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

*************************************************************************
<<FOOTNOTES>>

<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.