IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________________________________ No. 03-1246 ____________________________________________ CAROLYN E. O'CONNOR, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ NICOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 TABLE OF CONTENTS STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case and Proceedings Below . . . . . . . . . . . . . . 2 2. District Court's Decision . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF'S COMPLAINT AGAINST THE COMMISSION UNDER 28 U.S.C. § 1915(E)(2)(b) . . . . . . . . . . . . . 5 II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S CLAIMS . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Certificate of Compliance With Rule 32(a) Addendum TABLE OF AUTHORITIES Cases Page(s) Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210 (7th Cir. 1978) . . . . . . . 7 Baba v. Japan Travel Bureau International, Inc., 111 F.3d 2 (2d Cir. 1997) . . . . . . . . . . . . . . . . 6 Bender v. Williamsport Area School District, 475 U.S. 534 (1986) . . . . . . . . . . . . . . . . . . . 8 Bradshaw v. Correctional Medical Services, Inc., 2001 WL 391497 (1st Cir., April 12, 2001) ................................. 5 Cole v. United States, 657 F.2d 107 (7th Cir.), cert. denied, 454 U.S. 1083 (1981) ... . . . . . . . . . .10 Evans v. C & P Tel. Co., 30 FEP Cases (BNA) 1814 (D. Md. 1981) .............................................. 9 Feldstein v. EEOC, 547 F. Supp. 97 (D. Mass. 1982) . . . . 7 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir.) cert. denied, 444 U.S. 949 (1979) . . . . . . . . . 4, 6, 7 Golyar v. McCausland, 738 F. Supp. 1090 (W.D. Mich. 1990) . . . . . . . . . . . . . . . . . . .6, 7 Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984) . . . . . . . . . . . .10 Lockerty v. Phillips, 319 U.S. 182 (1943) . . . . . . . . 8 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) . . . . . 6 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) 7 TABLE OF AUTHORITIES Cases Page(s) Peavey v. Polytechnic Institute of New York, 749 F. Supp. 58 (E.D.N.Y. 1990), aff'd, 940 F.2d 628 (2d Cir. 1991) . . . 6 Reed v. EEOC, 100 F.3d 957, 1996 WL 636171 (6th Cir. Oct. 30, 1996) . . . . . . . . . . . . . . . . . . 6 Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991) . . . . . . . . . . . . . . . . . . 6 Selden Apts. v. United States Department of HUD, 785 F.2d 152 (6th Cir. 1986) . . . . . . . . . . . . . . . 8 Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979) . . . . . . 6 United States Department of Energy v. Ohio, 503 U.S. 607 (1992) . . . . . . . . . . . . . . . . . . . 9 United States v. Mitchell, 463 U.S. 206 (1983) . . . . . . 9 United States v. Nordic Village, Inc., 503 U.S. 30 (1992). 9 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984) . . . . . . . . . . .6, 7 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 2000e-5 . . . . . . . . . . . . . . . . 6, 7, 9 28 U.S.C. § 1915(E)(2)(b) . . . . . . . . . . . . . .passim 118 Cong. Rec. 7,168 (1972) . . . . . . . . . . . . . . . . .6 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _____________________ No. 03-1246 _____________________ CAROLYN E. O'CONNOR, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION , Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ STATEMENT OF JURISDICTION The district court did not have jurisdiction over this action because there is no statutory or constitutional basis for plaintiff's claims against the Equal Employment Opportunity Commission, an agency of the federal government. Final judgment was entered against the plaintiff on January 24, 2003. Addendum ("Add.") at 2 (doc. no. 8).<1> The plaintiff filed a timely notice of appeal on January 30, 2003. Id. (doc. no.9). This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court properly dismissed plaintiff's claim alleging that the Equal Employment Opportunity Commission improperly processed and disposed of her charge of discrimination against a private employer. STATEMENT OF THE CASE 1. Nature of the Case and Proceedings Below. This is an appeal from a decision of the district court dismissing this suit (02-CV-10795). On May 2, 2002, Carolyn E. O'Connor filed in the district court an application to proceed without prepayment of fees and a complaint alleging that the Commission improperly investigated and wrongfully dismissed a charge she had filed against a former employer.<2> Add. at 1 (doc. no. 1). On June 5, 2002, O'Connor filed an amended complaint. Add. at 3. On December 18, 2002, the district court entered an order conditionally granting plaintiff's application and permitting her to file her amended complaint. However, the court stated that her amended complaint would be dismissed pursuant to 28 U.S.C. § 1915(e) if she did not show good cause in writing why her case should not be dismissed within 35 days. Add. at 16. On January 2, 2003, plaintiff submitted to the court a document entitled "Appeal of Decision/Reason for Upholding Action." Add. at 2 (doc. no. 6 & 7). On January 23, 2003, the district court dismissed plaintiff's amended complaint with prejudice, stating that "[t]he new paper does not provide any reason for forestalling the dismissal of that complaint as conditionally ordered by the Court." Add. at 17. On January 30, 2003, O'Connor filed a timely notice of appeal. Add. at 2 (doc. no. 9). O'Connor alleges in her amended complaint that, on or about September 3, 1999, she filed a charge with the EEOC "regarding a matter of religious discrimination." Add. at 3, ¶ 2. O'Connor alleges that the Commission was "negligent and grossly negligent in the handling of [her charge]," and that the Commission's actions violated the equal protection and due process provisions of the Constitution as well as the first and seventh amendments. Id. at ¶ 10. 2. District Court's Decision. The district court, relying on 28 U.S.C. § 1915(e)(2), ordered that O'Connor's claim would be dismissed if she did not show "good cause" within 35 days why it should not be dismissed. Add. at 16. The court stated that persons who believe that they have suffered employment discrimination, after exhausting the permissible administrative remedies, have the right to "file a civil action against the employing agency," but that there is no statutory provision "permit[ting] the employee to file a suit against the EEOC based on its resolution of the employee's complaint." Id. at 15. According to the court, the right to sue one's employer de novo "is the sole remedy for the kind of EEOC misfeasance" that O'Connor alleges. Id. at 15, citing Francis-Sobel v. U. of Maine, 597 F.2d 15, 16 (1st Cir. 1979). The court also ruled that, because a reasonable cause determination by the Commission is "nonbinding and nonfinal, investigative and not adjudicative," the failure to receive such a determination does not represent any loss that implicates the Due Process Clause. Add. at 16. SUMMARY OF ARGUMENT Dismissal of O'Connor's complaint against the EEOC for failure to state a claim was appropriate because none of the statutes on which O'Connor relies provides for a cause of action against the EEOC for its handling of her discrimination charge. Title VII provides neither an express nor an implied cause of action for alleged mishandling of charges. Moreover, Title VII authorizes suits only against certain specified entities, including employers, labor unions and employment agencies. The Commission plainly is not a union or employment agency, nor was it O'Connor's employer. Thus, the EEOC cannot be sued under Title VII for its alleged failure to investigate O'Connor's discrimination charge. Dismissal of O'Connor's complaint against the EEOC can also be upheld because the district court lacked subject matter jurisdiction. Title VII does not authorize jurisdiction in cases challenging the EEOC's processing of charges and thus, O'Connor cannot establish jurisdiction under 28 U.S.C. § 1343. Further, jurisdiction is lacking in the district court because Congress has not waived sovereign immunity for the EEOC for actions challenging the Commission's administrative management of charges. This Court therefore should affirm the district court's dismissal of O'Connor's complaint. ARGUMENT I. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF'S COMPLAINT AGAINST THE COMMISSION UNDER 28 U.S.C. § 1915(E)(2)(b). This Court reviews de novo a dismissal for failure to state a claim on which relief may be granted. under 28 U.S.C. § 1915(e)(2)(B).<3> Bradshaw v. Correctional Medical Services, Inc., 2001 WL 391497, **1 (1st Cir., April 12, 2001) (unpublished). O'Connor's claim against the Commission for improper investigation and disposition of her charge was properly dismissed because she cannot prove any set of facts in support of this claim which would entitle her to relief from the Commission. As the district court recognized, this court that has held that charging parties have no express or implied right of action against the Commission for its handling of their charges of employment discrimination against a private employer. Rather, 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. Francis-Sobel v. University of Maine, 597 F.2d 15, 17-18 (1st Cir.) cert. denied, 444 U.S. 949 (1979). See also, Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984); Stewart v. EEOC, 611 F.2d 679, 682 (7th Cir. 1979); Peavey v. Polytechnic Inst. of New York, 749 F. Supp. 58, 59 (E.D.N.Y. 1990) (citations omitted), aff'd, 940 F.2d 628 (2d Cir. 1991). 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"). Insofar as O'Connor claims that EEOC's disposition of her charge deprived her of her rights under Title VII, this Court has held that a complainant suffers no cognizable injury from an agency finding, which is "nonbinding and nonfinal, investigative and not adjudicative," due to the availability of de novo suit against the employer. Francis-Sobel, 597 F.2d at 17-18. See also McCottrell v. EEOC, 726 F.2d 350, 351 & n.1 (7th Cir. 1984); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 4 (2d Cir. 1997); Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991). Cf. Reed v. EEOC, 100 F.3d 957, 1996 WL 636171, at **1 (6th Cir. Oct. 30, 1996) (same under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.); Golyar v. McCausland, 738 F. Supp. 1090, 1095 (W.D. Mich. 1990) (same under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.). Congress intended that charging parties dissatisfied with the administrative resolution of their discrimination complaints be permitted a second opportunity for vindication through a de novo review in a judicial forum. See 42 U.S.C. § 2000e- 5(f)(3); 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"); Francis-Sobel, 597 F.2d at 17; Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210, 222 (7th Cir. 1978) (where EEOC allegedly fails to perform its statutory duties, plaintiff's remedy is to commence suit on his own behalf in district court, wherein he is entitled to review de novo of his claims). See also Ward, 719 F.2d at 314; Golyar, 738 F. Supp. at 1094 ("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"); Feldstein v. EEOC, 547 F. Supp. 97, 99 (D. Mass. 1982) ("the right to sue de novo was granted as the complete remedy for EEOC misfeasance"). Therefore, contrary to O'Connor's assertions, Title VII has not provided her with a private right of action against the EEOC and it was proper for the district court to dismiss her Title VII claims. II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S CLAIMS. Dismissal of O'Connor's claims against the Commission was also appropriate because the district court had no jurisdiction over the subject matter of the claim. No statute vests federal courts with jurisdiction over claims against the Commission for improper processing and/or disposition of a discrimination charge against a private employer, and Congress has not waived the Commission's sovereign immunity with respect to such claims. The United States district courts are courts of limited powers, exercising only such authority as Congress affords them by statute. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); see 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. Title VII prohibits discrimination, inter alia, on the basis of religion 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) (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 Commission 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. Evans v. C & P Tel. Co., 30 FEP Cases (BNA) 1814, 1815 (D. Md. 1981) (no subject matter jurisdiction under Title VII against EEOC for charge mishandling). 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). 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) (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), cert. denied, 466 U.S. 958 (1984); Cole v. United States, 657 F.2d 107, 109 (7th Cir.), cert. denied, 454 U.S. 1083 (1981). 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. Since there has been no waiver of immunity with respect to claims like O'Connor's, the Commission remains immune and there is no federal subject matter jurisdiction over such claims. Accordingly, the dismissal of O'Connor's claim against the Commission was proper and should be affirmed. CONCLUSION For the foregoing reasons, the district court's order dismissing this complaint should be affirmed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 Certificate of Compliance With Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 2280 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Wordperfect 9 in size 14 Times New Roman. Attorney for Equal Employment Opportunity Commission, Defendant-Appellee Dated: CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, on May 30, 2003, to the following: Carolyn E. O'Connor 24 Norman Street, Unit 210 Salem, MA 01970 John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 ********************************************************************************** <> <1> The docket sheet and other material from the record in this case is contained in an Addendum at the end of this brief. <2> The complaint does not name the respondent in the charge at issue, but O’Connor states in her brief on appeal that Northshore International Insurance Services was the “respondent of the subject case”. Pl’s Br. at 13. <3> O’Connor states that the standard of review in this case is “Utmost Good Faith and Special Diligence.” Br. at 11. The Commission was unable to discover any such standard of review in this Court or any other.