November 28, 2001 Ms. Michele Davis, Case Manager United States Court of Appeals for the Sixth Circuit Potter Stewart U.S. Courthouse, Room 503 100 East Fifth Street Cincinnati, Ohio 45202-3988 Re: Haddad v. EEOC, No. 01-4082 (6th Cir.) Dear Ms. Davis: Please accept for filing my appearance form and this letter as a motion to dismiss Ms. Haddad's petition to review the EEOC's orders for lack of jurisdiction. The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) is a federal agency empowered by Congress to enforce several employment anti-discrimination laws and thus to handle and investigate charges of discrimination. On October 26, 2000, Ms. Haddad filed a charge of discrimination with the EEOC alleging gender discrimination, unequal pay, and retaliation by her employer, Michigan National Bank, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206 et seq., and Michigan law. On January 3, 2001, the EEOC dismissed Ms. Haddad's charge on timeliness grounds and issued her a right to sue notice. Despite Ms. Haddad's allegations that the bank had continued to discriminate against her well into the 300-day limitations period for filing a charge, the EEOC learned during its investigation that Ms. Haddad had resigned from the bank in 1989 and thus had ended her employee-employer relationship long before filing her October 2000 charge. After unsuccessfully petitioning the EEOC to reconsider its determination of untimeliness, Ms. Haddad bypassed the district court and filed a petition seeking this Court's review of the EEOC's dismissal of her charge. She attempts to invoke jurisdiction under 28 U.S.C. §§ 1291 and 1292, 42 U.S.C. § 2000e-5(j), Fed. R. App. P. 15, and 5 U.S.C. § 551. This Court lacks subject matter jurisdiction over this matter. Sections 1291 and 1292 do not provide jurisdiction because Ms. Haddad did not file a complaint against the EEOC in the district court and thus there is no final or interlocutory district court order to be reviewed. However, even if Ms. Haddad had filed suit against the EEOC in the district court, a district court order would also lack subject matter jurisdiction. Title VII does not provide jurisdiction because there is no provision waiving the sovereign immunity of the EEOC to permit suits challenging the manner in which it processes administrative decisions. Further, there is no right of action, express or implied, under Title VII for the EEOC's alleged misfeasance or malfeasance in its investigation or processing of charges. See Gillis v. United States Dep't of Health and Human Servs., 759 F.2d 565, 574 (6th Cir.1985) (“there is no implied cause of action under Title VII to compel enforcement action by the EEOC” since Congress provided “an alternative avenue of relief for individuals adversely affected by agency inaction, dalliance or backlog”). Also see Scheerer v. Rose State College, 950 F.2d 661, 662-63 (10th Cir.1991), cert. denied, 505 U.S. 1205 (1992); McCottrell v. EEOC, 726 F.2d 350, 351 & n. 1 (7th Cir.1984); Ward v. EEOC, 719 F.2d 311, 312-14 (9th Cir.1983), cert. denied, 466 U.S. 953 (1984). Moreover, if a claim did lie against the EEOC for its handling of a discrimination charge, there is certainly no provision allowing an aggrieved individual to bypass the district court and petition this court for review. Neither Rule 15 of the federal appellate rules nor section 551 of the Administrative Procedure Act confer subject matter jurisdiction on this Court because the Commission's resolution of an administrative investigation does not impose any legal obligations, deny rights, or fix any relationship and therefore is not a reviewable administrative order. Cf. Borg-Warner Protective Services Corp. v. EEOC, 245 F.3d 831, 836 (D.C. Cir. 2001) (a reasonable cause determination “‘standing alone, . . . is lifeless and can fix no obligation nor impose any liability on the plaintiff'”) (quoting Georator Corp v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979)). Hence, this Court lacks jurisdiction to review Ms. Haddad's petition. The substance of Ms. Haddad's petition is her dissatisfaction with the EEOC's disposition of her discrimination charge. According to established law, her only recourse is a de novo federal district court action against the bank, not a review of the EEOC's decision. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 365-66 (1977) (“the provisions [of the Act] allow the person aggrieved to elect to pursue his or her own remedy under this title in the [federal] courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution”); Golyar v. McCausland, 738 F. Supp. 1090, 1094 (W.D. Mich. 1990) (“the legislative history of Title VII provokes the conclusion that Congress did not intend the EEOC to be subject to a lawsuit by a charging party unhappy with the Commission's procedures, administrative determinations, or other actions”). Hence, the Commission requests that this Court dismiss Ms. Haddad's petition for review. The Commission also requests that the briefing schedule be held in abeyance pending review of this motion. Sincerely, PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (w) (202) 663-7090 (fax) cc: C. Haddad