The opinion of the court was delivered by: KELLY
Presently before the Court are the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) of Defendant United States Equal Employment Opportunity Commission ("EEOC"), the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) of Defendant United States Defense Logistics Agency ("DLA"), and the Motion to Strike Plaintiffs' Surreply Memorandum of Defendant EEOC. For the reasons set forth below, the Court will grant the Motions, but will allow Plaintiffs to file an amended complaint of employment discrimination against the head of the DLA.
This action arises out of administrative complaints filed by Plaintiffs with the DLA. Alleging that the DLA discriminated against them on the basis of their race, age, gender, and handicap by not selecting them for certain positions, Plaintiffs filed their complaints under Title VII, section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, the Rehabilitation Act, 29 U.S.C. § 791, and the regulations that implement these acts at 29 C.F.R. § 1614. The DLA forwarded the complaints to the EEOC for an administrative hearing, and the EEOC administrative judge subsequently remanded the complaints to the DLA for failure to prosecute. The administrative judge also authorized the DLA to issue final agency decisions, which the DLA did.
Pursuant to 29 C.F.R. §§ 1614.402 and 1614.408, Plaintiffs were permitted to appeal these decisions to the Office of Federal Operations of the EEOC or to file a civil action in a federal district court for de novo review of the claims against the DLA. Instead, Plaintiffs informed the EEOC and the DLA that they believed that the administrative judge had wrongfully remanded the case to the DLA and requested that the complaints be transferred back to the EEOC for a hearing. When Plaintiffs' requests were not granted, they filed the instant lawsuit. Plaintiffs do not seek de novo review of their claims against the DLA, nor do they seek a remedy for discrimination by the DLA. Rather, Plaintiffs challenge the administrative judge's remand of their claims to the DLA and the DLA's refusal to send the claims back to the EEOC for an administrative hearing. Plaintiffs allege that the remand was not authorized by 29 C.F.R. § 1614.107(g) or any other provision of that title, and that the failure to rescind the agency decisions and to hold an administrative hearing denied them their rights to petition the government for redress of grievances and to due process, in violation of the First and Fifth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964, 29 C.F.R. § 1614, and other federal laws. Accordingly, Plaintiffs ask this Court to issue "an injunction against DLA ordering the agency to rescind its final decision and to remand plaintiffs' complaints to the EEOC for a full adjudicatory hearing on the merits of their complaints." See Plaintiffs' Memorandum in Support of Their Motion in Opposition to DLA's Motion to Dismiss at 4.
Defendants have moved to dismiss the Complaint for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction. In response to the EEOC's Reply Brief in Support of its Motion, Plaintiffs filed what is in essence a surreply, entitled Plaintiffs' Memorandum of Law in Support of Their Reply in Opposition to the U.S. Equal Employment Opportunity Commission's Reply Brief in Support of its Motion to Dismiss. The EEOC has filed a Motion to Strike this surreply, to which Plaintiffs have not responded.
A. Motion to Strike Plaintiffs' Surreply Memorandum
Section 4 of the Pretrial and Trial Procedures furnished to the parties in this case provides that, after a motion, opposition, and reply memorandum have been filed, "no further briefing by either party may be filed without express leave from the court." In addition, Local Rule of Civil Procedure 7.1(c) allows a court to grant a motion as uncontested "in the absence of a timely response." In the instant case, Plaintiffs did not seek leave of the court to file their surreply and did not respond to the Motion to Strike. Accordingly, the Court will grant the EEOC's Motion to Strike Plaintiffs' Surreply Memorandum.
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of a complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). A complaint may be dismissed for failure to state a claim upon which relief may be granted if the facts pled and reasonable inferences therefrom are legally insufficient to support the relief requested. See Commonwealth ex. rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988). In reviewing a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. See Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir. 1985).
Plaintiffs claim that they are entitled to relief pursuant to Title VII of the Civil Rights Act. Title VII, however, does not create "an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge." McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984); see also Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991) (same), cert. denied, 505 U.S. 1205, 112 S. Ct. 2995, 120 L. Ed. 2d 872 (1992); Golyar v. McCausland, 738 F. Supp. 1090, 1093-94 (W.D. Mich. 1990) (same). Instead, section 717 of Title VII, 42 U.S.C. § 2000e-16, allows a federal employee to file suit in federal court against the agency that employs him and to receive de novo review of the claim in that court. McCottrell, 726 F.2d at 352; Golyar, 738 F. Supp. at 1094 (citing Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977)). Finding that Congress intended this private right of action to "be the all-purpose remedy for charging parties dissatisfied with the EEOC's handling of their charge," courts have consistently precluded Title VII suits against the EEOC. E.g., Hall v. EEOC, 456 F. Supp. 695, 701 (N.D. Cal. 1978); see McCottrell, 726 F.2d at 351-352. Therefore, ...