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. e du/thir dc ir c uit_1998/176Filed July 30, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 97-1553 and 97-1589

PHILADELPHIA FEDERATION OF TEACHERS, AMERICAN FEDERATION OF TEACHERS, LOCAL 3, AFL-CIO; LOCAL 22, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO; DISTRICT COUNCIL 47, AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,

Appellants No. 97-1553

v.

THOMAS J. RIDGE, in his official capacity as the Governor of the Commonwealth of Pennsylvania; JOHNN Y BUTLER, in his official capacity as Secretary of La bor and Industry of the Commonwealth of Pennsylvania; RICHA RD A. HIMLER, in his official capacity as Director of the Bureau of Workers' Compensation

PHILADELPHIA FEDERATION OF TEACHERS, AMERICAN FEDERATION OF TEACHERS, LOCAL 3, AFL-CIO; LOCAL 22, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO; DISTRICT COUNCIL 47, AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO

v.

THOMAS J. RIDGE, in his official capacity as the Governor of the Commonwealth of Pennsylvania; JOHNN Y BUTLER, in his official capacity as Secretary of La bor and Industry of the Commonwealth of Pennsylvania; RICHA RD A. HIMLER, in his official capacity as Director of the Bureau of Workers' CompensationThomas J. Ridge, Governor of the Commonwealt h

of Pennsylvania; Johnny J. Butler, Secretary of Labor and Industry of the Commonwealth of Pennsylvania; and Richard A. Himler, Directo r of the Bureau of Workers' Compensation of the Commonwealth of Pennsylvania,

Appellants No. 97-1589

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civil No. 96-cv-008051)

Argued: March 20, 1998

Before: BECKER, Chief Judge, RENDELL and HEANEY,* Circuit Judges

(Filed July 30, 1998)

Deborah R. Willig Ralph J. Teti Catherine M. Reisman (Argued) Willig, Williamson & Davidson 1845 Walnut Street, 24th Floor Philadelphia, PA 19103

Attorneys for Appellants/ Cross-Appellees

Paul F. Tufano Roger E. Grimaldi (Argued) Anthony S. Potter
Office of General Counsel 333 Market Street, 17th Floor Harrisburg, PA 17101-2210

Attorneys for Appellees/ Cross-Appellants

___________________________________________________ ______________

*Honorable Gerald W. Heaney, United States Circuit Judge for the Eighth Circuit, sitting by designation.

2OPINION OF THE COURT

BECKER, Chief Judge

On June 24, 1996, Pennsylvania Governor Tom Ridge signed into law the Act of June 24, 1996, P.L. 350, No. 57 ("Act 57"), which substantially reformed Pennsylvan ia's system of workers' compensation. On December 4, 199 6, the plaintiffs, three unincorporated labor organiza tions -- the Philadelphia Federation of Teachers, Local 3, A FL-CIO;
Local 22 of the International Association of Firefi ghters, AFL-CIO; and District Council 47 of the American Federation of State, County, and Municipal Employee s, AFL-CIO (collectively "plaintiffs") -- filed this a ction against the Governor; Johnny J. Butler, Secretary of Labor and Industry; and Richard A. Himler, Director of the Bu reau of Workers' Compensation, in their official capacities , seeking a declaration that Sections 204(a) and 306(a.2) of the Pennsylvania Worker's Compensation Act, Act of June 2, 1915, P.L. 736 ("WCA"), as amended by Act 57, viola te the United States and Pennsylvania constitutions. The p laintiffs also sought an injunction permanently enjoining the defendants from enforcing these sections. They rely upon 42 U.S.C. S 1983.

The defendants moved to dismiss plaintiffs' complai nt for lack of subject matter jurisdiction, Fed. R. Civ. P . 12(b)(1), and for failure to state a claim upon which relief could be granted, Fed. R. Civ. P. 12(b)(6). With regard to t heir Rule 12(b)(1) motion, the defendants argued that the dis trict court lacked jurisdiction because: (1) the matter i s not ripe for judicial review; (2) plaintiffs lack standing t o pursue their claims; and (3) plaintiffs' claims are barred by the
Eleventh Amendment of the United States Constitutio n. The district court granted the Motion to Dismiss, basin g its holding on the conclusion that plaintiffs' claims w ere not ripe and, therefore, did not present a justiciable controversy. The court rejected defendants' argumen t that plaintiffs' complaint is barred by the Eleventh Ame ndment, and declined to address whether plaintiffs had stan ding or whether they had stated proper claims for relief.

3Plaintiffs filed a timely appeal, contending that t he

district court erred in holding that their claims w ere not ripe. Defendants cross-appealed, seeking review of the district court's refusal to dismiss plaintiffs' com plaint based upon the Eleventh Amendment's jurisdictional bar. W e have jurisdiction under 28 U.S.C. S 1291 and exercise pl enary review over the district court's order dismissing p laintiffs' complaint for lack of subject matter jurisdiction. See Armstrong World Indus., Inc. v. Adams, 961 F.2d 405 , 410 (3d Cir. 1992). We affirm on the ground that the di spute is not justiciable because plaintiffs have failed to d emonstrate a controversy ripe for resolution by the federal co urts. We therefore decline to reach the issues raised by the crossappeal.

I. THE CHALLENGED PROVISIONS

A. The Impairment Rating (Procedural Due Process Cl aim)

Section 4 of Act 57 amended Section 306 of the WCA to add section 306(a.2), 77 P.S. S 511.2 (West Supp. 1 997), permitting employers to require an employee to subm it to an impairment rating evaluation after the employee receives total disability benefits for 104 weeks. See 77 P.S

. S 511.2(1). Pursuant to section 511.2, an impairmen t rating evaluation is performed by a licensed physician cho sen by the parties or appointed by the Department of Labor and Industry (the "Department"). See id. The purpose of the evaluation is to determine the level of the employe e's impairment rating. If the employee's impairment rat ing is fifty percent or greater under the American Medical
Association's Guide to the Evaluation of Permanent Impairment, he or she remains classified as "totall y disabled." See S 511.2(2). If, however, the examina tion results in an impairment rating that is less thanfi fty percent, the employee is reclassified as "partially disabled."
See id.

The change in status from "totally disabled" to "pa rtially disabled" does not automatically affect the amount of compensation that the insurer must pay the employee

. Rather, the Act provides that "[u]nless otherwise adjudicated or agreed to based upon a determination of

4earning power under [S 512(2)], the amount of

compensation shall not be affected as a result of t he change in disability status and shall remain the same." Se e S 511.2(3). The change in status does, however, aff ect the length of time that a claimant may receive workers' compensation benefits. An employee who is classifie d as "totally disabled" is entitled to collect benefits for as long as he or she remains classified as such. An employee w ith a partial disability, however, is eligible to receive benefits only for a period of 500 weeks, or approximately ten yea rs. See S 511.2(7).

Before changing an employee's disability status, an employer must provide the employee with sixty days notice that his or her impairment rating evaluation showed that the employee was less than fifty percent impaired. See S 511.2(2). The Act also provides that "[a]n employ ee may appeal the change to partial disability at any time during the five hundred-week period of disability; Provide d, That there is a determination that the employee meets th e threshold impairment rating that is equal to or gre ater than fifty percentum impairment . . .." S 511.2(4).

Plaintiffs seek a declaration that, on its face, WC A S 306(a.2), 77 P.S. S 511.2, violates the due proce ss clauses of the United States and Pennsylvania constitutions , U.S. Const. amend. XIV; Pa. Const., art. 1, S 1. Althoug h the Act provides employees whose status is changed to parti ally disabled the right to appeal their change in status , see 77 P.S. S 511.2(4), plaintiffs maintain that the proce dures that will ultimately be employed by the Department durin g this "appeal process" will deprive their members of the right to procedural due process of law. Plaintiffs rest this claim on the fact that the term "appeal" is not defined in t he statute and that, typically, an appeal to the Worker's Compensation Board, as opposed to a hearing, does n ot involve a fact-finding procedure and de novo adjudi cation. Plaintiffs further allege that the Act is rendered facially unconstitutional by the fact that the appeal proces s contained in S 511.2(4) is only available following a determination that the employee is equal to or grea ter than fifty percent impaired. 77 P.S. S 511.2(4). Plainti ffs also seek to enjoin enforcement of the statute.

5B. The Pension Offset (Contracts Clause Claim)

Section 3 of Act 57 amended Section 204(a) of the W CA to provide that benefits from a pension plan -- to the extent funded by the employer directly liable for the paym ent of wage replacement compensation received by a claiman t-- shall be credited against the amount of the award t o the claimant for wage replacement benefits based on inj ury or occupational disease.1 See 77 P.S. S 71(a) (West Su pp. 1997). The plaintiffs contend that the offset for p ension
benefits violates the contracts clause of both the United States and Pennsylvania constitutions, U.S. Const. art. I, S 10, cl. 1; Pa. Const. art I, S 17, by unilaterall y diminishing the contractual pension rights of public sector emp loyees by reducing the value of their pension benefits. Ag ain, plaintiffs seek declaratory relief and an injunctio n.

II. RIPENESS

"The existence of a case and controversy is a prere quisite to all federal actions, including those for declara tory or injunctive relief." Presbytery of New Jersey of Ort hodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 ( 3d Cir. 1994). One aspect of justiciability is ripeness whi ch "determines when a proper party may bring an action ."2 Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1154 (3 d Cir. 1995) (quoting Armstrong, 961 F.2d at 411). The fun ction of the ripeness doctrine is to prevent federal courts, "through avoidance of premature adjudication, from entanglin g themselves in abstract disagreements." Abbott Labs v.

___________________________________________________ ______________

1. Prior to the enactment of section 3 of Act 57, t he Act allowed employers to offset the amount of workers' compensa tion benefits payable by the amount of unemployment compensation benefits paid to the claimant. See 77 P.S. S 71 (West 1992). Act 57 continues to allow employers to offset workers' compensation benefits by unemployment benefits, but it also permits employers to offset S ocial Security benefits, severance benefits, and pension benefits. See 77 P. S. S 71(a) (West Supp. 1997).

2. As noted above, the district court declined to a ddress defendants' challenge to plaintiffs' standing. We too will not address this question, and assume for the purposes of this discussion that plaintiffs have standing.

6Gardner, 387 U.S. 136, 148 (1967), overruled on oth er

grounds, Califano v. Sanders, 430 U.S. 99, 105 (197 7).3 Further, "[w]e presume that federal courts lack jur isdiction unless the contrary appears affirmatively from the record." Renne v. Geary, 501 U.S. 312, 316 (1991) (internal quotations marks and citations omitted). It is the plaintiffs' responsibility to clearly allege facts that invoke the court's jurisdiction. See id.

In Abbott Labs, the Supreme Court established a two part test for determining whether a prayer for a de claratory judgment is ripe. A court should look to (1) "thefi tness of the issues for judicial decision," and (2) "the har dship to the parties of withholding court consideration." 38 7 U.S. at 149; Texas v. United States, 118 S. Ct. 1257, 1260 (Mar. 31, 1998).4 Under the "fitness for review" inquiry, a court considers whether the issues presented are purely l egal, as

___________________________________________________ ______________

3. In this respect, the ripeness doctrine is closel y related to the case

or controversy requirement of Article III of the Unite d States Constitution. See United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1231 & n.6 (3d Cir. 1977). Just how closely related, however, is not entirely clear.

As we have previously noted:

There is some disagreement among courts and commentators as to whether the ripeness doctrine is grounded in the case or controversy requirement or is better characterized as a prudential limitation

on federal jurisdiction. . . . But regardless w hether the ripeness doctrine has a prudential component, it seem s clear that it is at least partially grounded in the case or cont roversy requirement.

See Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411 n.12 (3d Cir. 1992) (citations omitted).

Thus, while we believe that an argument can be made that plaintiffs' claims do not present the type of case or controver sy to which federal courts are limited, we need not pursue this inquiry separately, since it is subsumed within our ripeness analysis.

4. In Step-Saver Data Sys., Inc. v. Wyse Technology , 912 F.2d 643 (3d Cir. 1990), we offered a three-part inquiry as a re finement of the Supreme Court's test. Our inquiry focuses on: (1) t he adversity of the parties' interests; (2) the conclusiveness of the j udgment; and (3) the utility of the judgment. 912 F.2d at 647. Our refin ement simply alters the headings under which various factors are groupe d, and since StepSaver, we have employed both tests. Compare Artway v. Attorney General of N.J., 81 F.3d 1235, 1247 (3d Cir. 1996) (two-par t test), and NewHanover Tp. v. United States, 992 F.2d 470, 472 (3d Cir. 1993) (same)

with Armstrong, 961 F.2d at 41 (three-part test), a nd Travelers Ins., 72 F.3d at 1154 (same). We apply the Supreme Court's t wo-part test
because we find that its framework better accommoda tes our analysis in
this case.

7opposed to factual, and the degree to which the cha llenged

action is final. The various factors that enter int o a court's
assessment of fitness include: whether the claim in volves uncertain and contingent events that may not occur as anticipated or at all; the extent to which a claim is bound up in the facts; and whether the parties to the act ion are sufficiently adverse. See Riva v. Massachusetts, 61 F.3d 1003, 1009-10 (1st Cir. 1995).

The second prong focuses on the hardship that may b e entailed in denying judicial review, and the determ ination whether any such hardship is cognizable turns on wh ether the challenged action creates a "direct and immedia te"dilemma for the parties, such that the lack of preenforcement review will put the plaintiffs to costl y choices. See Abbott Labs., 387 U.S. at 152; W.R. Grace & Co. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992).

A. The Impairment Rating (Procedural Due Proce ss C laim)

Plaintiffs allege that WCA S 304(a.2) is unconstitu tional because it does not, on its face, afford their memb ers a meaningful opportunity to be heard regarding the ch ange in their disability status from "totally" to "partiall y" disabled. Since this change in status will lead directly to t he termination of benefits after a 500 week period, pl aintiffs allege that, by action of the statute, their member s will be deprived of their property (i.e. the compensation b enefits) without due process of law.5 The district court con cluded

___________________________________________________ ______________

5. As noted above, this assertion rests on plaintif fs' interpretation of

the appeal process provided in section 304(a.2)(4), 77 P.S. S 512.2(4), which they contend does not provide for a de novo hearing reviewing the change in disability status. Plaintiffs' interpreta tion is undermined by

the regulations promulgated by the Pennsylvania Departm ent of Labor and Industry interpreting Act 57 which became effective on January 17, 1998, after the district court had issued its order . The section of the regulations which implements the appeal provision o f section 306(a.2), provides that:

At any time during the receipt of 500 weeks of partial disability compensation, the employe may appeal the adj ustment of benefit status to a workers' compensation judge by f iling a Petition for
Review.

8that review of plaintiffs' claim was premature beca use, as a

result of various contingencies, the court could no t be certain that the statute would necessarily operate against any of the unions' members.6

We are inclined to disagree with the district court that there is uncertainty regarding whether the statute will ever operate against any of the plaintiffs' members; rat her, we find persuasive plaintiffs' argument that such an eventuality is almost certain. There is, however, a great deal of uncertainty regarding how the statute will opera te against plaintiffs' members. It is this uncertainty that renders the claim unfit for judicial review. Plaint iffs ask the

___________________________________________________ ______________

34 Pa. Code S 123.105(f). Under the WCA, an employe e filing a petition for review is entitled to a prompt hearing. See 77 P.S. S 710 (West 1992). The workers' compensation judge assigned to the cas e is charged with holding a full evidentiary hearing, making findings of fact, conclusions

of law, and ultimately determining whether a change in disability status was in accordance with the terms of section 306(a.2 ). See 77 P.S. S 833, 834 (West 1992 & West Supp. 1997). Further, any par ty aggrieved by a workers' compensation judge's ruling has a right to appeal to the Workers' Compensation Appeal Board. See 77 P.S. S 8 53. A party aggrieved by the Appeal Board's decision has a righ t to appeal to the Commonwealth Court of Pennsylvania, see 42 P.S. S 7 63, and a party aggrieved by that decision has the right to seek pe rmission to appeal to the Supreme Court of Pennsylvania, see 42 P.S. S 72 4.

6. The contingencies relied upon by the district we re that, in order for plaintiffs' members to be subject to the provisions of Section 306(a.2): (1) one of the members must suffer a compensable work-r elated injury after the effective date of Act 57, (2) the same member m ust be classified as totally disabled, (3) such total disability must co ntinue for a period of 104 weeks and not be changed because of the insurer 's successful demonstration of earning power, (4) after the membe r's receipt of 104 weeks of total disability benefits, the insurer mus t request that the member submit to an impairment rating evaluation, ( 5) the evaluation must result in an impairment rating of less than 50 % under the
American Medical Association's Guides to the Evalua tion of Permanent Impairment, (6) the insurer must adjust the disabil ity status of the member from total to partial, and (7) the member mu st, over a period of 500 weeks, be unable to demonstrate that the impair ment is greater than 50%. See Philadelphia Fed. of Teachers v. Ridg e, 1997 WL 364397, at * 7 (E.D. Pa. June 20, 1997).

9court to declare constitutionally deficient procedu res that

have yet to be applied. Such a judgment would be premature. Rather, we believe that review of plaint iffs' procedural due process claim must be done in the co ntext of a specific factual setting.

Our conclusion is buttressed by Judge Calabresi's r ecent decision in Thomas v. City of New York, ___ F.3d __ _, 1998 WL 210679 (2d Cir. Apr. 28, 1998). There, the court considered, inter alia, a due process challenge to the procedures set forth in a new local law governing t he licensing procedures for livery cab base stations. The court concluded that this claim was not ripe for judicial review
since

None of the plaintiffs has, to date, been de nied a license. And, while on the face of [the new law] and its regulations, no proceedings -- either writte n findings or oral hearings -- are mandated prior to th e denial of licenses or of license renewals, we do not k now at this time what procedures [the agency] will in fa ct follow before denying licenses. It follows that a c laim that a base station operator has been denied a lice nse renewal without procedural due process is be st considered in the context of a specific fact ual setting.

1998 WL 210679, at * 2; see also Texas v. United St ates, 118 S. Ct. at 1260 ("Here, as is often true,`[d]ete rmination of the scope of . . . legislation in advance of its immediate
adverse effect in the context of a concrete case in volves too remote and abstract an inquiry for the proper exerc ise of the judicial function.' " (quoting Longshoremen v. Boyd, 347 U.S. 222, 224 (1954)).

We might still review plaintiffs' procedural due pr ocess claim despite our conclusion that it is best consid ered in the context of a specific factual setting if denial of preenforcement review would work a significant hardshi p to the plaintiffs.7 In this case, however, we discern no

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7. Whether ripeness requires that both parts of the test be satisfied is a matter of some uncertainty. See Ernst & Young v. De positors Econ. Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995) ("The relationship between [the] two parts of the test -- fitness and hardship -- has never

10hardship that will result from withholding review o f the

constitutionality of WCA S 304(a.2) until a court i s able to review the procedures actually employed by the Department. Even assuming that an employee is depri ved of his or her due process rights in the future by t hose procedures, the change in disability status will no t affect the level of benefits provided to the employee for five hundred weeks. See 77 P.S. S 512.2 (7). The employe e will, therefore, have ample time to challenge the constit utionality of the procedures employed before being deprived of any benefits.

B. The Pension Offset (Contract Clause Claims)

Plaintiffs allege that section 204(a) of the WCA, o n its face, violates the contract clauses of both the Uni ted States and Pennsylvania constitutions. This claim, which i s predominately legal, is arguably fit for review. Ho wever, even "the presence of `a purely legal question' is not enough, of itself, to render a case ripe for judici al review, not even as to that issue." Armstrong, 961 F.2d at 421 (quoting Office of Communications of the United Chu rch of Christ v. FCC, 826 F.2d 101, 105 (D.C. Cir. 1987)). Rather, the plaintiffs must still demonstrate that they fac e a real and immediate threat of injury from the denial of p reenforcement review of the merits. See id. at 421-22 . In the absence of such hardship, the better course is for a federal court to wait until the claim is raised in a specif ic factual setting since this will almost universally aid in r eview. As Judge Easterbrook recently opined in a not dissimil ar situation: "if anticipatory review is not essential to avoid hardship, then courts should defer review, in order to obtain the benefits of the more focused presentatio n made possible by a concrete application of the rules." I llinois Council on Long Term Care, Inc. v. Shalala, ___ F.3 d ___,

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been precisely defined."). The majority view is tha t both prongs of the test must ordinarily be satisfied in order to estab lish ripeness, with the caveat that there exists "the possibility that ther e may be some sort of sliding scale under which, say, a very powerful exh ibition of immediate hardship might compensate for questionable fitness. . . or vice versa." See id. (collecting citations). We need not conside r the issue here.

111998 WL 228063, * 6 (7th Cir. May 8, 1998) (citing Texas

v. United States, supra.)

In the instant case, even applying the usual standa rds for construing the allegations of a complaint which give the plaintiff the benefit of all favorable inferences, plaintiffs have failed to meet their burden of alleging facts sufficient
to demonstrate a threat of direct and immediate har dship stemming from the lack of pre-enforcement review. R ather, plaintiffs simply aver, in conclusory terms, that " [a]s a result of the passage of Section 3 of Act 57, the P laintiffs' members are suffering immediate and/or threatened i njury . . . ." (Compl. PP 46, 54). Plaintiffs do not, how ever, allege any facts that support this legal conclusion by demonstrating the actual and immediate harm they or their members suffer from Section 204(a) of the WCA.

Plaintiffs, in their briefing, do assert a direct a nd immediate harm to their members. There, plaintiffs contend that section 204(a) creates an uncertainty regardin g their
members' future income streams since their members cannot be sure that they will receive full pension benefits and full workers' compensation benefits if they hav e the misfortune of being injured on the job. The argumen t that this uncertainty constitutes a cognizable harm for purposes of ripeness analysis is based on the Court of Appea ls' decision in Riva v. Massachusetts, 61 F.3d 1003 (1s t Cir. 1995). Riva involved a claim that the Massachusetts accidental disability retirement scheme violated th e Age Discrimination in Employment Act. The challenged po rtion of the statute provided that disability benefits wo uld be reduced at age sixty-five for retired public employ ees with less than ten years creditable service who were ove rfiftyfive at the time of their accidental disability ret irement. The court found that the statute was ripe for review ev en though it would not directly affect the plaintiff f or several years. The plaintiff, Robert Keenan, had already be en declared permanently disabled at the age of fifty-s ix and
had received notice that his benefits would be redu ced when he turned age sixty-five by operation of the challenged statute. In applying the Abbott Labs fra mework, the court found that the hardship prong was satisfi ed because the uncertainty about the validity of the s tatute

12made it impossible for Keenan, then age fifty-eight
,

"prudently to arrange his fiscal affairs" in antici pation of his retirement years. 61 F.3d at 1012.

We believe that Riva is distinguishable from the in stant case. The Riva court had before it a plaintiff who had already been declared permanently disabled and who would be adversely affected by the statute at the time wh en he turned sixty-five unless the statute was repealed o r amended, or unless he died. 61 F.3d at 1010-11. Her e, we have no such plaintiff, and thus no one has suffere d as "direct and immediate" an injury as Keenan. Moreove r, Riva involved much less hardship then was present in Abb ott Labs, where the regulation at issue had a "direct e ffect on the day-to-day business" of the plaintiffs, who wer e compelled to affix required labeling to their produ cts under
threat of criminal sanction. See 387 U.S. at 153. W e are not convinced, therefore, that the finding of hardship in Riva is supportable. However, even if it is, the hardship a sserted in this case is one step removed even from Riva, and t hat step
is one that we decline to take.

Thus, we conclude that review of the constitutional ity of Section 204(a) by a federal court, like review of S ection 306(a.2), should be reserved until such time as the court is presented with a concrete factual situation. We not e, also, that that day is likely not too far off. As of June 24, 1998,
it has been 104 weeks since the effective date of A ct 57 and thus presumably some employee has appealed (or soon will appeal) a change in his or her disability status, t hus triggering the review process set forth in 77 P.S.S 511.2 and the applicable regulations. We also assume that the pension offset provision has been, or soon will be, utilized.

The order of the district court, dismissing without prejudice plaintiffs' complaint on the ground that it did not present a controversy ripe for resolution, will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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