Riva v. Commonwealth of MA

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