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 §
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,
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
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. . . .
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
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
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 ...