IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ______________________________ No. 08-13777 ______________________________ ROGER REEVES, Plaintiff-Appellant, v. DSI SECURITY SERVICES et al. Defendants-Appellees. ________________________________________________________________ On Appeal from the United States District Court for the Middle District of Alabama The Honorable Myron H. Thompson Presiding ________________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ________________________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7026 Washington, D. C. 20507 (202) 663-4716 john.suhre@eeoc.gov Reeves v. DSI Security Services, No. 08-13777 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: Honorable Myron H. Thompson, District Court Judge Honorable Susan Russ Walker, U.S. Magistrate Judge Ronald S. Cooper, General Counsel, EEOC Carolyn L. Wheeler, Acting Associate General Counsel, EEOC Vincent J. Blackwood, Assistant General Counsel, EEOC John F. Suhre, Attorney, EEOC Danielle J. Hayot, Attorney, EEOC Equal Employment Opportunity Commission, Defendant Roger Reeves, Plaintiff DSI Security Services, Defendant American Buildings, Inc., Defendant David Turner Wiley, Attorney, DSI Security Services Chris Enloe, Attorney, American Buildings, Inc. Daniel M. Shea, Attorney, American Buildings, Inc. Paul R. Beshears, Attorney, American Buildings, Inc. TABLE OF CONTENTS STATEMEMT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . 2 2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . .4 3. Decisions below . . . . . . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE DISTRICT COURT PROPERLY DISMISSED REEVES' CLAIM THAT THE EEOC DEPRIVED HIM OF A FAIR AND IMPARTIAL ATTEMPT TO MEDIATE HIS ALLEGATIONS OF EMPLOYMENT DISCRIMINATION BY HIS FORMER EMPLOYER . . . . . . . . . . . . . . . . . .8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES Cases Page(s) Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977) . . . . . 9 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . . . . . . 9 Gibson v. Missouri Pac. R. Co., 579 F.2d 890 (5th Cir. 1978) . . . . . . 9 Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir. 1989) . .9 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) . . . . . . . . . . . . 9 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) . . . . . . . . . . . .7, 12 Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991) . . . . . .9 Sobel v. U. of Maine, 597 F.2d 15 (1st Cir. 1979) . . . . . . . . . . . .9 U. S. v. King, 395 U.S. 1 (1969) . . . . . . . . . . . . . . . . . . . 11 U.S. v. Mitchell, 445 U.S. 538 (1980) . . . . . . . . . . . . . . . . . 11 U.S. v. Testan, 424 U.S. 392 (1976) . . . . . . . . . . . . . . . . .6, 11 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) . . . . . . . . . . . . . . . 9 Statutes 5 U.S.C. § 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . . . . . 10 TABLE OF AUTHORITIES (cont'd) Statutes Page(s) 42 U.S.C. § 2000e-6(b) . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 2000e-16(c) . . . . . . . . . . . . . . . . . . . . . . . . 10 Miscellaneous Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 5 Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . 5 118 Cong. Rec. 7,168 (1972) . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT REGARDING ORAL ARGUMENT The district court's judgment dismissing the Equal Employment Opportunity Commission from this action was based on well-established legal principles establishing that there is no right of action against the EEOC for its handling of a charge of discrimination and that monetary damages against a federal agency are precluded where there is no waiver of sovereign immunity. Consequently, the EEOC does not believe that oral argument is necessary. IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 08-13777 ROGER REEVES, Plaintiff-Appellant, v. DSI SECURITY SERVICES et al. Defendants-Appellees. ________________________________________________________________ On Appeal from the United States District Court for the Middle District of Alabama The Honorable Myron H. Thompson Presiding ________________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ________________________________________________________________ STATEMENT OF JURISDICTION This is an appeal from a final judgment issued on June 26, 2008. Doc. no. 131 Judgment. As we discuss in more detail infra, at 12 n.3, the district court did not have jurisdiction over plaintiff's claims against the Equal Employment Opportunity Commission. Final judgment was entered on June 26, 2008, dismissing all of plaintiff's claims. Doc. no. 131. A notice of appeal was filed on July 7, 2008. Doc. no. 135. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court properly dismissed plaintiff's claims against the Equal Employment Opportunity Commission. STATEMENT OF THE CASE 1. Course of Proceedings. On July 2, 2007, the plaintiff commenced this action by filing a pro se complaint naming as defendants American Buildings Company, DSI Security Services, and the Equal Employment Opportunity Commission. Doc. no. 1, Complaint. The complaint alleges that American Buildings and DSI denied the plaintiff a raise because of his race and religion, and that the EEOC colluded with American Buildings and DSI to deny him a fair mediation during the investigation of his charge of discrimination. Id. The complaint does not state the statutory basis for the suit. However, it was submitted on a form complaint from the district court entitled "EEOC Complaint." On September 6, 2007, after the case had been referred to a magistrate judge (doc. no. 3, Order), the EEOC moved to dismiss the claims against the agency. Doc. no. 26, Motion to Dismiss. On October 1, 2007, the plaintiff filed a response to the Commission's motion to dismiss and moved for summary judgment in his favor. Doc. no. 38, Motion to Oppose. On February 28, 2008, the magistrate judge recommended 1) that the EEOC's motion to dismiss be granted, 2) that the plaintiff's motion for summary judgment be denied and 3) that the plaintiff's claims against the EEOC be dismissed with prejudice. Doc. no. 81 at 6, Recommendation of the Magistrate. On March 21, 2008, the district court overruled plaintiff's objections to the magistrate's recommendation, adopted the recommendation, and dismissed the claims against the EEOC with prejudice. Doc. no. 106, Judgment. On March 28, 2008, the plaintiff filed a notice of appeal from the judgment dismissing the EEOC. Doc. no. 109. On May 5, 2008, this Court dismissed his appeal (doc no. 08-11399), sua sponte, for lack of jurisdiction. On June 26, 2008, the district court entered judgment dismissing plaintiff's remaining claims against DSI and American Buildings Company. Doc. no. 131 Judgment. The plaintiff filed a notice of appeal on July 1, 2008 (doc. no. 132) and an amended notice of appeal on July 7, 2008. Doc. no. 135.<1> 2. Statement of Facts. Roger Reeves, a black man who is a member of the Pentecostal faith, filed a charge with the Commission on September 21, 2006, alleging that DSI Security Services denied him a raise because of his race and religion. Doc. no. 1, Part 2 at 2, Complaint. After attempts to mediate Reeves' charge were unsuccessful, the EEOC, on April 5, 2007, dismissed his charge and issued him a "Notice of Suit Rights." Id. at 3. On July 2, 2007, Reeves filed suit against DSI, American Buildings and the EEOC. Doc. no. 1, Complaint. In his complaint, Reeves alleges, inter alia, that the EEOC: 1) engaged in "collusive and discriminatory action" during mediation because an EEOC employee left the mediation session with DSI before an offer had been made; 2) showed "prejudice" because a Commission employee stated that Reeves did not have a case; and 3) deprived him of a "fair and impartial negotiation session." Id. at 2, 9. Reeves' complaint does not request any relief against the EEOC; however, in his response to the Commission's motion to dismiss his complaint, Reeves indicated that he requests an unspecified amount of monetary relief from the EEOC.<2> Doc. no. 38 pp. 3 & 4, Motion to Oppose. On September 26, 2007, the EEOC filed a motion to dismiss Reeves' claims against the agency pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Doc. no. 26, Motion to Dismiss. The EEOC argued that that the complaint should be dismissed because: 1) the district court lacked subject matter jurisdiction over the plaintiff's claim that he was dissatisfied with the agency's processing of his charge (id. at 4- 5); 2) Reeves' claim for monetary damages is barred by sovereign immunity (id. at 6); and 3) Reeves failed to state a claim upon which relief can be granted under either Title VII or the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (APA). Id. at 6-11 In his opposition to the EEOC's motion to dismiss, Reeves reiterated his claim that the EEOC mishandled his charge by depriving him of an "impartial and fair ADR process" and that, as a result, he "suffered monetary loss." Doc. no. 38 at 1, Motion to Oppose. Reeves also argued 1) that the EEOC is subject to all "laws and rules governing contract as other Citizens" (id. at 2); 2) that, "in defiance and with retaliatory actions," the EEOC removed from its website procedures "to take against a bad ADR mediator" (id.); and 3) that arbitration is reviewable under "Section 10(b)[2] of title 9." Id. at 5. In response, the EEOC reasserted the well-established principle that Title VII does not permit a charging party who is dissatisfied with the EEOC's handling of his charge to file suit against the agency. Doc. no. 40, EEOC's Reply. Rather, the statute permits the individual to file a de novo action against the employer in federal district court. Id. at 2. The EEOC again noted that any claim for monetary damages against it is barred by sovereign immunity, and further noted that the EEOC was not aware of the existence of any guidelines or procedures for dealing with a bad ADR mediator and has never asserted that a charging party can sue the EEOC if dissatisfied with the processing of a charge. Id. at 3. Lastly, the EEOC noted that Section 10(b)(2) of Title 9 is a citation to the Federal Arbitration Act, "which provides for judicial facilitation of private dispute resolution," which is inapplicable to this case. Id. 3. Decisions below. The magistrate concluded that Reeves was "barred by the sovereign immunity of the United States" from obtaining monetary damages from the EEOC. Doc. no. 81 at 3, Recommendation of the Magistrate (citing U.S. v. Testan, 424 U.S. 392, 399 (1976)). The magistrate noted that Reeves "cites no Congressional waiver of sovereign immunity which would allow this court to entertain his present suit against the EEOC for monetary damages, and the court is aware of none. Id. The magistrate further noted that "the injunctive relief that Reeves expressly seeks - back pay and reinstatement to his former job - would be granted, if at all, against plaintiff's employer," not against the EEOC. Id. at 3-4. The magistrate also concluded that, even if Reeves' complaint is construed to allege a claim under the APA, it would fail because the EEOC's actions with respect to his charge are not reviewable under that statute. Id. at 5 (citing 5 U.S.C. § 704). According to the magistrate, "the EEOC's action in investigating and mediating plaintiff's charge of discrimination - even if incompetent, collusive fraudulent and discriminatory as alleged by the plaintiff - is not a final agency action because it 'did not determine [plaintiff's] rights or have legal consequences.'" Id., quoting Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002). The district court adopted the magistrate's recommendation without further discussion, and dismissed the plaintiff's claims against the EEOC with prejudice. Doc. no. 106, Judgment. SUMMARY OF ARGUMENT In his opening brief on appeal, Reeves offers no arguments as to why the district court erred in dismissing his claims against the EEOC. Consequently, he has waived any challenge to the district court's judgment. In any event, the district court was correct in dismissing Reeves' suit against the EEOC because: 1) Title VII does not create a right of action against the EEOC for the alleged mishandling of a charge of discrimination; 2) Reeves' claim for monetary damages is barred by sovereign immunity; and 3) Reeves' claim cannot be brought under the Administrative Procedures Act. ARGUMENT THE DISTRICT COURT PROPERLY DISMISSED REEVES' CLAIM THAT THE EEOC DEPRIVED HIM OF A FAIR AND IMPARTIAL ATTEMPT TO MEDIATE HIS ALLEGATIONS OF EMPLOYMENT DISCRIMINATION BY HIS FORMER EMPLOYER. Reeves alleges in this action that the EEOC injured him by denying him a fair and impartial opportunity to mediate his allegations of race and religious discrimination against his former employer. Doc. no. 1 at 2, 9, Complaint. The magistrate judge correctly concluded that Reeves' complaint against the EEOC should be dismissed because: 1) "Title VII does not provide a right of action for a charging party against the EEOC as the enforcement agency" (doc. no. 81 at 4, Recommendation of the Magistrate); 2) Reeves' claim for monetary damages against the Commission is barred by sovereign immunity (id. at 3); and 3) even construing Reeves' complaint to include a claim under the APA, that statute does not apply because EEOC's action is not made reviewable by statute and is not a final agency action. Id. at 5. In his opening brief on appeal, Reeves asserts that the district court erred in dismissing his complaint against the EEOC, but he presents no arguments suggesting how the court erred. Merely mentioning in a brief on appeal that a district court erred, "absent any specific argument as to how the court was in error," is "insufficient to present the matter for adjudication on appeal." See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (citing Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir. 1977)). Accordingly, Reeves has abandoned these issues on appeal. Greenbriar, 881 F.2d at 1573 n.6. In any event, even assuming he had preserved these issues, the magistrate's conclusions are legally unassailable. It is well established, as the magistrate noted, that there is no cause of action against the EEOC for its handling of a charge of discrimination. See Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984); Ward v. EEOC, 719 F.2d 311, 312-14 (9th Cir. 1983); Sobel v. U. of Maine, 597 F.2d 15, 17 (1st Cir. 1979); Georator Corp. v. EEOC, 592 F.2d 765, 769 (4th Cir. 1979). In Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978), the Court explained that claims like Reeves' alleging that the EEOC mishandled a charge must be dismissed because "[Title VII] confers no right of action against the enforcement agency. Nothing done or omitted by EEOC affected [Plaintiff's] rights." Rather, Title VII permits a dissatisfied complainant to pursue his or her own remedy by seeking a trial de novo in the district court. See 42 U.S.C. § 2000e-5(f)(1). The legislative history of Title VII makes clear that this remedy was intended in part to ensure that an individual's rights would not be impaired by "agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution," 118 Cong. Rec. 7,168 (1972). Accordingly, the district court's judgment dismissing the EEOC from this action should be affirmed.<3> The nature of the relief Reeves seeks from the Commission is not apparent from his complaint. However, in his response to the Commission's motion to dismiss his complaint (doc. no. 38 pp. 3 & 4, Motion to Oppose) and in his brief on appeal (Br. at 15), Reeves makes a request for monetary damages from the EEOC. As the magistrate properly concluded, Reeves' claim for monetary damages is barred by sovereign immunity. Doc. no. 81 at 3, Recommendation of the Magistrate. It is well established that the United States and its agencies cannot be sued for money damages absent a waiver of sovereign immunity. See U.S. v. Mitchell, 445 U.S. 535, 538 (1980); U.S. v. Testan, 424 U.S. 392 (1976). Moreover, such a waiver "cannot be implied but must be unequivocally expressed." Mitchell, 445 U.S. at 538, quoting U.S. v. King, 395 U.S. 1, 4 (1969). Reeves, neither in district court nor here, points to any Congressional waiver of sovereign immunity that would permit him to pursue monetary relief against the EEOC and we are aware of no such waiver. Lastly, the magistrate correctly ruled that, even if Reeves' complaint is construed to include a claim under the APA, it should be dismissed. Doc. no. 81 at 5, Recommendation of the Magistrate. As the magistrate recognized, that act permits judicial review of agency actions that are either "made reviewable by statute" or that are "final agency actions" not subject to "other adequate remedy in a court." 5 U.S.C. § 704. The magistrate correctly concluded that, for the reasons stated above, the EEOC's action in investigating and mediating Reeves' charge, is not reviewable by statute. Likewise, the magistrate was correct in concluding that the EEOC's action is not a final agency action because "'it did not determine [plaintiff's] rights or have legal consequences.'" Doc. no. 81 at 5, Recommendation of the Magistrate (quoting Newsome v. EEOC, 301 F.2d 227, 232 (5th Cir. 2002)). The dismissal of the EEOC from this action did not deprive Reeves of any right of recourse against either DSI Security Services or American Buildings, Inc., on the merits of his discrimination claim. Accordingly, the district court's dismissal of the EEOC from this case should be affirmed. CONCLUSION For the foregoing reasons, the judgment of the district court dismissing the Commission from this action should be affirmed. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.go CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed.R.App.P. 32(a)(7)(B) because it contains 2613 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 it has been prepared in a proportionally spaced typeface using Microsoft Word 20003 in Times New Roman 14 point. John F. Suhre Attorney for Equal Employment Opportunity Commission Dated: CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed first class this 18th day of November, 2008, to each of the following: Roger Reeves, Pro Se B-12 Chattahoochee Court Eufaula, Alabama 36027 David Turner Wiley, Esq. Jackson Lewis LLP-BHAM First Commercial Bank Building 800 Shades Creek Parkway, Suite 870 Birmingham, Alabama 35209 Attorney for DSI Security Services Chris Enloe, Esq. Nelson Mullins Riley & Scarborough, LLP 201 17th Street, N.E. Suite 1700 Atlanta, Georgia 30363 Attorney for American Buildings Inc. John F. Suhre Attorney Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov *********************************************************************** <> <1> The plaintiff's first notice of appeal named only the judgment dismissing his claim against the EEOC. Doc. no. 109. His amended notice of appeal added the judgment granting summary judgment for DSI (doc. no. 104) and the judgment entered on June 26, 2008 (doc. no. 131) which entered judgment in favor of both DSI and American Buildings. <2> In his opening brief on appeal, Reeves asserts that he is seeking $13,000,000 in damages against all defendants. Br. at 15. <3> The EEOC argued below that the district court lacked subject matter jurisdiction over Reeves' challenge to the EEOC's handling of his charge because Title VII does not confer jurisdiction over claims against the EEOC in its capacity as an enforcement agency. Doc. no. 26 at 5-6, Motion to Dismiss. The magistrate did not address this basis for dismissing Reeves' complaint and Reeves likewise fails to address it. While it is unnecessary for this Court to address this issue in order to affirm the dismissal of Reeves' claims against the EEOC, we adhere to the proposition that the district court lacked jurisdiction over those claims. As the Commission argued below, Title VII contains three grants of jurisdiction, none of which encompasses Reeves' claims. See id. (citing 42 U.S.C. § 5(f)(3) (jurisdiction over actions brought against employers by private parties, the Attorney General or the Commission); 42 U.S.C. § 2000e-6(b) (jurisdiction over actions by EEOC in pattern or practice cases); and 42 U.S.C. § 2000e-16(c) (jurisdiction over actions by federal employees or applicants against federal employers).