FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD DOYLE; ROBERT DEUEL;  No. 07-35753

BENEDICT MILLER; and CHARLES D.C. No.

STEINBERG, CV-06-03058-PA

Plaintiffs-Appellants, District of Oregon,

v. Medford

CITY OF MEDFORD, an Oregon  ORDER

municipal corporation; and CERTIFYING A

MICHAEL DYAL, City Manager, QUESTION TO

City of Medford, in his official THE SUPREME

capacity and as an individual, COURT OF

Defendants-Appellees. OREGON 

Filed May 4, 2009

Before: Susan P. Graber, Raymond C. Fisher, and

Milan D. Smith, Jr., Circuit Judges.

COUNSEL

Stephen L. Brischetto, Portland, Oregon, for the plaintiffsappellants. 

Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr.,

Springfield, Oregon, for the defendants-appellees. 

5177
ORDER

Plaintiffs, who are former employees of Defendant City of

Medford, argue that the City’s policy of denying health insurance coverage to retirees violates Oregon Revised Statutes

section 243.303, City Resolution No. 5715, and the Due Process Clause of the United States Constitution. Plaintiffs contend that section 243.303 and Resolution No. 5715 confer on

them a vested property interest in health care benefits after

retirement, of which the City deprived them without due process of law. Because the question whether the statute and Resolution confer on Plaintiffs a protected property interest raises

an important and unresolved issue of Oregon law that will dispose of the only remaining federal claim on appeal, we

respectfully certify a question to the Supreme Court of Oregon. We offer the following statement of relevant facts and

explanation of the “nature of the controversy in which the

question[ ] arose.” Or. Rev. Stat. § 28.210. 

BACKGROUND

A. Factual and Procedural History

In 1981, the Oregon State Legislative Assembly enacted

Oregon Revised Statutes section 243.303(2), which read, in

pertinent part: 

The governing body of any local government that

contracts for or otherwise makes available health

care insurance coverage for officers and employees

of the local government, may, in so far as and to the

extent possible, make that coverage available for

retired officers and employees of the local government and for spouses and unmarried children under

18 years of age of those retired officers and employees. The governing body may prescribe reasonable

terms and conditions of eligibility and coverage, not

inconsistent with this section, for making that cover5178 DOYLE v. CITY OF MEDFORD
age available. The local government may agree to

pay none, part or all of the cost of making that coverage available. 

1981 Or. Laws page no. 258 (emphasis added). 

In 1985, the statute was amended. The most significant

change was that the legislature replaced the discretionary

word “may” with the mandatory word “shall.” The statute

currently reads: 

The governing body of any local government that

contracts for or otherwise makes available health

care insurance coverage for officers and employees

of the local government shall, insofar as and to the

extent possible, make that coverage available for any

retired employee of the local government who elects

within 60 days after the effective date of retirement

to participate in that coverage and, at the option of

the retired employee, for the spouse of the retired

employee and any unmarried children under 18 years

of age. The health care insurance coverage shall be

made available for a retired employee until the

retired employee becomes eligible for federal Medicare coverage, for the spouse of a retired employee

until the spouse becomes eligible for federal Medicare coverage and for a child until the child arrives

at majority, and may, but need not, be made available thereafter. The governing body may prescribe

reasonable terms and conditions of eligibility and

coverage, not inconsistent with this section, for making the health care insurance coverage available. The

local government may pay none of the cost of making that coverage available or may agree, by collective bargaining agreement or otherwise, to pay part

or all of that cost. 

Or. Rev. Stat. § 243.303(2) (2007) (emphasis added). 

DOYLE v. CITY OF MEDFORD 5179
In 1986, the City adopted Resolution No. 5715, which set

forth the City’s plan for complying with section 243.303. The

Resolution interprets section 243.303 as requiring “that continuation of health insurance be offered to employees who

retire from City service.” The Resolution provides that a

retired employee has 60 days from the date of retirement in

which to elect to continue his or her participation in the City’s

health insurance program. The retiree also can elect to enroll

his or her spouse and unmarried children under age 18 in the

program, if they were covered while the retiree was employed

by the City. Under the Resolution, coverage continues until

one of several events (including the retiree’s attainment of

Medicare eligibility or termination of the retiree program by

the City or its carrier) occurs. 

Before 1990, the City permitted all employees to elect to

continue their health insurance coverage upon retirement. In

1990, however, the City negotiated with its police officers’

union for a health insurance program that did not give officers

the opportunity to continue coverage after retirement. In 2001,

the City placed all of its management-level employees under

that same health insurance program, which does not cover

retirees. In 2002, the City placed its non-management

employees in both its Parks and Recreation Department and

Public Works Department in the same program. 

The City contracts with the Oregon Teamsters Employers

Trust to provide health insurance to its employees. The Teamsters’ contract with the City states: “[P]articipants are not

allowed to participate in the Trust’s Retiree Plan or any

insured or HMO option available through it.” This provision

means that retirees are excluded from coverage under the

Teamsters’ plan. The members of the Teamsters are responsible for voting on the extent of coverage. According to the

City, the Teamsters were “willing” to provide health insurance benefits to retired employees, but only “if the members

of the Teamsters voted for such coverage.” To date, the mem5180 DOYLE v. CITY OF MEDFORD
bers of the Teamsters have not approved an extension of

health insurance benefits to retirees. 

Although the City does not provide health insurance coverage after retirement, retirees can choose to remain covered for

18 months after their retirement under the Consolidated

Omnibus Budget Reconciliation Act of 1985. After that 18-

month period expires, retired employees can enroll in the Oregon Public Employees Retirement System Health Insurance

Program, into which the City has paid so that its retired

employees can obtain coverage. 

Plaintiffs are former City police officers or managementlevel employees who have retired and who have been denied

benefits under the Teamsters’ plan.1 In August 2006, Plaintiffs

filed suit against the City and City Manager Michael Dyal,

alleging that Defendants had violated Resolution No. 5715

and Oregon Revised Statutes section 243.303; the Due Process Clause; the Age Discrimination in Employment Act of

1967 (“ADEA”); and the parallel Oregon age discrimination

statute, Or. Rev. Stat. § 659A.030.2 Defendants moved for

summary judgment, which the district court granted. 

1Defendants assert that Plaintiffs’ claims are barred by Oregon’s twoyear statute of limitations for actions brought under 42 U.S.C. § 1983. See

Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002). Defendants

argue that Plaintiffs’ injuries occurred when the City decided to switch to

a plan that did not provide coverage for retirees (1999 for police officers

and 2001 for management-level employees). We think that the applicable

injury dates are 60 days after each Plaintiff’s individual retirement date

because, by then, each Plaintiff would have applied for benefits under

Resolution No. 5715 and would have been denied coverage. Under that

analysis, Plaintiffs Steinberg and Deuel would be dismissed from the

action because they did not bring suit within two years of their 60-day

windows expiring. But Plaintiffs Miller and Doyle would remain, because

the suit was filed within two years of the expiration of their 60-day windows. 

2The ADEA claim is the subject of a separate decision, embodied in an

unpublished memorandum disposition filed this date. The ADEA claim

DOYLE v. CITY OF MEDFORD 5181
In its order granting summary judgment, the district court

held that neither section 243.303 nor Resolution No. 5715

afforded Plaintiffs a constitutionally protected property interest. Because no Oregon court had yet interpreted either the

statute or the Resolution, the court examined Ninth Circuit

case law and reasoned that the statute’s text did not “sufficiently limit the conditions under which the City would be

required to extend health insurance coverage to retirees.” The

court declined to exercise supplemental jurisdiction over

Plaintiffs’ remaining state law claims, dismissing them without prejudice and with leave to refile in state court. 

Following the district court’s grant of summary judgment,

Plaintiffs filed their state law claims in Oregon state court.

Plaintiffs alleged four claims: (1) the City violated section

243.303, which Plaintiffs argue provides a private right of

action; (2) the City violated Resolution No. 5715, which

Plaintiffs also argue provides a private right of action; (3) the

City violated Oregon’s age discrimination law; and (4) the

City breached an implied contract it had made with Plaintiffs.

The state trial court held in November 2008 that the claims of

two of the four plaintiffs (Steinberg and Deuel) were barred

on statute of limitations grounds, but that the claims of the

other two plaintiffs (Doyle and Miller) could proceed.3 The

does not affect the certified question. The Oregon age discrimination

claim, along with other state law claims, is pending in Oregon state court.

See Doyle v. City of Medford, Case No. 08-0137-L7, Circuit Court of

Jackson County (complaint filed Jan. 9, 2008). A second set of plaintiffs,

who are current employees of the City, filed an identical set of claims in

federal court. That case was dismissed from federal court for lack of ripeness, see Bova v. City of Medford, No. 08-35091, slip op. at 5167 (9th Cir.

May 4, 2009), but those plaintiffs are also pursuing their state claims in

state court. See Bova v. City of Medford, Case No. 08-1663-E7, Circuit

Court of Jackson County (amended complaint filed Apr. 10, 2008). 

3

See Opinion and Order on Defendants’ Motion for Partial Summary

Judgment, Case No. 08-0137-L7, Circuit Court for Jackson County (Nov.

20, 2008). See also supra note 2. 

5182 DOYLE v. CITY OF MEDFORD
court held that section 243.303 afforded Plaintiffs a private

right of action, but that Resolution No. 5715 did not. 

The court rejected the City’s argument that it was not

required to allow its retired employees to continue the same

coverage offered to current employees because providing

such coverage is “impossible” under the City’s contract with

the Teamsters. The court held that Defendants cannot escape

the requirements of section 243.303 by “conspicuously contracting with an insurance provider whose coverage does not

include retirees.” Because Defendants did not present “the

Court with undisputed evidence that no entity providing

health care insurance was (and is) willing to provide [health

care] coverage for both current and retired employees of the

City of Medford,” the court refused to say that, as a matter of

law, it was impossible for the City to provide coverage to

retirees. Additionally, the court decided that the phrase “to the

extent possible” does not mean “to the extent financially prudent,” because the Oregon legislature did not include the

words “subject to the availability of funds” in section

243.303, as it has in some other statutes. That case is still

pending in state court; as of the date of this Order, no final

judgment has been entered and no appeal has been taken. 

B. Due Process Claim 

Plaintiffs argue that section 243.303 and Resolution No.

5715 create for retired City employees a property interest in

health insurance benefits after retirement and that, by denying

Plaintiffs such benefits, the City has deprived them of property without due process of law. Resolving that issue of federal law necessarily depends on the state courts’ construction

of section 243.303. See Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 577 (1972) (holding that property interests are

not created by the Constitution but, “[r]ather, they are created

and their dimensions are defined by existing rules or understandings that stem from an independent source such as state

DOYLE v. CITY OF MEDFORD 5183
law[ ]rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits”). 

No Oregon appellate court yet has interpreted section

243.303. Despite the guidance concerning statutory interpretation provided by Portland General Electric Co. v. Bureau of

Labor & Industries, 859 P.2d 1143 (Or. 1993), we discern no

readily definitive meaning in this statute. As advised by Portland General Electric, we have examined the text and context

of the statute, id. at 1146, but a significant ambiguity in the

text, coupled with the absence of guidance from any Oregon

appellate court, leaves us without an answer from the application of Oregon’s case law. 

The statutory text is ambiguous. As noted, section

243.303(2) provides that “any local government that contracts

for or otherwise makes available health care insurance coverage for officers and employees of the local government shall,

insofar as and to the extent possible, make that coverage

available for any retired employee of the local government

who elects within 60 days after the effective date of retirement to participate in that coverage.” (Emphasis added.) The

phrase “insofar as and to the extent possible”

4

 could impose

any one of a wide range of requirements on local governments. At one extreme, that phrase could restrain local governments’ discretion tightly and mean that they must purchase

insurance from a carrier that will provide coverage to retirees

without regard to cost, feasibility of administration of the

plan, or public opinion, as long as any insurer anywhere, at

any cost, would cover retirees. At the other extreme, the

phrase could grant significant discretion to local governments

to reject insurance carriers who provide retiree coverage, simply because another plan exempting retirees is less expensive,

gives better benefits, or is otherwise more attractive. 

4Section 243.303 appears to be the only Oregon statute that contains this

exact phrase. We have found no Oregon cases that interpret a similar statutory phrase in an analogous context. 

5184 DOYLE v. CITY OF MEDFORD
The legislative history of the statute, to which we turn

when the legislature’s intent is not clear from the text and

context of the statute, see Portland Gen. Elec., 859 P.2d at

1146, does not shed much light on the proper interpretation of

the phrase “insofar as and to the extent possible.” When originally enacted in 1981, the statute provided that local governments “may, in so far as and to the extent possible,” provide

health insurance coverage to retired employees. 1981 Or.

Laws page no. 258. The legislative history from 1981 demonstrates that the legislature intended to convey a significant

amount of discretion to local governments to determine, using

their own standards, whether retiree coverage was possible.

See Minutes, Senate Local Government, Urban Affairs, and

Housing Committee for Public Hearing Regarding HB 3010,

page 4, Oregon State Legislative Assembly (June 1, 1981)

(noting that several senators recognized the bill as “permissive” and that one senator “said the bill only made it clear to

local governments that . . . [retiree coverage] could be negotiated if so desired”); Minutes, House Committee on Intergovernmental Affairs for Public Hearing Regarding HB 3010,

pages 3-4, Oregon State Legislative Assembly (Apr. 22,

1981) (noting that the Legislative Counsel chose to use the

word “may” rather than “shall” in the 1981 version “because

of availability and flexibility of insurance coverage in [the]

area”). But the discussion did not illuminate the meaning of

the phrase that carries over to the present day—“insofar as

and to the extent possible.” 

In 1985, despite opposition, the legislature replaced “may”

with “shall.” That change takes away at least some of the

local government’s discretion to determine whether providing

retiree coverage is possible, but the 1985 legislative history

does not advise us about what amount of discretion, if any,

still remains in the hands of local governments. The legislative history demonstrates that some legislators were concerned about the additional costs that the mandatory wording

would impose. See, e.g., Minutes, House Committee on Intergovernmental Affairs for Public Hearing Regarding HB 2430,

DOYLE v. CITY OF MEDFORD 5185
pages 3-4, Oregon State Legislative Assembly (Mar. 5, 1985)

(noting that one representative “questioned figures of estimated cost increases for premiums,” another “questioned if

insuring retired persons on a city’s group plan increases the

rates of the other insurees,” and yet another “commented on

the problem of insuring retired persons at the expense of cities”). Despite those concerns, the bill passed with the phrase

“insofar as and to the extent possible” left intact. The legislative history does not inform us whether that phrase survived

untouched in order to leave some discretion in the hands of

local governments, to satisfy opponents of the bill who

believed that a strict mandatory rule would be prohibitively

expensive for cities, or just by oversight. Nor does the history

explain what the phrase “insofar as and to the extent possible”

means in this context. 

Pinpointing how much discretion the operative phrase

leaves to local governments is central to deciding the federal

constitutional issue in this case because, in determining

whether a state statute confers on a party a protected property

interest, our primary inquiry is “ ‘the extent to which the statute contains mandatory language that restricts the discretion

of the [decisionmaker].’ ” Allen v. City of Beverly Hills, 911

F.2d 367, 370 (9th Cir. 1990) (alteration in original) (quoting

Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980)).

Surely, the move from discretionary to mandatory phrasing

demonstrates a shift in local governments’ responsibility to

provide health insurance coverage for retired employees. But,

without guidance from the Oregon Supreme Court about what

the phrase “insofar as and to the extent possible” means in

this context or how dramatic a shift in the local governments’

discretion the legislature intended, we are unable to decide the

federal constitutional question accurately. 

If examination of the text, context, and legislative history

does not demonstrate the legislature’s intent, a court “may

resort to general maxims of statutory construction to aid in

resolving the remaining uncertainty.” Portland Gen. Elec.,

5186 DOYLE v. CITY OF MEDFORD
859 P.2d at 1146. We are hesitant, however, to speculate

about which general maxims of statutory construction the

Oregon Supreme Court would use to interpret this statute and

what result that court would reach. We do not think that it is

appropriate to substitute our judgment for the judgment of the

Oregon Supreme Court on the interpretation of Oregon’s statutory scheme for providing health insurance coverage to

retired public employees. 

We recognize that the court takes into account several discretionary factors when deciding whether to accept a question

for certification. W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 630 (Or. 1991).5

 Several of those

factors weigh in favor of the court’s accepting this certified

question. To begin, we think that the question whether retired

public employees have a vested property right to health insurance coverage after retirement under section 243.303 is one

of exceptional importance to citizens of the State of Oregon

and to local governments within the state, especially in light

of the increasing costs of health insurance and the decreasing

budgets of local governments. 

We recognize that a state trial court is considering the

issues presented in this order for certification, which could

implicate the doctrine of “Pullman abstention,” one of the discretionary factors discussed in Western Helicopter. In Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941), the United States Supreme Court “held that the federal

courts should abstain from deciding a case where an unsettled

5The seven criteria for exercising discretion to accept certification are:

(1) the Oregon Supreme Court’s independent assessment of whether there

is controlling Oregon precedent; (2) whether an unsettled question of state

law may be dispositive of a claim that state action violates the United

States Constitution; (3) considerations of comity; (4) the importance of the

certified question of law; (5) whether the issue to be decided is truly contested; (6) the procedural posture of the case; and (7) the extent to which

the Oregon Supreme Court would need to exercise its discretion to restate,

or reframe, the question certified. W. Helicopter, 811 P.2d at 631-34. 

DOYLE v. CITY OF MEDFORD 5187
question of state law may be dispositive of a claim that state

action violated the [United States Constitution], because the

answer to the state law question may obviate the need to

decide the federal constitutional question.” W. Helicopter, 811

P.2d at 632; see also Spoklie v. Montana, 411 F.3d 1051,

1055 (9th Cir. 2005). 

Here, the state courts’ answer to the question of how much

discretion is afforded to local governments under the statute

could be dispositive of Plaintiffs’ claim that the City’s actions

violate the United States Constitution. For example, if the

state courts were to hold that the statute grants local governments unlimited discretion, then under federal law, we would

be obligated to hold that there is no protected property interest

and no corresponding due process violation. Or, Plaintiffs

could get all the relief that they seek from the state court proceedings and, consequently, may choose to dismiss the federal

action. 

Therefore, we could simply abstain from deciding this case

under the Pullman doctrine and, accordingly, wait for the parallel state court action to work its way through the state court

system. However, as the Oregon Supreme Court recognized

in Western Helicopter, certification is appropriate in Pullmantype abstention cases “because the alternative to certification

is federal court abstention and the attendant delay until resolution of the derivative state court . . . action (including trial, the

right to a direct appeal, and the right to seek discretionary

review after the direct appeal).” 811 P.2d at 632; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997)

(“Certification today covers territory once dominated by a

deferral device called ‘Pullman abstention’ . . . .”). In this

case, it could take months, or perhaps even years, for the trial

court to complete its proceedings, as there are other claims,

aside from the statutory claim, that also require resolution.

Even after the trial court has rendered a decision as to its

interpretation of the statute, there is no guarantee that the parties will seek review of that decision. During the significant

5188 DOYLE v. CITY OF MEDFORD
delay, public employees, retired employees, and local governments will be in limbo, uncertain of their rights and obligations under section 243.303. Western Helicopter states that,

“[e]xcept in unusual circumstances (examples of which do not

readily come to mind), [the Oregon Supreme Court] will

accept certification in Pullman-type abstention cases.” Id.

Because this case does not present an unusual circumstance

but, instead, invokes classic Pullman abstention principles, we

respectfully seek certification. 

If we were not to abstain and instead were to interpret the

statute based on our best understanding of Oregon law, the

existence of parallel state and federal proceedings that address

the same legal question presents the risk of inconsistent judgments as to the proper interpretation of section 243.303. If the

federal and state courts adopted different readings of the statute, local governments and their employees would be uncertain about what the law requires of them with regard to retiree

health insurance coverage. Such uncertainty is best resolved

by a definitive decision by the Oregon Supreme Court as to

the proper meaning of section 243.303. 

We also note that both parties in this matter agree that certification is the best way to resolve the statutory interpretation

question. Plaintiffs’ sole objection to certification is that they

should be allowed to conduct discovery and develop a full

factual record before the case proceeds to the Oregon

Supreme Court. We disagree that development of a full factual record is necessary for resolution of the purely legal issue

presented in this appeal. The question as to which we seek

certification is solely one of statutory interpretation and legislative intent that is completely unmoored from particular

facts. We therefore believe that the procedural posture of this

matter does not stand as a bar to certification.

CONCLUSION

We respectfully certify to the Oregon Supreme Court the

following question under Oregon law: 

DOYLE v. CITY OF MEDFORD 5189
What amount of discretion does Oregon Revised

Statutes section 243.303 confer on local governments to determine whether or not to provide health

insurance coverage to their employees after retirement? 

We respectfully ask the Oregon Supreme Court to exercise

its discretionary authority under Oregon’s Uniform Certification of Questions of Law Act, Or. Rev. Stat. §§ 28.200 to

.255, to accept and decide this question. Our phrasing of the

question should not restrict the court’s consideration of the

issues involved. “The court may reformulate the relevant state

law questions as it perceives them to be, in light of the contentions of the parties.” Toner ex rel. Toner v. Lederle Labs.,

779 F.2d 1429, 1433 (9th Cir. 1986). We agree to abide by the

decision of the Oregon Supreme Court. Lombardo v. Warner,

391 F.3d 1008, 1010 (9th Cir. 2004) (en banc) (order). If the

court decides that the question presented in this case is inappropriate for certification, or if it declines the certification for

any other reason, it should so state and we will resolve the

question according to our best understanding of Oregon law.

The Clerk will file a certified copy of our Order with the

Oregon Supreme Court under Oregon Revised Statutes section 28.215. This appeal is withdrawn from submission and

will be submitted following receipt of the Oregon Supreme

Court’s Opinion on the question certified. This panel retains

jurisdiction over further proceedings in this court. The parties

will notify the Clerk within one week after the Oregon

Supreme Court accepts or rejects certification, and again

within one week after the court renders its Opinion. 

IT IS SO ORDERED. 

5190 DOYLE v. CITY OF MEDFORD

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