Bova v. City of Medford ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH BOVA; MARLENE SCUDDER, 
Plaintiffs-Appellants,
v. No. 08-35091
D.C. No.
CITY OF MEDFORD, an incorporated
subdivision of the State of  CV-06-01369-PA
Oregon; MICHAEL DYAL, City ORDER AND
Manager of the City of Medford, OPINION
in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted
March 3, 2009—Portland, Oregon
Filed May 4, 2009
Before: Susan P. Graber, Raymond C. Fisher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Graber
5167
BOVA v. CITY OF MEDFORD 5169
COUNSEL
Stephen L. Brischetto, Portland, Oregon, for the plaintiffs-
appellants.
Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr.,
Springfield, Oregon, for the defendants-appellees.
ORDER
The memorandum disposition filed March 6, 2009, is rede-
signated as an authored opinion by Judge Graber with modifi-
cations.
With the filing of the attached opinion, the petition for
panel rehearing is DENIED. No further petitions for rehearing
or rehearing en banc may be filed.
OPINION
GRABER, Circuit Judge:
This appeal concerns Defendant City of Medford’s (“City”)
policy of discontinuing health care insurance coverage to City
employees after they have retired from City service. Plaintiffs
are current employees of the City who have not yet retired—
and thus who have not yet been denied any benefits—but who
seek injunctive and declaratory relief from the City. We dis-
miss their claims as unripe.1
1
In a related case, Doyle v. City of Medford, No. 07-35753, retired City
employees assert the same substantive claims as in this action. In an order
filed this date, we certified certain questions regarding those substantive
claims to the Oregon Supreme Court.
5170 BOVA v. CITY OF MEDFORD
FACTUAL AND PROCEDURAL HISTORY
Oregon Revised Statutes section 243.303(2) reads, in perti-
nent 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 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.
In 1986, the City adopted Resolution No. 5715, which set
forth the City’s plan for complying with Oregon Revised Stat-
utes section 243.303. The Resolution interprets section
243.303 to require “that continuation of health insurance be
offered to employees who retire from City service.” Before
1990, the City permitted all of its employees to elect to con-
tinue their health insurance coverage upon retirement.
Between 1990 and 2002, the City switched many of its
employees, including Plaintiffs, to a health insurance program
with the Oregon Teamsters Employers Trust (“Teamsters”),
which does not give the employees an opportunity to continue
coverage after they retire. To date, the members of the Team-
sters have not approved an extension of health insurance ben-
efits to retirees.
Plaintiff Joseph Bova is currently employed by the City as
a manager in the Public Works Department. Plaintiff Marlene
Scudder is currently employed as a City police officer. Both
Plaintiffs are eligible for retirement. See Or. Rev. Stat.
§ 238.280 (describing the retirement eligibility requirements
BOVA v. CITY OF MEDFORD 5171
for public employees). The complaint alleges that both Plain-
tiffs will retire within three years of the complaint’s filing.
Plaintiffs allege that the City has violated Oregon Revised
Statutes section 243.303; City Resolution No. 5715; the Due
Process Clause of the Fourteenth Amendment; the federal
Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. §§ 621-634; and the Oregon age discrimination
statute, Oregon Revised Statutes section 659A.030. They seek
declaratory and equitable relief for each claim, but no dam-
ages. Although Plaintiffs allege that they are both of retire-
ment age and could choose to retire at any time, neither has
retired. Consequently, neither has been denied health insur-
ance coverage by the City.
After granting summary judgment to Defendants in the
related case of Doyle v. City of Medford, No. CV 06-3058-
PA, 2007 WL 2248161 (D. Or. July 30, 2007) (unpublished
decision), the district court granted summary judgment to
Defendants in this case on the federal claims. The court dis-
missed Plaintiffs’ remaining state law claims with leave to
refile in state court.2
STANDARD OF REVIEW
Although the parties did not raise the issue of subject mat-
ter jurisdiction, “we have an independent obligation to inquire
into our own jurisdiction.” Perez-Martin v. Ashcroft, 394 F.3d
752, 756 (9th Cir. 2005). The existence of jurisdiction is a
question of law that we review de novo. Id.DISCUSSION
[1] The federal courts are limited to deciding “cases” and
2
Plaintiffs subsequently filed an action in Oregon state court asserting
their state law claims. Bova v. City of Medford, Case No. 08-1663-E7, Cir-
cuit Court of Jackson County (amended complaint filed Apr. 10, 2008).
5172 BOVA v. CITY OF MEDFORD
“controversies.” U.S. Const. art. III, § 2. Two components of
the Article III case or controversy requirement are standing
and ripeness. Colwell v. Dep’t of Health & Human Servs., 558
F.3d 1112, 1121 (9th Cir. 2009). These concepts are “closely
related.” Id. at 1123. To have standing, a plaintiff must have
suffered an injury in fact that is “concrete and particularized;”
that can be fairly traced to the defendant’s action; and that can
be redressed by a favorable decision of the court. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “While
standing is primarily concerned with who is a proper party to
litigate a particular matter, ripeness addresses when litigation
may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir.
1997). “[I]n many cases, ripeness coincides squarely with
standing’s injury in fact prong.” Thomas v. Anchorage Equal
Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en
banc). The ripeness inquiry in some cases may therefore “be
characterized as standing on a timeline.” Id.3
[2] For example, “[a] claim is not ripe for adjudication if
it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Texas v. United
States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1983)
(internal quotation marks omitted)). That is so because, if the
contingent events do not occur, the plaintiff likely will not
have suffered an injury that is concrete and particularized
enough to establish the first element of standing. See Lujan,
504 U.S. at 560. In this way, ripeness and standing are inter-
twined.
In Auerbach v. Board of Education, 136 F.3d 104, 108-09
(2d Cir. 1998), the Second Circuit applied a mixed standing/
3
Because we hold that Plaintiffs have not met the constitutional require-
ment for ripeness, we do not address the doctrine’s prudential components.
See Colwell, 558 F.3d at 1123 (noting that if a plaintiff meets the constitu-
tional ripeness requirement, the next step is an analysis of the prudential
considerations).
BOVA v. CITY OF MEDFORD 5173
ripeness analysis to a factual scenario much like the one pre-
sented here. In Auerbach, six of the fourteen plaintiffs were
current school district employees who alleged that the dis-
trict’s retirement incentive policy violated the ADEA. Id. at
108. The district court rejected their claims as unripe because
they had not yet retired and, therefore, had not yet been
deprived of the benefits given to their retired colleagues under
the policy. Id. The Second Circuit affirmed, holding:
The injury alleged by the six teachers employed
by the school district at the time of the commence-
ment of this litigation was entirely speculative.
When this action was initiated, these teachers had
not retired and consequently, had not been denied
any incentive benefits paid to their younger col-
leagues under the retirement plan. That is to say,
they had suffered no injury in fact. These teachers
maintained that if they retired while the current labor
agreement was in effect, they would not receive the
plan’s benefits. This claim is contingent upon retire-
ment. Nevertheless, the factual event forming the
basis of the claim, i.e., their retirement, had not
occurred at the commencement of the action.
Id. at 109.
[3] Similarly, here, Plaintiffs’ alleged injury—denial of
health insurance coverage—has not yet occurred. It is contin-
gent upon two events: (1) each Plaintiff’s retirement from
City service; and (2) the City’s official denial of benefits to
him or her. It is possible that neither of the two events will
occur. Plaintiffs could change jobs, be terminated, or die
(though we hope not) before retiring. Or, by the time Plain-
tiffs retire, the City may have abandoned its current policy in
favor of one that provides insurance coverage to retired
employees, mooting the substantive questions at issue. Just as
in Auerbach, unless and until contingent events occur, neither
5174 BOVA v. CITY OF MEDFORD
Plaintiff will have suffered an injury that is concrete and par-
ticularized enough to survive the standing/ripeness inquiry.
Plaintiffs challenge that conclusion on several grounds.
First, they argue that their eligibility for retirement, based on
the allegations in the complaint and Oregon law regarding the
retirement age for public employees, is sufficient to establish
an injury in fact. They base this argument on Monterey
Mechanical Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997), a
contracting set-aside case in which we held that “[b]eing
forced to compete on an unequal basis because of race (or
sex) is an injury under the Equal Protection Clause.” Id. at
707 (emphasis added).
The equal protection injury alleged in Monterey Mechani-
cal, however, is unlike the due process injury Plaintiffs allege
in this case. “[T]he ‘injury in fact’ ” alleged in Monterey
Mechanical was “the inability to compete on an equal footing
in the bidding process” as a result of a state program that
made classifications based on race and sex. Id. at 706 (empha-
sis added). This equal protection injury would therefore have
occurred whether or not the plaintiffs ultimately lost a con-
tract as a result of the set-aside program. By contrast, the due
process injury alleged in this case is the loss of a tangible ben-
efit in which Plaintiffs claim to have a property interest. See
Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.
1998) (“ To establish a substantive due process claim, a plain-
tiff must, as a threshold matter, show a government depriva-
tion of life, liberty, or property.”). As we explained, however,
this loss has yet to—and may never—occur. Monterey
Mechanical is therefore inapposite.
Second, Plaintiffs argue that, because the City’s current
policy would deny them health insurance coverage after they
retire, they may delay their retirement, may leave the City of
Medford to join another public employer that provides post-
retirement insurance, or may make medical decisions differ-
ently than they would if they were guaranteed coverage after
BOVA v. CITY OF MEDFORD 5175
retiring. The contingencies that they describe are not suffi-
ciently tangible or definite to meet the “concrete and particu-
larized” injury requirement of Lujan. And, because Plaintiffs
have not alleged that they have actually delayed their retire-
ments, left their jobs, or made different medical decisions on
account of the City’s policy, these potential injuries rest,
again, on future contingent events—delaying, leaving, or
choosing differently—that may or may not occur. See Texas,
523 U.S. at 300.
Third, Plaintiffs dispute that there is any evidence in the
record that the City may change its policy before they retire.
But even if the City does not elect on its own to change the
policy, the outcome in the related case of Doyle v. City of
Medford, No. 07-35753, which deals with the same substan-
tive issues, may force it to do so, and that change could occur
before Plaintiffs retire.
[4] We therefore reject Plaintiffs’ contentions. Drawing on
the wisdom of the Second Circuit in Auerbach, we return this
case to the district court to dismiss it as unripe.
JUDGMENT VACATED; REMANDED with instructions
to DISMISS. Costs on appeal are awarded to Defendants.