John Querim v. Equal employment Opportunity Commission 00-6224 00-6224 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOHN QUERIM, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al. Defendants-Appellees. On Appeal from the United States District Court for the Southern District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE C. GREGORY STEWART VINCENT J. BLACKWOOD General Counsel Assistant General Counsel PHILIP B. SKLOVER SUSAN L.P. STARR Associate General Counsel Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4736 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 JURISDICTIONAL STATEMENT 2 ISSUE PRESENTED 2 STATEMENT OF THE CASE 2 A.. Nature of the Case and Course of Proceedings 2 B. Statement of Facts 3 C. District Court Decision 4 SUMMARY OF ARGUMENT 6 STANDARD OF REVIEW 7 ARGUMENT 8 THE DISTRICT COURT CORRECTLY DISMISSED QUERIM'S CLAIMS AGAINST THE COMMISSION FOR POSITIONS IT ADVANCED AS AN ADVOCATE IN FEDERAL COURT 8 A. Because the EEOC's Filing of a Legal Brief in Another Case Did Not Adversely Affect Querim or Constitute Final Resolution of Querim's Rights, the EEOC's Actions Are Not Reviewable Under the APA 8 TABLE OF CONTENTS (cont.) B. Querim Failed to State a Claim under the Fifth Amendment to the United States Constitution 11 CONCLUSION 14 CERTIFICATE OF COMPLIANCE 15 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 10 Association of National Advertisers v. FTC, 565 F.2d 237 (2d Cir. 1977) 10 Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir. 1997)................................................................8 Beamon v. Brown, 125 F.3d 965 (6th Cir.) 10, 11 Bennett v. Spear, 117 S. Ct. 1154 (1997) 9 Chemical Weapons Working Group v. United States Department of the Army, 111 F.3d 1485 (10th Cir. 1997) 11 Conley v. Gibson, 355 U.S. 41 (1957) 7 EEOC v. New York Times, No. 92-6548 (S.D.N.Y.) 5 Environmental Defense Fund, Inc. v. Ruckelshaus, 142 F.2d 584 (D.C. Cir. 1971) 9 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir.), cert. denied, 444 U.S. 949 (1979) 12 Franklin v. Massachusetts, 505 U.S. 788 (1992) 10 Friedl v. City of New York, 210 F.3d 79 (2d Cir. 2000) 7 TABLE OF AUTHORITIES (cont.) CASES (cont.) Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979)............................................... 12 Gillis v. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985).................................9 Hannah v. Larche, 363 U.S. 420 (1960) 6, 11 ITT v. Electrical Workers, 419 U.S. 428 (1975) 9 Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697 (2d Cir. 2000) 7 Marine Mammal Conservancy, Inc. v. Department of Agriculture, 134 F.3d 409 (D.C. Cir. 1998) 8 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) 9 Southroad Associates v. International Business Machines, Inc., 216 F.3d 251 (2nd Cir. 2000) 7 Sykes v. James, 13 F.3d 515 (2d Cir. 1993) 7 United States v. Sperry Corp., 493 U.S. 52 (1989) 12 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) 12 TABLE OF AUTHORITIES (cont.) STATUTES, REGULATIONS AND RULES Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., passim 28 U.S.C. § 1291 2 28 U.S.C. §§ 1331, 1337, 1343, 1346, 1367 ............................................1 Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.,..................................1 National Labor Relations Act, 29 U.S.C. § 301 1 42 U.S.C. §§ 1981, 1985(3) and 1986 1, 3 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 1, 3 29 C.F.R. 1608.4(2)(i) 4 Fed. R. Civ. P. 12(b)(6)................................................4, 6, 7 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________ No. 00-6224 ______________________ JOHN QUERIM, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al. Defendants-Appellees. On Appeal from the United States District Court for the Southern District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE STATEMENT OF JURISDICTION The plaintiff asserted subject matter jurisdiction in the district court for its claims against the Commission under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., 28 U.S.C. §§ 1331, 1337, 1343, 1346, 1367, the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and the Fifth Amendment to the U.S. Constitution. The appellant asserted subject matter jurisdiction in the district court for his claims against the other named defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the National Labor Relations Act, 29 U.S.C. § 301, and 42 U.S.C. §§ 1981, 1985(3) and 1986. This Court has appellate jurisdiction over this appeal from the final order of the district court under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court correctly ruled that plaintiff's complaint against the EEOC challenging positions the agency took in another lawsuit fails to state a claim under either the Administrative Procedures Act or the Fifth Amendment. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from a final order of the district court dismissing plaintiff's claims against the Equal Employment Opportunity Commission and five other defendants, including the New York Newspaper Printing Pressmen's Union #2 ("Union"), and the New York Times Company ("Times").<1> In his complaint, plaintiff alleges, inter alia, that the EEOC violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., and the Fifth Amendment to the U.S. Constitution by filing a brief in an earlier action by the EEOC against the Union and the Times . JA 38-39.<2> The complaint also asserted claims against the other named defendants under 29 U.S.C. § 185, 42 U.S.C. §§ 1981, 1985(3), 1986, 42 U.S.C. 2000e et seq., and the Fifth Amendment to the U.S. Constitution. JA at 33-40. On March 6, 2000, the district court dismissed this action in its entirety, denied plaintiff's request to amend the complaint. JA 295-96. Judgment was entered on March 7, 2000. JA 296. On March 20, 2000, plaintiff filed a motion to reconsider, which the district court denied on April 26, 2000. JA 296. Plaintiff filed a notice of appeal on June 22, 2000. JA 1. B. Statement of Facts<3> John Querim, a white male, has been employed as a non-union pressman since 1992 and is presently on the Times's "casual seniority hiring list." JA 25. In 1995, the Times and the Union entered into a consent decree with the EEOC which provides, inter alia, a goal of 25% minority representation on the Times's "casual hiring list." JA 31. The decree also provided for a reformulation of the list "placing minorities (African-Americans, Hispanics, Asians and women) in a higher seniority in a 3/2 hiring ratio . . . if the eligible minorities signed a waiver by a certain date." JA 31-32. Querim alleges that "[o]n or around July ,[sic]1995 [his] CBA seniority was adversely affected by having at least 10 minorities with less experience and less contractual seniority placed in superior competitive seniority positions than he." JA 32. However, some "eligible minorities declined to sign the waiver by the initial Decree deadline date and did not receive the entitlement of enhanced seniority." Id. Thereafter, the EEOC, the Times and the Union agreed to give eligible minorities another opportunity to sign waivers and participate in the reordering of the casual list, although they were "fully aware" that the 25% goal for minority representation on the casual hiring list "had been attained." Id. After the district court approved this agreement, Querim alleges, "his seniority position was again adversely pushed back on or around December 26, 1996." Id. In his complaint in this action, Querim alleges that: though fully aware that there was no racial imbalance in the hiring list and that the 25% minority quota had been reached, the EEOC committed to a final agency action via its legal brief in support of the September 3, 1996 Order that encouraged race balancing and was beyond the EEOC's authority under Title VII and in violation of its own regulations 29 C.F.R. 1608.4(2)(i) that calls for race/sex conscious provisions to be maintained only as long as necessary to reach determined objectives. JA 38. Querim also alleges that "the EEOC urged that no notice be afforded to adversely affected employees like the Plaintiff of the second seniority override endorsed by the September 3, 1996 Order." Id. According to the complaint, the EEOC's conduct "went beyond Title VII statutory authority" and was "contrary to the procedural and substantive Due Process right of affected parties like Plaintiff." Id. C. District Court Decision On March 6, 2000, the district court granted the EEOC's motion under Fed. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim. JA 3. The court reasoned that even if it broadly construed Querim's complaint, Querim failed to state a claim under either the APA or the Fifth Amendment because neither the statute nor the constitutional provisions authorize the types of claims Querim brought against the EEOC. JA at 12-14. With respect to the APA claim, the court noted that, in order to state a claim Querim must show, first, that "he suffered a 'legal wrong' because of 'agency action' or that he has been 'adversely affected or aggrieved by agency action.'" JA 13 (quoting 5 U.S.C. § 702). Querim must also show that "the agency action is 'reviewable by statute' or 'final agency action for which there is no other adequate remedy in a court." Id. (quoting 5 U.S.C. § 704). According to the district court, Querim's APA claim against the EEOC "fails because he has not proven either the first or the second requirement." Id. Because the change to the consent decree advocated in the EEOC's brief in the action against the Times and the Union (EEOC v. New York Times, No. 92-6548 (S.D.N.Y.)) ("NYTimes") merely "makes a minor adjustment to a procedure described in the Decree" and "its intention and effect are wholly contemplated `within the four corners' of the Decree," it cannot be said that it rises to the level of a modification, which would involve either declaring new goals or identifying "new means to achieving the goals set forth in the Decree." JA 10. Accordingly, no hearing was required before entry of the September 3 order, and Querim "cannot prove that he suffered an adverse effect from the EEOC arguing in its brief that a hearing was not required." JA 13. In any event, the court held, the EEOC's filing of a legal brief is not "final agency action" subject to judicial review under the APA. The EEOC filed its brief "in its role as an advocate, based on the specific facts surrounding the enforcement of the Decree." Id. Accordingly, "[i]t cannot be construed as a regulation or as 'final agency action' of any kind." Id. The district court also dismissed Querim's claims under the Fifth Amendment. The court dismissed Querim's claim that the EEOC denied him due process when it argued in NYTimes that notice not be afforded him prior to entry of the September 3, 1996 order. According to the court, the Commission's action of filing a legal brief was not adjudicatory but rather advocacy and thus did not "directly affect" Querim's legal rights. JA 14 (citing Hannah v. Larche, 363 U.S. 420, 442 (1960)). The district court further held that Querim failed to state a claim under the Fifth Amendment's guarantee of equal protection of the laws. According to the court, the "Agreement and Order did not effect a new the racial/gender ratio, but simply provided another opportunity for eligible persons to take advantage of the provisions of the [Consent] Decree." JA 14. The district court did not address the EEOC's argument that dismissal of the APA claim was also warranted under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. SUMMARY OF ARGUMENT The district court correctly dismissed Querim's claims against the EEOC for failure to state a claim because none of the provisions on which Querim relies provide for a cause of action against the EEOC. The APA does not provide a cause of action against the Commission for arguments it advances in litigation. The only actions subject to judicial review under the APA are those which are final within the meaning of that statute. Querim points to no authority for his assertion that a litigation position taken by an agency can be the subject of an APA claim. For similar reasons, the district court lacked subject matter jurisdiction over the APA claims. Querim's claims under the Fifth Amendment likewise fail because the EEOC has not deprived Querim of a protected property interest or his right to equal protection under the laws. 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 Southroad Associates v. Int'l Business Machines, Inc., 216 F.3d 251, 253 (2nd Cir. 2000); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000). 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); see also, Sykes v. James, 13 F.3d 515, 518-19 (2d Cir. 1993) (same). Questions of subject matter jurisdiction are also reviewed de novo on appeal. Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). ARGUMENT THE DISTRICT COURT CORRECTLY DISMISSED QUERIM'S CLAIMS AGAINST THE COMMISSION FOR POSITIONS IT ADVANCED AS AN ADVOCATE IN FEDERAL COURT A. Because the EEOC's Filing of a Legal Brief in Another Case Did Not Adversely Affect Querim or Constitute Final Resolution of Querim's Rights, the EEOC's Actions Are Not Reviewable Under the APA Querim seeks review under the APA of the positions the EEOC advocated in a legal brief filed in another action. The district court correctly ruled that he failed to state a claim under the APA. The APA, by its terms, provides a right to judicial review of agency action only if such review is expressly provided by statute, or the challenged action is a "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. §§ 704. See Marine Mammal Conservancy, Inc. v. Dept. of Agriculture, 134 F.3d 409, 411 (D.C. Cir. 1998) (§ 704 establishes that judicial review under 5 U.S.C. § 702 is only available where the agency action is "final"). As this Court has recognized, neither Title VII nor any other statute provides for judicial review of EEOC's actions relating to employees of private employers. See Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir. 1997). Accordingly, the presence of "final agency action" is a prerequisite for review of EEOC's actions under the APA. "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, 117 S.Ct. 1154, 1168 (1997) (citations omitted). See also ITT v. Electrical Workers, 419 U.S. 428, 443 (1975) (agency actions are only "final" under the APA if they "have some determinative consequences for the party to the proceeding."). In this case, Querim's APA claims against the EEOC cannot stand because the Commission has not engaged in any form of reviewable final action affecting Querim. Querim contends that the "legal brief" filed by the EEOC in support of entry of the September 6, 1996 Agreement and Order exceeded its authority under Title VII and EEOC regulations because the brief advocated "race balancing" and "urged that no notice be afforded to adversely affected employees." JA at 38. EEOC's actions, whether they are preparatory to or in the context of a lawsuit, do not result in determinate consequences. Rather, "'only the district court may fix liability.'" Gillis v. Dept. of Health and Human Services, 759 F.2d 565, 574 (6th Cir. 1985) (citing Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984)). See also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 362-66 (1977) (Title VII provides a private right of action in lieu of empowering EEOC to make binding administrative determinations). Although Querim makes much of the arguments asserted in the Commission's legal memoranda, nothing in that document determines Querim's rights, nor could it, because the court, not the Commission, has the power to adopt and enforce the proposed alterations to the consent decree. See generally, Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) ("the final responsibility for enforcing Title VII is vested with the federal courts"). Therefore, because Querim's right to seek relief in district court is unaffected by argument the Commission advances in litigation, the district court correctly held that there was no "final action" that would support reviewing the Commission's actions under the APA. This absence of reviewable final action not only prevented Querim from being able to state a claim, but also precluded the district court from asserting subject matter jurisdiction over Querim'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, 801 (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 the APA claim); Ass'n of Nat'l Advertisers v. FTC, 565 F.2d 237, 239 (2d Cir. 1977) (if there is no final agency action to review under the APA, the court lacks subject matter jurisdiction). See also Beamon v. Brown, 125 F.3d 965, 967-68 (6th Cir.) (sovereign immunity precluded subject matter jurisdiction over plaintiff's claim under APA because the plaintiffs possessed an alternate remedy in the form of judicial review by the Court of Veterans Appeals); Chemical Weapons Working Group 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]"). The absence of final agency action, or the presence of an alternate adequate remedy, coupled with the doctrine of sovereign immunity, precludes subject matter jurisdiction under the APA. Beamon, 125 F.3d at 967-68. In this case, the EEOC's filing of a brief in litigation in no way resulted in final agency action. Thus, the above-cited cases require dismissal for lack of subject matter jurisdiction over Querim's APA claim. B. Querim Failed to State a Claim Under the Fifth Amendment to the U.S. Constitution The district court correctly ruled that Querim failed to state a claim under the Fifth Amendment to the U.S. Constitution. It is well-settled that where an agency does not adjudicate or make binding administrative determinations, the due process clause is inapplicable. Hannah v. Larche, 363 U.S. 420 (1960). The Supreme Court emphasized that a due process violation cannot occur where an agency's function is purely investigative, since the agency "does not and cannot take any affirmative action which will affect an individual's legal right." Id. at 441. The EEOC does not make binding determinations and thus no constitutional claims are implicated in the investigative, non-adjudicatory procedures of the EEOC under Title VII. See e.g., Francis-Sobel v. University of Maine, 597 F.2d 15, 18 (1st Cir.) (Fifth Amendment due process clause provides no relief for charging parties against the EEOC for even arbitrary and capricious action), cert. denied, 444 U.S. 949 (1979); Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (when only investigative powers of agency are at issue, Fifth Amendment due process considerations do not attach). Querim alleges that arguments proffered by the Commission, if adopted, would deprive Querim of a right to notice of a hearing. However, if Querim was denied any legal rights in NYTimes - and we do not think he was - it was caused by the district court's orders, and not by the EEOC's advocacy. Consequently, Querim cannot state a claim under the Fifth Amendment's Due Process clause. Querim's equal protection claim under the Fifth Amendment likewise fails.<4> Querim argues that the Commission violated his equal protection rights by advocating that the district court amend the decree to provide an additional period of time for eligible individuals to take advantage of the provisions of the decree. Similar to the due process claim, Querim cannot maintain an equal protection claim based on the position the Commission takes in litigation. Indeed, at one point in his brief, Querim acknowledges that fact. App't br. at 52 ("[l]itigation decisions or choices are in the realm of EEOC's discretion"). And that makes sense. Under Querim's theory, individuals could draw the EEOC into court every time the EEOC took a position in a race discrimination case, arguing that by advocating relief for race-based violations the Commission arbitrarily classifies individuals on the basis of their race, thereby creating a cognizable equal protection claim. It is the court, not the Commission, which is taking the action to which Querim objects, and if he believed that the court violated his rights, he should have sought review of the district court's order. Finally, to the extent that Querim is challenging the underlying consent decree, and the affirmative action plan contained therein, it is too late. Querim's recourse was to intervene in the decree proceedings when he was first aware of the pendency of the action between the EEOC, the Times and the Union. Querim has failed to allege that he took these steps. In light of the fact that Querim does not allege that he asserted his rights when he was given the opportunity to do so, his argument that he should be permitted to do so at this late date is unpersuasive. CONCLUSION For the foregoing reasons, this Court should affirm the district court's order. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ SUSAN L.P. STARR Attorney Equal Employment Opportunity Commission 1801 L Street, N.W., Ste. 7020 Washington, D.C. 20507 202/663-4726 November 13, 2000 CERTIFICATE OF COMPLIANCE Pursuant to 2d Cir. R. 32(b), I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 3276 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 8 processing system, in 13-point proportionally spaced type for text and 13-point type for footnotes. See Fed. R. App. P. 32(a)(5). _________________________ SUSAN L.P. STARR November 13, 2000 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: JOHN QUERIM (pro se) 35 W. 75th Street New York, NY 10023-2096 COUNSEL FOR APPELLEE NEW YORK TIMES and JOHN O'BRIEN Fredric Leffler PROSKAUER ROSE LLP 1585 Broadway New York, NY 10036-3000 COUNSEL FOR APPELLEE FOR NEW YORK NEWSPAPER PRINTING PRESSMEN'S UNION #2 and EDWARD FLEMING Carl Guida SKADDEN, ARPS, SLATE, MEAGER & FLOM 4 Times Square New York, NY 10036-6522 COUNSEL FOR APPELLEE SPENCER H. LEWIS David J. Kennedy U.S. DEPARTMENT OF JUSTICE Southern District of New York 100 Church Street New York, NY 10007 _________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Suite 7020 Washington, D.C. 20507 November 13, 2000 1 The complaint also names as defendants Spencer H. Lewis, director of the EEOC's New York District Office, Edward Fleming, president of the Union, and John O'Brien, the Deputy General Manager of the Times. Joint Appendix (JA) at 24. 2 JA refers to the joint appendix. 3 This statement is based entirely on the allegations in plaintiff's complaint. 4 Although the Fifth Amendment does not contain an equal protection clause, the due process clause does have an equal protection component, United States v. Sperry Corp., 493 U.S. 52 (1989), and the scope of the Fifth Amendment's right to equal protection is essentially the same as under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975).