No. 02-1633

__________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
__________________________________________


THERON J. BARTELL, 

 Plaintiff-Appellant,

v.

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

 Defendant-Appellee.

__________________________________________________________

On Appeal from the United States District Court
for the Western District of North Carolina
__________________________________________________________

Brief of the U.S. Equal Employment Opportunity Commission
as Defendant-Appellee
__________________________________________________________


NICHOLAS M. INZEO    
Acting Deputy General Counsel

PHILIP B. SKLOVER
Associate General Counsel

LORRAINE C. DAVIS
Assistant General Counsel

LOUIS LOPEZ
Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, NW, 7th Floor
Washington, DC   20507
(202) 663-4098
    

TABLE OF CONTENTS

TABLE OF AUTHORITIES        iii

STATEMENT OF JURISDICTION    1

STATEMENT OF THE ISSUES      1

STATEMENT OF THE CASE        2
 A.  Statement of Facts      2
 B.  Proceedings Below       3
 C.  District Court Decision 4
 D.  Standard of Review      5

SUMMARY OF ARGUMENT          6

ARGUMENT

I.  THE DISTRICT COURT PROPERLY DISMISSED 
 BARTELL'S COMPLAINT AGAINST EEOC FOR 
 LACK OF SUBJECT MATTER JURISDICTION. 6

 A.  The Constitution Does Not Confer Subject Matter
  Jurisdiction over Bartell's Claims.  8

 B.  The Federal Tort Claims Act Does Not Provide
  Subject Matter Jurisdiction in this Case. 9

 C.  Title VII of the Civil Rights Act of 1964 Does Not 
  Authorize Subject Matter Jurisdiction in this Case. 11

II.  THE DISTRICT COURT'S DISMISSAL OF BARTELL'S
 COMPLAINT ALSO MAY BE AFFIRMED BECAUSE 
 BARTELL FAILED TO STATE A CLAIM UPON WHICH 
 RELIEF CAN BE GRANTED.  12

CONCLUSION 14

CERTIFICATE OF COMPLIANCE  15

CERTIFICATE OF SERVICE


TABLE OF AUTHORITIES


FEDERAL CASES 

Chao v. Va. Dep't of Transp., 291 F.3d 276 (4th Cir. 2002)5

E. Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 
 213 F.3d 175 (4th Cir. 2000) 5

FDIC v. Meyer, 510 U.S. 471 (1994) 7, 8

Francis-Sobel v. Univ. of Maine, 597 F.2d 15 (1st Cir. 1979) 12

Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) 12

Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890 (5th Cir. 1978) 13

Henderson v. United States, 785 F.2d 121 (4th Cir. 1986) 10

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994) 7

Lockerty v. Phillips, 319 U.S. 182 (1943) 7

McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) 12, 13

McNeil v. United States, 508 U.S. 106 (1993) 10

Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir. 1999) 12

Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4th Cir. 1999) 5

Sabow v. United States, 93 F.3d 1445 (9th Cir. 1996) 10

Smith v. EEOC, 119 F.3d 33 (D.C. Cir. 1997) 13

United States v. King, 395 U.S. 1 (1969) 7

United States v. Mitchell, 445 U.S. 535 (1980) 7

United States v. Sherwood, 312 U.S. 584 (1941) 7

United States v. Smith, 115 F.3d 241 (4th Cir. 1997) 5

FEDERAL STATUTES AND RULES

28 U.S.C. § 1291 1

28 U.S.C. § 1404 8

Fed. R. Civ. P. 12(b)(6) 2, 5, 6, 14

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680 5, 9,
10

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
2, 11, 13

STATEMENT OF JURISDICTION

 The district court lacked subject matter jurisdiction over Theron
 J. Bartell's claim against the U.S. Equal Employment Opportunity
 Commission (“EEOC” or “Commission”) because there is no statutory basis
 for an action against the Commission for its handling of a charge of
 employment discrimination.  The United States District Court for the
 Western District of North Carolina—Charlotte Division (Hon. Richard
 L. Vorhees) dismissed Bartell's suit on March 29, 2002, and the court
 entered a final judgment for EEOC on the same date.  R.19-20 (Order
 of dismissal and supporting decision).<1>  The district court denied
 Bartell's motion for rehearing on April 30, 2002.  R.24 (Order denying
 rehearing).  Bartell filed a timely notice of appeal of the district
 court's order denying rehearing on June 5, 2002.  R.25 (Notice of
 appeal).  This Court has appellate jurisdiction over the final order
 of the district court pursuant to 28 U.S.C. § 1291.  

STATEMENT OF THE ISSUES

 1.  Whether the district court properly dismissed Bartell's complaint
 against EEOC for lack of subject matter jurisdiction.

 2.  Whether the district court's dismissal of Bartell's complaint
 against EEOC also may be affirmed because Bartell failed to state a
 claim upon which relief can be granted under Federal Rule of Civil
 Procedure 12(b)(6).

STATEMENT OF THE CASE

A.  Statement of Facts

 EEOC is the federal agency responsible for the administrative processing
 of employment discrimination charges filed under Title VII of the Civil
 Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and other
 federal equal employment opportunity statutes.  In its administrative
 capacity, EEOC generally receives charges of employment discrimination
 from individuals, conducts investigations surrounding the allegations
 in the charges, makes determinations regarding the likelihood of
 whether discrimination occurred as alleged in the charges, and attempts
 conciliation (and perhaps voluntary mediation when deemed appropriate).
 Upon disposition of each charge, the Commission issues the charging party
 a right-to-sue letter, authorizing that individual to sue the employer
 (or other covered entity) in federal district court.

 Bartell alleges that he filed a charge of discrimination with EEOC
 against his former employer on October 6, 1994.  However, Plaintiff's own
 evidence – a letter from EEOC's Greenville Office –indicates that there
 was no record of such a charge.  R.19 (Order of dismissal) at 2 n.1.
 According to the letter, the Commission offered to receive Bartell's
 charge and dismiss it as untimely so that Bartell could be issued a
 right-to-sue letter.  Accordingly, EEOC issued Bartell a right-to-sue
 letter on September 9, 1997.  Id. 

 On October 27, 2000, Bartell filed this suit pro se against the
 Commission alleging in general terms that EEOC was negligent in
 processing his charge of discrimination against his employer.  R.1
 (Complaint) at ¶ 8.  Bartell further asserts that EEOC discriminated
 against him because it “did not have jurisdiction” to issue him a
 right-to-sue letter, by “letting [his] statute of limitations run
 out,” and by violating his constitutional rights.  Id. at ¶¶ 3,6.
 Bartell is seeking $8 million in damages from EEOC and unspecified
 injunctive relief.  Id. at ¶ 12.  Bartell provides no further information
 about either his charge of discrimination or the Commission's alleged
 improper actions in processing his charge.

B.  Proceedings Below

 As mentioned above, Bartell filed this suit pro se against EEOC in
 the United States District Court for the Western District of North
 Carolina—Charlotte Division on October 27, 2000 alleging generally that
 the Commission was negligent in processing his charge of discrimination
 against his employer.  R.1 (Complaint).  On February 20, 2001, the
 Commission filed a motion to dismiss Bartell's complaint for failure to
 state a claim upon which relief can be granted and lack of subject matter
 jurisdiction.  R.7-8 (Motion to dismiss and supporting memorandum).
 Bartell sought to amend his complaint on March 2, 2001.  R.10 (Motion
 to amend complaint).  The district court denied Bartell's request to
 amend his complaint on May 21, 2001.  R.14 (Order denying motion to
 amend complaint). 

 By order dated March 29, 2002, the district court granted EEOC's
 motion to dismiss, and entered judgment for EEOC on the same date.
 R.19-20 (Order of dismissal and supporting decision).  The district court
 denied Bartell's motion for rehearing on April 30, 2002.  R.24 (Order
 denying rehearing).  Bartell timely filed a notice of appeal of the
 district court's order denying rehearing on June 5, 2002.<2>  R.25
 (Notice of appeal).

C.  District Court Decision

 Adopting the findings and recommendations of the magistrate judge, the
 district court granted EEOC's motion to dismiss for lack of subject
 matter jurisdiction on March 29, 2002.  R.19 (Order of dismissal).
 Specifically, the district court held that “neither the United States
 nor any federal agency can be sued unless sovereign immunity has been
 waived by statute.”  Id. at 3.  Because Bartell does not argue that “the
 complained of conduct falls within the statutory waiver provisions of
 the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680
 ... sovereign immunity bars relief on any negligence action.”  Id.
 Likewise, the district court found that Bartell's constitutional claims
 are “precluded by sovereign immunity.”  Id.  Finally, the court found
 that Title VII “does not confer jurisdiction over claims against the EEOC
 in its capacity as the federal agency responsible for the administrative
 processing of employment discrimination charges.”  Id. 

D.  Standard of Review

 This Court reviews de novo a district court's decision to dismiss a
 complaint for lack of subject matter jurisdiction.  See Chao v. Va. Dep't
 of Transp., 291 F.3d 276, 279 (4th Cir. 2002); Owens-Illinois,
 Inc. v. Meade, 186 F.3d 435, 439 (4th Cir. 1999).

 Additionally, this Court reviews de novo “[a]ll issues involv[ing]
 questions of law.”  United States v. Smith, 115 F.3d 241, 244 (4th
 Cir. 1997).  When considering the appropriateness of a Federal
 Rule of Civil Procedure 12(b)(6) motion to dismiss for failure
 to state a claim upon which relief can be granted, a court of
 appeals therefore should “determine de novo whether the complaint,
 under the facts alleged and under any facts that could be proved in
 support of the complaint, is legally sufficient.”  E. Shore Markets,
 Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000).
 While this Court “must take the facts in the light most favorable to
 the plaintiff, [it] need not accept the legal conclusions drawn from
 the facts.”  Id.  

SUMMARY OF ARGUMENT

 This Court should affirm the district court's dismissal of Bartell's
 complaint because, as the district court noted, there is no jurisdiction
 over the subject matter of Bartell's claims.  No provision in the
 Constitution or any federal statute confers jurisdiction on the federal
 courts to entertain an action against EEOC for dissatisfaction with
 the Commission's handling of a charge of discrimination.  Moreover, the
 Federal Government has not waived sovereign immunity for suits against
 the Commission challenging the processing and investigation of charges
 of discrimination.  In addition, the district court's dismissal may be
 affirmed under Federal Rule of Civil Procedure 12(b)(6) because Bartell
 failed to state a claim upon which relief can be granted.

ARGUMENT

I.  THE DISTRICT COURT PROPERLY DISMISSED BARTELL'S COMPLAINT AGAINST
EEOC FOR LACK OF SUBJECT MATTER JURISDICTION.

 Bartell's complaint was properly dismissed by the district court for
 lack of subject matter jurisdiction.  It is well established that
 federal courts are courts of limited jurisdiction possessing only
 that power granted by the Constitution and authorized by Congress.
 See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,
 377 (1994); Lockerty v. Phillips, 319 U.S. 182, 187 (1943).  Thus,
 before a district court may hear a particular case, Congress must have
 vested the court by statute with jurisdiction over the controversy.
 See Lockerty, 319 U.S. at 187.  Because neither the Constitution nor
 any federal statute vests federal courts with jurisdiction over claims
 against EEOC to challenge its processing or disposition of a charge
 of discrimination, the district court properly dismissed Bartell's
 complaint for lack of subject matter jurisdiction.

 Subject matter jurisdiction also is lacking because Congress has
 not waived EEOC's sovereign immunity from suit to challenge its
 administrative processing of charges of discrimination.  It is well
 established that the United States may not be sued unless Congress has
 waived sovereign immunity by statute.  See United States v. Mitchell,
 445 U.S. 535, 538 (1980); United States v. Sherwood, 312 U.S. 584, 586
 (1941).  This immunity extends to suits in which the United States
 or a federal agency is the named defendant.  See FDIC v. Meyer, 510
 U.S. 471, 475 (1994).  Moreover, “[a] waiver of sovereign immunity
 cannot be implied but must be unequivocally expressed.”  Mitchell,
 445 U.S. at 538 (quoting United States v. King, 395 U.S. 1, 4 (1969)).
 A.  The Constitution Does Not Confer Subject Matter Jurisdiction over
 Bartell's Claims.

 The district court properly found that it lacked subject matter
 jurisdiction to consider Bartell's vague allegations regarding purported
 violations of his constitutional rights.  R.1 (Complaint) at ¶ 3.
 On appeal, Bartell's attempts at specifying which constitutional rights
 — denial of due process and equal protection — were infringed upon are
 to no avail because these provisions do not grant jurisdiction over a
 plaintiff's claim against EEOC for allegedly mishandling a charge of
 discrimination.<3>  Indeed, the Supreme Court expressly held that claims
 alleging deprivations of constitutional rights cannot be brought against
 a federal agency absent a waiver of sovereign immunity.  See Meyer, 510
 U.S. at 478.  Because there is no such waiver under the constitutional
 provisions cited by Bartell or otherwise, this Court should affirm the
 district court's dismissal of Bartell's complaint.

 B.  The Federal Tort Claims Act Does Not Provide Subject Matter
 Jurisdiction in this Case.

 The district court properly dismissed Bartell's negligence claim as
 barred by sovereign immunity.  Although not specifically raised by
 Bartell, the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
 2401(b), 2671-2680, constitutes the only pertinent waiver of the Federal
 Government's sovereign immunity from certain tort actions.  The FTCA,
 however, does not confer jurisdiction over a negligence claim based on
 EEOC's processing of a charge of discrimination.<4>  Indeed, the FTCA
 bars claims based on the exercise of a “discretionary function or duty”
 by a federal agency or employee, see 28 U.S.C. § 2680(a), which would
 include discretionary actions taken by the Commission to carry out its
 statutory obligations.  The FTCA provides that the jurisdictional grant
 of the FTCA shall not apply to:

Any claim based upon an act or omission of an employee of the Government
... based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion
involved be abused.

28 U.S.C. § 2680(a).  

 In the instant case, EEOC's employees performed discretionary functions
 in processing Bartell's charge of discrimination, including for example
 categorizing the charge for investigation, determining which office
 and which investigator would be responsible for processing the charge,
 and deciding when to issue a right-to-sue letter.  These discretionary
 activities which allow federal agencies and their employees to exercise
 judgment during investigations are precisely the type of functions
 that § 2680(a) protects from suit.  See Sabow v. United States, 93 F.3d
 1445, 1452-54 (9th Cir. 1996) (discretionary function exception to the
 FTCA bars negligence claims arising from federal investigations where
 investigators exercise discretionary judgment involving social, economic
 or political considerations).  Because EEOC's charge processing system
 permits (and even encourages) discretionary judgment regarding social,
 geographic and economic factors, Bartell's negligence claim was properly
 dismissed for lack of subject matter jurisdiction.

   Additionally, Bartell's claim was properly dismissed because he
   failed to comply with the FTCA's requirement that he exhaust available
   administrative remedies by presenting his claim first to EEOC.  See 28
   U.S.C. § 2675(a).  It is settled law that the requirement of filing
   an administrative claim before bringing a tort action in federal court
   is jurisdictional and cannot be waived.  See McNeil v. United States,
   508 U.S. 106, 113 (1993); Henderson v. United States, 785 F.2d 121, 123
   (4th Cir. 1986).  Thus, Bartell's failure to exhaust administrative
   remedies under the FTCA serves as a separate and additional bar to
   subject matter jurisdiction in this case.

 C.  Title VII of the Civil Rights Act of 1964 Does Not Authorize Subject
 Matter Jurisdiction in this Case.

  To the extent Bartell seeks to bring this suit under Title VII, his
  complaint must fail because it is well established that there is no
  jurisdictional basis under Title VII for a claim against EEOC for the
  agency's actions in processing a charge of discrimination.  In fact,
  Title VII contains only three provisions conferring subject matter
  jurisdiction.  See 42 U.S.C. § 2000e-5(f) (authorizing individual
  suits by EEOC or a charging party against private sector employers);
  42 U.S.C. § 2000e-6 (permitting “pattern or practice” suits by EEOC);
  and 42 U.S.C. § 2000e-16 (authorizing suits by federal employees
  against public sector employers).  None of these provisions supply a
  jurisdictional basis for suits against the Commission or its employees
  by an individual dissatisfied with the processing of his charge.
  Accordingly, Bartell's claim against EEOC was properly dismissed for
  lack of subject matter jurisdiction.

II.  THE DISTRICT COURT'S DISMISSAL OF BARTELL'S COMPLAINT ALSO MAY BE
AFFIRMED BECAUSE BARTELL FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED.
 
 While the district court properly dismissed Bartell's complaint for
 lack of subject matter jurisdiction, Bartell's failure to state a claim
 upon which relief can be granted provides an additional independent and
 sufficient ground upon which to affirm the district court's dismissal.
 See Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 1999) (stating
 that courts of appeals “may affirm the dismissal by the district court
 on the basis of any ground supported by the record even if it is not
 the basis relied upon by the district court”).

 First, Bartell cannot state a claim against EEOC under the due process
 or equal protection clauses of the Constitution.  The courts have
 consistently held that the Constitution does not provide a cause
 of action for the alleged mishandling of a charge of discrimination.
 See Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (when only
 investigative powers of agency are at issue, due process considerations
 do not attach); McCottrell v. EEOC, 726 F.2d 350, 351 n.1 (7th Cir. 1984)
 (there is no independent cause of action under the Constitution to
 challenge EEOC's resolution of charges); Francis-Sobel v. Univ. of Maine,
 597 F.2d 15, 17 (1st Cir. 1979) (Constitution provides no relief for
 non-employees against EEOC for even arbitrary and capricious action in
 charge processing system).  Thus, Bartell's constitutional claims were
 properly dismissed by the district court.

 Second, although Bartell does not specifically cite Title VII or any
 other supporting statute or case law, he alleges discrimination on the
 part of the Commission.  R.1 (Complaint) at ¶¶ 6-8.  Inasmuch as the
 complaint may be read to state a claim of discrimination under Title
 VII, the claim must fail because “[i]t is settled law ... that Title
 VII does not provide either an express or implied cause of action
 against the EEOC to challenge its investigation and processing of a
 charge.”  McCottrell, 726 F.2d at 351.  Indeed, Title VII “confers no
 right of action against the enforcement agency.”  Gibson v. Missouri
 Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978); see also Smith
 v. EEOC, 119 F.3d 33, 34 (D.C. Cir. 1997) (“Congress has not authorized,
 either expressly or impliedly, a cause of action against the EEOC for
 the EEOC's alleged negligence or other malfeasance in processing an
 employment discrimination charge.”).  Moreover, the purpose of Title
 VII is to provide redress for “unlawful employment practices” by
 employers, employment agencies, and labor organizations.  42 U.S.C. §
 2000e-2.  Bartell has not alleged any “unlawful employment practices”
 recognized under Title VII, and EEOC is not Bartell's employer, nor is
 it an employment agency or labor organization covered by the statute.
 Accordingly, this Court may affirm the district court's dismissal of
 Bartell's complaint for failure to state a claim upon which relief
 could be granted under Federal Rule of Civil Procedure 12(b)(6).

CONCLUSION

 Because the district court properly dismissed Bartell's complaint for
 lack of subject matter jurisdiction, we urge this Court to affirm the
 district court's decision.  The district court's decision also may be
 affirmed on the additional ground that Bartell's complaint failed to
 state a claim upon which relief can be granted.
     
     Respectfully submitted,

     NICHOLAS M. INZEO
     Acting Deputy General Counsel

     PHILIP B. SKLOVER
     Associate General Counsel

     LORRAINE C. DAVIS
     Assistant General Counsel


     ___________________________
     LOUIS LOPEZ
     Attorney

     U.S. EQUAL EMPLOYMENT
        OPPORTUNITY COMMISSION
     Office of General Counsel
     1801 L Street, NW, 7th Floor
     Washington, DC   20507
     (202) 663-4098

CERTIFICATE OF COMPLIANCE

 I certify that this brief complies with the type-volume limitation set
 forth in Fed. R. App. P. 32(a)(7)(B).  This brief contains 3,002 words,
 and was prepared using the WordPerfect 9.0 processing system in 14-point
 proportionally spaced type for text and 14-point type for footnotes.



     ___________________________
     LOUIS LOPEZ

CERTIFICATE OF SERVICE

 I, Louis Lopez, hereby certify that two (2) true and correct copies of
 the foregoing brief were sent by first class U.S. mail, postage prepaid,
 on this ____ day of July 2002 to the following pro se plaintiff:
   
   Theron J. Bartell
   P.O. Box 15224
   Quinby, SC   29506



     ___________________________
     LOUIS LOPEZ
     Attorney

     U.S. EQUAL EMPLOYMENT
        OPPORTUNITY COMMISSION
     Office of General Counsel
     1801 L Street, NW, 7th Floor
     Washington, DC   20507
     (202) 663-4098


1  Record references are denoted “R._” and correspond
     to the numbered docket entries in the district court docket.

2  The Fourth Circuit also has docketed this appeal under Case
No. 02-1668.  EEOC believes that both docket numbers (Case Nos. 02-1633
and 02-1668) refer to the same appeal by Bartell and appear to be the
result of a clerical error reflecting Bartell's late payment of the
filing fee.

3  In his opening brief, Bartell relies solely on the language in “Title
28 U.S.C. section 1404” to support his claims that the district court
erred in failing to find that EEOC denied him “due process of the law” and
“Equal Protection of the Law” under the Constitution.  Bartell Br. at 2-3.
Bartell also uses this same provision to argue that the district court
erred in “failing to order the EEOC of North Carolina to return the case
back to the EEOC of South Carolina.”  Bartell Br. at 1.  As 28 U.S.C. §
1404 deals only with changing the venue of a civil action in district
court, it has no relevance to Bartell's complaint against EEOC regarding
its handling of Bartell's charge of discrimination in the administrative
process.

4  It should be noted that the district court expressly found that Bartell
did not allege that the Commission's alleged negligence “falls within the
statutory waiver provisions of the [FTCA].”  R.19 (Order of dismissal)
at 3.