Dеfendant, the Providence St. Joseph Medical Center, refused to hire plaintiff Kenneth E. Sutton, Jr., after he failed to provide a social security number as required by federal law. Plaintiff brought this action alleging that Defendant thereby violated Title VII of the 1964 Civil Rights Act, as amended (Title VII), 42 U.S.C. § 2000e et seq.; the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq.; the free speech guarantee of the First Amendment; the Privacy Act, 5 U.S.C. § 552a; and the Paperwork Reduction Act, 44 U.S.C. § 3512. Plaintiff also brought various state claims. The district court dismissed the federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and, thereafter, refused to exercise supplemental jurisdiction over the state claims. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
“Because this is an appeal from the dismissal of an action pursuant to Fed.R.Civ.P. 12(b)(6), we accept as true the facts alleged in the complaint.”
Zimmerman v. Oregon Dep’t of Justice,
On June 25, 1997, Defendant offered Plaintiff a position as a Senior Network Analyst. Plaintiff accepted. Before he could begin working for Defendant, however, Plaintiff was required to fill out employment forms that required, among other information, his social security number. Plaintiff believes that a social security number is the “Mark of the Beast” prophesied in the Book of Revelations, Chapters 13 and 14. Plaintiff therefore told Defendant that his religion prevented him from providing such a number. Because Plaintiff would not provide his social security *830 number, Defendant refused to hire Plaintiff.
On February 24, 1998, Plaintiff brought this action, alleging that Defendant had violated Title VII, RFRA, the First Amendment, the Privacy Act, and various state constitutional provisions and laws. On June 1, 1998, Plaintiff amended his complaint to allege, in addition, that Defendant had violated the Paperwork Reduction Act. Thereafter, Defendant moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, dismissing Plaintiffs federal claims with prejudice. The district court then declined to exercise supplemental jurisdiction over Plaintiffs state claims and, accordingly, the court dismissed those claims without рrejudice. This timely appeal ensued.
STANDARD OF REVIEW
The district court granted Defendant’s Federal Rule of Civil Procedure 12(b)(6) motion. This court reviews such a decision de novo.
See Steckman v. Hart Brewing, Inc.,
TITLE VII
Title VII provides in part:
It shall be an unlawful employment practice for an employer—
(1)to fail or refuse to hire ... any individual ... because of such individual’s ... religion ... [.]
42 U.S.C. § 2000e-2(a)(l). “Religion” includes
all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
42 U.S.C. § 2000e(j).
This court has adopted a two-part test for analyzing religious discrimination claims under Title VII.
See Balint v. Carson City,
It is uncontested that (1) Plaintiff sincerely believes that his religion prevents him from providing a social security number, (2) Plaintiff informed Defendant of his belief, and (3) Defendant refused to hire Plaintiff because he did not provide Defendant with a social security number. Nevertheless, Defendant argues, and the district court held, that Plaintiff cannot establish a prima facie case, because Defendant is required by law to obtain Plaintiffs social security number. Sрecifically, the Immigration and Naturalization Service (INS), 8 C.F.R. § 274a.2(a) & (b)(1)(i), 8 C.F.R. § 274a.10(b)(2); Immigration Form 1-9; and the Internal Revenue Code (IRC), 26 U.S.C. § 6109(a)(3) & (d), require employers to provide the social security numbers of their employees.
Although they have disagreed on the rationale, courts agree that an employer is not liable under Title VII when accommodating an employee’s religious beliefs would require the employer to violate federal or state law. This court has held that the existence of such a law establishes “undue hardship” (rather than prevents an
*831
employee from establishing a prima facie case).
See Bhatia v. Chevron U.S.A., Inc.,
Under federal law, all employers are required to withhold certain income taxes and social security taxes and file a report with the Internal 'Revenue Service as to each individual employee. These reports require identification of the employee by social security number. Requiring Defendant to violate these laws in order to accommodate Plaintiff[’s religious beliefs] would result in undue hardship to Defendant.
Weber v. Leaseway Dedicated Logistics, Inc.,
No. 98-3172,
Pursuant to Bhatia, we hold that Defendant established that accommodation would cause “undue hardship” as a matter of law. We therefore affirm the district court’s dismissal of Plaintiffs Title VII claim.
RFRA
Plaintiff next alleges that Defendant violated RFRA. The district court dismissed Plaintiffs claim, holding that (1) the Supreme Court in
City of Boerne v. Flores,
A. Scope of the Decision in City of Boeme
In
Employment Division v. Smith,
In
City of Boerne,
a church brought a RFRA challenge to a local zoning board’s denial of a building permit.
The Court focused its analysis on Congress’ power to enact legislation under section 5 of the Fourteenth Amendment, because “Congress relied on its Fourteenth Amendment enforcement power in enacting the mоst far reaching and substantial of RFRA’s provisions, those which impose its requirements on the States.” Id. at 2162 (emphasis added). The Court held that section 5 of the Fourteenth Amendment gives Congress the power “to enforce” the “provisions of this article.” Id. at 2163 (citation and internal quotation *832 marks omitted). The section thus gives Congress the power to remedy violations of the Fourteenth Amendment; it does not, however, give Congress the power to declare the substance of that Amendment: “The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.” Id. at 2164.
Analyzing RFRA, the Court held that it was not a “remedial” statute, because it lacked any “congruence” or “proportionality” to its purported remedial purpose. See id. at 2164, 2170. Instead, Congress had impermissibly attempted “a substantive change in constitutional protections.” Id. at 2170.
As is apparent,
City of Boerne
involved a cоnstitutional challenge to RFRA as applied to local (and state) law, not federal law. What is more important, the Court focused its analysis on whether Congress had the power under section 5 of the Fourteenth Amendment to enact RFRA.
See id.
at 2162. Congress, however, does not enact legislation regulating the
federal
government pursuant to section 5 of the Fourteenth Amendment; Congress acts under that section only when regulating the conduct of the states.
See Christians v. Crystal Evangelical Free Church (In re Young),
Not surprisingly, then, most courts that have considered the issue have concluded that the Supreme Court invalidated RFRA only as applied to state and local lаw.
See Adams v. Commissioner,
Defendant, however, seizes on the opening and conclusion of the Court’s opinion in City of Boerne. In those parts of the opinion, the Court mentioned separation-of-powers principles:
Under our Constitution, the Federal Government is one of enumerated powers. The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.
Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its *833 precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoiced are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.
Defendant is correct that the Court in
City of Boerne
mentioned separation-of-powers principles, but is incorrect that those principles served as an independent basis for invalidating RFRA as applied to the local and state law at issue in the case. The Court mentioned those principles only upon concluding that Congress did not “aet[ ] within its sphere of power and responsibilities.”
City of Boerne,
Finally, Defendant cites some lower-court cases that, without any analysis, have conсluded that
City of Boerne
bars a federal RFRA claim.
See Branch Ministries, Inc. v. Richardson,
B. Constitutionality of RFRA
Defendant argues that, even if the Supreme Court did not wholly invalidate RFRA already in
City of Boerne,
RFRA nevertheless is unconstitutional as applied to federal law.
3
We assume, without de
*834
ciding, that RFRA is constitutional as applied to federal law.
See Carreras v. City of Anaheim,
C. Color of Law
1. Statutory Wording
RFRA provides that the
[government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section[.]
42 U.S.C. § 2000bb-1. RFRA, in turn, defines “government” to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” 42 U.S.C. § 2000bb-2(1) (emphasis added).
As an initial matter, we note that RFRA does not expressly include private employers within its reach. When Congress has intended to regulate private employers, in statutes such as Title VII and the Americans with Disabilities Act (ADA), it has done so explicitly.
See
42 U.S.C. § 2000e(b) (Title VII) (“The term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of suсh a person.”); 42 U.S.C. § 12111(2)(ADA) (“The term ‘covered entity means any employer, employment agency, labor organization, or joint-labor management committee.”). Congress chose not to include similar wording in RFRA. Ordinarily, this court must give effect to such a difference in wording.
See Government of Guam ex rel. Guam Econ. Dev. Auth. v. United States,
We also note another guide to the interpretation of statutes. When a statute contains a list of specific items and a general item, we usually deem the general item to be of the same category or class as the more specifically enumerated items.
See United States v. Lacy,
Nevertheless, we are not writing on a clean slate. Congress has used the key phrase — “acting under color of law” — • before in other statutes, including 42 U.S.C. § 1983. “[W]hen a legislature borrows an already judicially interpreted
*835
phrase from an old statute to use it in a new statute, it is presumed that the legislature intends to adopt not merely the old phrase but the judicial construction of that phrase.”
Long v. Director, Office of Workers’ Comp. Programs,
2. Analytical Framework
“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights fairly attributable to the [government]?”
Rendell-Baker v. Kohn,
First, the deprivation must result from a governmental policy.
See id.
In other words, the deprivation “must be caused by the exercise of some right or privilege created by the [government] or a rule of conduct imposed by the [government].”
Lugar v. Edmondson Oil Co., Inc.,
Second, “the party charged with the deprivation must be a person who may fairly be said to be a [governmental] actor.”
Id.
The Court adopted that test because “ § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrong.”
American Mfrs. Mut. Ins. Co. v. Sullivan,
When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action.
See Harvey v. Harvey,
“While these factors are helpful in determining the significance of state involvement, there is no specific formula for defining state action.”
Howerton v. Gabica,
3. Compulsion
Plaintiff argues that, because the federal government compels every employer to obtain employees’ social security numbers, every employer is liable under RFRA for violating the rights of employees (or applicants) who object on religious grounds to the social-security-number requirement. We are not persuaded.
a. Government Defendant
The compulsion analysis originated in cases in which the government itself, not a private entity, was the defendant. The Court first applied the analysis in
Peterson v. City of Greenville,
It cannot be denied that here the City of Greenville, an agency of the State, *837 has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby “to a significant extent” has “become involved” in it, and, in fact, has removed that decision from the sphere of private choice. It has thus effectively determined that a person owning, managing or controlling an eating place is left with no choice of his own but must segregate his white and Negro patrons. The Kress management, in deciding to exclude Negroes, did precisely what the city law required.
Id.
at 247-48,
Similarly, in
Lombard v. Louisiana,
The Court explained the compulsion analysis further in
Blum v. Yaretsky,
Under the foregoing precedent, governmental compulsion alone provides a sufficient nexus so that it is fair to attribute a private entity’s conduct to the government.
b. Private Defendant
Plaintiff did not bring this action against the federal government, however; rather, he sued a private employer. Plaintiff argues that governmental compulsion in the simple form of a generally applicable statutory requirement, without more, likewise is sufficient to hold a private employer responsible as a governmental actor.
We note initially that some circuits have suggested that they agree with Plaintiff.
See NBC v. Communications Workers of Am.,
Other circuits, however, have suggested that a plaintiff must show “something more” than state compulsion in order to hold a private defendant liable as a governmental actor.
See, e.g., Carey v. Continental Airlines, Inc.,
We agree with the Tenth Circuit’s analysis. We believe that Plaintiffs approach does not follow from
Peterson, Lombard,
or
Blum. As
the Court explained in
National Collegiate Athletic Ass’n v. Tarkanian,
In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action.
In Peterson, Lombard, and Blum, the Court applied this principle and held that the government cannot escape liability when it compels a result, even though the government does not actually engage in the unlawful act but, instead, pressures another to do so. In such circumstances, the state is undeniably the party who is “responsible” for that act.
By contrast, in a ease involving a private defendant, the mere fact that the government compelled a result does not suggest that the government’s action is “fairly attributable” to the private defendant. Indeed, without some other nexus between the private entity and the government, we would expect that the private defendant is not responsible for the government’s compulsion:
The logical conclusion of Peterson is that only the state actor, and not the private party, should be held liable for the constitutional violation that resulted from the state compulsion. When the state compels a private party to discriminate against members of a racial minority, it is the state action, not the private conduct, which is unconstitutional....
... [A] private party in such a case is “left with no choice of his own” and consequently should not be deemed liable.
Barbara Rook Snyder,
Private Motivation, State Action, and the Allocation of Responsibility for Fourteenth Amendment Violations,
75 Cornell L.Rev. 1053, 1067, 1069 (1990) (footnote omitted);
see also King v. Massarweh,
To accept Plaintiffs argument would be to convert every employer — whether it has one employee or 1,000 employees — into a governmental actor every time it complies with a presumptively valid, generally applicable law, such as аn environmental standard or a tax-withholding scheme. Private employers would then be forced to defend those laws and pay any consequent damages, even though they bear no real
*839
responsibility for the violation of rights arising from the enactment of the laws. “Statutes and laws regulate many forms of purely private activity, such as contractual relations and gifts, and subjecting all behavior that conforms to state law to the Fourteenth Amendment would emasculate the [government] action concept.”
Adams v. Southern Cal. First Nat’l Bank,
As noted above, the wording of RFRA does not suggest that Congress intended to subject employers to liability in the circumstances of this case. Further, we do not believe that Supreme Court prеcedent holds that governmental compulsion in the form of a general statute, without more, is sufficient to transform every private entity that follows the statute into a governmental actor.
For his contrary argument, Plaintiff relies on two Supreme Court eases in which the Court applied the compulsion factor to private defendants.
See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.,
Instead, we turn to
Blum
itself. There, the Court stated that “[t]his case is
obviously different from those cases in which the defendant is a private party
and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it ‘state’ action.”
Blum,
Indeed, in each of the Supreme Court’s private-defendant cases, there was some additional nexus that made it fair to deem the private entity a governmental actor in the circumstances. In
Lugar,
for example, the plaintiff sued private defendants who had used a Virginia prejudgment attachment procedure against him, alleging that the statutorily authorized procedure deprived him of property without due process of law. Pursuant to the challenged procedures, the private defendants had presented to a state court an ex parte petition alleging their belief that the plaintiff was disposing of his property in order to defeat the claims of potential creditors. “Acting upon that petition, a Clerk of the state court issued a writ of attachment, which was then executed by the County Sheriff.”
Lugar,
*840
In
Moose Lodge No. 107 v. Irvis,
Similarly, in
Adickes v. S.H. Kress & Co.,
By allowing the plaintiff to pursue this claim, the Court merely applied the well-accepted principle that a private party’s joint participation in a conspiracy with the state provides a sufficient nexus to hold the private party responsible as a governmental actor.
See Lugar,
The existence of a conspiracy between the private entity and state officials to pursue a joint and unconstitutional end distinguishes Adickes from this case; recall, here, that Defendant offered Plaintiff a position and would have hired him but for the government’s social-security-number requirement. There was no joint effort to deprive Plaintiff of his constitutional rights.
The plaintiff in
Adickes
further alleged that the restaurant had refused her service pursuant to a state custom or policy.
See
As noted, there was substantial evidence in that case that the restaurant had conspired with state officials to violate the plaintiffs constitutional rights. Moreover, as Justice Powell later observed:
The conduct in Adickes occurred in 1964, 10 years after Brown v. Board of Education,347 U.S. 483 ,74 S.Ct. 686 ,98 L.Ed. 873 (1954), and after the decade of publicized litigation that followed in its wake. In view of the intense national focus on issues of racial discrimination, it is virtually inconceivable that a private citizen then could have acted in the innocent belief that the state law and customs involved in Adickes still were presumptively valid.... In such a context, the private party could be characterized as hiding behind the authority of law and as engaging in “joint participation” with the State in the dеprivation of constitutional rights.
Lugar,
In summary, Supreme Court precedent does not suggest that governmental compulsion in the form of a generally applicable law, without more, is sufficient to deem a private entity a governmental actor. Instead, the plaintiff must establish some other nexus sufficient to make it fair to attribute liability to the private entity. Typically, the nexus has consisted of participation by the state in an action ostensibly taken by the private entity, through conspiratorial agreement (Adickes), official cooperation with the private entity to achieve the private entity’s goal (Lugar), or enforcement and ratification of the private entity’s chosen action (Moose Lodge).
Like the Supreme Court, this court has listed the compulsion factor in cases in
*842
volving a private defendant.
See Duffield v. Robertson Stephens & Co.,
Plaintiff argues that this court held in
Mathis v. Pacific Gas & Elec. Co.,
In Mathis, a nuclear power plant conducted a covert drug operation, during which it suspected that one of its employees, Mathis, was using drugs. See id. at 1432-33. Thereafter, the company denied Mathis access to its facilities, allegedly without due process of law. See id. at 1433. Mathis asserted that the denial of access was “directed or encouraged” by the federal Nuclear Regulatory Commission (NRC), which had an informal policy that drug users were to be denied access to nuclear power plants. See id. at 1433-34. This court held that, if Mathis could prove the existencе of such an informal policy, he could pursue an action against the private defendant, which was a licensee of the NRC. See id. at 1434.
In
Mathis,
the plaintiff alleged governmental compulsion. However, the plaintiff also alleged that the nuclear power plant and the NRC were “willful participants] in joint activity.”
Lugar, 457
U.S. at 941,
Mathis
is consistent with other Ninth Circuit precedent, which has required some participation by the state in the actions of the private defendant for a finding of governmental action. For example, in
Howerton,
private landlords sought to evict a tenant.
See
In addition,
Mathis,
unlike this action, involved a public utility as a defendant. Of course, a public utility is not always or necessarily a state actor.
See Jackson v.
*843
Metropolitan Edison Co.,
Plaintiff cites one additional case,
Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co.,
There are two key facts that distinguish this action from Carlin. First, the defendant in Carlin (like the defendant in Mathis) was a public utility. See Morgan W. Tovey, Dial-A-Porn and the First Amendment: The State Action Loophole, 40 Fed. Communications L.J. 267, 289 (1988) (analyzing Carlin and concluding that, “[b]ecause important First Amendment interests are at issue, the fact that the telephone company is a heavily regulated public utility assuming quasi-monopolistic control over the message medium should be accorded significant weight and tip the balance toward state action”).
More importantly, however, all the other “compulsion” eases cited
above
— Moose
Lodge, Adickes,
and
Mathis
— like the present case, involved generally applicable laws (or customs). In each case, the question was whether there was a sufficient nexus between the private entity and the government’s generally applicable requirement. In
Carlin,
on the other hand, the government directed a specific entity to take a specific (allegedly unconstitutional) action against a specific person. Action of a private defendant performed pursuant to such “particularized state participation,”
Carlin,
In summary, Ninth Circuit precedent does not suggest that governmental compulsion, without more, is sufficient to deem a truly private entity a governmental actor in the circumstances of this case. Instead, the plaintiff must establish some other nexus sufficient, to make it fair to attribute liability to the private entity as a governmental actor. Typically, the nexus consists of some willful participation in a joint activity by the private entity and the government. Plaintiff here fails to allege any such nexus.
D. Conclusion
We affirm the district court’s dismissal of Plaintiffs RFRA claim.
*844 FIRST AMENDMENT
Plaintiff next brought a
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
PRIVACY ACT
The district court dismissed Plaintiffs Privacy Act claim, in part because Defendant is not a federal agency. Section 7(a)(1) of the Privacy Act provides that “[i]t shall be unlawful for any Federal ... agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number.” 5 U.S.C.A. § 552a (note). “The private right of civil action created by the Act is specifically limited to actions against agencies of the United States Government. The civil remedy provisions of the statute do not apply against private individuals ... [or] private entities.”
Unt v. Aerospace Corp.,
PAPERWORK REDUCTION ACT
Finally, Plaintiff brought a claim under the Paperwork Reduction Act. The district court dismissed that claim, holding that the Paperwork Reduction Act does not create a private right of action. The Paperwork Reduction Act provides:
(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this chapter if [listing certain conditions].
(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.
44 U.S.C. § 3512 (emphasis added). As is apparent from subsection (b), the Act authorizes its protections to be used as a defense. The Act does not authorize a private right of action. That being so, the district court properly dismissed Plaintiffs Paperwork Reduction Act claim.
AFFIRMED.
Notes
. Pursuant to Tenth Circuit Rule 36.3(B), an order and judgment (unpublished disposition) may be cited if “(1) it has persuasive value with respect to a material issue that has not been addressed in a published opinion” and "(2) it would assist the court in its disposition.”
. Several commentators agree with our analysis. See, e.g., Edward J.W. Blatnik, No RFRAF Allowed: The Status of the Religious Freedom Restoration Act's Federal Application in the Wake of City of Boerne v. Flores, 98 Colum. L.Rev. 1410, 1423-24 (1998); Daniel A. Crane, Beyond RFRA: Free Exercise of Religion Comes of Age in the State Courts, 10 St. Thomas L.Rev. 235, 241 (1998); Richard Collin Mangrum, Tithing, Bankruptcy and the Conflict Between Religious Freedom and Creditor’s Interests, 32 Creighton L.Rev. 815, 828-29 (1999).
. Defendant has not argued (and cannot successfully argue) that RFRA is not severable.
See INS v. Chadha,
. The Court in
Lugar
stated that "[w]helher these different tests are actually different in operation or simply different ways of characterizing the
necessarily fact-bound inquiry
that confronts the Court in such a situation need not be resolved here.”
. The court labeled this a "proximate cause” inquiry rather than an "under color of law” inquiry.
See King,
. We also note that some courts, including our own, have held that racial discrimination cases, such as
Adickes,
require less governmental action than other types of claims.
See Adams
v.
Southern California First Nat. Bank,
. On appeal after remand, this court held that the plaintiff had failed to prove that the NRC, in fact, had an informal policy as alleged.
See Mathis v. Pacific Gas & Elec. Co.,