IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 03-2357 CONSTANCE E. HADDAD, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. On Appeal from the United States District Court for the Western District of Michigan 5:03-CV-00073 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ERIC S. DREIBAND ANNE NOEL OCCHIALINO General Counsel Attorney EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel 1801 L Street, NW. Washington, D.C. 20507 CAROLYN L. WHEELER (P) (202) 663-4724 Assistant General Counsel (F) (202) 663-7090 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 A. Nature of the Case and Course of Proceedings . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . . .4 C. District Court Decision. . . . . . . . . . . . . . . .6 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . .7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. THE DISTRICT COURT CORRECTLY DISMISSED HADDAD'S COMPLAINT FOR FAILURE TO STATE A CLAIM. . . . . . . . . . 11 A. Neither Title VII nor the EPA provides Haddad with a right of action against the EEOC for its handling of her charges of discrimination.. . . . . . . . . . 11 B. The EEOC's actions are not reviewable under the APA because the EEOC's investigation did not result in a final resolution of Haddad's rights and because she has an adequate remedy at court. . . . . . . . . 14 II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION TO ADJUDICATE HADDAD'S CLAIMS, AND THUS SHOULD HAVE DISMISSED HER COMPLAINT AS REQUIRED BY FED. R. CIV. P. 12(b)(1) . . . . . . . . . 17 A. Neither Title VII nor the EPA provides a basis for subject matter jurisdiction over Haddad's claims.. . 17 B. The APA does not confer subject matter jurisdiction over this case.. . . . . . . . . . . . . . . . . . . 20 III. THE DISTRICT COURT PROPERLY DENIED HADDAD'S EMERGENCY FINANCIAL INJUNCTION MOTION. . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES FEDERAL CASES Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997)12 Beamon v. Brown, 125 F.3d 965 (6th Cir. 1997). . . . . . . 19, 21 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534(1986) .8, 17 Bennett v. Spear, 520 U.S. 154 (1997). . . . . . . . . . . . . 14 Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . .7 CWWG v. United States Dep't of the Army, 111 F.3d 1485(10th Cir. 1997)21 Early v. Banker Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992) . 20 Ford v. Hamilton Inv., Inc., 29 F.3d 255 (6th Cir. 1994) . . . 17 Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979) . . 12 Franklin v. Massachusetts, 505 U.S. 788(1992). . . . . . . . . 20 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979).. . . . 12,15 Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890(5th Cir. 1978) . . . 12 Gillis v. United States Dep't of Health & Human Servs. 759 F.2d 565 (6th Cir. 1985) . . . . . . . . . . . . 11, 14, 15 Golyar v. McCausland, 738 F. Supp. 1090 (W.D. Mich. 1990). 12, 18 Haddad v. EEOC, No. 01-4082 (6th Cir. June 24, 2002), cert. denied, 122 S. Ct. 1827 (U.S. Feb. 24, 2003) . . . . . . . . . 5 Haddad v. Michigan Nat'l Corp., No. 01-2422, 2002 WL 927032 (6th Cir. May 7, 2002), cert. denied, 123 S. Ct. 1799 (U.S. Apr. 21, 2003) . . . . . . . . . . . . . . . . . . . . . .4 Haddad v. Michigan Nat'l, Nos. 99-1094 & 99-1497, 1999 WL 1045085 (6th Cir. Nov. 10, 1999), cert. denied, 529 U.S. 1078 (U.S. Apr. 17, 2000) . . . . . . . . . . . . . . .4 Hall v. EEOC, 456 F. Supp. 695 (N.D. Cal. 1978). . . . . . . . 16 Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983). . . . . . . . 19 ITT v. Elec. Workers, 419 U.S. 428 (1975). . . . . . . . . . . 14 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) . . . . . . . 12 Milhous v. EEOC, No. 97-5242, 1998 WL 152784 (6th Cir. Mar. 24, 1998)11 NHL Players' Ass'n v. Plymouth Whalers Hockey Club, 325 F.3d 712 (6th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . 22 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . 12, 16 Rich v. United States, 119 F.3d 447 (6th Cir. 1997). . . . . . .8 Saglioccolo v. Eagle Ins. Co., 112 F.3d 226 (6th Cir. 1997). . .7 Sampson v. Murray, 415 U.S. 61 (1974). . . . . . . . . . . . . 22 Scheerer v. Rose State Coll., 950 F.2d 661 (10th Cir. 1991). . 12 Smith v. Casellas, 119 F.3d 33(D.C. Cir. 1997) (per curiam). . 12 Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979). . . . . . . 12, 16 United States v. Mitchell, 463 U.S. 206 (1983) . . . . . . . . 19 United States v. Nordic Village, Inc., 503 U.S. 30 (1992). . . 19 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) . . . . . . . . 12, 13 FEDERAL STATUTES 5 U.S.C. 704 . . . . . . . . . . . . . . . . . . . . . . 14, 15 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 29 U.S.C. 206. . . . . . . . . . . . . . . . . . . . . 1, 3, 13 29 U.S.C. 216. . . . . . . . . . . . . . . . . . . . . . . . 18 29 U.S.C. 217 . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. 2000e. . . . . . . . . . . . . . . . . . . . . . 1, 3 42 U.S.C. 2000e-16(c). . . . . . . . . . . . . . . . . . 13, 18 42 U.S.C. 2000e-5(f). . . . . . . . . . . . . . . . . . . . 18 FEDERAL RULES Fed. R. Civ. P. 4(i) . . . . . . . . . . . . . . . . . . . . . .7 Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . .7, 17 Fed. R. Civ. P. 12(b)(5) . . . . . . . . . . . . . . . . . . . .7 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . 6, 7, 11, 13 SIXTH CIRCUIT RULES 6 Cir. R. 28(g). . . . . . . . . . . . . . . . . . . . . . . . 11 FEDERAL REGULATIONS 29 C.F.R. 1601 . . . . . . . . . . . . . . . . . . . . .1, 3, 6 MISCELLANEOUS 118 Cong. Rec. 7168 (1972) . . . . . . . . . . . . . . . . 12, 16 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission does not desire oral argument in this case. IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 03-2357 CONSTANCE E. HADDAD, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Western District of Michigan _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS DEFENDANT-APPELLEE ______________________________________________________ STATEMENT OF JURISDICTION This suit was purportedly brought against the Equal Employment Opportunity Commission ("EEOC") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e et seq., the Equal Pay Act ("EPA"), 29 U.S.C. 206 et seq., and 29 C.F.R. 1601 et seq. Subject matter jurisdiction is lacking over this action, however, because no federal statute grants jurisdiction to the district courts to hear claims concerning the Commission's handling of administrative charges of employment discrimination and because Congress has not waived the Commission's sovereign immunity with respect to such claims for money damages. Final judgment was entered against Plaintiff on September 29, 2003. (R.30, Judgment, Apx. at 55.) Plaintiff filed a timely notice of appeal on October 10, 2003. (R.31, Notice of Appeal, Apx. at 57.) This Court has jurisdiction over the appeal under 28 U.S.C. 1291. STATEMENT OF THE ISSUES 1. Whether the district court properly dismissed for failure to state a claim the Plaintiff's claims against the EEOC for its handling of her discrimination charges where neither Title VII, the Equal Pay Act, the Administrative Procedure Act, nor any other federal statute creates such a cause of action. 2. Whether the district court's dismissal of the claims against the EEOC should be affirmed on the alternate ground that the district court lacked subject matter jurisdiction over the Plaintiff's claims because no statute confers such jurisdiction and because the doctrine of sovereign immunity precludes an action against the EEOC for purported mishandling of a charge since Congress has never waived the EEOC's sovereign immunity to be sued for such actions. 3. Whether the district court properly denied Plaintiff's motion for a preliminary injunction where Plaintiff failed to meet the four-factor test to show entitlement to such relief. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from the September 29, 2003, judgment of the district court granting the EEOC's motion to dismiss Plaintiff Constance E. Haddad's complaint and dismissing with prejudice all federal claims against the EEOC and declining to exercise supplemental jurisdiction over Haddad's state law claims. In her brief on appeal, Haddad also appears to be appealing from the district court's September 17, 2003, order denying her Emergency Financial Injunction Motion. Haddad filed her pro se complaint against the EEOC on June 6, 2003, seeking relief under Title VII, 42 U.S.C. 2000e et seq., the EPA, 29 U.S.C. 206 et. seq., and 29 C.F.R. 1601 et seq. (R.1, Complaint, Apx. at 6.) On September 17, 2003, the district court entered an order denying Plaintiff's Emergency Financial Injunction Motion, which requested that the EEOC be ordered to pay Haddad $2500 a day for the duration of this action. (R.27, Order, Apx. at 53.) On September 29, 2003, the district court entered Judgment dismissing with prejudice Haddad's federal claims against the EEOC and declining to exercise supplemental jurisdiction over Haddad's state law claims. (R.30, Judgment, Apx. at 55.) On October 10, 2003, Haddad timely filed a notice of appeal from the September 29, 2003, Judgment. (R.31, Notice of Appeal, Apx. at 57.) B. Statement of Facts This long-running saga between Haddad and the EEOC evolved out of Haddad's employment with Michigan National Bank ("Michigan National"), which ended many years ago on January 20, 1989, when she resigned. (R.1, attachment to Complaint (10/26/00 charge at 1-2), Apx. at 28-29.) On June 15, 1998, Haddad filed a charge with the EEOC against Michigan National for violations of Title VII and the Equal Pay Act. (R.1, Complaint,  3, Apx. at 7.) On July 23, 1998, the EEOC dismissed Haddad's charge as untimely. (R.1, Complaint,  4, Apx. at 7.) Haddad then sued Michigan National three times in federal district court; this Court affirmed the dismissal of all three of Haddad's federal lawsuits against Michigan National. See Haddad v. Michigan Nat'l Corp., No. 01-2422, 2002 WL 927032 (6th Cir. May 7, 2002), cert. denied, 123 S. Ct. 1799 (U.S. Apr. 21, 2003); Haddad v. Michigan Nat'l, Nos. 99-1094 & 99-1497, 1999 WL 1045085 (6th Cir. Nov. 10, 1999), cert. denied, 529 U.S. 1078 (U.S. Apr. 17, 2000). On June 22, 2000, Haddad sent a letter to Michigan National requesting restitution and related remedies. (R.1, Complaint at  6, Apx. at 8.) On October 26, 2000, Haddad filed a second charge of discrimination against Michigan National for retaliation and discrimination in violation of Title VII and the Equal Pay Act. (R.1, Complaint,  16, Apx. at 10; R.1, attachment to Complaint (charge), Apx. at 28.) From September 14, 2000, through January 16, 2001, Haddad sent numerous letters to the EEOC explaining why her charge was timely and how the EEOC should investigate it. (R.1, Complaint at  10-23, Apx. at 8-11.) On January 3, 2001, the EEOC dismissed Haddad's charge as untimely and issued a right-to-sue notice. (Id. at  21, 23, Apx. at 11.) On February 15, 2001, Haddad filed a request for reconsideration with the EEOC, which the EEOC denied. (Id. at  24, 25, Apx. at 11-12.) Bypassing the district court, Haddad attempted to file a petition with this Court seeking review of the EEOC's dismissal of her charge. This Court dismissed Haddad's petition. See Haddad v. EEOC, No. 01-4082 (6th Cir. June 24, 2002), cert. denied,122 S.Ct. 1827 (U.S. Feb. 24, 2003). Haddad's complaint in this case requests that the court find that the EEOC violated Title VII, the EPA, 29 C.F.R. 1601 et seq., and "other relevant case laws and statutes for the failures [sic] to properly process, investigate, and remedy Plaintiff-Petitioner's legitimate and timely Charges of Discrimination." (Id. at  60, Apx. at 20.) Haddad's complaint does not allege it is being brought under the Administrative Procedure Act ("APA"). Haddad does allege that the EEOC, by dismissing her case, intentionally inflicted emotional distress upon her, (id. at  48, 51, Apx. at 18-19), and was negligent in various respects in evaluating her charge, (id. at  47, Apx. at 17). Haddad also alleges that the EEOC's acts were performed willfully and maliciously. (Id. at  54, Apx. at 19.) Haddad requests declaratory relief, injunctive relief, and damages. C. District Court Decision On September 17, 2003, the district court denied Haddad's Emergency Financial Injunction Motion seeking $2500 a day from the EEOC because the court concluded that Haddad had failed to establish that a preliminary injunction was warranted under the traditional four-prong test and, specifically, that Haddad's claim of economic loss did not constitute irreparable injury. (R.27, Order, Apx. at 53.) On September 29, 2003, the district court granted the EEOC's motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. (R.30, Judgment, Apx. at 55.) The court reasoned that Haddad failed to state a claim because Title VII did not authorize claims against the EEOC arising from its investigation or processing of charges of discrimination. (Id. at 2, Apx. at 56.) The court declined to exercise supplemental jurisdiction over Haddad's state claims. (Id.) The district court did not address the EEOC's argument that dismissal was also warranted under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because no statute confers jurisdiction and because the EEOC is immune from suit for monetary damages under the doctrine of sovereign immunity. (Id.) Nor did the district court address the EEOC's argument that dismissal under Fed. R. Civ. P. 12(b)(5) was appropriate because Haddad failed to effectuate proper service under Fed. R. Civ. P. 4(i). (Id.) STANDARD OF REVIEW This Court reviews de novo a district court's decision to dismiss a complaint under Fed. R. Civ. P. 12(b)(6). See Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 228 (6th Cir. 1997). A complaint should be dismissed for failure to state a claim when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45- 46 (1957). Questions of subject matter jurisdiction are also reviewed de novo on appeal. See Rich v. United States, 119 F.3d 447, 449 (6th Cir. 1997). Because federal courts have jurisdiction only where that power is authorized by Article III of the Constitution and by statutes enacted by Congress, "every federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review[.]'" Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). SUMMARY OF ARGUMENT The district court properly dismissed Haddad's complaint against the EEOC for failure to state a claim because none of the statutes or regulations on which Haddad relies provide for a cause of action against the EEOC for its processing of Haddad's discrimination charges. This Court and every circuit court to address this issue has held that Title VII provides neither an express nor an implied cause of action for the EEOC's alleged mishandling of charges. Similarly, the EPA does not supply a cause of action against the EEOC for its alleged mishandling of charges. Under both Title VII and the EPA, the recourse for charging parties unhappy with the EEOC's handling of their discrimination charges is to file a lawsuit against their employer in federal district court, which is exactly what Haddad has done (many times). Haddad also failed to allege in her complaint that she brought her suit under the APA, but even if she had, the APA does not provide for review of the EEOC's actions because the EEOC's processing of Haddad's charge did not result in a final resolution of her rights and because she had an adequate remedy at court to sue her former employer, which she did. While Haddad clearly disagrees with the outcome of her lawsuits against her former employer, those outcomes will not change by suing the EEOC. This Court should also affirm the dismissal of Haddad's complaint against the EEOC on the alternate ground that the district court lacked subject matter jurisdiction. It is well settled that the federal district courts are courts of limited jurisdiction. Title VII and the EPA only authorize jurisdiction in cases challenging unlawful employment practices by an employer. Since Haddad does not and cannot claim that the EEOC engaged in unlawful practices against her (the EEOC has never been Haddad's employer), neither Title VII nor the EPA provide any basis for jurisdiction. No other federal statute or regulation, including the APA or the EEOC's own regulations, confer subject matter jurisdiction on the district courts to entertain an action against the EEOC by a disgruntled charging party. Moreover, Haddad's claims against the EEOC for money damages are barred by the doctrine of sovereign immunity. Finally, the district court properly denied Haddad's Emergency Financial Injunction Motion for the reasons stated above and because she failed to satisfy the four-factor test to show entitlement to a preliminary injunction ordering the EEOC to pay her $2500 per day. ARGUMENT The district court properly held that Haddad's complaint against the EEOC should be dismissed for failure to state a claim because neither Title VII, the EPA, nor any other federal statute creates a cause of action against the EEOC for alleged mishandling of charges of discrimination. This Court should therefore affirm the dismissal of Haddad's complaint. The dismissal should also be affirmed on the alternate ground that the district court lacked subject matter jurisdiction. Accordingly, and because she failed to meet the standard for granting a preliminary injunction, the district court properly denied Haddad's emergency financial injunction motion. I. THE DISTRICT COURT CORRECTLY DISMISSED HADDAD'S COMPLAINT FOR FAILURE TO STATE A CLAIM. The district court properly dismissed Haddad's complaint against the EEOC under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted because neither Title VII, the EPA, nor the APA creates such a cause of action for the EEOC's processing of Haddad's charges of discrimination. A. Neither Title VII nor the EPA provides Haddad with a right of action against the EEOC for its handling of her charges of discrimination. This Court has held in an unpublished opinion that Title VII does not authorize a cause of action against the EEOC by individuals who believe the agency mishandled their charges of discrimination. See Milhous v. EEOC, No. 97-5242, 1998 WL 152784 (6th Cir. Mar. 24, 1998) (attached) ("[P]laintiff simply does not have a cause of action under Title VII against the EEOC to challenge the processing of her discrimination complaint.") (citations omitted); see also Gillis v. United States Dep't of Health & Human Servs. 759 F.2d 565, 574 (6th Cir. 1985) (recognizing that "those courts addressing the question have held that there is no implied cause of action under Title VII to compel enforcement action by the EEOC" and holding that "[s]imilarly" the Hill-Burton Act does not imply a cause of action against the Department of Health and Human Services to compel it to investigate allegations against hospitals or other entities) (citations omitted). The recourse for individuals who are dissatisfied with the EEOC's processing of a charge is to file a de novo lawsuit in district court against their employers, which is exactly what Haddad has done. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 365-66 (1977) (stating that Title VII allows an aggrieved person "'to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution'") (quoting 118 Cong. Rec. 7168 (1972)). This Court's decision in Mihous is consistent with the decisions of every federal court of appeals that has addressed this issue. See e.g., Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir. 1997); Scheerer v. Rose State Coll., 950 F.2d 661, 663 (10th Cir. 1991); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983); Stewart v. EEOC, 611 F.2d 679, 682 (7th Cir. 1979); Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979); Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978); see also Golyar v. McCausland, 738 F. Supp. 1090, 1094 (W.D. Mich. 1990). These courts reason that Title VII does not expressly provide a cause of action against the EEOC for its processing of a charge and that no such cause of action should be implied because to do so would be inconsistent with Congress' intent to facilitate "individual enforcement of equal employment opportunity laws and could dissipate the limited resources of the EEOC in fruitless litigation with charging parties." Ward, 719 F.2d at 313. Similarly, the EPA neither expressly nor impliedly authorizes a cause of action against the EEOC arising out of its alleged mishandling of a charge of discrimination. See 29 U.S.C. 206 et seq. To allow such an action would, as in the Title VII context, undermine Congress' intent to allow individual enforcement of equal employment opportunity laws and would divert this agency's very limited resources from enforcement of the EPA to pointless litigation. See Ward, 719 F.2d at 313. Because neither Title VII nor the EPA authorizes suits against the EEOC for its charge processing, this Court should affirm the district court's dismissal of Haddad's complaint under Fed. R. Civ. P. 12(b)(6). B. The EEOC's actions are not reviewable under the APA because the EEOC's investigation did not result in a final resolution of Haddad's rights and because she has an adequate remedy at court. Haddad's complaint does not reference the APA, but on appeal she argues that the APA provides for "judicial review and relief for violations" of Title VII. Br. at 14. The APA, however, gives no assistance to Haddad because it does not provide for judicial review of the EEOC's processing of her charges. The APA, by its terms, provides a right to judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. 704. Thus, the presence of "final agency action" is a prerequisite for review under the APA. See Gillis, 759 F.2d at 575. "As a general matter, two conditions must be satisfied for agency action to be 'final': First, the action must mark the 'consummation of the agency's decisionmaking 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, 176 (1997) (citations omitted); see also ITT v. Elec. Workers, 419 U.S. 428, 443 (1975) (agency actions are only "final" under the APA if they "have some determinate consequences for the party to the proceeding"). Here, there was no "final agency action." Haddad alleges that the EEOC failed to properly investigate her charges of discrimination and improperly dismissed them as untimely. This Court has recognized, however, that Title VII does not empower the EEOC "to make binding administrative determinations regarding alleged violations" and that "'[t]he EEOC's negligence or inaction in the internal processing of a complaint has no determinate consequences because such actions are merely preparatory to a lawsuit by either the EEOC or the charging party in federal court; only the district court may fix liability.'" Gillis, 759 F.2d at 575 (relying on Title VII case law in support of its holding that the plaintiff could not sue HHS for failing to enforce the Hill-Burton Act) (quoting Ward, 719 F.2d at 313-14); see also Georator, 592 F.2d at 767-68 (EEOC action not reviewable because it did not result in determinate consequences, and thus was not "final" under the APA). In other words, there is no "final agency action" here because the EEOC's investigation and finding of no cause is not binding on either Haddad or Michigan National; Haddad, like all charging parties, was entitled to go to federal court to sue her employer no matter what the EEOC did or did not do. Similarly, Haddad's APA claim is also fatally flawed because she does not satisfy the "no other adequate remedy in a court" requirement since she did have an adequate remedy in court to sue Michigan National. See 5 U.S.C. 704; Gillis, 759 F.2d at 575 ("[P]laintiffs in the instant case do not satisfy the 'no other adequate remedy in a court' requirement since they may still sue defendant hospitals.") (citations omitted). As the Supreme Court has stated, the recourse for an aggrieved employee where there is "'agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution'" of a charge is to file a Title VII lawsuit in the courts. Occidental Life Ins., 432 U.S. at 365-66 (quoting 118 Cong. Rec. 7168); see also Stewart, 611 F.2d at 682-84 (adequate remedy in court precluded judicial review of EEOC action under APA); Hall v. EEOC, 456 F. Supp. 695, 701 (N.D. Cal. 1978) (noting that Congress, by providing for a private right of action, ensured that plaintiffs would always have an adequate remedy in court for any shortcomings in the EEOC's investigation of charges). As discussed, supra, Haddad took advantage of this recourse afforded by Congress by filing multiple actions against Michigan National. In short, the APA simply does not provide for judicial review of the EEOC's investigation and dismissal of Haddad's charges of discrimination, and this Court should therefore hold that Haddad failed to state a claim against the EEOC under the APA. II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION TO ADJUDICATE HADDAD'S CLAIMS, AND THUS SHOULD HAVE DISMISSED HER COMPLAINT AS REQUIRED BY FED. R. CIV. P. 12(b)(1). "Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (citations omitted). The district court lacked subject matter jurisdiction over this case because none of the statutes Haddad cited in her complaint supply the necessary basis for jurisdiction. Because subject matter jurisdiction "is an issue that 'may be raised at any time,'" this Court may affirm the dismissal of this case on the alternate ground of lack of subject matter jurisdiction despite the fact that the district court did not address the issue in proceedings below. Ford v. Hamilton Inv., Inc., 29 F.3d 255, 257 (6th Cir. 1994) (citation omitted). A. Neither Title VII nor the EPA provides a basis for subject matter jurisdiction over Haddad's claims. Title VII prohibits discrimination on the basis of sex and national origin and permits suits against an 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. The statute has only three jurisdictional provisions. See 42 U.S.C. 2000e-5(f) (suits by EEOC or charging party against private sector employer and by Attorney General or charging party against state or local governmental employer); 2000e-6 ("pattern and practice" suits by EEOC); 2000e-16 (suits by federal employees against federal governmental employer). None of these provisions authorizes the federal courts to hear claims against the EEOC where, as here, there is no employer-employee relationship between the plaintiff and the EEOC, and the EEOC is not itself charged with employment discrimination. See Golyar, 738 F. Supp. at 1094 n.8 (stating that "this Court does not have jurisdiction over the subject matter and [the complaint] should be dismissed pursuant to Rule 12(b)(1)" where former employee of federal agency sued EEOC because he was unhappy with resolution of his charges). Similarly, the EPA, which prohibits certain forms of sex-based discrimination in compensation, does not provide for subject matter jurisdiction over a charging party's claim against the EEOC for purported mishandling of a charge of discrimination. The EPA only provides for criminal actions, suits for monetary damages and injunctive relief by employees against their employers, and suits by the government to collect wages due employees. See 29 U.S.C. 216, 217. Because the EEOC never employed Haddad, the EPA does not authorize the federal courts to entertain this action against the EEOC. Jurisdiction is also lacking over Haddad's Title VII and EPA claims because Congress has not waived the EEOC's sovereign immunity from suits for monetary damages sought in connection with the EEOC'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). Waiver of sovereign immunity cannot be implied; it 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) (internal quotations and citations omitted). 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). 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. See Mitchell, 463 U.S. at 212; Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997) ("The doctrine of sovereign immunity removes subject matter jurisdiction in lawsuits against the United States unless the government has consented to be sued.") (citation omitted). Neither Title VII nor the EPA, nor any other federal statute, contains an "unequivocal" waiver of sovereign immunity with respect to claims against the EEOC by disgruntled charging parties, like Haddad, who are complaining about the processing and/or disposition of their charges of discrimination against a private employer. See 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). Therefore, the EEOC remains immune from such suit and there is no federal subject matter jurisdiction over Haddad's claims against the EEOC. B. The APA does not confer subject matter jurisdiction over this case. In Section I(B) of this brief, the Commission established that Haddad's purported APA claim (which she did not allege in her complaint) failed because the EEOC's handling of her discrimination charges did not constitute reviewable "final agency action" and because she had an "adequate remedy in a court." This also precludes the district court from asserting subject matter jurisdiction over Haddad's APA claim. Several courts, including the Supreme Court and this Court, have indicated that they regard the question of whether an act constitutes "final agency action" as going to the issue of subject matter jurisdiction. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 796 (1992) (analyzing the issue of "final agency action" as one affecting "the statutory basis for our jurisdiction under the APA," and as presenting an issue to be resolved prior to reaching the merits of an APA claim) (citations omitted); CWWG v. United States Dep't of the Army, 111 F.3d 1485, 1494 (10th Cir. 1997) (plaintiffs "must challenge 'final agency action' to confer upon the district court jurisdiction under the [APA]"). Similarly, the availability of an adequate remedy in court precludes assertion of subject matter jurisdiction over Haddad's claims under the APA. In Beamon, this Court explicitly recognized that the presence of an alternate adequate remedy, coupled with the doctrine of sovereign immunity, precluded subject matter jurisdiction under the APA notwithstanding the United States' general waiver of immunity under that statute. See Beamon, 125 F.3d at 967-70 (affirming decision of district court that it lacked subject matter jurisdiction where adequate remedy at court available under APA). In this case, as discussed, supra, Haddad had an alternative adequate remedy in court following the EEOC's processing of her charges to commence her own lawsuit in federal court against Michigan National, which she has done several times. Accordingly, Beamon requires dismissal for lack of subject matter jurisdiction over Haddad's APA claim. III. THE DISTRICT COURT PROPERLY DENIED HADDAD'S EMERGENCY FINANCIAL INJUNCTION MOTION. For the reasons discussed above, this Court should affirm the district court's dismissal of Haddad's complaint, which also disposes of Haddad's argument that the district court erred in denying her motion for Emergency Financial Injunction Relief, which requested that the EEOC pay Haddad $2500 per month until the conclusion of the case. The district court's order denying the motion was also proper because Haddad failed to meet the four-factor test for establishing entitlement to a preliminary injunction: 1) that she had a strong likelihood of success on the merits; 2) that she would suffer irreparable injury without the injunction; 3) whether the injunction would cause substantial harm to others; and 4) whether the public interest would be served by the issuance of the injunction. See NHL Players' Ass'n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 717 (6th Cir. 2003). The court properly determined that Haddad failed to show irreparable injury because economic loss is usually not an irreparable injury. See Sampson v. Murray, 415 U.S. 61, 90 (1974). Moreover, Haddad failed to meet the first prong since she had no likelihood of success on the merits, she failed to meet the third prong because the issuance of the injunction would substantially harm the underfunded EEOC, and she failed to satisfy the fourth prong because the public interest, which is served by the EEOC's enforcement of the civil rights anti-discrimination laws, would be harmed if the EEOC had to pay Haddad $2500 a day.CONCLUSION Based on Haddad's failure to state a claim against the EEOC and the lack of subject matter jurisdiction over those same claims, this Court should affirm the district court's dismissal of Haddad's complaint against the EEOC for its alleged mishandling of her charges of discrimination. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW. Washington, D.C. 20507 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, attorney for the EEOC, certify that this brief complies with the requirements of Fed. R. App. P. 32(a)(7)(C) in that it contains ___________ words. CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that two copies of the foregoing brief was mailed first class, postage prepaid, on this ___ day of January, 2004, to: Ms. Constance E. Haddad, pro se 571 E. Greenlawn Ave. Lansing, MI 48910 ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW., 7th Fl. Washington, D.C. 20507 (202) 663-4724 ADDENDUM DESIGNATION OF APPENDIX CONTENTS Haddad did not designate as an addendum to her brief any parts of the record to be included in the Joint Appendix. The Equal Employment Opportunity Commission has, at the direction of the Sixth Circuit clerk's office, prepared the Joint Appendix, which includes the current docket sheet of the district court, the complaint and its attachments, the EEOC's motion to dismiss, Haddad's motion for injunctive relief, the judgment and order of the district court, and the notice of appeal. See 6 Cir. R. 30(f)(1). _________________________________________________________ 1. “R*” refers to the district court docket number. 2. The following facts are taken from Haddad’s complaint and attached exhibits. 3. Haddad has apparently also sued Michigan National in state court three times. See R. 1, Complaint at p.2, Apx. at 7. 4. Haddad subsequently attempted to effectuate proper service, and the Commission does not pursue this argument on appeal. 5. This Court permits the citation of unpublished opinions that have “precedential value in relation to a material issue in a case” where “no published opinion would serve as well.” 6 Cir. R. 28(g). 6. The only actions against the EEOC authorized by Title VII are suits by current or former EEOC employees or applicants, and Haddad does not allege that she falls into any of these categories. See 42 U.S.C. § 2000e-16(c).