IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________________________________________________ No. 95-1066 __________________________________________________________ ALBERT RIVA, et al., Plaintiffs - Appellants, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants - Appellees. __________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts __________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________________ JAMES R. NEELY, JR. Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 Washington, DC 20507 (202) 663-4736 TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 3 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . 3 Nature of the Case and Course of Proceedings. . . . . . . 3 Statement of Facts. . . . . . . . . . . . . . . . . . . . 4 District Court Decision . . . . . . . . . . . . . . . . . 6 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 KEENAN'S ADEA CHALLENGE TO MASSACHUSETTS' POLICY OF REDUCING THE DISABILITY RETIREMENT BENEFITS OF PERSONS WHO BECAME DISABLED AFTER THEY ARE 55 IS RIPE EVEN THOUGH KEENAN'S REDUCTION HAS NOT YET TAKEN EFFECT.. . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) . 11 Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S. 939 (1971) . . . . 9 Chardon v. Fernandez, 454 U.S. 6 (1982) . . . . . 5 Davis Forestry Corp. v. Smith, 707 F.2d 1325 (11th Cir. 1983) . . . . . . . . . . . . . . . . 2 Delaware State College v. Ricks, 449 U.S. 250 (1980) . 5 EEOC v. City Colleges, 944 F.2d 339 (7th Cir. 1991) . 9 El Dia, Inc. v. Hernandez Colon, 963 F.2d 488 (1st Cir. 1992) . . . . . . . . . . . . . . . . 13-14 Ernst & Young v. Depositors Econ. Protection Corp., 1995 WL 20852, at *3 (1st Cir. Jan. 25, 1995) . . 3,12-14,16 Lincoln House, Inc. v. Dupre, 903 F.2d 845 (1st Cir. 1990) . . . . . . . . . . . . . . . . 7, 16 Lorance v. AT & T Technologies, Inc., 490 U.S. 900 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 7,9-11 Massachusetts Association of Afro-American Police, Inc. v. Boston Police Dep't, 973 F.2d 18 (1st Cir. 1992) 13 McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992) . . 2 New York v. United States, 112 S. Ct. 2408 (1992) . . 15 Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983) . . . . . . . . . . . . . . . 11, 15 Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685 (1st Cir.), cert. denied, 115 S. Ct. 298 (1994) . . 12 Rosen v. Public Service Electric & Gas Co., 477 F.2d 90 (3d Cir. 1973) . . . . . . . . . . . . . 9 Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994) . . . . 16 W.R. Grace & Co. v. EPA, 959 F.2d 360 (1st Cir. 1992) . 17 STATUTES Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq . . . . . . . . . . 1-3 Older Workers Benefit Protection Act ("OWBPA"), Pub. L. No. 101-433, 104 Stat. 978 (1990) . . . . . . 3 § 105(e) . . . . . . . . . . . . . . . 4, 6-7 28 U.S.C. § 1291 . . . . . . . . . . . . . . . 2 § 1331 . . . . . . . . . . . . . . . 2 § 1337 . . . . . . . . . . . . . . . 2 § 1343 . . . . . . . . . . . . . . . 2 § 2201 . . . . . . . . . . . . . . . 2 Mass. Gen. L. ch. 32, § 7 . . . . . . . . . . 4 § 7(2)(a)(ii) . . . . . . . . . . . . . 4 § 7(2)(b 1/2) . . . . . . . . . . . . . 3-5, 8, 14 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________________________________________________ No. 95-1066 __________________________________________________________ ALBERT RIVA, et al., Plaintiffs - Appellants, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants - Appellees. __________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts __________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration and enforcement of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. The plaintiffs in this case allege that the state law governing accidental disability retirement for public employees in Massachusetts violates the ADEA by affording lower payments to some employees who become disabled after their 55th birthday. The district court dismissed the case without reaching the merits of plaintiffs' challenge to the state law, ruling, inter alia, that an individual may not challenge a law mandating the reduction of his pension in the future until the reduction actually takes effect. In our view, the district court has raised an unnecessary barrier to the effective enforcement of the ADEA. The Commission believes that an employee or retiree who is told that his pension payments will be reduced in the future based on a policy that ties disability payments to age may challenge the policy without waiting for the reduction to take effect. The Commission therefore offers its views to the court. STATEMENT OF JURISDICTION The plaintiffs' claims arise under the ADEA and the Declaratory Judgment Act, 28 U.S.C. § 2201, and the district court accordingly had subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (action arising under a federal statute), 1337 (action arising under statute regulating commerce), and 1343 (action authorized by law to redress deprivation of civil rights). On December 30, 1994, the district court entered summary judgment for defendants on the ADEA claims of plaintiffs Albert Riva and Nancy Pentland, and dismissed Robert Keenan's claim as not ripe. Docket Entry 53.<1> That order was a final judgment disposing of all claims as to all parties, and the plaintiffs filed a timely notice of appeal on January 13. Docket Entry 54. This Court therefore has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE<2> Whether the ADEA claim of an employee or retiree who is told that his pension payments will be reduced in the future based on a policy that ties disability payments to age is ripe before the reduction takes effect. STANDARD OF REVIEW This court reviews de novo a district court judgment dismissing a claim as not ripe. Ernst & Young v. Depositors Econ. Protection Corp., 1995 WL 20852, at *3 (1st Cir. Jan. 25, 1995). STATEMENT OF THE CASE Nature of the Case and Course of Proceedings This is an appeal from a final judgment dismissing plaintiffs' case in its entirety. The plaintiffs, three retired public employees sued the Commonwealth of Massachusetts and various retirement entities claiming that Mass. Gen. L. ch. 32, § 7(2)(b 1/2), violates the ADEA. On cross motions for summary judgment, the district court held that plaintiffs Pentland and Riva may not challenge § 7(2)(b 1/2) under the amendments to the ADEA contained in the Older Workers Benefit Protection Act ("OWBPA"), Pub. L. No. 101-433, 104 Stat. 978 (1990), because the pensions they are receiving are exempt from OWBPA's substantive provisions pursuant to § 105(e) of that act. With respect to plaintiff Keenan, the district court dismissed his challenge as not yet ripe for adjudication. The plaintiffs filed a timely appeal. Statement of Facts As a general rule, public employees in Massachusetts who become disabled as a result of a job-related injury are entitled to accidental disability retirement ("ADR"). Mass. Gen. L. ch. 32, § 7. Most such employees receive 72 percent of their final annual salary each year for the rest of their lives. Id. at § 7(2)(a)(ii). In 1987 the Massachusetts legislature added § 7(2)(b 1/2), 1987 Mass. Acts c. 697, § 34, which provides that employees who take ADR when they are 55 or older and have accrued fewer than 10 years of service will receive the normal ADR benefits only until they turn 65. When they turn 65, their benefits are lowered to the benefits they would have received if they had retired "for superannuation": i.e., solely because of age and years of service. Mass. Gen. L. ch. 32, § 7(2)(b 1/2); Riva v. Commonwealth of Massachusetts, 66 FEP Cases 1142, 1144 & n.3 (D. Mass. 1994). Superannuation benefits are substantially lower than the ADR benefits, in part because persons affected by § 7(2)(b 1/2) by definition have few years of service. Riva, 66 FEP Cases at 1143-44. Albert Riva, Nancy Pentland, and Robert Keenan are former public employees with less than 10 years of service who took ADR after they were 55 years old. Id. at 1143. Pentland and Riva started receiving their ADR payments before OWBPA became applicable to state employees in October 1992. Before October 1992, they also both received letters from their employers notifying them that their payments would be reduced pursuant to § 7(2)(b 1/2) when they turned 65. Id. In 1993, when they turned 65, their benefits were reduced from 72 percent of their final annual salary to 30 percent or less of their final annual salary. Id. They filed charges with the EEOC shortly after their payments were reduced, but more than 300 days after receiving their notices. Id. Keenan did not start receiving his ADR benefits until February 1993, after OWBPA's effective date. Id. at 1144. His employer notified him in June 1994 that he was subject to § 7(2)(b 1/2), and he filed a charge in August 1994. Id. His payments will not be reduced until he turns 65 in 2002. Id. The parties filed cross-motions for summary judgment. The Commonwealth, in response to plaintiffs' motion, did not attempt to argue that § 7(2)(b 1/2) is permissible under OWBPA. Id. at 1145 & n.4. It argued only that none of these three plaintiffs has the right to challenge the provision. The Commonwealth argued that Pentland and Riva waited too long to file their charges, and that Keenan filed his too soon. Relying on Delaware State College v. Ricks, 449 U.S. 250 (1980), and Chardon v. Fernandez, 454 U.S. 6 (1982), the Commonwealth maintained that Pentland and Riva should have filed their charges within 300 days of when they received the letters notifying them that their payments would later be reduced. 66 FEP Cases at 1145. The Commonwealth also argued that the retirement benefits Pentland and Riva were receiving were exempt from challenge under the substantive provisions of OWBPA pursuant to § 105(e) of that act, which, with some exceptions, grandfathers streams of payments begun before OWBPA's effective date. Id. at 1147. Keenan filed his charge within 300 days of receiving his notice, but the Commonwealth argued that his claim is not yet ripe since the reduction in benefits of which he complains will not occur if he dies before turning 65, or if Massachusetts changes the challenged provision before then. Id. at 1146. The Commonwealth acknowledged "the tension that exists" between its argument that Pentland's and Riva's claims should be barred because they failed to file charges within 300 days of receiving their notices and its argument that the claim by Keenan, who did file his charge within 300 days of receiving his notice, should be dismissed because it is not yet ripe. The Commonwealth offered to toll the statute of limitations for Keenan's claim "until such time as that claim ripens." Commonwealth Motion for Summary Judgment at 8 n.10. District Court Decision The district court rejected the Commonwealth's argument that Pentland's and Riva's charges were untimely. The court held that Pentland and Riva were not required to file their charges within 300 days of learning that their benefits would later be reduced, because they are challenging an employee benefit plan as discriminatory on its face on the basis of age. 66 FEP Cases at 1145. Id. The court concluded that their challenges are therefore governed by the rule that a "facially discriminatory" employment policy "can be challenged at any time." Id. at 1145- 46 (quoting Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 912 (1989)). The court, however, agreed with the Commonwealth that Pentland's and Riva's claims were barred by § 105(e) of OWBPA. 66 FEP Cases at 1147-48. Section 105(e) of OWBPA provides that the act shall not apply to any series of benefit payments that began before OWBPA became effective and that continued after that date pursuant to an arrangement that was in effect on that effective date. 104 Stat. 978, 982-83 (1990). Pentland and Riva each started receiving payments before October 1992 and the reduction of which they complain occurred pursuant to an arrangement -- the state statute -- that was in effect in October 1992. 66 FEP Cases at 1143. The court rejected plaintiffs' arguments that the reduction in benefit levels they experienced at age 65 commenced a new "series" or "class" of payments or was made pursuant to a new "arrangement." Id. at 1147-48. The district court agreed with the Commonwealth that Keenan's claim was not ripe. 66 FEP Cases at 1146. The court focused on whether Keenan's claim "involves uncertain and contingent events that may not occur as anticipated, or indeed may not occur at all." Id. (quoting Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990)). Keenan's benefits will not be reduced until August 2002, the court reasoned, and may not be reduced even then (if he dies before then, for example, or if the law changes). 66 FEP Cases at 1146. Moreover, the court believed that Keenan "faces no 'direct and immediate' harm," and that Keenan's current difficulty in planning his financial affairs and preparing for a precipitate drop in his income in 2002 "is not cognizable as a direct or immediate hardship," because the alleged harm Keenan faces is "too uncertain and contingent." Id. The court also believed that in asking the court to invalidate a state statute on the ground that it conflicts with a federal law, Keenan was raising an issue "striking at the heart of our federal system," and one that a federal court should approach with caution. Id. at 1147. SUMMARY OF ARGUMENT The district court erred in holding that Keenan's claim is not ripe. Keenan's challenge to § 7(2)(b 1/2) is fit for adjudication because it is a wholly legal claim presented by genuinely adverse parties. No necessary parties are missing, and the issue Keenan presents is not currently being litigated in state court. Moreover, Keenan will suffer significant hardship if adjudication is deferred. As a prudent person, he must arrange his current financial affairs so as to prepare for the substantial reduction in benefits he will experience in 2002, and that hardship is sufficient to render his claim ripe. ARGUMENT KEENAN'S ADEA CHALLENGE TO MASSACHUSETTS' POLICY OF REDUCING THE DISABILITY RETIREMENT BENEFITS OF PERSONS WHO BECAME DISABLED AFTER THEY ARE 55 IS RIPE EVEN THOUGH KEENAN'S REDUCTION HAS NOT YET TAKEN EFFECT. As the district court noted in its discussion of Pentland's and Riva's claims, the Supreme Court stated in Lorance that "[t]here is no doubt, of course, that a facially discriminatory seniority system (one that treats similarly situated employees differently) can be challenged at any time." Lorance, 490 U.S. at 912. What is true of facially discriminatory seniority systems is also true of facially discriminatory employment policies, including facially discriminatory employee benefit plans. Cf. EEOC v. City Colleges, 944 F.2d 339, 342 (7th Cir. 1991) (applying Lorance rule about facially discriminatory seniority systems to an early retirement plan). Accordingly, an employment policy or employee benefit plan that discriminates on its face on the basis of age can be challenged at any time, and the plaintiff need not wait to sue until the objectionable provision is triggered and the plaintiff feels the full pain. See Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7th Cir.) (female employee challenging employer's lower mandatory retirement age for women does not have to wait until she is forced to retire to file a charge and sue), cert. denied, 404 U.S. 939 (1971); Rosen v. Public Service Elec. & Gas Co., 477 F.2d 90, 94 (3d Cir. 1973) (current employee has standing to challenge employer's pension plan as discriminatory on the basis of sex). The issue in Lorance was whether the plaintiffs had waited too long to file charges challenging a change in a seniority system that allegedly made them more vulnerable to layoffs because of their sex. The plaintiffs filed charges within 300 days of their layoffs, but more than 300 days after they were notified of the change in the system. 490 U.S. at 901-03. The dissenters in Lorance protested that any harm the plaintiffs experienced at the time the seniority rules were changed was too speculative to render their claims ripe, since the plaintiffs did not know at that time when or whether they would ever be harmed by the new rules. Id. at 913-15. The majority flatly rejected that argument, holding that the diminution in seniority rights that the plaintiffs experienced when the rules were changed constituted "concrete harm" sufficient to render their claims ripe. Id. at 907 n.3. To illustrate the point, the majority compared the Lorance plaintiffs to a person who pays a premium entitling him to an accident insurance policy with a face value of $25,000, but receives instead a policy with a face value of only $10,000. Id. The policyholder may never experience the painful consequence of receiving the lower payout, but he has already experienced the concrete harm of receiving a conditional entitlement to only the lower payout, and that concrete harm is sufficient to confer standing and ripeness. Id. Similarly here, Keenan's benefits have not yet been reduced, and will not be reduced for some years. But he has been notified that the benefits will be reduced, that is, that his entitlement to future benefits is significantly impaired compared to his co- workers who commenced accidental disability retirement before turning 55. He has therefore, like the policyholder in the Lorance Court's analogy, experienced concrete harm sufficient to render his claim ripe. This result is entirely consistent with conventional ripeness analysis. The Supreme Court has prescribed a two-part test for ripeness. In determining whether a claim is ripe, a court should "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). Keenan's claim meets both prongs of this test. One of the principal factors determining fitness is whether the claim is purely legal. In Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190 (1983), the issue presented was whether a particular provision of California law was preempted by a federal statute. The Court held that the claim was "predominantly legal" and therefore fit for adjudication, even though the provision in question would not be finally triggered unless a state agency failed to make a certain finding. Id. at 201-02. Accordingly, the issue presented in this case, which also concerns whether a state law conflicts with a federal law and is wholly legal, is appropriate for judicial determination at this time. Indeed, since operation of the state statute at issue here is automatic and not dependent on discretionary action by state officials, Keenan's claim is even more clearly ripe for adjudication than was PG&E's. Another central factor in assessing fitness, especially when the plaintiff is seeking a declaratory judgment, is adverseness. Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 692 (1st Cir.), cert. denied, 115 S. Ct. 298 (1994). Here the parties have genuinely adverse legal interests, and there are no other real parties in interest not before the court whose presence would be necessary to assure full adverseness. Compare Ernst & Young v. Depositors Economic Protection Corp., 1995 WL 20852, at *8-9 (1st Cir. Jan. 25, 1995) (when receiver of failed financial institutions brought state action against institutions' accounting firm for malpractice, and accounting firm then brought federal action against receiver and state challenging constitutionality of state law altering contribution rules among joint tortfeasors, accounting firm's federal action lacked full adverseness because the other potential joint tortfeasors were not before the court). Similarly, this is not a situation where the court would be addressing a hypothetical situation, or where the court's decision might turn out to affect the parties' central controversy only marginally, or perhaps not affect it at all. Compare Ernst & Young, 1995 WL 20852, at *7-8 (accounting firm challenging state law altering contribution rules among joint tortfeasors would be harmed by statute only if long string of contingent events occurred, and federal court should avoid making constitutional adjudication affecting important state interests that "might well prove to be completely unnecessary"); Massachusetts Ass'n of Afro-American Police, Inc. v. Boston Police Dep't, 973 F.2d 18, 20-21 (1st Cir. 1992) (challenge by police officers' association to amended consent decree was not ripe because association would not be injured unless police department made more promotions than provided for in the amended consent decree, and that expectation was "illusory"). Here Keenan is already being harmed by the statute he challenges, and a court order declaring the statute invalid would completely resolve the controversy between the parties. Nor is this a situation where comity counsels abstention. Compare Ernst & Young, 1995 WL 20852, at *7 & n.10, *10 (district court's ruling that accounting firm's claim was unripe was proper in part because same issue was about to be litigated in the state supreme court); El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495-97 (1st Cir. 1992) (district court should have deferred ruling on plaintiffs' federal constitutional claims because a state court had already issued preliminary injunctive relief on narrower state statutory grounds). Here there is no action pending in state court to which the district court should have deferred. The district court buttressed its ruling by citing the need for caution when addressing "issues striking at the heart of our federal system." 66 FEP Cases at 1147. The court was perhaps influenced here by the Commonwealth's argument that the plaintiffs were asking the court to declare § 7(2)(b 1/2) "unconstitutional," and that "[u]ncertain questions of constitutional law should be addressed only when absolutely necessary." Commonwealth Motion for Summary Judgment at 6 (quoting El Dia, 963 F.2d at 494). It is true, of course, that "[c]ourts should strive to avoid gratuitous journeys through forbidding constitutional terrain," Ernst & Young, 1995 WL 20852, at *8, but Keenan was not asking the district court to resolve a difficult question of constitutional law. Indeed, he was not raising a constitutional claim at all. He was merely seeking a declaration that by applying § 7(2)(b 1/2) to persons who take accidental disability retirement after the effective date of OWBPA, the Commonwealth, acting in its capacity as employer, has been violating the ADEA as amended. The second principal element in the ripeness calculus is the hardship to the parties of withholding adjudication. Massachu- setts argues that Keenan's payments will not be reduced before 2002, and may never be reduced if Keenan dies sooner or if the law is changed. Keenan responds that he is presently harmed, because as a prudent person he must now change how he allocates his current income to prepare for the day when that income will be sharply reduced. The Supreme Court has repeatedly recognized that the necessity to alter current activities in order to prepare for a threatened future event constitutes sufficient "hardship" to render a claim ripe. For example, in the Pacific Gas & Electric case, the plaintiff utilities challenged a state law that barred the state energy commission from approving any applications to build a nuclear power plant unless the state agency first found that a technology existed for safe, permanent disposal of nuclear waste. 461 U.S. at 198. The state agency argued that the utilities' claim was not ripe because they had no applications to build nuclear power plants pending, and the agency might make the required finding in the future, and the utilities might therefore never suffer any injury as a result of the challenged provision. Id. at 201-03 & n.15. Without rejecting these factual allegations, the Supreme Court still found the utilities' claim ripe. Id. at 201-03. Planning a nuclear power plant takes several years and many millions of dollars. Id. at 201 & n.13. The utilities had to decide in 1978, when they sued, whether they would plan to build such plants, and therefore had a right to know then whether the challenged provision was legal. Since the threat of having their applications denied in the future affected their current operations, postponing the decision would "likely work substantial hardship on the utilities." Id. at 201-03. See also New York v. United States, 112 S. Ct. 2408, 2428 (1992) (New York's 1990 suit challenging the take-title provision of the Low- Level Radioactive Waste Policy Act was ripe even though the act did not require New York to take title to any waste until 1996, because New York needed to alter its conduct in 1990 to avoid triggering the provision in 1996). Similarly in this case, the threat that Keenan's income will be reduced drastically in 2002 affects how Keenan arranges his current financial affairs. Keenan's freedom to dispose of his current income is significantly restricted by his need, as a prudent person, to plan for the day when that income will be more than halved. Since the threat of future income loss significantly limits his options in arranging his current financial affairs, his claim, like PG&E's and New York's, is ripe. Cf. Valmonte v. Bane, 18 F.3d 992, 998-99 (2d Cir. 1994) (plaintiff's due process challenge to state's action of putting her name on registry of child abusers is ripe even though she has not applied for a child-care job and been rejected, because if she did apply, she would be harmed by the presence of her name on the registry, and she alleges that the threat of that harm is preventing her from applying for such jobs, which she would otherwise do). The district court properly focused on "the extent to which the claim involves uncertain and contingent events that may not occur as anticipated, or indeed may not occur at all," Lincoln House, 903 F.2d at 847, but the court applied that criterion incorrectly. A court should avoid adjudicating a claim if the harm the plaintiff fears is itself contingent and speculative, and especially if the occurrence of that harm depends on the discretionary actions of an administrative agency or on the outcome of other pending litigation. See, e.g., Ernst & Young, 1995 WL 20852, at *7-8 (accounting firm will not be harmed by challenged statute unless other parties admit liability or are found liable and settle for less than their pro rata share of the damages, and plaintiff accounting firm is found liable and seeks contribution from the joint tortfeasors); W.R. Grace & Co. v. EPA, 959 F.2d 360, 365-67 (1st Cir. 1992) (operator of hazardous waste facility challenging EPA's authority to control operator's activities during investigative phase of corrective-action process will not be harmed by that authority unless the EPA revises or rejects one of the operator's submissions, the operator refuses to accept the rejection or revision, and the EPA orders the operator to comply; the harm the operator fears is therefore "wholly contingent"). Here, however, the harm is not contingent or speculative: Keenan is already being harmed by the challenged statute because, like PG&E and New York, he must arrange his current financial affairs differently in order to prepare for the substantial reduction in benefits that will occur in 2002. CONCLUSION For these reasons the Commission urges this Court to reverse the district court's order dismissing Keenan's claim and remand this case for further proceedings. Respectfully submitted, JAMES R. NEELY, JR. Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________ PAUL D. RAMSHAW Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L St., N.W., 7th floor Washington, DC 20507 (202) 663-4736 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following counsel of record: Thomas O. Bean Scott Harshbarger One Ashburton Pl., Rm. 2019 Boston, MA 02108-1698 Harold L. Lichten Bryan Decker Angoff, Goldman, Manning 24 School St. Boston, MA 02108 Raymond C. Fay Bell, Boyd & LLoyd 1615 L St., N.W., Ste. 1200 Washington, DC 20036-5601 _________________________________ Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7010 Washington, DC 20507 (202) 663-4736 October 5, 2005 AMENDED CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on March 16, 1995, first class, postage prepaid, to the following counsel of record: Thomas O. Bean Scott Harshbarger One Ashburton Pl., Rm. 2019 Boston, MA 02108-1698 Harold L. Lichten Bryan Decker Angoff, Goldman, Manning 24 School St. Boston, MA 02108 Raymond C. Fay Bell, Boyd & LLoyd 1615 L St., N.W., Ste. 1200 Washington, DC 20036-5601 I further certify that two copies of the foregoing brief were served by mailing them on March 17, 1995, first class, postage prepaid, to the following counsel of record: Brad Louison Merrick & Louison 153 Milk St. Boston, MA 02109 Carol Nesson Boston Retirement Board City Hall, Room 816 Boston, MA 02201 ________________________ Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7010 Washington, DC 20507 (202) 663-4736 October 5, 2005 ************************************************************************* <> <1> The district court dismissed Keenan's claim without prejudice, but that dismissal is deemed an appealable final judgment, in part because it would otherwise prevent him from prosecuting his claim for years. See McGuckin v. Smith, 974 F.2d 1050, 1053-54 (9th Cir. 1992) (dismissal without prejudice that does not leave plaintiff free to file amended complaint promptly is final and appealable); Davis Forestry Corp. v. Smith, 707 F.2d 1325, 1326 n.1 (11th Cir. 1983) (dismissal without prejudice for lack of standing is appealable final judgment). <2> The Commission takes no position on the other issues in this appeal.