ORAL ARGUMENT SCHEDULED FOR JANUARY 26, 2001 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 FINAL BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE 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 Washington, D.C. 20507 (202) 663-4728 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici Plaintiff-Appellant: Borg-Warner Protective Services Corporation (party) Defendant-Appellant: United States Equal Employment Opportunity Commission (party) No other parties, intervenors or amici have appeared before the district court or this Court in this matter. B. Rulings Under Review Borg-Warner seeks review of the district court's January 4, 2000 decision to dismiss this action for lack of subject matter jurisdiction, and all orders encompassed therein. The district court's decision, entered by Hon. Judge Henry H. Kennedy, is published as Borg-Warner Protective Services Corporation v. United States Equal Employment Opportunity Commission, 81 F. Supp.2d 20 (D.D.C. 2000). C. Related Cases The case on review was previously before the United States District Court for the District of Columbia, Hon. Judge Henry. H. Kennedy presiding. No other court has heard this matter. The Commission is aware of two related cases pending in this and other United States Courts of Appeals. The following cases are related cases insofar as they involve lawsuits filed by employers to challenge the actions or policies of the Equal Employment Opportunity Commission, and are appeals from the district courts' decisions to dismiss the lawsuits for lack of subject matter jurisdiction: A.T. & T. Company v. EEOC, No. 00-5280 (D.C. Cir.) Circuit City Stores, Inc. v. EEOC, No. 99-2360 (4th Cir.) There are no other related cases. TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES . . . . . i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . iii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . v GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . ix STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . .3 STATUTES AND REGULATIONS . . . . . . . . . . . . . . . . . . . .3 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .4 A. Nature of the Case and Course of Proceedings . . . . .4 B. Statement of Facts . . . . . . . . . . . . . . . . . .5 C. District Court Decision. . . . . . . . . . . . . . . .7 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 10 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S DECISION TO DISMISS BORG-WARNER'S ACTION AGAINST THE COMMISSION FOR LACK OF SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . 13 A. The district court correctly determined that Title VII does not provide a basis for subject matter jurisdiction over this action . . . . . . . . . . . . . . . . . . . . 14 B. The district court correctly determined that the APA does not provide a basis for subject matter jurisdiction over this action . . . . . . . . . . . . . . . . . . . . 25 C. The DJA does not provide a basis for subject matter jurisdiction over this action . . . . . . . . . . . . . 35 D. Subject matter jurisdiction is lacking because Borg- Warner's action against the Commission is not ripe for review, and because Borg-Warner lacks standing . . . . . 39 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES PAGE(S) AMSC Subsidiary Corp. v. FCC, 216 F.3d 1154 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . 6, 25 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) . . . . . . . . 39, 40 *Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . 22, 27 31 Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 32 *Associated Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . 27 *Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . 26, 31 Chamber of Commerce of the United States v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) . . . . . . . . . . . . 16, 36 *Christensen v. Harris County, 120 S. Ct. 1655 (2000) . . . 23, 29 30 Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986) . . 29, 30 Circuit City Stores, Inc. v. Adams, No. 99-1379, 120 S. Ct. 2004 (2000) . . . . . . . . . . . 20 Circuit City Stores, Inc. v. EEOC, 75 F. Supp.2d 491 (E.D. Va. 1999), appeal docketed, No. 99-2360 (4th Cir. October 15, 1999) . . . . . . . . . . . . . . 26, 36 Citizens Communications Center v. FCC, 447 F.2d 1201 (D.C. Cir. 1971) . . . . . . . . . . . . . . . . . . . . . 32 Cole v. Burns International Security Services, 105 F.3d 1465 (D.C. Cir. 1997) . . . . . . . . . . . . . . . . . . . 17, 20 21 Commercial Union Insurance Co. v. United States, 999 F.2d 581 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 35 Council of Prison Locals v. Brewer, 735 F.2d 1497 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . 16 Dalton v. Specters, 511 U.S. 462 (1994) . . . . . . . . . . . . 31 *Desiderio v. National Association of Securities Dealers, Inc., 191 F.3d 198 (2d Cir. 1999), petition for cert. filed, 68 U.S.L.W 3497 (Jan. 31, 2000) . . . . . . . . . . . . . 30 *Duffield v. Robertson Stephens Co., 144 F.3d 1182 (9th Cir.), cert. denied, 525 U.S. 996 (1998) . . . . . . . . . . 23, 33 41 EEOC v. Continental Oil Co., 548 F.2d 884 (10th Cir. 1977) . . . 27 Edison Electric Institute v. EPA, 996 F.2d 326 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 32 FDIC v. Meyer, 510 U.S. 471 (1994) . . . . . . . . . . . . . . . 36 Federal Express Corp. v. Air Line Pilots Association, 67 F.3d 961 (D.C. Cir. 1995) . . . . . . . . . . . . . 10, 38, 39, 40 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . 29 *Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . 2, 3,14, 23,28, 34,37 *Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) . . . . . . . . . . . . . . . . . . 8, 17 19, 20 Herbert v. National Academy of Sciences, 974 F.2d 192 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . 7, 10 Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987) . . . . . . . 10 Kolstad v. American Dental Association, 527 U.S. 526 (1999) . . 33 Leedom v. Kyne, 358 U.S. 184 (1958) . . . . . . . . . . . . 11, 16 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . 41 Marine Mammal Conservancy, Inc. v. Department of Agriculture, 134 F.3d 409 (D.C. Cir. 1998) . . . . . . . . . . . . . . 25 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1983) . . . . . . . 28 National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971) . . . . . . . . . . . . . . 32 Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33 (D.C. Cir. 1974) . . . . . . . . . . . . . . . 26 Panhandle Producers & Royalty Owners Association v. Economic Regulatory Admin., 822 F.2d 1105 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . 32 Physicians National House Staff Association v. Fanning, 642 F.2d 492 (D.C. Cir. 1980) . . . . . . . . . . . . . . 16 Preiser v. Newkirk, 422 U.S. 395 (1975) . . . . . . . . . . . . 40 Public Citizen v. Nuclear Regulatory Commission, 845 F.2d 1105 (D.C. Cir. 1988) . . . . . . . . . . . . . . 32 Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) . . . . . . . . . . . . . . . . . . . . 35 *Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997) . . . . . . 12, 14, 23, 29, 36, 37 Sutton v. United Air Lines, 527 U.S. 471 (1999) . . . . . . . . 24 United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940) . . . . . . . . . . . . . . . . . . . . 36 Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998) . . . . . . . . . . . . . . . . . . . 19 STATUTES Administrative Procedure Act, 5 U.S.C. 551, et seq., . . . . 4 5 U.S.C. 702 . . . . . . . . . . . . . . . . . . . . . 1 *5 U.S.C. 704 . . . . . . . . . . . . . . . . . . . 1, 25 35 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . 3 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . 1, 2 7 28 U.S.C. 1337 . . . . . . . . . . . . . . . . . . . . . . 1, 2 7 28 U.S.C. 1343 . . . . . . . . . . . . . . . . . . . . . . 1, 2 7 28 U.S.C. 1337 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1345 . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 2201 . . . . . . . . . . . . . . . . . . . . . . 1, 4 *42 U.S.C. 1981, notes (Section 118 of the Civil Rights Act of 1991, Pub. L. 102-166) . . . . . . . . . . . . . 18, 22 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. . . . . . . . . . . . . . . . . 4 42 U.S.C. 2000e-4(g)-(h), (j) . . . . . . . . . . . . 17 42 U.S.C. 2000e-5(b) . . . . . . . . . . . . . . . 17, 38 42 U.S.C. 2000e-5(f) . . . . . . . . . . . . . . . . . 15 GLOSSARY Abbreviation Definition Agreement Borg-Warner's Pre-Dispute Resolution Agreement APA Administrative Procedure Act (5 U.S.C. 551, et seq.) Borg-Warner Borg-Warner Protective Services Corporation Commission U.S. Equal Employment Opportunity Commission Determination Reasonable cause determination issued in connection with the charge of discrimination filed by Rudy Lee DJA Declaratory Judgment Act (28 U.S.C. 2201) EEOC U.S. Equal Employment Opportunity Commission NEP EEOC's National Enforcement Plan Policy Statement EEOC's Policy Statement on Mandatory Arbitration of Employment Discrimination Disputes as a Condition of Employment R.* Record entry number of document listed on the district court's docket sheet Title VII Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e, et seq.) 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 FINAL BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE STATEMENT OF JURISDICTION Borg-Warner Protective Services Corporation's ("Borg-Warner") statement of jurisdiction is not complete and correct. On April 5, 1999, Borg-Warner filed this action against the Equal Employment Opportunity Commission ("Commission") in federal district court, seeking declaratory relief under 28 U.S.C. 2201, the Declaratory Judgment Act ("DJA"), and injunctive relief. JA 7 at  3. The district court lacked subject matter jurisdiction over Borg- Warner's action, notwithstanding Borg-Warner's invocation of 28 U.S.C. 1331, 1337, 1343; 42 U.S.C. 2000e-5 and 2000e-6 (sections 706 & 707 of Title VII of the Civil Rights Act of 1964 ("Title VII")); and 5 U.S.C. 702 and 704 of the Administrative Procedure Act ("APA") as the bases for jurisdiction. JA 7 at  4. None of these statutes provides subject matter jurisdiction. It is clear 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 where the plaintiff asserts a claim that: (1) arises under "the Constitution, laws or treaties of the United States," (see 28 U.S.C. 1331); (2) arises under "any Act of Congress regulating commerce," (see 28 U.S.C. 1337(a)); or (3) is 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)). Borg-Warner has failed to satisfy these criteria. Borg-Warner's efforts to base jurisdiction on Title VII, the APA, and the DJA also fail. Title VII does not provide employers with an anticipatory cause of action based on the possibility that a lawsuit might be brought at some point by the Commission. See Georator Corp. v. EEOC, 592 F.2d 765, 767-68 (4th Cir. 1979) (discussing Title VII). Further, Borg-Warner does not provide sufficient legal or factual support for its claim that the federal courts have jurisdiction over this action because the Commission supposedly has exceeded its delegated authority under Title VII. As for the APA, that statute does not support jurisdiction in this case because the challenged acts by the Commission -- issuing policy guidance and issuing a letter of determination -- do not constitute "final agency action" within the meaning of that Act, and because Borg-Warner has an adequate remedy in court insofar as it may defend its pre-dispute arbitration agreement if sued by the Commission or an individual. See, e.g., Georator, 592 F.2d at 767. The DJA does not supply jurisdiction because Borg-Warner's claims are barred by sovereign immunity and by this Court's precedent discussing Title VII's administrative process, and because it was within the district court's discretion to decline to exercise jurisdiction because a declaratory judgment would not redress Borg-Warner's alleged injury. Finally, subject matter jurisdiction is lacking because Borg-Warner's action against the Commission is not ripe and because Borg-Warner lacks standing. This Court has appellate jurisdiction over this action under 28 U.S.C. 1291. The district court's judgment entered on January 4, 2000, is a final judgment that disposed of all claims as to all parties. STATEMENT OF THE ISSUES Whether the district court correctly held that it lacked subject matter jurisdiction over Borg-Warner's action against the Commission where neither Title VII, the APA, the DJA nor any other statute supplies a basis for jurisdiction in the federal courts, where Borg-Warner's action against the Commission is not ripe for review, and where Borg-Warner lacks standing under Article III of the Constitution. STATUTES AND REGULATIONS As directed by D.C. Circuit Rule 28(a)(5), the Commission advises the Court that the following statutes are pertinent to this appeal: the APA (5 U.S.C. 551, et seq.); the DJA (28 U.S.C. 2201); and Title VII (42 U.S.C. 2000e, et seq.). The relevant portions of these statutes are included the addendum attached to this brief. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings On December 10, 1998, Rudy Lee filed a charge of discrimination with the Commission's office in Seattle, Washington, asserting that Borg-Warner discriminated against him because of his race. JA 10 at  20. On March 12, 1999, after investigating Lee's charge, the Commission found reasonable cause to believe Borg- Warner's pre-dispute arbitration agreement violated Title VII, and unsuccessfully attempted to conciliate. JA 10-11 at  21-24. Borg-Warner filed this action against the Commission on April 5, 1999, seeking monetary and injunctive relief, as well as a declaratory judgment that its Agreement does not violate Title VII. JA 5-6. The Commission issued a notice of right to sue to Lee on April 8, 1999. JA 77-78. On June 4, 1999, the Commission filed a motion to dismiss Borg-Warner's action for lack of subject matter jurisdiction. JA 45. Borg-Warner filed its response to the Commission's motion on July 2, 1999, and the Commission filed its reply on July 23, 1999. R.9; R.11. On January 4, 2000, the district court granted the Commission's motion and dismissed this action, entering judgment to that effect on the same date. JA 75; JA 93. Borg-Warner appealed from the district court's decision on February 23, 2000. R.24. B. Statement of Facts On December 10, 1998, Rudy Lee filed a charge with the Commission's office in Seattle, Washington. JA 10 at  20. 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 ("Agreement"), which requires arbitration in lieu of court action in matters relating to employment.'" JA 10 at  21; JA 35. See also JA 7 at  6-7 (explaining that, since 1991, Borg-Warner has required its employees to sign its Agreement, which allows Borg-Warner to require arbitration of disputes related to employment, including claims of discrimination). As part of the ensuing conciliation process, the Commission proposed that Borg-Warner agree to stop using the Agreement. JA 10-11 at  22. The Commission and Borg- Warner, however, were unable to conciliate the conflict about the Agreement. JA 11 at  24. On April 5, 1999, Borg-Warner filed this action against the Commission, seeking monetary and injunctive relief, and a declaratory judgment that its Pre-Dispute Resolution Agreement does not violate Title VII. JA 6, 14. 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 JA 75-76, 83. The Commission issued a "Notice of Right to Sue" to Lee on April 8, 1999. JA 77. 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. C. District Court Decision On June 6, 1999, the Commission filed a motion to dismiss this action by Borg-Warner for lack of subject matter jurisdiction. JA 45. The district court granted the Commission's motion on January 4, 2000, and accordingly dismissed Borg-Warner's complaint and entered judgment in favor of the Commission. JA 75; JA 93. The district court began its opinion by explaining that Borg-Warner argues that its claims under Title VII, the APA and the DJA serve as a predicate to federal jurisdiction because they satisfy the requirements of 28 U.S.C. 1331, 1337, 1343. JA 79-80. The court accordingly turned to the question of whether any of the statutes cited by Borg-Warner in fact supply a basis for jurisdiction in this case. JA 80. The district court rejected Borg-Warner's argument that the court had jurisdiction to review the claim that the Commission exceeded its authority under Title VII in issuing the Policy Statement and allegedly applying it to Borg-Warner through the Determination issued in connection with Lee's charge of discrimination. See JA 80-81. The district court explained that, although Borg-Warner contended that the Policy Statement violates section 118 of the Civil Rights Act of 1991 and the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), neither Title VII (as amended by the Civil Rights Act of 1991) nor the Supreme Court's decision in Gilmer speak directly to the issues of whether the Commission must encourage compulsory arbitration of Title VII claims or whether a Title VII claim may be submitted to compulsory arbitration under the terms of an employment contract. JA 81. Because of the lack of any patent violation of agency authority, the district court held that Borg- Warner could not establish jurisdiction under an ultra vires theory. JA 81-82. The district court also rejected Borg-Warner's attempt to base jurisdiction on the APA. The district court assumed, for the sake of argument, that the Commission engaged in agency action when it established its NEP, issued the Policy Statement, and issued the Determination after investigating Lee's charge of discrimination. JA 83-84. The court held, however, that none of the three actions were sufficiently "final" to be subject to review under the APA. JA 84. As the court explained, the Determination is not final because it is "of a merely tentative or interlocutory nature." JA 84-85. As for the NEP and the Policy Statement, the court held that these actions are not reviewable under the APA because neither document determines rights or causes legal consequences. JA 85-87. Specifically, neither the NEP nor the Policy Statement requires Borg-Warner to rescind its pre-dispute arbitration agreement or any of its provisions, nor does either document command deference from the federal courts or require Borg-Warner to change its employment practices. JA 86-88 (explaining that other federal courts have not felt compelled to accept the position expressed in the Policy Statement). Accordingly, the district court determined that the APA could not serve as the basis for jurisdiction over this action. Finally, the district court dismissed Borg-Warner's claims under the DJA. The district court agreed with Borg-Warner that it could exercise federal question jurisdiction over Borg-Warner's declaratory judgment action, stating that a federal question would be presented if the Commission filed suit to argue that Borg- Warner's pre-dispute arbitration agreement violates Title VII. JA 90. The district court held, however, that Borg-Warner could not proceed with such an action because it lacked Article III standing. Id. As the court explained, Borg-Warner lacks standing because a favorable decision in this action would not redress the injuries Borg-Warner claims to have suffered, principally because the federal courts of appeals will remain divided about the validity of compulsory pre-dispute agreements to arbitrate Title VII claims. JA 90-91. The district court added that even if it were not required to dismiss Borg-Warner's declaratory judgment action for lack of standing, it would exercise its discretion to do so because a declaratory judgment would not serve a useful purpose because it would not redress Borg-Warner's alleged injuries. JA 91-92. STANDARD OF REVIEW In reviewing a district court's decision to grant a motion to dismiss a complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure, this Court conducts "an independent, de novo review on all questions of law." Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). This Court also "construe[s] the allegations of the complaint most favorably to the appellants unless such allegations are contradicted by the undisputed historical documents on which the District Court based its judgment." Hohri v. United States, 782 F.2d 227, 241-42 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Where a district court dismisses a declaratory judgment action on discretionary, prudential grounds, this Court will review for an abuse of discretion. Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961, 964 n.3 (D.C. Cir. 1995). SUMMARY OF ARGUMENT This Court should affirm the district court's decision to dismiss Borg-Warner's action against the Commission for lack of subject matter jurisdiction. Subject matter jurisdiction is lacking because Borg-Warner has failed to identify any statute or rule of law that may serve as a predicate to jurisdiction in the federal courts. First, Title VII does not provide a basis for jurisdiction because its jurisdictional provisions do not apply to actions brought by employers attempting to challenge the Commission's nonbinding policy statements or reasonable cause determinations. Further, Borg-Warner fails to show that the Commission has acted ultra vires, and thus fails to provide a basis for a court to exercise jurisdiction under the Supreme Court's decision in Leedom v. Kyne, 358 U.S. 184 (1958). Second, Borg-Warner fails in its attempt to establish jurisdiction under the APA. The Policy Statement at issue here is not reviewable under the APA because it is not a final agency action. The Policy Statement does not determine rights or impose any obligations on Borg-Warner, nor does it create any legal consequences. Although Borg-Warner alleges that the Commission applied its Policy Statement to Borg-Warner when the Commission issued the Lee Determination, that contention, even if true, does not establish that the Commission's actions are "final" for purposes of the APA because it is well established that the Commission's reasonable cause determinations are merely preparatory to further administrative proceedings. In any event, jurisdiction is lacking under the APA for the additional reason that Borg-Warner has an adequate remedy in court for any objections it has to the Policy Statement, because Borg-Warner may assert its objections if or when an individual or the Commission challenges its pre-dispute arbitration agreement in court. Third, the DJA does not supply a basis for jurisdiction. The DJA itself does not create jurisdiction. As for Borg-Warner's claim that jurisdiction under the DJA is appropriate because federal jurisdiction would exist in a Title VII action brought by the Commission, that argument fails because the doctrine of sovereign immunity bars Borg-Warner's action, and because this Court's decision in Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997), establishes that actions such as this one must be barred to avoid undermining the administrative process that Congress created for handling charges of discrimination. In addition, the district court was well within its discretion when it declined to exercise jurisdiction over Borg-Warner's declaratory judgment action, because the declaratory judgment Borg-Warner seeks would serve no purpose. Finally, subject matter jurisdiction is lacking because Borg- Warner's action is not ripe for review, and because Borg-Warner lacks standing. Borg-Warner's action against the Commission is not ripe because there is no justiciable controversy that can be resolved by the courts. At the time Borg-Warner filed suit, the Commission was still engaged in its administrative process, as indicated by the fact that the Commission had not filed suit or issued a notice of right to sue in connection with Lee's charge of discrimination. See supra pp. 5-6. That fact, coupled with the fact that Borg-Warner will not suffer undue hardship if the federal courts do not hear the claims it asserts in this action (Borg- Warner will be able to defend its pre-dispute arbitration agreement if or when an individual or the Commission challenges the agreement in court), establishes that this action is not ripe for review. As for the issue of standing, Borg-Warner cannot proceed with this action because the injuries it alleges will not be redressed by a favorable decision. Borg-Warner complains that it faces uncertainty about the validity of its pre-dispute arbitration agreement, but that uncertainty results from the fact that the federal courts are divided on whether mandatory pre-dispute agreements to arbitrate employment discrimination claims are valid under Title VII. That division of authority, and the uncertainty that it allegedly creates, will remain even if Borg-Warner succeeds in convincing a court to silence the Commission on the issue. Individuals, other agencies and private entities will still be able to challenge Borg-Warner's pre-dispute arbitration agreement, and thus Borg-Warner's alleged injuries will not be redressed if it prevails in this action. Accordingly, because of these deficiencies in Borg-Warner's action against the Commission, this Court should affirm the district court's decision to dismiss this action for lack of subject matter jurisdiction. ARGUMENT THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S DECISION TO DISMISS BORG-WARNER'S ACTION AGAINST THE COMMISSION FOR LACK OF SUBJECT MATTER JURISDICTION In this action, Borg-Warner asks the federal courts to review the Commission's Determination (issued in connection with Rudy Lee's charge of discrimination) and Policy Statement on the issue of requiring, as a condition of employment, the mandatory binding arbitration of employment disputes. In its opening brief in this appeal, Borg-Warner argues that the federal courts have subject matter jurisdiction because the Commission allegedly exceeded its delegated authority under Title VII when it "promulgat[ed] and appl[ied]" its Policy Statement to Borg-Warner. See Borg-Warner's Opening Brief at 17. Borg-Warner also argues that the federal courts have jurisdiction over this action under the APA and the DJA. See id. This Court should affirm the district court's decision to dismiss Borg-Warner's action for lack of subject matter jurisdiction. As the analysis below will demonstrate, Borg- Warner's arguments about subject matter jurisdiction fail because Borg-Warner has not (and cannot) identify any statute or rule of law that establishes subject matter jurisdiction over its claims against the Commission. Further, subject matter jurisdiction is lacking because Borg-Warner's claims against the Commission are not ripe for review, and because Borg-Warner lacks standing. A. The district court correctly determined that Title VII does not provide a basis for subject matter jurisdiction over this action As noted above, Borg-Warner argues that this Court may look to Title VII as the predicate to subject matter jurisdiction over this action. The jurisdictional provisions of Title VII, however, do not apply to actions brought by employers challenging the Commission's determinations of reasonable cause (such as the Lee Determination) and/or the Commission's policy guidance. See, e.g., Georator Corp v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) ("Title VII details the procedures for civil action in an employment discrimination case, but does not provide for preliminary review of the Commission's determination of reasonable cause."). See also Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (affirming dismissal of employee's suit challenging Commission's conduct in processing his charge of discrimination). Instead, Title VII's jurisdictional provisions grant the federal district courts jurisdiction over actions brought by aggrieved individuals (i.e., employees or applicants), the Commission or the Attorney General to challenge unlawful employment practices. See 42 U.S.C. 2000e- 5(f)(3) (outlining the extent to which federal district courts have jurisdiction over Title VII actions). Borg-Warner is not an "aggrieved individual" challenging an unlawful employment practice, and thus does not (and cannot) argue that Title VII's jurisdictional provisions supply a basis for subject matter jurisdiction over this action. See generally Borg-Warner's Opening Brief at 17-33. Perhaps recognizing that the express jurisdictional provisions of Title VII cannot save this action from dismissal, Borg-Warner argues that this Court has jurisdiction because the Commission allegedly exceeded its authority under Title VII when it issued its Policy Statement (discussing mandatory arbitration) and issued the Determination after investigating Lee's charge of discrimination. See id. at 18-33. Borg-Warner's argument fails because there is no legal or factual support for its claim that the federal courts may review the Policy Statement and Determination under the theory that the Commission has acted ultra vires. The most glaring problem with Borg-Warner's argument is that it simply fails to show, in a manner sufficient to provide a basis for jurisdiction, that the Commission has acted ultra vires. In asserting that the federal courts have jurisdiction over this action because the Commission has acted ultra vires, Borg-Warner relies on the line of cases stemming from the Supreme Court's decision in Leedom v. Kyne, 358 U.S. 184 (1958), a case in which the Supreme Court permitted judicial review of an action by the National Labor Relations Board that "flatly violated a statutory prohibition." Chamber of Commerce of the United States v. Reich, 74 F.3d 1322, 1327-28 (D.C. Cir. 1996) (discussing Leedom). See also Borg-Warner's Opening Brief at 23-24 (invoking Leedom). This Court has explained, however, that "[t]he invocation of Leedom jurisdiction is extraordinary; to justify such jurisdiction, there must be a specific provision of the Act which, although it is 'clear and mandatory,' was nevertheless violated." Council of Prison Locals v. Brewer, 735 F.2d 1497, 1501 (D.C. Cir. 1984) (internal quotation marks omitted). See also Physicians Nat'l House Staff Ass'n v. Fanning, 642 F.2d 492, 496 n.4 (D.C. Cir. 1980) (en banc) ("The jurisdiction of the district courts recognized by Leedom v. Kyne has been compared to the jurisdiction of a court of appeals in a mandamus proceeding. . . . In both situations, the mere possibility that the decision being reviewed is erroneous is not sufficient to support jurisdiction. The party seeking relief must show that the court or agency which made the decision had no authority to do so."). Borg-Warner has not demonstrated that Leedom jurisdiction is warranted in this case. In this action, Borg-Warner contends that the Commission exceeded its Title VII authority when it issued its Policy Statement on mandatory arbitration, and issued its Determination after investigating Lee's charge of discrimination. It is clear from the express terms of Title VII, however, that both of these actions were well within the Commission's authority. Title VII expressly authorizes the Commission to advise the public about the laws and regulations it enforces. See 42 U.S.C. 2000e-4(g)-(h), (j) (explaining that the Commission, as part of its enforcement power, may (among other things): provide technical assistance and training; make technical studies and release that information to the public; and engage in outreach activities). Similarly, Title VII authorizes the Commission to investigate charges of discrimination and determine whether there is reasonable cause to believe that the allegations of discrimination in the charges are true. See 42 U.S.C. 2000e-5(b). In its opening brief, Borg-Warner does not mention these clear grants of authority. Instead, it argues that the Policy Statement and Determination regarding the mandatory arbitration of Title VII claims conflict with the "clear and specific" directives allegedly found in section 118 of the Civil Rights Act of 1991, the Supreme Court's decision in Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20 (1991), and this Court's decision in Cole v. Burns International Security Services, 105 F.3d 1465 (D.C. Cir. 1997). This Court should reject Borg-Warner's argument as wrong on all three grounds. Borg-Warner is wrong when it argues that section 118 is clear and specific in requiring the Commission to encourage the mandatory arbitration of Title VII disputes. See Borg Warner's Opening Brief at 19. Section 118 of the Civil Rights Act of 1991 states that, "[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 it explains that 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 JA 81 (quoting the Policy Statement) (emphasis in original). While the Commission does contest the legality of certain pre-dispute agreements that mandate binding arbitration of subsequent Title VII disputes as a condition of employment, see JA 10 at  19, nothing in section 118 conflicts with the Commission's position. Indeed, because the Commission does encourage the use of alternative dispute resolution, including arbitration, and because section 118 expressly recognizes that arbitration and other forms of alternative dispute resolution are not always "appropriate" or "authorized by law," there is no validity to Borg-Warner's claim that the Commission's Policy Statement and Determination violate section 118. Borg-Warner's argument that the Commission's actions conflict with the Supreme Court's decision in Gilmer is similarly unavailing. As the district court correctly explained in its opinion, "the Supreme Court's holding in Gilmer did not speak directly to the issue of whether a Title VII claim may be submitted to compulsory arbitration pursuant to an employment contract." JA 81. Instead, as the Supreme Court itself has stated, the Supreme Court in Gilmer held that "a claim brought under the Age Discrimination in Employment Act . . . could be subject to compulsory arbitration pursuant to an arbitration provision in a securities registration form." Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 76 (1998) (discussing Gilmer). See also Gilmer, 500 U.S. at 23 (stating that "the question presented is . . . whether a claim under the Age Discrimination in Employment Act . . . can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application"); id. at 24-25 & n.2 (explaining that the Federal Arbitration Act was enacted to "place arbitration agreements on the same footing as other contracts," and noting that the Court would not address whether employment contracts were covered under the Act). Borg- Warner does not, and cannot, argue that the Policy Statement and Determination conflict with the narrow holding in Gilmer endorsing the compulsory arbitration of ADEA claims under arbitration provisions contained in securities registration forms. Borg-Warner attempts to get around the narrow holding of Gilmer by arguing that this Court, in Cole, 105 F.3d at 1478, held that the Supreme Court has "made clear that, as a general rule, statutory claims are fully subject to binding arbitration." In implying that this general statement in Cole means that the Supreme Court in Gilmer addressed the validity of employment contracts requiring the compulsory arbitration of Title VII claims, however, Borg-Warner asks this Court to overlook the Supreme Court's own express statement that it did not reach that issue. See Gilmer, 500 U.S. at 24-25 & n.2 (declining to address whether employment contracts are covered by the Federal Arbitration Act). See also Circuit City Stores, Inc. v. Adams, No. 99-1379, 120 S. Ct. 2004 (2000) (granting certiorari on the question of whether the Federal Arbitration Act applies to employment contracts); supra p. 19 (explaining that the Supreme Court has stated that it only addressed the validity of arbitration provisions contained in securities registration forms that require compulsory arbitration of ADEA claims). Further, in Cole, this Court stated that it did not "read Gilmer as mandating the enforcement of all mandatory agreements to arbitrate statutory claims." 105 F.3d at 1468 (emphasis in original). This Court also noted that the Supreme Court did not resolve whether employment contracts are exempt from the provisions of the Federal Arbitration Act. Id. at 1470. See also supra pp. 19-20 (discussing Gilmer, 500 U.S. at 24-25 & n.2, and Circuit City Stores, 120 S. Ct. 2004, and noting that the Supreme Court has not resolved this issue). Thus, although this Court held, in Cole, 105 F.3d at 1482-83, that an arbitration agreement calling for the compulsory arbitration of a Title VII claim was valid and enforceable, it did not hold that the Supreme Court addressed that issue in Gilmer. Accordingly, the district court was correct in concluding that the Policy Statement and Determination do not conflict with the Supreme Court's decision in Gilmer. This Court should reject Borg-Warner's argument that, because various courts have invoked the reasoning in Gilmer to hold that an employment contract may require the compulsory arbitration of Title VII claims, Gilmer must have resolved all questions about that issue. See Borg-Warner's Opening Brief at 25-26. Borg-Warner's argument fails not only for the reasons set forth above, (see supra pp. 19-21, explaining narrow scope of the decision in Gilmer, and this Court's recognition, in Cole, of that fact), but also because the Commission is not aware of any court holding that Leedom jurisdiction would be appropriate in a case such as this one because the Supreme Court in Gilmer was sufficiently clear and specific in establishing that employment contracts requiring the compulsory arbitration of Title VII claims are valid and enforceable. Indeed, none of the cases Borg-Warner cites so hold, and this Court's decision in Cole supports the Commission's position that the Supreme Court in Gilmer simply did not address this type of compulsory arbitration. See supra pp. 20-21. Finally, although the preceding analysis demonstrates that there is no merit to Borg-Warner's argument that the Commission acted ultra vires in issuing its Policy Statement and Determination, the Commission advises the Court that it also should reject Borg-Warner's claim that the Commission's actions have impinged on Borg-Warner's right to use and enforce its pre-dispute arbitration agreement. See Borg-Warner's Opening Brief at 23-33. The Policy Statement simply outlines the Commission's views (which account for the relevant legal authority) on the validity of employment contracts that require the compulsory arbitration of Title VII and other employment disputes. The Policy Statement, however, does not place any obligations on employers, nor could it, because "Title VII does not provide the Commission with direct powers of enforcement" such as the power to "adjudicate claims or impose administrative sanctions." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974). See also id. (noting that "the final responsibility for enforcement of Title VII is vested with the federal courts"). Because the Commission's Policy Statement does not carry the force of law, and only carries weight to the extent that the it has the power to persuade (see Christensen v. Harris County, 120 S. Ct. 1655, 1662-63 (2000)) the Policy Statement could not possibly impinge on any of Borg-Warner's rights. Similarly, the Determination that the Commission issued in connection with Lee's charge of discrimination could not possibly have impinged on any of Borg-Warner's rights. It is clear that a determination of reasonable cause is "lifeless, and can fix no obligation nor impose any liability on [an employer]." Georator, 592 F.2d at 768. Indeed, because a determination is at most "merely preparatory to further proceedings," it cannot impinge on any rights because the employer will have the opportunity to refute the charges in the determination if the Commission or the aggrieved individual files suit. Id. See also Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (holding that an aggrieved individual may not sue the Commission for alleged malfeasance in processing a charge of discrimination because the individual remains free to assert his or her charges of discrimination in a private lawsuit). Ultimately, it is clear from Borg-Warner's brief that any "impingement" on its ability to use its pre-dispute arbitration agreement does not result from any action taken by the Commission, but instead results from the disagreement in the federal courts about the validity of employment contracts requiring the compulsory arbitration of Title VII claims. In particular, Borg-Warner takes issue with the Ninth Circuit's decision in Duffield v. Robertson Stephens Co., 144 F.3d 1182, 1199-1200 (9th Cir.), cert. denied, 525 U.S. 996 (1998), where the court held that mandatory pre-dispute agreements to arbitrate employment discrimination disputes are not valid under Title VII. See Borg-Warner's Opening Brief at 26-29. While Borg-Warner's unhappiness with the decision in Duffield is not surprising, the fact of the matter is that Duffield is good law in the Ninth Circuit, and any uncertainty (or "impingement") that Borg-Warner feels about the validity of its pre-dispute arbitration agreement results entirely from the unsettled case law in the federal courts. More important to the jurisdictional issue raised in this appeal, the fact remains that Borg-Warner has failed to show that the Commission has acted ultra vires, and thus has failed to establish a basis for Leedom jurisdiction. See supra pp. 15-22. B. The district court correctly determined that the APA does not provide a basis for subject matter jurisdiction over this action Borg-Warner next challenges the district court's conclusion that the APA does not supply a basis for subject matter jurisdiction over this action. See Borg-Warner's Opening Brief at 33-49. 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 argues that the Policy Statement is reviewable as a final agency action, but this Court now should reject that argument because: (1) the district court correctly held that the Policy Statement in not "final" because it does not determine rights, and no legal consequences flow from that document (see JA 82-88); and (2) Borg- Warner has an adequate remedy in court for any problems presented by the Policy Statement (or the Determination) insofar as Borg- Warner may defend its pre-dispute arbitration agreement in court if an individual or the Commission files suit on that issue. The Supreme Court has explained that there is a two-part test for determining whether agency action is final for purposes of the APA. "First, 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 district court, applying the test in Spear, correctly held that the Policy Statement is not a final agency action subject to review under the APA. See JA 85-88. Specifically, the district court correctly reasoned that, even if it assumed arguendo that the Policy Statement marked the consummation of the Commission's assessment of the validity of agreements that require the compulsory arbitration of Title VII claims as a condition of employment, the Policy Statement is not final because it does not determine rights or cause legal consequences for employers like Borg-Warner or for individuals. See id. See also Pacific Gas & Elec. Co. v. Federal Power Comm'n, 506 F.2d 33, 39 (D.C. Cir. 1974) ("A general statement of policy . . . does not establish a 'binding norm.' It is not determinative of the issues or rights to which it is addressed."); Circuit City Stores, Inc. v. EEOC, 75 F. Supp.2d 491, 504-12 (E.D. Va. 1999) (dismissing employer's APA claim against the Commission for lack of jurisdiction because none of the Commission's actions relating to the validity of the employer's mandatory arbitration policy were "final" for purposes of the APA), appeal docketed, No. 99-2360 (4th Cir. October 15, 1999). As a preliminary matter, nothing in the terms of the Policy Statement requires Borg-Warner (or any other employer) to rescind or revise its pre-dispute arbitration agreement. Instead, the Policy Statement outlines the Commission's views on the various uses of arbitration to resolve employment discrimination disputes, and provides guidance to the Commission's investigators on how they should proceed if presented with a charge of discrimination filed by an individual who has signed an agreement to arbitrate his or her employment discrimination claims. See, e.g., JA 81 (noting that the Policy Statement reaffirms the Commission's strong commitment to voluntary alternative dispute resolution programs); JA 76 (quoting the charge processing instructions provided in the Policy Statement). Although Borg-Warner makes much of the general language in the Policy Statement, the fact of the matter is that nothing in that document determines Borg-Warner's rights, nor could it, because the Commission does not have direct enforcement power, and thus cannot adjudicate claims, issue cease and desist orders, or impose administrative sanctions. Alexander, 415 U.S. at 44 (noting the limited scope of the Commission's enforcement power); Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 809, 812 (4th Cir. 1983) (observing that "no rule or decision of the Commission, however denominated, can affect the rights or impose any obligation on any party"); EEOC v. Continental Oil Co., 548 F.2d 884, 890 (10th Cir. 1977) (explaining that, unlike the NLRB, the EEOC does not have the authority to issue cease and desist orders). Perhaps sensing this deficiency in its argument, Borg-Warner contends that the Commission applied the Policy Statement to Borg- Warner when the Commission issued the Determination in connection with Lee's charge of discrimination. In so arguing, however, Borg-Warner overlooks the fact that it is well established that a reasonable cause determination issued by the Commission as part of its charge review process is not a final agency action subject to judicial review under the APA. 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. University 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.3d at 34 (citing McCottrell and Francis- Sobel with approval). Based on this authority, the Determination, lifeless and nonbinding as it was, clearly could not have turned the Policy Statement into a final agency action reviewable under the APA. The district court also correctly rejected Borg-Warner's argument that the Policy Statement creates legal consequences for Borg-Warner. See JA 86-88. This Court has deemed an agency action to be final where the agency's interpretation of the statute "has the legal consequence of . . . commanding deference from a court that itself might have reached a different view if it had been free to consider the issue as on a blank slate." Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 437 (D.C. Cir. 1986). Applying this standard, the district court correctly held that the Policy Statement does not command such deference. See JA 86-87. Indeed, as the Supreme Court explained in Christensen, 120 S. Ct. at 1662 (and as Borg- Warner notes in its brief at page 27), agency interpretations "contained in policy statements . . . lack the force of law" and "do not warrant Chevron deference." Instead, policy statements like the one at issue here are entitled to deference only to the extent that the interpretations they offer "have the 'power to persuade.'" Christensen, 120 S. Ct. at 1663. Compare Ciba-Geigy, 801 F.2d at 437 (indicating that agency interpretations entitled to deference under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) are the types of interpretations that "command deference"). Given the low level of weight that can be afforded to the Policy Statement, the district court was correct in holding that the Policy Statement is not a document that can command deference from the federal courts. See JA 87. See also Desiderio v. National Ass'n of Securities Dealers, Inc. 191 F.3d 198, 203-06 (2d Cir. 1999) (holding, contrary to Commission guidance, that a predispute agreement requiring compulsory arbitration is enforceable as to Title VII claims, and collecting cases from courts that have also reached that conclusion), petition for cert. filed, 68 U.S.L.W 3497 (Jan. 31, 2000) (No. 99-1285). Further, although Borg-Warner argues that the Policy Statement creates legal consequences by placing it at risk of civil penalties in the form of punitive damages (see Borg-Warner's Opening Brief at 43-49), the district court correctly rejected that proposition as well. See JA 87-88 (noting that the Policy Statement does not require Borg-Warner to change its behavior or put it at risk of suffering immediate consequences). Borg-Warner's argument fails because it is premised on an apparent misunderstanding of the Commission's enforcement power. As noted above, the Commission does not have direct enforcement authority that would enable it to adjudicate claims, issue cease and desist orders, or impose administrative sanctions. See supra pp. 22-23 (explaining the limited scope of the Commission's power). "Rather, the final responsibility for enforcing Title VII is vested with the federal courts." Alexander, 415 U.S. at 44. Because of the Commission's limited authority, Borg-Warner's attempt to compare the Policy Statement at issue here with (for example) the Secretary of the Interior's "Biological Opinion" in Spear is misplaced (see Borg- Warner's Opening Brief at 44), because in Spear, the biological opinion effectively represented the final word on the terms and conditions that an entity must satisfy before "taking" an endangered species. 520 U.S. at 170. In contrast, the Commission's Policy Statement is hardly the final word on whether an employer may use arbitration agreements calling for the compulsory arbitration of Title VII claims, because the final word on that issue will come from the federal courts (or Congress, if it chooses to address this specific issue). Because of the central role the courts play in enforcing Title VII, and because the Policy Statement will only carry weight in a federal court's assessment of the validity of arbitration agreements if the court determines the Commission's position is persuasive, the Supreme Court's decision in Dalton v. Specters is apposite and establishes that the Policy Statement is not a final agency action for purposes of the APA. See 511 U.S. 462, 469-70 (1994) (Defense Base Closure and Realignment Commission's report identifying military bases to be closed was not a final agency action under the APA because the President ultimately would decide the final course of action regarding base closure). See also supra pp. 29-30 (explaining that the Policy Statement does not receive deference, and is afforded weight only insofar as it is persuasive). In light of the pivotal role that the federal courts play in enforcing Title VII, Borg-Warner's claim that the Policy Statement has placed it at risk of a possible punitive damages award is misplaced. Simply put, if Borg-Warner faces an increased risk of punitive damages based on its use of its pre-dispute arbitration agreement, that risk stems from the fact that some courts have held that pre-dispute arbitration agreements like Borg-Warner's are invalid. See, e.g., Duffield, 144 F.3d at 1199-1200 (mandatory pre-dispute agreements to arbitrate employment discrimination disputes are invalid under Title VII). To the extent that Borg- Warner points to the possibility that the Determination might be used as evidence of Borg-Warner's awareness that it might be violating Title VII, that possibility does not convert the Commission's Determination into final agency action. Indeed, if the mere possibility that a reasonable cause determination could be used as evidence supporting (or rebutting) an argument for punitive damages means that the determination is a final agency action, then employers and employees alike could seek review of any determination made by the Commission, notwithstanding the case law establishing that the Commission's reasonable cause determinations are not final, and therefore are not reviewable under the APA. See supra pp. 28-29 (citing Georator, 592 F.2d at 768; McCottrell, 726 F.2d at 351 & n.1; Francis-Sobel, 597 F.2d at 17-18; Smith, 119 F.2d at 34). Obviously, this Court should not permit such a result. Ultimately, this Court should affirm the district court's holding that it lacked subject matter jurisdiction over Borg- Warner's APA claim against the Commission. The preceding analysis demonstrates that the Policy Statement is not final agency action subject to judicial review. While that fact, in and of itself, bars Borg-Warner's APA claim, Borg-Warner's claim also fails because Borg-Warner may address any problems presented by the Policy Statement if or when an individual or the Commission challenges Borg-Warner's pre-dispute arbitration agreement in court. The fact that Borg-Warner will have the opportunity to defend its arbitration agreements when they are actually challenged in court ensures that Borg-Warner has an adequate remedy in court, and thus obviates any need for judicial review of the Policy Statement and Determination under the APA. See Georator, 592 F.2d at 768 (rejecting employer's APA claim challenging the Commission's reasonable cause determination, and noting that the employer's opportunity to defend its employment practices will come if and when the Commission or the charging party files suit). See also 5 U.S.C. 704 (noting that judicial review is only available for "final agency action for which there is no other adequate remedy in a court"). C. The DJA does not provide a basis for subject matter jurisdiction over this action 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. See JA 89-90. 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. United States, 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 DJA. First, "sovereign immunity shields the Federal Government and its agencies from suit" under the DJA as contemplated in this case. FDIC v. Meyer, 510 U.S. 471, 475 (1994). See also United States v. United States Fidelity & Guar. 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 United States v. Sherwood, 312 U.S. 584, 586 (1941)). The federal government has not waived its sovereign immunity with regard to DJA lawsuits filed against the Commission by employers challenging the Commission's policy statements or reasonable cause determinations. See Circuit City Stores, 75 F. Supp.2d at 504 (recognizing, in an employer's suit seeking declaratory judgment against the Commission on the issue of mandatory arbitration, that "the Declaratory Judgment Act does not constitute a waiver of sovereign immunity" or create jurisdiction). Consequently, the federal courts may not entertain Borg-Warner's action for declaratory judgment against the Commission. Second, but equally compelling, this Court's decision in Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997), precludes subject matter jurisdiction over lawsuits brought by employers in anticipation of action by the Commission. 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, reasoning that aggrieved individuals instead may bring a lawsuit directly against their employer if the individuals believe the Commission mishandled their charges. Smith, 119 F.3d at 34 (also recognizing that implying a cause of action against the Commission for its charge processing "'could dissipate the limited resources of the [EEOC] in fruitless litigation'") (brackets in original, quoting Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983)). This Court should apply the same reasoning to lawsuits such as the one Borg-Warner brings here, because employers may always defend their employment practices in court if they are sued, just as individuals may pursue their legal claims irrespective of the Commission's reasonable cause determinations. See Georator, 592 F.2d at 768 (making this observation about employers' rights). Declaratory judgment actions such as this one are therefore unnecessary, and should be barred because permitting a lawsuit of this nature clearly would undermine the administrative process that Congress created when it enacted Title VII, insofar as employers would be able to run directly to court upon receiving a reasonable cause determination, rather than allowing the Commission to complete its administrative process, including any efforts to conciliate or otherwise secure a voluntary agreement between the parties. See 42 U.S.C. 2000e-5(b) (once the Commission finds reasonable cause, it shall endeavor to eliminate the alleged unlawful employment practice by "conference, conciliation, and persuasion"). 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 R.21 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)). Because the Commission has not filed suit against Borg-Warner to challenge its pre-dispute arbitration agreement, and perhaps more importantly, because any decision the district court might issue in this declaratory judgment action would do nothing to change the law in the Ninth Circuit or to prevent individuals and other organizations from challenging Borg-Warner's pre-dispute arbitration agreement (or others like it), the district court correctly determined that a declaratory judgment would serve no purpose. This Court therefore should affirm the district court's decision to dismiss Borg- Warner's action under the DJA. D. 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 against the Commission, this Court may affirm the district court's decision on two additional grounds: (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 is unfit for review because there is no "'substantial controversy . . . of sufficient immediacy and reality to warrant the issuance of a declaratory judgment'" or any other form of relief. 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 the Commission was still engaged in its administrative process, insofar as it was (among other things) attempting to decide whether to litigate 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, events subsequent to Borg-Warner's commencement of this action demonstrate 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 arbitration agreement. See JA 77. 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 argues that it faces uncertainty regarding the validity of its pre-dispute arbitration agreement (see, e.g., Borg-Warner's Opening Brief at 52), 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 invalid 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 invalid). Moreover, this uncertainty is no hardship, because the fact remains that if or when the Commission or an individual challenges Borg-Warner's pre-dispute arbitration agreement under Title VII, Borg-Warner will be able to assert the validity of its arbitration agreement 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 JA 90-91. 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 arbitration agreement) cannot, and will not, be redressed by a favorable decision in this action. As the district court noted, the courts of appeals are divided on whether mandatory pre-dispute agreements to arbitrate employment discrimination claims are valid under Title VII. See JA 91 (collecting cases). That division of authority, and the uncertainty about the validity of Borg-Warner's pre-dispute arbitration agreement, will remain even if this Court remands this action and the district court takes the unprecedented step of silencing the Commission on the validity of agreements requiring the compulsory arbitration of Title VII claims as a condition of employment. Individual plaintiffs (including Borg-Warner's employees), other agencies, and private entities would remain free to challenge Borg-Warner's pre-dispute arbitration agreement and to share information about successful litigation strategies; courts addressing the issue for the first time would still be free to align themselves with either side of the dispute; and the law in the Ninth Circuit (where Lee's charge was filed and processed) would still deem Borg-Warner's Agreement invalid as to Title VII claims. This Court accordingly should hold that, because Borg- Warner's alleged injuries will not be redressed if it prevails in this action, Borg-Warner lacks Article III standing. CONCLUSION For the foregoing reasons, this Court should affirm the district court's decision to grant the Commission's motion to dismiss this action for lack of subject matter jurisdiction. 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 November 17, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 11,111 words. GEOFFREY L.J. CARTER CERTIFICATE OF SERVICE This is to certify that on November 17, 2000, two copies of the attached final brief were mailed first class, postage prepaid, to the following counsel of record: 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 November 17, 2000 (202) 663-4728 ADDENDUM Statute Page(s) 1. Administrative Procedure Act A1-A3 5 U.S.C. 551 A1-A3 5 U.S.C. 702 A3 5 U.S.C. 704 A3 2. Declaratory Judgment Act A4 28 U.S.C. 2201 A4 3. Title VII of the Civil Rights Act of 1964 A5-A9 42 U.S.C. 2000e-4(g) A5 42 U.S.C. 2000e-4(h) A5-A6 42 U.S.C. 2000e-4(j) A6 42 U.S.C. 2000e-5(a) A6 42 U.S.C. 2000e-5(b) A6-A7 42 U.S.C. 2000e-5(f) A7-A9 __________________________________________ 1 Authorities on which we chiefly rely are marked with asterisks. 2 Citations to the Joint Appendix are in the form of “JA *”. Citations to record entries on the district court's docket sheet are in the form of “R.*”. 3 In its opening brief, Borg-Warner only challenges the Policy Statement and the Determination issued in connection with Lee's charge. See, e.g., Borg-Warner's Brief at 1, 17, 18. Borg-Warner accordingly has waived all arguments it might have asserted about the Commission's NEP. See AMSC Subsidiary Corp. v. FCC, 216 F.3d 1154, 1161 n.* (D.C. Cir. 2000) (arguments not asserted in the appellant's opening brief are waived on appeal). The Commission adds that, in its view, this action (as defined by Borg-Warner's complaint) only challenges the Commission's letter of determination issued in connection with Lee's charge of discrimination. See JA 13-14 at ¶¶ 35, 38-42, 46 (counts based on alleged harm caused by Commission's letter of determination). For the sake of argument, however, the Commission addresses Borg-Warner's arguments about both the Determination and Policy Statement, and asks this Court to affirm the district court's holding that it lacked subject matter jurisdiction over this action. 4 This Court should disregard much of Borg-Warner's Statement of Facts because it improperly includes argument (see Borg-Warner Brief at 9-10) and discusses “evidence” that was not presented to the district court and thus is not a proper part of the appellate record (see Borg-Warner Brief at 10-11 (discussing administrative proceedings relating to a charge filed by Wilbur Bernard, even though the administrative proceedings occurred more than eight months after the district court granted the Commission's motion to dismiss this action)). See also Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (explaining that the posture in which a motion to dismiss is presented to trial court “has a profound effect on the manner in which this Court will review its disposition”). 5 The district court did not consider whether Borg-Warner's claims were also barred as unripe or moot. JA 92 n.7. 6 The Supreme Court itself has indicated that the effect of language such as that in section 118 is still in question in cases where an arbitration clause in a contract or collective bargaining agreement encompasses employment discrimination claims. See Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 82 n.2 (1998) (making this observation about 42 U.S.C. § 12212, an Americans with Disabilities Act provision that contains language that is identical to section 118 of the Civil Rights Act of 1991). 7 For this reason, this Court also should reject Borg-Warner's argument that the decision in Gilmer extends to Title VII because “there is virtually no difference in [the] enforcement schemes” of Title VII and the ADEA. Borg-Warner's Opening Brief at 25-26. The decision in Gilmer is not sufficiently clear on its applicability to Title VII to meet the requirements for Leedom jurisdiction, and further, the two statutes, while similar, are not so identical as to allow a court to hold, without analysis, that the reasoning in Gilmer regarding mandatory arbitration should extend to Title VII. See, e.g., Section 118 of the Civil Rights Act of 1991, Pub. L. 102-166, § 118, reprinted in 42 U.S.C. § 1981 (notes) (statutory language applicable to Title VII, but not the ADEA, discussing the use of arbitration and other forms of alternative dispute resolution). 8 The decision in Duffield, of course, is controlling precedent in the state of Washington, where Lee filed his charge of discrimination and the Commission issued its Determination. See supra p. 4. 9 Although Borg-Warner states, on page 28 of its opening brief, that “virtually every Circuit” has rejected the reasoning in Duffield, that does not mean that the decision in Duffield is invalid or will not be accepted by the Supreme Court. See, e.g., Sutton v. United Air Lines, 527 U.S. 471, 477 (1999) (ADA case adopting the Tenth Circuit's position on the relevance of measures used to mitigate the effects of an impairment, even though the Tenth Circuit's position conflicted with the position of virtually all other courts of appeals that had addressed the issue). 10 In proceedings below, Borg-Warner appeared to argue that the Commission's Determination and National Enforcement Plan (“NEP”) were also final agency actions that are reviewable under the APA. On appeal, however, Borg-Warner waived its arguments about the Determination and NEP by failing to argue in its brief that they are reviewable. See Borg-Warner's Opening Brief at 39 n.11 (admitting that it does not argue that the Determination itself is a final agency action); id. at 33-49 (no argument presented about the Commission's NEP). See AMSC Subsidiary Corp., 216 F.3d at 1161 n.* (arguments not asserted in the appellant's opening brief are waived on appeal). 11 Borg-Warner also discusses a letter of determination that the Commission apparently issued in connection with the charge of Wilbur Bernard. See Borg-Warner's Opening Brief at 10-11, 35-36. The Bernard determination is not a proper part of the appellate record, as it was never presented to the district court, and in fact, apparently was issued after this appeal was docketed. See id. at 10 (stating that the Commission issued the Bernard determination on August 28, 2000). In any event, to the extent that the Bernard determination is relevant in this appeal, for the reasons discussed above regarding the effect of the Commission's reasonable cause determinations, nothing about the Bernard determination saves Borg-Warner's APA claim from dismissal for lack of subject matter jurisdiction. 12 Although the Commission frequently argues that its policy pronouncements are entitled to deference because they reflect persuasive interpretations of the statutes the Commission enforces, those arguments advanced in litigation do not and cannot elevate Commission policy guidance to the type of legal rule that “commands” deference under Ciba-Geigy, 801 F.2d at 437. 13 In this connection, the Commission notes that there is no merit to Borg-Warner's claim that the district court's holding that the Commission's Policy Statement is not final agency action conflicts with precedent allowing for judicial review of policy statements in other contexts. See Borg-Warner's Opening Brief at 39 n.12. Borg-Warner cites to two lines of cases, neither of which is at odds with the district court's decision here. First, Borg-Warner cites to cases indicating that a policy statement is subject to judicial review where the policy statement creates legal consequences. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023-24 (D.C. Cir. 2000) (EPA's policy statement “final” because it obligated states to assess their monitoring regulations, and provided legal grounds for the EPA to object to operation permits issued by states that failed to complete the assessment); Citizens Communications Center v. FCC, 447 F.2d 1201, 1205 (D.C. Cir. 1971) (policy statement reviewable because it altered the scope of hearings that were available in the FCC's adjudications); Edison Elec. Inst. v. EPA, 996 F.2d 326, 334 (D.C. Cir. 1992) (policy statement deeming a certain type of waste storage to be unlawful was issued in connection with a formal rulemaking, and commanded deference under Chevron U.S.A v. Natural Resources Defense Council, 467 U.S. 837 (1984)); National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 697, 700 (D.C. Cir. 1971) (ruling of Administrator of the Wage and Hour Division of the Department of Labor was reviewable because it commanded deference, and because statute shielded employers from liability if they acted in reliance on the Administrator's rulings). None of these cases apply here because the Commission does not have the authority to determine rights (through adjudications or otherwise), and its Policy Statement does not command deference. See supra pp. 26-32. Second, Borg-Warner cites to cases standing for the proposition that when an agency or entity does have the authority to determine rights, a party appearing before that agency may argue that the agency should not follow the reasoning in a nonbinding policy statement. See, e.g., Panhandle Producers & Royalty Owners Ass'n v. Economic Regulatory Admin., 822 F.2d 1105, 1110-11 (D.C. Cir. 1987) (noting this proposition); Public Citizen v. Nuclear Regulatory Comm'n, 845 F.2d 1105, 1108 n.1 (D.C. Cir. 1988) (same, citing Panhandle Producers). These cases are inapposite because (as previously noted) the Commission does not have the authority to determine rights, and in fact support the Commission's position that, to the extent that Borg-Warner objects to the reasoning in the Policy Statement, it will be free to argue that the analysis in that document is not persuasive if or when an individual or the Commission challenges its pre-dispute arbitration agreement in court. 14 Further, although Borg-Warner expresses the concern that the Determination could be used to support an argument that Borg-Warner showed reckless indifference to federally protected rights of which it should have been aware, that concern is misplaced. See generally Kolstad v. American Dental Association, 527 U.S. 526, 535-36 (1999) (articulating the standard for punitive damages under the Civil Rights Act of 1991). In an area of the law as sharply contested as the one underlying this case, any alleged awareness of federally protected rights must be tied to judicial interpretations, and the Determination surely would not carry more weight on the possible liability for punitive damages than would the Ninth Circuit's decision in Duffield. 15 As previously noted, Borg-Warner has waived any argument that the Determination is a final agency action reviewable under the APA. See Borg-Warner's Opening Brief at 39 n.11. 16This Court has indicated that the doctrine of sovereign immunity does not bar a suit where the federal officer or agency acted ultra vires. See Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996). Because the Commission has not acted ultra vires, and indeed Borg-Warner has failed to demonstrate that Leedom jurisdiction is warranted (see supra pp. 15-24, discussing this issue), the doctrine of sovereign immunity may apply in this case notwithstanding the exception outlined in Chamber of Commerce. 17 The Commission agrees with the district court that Borg-Warner lacked standing to assert a declaratory judgment action against the Commission. Because Borg-Warner's lack of standing bars all of its claims, the Commission addresses that issue separately in section D, see infra pp. 39-43. 18 The role that private individuals and other entities have played in challenging arbitration agreements like Borg-Warner's should not be overlooked. Although Borg-Warner insists that the purpose of this action is to address the harm allegedly caused by the Commission, private individuals have been the plaintiffs in all of the cases decided by the courts of appeals about the validity of agreements calling for the compulsory arbitration of Title VII claims. See Borg-Warner's Opening Brief at 20-21 (collecting cases). There is no reason to believe that individuals will suddenly stop challenging arbitration agreements such as Borg-Warner's if Borg-Warner succeeds in convincing a court to silence the Commission on the issue. Consequently, a favorable ruling would not redress, or go a long way towards redressing, Borg-Warner's alleged injuries.