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.
[1] Appellants challenge the constitutionality of the Pregnancy Discrimination Act, (the Act), Pub.L. No.
Stat. 2076, and the Equal Employment Opportunity Commission’s Guidelines on Sex Discrimination,
, which interpret the Act. Their principal contention is that in the exercise of their
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
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.
[2] 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
APPENDIX
MEMORANDUM OPINION
PRATT, District Judge:
Plaintiffs, the National Conference of Catholic Bishops (NCCB)
and The United States Catholic Conference, Inc. (USCC),[1a]
challenge the constitutionality of the Pregnancy Discrimination
Act of 1978, Pub.L. No. 95-555 § 1, 42 U.S.C. § 2000e(k),[2a]
and of the Equal Employment Opportunity Commission’s (EEOC)
Guidelines on Sex Discrimination, 44 Fed.Reg. 23804-09 (1979) (to
be codified in 29 C.F.R. § 1604.10), which interpret the
Pregnancy Discrimination Act (PDA). In response to plaintiffs’
First and Fifth Amendment claims for injunctive and declaratory
relief, the government[3a] 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
Page 538
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.
BACKGROUND
In 1976, the Supreme Court in Gilbert 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. General Electric Co.
v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (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 First Amendment free exercise problems and,
as indicated in footnote 2, compromised on the language and the
exemptions in the present statute. See H.R. Rep. No. 1786, 95th
Cong., 2d Sess., reprinted in [1978] U.S. Code Cong. Ad. News
4749, 4765-66; 124 Cong.Rec. S18,978 (daily ed. Oct. 13, 1978),
(remarks of Sen. Williams); Id., 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.[4] 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.[5] 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.[6] 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), reprinted in 42 U.S.C. § 2000e note, at
125 (1976), as amended, requires the
Page 539
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. See
41 C.F.R. Part 60-20 (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. See 44 Fed.Reg. 77,008, 77,016 (1979).
The proposed rules which were drafted in consultation with the
EEOC are open for comment until February 26, 1980. Id. at 77,006.
The plaintiffs’ complaint includes three counts.[7] The
first alleges that the PDA requires all employers subject to the
Act to provide sick leave for all abortions including elective
abortions contrary to plaintiffs’ moral, ethical, and religious
convictions and, consequently, creates an unconstitutional burden
on plaintiffs’ First Amendment free exercise rights. The second
count asserts that the PDA requires plaintiffs to pay for all the
expenses 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 Fifth Amendment.
CASE OR CONTROVERSY
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.
O’Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 675,
38 L.Ed.2d 674 (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. . . .
Alabama State Federation of Labor v. McAdory, 325 U.S. 450,
461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945). Thus, federal
courts are prevented from issuing advisory opinions when a
complaint does not present sufficient concrete legal issues.
United Public Workers of America v. Mitchell, 330 U.S. 75, 89,
67 S.Ct. 556, 564, 91 L.Ed. 754 (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.” Golden v. Zwickler, 394 U.S. 103, 108-110,
89 S.Ct. 956, 22 L.Ed.2d 113 (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,
see Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,
69 L.Ed. 1070 (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. 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
(D.C. Cir. 1969). Even the “chilling” of the most protected
First Amendment rights of free speech does not create a case or
controversy without a “specific present objective harm or a
threat
Page 540
of specific future harm.” Laird v. Tatum, 408 U.S. 1,
13-14, 92 S.Ct. 2318, 2325-2326, 33 L.Ed.2d 154 (1972).
(a) Lack of Adequate Factual Record — Hypothetical Posture
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, e.g., 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.[8]
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
ad hoc 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.[9]
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.
Page 541
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.
(b) Lack of Immediacy
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 amici[10] 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 First 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
Page 542
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. . . .
United Public Workers of America v. Mitchell, 339 U.S. 75,
90-91, 67 S.Ct. 556, 564-565, 91 L.Ed. 754 (1947). This absence
of an immediate prospect that the government[11] 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. 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 (1954); United Public Workers of
America v. Mitchell, supra, 339 U.S. at 91, 67 S.Ct. at 564.
(c) Lack of Chilling Effect
The plaintiffs have also claimed that the PDA is overbroad on
its face, chills the exercise of First 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.
National Student Association v. Hershey, 412 F.2d 1103, 1111
(D.C. Cir. 1969) (quoting United Public Workers of America v.
Mitchell, supra 339 U.S. at 88, 67 S.Ct. at 563). The Court of
Appeals placed the Hershey suit at the “general threat” end of
the spectrum, but then found that the chilling of First Amendment
free speech rights might rise to a level that would create a
justiciable exception. 412 F.2d at 1114. But even in free speech
cases, the exception is narrow and the courts must apply it on a
case-by-case basis. Id. at 1115. As a general principle then,
merely alleging the chilling even of First Amendment rights of
free speech or expression does not automatically create a
justiciable case or controversy. Id. at 1106, 1114-15; see
Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-2326,
33 L.Ed.2d 154 (1972). This, of course, is not a free speech case.
The Hershey 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 First Amendment freedoms, (2) the
likelihood of other opportunities to vindicate such
First 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.
National Student Association v. Hershey, supra, 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 First 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
Page 543
whether a claim would arise or how it would arise.
Since Hershey, 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. See Broadrick v. Oklahoma,
413 U.S. 601, 615-16, 93 S.Ct. 2908, 2917-2918, 37 L.Ed.2d 830
(1973). Our research has not produced any authority that the
chilling effect doctrine has been extended to suits such as this
one that raise First 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. See Grutka v. Barbour, 549 F.2d 5, 9-10
(7th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1706,
52 L.Ed.2d 394 (1977).
The case of Surinach v. Pesquera de Busquets, 604 F.2d 73
(1st Cir. 1979), relied on by plaintiffs at oral argument for the
proposition that First Amendment free exercise rights are subject
to the same protection as are First Amendment free speech rights,
is clearly distinguishable on its facts.
(d) Lack of Ripeness
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.
Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49,
87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (footnote omitted); see
Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1098
(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. Abbott Laboratories v. Gardner, supra
387 U.S. at 149, 87 S.Ct. at 1515.
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
Page 544
even take place. The present case is simply not ripe for the
resolution of these issues.
CONCLUSION
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).
