
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1749                                    ERNST & YOUNG,                                Plaintiff, Appellant,                                          v.                 DEPOSITORS ECONOMIC PROTECTION CORPORATION, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Jerome G.  Snider, with  whom Daniel F.  Kolb, Davis  Polk &               _________________             _______________  _____________          Wardwell, Peter J. McGinn, John E. Bulman, Tillinghast, Collins &          ________  _______________  ______________  ______________________          Graham, Kathryn  A. Oberly, and  J. Andrew Heaton were  on brief,          ______  __________________       ________________          for appellant.               Leonard Decof, with  whom Howard B. Klein and  Decof & Grimm               _____________             _______________      _____________          were on brief, for appellees.                              _________________________                                   January 25, 1995                              _________________________                    SELYA,  Circuit  Judge.   Plaintiff-appellant  Ernst  &                    SELYA,  Circuit  Judge.                            ______________          Young (E&Y), an accounting firm, asked the United States District          Court for  the District of Rhode Island  to strike down R.I. Gen.          Laws     42-116-40  (1993)  (the  Depco  Act)  on  constitutional          grounds.   The district court dismissed the complaint because the          controversy  lacked  ripeness,  and,  alternatively,  because  it          invited abstention.  E&Y appeals.  We affirm.          I.  BACKGROUND          I.  BACKGROUND                    In  January  1991,  Bruce  Sundlun,  newly  inaugurated          Governor  of   Rhode  Island,  proclaimed  a   banking  emergency          precipitated by  the  collapse  of  the Rhode  Island  Share  and          Deposit Indemnity Corporation  (RISDIC), a firm that  had insured          deposits  at  no  fewer  than  45  Rhode  Island-based  financial          institutions.1    Since  those  institutions  could  not  operate          legally without deposit insurance, see R.I.  Gen. Laws   19-11-9,                                             ___          the Governor closed them.                    The  lockout provoked  a  financial crisis,  preventing          depositors from withdrawing their funds and causing consternation          in a  myriad of  other ways.   Over  time, many  of the  affected          institutions  obtained insurance from sources such as the Federal          Deposit  Insurance Corporation,  and resumed operations.   Others          were  absorbed by  insured entities.   In  the end  ten financial                                        ____________________               1The  Rhode Island General Assembly chartered RISDIC in 1969          as  a private deposit-insurance corporation.  It began operations          in   1971,  subject  only  to  state,  not  federal,  regulation.          Depositors tended to view RISDIC as a state-sponsored enterprise,          and its proprietors   the banks and credit unions that dealt with          it   did nothing to dispel this misconception.                                          2          institutions were unable to reopen.  These financial institutions          had something  in common:   each of them had  followed uncommonly          adventurous  lending practices, and  had become insolvent.   They          were all placed into conservatorship.   The Rhode Island  General          Assembly  created a public  corporation, the  Depositors Economic          Protection  Corporation (Depco), to  act as the  receiver, manage          the  failed banks' estates,  marshal and liquidate  their assets,          repay  depositors, and seek  recovery from those  responsible for          the  fiasco.2   In addition,  Depco  served as  the receiver  for          RISDIC.                    A special  state commission charged  with investigating          the  banking  crisis  found  no  shortage  of  miscreants.    The          commission assigned  blame, inter  alia, to  former officers  and                                      _____  ____          directors  of the  failed institutions, certain  large borrowers,          the  state  Department  of   Business  Regulation,  the   General          Assembly, and a former governor.  The commission reserved some of          its  most stinging  criticism for  RISDIC and  those persons  who          occupied  prominent positions  in  the  RISDIC  hierarchy.    The          commission  included E&Y, which  had provided accounting services          to RISDIC  and to  many of  its  insureds, as  among the  parties          deserving special opprobrium.                    The  banks'  collapse  proved   to  be  a   depositor's          nightmare but  a lawyer's dream, spawning a plethora of lawsuits.          For  the  most part,  the depositors'  and creditors'  suits were                                        ____________________               2As of  the time the  parties' briefs were filed,  Depco had          managed to repay  93% of the affected depositors and to repay 90%          or more of the amounts owed to the remaining depositors.                                          3          consolidated  in a  series  of master  complaints  (one for  each          failed institution) docketed in the state superior court.   Then,          in early 1992, Depco and other plaintiffs filed a civil action in          superior court against E&Y and  sundry other defendants.  In that          suit, the plaintiffs charged E&Y with negligence and professional          malpractice.  Among  other things, they  alleged that E&Y  issued          unqualified  (or  insufficiently  qualified)  audit  opinions  to          RISDIC  and  a  number  of  RISDIC-insured  institutions  despite          obvious patterns  of pervasive  lending irregularities  and other          clear portents of impending financial disaster.                    In July of 1993, the General Assembly revised state law          as  it pertained  to the RISDIC  cases by passing  the Depco Act,          Pub.  L.  1993,  ch.  85.   The  Act  provides  that  potentially          responsible parties who in good faith achieve judicially approved          settlements with Depco  will not  be liable  for contribution  to          other  joint tortfeasors;  and  that,  if  a  putative  defendant          settles  with Depco  on this  basis, the  potential liability  of          other joint tortfeasors will be reduced only by the dollar amount          of the settlement, not by the settling party's  pro rata share of          the aggregate liability.3                                        ____________________               3The statute reads in relevant part:                    Notwithstanding any provisions of  law to the                    contrary,  a  person, corporation,  or  other                    entity who has resolved its liability to  the                    Rhode Island Depositors'  Economic Protection                    Corporation,  the  receiver of  Rhode  Island                    Share  and Deposit  Indemnity Corporation  or                    the receiver of any state-chartered financial                    institution in judicially-approved good faith                    settlement shall not be liable for claims for                                          4                    The  Act  transmogrifies  the law  of  contribution for          purposes  of the  RISDIC cases.   Prior  to its  passage, a  non-          settling  defendant in  a negligence  action    including  a non-          settling defendant  in a  RISDIC case    could, if  found liable,          seek contribution according to proportionate fault from all other          joint  tortfeasors, save only  those who had  entered settlements          that explicitly  released  all  claims  against  all  potentially          responsible parties  for the settling  tortfeasor's proportionate          share  of the overall liability.   See R.I.  Gen. Laws    10-6-7,                                             ___          10-6-8, 10-6-11 (1993).  In  other words, prior law ensured that,          if a joint  tortfeasor were held responsible for  (and paid) more          than its  ratable share  of damages,  it could seek  contribution          from other joint tortfeasors who had carried less than their fair          share of the load.  Under the Depco Act, however,  a non-settling          tortfeasor can be held liable for more than its pro rata share of          damages, yet find that it  has no remaining right of contribution          as to some (or, conceivably, all) of the overage paid.                    E&Y  did not  go  quietly  into this  dark  night.   It                                        ____________________                    contribution or equitable indemnity regarding                    matters addressed  in the  settlement.   Such                    settlement  does  not   discharge  any  other                    tortfeasors unless its terms  so provide, but                    it reduces  the potential  liability of  such                    joint  tortfeasors  by   the  amount  of  the                    settlement.          R.I.  Gen. Laws   42-116-40 (1993).   The idea behind the statute          is scarcely  original; the  Depco Act is  modeled on  the special          contribution   provisions   contained    in   the   Comprehensive          Environmental Response Compensation & Liability Act (CERCLA), see                                                                        ___          42  U.S.C.   9613(f)(2) -  (3) (1988); see  also United States v.                                                 ___  ____ _____________          Cannons  Eng'g  Corp.,  899  F.2d   79,  91-92  (1st  Cir.  1990)          _____________________          (explaining operation of CERCLA contribution provisions).                                          5          promptly  sued  in   the  federal  district  court,4   seeking  a          declaration that  the Depco Act,  on its  face and as  applied to          E&Y, transgresses  the Federal  Constitution.   Specifically, E&Y          urged the court to find that the Act violates the due process and          equal protection  clauses, and  that it  constitutes an  unlawful          bill of attainder.                    In  its   complaint,  E&Y  makes   various  allegations          designed  to highlight  the ostensible  unfairness  of the  legal          predicament  it now  faces.    Stripped  of  animadversions,  the          complaint brands the Depco Act as special legislation drafted for          the  specific purpose of depriving E&Y of preexisting substantive          rights in order  to intimidate E&Y and thereby  force a lucrative          settlement  of Depco's negligence action.5  Depco's strategy, E&Y          alleges,  is to  reach early  settlements  with most  potentially          responsible  parties,  limited   to  the  face  value   of  their          respective  liability insurance policies,  but to treat  E&Y as a          "deep pocket" from whom a huge settlement can be extracted.   E&Y          asserts  that  the  doubts  surrounding  the  viability  of  this          strategy,  and particularly the  profound uncertainties about the          Act's  constitutionality, are  currently  imposing a  substantial          hardship  on E&Y  in at  least two  ways.   First, the  situation                                        ____________________               4E&Y's complaint named Governor Sundlun, Depco,  and Depco's          executive  director as  defendants.   For  simplicity's sake,  we          refer to the defendants, collectively, as "Depco."               5E&Y  adds various details  designed to bolster  this claim,          including  a charge that Depco's specially retained trial counsel          lobbied for passage of the Act, telling legislators that changing          the  law  of  contribution  greatly  improved Depco's  bargaining          position vis-a-vis E&Y.                                          6          creates  coercive pressure  on E&Y  to settle  the pending  state          court suit.  Second, it deprives E&Y of the ability adequately to          appraise its potential exposure.                    The  defendants moved to dismiss the complaint for want          of subject matter jurisdiction on the ground that the case lacked          ripeness,6  and,   as  a  back-up,   invoked  several  abstention          theories.  The district court referred the motion to a magistrate          judge,  see Fed.  R.  Civ.  P. 72(b),  who  recommended that  the                  ___          complaint be dismissed  for want of subject  matter jurisdiction,          or, alternatively,  in the  exercise of  the court's  discretion.          E&Y objected to the magistrate's report.  On de  novo review, the                                                       __  ____          district   court  characterized  the   complaint  as  unripe  and          dismissed it under Rule 12(b)(1).  See E&Y v. Depco, 862 F. Supp.                                             ___ ___    _____          709 (D.R.I.  1994).   Judge Boyle stressed  that since  E&Y would          only be damaged by the Depco Act if a series of contingent events          occurred in the  future, it failed satisfactorily  to demonstrate          that "it has sustained or  is immediately in danger of sustaining          a direct injury."   Id. at 714-15.  The judge went on  to observe                              ___          that, were  the case ripe,  comity and federalism  concerns would          nonetheless prompt  him to abstain.7   See id. at  715-16 (citing                                                 ___ ___                                        ____________________               6On appeal, Depco advances the closely related argument that          E&Y lacks  standing.   Despite their  natural imbrication,  these          asseverations  are distinct; the  standing doctrine  is concerned          with who may bring a particular suit, while the ripeness doctrine          is concerned  with when a party may bring  suit.  Because we hold          that the controversy is not  ripe, we eschew any consideration of          whether E&Y also lacks standing.               7Judge Boyle also expressed his  view that the Depco Act did          not comprise a bill of attainder.   See E&Y, 862 F. Supp. at 716-                                              ___ ___          17.  The court's statements on  this score are gratuitous, and we                                          7          Younger v. Harris, 401 U.S. 37 (1971)).  This appeal ensued.          _______    ______          II.  STANDARDS OF REVIEW          II.  STANDARDS OF REVIEW                    A district court's determination  that it lacks subject          matter  jurisdiction  because  the  case before  it  is  not ripe          usually  presents a  question of  law reviewable  de novo  in the                                                            __ ____          court of  appeals.   See Broughton Lumber  Co. v.  Columbia River                               ___ _____________________     ______________          Gorge Comm'n,  975 F.2d 616,  618 (9th Cir. 1992),  cert. denied,          ____________                                        _____ ______          114 S. Ct. 60 (1993);  Shea v. Rev-Lyn Contracting Co., 868  F.2d                                 ____    _______________________          515, 517 (1st  Cir. 1989); Felmeister v. Office  of Atty. Ethics,                                     __________    _______________________          856 F.2d 529,  535 n.8 (3d Cir. 1988).  This case is no exception          to the rule.                    The  standard  of  review that  applies  to  a district          court's discretionary decision to withhold a declaratory judgment          is more  problematic.   Some courts  afford  plenary review,  but          others  affirm unless the  trial court's decision  constitutes an          abuse of  discretion.    Compare,  e.g.,  Allstate  Ins.  Co.  v.                                   _______   ____   ___________________          Mercier, 913  F.2d 273,  277 (6th  Cir. 1990)  (utilizing plenary          _______          review) and Gayle Mfg. Co. v. Federal Sav. & Loan Ins. Corp., 910                  ___ ______________    ______________________________          F.2d 574, 578  (9th Cir. 1990) (same) with,  e.g., Christopher P.                                                ____   ____  ______________          v. Marcus, 915 F.2d  794, 802 (2d Cir. 1990)  (utilizing abuse of             ______          discretion standard),  cert. denied,  498 U.S.  1123 (1991),  and                                 _____ ______                           ___          Kunkel v.  Continental Cas. Co.,  866 F.2d 1269, 1273  (10th Cir.          ______     ____________________          1989) (same).   We have captured a middle  ground, expressing our          preference for a standard of independent review when passing upon          a  trial  court's discretionary  decision  to  eschew declaratory                                        ____________________          express no opinion on them.                                          8          relief.   This standard  encourages the  exercise of  independent          appellate judgment  if it appears  that a mistake has  been made.          See El Dia, Inc. v. Hernandez Colon,  963 F.2d 488, 492 (1st Cir.          ___ ____________    _______________          1992);  National R.R. Passenger  Corp. v. Providence  & Worcester                  ______________________________    _______________________          R.R. Co., 798  F.2d 8,  10 (1st  Cir. 1986).   Thus,  independent          ________          review invokes a standard more rigorous than abuse of discretion,          but less open-ended than de novo review.                                   __ ____          III.  THE DECLARATORY JUDGMENT ACT          III.  THE DECLARATORY JUDGMENT ACT                    The Declaratory  Judgment Act,  28 U.S.C.     2201-2202          (1988), empowers a federal court to grant declaratory relief in a          case  of actual  controversy.   The  Act does  not itself  confer          subject matter  jurisdiction,  but, rather,  makes  available  an          added anodyne for disputes that  come within the federal  courts'          jurisdiction  on some  other basis.    See Franchise  Tax Bd.  v.                                                 ___ __________________          Construction Laborers Vacation Trust, 463 U.S. 1, 15-16 (1983).          ____________________________________                    The   Declaratory  Judgment   Act  serves   a  valuable          purpose.8   It is designed  to enable litigants to  clarify legal          rights and  obligations before acting upon them.   See Step-Saver                                                             ___ __________          Data  Sys., Inc. v.  Wyse Tech.,  912 F.2d  643, 649-50  (3d Cir.          ________________     __________          1990) (citing  legislative history).   Because the  Act offers  a          window of opportunity, not a guarantee of access, the courts, not          the  litigants,   ultimately  must  determine   when  declaratory          judgments are appropriate and  when they are not.   Consequently,                                        ____________________               8The Declaratory Judgment Act is mirrored by Fed. R. Civ. P.          57.  The statute and the rule are functionally equivalent.   See,                                                                       ___          e.g., 118 E. 60th  Owners, Inc. v. Bonner Props.,  Inc., 677 F.2d          ____  _________________________    ____________________          200, 205 n.8 (2d Cir. 1982) (treating Rule 57 as implementing the          remedy authorized by the Act).                                          9          federal courts  retain substantial discretion in deciding whether          to grant declaratory relief.   As we have stated, the Declaratory          Judgment Act "neither  imposes an unflagging duty upon the courts          to  decide declaratory judgment actions nor grants an entitlement          to litigants to  demand declaratory remedies."  El  Dia, 963 F.2d                                                          _______          at 493; accord  Green v. Mansour, 474 U.S.  64, 72 (1985); Public                  ______  _____    _______                           ______          Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 241 (1952).          ____________    __________                    Not surprisingly, then, an indigenous jurisprudence has          sprouted in the fields where the seeds of declaratory actions are          sown.  It  is not necessary to harvest  this jurisprudence today.          For present  purposes, it  suffices to sound  a note  of caution:          the discretion  to grant  declaratory relief  is to be  exercised          with  great  circumspection  when matters  of  public  moment are          involved, see Washington Pub.  Power Supply Sys. v. Pacific  N.W.                    ___ __________________________________    _____________          Power Co., 332 F.2d 87, 88 (9th Cir. 1964), or when a request for          _________          relief  threatens  to  drag  a  federal  court  prematurely  into          constitutional issues that are freighted with uncertainty, see El                                                                     ___ __          Dia, 963 F.2d at 494.          ___          IV.  RIPENESS          IV.  RIPENESS                    In  the first  instance,  the district  court dismissed          E&Y's action due to ripeness concerns.   See E&Y, 862 F. Supp. at                                                   ___ ___          713-15.  E&Y assigns error.  We discern none.                             A.  Examining The Ossature.                             A.  Examining The Ossature.                                 ______________________                    In  its seminal  opinion  on  the  application  of  the          ripeness  doctrine  in  the  declaratory  judgment  context,  the          Supreme Court explained that the doctrine's basic rationale is to                                          10          "prevent the courts, through avoidance of premature adjudication,          from entangling  themselves in  abstract disagreements."   Abbott                                                                     ______          Labs v. Gardner, 387 U.S. 136, 148-49 (1967).  While the doctrine          ____    _______          has a prudential  flavor, a test for ripeness is also mandated by          the constitutional requirement that federal jurisdiction  extends          only to actual cases or  controversies, see U.S. Const. art. III,                                                  ___            2; see also Wycoff, 344 U.S. at 242-45.  Consequently, although               ___ ____ ______          a court may,  within stated limits, dismiss  declaratory judgment          actions  in its  discretion, a  court has  no alternative  but to          dismiss an unripe action.                    Questions of ripeness that arise incident to challenged          governmental actions  in  the declaratory  judgment  context  are          gauged by means of a two-part test.  See Abbott Labs, 387 U.S. at                                               ___ ___________          149.  First, the court  must consider whether the issue presented          is fit for  review.  This branch  of the test  typically involves          subsidiary  queries concerning  finality,  definiteness, and  the          extent to  which resolution of  the challenge depends  upon facts          that  may not  yet be  sufficiently developed.   See,  e.g., W.R.                                                           ___   ____  ____          Grace  & Co.  v. EPA,  959 F.2d  360, 364 (1st  Cir. 1992).   The          ____________     ___          second  branch of  the Abbott  Labs  test requires  the court  to                                 ____________          consider the  extent to  which hardship looms    an  inquiry that          typically "turns  upon whether  the challenged  action creates  a          `direct and immediate' dilemma  for the parties."  Id.  (citation                                                             ___          omitted).                    The  relationship between these two parts of the test            fitness and hardship   has  never been precisely defined.  Though                                          11          some commentators have suggested that  either of the two showings          may suffice  to allay ripeness  concerns, see, e.g.,  Laurence H.                                                    ___  ____          Tribe, American Constitutional  Law   3-10, at 80  (2d ed. 1987),                 ____________________________          the predominant weight  of authority supports the  opposite view,          see, e.g.,  Poe v. Ullman,  367 U.S. 497, 509  (1961) (dismissing          ___  ____   ___    ______          for lack of  ripeness despite the  predominantly legal nature  of          the  question presented  and the  minimal  need for  an extensive          factual record); Cedars-Sinai  Medical Ctr., v. Watkins,  11 F.3d                           __________________________     _______          1573, 1581 (Fed. Cir.  1993) (holding that a ripe  case must meet          both prongs of Abbott Labs);  see also Erwin Chemerinsky, Federal                         ___________    ___ ____                    _______          Jurisdiction   2.4, at 124  (2d ed. 1994) (deriving examples from          ____________          Supreme Court jurisprudence).  In line with the majority view, we          hold that both prongs of the test ordinarily must be satisfied in          order  to  establish  ripeness.    In  so  holding,  however,  we          acknowledge  the  possibility  that there  may  be  some sort  of          sliding scale  under which,  say, a very  powerful exhibition  of          immediate hardship  might  compensate  for  questionable  fitness          (such  as a  degree of imprecision  in the  factual circumstances          surrounding the case), or vice versa.9                    We  end this  segment  of our  opinion  on yet  another          cautionary  note.   The ripeness  inquiry is  often  sui generis.                                                               ___ _______          Most  litigation has  idiosyncratic  features,  and  the  various          integers  that enter  into the  ripeness equation play  out quite          differently from case to case, thus  influencing the bottom line.                                        ____________________               9We need not probe this final point,  for E&Y has not made a          sufficiently  strong showing  under  either  of  the  test's  two          prongs.  See infra Part IV(C).                   ___ _____                                          12          See, e.g., State of Rhode Island v. Narragansett Indian Tribe, 19          ___  ____  _____________________    _________________________          F.3d 685, 693 (1st Cir.), cert. denied, 115 S. Ct. 298 (1994).                                    _____ ______                           B.  Putting Flesh on the Bones.                           B.  Putting Flesh on the Bones.                               __________________________                    Before determining whether  E&Y's initiative passes the          Abbott Labs test, we pause to flesh out the test's two parts.          ___________                    1.   Fitness.   We start with  bedrock:   "the critical                    1.   Fitness.                         _______          question  concerning  fitness  for review  is  whether  the claim          involves uncertain  and contingent events  that may not  occur as          anticipated or  may not  occur at all."   Massachusetts  Ass'n of                                                    _______________________          Afro-American Police, Inc.  v. Boston Police Dep't,  973 F.2d 18,          __________________________     ___________________          20 (1st  Cir. 1992) (per  curiam); accord Lincoln House,  Inc. v.                                             ______ ____________________          Dupre,  903 F.2d  845,  847  (1st Cir.  1990).   This  conclusion          _____          reflects an institutional awareness that the fitness  requirement          has a  pragmatic aspect:   issuing opinions based  on speculative          facts or a  hypothetical record is an aleatory  business, at best          difficult  and often impossible.  See, e.g., Calif. Bankers Ass'n                                            ___  ____  ____________________          v. Schultz, 416  U.S. 21, 56 (1974) ("This  Court, in the absence             _______          of a concrete fact situation in which competing associational and          governmental  interests  can  be  weighed, is  simply  not  in  a          position to  determine  [the  question  presented].");  Socialist                                                                  _________          Labor Party v.  Gilligan, 406 U.S. 583, 587  (1972) (finding sole          ___________     ________          remaining issue unripe  and dismissing appeal because  the record          lacks "the  sort of  proved or admitted  facts that  would enable          [the Court] to adjudicate  th[e] claim").  Nevertheless,  the raw          fact that events have not yet fully unfolded is not  always fatal          to justiciability.    In such  straitened  circumstances,  courts                                          13          sometimes exhibit a greater willingness to decide cases that turn          on legal  issues  not  likely  to be  significantly  affected  by          further factual development.  See,  e.g., Pacific Gas & Elec. Co.                                        ___   ____  _______________________          v. State Energy  Resources Conserv. & Dev. Comm'n,  461 U.S. 190,             ______________________________________________          201 (1983)  (finding fitness for judicial review supported by the          "predominantly  legal" nature  of  the question  presented); Duke                                                                       ____          Power Co. v. Carolina  Envtl. Study Group, Inc., 438 U.S. 59, 81-          _________    __________________________________          82 (1978) (finding  fitness for judicial review  supported by the          fact  that   further  factual  development  "would  not   .  .  .          significantly  advance [the judiciary's] ability to deal with the          legal issues presented nor aid . . . in their resolution").                    2.   Hardship.   The  second  half of  the Abbott  Labs                    2.   Hardship.                         ________                              ____________          inquiry focuses on  the hardship that may be  entailed in denying          judicial review.  In general,  the greater the hardship, the more          apt a court  will be to find  ripeness.  See, e.g.,  Pacific Gas,                                                   ___  ____   ___________          461  U.S.  at 201  &  n.13.   Though the  hallmark  of cognizable          hardship is  usually direct  and immediate  harm, other  kinds of          injuries occasionally may suffice.  For example, if the operation          of a challenged  statute is inevitable, ripeness  is not defeated          by the existence of a time delay before the statute takes effect.          See Regional  Rail Reorganization  Act Cases,  419 U.S. 102,  143          ___ ________________________________________          (1974).   And, moreover,  even when the  direct application  of a          statute is  to some degree  remote or contingent,  its collateral          effects may inflict  present injuries that, though  indirect, are          adequate to support a finding of ripeness.                    Thus,  in  Duke  Power, the  plaintiffs,  some  of whom                               ___________                                          14          resided near  a nuclear power  plant, sought a declaration  as to          the  unconstitutionality of the  Price-Anderson Act (which  set a          monetary cap  on damages  recoverable in  consequence of  nuclear          accidents).  Even  though the Court thought the  possibility of a          nuclear  accident   speculative,   it   nonetheless   found   the          controversy ripe.   The Justices reasoned  that the statute  made          feasible the  construction of  the plant, which,  in turn,  posed          risks (such  as fear of  an accident, exposure to  radiation, and          thermal pollution)  that would  not  otherwise exist.   See  Duke                                                                  ___  ____          Power, 438 U.S. at 81.  In the Court's view, these  injuries were          _____          sufficient  to support a finding of  ripeness.  See id. at 81-82;                                                          ___ ___          see also  McCoy-Elkhorn Coal Corp.  v. EPA, 622 F.2d  260, 263-65          ___ ____  ________________________     ___          (6th Cir. 1980).                    Pacific Gas illustrates that, in special circumstances,                    ___________          an injury sufficient  to impute ripeness may also be found when a          plaintiff must  presently decide to expend  substantial resources          which may turn out to be wasted, depending on later clarification          of the  law.    There,  the  Court determined  that  a  group  of          utilities could  challenge a state  law imposing a  moratorium on          the construction of  nuclear power plants.  See  Pacific Gas, 461                                                      ___  ___________          U.S. at 197-200.   Noting the long lead time and  the millions of          dollars  that  had  to  be  expended simply  to  proceed  to  the          licensing  stage in  the  course of  developing  a nuclear  power          plant,  see  id.  at  201  n.13, the  Court  envisioned  enormous                  ___  ___          hardship were it  to require the  industry to chart  a course  of          action without knowing whether the moratorium was valid.                                          15                    Once  again, we  end with  watchful words.   A  court's          assessment of  hardship need not  be phrased  solely in  negative          terms.  The key question involves the usefulness of a declaratory          judgment,  that is, the  extent to which  the desired declaration          "would  be  of  practical assistance  in  setting  the underlying          controversy  to  rest."   Narragansett  Tribe,  19  F.3d at  693.                                    ___________________          Hence, courts should not become mired in the frequently sophistic          distinction  as  to  whether  refusing  declaratory  relief  will          actually impose a hardship or merely fail to confer a benefit.                                C.  Applying the Test.                                C.  Applying the Test.                                    _________________                    Using  Abbott  Labs as  the  compass by  which  we must                           ____________          steer, we conclude, as did  the district court, that E&Y's claims          are  unripe.   First,  the  claims are  not  now fit  for federal          judicial review.10   Second, postponing an adjudication  will not          work a substantial hardship.                                        ____________________               10State judicial review is, however, in the offing.  Shortly          before  we heard  oral argument,  Depco asked the  state superior          court to  certify questions  anent the  constitutionality of  the          Depco Act to the state supreme court.  Depco made the motion in a          tort case  it had commenced  involving the collapse of  the Brown          University Employees Credit  Union, a RISDIC-insured institution.          Over E&Y's objection   E&Y is a third-party defendant in the suit            the superior  court granted Depco's motion.   The state supreme          court  received the  certified  questions,  paired  them  with  a          strikingly similar  set of  constitutional issues  limned by  the          Governor in a  pending request for an advisory  opinion, see R.I.                                                                   ___          Const.  art. X,    3  (authorizing the  governor to  request such          advisory  opinions from the state supreme court), and promulgated          a   consolidated  briefing  schedule.    Although  E&Y  correctly          maintains that announcing  a briefing schedule is  not tantamount          to reaching  the merits  of the  certified questions, it  appears          likely that  the Rhode Island  Supreme Court will soon  hear oral          arguments.                                          16                    1.  Fitness.   On the fitness prong, E&Y points  to the                    1.  Fitness.                        _______          fact that its complaint challenges the Depco Act both on its face          and   as  applied.     The   former  claim,   it  tells   us,  is          quintessentially legal  in nature, and,  therefore, suitable  for          immediate judicial review.   See, e.g., Pacific Gas,  461 U.S. at                                       ___  ____  ___________          201; Duke Power, 438 U.S. at 81-82.  We believe that this is  too               __________          simplistic  a  view,  for  it focuses  narrowly  on  the  claim's          susceptibility to resolution and turns a blind eye to the related             but equally important    matter of whether judicial resolution          is appropriate here and now.                    The notion  that disputes  which turn  on purely  legal          questions are always  ripe for judicial review  is a myth.   Even          when the "legal" emphasis of  a particular claim is sufficient to          mask  gaps in  the factual  record,  a court  will find  ripeness          lacking  if  the anticipated  events  and injury  are  simply too          remote to  justify contemporaneous  adjudication.   See Hodel  v.                                                              ___ _____          Virginia Surface Mining & Reclam.  Ass'n, Inc., 452 U.S. 264, 304          ______________________________________________          (1981); Lincoln House, 903 F.2d at 847; Benson v. Superior Court,                  _____________                   ______    ______________          663 F.2d  355, 360-61 (1st Cir. 1981).  Put bluntly, the question          of fitness does not pivot solely on whether a court is capable of          resolving  a claim intelligently, but also involves an assessment          of whether it is appropriate for the court to undertake the task.          Federal  courts cannot    and  should  not    spend their  scarce          resources  in  what  amounts  to  shadow  boxing.    Thus,  if  a          plaintiff's  claim,  though  predominantly  legal  in  character,          depends upon future events that  may never come to pass, or  that          may not occur in  the form forecasted, then the  claim is unripe.          See Mass. Ass'n of Afro-American  Police, 973 F.2d at 20; Lincoln          ___ ____________________________________                  _______                                          17          House,  903 F.2d  at 847; see  also Maryland Cas.  Co. v. Pacific          _____                     ___  ____ __________________    _______          Coal &  Oil Co.,  312 U.S.  270, 273  (1941) (admonishing  that a          _______________          declaratory  action is not ripe  unless "the facts alleged, under          all  the  circumstances,   show  that  there  is   a  substantial          controversy .  . .  of sufficient immediacy  and reality").   For          this reason, the mere  fact that E&Y  asserts a challenge to  the          Depco Act on its face, without more, cannot carry the day.                    Here, there is very little more:  E&Y's claim lacks the          needed dimensions of immediacy and reality.  The challenge is not          rooted  in  the  present,  but  depends on  a  lengthy  chain  of          speculation as  to what the  future has  in store.   Tracing  the          links in this  chain demonstrates their fragility.   In order for          E&Y to  be harmed by the  operation of the statute,  these events          must come to pass:  (1) at least one person, firm, or corporation          other than E&Y  must admit  fault, or  be found to  have been  at          fault,  and must have  caused recoverable damages  arising out of          the  banking crisis;11  (2)  that other  party  must settle  with          Depco; (3) the settlement  must be entered into in good faith and          approved by a competent court; (4) under the bargained terms, the          settlor  must pay  less  than  its pro  rata  share, measured  by          relative fault; (5) perhaps most critically, E&Y   which, to this                                        ____________________               11Depco  apparently  has  reached  one  settlement  that  is          expressly conditioned on  the constitutionality of the  Depco Act          being upheld by  the Rhode Island Supreme Court.   See supra note                                                             ___ _____          10.   In the settlement  papers the settling  defendants disclaim          any  wrongdoing,  and Depco  agrees  not  to  treat the  fact  of          settlement as  an admission  of liability.   The more  widespread          this pattern of  settlement becomes, the more arduous  it will be          to fulfill the "other tortfeasor" requirement.                                          18          date, has steadfastly denied fault    must be found to  have been          negligent, and  its negligence  must be found  to have  caused or          contributed to the damages; (6)  Depco must attempt to collect an          amount greater than  E&Y's pro rata share  of the damages;  (7) a          court must find  E&Y liable for, and order it to pay, the tribute          demanded; and  (8) E&Y  must then seek  contribution from  one or          more of  the "underpaying"  joint  tortfeasors (who,  presumably,          will interpose the  statute as a defense).  This is a long string          of contingencies    so long  that E&Y's assertion of  fitness for          judicial review trips over it and falls.                    Courts should always be hesitant to answer hypothetical          questions.  See  Poe, 367 U.S.  at 503.  That hesitancy does  not                      ___  ___          evaporate  merely  because  a  suit  is couched  as  a  plea  for          declaratory relief.   See, e.g., Aetna Life Ins.  Co. v. Haworth,                                ___  ____  ____________________    _______          300 U.S. 227, 240-41 (1937) (explaining that courts, in the guise          of declaratory judgment, should not issue opinions "advising what          the  law would  be upon  a  hypothetical state  of facts").   The          manifold  uncertainties  that  attend this  case  in  its present          posture  bring to  mind this  principle:   even though  the legal          question presented by E&Y's facial  challenge to the Depco Act is          not  likely to  be placed  in  sharper focus  by further  factual          development, the claim is unripe  because any application of  the          challenged  statute to E&Y  depends on serendipitous  events that          may not occur as anticipated   or may not occur at all.  The case          that E&Y argues is, at this stage, largely hypothetical, and such          cases are  seldom fit for  federal judicial review.   Cf. William                                                                ___                                          19          Shakespeare,  Macbeth,  act   I,  sc.  iii,  ll.   133-34  (1605)                        _______          (reminding  readers that  "present fears  are  [often] less  than          horrible imaginings").                    This  recital does not  come close to  exhausting E&Y's          problems on the  fitness prong of the Abbott Labs test.  Over and                                                ___________          beyond   the  potential   waste   of  judicial   resources   that          entertaining a remote and speculative claim would risk, there are          other telltale signs  that a finding of fitness  is not warranted          here.  We mention two such indicators.                    The first telltale  has a prudential cast.   Were we to          permit E&Y's  action to be  decided now, we  would be  setting in          motion  a constitutional adjudication that  not only could have a          thunderous impact  on important  state interests  but that  might          well prove to be completely  unnecessary (if, say, E&Y were later          found to have exercised due care,  or if the parties settled  for          an  amount  that did  not  exceed  E&Y's pro  rata  share  of the          recoverable damages).   Courts should strive to  avoid gratuitous          journeys through forbidding constitutional terrain.  See Poe, 367                                                               ___ ___          U.S.  at 502-04; see  also El Dia,  963 F.2d  at 494 (counselling                           ___  ____ ______          that  "[u]ncertain  questions  of  constitutional  law  should be          addressed only when absolutely necessary").                    A second disincentive  to a finding of  fitness relates          to  the  absence   of  other  parties  having  a   stake  in  the          controversy.    E&Y  has  sued  a  stage  agency  and  two  state          officials.  See supra note 4.   While we do not doubt that  these                      ___ _____          parties will defend the Act's constitutionality, E&Y's suit lacks                                          20          full adverseness.   See generally Narragansett Tribe,  19 F.3d at                              ___ _________ __________________          692-93  (discussing  adverseness  requirement).12    We   explain          briefly.                    The real parties  in interest are presumably  the other          joint  tortfeasors  (if  any  there  be).    After  all,  because          tortfeasors are jointly  and severally liable under  Rhode Island          law,  Depco can  collect the  total  amount of  damages from  E&Y          regardless  of  what  regime   governs  tortfeasors'  rights   of          contribution.  Thus, Depco's only  interest in the Act relates to          its efficacy as a negotiating tool.                    It follows that,  if E&Y is harmed at  all, the parties          most directly  adverse to  it will  be underpaying tortfeasors             those who settle for less than their proportionate shares and who          would, without the prophylaxis  of the Depco Act, face  liability          to overpaying tortfeasors for contribution.  These persons cannot          be made parties to this litigation now because there is no way of          predicting at this early date who they will  be   or even if they          will exist.   Hence, E&Y's action,  under current conditions,  is          incompletely  adverse.   This  is  a  serious indictment,  for  a          lawsuit that is hobbed in this  manner is much less likely to  be                                        ____________________               12E&Y touts  Narragansett Tribe,  a case  in which  we found                            __________________          disputed  issues ripe, as  directly applicable precedent.   We do          not agree.  There,  unlike in this  case, the state's suit  fully          satisfied the  adverseness requirement.  See  Narragansett Tribe,                                                   ___  __________________          19  F.3d at  692-93.   Other  distinctions  abound; the  arguably          unripe issues in  that case were  not of constitutional  stature,          the  public interest  favored immediate adjudication,  comity was          not  a problem  (as,  there,  unlike here,  the  state urged  the          federal court to proceed), the hardship that would flow from non-          adjudication was  starkly apparent, and  the utility of  a prompt          decision was more easily discernible.                                          21          ripe for judicial  review.13  See Connecticut Mut.  Life Ins. Co.                                        ___ _______________________________          v. Moore, 333 U.S. 541, 549-50 (1948) (considering the absence of             _____          affected parties relevant to ripeness).                    We think it is reasonably  plain from what we have said          that  E&Y's claim,  as it  now stands,  is not  only incompletely          adverse,  but also remote, speculative, premature, and lacking in          practical value.   These  factors, coupled with  E&Y's desire  to          hurry  the  federal  courts   toward  a  tangled   constitutional          adjudication that  may, in the  end, prove to be  inutile, render          its  suit inappropriate  for immediate  judicial  review.   Ergo,          E&Y's challenge fails to satisfy  the fitness prong of the Abbott                                                                     ______          Labs test.14          ____                    2.   Hardship.   By like  token, we  do not  think that                    2.   Hardship.                         ________          E&Y's case passes muster under the hardship prong of Abbott Labs.                                                               ___________          E&Y alleges that  it is currently suffering two  kinds of adverse          effects  from the  Act,  namely,  increased  pressure  to  settle          Depco's suit and  an inability to evaluate  its exposure therein.                                        ____________________               13The  absence of affected parties also has implications for          the hardship vel non of  denying review, see infra Part IV(C)(2).                       ___ ___                     ___ _____          Even if  E&Y were  to  prevail in  the instant  action, it  seems          likely that settling  joint tortfeasors, not parties  here, would          be  entitled to relitigate  the Depco Act's  constitutionality in          defending  subsequent contribution actions  brought by E&Y.   See                                                                        ___          NLRB v.  Donna-Lee Sportswear Co.,  836 F.2d 31, 33-34  (1st Cir.          ____     ________________________          1987)  (explaining requirements  for  collateral estoppel);  E.W.                                                                       ____          Audet  & Sons, Inc.  v. Fireman's Fund  Ins. Co., 635  A.2d 1181,          ___________________     ________________________          1186-87 (R.I. 1994) (similar; elucidating Rhode Island law).               14We   have   discussed   only  E&Y's   challenge   to   the          constitutionality  of the Depco  Act on its face.   To go further          would be supererogatory.   Because the facial challenge  is unfit          for review, it follows a fortiori that the "as applied" challenge                                 _ ________          to a  freshly minted  statute that  has yet  to  make its  maiden          voyage is also unfit.                                          22          These harms are indirect.   And although it is true  that present          indirect  effects occasionally may wreak a sufficient hardship to          support a finding  of ripeness, see, e.g., Pacific  Gas, 461 U.S.                                          ___  ____  ____________          at 201, the effects of which E&Y complains are not so pernicious.          There  is  quite  a difference  between  increasing  the  risk of          exposure  to  radiation,  Duke  Power,  438 U.S.  at  81-82,  and                                    ___________          increasing the difficulty of evaluating a money damages claim for          settlement purposes.                    The uncertainty  of which  E&Y complains  in this  case          arises in  the context of  bilateral negotiations, not  yet under          way, in  which opposing parties  will explore the  possibility of          settling  a  hotly disputed  case  based partly  on  the expected          results of  the litigation.   That situation  presents a  type of          hardship  that is qualitatively different than those displayed in          Pacific Gas  and Duke Power,  for resolving the challenge  to the          ___________      __________          Depco Act will help the  challenger only marginally.  Either way,          E&Y still will  be faced with the incubus  of pending litigation.          Either way,  E&Y still will  have to make an  evaluative judgment          anent  the  desirability  of  settlement on  various  terms     a          judgment that  depends on  many factors other  than its  right to          contribution (and, accordingly,  on many factors that will not be          clarified  by  an  immediate   determination  of  the   statute's          constitutionality).  The usefulness that may satisfy the hardship          prong of Abbott Labs  is not met by a  party showing that it  has                   ___________          the opportunity to move from a position of utter confusion to one          of mere befuddlement.                                          23                    This is  not to  deny that  a declaratory  decree might          have  some utility.   If  the  declaratory action  proceeds to  a          conclusion,  the parties  will  obtain  an  additional  piece  of          information  that  will  help  them  to  determine  a  settlement          strategy.  The  point, however, is that  E&Y   though it  will be          better informed   still  will not be spared the need  to make the          very sort of evaluative  judgment that it tells us it is striving          to avoid.   What  is more,  E&Y still  will not  control its  own          destiny in respect to settlement,  for Depco might (or might not)          be willing to settle on  E&Y's terms, and other tortfeasors might          (or  might not)  leave themselves  open  to contribution  claims,          regardless of whether the declaratory judgment action proceeds.                    The limited utility of the judgment that E&Y seeks here          is  highlighted  by the  fact  that the  "value"  of  a case  for          settlement purposes is always  a moving target.   Phrased another          way, settlement  value  is at  best  an estimate,  subjective  in          nature, reflecting  the worth  that the  parties themselves,  for          myriad reasons,  attach to  their case.   See Mathewson  Corp. v.                                                    ___ ________________          Allied Marine  Indus., Inc., 827  F.2d 850, 855 (1st  Cir. 1987).          ___________________________          It follows inexorably that the settlement value of  Depco's claim          against E&Y will not be determined  by the incidence of rights of          contribution  alone.  See  generally Note, Private  Settlement as                                ___  _________       ______________________          Alternative Adjudication:  A Rationale for Negotiation Ethics, 18          ________________________   __________________________________          U. Mich. J.  L. Ref. 503, 515  n. 16 (1985) (explaining  that one          cannot "presum[e] that  projected legal rights are  the principal                                            _____          determinants  of   negotiated  agreements.   .  .   .     [O]ther                                          24          considerations  incident to  bargaining power,  such  as relative          financial  strength and  eagerness  to  avoid  trial,  are  often          vitally important  to both  the process  and ultimate content  of          private settlements").   Because settlement evaluations typically          "are   the   product   of   intangible   criteria    which   defy          quantification,"  Mathewson,   827  F.2d  at   855,  the  present                            _________          uncertainty will only  be lessened somewhat, not  avoided, should          the action proceed.15                    Of course, a  litigant's plaints of hardship  cannot be          assessed in  a vacuum.   Rather, a  claim of hardship  demands an          assessment  of the  complainant's  position in  light of  all the          attendant circumstances.   See State Farm Mut. Auto.  Ins. Co. v.                                     ___ _______________________________          Dole, 802 F.2d 474, 479 (D.C. Cir. 1986) (noting that application          ____          of  Abbott Labs  is not  "a matter  of weaving  complicated legal              ___________          distinctions divorced  from reality,"  but, rather, requires  the          exercise of  "practical common sense") (internal  quotation marks          omitted), cert.  denied, 480  U.S. 951  (1987); cf.  Narragansett                    _____  ______                         ___  ____________          Tribe,  19 F.3d  at  692-93  (explaining  that the  inquiry  into          _____          adverseness  likewise requires an assessment of all the attendant                                        ____________________               15It  perhaps bears noting  that the lack  of certitude both          helps and  hurts E&Y.   On one  hand, the  uncertainty admittedly          generates pressure on  E&Y to pay more by way of settlement.  But          on the  other  hand, the  uncertainty  also encourages  Depco  to          settle for  less  than it  would  demand if  it  knew beyond  any          peradventure of doubt that the Act would withstand constitutional          scrutiny.  By the same  token, a resolution of the constitutional          question would cut both ways.  If  a court upholds the Depco Act,          E&Y probably will be faced with the prospect of paying more for a          release,  whereas, if a  court invalidates the  Act, E&Y probably          will  be able to pay less.  This shifting array of possibilities,          tilting first  in one  direction and then  in the  other, further          dilutes E&Y's claim of an intolerable hardship.                                          25          circumstances).   Here,  three facts  soften the  sharp edges  of          E&Y's professed hardship, and, therefore, counsel restraint.                    First,  the  contingent  nature   of  E&Y's  claim  has          implications  for  hardship  as  well  for  fitness.   Given  the          stretched chain of events that  must transpire before the Act can          harm E&Y, and the speculative nature of many of those events,  we          remain  unconvinced either  that E&Y's  ability  to negotiate  is          unfairly  handicapped  or that  its  ability  to settle  will  be          substantially  enhanced  by  an   immediate  decision  about  the          constitutionality of the  Act.  Second, E&Y is  not without other          options.  Proceedings are underway  in the state court that offer          a  vehicle for the expedited constitutional adjudication that E&Y          seeks, unaccompanied by the disadvantages  that deter us in  this          case. See  supra  note  10.    E&Y is  already  a  party  to  the                ___  _____          underlying state-court litigation  and can, if  it chooses to  do          so, participate in the proceedings before           the  Rhode  Island  Supreme  Court.     Finally,  as  some  other          defendants  reportedly have done, E&Y can enter into negotiations          with Depco aimed at fashioning a settlement that is contingent on          an  adjudication of the Act's constitutionality.   See supra note                                                             ___ _____          11.                    In  sum,  the  Depco  Act does  not  work  a sufficient          hardship, gauged  by present  effects, to  justify  a finding  of          ripeness.    Though  E&Y  may  feel some  discomfiture  over  the          threatened impairment of  its anticipated right to  contribution,          the burden of  which it complains is for the most part indigenous                                          26          to  the  litigation  process,  and,  thus,  it   cannot  be  made          weightless by the desired declaratory relief.          V.  CONCLUSION          V.  CONCLUSION                    We need  go no further.16   E&Y yearns for  the blossom          when only  the  bud  is ready.    Because its  challenge  to  the          constitutionality  of the Depco Act satisfies neither the fitness          nor  the hardship prong  of the Abbott  Labs test, it  is not yet                                          ____________          ripe  for federal  judicial review.    Accordingly, the  district          court's  dismissal of E&Y's complaint  for lack of subject matter          jurisdiction must be          Affirmed.          Affirmed.          ________                                        ____________________               16Although  lack of ripeness is dispositive  here, we do not          in any  way suggest that  the lower court's alternate  ground for          dismissal    abstention    lacks  force.   In particular,  to the          extent that the court's abstention ruling rests on the discretion          provided by the Declaratory Judgment  Act, see, e.g., El Dia, 963                                                     ___  ____  ______          F.2d  at  493-95, it  appears  fully  sustainable.   As  we  have          indicated, the constitutional questions  presented by a challenge          to the Depco Act are of great import  to Rhode Island, and lie at          the core of the  massive litigation that is  proceeding glacially          in its court  system.  Even if no  individual abstention doctrine          requires federal courts to forgo review   a matter on which we do          not opine    the comity and federalism concerns  that animate the          various  doctrines  strongly  suggest  that  dismissal  of  E&Y's          declaratory action mirrors the course of prudence.                                          27
