Date: 07-21-2015

Case Style: SIRVA RELOCATION, LLC and AETNA LIFE INSURANCE COMPANY v. CHARLOTTE GOLAR RICHIE, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION, ET AL.,

Case Number: No. 14-1934

Judge: Howard, Chief Judge, Selya and Kayatta, Circuit Judges

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Jonathan Bond, Miguel A. Estrada, Gibson, Dunn & Crutcher LLP, Stephen D. Rosenberg

Defendant's Attorney: Carrie M. Benedon, Assistant Attorney General, Maura Healey, Attorney General of Massachusetts

Description: This appeal is the latest bout in a prolonged legal
struggle concerning fringe benefits offered by plaintiff-appellant
Sirva Relocation, LLC (Sirva) to its work force. We briefly
rehearse the history and travel of the dispute.
Sirva (a company that provides moving and housing
solutions) offers a complement of benefits to its employees through
a group benefit plan. The plan, which is underwritten by
plaintiff-appellant Aetna Life Insurance Company (Aetna), includes
a long-term disability (LTD) component. Employees who elect LTD
coverage and become totally disabled receive monthly payments
equal to a portion of their pre-disability income. Pertinently,
the LTD plan (the Plan) provides disparate benefits depending on
the nature of an employee's disability: employees who become
totally disabled prior to age 62 may receive benefits until age 65
if their disability stems from a physical impairment, whereas those
who become totally disabled from a mental or psychological
condition are generally entitled to receive LTD benefits for a
maximum of 24 months.1
In September of 2004, Sirva hired David Knight as
director of global sales. Knight chose to participate in the
1 We say "generally" because the Plan makes an exception, not relevant here, for employees who are hospitalized beyond 24 months as a result of a mental or psychological condition.

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benefit plan and enrolled in the LTD component. In November of
that year, Knight took a leave of absence due to mental illness.
Knight was subsequently found to be totally disabled and began
receiving disability benefits. By May of 2005, Knight had
exhausted his short-term disability benefits, and Aetna informed
him that LTD payments would commence. Aetna's letter noted that
if Knight's disability was in any way attributable to a mental
condition, his LTD payments would cease 24 months after the onset
of the disability unless he was hospitalized at that time. See
supra note 1.
In December of 2006, Aetna informed Knight that he had
exhausted his LTD benefits and that payments had been terminated.
Aetna's letter noted that the Plan was subject to the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–
1461, and that Knight had the right to seek internal review of the
benefits termination. It went on to explain that if Knight was
unhappy with the outcome of that review, he could sue under ERISA.
See id. § 1132(a).
Knight did not pursue further claims review but, rather,
filed a charge of discrimination with the Massachusetts Commission
Against Discrimination (MCAD) in September of 2007. He complained
that the appellants (Sirva and Aetna) had discriminated against
him on the basis of disability in violation of Massachusetts
General Laws chapter 151B and the Americans with Disabilities Act

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of 1990 (ADA), 42 U.S.C. §§ 12101–12213. The crux of his complaint
was that the appellants paid disparate LTD benefits depending on
whether an employee suffered from a physical or a mental
impairment.
The appellants promptly moved to dismiss Knight's
complaint. They argued that the chapter 151B claim was preempted
by ERISA and that the ADA claim failed on the merits. The MCAD
did nothing until April of 2010, when the Investigating
Commissioner denied the appellants' motion without prejudice. Her
rescript asserted, without meaningful elaboration, that factual
questions concerning both ERISA coverage and the merits precluded
dismissal.
The appellants filed a timely answer and position
statement reiterating their defenses. The MCAD took no further
action for nearly two years. At that time, an MCAD investigator
requested from the appellants documents concerning both ERISA
coverage and the merits of Knight's complaint. The appellants
quickly supplied the requested information.
In October of 2012, the Investigating Commissioner found
that probable cause existed to credit Knight's allegations and
ordered the parties to participate in a conciliation conference,
warning that failure to attend could result in sanctions or
immediate certification of the charge for a public hearing. A
summary of the MCAD's investigation accompanied the finding. The

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appellants sought reconsideration of the probable cause finding,
renewing their argument that the chapter 151B claim was preempted
and, therefore, the MCAD lacked jurisdiction to proceed. The MCAD
denied reconsideration and ordered the parties to proceed with
discovery.
In May of 2013 — almost six years after the commencement
of the MCAD proceeding — the Investigating Commissioner certified
the case for public hearing and added the MCAD's name to the
caption. Following a pre-hearing conference, the MCAD scheduled
the public hearing for January of 2014.
At that juncture, the appellants repaired to the United
States District Court for the District of Massachusetts. Their
federal complaint named as defendants the Commonwealth of
Massachusetts, the MCAD, its commissioners (in their official
capacities), and Knight. The complaint entreated the district
court to declare that ERISA preempted the chapter 151B claim and
any further MCAD investigation of the charge. On that basis, the
appellants asked the court to enjoin the MCAD proceeding. The
MCAD and Knight moved to dismiss the complaint, exhorting the
district court to abstain.
While the case was pending, the Supreme Court decided
Sprint. The district court secured supplemental briefing and then
heard oral arguments. The court reserved decision and, in a
thoughtful memorandum, ruled that abstention was required. See

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Sirva, 2014 WL 3892202, at *4-7. Consequently, it dismissed the
case. See id. at *7. This timely appeal ensued.
II. ANALYSIS
The appellants attack the district court's decision to
abstain on three fronts. First, they claim that the MCAD
proceeding is not the sort of proceeding to which Younger applies.
Second, they claim that even if the proceeding comes within
Younger's orbit, the Middlesex factors defeat abstention. Third,
they claim that, in all events, an exception to Younger for
facially conclusive allegations of preemption permits a federal
court to enjoin the MCAD proceeding. All of these claims were
rejected by the district court, and that court's rulings engender
de novo review. See Rio Grande Cmty. Health Ctr., Inc. v. Rullan,
397 F.3d 56, 68 (1st Cir. 2005).
A. The Evolution of the Younger Doctrine.
Unpacking the appellants' asseverational array requires
some exploration of the evolution of the Younger doctrine. We
start from the settled premise that the pendency of a state-court
action generally does not preclude a federal court from addressing
the same subject matter. See Co. River Water Conserv. Dist. v.
United States, 424 U.S. 800, 817 (1976). This is consistent with
the tenet that federal courts have a "virtually unflagging
obligation . . . to exercise the jurisdiction given them." Id.
Nevertheless, this obligation is not absolute — and the Supreme

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Court has developed a small cluster of doctrines that either
require or allow federal courts to defer to state proceedings in
particular circumstances. See Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 716-18 (1996). Younger abstention reflects one such
doctrine.
In Younger, the Justices held that principles of equity
and comity demand that a federal court abstain from entertaining
a suit that seeks to enjoin a state criminal prosecution as
violative of federal law so long as the state proceeding affords
an adequate opportunity to raise the federal defense and abstention
will not cause irreparable harm. See 401 U.S. at 43-46. In a
companion case, the Justices made pellucid that the same principles
encumber a federal court's ability to order declaratory relief.
See Samuels v. Mackell, 401 U.S. 66, 69-70, 72-73 (1971).
The Supreme Court subsequently extended the Younger
doctrine to certain quasi-criminal proceedings, see Huffman v.
Pursue, Ltd., 420 U.S. 592, 594 (1975), and certain proceedings
involving the enforcement of state-court orders and judgments, see
Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 13-14 (1987). Similarly,
some state administrative proceedings may trigger Younger
abstention. See New Orleans Pub. Serv., Inc. v. Council of City
of New Orleans (NOPSI), 491 U.S. 350, 369 n.4 (1989).
Over the years, the Court has recognized a handful of
exceptions to the Younger doctrine. Abstention is inappropriate,

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for example, when a state proceeding is brought in bad faith, that
is, for the purpose of harassment. See Younger, 401 U.S. at 53
54. So, too, a federal court need not stay its hand if the state
forum provides inadequate protection of federal rights. See Gibson
v. Berryhill, 411 U.S. 564, 575, 578-79 (1973). Abstention is
likewise inappropriate when a state statute is "flagrantly and
patently violative of express constitutional prohibitions."
Younger, 401 U.S. at 53 (quoting Watson v. Buck, 313 U.S. 387, 402
(1941)).
In Middlesex, the Court added a further gloss. It
explained that a federal court must abstain when there is an
ongoing state proceeding (judicial in nature), which implicates
important state interests and provides an adequate opportunity to
raise federal defenses. See 457 U.S. at 432. Thereafter, lower
courts sometimes loosely applied the three Middlesex factors as an
exclusive test for determining the applicability of the Younger
doctrine. See, e.g., Brooks v. N.H. Supreme Court, 80 F.3d 633,
638 (1st Cir. 1996).
Recently, the Supreme Court clarified the range of state
proceedings that may suffice to trigger Younger abstention. The
Court explained that Younger applies only to "exceptional" state
proceedings, Sprint, 134 S. Ct. at 588, and the Middlesex factors
do not operate as a free-standing test, see id. at 593. Giving
independent life to the Middlesex factors would transmogrify

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Younger from a narrow exception to the federal courts' duty to
exercise their jurisdiction into a rule mandating abstention in
the case of "virtually all parallel state and federal proceedings."
Id.
The Sprint Court held that only three types of state
proceedings trigger Younger abstention: (i) criminal prosecutions,
(ii) "civil proceedings that are akin to criminal prosecutions,"
and (iii) proceedings "that implicate a State's interest in
enforcing the orders and judgments of its courts." Id. at 588.
If a proceeding does not fit within this taxonomy, Younger
abstention will not lie. See id. at 593-94.
However, the Sprint Court did not entirely abandon the
Middlesex factors. Although those factors cannot alone bear the
weight of abstention, they constitute "additional factors
appropriately considered by [a] federal court before invoking
Younger." Id. at 593.
We distill from Sprint a three-step approach to Younger
abstention. To begin, a federal court must ascertain whether a
particular state proceeding falls within the Younger taxonomy. If
so, the court must then take the second step and consider whether
the Middlesex factors support abstention. And if these two steps
leave the case on track for abstention, the court must take the
third step and determine whether any of the isthmian exceptions to
the Younger doctrine apply.

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B. The Taxonomy Question.
We move now from the general to the specific. The
appellants' opening salvo posits that the MCAD proceeding does not
engage the gears of Younger abstention at all. In their view, the
MCAD is a neutral arbiter adjudicating a private dispute between
an employer and an employee.
The parties agree that the only Sprint niche into which
the MCAD proceeding might fit is the category for civil enforcement
proceedings resembling "criminal prosecution[s] in important
respects." Id. at 592 (internal quotation marks omitted). The
Sprint Court described the hallmarks of such proceedings. For one
thing, such a proceeding is "characteristically initiated to
sanction the federal plaintiff . . . for some wrongful act." Id.
For another thing, "a state actor is routinely a party to the state
proceeding and often initiates the action." Id. Finally, an
investigation is typically undertaken, culminating in a formal
charge or complaint. See id.
This court has applied the Younger analysis to MCAD
proceedings in several earlier cases. See, e.g., Colonial Life &
Accident Ins. Co. v. Medley, 572 F.3d 22 (1st Cir. 2009); Local
Union No. 12004 v. Massachusetts, 377 F.3d 64 (1st Cir. 2004).
But these cases predate Sprint and do not directly address the
question of whether MCAD proceedings are sufficiently akin to

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criminal prosecutions to trigger abstention. We begin with that
question.
We find instructive the Supreme Court's decision in Ohio
Civil Rights Commission v. Dayton Christian Schools, Inc., 477
U.S. 619 (1986). There, a teacher filed a complaint with a state
civil-rights agency alleging that her employer had discriminated
against her on the basis of sex. See id. at 623-24. The agency
notified the school that it was conducting an investigation into
the matter and urged settlement, warning that a failure to settle
could lead to formal adjudication. See id. at 624. After finding
probable cause to believe that discrimination had occurred, the
agency forwarded a proposed conciliation agreement. See id. When
the school failed to respond, the agency initiated an
administrative proceeding by filing a complaint. See id.
The Supreme Court concluded that the Younger doctrine
barred the school's subsequent federal action to enjoin the agency
proceeding on First Amendment grounds. See id. at 628. The Sprint
Court later identified this agency proceeding as the type of civil
enforcement action that falls within the Younger taxonomy. See
Sprint, 134 S. Ct. at 592.
The proceeding here is materially indistinguishable from
that described in Dayton. Knight filed an MCAD complaint against
the appellants; an MCAD investigator sought and obtained documents
concerning the structure of the Plan; the Investigating

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Commissioner made a finding of probable cause; conciliation
failed; and the Investigating Commissioner certified the matter
for public hearing — an action which, under applicable regulations,
was the functional equivalent of filing a formal complaint, see
804 Mass. Code Regs. 1.20(3). This course of action satisfies the
Sprint Court's state-involvement and investigation criteria.
Here, moreover, the MCAD proceeding is aimed at
sanctioning the appellants for wrongful conduct. See Stonehill
Coll. v. Mass. Comm'n Against Discrim., 808 N.E.2d 205, 216-17
(Mass. 2004) ("[T]he primary purpose of an [MCAD proceeding] is to
vindicate the public's interest in reducing discrimination in the
workplace by deterring, and punishing, instances of discrimination
by employers against employees."). It is, therefore, "of the sort
entitled to Younger treatment." Sprint, 134 S. Ct. at 592
(internal quotation marks and alteration omitted).
The appellants strain to distinguish the MCAD proceeding
from the proceeding in Dayton. They suggest, for instance, that
Dayton is distinguishable because the conduct at issue there
violated Ohio criminal law. That is true as far it goes — but the
distinction does not take the appellants very far. Neither Sprint
nor Dayton relied on (or even mentioned) such a distinction. And
though the availability of parallel criminal sanctions may be a
relevant datum, see ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d
127, 138 (3d Cir. 2014); Mulholland v. Marion Cnty. Election Bd.,

- 15 -
746 F.3d 811, 816-17 (7th Cir. 2014), it is not a necessary element
when the state proceeding otherwise sufficiently resembles a
criminal prosecution, see, e.g., Middlesex, 457 U.S. at 432-35
(applying Younger to state disciplinary proceeding intended to
punish lawyer for violating ethical rules).
In the same vein, the appellants expostulate that the
MCAD is merely refereeing a private dispute. But contrary to their
importunings, the fact that Knight initiated the proceeding by
filing a complaint with the MCAD is not dispositive of the
question. In Dayton, for example, the agency's investigation was
sparked by a private complaint. See 477 U.S. at 623-24; see also
Sprint, 134 S. Ct. at 592 (observing that a state actor "often
initiates the action" (emphasis supplied)).
The appellants' further assertion that the MCAD failed
to conduct an investigation is belied by the record. An MCAD
investigator requested a trove of documents from the appellants,
and the subsequent probable cause finding was accompanied by a
summary of the agency's investigation.
The appellants next argue that the MCAD proceeding has
the trappings of a civil proceeding and, thus, does not accommodate
Younger abstention. This argument is threadbare. Under
Massachusetts law, an individual who believes that he has been a
victim of discrimination has "two largely independent avenues for
redress." Stonehill, 808 N.E.2d at 218 (internal quotation mark

- 16 -
omitted). He may either file a complaint with the MCAD and rely
exclusively on the agency's processes or remove the case to state
court and maintain a private action in his own name. See id. at
216-17.
Where, as here, an individual elects to travel along the
first avenue, the agency prosecutes the charge, see Mass. Gen.
Laws ch. 151B, § 5, and "proceeds in its own name," Joulé, Inc. v.
Simmons, 944 N.E.2d 143, 148 (Mass. 2011). The agency can settle
the dispute without the complaining party's consent. See 804 Mass.
Code Regs. 1.15(6)(b). If settlement proves to be infeasible, the
agency can issue a formal complaint in its own name. See id.
§ 1.20(3).
While the MCAD may allow the parties to engage in
discovery, that discovery is intended primarily to "assist[] the
Investigating Commissioner." Id. § 1.13(7)(a). And even though
the MCAD is empowered to seek relief on behalf of the victim of
the alleged discrimination, the primary purpose of any such relief
is to effectuate the goals of Massachusetts anti-discrimination
law. See Joulé, 944 N.E.2d at 149-50; Stonehill, 808 N.E.2d at
216-17; cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 294-96 (2002)
(discussing parallel federal scheme). The state-centric nature of
MCAD proceedings is underscored by the fact that an aggrieved
individual must intervene in the public hearing in order to

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"advance a claim of discrimination in [his] own name." Joulé, 944
N.E.2d at 151; see 804 Mass. Code Regs. 1.20(4).
Viewed through this prism, the participation of the
appellants and Knight by means of pleadings, motion practice, and
discovery does not disqualify the MCAD proceeding from Younger
protection. Unlike the proceeding at issue in Sprint, which was
initiated to settle a private dispute and involved no state-driven
investigation or formal charge, see 134 S. Ct. at 592-93, the MCAD
proceeding exhibits all the essential hallmarks of a civil
enforcement action that is "more akin to a criminal prosecution
than are most civil cases," id. at 593 (internal quotation marks
omitted). That Knight's lawyer helped in the MCAD's investigation
does not alter the fundamental character of the proceeding. Cf.
NOPSI, 491 U.S. at 371 (explaining that in classifying an agency
action as legislative or judicial, "[t]he nature of the final act
determines the nature of the previous inquiry" (quoting Prentis v.
Atl. Coast Line Co., 211 U.S. 210, 227 (1908))).
We also reject the appellants' contention that defects
in this particular proceeding place it beyond Younger's embrace.
They point out that the order setting the matter for public hearing
fails to address certain required issues, see 804 Mass. Code Regs.
1.20(3); that the record contains no order formally designating
Knight's counsel as an agent of the MCAD, see id. § 1.09(5)(b)
(c); and that protracted delay in the investigation transgressed

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agency regulations, see id. § 1.13(1), (3). But these alleged
shortcomings, though regrettable, are beside the point; courts
ordinarily should look to the general class of proceedings in
determining whether Younger abstention applies. See NOPSI, 491
U.S. at 365. Garden-variety procedural defects in the roll-out of
a particular proceeding do not change its fundamental character.
The appellants have one last shot in their sling. They
say that the Dayton Court found abstention appropriate only after
deciding whether the First Amendment barred the agency proceeding.
See 477 U.S. at 628. Arguing by analogy, the appellants insist
that the district court should not have abstained without first
resolving their claim that the MCAD proceeding is wholly preempted.
This argument misreads Dayton. While the Dayton Court
stated that the Ohio agency did not violate any constitutionally
assured right simply by investigating the reason for the teacher's
discharge, see id., the Court left it for the agency to determine
whether further inquiry would offend the First Amendment, see id.
What happened here is fully compatible with the Dayton
Court's approach. The MCAD has jurisdiction to investigate and
adjudicate the chapter 151B claim (if only to determine whether
it, and thus any further agency action, is preempted by ERISA).
To say more about the taxonomy issue would be
supererogatory. The MCAD proceeding is plainly the sort of civil
enforcement action that fits within the Younger design.

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C. The Middlesex Factors.
This brings us to the question of whether the Middlesex
factors support abstention. The first Middlesex factor asks
whether there is an ongoing state proceeding that is judicial in
nature. That is obviously so here: the MCAD completed an
investigation, issued a formal complaint, conducted a pre-hearing
conference, and scheduled an adjudicative hearing. These actions
conclusively show the existence of an ongoing state proceeding
that is judicial in nature. See id. at 624, 627-28.
The second Middlesex factor asks whether the proceeding
implicates important state interests. This inquiry need not detain
us. The Supreme Court has squarely held that a state's interest
in eradicating discrimination in the workplace is of sufficient
magnitude to satisfy this factor. See NOPSI, 491 U.S. at 365
(citing Dayton, 477 U.S. at 628). The appellants' suggestion that
Massachusetts has no real interest in this proceeding because ERISA
preempts it is circular and, thus, without merit. See id. at 365
(expressly rejecting similar reasoning).
The last Middlesex factor deals with the adequacy of the
opportunity to raise federal defenses in the state proceeding.
The appellants point to the extensive delays in the MCAD's
processing and investigation of Knight's allegations and argue
that this egregious foot-dragging has deprived them of a meaningful
opportunity to raise their preemption defense.

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To be sure, the MCAD proceeding has moved at a snail's
pace. And though the third Middlesex factor is generally deemed
satisfied as long as no state procedural rule bars the assertion
of a federal defense and the state affords a fair opportunity to
raise that defense, see Moore v. Sims, 442 U.S. 415, 430-32 (1979),
adjudicative delay may (at least in theory) be so extraordinary
that it justifies federal-court intervention, see id. at 432; cf.
Gibson, 411 U.S. at 575 n.14 (noting that agency delay may obviate
the need to exhaust administrative remedies). But a federal
plaintiff's failure to pursue potentially available state judicial
remedies undermines that plaintiff's ability to demonstrate that
it had no meaningful opportunity to assert its federal defense.
See Moore, 442 U.S. at 432; Diamond "D" Constr. Corp. v. McGowan,
282 F.3d 191, 201-02 (2d Cir. 2002).
While we do not condone the MCAD's lackadaisical
handling of this matter, the appellants never sought to invoke
potentially available state judicial remedies (such as a writ of
mandamus) to ameliorate the delay. See Mass. Gen. Laws ch. 249,
§ 5; see also Town of Reading v. Att'y Gen., 285 N.E.2d 429, 431
(Mass. 1972) ("[M]andamus is a remedy for (administrative)
inaction . . . ."). Instead, they waited until the MCAD was at
last poised to hear and decide the preemption issue before they
sought federal assistance and, we are told, requested a stay of
the agency proceeding, thereby inviting additional delay. Under

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these circumstances, we must "assume that state procedures [would
have afforded] an adequate remedy." Pennzoil, 471 U.S. at 15.
The MCAD consistently has acknowledged that ERISA
preemption remains an open question in the case. There is no
compelling reason to believe that, if the public hearing is allowed
to proceed, the MCAD will not address that question with due
dispatch. If the agency's answer is not to the appellants' liking,
they can seek review in the state courts. See Mass. Gen. Laws ch.
151B, § 6; 804 Mass. Code Regs. § 1.24(2). That opportunity to
present their federal claim is sufficient to satisfy the third
Middlesex factor. See Dayton, 477 U.S. at 629.
That ends this aspect of the matter. The short of it is
that all three Middlesex factors support the decision of the court
below to abstain.
D. The Preemption Exception.
The final leg of our journey takes us to the handful of
exceptions to Younger abstention identified by the Supreme Court.
One such exception is potentially relevant here. That exception
pertains when state law is "flagrantly and patently violative of
express constitutional prohibitions in every clause, sentence and
paragraph, and in whatever manner and against whomever an effort
might be made to apply it." Younger, 401 U.S. at 53-54 (internal
quotation mark omitted). Though this exception is quite narrow,
see Rossi v. Gemma, 489 F.3d 26, 35 n.16 (1st Cir. 2007); Dubinka

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v. Judges of Superior Court, 23 F.3d 218, 225 (9th Cir. 1994), the
Court has left open the possibility that a facially conclusive
claim of preemption may serve to override the Younger mandate, see
NOPSI, 491 U.S. at 366-67.
Following this lead, we have recognized facially
conclusive preemption as a potentially valid basis for refusing
Younger abstention. See Chaulk Servs., Inc. v. Mass. Comm'n
Against Discrim., 70 F.3d 1361, 1370 (1st Cir. 1995). In the case
at hand, the appellants ask us to find facially conclusive their
assertion that ERISA preempts the chapter 151B claim and, thus,
the MCAD proceeding itself.2 To evaluate this construct, some
background is helpful.
ERISA preempts "any and all State laws insofar as they
. . . relate to any employee benefit plan" covered by the statute.
29 U.S.C. § 1144(a). This sweeping language preempts a wide
variety of state laws to the extent that they have the requisite
connection with an ERISA plan. See Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 95-100 (1983).
Although many state anti-discrimination laws that relate
to ERISA plans may beget ERISA preemption, some do not. For
2 In this court, the appellants have not reasserted the argument, made below, that ERISA likewise prohibits the MCAD from investigating and adjudicating a standalone ADA claim. Because we conclude that preemption of the chapter 151B claim is not facially conclusive and that the agency may resolve that issue, we have no reason to explore this aspect of the matter further.

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example, ERISA does not preempt federal anti-discrimination laws
(such as the ADA), see 29 U.S.C. § 1144(d), so state anti
discrimination laws are immune to ERISA preemption insofar as they
prohibit conduct proscribed by federal law, see Tompkins v. United
Healthcare of New Eng., Inc., 203 F.3d 90, 96-97 (1st Cir. 2000).
But to the extent that a state anti-discrimination law prohibits
more conduct than its federal counterpart, it is preempted when
applied to an ERISA plan. See Shaw, 463 U.S. at 103-04.
There is little question but that the chapter 151B claim
sub judice relates to the Plan: it seeks directly to regulate the
Plan's contents. Whether preemption of the claim is facially
conclusive, though, turns on the answers to two ancillary
questions. First, does the Plan fall at least arguably outside
the realm of ERISA? Second, does the ADA at least arguably
prohibit an employer from offering disparate benefits based on the
type of disability that may afflict an employee? If either of
these answers is in the affirmative, the appellants' claim of
preemption cannot be deemed facially conclusive.
We start and end with the second question.3 In Colonial
Life, we found facially inconclusive a nearly identical claim of
3 Because this question yields an affirmative answer, we bypass the first question and take no view on it. For the sake of completeness, however, we note that the MCAD has contended all along, albeit without meaningful elaboration, that factual disputes abound as to the existence of ERISA coverage.

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preemption (a claim that ERISA preempted an MCAD charge that state
law prohibited providing short-term disability benefits to
employees with physical, but not mental, disabilities). See 572
F.3d at 27-28. The appellants have not identified any supervening
authority that would allow us to second-guess that determination.
See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir.
2010) (discussing "law of the circuit" doctrine).
Even so, the MCAD gives Colonial Life too wide a berth.
It reads that decision as holding that any time a preemption claim
presents an issue of first impression in this circuit, the claim
cannot be facially conclusive. While that reading finds support
in some of Colonial Life's dicta, see, e.g., 572 F.3d at 28-29
(stating that "the existence of a question of first impression
regarding the ADA's applicability . . . precludes preemption from
being facially conclusive"), it is not the holding of the case.
If it were, Colonial Life would conflict with Chaulk, in which we
determined that a preemption claim was facially conclusive even
though the relevant issue (concerning whether the doctrine
articulated in San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), divested the MCAD of jurisdiction over a state
law gender discrimination claim) was one of first impression in
this circuit. See Chaulk, 70 F.3d 1361. It would also conflict
with common sense: whether pigs can fly is a question of first
impression in this circuit — we have no holding directly on point

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— but the answer to this question is so obvious as to be facially
conclusive.
The holding of Colonial Life is far less mechanical.
The court explained that "the district court's need to conduct a
'detailed analysis,' including resolving interjurisdictional
differences" demonstrated that ERISA preemption was not facially
conclusive. Colonial Life, 572 F.3d at 28. The rule, then, is
that when a federal statute indisputably preempts a state-law
claim, preemption is facially conclusive whether or not we have
previously opined on the question. But when there is room for
reasonable doubt, the preemption claim is not facially conclusive
and cannot block abstention. See, e.g., Verizon New Eng., Inc. v.
R.I. Dep't of Labor & Training, 723 F.3d 113, 118-19 (1st Cir.
2013) (holding preemption exception inapplicable where federal
plaintiff was attempting "to extend the doctrine of labor law pre
emption in[to] a new area" (internal quotation marks omitted)).
Drawing the line in this place is consistent with
Younger, which contemplates that when federal questions are raised
in a state proceeding, those questions ordinarily should be
resolved in that proceeding. See 401 U.S. at 45. Only when
preemption of the state-law claim is beyond reasonable dispute
does the paradigm shift. See Hughes v. Att'y Gen. of Fla., 377
F.3d 1258, 1265 (11th Cir. 2004). Even modest ambiguity concerning
the result of a preemption inquiry precludes this shift.

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Preemption has been held not facially conclusive if, for example,
there are unresolved factual disputes, see NOPSI, 491 U.S. at 367;
Colonial Life, 572 F.3d at 27, or if a federal court would be
required to delve into unsettled complexities of state law, see,
e.g., GTE Mobilnet v. Johnson, 111 F.3d 469, 478 (6th Cir. 1997),
or if the reach of a preemption provision is itself uncertain, see
Woodfeathers, Inc. v. Washington County, 180 F.3d 1017, 1022 (9th
Cir. 1999). Enjoining state proceedings in any of these
circumstances would "defile the basic presumption that state
courts are fully capable of safeguarding federal constitutional
rights." Brooks, 80 F.3d at 639.
In this case, the inquiry reduces to whether the ADA
conclusively permits an employer to offer disparate benefits based
on the type of disability that may afflict an employee. The
appellants say that it does. In support, they point to what they
describe as the unanimous consensus of federal circuit courts on
this issue.4 See, e.g., EEOC v. Staten Island Sav. Bank, 207 F.3d
144, 152-53 (2d Cir. 2000); Weyer v. Twentieth Century Fox Film
Corp., 198 F.3d 1104, 1116-18 (9th Cir. 2000); Kimber v. Thiokol
Corp., 196 F.3d 1092, 1101-02 (10th Cir. 1999); Lewis v. Kmart
Corp., 180 F.3d 166, 172 (4th Cir. 1999); Ford v. Schering-Plough
4 The Eleventh Circuit initially decided the issue the other way, but then withdrew the opinion pending rehearing. See Johnson v. K Mart Corp., 273 F.3d 1035, 1070 (11th Cir. 2001). No opinion on rehearing was ever issued, and the case reportedly was settled.

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Corp., 145 F.3d 601, 608-10 (3d Cir. 1998); Parker v. Metro. Life
Ins. Co., 121 F.3d 1006, 1015-19 (6th Cir. 1997) (en banc); EEOC
v. CNA Ins. Cos., 96 F.3d 1039, 1043-45 (7th Cir. 1996); Krauel v.
Iowa Methodist Med. Ctr., 95 F.3d 674, 677-78 (8th Cir. 1996).
Based on this precedential phalanx, the appellants urge us to find
facially conclusive the proposition that the ADA permits such a
differential-benefit scheme and that, therefore, ERISA preempts
the chapter 151B claim.
Though this argument has some superficial allure, there
is more to the story. The Supreme Court has never considered
whether the ADA forbids an employer from offering disparate
benefits to different classes of the disabled. Moreover, deciding
this question would entail resolving a complex web of legal issues.
These issues include whether a totally disabled individual can sue
under the ADA, see Ford, 145 F.3d at 604-08; whether a
differential-benefits claim is viable under the ADA, see id. at
608-10; Parker, 121 F.3d at 1010-14; and what bearing (if any) the
ADA's safe harbor provision may have on differential-benefits
claims, see Staten Island, 207 F.3d at 150-51.
To complicate matters further, there is some reason to
think that the question is not open-and-shut. Some of the circuit
court decisions upon which the appellants rely were made over
strong dissents. See, e.g., Parker, 121 F.3d at 1020-22 (Merritt,
J., dissenting). Furthermore, many of them were decided before

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Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), which the
MCAD envisions as supporting the viability of differential
benefits claims under the ADA. To assess the soundness of this
proposition, we would have to untangle the relationship between
Olmstead and the Court's earlier decisions in Traynor v. Turnage,
485 U.S. 535 (1988), and Alexander v. Choate, 469 U.S. 287 (1985).
None of the decisions on which the appellants rely has undertaken
this task.
Last — but far from least — our prior opinions have left
open the possibility that an ADA claim based on differential
benefits may be viable. See Tompkins, 203 F.3d at 95 n.4; Carparts
Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., Inc.,
37 F.3d 12, 19-20 (1st Cir. 1994). So, too, district courts in
this circuit remain divided on the viability of such claims.
Compare Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 111 (D. Mass.
2005) (allowing such a claim to proceed), and Iwata v. Intel Corp.,
349 F. Supp. 2d 135, 149 (D. Mass. 2004) (same), with Colonial
Life & Accident Ins. Co. v. Medley, 584 F. Supp. 2d 368, 380 (D.
Mass. 2008) (reaching opposite conclusion), and Witham v. Brigham
& Women's Hosp., Inc., No. 00-268, 2001 WL 586717, at *3-4 (D.N.H.
May 31, 2001) (same).
Given this littered legal landscape, it cannot be said
that there is no room for principled disagreement about the
viability of differential-benefits claims under the ADA. While

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the answer to that question seems much clearer than the MCAD
admits, it is not the slam dunk that the appellants suggest. In
short, resolving the preemption question presented here calls for
exactly the sort of extensive legal analysis that places the
facially conclusive preemption exception out of reach.
The conclusion that no exception to the Younger doctrine
applies here is reinforced by the appellants' utter failure to
explain how they will be irreparably harmed by allowing the MCAD
to resolve this matter. That failure is important because the
common thread that links the various Younger exceptions is that,
in particular situations, closing the door of the federal court to
a federal question will result in irreparable harm. See NOPSI,
491 U.S. at 366; Kugler v. Helfant, 421 U.S. 117, 123-24 (1975);
Younger, 401 U.S. at 53-54. And only when it is crystal clear
that the state tribunal either lacks the authority to proceed or
can provide no meaningful relief can a party hope to demonstrate
the degree of irreparable harm needed to justify federal-court
intervention. See NOPSI, 491 U.S. at 366-67.
Here, the MCAD is competent to adjudicate the federal
issues presented in this case and adequate review is available in
the state courts. The record strongly suggests that the appellants
will suffer no harm apart from the typical inconvenience that
accompanies defending against charges that have been lodged. That
inconvenience is not weighty enough to tip the scales: the Younger

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Court admonished long ago that "the cost, anxiety, and
inconvenience of having to defend against a single [proceeding are
not] 'irreparable' in the special legal sense of that term.
Instead, the threat to the plaintiff's federally protected rights
must be one that cannot be eliminated by his defense against a
single [proceeding]." Younger, 401 U.S. at 46.

Outcome: We need go no further. For the reasons elucidated above,
we conclude that under Sprint's reformulation of the Younger
doctrine, abstention is appropriate and no cognizable exception to
abstention pertains. It follows inexorably, as night follows day,
that the dismissal of this action must be Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: