UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BELL ATLANTIC CASH BALANCE PLAN;
BELL ATLANTIC PENSION PLAN; BELL
ATLANTIC CORPORATION; BELL
ATLANTIC NETWORK SERVICES,
INCORPORATED; BELL ATLANTIC -
PENNSYLVANIA, INCORPORATED; BELL
ATLANTIC - NEW JERSEY,
                                                               No. 97-2382
INCORPORATED; BELL ATLANTIC -
DELAWARE, INCORPORATED,
Plaintiffs-Appellants,

v.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CA-97-330-A)

Argued: March 1, 1999

Decided: July 12, 1999

Before WILKINS and TRAXLER, Circuit Judges,
and FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: James Joseph Kelley, II, MORGAN, LEWIS & BOCK-
IUS, L.L.P., Washington, D.C., for Appellants. Robert John Gregory,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Appellee. ON BRIEF: C. Gregory Stewart, General
Counsel, Philip B. Sklover, Associate General Counsel, Lorraine C.
Davis, Assistant General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs Bell Atlantic Cash Balance Plan, Bell Atlantic Pension
Plan, Bell Atlantic, Bell Atlantic Network, Service, Inc., Bell
Atlantic-Pennsylvania, Inc., Bell Atlantic-New Jersey, Inc., and Bell
Atlantic-Delaware, Inc. [hereinafter collectively referred to as "Bell
Atlantic"] filed a declaratory judgment action against the United
States Equal Employment Opportunity Commission ("EEOC"). The
district court dismissed the action for lack of subject matter jurisdic-
tion. Bell Atlantic now appeals the dismissal order. We affirm.

I.

Carol Page and Mary Hale, on behalf of themselves and other
female employees of Bell Atlantic, filed separate discrimination
charges with the EEOC in 1994 and 1995, respectively, alleging that
Bell Atlantic's method of calculating retirement benefits for female
employees retiring after 1979 violates Title VII of the Civil Rights
Act of 1964, 42 U.S.C.A. § 2000e et seq. (West 1994 & Supp. 1998),
because it fails to provide women retiring after 1979 an appropriate
amount of retirement service credit for pregnancy-related absences

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that occurred prior to April 29, 1979, the effective date of the Preg-
nancy Discrimination Act ("PDA"), 42 U.S.C.A.§ 2000e(k) (West
1994).

Under Bell Atlantic's retirement system, employees receive bene-
fits based on their term of service. Bell Atlantic measures the length
of service through a "net credited service" system under which a term
of employment begins on the employee's date of matriculation and is
adjusted for periods of separation or absences from work which are
not subject to credit. Before the PDA's enactment in 1979, an
employee received full credit for absences due to a temporary disabil-
ity but only one month of credit for absences related to pregnancy.
After the PDA's enactment, Bell Atlantic adjusted its method of cal-
culating service credit by treating disability and pregnancy-related
leave in the same manner, but under the plan, female employees who
retire after 1979 still receive only one month of credit for pregnancy
leave taken prior to the PDA's effective date. Therefore, Hale
received only one month of service credit for a nine-month
pregnancy-related leave she took in 1971 and, upon her retirement in
1995, began receiving pension benefits reflecting the uncredited
pregnancy-related absence.1 Page, who has not yet retired, will
receive benefits reflecting only one month of service credit for the
entire seven-month pregnancy-related leave she took in 1974.2
_________________________________________________________________
1 Bell Telephone Company of Pennsylvania, Bell Atlantic's predeces-
sor, hired Hale on June 27, 1956. Hale resigned after three years but
rejoined Bell Atlantic in July 1968. Bell Atlantic required Hale to take
a pregnancy-related leave of absence on March 22, 1971, and after two
extensions, Hale returned to work on December 27, 1971. Pursuant to the
credit service system then in existence, Hale received only one month of
service credit for the entire period of leave. Hale retired on February 16,
1995, and received pension benefits influenced by her uncredited
pregnancy-related absence. Hale filed her discrimination charge with the
EEOC on March 30, 1999.
2 Bell Atlantic required Page to take a pregnancy-related leave of
absence on April 15, 1974. Page returned to work on October 21, 1974.
Pursuant to the then-existing policy, Bell Atlantic gave Page only one
month of service credit for the seven-month leave. Bell Atlantic still
employs Page, but her pension benefits will be affected by her uncredited
pregnancy-related absence. Hale filed her charge with the EEOC on
November 2, 1994.

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In connection with Hale's charge, the EEOC served on Bell Atlan-
tic an administrative subpoena, which requested that Bell Atlantic
provide, by September 13, 1996, "documents or any other source of
information which show all actively employed females in Pennsylva-
nia, New Jersey and Delaware who had a break in service due to preg-
nancy during the period January 1, 1971 to December 31, 1978." Bell
Atlantic petitioned the EEOC for a revocation or modification of the
subpoena. On December 9, 1996, the EEOC denied the request and
required Bell Atlantic to produce the documents within one year. Bell
Atlantic subsequently informed the EEOC of its intention not to com-
ply with the subpoena. The EEOC then voluntarily revoked the
administrative subpoena.

On February 13, 1997, the EEOC issued a determination in Hale's
case that Bell Atlantic "discriminated and continues to discriminate
against the Charging Party and other affected females on the basis of
sex [and] pregnancy." That same day, the EEOC issued a determina-
tion of reasonable cause as to Page's charge and found that the "fa-
cially neutral service system has a disparate impact on Charging Party
and a class of similarly situated females who took pregnancy leave
prior to 1979." Bell Atlantic instituted this declaratory judgment
action seeking rulings that the EEOC's determinations on Hale's and
Page's charges are invalid, the charges were untimely, and the
charges were without statutory jurisdiction. Bell Atlantic additionally
challenged the EEOC's issuance of the subpoena on the ground that
the EEOC lacks authority to investigate untimely charges.

The EEOC filed a motion to dismiss the case for lack of subject
matter jurisdiction, claiming that the case was not yet ripe for review
because the EEOC had not yet formally moved in court to enforce the
subpoena. Bell Atlantic, however, claims that the case raises a cogni-
zable federal question. The dispositive issue on appeal is whether this
case is justiciable. For the reasons set forth below, we hold it is not.

II.

A court of appeals conducts a de novo review of a district court's
decision to dismiss a complaint for lack of jurisdiction. See Mobil Oil
Co. v. Attorney Gen., 940 F.2d 73, 75 (4th Cir. 1991). A claim is justi-
ciable only when it is asserted at a time appropriate for judicial inter-

                    4
vention. See Renne v. Geary, 501 U.S. 312, 320 (1991). A party,
therefore, may allege a claim neither too early nor too late. See id. at
320-23 (applying the doctrines of ripeness and mootness). When a
party asserts a claim too early, the claim is not yet "ripe" for judicial
review, see Abbott Labs v. Gardner, 387 U.S. 136, 148-49 (1967),
overruled on other grounds by Califano v. Sanders , 430 U.S. 99
(1977), and must be dismissed.

A claim for which the parties seek a declaratory judgment is ripe
only when the parties are engaged in an "actual controversy." See
U.S. Const. art. III, § 2, cl. 1;3 28 U.S.C.A. § 2201(a) (West 1994).4
An actual controversy exists in a case challenging an administrative
action only when "an administrative decision has been formalized and
its effects felt in a concrete way by the challenging parties." Abbott
Labs, 387 U.S. at 148-49. Hence, 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;5 and (2) the withholding of judicial review will cause hard-
_________________________________________________________________
3 Article III of the Constitution provides in pertinent part:

          The judicial Power shall extend to all Cases, in Law and Equity,
          arising under this Constitution, the Laws of the United States,
          and Treaties made, or which shall be made, under their Authority
          ....

U.S. Const. art. III, § 2, cl. 1 (emphasis added).
4 The Declaratory Judgment Act provides in pertinent part:

          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.

28 U.S.C.A. § 2201(a) (West 1994) (emphasis added).
5 Under the Administrative Procedure Act, a federal court can review
only "final" agency actions. The pertinent part of the Administrative Pro-
cedure Act provides as follows:

                     5
ship, the measure of which is based on the immediacy of the threat
and the burden imposed on the party compelled to act under threat of
enforcement. See id. at 149-53; Charter Fed. Sav. Bank v. Office of
Thrift Supervision, 976 F.2d 203, 208-09 (4th Cir. 1992).

Having found that the EEOC's reasonable cause determination did
not constitute a final agency action, the district court concluded that
this case was not ripe because the issues were not fit for judicial
review. Bell Atlantic, however, argues that this case is ripe for judi-
cial review on the grounds that the issue of whether the EEOC may
investigate untimely discrimination charges is purely legal, that the
EEOC's action is final because no further agency action is required,
that Bell Atlantic has exhausted all of its administrative remedies, and
that Bell Atlantic will suffer great hardship if it must cooperate with
the investigation. The EEOC, on the other hand, contends that the
investigation alone, without use of judicial enforcement to compel
Bell Atlantic's cooperation, is not final and causes no legal injury to
Bell Atlantic as it will later have a full and fair opportunity to litigate
its arguments if the EEOC files suit.

As a general matter, the EEOC's "reasonable cause" determinations
are not final agency actions subject to judicial review. See Nealon v.
Stone, 958 F.2d 584, 588 n.2 (4th Cir. 1992); Georator Corp. v.
EEOC, 592 F.2d 765, 768-69 (4th Cir. 1979). Hence, Bell Atlantic
has no general right to judicial review of the EEOC's decision to
investigate the discrimination charges.
_________________________________________________________________

          Agency action made reviewable by statute and final agency
          action for which there is no other adequate remedy in a court are
          subject to judicial review. A preliminary, procedural, or interme-
          diate agency action or ruling not directly reviewable is subject to
          review on the review of the final agency action. Except as other-
          wise expressly required by statute, agency action otherwise final
          is final for the purposes of this section whether or not there has
          been presented or determined an application for a declaratory
          order, for any form of reconsideration, or, unless the agency oth-
          erwise requires by rule and provides that the action meanwhile
          is inoperative, for an appeal to superior agency authority.

5 U.S.C.A. § 704 (West 1996).

                     6
While, as a general matter, only "final" agency actions are subject
to judicial review, a "non-final" agency action is subject to judicial
review when the agency acts in clear violation of its statutory man-
date. See Leedom v. Kyne, 358 U.S. 184, 188 (1958); Gracey v. Inter-
national Bd. of Elec. Workers, Local 1340, 868 F.2d 671, 674 n.1 (4th
Cir. 1989). Bell Atlantic argues that the EEOC's decision to investi-
gate discrimination charges which Bell Atlantic perceives to be
untimely on their face is a clear derogation of the EEOC's statutory
mandate.

For an agency to act in clear derogation of its statutory mandate,
the challenging party must make a "strong and clear" demonstration
that the agency violated a "clear, specific and mandatory" statutory
provision either delegating the powers of or listing specific prohibi-
tions against the agency. Newport News Shipbuilding & Dry Dock v.
NLRB, 633 F.2d 1079, 1081 (4th Cir. 1980). While Bell Atlantic has
cited much precedent in opposition to the EEOC's position on the
merits of this matter, see Lockheed Corp. v. Spink, 517 U.S. 882, 896-
97 (1996); American Tobacco Co. v. Patterson, 456 U.S. 63, 75-76
(1982); International Bhd. of Teamsters v. United States, 431 U.S.
324, 352-53 (1977); United Air Lines, Inc. v. Evans, 431 U.S. 553,
560 (1977); General Elec. Co. v. Gilbert, 429 U.S. 125, 145-46
(1976); Condit v. United Air Lines, Inc., 631 F.2d 1136, 1138 (4th
Cir. 1980), the EEOC, in pursuing its investigation, has not clearly
violated a specific statutory mandate. Bell Atlantic, therefore, has not
clearly met the high standard necessary for the court to review this
non-final agency action. Hence, the EEOC's decision to investigate
the discrimination charges is not yet ripe for judicial review.

III.

For the foregoing reasons, the order of the district court is

AFFIRMED.

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