
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                For The FIRST CIRCUIT                                 ____________________        No. 93-1101                              BERENICE MARY GORCZAKOSKI,                                Plaintiff, Appellant,                                          v.                   EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 93-1108                              BERENICE MARY GORCZAKOSKI,                                Plaintiff, Appellant,                                          v.                 MASSACHUSETTS DEPARTMENT OF PUBLIC WELFARE, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Berenice Mary Gorczakoski on brief pro se.            _________________________            Donald  R.  Livingston, General  Counsel,  Gwendolyn Young  Reams,            ______________________                     ______________________        Associate  General  Counsel,  Lorraine  C.  Davis,  Assistant  General                                      ___________________        Counsel,  and  Jennifer  S.  Goldstein,  Attorney,  Equal   Employment                       _______________________        Opportunity  Commission,  on  brief  for  appellee,  Equal  Employment        Opportunity Commission.                                 ____________________                                    August 9, 1993                                 ____________________                 Per Curiam.   In  these consolidated  appeals, plaintiff                 __________            Berenice  Mary  Gorczakoski appeals  from two  district court            orders  dismissing  her  complaints.   For  the  reasons that            follow, we affirm in each instance.                                   I.  No. 93-1101                                       ___________                 In May 1988, plaintiff was terminated from her long-time            position  as  ticket  agent  with  Eastern  Air  Lines,  Inc.            (Eastern).  She thereafter filed charges against Eastern with            both  the  Massachusetts  Commission  Against  Discrimination            (MCAD)  and the EEOC,  alleging discrimination on  account of            sex, national origin and handicap.  In August 1991, following            an  investigation, an  MCAD  commissioner  found  a  lack  of            probable  cause  to  support plaintiff's  allegations.   That            determination  was  affirmed  on  administrative  appeal  the            following month.   Likewise, the EEOC's Boston  Area Director            issued a determination letter on  May 14, 1992, finding  that            plaintiff's allegations were unsupported and advising  her of            her right to file a private action against Eastern.                 Plaintiff responded  by  filing  the  instant  suit  for            damages, not against  Eastern, but against the  EEOC itself.1            She   alleged   that   the  EEOC   handled   her   charge  of                                            ____________________            1.  At the district court's direction, plaintiff later  filed            an  amended  complaint  naming   Eastern  as  a  codefendant.            Eastern  then  reported  that  it  had  filed  a  Chapter  11            bankruptcy petition in March 1989 and was therefore protected            by the automatic  stay.   See 11  U.S.C.   362(a)(1).   As  a                                      ___            result, plaintiff's claims against Eastern were not addressed            below.                                          -3-            discrimination in a deficient manner--particularly by failing            to  conduct  an  independent  investigation  and  failing  to            monitor the  MCAD.   The  district court  granted the  EEOC's            unopposed motion  to dismiss, determining  that plaintiff had            failed to state  a claim upon which relief  could be granted.            This determination was plainly correct.                 It is well established that Congress has not authorized-            -either  expressly or  impliedly,  either  in  Title  VII  or            elsewhere--"a cause of  action directly against the  EEOC for            misprocessing   of   claims  asserted   against   third-party            employers."   Scheerer v. Rose  State College, 950  F.2d 661,                          ________    ___________________            662-63  (10th Cir. 1991) (noting that courts have "uniformly"            so held), cert. denied, 112 S. Ct. 2995 (1992); accord, e.g.,                      ____________                          ______  ____            McCottrell v. EEOC, 726 F.2d 350, 351 &  n.1 (7th Cir. 1984);            __________    ____            Ward v.  EEOC, 719  F.2d 311, 312-14  (9th Cir.  1983), cert.            ____     ____                                           _____            denied, 466 U.S. 953 (1984); Georator Corp. v. EEOC, 592 F.2d            ______                       ______________    ____            765, 767-68 (4th Cir. 1979).  Likewise, we have held that any            mishandling by  the EEOC of a  Title VII claim  does not give            rise  to a  Bivens implied  right of  action under  the Fifth                        ______            Amendment.   See Francis-Sobel  v. University  of Maine,  597                         ___ _____________     ____________________            F.2d 15, 17-18 (1st Cir.), cert. denied, 444 U.S. 949 (1979);                                       ____________            cf. Johnson  v. Rodriguez,  943 F.2d  104, 108-09  (1st Cir.)            ___ _______     _________            (alleged  irregularities  in handling  of complaint  by state            antidiscrimination commission did  not implicate due  process            interest), cert. denied, 112 S. Ct. 948 (1992).  Instead, the                       ____________                                         -4-            ability  to pursue de  novo judicial proceedings  under Title            VII against the party allegedly engaged in discrimination was            intended to be  "the all-purpose remedy for  charging parties            dissatisfied with the EEOC's handling of their charge."  Hall                                                                     ____            v. EEOC,  456 F. Supp. 695,  701 (N.D. Cal. 1978)  (quoted in               ____            Ward, 719 F.2d at 314).            ____                 As  mentioned,  plaintiff   has  filed  claims  directly            against Eastern, but they  are subject to the automatic  stay            arising from Eastern's  bankruptcy petition.  Absent  interim            relief from  the bankruptcy  court, pursuit  of those  claims            must await the lifting of the stay.2                                     II.  No. 93-1108                                        ___________                 At  the  root  of  this  appeal is  the  denial  by  the            Massachusetts Department of  Public Welfare (DPW) in  1991 of                                            ____________________            2.  We  need not reach, and  therefore do not decide, whether            the  filing of  the  complaint  against  Eastern  was  itself            violative of the automatic stay.   Likewise, we do not decide            whether  the pendency of  the claims against  Eastern renders            the district  court order non-final, such that (absent a Rule            54(b) certification) appellate jurisdiction would be lacking.            To the extent  that those  claims are  without legal  effect,            see, e.g., Easley v. Pettibone Michigan Corp., 990  F.2d 905,            ___  ____  ______    ________________________            908 (6th Cir. 1993) ("by operation of the automatic stay, the            commencement of plaintiffs' action, whether void or voidable,            did not take place until the stay was lifted"), it would seem            that our jurisdiction would be unaffected.  Yet we bypass the            matter, taking refuge  in the "familiar principle  that where            an  appeal presents a difficult jurisdictional issue, yet the            substantive merits underlying the issue are facilely resolved            in  favor   of  the   party  challenging   jurisdiction,  the            jurisdictional inquiry may  be avoided."  Kotler  v. American                                                      ______     ________            Tobacco Co., 926 F.2d 1217,  1221 (1st Cir. 1990), vacated on            ___________                                        __________            other   grounds,  112  S.  Ct.  3019  (1992);  accord,  e.g.,            _______________                                ______   ____            Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 8 n.5 (1st            _________________________    ________            Cir. 1991).                                           -5-            plaintiff's  application  for   Medicaid  benefits  and  food            stamps.  In rendering that  decision, the DPW determined that            plaintiff's assets  and  income both  exceeded the  allowable            limits   prescribed  by   state   regulations  for   Medicaid            eligibility.     Plaintiff   then  filed  charges   with  the            Department  of Health  and Human  Services'  Office of  Civil            Rights  (OCR),  alleging  that  the  DPW  had  withheld  such            benefits  because of  her age,  national origin,  handicapped            status, and other impermissible factors.  The OCR (the agency            responsible  for   ensuring  that  recipients   of  financial            assistance from the  Department of Health and  Human Services            do  not  engage  in  unlawful  discrimination)  conducted  an            investigation.   It found  that the DPW's  decision comported            fully with state and federal  law and had not been influenced            by discriminatory considerations.                  Plaintiff then filed  the instant suit against  the OCR,            claiming   that  it  had   failed  to  conduct   an  adequate            investigation.   She  subsequently  amended her  complaint to            include  the DPW as a defendant, challenging the propriety of            its  decision  to deny  her  benefits.   The  district  court            dismissed the  action against both defendants,  and plaintiff            has appealed.                 The dismissal  of the claims  against the  OCR need  not            detain us long.  For many of the same reasons discussed above            in connection with  the EEOC, as well as  those enumerated in                                         -6-            an  earlier appeal  brought by  plaintiff  against the  OCR's            counterpart  in  another federal  agency, see  Gorczakoski v.                                                      ___  ___________            U.S. Department of Labor, No. 92-2189 (1st Cir. May 4, 1993),            ________________________            we find no arguable basis for subjecting the OCR to liability            as a result of any alleged improprieties in its processing of            plaintiff's claim.   As  there is no  reason to  believe that            plaintiff could remedy  this defect in her  complaint against            the  OCR   "through  more   specific  pleading,"   Denton  v.                                                               ______            Hernandez, 112 S. Ct. 1728, 1734 (1992), dismissal thereof as            _________            frivolous  under 28  U.S.C.    1915(d)  was not  an abuse  of            discretion.   See, e.g., Neitzke  v. Williams, 490  U.S. 319,                          ___  ____  _______     ________            325  (1989)  (complaint  is  frivolous  "where  it  lacks  an            arguable basis either  in law or in fact");  Watson v. Caton,                                                         ______    _____            984 F.2d 537, 539 (1st Cir. 1993).                 With regard to  plaintiff's claims against the  DPW, the            district court  granted an  unopposed motion  to dismiss  for            lack of jurisdiction.   It reasoned that any  attempt to gain            judicial  review  of the  DPW's  denial of  benefits  must be            pursued in state court under the Massachusetts Administrative            Procedure Act, Mass. G.L. c. 30A,   14.  We perceive no error            in the district court's ruling.                   The judgments are affirmed.                 __________________________                                         -7-
