Borg-Warner Protective Services Corporation v. Equal Employment Opportunity Commission 00-5094 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 00-5094 BORG-WARNER PROTECTIVE SERVICES CORPORATION, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. On Appeal from the United States District Court for the District of Columbia Honorable Henry H. Kennedy, Judge MOTION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR SUMMARY AFFIRMANCE Pursuant to D.C. Circuit Rule 27(g), appellee Equal Employment Opportunity Commission ("EEOC" or "Commission") requests that this Court summarily affirm the district court's decision to dismiss the complaint of appellant Borg-Warner Protective Services Corporation ("Borg-Warner") for lack of subject matter jurisdiction. As the discussion below will demonstrate, Borg-Warner cannot point to any statute or rule of law that establishes subject matter jurisdiction over the company's claims against the Commission. STATEMENT IN SUPPORT A. Background On December 10, 1998, Rudy Lee filed a charge with the Commission's office in Seattle, Washington. District Court Opinion ("Op.") at 3. In his charge, Lee alleged that Borg-Warner discriminated against him because of his race. Id. The Commission investigated, and on March 12, 1999, issued a letter of determination ("Determination") stating that while there was insufficient evidence to support a Title VII violation based on Lee's race discrimination claim, there was "'reasonable cause to believe that there is a violation of Title VII in that [Borg-Warner] requires employees to sign a Pre-Dispute Resolution Agreement, which requires arbitration in lieu of court action in matters relating to employment.'" Id. As part of the conciliation process, the Commission proposed that Borg-Warner agree to stop using the Pre-Dispute Resolution Agreement. Id. The Commission and Borg-Warner, however, were unable to conciliate the conflict about the Pre-Dispute Resolution Agreement. Id. On April 5, 1999, Borg-Warner filed this action against the Commission, seeking injunctive relief and declaratory judgment that its Pre-Dispute Resolution Agreements do not violate Title VII. Complaint at pages 2, 10. As interpreted by the district court, Borg-Warner's complaint challenged three actions by the Commission: (1) the Commission's March 12, 1999 Determination issued in connection with Lee's charge of discrimination; (2) the Commission's adoption (in 1996) of its National Enforcement Plan ("NEP"), which states the Commission's enforcement goals and priorities; and (3) the Commission's issuance (in July 1997) of its "Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment" ("Policy Statement"). See Op. at 1-2, 9.<1> The Commission issued a "Notice of Right to Sue" to Lee on April 8, 1999. Op. at 3. In the notice, the Commission expressly stated that it "has determined that it will not bring a civil action against [Borg-Warner]," and explained that, although the Commission might seek status as an intervenor if Lee decided to sue on his own behalf, it was terminating its process with respect to Lee's charge. Id. On June 6, 1999, the Commission filed a motion to dismiss this action by Borg-Warner for lack of subject matter jurisdiction. R.6.<2> In its motion, the Commission argued (among other things) that Borg-Warner's complaint failed to assert any claim that would create subject matter jurisdiction in the federal courts. The district court granted the Commission's motion on January 4, 2000, and Borg-Warner filed its notice of appeal from that ruling on February 23, 2000. R.22; R.24. B. There is no subject matter jurisdiction over this action The district court correctly dismissed Borg-Warner's action for lack of subject matter jurisdiction. Relying on Borg-Warner's assertions in its complaint, the district court considered whether it had subject matter jurisdiction based on 28 U.S.C. §§ 1331, 1337, 1343, 42 U.S.C. §§ 2000e-5, 2000e-6 (of Title VII of the Civil Rights Act of 1964) and 5 U.S.C. §§ 702, 704 (of the Administrative Procedure Act). See Complaint ¶ 4. See also Op. at 5. The district court also considered whether it had jurisdiction under 28 U.S.C. § 2201 (the Declaratory Judgment Act). See Op. at 5. This Court should summarily affirm the district court's decision to dismiss Borg-Warner's action against the Commission because none of the statutes on which Borg-Warner relies provides a valid basis for subject matter jurisdiction. As a preliminary matter, the district court correctly recognized that 28 U.S.C. §§ 1331, 1337, 1343 do not, standing alone, create subject matter jurisdiction in the federal courts. Instead, these statutes create subject matter jurisdiction only over cases that: (1) arise under "the Constitution, laws or treaties of the United States," (see 28 U.S.C. § 1331); (2) arise under "any Act of Congress regulating commerce," (see 28 U.S.C. § 1337(a)); or (3) are authorized by law to be commenced by any person to recover damages or secure equitable relief under "any Act of Congress providing for the protection of civil rights" (see 28 U.S.C. § 1343(a)(4)). The district court correctly observed that jurisdiction is lacking unless Borg-Warner can establish that its claims under Title VII, the APA and the Declaratory Judgment Act meet the criteria of the jurisdictional provisions outlined above. See Op. at 5-6. 1. Title VII does not provide a basis for subject matter jurisdiction in this case Borg Warner cannot sue the Commission under Title VII because its lawsuit cannot be squared with Title VII's statutory framework and the case law of this and other courts. As intended by Congress, the Commission plays an important role in all Title VII disputes, as the Commission investigates charges of discrimination and, where appropriate, seeks to resolve disputes "by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). Because Congress was aware that the Commission's efforts to resolve disputes would not always be successful, however, Congress allows aggrieved employees who have received a notice of right to sue to bring Title VII actions directly against their respective employers. See Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (noting this statutory design of Title VII). Congress provided this right to bring a private enforcement action because it intended for this right "to serve as the remedy for any improper handling of a discrimination charge by the EEOC." Id. Because of the availability of this remedy, this Court has held that "Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC's alleged negligence or malfeasance in processing an employment discrimination charge." Id. (collecting cases from other courts reaching the same conclusion). Based on the reasoning in Smith and in decisions from other circuits, Borg-Warner's attempt to sue the Commission under Title VII must fail. As previously noted, Borg-Warner invokes Title VII to challenge the Determination that the Commission issued while processing Lee's discrimination charge, and the NEP and Policy Statement underlying the Commission's processing of that charge. In Title VII, however, Congress did not authorize employers to file anticipatory lawsuits to challenge the Commission's policy guidance or determinations with regard to charges of discrimination. See Georator v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) (explaining, in a lawsuit brought by an employer against the Commission, that Title VII "does not provide for preliminary review of the Commission's determination of reasonable cause"). Instead, Congress provided employers like Borg-Warner with a remedy that allows employers to protect their interests without undermining the integrity of the administrative framework -- simply put, employers may defend their employment practices in a de novo trial in the event that the Commission or the charging party chooses to bring suit. See id. at 767, 769. No other remedy is necessary, and this Court should not authorize one here, because permitting suits like Borg-Warner's "could dissipate the limited resources of the EEOC in fruitless litigation" with employers seeking advisory opinions about the validity of their employment practices. See Smith, 119 F.3d at 34 (expressing concern about the potential harm caused by lawsuits by charging parties against the Commission).<3> 2. The Administrative Procedure Act does not provide a basis for subject matter jurisdiction in this case Under the APA, "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. See also Marine Mammal Conservancy, Inc. v. Dep't of Agric., 134 F.3d 409, 411 (D.C. Cir. 1998) (explaining that 5 U.S.C. § 704 establishes that judicial review under 5 U.S.C. § 702 is only available where the agency action is "final"). Borg-Warner's challenges to the Commission's Determination, NEP and Policy Statement are not reviewable under the APA for at least two reasons: (1) none of the three actions are "final" as defined under the APA and (2) Borg-Warner has an adequate remedy in court for any problems presented by the three actions taken by the Commission.<4> The Commission's actions in issuing its Determination in connection with Lee's charge, its NEP, and its Policy Statement are not final agency actions subject to judicial review under the APA. As explained by the Supreme Court, there is a two-part test for determining whether agency action is final for purposes of the APA: "[f]irst, the action must mark the 'consummation' of the agency's decision making process . . . - it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'" Bennett v. Spear, 520 U.S. 154, 177-78 (1997). The Determination, NEP and Policy Statement are not final agency actions under this definition because, assuming arguendo that the first part of the Spear finality test is satisfied here, none of the three actions satisfies the second part of the test because none determines rights or causes legal consequences for employers like Borg-Warner or for individuals. It is well established that a reasonable cause determination issued by the Commission as part of its charge review process is not subject to judicial review under the APA because such a determination does not constitute final agency action. Indeed, the label "Determination" is perhaps a misnomer, because as the Fourth Circuit has explained, "[n]o [] finality exists with respect to the EEOC's determination of reasonable cause. Standing alone, it is lifeless, and can fix no obligation nor impose any liability on [an employer]. It is merely preparatory to further proceedings. If and when the EEOC or the charging party files suit in district court, the issue of discrimination will come to life, and the [employer] will have the opportunity to refute the charges." Georator, 592 F.2d at 768. See also McCottrell v. EEOC, 726 F.2d 350, 351 & n.1 (7th Cir. 1983) (no right under Constitution, APA or Title VII to challenge reasonable cause determination); Francis-Sobel v. Univ. of Maine, 597 F.2d 15, 17-18 (1st Cir. 1979) ("[b]ecause a determination of reasonable cause is nonbinding and nonfinal," there is no legal injury stemming from the Commission's investigation or determination of a Title VII charge) (citing Georator); Smith, 119 F.2d at 34 (citing McCottrell and Francis-Sobel with approval). Based on this authority, this Court should hold that the Determination in this case is not reviewable under the APA because it is not a final agency action. Similarly, neither the NEP nor the Policy Statement constitute final agency action that would permit judicial review under the APA. As the district court recognized, neither document determines rights or obligations, or causes legal consequences. See Op. at 11-14. Instead, both the NEP and the Policy Statement offer information and guidance to the Commissioner's investigators on how they should proceed when presented with a charge of discrimination filed by an individual who has signed a compulsory, pre-dispute agreement to arbitrate employment discrimination claims. Specifically, the NEP simply states that one of the Commission's priorities in processing charges will be "claims addressing the legality of agreements that mandate binding arbitration of employment discrimination disputes imposed as a condition of initial or continued employment." Complaint ¶ 17 (quoting the NEP). The Policy Statement, meanwhile, merely explains the Commission's position on mandatory binding arbitration of employment disputes, and informs Commission employees involved in charge processing that "the Commission will process a charge and bring suit, in appropriate cases, notwithstanding the charging party's agreement to arbitrate," and, pursuant to the NEP, "will continue to challenge the legality of specific agreements that mandate binding arbitration of employment disputes as a condition of employment." Complaint ¶¶ 18-19. At most, therefore, the NEP and the Policy Statement simply provide information and guidance to the Commission's investigators in their efforts to process charges of discrimination. In light of the fact that the Commission's Determinations during charge processing do not constitute final agency action (see supra at 7-9), the NEP and the Policy Statement clearly are not final agency actions either, because they are merely documents that underlie the Commission's efforts to process charges and make (nonbinding) Determinations. As such, the APA does not provide a basis for subject matter jurisdiction over Borg-Warner's claims in this case.<5> 3. The Declaratory Judgment Act does not supply a basis for subject matter jurisdiction It is well established that "'the operation of the Declaratory Judgment Act is procedural only.' Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (citation omitted). In this case, the district court determined that it might have federal question jurisdiction over Borg-Warner's complaint because the court would have had such jurisdiction had the Commission brought a Title VII action against the company. This was error. Under this Court's case law, it is true that a plaintiff in a declaratory judgment action "may stake the federal court's jurisdiction on 'a defense to a claim that would raise a federal question and that [the declaratory judgment] defendant could have asserted in a coercive action." Commercial Union Ins. Co. v. U.S., 999 F.2d 581, 585 (D.C. Cir. 1993). Notwithstanding this rule, however, there are at least two reasons why there is no subject matter jurisdiction over Borg-Warner's claims under the Declaratory Judgment Act. First, this Court's decision in Smith precludes subject matter jurisdiction over lawsuits brought by employers in anticipation of action by the Commission. As previously noted, in Smith this Court rejected the proposition that Congress, in Title VII, impliedly authorized a cause of action against the Commission based on its processing of charges of discrimination. Smith, 119 F.3d at 34. The holding in Smith must bar Borg-Warner's declaratory judgment action here because, if employers are allowed to invoke the Declaratory Judgment Act as a way to secure judicial review of the Commission's processing of charges of discrimination, such an action would create an end-run around the decision in Smith. Because permitting a lawsuit of this nature clearly would undermine the structure and framework that Congress created when it enacted Title VII, this Court should dismiss Borg-Warner's claims for lack of jurisdiction. See supra at 5-6 (explaining that Congress intended for the Commission to investigate charges of discrimination and, where appropriate, resolve disputes through conciliation, and adding that Congress provides aggrieved employees with the right to file a private action in court if they are dissatisfied with the Commission's handling of their charge). Second, "sovereign immunity shields the Federal Government and its agencies from suit" under the Declaratory Judgment Act as contemplated in this case. FDIC v. Meyer, 510 U.S. 471, 475 (1994). See also U.S. v. U.S. Fidelity & Guaranty Co., 309 U.S. 506, 513 (1940) (sovereign immunity may be raised for the first time on appeal). "Sovereign immunity is jurisdictional in nature," as "the 'terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Meyer, 510 U.S. at 475 (quoting U.S. v. Sherwood, 312 U.S. 584, 586 (1941)). The federal government has not waived its sovereign immunity with regard to lawsuits filed under the Declaratory Judgment Act against the Commission by employers seeking advisory opinions about their employment practices, and thus the federal courts may not entertain Borg-Warner's action for declaratory judgment against the Commission. In any event, the district court was well within its discretion when it determined that, even if it could exercise jurisdiction over Borg-Warner's declaratory judgment action, it would dismiss the action because the requested declaratory judgment would serve no purpose. See Op. at 17-18. See also Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961, 964 n.3 (D.C. Cir. 1995) (district courts may deny declaratory judgment on discretionary, prudential grounds) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)). Given that the Commission has not filed suit against Borg-Warner about its Pre-Dispute Resolution Agreement, and perhaps more importantly, that any decision the district court might have issued in Borg-Warner's declaratory judgment action here would only be advisory in this and other jurisdictions, the court appropriately dismissed this action. 4. Subject matter jurisdiction is lacking because Borg-Warner's action against the Commission is not ripe for review, and because Borg-Warner lacks standing Although the discussion in the preceding sections provides ample basis for this Court to affirm the district court's decision to dismiss Borg-Warner's action in this case, the Commission offers this Court two additional grounds that warrant summary affirmance: (1) ripeness and (2) standing. Borg-Warner's action against the Commission must be dismissed for lack of jurisdiction because it is not ripe for review. "The federal courts are powerless to decide any matter unless it involves a case or controversy." Federal Express Corp., 67 F.3d at 963 (citing U.S. Const., art. III, § 2). See also Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (noting that "courts traditionally have been reluctant to apply [injunctive and declaratory] remedies to administrative determinations unless they arise in the context of a controversy 'ripe' for judicial resolution"); Federal Express Corp., 67 F.3d at 963 ("The requirement of a case or controversy is no less strict when a party is seeking declaratory judgment than for any other relief."). To assess ripeness, a court should "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs., 387 U.S. at 149. Here, Borg-Warner's action for declaratory judgment is unfit for review because there is no "'substantial controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Federal Express Corp., 67 F.3d at 964 (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). Borg-Warner filed this action against the Commission on April 5, 1999. At the time of this filing, there was no justiciable controversy because, among other things, the Commission was still exploring the possibility of litigating based on Lee's charge of discrimination. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (an actual case or controversy must be present both at the time of filing and throughout the subsequent stages of litigation); Federal Express Corp., 67 F.3d at 965 n.5 ("The question of justiciability must be decided on the facts in existence at the time the suit was filed."). No suit had been filed, and the Commission had not terminated its administrative process by issuing a notice of right to sue (the notice of right to sue was issued on April 8, 1999). Because uncertainty remained as to whether a suit would be filed by the Commission or by Lee, any perceived dispute between the Commission and Borg-Warner had not yet ripened into a justiciable controversy. Indeed, the lack of subsequent events demonstrates that Borg-Warner's action never did ripen into a justiciable controversy because the Commission later decided not to file suit against Borg-Warner based on its Pre-Dispute Resolution Agreement. See Op. at 3. Borg-Warner cannot save this action by arguing that it would suffer undue hardship if the federal courts do not hear its claims. See Abbott Labs., 387 U.S. at 149 (identifying, as a factor for consideration, the hardship the parties would experience in the absence of judicial review). Although Borg-Warner complains that it faces uncertainty and insecurity relating to the validity of its Pre-Dispute Resolution Agreement under Title VII, there is simply no way that the district court or this Court can address Borg-Warner's concerns because much of the uncertainty comes from court decisions holding that arbitration agreements like Borg-Warner's are indeed unenforceable under Title VII. See, e.g., Duffield, 144 F.3d at 1199-1200 (holding that mandatory pre-dispute agreements to arbitrate Title VII claims are unenforceable). Moreover, this uncertainty is no hardship, because the fact remains that if and when the Commission or an individual challenges Borg-Warner's Pre-Dispute Resolution Agreement under Title VII, Borg-Warner will be able to assert the validity of its policy at that time. As for this action, this Court should dismiss it for lack of jurisdiction because it simply is not ripe for review. Finally, the district court correctly held that Borg-Warner does not have Article III standing to bring this action. See Op. at 16-17. As the district court noted, to establish standing, Borg-Warner must show: (1) that it has suffered an "injury in fact"; (2) that the injury is "fairly traceable to the actions of the [Commission]"; and (3) that it is "'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Borg-Warner cannot meet its burden because the injury of which it complains (uncertainty about the validity of its Pre-Dispute Resolution Program) cannot be redressed by a favorable decision in this action. The courts of appeals are divided on whether mandatory pre-dispute agreements to arbitrate employment discrimination claims are valid under Title VII, and neither the district court nor this Court can resolve that division of authority. WHEREFORE, the Commission respectfully requests that the Court grant this motion and summarily affirm the district court's decision to dismiss Borg-Warner's action. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW., Room 7022 Washington, D.C. 20507 April 14, 2000 (202) 663-4728 CERTIFICATE OF SERVICE This is to certify that on April 14, 2000, one copy of the foregoing motion was mailed first class, postage prepaid, to the following counsel of record: Charles W. Work, Esq. Thomas Steindler, Esq. McDermott, Will & Emery 600 13th Street, NW Washington, DC 20005 John M. Stephen, Esq. Priscilla L. Hapner, Esq. Porter, Wright, Morris & Arthur 41 S. High St., 32nd Fl. Columbus, OH 43215 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW., Room 7022 Washington, D.C. 20507 April 14, 2000 (202) 663-4728 ADDENDUM 1. January 4, 2000 Rule 58 Order dismissing complaint and entering judgment in favor of the EEOC (R.22) District Court's January 4, 2000 Memorandum Opinion granting the EEOC's Motion to Dismiss (R.21) 3. Complaint - filed on April 5, 1999 (R.1) 1 In the Commission's view, Borg-Warner's complaint only asserts challenges to the Commission's notice and determination issued in connection with Lee's charge of discrimination. See Complaint ¶¶ 35, 38-42, 46 (counts based on alleged harm caused by Commission's notice and determination). Even if this Court assumes, however, that Borg-Warner challenges the Determination, NEP and Policy Statement, the fact remains that there is no subject matter jurisdiction over the claims asserted in this action. 2 Citations to record entries on the district court's docket sheet are in the form of "R.*". 3 To the extent that Borg-Warner has argued that the Commission exceeded its delegated authority under Title VII by issuing its Policy Statement and the Determination in Lee's charge (see Op. at 6), Borg-Warner's argument is wrong on its face. According to Borg-Warner, the Commission's actions violate section 118 of the Civil Rights Act of 1991, which states "[w]here appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under" Title VII. Pub. L. 102-166, § 118, reprinted in 42 U.S.C. § 1981 (notes). The Commission's Policy Statement clearly is consistent with this provision, as: (1) it is an open question as to whether mandatory pre-dispute agreements to arbitrate employment discrimination disputes imposed as a condition of employment are permissible under Title VII (see Duffield v. Robertson Stephens Co., 144 F.3d 1182, 1199-1200 (9th Cir.) (holding that such agreements are not enforceable under Title VII)), cert. denied, 119 S. Ct. 445 (1998); and (2) the Commission strongly supports "'voluntary alternative dispute resolution programs that resolve employment discrimination disputes in a fair and credible manner, and are entered into after a dispute has arisen.'" See Op. at 7 (quoting the Commission's Policy Statement) (emphasis in original). 4 Borg-Warner, appropriately, has not argued that a statute expressly provides for review of the Commission's actions at issue in this case. See generally Plaintiff's Memorandum of Points and Authorities in Support of its Opposition to Defendant's Motion to Dismiss (R.9) at 10-13. Accordingly, Borg-Warner has waived any such argument. See District of Columbia v. Air Florida, Inc. 750 F.2d 1077, 1084 (D.C. Cir. 1984) ("It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal."). 5 The district court correctly determined that this is not a case where judicial review is available because agency action altered the legal regime to which the plaintiff is subject. See Op. at 12-13 (citing Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 437 (D.C. Cir. 1986) (indicating that an agency action may be final if it would command deference from a court that might otherwise have reached a different view)). The district court noted that the NEP and Policy Statement "would change the legal regime" only if courts accepted the Commission's position. Op. at 13. As the district court correctly observed, several courts have not felt compelled to accept that position. See id. (collecting cases). See also Desiderio v. National Ass'n of Securities Dealers, Inc. 191 F.3d 198, 203-06 (2d Cir. 1999) (collecting cases and holding that a predispute agreement requiring compulsory arbitration was enforceable as to Title VII claims), petition for cert. filed, 68 U.S.L.W 3497 (Jan. 31, 2000) (No. 99-1285). In addition, this is not a case where Borg-Warner finds itself in the position of having to choose between immediate compliance or civil penalties. See DRG Funding Corp. v. HUD, 76 F.3d 1212, 1216 (D.C. Cir. 1996) (judicial review of agency action not available in part because the plaintiff was "not being forced to choose between 'disadvantageous compliance and risking serious penalties'"). None of the Commission's actions (specifically the Determination, NEP and Policy Statement) have such an effect because only a court ruling can force Borg-Warner to stop requiring its employees (in the relevant jurisdiction) to sign its pre-dispute resolution agreement. See, e.g., Duffield, 144 F.3d at 1199-1200 (holding that mandatory pre-dispute agreements to arbitrate Title VII claims are not enforceable).