Table of Authorities

Aguilar v. U.S. Immigration & Customs Enforcement Division,
510 F.3d 1 (1st Cir. 2007).................................................................... 14

Alberto San, Inc. v. Consejo De Titulares Del Condominio
San Alberto, 522 F.3d 1 (1st Cir. 2008)............................................. 10

Baba v. Japan Travel Bureau International, Inc., 111 F.3d 2
(2d Cir. 1997) (per curiam).................................................................. 12

Bagenstose v. District of Columbia, 503 F. Supp. 2d 247
(D.D.C. 2007)........................................................................................... 9

Block v. North Dakota ex rel. Board of University & School
Lands, 461 U.S. 273 (1983)................................................................... 7

Brown v. Trustees of Boston University, 891 F.2d 337
(1st Cir. 1989).......................................................................................... 6

Coggeshall Development Corp. v. Diamond, 884 F.2d 1
(1st Cir. 1989).......................................................................................... 7

Daley v. Town of New Durham, N.H., 733 F.2d 4 (1st Cir. 1984)....... 14

Early v. Bankers Life & Casualty Co., 959 F.2d 75 (7th Cir. 1992)...... 8

Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471 (1994)............ 7

Forbes v. Reno, 893 F. Supp. 476 (W.D. Pa. 1995).................................. 9

Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir. 1979)...... 12

Hale v. King, 642 F.3d 492 (5th Cir. 2011)............................................. 14

In re Rivera Torres, 432 F.3d 20 (1st Cir. 2005)....................................... 8

Leitner v. Potter, No. 05-5674, 2008 WL 750584 (W.D. Wash.
Mar. 18, 2008)......................................................................................... 9

McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984)................................ 12

Merlonghi v. United States, 620 F.3d 50 (1st Cir. 2010)........................ 7

Merrell Dow Pharmaceuticals Inc. v. Thompson,
478 U.S. 804 (1986)......................................................................... 9–10

Muirhead v. Mecham, 427 F.3d 14 (1st Cir. 2005)................................ 13

Muniz-Rivera v. United States, 326 F.3d 8 (1st Cir. 2003).............. 5, 13

Munoz v. Mabus, 630 F.3d 856 (9th Cir. 2010)....................................... 8

Murphy v. United States, 45 F.3d 520 (1st Cir. 1995)............................ 2

Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) (per curiam)........... 12

Perez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19
(1st Cir. 2011)....................................................................................... 12

Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997) (per curiam)....... 12, 15

Templeton Board of Sewer Commissioners v. American Tissue
Mills of Massachusetts, Inc., 352 F.3d 33 (1st Cir. 2003)......... 10, 13

United States v. Mitchell, 445 U.S. 535 (1980)........................................ 6

United States v. Puerto Rico, 287 F.3d 212 (1st Cir. 2002).................... 5

Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983)........................................ 12

Statutes

28 U.S.C. § 1291........................................................................................... 1

28 U.S.C. § 1331................................................................................ 1, 9–10

42 U.S.C. § 2000e-2(a)............................................................................... 11

42 U.S.C. § 2000e-5(f)......................................................................... 11, 15

42 U.S.C. § 2000e-6(b)............................................................................... 11

42 U.S.C. § 2000e-16(c)......................................................................... 8, 11

Rules and Regulations

Federal Rule of Appellate Procedure 4(a)(5)............................................ 1

Federal Rule of Civil Procedure 12(b)(6)................................................ 14

Statement of Jurisdiction

a) The district court entered an order on November 5, 2012, dismissing this case for lack of subject matter jurisdiction and based on sovereign immunity. (R.10.) The district court properly ruled (R.10 at 2–3) that it lacked subject matter jurisdiction over Mr. Wang’s complaint, since neither Title VII, 28 U.S.C. § 1331, nor any other statute grants district courts jurisdiction over lawsuits brought by charging parties against the EEOC for processing their charges inadequately or discriminatorily or waives the federal government’s sovereign immunity with respect to such claims.

b) On February 4, 2013, Mr. Wang filed a motion to extend his appeal time (R.11), which the district court granted on February 7 (R.16), pursuant to Federal Rule of Appellate Procedure 4(a)(5). Mr. Wang’s notice of appeal, filed February 4 (R.13), was accordingly timely.

c) The order Mr. Wang is appealing from is a final order that resolves all the parties’ claims.

d) This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 because Mr. Wang appeals from a final decision of the district court. This is true even though the district court lacked subject matter jurisdiction over Mr. Wang’s complaint. Cf. Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (this Court reviews de novo dismissals for lack of subject matter jurisdiction).

Statement of the Issue

In a case brought by a charging party to challenge the way the EEOC investigated his charge, did the district court properly dismiss the case for lack of subject matter jurisdiction and based on sovereign immunity, and/or can the district court’s ruling be affirmed on the alternative ground that the plaintiff’s complaint failed to state a claim?

Statement of the Case

Nature of the Case

Mr. Wang sued the EEOC alleging that the Commission discriminated against him on the basis of his national origin in how it investigated the charge he had filed in April 2011 against his former employer. (R.1 & R.6.) The EEOC moved to dismiss. (R.7.) The district court dismissed the case because Congress has neither granted district courts jurisdiction over lawsuits brought by charging parties against the EEOC for improperly processing their charges nor waived the federal government’s sovereign immunity from such litigation. (R.10.)

Course of Proceedings

Mr. Wang filed his complaint on April 23, 2012 (R.1), and an amended complaint on September 7, 2012 (R.6). The EEOC moved to dismiss on October 12, 2012 (R.7), and the district court granted that motion on November 5, 2012 (R.10).

Statement of the Facts

Mr. Wang, whose national origin is Chinese, stated in his charge that he worked as a senior quality engineer for Brooks Automation from November 2010 to April 2011. Wang brf. App. A. Wang alleged that his supervisor, Toufic Najia, yelled at him, became angry at him when he asked questions, and gave him too much responsibility while at the same time never explaining his duties clearly. Id. In addition, Wang complained to Najia that a co-worker was being abusive and sarcastic toward him, and Najia allegedly did nothing to correct the co-worker. Id. On April 22, 2011, Najia told Wang he was being laid off, purportedly because he did not have good relationships with his colleagues. Id.

Six days later Wang filed a charge with the EEOC alleging that Brooks Automation had treated him discriminatorily and laid him off because he is Chinese and Asian. Wang brf. App. A. Wang claims that he met that day with an EEOC investigator and gave him a file that “contain[ed] 28 points of detailed items of what happened.” (R.6, ¶ 4.)

Wang alleges that the EEOC discriminated against him based on his national origin in how it investigated and processed his charge. (R.6, ¶¶ 13–14, 18.) In particular, he claims that: (a) the investigator hid the 28-point file Wang had given him, and the Commission failed to ask Brooks Automation to respond to it in its position statement or during mediation (R.6, ¶¶ 5–7); (b) the EEOC gave the respondent much more time to respond to Wang’s charge than it gave Wang to respond to the respondent’s position statement (R.6, ¶¶ 9–11); (c) Wang contacted Commission staff several times after the agency closed his file and offered to provide copies of many emails that supported his allegations, and the staff did not respond appropriately (R.6, ¶ 12); and (d) Wang visited the EEOC’s Boston office in January 2012 and complained to another EEOC investigator about the agency’s investigation of his charge, and she allegedly told him, “This is the way of America. If you do not like it, GO BACK TO CHINA!” (R.6, ¶ 13 (emphasis in original)).

Summary of Argument

This Court should affirm the district court’s dismissal order for several reasons. First, Wang has not argued that the district court committed reversible error, and he has therefore waived any such argument. Second, the district court properly dismissed this case for lack of subject matter jurisdiction because the federal government has not waived its sovereign immunity and no statute provides district courts with subject matter jurisdiction to hear claims like Wang’s. Third, the dismissal order can also be affirmed on the alternative ground that Wang failed to state a claim on which relief can be granted.

Argument

I. Standard of Review

This Court affords plenary review of a district court order dismissing a case for lack of subject matter jurisdiction, Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003), including orders dismissing on the basis of sovereign immunity, United States v. Puerto Rico, 287 F.3d 212, 216 (1st Cir. 2002) (waiver of federal sovereign immunity turns on statutory construction and is accordingly granted plenary review).

II. Wang has waived any argument regarding reversible error.

In his brief as appellant, Wang restates the factual allegations that he believes entitle him to relief on the merits of his putative claims. Wang brf. at 1–5. However, he nowhere even alleges that the district court erred, much less explains why the district court’s dismissal was erroneous. He has therefore waived any argument that the district court erred in dismissing his case. Brown v. Trustees of Boston Univ., 891 F.2d 337, 352 (1st Cir. 1989) (“issue not argued on appeal is treated as waived”).

III. The district court properly ruled that it lacked subject matter jurisdiction over this case.

In any event, the district court correctly held that it lacked subject matter jurisdiction over Wang’s complaint because Congress has not waived the federal government’s sovereign immunity for lawsuits like this one. The Supreme Court has held that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued” and that “the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal quotation marks omitted); see also Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983) (“The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress.”); Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (“The United States as a sovereign can be haled into court only if it consents to be sued.”).

This doctrine of sovereign immunity is not limited to suits in which the United States itself is the named defendant, but applies with equal force to suits – like this one – in which the defendant is a federal agency. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 2–3 (1st Cir. 1989) (suit against General Services Administration officials and Navy officials barred because Congress did not expressly waive sovereign immunity).

Because sovereign immunity is jurisdictional in nature, any waiver of that immunity “must be ‘unequivocally expressed’ and ‘must be strictly construed in favor of the sovereign,’ with ambiguities construed against waiver.” In re Rivera Torres, 432 F.3d 20, 23-24 (1st Cir. 2005) (citations omitted). As plaintiff, Wang “b[ore] the burden of proof to establish a waiver of immunity.” Id. at 23. Wang has not met this burden here. He has not identified any statute that waives the Commission’s sovereign immunity for the sort of suit Wang has brought – i.e., a claim alleging dissatisfaction with the manner in which the EEOC has processed a private-sector charge of employment discrimination. This is not surprising, because no such statute exists.

Title VII waives the federal government’s sovereign immunity with respect to lawsuits brought by federal employees (or applicants for federal employment) against their (current or prospective or former) employers alleging employment discrimination or retaliation by those employers. 42 U.S.C. § 2000e-16(c); see Munoz v. Mabus, 630 F.3d 856, 861 (9th Cir. 2010) (“Section 717 of Title VII . . . provides an express waiver of sovereign immunity in suits against the government for discriminatory employment practices.”). But Title VII does not waive the federal government’s sovereign immunity with respect to lawsuits by charging parties challenging the way the EEOC processed their charges. Early v. Bankers Life & Cas. Co., 959 F.2d 75, 78 (7th Cir. 1992) (“[T]he government has not waived its sovereign immunity to a damages suit against the EEOC [as a charge-processing agency].”); Bagenstose v. District of Columbia, 503 F. Supp. 2d 247, 255 (D.D.C. 2007) (no waiver of sovereign immunity in Title VII for suit challenging EEOC’s processing of charges); Forbes v. Reno, 893 F. Supp. 476, 481 (W.D. Pa. 1995) (same); Leitner v. Potter, No. 05-5674, 2008 WL 750584, *3 (W.D. Wash. Mar. 18, 2008) (“Sovereign immunity has not been waived [for actions against the EEOC for inadequate processing of charges;] therefore the Court lacks jurisdiction.”).

Further, there is no other basis for subject matter jurisdiction here. Wang asserted in his complaint that the district court had jurisdiction pursuant to 28 U.S.C. § 1331. (R.6, ¶ 3.) But section 1331 does not by itself create a cause of action or grant district courts jurisdiction; it gives district courts jurisdiction over only two types of cases. Most commonly, it grants jurisdiction over cases in which the plaintiff shows that he has a cause of action under some other federal statute. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (normal rule is that a lawsuit “arises under” a federal law for § 1331 purposes only if some other federal law “‘creates the cause of action’”); Alberto San, Inc. v. Consejo De Titulares Del Condominio San Alberto, 522 F.3d 1, 5 (1st Cir. 2008) (“Section 1331 extends federal jurisdiction to ‘those [cases] in which federal law creates the cause of action’; . . . it does not itself provide relief.”) (quoting Merrell Dow). On rare occasions, section 1331 grants district courts jurisdiction over cases in which adjudication of the plaintiff’s non-federal claim requires resolving a substantial question of federal law. See Merrell Dow, 478 U.S. at 808–13 (“[A] case may arise under federal law ‘where the vindication of a right under state law necessarily turned on some construction of federal law,’” . . . but “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.”); Templeton Bd. of Sewer Comm’rs v. Am. Tissue Mills of Mass., Inc., 352 F.3d 33, 37–41 (1st Cir. 2003) (no subject matter jurisdiction under § 1331 because no other statute created plaintiff’s cause of action and plaintiff’s claim did not present a substantial question of federal law). Neither situation applies here.[1]

Since Wang does not cite any other federal statute, he apparently believes that Title VII itself either provides jurisdiction or grants him a substantive cause of action here. (R.6, ¶ 19.[2]) It does not. Title VII grants district courts subject matter jurisdiction over three types of actions only: (a) actions brought by the EEOC or an aggrieved person against the non-federal respondent named in a charge (42 U.S.C. § 2000e-5(f)(1) & (3)); (b) actions brought by the EEOC or the Attorney General against a non-federal respondent alleging a pattern or practice of discrimination (§ 2000e-6(b)); and (c) actions brought by an aggrieved person against the federal agency that discriminated against him as an employee or applicant for employment (§ 2000e-16(c)). This suit falls into none of these categories.

Title VII grants employees and applicants a de novo cause of action against their employers (or prospective or former employers) when they believe that these covered entities have discriminated against them on a prohibited basis. 42 U.S.C. §§ 2000e-2(a)(1) & 2000e-5(f)(1); see also Perez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 25 (1st Cir. 2011). But Wang never worked or applied to work for the Commission. So Wang is not suing the EEOC as his employer or former employer. Rather, he is suing the EEOC because he believes that the agency discriminated against him in how it processed his charge.

However, it is well settled that Title VII does not give charging parties a cause of action to sue the EEOC for not investigating or processing their charges satisfactorily. See, e.g., Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002) (per curiam) (“Title VII does not confer on a charging party a right of action against the EEOC.”); Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam) (“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, 6 (2d Cir. 1997) (per curiam) (same); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984) (same) (citing cases); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983) (same) (citing cases); cf. Francis-Sobel v. Univ. of Maine, 597 F.2d 15, 17–18 (1st Cir. 1979) (no implied right of action under the Due Process Clause for charging party to challenge EEOC’s failure to provide the administrative assistance Congress meant it to provide).

In sum, neither Title VII nor any other federal statute waives the government’s sovereign immunity or gives Wang a cause of action to sue the EEOC for investigating his charge inadequately or discriminatorily. The district court therefore correctly decided that it lacked subject matter jurisdiction to entertain Wang’s claim. See Muirhead v. Mecham, 427 F.3d 14, 15 (1st Cir. 2005) (since plaintiff’s action is barred by federal government’s sovereign immunity, the district court should have dismissed for lack of subject matter jurisdiction); Templeton Bd. of Sewer Comm’rs, 352 F.3d at 36–41 (no subject matter jurisdiction where no federal statute created the cause of action and district court would not have to resolve a substantial question of federal law); Muniz-Rivera, 326 F.3d at 11–17 (plaintiffs’ claims, which fall within exceptions to the FTCA’s waiver of sovereign immunity, are barred by sovereign immunity, and the district court therefore properly dismissed for lack of subject matter jurisdiction).

IV. Alternatively, this Court could affirm the district court’s dismissal because Wang failed to state a claim upon which relief can be granted.

This Court could affirm the district court’s dismissal order on the alternative ground that Wang failed to state a claim on which relief can be granted. See Aguilar v. U.S. Immigration & Customs Enforcement Div., 510 F.3d 1, 8 (1st Cir. 2007); Fed. R. Civ. P. 12(b)(6). A district court properly dismisses a complaint for failure to state a claim if the plaintiff has failed to show that he has a cause of action or that his allegations, if proven, entitle him to relief. See Daley v. Town of New Durham, N.H., 733 F.2d 4, 7 (1st Cir. 1984) (district court properly dismissed count III for failure to state a claim: it fails to state a cause of action because it does not allege a necessary element); Hale v. King, 642 F.3d 492, 498-99 (5th Cir. 2011) (“Under the 12(b)(6) standard, . . . plaintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.”).

As noted supra at pages 12–13, every court of appeals to address the question has held that a charging party has no cause of action against the EEOC for processing his charge inadequately or discriminatorily. Accordingly, even if Wang were to substantiate all his allegations, he would still have failed to state a claim on which relief can be granted, and this Court may affirm the district court’s dismissal order on that ground alone.

Conclusion

If Wang believes the EEOC did a bad job of investigating his charge against Brooks Automation, his remedy is to sue Brooks Automation for discrimination, not to sue the Commission for not investigating his charge properly. Smith, 119 F.3d at 34 (“. . . Congress intended the private right of action provided for in section 706(f)(1) of the Act – under which an aggrieved employee may bring a Title VII action directly against his or her employer – to serve as the remedy for any improper handling of a discrimination charge by the EEOC.”). Accordingly, the

Commission respectfully requests this Court to affirm the district court’s order dismissing this action.

[1] The second option does not apply here because Wang asserts no non‑federal claim, and a court addressing his claim would not need to resolve a substantial question of federal law.

[2] Wang summarizes his claim as follows: “Plaintiff was treated by his former employer with discrimination based on National Origin; and Plaintiff was also treated by the Government office EEOC with the discrimination of National Origin in the process of the discrimination case at EEOC.” Wang brf. at 5.