Valjeanne CURRIE, et al., Plaintiff, Appellant, v. GROUP INSURANCE COMMISSION, et al., Defendants, Appellees.
No. 01-1916.
United States Court of Appeals, First Circuit.
Heard Jan. 9, 2002. Decided April 1, 2002.
Ginny Sinkel, Assistant Attorney General, with whom Pierce O. Cray, Assistant Attorney General, and Thomas F. Reilly, Attorney General, were on brief for appellees.
Ronald S. Honberg, Mary Giliberti, Thomas M. Sobol, Lydia Alix Fillingham, and Lieff, Cabraser, Heimann & Bernstein, LLP on brief for The National Alliance for the Mentally Ill and the Judge David L. Bazelon Center for Mental Health Law, amici curiae.
Before LYNCH and LIPEZ, Circuit Judges and WOODLOCK,* District Judge.
LYNCH, Circuit Judge.
The ultimate question in this case presents significant issues about a state government‘s ability to allocate insurance benefits by creating distinctions between different classes of individuals. Valjeanne Currie appeals the district court‘s entry of summary judgment for the defendant, the Group Insurance Commission (GIC), which provides disability benefits for employees of the state of Massachusetts. Currie v. Group Ins. Comm‘n, 147 F.Supp.2d 30 (D.Mass.2001). Currie challenges an aspect of the GIC long-term disability benefits policy, which limits benefits for noninstitutionalized individuals with mental disabilities to one year; GIC imposes no such time limit on benefits for the institutionalized mentally ill or on noninstitutionalized individuals with physical disabilities. Currie argues that this policy violates the Americans with Disabilities Act (ADA),
The immediate issue is whether this court should proceed to resolve the merits of this case while an appeal proceeds in parallel litigation in the state courts on an issue of state law which could moot or otherwise inform the federal litigation. The plaintiffs have asked us to stay our hand. The defendants urge us to dispose of the case on a difficult issue of federal statutory construction on which the circuits are split. They generally would prefer a prompter disposition of the federal action, but agree that the state court should decide state law issues. There is then the issue of what form a stay should take, should we decide to stay. The alternatives proposed are a stay under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), or certification of the state law question to the Massachusetts Supreme Judicial Court (SJC). In the interest of comity, we elect to stay on Colorado River grounds. Certification would interrupt the normal state appellate processes. Moreover, it would put the decisions of the state law issue directly to the state‘s highest court on a record developed to address federal, not state, issues. Finally, it is unclear whether the SJC would accept certification where, as here, the state court‘s decision on state issues would not be dispositive of the federal issue, but would merely render it moot.
I.
Valjeanne Currie was a Massachusetts state employee for fourteen years, working at the Massachusetts Mental Health Center. She suffers from schizophrenia. In 1999, her illness forced her to take a leave of absence from work and she has not been able to return to work since that time. She receives daily psychiatric care on an
The GIC is a state agency, established by state law, to provide state employees with medical, dental, life, and disability insurance.
The Commonwealth initiated the LTD plan in 1988. The GIC accepts bids from private insurers to cover the LTD plan. Prior to 1998, the plan did not provide any benefits for mentally disabled individuals who were not hospitalized. In 1994, the Hartford Life Insurance Company, the private insurer carrying the LTD contract, suggested adding coverage for nonhospitalized mentally disabled individuals. However, after some consideration, the GIC determined that the rate increase required for such coverage was infeasible due to the risk of adverse selection. Adverse selection is a problem confronted by voluntary insurance plans, whereby those individuals who consider themselves to have a low risk opt out of the program. This decreases the amount paid into the program, and increases the percentage of prоgram participants who will eventually receive benefits. Of course, as the cost of coverage rises, more low-risk individuals will choose to opt out.
When the Hartford contract was renewed, effective July 1998, the GIC‘s outside consultants recommended that the new contract provide for one year‘s worth of benefits for nonhospitalized mentally disabled individuals. The GIC adopted this recommendation, which is the policy challenged by Currie. After this first year of benefits, the individual may only continue to receive benefits if he or she is confined to a hospital or institution, in which case the benefits continue until the individual is discharged. Plan participants who suffer from physical disabilities have no such limitations on their coverage.
Currie began receiving benefits in June of 1999. In October of that year, she received a letter informing her that the payments would be terminated in June of 2000 unless she entered an institution. In January of 2000, Currie filed suit against the GIC in the federal district court. In May of 2000, Currie filed suit in state court, challenging the same provision of the LTD policy based on Massachusetts state antidiscrimination law,
Currie argues that entering an institution would severely decrease the likelihood that her condition would improve to the extent that she would be able to return to work, and has presented affidavits from her treating doctors to support this argument. She implies that GIC‘s policy, which allows for unlimited benefits for the hospitalized mentally ill, may therefore cost it more in the long run than would a policy allowing her to continue outpatient treatment. What is at stake, then, she argues, is not the amount of money GIC will pay out, but rather her ability to continue in a noninstitutionalized setting.1
Following oral argument in this case, the GIC informed us that it has negotiated a new LTD policy contract which will take effect when the current contract with the Hartford expires in July 2002. The new policy, carried by C.N.A. Group Benefits, will provide LTD benefits beyond one year for individuals, like Currie, who have mental disabilities and are receiving outpatient care in the form of day treatment, partial hospital treatment, or residential treatment for at least five hours per day, four days per week. Because this new policy will not apply to Currie or to other individ-uals who stop working before the new policy comes into effect in July 2002, GIC does not suggest that this change moots Currie‘s claim.
II.
Currie makes three challenges to the LTD policy offered by GIC through the Hartford, one premised on the ADA and two premised on the federal constitution.
A. ADA Claim
First, Currie argues that the LTD policy violates Title II of the Americans with Disabilities Act,
The question of whether challenges to employment practices are cognizable under Title II has been considered by two of our sister circuits, and by several trial courts within this circuit, with divergent results. See Zimmerman v. Or. Dep‘t of Justice, 170 F.3d 1169, 1173-74 (9th Cir. 1999) (not cognizable), cert. denied, 531 U.S. 1189 (2001); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820-22 (11th Cir.1998) (cognizable); Downs v. Mass. Bay Transp. Auth., 13 F.Supp.2d 130, 134-36 (D.Mass.1998) (cognizable); Motzkin v. Trs. of Boston Univ., 938 F.Supp. 983, 996 (D.Mass.1996) (not cognizable); see also McKibben v. Hamilton County, 215 F.3d 1327 (6th Cir.2000) (per curiam) (unpublished table decision) (noting split, but proceeding on merits where coverage not challenged by defendant). Title I of the ADA,
The district court believed that the clear language of Title I indicated that Title I was the sole avenue for bringing employment claims, and that the clear language of Title II indicated that Title II was limited to so-called “outputs” of a public agency. Currie, 147 F.Supp.2d at 34-35. Specifically, the court found that the second clause of Title II, which mandates that qualified individuals not “be subjected to discrimination by any [public] entity” was not intended to expand the scope of coverage beyond “services, programs, or activities” (articulated in the previous clause), but simply to clarify that Title II prohibits both intentional discrimination (through the “subjected to discrimination” clause) and disparate treatment (through the “excluded from participation in or ... denied the benefits of” clause).
The answer is not so plain. While Title I‘s language clearly covers employment discrimination, and public employers are not exempted from the definition of a covered entity, Title I says nothing about it being an exclusive remedy or avenue for suit.
2. Safe Harbor
Even beyond the difficult statutory interpretation question of whether Title II covers employment, there is a second complicated statutory question—whether the “safe harbor” provision of the ADA,
Currie argues that the safe harbor provision does not apply to the challenged aspect of the LTD plan because the hospitalization requirement is not based on any actual data. She cites the legislative history and the regulations as support for the proposition that a risk-based defense must be based on “sound actuarial data and not on speculation.” See
The GIC responds that the safe harbor does not require it to conduct actuarial studies to support its policies. See Rogers v. Dept. of Health & Envtl. Control, 174 F.3d 431, 437 (4th Cir.1999) (actuarial data not required for safe harbor); Ford v. Schering-Plough Corp., 145 F.3d 601, 611 (3d Cir.1998) (insurance company need not justify its policy coverage after a plaintiff‘s mere prima facie allegation). Instead, the GIC asserts, the policy need only be based on “actual or reasonably anticipated experience,” a standard used by some district courts and also articulated in the legislative history. See Currie, 147 F.Supp.2d at 37; Chabner v. United of Omaha Life Ins. Co., 994 F.Supp. 1185 (N.D.Cal.1998), aff‘d on other grounds, 225 F.3d 1042 (9th Cir. 2000); Doukas v. Metro. Life Ins. Co., 950 F.Supp. 422, 428-29 (D.N.H.1996) (citing H.R. Rep. 485(II), at 135-48, reprinted in 1990 U.S.C.C.A.N. 303, 418-21). The GIC has presented evidence that it says supports its policy under this standard. This evidence includes the fact that the industry standard is to impose a durational limit on disability benefits; evidence that under the University of Maine‘s LTD plan, which is
Currie, however, argues that there is a second problem with the application of the safe harbor provision. The safe harbor provision applies only to risk-based policies that are “based on or not inconsistent with State law,”
B. Federal Constitutional Claims
Currie also claims that the GIC‘s use of the Hartford policy violates her federal constitutional rights to equal protection and due process of law.
Currie faces a difficult test under the equal protection clause. Currie does not contest the district court‘s holding that the policy will survive equal protection scrutiny if it is rationally related to a legitimate governmental purpose.5 In its brief, the GIC asserts three possible justifications for the policy: 1) hospitalization serves as a proxy for determining those with the greatest need, i.e., those with the longest or most severe disability; 2) hospitalization serves as a proxy for verifying total disability; and 3) some limitation is necessary to keep costs at a viable level.6 Currie‘s response boils down to two main points: 1) that none of these rationales explain why mental disability should be treated differently than other disabilities, such as muscular-skeletal disorders, that are common and difficult to verify, and the distinction is therefore arbitrary; and 2) that the policy will eventually cost the GIC more, because it undermines beneficiaries’ attempts to return to work, and therefore is not rationally related to cost concerns.
Currie‘s due process claim rests on the theory that the policy impermissibly denies her a government benefit on a basis that infringes her constitutionally protected interest (namely, her right to liberty of person). See, e.g., Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding that it would
As explained below, we decline to decide any of Currie‘s federal claims at this juncture, due to the pendency of the state court proceedings.
III.
Before oral argument in this case, Currie filed a motion with this court requesting a stay in these proceedings, pending the outcome of the state court proceedings.7 Currie suggested that a stay would save this court from having to decide the federal statutory and constitutional issues, particularly the ADA safe harbor question, which is intertwined with the state law question currently under consideration in the state court system. The GIC opposed this motion, arguing that we could affirm summary judgment on the merits by deciding that Title II of the ADA does not cover employment practices, or by deciding that the “contrary to state law” exception to the safe harbor applies only to matters of state insurance law. Of course, if the highest state court were to determine the plan violates state antidiscrimination law or the Massachusetts Constitution, both questions would most likely be moot, as the GIC would necessarily have to change the plan.
Generally speaking, “in cases where the relief being sought is equitable in nature or otherwise discretionary, federal courts not only have the power to stay the action based on abstention principles, but can also, in otherwise appropriate circumstances, decline to exercise jurisdiction altogether by either dismissing the suit or remanding it to state court.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 720 (1996).
A question is raised as to whether this case is within the scope of the Colorado River stay doctrine. In Colorado River, the Supreme Court held that “in situations involving the contemporaneous exercise of concurrent jurisdiction[ ] by state and federal courts” it may be appropriate for the federal court to defer to the state court. 424 U.S. at 817. However, the Court emphasized that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding fоr reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention” and should be “exceptional” to justify deferral to the state court. Id. at 818; see also Rojas-Hernandez v. P.R. Elec. Power Auth., 925 F.2d 492, 495-96 (1st Cir.1991); Villa Marina Yacht
This court has identified six factors, based on the Supreme Court‘s decision in Colorado River and its subsequent decision in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983):
(1) whether either court has assumed jurisdiction over a res; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law controls; and (6) whether the state forum will adequately protect the interests of the parties.
Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 320-21 (1st Cir.1992) (quoting Burns v. Watler, 931 F.2d 140, 146 (1st Cir.1991)). However, this is not an exhaustive list, nor is it a litmus test for Colorado River deference, which must remain a discretionary tool. See Villa Marina I, 915 F.2d at 14.
The first two prongs of the Colorado River/Moses H. Cone test have little bearing on this case. There is no res at issue and the federal forum is equally convenient to the state forum, as both are located in the same city. There is some risk of piecemeal litigation here, which may rise above the “routine inefficiency that is the inevitable result of parallel proceedings.” Villa Marina I, 915 F.2d at 16. The Supreme Court has clarified that the fourth prong (sometimes called the “priority” element) “should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actiоns.” Moses H. Cone, 460 U.S. at 21. In this case, both state and federal cases have been through summary judgment and are on appeal, and it may be that the record in the state case is fuller as to the state law issue. See Colorado River, 424 U.S. at 820 (noting the apparent absence of any federal proceedings other than the motion to dismiss as a factor in favor of dismissal); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts (Villa Marina II), 947 F.2d 529, 535 (1st Cir.1991) (holding that state case was further advanced because of development of record for preliminary injunction hearing).
The concerns implicated by the fifth prong of the test, whether federal or state law controls, are important in this case. Although this case presents exclusively federal law claims, two of the three federal claims are constitutional and therefore should only be adjudicated if we are unable to resolve the case through resolution of the statutory claim. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). If we conclude that Title II encompasses employment practices, we must determine whether the LTD program is protected by the safe harbor provision. That federal statutory question is intertwined with a complex issue of state law, pending before the state courts. Further, the underlying subject matter involves state-provided insurance benefits, a matter in which the state has unusually strong interests.
These comity concerns are the same as those underlying the abstention doctrines that predate Colorado River‘s discretionary deferral. In Colorado River, the Supreme Court described these abstention doctrines, stating that abstention is appropriate “where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” 424 U.S. at 814 (citing La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959), and Burford v. Sun Oil Co., 319 U.S. 315 (1943)); see also R.R. Com‘n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) (discussing “a doctrine of abstention appropriate to our federal system whereby the federal courts, ‘exercising a wise discretion‘, restrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ “) (quoting Di Giovanni v. Camden Fire Ins. Ass‘n, 296 U.S. 64, 73 (1935) and Cavanaugh v. Looney, 248 U.S. 453, 457 (1919)). Although this case does not mandate abstention under any of these established abstention doctrines, the problem it presents is similar to the problems presented by the Pullman or Thibodaux cases, which presented federal courts with the prospect of being required to resolve complicated state law problems. For instance, two of the major purposes of Pullman abstentions are to “avoid[ ] the waste of a tentative decision” and to “avoid[ ] ... needless friction between the federal and state proceedings.” Ford Motor Co. v. Meredith Motor Co., Inc., 257 F.3d 67, 73 (1st Cir.2001) (internal quotation marks omitted); see also Bath Mem‘l Hosp., 853 F.2d at 1016 (”Pullman-type abstention may be appropriate ... because ... plaintiffs are making identical claims in two state court suits, and the state courts may resolve the claims in ways that would moot, or significantly affect, the claims plaintiffs make here....“).
Much of the rationale supрorting abstention in those cases applies to counsel deference here. The state law question is not clear, nor is it clear how the state ultimately would balance the important policy interests of treatment of the disabled with the financial viability of insurance policies. If we were to decide the ADA claim here, we could be forced to make a ruling on whether the policy violates Massachusetts antidiscrimination law, the question before the Massachusetts courts. If we were to decide the federal issues in the manner that the GIC suggests, a state court ruling that the policy violates Massachusetts law would render our opinion merely advisory—an outcome we seek to avoid in any case.8
Finally, the sixth prong of the Colorado River/Moses H. Cone test also supports deferring to the state court. A stay under Colorado River is appropriate only where the parties may obtain complete relief in the state court proceedings:
When a[ ] court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all.
Moses H. Cone, 460 U.S. at 28. Nonetheless, “perfect identity of is-
It is very significant to us that it is the plaintiff, the party that initially invoked the jurisdiction of the federal courts, who is now requesting that we stay our hand. Moreover, because the plaintiff is the same in both this case and the parallel state case, there is no danger that the plaintiff will be prejudiced by ineffective prosecution of the state law claim. Nor will the defendant be prejudiced by our staying the action: whatever uncertainty exists as to outcome in this case also exists as to the state court litigation.
The parties have proposed certification as an alternative to a Colorado River stay, and the dissent prefers that course. Here the doctrine of sound judicial administration which underlies Colorado River de-
We hold, therefore, that a stay pending the outcome of the state proceedings is the wisest course of action at this time. We emphasize that we are not surrendering federal jurisdiction and we retain jurisdiction to permit us to resolve the federal questions if a decision is ultimately necessary.
Motion for stay granted.
WOODLOCK, District Judge (Dissenting).
The main current in this appeal flows through a problem of federal statutory construction which the District Court resolved on cross motions for summary judgment. The majority chooses to bypass the federal statutory question presented, at least for the time being, by invoking the discretion to stay recognized under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). I believe that to do so here is a misuse of the limited discretion that the Colorado River doctrine reserves for truly “exceptional” circumstances. Id. at 818. There is nothing particularly exceptional in the circumstances of this case and there is no good cause to neglect “the virtually unflag-
A. Deployment of the Colorado River Doctrine is Not Justified
The majority opinion relies upon three Colorado River factors whose confluence it finds sufficient to justify avoiding exercise of our jurisdiction. Those factors cannot support setting this case adrift upon the Colorado River doctrine. In this sеction, I will address the three factors the majority relies upon and the one Colorado River factor—avoidance of piecemeal litigation—the majority accords negligible weight. A careful consideration of the factors demonstrates that the Colorado River doctrine is by its own terms inapplicable.
1. The first filed and decided federal proceeding is substantially more developed than the later filed and decided state proceeding.
The federal proceeding pending before us went to final judgment in the federal district court on June 14 of last year after resolution of cross motions for summary judgment on all issues. Currie v. Group Ins. Comm‘n, 147 F.Supp.2d. 30 (D.Mass.2001). The appeal has been fully briefed and argued.
The state proceeding did not go to final judgment in the state trial court until February 6 of this year, following a ruling on cross motions for summary judgment, an aspect of which concerned a subset of one of the issues before us. Currie v. Hartford Life Ins. Co., Suffolk No. 00-1831-H (Mass.Super.Ct. Jan. 24, 2002).1 The plaintiff has reported an intention to appeal but the record has not yet been assembled and no briefing schedule for the appeal has been established. The plaintiff, who is required to bring the appeal to the Massachusetts Appeals Court in the first instance, tells us review in the Supreme Judicial Court will also be sought.
Plainly, the first filed2 federal proceeding fully argued before us is substantially more developed than the later filed state proceeding in which appellate proceedings are in their infancy and may have to mature through two state appellate courts.3
As the majority notes, “this case presents exclusively federal law claims,” supra at 10. The only one of these federal claims with fоrce is the statutory ADA claim.4 The majority explores the decision tree for this claim and finds hanging under one alternative branch a “federal statutory question ... intertwined with a complex issue of state law, pending before the state courts....”
The use of the horticultural metaphor “intertwined” to describe the relationship of the state law issue to the federal statutory claim illustrates the force of Cardozo‘s observation that “[m]etaphors in the law are to be watched, for starting as devices to liberate thought, they end often by enslaving it.” Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58 (1926). This is demonstrated most readily by simply recasting the horticultural metaphor to capture more accurately the reality the figure of speech is describing.
Far from being intertwined with the entire federal claim, the state law issue is simply appended to one of two independent branches of federal statutory analysis. It is the choice of the majority to lash the two branches together by staying this case—and not something inherent in the decision tree—that intertwines a secondary state law issue with the federal statutory analysis. It is apparent that we could reach the ADA Title II question and dispose of the case without even encountering the state law question presented by the safe harbor branch. That approach has not been substantively explored by us as yet.
Moreover, merely labeling the state law issue appended to one branch of the decision tree as “complex” does not make it so. The majority properly does not seek to ground its choice to stay on traditional abstention doctrines. These are reserved for genuinely difficult questions of state law and no such question is presented here.
In any event, if we are required to reach the alternative “safe harbor” branch of this case, we will simply encounter a manageable issue of state law which two dispositive opinions, that of the federal District Court that we review, Currie v. Group Ins.
3. The protections of the state forum are undermined unless this court applies accepted state rules for recognition of state judgments between the parties.
The decision of the state Superior Court granting summary judgment on all counts to the defendants is a final judgment to which the Massachusetts courts, following the majority view, Restatement (Second) of Judgments § 13 cmt. f. (1982), must accord res judicata effect despite the pendency of any appeal. O‘Brien v. Hanover Ins. Co., 427 Mass. 194, 200-01, 692 N.E.2d 39 (1998). We can do no less.
Under
court litigation; rather, we act in derogation of Massachusetts judgment rules we are bound by a federal statute to observe. The question whether the LTD policy is inconsistent with Massachusetts law has been answered between the parties before us and § 1738 requires we give that answer preclusive effect. Consequently we are now obliged to resolve the remaining questions consistent with that answer and without regard to whether one or another оf the Massachusetts appellate courts to which the state appeal will be taken may ultimately reverse the Superior Court.
Application of res judicata through principles of full faith and credit—unlike the comity concerns of the Colorado River doctrine and traditional abstention approaches—is not discretionary. As Justice Frankfurter observed for the Supreme Court in Williams v. North Carolina, 325 U.S. 226, 228 (1945), “the Full Faith and Credit Clause puts the Constitution behind a judgment instead of the too fluid, ill-defined concept of ‘comity.‘” I have found no case in which a federal court has addressed its full faith and credit obligations under § 1738 and concluded that they may be ignored or deferred.5 Indeed, when courts actually
The majority suggests that the question of the applicability of
The defendants carefully complied with Rule 28(j) here by sending the clerk a copy of the state Superior Court ruling. They could not properly do more.6
By staying this case we neglect оur independent duty to apply § 1738. It bears emphasizing that if we were to meet our duty in this regard we would not be required separately to decide the state law issue appended to the safe harbor claim. That issue has already been decided in a state court judgment to which we must give voice. But we have chosen to stand mute by undertaking to stay.
4. A Colorado River stay will encourage the continuation of otherwise avoidable piecemeal litigation.
The current of this litigation, with its history of and prospects for serial decisionmaking in duplicative venues, strongly draws us on a collision course with a material Colorado River factor—the desirability of avoiding piecemeal litigation. Yet, the majority sails quickly past this factor, conclusorily observing that there “is some risk of piecemeal litigation.” Op. at 10 (emphasis added). How much emphasis one puts on the adjective “some” is key to the judgment. The direction of the litigation
A bit of history will explain how the litigation between these parties came to be presented in bits and pieces. Initially, plaintiff‘s complaint filed in the federal District Court on January 25, 2000, raised six counts, (1) Title II of the ADA, (2) Amendment CXIV (the prohibition against disability discrimination) under the Massachusetts Constitution, (3) Due Process under the Massachusetts Constitution, (4) Due Process under the United States Constitution, (5) Equal Protection of the Massachusetts Constitution and (6) Equal Protection under the United States Constitution. In response to the defendants’ motion to dismiss arguing that the Eleventh Amendment to the United States Constitution precluded a federal suit against state officials on the basis of state law, see generally Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984), on March 25, 2000 the plaintiffs dismissed the state constitutional claims, Counts 2, 3 and 5, in the federal court and commenced litigation in the state court on strictly state law claims.7
In the federal District Court the parties litigated as a general matter the federal safe harbor provision,
After the appellees filed their briefs in this court, the appellants for the first time sought a stay of the federal litigation, contending that “[t]he initial exchange of briefs before this court has made clear a feature of this case that unfortunately remained in the background in the district court.” Mot. of Pls/Appellants for Ct. to Stay Proceedings Pending Adjudication in State Ct. ¶ 1. That “feature” was the specific issue whether the LTD plan was inconsistent with state law by virtue of
The federal and state proceedings in which the parties have engaged present a textbook example of piecemeal litigation. To date, by keeping “in the background” an aspect of a claim that has been a part of the federal case “from the beginning,” the parties have fully briefed and argued—in whole and in part—to three courts, two federal and one state, the issue of consistency with state law. The decision to stay insures that two more courts—the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court—will be offered a bite at the apple hanging from one branch of the decision tree in this case. And looming in the background is the potential for yet another court, the Supreme Court of the United States, faced with a preexisting split in the circuits, to review the other branch of the federal statutory question, the availability of a Title II claim—and hence in this case the availability of the ADA at all—to this type of case. We should not sail by the Colorado River factor directed to the desirability of avoiding piecemeal litigation. Rather we should accept the challenge and decide the case by actively exercising our federal jurisdiction.
B. The Exercise of Federal Appellate Jurisdiсtion is an Imperative
As the competing treatments of the recognized Colorado River factors separately provided in the majority opinion and in this separate opinion illustrate, there is a quicksilver quality to the Colorado River doctrine. Its multifactor test—in which no weights are assigned until the balancing process is actually undertaken—creates conditions that, at a minimum, invite unpredictability. Lacking some greater prescriptiveness beyond the general adjuration that it is reserved for “exceptional circumstances,” the Colorado River doctrine periodically overflows the banks meant to contain it and floods garden variety federal question litigation.
That is a major reason the commentators have not been particularly kind to the Colorado River doctrine. See, e.g., James C. Rehnquist, supra note 2; Linda Mullenix, A Branch Too Far: Pruning The Abstention Doctrine, 75 Geo. L.J. 99 (1986); David A. Sonenshein, Abstention: The Crooked Course Of Colorado River, 59 Tul. L.Rev. 651 (1985). The application of the factors has “revealed] great disparity as to what constitutes exceptional circumstances,” Professor Chemerinsky reports. Erwin Chemerinsky, Federal Jurisdiction § 14.3, at 830 (3d ed.1999). “Despite the Court‘s statement in Moses H. Cone Memorial Hospital v. Mercury Construction Co. that such abstention is to be rare and limited to ‘exceptional’ circumstances, many lower courts continue to order abstention when there are parallel proceedings pending in state courts. But the other lower federal courts refuse Colorado River abstention unless there are truly exceptional circumstances.”
This court has traditionally been among those reluctant to resort to the Colorado River doctrine, even in the more inviting circumstance when the litigation pending in the federal court involves a wholly state law dispute. See, e.g., Burns v. Watler, 931 F.2d 140 (1st Cir.1991). When the issue is one of federal law, the imperative
A stay in these circumstances begs a question of first principles. Chief Justice Marshall long ago stated those principles for purposes of federal appellate jurisdiction:
With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it is brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.
Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 404 (1821).
Drained of unconvincing references to Colorado River factors, what appears to be generating the choice to stay this litigation in this court is the possibility that a reversal of the state Superior Court decision in the Supreme Judicial Court of Massachusetts would provide an adequate and independent state ground for this court to avoid a problem of federal statutory construction which has created (in only one of its independent branches) a split in the circuits and disagreement among district courts. That possibility is not enough to justify a discretionary technique promising a lengthy delay.8 Whatever our doubts, whatever the difficulties, we should decide the federal question presented to us.
C. The Certification Expedient is a Less Damaging Alternative
Ultimately, resort to the Colorado River doctrine, if proper, can be justified and measured only in terms of “wise judicial administration.” Colorado River, 424 U.S. at 818. Even if we are entitled for some period of time to defer our obligations to exercise federal jurisdiction, the most efficient tool of judicial administration to use is not a stаy but certification to the state‘s highest court. Certification of state law questions is a tool the Supreme Court has, particularly of late, Arizonans for Official English v.
The majority expresses reticence about making use of the certification tool but its reasons are not compelling, particularly in the face of an agreement between the parties that certification is an efficient way to expedite final resolution of an issue that they have variously been presenting in the federal and state courts. There is little doubt, given the chronic underfunding of the state courts, that prosecution of an appeal in the ordinary course will be a time consuming process. However, the briefing in the state Superior Court, attached to the motion to stay papers, makes clear that the issue was presented there as essentially a legal question for which recourse to an elaborate factual record is unnecessary.
The state law question is precisely the type of issue the certification process was designed to address in the interests of saving “time, energy, and resources and helping build a cooperative judicial federalism.” Arizonans for Official English, 520 U.S. at 77 (quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)). We are presumably staying our hand because the issue is one we think, in the words of the Supreme Judicial Court‘s certification rule, “may be determinative of the cause” pending before us. SJC Rule 1:03, § 1 (emphasis added). We are thus in the mainstream of the certification rule. While the Supreme Judicial Court has warned of the danger of hypothetical questions posed in the context of the interlocutory proceedings by courts of first instance, see, e.g., Knapp Shoes v. Sylvania Shoe Mfg. Corp., 418 Mass. 737, 738 n. 1 (1994); Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 687-88 (1990); Canal Elec. Co. v. Westinghouse Elec. Co., 406 Mass. 369, 372 (1990), I am aware of no instance in which that court has declined to answer a question presented by this court in connection with our review of a final judgment. Given the existence of a parallel final judgment in the state Superior Court, the prospect that the issue will be treated as hypothetical is quite slender. To be sure, as the majority notes, “[w]hether this situation meets the certification requirement is itself an issue of Massachusetts law we should not,” indeed, cannot, definitively “decide.” Supra at 13. But we will never find out what the Supreme Judicial Court thinks about certification unless we ask. My own experience with the certification process, see, e.g., Dahill v. Boston Police Dep‘t, 434 Mass. 233; Comm‘r of Ins. v. Munich Reinsurance Co., 429 Mass. 140, 706 N.E.2d 694 (1999), suggests no meaningful impediment to SJC cooperation with certification here. To the contrary, that court has been hospitable to the certification process. As a former Chief Justice of the Supreme Judicial Court has observed, “our certification process tends to facilitate state-federal relations. On balance, the process has worked well in Massachusetts.” Herbert P. Wilkins, Cer-
I would prefer to decide the issues presented to us without further delay. But in the absence of support for active exercise оf our jurisdiction, certification is to be preferred to a stay in this case. If we are to surrender our jurisdiction to decide federal questions for any time beyond what is necessary for us to reach the issues on appeal in the ordinary course, it should be for the shortest period that wise deployment of the several tools of judicial administration can fashion.
APPENDIX
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
SUPERIOR COURT
CIVIL ACTION
NO. 00-1831-H
VALJEANNE CURRIE & others1
vs.
HARTFORD LIFE INSURANCE COMPANY & others2
MEMORANDUM OF DECISION AND ORDER ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
QUINLAN, Associate Justice.
INTRODUCTION
The plaintiff Valjeanne Currie (“plaintiff” or “Currie“) brought this action, on behalf of herself and all others similarly situated, against the defendants Hartford Life Insurance Company (“Hartford“)3 and the Group Insurance Commission and its individual members (collectively, “GIC“), alleging violations of her rights under
BACKGROUND
The material facts of this matter are largely undisputed by the parties. Beginning in 1985, Currie worked for the Commonwealth of Massachusetts (“Commonwealth“) at the Massachusetts Mental Health Center (“Mass Mental“). From 1994 to 1999, Currie worked in the Medical Records Program at Mass Mental. Currie suffers from schizophrenia, a long-term mental disability.4 In June of 1999, Currie was forced to leave her work at Mass Mental as a result of her disability. Currie was hospitalized for several days and thereafter referred to Faulkner Hospital‘s
Notes
Throughout her fourteen years of employment with the Commonwealth, Currie participated in GIC‘s Long-Term Disability (“LTD“) plan. Currie paid monthly premiums in order to participate in the plan. GIC was established pursuant to
During the 1997 procurement process for the 1998 LTD contract, consultants from the employee benefits consulting firm of O‘Neill, Finnegan & Jordan (“OFJ“) recommended that GIC provide only one year of outpatient benefits for individuals disabled due to mental illness, as opposed to an unlimited mental health benefit. This conclusion was reached because, in the consultant‘s opinion, only employer-paid plans, which by their nature have one-hundred percent participation rates, can afford such inclusive benefits. The legislature of the Commonwealth, pursuant to
GIC‘s current LTD plan provides benefits for one year to individuals disabled due to mental illness.5 After one year, the benefits cease, unless the individual is confined to a hospital or institution. In such a case, the benefits continue for the duration of the institutionalization. Under the plan, employees disabled for other reasons are granted benefits until they are able to return to work or reach the age of 65, regardless of whether they are hospitalized.
In October, 1999, Currie received a letter dated October 21, 1999, from Hartford, informing her that her LTD claim had been approved. This letter also informed her that unless she was hospitalized by June 6, 2000 (one year after the commencement of her benefits), her LTD benefits would cease. Currie received benefits for one year under the GIC LTD plan. Two days before the benefits were scheduled to end, this court (Burnes, J.) ordered that the benefits be continued and entered a preliminary injunction for six months. The preliminary injunction has been renewed on several occasions and remains in effect, pending resolution of the matter presently before the court.
While this case was pending in Superior Court, the parties were litigating federal claims arising out of the GIC policy in federal district court. Specifically, Currie brought claims under Title II of the Americans with Disabilities Act (“ADA“) and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Unit-
There is ample evidence presented by the defendants to support their reasoning for limiting LTD benefits to one year for the mentally disabled. The defendants have shown that the limitations of LTD coverage are necessary for the viability of the overall program. Since maintaining a realistic disability plan for state employees is necessarily accomplished by keeping premiums at an affordable level, the LTD limitation is rationally related to the legitimate state interest of offering affordable coverage to its employees. Additionally, it is important to note that here, the burden is on the plaintiff to establish that GIC has no conceivable basis for its decision to limit LTD outpatient benefits to one year for the mentally disabled. In fact, as the Supreme Court has recently affirmed, “the state need not articulate its reasoning ... [r]ather, the burden is on the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the decision.” Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).
GIC could have limited the LTD benefits based on a belief that individuals with mental disabilities severe enough to require hospitalization are more in need of benefits because they are likely to be disabled for long periods of time, if not permanently. Similarly, GIC may have based its decision on the theory that adverse selection8 would make unlimited coverage for outpatient mental disability treatment financially risky becausе of the predicted higher cost and difficulty with diagnosis and verification. Therefore, by limiting the time period for coverage, more state employees are able to take part in the plan.
Under rational-basis review, the government “is not required to ‘create statutory classifications with surgical precision.‘” Commonwealth v. George, 430 Mass. 276, 284, 717 N.E.2d 1285 (1999), quoting Opinion of the Justices to the House of Representatives, 408 Mass. 1215, 1224, 563 N.E.2d 203 (1990). “The fact that a more equitable method of apportioning [benefits] may exist does not render” the LTD plan unconstitutional. Zeller v. Cantu, 395 Mass. 76, 84, 478 N.E.2d 930 (1985). Nevertheless, Currie seems to argue that GIC bears the burden of proof under the rational basis test, asserting that “GIC has presented no admissible support whatsoever for its contention that” unlimited mental
Although not required to do so, the defendants have presented several rational bases upon which their decisions were made. The court declines to act as a “super-actuary” and second-guess the state officials’ and their expert consultants’ judgment on these issues. See Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3rd Cir.1998), cert. denied, 525 U.S. 1093 (1999) (court declines plaintiff‘s invitation to become a “super-actuary,” stating that it “is clearly not equipped to become the watchdog of the insurance business“). The defendants are entitled to judgment as a matter of law on plaintiff‘s equal protection claim.
Plaintiff‘s Substantive Due Process Claim
Currie claims that GIC‘s LTD policy violates her substantive due process rights under the Massachusetts Constitution. “[S]ubstantive due process prevents the government from еngaging in conduct that shocks the conscious or interferes with rights implicit in the concept of ordered liberty.” Commonwealth v. Bruno, 432 Mass. 489, 503, 735 N.E.2d 1222 (2000). Under the Massachusetts Constitution, “legislation must bear a ‘real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.’ ” Chebacco Liquor Mart, Inc., 429 Mass. 721, 724, 711 N.E.2d 135 (1999). Although the Supreme Judicial Court has
found in some instances that the Massachusetts Constitution may provide greater substantive due process than that of the U.S. Constitution, Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416, 294 N.E.2d 354 (1973), it has also stated that “[a]ny difference between the two constitutional standards in the area of economic regulation ... is narrow.” Blue Hills Cemetery, Inc. v. Board of Registration in Embalming and Funeral Directing, 379 Mass. 368, 373 n. 8, 398 N.E.2d 471 (1979).
Currie has not shown that GIC‘s failure to provide unlimited LTD benefits to the noninstitutionalized mentally disabled shocks the conscious. Additionally, this assertion stands in stark contrast to the well-established rule that “the due process clause generally confers no affirmative right to government aid.” Currie v. Group Ins. Comm‘n, 147 F.Supp.2d 30, 38-39 (D.Mass.2001), citing DeShaney v. Winnebago County DSS, 489 U.S. 189, 196 (1989).
Additionally, Currie has failed to show that GIC‘s plan interferes with an identified liberty or property interest protected by the due process clause. There is no support for Currie‘s assertions that she has a protected right to unlimited LTD benefits or that GIC‘s policy violates her liberty interests by “requiring removal from [her] community.” Institutionalization is not mandated by GIC‘s LTD policy. Instead, mentally disabled individuals who are institutionalized, presumably based on a finding that they are a danger to themselves or others, are entitled to continuous LTD benefits in order to continue with their necessary hospitalization. Whether or not a mentally disabled person is receiving LTD benefits has no bearing on whether hospitalization is required. Currie seems to imply that she could continue her LTD benefits so long as she decides to be
Finally, contrary to Currie‘s assertion, Article of Amendment 114 does not offer some form of heightened scrutiny for Currie‘s claim. That amendment, adopted in 1980, provides: “No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth.” Currie argues that the article “makes clear that in Massachusetts, a mentally disabled person‘s right not to be denied benefits because she lives independently in the community is a fundamental right deserving of the court‘s protection, absent compelling justification by the GIC.” This is simply not the case. As discussed previously, the right to be free from disability discrimination is not fundamental and as such, any argument that Article of Amendment 114 dictates otherwise is without merit.
Plaintiff‘s G.L. c. 151B, § 4(16) Claim
Currie argues that GIC‘s LTD policy violates
Currie argues that GIC‘s LTD plan violates
page argument in support of her
Currie‘s reliance on Olmstead is misplaced. The plaintiffs in Olmstead were individuals with mental disabilities who were institutionalized but sought placement in a community-based treatment program.
LTD benefits, she will need to be institutionalized. Currie‘s treating professionals have determined that she is capable of functioning in her community and as such, Currie‘s implication that she could choose to institutionalize herself in order to continue her benefits is without merit.
Additionally, the plaintiffs in Olmstead brought their claim under Title II of the ADA, which prohibits public entities from discriminating against qualified disabled individuals when providing services, programs, or activities.
Finally, although not necessary to the decision in this case, the court notes that it is constrained by Lynn Teachers’ Union, Local 1037 v. Massachusetts Comm‘n Against Discrimination, 406 Mass. 515, 549 N.E.2d 97 (1990), in finding that GIC‘S LTD plan is not entitled to the benefit of
Notwithstanding any provision of this chapter, it shall not be an unlawful employment practice for any person, employer, labor organization or employment agency to: ... observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as
than Title I, which, similar to
a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this section ...
In Lynn Teachers’ Union, the SJC held that
ORDER
For the foregoing reasons, it is hereby ORDERED that the plaintiff‘s motion for summary judgment be DENIED as to all counts and the defendant‘s motion for summary judgment be ALLOWED as to all counts.
PAMELA WOOD, GLENROY WOOD
UNITED STATES CIRCUIT JUDGE
DISCUSSION
A motion for summary judgment is in order, and shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Plaintiff‘s Equal Protection Claim
Currie claims that the LTD plan violates the equal protection guarantees of the
Massachusetts Constitution because it unlawfully discriminates against the post-one year nonhospitalized mentally disabled as well as the mentally-as opposed to physically-disabled.7 Generally, analysis of the Massachusetts equal protection guarantee is identical to the Federal equal protection guarantee. McNeil v. Commissioner of Corr., 417 Mass. 818, 826, 633 N.E.2d 399 (1994). Absent a suspect classification or a fundamental right, courts will uphold agency action that distinguishes between two similarly situated groups, so long as the classification is rationally related to a legitimate government objective. Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm‘n, 429 Mass. 721, 721-722, 711 N.E.2d 135 (1999); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973).
It is well-settled that the disabled do not constitute a suspect class. Heller v. Doe By Doe, 509 U.S. 312, 321 (1993); accord City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442-447 (1985) (mental retardation not a “quasi-suspect classification“). “Under rational-basis review, where a group possesses ‘distinguishing characteristics relevant to interests the State has the authority to implement,’ a State‘s decision to act on the basis of those differences does not give rise to a constitutional violation.” Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001), quoting Cleburne
(finding that GIC‘s benefit limitation survives scrutiny under the rational basis test and that plaintiff‘s claim under Title II of the ADA was not cognizable).Id. at 4 (footnote omitted). To the extent that Currie may still be pursuing her claim that GIC‘s LTD policy discriminates against the mentally-as opposed to physically-disabled, this argument fails as it is permissible for GIC to discriminate between people with different disabilities, i.e., mental and physical. See Traynor v. Turnage, 485 U.S. 535 (1988) (holding that the Rehabilitation Act does not prohibit discrimination among different kinds of disabilities); EEOC v. Staten Island Savings Bank, 207 F.3d 144, 149 (2nd Cir.2000) (ADA does not require equal insurance benefits for every type of disability).In 1982, the Supreme Court avoided decision of a difficult federal constitutional question by remanding to this court, urging us to dispose of the case on state law grounds. [Mills v. Rogers,] 457 U.S. [291,] 306 (1982). With Pennhurst, the Court removed our power to do so. Now, two years after the Supreme Court returned this case to us in furtherance of the Court‘s “settled policy” of avoiding unnecessary constitutional questions, Pennhurst requires us to face those questions. Fortunately, as will be indicated below, the Massachusetts Supreme Judicial Court‘s answers to our certified questions of state law have simplified our current task by changing the variables in the constitutional equation.