28 Fair Empl.prac.cas. 221,28 Empl. Prac. Dec. P 32,457gregory Backus, Appellant, v. Baptist Medical Center, Appellee, 671 F.2d 1100 (8th Cir. 1982)

Gregory Backus appeals from an adverse judgment in his Title VII action. He contends that the district court erred in holding that his employer presented sufficient evidence to establish sex as a bona fide occupational qualification for a position as a nurse in the hospital's labor and delivery section. Because a live controversy no longer exists between the parties, we do not reach the merits. Instead, we vacate the judgment of the district court and direct the dismissal of the action as moot.¹ 

I. Background.

The Baptist Medical Center (BMC) in Little Rock, Arkansas, employed Gregory Backus as a registered nurse in 1978. Backus requested assignment to the labor and delivery section of the obstetrics and gynecology department. The hospital refused his request on April 24, 1978, stating its concern for female patients' "privacy and personal dignity." Backus appealed to the hospital administrator, who upheld the decision to bar Backus' assignment to the labor and delivery section, instead offering him a position in the intensive care nursery at the same salary. Backus accepted that position.

In December 1979, Backus again requested a transfer to the labor and delivery section. BMC again refused his request, stating its concern for the "privacy and personal dignity" of its female patients. On June 15, 1979, Backus filed a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that the hospital refused to assign him to the labor and delivery section solely on the basis of his sex and that sex did not constitute a bona fide occupational qualification. He subsequently received a right-to-sue letter from the EEOC.

Backus left his position at the BMC in September 1979, after receiving performance evaluations that he alleges reflected harassment for filing his discrimination charge and that he maintains affected his chance for promotion. Backus accepted employment at another hospital and one month later, on October 11, 1979, brought this action in district court.² 

In ruling in favor of BMC, the district court concluded that (1) sex constituted a bona fide occupational qualification for a position as a nurse in the hospital's labor and delivery section; (2) BMC had not downgraded Backus' evaluation because he filed discrimination charges; and (3) BMC's failure to promote Backus was not discriminatorily based. Backus v. Baptist Medical Center, 510 F. Supp. 1191, 1195, 1197-98 (E.D. Ark. 1981).

Backus argues on appeal that the district court erred in holding sex a bona fide occupational qualification for a position as a nurse in the labor and delivery section. Neither party contested the district court's power to make a determination on the merits. This court raised the jurisdictional question on its own motion and during oral argument requested supplemental briefs on the issue of mootness.

II. Discussion.

The parties and this court recognize that the power of federal courts is circumscribed by the Constitution. The Supreme Court has noted:

"(F)ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." The inability of the federal judiciary to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." (DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705, 40 L. Ed. 2d 164 (1974) (per curiam) (citations omitted).)

Actions in federal court must involve substantive controversies for which the court can grant specific and conclusive relief. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S. Ct. 461, 464, 81 L. Ed. 617 (1937); Allen v. Likins, 517 F.2d 532, 534 (8th Cir. 1975). The constraints imposed by article III require federal courts to determine whether "there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality" to warrant granting relief. See id. at 534 (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941)). Moreover, the controversy between the parties must exist at all stages of the litigation. United States v. Munsingwear, 340 U.S. 36, 39-40, 71 S. Ct. 104, 106-107, 95 L. Ed. 36 (1950); Cedar-Riverside Environmental Defense Fund v. Hills, 560 F.2d 377, 381 (8th Cir. 1977) (per curiam) .

In this case, a live controversy between Backus and the Baptist Medical Center existed at the time he filed his complaint with the EEOC. Shortly after receiving his right-to-sue letter, however, Backus voluntarily left the BMC for a position at a different hospital.³  Backus did not pursue his claim for monetary relief at trial and, at oral argument, counsel admitted that backpay no longer remained an issue. Nowhere in his complaint did Backus request that he be reinstated or that he be assigned to the labor and delivery room at the BMC.⁴  Backus' remaining requests for relief sought a declaration that BMC's policy barring the assignment of male nurses to the labor and delivery section violates Title VII and an injunction banning that practice in the future. Backus has, in effect, voluntarily removed himself from the impact of the challenged practice by discontinuing his employment, abandoning his claim for damages, and failing to seek placement in the labor and delivery section. Our decision on the merits, therefore, would not involve "an adjudication of present right upon established facts(,)" Aetna Life Insurance Co. v. Haworth, supra, 300 U.S. at 242, 57 S. Ct. at 464, but would instead answer the hypothetical question of whether the disputed practice violates the requirements of Title VII. We decline to issue such an advisory opinion. See Ashcroft v. Mattis, 431 U.S. 171, 172, 97 S. Ct. 1739, 1740, 52 L. Ed. 2d 219 (1977) (per curiam) ; Flast v. Cohen, 392 U.S. 83, 96-97, 88 S. Ct. 1942, 1950-1951, 20 L. Ed. 2d 947 (1968); Ringgold v. United States, 553 F.2d 309, 310 (2d Cir. 1977) (per curiam) .

Backus argues, however, that this case falls within the exception to the mootness doctrine, because the controversy is "capable of repetition, yet evading review(.)" Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911).

We disagree. While the controversy may be capable of repetition, the challenged practice will not, by nature, continually evade judicial review.

In Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975) (per curiam), the Supreme Court stated that

in the absence of a class action, the "capable of repetition, yet evading review" doctrine (is) limited to the situation where two elements combine () : (1) the challenged action (is) in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there (is) a reasonable expectation that the same complaining party would be subjected to the same action again.

Because this case has not been certified as a class action, we must determine whether Backus' claim satisfies these two criteria.⁵ 

Nothing inherent in BMC's policy prevented Backus' challenge from being fully litigated. The BMC policy existed before it employed Backus, and, as far as we can ascertain, remains in effect. Backus' challenge was mooted by his voluntary departure from BMC and his failure to seek reinstatement, to pursue his damage claim, or to seek class relief. Because the alleged harm is not the type that would dissipate during the normal time required for resolution of this controversy, see, e.g., Dunn v. Blumstein, 405 U.S. 330, 333 n.2, 92 S. Ct. 995, 998 n.2, 31 L. Ed. 2d 274 (1972) (durational residency); Roe v. Wade, 410 U.S. 113, 124-25, 93 S. Ct. 705, 712-13, 35 L. Ed. 2d 147 (1973) (limited gestation period), Backus cannot be relieved of his responsibility to maintain a personal stake in this controversy at all times. See Sosna v. Iowa, 419 U.S. 393, 402, 95 S. Ct. 553, 558, 42 L. Ed. 2d 532 (1975).

Accordingly, we vacate the judgment of the district court and direct dismissal of this action as moot.