American Telegraph & Telephone Co. v. EEOC, D.C. Cir. Appellee Brief Filed July 5, 2001 ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 10, 2001 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ________________________ No. 00-5280 ________________________ AMERICAN TELEPHONE & TELEGRAPH CO., ET AL., Plaintiffs-Appellants, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Columbia Honorable Thomas F. Hogan, Judge _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _______________________________________________________ GWENDOLYN YOUNG REAMS Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, Room 7044 Washington, D.C. 20507 (202) 663-4731 (w); 202-663-7090 (fax) CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), appellee the Equal Employment Opportunity Commission ("EEOC") certifies the following: A. Parties, Amici and Intervenors The parties below and here are the appellee, the EEOC and appellants, American Telephone and Telegraph ("AT&T") Corporation, the AT&T Pension Plan, the AT&T Management Pension Plan, and Brian M. Byrnes, secretary to the AT&T Employees' Benefit Committee (collectively referred to as "AT&T"). There are no amici or intervenors. B. Ruling Under Review AT&T appeals from the Memorandum Opinion and Order of Judge Thomas F. Hogan dated July 13, 2000, dismissing this action for lack of subject matter jurisdiction. This decision is unpublished. C. Related Cases This case has not been previously before this Court or any other court. This Court, however, recently decided a case in which the EEOC was a party that raised justiciability issues that were the same as or similar to the ones presented in the instant case. See Borg-Warner Protective Services Corp. v. EEOC, 245 F.3d 831 (D.C. Cir. 2001). In Borg-Warner, the corporation brought a declaratory judgment action against the EEOC and the district court dismissed the action for lack of subject matter jurisdiction. Borg-Warner appealed, and this Court affirmed the district court, holding in relevant part that, although the district court had subject matter jurisdiction over the declaratory judgment action, the EEOC did not engage in final agency action reviewable under the Administrative Procedure Act. Id. at 833-36. The Commission believes that Borg-Warner is dispositive of the jurisdictional issues in this case. Another related case is Hulteen v. AT&T Mgmt. Pension Plan, No. 01-1122 (N.D. Cal. filed Mar. 20, 2001). See EEOC Addendum ("EAdd.") 1. That case seeks resolution on the merits of the pregnancy-related leave issues that were presented in the EEOC charge of Noreen Hulteen, which is the basis of one of the reasonable cause determinations at issue in this appeal. The lawsuit seeks class action status for female AT&T employees nationwide who took pregnancy-related leave before April 1979 and lost credit in their pension and retirement benefits. If certified, that lawsuit could also encompass the claims raised by Mary Ann Barr's charge in EEOC's Detroit Office, which was the subject of the second reasonable cause determination at issue in the instant appeal.<0> The Commission is not aware of any other pending related cases. TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES. . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . xi STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1 A. Nature of the Case and Course of Proceedings . . . . .1 B. Statement of the Facts . . . . . . . . . . . . . . . .2 C. District Court's Decision. . . . . . . . . . . . . . .4 STATEMENT OF THE STANDARD OF REVIEW. . . . . . . . . . . . . . .6 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . .7 ARGUMENT: THE DISTRICT COURT PROPERLY DISMISSED AT&T'S DECLARATORY JUDGMENT ACTION AND THIS COURT SHOULD AFFIRM THAT JUDGMENT BECAUSE THE CASE IS NOT JUSTICIABLE . . . . . . . . . . . . . . . . . . . . . . .8 A. JUDICIAL REVIEW OF AT&T'S DECLARATORY ACTION IS NOT WARRANTED UNDER THE ADMINISTRATIVE PROCEDURE ACT . . . . . . . .9 1. The EEOC's Conduct, Singularly or Collectively, Does Not Constitute a "Final Agency Action" Within the Meaning of the APA. . . . . . 10 2. The Declaratory Action is Unnecessary since AT&T Would Suffer No Hardship if Judicial Review was Withheld . . . . . . . . . . . 19 B. ABSENT AN INJURY, AT&T LACKS STANDING TO SUE . . . . 26 C. THIS ACTION IS NOT JUSTIFIED UNDER THE DECLARATORY JUDGMENT ACT . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. There is No Actual Controversy to Invoke Judicial Review because AT&T's Apprehension of an EEOC Lawsuit is not Reasonable. . . . . . . 29 2. Any Purpose Served by this Declaratory Action Has Been Vitiated By the Hulteen Class Action . . . . . . . . . . . . 33 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 37 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES *Abbot Labs. v. Gardner, 387 U.S. 136 (1967) . . . . . . . . . . . . . .9, 13, 14, 20 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . . . . . . . . . . . . . . 15, 17, 18 Ameritech Benefit Plan Committee v. Communication Workers of Am., 220 F.3d 814 (7th Cir. 2000), cert. denied, 121 S.Ct. 883 (2001). . . . .8, 22, 23, 24, 25 Application of the Pres. & Dirs. of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir.), cert. denied, 377 U.S. 978 (1964) . . . . . . . . . . . . 31 Babbitt v. United Farm Workers, 442 U.S. 289 (1979) . . . . . . . . . . . . . . . . . 30, 33 Baker v. Delta Air Lines, Inc., 6 F.3d 632 (9th Cir. 1993). . . . . . . . . . . . . . . . 25 Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000). . . . . . . . . . . . . .9, 17 Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) . . . . . . . . . . . . . . . . . . . 34 Bell Atlantic Cash Plan v. EEOC, 976 F. Supp. 376 (E.D. Va. 1997), aff'd, 182 F.3d 906 (4th Cir. 1999) . . . . . . . . . . . 22 Boggs v. Bowron, 842 F.Supp. 542 (D.D.C. 1993), aff'd, 67 F.3d 972 (D.C. Cir. 1995), cert. denied, 517 U.S. 1134 (1996). . . . . . . . . . . . 30 *Borg-Warner Protective Services Corp. v. EEOC, 245 F.3d 831 (D.C. Cir. 2001) . i, 8, 10, 16, 17, 21, 24, 36 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . 16 Carter v. AT&T, 870 F. Supp. 1438 (S.D. Ohio 1994), vacated per settlement agreement, 75 Fair Empl. Prac. Cas. (BNA) 866 (S.D. Ohio Sep. 13, 1996)22 Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808 (3d Cir. 1990) . . . . . . . . . . . . . . . .6 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 16 Christensen v. Harris County, 529 U.S. 576 (2000) . . . . . . . . . . . . . . . . . 16, 17 *Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986) . . 10, 11, 12, 14, 20, 29, 35 Circuit City Stores, Inc. v. EEOC, 75 F.Supp.2d 491 (E.D. Va. 1999), aff'd per curiam, 232 F.3d 887 (4th Cir. 2000). . . . . . 18 Costello v. United States, 365 U.S. 265 (1961) . . . . . . . . . . . . . . . . . . . 10 Cunningham Bros. v. Bail, 407 F.2d 1165 (7th Cir.), cert. denied, 395 U.S. 959 (1969) . . . . . . . . . . . . 34 DRG Funding Corp. v. Secretary of HUD, 76 F.3d 1212 (D.C. Cir. 1996) . . . . . . . . . . . . . . 13 EEOC v. AT&T Technologies, Inc., 1987 WL 26142 (N.D. Ill. Dec. 1, 1987). . . . . . . . . . 22 EEOC v. Bell Atlantic Corp., 80 Fair Empl. Prac. Cas. (BNA) 164 (S.D.N.Y. 1999). . . . 21 *Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961 (D.C. Cir. 1995). . . . . . . . . .25, 28,32, 37 *Federal Trade Comm'n v. Standard Oil, 449 U.S. 232 (1980) . . . . . . . . . . . 13, 19, 21, 31, 36 Franks v. Bowman Transp. Auth., 424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . 35 Friedman v. Geller, 925 F. Supp. 611 (E.D. Wis. 1996) . . . . . . . . . . . . 36 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . . . .7, 10 Gross v. Fox, 496 F.2d 1153 (3d Cir. 1974). . . . . . . . . . . . . . . 35 Herbert v. National Academy of Sciences, 974 F.2d 192 (D.C. Cir. 1992) . . . . . . . . . . . . . . .6 Hulteen v. AT&T Mgmt. Pension Plan, No. 01-1122 (N.D. Cal. Mar. 20, 2001). . . . . . . . .ii, 4 Jackson v. Culinary School of Washington, Ltd., 27 F.3d 573 (D.C. Cir. 1994), vacated on other grounds, 515 U.S. 1139 (1995). . . . . . 37 Katzenbach v. McClung, 379 U.S. 294 (1964) . . . . . . . . . . . . . . . . . . . 33 Kennecott Utah Copper Corp. v. United States Dep't of Interior, 88 F.3d 1191 (D.C. Cir. 1996) . . . . . . . . . . . . . . 26 Laker Carrier's Ass'n v. Mac Mullan, 406 U.S. 498 (1972) . . . . . . . . . . . . . . . 30, 31, 32 Lynn Teachers Union, Local 1037 v. Massachusetts Comm'n Against Discrimination, 406 Mass. 515, 549 N.E.2d 97 (1990) . . . . . . . . . . . 22 Marine Equipment Mgmt. Co. v. United States, 4 F.3d 643 (8th Cir. 1993). . . . . . . . . . . . . . . . 32 Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270 (1941) . . . . . . . . . . . . . . . . . . . 28 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . .5 McGraw-Edison Co. v. Preformed Line Prods. Co., 362 F.2d 339 (9th Cir.), cert. denied, 385 U.S. 919 (1966) . . . . . . . . . . . . 33 Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998). . . . . . . . . . . . 32, 33 Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997) . . . . . . . . . . 31, 32, 33 Nowicki v. Ullsvick, 69 F.3d 1320 (7th Cir. 1995). . . . . . . . . . . . . . . 29 Pacific Gas & Elec. Co. v. Federal Power Comm'n, 506 F.2d 33 (D.C. Cir. 1974). . . . . . . . . . . . . . . 18 Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992). . . . . . . . 21, 24, 34 Planned Parenthood Ass'n v. Kempiners, 700 F.2d 1115 (7th Cir. 1983) . . . . . . . . . . . . . . 30 President v. Vance, 627 F.2d 353 (D.C. Cir. 1980) . . . . . . . . . . . . . . 34 Redding v. AT&T, No. 96-WY-807-CB (D. Col. July 25, 1996), aff'd on other grounds, 124 F.3d 217 (10th Cir. 1997) . . 23 Rogers v. Sugar Products, 7 F.3d 577 (7th Cir. 1993), abrogated on other grounds, Papa v. Katy Indus. Inc., 166 F.3d 937 (7th Cir. 1999). . . . . . . . . . . . . . . .6 State Farm Mut. Auto. Ins. Co. v. Mid-Continent Cas. Co., 518 F.2d 292 (10th Cir. 1975) . . . . . . . . . . . . . . 25 Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967). . . . . . . . . . . . . . . . . . . 34 United Christian Scientists v. Christian Science Bd. of Dirs., 829 F.2d 1152 (D.C. Cir. 1987). . . . . . . . . . . . 28, 30 United States v. Mead Corp., 121 S.Ct. 2164 (2001) . . . . . . . . . . . . . . . . 16, 17 Wilton v. Seven Falls Co., 515 U.S. 277 (1995) . . . . . . . . . . . . . . . . . . . 37 STATUTES, RULES, AND OTHER SECONDARY AUTHORITY Administrative Procedure Act, 5 U.S.C. § 551 et seq.. . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . .8 Declaratory Judgment Act, 28 U.S.C. § 2201. . . . . . . . . . . . . . . . . . . .1, 27 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 2000e-5 (f)(1)(A) . . . . . . . . . . . . . . 36 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . 33 Fed. R. Civ. P. 57 . . . . . . . . . . . . . . . . . . . . . . 33 EEOC Compl. Manual, No. 915.003 (Oct. 3, 2000) . . . . . . . . 16 EEOC Office of General Counsel, Regional Attorneys' Deskbook, Vol. I14 1B James Wm. Moore, Moore's Federal Practice ¶ .0402[1] (2 ed. 1996)24 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3532.3 (2d ed. 1984)30 E. Borchard, Declaratory Judgments 299 (2d ed. 1941) . . . . . 34 GLOSSARY Abbreviation Definition APA Administrative Procedure Act (5 U.S.C. § 551, et seq.) EEOC/Commission U.S. Equal Employment Opportunity Commission EPA Equal Pay Act of 1963, 29 U.S.C. § 206 et seq. Determination/LOD Reasonable cause determination issued in connection with the charges of discrimination filed by Noreen Hulteen and Mary Ann Barr DJA Declaratory Judgment Act (28 U.S.C. § 2201) PDA Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), which amended Section 701 of Title VII of the Civil Rights Act of 1964. STATEMENT OF ISSUE Whether the district court correctly dismissed AT&T's declaratory judgment action against the EEOC, where the case is not ripe for review because neither the EEOC's reasonable cause determination nor the EEOC's "alleged threat of litigation" constitutes "final agency action" or imposes an otherwise unredressable, concrete injury permitting review under the Administrative Procedure Act ("APA") or the Declaratory Judgment Act ("DJA"). STATUTES AND REGULATIONS As directed by D.C. Circuit Rule 28(a)(5), the Commission advises the Court that the following statutes are pertinent to this appeal: the APA, 5 U.S.C. § 551, et seq.; the DJA, 28 U.S.C. § 2201; and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.. All applicable statutes are contained in the Brief for the Appellant AT&T. STATEMENT OF THE CASE<1> A. Nature of the Case and Course of Proceedings This is an appeal from the Rule 12(b)(1) dismissal of a civil action brought by AT&T against the Commission, seeking "a declaratory judgment that : 1) ‘the EEOC's position with regard to pre-PDA service credit is contrary to law and that plaintiffs' service credit policies have at all times been lawful;' 2) ‘the litigation threatened by the EEOC based on the Barr and Hulteen charges would fail as a matter of law because the charges were not filed within 300 days of the alleged discrimination;' 3) ‘ the threatened litigation by the EEOC would be barred by laches;' and 4) ‘the treatment of pre-PDA service credit by the Employees' Benefit Committee under AT&T's Pension Plan and Management Pension Plan has at all times since the PDA's enactment been lawful.'" App.117. AT&T filed suit on June 8, 1999, R.1, App.2, and the EEOC moved to dismiss the complaint for lack of subject matter jurisdiction on August 25, 1999. R.7, App.3. On July 13, 2000, the district court issued a memorandum opinion and order granting the EEOC's motion to dismiss. R.25, App. 4, 114-24. AT&T then filed a timely notice of appeal on August 4, 2000. R.26, App.5. B. Statement of the Facts In June 1994, Noreen Hulteen filed a charge with the EEOC's San Francisco District Office, alleging that AT&T discriminated against her on the basis of gender in violation of Title VII when it denied her retirement service credit for pregnancy leave she took in 1968 and 1969. App.115. In July 1996, Mary-Ann Barr filed a similar charge in the Commission's Detroit Office, alleging that AT&T forced her to take pregnancy leave in 1970, 1972, and 1976, and then denied her claim for retirement service credit for that pregnancy leave in violation of Title VII. App. 115-16. She also alleged that she did not learn of AT&T's refusal to credit her for the pregnancy leave until January 15, 1996. App.116. Following its investigation of these charges, the EEOC issued reasonable cause determinations indicating its belief that AT&T had violated the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k), and the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206 et seq. Specifically, on December 17, 1998, the EEOC's Cleveland District Office, to which the Detroit office referred the Barr charge, issued a Letter of Determination ("LOD"), concluding that AT&T's "‘failure to recognize full service credit for pregnancy-related medical leaves taken prior to April 29, 1979 by [Ms. Barr] and other similarly situated females [has] resulted in the denial of enhanced benefits under Respondent's Pension Plan Enhancement Program,' in violation of the PDA and the EPA." App. 116-17 (quoting Determination, App.39-40).<2> Thereafter, on December 29, 1998, the EEOC's San Francisco office issued a LOD finding reasonable cause to believe that AT&T's 1994 denial of service credit for the pregnancy leave Ms. Hulteen took in 1969 violated the PDA. App. 41-43,116. In addition, the LOD stated that the EEOC believed AT&T had discriminated against "‘a class of other similarly situated female employees whose adjusted net credited service date has been used to determine eligibility for a service or disability pension, the amount of pension benefits, and eligibility for certain other benefits and programs, including early retirement offerings,'" in violation of the PDA and EPA. App.116 (quoting Determination, App.42). The San Francisco office then invited AT&T to conciliate the Hulteen charge,<3> and noted that if conciliation were unsuccessful, her charge would be referred to its legal department. App. 40, 43, also see App.63, 68, 69, 71 (EEOC letters of December 1998, March and April 1999 letters to AT&T). Although conciliation efforts had not ceased, on June 8, 1999, AT&T filed a declaratory judgment action in district court. On June 25, 1999, the EEOC concluded that conciliation had failed. App.82. Subsequently, in response to AT&T's declaratory action, the Commission filed a motion to dismiss the complaint for lack of subject matter jurisdiction on August 25, 1999. R.7. Meanwhile, the EEOC's litigation consideration of the charges by Ms. Hulteen and Ms. Barr continued. R.7, EEOC Motion to Dismiss at 2 & n.2.<4> C. District Court's Decision The district court decided that it lacked subject matter jurisdiction and granted the Commission's motion. In reaching this conclusion, the court considered AT&T's argument that jurisdiction rested in either the APA, Title VII or the Employee Retirement Income Security Act ("ERISA"). AT&T also argued that 28 U.S.C. § 1331, the federal question statute, provided jurisdiction. With respect to the APA, the court observed that the statute permits judicial review of final agency actions for which there is no adequate remedy in court. App. 118. Noting that the Commission's letters of determination finding reasonable cause to believe that AT&T's service credit calculations violated Title VII were the agency action at issue in this case, the court ruled that the LODs lacked finality because they did not fix any obligation or impose any liability on AT&T. Id. at 118-21. Analyzing reviewability under Title VII, the district court stated that, as non-final agency action, the LODs would be reviewable "only if the agency has acted in clear violation of its statutory mandate." App. 121. In considering AT&T's argument that the EEOC had violated its statutory mandate by failing to conciliate in good faith in that the agency's Cleveland Office allegedly "‘stonewalled' its efforts to conciliate" and the San Francisco Office allegedly engaged "in a ‘sham' effort at conciliation," the court ruled that AT&T's complaint was not ripe for review. Id. The court explained that "[a] claim for which a party seeks a declaratory judgment is ripe only when the parties are engaged in an ‘actual controversy[,]'" and an actual controversy does not exist unless the "‘administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Id. at 121-22. In other words, the court opined, "a case challenging an administrative action is ripe only when: (1) the issues in the case are fit for judicial review, meaning that the issues to be considered are purely legal and that the agency action which is the source of the controversy is final and not dependent upon future uncertainties or intervening agency rulings; and (2) the withholding of judicial review will cause hardship." Id. at 122. Consequently, in the court's view, the case was not ripe for review because the reasonable cause determinations were only an interim step in the administrative proceedings, and AT&T would have an opportunity to raise the failure to conciliate as a defense to the charges if and when the EEOC or a charging party filed a lawsuit. Id.<5> Next, the court rejected AT&T's argument that ERISA provided jurisdiction. It ruled that jurisdiction did not exist under ERISA because the EEOC, as the declaratory judgment defendant, could not have brought a coercive claim against AT&T since the Commission "is not a participant, beneficiary, or fiduciary of the plan," and "has no jurisdiction to enforce any provision of ERISA . . . ." App.123. The court also reasoned that jurisdiction was lacking because AT&T's action seeking clarification of its obligations "is not a suit to enforce an ERISA plan." Id. at 124. Finally, the court ruled that the federal question statute, 28 U.S.C. § 1331, did not provide a jurisdictional basis for this action because it does not create an independent source of federal jurisdiction, but rather "its relevance to this action is determined by the application of the other statutes cited . . . ." App. 118 n.4. Thus, the court dismissed the suit, concluding that, while "AT&T may or may not be correct that the Pregnancy Discrimination Act should not be applied retroactively, and that the Barr and Hulteen determinations are therefore legally incorrect," the declaratory judgment action was an improper vehicle for the litigation of the dispute and AT&T must wait for the EEOC to file an enforcement action. Id. at 124.<6> STATEMENT OF STANDARD OF REVIEW This Court's review of the district court's dismissal of an action under Rule 12(b)(1) for lack of subject matter jurisdiction is de novo. Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). In resolving this jurisdictional dispute, this Court may consider evidence outside of the initial pleadings, Rogers v. Sugar Products, 7 F.3d 577, 581 (7th Cir. 1993) (when a plaintiff's complaint is attacked as lacking subject matter jurisdiction under Rule 12(b)(1), the court may consider evidence outside of the initial pleadings), such as matters of public record. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). SUMMARY OF THE ARGUMENT The district court correctly dismissed AT&T's declaratory judgment action against the Commission. AT&T challenges the Commission's determination that there is reasonable cause to believe that the company's service credit calculations system violates federal law. This action is not ripe for review since the Commission's reasonable cause determinations, even if evaluated in tandem with the Commission's litigation activity, are not final agency actions since they do not carry the force of the law. Only the courts have the power to enforce Title VII and the EPA, and if the Commission or the charging party sues, at that time, AT&T "will have an opportunity . . . to be heard and defend against the charges." Georator Corp. v. EEOC, 592 F.2d 765, 769 (4th Cir. 1979). Further, the withholding of judicial review by this Court will not cause AT&T any hardship. EEOC has decided not to file a lawsuit, and neither its litigation position in court nor its guidance creates a concrete injury requiring immediate review. Further, because Noreen Hulteen, a charging party whose discrimination complaint in part gave rise to this proceeding, has initiated a class action suit on behalf of herself and similarly situated AT&T female employees in a federal district court in California challenging AT&T's service credit calculations, this action has been rendered moot. In the Hulteen suit, AT&T can assert its position that its service credit calculations system is lawful and press any appropriate defenses. Consequently, a declaratory judgment will serve no useful purpose. This Court therefore should sustain the district court's judgment. ARGUMENT THE DISTRICT COURT PROPERLY DISMISSED AT&T'S DECLARATORY JUDGMENT ACTION AND THIS COURT SHOULD AFFIRM THAT JUDGMENT BECAUSE THE CASE IS NOT JUSTICIABLE On appeal, AT&T argues that the district court had subject matter jurisdiction over its action against the Commission because the claims were grounded in federal law. In addition, AT&T argues that the case is ripe for review under the APA because the issues are purely legal, the Commission has articulated a final agency action through litigation and other administrative actions and pronouncements, and the injury to the company is concrete and ongoing. AT&T also argues that this case is justiciable under the Declaratory Judgment Act because the EEOC has threatened legal action against the company. Lastly, AT&T asserts that this Court should decide the merits of AT&T's claims because the historical facts contained in the record are undisputed and all the evidence necessary to decide the salient questions is currently before the Court. These arguments lack merit. It is clear that the district court had federal question jurisdiction under 28 U.S.C. § 1331, over this declaratory judgment action against the EEOC challenging the legality of the agency's conduct under federal law. Borg-Warner, 245 F.3d at 833-34; also see Ameritech Benefit Plan Committee v. Communication Workers of Am., 220 F.3d 814, 818 (7th Cir. 2000). This Court nonetheless should affirm the district court's judgment dismissing this case because the district court properly concluded that the EEOC's actions lack the finality necessary for review under the APA or the DJA. See Borg-Warner, 245 F.3d at 834 ("[s]ubject matter jurisdiction is one thing[;] [r]ipeness, standing, justiciability and the like . . . are quite another"). A. JUDICIAL REVIEW OF AT&T'S DECLARATORY ACTION IS NOT WARRANTED UNDER THE ADMINISTRATIVE PROCEDURE ACT Contrary to AT&T's assertions, this case is not appropriate for review under the APA. See AT&T Br. at 22-34. Under the APA, AT&T is not entitled to judicial intervention unless "the issues to be considered are purely legal and . . . the agency action which is the source of the controversy is final and not dependent upon future uncertainties or intervening agency rulings; and . . . the withholding of judicial review will cause hardship." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, the challenged conduct must constitute a final agency action within the meaning of the APA and, to be ripe for review, the conduct must require AT&T "to change its conduct or risk costly sanctions" and be "suitable for review at this time." Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 47 (D.C. Cir. 2000); see also Abbot Labs., 387 U.S. at 149 (ripeness doctrine requires court "to evaluate both fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration"). AT&T's declaratory action does not satisfy these requirements. On appeal, AT&T asserts that the issues before the district court are pure questions of law because the complaint asks the court "to decide whether AT&T's refusal to apply the PDA retroactively violates Title VII, and whether the underlying charges are timely as a matter of law." AT&T Br. at 23.<7> These legal issues, however, are not appropriate for review because the EEOC's conduct does not constitute a "final agency action" and AT&T has not suffered any injury that requires immediate review. 1. The EEOC's Actions, Singularly or Collectively, Do Not Constitute "Final Agency Action" Within the Meaning of the APA This Court has already made clear that an EEOC reasonable cause determination is not a "final agency action" suitable for review under the APA because "‘standing alone, it is lifeless and can fix no obligation nor impose any liability on the plaintiff.'" Borg-Warner, 245 F.3d at 836 (quoting Georator Corp, 592 F.2d at 767). AT&T concedes this point, but argues that the cause determinations in this case are distinguishable from the LOD in Borg-Warner because they "are but two actions in a series of actions by the EEOC that make clear beyond any genuine dispute that it has engaged in final agency action." AT&T Br. at 25. In support of its position, AT&T points to Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 n.7 (D.C. Cir. 1986), in which this Court indicated that a final agency action can result "from a series of agency pronouncements rather than a single edict" requiring consideration of "the cumulative effect of the agency's action on [the declaratory judgment plaintiff] and its alleged statutory right." AT&T Br. at 25. According to AT&T, a finding of "final agency action" is justified in this case because the LODs were "accompanied by threats of class action litigation directly against AT&T," which made clear that EEOC's position on the denial of pre-PDA pregnancy leave "was final" and "that there were no further administrative proceedings that were going to occur." AT&T Br. at 26. This threat of litigation it contends was demonstrated by several letters from the EEOC's San Francisco office threatening litigation "if AT&T did not accept the EEOC's proposals for class- wide relief," EEOC's amicus involvement in private litigation involving AT&T's service credit issues in the Sixth Circuit, the EEOC's update of its Compliance Manual to include guidance on how to analyze charges raising the issue of exclusion of pre-PDA pregnancy leave, and the Commission's litigation against other telecommunication firms adopting the same challenged method for calculating service credits. Id. at 26-28. Consequently, AT&T argues that these several acts taken by the EEOC and their cumulative effect constitute an agency action which is reviewable under the APA. AT&T's argument is untenable because neither the threat of litigation itself nor the cumulative effect of the "other agency actions" creating this "threat" constitutes a final agency action under the APA. As a preliminary matter, Ciba-Geigy is distinguishable from the instant case. In that case, this Court held that the Environmental Protection Agency ("EPA") took final action when it instructed a company that it was not entitled to a hearing before EPA was permitted to require a labeling change for one of the company's pesticides and ordered the company to comply with the new requirements or risk civil and criminal penalties. 801 F.2d at 436-37. In deciding finality existed, the Court considered whether the "agency's position is ‘definitive' and whether it has a ‘direct and immediate . . . effect on the day-to-day business' of the parties challenging the action." Id. at 436. It explained that "[t]hese indicia of finality are ordinarily controlling because they are highly probative of whether the agency's position is merely tentative or, on the other hand, whether the agency views its deliberative process as sufficiently final to demand compliance with its announced position." Id. It made clear that if the agency's position is tentative, the "interest in postponing review is powerful" because review would "improperly intrude[] into the agency's decisionmaking process" and "squander judicial resources since the challenging party [could] convince the agency to change its mind." Id. Under this standard, the Court concluded that EPA's decision was definitive because it "admit [ted] of no ambiguity" and "gave no indication that it was subject to further agency consideration or possible modification" and that it had "direct and immediate effect" because it required the company's "immediate compliance." Id. at 436-37. Consequently, this Court ruled that a letter from an agency official stating the agency's position and threatening enforcement action unless the company complied constituted final agency action. 801 F.2d at 436-39, 438 n 9. By contrast, AT&T's attempt to distinguish the LOD in this case from the non-final LOD in Borg-Warner by pointing to the EEOC's alleged threat of litigation and stated views in its Compliance Manual, amicus briefs, and lawsuits against other entities employing a similar service credit system is unavailing since the agency's position, even if arguably "definitive," has no "direct and immediate effect" on AT&T's day-to-day operations.<8> To begin with, AT&T's mischaracterizes the Commission's correspondence because the letters did not embody a "threat of litigation." At the time AT&T filed this declaratory judgment action on June 8, 1999, the EEOC had only issued its reasonable cause determinations on the Hulteen and Barr charges and administrative proceedings were still ongoing. As the district court observed, nothing in those LODs indicated that the EEOC was going to file a lawsuit. App. 40, 43, 117, EAdd.7-8. Consequently, no "threat of litigation" existed that could affect AT&T's operations. Second, the EEOC's communications beginning in December 1998, which invited AT&T to engage in conciliation efforts toward an informal resolution of the charges, See App. 63, and merely advised that if conciliation failed, "the matter would be forwarded to the legal department" for litigation consideration, id.; see also App. 68-69, 71, could not constitute a "final agency action" because the allusion to litigation had no legal or practical effect on AT&T. The LODs and initial EEOC letters, individually and collectively, clearly indicated "further administrative proceedings [were] contemplated," Abbott Labs., 387 U.S. at 149; see also Federal Trade Comm'n v. Standard Oil, 449 U.S. 232, 241-42 (1980) (no finality where FTC's action represented only "a threshold determination that further inquiry is warranted"), since conciliation had not yet commenced. Conciliation did not fail until June 25, 1999; thus, no cases were forwarded to the legal department until after this declaratory complaint had been filed. Had conciliation been successful, it would have obviated the need for the Commission even to consider, much less file a lawsuit. DRG Funding Corp. v. Secretary of HUD, 76 F.3d 1212, 1215 (D.C. Cir.1996) ("[w]hen completion of an agency's processes may obviate the need for judicial review, it is a good sign that an intermediate agency decision is not final"). Hence, any threat of litigation was theoretical. Moreover, even if the cases had been forwarded to the legal department by the time this action was under consideration for judicial review by the district court, any threat of litigation still would have been tentative. Once conciliation fails, in the normal scheme of the administrative process, cases are forwarded to the EEOC District Office's legal department to determine whether it wants to recommend that a lawsuit be filed by the agency. See generally EEOC Office of General Counsel, Regional Attorneys' Deskbook, Administrative Procedures: Litigation vol. I § II, at 5. If the legal department decides not to recommend filing suit, the agency's involvement in that particular matter would normally end. If the legal department decides to recommend litigation, it must, in cases of this type, obtain approval from the General Counsel and the Commissioners. See Regional Attorneys' Deskbook, Procedures for Obtaining Litigation Authorization, vol. I § VI, at 1-2; App.85-86. At any point in the process, which the district court recognized could be "long," App.86, the recommendation to litigate can be derailed. Therefore, unlike the EPA Director's decree in Ciba-Geigy, EEOC's notification that a case will be referred to the legal department for litigation consideration is not final, but instead is analogous to a "‘ruling of a subordinate official' that could be appealed to a higher level of [the agency's] hierarchy." Ciba-Geigy, 801 F.2d at 437 (quoting Abbot Labs., 387 U.S. at 151). Thus, AT&T overstates the significance of the EEOC letters because the tentative nature and the levels of review of any litigation proposal make it far from "perfectly clear that [the EEOC] intend[ed] to sue AT&T to obtain retroactive relief for a nationwide class of women and is using every judicial opportunity to adversely effect (sic) AT&T's interests, and advance its own, on the pre-PDA service credit issue." AT&T Br. at 20. Indeed, the fact that the EEOC has decided not to file a lawsuit based on the charges in this case demonstrates that AT&T's argument is completely unfounded. Accordingly, these communications fail to elevate the LODs to a level of "finality" requiring review under the APA. Third, AT&T's claim that "the EEOC has already sought to prejudice [its] interests in judicial proceedings," by filing an amicus brief "urging the Sixth Circuit to hold that AT&T's policies violate Title VII and other statutes," AT&T Br. at 26-27, and that it has filed lawsuits against other former Bell System telecommunications employers, id. at 28, is equally unavailing to its contention that the EEOC has engaged in "final agency action." Litigation against other similarly-situated entities or even a litigation position that is adverse to AT&T itself has obviously not prejudiced or had any direct and immediate effect on AT&T since it admittedly has continued to exclude pre-PDA pregnancy leave from its pension plan without restraint or penalty. See Id. at 32. Therefore, the EEOC's litigation position cannot result in any determinate consequence for AT&T until it is enforced by a court, Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (noting that "the final responsibility for enforcement of Title VII is vested with the federal courts"), and thus is not agency action that transforms the LODs into a reviewable action under the APA. Fourth, for similar reasons, the EEOC's updated Compliance Manual is not further evidence of the EEOC's alleged litigation threat that converts the Commission's cause determinations into final agency action. The Compliance Manual, which provides guidance for analyzing legal issues to the EEOC's investigators and lawyers, states in relevant part that "employers must treat pregnancy-related leaves the same as other medical leaves in calculating the years of service that will be credited in evaluating an employee's eligibility for a pension or early retirement," and that this approach to calculating service credit must "also apply to pregnancy-related leaves taken before the effective date of the PDA, where an employer uses years of service to establish eligibility for retirement benefits." EEOC Compl. Man., No. 915.003, at 64 (Oct. 3, 2000). Accompanying this guidance is a hypothetical raising the pre- PDA pregnancy leave claim in which the analysis concludes that, under the facts presented, charging party's PDA claim is timely and "the employer's decision to incorporate [the denial of service credit to women on maternity leave prior to 1979] in calculating seniority . . . is discriminatory." Id. Although this policy statement certainly may be considered by courts in adjudicating claims under the statutes EEOC enforces, Bragdon v. Abbott, 524 U.S. 624, 642 (1998), on the whole, it does not command Chevron deference,<9> Christensen v. Harris County, 529 U.S. 576, 586-87 (2000) ("[i]nterpretations such as those in . . . policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference"), and thus has only the power to persuade. Borg-Warner, 245 F.3d at 836 ("if [this guidance] has any force, it is derived from the EEOC's reasoning to persuade"). In addition, the Compliance Manual is not self-enforcing in that "Title VII does not provide the Commission with direct powers of enforcement" such as the power to "adjudicate claims or impose administrative sanctions." Alexander, 415 U.S. at 44. Further, although the particular guidance at issue may qualify as a "rule" because it states that the denial of pre-PDA pregnancy leave from pension plans constitutes a violation of the law, Borg-Warner, 245 F.3d at 836, it is not a reviewable rule under the APA because standing alone, the EEOC's policy statement on treatment of pre-PDA pregnancy-related leave cannot compel AT&T (or any other employer) to rescind or revise its method of calculating service credit. See Barrick, 215 F.3d at 48 (issuance of guideline or guidance may constitute "final agency action" if the action determines the rights or obligations of the regulated entity or legal consequences flow from the action); but see Borg- Warner, 245 F.3d at 836 (assuming that EEOC's policy statement is a "rule" representing EEOC's "final" position on arbitration, and thus is a "final agency action").<10> Therefore, because the Compliance Manual is not self-enforcing, but rather simply provides guidance to the Commission's investigators on how they should proceed if presented with a charge of discrimination filed by an individual who has not received credit for pre-PDA leave under a plan to determine her employee benefits or eligibility for retirement, it cannot qualify as final agency action. Accordingly, because neither the original Compliance Manual nor the October 2000 update "carries . . . special weight in the courts," Borg-Warner, 245 F.3d at 836, and the Compliance Manual does not, by itself, impose any definitive obligation on employers absent a court order, Alexander, 415 U.S. at 44, its interpretation and application of the law did not impinge on AT&T's rights, particularly in light of AT&T's "decades of settled expectations of the plans with respect to how employee benefits are calculated." AT&T Br. at 32, 34 (emphasis in original). Further, the guidance could not have created any "unfounded expectations" on the part of AT&T's female employees regarding their entitlement to credit for their pre-PDA pregnancy leave, AT&T Br. at 34, because the policy statement "does not create any rights under which an employee can sue for relief." Circuit City Stores, Inc. v. EEOC, 75 F.Supp.2d 491, 507 (E.D. Va. 1999), aff'd per curiam, 232 F.3d 887 (4th Cir. 2000); see also Pacific Gas & Elec. Co. v. Federal Power Comm'n, 506 F.2d 33, 39 (D.C. Cir. 1974) ("A general statement of policy . . . does not establish a 'binding norm.' It is not determinative of the issues or rights to which it is addressed."). Finally, because none of the above-cited agency activity individually constitutes a "final agency action," the cumulative effect of this agency conduct is equally lacking. Moreover, even if the EEOC's activity were sufficient to constitute a genuine threat of litigation, which it clearly is not, "a threat to institute enforcement proceedings is not a final agency action," Circuit City, 75 F.Supp.2d at 512, and hence is not reviewable. Also see Standard Oil, 449 U.S. at 241-42 ("the Commission's averment of ‘reason to believe' that Socal was violating the Act" is a "determination only that adjudicatory proceedings will commence" that has no legal force nor any effect on Socal's daily business comparable to the agency conduct at issue in Abbott Labs.). Therefore, although the district court may have neglected to analyze the series of acts constituting an alleged threat of litigation in deciding there was no "final agency action" to be reviewed in this case, that judgment should remain undisturbed because all of the agency acts identified by AT&T, individually and collectively, lack finality since they do not fix any obligation or impose any liability on AT&T and thus are not reviewable under the APA. 2. Declaratory Relief is Unnecessary since AT&T Would Suffer No Hardship if Judicial Review were Withheld Apart from the EEOC's actions not constituting a "final agency action" under the APA, the issues in this declaratory action are not ripe because postponing review will not subject AT&T to any hardship. Here, AT&T reiterates that it has suffered injury because of the EEOC's threat of litigation. AT&T Br. at 30-31. It also argues that, unlike the declaratory plaintiff in Borg-Warner, it would have "‘much to gain', and its interests would unquestionably be promoted, by a decision from this Court that specifically ends the EEOC's multi-faceted effort to impose retroactive relief on AT&T and its pension plans." Id. at 31. AT&T further argues that, without a declaration, its employee benefits committee will remain in the position of either "(1) calculating service credit according to the EEOC's position, which would violate the terms of the plans and therefore violate the requirement of ERISA[,] . . . that plans be administered according to their written terms, or (2) calculating service credit according to the plans and facing a lawsuit by the EEOC for violating Title VII." Id. Finally, AT&T contends it suffers harm from the EEOC's Compliance Manual because it creates "unfounded expectations" among its employees who seek to obtain pension benefits as a result of the Commission's "widely-published but erroneous statutory interpretation" of the PDA. Id. at 33-34. As stated earlier, at the time this declaratory action was filed, EEOC's alleged threat to file a lawsuit against AT&T was purely speculative. EEOC has no enforcement power to compel AT&T to change its method of calculating service credits. Cf. Ciba-Geigy, 801 F.2d at 438-39 (plaintiff forced to choose between immediate compliance with EPA labeling requirement, which it believed would lead to a substantial loss in sales, and exposure to serious civil and criminal penalties for noncompliance). Indeed, since the issuance of the LODs, AT&T has not been compelled to make any alteration to its management of the pension plan nor does it "risk serious criminal and civil penalties" for merely refusing to accept the conciliation terms, despite the Commission's position in its Compliance Manual and litigation against other telecommunications firms position that denial of service credit calculations to women who took pregnancy leave prior to the effective date of the PDA violates the law. Abbot Labs., 387 U.S. at 153; also see Ciba-Geigy, 801 F.2d at 437 (considering definitive EPA letter refusing cancellation hearing and ordering compliance with new labeling requirements "on pain of civil and criminal penalties"). In fact, AT&T itself admits that it has continued to refuse to include pre-PDA pregnancy leave in its service credit calculations, and it has not contended that it has incurred any harm as a consequence for its disregard of the Commission's view that its conduct violates the law. Moreover, if EEOC had filed a lawsuit, AT&T's only possible harm would have been the unpleasantness and burden of defending itself in a judicial proceeding addressing the legality of its service credit policy, an insufficient basis for judicial review.<11> See Borg- Warner, 245 F.3d at 836(noting that the issuance of an administrative complaint is an insufficient basis for APA review because it "‘ha[s] no legal force or practical effect upon [the company's] daily business other than the disruptions that accompany any major litigation.'" (quoting Standard Oil, 449 U.S. at 241, 243). Further, judicial review would not terminate the controversy giving rise to this declaratory judgment proceeding because AT&T cannot establish that it is the Commission's conduct which has caused the uncertainty about whether its pension plan conflicts with Title VII and the EPA. AT&T Br. at 31. As earlier stated, the Commission's actions in the form of its reasonable cause determinations, forwarding of the case files to its legal department after conciliation failed, and policy statement addressing the PDA issue in its Compliance Manual are not self-enforcing and do not fix in themselves any legal obligation on AT&T. The uncertainty AT&T is experiencing regarding its obligations under the pension plans results from the fact that the federal courts are divided on whether the challenged service credit policy is valid under Title VII. Indeed, the Ninth Circuit and district courts in Ohio and New York have determined that pre-PDA discrimination claims based upon the subsequent adoption of early retirement plans are not untimely. See Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992); EEOC v. Bell Atlantic Corp., 80 Fair Empl. Prac. Cas. (BNA) 164 (S.D.N.Y. 1999) (rejecting the reasoning of Ameritech and concluding that Title VII claims were timely); Carter v. AT&T, 870 F. Supp. 1438, 1444 (S.D. Ohio 1994) (holding that plaintiff's challenge to AT&T's service credit program, which incorporated past discriminatory criteria, constituted reviewable current Title VII violation), vacated per settlement agreement, 75 Fair Empl. Prac. Cas. (BNA) 866 (S.D. Ohio Sept. 13, 1996).<12> In fact, the Carter district court went so far as to conclude that AT&T's denial of credit for pregnancy leave taken before the enactment of the PDA actually violated Title VII. Id. at 1445. In addition, in dismissing an action against the Commission seeking a declaration that the company did not discriminate against employees under Title VII concerning a similar retirement policy adopted under similar circumstances, a district court in Virginia, citing to Pallas and Carter, stated that, "contrary to Bell Atlantic's emphatic assertion, it is not 'apparent' that the two charges [of discrimination filed with the EEOC] are invalid." Bell Atlantic Cash Balance Plan v. EEOC, 976 F. Supp. 376, 382-83 (E.D. Va. 1997), aff'd., 182 F.3d 906 (4th Cir. 1999) (unpublished).<13> In contrast, the Seventh Circuit has reached the contrary conclusion that such claims are time-barred. See Ameritech 220 F.3d at 821-23 (holding any Title VII or EPA challenge to method of calculating pre-PDA leave was time-barred); accord Redding v. AT&T, No. 96-WY- 807-CB (D. Col. July 25, 1996) (granting defendant's motion to dismiss plaintiff's ERISA claim that "the AT&T Plan fiduciaries breached their duties . . . by refusing to give her service credit (and thus increase her pension benefits) for 12 pregnancy-related disability leaves of absences she took between 1951 and 1967," among other reasons, on timeliness grounds), aff'd on other grounds, 124 F.3d 217 (10th Cir. 1997). This division of authority, and the uncertainty that it creates, will remain even if AT&T convinces this Court to silence the Commission on the service credit issue. Ms. Hulteen and the Communication Workers of America have challenged AT&T's service credit policy, and a declaratory judgment in this jurisdiction will have little impact on that ongoing litigation. See supra note 6. Any other aggrieved individual could bring a similar challenge regardless of the ruling in this case. That the EEOC's conduct is not the cause of AT&T's alleged uncertainty about its legal obligations finds further support in AT&T's objections to the fact that "the EEOC is litigating against telecommunications employers in various jurisdictions based upon an adverse appellate precedent (Pallas), seeking to establish that the NCS system and service crediting policies they inherited violate Title VII." AT&T Br. at 31. In the Commission's view, AT&T's statement indicates that its problem is not actually with the Commission's reasonable cause determinations, Compliance Manual, or litigation position but rather the Ninth Circuit's decision in Pallas; thus, the declaratory action was properly dismissed. See Borg-Warner, 245 F.3d at 837-38 (dismissal of declaratory judgment action was appropriate where defendant was aggrieved by law in a single jurisdiction, and not the EEOC's policy statement on arbitration). Moreover, given that the possibility of an appeal in the Ninth Circuit exists whether the Hulteen plaintiffs or AT&T prevails in the California federal lawsuit, and such an appeal will allow AT&T to challenge directly the validity of Pallas, AT&T's arguments on the merits of its plan are more suitable for review in the Hulteen class action than this declaratory action. Similarly, AT&T's argument that it "has ‘much to gain,' and its interests would unquestionably be promoted by a decision from this Court that specifically ends the EEOC's multifaceted effort to impose retroactive relief on AT&T and its pension plans" because this Court's decision in this declaratory action would have "a powerful stare decisis effect on non- parties to this litigation," is erroneous. AT&T Br. at 31 (quoting Ameritech, 220 F.3d at 821).<14> A decision in this declaratory action would not have any impact on the Hulteen action or change the law in the Ninth Circuit, see Pallas, 940 F.2d 1324, that appears adverse to AT&T and that governs the Hulteen suit. See Baker v. Delta Air Lines, Inc., 6 F.3d 632, 637 (9th Cir. 1993) ("[w]e are 'bound by decisions of prior panels, unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions'"). Nor would a decision in this action, contrary to AT&T's assertion, AT&T Br. at 31, be conclusive in subsequent litigation by non-parties raising similar challenges against AT&T. See Ameritech, 220 F.3d at 821 (observing that its ruling in a declaratory judgment action will have limited effect on another pending case because the "Ohio court, and the Sixth Circuit in turn should an appeal be taken, will have the right to come to their own conclusions on these issues"); State Farm Mut. Auto. In. Co. v. Mid-Continent Cas. Co., 518 F.2d 292 (10th Cir. 1975) (a declaratory judgment is not res judicata as to a nonparty). Therefore, given that entertaining a declaratory judgment action in this jurisdiction would result in competing lawsuits on the same issues in two different federal jurisdictions, this Court should uphold the district court's decision to withhold review in this case. Finally, we note that AT&T cannot claim injury from the EEOC's updated Compliance Manual addressing the pre-PDA pregnancy leave issue to the extent it clarifies the Commission's view that pre-PDA discrimination that causes disparity in post-PDA benefits constitutes a violation of the law. At the time AT&T filed its declaratory complaint against the EEOC in June 1999, the policy section with which it takes issue had not been published;<15> thus it could not have contributed to any "uncertainty" AT&T claims. See Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961, 965 n.5 (D.C. Cir. 1995) (question of justiciability must be decided on the facts in existence at the time suit was filed). Accordingly, the Compliance Manual cannot service as a basis for overturning the dismissal of this declaratory action. The district court therefore appropriately disregarded the EEOC's conduct allegedly constituting a threat of litigation and correctly determined that immediate review of this action was completely unnecessary and inappropriate. B. ABSENT AN INJURY, AT&T LACKS STANDING TO SUE For reasons similar to why AT&T will experience no "hardship" if judicial review is withheld, it also lacks standing. To have standing to sue, AT&T must have suffered an injury in fact, there must be a causal connection between the injury and conduct complained of, and it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Kennecott Utah Copper Corp. v. United States Dep't of Interior, 88 F.3d 1191, 1204 (D.C. Cir. 1996). AT&T argues that the EEOC's threat of litigation against the company and litigation position in other fora indicating its belief that service credit systems that exclude pregnancy-related leave taken before the effective date of the PDA violates Title VII has caused it harm. As earlier stated, AT&T has not demonstrated that it presently faces a real threat of being subjected to adverse action as a consequence of the reasonable cause determinations. None of the agency actions taken by the EEOC from the issuance of the LODs to the Commission's participation in litigation challenging similar pension plan issues have any binding or legal effect on AT&T. Further, even if the threat of litigation in this action were credible, AT&T would not suffer any hardship because once the EEOC or any aggrieved person filed a lawsuit, it would have full opportunity to raise then the same legal issues it wants addressed in this declaratory judgment action and advance its position that it has not violated the law in excluding pre-PDA pregnancy leave from its service credit calculations. Finally, the fact the Commission will not be filing suit establishes that AT&T has not suffered an "injury in fact" as result of any Commission conduct. On the contrary, if AT&T is suffering any concrete injury arising from the threat of litigation challenging its treatment of pre-PDA pregnancy-related leave in its service credit calculations, it is because that threat is actually a reality since charging party Noreen Hulteen, along with other affected AT&T female employees and the Communication Workers of America, have filed a nationwide class action suit in the federal district court of California. See EAdd.1. Consequently, any alleged injury of which AT&T complains regarding the legality of its service credit policy can be redressed in the Hulteen lawsuit. Therefore, this declaratory judgment action against the EEOC is both premature and unnecessary, and thus, should not be reviewed since it could impede the effective enforcement of Title VII. C. THIS ACTION IS NOT JUSTIFIED UNDER THE DECLARATORY JUDGMENT ACT Finally, contrary to AT&T's assertions, AT&T Br. at 18-22, this case is not ripe for review under the Declaratory Judgment Act ("DJA"),<16> because the EEOC's conduct creating an alleged threat to file a lawsuit challenging the company's exclusion of pre-PDA maternity leave from its calculations of seniority or service credits at the time it filed this action does not rise to the level of an "actual controversy" subject to judicial review under the DJA. Federal Express, 67 F.3d at 963 n.2. There is no "actual controversy" unless "the facts alleged, . . . show that there is substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941); Federal Express, 67 F.3d at 964. Here, AT&T argues that the "actual controversy" requirement is met because it has shown a "reasonable apprehension of suit." AT&T Br. at 19-22. According to AT&T, circumstances establishing that an apprehension of litigation is reasonable include "‘a prior record of [lawsuits] against . . . others similarly situated, evincing the defendant's willingness to enforce his rights . . .; putatively benign representations on the part of the declaratory defendant from which an implied threat may be discerned . . .; and the defendant's failure to disavow interest in charging the undertaking in question.'" AT&T Br. at 19 (quoting United Christian Scientists v. Christian Science Bd. of Dirs., 829 F.2d 1152, 1158 n.5 (D.C. Cir. 1987)). Under this standard, AT&T claims, "the EEOC has expressly stated its intent to sue AT&T" because letters from the Commission "issued threats of class action litigation directly against AT&T," EEOC rejected AT&T's attempts at conciliation and forwarded the matter to its legal department for litigation consideration, the agency's Compliance Manual "now adopts a vacated Ohio decision (Carter v. AT&T) that resolved the exact issue presented in AT&T's complaint below," and "in the context of litigation against other entities, and in amicus briefs filed in an AT&T case on the same issue, the EEOC has explicitly stated its desire to enforce its published interpretation of the PDA against AT&T." Id. at 20. It further argues that its apprehension of litigation is reasonable because the EEOC has engaged in litigation activities against "other former Bell System employers which, like AT&T, inherited the Bell NCS System." Id. Lastly, AT&T argues that the "EEOC cannot undercut [its] DJA argument by tactically holding back and contending (contrary to all evidence) that it may not actually sue AT&T after all" because case law rejects such a claim. Id. at 21. In sum, AT&T contends that given the Commission's litigation activity, it "has a reasonable apprehension that it will be sued and does not have to wait like a sitting duck until the EEOC decides to sue AT&T in a forum of its choice." Id. at 21-22. Thus, it concludes the DJA is the proper vehicle for bringing this controversy to resolution. This Court should reject AT&T's efforts to endrun the finality requirements of the APA by the simple expedient of recasting its threat of litigation arguments into an actual controversy for DJA purposes. The threat we have shown not to be final for APA purposes, see supra pp. 19-26, is likewise not an actual controversy for DJA purposes. 1. There is No Actual Controversy to Invoke Judicial Review because AT&T's Apprehension of an EEOC Lawsuit is not Reasonable On the whole, a declaratory judgment is not necessary in this action because the short of the matter is that EEOC is not filing a lawsuit against AT&T based on Barr or Hulteen charges. Therefore, prudential reasons weigh against devoting any more judicial resources to this premature and unreviewable action. See Ciba-Geigy, 801 F.2d at 436; cf. Nowicki v. Ullsvick, 69 F.3d 1320, 1324 (7th Cir. 1995) (an Article III case or controversy must exist at all of the stages of appellate review). However, even if this litigation decision had not been made, no ripe controversy requiring judicial intervention would exist because the agency's litigation activity and assertions of its litigation position do not establish an imminent threat of litigation mandating review. To begin with, AT&T relies on a series of cases identifying the threat of law enforcement as a basis for finding an actual controversy under the DJA. See AT&T Br. at 18-22. Most of the cases are inapposite because they involve challenges to the constitutionality of statutes. See, e.g., Babbitt v. United Farm Workers, 442 U.S. 289 (1979) (challenging constitutionality of state statute prohibiting unions from making "dishonest" statements, and possibly inadvertent misstatements, during publicity campaigns aimed at convincing consumers to boycott agricultural products); Lake Carrier's Ass'n v. MacMullan, 406 U.S. 498 (1972) (action against Michigan authorities for declaratory judgment that Michigan Water Pollution Act of 1970 was unconstitutional); Christian Scientists, 829 F.2d at 1157 (instituting declaratory action to challenge constitutionality of private law granting a church extended copyright on all editions of religious text under establishment clause); Boggs v. Bowron, 842 F.Supp. 542, 547 (D.D.C. 1993), aff'd, 67 F.3d 972 (D.C. Cir. 1995), cert. denied, 517 U.S. 1134 (1996)) (addressing constitutionality of counterfeit statutes). AT&T does not allege that the PDA infringes on its constitutional rights or liberties. Thus, its declaratory action is not entitled to review under a less stringent ripeness standard reserved for constitutional claims. See, e.g., Planned Parenthood Ass'n v. Kempiners, 700 F.2d 1115, 1122 (7th Cir.1983) ("[r]equirements of ripeness are less strictly construed in the first amendment context due to the chilling effect on protected expression which delay might produce."); see also 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.3 at 159 (2d ed. 1984) ("First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss."). In addition, some of the cited cases, unlike AT&T's action, involve a declaratory defendant who has compelled the declaratory judgment plaintiffs to forego putatively lawful conduct or face severe criminal or civil sanctions for non-compliance. See e.g., Lake Carriers' Ass'n, 406 U.S. at 507 (government affirmatively "sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible," to make the Act "present[ly] effective[ ] in fact" for these appellants); Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C.Cir.1997) (pre-enforcement review of statute with criminal penalties appropriate because of great and immediate danger of irreparable loss); Application of the Pres. & Directors of Georgetown College, Inc., 331 F.2d 1000, 1010 n.6 (D.C. Cir.) (justiciable controversy existed regarding hospital that risked civil and criminal liability if it did not administer blood transfusion in action where patient wanted to live and transfusion was necessary to save her life, even though patient's husband refused to authorize treatment), cert. denied, 377 U.S. 978 (1964). In contrast, neither the PDA nor the EEOC's administrative processes impose any immediate penalty or risk of sanction for non-compliance with the LODs. Thus, to the extent that these cases permit pre- enforcement review when there is a challenge to a state, regulatory, or criminal statute on constitutional grounds so that the plaintiff does not have to first risk exposing himself to actual arrest, prosecution, or criminal or civil sanction, these cases do not replace the governing standard for ripeness under the APA as set forth in Standard Oil, 449 U.S. at 240-43. Nor do these cases provide any new basis for finding a justiciable controversy in this case where the challenge is to agency conduct that is not self-executing rather than to the terms of a statute. Even if fear of litigation created a justiciable controversy in a case challenging agency action rather than the application of a statute, the cases AT&T relies on do not support its argument that it had a reasonable fear of litigation. Rather, the cases emphasize that such a fear is reasonable when it is inevitable that a law will be enforced imminently and a statute imposes a current obligation to comply with its mandatory terms, Lake Carriers' Ass'n, 406 U.S. at 508; when a criminal statute "in effect singles out the appellants as its intended targets, by prohibiting weapons that only the appellants make," Navegar, 103 F.3d at 1000; when a criminal statute induces a declaratory plaintiff to immediately cease its putatively illegal conduct, id. at 997; when there is "a direct threat to file a lawsuit in the immediate future" conveyed by legal counsel for the party making the threat, Federal Express, 67 F.3d at 965; or when the threat of litigation has "immediate coercive consequences," Marine Equipment Mgmt. Co. v. United States, 4 F.3d 643, 647 (8th Cir. 1993). As discussed supra at pp. 19-26, the EEOC's conduct in this case has none of these features. AT&T has not alleged that the EEOC has imposed any current obligations upon it, nor that litigation has been initiated, nor can it point to anything to support its fear that litigation is imminent. See Lake Carriers' Ass'n, 406 U.S. at 508. AT&T cannot demonstrate that the EEOC's position on pre-PDA service credits has solely targeted AT&T for prosecution. See Navegar, 103 F.3d at 1000. AT&T cannot demonstrate that it has modified its service credit policy to comport with the EEOC's interpretation of the requirements of Title VII or the EPA. See id. at 997-998. AT&T cannot credibly argue that the letters it received from the EEOC created a reasonable fear of litigation because the letters mentioning the terms "legal department" or "litigation" were written by a Commission investigator, not an attorney, and the letters invited AT&T to conciliate. See Federal Express, 67 F.3d at 965. Finally, AT&T cannot seriously suggest that the "threats" it relies on suggested any sort of immediate consequences, or that it did not realize at the time that the possibility of Commission litigation was contingent upon approval by Commission officials beyond the letter writer. See Marine Equipment Mgmt. Co., 4 F.3d at 647. Although the fact that EEOC has sued other entities having similar service credit policies is pertinent in evaluating whether there is a reasonable threat of litigation, Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998), because the decision to sue in every case is driven by the particular facts involved and the resources of the Commission at the time, the fact of other similar suits is insufficient to create a present controversy that is "definite and concrete" rather than "hypothetical or abstract." Babbitt, 442 U.S. at 298-99; see also Navegar, 103 F.3d at 998 (same). Finally, even if the EEOC's conduct suggested that a lawsuit was inevitable, a declaratory action would be inappropriate because Title VII provides an adequate forum in which AT&T could present its defenses in a case on the merits and obtain a determination of the entire controversy. Hence, although "another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate," Fed.R.Civ.P. 57, a declaratory judgment should not be granted where a special statutory proceeding has been provided. See Katzenbach v. McClung, 379 U.S. 294, 295-296 (1964). Title VII provides for such a proceeding. 42 U.S.C. § 2000e-5(f)(3). Consequently, even though the interests of AT&T and the EEOC are "adverse," there was no present immediate effect on AT&T resulting from the EEOC's pre-litigation activity. Thus, AT&T's professed fears fail to create a justiciable case or controversy requiring review of this declaratory judgment action. 2. Any Purpose Served by this Declaratory Action Has Been Vitiated by the Hulteen Class Action The purpose of the DJA is to afford a remedy to one who is uncertain of his rights and who desires early adjudication thereof without having to wait until his adversary should decide to sue, and to act at his peril in interim. McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 342 (9th Cir.), cert. denied, 385 U.S. 919 (1966). Put differently, a declaratory judgment should not be granted unless "it will either ‘serve a useful purpose in clarifying the legal relations in issue' or ‘terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.'" President v. Vance, 627 F.2d 353, 365 (D.C. Cir. 1980) (quoting E. Borchard, Declaratory Judgments 299 (2d ed. 1941)). Accordingly, even though the DJA allows prospective defendants to sue to establish their nonliability in proper circumstances, Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), such relief is still "inappropriate" where " 'more effective relief can and should be obtained by another procedure.' " Cunningham Bros. v. Bail, 407 F.2d 1165, 1167 (7th Cir.), cert. denied, 395 U.S. 959 (1969) (internal quote omitted). Under the facts of this case, AT&T cannot establish that a declaratory judgment would serve any useful purpose. Noreen Hulteen, one of the charging parties whose discrimination claims gave rise to the controversy undergirding this declaratory action, has chosen to file a class action suit in a federal district court in California. The Ninth Circuit's decision in Pallas, holding that claimants who challenged a pension plan system similar to the one at issue here "state[] a valid claim under Title VII," Pallas, 940 F.2d at 1327, is controlling law. Any concerns that AT&T has regarding the legality of its pension plan system can be resolved in this action. In addition, a decision in the Hulteen action will afford full redress of the class claims and provide "an adequate forum for testing [the Commission's legal position] in a concrete situation." Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 165 (1967) (declining review of final agency action where there was no immediate legal consequences and adequate forum of redress existed). Therefore, because Title VII provides an adequate procedure and remedy to address AT&T's interests, judicial economy and respect for agency processes counsel against allowing the declaratory action to proceed. Ciba-Geigy, 801 F.2d at 436 (postponement of declaratory judgment action is favored where review "improperly intrudes into agency's decisionmaking process"). Inasmuch as the Hulteen suit provides an adequate avenue for effective relief , a declaratory judgment is not necessary because it would not terminate the Hulteen action or prevent future litigation by other parties, nor would it settle all issues in controversy that gave rise to this action. Any decision the district court or this Court might issue in this declaratory judgment action would do nothing to change the law in the Ninth Circuit or have any impact on a private lawsuit challenging AT&T's pension plan calculations. Moreover, since the Hulteen action is pending, and could settle the controversy in dispute at least as to the claims that gave rise to this proceeding, review in this Court could only result in piecemeal litigation. Gross v. Fox, 496 F.2d 1153, 1155 (3d Cir. 1974) (where the declaratory plaintiff "can obtain all the relief to which she is entitled in the pending one-judge proceeding without a declaratory judgment . . . [it] prevents the declaratory proceeding from having more than minimal value, and that value is counterbalanced by the undesirability of two proceedings where one will do"). This action therefore is unnecessary and has actually been rendered moot by the Hulteen proceeding. See Franks v. Bowman Transp. Auth., 424 U.S. 747, 755-56 (1976) ("mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists"). In bringing this declaratory judgment action, AT&T actually may be attempting to avoid litigation over its service credit system in any court within the Ninth Circuit, given its awareness that Hulteen's EEOC charge had been filed in San Francisco. If so, this Court should refrain from reviewing this matter because circumvention of traditional procedures for resolving employment discrimination claims is not an appropriate use of the declaratory judgment statute.<17> Under Title VII, the party aggrieved by the alleged discrimination will normally determine the venue where litigation will be heard, as evidenced by the issuance of notice of the right to sue to the charging party, 42 U.S.C. § 2000e-5(f)(1)(A), not the alleged perpetrator of discrimination. If this declaratory action were allowed to go forward in this jurisdiction, it would permit AT&T, the defendant in the Hulteen suit, to circumvent the procedures of Title VII and improperly exercise control over where and when the dispute will be resolved, thereby rewarding its attempts to forum shop. Friedman v. Geller, 925 F.Supp. 611, 614 (E.D.Wis.1996) (a declaratory judgment statute is not way for potential defendant to choose time and forum of dispute). In addition, a declaratory judgment under these circumstances would encourage employers to run directly to court upon receiving a reasonable cause determination, rather than allowing the Commission to complete its administrative process, including any efforts to conciliate or otherwise secure a voluntary agreement between the parties. See 42 U.S.C. § 2000e-5(b) (once the Commission finds reasonable cause, it shall endeavor to eliminate the alleged unlawful employment practice by "conference, conciliation, and persuasion"); also see Standard Oil, 449 U.S. at 242-43 (denying judicial review of administrative complaint averring reason to believe company violated law because "the effect . . . is likely to be interference with the proper functioning of the agency and a burden for the courts" and "turn prosecutor into defendant before adjudication concludes"). Therefore, even if the district court could exercise jurisdiction over AT&T's declaratory judgment action, the fact that EEOC has not filed suit against AT&T to challenge its failure to calculate pre-PDA pregnancy leave, and perhaps more importantly, Noreen Hulteen, one of the charging parties, has chosen to file suit in a federal district court in California, should be sufficient to sustain the district court's dismissal of this proceeding. See Federal Express, 67 F.3d at 964 n.3 (district courts may deny declaratory judgment on discretionary, prudential grounds) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)); Jackson v. Culinary School of Washington, Ltd., 27 F.3d 573, 578 (D.C. Cir. 1994) ("[w]hen a declaratory judgment will play scant role in settling a dispute, it is often better (if not legally necessary) to refrain from granting the declaratory judgment remedy"), vacated on other grounds, 515 U.S. 1139 (1995).<18> CONCLUSION AT&T is not entitled to judicial review of its declaratory judgment action under the APA or DJA. None of the EEOC's actions satisfy the finality requirements of either statute since the EEOC had issued only reasonable cause determinations at the time this action was filed and subsequently has decided not to file suit. Further, AT&T has not suffered a legally cognizable injury nor will it incur any harm if judicial review is withheld. This Court therefore should affirm the district court's dismissal of this declaratory judgment action. Respectfully submitted, GWENDOLYN YOUNG REAMS Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7044 Washington, D.C. 20507 July 5, 2001 (202) 663-4731 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 12,058 words and the typeface is Times Roman 14 point. _________________________________ PAULA R. BRUNER CERTIFICATE OF SERVICE This is to certify that on July 5, 2001, two copies of the foregoing brief were mailed first class, postage prepaid, to the following counsel of record: Timothy L. Porter Laura A. Kaster AT&T CORPORATION 295 North Maple Avenue, Room 2223G2 Basking Ridge, NJ 07920 Charles C. Jackson Thomas H.W. Sawyer Allegra R. Rich SEYFARTH SHAW 55 East Monroe Street, Suite 4200 Chicago, IL 60603 Christopher A. Weals SEYFARTH SHAW 815 Connecticut Avenue, N.W., Suite 500 Washington, DC 20006 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4731 July 5, 2001 ADDENDUM INDEX ITEM PAGE 1. Docket Sheet in Hulteen v. AT&T Mgmt. Pension Plan, No. 01-CY 1122 (N.D. Cal.). . . . . . . . . . . . . . . . .1 2. EEOC Notice of Intent to Reconsider in Barr v. AT&T . . . . 3. EEOC (revised) Determination in Barr v. AT&T (Nov. 22, 1999) 4. EEOC Notice of Right to Sue in Hulteen v. AT&T. . . . . . . 5. EEOC Compliance Manual, Discrimination Based on Pregnancy, Childbirth, or Related Medical Conditions, No. 915.003 (Oct. 3, 2000) . *********************************************************************** <> <0> The Commission does not anticipate a separate lawsuit by Ms. Barr. According to AT&T, Ms. Barr “signed a release where she agrees she will recover no benefits, . . . even if she technically retains the right to sue.” App. 108. <1> Documents and exhibits in AT&T’s Appendix will be referred to as “App.” followed by the page number on which cited information appears (e.g., App.6). Record references to docket sheet entries will be identified as “R.” <2> On November 22, 1999, the EEOC rescinded the Barr LOD issued in December 1998, EAdd.6, and on that same date, reissued another LOD, which made essentially the same findings as the December 1998 LOD, on the Title VII and EPA claims raised in this declaratory action. See EAdd.7-8. <3> Because Ms. Barr signed an AT&T release relinquishing her claims for benefits in May 1998, and decided to accept the benefits offered by AT&T’s Voluntary Retirement Incentive Program, the EEOC’s Cleveland office did not attempt conciliation or issue Barr a right to sue notice. <4> The San Francisco office issued Ms. Hulteen a right to sue notice on March 15, 2001. See EAdd.9. <5> We note that conciliation is not a jurisdictional prerequisite to a private lawsuit, so that any claims of injury due to inadequate conciliation can ripen only if the EEOC chooses to file suit. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973) (only prerequisites to a Title VII action are a timely charge and a right to sue notice). <6> Since the filing of this appeal, Ms. Hulteen, several AT&T employees, and the Communication Workers of America have filed in the Northern District of California a class action lawsuit on behalf of the named plaintiffs and other similarly situated AT&T female employees, alleging that AT&T discriminated against female employees who took pregnancy-related leave before April 1979. See EAdd.1. Consequently, the EEOC has decided not to file suit on the Hulteen or Barr charges. <7> AT&T disregards that it also “seeks a declaration that the litigation threatened by the EEOC based on those charges would be barred by the doctrine of laches,” and argues that this claim is appropriate for review because the pertinent facts are “pled in the complaint and are based on the undisputed length of time the EEOC has delayed processing of the Barr and Hulteen charges.” AT&T Br. at 24. In the Commission’s view, the laches issue is not a “purely legal” question” nor is it appropriate for review. AT&T Br. at 24. "Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Costello v. United States, 365 U.S. 265, 282 (1961). Accordingly, even if the length of time the EEOC took to process the charges is undisputed, AT&T’s complaint that it is substantially prejudiced “because of mounting financial consequences of the EEOC’s delay and demands for extraordinary nationwide relief,” App.16, raises factual arguments that are clearly inappropriate for review in a declaratory judgment action. Furthermore, because the doctrine of laches or prejudicial delay is a defense relevant to the timeliness of a lawsuit, the laches issue is either speculative since no suit existed at the time this action was filed or moot since the EEOC has decided not to sue AT&T. <8> Another pivotal distinction between Ciba-Geigy and the instant case is the nature of the declaratory complaint. In Ciba-Geigy, this Court stated that if the complaint “were seeking a declaratory judgment that the available scientific evidence does not warrant a misbranding action,” it would consider “‘[a] threat to commence misbranding proceedings . . . equivalent to an agency’s “probable cause” determination,’”and find the Company’s challenge unripe for review. Ciba-Geigy, 801 F.2d at 437 n.8. However, this Court stated, the complaint in Ciba-Geigy “seeks no such relief; rather, it is based on the entirely separate legal theory that the Act requires EPA to bring a cancellation hearing when it wants to change the labeling requirements for a registered pesticide.” Id. In this case, unlike Ciba-Geigy, AT&T seeks a declaration that its service credit system is lawful under Title VII and attempts to avoid an enforcement action on the merits. Thus, Ciba-Geigy directs that the complaint before this Court be controlled by cases deciding that probable cause determinations are not final agency actions. <9> The Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984), held that when Congress has delegated authority to an agency “to elucidate a specific provision of the statute by regulation,” the agency’s regulations are binding in the courts unless they are procedurally defective, arbitrary or capricious, or contrary to the statute. See also United States v. Mead Corp., 121 S.Ct. 2164, 2171 (2001). The Court recently reiterated in Mead Corp. that where agency interpretations are outside the Chevron pale because they do not stem from the exercise of delegated lawmaking powers, the interpretations are still entitled to deference due to their power to persuade. Id. at 2175-76. <10> The Commission does not embrace this Court’s assumption that any EEOC policy statement is a “‘rule’ within the meaning of 5 U.S.C. §551(13)” that constitutes “final agency action” under the APA. See Borg-Warner, 245 F.3d at 836. The status of agency guidelines as reviewable "rules" is determined by their binding character. Barrick, 215 F.3d at 48. Generally, a Commission policy statement is not binding because, standing alone, it does not create any rights or impose any obligations on the employer absent a court order, and thus no legal consequences flow from this action. Alexander, 415 U.S. at 44. Rather, it is only entitled to the deference owed to its persuasive power. Mead Corp.,121 S.Ct. at 2171, 2175; Christensen, 529 U.S. at 586-87. Moreover, since the primary purpose of the guidance is to shape the analysis of the issue under investigation for EEOC’s investigators and attorneys, and ultimately inform the Commission’s cause determination, this Court’s decision that an LOD is not a “final agency action” under the APA should certainly control the Court’s evaluation of internal guidance several steps removed from having any concrete effect on the employer in determining finality under the APA. <11> Of course, if the EEOC had filed a lawsuit and prevailed on its claims, AT&T would also be liable for damages and equitable relief judged necessary to remedy its violation of Title VII, but those consequences would flow from a judicial determination of liability, not from the EEOC’s interpretation of the law. See Standard Oil, 449 U.S. at 241-43 (issuance of complaint without binding effect until completion of judicial review is not final agency action). <12> A district court in Illinois also agreed that similar discrimination claims were timely, see EEOC v. AT&T Technologies, Inc., 1987 WL 26142 (N.D. Ill. Dec. 1, 1987) (holding that maintenance of a discriminatory retirement plan that had its genesis in a forced leave policy for pregnant employees and the limitation of their seniority during maternity leave constituted a continuing violation under the PDA), but that decision has since been overruled by the Seventh Circuit’s decision in Ameritech, holding that such claims are time-barred. See Ameritech Benefit Plan Committee v. Communication Workers of America, 220 F.3d 814, 821-23 (7th Cir. 2000). <13> State court cases addressing similar seniority and leave issues have also considered those claims timely. See, e.g., Lynn Teachers Union, Local 1037 v. Massachusetts Comm'n Against Discrimination, 406 Mass. 515, 520-23, 549 N.E.2d 97, 100-02 (1990) (deciding state civil rights commission correctly found a "continuing violation" in a union's failure to credit two female employees with seniority under its seniority system's requirement of consecutive years of service because of the employees' interruption of service (involuntarily) due to an unlawful maternity leave policy, where the six-month filing limitation under the relevant statute did not apply). <14> In Ameritech, the Seventh Circuit, confronted with the issue of class certification, noted that, because “the rights of persons not before the court are necessarily implicated once a class is certified[,] . . . resolution of these claims [of the named parties and intervenors] will have a powerful stare decisis effect on the claims absentees might have wanted to assert . . . .” 220 F.3d at 821. Given that this declaratory judgment action is against the EEOC only, a decision would bind only the EEOC and the courts in this jurisdiction. See 1B James Wm. Moore, Moore's Federal Practice ¶ .0402[1] at 4 (2d ed. 1996) (the doctrine of stare decisis represents the legal rule that "a decision on an issue law embodied in a final judgment is binding in all future cases, on the court that decided it and on such other court as owe obedience to its decisions"). Consequently, AT&T’s reliance on Ameritech is misplaced. Indeed, even the Ameritech Court acknowledged that its “ruling in this action [against a union] will not formally preclude the EEOC in its [pending] Ohio action, since the Commission is not a party before this court.” 220 F.3d at 821. <15> The guidance was published on October 3, 2000. <16> The Declaratory Judgment Act, 28 U.S.C. § 2201(a) states: In a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. <17> See Borg-Warner, 245 F.3d at 838 (since the declaratory plaintiff is not aggrieved by EEOC’s Policy Statement, “we do not address any questions of comity between this circuit and the Ninth, or the propriety of a federal court in the District of Columbia enjoining the EEOC from adhering to a litigating (sic) position in the Ninth Circuit that the court of appeals for that circuit has sustained”). In this case, if this Court concludes that AT&T is aggrieved by the Commission’s legal opinion expressed in its Compliance Manual, it may have to address the question reserved in Borg-Warner, about the propriety of permitting a district court in the District of Columbia to rule on issues pending in a federal action in California. <18> With respect to AT&T’s argument that its ERISA claim should be reviewed in this declaratory action against the EEOC, AT&T Br. at 24 n.7, the district court’s rejection of that claim can be affirmed because there is no justiciable controversy between AT&T and the EEOC concerning ERISA. EEOC does not and cannot enforce ERISA and thus any harm AT&T alleges it has incurred is not the result of any EEOC conduct.