IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________ No. 06-1143 ____________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. JOSLIN DRY GOODS COMPANY, d/b/a DILLARD'S, Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the District of Colorado, 05-cv-00177 ___________________________________________________________ RESPONSE OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO DILLARD'S STATEMENT AS TO MOOTNESS _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 The Equal Employment Opportunity Commission ("EEOC") submits this response to Dillard's Statement of Settlement with Appellee Wolff and Statement of Why This Appeal is Not Rendered Moot by the Settlement With Wolff. For the following reasons, the EEOC contends that Wolff's settlement has mooted this appeal and that the appeal should therefore be dismissed for lack of jurisdiction. Background The EEOC filed this Title VII enforcement action in January 2005, alleging that Dillard's subjected Wolff and other similarly situated individuals to harassment based on their sex. DA64-70.<1> On March 4, 2005, Wolff filed a motion to intervene to bring a claim of sex-based harassment. DA71-73. Dillard's opposed Wolff's intervention and filed a motion to stay all proceedings with respect to Wolff's claim pending arbitration. Doc.11.<2> After Wolff's motion to intervene was granted, the district court denied Dillard's motion to stay. DA101, 120. Dillard's appealed. Doc.78. Following briefing on the merits and oral argument, this Court ordered the parties to mediation, and Wolff and Dillard's settled. Wolff and Dillard's filed a Stipulated Dismissal with Prejudice in the district court, and on February 26, 2007, the district court entered a Notice of Dismissal dismissing Wolff's complaint with prejudice. Ex. A & B to Def.'s Mo. Argument Contrary to Dillard's assertions, this appeal is clearly moot. A federal court's "inability to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964). "[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them." Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (internal quotation and citation omitted). Thus, "if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever" to a prevailing party, the appeal is moot and must be dismissed. Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks and citation omitted); see also Moongate Water Co. v. Dona Ana Mut. Domestic Water Consumers Ass'n, 420 F.3d 1082, 1088 (10th Cir. 2005) (stating that Article III limits courts to live controversies at all stages of litigation, including appellate review). Here, the settlement and subsequent dismissal of Wolff's claim against Dillard's rendered this appeal moot because there is no longer any case or controversy for this Court to decide or any effectual relief this Court can provide Dillard's, even if this Court agrees with Dillard's legal argument. According to Dillard's opening brief, the two issues on appeal were: 1) under the Federal Arbitration Act ("FAA"), whether the district court erred in evaluating Wolff's claim on the merits, concluding that she could not bring such a claim independently, and in therefore denying Dillard's motion to stay pending arbitration; and 2) under the FAA, whether the district court erred in concluding that the EEOC's presence in this action made Wolff's arbitration agreement with Dillard's unenforceable. The relief Dillard's requested was the reversal of the court's order denying Dillard's motion to stay litigation of Wolff's claim pending arbitration. See Op. Br. at 27; Reply Br. at 19. Thus, according to Dillard's, the only issues on appeal concerned the district court's purported misapplication of the FAA, and the only relief Dillard's sought was reversal of the court's order denying the motion to stay Wolff's litigation pending arbitration. Now that Wolff and Dillard's have settled Wolff's claim and it has been dismissed with prejudice, there is no longer any case or controversy for this Court to decide. It no longer matters if the district court misapplied the FAA or if the district court should have sent Wolff's claim to arbitration because Wolff no longer has a claim in this lawsuit. Therefore, even if this Court issues a ruling that Wolff had her own Title VII claim that she could settle (a point on which Dillard's and the EEOC agree), this Court can no longer provide Dillard's the relief it requested, which was to "reverse the district court's order denying Dillard's motion to stay under" the FAA and to "direct the district court to grant Dillard's motion to stay [Wolff's claim pending arbitration]." Dillard's Op. Br. at 27. Because Wolff's claim against Dillard's has been dismissed with prejudice, there is no longer any claim of hers that could be stayed pending arbitration. Accordingly, the appeal is moot. Church of Scientology, 506 U.S. at 12 (appeal is moot when it is "impossible for the court to grant any effectual relief whatever"). Dillard's nevertheless argues to the contrary, contending that the dismissal of Wolff's claim left unresolved the question of whether the district court erred in concluding that "Wolff had no Title VII claim of her own to settle." Mo. at 5. Even assuming that this was the import of district court's order (it is not entirely clear that it was), Dillard's argument does not save this appeal from being moot. This Court has recognized that "[i]n every case dismissed as moot, legal questions are necessarily left unresolved." Park County Res. Council v. U.S. Dep't of Agriculture, 817 F.2d 609, 615 (10th Cir. 1987). When intervening events demonstrate that "the legal issue no longer exists[s]," however, this Court "would be doing nothing more than rendering an advisory opinion as to an abstract question of law were [it] to retain jurisdiction." Id. Because Article III prohibits advisory opinions, the existence of an unresolved legal issue does save this appeal from being moot. Dillard's tries to deflect attention from the fact it is seeking an advisory opinion on an abstract question of law by asserting that a ruling on whether Wolff had her own claim to settle will have "some effect in the real world - namely on the lower court's determination of what appropriate relief to provide Wolff, if the EEOC prevails below." Mo. at 6-7 (internal quotation and citation omitted). There are several fundamental flaws in Dillard's argument. First, as Dillard's candidly acknowledges, a ruling from this Court will provide effectual relief only if the EEOC prevails below. Mo. at 6. Thus, Dillard's concedes that there is presently no effectual relief that this Court could provide, even if this Court agrees that Wolff had an independent Title VII claim that she could settle (and even if this Court agrees with Dillard's real argument - that the EEOC therefore cannot seek any monetary relief as to Wolff). As stated above, this Court may never have to confront the issue of what effect Wolff's settlement has on the EEOC's ability to obtain monetary relief for Wolff because this case could settle, be dismissed on summary judgment, or be decided adversely to the EEOC. In the absence of any order from the district court subjecting Dillard's to what it calls "double recovery," there is simply no "effectual relief" that this Court can provide Dillard's at this juncture. Dillard's is simply seeking a bite at the apple before it becomes ripe. Second, Dillard's argument is based on the unfounded assumption that the district court's statement that Wolff had no independent claim necessarily reflected the court's belief that "Wolff had no Title VII claim of her own to settle." Mo. at 5. Dillard's stated in its opening brief, however, that it was unclear what the district court's reference to an "independent claim" actually meant. Op. Br. at 17. According to Dillard's, the reference means one of three things: it could have referred to Wolff's right to bring "a claim for 'sexual harassment' under Title VII"; it could have referred to "whether Wolff's claim exists at all under the statute"; or it could have meant that the FAA "applies only if the primary claim (that is, the claim that launched the lawsuit) is subject to arbitration." Op. Br. at 17, 22. Thus, Dillard's does not even think that it is clear that the court held that Wolff lacked her own substantive claim that she could settle. Moreover, Dillard's argument that this necessarily was the court's holding is undermined by the fact that the district court took judicial notice of Wolff's settlement with Dillard's and dismissed Wolff's claim with prejudice. Ex. B to Mo. This action suggests that the court understands that Wolff had her own Title VII claim that she could settle; otherwise, the court's action could only be seen, absurdly, as taking judicial notice of the settlement of a non-existent claim and dismissing with prejudice a non- existent claim. The third problem with Dillard's argument is that even if the district court is laboring under the erroneous belief that Wolff did not have a Title VII claim of her own to settle, Dillard's is only speculating that the EEOC will seek "double recovery" for Wolff and that the district court will award it. Mo. at 6. See Jones v. Temmer, 57 F.3d 921, 923 (10th Cir. 1995) (holding that possibility that legislature would reinstate old law was "too conjectural and speculative to avoid a finding of mootness"). Contrary to Dillard's assumption as to what the EEOC will do if this case goes to trial, the EEOC has no intention to seek "double recovery" for Wolff but intends to seek only additional - but not duplicative - relief for Wolff, if appropriate. See, e.g., Equal Employment Opportunity Comm'n v. Continental Airlines Inc., No. 04-3055, 2006 WL 3505485, (N.D. Ill. Dec. 4, 2006) (holding that the EEOC may seek victim-specific monetary relief for a charging party despite her settlement with employer but that the amount of recovery would be offset by the settlement award) (Ex. 2). Similarly, Dillard's speculates that the district court's (presumed) belief about Wolff's lack of an independent Title VII claim means "the district court would have to treat the settlement as providing no compensation to Wolff for her claim under Title VII," but there is no evidence that this would be the court's ruling. To the contrary, the district court's February 2, 2007, order, states that the issue of what kind of relief the EEOC could seek as to Wolff in the event that she obtains an arbitration agreement or settlement could be addressed when it arises. EEOC v. Joslin Dry Goods Co., 05-cv-1777, 2007 WL 433144, *2 (D.Colo. Feb. 2, 2007) (Ex. 1). Thus, contrary to Dillard's speculation and conjecture, the district court's order clearly signals that the court considers this issue an open question. Fourth, Dillard's argument that this Court should now decide whether Wolff had an independent claim is disingenuous because it contradicts the very heart of Dillard's argument on appeal. Dillard's central argument was that the "court's analysis of whether Wolff has an 'independent claim' exceeded its proper role under the FAA." Op. Br. at 17. Accordingly, Dillard's argued that this Court could not consider whether Wolff had an independent Title VII claim. Reply at 1. Thus, less than a year ago Dillard's argued to this Court that it should not reach the issue of whether Wolff had an independent claim because that inquiry was prohibited by the FAA. Now, however, Dillard's has taken a 180 degree turn and is arguing that that this Court should decide whether Wolff had an independent claim, despite the fact she settled her claim with Dillard's and it has been dismissed. Mo. at 6. Dillard's abrupt change of heart shows just how frivolous its argument as to mootness really is. Conclusion Wolff's settlement with Dillard's and the dismissal of her claim with prejudice moots the issues presented in this appeal and makes it impossible for this Court to grant any effectual relief. Therefore, this Court should dismiss this appeal for lack of jurisdiction. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _______________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF SERVICE I certify that one copy of the foregoing Response of the Equal Employment Opportunity Commission was sent May 7, 2007, by express mail, postage prepaid, to the following counsel of record: K. Preston Oade, Jr. Michael J. Hoffman Holmes Roberts & Owens LLP 1700 Lincoln St., Ste. 4100 Denver, CO 80203-4541 _______________________________ Anne Noel Occhialino CERTIFICATE OF DIGITAL SERVICE I hereby certify that: 1) on May 7, 2007, this response and attachments were submitted in digital form to the Tenth Circuit clerk's office at esubmission@ca10.uscourts.gov and to the counsel listed below at their electronic addresses: 2) all required redactions have been made to this brief and that this document, submitted in digital form, is an exact copy of the written document being filed with the Court; and 3) this digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, Symantec AntiVirus Corporate Edition, updated May 1, 2007. K. Preston Oade Jr. Michael J. Hofmann Holem Roberts & Owen LLP 1700 Lincoln St., Ste. 4100 Denver, CO 80203 Preston.oade@hro.com Michael.Hofmann@hro.com ___________________________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, DC 20507 202-663-4724 Annenoel.occhialino@eeoc.gov *********************************************************************** <> <1> “DA” refers to Dillard’s Appendix. <2> “Doc.” refers to the district court docket.