August 21, 1995 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1066
ALBERT RIVA, ET AL.,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellees.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on August 4, 1995, is
corrected as follows:
1. On page 2, line 15 delete "vacate" and replace with
"reverse".
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1066
ALBERT RIVA, ET AL.,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Boudin, and Lynch, Circuit Judges.
Raymond C. Fay, with whom Bell, Boyd & Lloyd, Harold L.
Lichten, Bryan Decker and Angoff, Goldman, Manning, Pyle, Wanger
& Hiatt, P.C., were on brief, for appellants.
Cathy Ventrell-Monsees and Laurie A. McCann on brief for
American Association of Retired Persons, amicus curiae.
James R. Neely, Jr., Deputy General Counsel, Gwendolyn Young
Reams, Associate General Counsel, Vincent J. Blackwood, Assistant
General Counsel, and Paul D. Ramshaw, Attorney, on brief for U.S.
Equal Employment Opportunity Commission, amicus curiae.
Thomas O. Bean, Assistant Attorney General, with whom Scott
Harshbarger, Attorney General, was on brief, for appellees.
August 4, 1995
SELYA, Circuit Judge. This case, in which three
SELYA, Circuit Judge.
plaintiffs seek a declaration that the Massachusetts accidental
disability retirement scheme violates the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. 621-634 (1988), as amended by
the Older Workers Benefit Protection Act (OWBPA), Pub. L. No.
101-433, 104 Stat. 978, presents two questions for review on
appeal: a question of first impression as to the operation of
the OWBPA's nonretroactivity provision; and a situation-specific
question concerning justiciability. The district court resolved
both of these questions in the defendants' favor. It entered
summary judgment against a pair of plaintiffs, determining that
the OWBPA did not apply to their claims, and simultaneously
dismissed the third plaintiff's claim as unripe. See Riva v.
Commonwealth of Mass., 871 F. Supp. 1511, 1517-20 (D. Mass.
1994). We affirm the summary judgment ruling, but reverse the
dismissal of the remaining plaintiff's claim and remand for
further proceedings.
I.
I.
The OWBPA
The OWBPA
Congress enacted the ADEA in 1967 to prohibit age-based
discrimination in the "terms, conditions, or privileges" of
employment. 29 U.S.C. 623(a). The law originally contained an
exclusion for employee benefit plans, providing that an employer
could continue to "observe the terms of . . . any bona fide
employee benefit plan such as a retirement, pension, or insurance
plan, which is not a subterfuge to evade [ADEA's] purposes." Id.
3
623(f)(2). The Department of Labor, and, later, the Equal
Employment Opportunity Commission (EEOC), interpreted this
provision to require that age-based distinctions in benefit plans
be cost-justified in order to qualify for the shelter of the
exclusion. See 29 C.F.R. 1625.10 (1988). When confronted with
the issue, the Supreme Court expanded the safe haven. It held
that, under the ADEA, an employee challenging a benefit plan must
prove that "the discriminatory plan provision actually was
intended to serve the purpose of discriminating in some non-
fringe-benefit aspect of the employment relation." Public
Employees Ret. Sys. v. Betts, 492 U.S. 158, 181 (1989).
On October 16, 1990, Congress enacted the OWBPA and
thus reconfigured the exclusion. The amendments placed employee
benefits squarely within the protective custody of the ADEA,
overturned Betts, and reinstated the earlier view that age-based
distinctions in employee benefits must be cost-justified.
Recognizing the potential implications of these changes for
public employers, Congress stipulated that the OWBPA would not
take effect as to states and their political subdivisions until
two years after its passage. See OWBPA 105(c). Moreover, in
grappling with the question of retroactivity, Congress decreed
that the OWBPA would not apply at all to "a series of benefit
payments made to an individual or the individual's representative
that began prior to the effective date and that continue after
the effective date pursuant to an arrangement that was in effect
on the effective date . . . . " Id. 105(e).
4
II.
II.
The Commonwealth's Disability Retirement Scheme
The Commonwealth's Disability Retirement Scheme
In Massachusetts, public employees who are injured on
the job and cannot continue working may retire and receive
accidental disability benefits. See Mass. Gen. L. ch. 32, 7
(1989). Ordinarily, the amount of an employee's benefits will
equal roughly 72% of her previous wages. See id. 7(2)(a)(ii).
But there is a rub: section 7(2)(b ), added in 1987, affords
significantly different treatment for employees who have less
than ten years of creditable service and who are at least 55
years old at the time of accidental disability retirement. Under
section 7(2)(b ), an employee who fits this description receives
her regular disability retirement benefits until she turns 65,
but her benefits are then refigured to equal the amount she would
have received if she retired on superannuation, i.e., if she
retired based on age and years of service.1
1As amended, the statute provides in relevant part:
The normal yearly amount of the allowance of
any member retired under the provisions of
this section . . . who at the time of such
retirement had attained the age of fifty-five
and who at the time of such retirement had
accrued fewer than ten years of creditable
service shall be adjusted on the last day of
the month in which he attains the age of
sixty-five to that to which he would be
entitled . . . if he were to be retired for
superannuation upon the attainment of age
sixty-five . . . .
Mass. Gen. L. ch. 32, 7(2)(b ) (1989).
5
III.
III.
The Plaintiffs
The Plaintiffs
Albert Riva commenced his employment with the City of
Boston in August of 1982. He retired in April of 1992 after
experiencing a permanently disabling injury. At the time of his
retirement, Riva had not yet accrued ten years of creditable
service. On August 19, 1992, the Boston Retirement Board (BRB)
transmitted a letter advising him that his benefits were subject
to reduction under section 7(2)(b ). Approximately one year
later, after Riva had celebrated his sixty-fifth birthday, the
Board implemented the law and reduced Riva's benefits from
approximately $2,130 per month to approximately $775 per month.
Nancy Pentland was employed by the Town of Andover from
February of 1981 until she retired due to a job-related
disability on November 30, 1988. At the time of her retirement,
she was 61 years old but had not yet accrued ten years of
creditable service. As of October 31, 1992, the Andover
Retirement Board (ARB) recalculated her benefits according to the
superannuation guidelines, resulting in a substantial downsizing
of her monthly stipend.
Robert Keenan toiled as a Boston school custodian from
December of 1989 until March of 1991. At the age of 56, having
less than ten years of creditable service, he retired on
accidental disability and began receiving a monthly allowance
effective February 20, 1993. On June 22, 1994, the BRB notified
him of the prospective applicability of section 7(2)(b ) to his
6
case. Keenan was born on August 10, 1937, so his monthly benefit
is not scheduled to be recalculated until the year 2002.
Nonetheless, subscribing to the adage that an ounce of prevention
is sometimes worth a pound of cure, he (like Riva and Pentland
before him) filed a charge of discrimination with the EEOC.
It is significant that, when the OWBPA took effect,
both Riva and Pentland were already receiving disability
retirement benefits, but Keenan whose retirement postdated the
statute's effective date was not.
IV.
IV.
The Litigation
The Litigation
Riva and Pentland commenced the instant action against,
inter alia, the Commonwealth of Massachusetts, the Public
Employee Retirement Administration, the BRB, and the ARB
(collectively, "the Commonwealth"). Their complaint sought
declaratory, injunctive, and compensatory relief, alleging that
the Massachusetts accidental disability retirement scheme
violated the OWBPA because it arbitrarily reduced retirement
benefits based on the recipient's age.2 Keenan subsequently
joined the suit as an additional plaintiff.
The parties cross-moved for summary judgment on
stipulated facts. The district court granted brevis disposition
in the Commonwealth's favor vis-a-vis Riva and Pentland, and
2The complaint also included two claims for relief under
state anti-discrimination laws. Both of these claims were
dismissed on the plaintiffs' motion, and have no bearing on this
appeal.
7
dismissed Keenan's claim as unripe. See Riva, 871 F. Supp. at
1517-20. The court ruled that even though Riva's and Pentland's
benefits were recalculated after the effective date of the OWBPA
(when they reached age 65), the smaller payments were of the same
class as the original payments, were part of a single series of
benefit payments that straddled the effective date, and were paid
pursuant to a preexisting arrangement. See id. at 1519. Hence,
section 105(e) applied, and the Massachusetts disability
retirement scheme, as it affected those plaintiffs, eluded the
OWBPA's grasp. See id.
Keenan's case easily vaults this hurdle. Unlike Riva
and Pentland, he began receiving benefit payments only after the
OWBPA had become fully effective. Thus, his claim does not fit
within the confines of section 105(e). In the trial court's
view, however, a different obstacle loomed. Because Keenan's
benefits were not scheduled to be pared for several years,
Keenan's alleged injury was both remote and contingent, and,
accordingly, his claim was unripe. See id. at 1517-18. All
three plaintiffs now appeal.
V.
V.
Standard of Review
Standard of Review
A district court's resolution of a question of
statutory interpretation engenders de novo review in the court of
appeals. See Pritzker v. Yari, 42 F.3d 53, 65 (1st Cir. 1994),
cert. denied, 115 S. Ct. 1959 (1995); United States v. Gifford,
17 F.3d 462, 472 (1st Cir. 1994). This standard of review
8
applies to the district court's application of section 105(e) to
the facts stipulated in the instant case. By the same token, a
trial court's determination on a paper record that the case
before it lacks ripeness presents a question of law subject to
plenary review. See Ernst & Young v. Depositors Economic
Protection Corp., 45 F.3d 530, 534 (1st Cir. 1995); Shea v. Rev-
Lyn Contracting Co., 868 F.2d 515, 517 (1st Cir. 1989).
VI.
VI.
The Exemption
The Exemption
Both Riva and Pentland began receiving disability
retirement benefits prior to the effective date of the OWBPA, and
their benefits were reduced pursuant to section 7(2)(b ) after
the effective date. For the reasons that follow, we think that
the payment stream is exempt from scrutiny under the federal
statute.3
We start with a prosaic precept: "In a statutory
construction case, the beginning point must be the language of
the statute, and when a statute speaks with clarity to an issue
judicial inquiry into the statute's meaning, in all but the most
extraordinary circumstance, is finished." Estate of Cowart v.
Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992). In other
words, the court need not consult legislative history and other
aids to statutory construction when the words of the statute
3Since Riva and Pentland are similarly situated in respect
to the question before us, we opt for simplicity and discuss only
Pentland's claim. Our reasoning and result, however, apply
equally to Riva.
9
neither create an ambiguity nor lead to an unreasonable
interpretation. See United States v. Charles George Trucking
Co., 823 F.2d 685, 688 (1st Cir. 1987). In searching a statute's
text for a pellucid expression of congressional intent, we
attribute to words that are not defined in the statute itself
their ordinary usage, see Baez v. INS, 41 F.3d 19, 24 (1st Cir.
1994), cert. denied, 63 U.S.L.W. 3900 (U.S. June 26, 1995) (No.
94-1462), and make a commonsense concession that meaning can only
be ascribed to statutory language if that language is taken in
context, see King v. St. Vincent's Hosp., 502 U.S. 215, 221
(1991). Applying these tenets, we find that section 105(e)
unambiguously excludes Pentland's benefits from the application
of the OWBPA.
As previously noted, Congress exempted from the OWBPA's
grasp any "series of benefit payments . . . that began prior to
[OWBPA's] effective date and that continue after the effective
date pursuant to an arrangement that was in effect on the
effective date . . . . " OWBPA 105(e). A "series" is
routinely defined as "a group of usu[ally] three or more things
or events standing or succeeding in order and having a like
relationship to each other." Webster's Third New International
Dictionary 2073 (1986); accord Webster's Ninth New Collegiate
Dictionary 1074 (1989) (defining series to include "a number of
things or events of the same class coming one after another in
spatial or temporal succession"); The Random House Dictionary of
the English Language 1748 (2d ed. 1987) (defining series to
10
include "a group or a number of related or similar things,
events, etc., arranged or occurring in temporal, spatial, or
other order or succession").4 Consistent with these
definitions, all the benefit payments to Pentland form a single
"series" as that word is used in section 105(e).
The like relationship of the payments is readily
apparent. The disbursements, both before and after the
recalculation, form a continuing stream of monthly payments, made
on account of the same disability, and determined at the time of
inception under the same statutory scheme. What is more, the ARB
began to pay these serial benefits before the OWBPA's effective
date, continued to pay them afterwards, and did so pursuant to an
arrangement the payment scheme established in the Massachusetts
statute that was in full flower when the OWBPA took effect.
To be sure, the size of Pentland's monthly check
diminished when she turned 65, but her argument that the reduced
benefits comprise a new "series" because her payments were then
recalculated on the basis of the superannuation tables is belied
by the text of the Massachusetts statute. It directs that an
affected individual's benefits shall be adjusted "to that to
which [s]he would be entitled under the [statutory scheme] if
[s]he were to be retired for superannuation." Mass. Gen. L. ch.
32, 7(2)(b ). This language makes it transpicuously clear that
Pentland has continuously received the same kind of benefits
4Courts are free to use standard dictionary definitions to
assist in determining the ordinary meaning of statutory language.
See, e.g., FDIC v. Meyer, 114 S. Ct. 996, 1001 (1994).
11
accidental disability retirement benefits both before and after
the OWBPA's effective date. Only the amount of the monthly
stipend, not the nature of the payments, changed when she
attained age 65.
At the expense of carting coals to Newcastle, we add
that appellants' interpretation of a "series" as comprising, for
all intents and purposes, a "sequence of identical items," is
profoundly flawed. To read section 105(e) in this way would be
totally at odds with ordinary usage and, moreover, would lead to
absurd results. Carried to its logical extreme, such a reading
would gut the exemption by rendering it inapplicable to any
stream of benefits that changed after the OWBPA's effective date
by reference to an external source. Thus, even the most
commonplace adjustments (such as cost-of-living increases) would
serve to defeat the exemption. We cannot conceive of any reason
why Congress which patently believed that employers should have
a substantial degree of protection against the application of a
new rule to payment protocols already in use to sustain existing
payment schemes would have desired to take so quixotic a
position.
Section 105(e)'s reference to a preexisting
"arrangement" is equally unhelpful to Pentland's quest. Both
section 7(2)(b ) and the relevant superannuation guidelines were
in existence at the time that the ARB started paying Pentland's
retirement benefits, and the parties have not directed our
attention to any subsequent changes in either provision which
12
might support a finding that the Commonwealth put a fresh
"arrangement" into effect. In Pentland's case, therefore, the
entire stream of benefit payments has been (and will be) made
pursuant to a single arrangement that was crafted in whole prior
to the OWBPA's effective date. Consequently, section 105(e)
applies unreservedly.
Although the plain language of section 105(e) carries
the day and obviates any need for a detailed examination of
extrinsic sources, we note in passing that the legislative
history of the OWBPA strongly suggests that Congress intended
precisely the result that follows from a straightforward
rendering of section 105(e)'s plain language. The original draft
of the bill, submitted to the Senate on September 17, 1990,
contemplated that the OWBPA provisions on which Pentland relies
would apply retrospectively. See 136 Cong. Rec. S13, 237 (daily
ed. Sept. 17, 1990). This approach provoked stout opposition,
and section 105(e) emerged as a compromise. See 136 Cong. Rec.
S13,603 (daily ed. Sept. 24, 1990). In responding to a question
about the truncated version of the nonretroactivity clause,
Senator Pryor, chairman of the Special Committee on Aging and a
prime sponsor of the legislation, indicated that the drafters
intended, through the compromise, to ensure that the OWBPA would
reach benefits that were discriminatorily structured after the
applicable effective date, leaving other benefits unaffected.
See id. at S13,609. Senator Metzenbaum, whose original bill, as
we have said, featured broad retroactivity, concurred in this
13
interpretation of the compromise language.5 So did another key
supporter, Senator Hatch.6
In sum, it appears virtually certain that Congress did
not intend the OWBPA to apply to benefit payments, like
Pentland's, which were structured and commenced prior to the
effective date of the neoteric legislation. The comments relied
on by the appellants in urging an opposite view mainly
statements by legislators who expressed their desire to avoid
"disruptions" in ongoing benefits, such as the remarks of Senator
Hatch, quoted supra note 6 are more plausibly read as wishing
to avoid displacements that would be caused by wide-ranging
5Senator Metzenbaum stated:
We also clarify the effective date as it
relates to a stream of benefit payments made
to an individual that began prior to the
effective date. We exempt such a benefit
stream from the requirements of the bill,
provided that the employer has not initiated
the stream pursuant to a modification made
after the date of enactment, with the intent
to evade the purposes of the bill.
136 Cong. Rec. S13,598 (daily ed. Sept. 24, 1990).
6Senator Hatch voiced his concern that, under the original
version, "all the new requirements would be applied to ongoing
benefit payments that began before the bill's effective date."
136 Cong. Rec. S13,600 (daily ed. Sept. 24, 1990). Because he
feared this result, Senator Hatch concluded that "it was critical
to amend the bill to remove the possibility that current
recipients of [disability, severance and retirement] benefits
could suffer disruptions in their payments." Id. He assured his
fellow solons that "[t]he compromise" embodied in the final
version of the bill ensured "that ongoing benefit payments to
individuals that began prior to the effective date of the bill
will not be affected by this legislation." Id.; see also id. at
S13,607 (similar; statement of Sen. Grassley).
14
retroactive application of the OWBPA rather than as guaranteeing
level benefit rates, regardless of the circumstances, or as
disfavoring changes in benefits compelled by the unamended
operation of preexisting retirement schemes.
We have exhausted this issue. To conclude, we hold
that a stream of benefits does not become a new "series" in the
contemplation of OWBPA 105(e) simply because the monthly
benefit amount is adjusted by reference to an external source
pursuant to a directive contained in a preexisting arrangement.
Riva and Pentland are, therefore, fishing in an empty pond.
VII.
VII.
The Ripeness Paradigm
The Ripeness Paradigm
We turn now to the more vexing of the two issues
presented in this appeal. Since section 7(2)(b ) will not
directly affect Keenan's stipend until the year 2002, the
district court determined that his claim lacked the ripeness
necessary to confer justiciability. See Riva, 871 F. Supp. at
1517-18. Before evaluating this determination, we scout the
legal landscape.
When a litigant seeks relief that is primarily
prospective in character, questions of ripeness are analyzed
under a familiar framework that considers the fitness of the
issue for immediate review and the hardship to the litigant
should review be postponed. See Abbott Labs v. Gardner, 387 U.S.
136, 148-49 (1967); Ernst & Young, 45 F.3d at 535. The fitness
branch of the paradigm "typically involves subsidiary queries
15
concerning finality, definiteness, and the extent to which
resolution of the challenge depends on facts that may not yet be
sufficiently developed." Ernst & Young, 45 F.3d at 535. One
critical component is whether "the claim involves uncertain and
contingent events that may not occur as anticipated or may not
occur at all." Massachusetts Ass'n of Afro-Am. Police, Inc. v.
Boston Police Dep't, 973 F.2d 18, 20 (1st Cir. 1992) (per
curiam). A second important factor in the fitness calculus is
the extent to which the claim is bound up in the facts. Courts
are more likely to find a claim ripe if it is of an intrinsically
legal nature, see, e.g., Pacific Gas & Elec. Co. v. State Energy
Resources Conserv. & Dev. Comm'n, 461 U.S. 190, 201 (1983), and
less likely to do so if the absence of a concrete factual
situation seriously inhibits the weighing of competing interests,
see, e.g., California Bankers Ass'n v. Shultz, 416 U.S. 21, 56
(1974).
A third salient factor that enters into the assessment
of fitness involves the presence or absence of adverseness. See
State of R.I. v. Narragansett Indian Tribe, 19 F.3d 685, 692-93
(1st Cir.), cert. denied, 115 S. Ct. 298 (1994). In the context
of prospective relief, this factor focuses on whether "the facts
alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment." Maryland Casualty Co. v.
Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). Whether a
16
particular case passes the test of adverseness may be influenced
by a variety of considerations, such as whether all affected
parties are before the court, see Ernst & Young, 45 F.3d at 538-
39, and whether the controversy as framed permits "specific
relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon
a hypothetical state of facts," Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 241 (1937).
The hardship prong of the Abbott Labs paradigm turns on
whether "the challenged action creates a `direct and immediate'
dilemma for the parties[.]" W.R. Grace & Co. v. EPA, 959 F.2d
360, 364 (1st Cir. 1992) (citation omitted). Utility is the flip
side of the same coin, and an inquiring court, in assaying the
hardship to the parties, may find it revealing to ask whether
"granting relief would serve a useful purpose, or, put another
way, whether the sought-after declaration would be of practical
assistance in setting the underlying controversy to rest."
Narragansett Indian Tribe, 19 F.3d at 693.
Although it is a familiar bromide that courts should
not labor to protect a party against harm that is merely remote
or contingent, see, e.g., Ernst & Young, 45 F.3d at 536;
Massachusetts Ass'n of Afro-Am. Police, 973 F.2d at 20; Lincoln
House v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990), there is some
play in the joints. For example, even when the direct
application of a statute is open to a charge of remoteness by
reason of a lengthy, built-in time delay before the statute takes
17
effect, ripeness may be found as long as the statute's operation
is inevitable (or nearly so). See, e.g., Regional Rail Reorg.
Act Cases, 419 U.S. 102, 142-43 (1974). And, even when the
direct application of such a statute is subject to some degree of
contingency, the statute may impose sufficiently serious
collateral injuries that an inquiring court will deem the
hardship component satisfied. See Erwin Chemerinsky, Federal
Jurisdiction 2.4.2, at 121-22 (2d ed. 1994). In general,
collateral effects can rise to this level when a statute
indirectly permits private action that causes present harm, or
when a party must decide currently whether to expend substantial
resources that would be largely or entirely wasted if the issue
were later resolved in an unfavorable way. See, e.g., Pacific
Gas, 461 U.S. at 201; Duke Power Co. v. Carolina Envtl. Study
Group, Inc., 438 U.S. 59, 81-82 (1978). We caution, however,
that in such murky waters generalizations are dangerous, and the
weighing of collateral effects is for the most part a judgment
call, to be made case by case.
VIII.
VIII.
Applying the Paradigm
Applying the Paradigm
Viewed against this backdrop, we think that Keenan has
made a satisfactory showing under both prongs of the Abbott Labs
paradigm. Given the relative certainty of the statute's
application, the purity of the legal issue presented, the
presence of all necessary parties before the court, the dilemma
that Keenan currently faces, and the hardship to him should
18
immediate review be denied, we conclude that he has advanced a
ripe claim.
The paramount harm to Keenan the eventual reduction
in his benefits pursuant to section 7(2)(b ) is distant in
time, but its incidence seems highly probable. The Commonwealth
has pointed to three contingencies that might shield Keenan from
ultimate harm of this kind: (1) he might die before reaching age
65, (2) he might no longer be disabled when he reaches that age,
or (3) the challenged statute might be amended prior thereto.
There is no evidence in the record to suggest that any of these
three contingencies are likely to eventuate. The life expectancy
of a man in his mid-50s is roughly 20 years. See, e.g., United
States Bureau of the Census, Statistical Abstract of the United
States: 1994 Table 116, at 88 (114th ed.); Keenan's disability,
according to state law, is permanent and total, see, e.g., Mass.
Gen. L. ch. 32, 7(1) (1989) (providing for accidental
disability retirement only when the affected employee is "totally
and permanently incapacitated for further duty"); and, though the
Commonwealth has drawn our attention to a bill pending in the
Massachusetts legislature that would repeal section 7(2)(b ), see
1995 Mass. H.B. 4007, 179th Gen. Court, 1st Sess., previous bills
of a similar tenor have failed of enactment.
In all events, a litigant seeking shelter behind a
ripeness defense must demonstrate more than a theoretical
possibility that harm may be averted. The demise of a party or
the repeal of a statute will always be possible in any case of
19
delayed enforcement, yet it is well settled that a time delay,
without more, will not render a claim of statutory invalidity
unripe if the application of the statute is otherwise
sufficiently probable. See Regional Rail Reorg. Act Cases, 419
U.S. at 143; Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498,
503-08 (1972). The degree of contingency is an important
barometer of ripeness in this respect. Compare, e.g., State of
Ariz. v. Atchison, Topeka, and Sante Fe R.R. Co., 656 F.2d 398,
402-03 (9th Cir. 1981) (finding challenge to statute ripe six
months before its effective date due to the unlikelihood that the
statutory scheme would change in the interim) with, e.g., Ernst &
Young, 45 F.3d at 538 (finding claim unripe due in part to the
presence of a large number of contingencies, many of which were
unlikely to materialize). Here, the relative certainty of
Keenan's asserted injury indicates that his claim is suitable for
contemporaneous judicial review.
Three other circumstances buttress the conclusion that
Keenan's claim is ready for adjudication. In the first place, he
mounts a facial challenge to the state law, and does so on a
stipulated record. Thus, his claim is unabashedly legal, and the
district court is capable of resolving it with no further factual
exposition. Second, and relatedly, the controversy is narrowly
defined and is susceptible to specific relief, adequate to
conclude the matter, without speculation or reference to
hypothetical facts, and without much risk that the court's
opinion will prove superfluous. Last but not least, the case is
20
fully adverse; all the proper parties are before the court.
We are equally convinced that allowing the case to
proceed, here and now, would serve a useful purpose, and would be
of great practical assistance to all concerned. See Narragansett
Indian Tribe, 19 F.3d at 693. Not only is the utility of a
decree obvious in this situation, but this utility also has
special force in the context of a challenge to a discriminatory
retirement system. In Lorance v. AT&T Technologies, Inc., 490
U.S. 900 (1989), the Supreme Court considered the timeliness of a
suit challenging a seniority system that allegedly discriminated
against women.7 The Court ruled that plaintiffs could sue at the
time the seniority system was put in place, without awaiting the
adverse effects of its operation. See id. at 905-06. In the
bargain, the Justices recognized that the adoption of the plan
imposed a "concrete harm" on the plaintiffs even though "the
benefits of a seniority system . . . are by their nature
speculative if only because they depend upon the employee's
continuing desire to work for the particular employer." Id. at
907 n.3. The Court then likened the harm imposed by adoption of
an illegal seniority system to that imposed "when an insurance
company delivers an accident insurance policy with a face value
of $10,000, when what has been paid for is a face value of
$25,000." Id.
7Although the holding in Lorance has been superseded by
statute, see Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1489-
90 (1994) (describing provisions of Civil Rights Act of 1991),
that development does not affect the use that we make of the
Court's opinion here.
21
Even though Lorance addressed a different issue when
a disparate impact violation of Title VII occurs for purposes of
establishing the limitations period we find guidance in the
Court's recognition that the adoption of a discriminatory plan
may itself impose an injury. So it is here: a ripeness analysis
can take into account not only the harm that arises from the
reduced value of Keenan's benefits, but also the harm from the
state's possible endorsement of age discrimination and the
prejudice that underlies it.
Moreover, the uncertainty about the validity of section
7(2)(b ) is also imposing a present hardship on Keenan apart from
the specter of reduced future benefits. At age 58, people must
nail down their plans for financial security in their golden
years. Thus, the most immediate harm to Keenan comes in the form
of an inability prudently to arrange his fiscal affairs. If
Keenan anticipates that his benefits will not be reduced, and
guesses wrong, he may find himself inadequately prepared to
subsist on the unwanted birthday present a drastically reduced
pension that will accompany his attainment of age 65.
Conversely, if he anticipates that the statute will be upheld,
and guesses wrong, he may needlessly deprive himself in the
intervening seven years, preparing for a rainy day that never
dawns. We believe that this uncertainty and the considerations
of utility that we have mentioned coalesce to show that Keenan is
suffering a sufficient present injury to satisfy the second prong
of the Abbott Labs paradigm. See, e.g., Pacific Gas, 461 U.S. at
22
201; Pierce v. Society of Sisters, 268 U.S. 510, 535-36 (1925)
(allowing private schools to attack statute requiring public
school attendance at a later date because of the statute's
tendency to shift students immediately to public schools); Crow
Tribe of Indians v. Montana, 819 F.2d 895, 903 (9th Cir. 1987)
(finding justiciability in challenge to state tax on coal based
in part on present difficulty in leasing mine), aff'd 484 U.S.
997 (1988); Bob's Home Serv., Inc. v. Warren County, 755 F.2d
625, 627-29 (8th Cir. 1985) (finding ripeness based in part on
the reduced property value attributable to a land regulation).
Finally, although we recognize that courts have some
discretion to grant or withhold declaratory relief, and that this
discretion must be exercised cautiously when matters of either
public import or constitutional dimension are implicated, see El
Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992),
the lower court did not squarely reject Keenan's claim in the
exercise of its discretion, nor should it have done so. Though
the declaratory judgment context may serve to relax a federal
court's storied obligation to exercise the jurisdiction given to
it by Congress, see Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d
306, 308 n.3 (1st Cir. 1986), the decision not to exercise
jurisdiction must still be based on a careful balancing of
efficiency, fairness, and the interests of both the public and
the litigants. See Metropolitan Prop. & Liab. Ins. Co. v.
Kirkwood, 729 F.2d 61, 62 (1st Cir. 1984). In Keenan's case,
this calculus strongly favors a contemporaneous adjudication. In
23
addition to the utility of a present determination, the
challenged statute is free of ambiguity and straightforward in
its operation. There is no basis to suppose that any
adjudication will be hampered by factual uncertainty. There is
no need to await clarification by a state court. More
importantly, Congress gave state and local governments two years
between the passage of the OWBPA and its effective date to bring
their retirement schemes into compliance. The Commonwealth chose
not to bestir itself during this period, and has still not taken
legislative action though nearly five years have elapsed. Any
deference that might be owed under principles of comity has long
since been repaid. The retirement scheme must now face judicial
scrutiny.8
IX.
IX.
Conclusion
Conclusion
We need go no further. Although the district court
appropriately granted summary judgment against Riva and Pentland,
it improperly dismissed Keenan's claim as unripe.
8Keenan invites us to direct the entry of a judgment in his
favor on the merits, noting the district courts statement that
"Section 7(2)(b ) is facially discriminatory towards certain
state employees over the age of fifty-five." Riva, 871 F. Supp.
at 1517. We decline the invitation. The district court's dictum
was based in part on its assumption that "[d]efendants do not
contest that Section 7(2)(b ) is facially discriminatory under
the ADEA as amended by the OWBPA." Id. at 1517 n.5. On appeal,
the Commonwealth vehemently denies that it ever conceded the
point. Under the circumstances, we think that orderly procedure
favors a remand so that the district court may fully consider the
merits of Keenan's claim.
24
Affirmed in part, reversed in part, and remanded for
Affirmed in part, reversed in part, and remanded for
further proceedings consistent herewith.
further proceedings consistent herewith.
25