Currie v. Group Insurance Co

United States Court of Appeals
For the First Circuit
____________________

No. 01-1916

VALJEANNE CURRIE, ET AL.,
Plaintiff, Appellant,

v.

GROUP INSURANCE COMMISSION, 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

Lynch and Lipez, Circuit Judges
and Woodlock,* District Judge.
____________________

S. Stephen Rosenfeld with whom Suzanne L. Schwartz, Rosenfeld &
Associates, and Richard Ames were on brief for appellant.

Ginny Sinkel, Assistant Attorney General, with whom Pierce O.
Cray, Assistant Attorney General, and Thomas F. Reilly, Attorney
General, were on brief for appellees.

Ronald S. Honberg, Mary Giliberti, Thomas M. Sobol, Lydia Alix
Fillingham, and Lieff, Cabraser, Heimann & Bernstein, LLP on brief for

* Of the District of Massachusetts, sitting by designation.
The National Alliance for the Mentally Ill and the Judge David L.
Bazelon Center for Mental Health Law, amici curiae.
____________________

April 1, 2002
____________________
LYNCH, Circuit Judge. The ultimate question in this case

presents significant issues about a state government's ability to

allocate insurance benefits by creating distinctions between different

classes of individuals. Valjeanne Currie appeals the district court's

entry of summary judgment for the defendant, the Group Insurance

Commission (GIC), which provides disability benefits for employees of

the state of Massachusetts. Currie v. Group Ins. Comm'n, 147 F. Supp.

2d 30 (D. Mass. 2001). Currie challenges an aspect of the GIC long-

term disability benefits policy, which limits benefits for

noninstitutionalized individuals with mental disabilities to one year;

GIC imposes no such time limit on benefits for the institutionalized

mentally ill or on noninstitutionalized individuals with physical

disabilities. Currie argues that this policy violates the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 (1994), the Equal

Protection Clause of the United States Constitution, and the Due

Process Clause of the United States Constitution.

The immediate issue is whether this court should proceed to

resolve the merits of this case while an appeal proceeds in parallel

litigation in the state courts on an issue of state law which could

moot or otherwise inform the federal litigation. The plaintiffs have

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asked us to stay our hand. The defendants urge us to dispose of the

case on a difficult issue of federal statutory construction on which

the circuits are split. They generally would prefer a prompter

disposition of the federal action, but agree that the state court

should decide state law issues. There is then the issue of what form

a stay should take, should we decide to stay. The alternatives

proposed are a stay under Colorado River Conservation District v.

United States, 424 U.S. 800 (1976), or certification of the state law

question to the Massachusetts Supreme Judicial Court (SJC). In the

interest of comity, we elect to stay on Colorado River grounds.

Certification would interrupt the normal state appellate processes.

Moreover, it would put the decisions of the state law issue directly to

the state's highest court on a record developed to address federal, not

state, issues. Finally, it is unclear whether the SJC would accept

certification where, as here, the state court's decision on state

issues would not be dispositive of the federal issue, but would merely

render it moot.

I.

Valjeanne Currie was a Massachusetts state employee for

fourteen years, working at the Massachusetts Mental Health Center. She

suffers from schizophrenia. In 1999, her illness forced her to take a

leave of absence from work and she has not been able to return to work

since that time. She receives daily psychiatric care on an outpatient

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basis. There is no dispute in this case that Currie's illness is

severe, genuine, and debilitating.

The GIC is a state agency, established by state law, to

provide state employees with medical, dental, life, and disability

insurance. Mass. Gen. Laws ch. 32A, §§ 1-4, 10D (2000). The long-term

disability insurance (LTD) program, which is the policy Currie

challenges, provides income assistance to state employees who become

disabled and cannot work. The governing statute charges the GIC with

establishing a disability insurance plan "on such terms and conditions

as it deems to be in the best interest of the commonwealth and its

employees." Id. § 10D. The plan is required to be self-supporting; by

statute, the Commonwealth may make no contribution to the support of

the plan. Id. The plan is also voluntary -- state employees may

choose whether or not they wish to participate. Participating

employees pay premiums during the course of their employment.

Massachusetts state employees are not permitted to participate in the

federal social security system, and so Currie does not have access to

the federally sponsored social security net available to most

Americans.

The Commonwealth initiated the LTD plan in 1988. The GIC

accepts bids from private insurers to cover the LTD plan. Prior to

1998, the plan did not provide any benefits for mentally disabled

individuals who were not hospitalized. In 1994, the Hartford Life

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Insurance Company, the private insurer carrying the LTD contract,

suggested adding coverage for nonhospitalized mentally disabled

individuals. However, after some consideration, the GIC determined

that the rate increase required for such coverage was infeasible due to

the risk of adverse selection. Adverse selection is a problem

confronted by voluntary insurance plans, whereby those individuals who

consider themselves to have a low risk opt out of the program. This

decreases the amount paid into the program, and increases the

percentage of program participants who will eventually receive

benefits. Of course, as the cost of coverage rises, more low-risk

individuals will choose to opt out.

When the Hartford contract was renewed, effective July 1998,

the GIC's outside consultants recommended that the new contract provide

for one year's worth of benefits for nonhospitalized mentally disabled

individuals. The GIC adopted this recommendation, which is the policy

challenged by Currie. After this first year of benefits, the

individual may only continue to receive benefits if he or she is

confined to a hospital or institution, in which case the benefits

continue until the individual is discharged. Plan participants who

suffer from physical disabilities have no such limitations on their

coverage.

Currie began receiving benefits in June of 1999. In October

of that year, she received a letter informing her that the payments

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would be terminated in June of 2000 unless she entered an institution.

In January of 2000, Currie filed suit against the GIC in the federal

district court. In May of 2000, Currie filed suit in state court,

challenging the same provision of the LTD policy based on Massachusetts

state antidiscrimination law, Mass. Gen. Laws ch. 151B (2000). On June

7, 2000, a state superior court judge entered a preliminary injunction,

ordering GIC to continue her benefits, and thus necessarily finding

some probability of success. Currie v. Hartford Life Ins. Co., No. 00-

1831 (Mass. Super. Ct. June 7, 2000). On June 14, 2001, the federal

district court denied summary judgment for the plaintiffs and granted

summary judgment to the defendants. On January 24, 2002, a state

Superior Court judge denied plaintiff's motion for summary judgment,

granted defendant's motion for summary judgment, and dismissed the

case. Currie v. Hartford Life Ins. Co., No. 00-1831-H (Mass. Super.

Ct. Jan. 24, 2002). We cannot tell if the record in the state court

case is fuller than or identical to the summary judgment record in the

federal case. We can say the issues in the state and federal cases are

not identical and therefore the evidence presented may be different.

Plaintiffs have appealed that decision.

Currie argues that entering an institution would severely

decrease the likelihood that her condition would improve to the extent

that she would be able to return to work, and has presented affidavits

from her treating doctors to support this argument. She implies that

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GIC's policy, which allows for unlimited benefits for the hospitalized

mentally ill, may therefore cost it more in the long run than would a

policy allowing her to continue outpatient treatment. What is at

stake, then, she argues, is not the amount of money GIC will pay out,

but rather her ability to continue in a noninstitutionalized setting.1

Following oral argument in this case, the GIC informed us

that it has negotiated a new LTD policy contract which will take effect

when the current contract with the Hartford expires in July 2002. The

new policy, carried by C.N.A. Group Benefits, will provide LTD benefits

beyond one year for individuals, like Currie, who have mental

disabilities and are receiving outpatient care in the form of day

treatment, partial hospital treatment, or residential treatment for at

least five hours per day, four days per week. Because this new policy

will not apply to Currie or to other individuals who stop working

before the new policy comes into effect in July 2002, GIC does not

suggest that this change moots Currie's claim.

II.

1 Currie has also stated that if her benefits are cut off, she
will inevitably become homeless and enter an institution and implies
that at that time, she will then begin receiving LTD benefits again.
It is not clear from the policy whether, once she becomes ineligible,
she would later be able to receive benefits even if she did enter an
institution. The GIC has not addressed this issue.

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 Currie makes three challenges to the LTD policy offered by

GIC through the Hartford, one premised on the ADA and two premised on

the federal constitution.

A. ADA Claim

First, Currie argues that the LTD policy violates Title II

of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165, which

states that "no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity." Id. § 12132.

The district court granted summary judgment to the defendant on this

claim, holding that: 1) Title II of the ADA does not encompass

employment practices; and 2) even if Title II covered employment, the

LTD plan would fall under the "safe harbor" provision established by

Congress for certain state insurance programs, id. § 12201(c). In its

safe harbor ruling, the district court stated that because there was a

rational basis for the distinction in benefits, the classification did

not violate the state antidiscrimination statute. The court made no

ruling on whether the classification violated the state constitution.

Currie, 147 F. Supp. 2d at 33-38. The GIC agrees with both of the

district court's conclusions. Neither question is easily decided.

1. Title II coverage

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 The question of whether challenges to employment practices

are cognizable under Title II has been considered by two of our sister

circuits, and by several trial courts within this circuit, with

divergent results. See Zimmerman v. Or. Dep't of Justice, 170 F.3d

1169, 1173-74 (9th Cir. 1999) (not cognizable), cert. denied, 531 U.S.

1189 (2001); Bledsoe v. Palm Beach County Soil & Water Conservation

Dist., 133 F.3d 816, 820-22 (11th Cir. 1998) (cognizable); Downs v.

Mass. Bay Transp. Auth., 13 F. Supp. 2d 130, 134-36 (D. Mass. 1998)

(cognizable); Motzkin v. Trs. of Boston Univ., 938 F. Supp. 983, 996

(D. Mass. 1996) (not cognizable); see also McKibben v. Hamilton County,

215 F.3d 1327 (6th Cir. 2000) (per curiam) (unpublished table decision)

(noting split, but proceeding on merits where coverage not challenged

by defendant). Title I of the ADA, 42 U.S.C. §§ 12112-12117 (1994),

expressly covers the employment practices of both private and public

entities.2 Id. § 12112.

The district court believed that the clear language of Title

I indicated that Title I was the sole avenue for bringing employment

claims, and that the clear language of Title II indicated that Title II

was limited to so-called "outputs" of a public agency. Currie, 147 F.

Supp. 2d at 34-35. Specifically, the court found that the second

clause of Title II, which mandates that qualified individuals not "be

2 Currie did not attempt to challenge the LTD policy under
Title I of the ADA because of the procedural requirements imposed by
Title I. Currie, 147 F. Supp. 2d at 33 n.6.

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subjected to discrimination by any [public] entity" was not intended to

expand the scope of coverage beyond "services, programs, or activities"

(articulated in the previous clause), but simply to clarify that Title

II prohibits both intentional discrimination (through the "subjected to

discrimination" clause) and disparate treatment (through the "excluded

from participation in or . . . denied the benefits of" clause). Id. at

34-36 (analyzing 42 U.S.C. § 12132). The court supported its clear

language analysis by finding that the overall structure of the ADA,

which provides a remedy for employment discrimination under Title I,

supported its conclusion. Id. at 36.

The answer is not so plain. While Title I's language clearly

covers employment discrimination, and public employers are not exempted

from the definition of a covered entity, Title I says nothing about it

being an exclusive remedy or avenue for suit. 42 U.S.C. § 12112. It

is not unheard of for individuals to have overlapping rights, even

within one Act.3 Here, the two Titles grant substantively different

rights -- for instance, while Title I gives successful plaintiffs the

3 For instance, employers that receive federal assistance may
be covered by both Title VI (applying to programs and activities that
receive federal funds) and Title VII (applying to employment practices)
of the 1964 Civil Rights Act. See Guardians Ass'n v. Civil Serv.
Comm'n, 463 U.S. 582, 606-07 (1983) (plurality) (district court relief
premised on violations of both Title VI and Title VII affirmed in part
and reversed in part because relief awarded under Title VI exceeded
permitted scope). Similarly, a disabled individual working for a
federally funded entity may be covered by both the ADA and the
Rehabilitation Act of 1974. See Phelps v. Optima Health, Inc., 251
F.3d 21, 23 & n.2 (1st Cir. 2001).

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opportunity to obtain compensatory and punitive damages, there is no

such right under Title II. Id. § 12133 (referencing 29 U.S.C. § 794a).

Nor is the language of Title II clear on this question. The words

"public services, programs, or activities" do not necessarily exclude

employment,4 and the "subjected to discrimination" clause may broaden

the scope of coverage further. Moreover, the Department of Justice has

promulgated a regulation stating that Title II does cover employment

practices. 28 C.F.R. § 35.140 (2001); see also 28 C.F.R. pt. 35, App.

A (2001) (elaborating on § 35.140). This regulation is entitled to

deference under the Chevron doctrine if the statutory language is

unclear. Chevron U.S.A, Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984). In addition, Currie cites to legislative

history which she says demonstrates that Congress intended Title II to

cover employment and to function in the same manner as Section 504 of

the Rehabilitation Act.

2. Safe Harbor

4 There are two long-standing civil rights laws, Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (1994 & Supp. IV
1998) and Title IX of the Education Amendments of 1972, 20 U.S.C.
1681(a) (1994), under which the phrase "program or activity" has been
held to cover employment practices. See Consol. Rail Corp. v. Darrone,
465 U.S. 624, 632-634 (1984) (Rehabilitation Act); North Haven Bd. of
Educ. v. Bell, 456 U.S. 512, 520-35 (1982) (Title IX). In addition,
Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, which also
uses the "program or activity" language, contains a specific
subsection, id. § 2000d-3, limiting its application to employment
discrimination to certain instances.

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 Even beyond the difficult statutory interpretation question

of whether Title II covers employment, there is a second complicated

statutory question -- whether the "safe harbor" provision of the ADA,

42 U.S.C. § 12201(c)(2), immunizes the LTD. The safe harbor provision

states that the ADA shall not be construed as prohibiting a covered

organization "from establishing, sponsoring, observing or administering

the terms of a bona fide benefit plan that are based on underwriting

risks, classifying risks, or administering such risks that are based on

or not inconsistent with State law." Id.

Currie argues that the safe harbor provision does not apply

to the challenged aspect of the LTD plan because the hospitalization

requirement is not based on any actual data. She cites the legislative

history and the regulations as support for the proposition that a risk-

based defense must be based on "sound actuarial data and not on

speculation." See 28 C.F.R. pt. 36, App. B., at 676 (2001) (internal

quotation marks omitted) (citing legislative history and discussing 28

C.F.R. § 36.212 (2000)).

The GIC responds that the safe harbor does not require it to

conduct actuarial studies to support its policies. See Rogers v. Dept.

of Health & Envtl. Control, 174 F.3d 431, 437 (4th Cir. 1999)

(actuarial data not required for safe harbor); Ford v. Schering-Plough

Corp., 145 F.3d 601, 611 (3d Cir. 1998) (insurance company need not

justify its policy coverage after a plaintiff's mere prima facie

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allegation). Instead, the GIC asserts, the policy need only be based

on "actual or reasonably anticipated experience," a standard used by

some district courts and also articulated in the legislative history.

See Currie, 147 F. Supp. 2d at 37; Chabner v. United of Omaha Life Ins.

Co., 994 F. Supp. 1185 (N.D. Cal. 1998), aff'd on other grounds, 225

F.3d 1042 (9th Cir. 2000); Doukas v. Metro. Life Ins. Co., 950 F. Supp.

422, 428-29 (D.N.H. 1996) (citing H.R. Rep. 485(II), at 135-48,

reprinted in 1990 U.S.C.C.A.N. 303, 418-21). The GIC has presented

evidence that it says supports its policy under this standard. This

evidence includes the fact that the industry standard is to impose a

durational limit on disability benefits; evidence that under the

University of Maine's LTD plan, which is an employer-paid LTD covering

all employees, 25% of recipients are mentally disabled; evidence that

the costs associated with generous disability benefits offered by the

University of Massachusetts's LTD plan had led the insurer to cancel

the contract; evidence that adverse selection had been a problem in

GIC's Indemnity Health Insurance plan; and an affidavit from a

principal with the consulting company that the GIC retained to help it

evaluate benefits stating that, in the principal's opinion, no

insurance company would agree to underwrite a voluntary, employee pay-

all LTD plan that offered unlimited mental disability benefits.

Currie, however, argues that there is a second problem with

the application of the safe harbor provision. The safe harbor

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provision applies only to risk-based policies that are "based on or not

inconsistent with State law," 42 U.S.C. § 12201(c)(2). She argues that

the LTD policy is inconsistent with the Massachusetts Constitution and

the state antidiscrimination law, Mass. Gen. Laws, ch. 151B, which

prohibits employers from discriminating on the basis of handicap.

Thus, we arrive at the questions that are currently pending before the

state courts.

B. Federal Constitutional Claims

Currie also claims that the GIC's use of the Hartford policy

violates her federal constitutional rights to equal protection and due

process of law.

Currie faces a difficult test under the equal protection

clause. Currie does not contest the district court's holding that the

policy will survive equal protection scrutiny if it is rationally

related to a legitimate governmental purpose.5 In its brief, the GIC

asserts three possible justifications for the policy: 1)

5 The Supreme Court has held that state discrimination on the
basis of mental retardation will survive an equal protection challenge
unless the challenged practice is not rationally related to some
legitimate governmental purpose. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 446 (1985). Other precedent indicates that
this test applies to state discrimination against disabled individuals
generally. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.
356, 367 (2001) ("States are not required by the Fourteenth Amendment
to make special accommodations for the disabled, so long as their
actions toward such individuals are rational."); Currie, 147 F. Supp.
2d at 33 (citing City of Cleburne for the proposition that "it is well
established that, for purposes of this analysis, the disabled do not
constitute a suspect classification").

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hospitalization serves as a proxy for determining those with the

greatest need, i.e., those with the longest or most severe disability;

2) hospitalization serves as a proxy for verifying total disability;

and 3) some limitation is necessary to keep costs at a viable level.6

Currie's response boils down to two main points: 1) that none of these

rationales explain why mental disability should be treated differently

than other disabilities, such as muscular-skeletal disorders, that are

common and difficult to verify, and the distinction is therefore

arbitrary; and 2) that the policy will eventually cost the GIC more,

because it undermines beneficiaries' attempts to return to work, and

therefore is not rationally related to cost concerns.

Currie's due process claim rests on the theory that the

policy impermissibly denies her a government benefit on a basis that

infringes her constitutionally protected interest (namely, her right to

liberty of person). See, e.g., Perry v. Sindermann, 408 U.S. 593, 597

(1972) (holding that it would be impermissible for government to deny

renewal of employment contract based on employee's exercise of free

speech rights). A state policy that has the effect of penalizing the

exercise of a fundamental right must be justified by a compelling state

interest in order to survive constitutional scrutiny. Shapiro v.

Thompson, 394 U.S. 618, 634-38 (1969) (administrative reasons for

6 Currie argues that only the cost justification was presented
to the district court.

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denying welfare benefits to recent interstate immigrants not

compelling), overruled in part on different grounds by Edelman v.

Jordan, 415 U.S. 651 (1974).

As explained below, we decline to decide any of Currie's

federal claims at this juncture, due to the pendency of the state court

proceedings.

III.

Before oral argument in this case, Currie filed a motion with

this court requesting a stay in these proceedings, pending the outcome

of the state court proceedings.7 Currie suggested that a stay would

save this court from having to decide the federal statutory and

constitutional issues, particularly the ADA safe harbor question, which

is intertwined with the state law question currently under

consideration in the state court system. The GIC opposed this motion,

arguing that we could affirm summary judgment on the merits by deciding

that Title II of the ADA does not cover employment practices, or by

deciding that the "contrary to state law" exception to the safe harbor

7 The question of whether to defer to the parallel state
proceedings was not before the district court, and therefore our
holding is not an indication that the district court abused its
discretion in any way by failing to defer. Cf. Moses H. Cone Mem'l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19 (1983) (question of
whether to defer is within the discretion of the district court). Nor
do we view this issue as having been waived by Currie because she did
not move for a stay before the district court -- a federal court's
discretionary authority to defer to a state court due to comity reasons
may be invoked regardless of whether the parties request it.

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applies only to matters of state insurance law. Of course, if the

highest state court were to determine the plan violates state

antidiscrimination law or the Massachusetts Constitution, both

questions would most likely be moot, as the GIC would necessarily have

to change the plan.

Generally speaking, "in cases where the relief being sought

is equitable in nature or otherwise discretionary, federal courts not

only have the power to stay the action based on abstention principles,

but can also, in otherwise appropriate circumstances, decline to

exercise jurisdiction altogether by either dismissing the suit or

remanding it to state court." Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 720 (1996).

A question is raised as to whether this case is within the

scope of the Colorado River stay doctrine. In Colorado River, the

Supreme Court held that "in situations involving the contemporaneous

exercise of concurrent jurisdiction[] . . . by state and federal

courts" it may be appropriate for the federal court to defer to the

state court. 424 U.S. at 817. However, the Court emphasized that "the

circumstances permitting the dismissal of a federal suit due to the

presence of a concurrent state proceeding for reasons of wise judicial

administration are considerably more limited than the circumstances

appropriate for abstention" and should be "exceptional" to justify

deferral to the state court. Id. at 818; see also Rojas-Hernandez v.

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P.R. Elec. Power Auth., 925 F.2d 492, 495-96 (1st Cir. 1991); Villa

Marina Yacht Sales, Inc. v. Hatteras Yachts (Villa Marina I ), 915 F.2d

7, 12 (1st Cir. 1990); Bath Mem'l Hosp. v. Me. Health Care Fin. Comm'n,

853 F.2d 1007, 1015 (1st Cir. 1988). There is a "heavy presumption

favoring the exercise of jurisdiction." Villa Marina I, 915 F.2d at

13. There must be some extraordinary circumstances for a federal court

to shrink from "the virtually unflagging obligation of the federal

courts to exercise the jurisdiction given them." Colorado River, 424

U.S. at 817. The mere pendency of parallel state litigation does not

warrant a stay, save for exceptions not pertinent here.

This court has identified six factors, based on the Supreme

Court's decision in Colorado River and its subsequent decision in Moses

H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1

(1983):

(1) whether either court has assumed jurisdiction over a
res; (2) the inconvenience of the federal forum; (3) the
desirability of avoiding piecemeal litigation; (4) the order
in which the forums obtained jurisdiction; (5) whether
federal law or state law controls; and (6) whether the state
forum will adequately protect the interests of the parties.

Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 320-21 (1st Cir. 1992)

(quoting Burns v. Watler, 931 F.2d 140, 146 (1st Cir. 1991)). However,

this is not an exhaustive list, nor is it a litmus test for Colorado

River deference, which must remain a discretionary tool. See Villa

Marina I, 915 F.2d at 14.

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 The first two prongs of the Colorado River/Moses H. Cone test

have little bearing on this case. There is no res at issue and the

federal forum is equally convenient to the state forum, as both are

located in the same city. There is some risk of piecemeal litigation

here, which may rise above the "routine inefficiency that is the

inevitable result of parallel proceedings." Villa Marina I , 915 F.2d at

16. The Supreme Court has clarified that the fourth prong (sometimes

called the "priority" element) "should not be measured exclusively by

which complaint was filed first, but rather in terms of how much

progress has been made in the two actions." Moses H. Cone, 460 U.S. at

21. In this case, both state and federal cases have been through

summary judgment and are on appeal, and it may be that the record in

the state case is fuller as to the state law issue. See Colorado

River, 424 U.S. at 820 (noting the apparent absence of any federal

proceedings other than the motion to dismiss as a factor in favor of

dismissal); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts (Villa

Marina II), 947 F.2d 529, 535 (1st Cir. 1991) (holding that state case

was further advanced because of development of record for preliminary

injunction hearing).

The concerns implicated by the fifth prong of the test,

whether federal or state law controls, are important in this case.

Although this case presents exclusively federal law claims, two of the

three federal claims are constitutional and therefore should only be

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adjudicated if we are unable to resolve the case through resolution of

the statutory claim. See Ashwander v. Tenn. Valley Auth., 297 U.S.

288, 347 (1936) (Brandeis, J., concurring). If we conclude that Title

II encompasses employment practices, we must determine whether the LTD

program is protected by the safe harbor provision. That federal

statutory question is intertwined with a complex issue of state law,

pending before the state courts. Further, the underlying subject

matter involves state-provided insurance benefits, a matter in which

the state has unusually strong interests.

We have noted that "[c]ourts generally have agreed that rare

circumstances exist only when a case presents 'complex questions of

state law that would best be resolved by a state court.'" Villa Marina

I, 915 F.2d at 15 (quoting American Bankers Ins. Co. of Fla. v. First

State Ins. Co., 891 F.2d 882, 886 (11th Cir. 1990)). Colorado River

has special appeal where a state court decision "may substantially,

perhaps even fully, answer certain questions of state law in a way that

will permit easy answers, relatively speaking, to the federal ones."

Kartell v. Blue Shield of Mass., 592 F.2d 1191, 1193-94 (1st Cir. 1979)

(remanding to district court with order to stay proceedings pending

state court outcome or to certify state supreme court).

These comity concerns are the same as those underlying the

abstention doctrines that predate Colorado River's discretionary

deferral. In Colorado River, the Supreme Court described these

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abstention doctrines, stating that abstention is appropriate "where

there have been presented difficult questions of state law bearing on

policy problems of substantial public import whose importance

transcends the result in the case then at bar." 424 U.S. at 814 (citing

La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), and

Burford v. Sun Oil Co., 319 U.S. 315 (1943)); see also R.R. Comm'n of

Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) (discussing "a doctrine

of abstention appropriate to our federal system whereby the federal

courts, 'exercising a wise discretion', restrain their authority

because of 'scrupulous regard for the rightful independence of the

state governments'") (quoting DiGiovanni v. Camden Fire Ins. Ass'n, 296

U.S. 64, 73 (1935) and Cavanaugh v. Looney, 248 U.S. 453, 457 (1919)).

Although this case does not mandate abstention under any of these

established abstention doctrines, the problem it presents is similar to

the problems presented by the Pullman or Thibodaux cases, which

presented federal courts with the prospect of being required to resolve

complicated state law problems. For instance, two of the major

purposes of Pullman abstentions are to "avoid[] the waste of a

tentative decision" and to "avoid[] . . . needless friction between the

federal and state proceedings." Ford Motor Co. v. Meredith Motor Co.,

Inc., 257 F.3d 67, 73 (1st Cir. 2001) (internal quotation marks

omitted); see also Bath Mem'l Hosp., 853 F.2d at 1016 ("Pullman-type

abstention . . . may be appropriate . . . because . . . plaintiffs are

-21-
making identical claims in two state court suits, and the state courts

may resolve the claims in ways that would moot, or significantly

affect, the claims plaintiffs make here . . . .").

Much of the rationale supporting abstention in those cases

applies to counsel deference here. The state law question is not

clear, nor is it clear how the state ultimately would balance the

important policy interests of treatment of the disabled with the

financial viability of insurance policies. If we were to decide the

ADA claim here, we could be forced to make a ruling on whether the

policy violates Massachusetts antidiscrimination law, the question

before the Massachusetts courts. If we were to decide the federal

issues in the manner that the GIC suggests, a state court ruling that

the policy violates Massachusetts law would render our opinion merely

advisory -- an outcome we seek to avoid in any case.8

8 Nothing in this opinion undercuts any res judicata effect of
the Superior Court judgment, an argument which the dissent creates sua
sponte and on which it relies. By the same token, the res judicata
effect of a lower state court judgment does not compel the active
exercise of federal jurisdiction, rather than a stay when federal
doctrines of restraint counsel otherwise. This is true whether the
doctrines of restraint counsel certification of questions "to the
State's highest court" to avoid reaching federal questions, see
Arizonans for Official English v. Arizona, 520 U.S. 43, 78 (1997), or
whether they counsel abstention, see generally Heck v. Humphry, 512
U.S. 477 (1994) ("[I]f a state criminal defendant brings a federal
civil-rights lawsuit during the pendency of his . . . appeal . . .
abstention may be an appropriate response . . . ."); Ford Motor Co. v.
Meredith Motor Co., 257 F.3d 67 (1st Cir. 2001) ( Pullman abstention
appropriate where state administrative board ruling was on appeal to
state superior court); Amerson v. State of Iowa, 94 F.3d 510, 512 (8th
Cir. 1996) ( Burford abstention on claim for interference with parental

-22-
 Finally, the sixth prong of the Colorado River/Moses H. Cone

test also supports deferring to the state court. A stay under Colorado

River is appropriate only where the parties may obtain complete relief

in the state court proceedings:

When a [] court decides to dismiss or stay under Colorado
River, it presumably concludes that the parallel state-court
litigation will be an adequate vehicle for the complete and
prompt resolution of the issues between the parties. If
there is any substantial doubt as to this, it would be a
serious abuse of discretion to grant the stay or dismissal
at all.

rights appropriate where state court appeals were pending); Turnbow v.
Pac. Mut. Life Ins., 934 F.2d 1100, 1103 (9th Cir. 1991) ("The time for
Pacific Mutual to oppose Turnbow's abstention argument was before the
Nevada Supreme Court reached its decision.").
Here the doctrine of sound judicial administration which
underlies Colorado River deferral has even more force because the state
proceeding is already on appeal on a fully developed record. See
Hearne v. Bd. of Educ., 185 F.3d 770, 778 (7th Cir. 1999) (holding that
the "principles of sound judicial administration which animated the
decision in Colorado River . . . require[d] a stay of the federal
proceedings" pending outcome of appeal in parallel state court
proceedings); Rogers v. Desiderio, 58 F.3d 299, 302 (7th Cir. 1995)
("It is sensible to stay proceedings until an earlier-filed state case
has reached a conclusion" on appeal); Akins v. Rodriguez, 15 F.3d 883,
887, vacated per stipulation, 26 F.3d 105 (9th Cir. 1994) (Colorado
River abstention appropriate where state appellate court decision on
appeal to state supreme court). The party who invoked jurisdiction
here has sought the stay and the defendants have not raised the
argument made by the dissent, even in their post-argument filings after
the Superior Court judgment, and so it is forfeited. See Soares v.
Brockton Credit Union, 107 F.3d 969, 972 n.1 (1st Cir. 1997) (noting
that defendant never raised res judicata issue and therefore court will
deem argument to be waived); see also Walsh v. Int'l Longshoremen's
Ass'n, 630 F.2d 864 (1st Cir. 1980) (court may raise res judicata issue
sua sponte where parties argued res judicata before district court but
not on appeal). Even had it not been forfeited, the interests served
by res judicata are better served by the stay.

-23-
Moses H. Cone, 460 U.S. at 28. Nonetheless, "perfect identity of

issues is not a prerequisite." Villa Marina II, 947 F.2d at 533.

It is very significant to us that it is the plaintiff, the

party that initially invoked the jurisdiction of the federal courts,

who is now requesting that we stay our hand. Moreover, because the

plaintiff is the same in both this case and the parallel state case,

there is no danger that the plaintiff will be prejudiced by ineffective

prosecution of the state law claim. Nor will the defendant be

prejudiced by our staying the action: whatever uncertainty exists as to

outcome in this case also exists as to the state court litigation.

The parties have proposed certification as an alternative to

a Colorado River stay, and the dissent prefers that course. However,

the state law question is currently before the state intermediary

appellate court, on appeal from the state Superior Court case. If we

were to certify, we would be interfering with that normal state

appellate process. If the SJC wishes to provide the parties with a

more prompt resolution of this question, it can accelerate the appeal

by taking direct appellate review of the state law case. Mass. R. App.

P. 11(f). In addition, the record before us has been developed to

address the federal issues, not the state law question. Therefore, our

certification might not provide the SJC with an adequate record on

which to decide the question, a requirement under the SJC's

certification rule. The state court case, in which the state law

-24-
question has been directly litigated, contains a far more appropriate

record on which to decide the question. Finally, it is not clear that

the SJC would accept certification. The Supreme Judicial Court of

Massachusetts Rule 1:03 permits certification "if there are involved

questions of law of this state which may be determinative of the cause

then pending in the certifying court." If the SJC holds that the

distinction in insurance benefits is not in violation of state law,

that will not be determinative of the federal claims. If the SJC holds

that the distinction is in violation of state law, that may moot the

federal claims. Whether this situation meets the certification

requirement is itself an issue of Massachusetts law which we should not

decide. On more than one occasion, state high courts have returned

certified questions unanswered, because the factual record was

undeveloped on the state law question or because there was a risk that

its opinion would be merely advisory. See, e.g., Cuesnongle v. Ramos,

835 F.2d 1486, 1491 (1st Cir. 1987) (discussing Puerto Rican Supreme

Court's decision not to answer certified question regarding state

constitutional law, where state law followed federal law); Lumbermens

Mut. Cas. Co. v. Belleville Ind., 407 Mass. 675, 555 N.E.2d 568, 576

(Mass. 1990) (returning certified question unanswered because factual

record was insufficiently developed); see also Canal Elec. Co. v.

Westinghouse Elec. Co., 406 Mass. 369, 548 N.E.2d 182, 184 (Mass. 1990)

(noting that "if, in the future, the 'questions certified to us . . .

-25-
are not accompanied by sufficient nonhypothetical, evidentiary facts to

allow us to adequately determine' the answers, we may decline to answer

such questions"). Under these circumstances, certification is not the

wisest course available to us.

We hold, therefore, that a stay pending the outcome of the

state proceedings is the wisest course of action at this time. We

emphasize that we are not surrendering federal jurisdiction and we

retain jurisdiction to permit us to resolve the federal questions if a

decision is ultimately necessary.

Motion for stay granted.

-- Dissent follows. --

-26-
 WOODLOCK, District Judge (Dissenting). The main current in

this appeal flows through a problem of federal statutory construction

which the District Court resolved on cross motions for summary

judgment. The majority chooses to bypass the federal statutory

question presented, at least for the time being, by invoking the

discretion to stay recognized under Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976). I believe that to do

so here is a misuse of the limited discretion that the Colorado River

doctrine reserves for truly "exceptional" circumstances. Id. at 818.

There is nothing particularly exceptional in the circumstances of this

case and there is no good cause to neglect "the virtually unflagging

obligation of the federal courts to exercise the jurisdiction given

them." Id. at 817. Consequently, I must respectfully dissent.

A. Deployment of the Colorado River Doctrine is Not Justified

The majority opinion relies upon three Colorado River factors

whose confluence it finds sufficient to justify avoiding exercise of

our jurisdiction. Those factors cannot support setting this case

adrift upon the Colorado River doctrine. In this section, I will

address the three factors the majority relies upon and the one Colorado

River factor--avoidance of piecemeal litigation--the majority accords

negligible weight. A careful consideration of the factors

demonstrates that the Colorado River doctrine is by its own terms

inapplicable.

-27-
-28-
 1. The first filed and decided federal proceeding
is substantially more developed than the
later filed and decided state proceeding.

The federal proceeding pending before us went to final

judgment in the federal district court on June 14 of last year after

resolution of cross motions for summary judgment on all issues. Currie

v. Group Ins. Comm'n, 147 F. Supp. 2d. 30 (D. Mass. 2001). The appeal

has been fully briefed and argued.

The state proceeding did not go to final judgment in the

state trial court until February 6 of this year, following a ruling on

cross motions for summary judgment, an aspect of which concerned a

subset of one of the issues before us. Currie v. Hartford Life Ins.

Co., Suffolk No. 00-1831-H (Mass. Super. Ct. Jan. 24, 2002).1 The

plaintiff has reported an intention to appeal but the record has not

yet been assembled and no briefing schedule for the appeal has been

established. The plaintiff, who is required to bring the appeal to the

Massachusetts Appeals Court in the first instance, tells us review in

the Supreme Judicial Court will also be sought.

Plainly, the first filed2 federal proceeding fully argued

1 Because the memorandum of the state Superior Court is
not published in any readily accessible reporter system and its
substance bears upon the issues in this case, I attach a copy as an
appendix to this opinion.
2 I recognize, of course, that under governing law this
Colorado River factor "should not be measured exclusively by which
complaint was filed first, but rather in terms of how much progress has
been made in the two actions." Moses H. Cone Mem'l Hosp. v. Mercury

-29-
before us is substantially more developed than the later filed state

proceeding in which appellate proceedings are in their infancy and may

have to mature through two state appellate courts.3

2. This exclusively federal law case is not so
intertwined with a particularly complex
novel state statutory claim as to justify
avoidance.

As the majority notes, "this case presents exclusively

federal law claims," slip op. at 18. The only one of these federal

Constr. Corp., 460 U.S. 1, 21 (1983). A very powerful and compelling
critique of Colorado River and other avoidance techniques, arguing in
favor of an exclusive first filing standard, has been mounted in James
C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention
Doctrine, 46 Stan. L. Rev. 1049, 1068 (1994) ("A federal court should
abstain if, and only if, the federal plaintiff has an adequate
opportunity to litigate his federal claim in a duplicative suit already
pending in state court."). I merely note that declining to invoke
Colorado River in this case is not only consistent with the doctrine's
own standards but also with the alternative standard proposed by one of
its more thoughtful critics.
3 The two cases cited by the majority regarding this
factor, slip op. at 18, serve only to underscore that the disparity of
progress in the two proceedings between the parties is a factor
actually favoring timely continued exercise of federal jurisdiction by
us. In Colorado River the Supreme Court found an "apparent absence of
any proceedings in the [federal] District Court, other than the filing
of the complaint, prior to the motion to dismiss" which the District
Court granted in an unreported oral opinion. 420 U.S. at 805-06, 820
& n.25. And in Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947
F.2d 529 (1st Cir. 1991), we adopted the District Court's determination
"that the Commonwealth action had progressed substantially further than
the federal case," observing that "in addition to the injunction
hearing, a pretrial report had been filed in the Commonwealth action
and ten depositions have been completed. In the federal action, in
contrast, Hatteras has yet to answer the complaint and little discovery
has taken place." Id. at 535.

-30-
claims with force is the statutory ADA claim.4 The majority explores

the decision tree for this claim and finds hanging under one

alternative branch a "federal statutory question . . . intertwined with

a complex issue of state law, pending before the state courts. . . ."

Id.

The use of the horticultural metaphor "intertwined" to

describe the relationship of the state law issue to the federal

statutory claim illustrates the force of Cardozo's observation that

"[m]etaphors in the law are to be narrowly watched, for starting as

devices to liberate thought, they end often by enslaving it." Berkey

v. Third Ave. Ry. Co., 244 N.Y. 84, 94 (1926). This is demonstrated

most readily by simply recasting the horticultural metaphor to capture

more accurately the reality the figure of speech is describing.

4 The majority, quite properly in an opinion explaining
an intention to stay rather than address the substantive issues,
presents the respective contentions--statutory and constitutional--of
the parties in a largely disinterested fashion without purporting to
resolve them.
Because the relative propriety of a stay is affected,
however, by whether weighty constitutional issues are truly at issue,
I find it necessary, in the interest of limiting my disagreement with
the majority to the narrowest grounds, to note that the asserted
constitutional claims should play no role in the stay calculus. This
is because I am of the view the federal constitutional claims plaintiff
raises--unlike the federal statutory claim--are meritless, essentially
for the reasons stated in the federal District Court opinion, Currie v.
Group Ins. Comm., 147 F. Supp. 2d 30, 38-39 (D. Mass. 2001), and that
of the State Superior Court, which relied on federal constitutional
case law in rejecting the parallel state constitutional claims, Currie
v. Hartford Life Ins. Co., Suffolk No. 00-1831-H (Mass. Super. Ct. Jan
24, 2002), slip op. at 4-9. By contrast, I have reached no conclusion
on the merits of the federal statutory claim.

-31-
 Far from being intertwined with the entire federal claim, the

state law issue is simply appended to one of two independent branches

of federal statutory analysis. It is the choice of the majority to

lash the two branches together by staying this case--and not something

inherent in the decision tree--that intertwines a secondary state law

issue with the federal statutory analysis. It is apparent that we

could reach the ADA Title II question and dispose of the case without

even encountering the state law question presented by the safe harbor

branch. That approach has not been substantively explored by us as

yet.

Moreover, merely labeling the state law issue appended to one

branch of the decision tree as "complex" does not make it so. The

majority properly does not seek to ground its choice to stay on

traditional abstention doctrines. These are reserved for genuinely

difficult questions of state law and no such question is presented

here.

In any event, if we are required to reach the alternative

"safe harbor" branch of this case, we will simply encounter a

manageable issue of state law which two dispositive opinions, that of

the federal District Court that we review, Currie v. Group Ins. Comm.,

147 F. Supp. 2d at 36-38, and that of the state Superior Court, Currie

v. Hartford Life Ins. Co., slip op. at 9-12, have already addressed

-32-
respectively in a broad and a narrow sense and decided with no apparent

strain.

3. The protections of the state forum are
undermined unless this court applies accepted
state rules for recognition of state judgments
between the parties.

The decision of the state Superior Court granting summary

judgment on all counts to the defendants is a final judgment to which

the Massachusetts courts, following the majority view, Restatement

(Second) of Judgments § 13 cmt. f. (1982), must accord res judicata

effect despite the pendency of any appeal. O'Brien v. Hanover Ins.

Co., 427 Mass. 194, 200-01 (1998). We can do no less.

Under 28 U.S.C. § 1738, "judicial proceedings of any court

of any . . . State . . . shall have the same full faith and credit in

every court within the United States . . . as they have by law or usage

in the courts of such State . . . ." When we treat a final judgment of

the Massachusetts Superior Court as some sort of provisional order we

are not acting in deference to the state court litigation; rather, we

act in derogation of Massachusetts judgment rules we are bound by a

federal statute to observe. The question whether the LTD policy is

inconsistent with Massachusetts law has been answered between the

parties before us and § 1738 requires we give that answer preclusive

effect. Consequently we are now obliged to resolve the remaining

questions consistent with that answer and without regard to whether one

-33-
or another of the Massachusetts appellate courts to which the state

appeal will be taken may ultimately reverse the Superior Court.

Application of res judicata through principles of full faith

and credit--unlike the comity concerns of the Colorado River doctrine

and traditional abstention approaches--is not discretionary. As

Justice Frankfurter observed for the Supreme Court in Williams v. North

Carolina, 325 U.S. 226, 228 (1945), "the Full Faith and Credit Clause

puts the Constitution behind a judgment instead of the too fluid, ill-

defined concept of 'comity.'" I have found no case in which a federal

court has addressed its full faith and credit obligations under § 1738

and concluded that they may be ignored or deferred.5 Indeed, when

5 The collection of cases gathered in a footnote by the
majority, slip op. at 21 n.8, does not suggest otherwise. All are
inapposite to the question whether we must apply 28 U.S.C. § 1738 here.

I will address in section C, infra, the certification
procedure proposed by the parties and endorsed by the Supreme Court in
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).
Heck v. Humphrey, 512 U.S. 477 (1994), falls within the
penumbra of traditional Younger abstention and is generally understood
as part of a long line of federal cases and legislation that requires
finality and exhaustion before a later filed federal case may challenge
the validity of a state court criminal proceeding or conviction. Ford
Motor Co. v. Meredith Motor Co., Inc., 257 F.3d 67 (1st Cir. 2001), and
Amerson v. Iowa, 94 F.3d 510 (8th Cir. 1996), as the majority candidly
observes, involve yet other abstention doctrines. Moreover, in
Meredith there was no lower state court judgment but only the ruling of
an administrative agency lacking res judicata effect on review in the
state Superior Court. 257 F.3d at 70. And in Amerson, the Eighth
Circuit held "federal court interference in a domestic relations
context where the state courts have entered judgment is . . .
inappropriate." 94 F.3d at 513.
In Turnbow v. Pacific Mutual Life Insurance Co., 934 F.2d
1100 (9th Cir. 1991), the Nevada Supreme Court having already ruled on

-34-
courts actually have addressed § 1738 in this context, they have made

significant efforts to examine carefully its impact on the case at

hand. See, e.g., Marrese v. Am. Acad. of Orthopaedic Surgeons, 470

U.S. 373, 379-86 (1985); Cruz v. Melecio, 204 F.3d 14, 18-21 (1st Cir.

2000); Rogers v. Desiderio, 58 F.3d 299, 301-02 (7th Cir. 1995).

The majority suggests that the question of the applicability

of 28 U.S.C. § 1738 has been forfeited because it was not raised. That

is not the rule in this circuit. Res judicata is a question which can

be addressed by this court on its own motion. Walsh v. Int'l

Longshoremen's Ass'n, Local 799, 630 F.2d 864, 867 (1st Cir. 1980). In

any event, the basis for invoking § 1738 did not arise until after

argument before us in this case and could not properly have been

the parallel state case, the Ninth Circuit concluded that "[b]ecause we
hold that res judicata bars federal relief, we need not decide whether
the district court properly dismissed the action on abstention
grounds." Id. at 1104. In Akins v. Rodrigues, 15 F.3d 883 (9th Cir.
1994), the Ninth Circuit found that "[t]he California state courts
obtained jurisdiction . . . more than four years before the federal
courts obtained jurisdiction. . . . There ha[d] been little or no
progress in the federal litigation [and] [s]tate law questions
predominate[d] in the federal action." Id. at 887.
Because the Illinois judgment rule is uncertain, the Seventh
Circuit has prudently chosen not to accord lower state court decisions
res judicata effect. Thus, in Rogers v. Desiderio, 58 F.3d 299 (7th
Cir. 1995), Judge Easterbrook, after reviewing conflicting Illinois
case law, said "[t]o be blunt, we have no idea what the law of Illinois
is on the question whether a pending appeal destroys the claim
preclusive effect of a judgment." Id. at 302. Hearne v. Board of
Education, 185 F.3d 770 (7th Cir. 1999), simply reviewed the status of
the Illinois judgment rule and found that "[t]he clarity of the
Illinois law of preclusion . . . on the effect of a judgment that is
still being appealed has not changed appreciably since we decided
Rogers." Id. at 778.

-35-
anticipated in the briefing and thereby waived. Under Fed. R. App. P.

28(j), "[i]f pertinent and significant authorities come to a party's

attention after the party's brief has been filed--or after oral

argument but before decision--a party may promptly advise the circuit

clerk by letter . . . [but] the letter must state without argument the

reasons for the supplemental citations . . . ." (emphasis added). The

defendants carefully complied with Rule 28(j) here by sending the clerk

a copy of the state Superior Court ruling. They could not properly do

more.6 By staying this case we neglect our independent duty to apply

§ 1738. It bears emphasizing that if we were to meet our duty in this

regard we would not be required separately to decide the state law

issue appended to the safe harbor claim. That issue has already been

decided in a state court judgment to which we must give voice. But we

have chosen to stand mute by undertaking to stay.

4. A Colorado River stay will encourage the
continuation of otherwise avoidable
piecemeal litigation.

The current of this litigation, with its history of and

prospects for serial decisionmaking in duplicative venues, strongly

draws us on a collision course with a material Colorado River factor--

6 The defendants' compliance with Fed. R. App. P. 28(j)
in connection with the state Superior Court's determination contrasts
favorably with the quite argumentative letters the parties have
submitted to us--purportedly under Rule 28(j)--with respect to the
Supreme Court's post-argument decision in Raygor v. Regents of the
University of Minnesota, 122 S.Ct. 999 (Feb. 27, 2002).

-36-
the desirability of avoiding piecemeal litigation. Yet, the majority

sails quickly past this factor, conclusorily observing that there "is

some risk of piecemeal litigation." Slip op. at 17 (emphasis added).

How much emphasis one puts on the adjective "some" is key to the

judgment. The direction of the litigation charted by the parties

causes them to tack back and forth among the several state and federal

trial and appellate courts; the record amply demonstrates quite some

past--and the likelihood of continued future--resort to piecemeal

litigation here. A stay will only increase that likelihood.

A bit of history will explain how the litigation between

these parties came to be presented in bits and pieces. Initially,

plaintiff's complaint filed in the federal District Court on January

25, 2000, raised six counts, (1) Title II of the ADA, (2) Amendment

CXIV (the prohibition against disability discrimination) under the

Massachusetts Constitution, (3) Due Process under the Massachusetts

Constitution, (4) Due Process under the United States Constitution, (5)

Equal Protection of the Massachusetts Constitution and (6) Equal

Protection under the United States Constitution. In response to the

defendants' motion to dismiss arguing that the Eleventh Amendment to

the United States Constitution precluded a federal suit against state

officials on the basis of state law, see generally Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 117 (1984), on March 25, 2000 the

plaintiffs dismissed the state constitutional claims, Counts 2, 3 and

-37-
5, in the federal court and commenced litigation in the state court on

strictly state law claims.7

In the federal District Court the parties litigated as a

general matter the federal safe harbor provision, 42 U.S.C. § 12201(c),

under which Congress directed that Title II of the ADA should not be

construed to prevent administration of a bona fide benefit plan based

on "underwriting risks, classifying risks, or administering such risks

that are based on or not inconsistent with State law." Id. §

12201(c)(1) & (2). Whether Mass. Gen. Laws ch. 151B, the state

statutory prohibition against employment discrimination, was such an

inconsistent law is an issue plainly within the general scope of the

7 We noted some time ago the challenge, in the wake of
Pennhurst, to the orderly and efficient resolution of controversies
having both federal and state law dimensions and the value of
certification of state law questions to meet those challenges. As
Judge Coffin observed in Rogers v. Okin, 738 F.2d 1 (1st Cir. 1984):
In 1982, the Supreme Court avoided decision of a
difficult federal constitutional question by
remanding to this court, urging us to dispose of
the case on state law grounds. [ Mills v. Rogers,]
457 U.S. [291,] 306, 102 S.Ct. at 2452. With
Pennhurst, the Court removed our power to do so.
Now, two years after the Supreme Court returned
this case to us in furtherance of the Court's
"settled policy" of avoiding unnecessary
constitutional questions, Pennhurst requires us
to face those questions. Fortunately, as will be
indicated below, the Massachusetts Supreme
Judicial Court's answers to our certified
questions of state law have simplified our
current task by changing the variables in the
constitutional equation.
Id. at 4 (footnote omitted).

-38-
safe harbor provision but its applicability was not specifically

pressed in the federal litigation. Rather this one potential form of

state law inconsistency became an issue dealt with specifically in the

state Superior Court.

After the appellees filed their briefs in this court, the

appellants for the first time sought a stay of the federal litigation,

contending that "[t]he initial exchange of briefs before this court has

made clear a feature of this case that unfortunately remained in the

background in the district court." Mot. of Pls/Appellants for Ct. to

Stay Proceedings Pending Adjudication in State Ct. ¶ 1. That "feature"

was the specific issue whether the LTD plan was inconsistent with state

law by virtue of Mass. Gen. Laws ch. 151B. The plaintiff does not

contend that the question of inconsistency with state law was withheld

from the federal proceeding or was somehow reserved for the state

courts. To the contrary, she contends the plaintiffs "have not waived

their argument of inconsistency with state law. That claim has been

part of this [federal] case from the beginning." Appellants' Reply to

Appellees' Opp'n to Appellants' Mot. to Stay Proceeding Pending

Adjudication in State Ct. ¶ 4.

The federal and state proceedings in which the parties have

engaged present a textbook example of piecemeal litigation. To date,

by keeping "in the background" an aspect of a claim that has been a

part of the federal case "from the beginning," the parties have fully

-39-
briefed and argued--in whole and in part--to three courts, two federal

and one state, the issue of consistency with state law. The decision

to stay insures that two more courts--the Massachusetts Appeals Court

and the Massachusetts Supreme Judicial Court--will be offered a bite at

the apple hanging from one branch of the decision tree in this case.

And looming in the background is the potential for yet another court,

the Supreme Court of the United States, faced with a preexisting split

in the circuits, to review the other branch of the federal statutory

question, the availability of a Title II claim--and hence in this case

the availability of the ADA at all--to this type of case. We should

not sail by the Colorado River factor directed to the desirability of

avoiding piecemeal litigation. Rather we should accept the challenge

and decide the case by actively exercising our federal jurisdiction.

B. The Exercise of Federal Appellate Jurisdiction is an
Imperative

As the competing treatments of the recognized Colorado River

factors separately provided in the majority opinion and in this

separate opinion illustrate, there is a quicksilver quality to the

Colorado River doctrine. Its multifactor test--in which no weights are

assigned until the balancing process is actually undertaken--creates

conditions that, at a minimum, invite unpredictability. Lacking some

-40-
greater prescriptiveness beyond the general adjuration that it is

reserved for "exceptional circumstances," the Colorado River doctrine

periodically overflows the banks meant to contain it and floods garden

variety federal question litigation.

That is a major reason the commentators have not been

particularly kind to the Colorado River doctrine. See, e.g., James C.

Rehnquist, supra note 2; Linda Mullenix, A Branch Too Far: Pruning The

Abstention Doctrine, 75 Geo. L.J. 99 (1986); David A. Sonenshein,

Abstention: The Crooked Course Of Colorado River, 59 Tul. L. Rev. 651

(1985). The application of the factors has "reveal[ed] great disparity

as to what constitutes exceptional circumstances," Professor

Chemerinsky reports. Erwin Chemerinsky, Federal Jurisdiction § 14.3,

at 830 (3d ed. 1999). "Despite the Court's statement in Moses H. Cone

Memorial Hospital v. Mercury Construction Co. that such abstention is

to be rare and limited to 'exceptional' circumstances, many lower

courts continue to order abstention when there are parallel proceedings

pending in state courts. But the other lower federal courts refuse

Colorado River abstention unless there are truly exceptional

circumstances." Id. at 828-29 (footnotes omitted).

This court has traditionally been among those reluctant to

resort to the Colorado River doctrine, even in the more inviting

circumstance when the litigation pending in the federal court involves

a wholly state law dispute. See, e.g., Burns v. Watler, 931 F.2d 140

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(1st Cir. 1991). When the issue is one of federal law, the imperative

of exercising federal jurisdiction takes on its own special hydraulic

force. The Supreme Court has taught that the presence of federal law

questions "must always be a major consideration weighing against

surrender [of jurisdiction]." Moses H. Cone, 460 U.S. at 26 (footnote

omitted).

A stay in these circumstances begs a question of first

principles. Chief Justice Marshall long ago stated those principles

for purposes of federal appellate jurisdiction.

With whatever doubts, with whatever difficulties,
a case may be attended, we must decide it, if it
is brought before us. We have no more right to
decline the exercise of jurisdiction which is
given, than to usurp that which is not given.
The one or the other would be treason to the
constitution. Questions may occur, which we
would gladly avoid; but we cannot avoid them.
All we can do is, to exercise our best judgment,
and conscientiously to perform our duty.

Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 404 (1821).

Drained of unconvincing references to Colorado River factors,

what appears to be generating the choice to stay this litigation in

this court is the possibility that a reversal of the state Superior

Court decision in the Supreme Judicial Court of Massachusetts would

provide an adequate and independent state ground for this court to

avoid a problem of federal statutory construction which has created (in

only one of its independent branches) a split in the circuits and

disagreement among district courts. That possibility is not enough to

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justify a discretionary technique promising a lengthy delay.8 Whatever

our doubts, whatever the difficulties, we should decide the federal

question presented to us.

C. The Certification Expedient is a Less Damaging Alternative

Ultimately, resort to the Colorado River doctrine, if proper,

can be justified and measured only in terms of "wise judicial

administration." Colorado River, 424 U.S. at 818. Even if we are

entitled for some period of time to defer our obligations to exercise

8 The tortured subsequent history of Kartell v. Blue
Shield of Massachusetts, Inc., 592 F.2d 1191 (1st Cir. 1979), which the
majority cites, slip op. at 19, as illustrative of a circumstance in
which "Colorado River has special appeal," is more instructive on the
ways in which delay can flow from a stay. The decision to stay in
Kartell was made in 1979 by a divided panel in which Judge Aldrich for
the majority wrote that a prompter resolution of the state law issues
would be had in cases then pending in the Supreme Judicial Court where
the federal court plaintiffs were not parties than if questions were
certified from the federal court. Id. at 1195. Judge Coffin filed a
"dubitante" opinion taking the position that "even though the court
deferred certification 'in the interest of saving time and procedures'
such deferment threatens, if decision on pending state cases proves
unhelpful, to involve a needless delay. I would immediately certify."
Id. at 1196. Judge Coffin proved prescient. The pending state cases
did not resolve the federal issues. Questions were then certified by
the District Court and the Supreme Judicial Court answered them in
1981. The case finally returned to this court from the District Court
for decision on the merits in 1984 when Judge Breyer for the court
wearily observed "[i]n view of these legal and practical problems, and
the fact that this case has been pending in the federal courts for more
than seven years, we believe it simpler and more appropriate to proceed
directly to the antitrust merits, which, on our view of the case, are
dispositive." Kartell v. Blue Shield of Massachusetts, Inc., 749 F.2d
922, 924 (1st Cir. 1984).

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federal jurisdiction, the most efficient tool of judicial

administration to use is not a stay but certification to the state's

highest court. Certification of state law questions is a tool the

Supreme Court has, particularly of late, Arizonans for Official English

v. Arizona, 520 U.S. 43, 75-80 (1997), enthusiastically recommended for

courts faced with parallel proceedings. The parties themselves agree

on little else but that this would be an efficient means to obtain the

benefit of the Supreme Judicial Court's views and agree to its use by

us. It is a tool which recently provided prompt clarification

regarding the reach of Mass. Gen. Laws ch. 151B, the state disabilities

law principally at issue here, Dahill v. Boston Police Dep't, 434 Mass.

233 (2001), and has been used by this court on appropriate occasions.

See, e.g., Medical Prof'l Mut. Ins. Co. v. Breon Lab., Inc., 141 F.3d

372, 378 (1st Cir. 1998); Protective Life Ins. Co. v. Sullivan, 89 F.3d

1, 4-5 (1st Cir. 1996); Pyle v. South Hadley Sch. Comm'n, 55 F.3d 20,

22 (1st Cir. 1995).

The majority expresses reticence about making use of the

certification tool but its reasons are not compelling, particularly in

the face of an agreement between the parties that certification is an

efficient way to expedite final resolution of an issue that they have

variously been presenting in the federal and state courts. There is

little doubt, given the chronic underfunding of the state courts, that

prosecution of an appeal in the ordinary course will be a time

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consuming process. However, the briefing in the state Superior Court,

attached to the motion to stay papers, makes clear that the issue was

presented there as essentially a legal question for which recourse to

an elaborate factual record is unnecessary.

The state law question is precisely the type of issue the

certification process was designed to address in the interests of

saving "time, energy, and resources and helping build a cooperative

judicial federalism." Arizonans for Official English, 520 U.S. at 77

(quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)). We are

presumably staying our hand because the issue is one we think, in the

words of the Supreme Judicial Court's certification rule, "may be

determinative of the cause" pending before us. SJC Rule 1:03, § 1

(emphasis added). We are thus in the mainstream of the certification

rule. While the Supreme Judicial Court has warned of the danger of

hypothetical questions posed in the context of the interlocutory

proceedings by courts of first instance, see, e.g., Knapp Shoes v.

Sylvania Shoe Mfg. Corp., 418 Mass. 737, 738 n.1 (1994); Lumbermens

Mut. Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 687-88 (1990);

Canal Elec. Co. v. Westinghouse Elec. Co., 406 Mass. 369, 372 (1990),

I am aware of no instance in which that court has declined to answer a

question presented by this court in connection with our review of a

final judgment. Given the existence of a parallel final judgment in

the state Superior Court, the prospect that the issue will be treated

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as hypothetical is quite slender. To be sure, as the majority notes,

"[w]hether this situation meets the certification requirement is itself

an issue of Massachusetts law we should not," indeed, cannot,

definitively "decide." Slip op. at 23. But we will never find out

what the Supreme Judicial Court thinks about certification unless we

ask. My own experience with the certification process, see, e.g.,

Dahill v. Boston Police Dep't, 434 Mass. 233; Comm'r of Ins. v. Munich

Reinsurance Co., 429 Mass. 140 (1999), suggests no meaningful

impediment to SJC cooperation with certification here. To the

contrary, that court has been hospitable to the certification process.

As a former Chief Justice of the Supreme Judicial Court has observed,

"our certification process tends to facilitate state-federal relations.

On balance, the process has worked well in Massachusetts." Herbert P.

Wilkins, Certification of Questions of Law: the Massachusetts

Experience, 75 Mass. L. Rev. 256, 258 (1989).

I would prefer to decide the issues presented to us without

further delay. But in the absence of support for active exercise of

our jurisdiction, certification is to be preferred to a stay in this

case. If we are to surrender our jurisdiction to decide federal

questions for any time beyond what is necessary for us to reach the

issues on appeal in the ordinary course, it should be for the shortest

period that wise deployment of the several tools of judicial

administration can fashion.

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