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Bova v. City of Medford (9th Cir. - May 4, 2009)

By Shaun Martin

Too late now, sadly (since this just denies the petitions for rehearing and publishes the opinion). But I think I could have saved this one for you.

Oregon law says that cities have to give their retirees health insurance, but the City of Medford doesn't, so plaintiffs -- who are currently employed by Medford -- sue. Judge Graber holds that there's no Article III standing because their claims are unripe, since they haven't yet retired. The rationale: "Plaintiffs could change jobs, be terminated, or die (though we hope not) before retiring. Or, by the time Plaintiffs 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."

True enough. Plus, I like the "we hope not" caveat. Plus I agree with Judge Graber that it's not enough for plaintiffs to allege that they may delay retirement or go to another employer. You gotta allege something that's concrete.

But what if one or more of the plaintiffs alleges either of the following, which may well be true: (1) that they will retire if they prevail in the litigation (and since they all say they're retiring within three years, and the case will likely take at least that long, this seems quite plausible); and/or (2) that they are seeking jobs with other employers (if they can find 'em) in order to get post-retirement healthcare (and this, again, seems totally plausible; why wouldn't you at least try to get another, potentially better, job if it gives you health care that your present job doesn't). Either of these facts would establish a concrete loss, at least in my mind, and give you standing. And, quite frankly, seem both plausible and entirely true.

I'm not saying that the panel would necessarily be convinced (though I have no reason to think otherwise). But I know it would have been good enough for me. Especially if we're talking -- as we are here -- about Article III, rather than prudential, standing. The suggested allegations would more than qualify.

P.S. - Potentially, by the way, this still might work; since the panel's dismissal was without prejudice, plaintiffs can presumably refile if they (1) in fact retire, or (2) start looking for other work, or (3) decide to retire but do not do so due to the current policy. Though plaintiffs might want to see how this one comes out before doing so.

Full post as published by California Appellate Report on May 04, 2009 (boomark / email).