated promises of administrative assistance.

The District Court Properly Dismissed the EEOC Wity Prejudice

There is no question that a District Court has the power to dismiss a claim of a plaintiff with prejudice for failure to comply with an order of the court. Fed.R.Civ.P. 41(b);7 Link v. Wabash R.R., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047 (9th Cir.), cert. denied, 404 U.S. 1039, 92 S. Ct. 715, 30 L. Ed. 2d 731 (1971). A fortiori, this is the case where the plaintiff concerned is but one of several, has no financial interest in the outcome of the litigation and is simply aligned with other plaintiffs who do. It is equally clear that the district judge's determination that his order was not complied with is entitled to considerable weight on appeal since he is in the best position to assess the circumstances. Von Poppenheim, supra, 442 F.2d at 1051; Industrial Building Materials, Inc. v. Interchemical Corp.,437 F.2d 1336 (9th Cir. 1970). The district judge will be reversed only if he has abused his discretion in dismissing the claim. Link, supra; Industrial Building Materials, supra.

This was an appropriate case for dismissal by the District Court. Both the intervention of the EEOC and the certification of the suit as a class action were permitted following representations by the EEOC that its presence would not delay or prejudice the adjudication of the rights of the original parties but rather would materially aid in the expeditious determination of the issues and in the management of the litigation. The EEOC played an active and significant role in the pretrial activity, including the settlement negotiations. The EEOC representatives appeared to approve of the proposed consent decree arrived at on November 17 but could not bind the EEOC. The court was anxious to have the matter of settlement resolved. The trial date beginning the three month period had already been cleared in his calendar and the trial was less than a month away. Discovery had been suspended by agreement when the settlement negotiations became critical, and would require completion before the trial in the event an accord was not reached. The court was operating under an explicit statutory mandate to handle this Title VII case, already several years old, as expeditiously as possible.8 Yet the EEOC, which was well aware of this pressing situation, gave no indication of a desire or intent to proceed expeditiously in approving or rejecting the settlement. The efforts of the private parties and of the court to secure the assertion of an authoritative position by the Commission proved to be in vain. The negotiations of the parties in Seattle and in Washington, D.C. with attorneys of the EEOC had the same unproductive result--none of the attorneys for the EEOC could commit the Commission to a binding position. Under the exigent circumstances with which it was confronted the District Court was plainly justified when it entered an order to show cause, upon petition of the private plaintiffs and the defendants, requiring the Commission's general counsel or his authorized surrogate, to appear on November 25, 1974. The language of the order 'to show cause, if any it has, why Intervenor should not be required to execute the Consent Decree' was unfortunate since it implies the court was seeking to compel the EEOC to consent to the decree. But it was abundantly clear from the surrounding circumstances and from the explicit explanation of the court at the hearing on November 25, 1974, that the court was seeking to solve an impasse in communication with the EEOC. It was not seeking to force its consent to a decree.9

Efforts to negotiate with the Commission proved fruitless on November 25, 1974. Although the Commission had four lawyers in attendance, two of them from Washington, D.C., none of them could speak authoritatively for it. The court, feeling itself unable to resolve the impasse, told one of the Washington attorneys that the Commission had not complied with the court's order and requested counsel to communicate to the EEOC General Counsel in Washington the court's desire for the presence of someone who could bind the EEOC. He stayed the motion to show cause till the same time the next day and directed counsel to remain together negotiating in the meantime any differences of the parties regarding the proposed consent decree. Although discussions did take place and a number of modifications were tentatively agreed upon, the situation remained unaltered because of the absence of an attorney who could bind the Commission. Another full hearing took place on November 26, at which the absence of an appropriate representative was again noted. The EEOC's continued refusal to accommodate the District Court was nothing more than a repudiation of the court's authority. The District Court was entitled to the effective cooperation of each party before it to resolve the problems presented by the litigation. The Commission withheld this cooperation. We have searched the record to discover an explanation and we have failed to find it.

The recital of all the actions taken by the District Court to obtain the effective representation of the Commission indicates both an extreme courtesy to the Commission and even an excessive effort in this direction. Since the Court had before it an attorney of record representing the Commission, it could have dealt with him as the authorized representative of the Commission without assuming the burdens of attempting to communicate with that attorney's administrative superior. Cf. General Rule 2(f)(3), (4), United States District Court for the Western District of Washington.

At no time did the Commission ever seek to excuse itself for the failure to attend the court hearing in the person of a responsible representative. It never asked for more time, nor did the Commission ever ask for reconsideration of the court's order of November 26, 1974, or oppose the entry of the court's findings of fact and conclusions of law of December 20, 1974. It made no motion for relief pursuant to Section 60(b), Fed.R.Civ.P., asserting surprise or misunderstanding of the Order.10 If made no attempt whatever to accommodate the court in any fashion and presented the court purely and simply with its failure to cooperate. Bluntly stated, the Commission confronted the court by its conduct with the implicit assertion that it had the right to deal with the court on its own terms, as and when it pleased; and this, notwithstanding the pressing circumstances which impelled the court's action.

It hardly seems necessary to point out that there is an overriding public interest in settling and quieting litigation.11 This is particularly true in class action suits which are now an ever increasing burden to so many federal courts and which frequently present serious problems of management and expense.12

We do not suggest that the Commission could be forced to make important on-the-spot decisions instanter and without reference to its principal office in Washington. An accommodation with the court should have been reached or, at the very least, some effort made by the Commission with this objective in mind. We deplore the Commission's uncooperative attitude towards the court and its lack of effective liaison with its own attorney of record in the case.

The Commission takes the rather simplistic view that its only fault was its failure to consent to the settlement decree; and that since it cannot be compelled to consent, the Commission should be relieved of any responsibility in the case. It urges that the District Court's order dismissing the Commission with prejudice except for its administrative duties provided for in the decree should be reversed. But the EEOC has not sought to be reinstated as a party intervenor. Indeed, it suggests on this appeal that 'since the Commission did not insist on pressing its claim, dismissal without prejudice would have been proper.' Apparently the Commission wishes to abandon this litigation, to be left free to deal another day with the same issues and possibly the same parties. We cannot indulge the Commission with any such solution. To do so would permit it to proliferate litigation and play havoc with an important suit in which it has actively engaged at its own request and to which it can still make an important contribution.

Although dismissal is a drastic action, its effects are alleviated by several circumstances in this case. First, the original plaintiffs in this action will receive relief despite the dismissal of intervenor EEOC. The primary reason that courts are reluctant to order dismissal as a sanction is because it may result in a wrongfully injured plaintiff being left with no remedy. That consideration is not present in this case. The administrative interest of the EEOC and the public interest in eradicating discrimination may be somewhat forestalled, but these interests are not dependent on this suit alone for vindication as is usually the case with dismissed plaintiffs. Second, dismissal with prejudice is necessary to effectuate the court-sanctioned consent decree since further litigation by the EEOC on the same issues could thwart this agreement. Finally, though partially dismissed, the EEOC still may apply to the court for changes in the Consent Decree, as is hereinafter indicated. All of these factors alleviate the results of the dismissal and lead us to conclude

that this action was within the discretionary power of the

trial court. The District Court Properly Ordered

the EEOC to Administer the Consent Decree

The broad and inherent power of the District Court to regulate litigation before it is supported by abundant authority and is sufficient to sustain the action of the court below. See Link v. Wabash R.R., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962). This inherent power is broader and more flexible than the authority specified in Fed.R.Civ.P. 41(b). See Link,supra; Fisher v. Pace, 336 U.S. 155, 159, 69 S. Ct. 425, 93 L. Ed. 569 (1949). This residuum of power is recognized in the final sentence of Fed.R.Civ.P. 83: 'In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.' Such District Court regulation may take the form of published local court rules. The District Court in this case had adopted a relevant though not controlling rule. General Rule 3 of the United States District Courts for the Western District of Washington provides in part:

GR 3. Expedition of Court Business--Sanctions and Penalties

(c) Failure of an attorney for any party to appear at pretrial conference or to complete the necessary preparations therefor . . . may be considered an abandonment or failure to prosecute or defend diligently, and judgment may be entered against the defaulting party either with respect to a specific issue or the entire case.13

Though we are not here dealing with a pretrial conference, this rule clearly demonstrates the authority of the court to respond to noncompliance with its orders by foreclosing certain issues to the defaulting party while retaining jurisdiction over it for other issues. The hands of the District Court were not fettered by the lack of an explicit rule specifically covering the present situation because, pursuant to the court's inherent power and Fed.R.Civ.P. 83, 'when there is no Federal Rule, and no local rule, the court may fashion one not inconsistent with the Federal Rules.' Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103, 108 (2d Cir.), cert. denied, 385 U.S. 931, 87 S. Ct. 291, 17 L. Ed. 2d 213 (1966). See In re United Corp., 283 F.2d 593 (3d Cir. 1960).

There are several other factors in this case that support the District Court's actions. First there is a strong case of estoppel against the EEOC. The EEOC intervened in this suit apparently after being forestalled in its own administrative investigation of the underlying issues.14 The numerous and repeated representations it made to obtain intervention and certification of the suit as a class action have already been noted and do not need repetition here. It is sufficient to point out that the scope of the litigation and much of the structure and detail of the Consent Decree appear to be a direct result of the EEOC's presence in the case. The District Court found that the Consent Decree's effectiveness would be jeopardized if the Commission did not carry into effect the role it had agreed to fill in the litigation. Having assumed a leading role in creating a very complex lawsuit, the EEOC should not now be allowed to upset the recovery of the private plaintiffs. Having become a litigant the Commission cannot declare itself totally independent of court control. The lower court's action was not, as the Commission appears to suggest, an unwarranted intrusion in matters concerning the Commission's internal administration. Granted that there are instances of independent judgment and action on the part of government agencies over which the courts have no control,15 having become a party to litigation the EEOC must be bound by the court's rules. It cannot litigate on its own terms.

Furthermore, the EEOC has an avenue for relief if it is dissatisfied with any provision of the Consent Decree. The Decree itself provides that the EEOC may apply for such amendments and modifications as its experience may dictate.16 Had this litigation run its normal course, a point would have been reached at which the EEOC would probably have been asked to submit a proposed decree consonant with the court's decision. Its present position is not substantially different. The District Court has left open to the EEOC the power and responsibility to apply for modification of the Decree. The EEOC can make full use of this power for any constructive purposes it envisages in order to promote the interests of the public it represents.

It would be inopportune and unfortunate to permit this appeal to serve as a tool for destroying a settlement to which the private parties have agreed, in which the court has concurred and from which the EEOC improperly withdrew its participation at the last minute and without explanation. We cannot condone the conduct of the EEOC in this case or sanction its abandonment of the litigation. The Commission is not the exclusive vindicator of the public interest in Title VII of the Civil Rights Act of 1964. Having entered the litigation it cannot be permitted to overtake and supersede the function of the court, which in the last analysis is the guardian of the law and of the rights and obligations of the litigants under that law.

The judgment is affirmed.