United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2006 Decided June 23, 2006
No. 05-5321
DENNIS 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
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.
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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.
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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 non-white 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
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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 (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 (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
5
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
(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 (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 (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
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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 (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 (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 rights,” id. at 6; see
also Appellant’s Br. 41 (“Worth here seeks only forward-
looking relief.”). For standing purposes, then, we limit our
inquiry to determining whether that prospective injury qualifies
as an injury in fact. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 211 (1995) (“If [the plaintiff] is to maintain its
claim for forward-looking relief, our cases require it to allege
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that the [federal government’s] use of [race-conscious set-
asides] in the future constitutes [an injury in fact].”); O’Shea v.
Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal
conduct does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.”).
Worth’s assertion that he “intends to apply for new
positions and promotions at HUD on a regular basis in the
future” is just the kind of speculative intention normally
insufficient for standing purposes. In Lujan v. Defenders of
Wildlife, for example, environmental plaintiffs claimed they
would suffer aesthetic injuries when wild animals were killed in
other countries because they “intended” to travel there and do
some sight-seeing. The Court held that “[s]uch ‘some day’
intentions—without any description of concrete plans, or indeed
even any specification of when the some day will be—do not
support a finding of the ‘actual or imminent’ injury that our
cases require.” Lujan, 504 U.S. at 564; see also Am. Library
Ass’n v. FCC, 401 F.3d 489, 496 (D.C. Cir. 2005) (“‘[G]eneral
averments,’ ‘conclusory allegations,’ and ‘speculative “some
day” intentions’ are inadequate to demonstrate injury in fact.”).
But the Supreme Court has created an exception to this
general rule for plaintiffs bringing facial challenges to race-
conscious set-aside programs. In Northeastern Florida Chapter
of the Associated General Contractors of America v. City of
Jacksonville, 508 U.S. 656, 658 (1993), the Court found that a
group of contractors had standing to challenge a city ordinance
establishing a minority set-aside program even though none of
the contractors had actually bid for any contract. The Court
reasoned that:
[w]hen the government erects a barrier that makes it
more difficult for members of one group to obtain a
8
benefit than it is for members of another group, a
member of the former group seeking to challenge the
barrier need not allege that he would have obtained the
benefit but for the barrier in order to establish standing.
The “injury in fact” in an equal protection case of this
variety is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to
obtain the benefit. And in the context of a challenge to
a set-aside program, the “injury in fact” is the inability
to compete on an equal footing in the bidding process,
not the loss of a contract. To establish standing,
therefore, a party challenging a set-aside program like
Jacksonville’s need only demonstrate that it is able and
ready to bid on contracts and that a discriminatory policy
prevents it from doing so on an equal basis.
Id. at 666 (internal citations omitted). In Adarand Constructors,
Inc. v. Pena, the Court reaffirmed that contractors have standing
to press facial challenges to race-conscious statutory regimes, at
least so long as those contractors “ha[ve] made an adequate
showing that sometime in the relatively near future [they] will
bid on another Government contract.” Adarand, 515 U.S. at
211. We see no basis for distinguishing between contractors and
job applicants. Because job applicants, like contractors, must
compete to obtain a benefit, they too have standing to challenge
statutory set-aside programs. Cf. Texas v. Lesage, 528 U.S. 18,
21 (1999) (suggesting that applicants to graduate schools can
prospectively challenge a public university’s race-conscious
policies).
No such statutory program is at issue here, however, since
Worth challenges only internal agency policies. And neither
Northeastern Florida nor Adarand resolves whether plaintiffs
can bring facial challenges to agency employment policies not
embodied in a statute. We nonetheless see no basis for thinking
9
the source of an agency’s race-conscious policy—whether a
statute, a regulation, or agency guidelines—controls the standing
question. Emphasizing that imminence is “a somewhat elastic
concept,” 515 U.S. at 211 (quoting Lujan, 504 U.S. at 565 n.2),
Adarand rests on the common-sense notion that when a
contractor depends for its livelihood on competing for
government contracts, and when the government has committed
itself to doling out those contracts on a race-conscious basis, it
stands to reason that the contractor will soon be competing on an
uneven playing field. See id. at 212. Under Adarand, then, the
relevant consideration is whether the agency is sufficiently
committed to a particular race-conscious policy that the plaintiff
will likely face a career impediment.
Given this common-sense approach, we have little doubt
that Worth has standing to bring a facial challenge to HUD’s
AEP. Just as the statutes at issue in Northeastern Florida and
Adarand committed the contracting agencies to favoring
minority contractors, the AEP committed HUD to a race-
conscious policy favoring minorities and women. Like the
statutes, then, the AEP stood as “a barrier that makes it difficult
for members of one group [white men] to obtain a benefit
[positions at HUD] than it is for members of another group
[minorities and women].” Ne. Fla., 508 U.S. at 666. Moreover,
Adarand instructs us to take seriously Worth’s statement that
“sometime in the relatively near future” he will apply for a job
at HUD. Adarand, 515 U.S. at 211. Because of this, and
because no one doubts that HUD will continue posting job
openings, Worth’s injury (competing on an uneven playing
field) is sufficiently imminent for standing purposes. And
because it is “fairly traceable” to HUD and eminently
redressable, Worth has standing to challenge the AEP. To be
sure, the AEP has now lapsed, but it was in place when Worth
filed suit and “[t]he existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is filed.”
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Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830
(1989).
Whether Worth also has standing to challenge HUD’s
unwritten “policies and practices” is another story altogether.
Worth challenges no statute, regulation, or written policy
committing HUD to favoring minorities or women, resting his
claim instead on speculation, untethered to any written directive,
about how HUD is likely to make future employment decisions.
But we have no way of knowing how or even whether HUD will
continue taking race or gender into account, particularly given
that the adoption of MD-715 has thrown HUD’s hiring practices
into some disarray. See Worth v. Jackson, No. 02-1576, slip op.
at 11 n.8 (D.D.C. Jan. 5, 2004) (noting HUD’s view that “the
effect of MD-714’s rescission on HUD’s general employment
policies will take some time to determine”). For that
reason—and in contrast to the contractors in Northeastern
Florida and Adarand, both of which faced almost-certain
application of race-conscious statutes—Worth may never have
to compete at a disadvantage for a new position. Thus, “[w]hile
there is, of course, some chance that somewhere, at some time,
[plaintiff] may again be exposed” to a prospective injury, “that
possibility seems to us far too remote and attenuated to establish
a case or controversy under Article III.” Branton v. FCC, 993
F.2d 906, 909 (D.C. Cir. 1993).
As Worth notes, dismissing his claim on standing grounds
creates an incongruity: plaintiffs will normally have standing to
bring facial challenges to de jure employment policies but not
de facto ones, even if those de facto policies are as unyielding as
the de jure policies. This incongruity, however, reflects Article
III’s jurisdictional limitation to cases and controversies. A
reviewing court can read a de jure policy and know with a high
degree of certainty how the agency plans on tilting the playing
field in favor of one race or gender. Because the likelihood of
11
the alleged harm coming to pass is quite high, the prospective
injury is sufficiently imminent to give rise to a case or
controversy even before the policy is applied. By contrast, in a
facial challenge to a de facto policy, a court attempting to
establish its jurisdiction has no way of satisfying itself that the
alleged injury will ever actually occur. Perhaps the agency will
abandon its race-conscious ways, or perhaps, having never
committed to any general policy, it won’t discriminate against
that plaintiff. Whatever the agency chooses to do, there exists
a healthy chance that it will never harm the plaintiff.
Because we resolve this claim on standing grounds, we need
not address the district court’s conclusion that Worth failed to
allege an “adverse employment action” within the meaning of
Title VII.
Mootness
Although Worth had standing to challenge HUD’s AEP
when he brought his suit, that policy has since expired, and the
district court held that Worth’s claim was moot. See Worth v.
Jackson, No. 02-1576 (D.D.C. Jan. 5, 2004). Worth disagrees,
observing that “‘[i]t is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice’”
except when the defendant meets its “‘heavy burden of
persuading the court that the challenged conduct cannot
reasonably be expected to start up again.’” Appellant’s Br. 46
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 189 (2000) (alterations omitted)). Insisting that
the AEP’s expiration is precisely such a voluntary cessation,
Worth argues that HUD has failed to meet its burden because it
never demonstrated that “any future plan . . . would not retain
the same flaws as [HUD’s] earlier AEP.” Id. at 50.
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In making this argument, Worth loses sight of his claim.
The “challenged practice” at issue here is HUD’s reliance on the
AEP that existed when Worth filed his complaint, and Worth
nowhere disputes the district court’s finding, supported by an
unchallenged agency affidavit, that HUD “will not renew the
AEP that was in effect when MD-714 was operative.” Worth v.
Jackson, No. 02-1576, slip op. at 11 (Jan. 5, 2004); Jackson
Decl. at 2, Sept. 10, 2003 (stating that the AEP “will not be
renewed or reissued”); see also United States v. Concentrated
Phosphate Export Ass’n, 393 U.S. 199, 203-04 (1968) (finding
in the mootness context that whether “the likelihood of further
violations is sufficiently remote to make injunctive relief
unnecessary . . . is a matter for the trial judge”). That ends the
matter. See Burke v. Barnes, 479 U.S. 361, 363-65 (1987)
(holding that a statute’s expiration mooted any challenge to the
statute). To be sure, the Supreme Court has occasionally
addressed challenges to laws no longer in force, but it has done
so only when the statute or ordinance in question has been
replaced by a substantially similar enactment, see Ne. Fla., 508
U.S. at 662, or where the governing body expressed an intent to
re-enact the allegedly defective law, see City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.11 (1982).
Neither condition exists here, particularly given that the advent
of MD-715, with its apparent commitment to equal treatment for
all, decreases the likelihood that any new AEP will resemble the
now-defunct AEP. Because the Constitution nowhere licenses
us to rule on the legality of an agency policy that no longer
exists and that, according to the district court, will never again
exist, Worth’s challenge to HUD’s AEP is moot.
Ripeness
Although the foregoing resolves this case, our conclusion
that Worth lacks standing to challenge HUD’s “policies and
practices” rests, as we explained earlier, on our view that neither
Northeastern Florida nor Adarand extends much beyond their
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particular facts. See supra at p. 10. But even if this is wrong
and the Supreme Court one day extends them to cover the kind
of situation we face here, we would still lack jurisdiction to hear
Worth’s claim because it is unripe. In Abbott Laboratories v.
Gardner, 387 U.S. 136 (1967), the Supreme Court explained
that the ripeness doctrine’s
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.
Id. at 148-49. To this end, the Court has repeatedly held that
“[a] claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed may
not occur at all.” Texas v. United States, 523 U.S. 296, 300
(1998) (internal quotation marks omitted). In considering
ripeness, we must “evaluate both the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration.” Abbott Labs., 387 U.S. at 149.
In our view, Worth’s free-wheeling challenge to HUD’s
“policies and practices” is not yet ready for judicial airing.
While Worth insists that HUD and EEOC “have adopted and
maintain[ed] a system of race preferences that disadvantage
Worth on their face,” Appellant’s Br. 37, we cannot assess a
facial challenge to an unwritten policy that by definition has no
face. Even assuming HUD will someday apply a discriminatory
policy to Worth, absent concrete application of that policy, we
lack “sufficient confidence in our powers of imagination” to
ascertain its contours. Texas, 523 U.S. at 301. Far from
presenting a “purely legal question[] . . . presumptively suitable
14
for judicial review,” Better Gov’t Ass’n v. Dep’t of State, 780
F.2d 86, 92 (D.C. Cir. 1986), Worth’s complaint asks us to
resolve an “abstract disagreement[] over administrative policies”
that have yet to be “formalized and . . . felt in a concrete way by
the challenging part[y].” Abbott Labs., 387 U.S. at 148-49.
Because we “would benefit from postponing review until the
policy in question has sufficiently ‘crystallized’ by taking on a
more definite form,” see City of Houston v. HUD, 24 F.3d 1421,
1431 (D.C. Cir. 1994), we would, even if Worth did have
standing, put off review for another day.
Such a disposition might give us pause if it would burden
Worth unduly, but he remains free to challenge HUD’s use of
racial or gender preferences should they ever actually affect him.
He just needs to wait. By contrast, HUD would be significantly
burdened if forced to shadowbox with litigants like Worth who,
although pointing to no written policy or adverse action of any
kind, attempt to enlist the judiciary in shaping agency policy.
Disgruntled employees without concrete complaints could drag
HUD—indeed, any agency—through months or years of
intensive discovery in an effort to unearth elusive evidence of
tacit agency policies and practices. Underscoring the burden
this suit would impose on HUD, Worth admits he pleaded
generalized claims for the very purpose of preventing HUD
from interposing the plaintiff-specific defenses normally
available in Title VII cases. See Appellant’s Br. 40 (observing
that an employer can “largely avoid liability by showing that it
would not have hired plaintiff even if it had not discriminated[,]
. . . lead[ing] toward the expenditure of a great deal of time and
energy spent on this ‘same decision’ defense”). Such defenses
are available for good reason, however, and Worth may not
circumvent them merely by casting his complaint at a high level
of generality.
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III.
Though Worth may one day have a live and perhaps even
meritorious claim, that day has not yet come. We affirm in part,
vacate in part, and remand with instructions to dismiss for lack
of jurisdiction.
So ordered.