IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-2240 SELINA ROBERTS, Plaintiff-Appellant, v. UNIVERSITY OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; SHELLEY GREEN; NEAL HAMBURG; WALTER WALES; CLAIRE FAGAN; HOMER FLOYD; CHARLES BROWN; and MARIE TOMASSO, Defendants-Appellees. On Appeal from the United States District Court for the Eastern District of Pennsylvania BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, CHARLES BROWN AND MARIE TOMASSO AS APPELLEES NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 3 Nature of the Case 3 Statement of Facts 4 District Court Decision Dismissing Claims Against the EEOC 5 STATEMENT OF STANDARD OF REVIEW 6 SUMMARY OF ARGUMENT 7 ARGUMENT 8 I. THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFF'S CLAIMS AGAINST THE EEOC FOR FAILURE TO STATE A CLAIM. 8 II. THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S CLAIMS AGAINST THE EEOC. 18 CONCLUSION 22 CERTIFICATE RE: BAR MEMBERSHIP 23 CERTIFICATE OF SERVICE 24 TABLE OF AUTHORITIES CASES American Airlines, Inc. v. Herman, 176 F.3d 283 (5th Cir. 1999) 19 American Disabled for Attendant Programs Today v. HUD, 170 F.3d 381 (3d Cir. 1999) 16, 20 Archie v. Chicago Truck Drivers Union, 585 F.2d 210 (7th Cir. 1978) 9 Baba v. Japan Travel Bureau International, Inc., 111 F.3d 2 (2d Cir. 1997) 8, 10, 16 Becker v. Sherwin-Williams, 717 F. Supp. 288 (D.N.J. 1989), aff'd mem., 9 F.3d 1539 (3d Cir. 1993) 10 Connor v. EEOC, 736 F. Supp. 570 (D.N.J. 1990) 14 Consolidated Edison Co., Inc. v. DOE, 247 F.3d 1378 (2d Cir. 2001) 18 Feldstein v. EEOC, 547 F. Supp. 97 (D. Mass. 1982) 21 Flue-Cured Tobacco Cooperative Stabilization Corp. v. EPA, 313 F.3d 852 (4th Cir. 2002) 19 Forbes v. Reno, 893 F. Supp. 476 (W.D. Pa. 1995), aff'd mem., 91 F.3d 123 (3d Cir. 1996) 9, 12, 14, 17-18, 21 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir. 1979) 9, 13, 20-21 General Motors Corp. v. Volpe, 457 F.2d 922 (3d Cir. 1972) 20 Georator v. EEOC, 592 F.2d 765 (4th Cir. 1979) 9, 12-13, 21 Gibson v. Missouri Pacific R.R. Co., 579 F.2d 890 (5th Cir. 1978) 9 Hall v. EEOC, 456 F. Supp. 695 (N.D. Cal. 1978) 21 Hanna v. Larche, 363 U.S. 420 (1960) 12 Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160 (3d Cir. 2001) 6 ITT. v. Electrical Workers, 419 U.S. 428 (1975) 17 Idaho Watersheds Project v. Hain, 307 F.3d 815 (9th Cir. 2002) 19 Independent Petroleum Association of America v. Babbitt, 235 F.3d 588 (D.C. Cir. 2001) 19 Johnson v. Rodriguez, 943 F.2d 104 (1st Cir. 1991) 21 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) 9, 21 Mitchell v. EEOC, 888 F. Supp. 710 (E.D. Pa. 1995) 21 National Parks Conservation Association v. Norton, 324 F.3d 1229 (11th Cir. 2003) 19 Neptune v. Burlington County College, 66 FEP Cases (BNA) 897, 898; 1993 WL 273995 (E.D. Pa. 1993) 10 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) 11, 13 Pearlswig v. Randolph, 497 F. Supp. 659 (D. Mass. 1980) 21 Pinker v. Roche Holdings Ltd., 292 F.3d 361 (3d Cir. 2002) 7 Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991) 4, 9 Shea v. Office of Thrift Supervision, 934 F.2d 41 (3d Cir. 1991) 19 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997) 8, 10, 16 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) 20 Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979) 9-10, 17-18 Temple University v. Rehnquist, 2002 WL 31012237 (3d Cir. 2002) (unpublished) 20 Town of Sanford v. U.S., 140 F.3d 20 (1st Cir. 1998) 19 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) 9, 17-18 West Penn Power Co. v. EPA, 860 F.2d 581 (3d Cir. 1988) 19 STATUTES 5 U.S.C. § 704 16-18 28 U.S.C. § 1291 2 § 1331 1-2, 5, 20 § 1337 20 § 1343(a)(3) 1 § 1915(d) 22 Title VII of the Civil Rights Act of 1964 § 706(b), 42 U.S.C. § 2000e-5(b) 12 § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) 10, 13, 18 MISCELLANEOUS 118 Cong. Rec. 7,166 (1972) 11 Rotunda, Ronald D., & John E. Nowak, Treatise on Constitutional Law, 2d ed. (1992) 15 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-2240 SELINA ROBERTS, Plaintiff-Appellant, v. UNIVERSITY OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; SHELLEY GREEN; NEAL HAMBURG; WALTER WALES; CLAIRE FAGAN; HOMER FLOYD; CHARLES BROWN; and MARIE TOMASSO, Defendants-Appellees. On Appeal from the United States District Court for the Eastern District of Pennsylvania BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, CHARLES BROWN AND MARIE TOMASSO AS APPELLEES The district court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3) over plaintiff’s claims against the University of Pennsylvania alleging violations of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Rights Act (“PHRA”). However, the district court did not have subject matter jurisdiction over any of plaintiff’s claims against the Equal Employment Opportunity Commission or its officials. Plaintiff’s claim under the Administrative Procedures Act (“APA”) failed to identify a “final agency action,” and she had an adequate alternative judicial remedy. See infra at pp. 16-18. Her due process claim was “wholly insubstantial and frivolous,” and the district court therefore lacked jurisdiction under 28 U.S.C. § 1331 over that claim. See infra at pp. 11-14, 20-22. The district court entered a final judgment disposing of all claims against all parties on April 5, 2002. App. 2:12-13.1 Roberts filed a timely notice of appeal on May 3, 2002. App. 1, 2:13. This court accordingly has jurisdiction over this appeal under 28 U.S.C. § 1291. 1. Whether the district court correctly dismissed plaintiff’s claims against the Equal Employment Opportunity Commission and its officials for alleged deficiencies in the processing and disposition of her charge of discrimination because they fail to state a claim upon which relief may be granted. 2. Whether the district court lacked subject matter jurisdiction over plaintiff’s claims against the Equal Employment Opportunity Commission and its officials. : This is an appeal from a final judgment entered by the United States District Court for the Eastern District of Pennsylvania (Newcomer, J.). The plaintiff, proceeding pro se, filed her initial complaint on September 6, 2000, and an amended complaint on February 1, 2001. R. 5, 10.2 She alleges that the University of Pennsylvania, her former employer – along with several individuals affiliated or formerly affiliated with that institution – discriminated against her on the basis of her sex and race, retaliated against her, and defamed her. App. 3:6-7. She also alleges that the Pennsylvania Human Rights Commission (“PHRC”) and its executive director defamed her and violated her rights under the United States and Pennsylvania constitutions and under the PHRA by failing to investigate her complaint fully and fairly. App. 3:4-5, 7-8. Finally, plaintiff alleges that the Equal Employment Opportunity Commission and two of its employees (Marie Tomasso, the director of the agency’s Philadelphia office; and Charles Brown, an employee in that office) violated her rights under the federal and state constitutions and the APA by failing to investigate her charge fully, fairly and within a reasonable time period.3 App. 3:5, 8-9. The district court dismissed Roberts’ claims against the EEOC before trial, along with her claims against the PHRC defendants and some of her claims against the University of Pennsylvania defendants. R. 14, 23, 37, & 75. After a three-day jury trial in early April 2002, a jury found for the university defendants on all remaining claims, and the district court entered final judgment dismissing the case. R. 117. Roberts filed a timely appeal. R. 121: App. 1. : Selina Roberts was employed by the University of Pennsylvania as the assistant director of its Afro-American Studies Program from October 1991 to January 1994. App. 4:2. She alleges that her supervisor sexually harassed her, repeatedly refused to evaluate her performance, threatened her with negative references if she resigned, and assaulted her. App. 3:6. Roberts also alleges that university officials failed to correct the misconduct and that, on January 24, 1994, the university fired her because of her sex and race and in retaliation for her complaints about her supervisor’s misconduct. App. 3:6-7. After she was fired, Roberts filed a complaint with the PHRC and a charge with the EEOC. App. 4:4. In June 1998, the PHRC completed its investigation of Roberts’ complaint and found no probable cause to believe that discrimination had occurred. App. 4:4. The EEOC adopted the PHRC’s finding, and in June 2000 the EEOC notified plaintiff of her right to sue the university. App. 4:5. : In an order entered May 16, 2001, the district court dismissed all of Roberts’ claims against the EEOC. R. 23; App. 5. Initially, the court rejected the EEOC’s argument that the court lacked jurisdiction over all of Roberts’ claims against the EEOC. The court held that it had jurisdiction over her constitutional claims and possibly her APA claims against the EEOC under 28 U.S.C. § 1331. App. 5:5-6. However, the court dismissed all of Roberts’ claims against the EEOC under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. App. 5:6-8. The court held that “plaintiff’s allegation that the EEOC improperly handled her claims is not reviewable by this Court under the APA because plaintiff has an adequate remedy in court, [i.e.,] plaintiff can bring an employment discrimination case against her former employer.” 5:7. The district court ruled that Roberts also failed to state a claim of a constitutional violation. Assuming arguendo that the EEOC failed to investigate her charge properly, the court ruled, “the EEOC has not deprived plaintiff of any rights secured under the Fifth Amendment [because] even after the EEOC denied her Title VII claim, she maintained the right to file her Title VII claim in court.” 5:7-8. In an order entered on July 10, 2003, the district court denied plaintiff’s motion to alter its earlier judgment, finding that Roberts had failed to satisfy the standard for reconsideration and noting that “the Court remains convinced it properly dismissed plaintiff’s claims.” R. 40. The district court’s rulings regarding subject matter jurisdiction and the adequacy of plaintiff’s claims under Rule 12(b)(6) are subject to de novo review by this Court. See Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 164-65 (3d Cir. 2001) (district court ruling on motion to dismiss for lack of subject matter jurisdiction “is essentially a legal issue and our standard of review is plenary”); Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) (“We exercise de novo review over dismissal of claims under Fed. R. Civ. P. 12(b)(6).”). In reviewing a dismissal for failure to state a claim, this Court “accept[s] all factual allegations as true, construe[s] the complaint in the light most favorable to the plaintiff, and determine[s] whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker, 292 F.3d at 374 n.7. Roberts failed to state a claim against the EEOC under the Due Process Clause because the EEOC’s proceedings were investigative rather than adjudicatory, and they did not harm any of Roberts’ cognizable liberty or property interests. She stated no claim under the APA because nothing the EEOC did or failed to do amounted to a final agency action under the APA, and she had an adequate judicial remedy. The district court therefore properly dismissed her claims against the EEOC for failure to state a claim. This Court could also affirm the district court’s dismissal on the alternative ground that that court lacked subject matter jurisdiction over plaintiff’s claims against the EEOC. Her due process claim was frivolous, since it has been rejected repeatedly by the courts. Nor did the district court have jurisdiction over her APA claim, since she failed to identify any final agency action and she had an adequate alternative judicial remedy. Roberts’ claims against the EEOC for improper investigation and disposition of her charge were properly dismissed because she cannot prove any set of facts in support of these claims that would entitle her to relief. Every court that has considered the issue has concluded that charging parties have no express or implied right of action against the EEOC for its alleged failure to process properly their charges of employment discrimination against a private employer. See, e.g., Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (where plaintiff alleged negligence, fraud, and other impropriety in the EEOC’s processing of his charge, holding that “Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC’s alleged negligence or other malfeasance in processing an employment discrimination charge”); Baba v. Japan Travel Bureau Int’l, Inc., 111 F.3d 2, 4 (2d Cir. 1997) (no cause of action under Title VII against the EEOC for improper processing of charge); Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991) (“The circuits which have addressed the issue have uniformly held that no cause of action against the EEOC exists for challenges to its processing of a claim.”); McCottrell v. EEOC, 726 F.2d 350, 351-52 (7th Cir. 1984) (Title VII provides no express or implied right of action against the EEOC); Ward v. EEOC, 719 F.2d 311, 312-14 (9th Cir. 1983) (same under Title VII and APA); Stewart v. EEOC, 611 F.2d 679, 681-82 (7th Cir. 1979) (same); Francis-Sobel v. University of Maine, 597 F.2d 15, 17-18 (1st Cir. 1979) (no violation of Due Process Clause even if the EEOC’s efforts proved “worse than useless”); Georator v. EEOC, 592 F.2d 765, 767-68 (4th Cir. 1979) (no cause of action against the EEOC under APA or Due Process Clause); Archie v. Chicago Truck Drivers Union, 585 F.2d 210, 222 (7th Cir. 1978) (no cause of action based on the EEOC’s failure to perform its statutory duty to investigate); Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978) (“Title VII . . . confers no right of action against the enforcement agency."). Although this Court has not issued a published opinion on the issue, district courts in the Third Circuit have consistently held that a charging party does not have a cause of action against the EEOC for alleged deficiencies in the agency’s handling of a charge of discrimination. See, e.g., Forbes v. Reno, 893 F. Supp. 476, 481-83 (W.D. Pa. 1995) (dismissing claims against the EEOC under the APA and the Due Process clause for lack of jurisdiction and failure to state a claim), aff’d mem., 91 F.3d 123 (3d Cir. 1996); Neptune v. Burlington County College, 66 FEP Cases (BNA) 897, 898; 1993 WL 273995 (E.D. Pa. 1993) (no express or implied cause of action against the EEOC under Title VII); Becker v. Sherwin-Williams, 717 F. Supp. 288, 294 (D.N.J. 1989) (“Courts that have considered whether the EEOC may be sued as a result of its handling or disposition of a charge have uniformly held that such suits are precluded.”), aff’d mem., 9 F.3d 1539 (3d Cir. 1993). These courts have noted that, instead of providing a cause of action against the EEOC for deficiencies in charge processing, Title VII 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. See Smith, 119 F.3d at 34 (citing § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1)). The legislative history of the 1972 amendments to Title VII shows that Congress intended that the charging party’s right to sue her employer would be her sole remedy for any failure by the EEOC to process her charge properly. See id.; Baba, 111 F.3d at 6; Stewart, 611 F.2d at 683 (“‘We are convinced . . . that Congress intended that the private right of action preserved by § 706(f)(1) be the all-purpose remedy for charging parties dissatisfied with the EEOC's handling of their charge.’”) (citation omitted). The section-by-section analysis attached to the conference report on H.R. 1746, the Equal Employment Opportunity Act of 1972, which was described by the Supreme Court in Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 365-66 (1977), as “the final and conclusive confirmation of the meaning of § 706(f)(1),” states that that provision preserves the right of the charging party “to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance, dismissal of the charge or unsatisfactory resolution.” 118 Cong. Rec. 7,166, 7,168 (1972). Roberts attempted to state claims against the EEOC under various constitutional provisions and under the APA. Although she did not expressly rely on the Due Process Clause of the Fifth Amendment, the district court gave her papers a generous reading and identified that clause as the one under which her allegations most naturally fall. App. 5:7. Roberts alleged that the EEOC failed to investigate her charge fully, fairly and promptly. The district court properly held that these allegations do not state a claim that the EEOC violated plaintiff’s constitutional right to due process. App. 5:7-8. It has been well settled since at least 1960 that the requirements of due process vary significantly with the nature of the proceeding. Hanna v. Larche, 363 U.S. 420, 442 (1960). The Hannah Court distinguished between adjudicatory and investigative administrative proceedings, id. at 440-41 & passim. The EEOC’s investigation of a charge is clearly an investigative proceeding and not an adjudicatory one. See Georator, 592 F.2d at 768-69 (so holding); Forbes, 893 F. Supp. at 483 (same). If the EEOC’s investigation of a charge results in a finding on its merits – i.e., a determination that there is or is not “reasonable cause to believe that the charge is true,” § 706(b) – that finding does not determine any party’s legal rights. It is merely an administrative finding, and it is preparatory to judicial proceedings where the charging party’s claim will be reviewed de novo. See Georator, 592 F.2d at 768 (“Standing alone, [the EEOC’s determination of reasonable cause] is lifeless, and can fix no obligation nor impose any liability . . . . It is merely preparatory to further proceedings.”); Forbes, 893 F. Supp. at 483 (“the EEOC does not make determinations affecting the legal rights of individuals”). Only a judicial proceeding – a lawsuit brought by the charging party or the EEOC – can determine the parties’ rights and liabilities. Since an adverse determination by the EEOC does not affect a charging party’s legal rights, it is even clearer that the EEOC’s failure to complete its investigation within a certain period of time does not affect the charging party’s legal rights. In fact, charging parties need not wait for the EEOC to finish processing their charges, because Congress authorized them to sue their employers starting 180 days after they file their charges if they wish to do so. See Occidental Life, 432 U.S. at 361 (starting 180 days after a charge has been filed, a charging party “dissatisfied with the progress the EEOC is making on his or her charge . . . may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court”); § 706(f)(1). Accordingly, the EEOC’s alleged failure to process a charge properly or promptly cannot violate the due process rights of the charging party. See, e.g., Francis-Sobel, 597 F.2d at 17-18 (the charging party’s “underlying, fundamental statutory” right to non-discriminatory treatment can be vindicated in court, and the loss of her supplementary, derivative statutory right “to administrative assistance in the vindication of [that underlying fundamental right]” does not implicate due process considerations); Georator, 592 F.2d at 768-69 (“[t]he Commission’s determination of reasonable cause . . . has no effect until either the Commission or the charging party brings suit in district court,” and the determination therefore did not violate the due process rights of the employer); Forbes, 893 F. Supp. at 483 (plaintiff’s allegations that the EEOC failed to investigate his charges properly do not state a due process claim, because “the EEOC’s function is investigative,” and plaintiff can sue his employer in court). Cf. Connor v. EEOC, 736 F. Supp. 570, 572-73 (D.N.J. 1990) (federal employee alleged that EEOC failed to give him a de novo review of his claim; court held that plaintiff failed to state a due process claim because “[a]ny EEOC determination is non-final,” and “the complaining party may appeal to the federal district court”). In her brief on appeal, Roberts argues that the district court erred in construing her constitutional claims as due process claims. Aplt. Br. at 15. She argues that the court should have considered her allegations that the EEOC violated the specific constitutional provisions enumerated in her complaint. Id. at 15-16. Although Roberts cited several other constitutional provisions that the EEOC allegedly violated, she has based her arguments solely on her beliefs about what those provisions should mean, and she has not cited any authority either in the district court or in this Court showing that the courts have found violations of those rights on facts similar to the ones Roberts has alleged here. Accordingly, the district court did not err in failing to address each of these provisions separately. In any event, plaintiff’s rights under these provisions were not violated by the EEOC’s alleged mishandling of her charge. For example, Roberts alleges violations of her First Amendment right to “petition the Government for the redress of grievances.” But the right to petition guarantees only that the entity addressed receives and considers the petition, and not that it grants the petition. It is inconceivable that the Founders meant to guarantee that Congress would grant every petition it receives. See 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law, 2d ed., §§ 20.53-.54 (1992). Here it is undisputed that the EEOC received plaintiff’s charge and considered it. Accordingly, Roberts has not stated a claim under the First Amendment. Similarly, Roberts’ reliance on sections 1 and 11 of Article I of the Pennsylvania constitution is misplaced. Section 1 states that one of the “inherent and indefeasible rights” belonging to all persons is the right to protect one’s reputation, and section 11 guarantees citizens of Pennsylvania access to the commonwealth courts to seek relief for, among other things, injury to reputation. Roberts has not shown how these provisions are relevant to her allegations that the EEOC failed to process her charge properly. Nor has she alleged facts showing that anything the EEOC did or failed to do caused a cognizable injury to her reputation, or that the EEOC did anything to impede her access to the commonwealth’s courts. In addition to her allegations of constitutional violations, Roberts also sought judicial review of the EEOC’s conduct under the Administrative Procedures Act. The district court properly held that plaintiff failed to state a claim under the APA because she alleged no agency action entitling her to judicial review under that law. “Section 704 of the APA allows judicial review of an agency action only if (1) the statute expressly authorizes it, or (2) the action at issue is a ‘final agency action for which there is no other adequate remedy in a court.’” American Disabled for Attendant Programs Today v. HUD, 170 F.3d 381, 389 (3d Cir. 1999) (hereinafter, “ADAPT”). Title VII does not expressly authorize a lawsuit against the EEOC for its alleged mishandling of a charge. See, e.g., Smith, 119 F.3d at 34; Baba, 111 F.3d at 4 (“Title VII provides no cause of action--either express or implied--against the EEOC for claims of procedural defects.”). Nor does the EEOC’s alleged misfeasance constitute a “final agency action for which there is no other adequate remedy in a court.” Even though the EEOC’s no-reasonable-cause finding may have been the agency’s last action in a chronological sense, it was not a “final agency action” for purposes of § 704. The Supreme Court held in ITT v. Electrical Workers, 419 U.S. 428, 443 (1975), that the term “final” in the APA means an order or action that has “some determinate consequences for the party to the proceeding.” The EEOC’s finding of no reasonable cause had no such determinate legal consequences for Roberts. See, e.g., Ward, 719 F.2d at 314-15 (“The EEOC's negligence or inaction in the internal processing of a complaint has no determinate consequences because such actions are merely preparatory to a lawsuit by either the EEOC or the charging party in federal district court; only the district court may fix liability.”); Stewart, 611 F.2d at 683 (“‘The test of finality for purposes of review is not whether the order is the last administrative order contemplated by statutory scheme, but rather whether it imposes an obligation or denies a right with consequences sufficient to warrant review.’”) (citation omitted); Forbes, 893 F. Supp. at 481-82 (the EEOC’s alleged failure to process plaintiff’s charge properly was not a final agency action under § 704 because it did not determine his rights or liabilities). Moreover, even if the EEOC’s actions and/or omissions could constitute “final agency action,” judicial review under the APA is unavailable because Roberts has an alternative adequate legal remedy: she can, as discussed above, sue her former employer in court, as she has indeed done in this lawsuit. See, e.g., Ward, 719 F.2d at 314 (“‘In short, we do not think Congress could have been more clear in expressing its intent that the private right of action preserved by § 706(f)(1) is “an adequate remedy in a court” for the alleged shortcomings in the EEOC's handling of the plaintiffs' charges.’”) (citation omitted); Stewart, 611 F.2d at 683 (quoting same passage); Forbes, 893 F. Supp. at 481 (“[Plaintiff’s] right to bring a de novo right of action after 180 days of filing his charge of discrimination constitutes an adequate remedy under the APA.”). The APA waives the federal government’s sovereign immunity to allow judicial review of a final agency action where the plaintiff has no other adequate legal remedy. See Consol. Edison Co., Inc. v. DOE, 247 F.3d 1378, 1382-83 (2d Cir. 2001) (en banc) (so holding); 5 U.S.C. § 704. We just established that there was no final agency action by the EEOC in this case, and that Roberts had an adequate alternative legal remedy (because Title VII allows her to sue her former employer for discrimination and retaliation). Because Roberts failed to show a final agency action and the absence of an adequate alternative legal remedy, the district court lacked subject matter jurisdiction over her APA claim. See, e.g., Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1240 (11th Cir. 2003) (since there was no final agency action, district court should have dismissed for lack of subject matter jurisdiction); Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 313 F.3d 852, 857 (4th Cir. 2002) (same); Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001) (if the agency action is not final, the district court lacks subject matter jurisdiction); American Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999) (“If there is no ‘final agency action,’ . . . a court lacks subject matter jurisdiction.”); Town of Sanford v. U.S., 140 F.3d 20, 23 (1st Cir. 1998) (affirming dismissal for lack of jurisdiction where plaintiff had adequate legal remedy); but see Idaho Watersheds Project v. Hain, 307 F.3d 815, 830 (9th Cir. 2002) (“the fact hat an agency decision is not final under the APA is not a defect in subject matter jurisdiction”). This Court appears to follow the same rule. In Shea v. Office of Thrift Supervision, 934 F.2d 41, 46 (3d Cir. 1991), this Court held that it lacked jurisdiction of the plaintiff’s APA claim because there was no final agency action. See also West Penn Power Co. v. EPA, 860 F.2d 581, 587 (3d Cir. 1988) (dismissing petition for review for lack of appellate jurisdiction because the agency action was not final); Temple Univ. v. Rehnquist, No. 01-3862, 2002 WL 31012237, at *1 (3d Cir. Aug. 20, 2002) (unpublished) (affirming district court’s Rule 12(b)(1) dismissal because agency action was not final).4 Accordingly, the district court lacked subject matter jurisdiction over Roberts’ APA claim. Roberts’ due process claim conferred subject matter jurisdiction on the district court under 28 U.S.C. § 1331 if it was colorable, but not if it was “wholly insubstantial and frivolous.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998). Here, as the First Circuit recognized decades ago, Roberts’ fundamental statutory right under Title VII is to be free from employment discrimination on the basis of race and sex. Francis-Sobel, 597 F.2d at 17-18. Title VII authorizes her to sue her employer to vindicate that right. She had to file administrative charges with the PHRC and the EEOC first, but she did not have to wait for those agencies to complete their investigations. She could have sued the University of Pennsylvania back in 1995 had she desired a speedier resolution. Therefore, neither the EEOC’s alleged delay in processing her claim nor its negative finding impinged on any of Roberts’ cognizable liberty or property interests. Roberts has stated a claim against her former employer, but her claims against the EEOC are frivolous, as shown by the frequency and consistency with which courts have rejected such claims. See the Francis-Sobel, Georator and Forbes cases cited supra at p. 12; see also McCottrell v. EEOC, 726 F.2d 350, 351 n.1 (7th Cir. 1984) (“Plaintiff has no right under the Constitution to challenge the EEOC's adverse determination.”); Mitchell v. EEOC, 888 F. Supp. 710, 713 (E.D. Pa. 1995) (no due process violation); Feldstein v. EEOC, 547 F. Supp. 97, 100 (D. Mass. 1982) (same); Pearlswig v. Randolph, 497 F. Supp. 659, 570 (D. Mass. 1980) (same); Hall v. EEOC, 456 F. Supp. 695, 702-03 (N.D. Cal. 1978) (in class action against EEOC, agency’s decision to change how it processed charges did not violate due process); cf. Johnson v. Rodriguez, 943 F.2d 104, 109-10 (1st Cir. 1991) (district court properly dismissed charging party’s due process claim against the state fair employment practices agency under 28 U.S.C. § 1915(d) as frivolous). Accordingly, this Court should hold that Roberts’ due process claim was frivolous, and that the district court therefore lacked subject matter jurisdiction over that claim as well. For the above reasons, we respectfully request that this Court affirm the judgment of the district court insofar as it dismissed Roberts’ claims against the EEOC. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7018 Washington, D.C. 20507 (202) 663-4737 I am a federal employee and a lawyer employed by, and representing, the United States Equal Employment Opportunity Commission. I may therefore appear before this Court without being a member of its bar. PAUL D. RAMSHAW June ____, 2003 I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following parties and counsel of record: Selina Roberts 409 Franklin St. Darby, PA 19023 Joe H. Tucker, Jr. Booth & Tucker 230 S. Broad St., 2nd floor Philadelphia, PA 19102 Claudia M. Tesoro Office of the Attorney General 21 S. 12th St. Philadelphia, PA 19107 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4737 June 13, 2003 1. "App. 2:12-13" refers to pp. 12-13 of document 2 in appellant's appendix. 2. "R. 5" refers to entry 5 on the district court docket sheet (App. 2). 3. There is no indication that Roberts sued EEOC employees Thomas or Brown in other than their official capacities. Moreover, neither her complaints nor her opposition to the EEOC's motion to dismiss attributed any acts or omissions to Thomas or Brown individually. Accordingly, we will refer to the three EEOC defendants hereinafter collectively as "the EEOC." See Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991) (district court properly dismissed plaintiff's claims against two individual EEOC defendants where her amended complaint did not allege that either of them did anything). 4. In ADAPT, 170 F.3d at 389-91, the district court had dismissed an APA claim where the agency action was not final under Rule 12(b)(6) for failure to state a claim, and this Court affirmed, but there is no indication that the potential jurisdictional defect was ever considered. In General Motors Corp. v. Volpe, 457 F.2d 922, 923-24 (3d Cir. 1972), the district court had dismissed for lack of jurisdiction plaintiff's action (including an APA claim) seeking pre-enforcement judicial review of an order of the National Highway Safety Bureau. This Court held that the district court had jurisdiction over the action, but that the district court had properly declined to exercise that jurisdiction, in part because the agency action was not final. Id. The source of jurisdiction there, however, was 28 U.S.C. § 1337, and not the APA claim.