BNSF Ry. Co. v. Equal Emp't Opportunity Comm'n

• Citation: 385 F.Supp.3d 512
• Decision Date: 27 November 2018
• Docket Number: Civil Action No. 4:18-cv-00311-O
• Parties: BNSF RAILWAY COMPANY, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

385 F.Supp.3d 512

BNSF RAILWAY COMPANY, Plaintiff,

v.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants.

Civil Action No. 4:18-cv-00311-O

United States District Court, N.D. Texas, Fort Worth Division.

Signed November 27, 2018

Bryan P. Neal, Katy Amanda Noeth Mathews, Stephen F. Fink, Thompson & Knight LLP, Dallas, TX, for Plaintiff.

Brian Walters Stoltz, U.S. Attorney's Office, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

BNSF Railway Company brought this suit against the Equal Employment Opportunity Commission (EEOC) seeking declaratory and injunctive relief for what BNSF characterizes as manifestly illegal agency action.¹ In response, the EEOC moved to dismiss the case in its entirety.² The EEOC argues BNSF establishes no basis for subject-matter jurisdiction over its claims.³

For the reasons explained below, the motion is DENIED .

I. BACKGROUND

A. Undisputed Facts

The EEOC is a federal agency created by Congress to administer the nation's employment-nondiscrimination laws. The EEOC enforces these laws according to the scheme established by Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, et seq. As relevant to this dispute, the EEOC typically investigates alleged violations of a nondiscrimination law after receiving a charge of discrimination filed by an aggrieved employee, a job applicant, or a Commissioner of the EEOC. See 42 U.S.C. § 2000e-5. The latter method is known as a Commissioner's charge.

When it completes an investigation, the EEOC makes a "reasonable cause" determination—an official determination on whether there is reasonable cause to believe an employer has violated a nondiscrimination law. Id. If the EEOC finds reasonable cause, it may sue the employer or issue a right-to-sue notice to inform an aggrieved person that he or she has the right to file his or her own suit within a specified time. Importantly, private parties are generally precluded from suing an employer during the early stages of an EEOC investigation. See generally id. This guides employment-discrimination issues through an administrative process with the hope of encouraging steady oversight and conciliation rather than rampant litigation.

In 2012, BNSF received notice of a Commissioner's charge indicating the EEOC would begin investigating BNSF for purported violations of the ADA and the Genetic Information Nondiscrimination Act (GINA).⁴ See Compl. ¶ 8b, ECF No. 1. Over the next several years, BNSF and the EEOC communicated regularly about the investigation and BNSF produced various documents and information. Id. at 9–11. BNSF dealt frequently with the EEOC's Denver field office. Though BNSF worked with the EEOC on several requests, it also challenged some and declined others. Id. at 10.

On March 29, 2018, the EEOC issued right-to-sue letters to 54 individuals. The letters reported that the EEOC found reasonable cause to believe BNSF violated the ADA, that the EEOC was not planning to sue BNSF, and that the recipients of the letters had the right to file their own lawsuits within 90 days. Def.'s Br. Supp. Mot. Dismiss 2, ECF No. 10 [hereinafter "Mot. Dismiss"]. On April 24, 2018, BNSF filed this suit against the EEOC. Compl., ECF No. 1.

B. BNSF's Allegations

BNSF first takes issue with the Commissioner's charge on which the EEOC's initial investigation was based. It alleges, among other things, that the charge:

• failed to identify "any period of time during which the ADA discrimination and GINA violations allegedly occurred, making it defective as a charge under EEOC's own regulations, see 29 C.F.R. § 1601.12(a)(3), and the Supreme Court's decision in EEOC v. Shell Oil Co. , 466 U.S. 54, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984)";

• did "not state any facts and instead parrot[ed] the language of the statute ... another defect making the charge invalid under both EEOC's regulations and Shell Oil ";

• was "not made under ‘oath or affirmation’ as required by a provision of Title VII adopted in the ADA. 42 U.S.C. § 2000e-5(b) ; see also 29 C.F.R. §§ 1601.9, 1601.11(a)"; and

• "was not even filed by a member of the Commission" because it was signed by "Stuart J. Ishimaru dated April 25, 2012" and "[i]t is not clear that Mr. Ishimaru was still an EEOC Commissioner on that date, because on April 11, 2012, EEOC announced his resignation from the Commission ‘this month’ and a news release on April 30 announced his acceptance of a new position with the Consumer Financial Protection Bureau."

Id. at 7–8. BNSF's Complaint continues that, "whatever [Commissioner Ishimaru's] status on April 25, an EEOC regulation provides that a Commissioner's charge is ‘deemed filed upon receipt by the Commission office responsible for investigating the charge’ " and the "EEOC confirmed to BNSF that the purported Ishimaru Commissioner's charge was received by the Denver Field Office on May 11." Id. at ¶ 8e.

BNSF also alleges the Commissioner's charge ultimately resulted in issuance of the 54 right-to-sue letters. Specifically, BNSF claims the letters were sent "based on the purported Ishimaru Commissioner's Charge to 54 persons whose names BNSF had supplied to the Commission in reliance on EEOC's assurances, in writing and by telephone, that the information was not being requested in connection with that ostensible charge." Id. at ¶ 13. BNSF further alleges that, because the EEOC received the names of the 54 right-to-sue recipients from BNSF in document requests purportedly unrelated to the original Commissioner's charge, and because those individuals were not privy to that investigation, "each of the 54 recipients ... is a member of the ‘public’ to whom information about a charge or information gathered in connection with a charge cannot be lawfully disclosed by EEOC." Id. at ¶ 17.

BNSF requests a judgment declaring the Commissioner's charge void, a judgment declaring the right-to-sue letters void, a judgment requiring the EEOC to withdraw the letters and advise recipients of such withdrawal, and a judgment enjoining any lawsuit based on the right-to-sue letters. Id. at 13–14. The EEOC moves to dismiss BNSF's claims under Rules 12(b)(1) and (6). Mot. Dismiss, ECF No. 10.

II. LEGAL STANDARD

The EEOC primarily moves to dismiss under Federal Rule of Civil Procedure 12(b)(1). It argues BNSF fails to identify an agency action subject to judicial review and therefore lacks a hook for invoking jurisdiction under 28 U.S.C. § 1331. The EEOC further contends BNSF fails to establish a basis for jurisdiction under any of the remaining statutes cited in the Complaint. Specifically, it urges that those statutes plainly do not confer jurisdiction and that, in any event, BNSF fails under Rule 12(b)(6) to sufficiently state a claim to justify their application here.⁵

A. Rule 12(b)(1) —Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Federal district courts exercise limited subject-matter jurisdiction. Where such a court lacks a specific basis for subject-matter jurisdiction over a claim, it has no power to hear it. Accordingly, Rule 12(b)(1) allows a defendant to move for the dismissal of claims based on "lack of subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1).

"A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund , 81 F.3d 1182, 1187 (2d Cir. 1996) ). "A court may base its disposition of a motion to dismiss for lack of subject matter jurisdiction on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Montez v. Dep't of Navy , 392 F.3d 147, 149 (5th Cir. 2004) (quoting Robinson v. TCI/US W. Commc'ns Inc. , 117 F.3d 900, 904 (5th Cir. 1997) ). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction."

Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted).

B. Reviewability Under the APA

Here, BNSF suggests that, at a minimum, subject-matter jurisdiction exists over the case through a combination of 28 U.S.C. § 1331 and section 10(a) of the Administrative Procedure Act (APA), codified at 5 U.S.C. § 702.⁶ Compl. ¶ 1, ECF No. 1. Section 1331 provides, "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Section 1331 therefore provides only for jurisdiction—it does not supply a cause of action or waive sovereign immunity. The APA does both. See Stockman v. FEC , 138 F.3d 144, 151 n.13 (5th Cir. 1998).

Section 10(a) of the APA provides, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The Supreme Court has noted two distinct requirements in this statutory language. "First, the person claiming a right to sue must identify some ‘agency action’ that affects him in the specified fashion." Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "Second, the party seeking review under § 702 must show that he has ‘suffer[ed] legal wrong’ because of the challenged agency action, or is ‘adversely affected or aggrieved’ by that action ‘within the meaning of a relevant statute.’ " Id. at 883, 110 S.Ct. 3177.

Where "review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’ "⁷ Id. at 882, 110 S.Ct. 3177 (citing 5 U.S.C. § 704 ). To be "final," an agency action must "mark the consummation of the agency's decisionmaking process" and "be one by...