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