In re Metzenbaum, 11th Cir. Opposition to petition for mandamus Filed March 18, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ___________________________ No. 05-1525 ___________________________ In Re: TERRY S. METZENBAUM, Petitioner ___________________________ On Petition for Writ of Mandamus ___________________________ RESPONSE OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO THE PETITION FOR WRIT OF MANDAMUS AND PROHIBITION AND EMERGENCY STAY ORDER ___________________________ Terry Shane Metzenbaum applied for a job with the Department of Homeland Security ("DHS"). He was not hired and he filed an EEO complaint with DHS. In October 2004, Mr. Metzenbaum requested a hearing by the Equal Employment Opportunity Commission ("EEOC" or "Commission"). By January 2004, Mr. Metzenbaum's case was ultimately assigned to Administrative Judge ("AJ") Schmid in the Commission's Minneapolis Area Office. On February 23, 2005, Mr. Metzenbaum filed a petition in this Court seeking the issuance of a writ of mandamus, a writ of prohibition, and an emergency stay order. In this petition, he requested that this Court order the EEOC to return his case file in Metzenbaum v. Thomas Ridge, Secretary, Dep't of Homeland Security, EEOC Case No. 220-2005-0027X, Agency No. ICE-04- C048, to AJ Porter in the EEOC's Cleveland District Office. Petition ("Pet."). at 1. The petitioner also requests that this Court issue a writ of mandamus ordering the United States Attorney General to investigate "possible crimes" against him. Id. With respect to the writ of prohibition, the petitioner seeks to preclude "EEOC Administrative Judges Julie Schmidt (sic), Cheryl Kramer, Charharetta (sic) Harrington and any other EEOC District Office or Central Office Personal (sic)" from interfering with Judge Porter's processing of his complaint. Id. at 1-2. Lastly, the petitioner asks this court to enter an emergency stay to prevent the EEOC from dismissing his complaint before this Court has an opportunity to review his petition. Id. at 2. The Commission urges this Court to deny the petition first because this Court lacks jurisdiction to issue a writ of mandamus and second because the availability of adequate relief demonstrates that the extraordinary remedies petitioner seeks are unwarranted. 1. Writ of Mandamus This Court lacks jurisdiction to issue a writ of mandamus. As this Court recently observed, "district courts have original jurisdiction over any mandamus action ‘to compel an office or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Taylor v. Barnhart, 2005 WL 48671, *2 (8th Cir. Mar. 3, 2005) (quoting 28 U.S.C. § 1361). Petitioner directly filed his writ of mandamus in this Court. In that this writ, if appropriate at all, should have been filed in the district court, this Court cannot exercise jurisdiction over Mr. Metzenbaum's petition. 2. Writ of Prohibition A writ of prohibition may only be issued in aid of this Court's appellate jurisdiction over administrative agencies and that jurisdictional predicate is lacking in this case. Carr v. Donohoe, 201 F.2d 426, 428 (8th Cir. 1953) (court of appeals may, in the exercise of a sound judicial discretion, issue writs of mandamus or of prohibition in aid of its appellate jurisdiction); 28 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law."). Under the Administrative Procedure Act, only agency action made reviewable by statute, and final agency action for which there is no other adequate remedy in court, are subject to judicial review. 5 U.S.C. § 704; Federal Trade Commission v. Standard Oil Co., 449 U.S. 232 (1980). Other than transferring his case to the appropriate district office, the EEOC has not taken any action on Mr. Metzenbaum's complaint, let alone final agency action. And even if it had, the Commission's administrative resolution of a federal complaint is not made reviewable by statute. Cf. Gillis v. United States Dep't of Health and Human Servs., 759 F.2d 565, 574 (6th Cir.1985) (in deciding that a health care association had no cause of action to compel a federal agency to investigation allegations of noncompliance with the Hill-Burton Act, the court relied on settled law that "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"); Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000) (holding that federal employee could not assert claim under Title VII against equal employment opportunity division of the federal agency that employed her for misprocessing of discrimination and retaliation claims).<1> The remedy provided by statute for a federal complainant who is dissatisfied with the EEOC's processing of a complaint is to file a de novo action against the allegedly discriminatory agency, not the EEOC. Chandler v. Roudebush, 425 U.S. 840, 864 (1976). Moreover, if a claim did lie against the EEOC for its handling of a discrimination charge, we know of no provision allowing an aggrieved individual to bypass the district court and petition this Court for review. And Mr. Metzenbaum has not identified any such legal authority. Therefore, because this Court would not entertain a challenge to the EEOC's administrative processes, a writ of prohibition cannot assist this Court in the exercise of its appellate jurisdiction. Even assuming this Court has jurisdiction to entertain the request for a writ of prohibition, such extraordinary relief is not warranted because Mr. Metzenbaum has other remedies that are available and adequate to have his administrative claim processed in a more convenient location. In re State of Missouri, 664 F.2d 178, 180 (8th Cir. 1981) (a writ of prohibition is usually denied where other adequate remedies are available). Under Section F of the Commission's Management Directive 110 ("MD-110"),<2> if a party to an administrative proceeding is dissatisfied with the assigned EEOC venue for a hearing and "desires that a hearing be held within the jurisdictional area of another EEOC district office," that party should submit a written request detailing the reasons for the requested change to the AJ assigned to the case. Attachment ("Att.")1, MD-110 at 7-5. Although he has not filed such a request with the Minneapolis AJ, this remedy is available to Mr. Metzenbaum and would adequately resolve his concern about having his case heard in the Cleveland District Office rather than the Minnesota Area Office. Further, even if Mr. Metzenbaum does not file a change of venue request, other adequate relief is available to him. As petitioner himself noted, Director Nicholas Inzeo of the EEOC's Office of Federal Programs, which has oversight authority over the EEOC's District Offices, has stated that if a hearing is held, he would arrange for AJ Schmid to travel to Cleveland and hold the hearing there. See Pet. at 6. In that such EEOC action would eliminate any expense or inconvenience associated with Mr. Metzenbaum's travel to the Minneapolis Office for a hearing, no basis for a writ of prohibition exists. In fact, if a writ of prohibition were issued on the terms proposed by Mr. Metzenbaum, such writ would prevent Director Inzeo and AJ Schmid from taking any affirmative and corrective action on Mr. Metzenbaum's behalf. A writ of prohibition also is not an appropriate remedy in this case because Mr. Metzenbaum does not have a "right" to have his case heard in the Cleveland District Office nor to prevent any Commission employee from "interfering" with that choice of venue. In re State of Missouri, 664 F.2d at 180 (the issuance of an extraordinary writ of prohibition should be confined to cases where the applicant had an unquestioned legal right to have the performance of the particular duties sought to be enforced or enjoyed). In fact, Mr. Metzenbaum does not have an automatic right to a hearing. EEOC regulations and instructions make clear that a decision can be entered without a hearing under a number of circumstances, including where summary judgment is warranted and where the complainant has engaged in contumacious conduct. See 29 C.F.R. § 1614.109(e) ("[t]he administrative judge shall have the power to regulate the conduct of a hearing . . . and exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing"); id. at 1614.109(g) (delineating instances when a decision can be made without a hearing); MD-110 at 7-9 (AJ has authority to "[i]ssue decisions without a hearing if there are no material facts in issue"); Schneider v. Department of Treasury, EEOC Request No. 5940298 (Dec. 9, 1984) (dismissing case where complainant failed to cooperate in discovery and engaged in abusive and profane behavior towards AJ). Although Mr. Metzenbaum has requested a hearing, it has yet to be determined whether a hearing is necessary. Thus, in the absence of an "unquestioned legal right" to a hearing, an extraordinary writ would not only be inappropriate but also would be premature. In addition to having no right to a hearing, petitioner has no right to have AJ Porter preside over his complaint or to have his hearing held in the Cleveland District Office. Only the EEOC is authorized to assign an AJ to a case. 29 C.F.R. § 1614.109(a) ("[w]hen a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing"). And, venue usually is determined by the location of the agency facility charged with discrimination. MD-110 at 7-4 ("[h]earing requests are sent to the district office having jurisdiction of the agency facility where the complaint arose"). Here, Mr. Metzenbaum's request for a hearing that he filed with the EEOC's Cleveland District Office indicated that the agency facility at issue, the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security, was located in Fort Snelling, Minnesota. Since the EEOC's Milwaukee District Office has jurisdiction over complaints arising in the state of Minnesota, and federal sector complaints against agencies in Minneapolis are handled by an AJ in the EEOC's Minneapolis Area Office, Cleveland's Chief Administrative Judge Harrington properly transferred petitioner's request along with the agency file from the Cleveland District Office. However, as earlier noted, Mr. Metzenbaum may petition the Minneapolis AJ to have the venue changed to Cleveland. Next, a writ of prohibition is not warranted because none of the EEOC employees named by Mr. Metzenbaum exceeded their authority or failed to perform their duties. Cf. Hydraulic Press Mfg. Co. v. Moore, 185 F.2d 800, 803 (8th Cir. 1950) (writ of mandamus or prohibition is inappropriate where order of trial judge, whether right or wrong, was one which he had authority to make). Here, Mr. Metzenbaum claims that a prohibition writ is needed because Judge Harrington has exhibited bias towards him by transferring his case to Minneapolis and he anticipates that Judge Schmid will enter summary judgment against him because of an allegedly contentious phone call. Pet. at 6. Despite Mr. Metzenbaum's reference to numerous conflicts with EEOC employees, Pet. at 2-6, his rationale that a writ of prohibition is needed to prevent these EEOC employees from interfering with his case rests on sheer speculation. In re State of Missouri, 664 F.2d at 180 (mere conjecture as to what action a court may judicially take is not substance on which a writ of prohibition may preventively be sought). In fact, contrary to Mr. Metzenbaum's allegations, the identified Commission employees have demonstrated sensitivity to Mr. Metzenbaum's concerns about the travel expense and inconvenience of having his case heard in Minnesota. Mr. Metzenbaum himself admits that Acting Cleveland District Director James Neely initially tried to have Mr. Metzenbaum's travel expenses paid for by the EEOC until Mr. Neely was reminded that such funds are not available to federal applicants. See Pet. at 5; Att. 1, MD-110 at 7-4.<3> In addition, Director Inzeo told Mr. Metzenbaum that, in the event of a hearing, he would have AJ Schmid flown to Ohio to conduct the hearing. Pet. at 6. Furthermore, none of the challenged actions, anticipated or actual, regarding the transfer of his case to Minneapolis or Judge Schmid's potential ruling on the summary judgment motion fall outside the authority of the identified EEOC employees. See Att.1, MD-110 at 7-1 to 7-2. Accordingly, Mr. Metzenbaum has failed to furnish a viable justification for the issuance of the extraordinary writs he seeks. 3. Emergency Stay Lastly, Mr. Metzenbaum is not entitled to an emergency stay pending judicial review of his petition. Mr. Metzenbaum believes that the EEOC may dismiss his complaint in response to DHS's summary judgment motion before this Court rules on his petition. Pet. at 2. An emergency stay pending judicial review is available if the party seeking the stay can show, among other things, that it is likely to succeed on the merits of its pending litigation and that it will suffer irreparable injury unless the stay is granted. Packard Elevator v. ICC, 782 F.2d 112, 115 (8th Cir. 1986). These factors cannot be satisfied in this case. To begin with, Mr. Metzenbaum will not suffer any irreparable harm in the absence of a stay. EEOC Judge Schmid, who is currently assigned to Mr. Metzenbaum's case, has agreed not to take any action on the case if venue remains in Minneapolis until this Court has ruled on the instant petition. See Att.2, Letter dated March 14, 2005. In other words, if Mr. Metzenbaum submits a written request to Judge Schmid, asking that his case be transferred from Minneapolis to Cleveland, Judge Schmid will take action on his request. If she grants the request, then Mr. Metzenbaum's case will be transferred to the Cleveland District Office, and the main issues before this Court will be moot. If Judge Schmid denies the change of venue request, then she agrees to hold Mr. Metzenbaum's case in abeyance until this Court has had opportunity to rule on his petition. Thus, any allegations of irreparable harm are speculative and unsubstantiated by the record. Packard Elevator, 782 F.2d at 115. More importantly, a stay is not warranted because it is unlikely that Mr. Metzenbaum will prevail on the merits of this litigation. As we have earlier stated, this Court lacks jurisdiction over his mandamus petition and he has other relief that is adequate and available to him which precludes the issuance of any extraordinary writ. Therefore, there is no "emergency" that requires a stay. Conclusion Much confusion and unnecessary conflict have occurred in this case because of uncalculated missteps along the way. For example, Mr. Metzenbaum applied for a job with a federal agency in Cleveland, but that agency's bureau in Minnesota denied his application. Pet. at 3-4. Because he properly identified the Minnesota bureau as the agency facility against which his complaint was filed, the EEOC, consistent with its regulations, understandably transferred the case to its Minneapolis office. The fact that his case was ever assigned to a Cleveland AJ was the result of an erroneous transmittal from the Milwaukee District Office to the Cleveland Office following the initial transfer from the Cleveland Office. However, once the erroneous transfer to Cleveland was discovered, Mr. Metzenbaum's file was immediately forwarded to the Minneapolis Office, where it ultimately belonged. Hence, the Commission understands why Mr. Metzenbaum initially thought his case would be heard in Cleveland. Notwithstanding, the situation presented here is not an extraordinary one, and calls for no extraordinary remedy. Mr. Metzenbaum has not exhausted all avenues of relief available to him and his mandamus petition is improperly before this Court. For these reasons, the Commission respectfully requests that this Court conclude that Mr. Metzenbaum is not entitled to a writ of mandamus, writ of prohibition, or an emergency stay and deny his petition. Respectfully submitted, ERIC S. DRIEBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 CERTIFICATE OF SERVICE This is to certify that on March 18, 2005, two copies of the foregoing response along with the certificate of service was mailed first class, postage prepaid, to the pro se petitioner: Terry S. Metzenbaum 3882 Bushnell Road University Heights, OH 44118 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 March 18, 2005 ATTACHMENT 1 ATTACHMENT 2 ************************************************************************** <> <1> See also 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). While the cited cases preclude employees of private employers from bringing a complaint against the Equal Employment Opportunity Commission challenging its handling of an administrative complaint, Mr. Metzenbaum offers no reason why he, as a federal applicant, “should be given an implied failure-to-process cause of action under Title VII that has been consistently denied to private plaintiffs." Jordan, 205 F.3d at 342. <2> The EEOC is authorized to issue rules, regulations, orders, and instructions governing the administrative process of federal sector complaints. See section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(b); section 15(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(b); section 505(a)(1) of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(a)(1); the Fair Labor Standards Act, 29 U.S.C. 201 et seq.; Executive Order 12067, 43 Fed. Reg. 28,967 (1978); and Executive Order 11478, 34 Fed. Reg. 12,985 (1969), as amended by Executive Order 12106 (1979). Pursuant to that authority, the EEOC has issued Management Directive-110, which provides additional instructions for implementing 29 C.F.R. Part 1614 and providing for the “prompt, fair and impartial processing of complaints.” 29 C.F.R. § 1614.102(a)(2). <3> Section E of the MD-110 states: “If the Administrative Judge sets a hearing site that is outside the local commuting area of the agency's organizational component where the complaint arose, the agency must bear all reasonable travel expenses of complainants, . . . except that an agency does not have the authority to pay the travel expenses of the complainant or the complainant's witnesses or representatives if they are not federal employees.” Att. 1, MD-110 at 7-4.