USCA1 Opinion

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

"reverse".

delete "vacate" and

replace with

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

Lichten, Bryan Decker and

_______ ____________

Bell, Boyd & Lloyd,

___________________

Harold L.
_________

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,
SELYA,

plaintiffs seek

Circuit Judge.
Circuit Judge.
______________

a declaration that the

disability retirement scheme

Older Workers Benefit

101-433, 104

Stat. 978,

in

which

three

Massachusetts accidental

violates the Age Discrimination

Employment Act (ADEA), 29 U.S.C.

the

This case,

in

621-634 (1988), as amended by

Protection Act

presents two

(OWBPA), Pub.

questions

L. No.

for review

on

appeal:

a question of first

impression as to

the OWBPA's nonretroactivity provision; and

question concerning justiciability.

both of these

questions in

summary judgment

the

OWBPA did

dismissed the third

apply to

1994).

dismissal

We affirm the

of

The district court resolved

their

871 F.

Supp.

claims, and

I.
I.
_

See Riva
___ ____

1511, 1517-20

plaintiff's

further proceedings.

entered

simultaneously

as unripe.

summary judgment ruling,

the remaining

It

plaintiffs, determining that

plaintiff's claim

Commonwealth of Mass.,
______________________

a situation-specific

the defendants' favor.

against a pair of

not

the operation of

claim

(D.

v.

Mass.

but reverse the

and remand

for

The OWBPA
The OWBPA

Congress enacted the ADEA in 1967 to prohibit age-based

discrimination

employment.

in the

29 U.S.C.

"terms,

623(a).

exclusion for employee benefit

could

continue to

conditions,

or

privileges"

of

The law originally contained an

plans, providing that an employer

"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.
___

623(f)(2).

Employment

The Department

Opportunity

of Labor,

Commission

and, later,

(EEOC),

the Equal

interpreted

this

provision to require that age-based distinctions in benefit plans

be

cost-justified in

order to

exclusion.

See 29 C.F.R.
___

the issue,

the Supreme Court

qualify for

1625.10 (1988).

the shelter

of the

When confronted with

expanded the safe haven.

It held

that, under the ADEA, an employee challenging a benefit plan must

prove

that

intended

"the

to serve

fringe-benefit

discriminatory

the purpose

aspect

of

the

plan

provision

of discriminating

employment

actually

was

in some

non-

relation."

Employees Ret. Sys. v. Betts, 492 U.S. 158, 181 (1989).

___________________
_____

Public
______

On

October 16,

1990, Congress

thus reconfigured the exclusion.

benefits

squarely within

the

in

employee

benefits

Recognizing

the

potential

implications

must

Congress stipulated

as to states and their

two years after its passage.

the question

that the OWBPA

would not apply

be

ADEA,

cost-justified.

of these

changes

that the OWBPA

for

would not

political subdivisions until

See OWBPA
___

grappling with

of the

the earlier view that age-based

distinctions

take effect

OWBPA and

The amendments placed employee

protective custody

overturned Betts, and reinstated

_____

public employers,

enacted the

105(c).

Moreover, in

of retroactivity, Congress

at all to

"a series of

decreed

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).

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

accidental disability

(1989).

benefits.

But there

significantly

section

of creditable

years old at the time

and

receive

Gen. L. ch. 32,

benefits will

See id.
___ ___

7(2)(a)(ii).

7(2)(b ), added in

1987, affords

different treatment

ten years

retire

of an employee's

72% of her previous wages.

is a rub:

for employees

service and

who have

who are at

less

least 55

of accidental disability retirement. Under

section 7(2)(b ), an employee

her regular

may

See Mass.

Ordinarily, the amount

equal roughly

than

continue working

who fits this description receives

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,

retired based on age and years of service.1

i.e., if
____

she

____________________

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

accrued

fewer than

ten years

service shall be adjusted

the

month in

sixty-five

to

which
that

retirement had

on the last day of

he attains
to

which he

entitled . . .

if he were to be

superannuation

upon

the

7(2)(b ) (1989).

the age

of

would

be

retired for

attainment of

sixty-five . . . .

Mass. Gen. L. ch. 32,

of creditable

age

III.
III.
___

The Plaintiffs
The Plaintiffs

Albert Riva

Boston

in August

experiencing

of 1982.

had not

On August

transmitted

He retired

in April

a permanently disabling injury.

retirement, Riva

service.

commenced his employment with

yet accrued

ten

the City of

of 1992 after

At the time of his

years of

19, 1992, the Boston Retirement

creditable

Board (BRB)

a letter advising him that his benefits were subject

to

reduction under

later, after

Board

section

Riva had

implemented

7(2)(b ).

Approximately one

celebrated his sixty-fifth

the

law

and reduced

Riva's

year

birthday, the

benefits

from

approximately $2,130 per month to approximately $775 per month.

Nancy Pentland was employed by the Town of Andover from

February

disability

she

was

creditable

of

1981

until

she

retired

on November 30, 1988.

61 years

old

service.

but had

As

of

due

to

job-related

At the time of her retirement,

not

October

yet accrued

31,

1992,

ten

the

years of

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

December of 1989 until

a Boston school custodian from

March of 1991.

At the

age of 56, having

less

than

accidental

ten

years

disability

of

and began

effective February 20, 1993.

him of the

creditable

service,

receiving a

On June 22,

he

retired

on

monthly allowance

1994, the BRB notified

prospective applicability of section 7(2)(b )

to his

case.

is

not

Keenan was born on August 10, 1937, so his monthly benefit

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

both

Riva

is significant

and

Pentland

that, when

were

already

retirement benefits, but Keenan

statute's effective date

the OWBPA

took effect,

receiving

disability

whose retirement postdated the

was not.

IV.
IV.
__

The Litigation
The Litigation

Riva and Pentland commenced the instant action against,

inter
_____

Employee

alia,
____

the

Retirement

Commonwealth

of

Administration,

Massachusetts,

the

BRB,

and

the

the

Public

ARB

(collectively,

"the

Commonwealth").

declaratory, injunctive, and

the

Massachusetts

violated the

benefits

because it

based on

the

complaint

sought

compensatory relief, alleging

accidental

OWBPA

Their

disability

arbitrarily

recipient's age.2

retirement

reduced

Keenan

that

scheme

retirement

subsequently

joined the suit as an additional plaintiff.

The

parties

stipulated facts.

in

The

the Commonwealth's

cross-moved

for

summary

judgment

on

district court granted brevis disposition

______

favor

vis-a-vis Riva
_________

and Pentland,

and

____________________

2The
state

anti-discrimination

dismissed
appeal.

complaint also

included two
laws.

claims for

Both of

these

relief under
claims

were

on the plaintiffs' motion, and have no bearing on this

dismissed Keenan's claim as

1517-20.

unripe.

See
___

Riva, 871 F. Supp.

____

at

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,

retirement scheme,

OWBPA's grasp.

and

as it

the

Massachusetts

disability

affected those plaintiffs,

eluded the

See id.
___ ___

Keenan's case

easily vaults this hurdle.

Unlike Riva

and Pentland, he began receiving benefit payments only

OWBPA

had become fully effective.

within

view,

the confines

however, a

of section

were

not

scheduled to

Keenan's

alleged injury

was

claim was

three plaintiffs now appeal.

his claim does not fit

105(e).

different obstacle

benefits

accordingly, his

Thus,

be

unripe.

In the

loomed.

pared

both remote

after the

trial court's

Because Keenan's

for several

and contingent,

See id. at
___ ___

1517-18.

years,

and,

All

V.
V.
_

Standard of Review
Standard of Review

district

court's

resolution

of

question

of

statutory interpretation engenders de novo review in the court of

appeals.

See
___

Pritzker v. Yari, 42 F.3d 53,

________
____

cert. denied, 115 S.

_____ ______

17

F.3d 462,

472

65 (1st Cir. 1994),

Ct. 1959 (1995); United States

_____________

(1st Cir.

1994).

This

standard

v. Gifford,
_______

of review

applies to the district court's application of section 105(e)

the facts stipulated in the

trial

before

plenary

instant case.

court's determination

on

a paper

it lacks ripeness presents

review.

See
___

By the same

record

a question of

Ernst & Young v.

_______________

to

token, a

that the

case

law subject to

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

the

were reduced

effective date.

the payment

stream

pursuant to section

For the reasons

is exempt

7(2)(b ) after

that follow, we think that

from scrutiny

under the

federal

statute.3

We

construction

start

with a

case, the beginning

the statute, and when a

judicial

prosaic

precept:

point must be

"In

a statutory

the language of

statute speaks with clarity to

an issue

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,

words,

consult legislative history and other

aids to

the court need not

statutory

construction when

2594 (1992).

the words

of the

In other

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.

neither

create

interpretation.

an

See
___

ambiguity

nor

United States
_____________

lead

to

an

unreasonable

v. Charles George Trucking

________________________

Co., 823 F.2d 685, 688 (1st Cir. 1987).

In searching a statute's

___

text

for

pellucid

attribute to words

expression of

that are

their ordinary usage,

congressional

not defined in

the statute

see Baez v. INS, 41 F.3d

___ ____
___

1994), cert. denied, 63

_____ ______

intent,

we

itself

19, 24 (1st Cir.

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

context,

see
___

King v.
____

(1991).

Applying

St. Vincent's Hosp.,

____________________

these

unambiguously excludes

if that language

tenets, we

find

is taken in

502 U.S.

that section

Pentland's benefits from

215, 221

105(e)

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

pursuant

effective date

to

date and

that continue after

an arrangement

. .

"

that

OWBPA

was

105(e).

the effective

in

effect on

routinely defined as "a

group of usu[ally] three or

or

succeeding in

events

standing or

relationship to

Dictionary
__________

each other."

2073 (1986);

order

more things

and having

a like

accord Webster's Ninth New Collegiate

______ ________________________________

to include "a number

the same class coming

spatial or temporal succession");

the English Language

_____________________

is

Webster's Third New International

__________________________________

Dictionary 1074 (1989) (defining series

__________

things or events of

"series"

the

1748 (2d

one after another

of

in

The Random House Dictionary of

______________________________

ed.

10

1987) (defining

series

to

include

"a group

events,

etc., arranged

other

order

definitions,

or

or

a number

or

of

related or

occurring in

succession").4

similar

temporal, spatial,

Consistent

all the benefit payments

things,

with

or

these

to Pentland form a single

"series" as that word is used in section 105(e).

The

apparent.

like

The

relationship

disbursements,

of

both

the

payments

before

and

is

readily

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

the OWBPA's effective

these serial benefits before

date, continued to pay them afterwards, and did so pursuant to an

arrangement

statute

the payment scheme established in the Massachusetts

that was in full flower when the OWBPA took effect.

To

diminished

be

sure,

the

monthly

new "series" because her payments

recalculated on the basis of

affected

Pentland's

check

when she turned 65, but her argument that the reduced

benefits comprise a

by the

size of

text of the

the superannuation tables is belied

Massachusetts statute.

individual's benefits

which [s]he

would be entitled

were then

shall

It directs

be adjusted

under the

that an

"to that

to

[statutory scheme]

if

[s]he were to be retired for superannuation."

32,

7(2)(b ).

Pentland has

Mass. Gen. L. ch.

This language makes it transpicuously clear that

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

the

OWBPA's

stipend,

effective date.

not

the

nature

of

Only

the

both before and after

the

amount of

payments,

the monthly

changed when

she

attained age 65.

At

the expense of

carting coals to

that appellants' interpretation of

all intents and

purposes, a

profoundly flawed.

a "series" as comprising, for

"sequence of

would

gut the

identical items,"

To read section 105(e) in this

totally at odds with ordinary usage and,

absurd results.

Newcastle, we add

Carried

exemption

moreover, would lead to

it

reference to

an

external

source.

a reading

inapplicable to

stream of benefits that changed after the OWBPA's

by

way would be

to its logical extreme, such

by rendering

is

Thus,

commonplace adjustments (such as cost-of-living

any

effective date

even

the

most

increases) would

serve

to defeat the exemption.

why Congress

which patently believed that employers should have

a substantial degree

new

We cannot conceive of any reason

of protection against the application

of a

rule to payment protocols already in use to sustain existing

payment

schemes

would

have desired

to

take so

quixotic

position.

Section

"arrangement"

105(e)'s

is equally

section 7(2)(b ) and the

in existence at the

retirement

attention

unhelpful to

to

and

preexisting

Pentland's quest.

Both

relevant superannuation guidelines were

time that the ARB started

benefits,

to any

reference

the

parties have

subsequent changes

12

paying Pentland's

not

in either

directed

our

provision which

might

support

finding

"arrangement" into

entire stream of

pursuant

to

effect.

that

the

Commonwealth

In Pentland's case,

benefit payments

has been (and

put

a fresh

therefore, the

will be)

made

to a single arrangement that was crafted in whole prior

the OWBPA's

effective

date.

Consequently, section

105(e)

applies unreservedly.

Although the plain language

of section 105(e)

carries

the

day

and obviates

extrinsic

history

sources,

of the

precisely

any need

we

note

result

a detailed

in passing

OWBPA strongly

the

for

that

follows

from

rendering of section 105(e)'s plain language.

of

the

bill, submitted

contemplated that

would

ed. Sept. 17,

and

Senate

1990).

This

the

straightforward

The original draft

17, 1990,

which Pentland relies

approach provoked stout

version

Senator Pryor, chairman of

See 136 Cong. Rec. S13, 237 (daily

___

compromise.

ed. Sept. 24, 1990).

truncated

legislative

Congress intended

on September

the OWBPA provisions on

section 105(e) emerged as a

S13,603 (daily

about

to the

apply retrospectively.

the

suggests that

that

examination of

of

opposition,

See 136 Cong. Rec.

___

In responding to a question

the

nonretroactivity clause,

the Special Committee on Aging

and a

prime

sponsor of

the legislation,

intended, through the

reach benefits

applicable

See
___

we

effective date,

have said,

the drafters

compromise, to ensure that the OWBPA would

that were

id. at S13,609.
___

indicated that

discriminatorily structured

leaving

other benefits

after the

unaffected.

Senator Metzenbaum, whose original bill, as

featured broad

retroactivity, concurred

13

in this

interpretation of

the compromise language.5

So

did another key

supporter, Senator Hatch.6

In sum, it appears

not

intend

Pentland's,

the

which were

effective date

on

by the

statements

OWBPA

virtually certain that Congress did

to

apply

structured

to

benefit

and commenced

of the neoteric legislation.

appellants

in

by legislators

urging

payments,

an

prior to

the

The comments relied

opposite

who expressed

like

view

their desire

mainly

to avoid

"disruptions" in ongoing benefits, such as the remarks of Senator

Hatch, quoted supra note 6

_____

to

avoid

displacements that

are more plausibly read as

would

____________________

5Senator Metzenbaum stated:

be

caused by

wishing

wide-ranging

We

also

clarify

the effective

date

as it

relates to a stream of benefit

payments made

to

prior to

an individual

effective
stream

date.

from

We

exempt such

the

a benefit

of

the bill,

employer has not initiated

stream pursuant

after the

began

the requirements

provided that the

the

that

to a

modification made

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
version, "all the
benefit payments
136 Cong.

voiced his concern that,

new requirements would

that began

under the original

be applied to

before the bill's

Rec. S13,600 (daily ed.

ongoing

effective date."

Sept. 24, 1990).

Because he

feared this result, Senator Hatch concluded that "it was critical
to

amend

the

recipients of

bill

to

remove

[disability,

the

possibility

severance and

retirement]

could suffer disruptions in their payments."

fellow

solons

version of
individuals

that "[t]he

the bill

compromise"

ensured "that

that began prior to

will not be affected by this

that

Id.
___

current

benefits

He assured his

embodied

in the

final

ongoing benefit

payments to

the effective date

of the bill

legislation."

Id.; see also id. at

___ ___ ____ ___

S13,607 (similar; statement of Sen. Grassley).

14

retroactive application of the

level

benefit

disfavoring

OWBPA rather than as guaranteeing

rates, regardless

changes

in

benefits

of

the

circumstances, or

compelled

by

the

as

unamended

operation of preexisting retirement schemes.

We

that a stream

have exhausted this

issue.

of benefits does not become a

To conclude,

we hold

new "series" in the

contemplation

of

benefit amount

pursuant to

OWBPA

105(e) simply

is adjusted

because

by reference to

a directive contained in

the

monthly

an external

source

a preexisting arrangement.

Riva and Pentland are, therefore, fishing in an empty pond.

VII.
VII.
___

The Ripeness Paradigm

The Ripeness Paradigm
_____________________

We

presented

in

turn now

this

to

the more

appeal.

directly

affect

Keenan's

district

court determined

Since

stipend

that

to confer justiciability.

1517-18.

Before

of the

section

until

his claim

necessary

evaluating

vexing

two

7(2)(b )

the

year

this determination,

will not

2002,

lacked the

See Riva, 871

___ ____

issues

the

ripeness

F. Supp. at

we scout

the

legal landscape.

When

prospective

under

in

character,

a familiar

issue for

litigant

immediate

branch

relief

questions of

framework that

review and

should review be postponed.

136,

seeks

the

paradigm

is

ripeness

considers the

primarily

are analyzed

fitness

hardship to

the

of the

litigant

See Abbott Labs v. Gardner, 387 U.S.

___ ___________
_______

148-49 (1967); Ernst & Young, 45

_____________

of the

that

F.3d at 535.

"typically involves

15

The fitness

subsidiary queries

concerning

finality,

definiteness,

resolution of the challenge

sufficiently

developed."

critical component

contingent

Ernst
_____

extent

& Young, 45
_____

is whether "the claim

to

which

F.3d at

535.

One

involves uncertain and

occur as anticipated

or may not

Massachusetts Ass'n of Afro-Am. Police, Inc. v.

_____________________________________________

Boston Police Dep't,

_____________________

curiam).

the

depends on facts that may not yet be

events that may not

occur at all."

and

973 F.2d

A second important

the extent to which

18,

20

(1st

factor in the

the claim is bound up in

Cir. 1992)

(per

fitness calculus is

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

_________________________________

less

likely

to

do so

if

the

absence of

(1983), and

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

of

that enters into the assessment

fitness involves the presence or absence of adverseness.

State of R.I. v.
_____________

(1st Cir.),

Narragansett Indian Tribe, 19 F.3d

_________________________

cert. denied, 115 S. Ct. 298 (1994).

_____ ______

all

the

substantial controversy,

circumstances, show

between

that

parties having

685, 692-93

In the context

of prospective relief, this factor focuses on whether

alleged, under

See
___

"the facts

there

adverse

is

legal

interests,

of sufficient

issuance of a

immediacy and

declaratory judgment."

Pacific Coal & Oil Co.,

_______________________

312 U.S.

reality to

warrant the

Maryland Casualty Co.

_____________________

270, 273 (1941).

Whether

v.

16

particular case passes the test of adverseness may be

by

a variety

of considerations,

such as

whether all

influenced

affected

parties are before the court, see

___

39,

and

relief

whether the

through

Ernst & Young, 45 F.3d at 538_____________

controversy

decree

of

as

framed permits

conclusive

"specific

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

dilemma for

challenged action creates a

the parties[.]"

`direct and immediate'

W.R. Grace & Co. v.

_________________

360, 364 (1st Cir. 1992) (citation omitted).

side of the same

hardship to the

"granting relief

coin, and an inquiring

parties, may

would serve a

EPA, 959 F.2d

___

Utility is the flip

court, in assaying

find it revealing

to ask

useful purpose, or,

the

whether

put another

way, whether

assistance

the sought-after declaration would

in

setting

the

underlying

be of practical

controversy

to

rest."

Narragansett Indian Tribe, 19 F.3d at 693.

_________________________

Although it

not labor

or

is a

familiar bromide that

to protect a party against

contingent, see,
___

e.g.,
____

harm that is merely remote

Ernst & Young,

_______________

Massachusetts Ass'n of Afro-Am. Police,

_______________________________________

House v.
_____

play

courts should

45

F.3d

at

536;

973 F.2d at 20; Lincoln

_______

Dupre, 903 F.2d 845, 847 (1st Cir. 1990), there is some
_____

in

application

the

joints.

of a statute

For

example,

is open to

even

a charge

when

the

direct

of remoteness by

reason of a lengthy, built-in time delay before the statute takes

17

effect,

is

ripeness may be found as long as the statute's operation

inevitable (or nearly so).

Act Cases,
_________

419

U.S. 102,

See, e.g.,
___ ____

142-43 (1974).

Regional Rail Reorg.

____________________

And,

even when

the

direct application of such a statute is subject to some degree of

contingency,

collateral

hardship

the

statute

injuries

that

may

an

component satisfied.

impose

inquiring

See

Erwin

sufficiently

court

will

serious

deem

the

Chemerinsky, Federal

___

Jurisdiction
____________

collateral

2.4.2, at

effects

indirectly permits

can

to

private action

resources that would be

ed.

this

level

In general,

when

that causes present

largely or entirely wasted if

later resolved in an

Gas,
___

461 U.S. at

unfavorable way.

201; Duke Power Co. v.

_______________

U.S. 59,

81-82 (1978).

that in such murky waters generalizations

weighing

1994).

statute

harm, or

currently whether to expend substantial

were

Group, Inc., 438

___________

121-22 (2d

rise

when a party must decide

_______

of collateral effects is

call, to be made case by case.

VIII.
VIII.

the issue

See, e.g., Pacific

___ ____ _______

Carolina Envtl. Study

_____________________

We caution,

however,

are dangerous, and the

for the most

part a judgment

____

Applying the Paradigm

Applying the Paradigm
_____________________

Viewed against this backdrop,

made

we think that Keenan has

a satisfactory showing under both prongs of the Abbott Labs

___________

paradigm.

application,

Given

the

relative

the

purity

presence of all necessary

that Keenan

currently

of

the

certainty

legal

of

issue

the

presented,

parties before the court,

faces, and

18

the

statute's

hardship to

the

the dilemma

him

should

immediate

review be denied, we

conclude that he

has advanced a

ripe claim.

The paramount

in

his benefits

harm to Keenan

pursuant to

the eventual reduction

section 7(2)(b )

time, but its incidence seems highly probable.

has pointed

ultimate harm

65, (2)

or (3)

There

is

distant in

The Commonwealth

to three contingencies that might shield Keenan from

of this kind: (1) he might die before reaching age

he might no longer be disabled when he reaches that age,

the challenged

statute might

is no evidence in the record

be amended

prior thereto.

to suggest that any of these

three contingencies are likely to eventuate.

The life expectancy

of a man in his mid-50s is

States

roughly 20 years.

Bureau of the Census,

See, e.g.,
___ ____

United

Statistical Abstract of the United

__________________________________

States:
1994 Table 116, at 88 (114th ed.); Keenan's disability,
______________

according

Gen.

L.

to state law, is permanent and total, see, e.g., Mass.

___ ____

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,

litigant seeking

shelter behind

ripeness

defense

possibility

the repeal

must

demonstrate

more

that harm may be averted.

of a statute will

than

theoretical

The demise of a party or

always be possible in

any case of

19

delayed

enforcement, yet it is

without more,

unripe

if

will not

the

well settled that

render a

application

of

claim of

the

a time delay,

statutory invalidity

statute

is

otherwise

sufficiently

probable.

U.S. at 143;

Lake Carriers' Ass'n v. MacMullan,

_____________________
_________

503-08

(1972).

The

See Regional Rail Reorg. Act Cases, 419

___ _______________________________

degree

barometer of ripeness in

of

contingency

this respect.

406 U.S.

is

Cir. 1981)

important

Compare, e.g.,
_______ ____

Ariz. v. Atchison, Topeka, and Sante Fe R.R. Co.,

_____
________________________________________

402-03 (9th

an

(finding challenge

498,

State of
________

656 F.2d 398,

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

presence of a large

unlikely

to

claim unripe due in

part to the

number of contingencies, many of

materialize).

Here, the

relative

which were

certainty

of

Keenan's asserted injury indicates that his claim is suitable for

contemporaneous judicial review.

Three other circumstances buttress the

Keenan's claim is ready for adjudication.

mounts

a facial

challenge to the

stipulated record.

conclusion that

In the first place, he

state law,

and does

so on a

Thus, his claim is unabashedly legal, and the

district court is capable of resolving it with no further factual

exposition.

Second, and relatedly, the

defined

is

conclude

and

the

hypothetical

opinion

susceptible

matter,

facts,

to specific

without

and

controversy is narrowly

relief,

speculation

without

will prove superfluous.

much risk

or

that

adequate

reference

the

to

to

court's

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.

Indian Tribe,
____________

decree

19 F.3d

obvious in

special force in the

retirement

system.

at 693.

this

Not

only is

situation, but

this

context of a challenge to

In

See Narragansett
___ ____________

the utility of

utility also

has

a discriminatory

Lorance v. AT&T Technologies, Inc., 490

_______
________________________

U.S. 900 (1989), the Supreme Court considered the timeliness of a

suit challenging a seniority system

against women.7

time

that allegedly discriminated

The Court ruled that plaintiffs could sue at the

the seniority system was put in place, without awaiting the

adverse effects of

bargain,

its operation.

the Justices recognized

imposed a

"concrete harm"

benefits

of

speculative

a seniority

if only

plaintiffs

are by

their

upon the

that imposed "when

delivers an accident insurance policy

the

of the plan

"the

nature

employee's

for the particular employer."

seniority system to

In

even though

The Court then likened the harm imposed

an illegal

company

on the

system

905-06.

that the adoption

because they depend

continuing desire to work

907 n.3.

See id. at
___ ___

Id. at
___

by adoption of

an insurance

with a face value

of $10,000,

$25,000."

when what

has

been paid

for is

face value

of

been superseded

by

Id.
___

____________________

7Although

the holding

in

Lorance has
_______

statute, see Landgraf v. USI Film Prods., 114

___ ________
_______________
90 (1994)
that

(describing provisions of

development does

not affect

Court's opinion here.

21

S. Ct. 1483, 1489-

Civil Rights Act

the use that

of 1991),

we make

of the

Even though Lorance addressed

_______

a different issue

when

disparate impact violation of Title VII occurs for purposes of

establishing the

limitations period

Court's recognition

that the

may itself impose an injury.

can take

into account not

guidance in

the

adoption of a

discriminatory plan

So it is here:

a ripeness analysis

only the

reduced

value of Keenan's benefits,

state's

possible

endorsement

we find

of

harm that

arises from

but also the

age

the

harm from the

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

nail

down their

reduced future benefits.

plans for

At

age 58, people must

financial security

in

their golden

years.

of

Thus, the most immediate harm to Keenan comes in the form

an inability

prudently to

arrange his

Keenan anticipates that

his benefits

guesses

find

wrong,

he may

pension

that

Conversely, if

and

will

intervening seven

dawns.

accompany

he

be reduced,

and

to

a drastically reduced

attainment

of

the statute will

may needlessly

years, preparing

We believe that

his

If

inadequately prepared

present

he anticipates that

guesses wrong,

will not

himself

subsist on the unwanted birthday

fiscal affairs.

deprive

for a

age

be upheld,

himself in

rainy day that

this uncertainty and the

65.

the

never

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.

______
___________________

(allowing

private schools

school attendance

tendency to

at

to

attack

later

statute requiring

date because

shift students immediately to

Tribe of Indians v. Montana, 819

_________________
_______

510, 535-36 (1925)

of

the

statute's

public schools); Crow

____

F.2d 895, 903 (9th

(finding justiciability in challenge

public

Cir. 1987)

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

________________________
______________

625,

627-29 (8th Cir. 1985)

(finding ripeness based

F.2d

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

public import or constitutional

of either

dimension are implicated, see El

___ __

Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992),
__________
_______________

the lower court

exercise

did not

squarely reject Keenan's

of its discretion, nor should

the declaratory

judgment context

claim in

it have done so.

may serve

to relax

the

Though

a federal

court's storied obligation to

it by

306,

Congress, see Fuller Co.

___ __________

308 n.3

(1st

jurisdiction must

efficiency,

the

exercise the jurisdiction given to

Kirkwood,
________

Cir. 1986),

still

be

fairness, and the

litigants.

v. Ramon I. Gil, Inc., 782 F.2d

___________________

See
___

729 F.2d 61,

the

based on

decision not

careful

interests of both

to

exercise

balancing

the public and

Metropolitan Prop. & Liab. Ins. Co.

______________________________________

62 (1st Cir.

1984).

v.

In Keenan's case,

this calculus strongly favors a contemporaneous adjudication.

23

of

In

addition

the

utility

of

challenged statute

is free

of ambiguity and

its

to

operation.

adjudication

no

need

to

There

is

no

basis

will be hampered by

await

to

determination,

by

suppose

that

state

any

There is

court.

More

and local governments two years

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

legislative action though

deference

the

straightforward in

factual uncertainty.

clarification

importantly, Congress gave state

between the

present

nearly five years

not taken

have elapsed.

Any

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

"Section

7(2)(b )

is

the district courts

facially

discriminatory

state employees over the age of fifty-five."

____
at 1517.

We decline the invitation.

was based in
contest

part on

that Section

statement that

towards certain

Riva, 871 F. Supp.

____

The district court's dictum

its assumption that

7(2)(b ) is facially

"[d]efendants do

not

discriminatory under

the

ADEA as amended by the OWBPA."

the

Commonwealth vehemently

point.

denies

Under the circumstances, we

Id. at 1517 n.5.

___
that it

On appeal,

ever conceded

the

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