National Conference of Catholic Bishops v. Smith, 80-1283

• Decision Date: 14 April 1981
• Docket Number: No. 80-1283,80-1283
• Citation: 653 F.2d 535,209 U.S.App.D.C. 280
• Parties: 25 Fair Empl.Prac.Cas. 730, 25 Empl. Prac. Dec. P 31,727, 209 U.S.App.D.C. 280 The NATIONAL CONFERENCE OF CATHOLIC BISHOPS, The United States Catholic Conference, Inc., Appellants, v. William French SMITH, Attorney General of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 535

653 F.2d 535

25 Fair Empl.Prac.Cas. 730,

25 Empl. Prac. Dec. P 31,727, 209 U.S.App.D.C. 280

The NATIONAL CONFERENCE OF CATHOLIC BISHOPS, The United States Catholic Conference, Inc., Appellants, v.William French SMITH, Attorney General of the United States, et al.

No. 80-1283.

United States Court of Appeals District of Columbia Circuit.

Argued March 4, 1981.

Decided April 14, 1981.

Appeal from the United States District Court for the District of Columbia(D.C. Civil ActionNo. 79-1606).

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.

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 ¹ 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 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.³

Judgment accordingly.

APPENDIX

MEMORANDUM OPINION

PRATT, District Judge:

Plaintiffs, the National Conference of Catholic Bishops (NCCB) and The United States Catholic Conference, Inc.(USCC), ¹ challenge the constitutionality of the Pregnancy Discrimination Act of 1978, Pub.L. No. 95-555 § 1,42 U.S.C. § 2000e(k), ² 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 ³ 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 "caseor 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.SeeH.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.⁴Furthermore, 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, 1979.⁵They 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.⁶An 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 in42 U.S.C. § 2000e note, at 125(1976), as amended, requires the Secretary of Labor to enforce compliance with the PDA by government contractors such as plaintiffs.Separate guidelines exist for discrimination under Executive OrderNo. 11,246.See41 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.See44 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.⁷The 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 "caseor 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 caseplaintiffs 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, seePierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070(1925),...