No. 80-1283.
Argued March 4, 1981.
Decided April 14, 1981.
Wilfred R. Caron, Washington, D.C., for appellants.
Jonathan Ginsburg, Atty., Dept. of Justice with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U.S. Atty. and Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellees.
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-1606).
Before MacKINNON and ROBB, Circuit Judges and AUBREY E. ROBINSON, Jr., United States District Judge for the District of Columbia.
Opinion Per Curiam.
PER CURIAM:
Appellants challenge the constitutionality of the Pregnancy Discrimination Act, (the Act), Pub.L. No. 95-555, 42 U.S.C. § 2000e(k), 92 Stat. 2076, and the Equal Employment Opportunity Commission's Guidelines on Sex Discrimination, 29 C.F.R. Part 1604, which interpret the Act. Their principal contention is that in the exercise of their First Amendment right to freedom of religion, they properly declined to provide certain abortion-related benefits to their employees contrary to the requirements of the Pregnancy Discrimination Act. In support of their contention appellants seek a declaratory judgment that the Act, amending Title VII of the Civil Rights Act of 1964, as amended, and the related guidelines of the Equal Employment Opportunity Commission violate the First and Fifth Amendments of the United States Constitution with respect to the conduct of appellants and their class. Appellants also prayed for a Temporary Restraining Order and preliminary and permanent injunctions.
(b) Enter a Temporary Restraining Order pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining and restraining the Defendants, their agents, employees and attorneys from enforcing or executing Pub.L. 95-555, 92 Stat. 2076, to require Plaintiffs National Conference of Catholic Bishops and United States Catholic Conference, Inc., and the members of the class of employers represented to provide paid time off from work for women employees for all abortions, and to pay all expenses for women employees who wish to have abortions "where the life of the mother would be endangered if the fetus were carried to term," or from taking any other action to require Plaintiffs or the members of their class to make such payments.
(JA 36).
(c) Enter preliminary and permanent injunctions pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining and restraining the Defendants, their agents, employees and attorneys from enforcing or executing Pub.L. 95-555, 92 Stat. 2076, to require plaintiffs National Conference of Catholic Bishops and United States Catholic Conference, Inc., and the members of the class of employers represented to provide paid time off from work for women employees for all abortions, and to pay all expenses for women employees who wish to have abortions "where the life of the mother would be endangered if the fetus were carried to term", or from taking any other action to require Plaintiffs or the members of their class to make such payments.
(JA 36).
The record and briefs were filed and the cause was argued by counsel. After giving full consideration to the entire record and arguments of counsel, it is the judgment of this court that the District Court properly declined jurisdiction because of the absence of any "case of controversy" as required by the United States Constitution, Article III, and we affirm the decision of the District Court for the reasons stated in its Memorandum Opinion, which is set forth as an Appendix hereto.
Since the case was submitted appellants have referred us to the decision in Newport News Shipbuilding and Drydock Co. v. EEOC, 510 F. Supp. 66 (E.D.Va. 1981). In that opinion EEOC guidelines issued under the Pregnancy Discrimination Act were struck down. The guidelines provided that if an employer provides benefits for medical procedures to spouses of employees, then the employer must pay pregnancy benefits for the spouses of employees. The court struck down these guidelines because the legislative history of the statute supported a determination that pregnancy benefits were to extend only to women employees. The court also found a case or controversy to exist since the guidelines had been distributed to the employees, since the union "espoused" the guidelines, and since the union and a male employee had filed a charge with the EEOC arising out of the employer's failure to fully comply with the guidelines.
There is nothing in Newport News that conflicts with our decision. The substantive aspect of the guidelines at issue in Newport News is irrelevant to the issue before this court. The case or controversy holding is distinguishable because, regardless of whether it is correct, in Newport News charges had been filed by an arguably aggrieved employee against the company while in this case no such charges have been filed. It was the lack of a complaining party, among other things, that the district court found to indicate that no case or controversy existed in the instant case.
Judgment accordingly.
APPENDIX
MEMORANDUM OPINION
95-555 42 U.S.C. § 2000e 44 Fed.Reg. 23804 29 C.F.R. § 1604.10 First Fifth BACKGROUND
Gilbert General Electric Co. v. Gilbert, 429 U.S. 125 97 S.Ct. 401 50 L.Ed.2d 343 First See reprinted in Id., reprinted in 42 U.S.C. § 2000e as amended, See 41 C.F.R. Part 60-20 See 44 Fed.Reg. 77,008 Id. sick leave First expenses Fifth CASE OR CONTROVERSY
O'Shea v. Littleton, 414 U.S. 488 493 94 S.Ct. 669 675 38 L.Ed.2d 674 Alabama State Federation of Labor v. McAdory, 325 U.S. 450 461 65 S.Ct. 1384 1389 89 L.Ed. 1725 United Public Workers of America v. Mitchell, 330 U.S. 75 89 67 S.Ct. 556 564 91 L.Ed. 754 Golden v. Zwickler, 394 U.S. 103 108-110 89 S.Ct. 956 22 L.Ed.2d 113 see Pierce v. Society of Sisters, 268 U.S. 510 45 S.Ct. 571 69 L.Ed. 1070 United Public Workers of America v. Mitchell, supra, 330 U.S. at 91 67 S.Ct. at 565 National Student Association v. Hershey, 412 F.2d 1103 1110 First Laird v. Tatum, 408 U.S. 1 13-14 92 S.Ct. 2318 2325-2326 33 L.Ed.2d 154(a) Lack of Adequate Factual Record — Hypothetical Posture
e.g., ad hoc (b) Lack of Immediacy
amici First United Public Workers of America v. Mitchell, 339 U.S. 75 90-91 67 S.Ct. 556 564-565 91 L.Ed. 754 See, International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222 223-24 74 S.Ct. 447 448 98 L.Ed. 650 United Public Workers of America v. Mitchell, supra, 339 U.S. at 91 67 S.Ct. at 564 (c) Lack of Chilling Effect
First National Student Association v. Hershey, 412 F.2d 1103 1111 quoting United Public Workers of America v. Mitchell, supra 339 U.S. at 88 67 S.Ct. at 563 Hershey First free speech 412 F.2d at 1114 Id. First Id. see Laird v. Tatum, 408 U.S. 1 13-14 92 S.Ct. 2318 2325-2326 33 L.Ed.2d 154 Hershey First First National Student Association v. Hershey, supra, First Hershey, See Broadrick v. Oklahoma, 413 U.S. 601 615-16 93 S.Ct. 2908 2917-2918 37 L.Ed.2d 830 First See Grutka v. Barbour, 549 F.2d 5 9-10 cert. denied, 431 U.S. 908 97 S.Ct. 1706 52 L.Ed.2d 394 Surinach v. Pesquera de Busquets, 604 F.2d 73 First First(d) Lack of Ripeness
Abbott Laboratories v. Gardner, 387 U.S. 136 148-49 87 S.Ct. 1507 1515 18 L.Ed.2d 681 see Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 1098 Abbott Laboratories v. Gardner, supra 387 U.S. at 149 87 S.Ct. at 1515 CONCLUSION
PRATT, District Judge: Plaintiffs, the National Conference of Catholic Bishops (NCCB) and The United States Catholic Conference, Inc. (USCC), challenge the constitutionality of the Pregnancy Discrimination Act of 1978, Pub.L. No. § 1, (k), and of the Equal Employment Opportunity Commission's (EEOC) Guidelines on Sex Discrimination, -09 (1979) (to be codified in ), which interpret the Pregnancy Discrimination Act (PDA). In response to plaintiffs' and Amendment claims for injunctive and declaratory relief, the government has filed a motion to dismiss for lack of jurisdiction and failure to state a claim upon which relief can be granted. We hold that the plaintiffs' complaint fails to meet the threshold constitutional requirement of presenting a "case or controversy" and that even if the complaint did meet this primary requirement, the case would not be ripe for adjudication. Consequently, without reaching the merits of the complaint, which raises matters of serious importance, we dismiss it for lack of subject matter jurisdiction. In 1976, the Supreme Court in held that Title VII of the Civil Rights Act of 1964 did not include differentiation in treatment on the basis of pregnancy within its prohibitions against discrimination on the basis of sex. , , (1976). Congress reacted to this decision in 1978 by enacting the PDA, which extends the coverage of Title VII in order to prohibit sex discrimination on the basis of pregnancy, childbirth, or related medical conditions, in particular, in the provision of medical fringe benefits. Related medical conditions include abortions. In the light of concerns about abortions expressed by NCCB, other groups and numerous individuals, both houses of Congress considered potential Amendment free exercise problems and, as indicated in footnote 2, compromised on the language and the exemptions in the present statute. H.R. Rep. No. 1786, 95th Cong., 2d Sess., [1978] U.S. Code Cong. Ad. News 4749, 4765-66; 124 Cong.Rec. S18,978 (daily ed. Oct. 13, 1978), (remarks of Sen. Williams); S18,978-79 (remarks of Sen. Javits). On April 20, 1979, the EEOC issued its "Final Interpretive Guidelines," including questions and answers, on its interpretation of the PDA. Shortly thereafter, on April 29, 1979, the Act became effective as to existing benefit and insurance programs. At the time of the hearing on the government's motion to dismiss, November 30, 1979, the EEOC had not initiated any kind of action to investigate violations of the PDA nor to enforce the PDA against anyone. Furthermore, the EEOC had not received any private complaints under the PDA. The plaintiffs filed their complaint on June 21, 1979, and an amended complaint on July 11, 1979. They allege that, as employers of fifteen or more persons, both fall within the application of the PDA and are in noncompliance with the provisions thereof and with the EEOC guidelines. An affidavit of Samuel J. Di Misa, who as the Director of Personnel of NCCB and USCC, is responsible for plaintiffs employee fringe benefit health insurance, and disability benefit programs, provides the single brief and general description of the plaintiffs' insurance programs and their alleged noncompliance with the PDA. (Ex. W attached to plaintiffs' Opposition Memorandum). Di Misa's affidavit states that plaintiffs were able to convince their insurers to omit the coverage for abortions from plaintiffs' health insurance and long-term disability policies. To underscore the immediacy of their interests and their standing, as parties suffering injury, to bring this action, plaintiffs allege that USCC is an agent of a party or a party respectively, to two refugee resettlement contracts, one with the State Department, the other with the State of Florida and that these contracts are subject to termination because of plaintiffs' alleged violation of the PDA. In particular, plaintiffs allege that Executive Order No. 11,246, 3 C.F.R. 339 (1964-65 Compilation), note, at 125 (1976), requires the Secretary of Labor to enforce compliance with the PDA by government contractors such as plaintiffs. Separate guidelines exist for discrimination under Executive Order No. 11,246. (1979). Since the hearing on the motion to dismiss, the Secretary of Labor has proposed regulations under the Executive Order that would require compliance by government contractors with the PDA. , 77,016 (1979). The proposed rules which were drafted in consultation with the EEOC are open for comment until February 26, 1980. at 77,006. The plaintiffs' complaint includes three counts. The first alleges that the PDA requires all employers subject to the Act to provide for all abortions including elective abortions contrary to plaintiffs' moral, ethical, and religious convictions and, consequently, creates an unconstitutional burden on plaintiffs' Amendment free exercise rights. The second count asserts that the PDA requires plaintiffs to pay for all the of abortions "where the life of the mother would be endangered if the fetus were carried to term" contrary to and impermissibly burdening plaintiffs' free exercise right to determine when an abortion is justifiable according to their beliefs. The third count claims that the last provision of the PDA permits businesses and unions to negotiate agreements to deny all abortion benefits but denies plaintiffs the same right in violation of the Amendment. Article III of the Constitution requires that those who seek to invoke the power of the federal courts must demonstrate the existence of a "case or controversy" as a threshold requirement. , , , , (1974). This is long-settled doctrine requiring no extensive citation of authority and is rooted in the concept of justiciability. The limitations of this doctrine on the jurisdiction of federal courts to consider cases was held to mean that federal courts are: without power to give advisory opinions, . . . to decide abstract, hypothetical or contingent questions, . . . to decide any constitutional question in advance of the necessity for its decision, . . . or to decide any constitutional question except with reference to the particular facts to which it is to be applied. . . . , , , , (1945). Thus, federal courts are prevented from issuing advisory opinions when a complaint does not present sufficient concrete legal issues. , , , , (1947). To raise a concrete legal issue a plaintiff must demonstrate that injury or the threat of injury is both "real and immediate," not "conjectural" or "hypothetical." , , , (1969). It is clear that in the instant case plaintiffs have failed to satisfy this necessary preliminary requirement. Although a plaintiff may not need under all circumstances to wait until he is subjected to actual enforcement of a statute, , , (1925), the mere existence of a statute or regulation that a plaintiff reasonably believes should apply to and be enforced against him does not ordinarily create a justiciable case or controversy. , ; , (D.C. Cir. 1969). Even the "chilling" of the most protected Amendment rights of free speech does not create a case or controversy without a "specific present objective harm or a threat of specific future harm." , , , , (1972). In this case we face a question that is not presented in concrete adversarial terms. The government has not initiated and, according to the record before us, does not plan to institute any kind of proceedings against the plaintiffs. It has not developed a factual record of any kind with respect to plaintiffs' programs. Plaintiffs themselves have only described their programs and their employees in general terms, they employ "310 lay persons, a substantial number of whom are non-Catholic lay women." (Complaint, ¶ 8). Plaintiffs have not alleged what kind of sick leave, disability, or health insurance programs they provide. We lack sufficient facts to analyze how the PDA actually impacts on the plaintiffs although they allege that it does. For example, in rejecting a rider to their group policy, they advised their carrier that they would agree to disability benefits resulting from or arising out of or during pregnancy but would exclude disability benefits resulting from voluntary abortions or sterilization for contraceptive purposes. (Ex. W-3 attached to plaintiffs' Opposition Memorandum). Apparently this exclusion from coverage applies to both sexes on a nondiscriminatory basis and is at least in part not inconsistent with Title VII. Likewise, we can only speculate on how the plaintiffs would find out that a woman was claiming a day of sick leave for an abortion rather than for a minor respiratory ailment or was claiming medical benefits for an abortion rather than for some other surgical procedure. Plaintiffs' alleged failure to provide programs in and of itself does not violate the PDA. This is because a potential violation would not occur until an employee actually demands and is denied equal benefits, which benefits could be provided on an basis by plaintiffs acting as self-insurers. Plaintiffs fail to allege how many, if any, of their employees are women of child-bearing age or that any of them have or would seek the limited benefits of the PDA that the plaintiffs oppose. Apparently no employee has demanded such benefits and employees of these two religious organizations are as likely to be aware of plaintiffs' opposition to abortions as they are unlikely, as a consequence of their awareness, to request such benefits. In the absence of a concrete factual dispute, even plaintiffs' position is unclear. Plaintiffs' memoranda focus in part on the alleged "abuse" of their right to determine whether a mother's life is endangered. They state: The terms of the statute do not permit employers whose moral, ethical and religious convictions require close scrutiny of the practice of abortion to make the complex yet unavoidable decision as to whether or not the given procedure indeed falls within the morally permissible class. Plaintiffs' Temporary Restraining Order, p. 3. They therefore imply that some abortions may be morally permissible when a mother's life is endangered. On the other hand, their exhibits on Catholic doctrine concerning abortion appear to indicate that no abortion is justified by the fact that the mother's life is "endangered" if the fetus is carried to term. Thus again, it is a matter for conjecture whether or how or under what precise circumstances plaintiffs might be in noncompliance with the PDA. Even if we hypothesize that a situation could arise in which the plaintiffs would be in violation of the PDA and we speculate that an employee could file a complaint with the EEOC, EEOC's reaction to such a complaint is all the more conjectural in the light of the present disarray in its position, as discussed below. In this case, the absence of a problem of sufficient immediacy underscores the lack of an actual "case or controversy," even more than the absence of an adequate factual record. The mere existence of a statute does not create a "case or controversy," particularly when, as here, the position of the government itself is far from definite and certain as to what the statute requires with the consequence that action is either unlikely or, at least, not imminent. Both plaintiffs and the point out inconsistencies between the EEOC guidelines and the government's interpretation of the PDA in its memoranda, which the EEOC as cocounsel endorsed. The EEOC position on the meaning of the PDA is in a state of confusion and important problems of statutory interpretation and broad policy are focused in at least two areas. First, does the PDA imply that religious employers such as plaintiffs are required to provide paid sick leave only to the extent that they are required to pay for the costs of abortions as a health insurance benefit? The government's memoranda argue for this narrow reading of the exclusion. Questions and answers 35 and 36 in the EEOC guidelines, however, as does the statute itself, refer to employers in general without limitation. The EEOC interpretation in question and answer 35 expressly limits the exemption to health insurance benefits, but requires all employers to pay sick leave for elective abortions. Second, does the PDA require payment of everything including health insurance benefits for an elective abortion if complications arise? The government memoranda is in the affirmative; EEOC question and answer 36 state that the employer need not provide the health insurance benefits that would actually pay the costs of an elective abortion. These examples are typical of the conflict between the government's interpretation of the PDA and the guidelines as literally written. We can only speculate that the EEOC either has decided to change its recent interpretation of the PDA as reflected in the guidelines or has heeded counsels of caution from the Justice Department, which may very well be aware of the constitutional problems arising from the EEOC's interpretation of the statute. In either case, the probability that the EEOC, particularly with its staggering caseload of pending cases which is a matter of public record, will begin active enforcement of the PDA against anyone, let alone the plaintiffs, is even more conjectural. The record, as it is, does make clear that Congress carefully considered the Amendment free exercise implications of the PDA. Consequently, at this juncture, it would be most imprudent for this court to interject itself, until the EEOC decides what the PDA requires, issues a definitive interpretation and commences active enforcement against these plaintiffs. As the Supreme Court pointed out more than thirty years ago when the Hatch Act was passed: Should the courts seek to expand their power so as to bring under their jurisdiction ill-defined controversies over constitutional issues, they would become the organ of political theories. Such abuse of judicial power would properly meet rebuke and restriction from other branches. . . . , , , , (1947). This absence of an immediate prospect that the government will apply this aspect of the PDA to anyone provides good reason against adjudicating matters that may be affected in uncertain ways by future events. , , , , (1954); , . The plaintiffs have also claimed that the PDA is overbroad on its face, chills the exercise of Amendment free exercise rights, and, consequently, we should hold that it is unconstitutional. We cannot accept this simplistic solution and therefore disagree. In this circuit, the Court of Appeals has perceptively noted: The [Supreme] Court spread the justiciability question along a continuum ranging between "a general threat by officials to enforce those laws which they are charged to administer" and "a direct threat of punishment against a named [party] . . . for a completed act." Suits predicated on threats nearer the "general" pole are not justiciable; suits nearer the direct pole are. , (D.C. Cir. 1969) ( , ). The Court of Appeals placed the suit at the "general threat" end of the spectrum, but then found that the chilling of Amendment rights might rise to a level that would create a justiciable exception. . But even in free speech cases, the exception is narrow and the courts must apply it on a case-by-case basis. at 1115. As a general principle then, merely alleging the chilling even of Amendment rights of free speech or expression does not automatically create a justiciable case or controversy. at 1106, 1114-15; , , , , (1972). This, of course, is not a free speech case. The court used three factors to determine whether a claim of so-called chilling effect changed a generalized threat of possible enforcement into a justiciable case or controversy. The three factors are: (1) the severity and scope of the alleged chilling effect on Amendment freedoms, (2) the likelihood of other opportunities to vindicate such Amendment rights as may be infringed with reasonable promptness, and (3) the nature of the issues which full adjudication on the merits must resolve; and the need for factual referents in order properly to define and narrow the issues. at 1115. It is clear that plaintiffs cannot meet these criteria. First, the plaintiffs in an affidavit have demonstrated that they were able to maintain their religious practices by convincing their insurers to omit the coverages to which they object. Consequently, the Amendment rights of the named plaintiffs have not been adversely affected. Second, if the EEOC began an enforcement proceeding plaintiffs could vindicate their rights by raising their constitutional defenses before the court in such a case. Third and finally, it is not clear under the facts as they now exist whether a claim would arise or how it would arise. Since the Supreme Court has narrowed the chilling effect doctrine and emphasized that the doctrine primarily concerns free speech or expression that is chilled by the existence of criminal statutes. , , , , (1973). Our research has not produced any authority that the chilling effect doctrine has been extended to suits such as this one that raise Amendment free exercise problems. The Seventh Circuit rejected an argument similar to the plaintiffs' and held that when a plaintiff has the opportunity for judicial review before a statute is enforced against him that the chilling effect is avoidable. , (7th Cir.), , , (1977). The case of (1st Cir. 1979), relied on by plaintiffs at oral argument for the proposition that Amendment free exercise rights are subject to the same protection as are Amendment free speech rights, is clearly distinguishable on its facts. Finally, even if the plaintiffs presented a case or controversy a challenge to the PDA at this time would also fail for lack of ripeness. This deficiency involves consideration of many of the same factors considered previously under the hearings of lack of an adequate factual record and lack of immediacy. Ripeness is a matter of judicial discretion in contrast to the constitutional mandate that a case or controversy be presented. In commenting on the appropriateness of judicial restraint which underlies this doctrine, the Supreme Court has expressed its rationale as follows: Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a two-fold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. , , , , (1967) (footnote omitted); , (D.C. Cir. 1970). To determine whether the case was appropriate for judicial decision the Court considered whether the issues were purely legal ones and whether the challenge was to final agency action. , . We have carefully considered the factor of fitness for decision. We repeat that although plaintiffs characterize their complaint as a pure question of law, the various questions of fact discussed above require extensive refinement and elaboration in order to present a mature case. Furthermore, this complaint does not involve a challenge to final agency action. Indeed, as discussed above, the EEOC has not finally settled on its interpretation of the statute, has not initiated any action, and is unlikely to do so until it decides what the PDA requires. Likewise, the Secretary of Labor has only recently presented for public comment proposed rules, which, if finalized without change in spite of EEOC's uncertain position on the PDA, might lead to an eventual review of plaintiffs' alleged noncompliance with the PDA. To sum up, plaintiffs' various allegations of injury are premature and are not appropriate for judicial resolution at this time. These issues may be raised in any future suit by the EEOC or in any future administrative proceeding by the Secretary of Labor. Plaintiffs will have ample opportunity to present their constitutional defenses in the context of such proceedings, should they even take place. The present case is simply not ripe for the resolution of these issues. We are fully cognizant of the serious concerns of the plaintiffs and of the importance of the issues they seek to have adjudicated. Nonetheless, we are compelled to decline jurisdiction for the reason that under the facts presented, there exists no "case or controversy," which is the basis for federal jurisdiction under Article III of the Constitution. Accordingly, we have entered an order of dismissal without prejudice. (JA 7-21).