Pacific Union Conference Ofadventists v. Marshall

• Citation: 434 U.S. 1305,98 S.Ct. 2,54 L.Ed.2d 17
• Decision Date: 02 August 1977
• Docket Number: No. A-81,SEVENTH-DAY,A-81
• Parties: PACIFIC UNION CONFERENCE OFADVENTISTS et al., Petitioners, v. F. Ray MARSHALL, Secretary of Labor, et al
• Court: United States Supreme Court

434 U.S. 1305

98 S.Ct. 2

54 L.Ed.2d 17

PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS et al., Petitioners,

v F. Ray MARSHALL, Secretary of Labor, et al.

No. A-81.

Aug. 2, 1977.

Mr. Justice REHNQUIST, Circuit Justice.

Applicants are conferences and other institutional bodies of the Seventh Day Adventist Church which operates some 150 religious schools and colleges in California. They request that I stay enforcement of three discovery orders entered by the District Court for the Central District of California pending their filing of a petition for certiorari in this Court. The Court of Appeals for the Ninth Circuit refused to grant relief by way of mandamus against the District Court's discovery orders and the District Court's order denying applicants' motion for summary judgment. The action in which these orders were entered was brought by respondent Secretary of Labor against applicants to enforce the equal pay provision of the Fair Labor Standards Act, 29 U.S.C. § 206(d). The District Court, in denying applicants' motion for summary judgment, noted that the Secretary was seeking to apply these provisions only to the lay employees of the applicants and not to their clergy.

Applicants contend that the principle of separation between church and state embodied in the First Amendment to the United States Constitution forbids Congress from applying to them this statute which requires in substance that men and women be paid equally for the same work, because such application would be contrary to their religious principles. They claim that even the presence on church school premises of representatives of the Secretary, pursuant to the District Court's authorization of discovery, for the purpose of examining payroll records in aid of the prosecution of this lawsuit is an "intrusion" forbidden by that Amendment.

While I am not prepared to say that four Members of this Court would not vote to grant certiorari to consider such a claim if it were squarely presented by a final order or decision of the District Court affirmed by the Court of Appeals, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), I do not think certiorari would be granted to review the order of the Court of Appeals denying mandamus at this stage of the case. I have therefore decided to deny the application for a stay without attempting to inquire further as to what irreparable injury would be suffered by applicants in the event of such denial.

The order denying summary judgment which the applicants seek to have reviewed here, although they do not request that it be "stayed," is not even appealable to the Court of Appeals under 28 U.S.C. § 1291, to say nothing of being directly appealable to this Court. Because it is not a "final order or decision" within the meaning of that section, it is reviewable only pursuant to the provisions for interlocutory appeal set forth in 28 U.S.C. § 1292(b). These provisions require as a first step in that procedure that the District Court certify the question as appropriate for interlocutory appeal. The District Court, however, in this case declined to make such a certification.

In their petition to the Court of Appeals, applicants requested that court "to require respondent Court to dismiss said action or to enter summary judgment for defendants therein." So far as I am aware, such relief is not available, pursuant to statute or otherwise, in the Court of Appeals. Since the Court of Appeals issued no opinion in this matter, it could have construed the petition as a request to order the District Court to certify the question for interlocutory review. It would necessarily be this order of the Court of Appeals denying the requested relief which would be presented for review in applicants' petition for certiorari to that court.

Before any First Amendment claim would be reached upon such review, it would be necessary for this Court to decide that the Court of Appeals had authority by a writ of mandamus to require the District Court to certify a question for interlocutory appeal, and that it abused its discretion in refusing to do so in this case. While there have been differing views expressed by the Court of Appeals as to the availability of mandamus to require certification under § 1292(b), the order of the Court of Appeals for the Ninth Circuit in this...