02-6036 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________________________________ TOM CLEARY, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NEW YORK STATE DIVISION HUMAN RIGHTS, NEW YORK CITY COMMISSION ON HUMAN RIGHTS, BERT KLAPHOLTZ, STENOTYPE ACADEMY, Defendants-Appellees. __________________________________________________ Appeal from the United States District Court for the Southern District of New York __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE __________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 1. Course of Proceedings 2 2. Statement of Facts 3 3. The District Court's Decision 4 STANDARD OF REVIEW 5 ARGUMENT PLAINTIFF FAILS TO MAKE ANY ARGUMENTS ON APPEAL CHALLENGING THE DISTRICT COURT'S DISMISSAL OF HIS CLAIMS AGAINST THE EEOC.. 6 IN ANY EVENT, THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFF'S CLAIMS AGAINST THE COMMISSION FOR IMPROPER INVESTIGATION AND RESOLUTION OF HIS CHARGE OF DISCRIMINATION. 7 A. Plaintiff Failed To State A Claim On Which Relief Can Be Granted Against The EEOC. 8 B. The District Court Lacked Jurisdiction Over Plaintiff's Allegations of Wrongdoing by the EEOC. 12 CONCLUSION 18 CERTIFICATE OF SERVICETABLE OF AUTHORITIES CASES Baba v. Japan Travel Bureau Int'l, 111 F.3d 2 (2d Cir. 1997) 8, 10 Bell v. Hood, 327 U.S. 678 (1946) 14 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) 13 Carlson v. Coca-Cola Co., 483 F.2d 279 (9th Cir. 1973) 15 Cole v. United States, 657 F.2d 107 (7th Cir.) 16 Duke Power Co. v. Carolina Environ. Study Group, 438 U.S. 59 (1978) 14 Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993) 10 Early v. Banker Life & Cas., 959 F.2d 75 (7th Cir. 1992) 17 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980) 15 Francis-Sobel v. Univ. of Maine, 597 F.2d 15 (1st Cir. 1979) 9 Georator v. EEOC, 592 F.2d 765 (4th Cir. 1979) 9 Gibson v. Missouri Pac. Ry., 579 F.2d 890 (5th Cir. 1978) 9 Hernandez-Avila v. Averill, 725 F.2d 25 (2d Cir. 1984) 10 Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983) 16 Kohl Indus. Park Co. v. County of Rockland, 710 F.2d 895 (2d Cir. 1983) 15 Lockerty v. Phillips, 319 U.S. 182 (1943) 13 Mack v. United States, 814 F.2d 120 (2d Cir. 1987) 17 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) 8 McNeil v. United States, 508 U.S. 106 (1993) 12 Mitchell v. EEOC, 888 F. Supp. 710 (E.D. Pa. 1995) 14, 16 Morris v. Local 819, Int'l Bhd. of Teamsters, 169 F.2d 782, 783 (2d Cir. 1999) 5 Royer v. INS, 730 F. Supp. 588 (S.D.N.Y. 1990) 17 Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988) 10 Salazar v. Heckler, 787 F.2d 527 (10th Cir. 1986) 17 Scheerer v. Rose State Coll., 950 F.2d 661 (10th Cir. 1991) 8 Selden Apts. v. United States Dep't of HUD, 785 F.2d 152 (6th Cir. 1986) 13 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997) 8, 9 Spear v. Town of West Hartford, 954 F.2d 63 (2d Cir. 1992) 10 Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979) 8 Sykes v. James, 13 F.3d 515, 518-19 (2d Cir. 1993) 5 United States Dep't of Energy v. Ohio, 503 U.S. 607 (1992) 16 United States v. Mitchell, 463 U.S. 206 (1983) 16 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) 16 United States v. Sherwood, 312 U.S. 584 (1941) 16, 17 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) 9, 11 Williamson v. Northeast Reg'l Postmaster Gen., No. 88-123, 1988 WL 170447 (D.N.J. July 5, 1988) 12 STATUTES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 13 42 U.S.C. § 1985(3) 2, 10, 13 Federal Tort Claims Act, 26 U.S.C. § 2671 et seq., 5, 11 28 U.S.C. § 2680(a) 12 28 U.S.C. §§ 1331 & 1343 15 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq., 2 42 U.S.C. § 2000e-2 9 42 U.S.C. § 2000e-5 9, 11, 13 LEGISLATIVE HISTORY 118 Cong. Rec. 7, 168 (1972) 9 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ________________ No. 02-6036 ________________ TOM CLEARY, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NEW YORK STATE DIVISION HUMAN RIGHTS, NEW YORK CITY COMMISSION ON HUMAN RIGHTS, BERT KLAPHOLTZ, STENOTYPE ACADEMY, Defendants-Appellees. ____________________________________________________ Appeal from the United States District Court for the Southern District of New York ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ____________________________________________________ STATEMENT OF JURISDICTION The district court lacked subject matter jurisdiction over plaintiff's claims against the Equal Employment Opportunity Commission (“EEOC”) because there is no statutory basis for an action against the Commission for its handling of a charge of employment discrimination. Final judgment was entered against the plaintiff on January 28, 2002. District court docket entry (“R.”) 25. The plaintiff filed a timely notice of appeal on February 7, 2002. R. 26. This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the plaintiff's allegations of improper handling and disposition of his charge of discrimination against a private employer fail to state a claim against the EEOC upon which relief may be granted. 2. Whether the district court lacked subject matter jurisdiction over plaintiff's allegations against the EEOC. STATEMENT OF THE CASE Course of Proceedings This is an appeal from a final judgment dismissing this action in its entirety. The plaintiff filed a pro se complaint on December 29, 2000, naming as defendants Stenotype Academy, his former employer, the New York State Division of Human Rights (“DHR”), New York City Commission on Human Rights (“NYCCHR”), and the Equal Employment Opportunity Commission (“EEOC”). R. 1. Plaintiff filed an amended complaint on July 9, 2001. In his amended complaint, plaintiff alleges that Stenotype violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against him because of his national origin and retaliating against him for filing a charge of discrimination. R. 8. The complaint also alleges that the EEOC, DHR, and NYCCHR violated Title VII and 42 U.S.C. § 1985(3) by conspiring against plaintiff through a “failure to investigate my complaint” and causing “inordinate and cumulative delay” in processing his charge. R. 8 (Amended Complaint at 2). The complaint alleges that the EEOC, DHR, and NYCCHR “collectively and individually, whether by design or by accident, conspired by their acts and/or omissions in their failure to investigate my complaint against Stenotype Academy” and “behaved with reckless indifference to my federally protected rights.” See R. 8 (Amended Complaint at 3). On January 23, 2002, the district court dismissed plaintiff's claims against all defendants. R. 24. Final judgment was entered on January 28, 2002. R. 25. On February 7, 2002, Cleary filed a timely notice of appeal. R. 26. 2. Statement of Facts Tom Cleary was employed as a teacher for Stenotype Academy. According to Cleary's complaint, Bert Klapholtz, a fellow teacher, directed “derogatory and defamatory remarks” at him because he is Irish. Cleary alleges that Stenotype failed to take disciplinary action against Klapholtz, which resulted in Cleary being constructively discharged. R. 8 (Amended Complaint at 2). Cleary filed a charge of discrimination with the Commission on October 29, 1991; Cleary's charge was also referred to the DHR, and the NYCCHR. On March 25, 1993, DHR dismissed the charge on the grounds that plaintiff failed to cooperate in the investigation and notified the parties of their right to appeal. See Determination and Order After Investigation. On July 21, 1993, EEOC dismissed Cleary's charge and issued a letter informing him that he had a right to sue his employer within ninety days. NYCCHR dismissed plaintiff's complaint against Stenotype, Klapholtz and Ivan Londa on December 6, 1996, upon a finding that there was no probable cause to conclude a violation had occurred. On December 29, 2000, over seven years after the EEOC issued Cleary a notice of right-to-sue and over four years after all administrative proceedings on his complaint were closed, Cleary commenced this lawsuit. 3. The District Court's Decision On January 22, 2002, the district court granted the defendants' motions to dismiss. The court concluded that “plaintiff has not stated any viable claims against the EEOC.” Op. at 7. The court first determined that the plaintiff could not state a Title VII claim against the Commission, the DHR, or the NYCCHR because none of the agencies were the plaintiff's employer. Op. at 5. The court next dismissed plaintiff's § 1985(3) claim, assuming without deciding that plaintiff stated a claim under § 1985(3), because plaintiff failed to bring the claim within the three-year statute of limitations. Id. The court ruled that to the extent plaintiff's complaint could be interpreted to state a tort action against the Commission under the Federal Tort Claims Act, 26 U.S.C. § 2671 et seq., plaintiff failed to exhaust the administrative remedies required by the statute. Id. at 6. Finally, the court denied plaintiff's motion to issue new summonses to the EEOC, Klapholtz, and Stenotype, holding that “issuing the new summonses would be futile” since plaintiff “has not stated any viable claims against the EEOC” and any claims he might have had against Stenotype and Klapholtz are time-barred Id. at 6-7. STANDARD OF REVIEW The district court ruled as a matter of law that the plaintiff did not state a claim upon which relief can be granted against the Commission. This Court reviews a dismissal under Fed. R. Civ. P. 12 de novo. Morris v. Local 819, Int'l Bhd. of Teamsters, 169 F.2d 782, 783 (2d Cir. 1999). Dismissal is proper if there is no subject matter jurisdiction over the claim or if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle his to relief.” Sykes v. James, 13 F.3d 515, 518-19 (2d Cir. 1993) (citations omitted). ARGUMENT I. PLAINTIFF FAILS TO MAKE ANY ARGUMENTS ON APPEAL CHALLENGING THE DISTRICT COURT'S DISMISSAL OF HIS CLAIMS AGAINST THE EEOC. The district court dismissed all of plaintiff's claims against the EEOC because they failed to state a claim and, even if they did state a claim, they were untimely. In his brief on appeal, plaintiff makes no arguments challenging the dismissal of his claims against the EEOC. In addressing the court's dismissal of his Title VII claims, plaintiff argues that the district court erred because the court “failed to address the issue of apparent collusion between Stenotype and DHR” which, according to plaintiff, “makes them legally indistinguishable for the purposes of this action.” Pl. Br. at 2. Plaintiff makes no argument regarding his Title VII claim against the EEOC. Similarly, in addressing the district court's dismissal of his § 1985(3) claim as time-barred, Cleary states that “the NYCCHR misdirected the “Determination and Order After Investigation” letter on December 6, 1996 to a New York address . . . even though they knew I was in Ireland.” Once again plaintiff makes no mention of the EEOC. Because plaintiff makes no argument challenging the district court's dismissal of his claims against the EEOC, the district court's dismissal of Cleary's case against the EEOC must be affirmed. II. IN ANY EVENT, THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFF'S CLAIMS AGAINST THE COMMISSION FOR IMPROPER INVESTIGATION AND RESOLUTION OF HIS CHARGE OF DISCRIMINATION. An examination of the allegations plaintiff made in the district court demonstrates, in any event, that the district court correctly dismissed all of his claims against the EEOC. Cleary argued below that the EEOC failed to investigate his complaint against the Stenotype Academy; EEOC's negligence contributed to a delay in the processing of his charge; EEOC failed to examine the negligence of the DHR and the NYCCHR at different stages of the administrative process; EEOC failed to ensure that named witnesses were interviewed by the DHR; EEOC was negligent in misdirecting correspondence; EEOC failed to protect Cleary from retaliation; and EEOC exhibited “reckless indifference to my federally protected rights in general and my complaint in particular.” See R. 17 (Response to EEOC's Motion to Dismiss at 4). As we explain below, it is clear that these allegations do not constitute a cognizable federal claim against the EEOC. Nor does any statute provides the district court with subject matter jurisdiction over plaintiff's claims against the EEOC. A. Plaintiff Failed To State A Claim On Which Relief Can Be Granted Against The EEOC. The district court correctly dismissed Cleary's claims against the Commission based on allegations of improper processing and disposition of his charge of discrimination because he cannot prove any set of facts in support of this claim that would entitle him to relief from the Commission. Cleary has no claim against the Commission under either Title VII or § 1983(5) for alleged deficiencies in the processing of his charge against Stenotype. This Court and every other court of appeals to address the issue have held that there is no express or implied cause of action under Title VII against the Commission for alleged improper processing of a charge of discrimination. Baba v. Japan Travel Bureau Int'l, 111 F.3d 2, 6 (2d Cir. 1997) (“Title VII provides no express or implied cause of action against the EEOC for claims that the EEOC failed properly to investigate or process an employment discrimination charge”); see also, e.g., Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983).<1> Instead, Title VII explicitly provides that charging parties who are dissatisfied with EEOC's processing and/or disposition of their charge may proceed directly against the offending employer in court, 42 U.S.C. § 2000e-5. See, e.g., Smith, 119 F.3d at 34; Ward, 719 F.2d at 313; see also 118 Cong. Rec. 7, 168 (1972) (disgruntled charging party may “pursue his or her own remedy . . . where there is agency inaction, dalliance, dismissal of the charge or unsatisfactory resolution”). The purpose of Title VII is to provide redress for “unlawful employment practices” by employers, employment agencies, and labor organizations. 42 U.S.C. § 2000e-2. Cleary has not alleged any “unlawful employment practices” against the Commission recognized under Title VII, and EEOC is not Cleary's employer, nor is it an employment agency or labor organization covered by the statute, as the district court recognized. This Court has determined that “‘implying a cause of action against the EEOC contradicts Title VII's policy of individual enforcement of equal employment opportunity laws and could dissipate the limited resources of the EEOC in fruitless litigation with charging parties.'” Baba, 111 F.3d at 6 (quoting Ward, 719 F.2d at 313). The judgment dismissing this claim against the Commission should therefore be affirmed. In addition to Title VII, Cleary references § 1985(3), which prohibits conspiracies that are intended to deprive “either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3). The district court correctly ruled that any claim plaintiff might have had under § 1985 is time-barred because this action was filed more than three years after all of the administrative proceedings on plaintiff's charge had ended. See Hernandez-Avila v. Averill, 725 F.2d 25, 27 n.3 (2d Cir. 1984) (three-year statute of limitations for § 1985 claims in New York). Moreover, plaintiff's conspiracy claim would fail as a matter of law even if it were timely. To state a claim of conspiracy under § 1985(3), the plaintiff must allege sufficient facts to support his allegation that the defendants conspired together; the complaint must contain more than mere conclusory allegations. See Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993); Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988). To the extent Cleary seeks to claim a substantive violation of § 1985(3) by the Commission, it is clear that he did not and cannot meet his burden of pleading or proving that the Commission entered into a conspiracy with the other defendants to violate his rights. In opposing the Commission's motion to dismiss in the district court, Cleary suggested that the Commission was part of an alleged conspiracy because it deferred his charge to DHR. However, Title VII requires that state and local agencies authorized to redress employment discrimination be given a first opportunity to resolve charges of discrimination within their jurisdiction. 42 U.S.C. § 2000e-5(c). Cleary does not allege, nor could he, that the Commission's deferral of his charge was anything other than a routine application of standard agency procedures. Plaintiff's characterization of that act as a “conspiracy” is not sufficient to state a claim under § 1985. Ward, 719 F.2d at 626 (“A mere allegation of conspiracy without factual specificity is insufficient.”). The district court also correctly ruled that plaintiff's complaint fails to state a claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 2671 et seq. The FTCA provides that an individual may not institute an action against the United States for monetary damages unless the individual first presents the claim to the appropriate federal agency for administrative resolution. As the district court noted, Cleary failed to present such a claim to the EEOC. The requirement of filing an administrative claim before bringing a tort action in federal court is jurisdictional and cannot be waived. See McNeil v. United States, 508 U.S. 106, 113 (1993). Additionally, the FTCA bars claims based on the exercise of a “discretionary function or duty” by a federal agency or employee, see 28 U.S.C. § 2680(a). Accordingly, plaintiff's allegations regarding discretionary actions taken by the Commission in investigating his charge and making a determination fail to state a claim under the FTCA. Williamson v. Northeast Reg'l Postmaster Gen., No. 88-123, 1988 WL 170447, at * 11 (D.N.J. July 5, 1988) (“The EEOC's conduct in performance of its statutory mandate of making determinations with respect to discrimination charges is a discretionary governmental function which cannot be challenged by way of an FTCA tort action”). B. The District Court Lacked Jurisdiction Over Plaintiff's Allegations of Wrongdoing by the EEOC. While we believe the judgment should be affirmed on the grounds relied upon by the district court, dismissal of Cleary's claim against the Commission is also appropriate because the district court had no jurisdiction over the subject matter of the claim. Federal courts are courts of limited powers, exercising only such authority as Congress affords them by statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); Lockerty v. Phillips, 319 U.S. 182, 187 (1943) (courts derive jurisdiction wholly from Congress' Article III authority to “ordain and establish” inferior courts); Selden Apts. v. United States Dep't of HUD, 785 F.2d 152, 165 (6th Cir. 1986) (jurisdiction may not exceed Congressional grant). Thus, for a federal court to hear a particular case, Congress must have, by statute, vested the court with jurisdiction over the controversy. Lockerty, 319 U.S. at 187. Cleary appears to assert that jurisdiction over his suit is proper under four statutes: 42 U.S.C. § 2000e-5(g) (Title VII), 42 U.S.C. § 1985(3), 28 U.S.C. § 1343, and 28 U.S.C. § 1331. R. 8 (Amended Complaint at 1). While these provisions may be applicable to his claims against Stenotype, they do not provide a jurisdictional basis for his claim against EEOC. Title VII prohibits discrimination on the basis of national origin and permits suits against the employer to redress such injuries, but it affords no jurisdiction over a charging party's claim that the Commission mishandled the administrative processing or disposition of any charge she might file against her employer. The statute has only three jurisdictional provisions. See 42 U.S.C. §§ 2000e-5(f) (authorizing individual suits by EEOC or a charging party against private sector employers and by Attorney General or charging party against state or local governmental employer); 2000e-6 (permitting “pattern and practice” suits by EEOC); and 2000e-16 (authorizing suits by federal employees against federal governmental employers). None of these provisions supplies a jurisdictional basis for suits against the Commission by an individual dissatisfied with the processing of his charge where, as here, there is no employer-employee relationship between the plaintiff and the Commission, and the Commission is not itself charged with employment discrimination. See, e.g., Mitchell v. EEOC, 888 F. Supp. 710, 711 (E.D. Pa. 1995)(no subject matter jurisdiction under Title VII against EEOC for charge mishandling). Sections 1331 and 1343 of the Judicial Code, 28 U.S.C. §§ 1331 & 1343, are similarly unavailing. Section 1331 applies to claims “arising under” the Constitution, laws and treaties of the United States. There is no jurisdiction under this provision where the substantive claim alleged by the plaintiff is wholly insubstantial, foreclosed by prior decisions of this Court or otherwise patently without merit. Duke Power Co. v. Carolina Environ. Study Group, 438 U.S. 59, 70-71 (1978) (citations omitted); Bell v. Hood, 327 U.S. 678, 682-83 (1946). Stated differently, for jurisdictional purposes, a claim cannot be said to “arise under” a particular federal law unless the plaintiff has asserted a colorable right to a remedy under that law. See Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973). Here, the ease with which the district court dispatched Cleary's claim against the Commission and the uniformity of opinion among the courts regarding the viability of claims such as his both demonstrate that Cleary did not assert even a colorable right to relief against the Commission under any federal law. As for § 1343, which applies to suits alleging violation of federal civil rights, that section “does not create an independent basis for federal jurisdiction but only serves to confer jurisdiction where a federal cause of action is provided by one of the substantive provisions of the Civil Rights Acts,” including 42 U.S.C. § 1985. Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980). As with § 1331, the jurisdictional requirements of § 1343 are not satisfied where the substantive claim alleged is “‘wholly insubstantial'” or the complaint alleges insufficient facts to state a cause of action for deprivation of civil rights. Kohl Indus. Park Co. v. County of Rockland, 710 F.2d 895, 899 (2d Cir. 1983) (citations omitted). Because Cleary does not and cannot contend that EEOC deprived him of cognizable civil rights, § 1343 cannot provide a jurisdictional basis for his claim. Jurisdiction over this claim is also lacking because Congress has not waived the Commission's sovereign immunity from suits for monetary damages sought in connection with the Commission's processing or disposition of discrimination charges. It is well established that the United States and its agencies are immune from suit except where they have consented by statute to be sued. United States v. Mitchell, 463 U.S. 206, 212 (1983); United States v. Sherwood, 312 U.S. 584, 586 (1941). Moreover, “[a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed” in a statute and, where expressed, strictly construed in favor of the government. United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992) (quoting United States v. King, 395 U.S. 1, 4 (1969)); see also United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992). Moreover, the party attempting to sue the United States or a federal agency bears the burden of pointing to the statutory provision containing the waiver. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983); Cole v. United States, 657 F.2d 107, 109 (7th Cir.). Absent an express waiver of sovereign immunity, the federal courts lack subject matter jurisdiction over any attempted suit against an agency of the United States. Mitchell, 463 U.S. at 212. As noted above, Cleary asserts that four statutes confer subject matter jurisdiction over his suit. But none of these provisions contains an “unequivocal” waiver of sovereign immunity with respect to claims against the Commission by disgruntled charging parties like Cleary, complaining about the processing and/or disposition of their charges of discrimination against a private employer. See Mack v. United States, 814 F.2d 120, 122 (2d Cir. 1987) (§ 1331 is not general waiver of sovereign immunity but merely confers jurisdiction once immunity has been waived in statute giving rise to cause of action); Early v. Banker Life & Cas. Co., 959 F.2d 75, 78 (7th Cir. 1992) (no waiver of sovereign immunity to damages suit against EEOC regarding charge processing); Salazar v. Heckler, 787 F.2d 527, 528-29 (10th Cir. 1986) (§ 1343 does not contain waiver of United States' sovereign immunity); Royer v. INS, 730 F. Supp. 588, 590 (S.D.N.Y. 1990) (neither § 1331 nor § 1343 waives United States' sovereign immunity) see also Sherwood, 312 U.S. at 586. Because there has been no waiver of immunity with respect to claims like Cleary's, the Commission remains immune and there is no federal subject matter jurisdiction over such claims. Accordingly, the dismissal of Cleary's claim against the Commission was proper and should be affirmed. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to affirm the judgment of the district court dismissing the plaintiff's claim against the Commission. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby state that two copies of the Equal Employment Opportunity Commission's Brief as Appellee were sent this 29th day of July, 2002, by first class mail, postage prepaid to: Tom Cleary 424 Park Avenue South New York, NY 10016 Eliot Spitzer, Esq. Attorney General's Office 120 Broadway New York, NY 10271 Leonard Keorner, Esq. Appeals Division Corporation Counsel's Office City of New York 100 Church Street New York, NY 10007 David P. Kasakove Robinson Silverman Peacre Aronsohn & Berman, LLP 1290 Avenue of the Americas New York, NY 10104 ______________________________ Julie L. Gantz 1 Accord Scheerer v. Rose State Coll., 950 F.2d 661, 663 (10th Cir. 1991); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984) (no express or implied right of action against EEOC); Stewart v. EEOC, 611 F.2d 679, 683 (7th Cir. 1979); see also Francis-Sobel v. Univ. of Maine, 597 F.2d 15, 17-18 (1st Cir. 1979) (no right to proper processing or favorable resolution of charges); Gibson v. Missouri Pac. Ry., 579 F.2d 890, 891 (5th Cir. 1978) (Title VII “confers no right of action [by employee of third party] against the enforcement agency”); cf. Georator v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) (same with respect to respondent).