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January 4, 2000


The opinion of the court was delivered by: Kennedy, District Judge.


Borg-Warner Protective Services Corporation ("Borg-Warner") filed the instant action seeking a declaration that the compulsory arbitration agreement it requires its employees to sign does not violate Title VII, and for related injunctive relief. Presently before the court is the motion of the United States Equal Employment Opportunity Commission ("EEOC") to dismiss for lack of subject matter jurisdiction. For the reasons discussed below, the court concludes that the EEOC's motion to dismiss should be granted.


As a condition of employment, Borg-Warner requires its employees to sign an agreement to submit any disputes with Borg-Warner arising from their employment to arbitration ("Arbitration Agreement"), including claims arising under federal statutes such as Title VII. Complaint ¶¶ 6-7. In 1996, the EEOC adopted a National Enforcement Plan ("NEP") that sets forth its enforcement priorities. Compl. ¶ 17 & Exh. 2. The NEP establishes as an enforcement priority "[c]laims presenting unresolved issues of statutory interpretation under one or more of the statutes enforced by the Commission," including "[c]laims addressing the legality of agreements that mandate binding arbitration of employment discrimination disputes imposed as a condition of initial or continued employment." Compl. ¶ 17 & Exh. 2 at § B(1)(h).

In July 1997, the EEOC issued a "Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment" ("Policy Statement"). Compl. ¶ 18 & Exh. 3 at 11. The Policy Statement sets forth the EEOC's "position that agreements that mandate binding arbitration of discrimination claims as a condition of employment are contrary to the fundamental principles" of federal civil rights laws, including laws prohibiting employment discrimination. Compl.Exh. 3 at 11. The Policy Statement discusses the EEOC's reasons for this position. Id. at 11-16. The Policy Statement further provides instructions to its field offices and its headquarters, as follows:

1. . . . Field offices are instructed to closely scrutinize each charge involving an arbitration agreement to determine whether the agreement was secured under coercive circumstances (e.g., as a condition of employment). The Commission will process a charge and bring suit, in appropriate cases, notwithstanding the charging party's agreement to arbitrate.
2. Pursuant to the statement of priorities in the National Enforcement Plan see § B(1)(h), the Commission will continue to challenge the legality of specific agreements that mandate binding arbitration of employment discrimination disputes as a condition of employment. . . .

Id. at 16.

On December 10, 1998, one of Borg-Warner's former employees, Rudy Lee, filed a charge with the EEOC's Seattle, Washington office alleging that Borg-Warner had discriminated against him on the basis of race. Compl. ¶ 20. Although Mr. Lee had signed the Arbitration Agreement as a condition of his employment, Mr. Lee did not mention it in his EEOC charge. Compl. ¶¶ 6, 21. On March 12, 1999, after it had investigated Mr. Lee's charge, the EEOC issued its determination ("Determination") that there was insufficient evidence to support Mr. Lee's charge of race discrimination. Compl. ¶ 21 & Exh. 5 at 1. The Determination further stated, however, that the EEOC had found "reasonable cause to believe that there is a violation of Title VII in that [Borg-Warner] requires employees to sign a Pre-dispute Resolution Agreement, which requires arbitration in lieu of court action in matters relating to employment." Id. On the same date, the EEOC invited Borg-Warner to conciliate the Lee matter by, inter alia, ceasing use of, and rescinding, the Arbitration Agreement. Compl. ¶ 22 & Exh. 6. Subsequent conversations between Borg-Warner's counsel and the EEOC made clear that these were non-negotiable conditions, and conciliation failed. Compl. ¶¶ 23-24 & Exhs. 7-8.

On April 8, the EEOC issued Mr. Lee a Notice of Right to Sue. Def.'s Mot. Dismiss Exh. 1. The Notice provides in pertinent part:

The Commission has determined that it will not bring a civil action against the respondent(s) and accordingly is issuing this Notice of Right to Sue. With the issuance of this Notice the Commission terminates its process with respect to your charge, except that the Commission may seek status as intervenor if you decide to sue on your own behalf as described below.

Def.'s Mot. Dismiss Exh. 1. In the meantime, on April 5, 1999, Borg-Warner filed suit in this court, seeking declaratory and injunctive relief. Compl. at 10.


The EEOC seeks to have this case dismissed on several grounds. The EEOC contends that this court does not have subject matter jurisdiction under the statutory provisions set forth in the complaint, 28 U.S.C. § 1331, 1337, and 1343, because neither Title VII nor the Administrative Procedure Act ("APA") serves as a predicate to jurisdiction under those statutes. The EEOC also claims that Borg-Warner lacks standing and that its claims are not ripe and are moot.


In ruling upon a motion to dismiss brought under Rule 12(b)(1), a court must construe the allegations in the Complaint in the light most favorable to the plaintiff. See, e.g., Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Additionally, a court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case. See, e.g., Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir. 1987); Hohri, 782 F.2d at 241; Transamerica ...

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