Worth v. Jackson

Decision Date23 June 2006
Docket NumberNo. 05-5321.,05-5321.
PartiesDennis R. WORTH, Appellant v. Alphonso JACKSON, Secretary, United States Department of Housing and Urban Development and Cari M. Dominguez, Chair, United States Equal Employment Opportunity Commission, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 02cv01576).

Michael E. Rosman argued the cause and filed the briefs for appellant.

Matthew M. Collette, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, and Marleigh D. Dover, Attorney.

Before: ROGERS, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

Three inter-related judicial doctrines — standing, mootness, and ripeness — ensure that federal courts assert jurisdiction only over "Cases" and "Controversies." U.S. Const. art. III, § 2. In a rare justiciability hat trick, this case implicates all three. At issue is a white male employee's challenge to a government agency's affirmative action policy that allegedly deprives him of the opportunity to compete for job openings on an even playing field. The employee makes two claims, but we have jurisdiction over neither. The first relates to a written affirmative employment plan, the expiration of which has mooted his claim. The second involves a generalized challenge to unspecified agency "policies and practices"—a challenge that the employee lacks standing to bring and that, in any event, is unripe.

I.

Appellant Dennis Worth, a white employee at the St. Louis office of the Department of Housing and Urban Development (HUD), has applied for at least four open positions within HUD over the past decade but claims he "has been unable to advance because of HUD's emphasis on meeting racial and gender employment targets." Second Am. Compl. 6. In this case, however, he challenges none of those rejections. Instead, alleging that he "intends to continue to apply for new positions and promotion within HUD," id., he filed suit in the U.S. District Court for the District of Columbia against HUD and the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964 and the Fifth Amendment to the Constitution seeking to enjoin the two agencies from "discriminating on the basis of race and gender," id. at 10.

Specifically, Worth alleges that EEOC uses its authority to enforce Title VII to "cajole[ ] and induce[ ] federal departments and agencies, such as HUD, to discriminate on the basis of race and gender in employment." Id. at 4. According to Worth, EEOC does so in part by requiring HUD and all other agencies to implement an "affirmative employment plan" (AEP) that, pursuant to EEOC's Equal Employment Opportunity Management Directive 714 (MD-714), "obligates all federal departments and agencies to ... identify alleged instances of `manifest imbalance' and `conspicuous absence' of women and racial minorities, by gender and race, and establish `goals' and `target dates' in order to eliminate such alleged `underrepresentation' at all organizational levels." Id. at 3-4. Because HUD's AEP, in alleged conformity to MD-714, "establishes certain racial and gender goals in employment," id. at 4, and because those goals, according to Worth, will adversely affect his prospects for advancement, he seeks to enjoin HUD's reliance on the plan, id. at 10. But Worth's challenge extends beyond the AEP. Alleging more generally that "[i]n its employment practices, HUD favors nonwhite racial groups over whites, and women over men," id. at 4, he also seeks an injunction barring HUD "from discriminating on the basis of race and gender in violation of the Fifth Amendment and [Title VII]," id. at 10.

The government moved to dismiss, arguing that Worth failed to allege any adverse employment action as required by Title VII. See Brown v. Brody, 199 F.3d 446, 452-55 (D.C.Cir.1999) (requiring plaintiff to have suffered an adverse employment action to prevail in a Title VII suit). While that motion was pending, EEOC replaced MD-714 with MD-715. See Equal Employment Opportunity Management Directive 715, at i (Oct. 1, 2003) (MD-715). Differing markedly from MD-714, MD-715 declares that agencies have "an ongoing obligation to eliminate barriers that impede free and open competition in the workplace and prevent individuals of any racial or national origin group or either sex from realizing their full potential." MD-715 at 8 (emphasis added). HUD's AEP expired immediately prior to MD-715's promulgation, and HUD declined to renew it given EEOC's new management directive.

On the government's motion, the district court found that any challenge to MD-714, HUD's AEP, or any policies based on either of those documents was moot. Worth v. Jackson, No. 02-1576 (D.D.C. Jan. 5, 2004) (order dismissing challenges to the AEP and MD-714); Worth v. Jackson, No. 02-1576, 2005 WL 3279979 (D.D.C. Feb. 23, 2005) (order dismissing challenges to policies based on the AEP or MD-714). But finding that "some of HUD's hiring and promotion policies were not implemented pursuant to MD-714," the district court held that Worth's challenges to such policies could proceed. Worth v. Jackson, No. 02-1576, slip op. at 17, 2005 WL 3279979 (D.D.C. Feb. 23, 2005).

With the mootness questions resolved, the government renewed its initial motion to dismiss. The district court, pointing out that Title VII is the sole avenue of redress for employment discrimination and finding that Worth failed to allege an adverse employment action sufficient to state a Title VII claim, dismissed the complaint in its entirety. Worth v. Jackson, No. 02-1576 (D.D.C. July 19, 2005).

Worth now appeals, making three broad arguments. First, urging us to reverse the district court's mootness determinations, Worth insists that all his claims remain viable. Second, he argues that because he alleged the existence of a constitutional injury, the lack of an adverse employment action is not fatal to his Title VII claim. And third, he argues that if Title VII "precludes any remedy at all for unconstitutional conduct," Appellant's Br. 43, the statute is unconstitutional as applied to him. For its part—and without addressing any jurisdictional issue save mootness—the government insists the district court got it right on all fronts.

II.

We begin, as always, with our jurisdiction, the constitutional boundaries of which we measure through the application of standing, mootness, and ripeness doctrines. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." (internal quotation marks and alterations in original omitted)). "All of the doctrines that cluster about Article III—not only standing but mootness [and] ripeness ...—relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1983) (Bork, J., concurring)).

Significantly for our jurisdictional inquiry, Worth has disavowed any challenge to MD-715 or other written HUD or EEOC policies. See Worth v. Jackson, No. 02-1576, slip op. at 11 n. 6, 2005 WL 3279979 (D.D.C. Feb. 23, 2005) (noting Worth's concession that "he has not asserted any claims based on MD-715 and the [Federal Employment Opportunity Recruitment Program]"); Appellant's Br. 48 (explaining that references to written policies and memoranda in his complaint merely provide "evidence" supporting his claim "that HUD, with the EEOC's guidance and approval, adopted policies and practices that discriminated against white males on the basis of race and sex"). Despite some suggestions to the contrary, Worth's complaint asks for just two discrete forms of relief: (1) to stop HUD "from using the AEP," and (2) to enjoin HUD and EEOC more generally "from discriminating on the basis of race and gender." Second Am. Compl. 10. In considering our jurisdiction, therefore, we consider only those two remedial requests.

Standing

As an "irreducible constitutional minimum," a plaintiff seeking to demonstrate standing "must have suffered an `injury in fact'—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). Moreover, that injury must be "fairly traceable" to the defendant's conduct and likely to be "redressed by a favorable decision." Id. at 560-61, 112 S.Ct. 2130 (internal quotation marks and alterations omitted).

Because Worth "had allegedly suffered an injury as a result of [HUD's] preferential treatment of minorities," the district court found he had suffered the requisite injury in fact. Worth v. Jackson, No. 02-1576, slip op. at 3 (D.D.C. July 19, 2005). We disagree. While HUD's policies did allegedly injure Worth in the past, he seeks no relief for such injuries. See Appellant's Br. 38 (stating that "Worth [is] not seeking any backward-looking remedy for any of those instances of discrimination"). Instead, the basis for both his claims is that he "intends to apply for new positions and promotions at HUD on a regular basis in the future," Second Am. Compl. 2, and that, when he does, HUD will "violate [his] equal protection and civil...

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