Watkins Motor Lines v. Dominguez & EEOC (11th Cir.) Brief as appellee Nov. 2, 2005 No. 05-13744 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________________________ WATKINS MOTOR LINES, INC., Plaintiff-Appellant, v. CARI M. DOMINGUEZ, CHAIR, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendants-Appellees. _____________________________________________________ On Appeal from the United States District Court for the Middle District of Florida, Hon. Susan C. Bucklew, District Judge _____________________________________________________ BRIEF OF DEFENDANTS-APPELLEES CARI M. DOMINGUEZ AND THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _____________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Appellate Attorney Watkins Motor Lines, Inc. v. Dominguez & E.E.O.C., No. 05-13744 C-1 of 2 Certificate of Interested Persons and Corporate Disclosure Statement Defendants-Appellees Cari M. Dominguez and the U.S. Equal Employment Opportunity Commission submit this list, pursuant to 11th Circuit Rule 26.1-1, of trial judges, attorneys, persons, associations of persons, firms, partnerships, and/or corporations known to have an interest in the outcome of this appeal: Hon. Susan C. Bucklew, District Judge Amy Burkholder, Senior Investigator, E.E.O.C. Joan M. Canny, Counsel for Plaintiff-Appellant Lorraine C. Davis, Assistant General Counsel, E.E.O.C. Cari M. Dominguez, Chair, E.E.O.C. Charles T Harden III, Assistant United States Attorney, U.S. Department of Justice John C. Hendrickson, Regional Attorney, Chicago District Office, E.E.O.C. Lyndon Jackson, Charging Party James L. Lee, Deputy General Counsel, E.E.O.C. Peggy R. Mastroianni, Associate Legal Counsel, E.E.O.C. Erin Norris, Attorney, E.E.O.C. Kathleen Oram, Attorney, E.E.O.C. Hon. Mark A. Pizzo, Magistrate Judge (cont.) Watkins Motor Lines, Inc. v. Dominguez & E.E.O.C., No. 05-13744 C-2 of 2 John P. Rowe, Director, Chicago District Office, E.E.O.C. Thomas J. Schlageter, Assistant Legal Counsel, E.E.O.C. Stearns Weaver Miller Weissler Alhadeff & Stitterson, P.A., Counsel for Plaintiff-Appellant James M. Tucker, Appellate Attorney, E.E.O.C. Watkins Motor Lines, Inc., Plaintiff-Appellant Watkins Associated Industries, Inc., parent corporation of Plaintiff-Appellant Carolyn L. Wheeler, Acting Associate General Counsel, E.E.O.C Pursuant to Federal Rules of Appellate Procedure Rule 26.1, Defendants- Appellees Cari M. Dominguez and the U.S. Equal Employment Opportunity Commission, as a government official and government agency, respectively, are not required to file a corporate disclosure statement. __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Statement Regarding Oral Argument Defendants-Appellees Cari M. Dominguez and the U.S. Equal Employment Opportunity Commission ("Commission") do not request oral argument in this appeal. The Commission believes that the factual and legal matters at issue are sufficiently clear and straightforward to render oral argument unnecessary. Table of Contents Certificate of interested persons. . . . . . . . . . . . . . .C-1 Statement regarding oral argument. . . . . . . . . . . . . . . .i Table of citations . . . . . . . . . . . . . . . . . . . . . . iv Statement of jurisdiction. . . . . . . . . . . . . . . . . . . .x Statement of the issue . . . . . . . . . . . . . . . . . . . . xi Statement of the case. . . . . . . . . . . . . . . . . . . . . .1 Course of proceedings and disposition in the district court1 Statement of the facts. . . . . . . . . . . . . . . . . . .2 District court decision . . . . . . . . . . . . . . . . . .6 Standard of review. . . . . . . . . . . . . . . . . . . . 11 Summary of the argument. . . . . . . . . . . . . . . . . . . . 12 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. Dismissal was proper because the district court lacked subject matter jurisdiction to hear Watkins' complaint. . 13 A. The district court lacked subject matter jurisdiction over Watkins' asserted or purported Title VII claim.. . . 13 B. The district court lacked subject matter jurisdiction over Watkins' Declaratory Judgment Act claim. . . . . . . 15 C. The district court lacked subject matter jurisdiction over Watkins' Mandamus Act claim. . . . . . . . . . . . . 19 II. Watkins has failed to state a claim upon which relief may be granted.21 III. Watkins' claim was not justiciable because the claim was not ripe for judicial review.. . . . . . . . . . . . . . . . . . . 25 A. The Commission's rejection of Watkins' settlement proposal did not constitute a final agency action sufficient to create a ripe controversy.. . . . . . . . . . . . . . . . . . 25 B. The Commission's rejection of Watkins' settlement proposal was not the type of nonfinal agency action which a court may review under the Leedom v. Kyne exception. . . . . . 36 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Certificate of compliance Addendum 1. 5 U.S.C. § 551(12) 2. 5 U.S.C. § 555(e) 3. 28 U.S.C. § 1361 4. 28 U.S.C. § 2201 5. 42 U.S.C. § 2000e-5(f)(3) 6. 42 U.S.C. § 2000e-6(b) 7. 42 U.S.C. § 2000e-16 8. 29 C.F.R. § 1601.20(a) Certificate of service Table of Citations Cases Page(s) Abbott Labs. v. Gardner, 387 U.S. 136, 87 S. Ct. 1507 (1967) . . . . . . . . . . . 26 *Aroostook Band of Micmacs v. Ryan, 404 F.3d 48 (1st Cir. 2005) . . . . . . . . . . . . . . . 16 Atlanta Gas Light Co. v. F.E.R.C., 140 F.3d 1392 (11th Cir. 1998). . . . . . . . . . . . . . 26 Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997) . . . . . . . . . . . . . . . . 22 Bonner v. Pritchard, 661 F.2d 1206 (11th Cir. 1981). . . . . . . . . . . . . . 15 *Cash v. Barnhart, 327 F.3d 1252 (11th Cir. 2003) . . . . . . . .11, 19-21, 24 Colonial Penn Group, Inc. v. Colonial Deposit Co., 834 F.2d 229 (1st Cir. 1987). . . . . . . . . . . . . . . 23 Day v. Taylor, 400 F.3d 1272 (11th Cir. 2005). . . . . . . . . . . . . . 21 First Nat'l Bank of Chicago v. Comptroller of the Currency of the United States, 956 F.2d 1360 (7th Cir. 1992). . . . . . . . . . . . . . . .31-33 Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979) . . . . . . . . . . . . . . . 22 *F.T.C. v. Standard Oil Co. of California, 449 U.S. 232, 101 S. Ct. 488 (1980) . . . 18, 26, 30, 35, 36 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . 22, 31, 34 *Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890 (5th Cir. 1978). . . . . . . . . . . . . 15, 22 James v. United States, 970 F.2d 750 (10th Cir. 1992) . . . . . . . . . . . . . . 13 *Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180 (1958). . . . . . . . . . . . 36 *Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293 (11th Cir. 2004). . . . . . . . . . . . .19-21 Lockerty v. Phillips, 319 U.S. 182, 63 S. Ct. 1019 (1943) . . . . . . . . . 13, 15 Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996). . . . . . . . . . . . . . . 14 *Malowney v. Fed. Collections Deposit Group, 193 F.3d 1342 (11th Cir. 1999). . . . . . . . . . . . 11, 17 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984). . . . . . . . . . . . . . . 22 McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986). . . . . . . . . . . . . . 16 *Mid-South Holding Co. v. United States, 225 F.3d 1201 (11th Cir. 2000). . . . . . . . . . . . 13, 14 *Mississippi Chem. Co. v. EEOC, 786 F.2d 1013 (11th Cir. 1986) . . . . . . . 18, 26, 27, 34 *National Adver. Co. v. City of Miami, 402 F.3d 1335 (11th Cir. 2005). . . . . . . . . . 25, 26, 34 *National Parks Conservation Ass'n v. Norton, 324 F.3d 1229 (11th Cir. 2003). . . . . . . . . . . . 27, 31 Owens v. Samkle Auto. Inc., No. 04-15337, 2005 WL 2318643 (11th Cir. Sept. 23, 2005). 11 Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182 (11th Cir. 2002). . . . . . . . . . . . 11, 27 Paniagua v. Moseley, 451 F.2d 228 (10th Cir. 1971) . . . . . . . . . . . . . . 24 Rush v. Macy's New York, Inc., 775 F.2d 1554 (11th Cir. 1985). . . . . . . . . . . . . . 24 Scheerer v. Rose State Coll., 950 F.2d 661 (10th Cir. 1991) . . . . . . . . . . . . . . 22 Simi Inv. Co. v. Harris County, Tex., 236 F.3d 240 (5th Cir. 2000). . . . . . . . . . . . . . . 16 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997). . . . . . . . . . . . . . . 22 Texas v. West Publ'g Co., 882 F.2d 171 (5th Cir. 1989). . . . . . . . . . . . . . . 17 *United States v. Feaster, 410 F.2d 1354 (5th Cir. 1969) . . . . . . . . . . . . 36, 37 *United States v. Mitchell, 445 U.S. 535, 100 S. Ct. 1349 (1980). . . . . . . . . 13, 15 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983). . . . . . . . . . . . . . . 22 Watkins Motor Lines, Inc. v. Dominguez & EEOC, No. 05-341, Order (M.D. Fla. June 9, 2005). 6-11, 18, 20, 29 Watkins Motor Lines, Inc. v. Dominguez & EEOC, No. 05-341, Report and Recommendation (M.D. Fla. May 2, 2005)6 Statutes Page 5 U.S.C. § 551(12) . . . . . . . . . . . . . . . . . . . . . . 29 5 U.S.C. § 555(e). . . . . . . . . . . . . . . . . . . . . . . 29 28 U.S.C. § 1361 . . . . . . . . . . . . . . . . . . . . . . . 20 28 U.S.C. § 2201 . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000e-6(b) . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000e-16 . . . . . . . . . . . . . . . . . . . . . 14 Regulation Page 29 C.F.R. § 1601.20(a) . . . . . . . . . . . . . . . . . . . . 38 Other Authority Page Charge Processing Procedures Adopted by EEOC And Task Force Recommendations To Be Implemented By Chairman, dated April 19, 199538 EEOC Compliance Manual Vol. 1, Section 15, Negotiated Settlement38 EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, No. N-915-061 (Sept. 7, 1990). . . . . . . . . . . . . . . 39 Statement of Jurisdiction For the reasons stated in the following brief, and as recognized by the district court itself in its June 9, 2005 Order, the district court was without jurisdiction to entertain this lawsuit. Nevertheless, this Court may properly exercise jurisdiction over the instant appeal. This Court has jurisdiction to hear appeals from all final decisions of the district courts, 28 U.S.C. § 1291, and this appeal has been taken from the aforementioned final decision in this matter by the United States District Court for the Middle District of Florida. Statement of the Issue I. Whether the district court was correct to grant the Commission's motion to dismiss Watkins' claim for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Statement of the Case A. Course of proceedings and disposition in the district court On February 22, 2005, Plaintiff-Appellant Watkins Motor Lines, Inc. ("Watkins") filed the instant lawsuit in the United States District Court for the Middle District of Florida, seeking to compel Defendants-Appellees Cari M. Dominguez and the U.S. Equal Employment Opportunity Commission (collectively, "Commission") to accept its settlement offer through either injunctive relief or a writ of mandamus. Docket No. ("R.") 1, 2. The next day, Watkins filed a motion for a temporary restraining order and preliminary injunctive relief, to halt the Commission's investigation and compel the Commission to accept its settlement offer. R.3. On that same day, the district court denied the motion for a temporary restraining order and referred the motion for preliminary injunctive relief to a Magistrate Judge to prepare a report and recommendation. R.6. Watkins then filed, on March 15, 2005, a motion for summary judgment on its initial request for injunctive and mandamus relief. R.15. On April 19, 2005, the Commission filed a motion to dismiss the action for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. R.34. The Magistrate held a hearing on Watkins' motion for preliminary injunctive relief on April 21, 2005. On May 2, 2005, the Magistrate issued a report and recommendation that Watkins' motion for preliminary injunctive relief be denied on ripeness grounds. R.37. Watkins filed its objections to the Magistrate Judge's report and recommendation on May 16, 2005, and the Commission filed its memorandum in opposition on May 26, 2005. R.42, 43. On June 9, 2005, the district court granted the Commission's motion to dismiss, and denied Watkins' motion for preliminary injunctive relief. R.44. This appeal followed. B. Statement of the facts On September 14, 2004, Lyndon Jackson filed a charge of discrimination with the Commission's Chicago District Office. R.4, Exhibit ("Exh.") 1, Attachment ("Att.") A. In his charge, Mr. Jackson alleged that he had applied for the position of part-time Freight Handler at Watkins' Schaumburg, Illinois facility; that he found out shortly thereafter that he had not been selected for the position; that he believed that he was not hired because of his prior conviction for aggravated sexual abuse; and that Watkins' failure to hire him constituted race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Id. The Commission initiated an investigation into Mr. Jackson's charge. In December 2004, the Commission conducted an on-site inspection of documents related to the discrimination charge at Watkins' Schaumburg facility. R.35 at 1-2. The Commission received two boxes of documents at that time, and shortly thereafter received a few additional documents. Id. On January 20, 2005, the Commission requested that Watkins provide additional documents relevant to the investigation—specifically, relevant application and employment-related documents for the Freight Handler position for the period January 1, 2001 through December 31, 2004. R.4, Exh. 1, Att. D. The Commission also offered to accept any additional evidence Watkins believed would support its position regarding the charge. Id. After initially informing the Commission that the documents already in its possession constituted roughly half the documents which would meet the Commission's January 20, 2005 request, id. at Att. F, Watkins informed the Commission that there were an additional thirty- eight boxes of documents which would be responsive to the Commission's request. Id. However, Watkins failed to produce any additional documents to the Commission in response to its investigatory request. Subsequently, the Commission issued an administrative subpoena for the requested documents. Watkins petitioned the Commission to revoke the subpoena. Watkins' petition is currently before the Commission, and the Commission has not sought judicial enforcement of the administrative subpoena. During the course of the Commission's attempts to investigate the charge, Watkins began to inquire about settling the charge. See R.4., Exh. E, at 1. Watkins took the position that the Commission was obligated to accept any settlement Watkins deemed reasonable and appropriate. See R.4, Exh. 1, Att. F. The Commission informed Watkins that such a position was incorrect, as the Commission would only accept a settlement offer which the Commission determines to be a reasonable and appropriate resolution of the charge. Id. at 1. The Commission also made clear that it needed to continue its investigation of the case and was not yet able to determine whether any settlement offer made by Watkins was in fact a reasonable and appropriate resolution of the charge. Id. The Commission emphasized that it needed to determine whether a violation had occurred, and if so what remedy would be appropriate to deter future violations and what if any injunctive relief would be necessary. Id. The Commission emphasized that its policy was that "[c]harges of discrimination may be settled at any time during the investigation." Id. (emphasis in original). Watkins responded with what it deemed an "appropriate settlement proposal." R.4, Exh. G, at 1. In its proposal, Watkins offered to adopt and implement a written policy which would permit it to use conviction records in hiring decisions at its Schaumburg facility, and offered to submit quarterly reports to the Commission for one year regarding people who applied to work at that facility who have prior conviction records. Id. at 10. In exchange, the Commission would abandon its investigation into Mr. Jackson's charge. Id. The proposal also sought to limit the Commission's ability to file suit against Watkins based on any other charges of discrimination which challenged its use of conviction records in its hiring decisions. Id. On February 22, 2005, the Commission informed Watkins that its settlement proposal was unacceptable. R.4, Exh. 11. The very same day, Watkins filed the instant lawsuit against the Commission, stating that it was suing under Title VII, the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, and the Mandamus Act, 28 U.S.C. § 1361. R.1, 2 at 1, 2, 11. In its complaint, Watkins alleged that the Commission was obligated to accept its settlement offer, that the Commission had admitted that it was obligated to accept a settlement offer from Watkins which was reasonable and appropriate, and that its refusal to accept the offer constituted a violation of its statutory responsibilities and published policies and procedures. R.2 at 8, 10. As relief, Watkins sought a declaratory judgment that the Commission's "refusal to facilitate, encourage or consider in good faith a settlement or voluntary resolution" of the charge "is in violation of the Commission's statutory, regulatory and administrative obligations and responsibilities," and that its investigation into the charge was "arbitrary and ultra vires and exceeds the jurisdiction of the EEOC under its enabling statute." Id. at 13. In addition, Watkins sought preliminary and permanent injunctive relief, as well as the remedy of mandamus. Id. at 12-13. C. District court decision After a hearing the Magistrate Judge recommended that Watkins' motion for a preliminary injunction be denied because the case was not ripe for judicial intervention. Watkins Motor Lines, Inc. v. Dominguez & EEOC, No. 05-341, Report and Recommendation (M.D. Fla. May 2, 2005). The district court agreed with the Magistrate's recommendation, and granted the Commission's motion to dismiss. Watkins Motor Lines, Inc. v. Dominguez & EEOC, No. 05-341, Order (M.D. Fla. June 9, 2005) ("Order"). The court first addressed the Commission's ripeness argument, and concluded that Watkins' claims were not ripe for review. The court stated that to determine if the matter was sufficiently fit for judicial review, it must examine whether the agency action is final, whether further administrative proceedings are contemplated, and whether only purely legal questions are presented. Id. at 5. The court noted that for the matter to be fit for judicial review the Commission's decision not to settle the charge prior to completing the investigation, and prior to any reasonable cause determination by the Commission or admission of a Title VII violation by Watkins, must amount to a final agency action. Id. The court found that the rejection of the settlement offer was not a final agency action. The court stated that Watkins appeared to be arguing that it had a right to settle the charge of discrimination prior to the Commission making reasonable cause determination or in the absence of an admission of liability, and therefore the Commission's letter informing Watkins that its settlement offer was unacceptable constituted a final agency action. Id. The court rejected this argument, stating that "for a decision to be deemed a final agency action, ‘it must have some determinate consequences for the party'" and that "‘[c]ourts have long considered the touchstone of finality to be the fixing of obligations or legal relationships.'" Id. at 6 (citations omitted). The court stated that its review of the authority cited by the parties made it clear that the Commission's rejection of Watkins' settlement offer prior to the Commission making a reasonable cause determination or in the absence of an admission of liability, did not amount to a final agency action. Id. The court noted that "there is ‘no general right to judicial review of the EEOC's decision to investigate the discrimination charges.'" Id. (quoting Bell Atl. Cash Balance Plan v. EEOC, No. 97-2382, 1999 WL 485679, at *4 (4th Cir. 1999) (unpublished decision)). It further noted that reasonable cause determinations are not final agency actions, as they do not create legal rights or obligations. Id. (citing Bell Atl. Cash Balance Plan v. EEOC, 976 F. Supp. 376, 380-81 (E.D. Va. 1997), aff'd, No. 97-2382, 1999 WL 485679 (4th Cir. 1999); Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979)). The court concluded that because the Commission's rejection of Watkins' settlement offer did not create any legal liabilities or obligations, it was not a final agency action. "In short, no legal consequences flow from EEOC's decision not to accept Plaintiff's settlement offer at this time." Id. at 7. The court also stated that "it is clear that further administrative proceedings are contemplated (since the EEOC has not finished investigating the charges), which render Plaintiff's claims ‘unripe.'" Id. It added that "‘[t]here is a compelling interest in allowing federal enforcement agencies to carry out their congressional mandates unhampered by premature interruption. Actions like the present one lead to piecemeal and needless review of issues which the EEOC may choose not to pursue in court.'" Id. at 7 (quoting Shoe Works v. EEOC, 685 F. Supp. 168, 170 (S.D. Ohio 1987)). The court then considered the hardship Watkins would face if judicial review was withheld, noting that for ripeness purposes hardship is measured by "the immediacy of the threat and the burden imposed on the petitioner who would be compelled to act under threat of enforcement." Id. (citations omitted). The court found that the Commission's rejection of the settlement offer at this time "merely results in the continued investigation of the charges," and that while some burden is incumbent upon an employer during such an investigation, "such burdens are not indica of final or reviewable agency action; they do not amount to the type of concrete, significant hardship that triggers judicial review." Id. at 8. The court concluded that Watkins had failed to show that it would suffer any hardship if judicial review was withheld. Id. The court then turned to the applicability of the exception, established in Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180 (1958), to the ripeness requirement for jusiticiability which permits"judicial review of nonfinal agency actions when the agency acts in clear derogation of its express statutory authority." Order at 8. The court concluded that Watkins' reliance on the exception was misplaced. The court repeated that the Commission was not required to settle prior to the completion of an investigation or a reasonable cause determination, and thus was not acting in clear derogation of its statutory authority. Id. The court stated it was clear, based upon applicable policies and procedures, that the decision as to whether to settle a charge prior to the completion of an investigation or a reasonable charge determination was within the Commission's discretion, and not a right given to Watkins. Id. at 9. The court noted that the Commission's regulation regarding negotiated settlement, 29 C.F.R. § 1601.20(a), states that "prior to the issuance of a determination as to reasonable cause the Commission may encourage the parties to settle the charge on terms that are mutually agreeable." Order at 8-9 (emphasis added by court). The court further noted that the Commission's published charge processing procedures likewise provide that "settlement efforts be encouraged at all stages of the administrative process and that the Commission may accept settlements providing ‘substantial' relief when the evidence indicates a violation or ‘appropriate' relief at an earlier stage in the investigation." Id. at 9 (citing R.4, Exh. 2 (Commission's charge processing procedures)) (emphasis added by court). Similarly, the court found that the Commission's Compliance Manual states that "EEOC is not required to engage in negotiated settlement before a finding and will exercise its sole discretion to do so on a case-by-case basis." Id. (citing R.4, Exh. 7, par. 15.2 (EEOC Compliance Manual, Vol. 1, Section 15, Negotiated Settlement, par. 15.2)) (emphases added by the court). As for Watkins' mandamus action, the court noted that such relief was an extraordinary remedy which should be utilized only in the clearest and most compelling cases, and that it is only appropriate when, amongst other necessary factors, the defendant has a clear duty to act. Id. at 10-11 (citing Cash v. Barnhart, 327 F.3d 1252, 1257-58 (11th Cir. 2003)). The court stated that, as it had explained previously, the Commission was not required to settle the charge against Watkins prior to completing its investigation, so there was no clear duty to act and mandamus relief was not available. Id. at 11. D. Standard of review This Court reviews the grant of a motion to dismiss de novo, taking as true the facts as they are alleged in the complaint. Owens v. Samkle Auto. Inc., No. 04-15337, 2005 WL 2318643, at *2 (11th Cir. Sept. 23, 2005). See also Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1187-88 (11th Cir. 2002) (noting, in the context of reviewing a Fed. R. Civ. P. Rule 12(b)(6) motion to dismiss, that while the plaintiff's factual allegations are to be accepted as true, "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal") (citation omitted). We note that this Court also reviews de novo whether a district court lacked jurisdiction to hear a mandamus claim, as well as whether a district court properly denied relief under the Declaratory Judgment Act. Cash v. Barnhart, 327 F.3d 1252, 1255, 1257-58 (11th Cir. 2003); Malowney v. Fed. Collections Deposit Group, 193 F.3d 1342, 1347 (11th Cir. 1999). Summary of the Argument The district court properly dismissed Watkins' suit against the Commission because the court lacked subject matter jurisdiction over the matter and Watkins had no cognizable claim against the Commission. Neither Title VII nor the Declaratory Judgment Act provides a jurisdictional basis for the claims Watkins attempts to assert. Watkins has also failed to state a claim upon which relief may be granted under any of the statutes upon which it relies. Title VII does not provide a remedy to respondent employers for the Commission's administrative processing of charges, and therefore provides Watkins no remedy under either Title VII or the Declaratory Judgment Act. Furthermore, because neither Title VII nor the Commission's regulations and policies in any way obligate the Commission to accept settlement offers from respondent employers at any time during the administrative processing of a charge of discrimination, Watkins cannot state a claim under the Mandamus Act. Finally, as the district court correctly concluded, the Commission's rejection of the settlement proposal lacks the requisite ripeness to create a justiciable issue. For these reasons, the district court was deprived of subject matter jurisdiction to hear Watkins' complaint, and Watkins failed to state a claim upon which relief may be granted, making dismissal the court's only appropriate course of action.<1> Argument I. Dismissal was proper because the district court lacked subject matter jurisdiction to hear Watkins' complaint. A. The district court lacked subject matter jurisdiction over Watkins' asserted or purported Title VII claim. Federal courts are courts of limited jurisdiction, deriving their powers from the authority of Congress. Lockerty v. Phillips, 319 U.S. 182, 187, 63 S. Ct. 1019, 1022 (1943). Thus, in order for a district court to have the authority to hear a case, Congress must have vested the court with the appropriate jurisdiction. Id. It is also well established that the United States cannot be sued unless its sovereign immunity has been expressly and unequivocally waived by statute. United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351 (1980); Mid-South Holding Co. v. United States, 225 F.3d 1201, 1203 (11th Cir. 2000). See also James v. United States, 970 F.2d 750, 753 (10th Cir. 1992) (noting that the "party bringing suit against the United States bears the burden of proving that sovereign immunity has been waived") (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188, 56 S. Ct. 780, 785 (1936)). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, district courts are obligated to determine whether they have the authority to hear a plaintiff's claim, and the plaintiff has the burden of proving jurisdiction in order to survive a motion to dismiss. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). As there exists no congressional waiver of sovereign immunity for claims such as Watkins' under Title VII, the district court lacked jurisdiction to hear the claim. See Mid-South Holding Co., 225 F.3d at 1204 (recognizing sovereign immunity as an issue of subject matter jurisdiction). Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides district courts with three grants of jurisdiction. District courts have jurisdiction over lawsuits brought by the Commission, the Attorney General, and aggrieved private sector, state, and local government employees or applicants for employment. 42 U.S.C. § 2000e-5(f)(3). District courts also have jurisdiction over pattern and practice cases brought by the Commission or the Attorney General. 42 U.S.C. § 2000e-6(b). Finally, district courts can hear federal employee actions against their employers. 42 U.S.C. § 2000e-16. None of these jurisdictional grants, however, provides a district court with authority to hear Watkins' challenge to the Commission's decision to reject its settlement proposal.<2> See Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978) (affirming dismissal of suit brought under Title VII against the Commission because "Title VII . . . confers no right of action against the enforcement agency").<3> B. The district court lacked subject matter jurisdiction over Watkins' Declaratory Judgment Act claim. The district court also lacked jurisdiction to entertain Watkins' asserted claim under the Declaratory Judgment Act because the court was otherwise without subject matter jurisdiction. The Declaratory Judgment Act does not create an independent basis for a district court to exercise jurisdiction. Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 58 (1st Cir. 2005) ("the Declaratory Judgment Act does not provide an independent basis for jurisdiction") (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 70 S. Ct. 876, 876 (1950)); Simi Inv. Co. v. Harris County, Tex., 236 F.3d 240, 247 (5th Cir. 2000) ("Declaratory Judgment Act claims, without another basis for jurisdiction, cannot support the district court's jurisdiction"). See also 28 U.S.C. § 2201 (Declaratory Judgment Act). In enacting the Declaratory Judgment Act, Congress "enlarged the range of remedies available in the district courts but did not extend their jurisdiction." McDougald v. Jenson, 786 F.2d 1465, 1476 (11th Cir. 1986) (quoting Skelly Oil Co., 339 U.S. at 671, 70 S. Ct. at 879). Accordingly, because the district court's jurisdiction over Watkins' Declaratory Judgment Act claim is derivative of the court's jurisdiction to hear its Title VII claim, and the court lacked such jurisdiction, the court was deprived of jurisdiction to hear Watkins' Declaratory Judgment Act claim. The district court also lacked jurisdiction over Watkins' Declaratory Judgment Act claim because Watkins has not shown that there exists an actual controversy. "Consistent with the ‘cases' and ‘controversies' requirement of Article III, the Declaratory Judgment Act, 28 U.S.C. § 2201, specifically provides that a declaratory judgment may be issued only in the case of an ‘actual controversy.'" Malowney, 193 F.3d at 1347 (citing Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir. 1985)). Based upon the facts alleged in the complaint, there must be a "substantial continuing controversy" between the parties, and this controversy "may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury." Id. (citation omitted). See also Texas v. West Publ'g Co., 882 F.2d 171, 175 (5th Cir. 1989) (‘actual controversy' under the Act is one where "a substantial controversy of sufficient immediacy and reality [exists] between parties having adverse legal interests" (alteration in original)). In order to be able to meet the "actual controversy" requirement for the district court to have jurisdiction over a Declaratory Judgment Act claim, the plaintiff must "assert a reasonable expectation" that the "real and immediate" and not "conjectural, hypothetical, or contingent" injury suffered "will continue or will be repeated in the future." Malowney, 193 F.3d at 1347. Watkins cannot meet this standard, as it has suffered no past injury, suffers no present injury, and will suffer no future injury, as a consequence of the Commission's rejection of its settlement proposal. The Commission's rejection of Watkins' settlement proposal places no legal obligation on Watkins to do, or to refrain from doing, anything. There are no determinate consequences for Watkins. See Mississippi Chem. Co. v. EEOC, 786 F.2d 1013, 1018 (11th Cir. 1986) (employers may refuse to comply with the Commission's administrative subpoena without committing contempt).<4> Accordingly, Watkins has not shown any present harm from the Commission's rejection of its premature settlement proposal. While Watkins asserts it will suffer harm if at some future time the Commission initiates an enforcement action regarding its administrative subpoena, At. Brief at 23-24, the potential for future enforcement action is not a legal consequence sufficient to satisfy the "actual controversy" requirement. In the analogous context of ripeness, the Supreme Court has expressly stated that the threat of future litigation is an insufficient legal consequence to give rise to a justiciable claim, as "[m]ere litigation expense, even substantial and unrecoupable cost" is not a sufficient injury to create a ripe dispute. F.T.C. v. Standard Oil Co. of California, 449 U.S. 232, 244, 101 S. Ct. 488, 495 (1980) (citation omitted). This proposition is equally applicable in the instant case, where Watkins can only point to a hypothetical possibility that the Commission may bring litigation against it in the future. As there is no actual controversy between the parties, the district court lacked jurisdiction to hear Watkins' Declaratory Judgment Act claim. C. The district court lacked subject matter jurisdiction over Watkins' Mandamus Act claim. Mandamus is an extraordinary remedy that should be utilized only in the clearest and most compelling of cases. Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003); Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293,<5> 1295 (11th Cir. 2004). This Court in Cash ruled that mandamus is "intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Cash, 327 F.3d at 1258. "Although issuance of a writ of mandamus is a legal remedy, it is largely controlled by equitable principles and its issuance is a matter of judicial discretion." Id. at 1257-58. While jurisdiction for an action in mandamus is conferred upon federal district courts by operation of the mandamus statute, 28 U.S.C. § 1361, this does not automatically confer jurisdiction in every claim seeking mandamus relief—"[t]he test for jurisdiction is whether mandamus would be an appropriate means of relief." Id. at 1258. In assessing whether mandamus relief is appropriate, and therefore whether the district court has jurisdiction to hear the request, the plaintiff must have a clear right to the relief requested, the defendant must have a clear duty to act, and there must be no other adequate remedy available. Id. See also Lifestar, 365 F.3d at 1295 (describing factors as whether the defendant owes a clear nondiscretionary duty to the plaintiff, and whether plaintiff has exhausted all other avenues of relief). For jurisdictional purposes, the court is to assess these factors by taking the allegations in the complaint as true, unless those allegations are patently frivolous. Cash, 327 F.3d at 1258. As the district court properly concluded, Watkins' claim cannot satisfy this test.<6> The Commission's regulations and policy statements provide that the Commission encourages private parties to enter into settlement agreements throughout the administrative process, and that the Commission itself has the discretion to enter into settlements when it determines that it is appropriate to do so. These regulations and policy statements cannot reasonably be interpreted as either conferring a right upon a respondent employer, or creating a binding obligation on the Commission, to accept settlements the employer proffers—regardless of whether the employer asserts the offer is "reasonable and appropriate." Nor does Title VII create any such right or impose any such obligation. Simply, as the district court correctly concluded, and despite Watkins' mischaracterization to the contrary, the Commission dose not owe Watkins, nor any party, such a duty to act. Accordingly, mandamus relief is not appropriate and the district court lacked jurisdiction to hear Watkins' mandamus claim. See Cash, 327 F.3d at 1258; Lifestar, 365 F.3d at 1295. II. Watkins has failed to state a claim upon which relief may be granted. Dismissal under Federal Rules of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief may be granted, and is appropriate, when the plaintiff cannot prove any set of facts in support of the claim which would entitle the plaintiff to relief. Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005). As none of the statutes relied upon by Watkins—Title VII, the Declaratory Judgment Act, and the Mandamus Act, see R.2 at 1, 2, 11—can provide the relief Watkins seeks, its lawsuit was properly dismissed for failure to state a claim. First, Title VII provides no legal basis for Watkins' claim. Watkins asserts that the Commission's rejection of its settlement proposal violated Title VII and its implementing administrative policies and procedures. R.2 at 10. However, it is settled law that Title VII "confers no right of action against the [Commission]" for its administrative charge processing. Gibson, 579 F.2d at 891. The other Courts of Appeals to have addressed this issue have similarly held that no such cause of action exists against the Commission. Accord Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir. 1997); Scheerer v. Rose State Coll., 950 F.2d 661, 663 (10th Cir. 1991); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983); Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979). While all of these cases involved suits brought by charging parties, the logic of the various Courts of Appeals' decisions is equally applicable to cases, such as the instant suit, in which employers attempt to challenge the Commission's administrative processing of a charge of discrimination. Regardless of whether the dissatisfied is a charging party or a respondent employer, Title VII provides no cause of action against the Commission. In addition, Watkins has failed to state a claim under the Declaratory Judgment Act. Any claim asserted under the Declaratory Judgment Act must have a basis in federal law. Colonial Penn Group, Inc. v. Colonial Deposit Co., 834 F.2d 229, 235 (1st Cir. 1987). As stated above, there is no basis in Title VII—or any other federal law—for Watkins' claim against the Commission. While Watkins asserts that the Commission's "internal procedures and guidelines" create an obligation on the Commission's part to accept settlement proposals during the administrative processing of a charge of discrimination, see At. Brief at 11, 17-20, no such obligation exists. Rather, the Commission's regulations and policies regarding settlement of charges of discrimination make clear that the Commission's decisions regarding settlement are completely discretionary, and do not in any way confer upon employers a "right" to force the Commission to accept a settlement proposal prior to the completion of an investigation or determination as to whether reasonable cause exists. Nor is there any statutory support for Watkins' asserted "right." Accordingly, Watkins cannot state a claim under the Declaratory Judgment Act. Watkins similarly cannot state a claim under the Mandamus Act. As discussed previously, in order for a plaintiff to be eligible for mandamus relief the following conditions must be met: the plaintiff must have a clear right to the relief requested; the defendant must have a clear, nondiscretionary duty to act; and there must be no other adequate remedy available. Cash, 327 F.3d at 1258. See also Rush v. Macy's New York, Inc., 775 F.2d 1554, 1558 (11th Cir. 1985) (mandamus "is not available to review the discretionary acts of government officials"). Again, the Commission does not owe Watkins a clear, nondiscretionary duty to accept its settlement proposal, and Watkins cannot point to any authority which confers upon it such a right. Neither Title VII nor the Commission's regulations or policy guidelines confer anything but a discretionary power to the Commission to enter into settlement agreements. Accordingly, in the clear absence of any authority for its assertion that the Commission is under a duty to act as Watkins wishes, Watkins cannot prevail under any set of facts, and therefore has failed to state a claim upon which relief may be granted. See Paniagua v. Moseley, 451 F.2d 228, 229 (10th Cir. 1971) (mandamus motion which fails to identify legal basis for the sought relief is" legally insufficient, and being insufficient fails to state a claim"). III. Watkins' claim was not justiciable because the claim was not ripe for judicial review. A. The Commission's rejection of Watkins' settlement proposal did not constitute a final agency action sufficient to create a ripe controversy. It is well established that the jurisdiction of federal courts is limited to considering true cases and controversies. National Adver. Co. v. City of Miami, 402 F.3d 1335, 1338-39 (11th Cir. 2005). In keeping with the case or controversy requirement for jurisdiction, the courts have developed a strict doctrine of ripeness to determine when a claim may properly be heard before a court. The inquiry into this justiciability issue "focuses upon whether the claim presented is ‘of sufficient concreteness to evidence a ripeness of review.' Strict application of the ripeness doctrine prevents federal courts from rendering impermissible advisory opinions and wasting resources through review of potential or abstract disputes." Id. at 1339 (quoting in part Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997)). This Court has stated that "[w]hen determining if a claim is ripe for judicial review, we consider both constitutional and prudential concerns." Id. "[T]he prudential aspect [of the ripeness inquiry] asks whether it is appropriate for this case to be litigated in a federal court by these parties at this time." Id. (citing Hallandale Prof'l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 759-60 (11th Cir. 1991). Examination of Watkins' pleadings in this context makes clear that this matter is not ripe for judicial review. The inquiry into the ripeness of a claim involves a pragmatic examination of two factors: the fitness of the issues for judicial determination, and the hardship to the parties of withholding court consideration. Id. (citations omitted); Standard Oil, 449 U.S. at 239, 101 S. Ct. at 493. In assessing whether the first of these necessary conditions is met, courts assess four factors: Whether the issues presented are purely legal; whether the challenged agency action constitutes a "final agency action"; whether the challenged agency action has or will have a direct and immediate effect upon petitioners; and whether resolution of the issue will foster, rather than impede, effective enforcement and administration by the agency. Mississippi Chem., 786 F.2d at 1016 (citing Alabama Power Co. v. F.E.R.C., 685 F.2d 1311, 1315 (11th Cir. 1982)). See also Abbott Labs. v. Gardner, 387 U.S. 136, 148-57, 87 S. Ct. 1507, 1515-20 (1967) (applying these four factors in determining that the matter at issue was fit for judicial determination), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980 (1977); Atlanta Gas Light Co. v. F.E.R.C., 140 F.3d 1392, 1404 (11th Cir. 1998) (same). The issue of whether the challenged agency action is a "final agency action" is particularly important, as "a court's determination that agency action is not a ‘final agency action' ends its inquiry." Mississippi Chem., 786 F.2d at 1016. The district court's decision focused on whether the Commission's refusal of Watkins' settlement proposal amounted to a "final agency action" and properly concluded that it was not. This Court has recognized that, generally, "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.'" National Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003) (quoting Bennett v. Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154, 1168 (1997)). This Court has also recognized that "[b]y contrast, the Supreme Court has defined a nonfinal agency order as one that does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action." Id. at 1237 (citation and internal quotation marks omitted). In this case, neither requirement for finality has been met. First, the Commission's decision not to accept Watkins' settlement offer in no way represents the consummation of the Commission's decisionmaking process. Despite Watkins' unsupported assertions to the contrary, there is no indication in any of the settlement-related or other communications between Watkins and the Commission that the Commission's rejection of the settlement proposal was anything other than a tentative or preliminary decision. See Oxford Asset Mgmt., 297 F.3d at 1188 (conclusory allegations and unwarranted deductions of fact will not prevent dismissal). The Commission made clear in its February 16, 2005 letter to Watkins that before the Commission could accurately assess whether the proposed settlement was reasonable and appropriate, it needed to continue the investigation in order to have some factual basis upon which it could determine whether the proposal was reasonable and appropriate. R.4, Exh. 1, Att. F, at 1. Neither this communication, nor the Commission's February 22, 2005 rejection of Watkins' proposal, foreclosed the possibility that the charge of discrimination could be resolved by negotiated settlement at some future time, after the Commission had been able to sufficiently investigate the charge to permit an assessment of the reasonableness or appropriateness of a settlement proposal. See id.; R.4, Exh. 11. Watkins' assertion that the Commission's rejection of its settlement proposal is a consummate act is based on its unsupported and conclusory allegation that "all the record evidence points to the determination by the EEOC that Watkins' policy is ‘unacceptable,' and the determination [sic] not to approve settlement that permitted continuation of [Watkins' use of criminal conviction records in making hiring decisions]." At. Brief at 25. Watkins asserts that this is true because there is "no prospect that these determinations will change in the near future unless questioned by this Court, as demonstrated by the EEOC's failure to revisit or reconsider these determinations in the nearly 10 months that have passed since the determinations were made." Id. at 26. Of course, these allegations completely ignore that the Commission explained to Watkins in its February 16 letter that it would need to continue its investigation before it could make an informed decision about whether the proposal was reasonable and appropriate. Simply, there is no support for Watkins' characterization of the Commission's decision to reject the settlement proposal as a consummation of the Commission's decisionmaking process for purposes of ripeness. Second, the Commission's rejection of Watkins' settlement proposal neither fixes rights or obligations, nor serves as the tributary for legal consequences. This is simply because, as the district court correctly concluded, no legal consequences flow from the Commission's decision sufficient to render the Commission's rejection a final agency action. See Order at 7-8. Watkins asserts, without support and contrary to the evidence, that the Commission's investigation is at an end, and as a result of the Commission's rejection of the settlement proposal the Commission may initiate an enforcement action regarding its administrative subpoena. At. Brief at 23-24. Watkins asserts, again without citation to supporting authority, that "the imminent threat of an enforcement action may render an issue ripe for review." At. Brief at 27. Watkins' assertion is devoid of merit, as the potential for future enforcement action is hardly a "legal consequence" sufficient to make the Commission's present refusal to settle a final agency action and presently ripe for judicial review. Again, the Supreme Court has expressly stated that the threat of future litigation is an insufficient legal consequence to give rise to a justiciable claim, as "[m]ere litigation expense, even substantial and unrecoupable cost" is insufficient injury to create a ripe dispute. Standard Oil, 449 U.S. at 244, 101 S. Ct. at 495 (citation omitted). Just as Watkins has failed to identify any legal authority supporting its disingenuous interpretation of the Commission's settlement regulations and policies, Watkins has failed to identify any legal consequence which flows from the Commission's refusal to accept its settlement proposal. In the present matter, Watkins has no current legal obligation under Title VII, or the Commission's regulations and/or policies. The Commission's decision to reject Watkins' settlement proposal is simply a nonfinal agency decision that does not itself adversely affect Watkins, and is therefore not ripe for judicial review. See National Parks, 324 F.3d at 1237 ("[T]he Supreme Court has defined a nonfinal agency order as one that does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action."). See also Georator, 592 F.2d at 768 (no finality even in Commission's determination of reasonable cause to believe a violation has occurred, as "it is lifeless, and can fix no obligation nor impose any liability on the plaintiff. It is merely preparatory to further proceedings."). Watkins offers several other arguments in support of its position, but none are availing. It cites First Nat'l Bank of Chicago v. Comptroller of the Currency of the United States, 956 F.2d 1360, 1364-65 (7th Cir. 1992), as support for its assertion that "[b]ecause the EEOC's refusal to comply with its internal procedures and guidelines regarding settlement, intended to benefit respondents such as Watkins in obtaining resolution of a charge, will otherwise evade review, the hardship prong is satisfied here and these matters are ripe for consideration by the Court." At. Brief at 27. However, First Nat'l Bank provides no support for Watkins' assertion. First Nat'l Bank involved a plaintiff bank who brought a challenge to the Comptroller of the Currency's letter ruling refusing to let the bank compensate withdrawing investors via property distribution. 956 F.2d at 1361. In that case, the court found that the plaintiff had sought permission to distribute property based upon the government either "acceding to the [plaintiff's] interpretation of the regulations [governing this issue] or [the government] waiving them," and the government rejected the request. Id. at 1364. The court noted that the Comptroller's action was "indisputably" a final agency action subject to judicial review. Id. The court further noted that under the circumstances of that case the plaintiff would not have any opportunity to obtain judicial review of the denial of permission because the bank would have to "fold its tent in the face of [government] disapproval." Id. at 1365. In other words, the plaintiff was finally prohibited from making property distributions. The instant matter presents a completely different situation. The Commission's rejection of the settlement proposal did not amount to a final determination on the merits of the charge. As described above, in the face of the Commission's rejection of Watkins' settlement proposal, Watkins is under no legal obligation to do anything, or to refrain from doing anything. Watkins' position in the instant matter is therefore not comparable to the plaintiff in First Nat'l Bank. In addition, in discussing the finality of the action taken by the government, the court in First Nat'l Bank expressly noted that the government did not "request additional information before making a definitive ruling." Id. at 1364. In the instant matter, however, the Commission informed Watkins that it needed to continue its investigation before it could make a determination as to whether settlement would be reasonable and appropriate. R.4, Exh. F. Watkins also argues that the Commission has no institutional interest that would favor postponement of judicial review of Watkins' policy "and the agency's position that Watkins cannot continue that policy." At. Brief at 28. This is flatly incorrect. First, the Commission has made no determination as to the lawfulness of Watkins' hiring practices, and therefore has not taken any position as to whether Watkins may or may not continue those practices. Second, the Commission has a strong institutional interest in being able to perform its statutorily-authorized responsibility to investigate charges of discrimination without its efforts being obstructed by meritless, unripe litigation such as the present action. In fact, this Court has expressly recognized that the inherent agency interest in carrying out its statutory mandate serves as a foundation for the ripeness doctrine: One of the "basic rationale[s]" for the ripeness doctrine is ‘to protect the [administrative] agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. When a court is asked to review decisions of administrative agencies, it is hornbook law that courts must exercise patience and permit the administrative agency the proper time and deference for those agencies to consider the case fully. Nat'l Adver., 402 F.3d at 1339 (citation omitted; alteration in original). While Watkins has attempted in this appeal to establish as proven fact its position as to the merits of the charge, see At. Brief at 12-17, the merits of that charge are not before this Court and are not the subject of this appeal. The Commission has made no determination on the merits of the charge, and has not even completed the investigation into the charge. Moreover, judicial review of the merits of the charge at this time is precluded by this Court's holding in Mississippi Chem., where this Court affirmed the district court's ruling that a charge of discrimination, and "some investigation," does not present a ripe controversy because it does not amount to a reviewable final agency action. See 786 F.2d at 1014, 1019. Even if the Commission had come to a determination on the merits of the charge, that determination would not present a ripe controversy: Standing alone, [the Commission's determination of reasonable cause] is lifeless, and can fix no obligation nor impose any liability on the plaintiff. It is merely preparatory to further proceedings. If and when the EEOC or the charging party files suit in district court, the issue of discrimination will come to life, and the plaintiff will have the opportunity to refute the charges. Georator, 592 F.2d at 768. Judicial review, of course, would be pointless at this time because the evidentiary basis for any such an assessment has not been developed—the Commission has been unable to complete its investigation, and Watkins has failed to provide the vast majority of the information it has identified as responsive to the Commission's investigative inquiry. To paraphrase the Supreme Court in Standard Oil, the Commission's rejection of Watkins' settlement proposal during the pendency of its investigation and prior to determining whether there even exists reasonable cause to believe a violation of Title VII had occurred, is not a definitive ruling sufficient to render the decision a final agency action. It has no legal force or practical effect upon Watkins' daily business, particularly given that Watkins is under no court enforced obligation to comply with a subpoena. "Immediate judicial review would serve neither efficiency nor enforcement of [Title VII]." Standard Oil, 449 U.S. at 242, 101 S. Ct. at 495. "These pragmatic considerations," here as in Standard Oil, "counsel against the conclusion that the [Commission's rejection of the settlement proposal] was ‘final agency action.'" Id. B. The Commission's rejection of Watkins' settlement proposal was not the type of nonfinal agency action which a court may review under the Leedom v. Kyne exception. As the district court correctly concluded, Watkins' reliance on the rarely- used exception developed in Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180 (1958) is misplaced. Leedom involved a "brazen defiance of the express provisions of the [National Labor Relations Act]" by the National Labor Relations Board—an act described by the Court as constituting an "extreme factual context." United States v. Feaster, 410 F.2d 1354,1366-67 (5th Cir. 1969). The rule fashioned by the Court in Leedom "represents only a narrow and rarely successfully invoked exception to the doctrine that exhaustion of administrative procedures is a condition precedent to federal court jurisdiction." Id. at 1368. Under this narrow and rare exception, access to the courts is available only if the agency's action was taken in excess of its statutory powers and contrary to a specific statutory prohibition. Leedom, 358 U.S. at 189, 79 S. Ct. at 184. The Fifth Circuit Court of Appeals has recognized that this exception is generally interpreted as "sanctioning the use of injunctive powers only in a very narrow situation in which there is a ‘plain' violation of an unambiguous and mandatory provision of the statute." Feaster, 410 F.2d at 1365 (citation omitted). The court described the extraordinary nature of the type of agency action which would support application of the Leedom exception as agency action which "is infused with error which is of a summa or magna quality as contraposed to decisions which are merely cum error. Only the egregious error melds the [agency's] decision into justiciability." Id. In deciding whether such "summa or magna quality" egregious error is present, the court must "determine whether there was such an obvious or gross misapplication of statutory dictates that jurisdiction was vested in the district court." Id. Watkins' contention that the circumstances presented by this case would warrant application of the Leedom exception is frivolous and arguably in bad faith. Far from being in excess of the Commission's statutory powers or contrary to any statutory prohibition, the Commission's refusal to accept Watkins' settlement offer was wholly in accordance with the proper exercise of its administrative investigatory authority. The Commission has no statutory or regulatory duty to accept a settlement proposed during the course of its administrative processing of a charge, and Watkins points to no such requirement. The Commission is simply following the dictates of its statutory authority to gather information to determine whether there is reasonable cause to believe a violation has occurred. Furthermore, although the Leedom exception does not extend beyond agency obligations which arise by operation of statute, we also note that the Commission acted consistent with its procedural guidelines. The Commission's procedural regulations provide it with discretionary, not mandatory, authority to settle charges—"[p]rior to the issuance of a determination as to reasonable cause the Commission may encourage the parties to settle the charge on terms that are mutually agreeable." 29 C.F.R. § 1601.20(a) (emphases added). The Commission's charge processing procedures provide "[t]hat settlement efforts be encouraged at all stages of the administrative process and that the Commission may accept settlements providing ‘substantial' relief when the evidence of record indicates a violation or ‘appropriate' relief at an earlier stage in the investigation." R.4, Exh. 2 (Charge Processing Procedures Adopted by EEOC And Task Force Recommendations To Be Implemented By Chairman, dated April 19, 1995) (emphasis added). The Commission's Compliance Manual further provides that while the objective of negotiated settlement is to "fulfill the statutory purpose of law enforcement by eliminating discrimination at the earliest stage in the process," the Commission "is not required to engage in negotiated settlement before a finding and will exercise its sole discretion to do so on a case-by-case basis. . . . A party may request that negotiated settlement be attempted, but EEOC will determine whether or not a particular case warrants such an attempt." R.4, Exh. 7 (EEOC Compliance Manual Vol. 1, Section 15, Negotiated Settlement, at 15.2) (emphasis added). These nonstatutory sources of the Commission's authority to settle charges make clear that the Commission is vested with discretionary authority to settle, and respondents such as Watkins have no right or entitlement to settlement of a charge. Accordingly, despite Watkins' unsupported mischaracterizations to the contrary, the Commission's rejection of Watkins' settlement proposal cannot reasonably be characterized as the sort of brazen action taken in excess of its statutory powers and contrary to a specific statutory prohibition, sufficient to render judicial review appropriate under the Leedom exception. Watkins attempts to confuse the matter by asserting that the Commission's rejection of its settlement proposal "directly violated the agency's own promulgated rule regarding the use of conviction records" because Watkins had allegedly "demonstrated" the business necessity for its hiring policy regarding the use of conviction records, and that this "violation" by the Commission was sufficient to warrant invocation of the Leedom exception to finality. At. Brief at 29-30. In proffering this argument, Watkins is simply attempting to have this Court determine that its position regarding the merits of Mr. Jackson's charge is correct. That question, however, is not before this Court. The question before the Court concerns whether Watkins is entitled to compel the Commission to accept its settlement proposal, and the Commission's policy guidance regarding the use of conviction records in hiring decisions provides Watkins with no such remedy. See generally R.4, Exh. 5 (EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, No. N-915-061 (Sept. 7, 1990)). The Commission's rejection of Watkins' rather one-sided settlement proposal—wherein Watkins offered to adopt a written policy continuing the use of conviction records in hiring, without further Commission investigation into whether it unlawfully discriminated against Mr. Jackson in its past and/or present use of conviction records, and in exchange for the Commission agreeing to not bring any other challenges to Watkins' use of conviction records in hiring—was in no way inconsistent or in conflict with any legal duty or obligation owed by the Commission. Watkins also suggests that the circumstances in this case are such that if this Court does not find that jurisdiction is proper, the Commission's actions will "otherwise evade review," and that the Commission believes that its actions in the course of its investigation processes are not judicially reviewable. At. Brief at 29- 30. This argument simply misses the point, as the Commission has no obligation to accept Watkins' settlement proposal, and the Commission's rejection of that proposal is not a final agency action subject to judicial review. Conclusion For the foregoing reasons, the Commission respectfully requests that this Court affirm the district court's dismissal of Watkins' complaint. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance I certify that this brief complies with the type-volume limitations set forth in Fed. R. App. P. 32(a)(7)(B) and Eleventh Circuit Rule 32-4. This brief contains 9,296 words, from the Statement of the Issue through the Conclusion, as determined by the Word Perfect 9 word-counting program, and was prepared using the WordPerfect 9.0 word-processing system in 14-point proportionally spaced type for text and 14-point type for footnotes. __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Addendum Certificate of Service I hereby certify that one original and six copies of the foregoing brief were sent this 2nd day of November, 2005, by FedEx Next Day Air, postage prepaid, to the Clerk of this Court. I further certify that one copy of the foregoing brief was sent this 2nd day of November, 2005, by FedEx Next Day Air, postage prepaid, to the following counsel of record for Plaintiff-Appellant: Joan M. Canny, Esq. Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A. 150 W. Flagler St., Suite 2200 Miami, FL 33130 __________________________ JAMES M. TUCKER Appellate Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 Office of General Counsel November 2, 2005 VIA FEDEX NEXT DAY AIR DELIVERY Thomas K. Kahn, Clerk U.S. Court of Appeals for the Eleventh Circuit 56 Forsyth St. N.W. Atlanta, Georgia 30303 Re: Watkins Motor Lines, Inc. v. Cari Dominguez, Chair, Equal Employment Opportunity Commission, and U.S. Equal Employment Opportunity Commission Appeal No. 05-13744 Mr. Kahn, Please find enclosed for filing on the above-captioned appeal one original and six copies of the brief of Defendants-Appellees. Also, please find enclosed my certificate of service of one copy of this brief on counsel for Plaintiff-Appellant Watkins Motor Lines, Inc. Thank you, and please do not hesitate to contact me if you have any questions or concerns regarding this filing. Sincerely, James M. Tucker Appellate Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel, Appellate Services Division 1801 L. St., N.W., Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@eeoc.gov Enclosures cc (w/encl.): Joan M. Canny, Esq. ******************************************************************************** <> <1> Watkins also argues on appeal that this Court should grant its motion for summary judgment (on which the district court did not rule). Because dismissal was proper for the reasons provided by the district court and as stated in this brief, Watkins cannot prevail on its motion for summary judgment and therefore dismissal was proper. <2> Watkins also makes the incredible assertion that the government has somehow conceded jurisdiction in matters such as those presented in its lawsuit, based upon a footnote in a reply brief filed by the government, stating that “[i]f the [agency’s enabling statute] specifically required [agency] approval of informal settlements, and the [agency] improperly refused to consider such a settlement, its failure to act would be reviewable pursuant to Leedom v. Kyne.” At. Brief at 30-31 (quoting NLRB v. United Food & Commercial Workers Union, Supreme Court Docket No. 86-594, Reply Brief for the Petitioners, at 17 n.19.) (R.18, Exh.10) (alterations and emphasis in Watkins’ brief). Whatever the meaning of this footnote, it is absolutely clear that the government does not waive sovereign immunity by footnote in a reply brief; nor can a statement in a reply brief create jurisdiction in a suit against the government. Sovereign immunity must be explicitly, statutorily waived by Congress, and jurisdiction over a suit against the government must similarly be explicitly conferred by statute. Lockerty, 319 U.S. at 187, 63 S. Ct. at 1022; Mitchell, 445 U.S. at 538, 100 S. Ct. at 1351. <3> This Court has adopted as its body of precedent the decisions issued by the Fifth Circuit Court of Appeals prior to October 1, 1981. Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981). <4> It is no wonder that Watkins takes a seriously flawed position on this appeal, as its brief on appeal makes no mention of this Court’s dispositive precedent in Mississippi Chem., a case relied upon by the district court in concluding that dismissal was warranted. See Order at 6. <5> Watkins does not even cite, much less address, Cash or Lifestar, this Court’s controlling authority on the question of whether a district court may exercise jurisdiction over an action in mandamus. <6> Watkins asserts that the district court “improperly failed to consider the allegations of the complaint as true for purposes of the mandamus act,” but offers no explanation as to how this was the case. At. Brief at 32. This argument is without merit. The district court properly limited its examination to the aforementioned factors and treated Watkins’ factual allegations as true, but the court did not adopt Watkins’ unsupported assertion as to the legal obligation it claimed it was owed by the Commission. The court came to the correct conclusion that because the Commission was not obligated to accept Watkins’ settlement offer—a legal conclusion based upon a review of the regulatory and policy statement sources pointed to by Watkins as allegedly giving rise to this legal obligation—mandamus relief was not available to Watkins. See Order at 10-11.