CORRECTED
                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                               ________________________                    SEPT. 28, 2001
                                                                        THOMAS K. KAHN
                                     No. 00-14507                            CLERK
                             ________________________
                          D. C. Docket No. 99-03262-CV-BU-S

ELLEN GAYLE MOORE, on Behalf of Themselves
and all Others Similarly situated, FANNIE McCONNELL,
on Behalf of Themselves and all Others Similarly Situated, et al,

                                                                         Plaintiffs-Appellees,

                                            versus

LIBERTY NATIONAL LIFE INSURANCE COMPANY,
                                                                     Defendants-Appellants.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
                                 (September 28, 2001)


Before BIRCH, WILSON and FARRIS*, Circuit Judges.



___________
*Honorable Jerome Farris, U.S. Court of Appeals for the Ninth Circuit, sitting by designation.
WILSON, Circuit Judge:
      Liberty National Life Insurance Company (Liberty National) appeals the district

court’s denial of its motion for judgment on the pleadings on plaintiffs’ civil rights

claims, filed pursuant to 42 U.S.C. §§ 1981 and 1982. Plaintiffs, a putative class of

African Americans that purchased life insurance policies from Liberty National over

the last sixty years, allege that Liberty National maintained a policy of charging higher

premiums and paying lower benefits to African Americans than to whites. Liberty

National contends that plaintiffs’ claims are barred by both Alabama’s applicable

statute of limitations and Alabama’s common law doctrine of repose. Liberty

National further argues that §§ 1981 and 1982 frustrate Alabama’s statutory scheme

of insurance regulation and are thus reverse-preempted by the McCarran-Ferguson

Act. Of these three distinct contentions, the district court certified only one for the

instant interlocutory appeal: whether Alabama’s doctrine of repose applies to, and

therefore bars, plaintiffs’ federal civil rights claims. On this issue, we conclude that

Alabama’s rule of repose does not apply to plaintiffs’ §§ 1981 and 1982 claims.

While we enjoy the discretion to decline to consider either of the two issues not

certified for interlocutory appeal, we do have the jurisdiction to address those claims

if we choose. We address and reject Liberty National’s contention that the McCarran-

Ferguson Act mandates the reverse-preemption of plaintiffs’ §§ 1981 and 1982

claims. We decline to address plaintiffs’ statute of limitations argument, as we do not


                                           2
feel it appropriate for review at this time. Therefore, we affirm the district court’s

denial of Liberty National’s motion for judgment on the pleadings.

                                  BACKGROUND

      On December 8, 1999, four African American policyholders filed a class

action complaint in the federal district court for the Northern District of Alabama,

alleging that Liberty National engaged in racial discrimination by targeting low

income African Americans and selling them industrial life insurance policies with

higher premiums and lower benefits than those sold to whites. In their complaint,

plaintiffs alleged that Liberty National sold policies in a racially discriminatory

fashion from 1940 to the mid-1970s and that Liberty National continued to collect

premiums on those policies until within two years of the filing of the complaint.

The complaint alleged claims under § 1981, which prohibits racial discrimination

in contractual relations, and also included a variety of state law claims.

      Liberty National moved for judgment on the pleadings, and on April 7,

2000, the district court granted its motion. The district court ruled that the § 1981

claims accrued at the time the insurance contracts were made and therefore were

barred by Alabama’s two-year statute of limitations for personal injury torts. The

court found that plaintiffs had not alleged fraudulent concealment with sufficient

particularity to toll the statute of limitations. The court thus dismissed plaintiffs’


                                           3
state law claims without prejudice to refiling in state court and dismissed the §

1981 claim with prejudice.

        On April 21, 2000, plaintiffs filed a motion to alter or amend the judgment

and also sought leave to file an amended complaint. Plaintiffs presented a

proposed amended complaint to the court, which made specific allegations that

Liberty National fraudulently concealed its alleged misconduct, and added claims

under § 1982, which prevents racial discrimination in the maintenance of

property. Plaintiffs contended that the proposed revisions repaired the

deficiencies in the initial complaint and thus asked the court to reconsider its

previous ruling dismissing the case on the pleadings (assuming the court granted

plaintiffs leave to amend their complaint).

        On July 3, 2000, after hearing oral argument, the district court granted

plaintiffs’ motion to alter or amend the April 7th order and also granted plaintiffs

leave to file an amended complaint. The court found that the proposed amended

complaint alleged with particularity (as that term is defined in Federal Rule of

Civil Procedure 9(b)) that Liberty National fraudulently concealed the information

that gave rise to plaintiffs’ claims. The court held that the two-year statute of

limitations would be tolled under Alabama law if these specific allegations were

true.


                                           4
      Liberty National argued that even if the complaint could not be dismissed at

the pleadings stage on the basis of the statute of limitations, Alabama’s common

law rule of repose would operate to bar plaintiffs’ claims. The court found that

the state rule of repose, which bars any suit arising out of any event more than

twenty years old, barred all but one of plaintiffs’ state law claims. In contrast, the

court held that the state rule of repose was inapplicable to plaintiffs’ federal civil

rights claims. The court noted that statutes of limitations are essential features of

any cause of action, and because § 1981 does not contain a statute of limitations,

federal courts must borrow the applicable limitations period from state law.

However, the court determined that absolute rules of repose are not necessary

components of federal causes of action, so applying them to federal civil rights

claims is unnecessary and improper.

      Finally, the court rejected Liberty National’s claim that §§ 1981 and 1982

frustrated the purposes of Alabama’s scheme of insurance regulation and thus ran

afoul of the McCarran-Ferguson Act.

      Liberty National moved for permission to file an interlocutory appeal, and

the district court granted that motion, certifying the following question for our

consideration:




                                           5
      Whether Alabama’s 20 year common law rule of repose bars the Plaintiffs
      in this action from pursuing federal claims under 42 U.S.C. §§ 1981 &
      1982.

      Liberty National promptly filed the instant interlocutory appeal.


                                   DISCUSSION

                                         A.

      We review a district court’s denial of “a judgment on the pleadings de

novo.” Hawthorne v. Mac Adjustment, Inc., 

, 1370 (11th Cir.

1998). Judgment on the pleadings is appropriate only when “the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.” 

marks omitted). We must accept all facts in the complaint as

true and “view them in the light most favorable to the” plaintiffs. 

first contention in this appeal is that 42 U.S.C. § 1988(a)

requires the application of Alabama’s common law rule of repose to plaintiffs’ §§

1981 and 1982 claims. This claim presents an issue of law that is reviewed de

novo. Johansen v. Combustion Eng’g, Inc., 

, 1334 (11th Cir.), cert.

denied, 

(1999). To put Liberty National’s contention in context, we

turn first to some background on Alabama’s repose doctrine.

      Alabama’s judicially created rule of repose serves to bar claims that arise

out of events that are more than twenty years old. Ex parte Grubbs, 

927, 930–31 (Ala. 1989). Alabama’s rule of repose “‘is similar to a statute of

limitations, but [is] not dependent upon one,’” and has a greater breadth than any

such statute. McDurmont v. Crenshaw, 

, 552 (Ala. 1986) (quoting

Boshell v. Keith, 

, 91 (Ala. 1982)). Unlike a statute of limitations,

“the only element of the rule of repose is time.” 

. “[The

rule of repose] is not affected by the circumstances of the situation, by personal

disabilities, or by whether prejudice has resulted or evidence obscured.” 

some debate in Alabama law concerning the types of claims to which the

doctrine is applicable. It is unclear, for example, whether the rule applies to

personal injury actions. Spain v. Brown & Williamson Tobacco Corp., 

, 1307 (11th Cir. 2000) (acknowledging uncertainty about the scope of

actions to which the rule of repose applies). However, it is clear that any claim in

Alabama courts, brought more than twenty years after the time when it first could

have been, is barred if the rule of repose applies. 

. The

Alabama Supreme Court articulated the rationale for the rule as follows:

                As a matter of public policy . . . it has long been the settled policy of
      this state . . . that antiquated demands will not be considered by the courts
      . . . . It is necessary for the peace and security of society that there should be
      an end of litigation, and it is inequitable to allow those who have slept upon
      their rights for a period of 20 years . . . to demand an accounting.

Snodgrass v. Snodgrass, 

, 201–02 (Ala. 1912).


                                           7
      Liberty National argues that the repose doctrine must be applied to bar

plaintiffs’ §§ 1981 and 1982 claims, as the events giving rise to each of the

plaintiffs’ claims are more than twenty years old. The governing statute

concerning the appropriate rules of decision for the Reconstruction-era Federal

Civil Rights Acts is codified at 42 U.S.C. § 1988(a). To evaluate Liberty

National’s argument, we turn first to the text of § 1988(a) itself:

              The jurisdiction in civil and criminal matters conferred on the district
      courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for
      the protection of all persons in the United States in their civil rights, and for
      their vindication, shall be exercised and enforced in conformity with the
      laws of the United States, so far as such laws are suitable to carry the same
      into effect; but in all cases where they are not adapted to the object, or are
      deficient in the provisions necessary to furnish suitable remedies and punish
      offenses against law, the common law, as modified and changed by the
      constitution and statutes of the State wherein the court having jurisdiction
      of such civil or criminal cause is held, so far as the same is not inconsistent
      with the Constitution and laws of the United States, shall be extended to
      and govern the said courts in the trial and disposition of the cause, and, if it
      is of a criminal nature, in the infliction of punishment on the party found
      guilty.

42 U.S.C. § 1988(a).

      The Supreme Court has interpreted this language as mandating “‘a three-

step process’ in determining the rules of decision applicable to civil rights claims”

brought pursuant to the Reconstruction-era Civil Rights Acts. Wilson v. Garcia,

, 267 (1985). First, courts are to look to the civil rights statutes

themselves and determine if those statutes contain deficiencies that render them

                                          8
impossible to effect. Id.; Robertson v. Wegmann, 

, 587 (1978). If

the statutes contain such a deficiency, then the courts should fill the gap by

looking to the common law of the forum state and borrowing the appropriate state

law rule. 

. Finally, courts can apply the state common

law rule only if it “is not inconsistent with the Constitution and laws of the United

States.” 42 U.S.C. § 1988(a); 

.

      Applying this analytic framework to the instant case, we first must ask

whether §§ 1981 and 1982 “are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law.” 42 U.S.C. § 1988(a). Liberty

National notes that §§ 1981 and 1982 lack a blanket rule of repose similar to the

one that has developed in Alabama. Liberty National argues that this absence

amounts to a deficiency (as that term is defined by § 1988) that must be remedied

through reference to state law.

      When determining whether the Reconstruction-era Civil Rights Acts are

deficient in some manner that requires borrowing from the law of the forum state,

we look to see (1) whether the absent provision is among the “universally

familiar” aspects of litigation; and (2) whether the provision is “indispensable to

any scheme of justice.” Felder v. Casey, 

, 140 (1988).




                                          9
       On the first prong of the Felder analysis, the district court found that

blanket rules of repose, as opposed to statutes of limitations, are rare in federal

statutory schemes. We agree. Liberty National has not shown that blanket rules

of repose form a regular feature of the prosecution of federal causes of action.1

The absence of absolute rules of repose through most of the federal legal

landscape makes it difficult to contend that statutes or rules of repose are

“universally familiar” in federal litigation.

       The fact that rules of repose rarely appear in federal law also cuts against

any notion that a blanket rule of repose is “indispensable to any scheme of

justice.” Liberty National has not directed us to a single case in which a blanket

state rule of repose was applied by a federal court to bar a federal civil rights

claim, and we are not aware of any such case. The Reconstruction-era Civil

Rights Acts have long been implemented by federal courts without applying any

blanket rule of repose. Liberty National’s contention that blanket rules of repose

are “indispensable to any scheme of justice” would suggest that all prior federal



       1
         The only case Liberty National cites for the proposition that rules of repose are an
integral feature of federal litigation is Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,

(1991). In that case, the Court applied a blanket repose rule that was provided for
in the text of 15 U.S.C. § 78r(c), a federal securities statute. 

Liberty National has
not contended that rules of repose are present in other federal statutory schemes and cannot
demonstrate that they are a regular, much less a “universally familiar,” element of federal
litigation.

                                                10
decisions applying the Reconstruction-era Civil Rights Acts are contrary to the

principles of justice. We are not prepared to accept such a sweeping (and

unsupportable) contention.

       Alabama’s rule of repose is analogous to the state “notice of claim” statute

at issue in Felder. Wisconsin maintained a statute that required plaintiffs seeking

to sue a state entity to notify the defendant(s) of an intent to sue within 120 days

of the injury, at which time the defendant(s) has 120 days to grant or deny the

requested relief. 

–37. If relief is denied, the plaintiff then

has six months to bring suit in state court. 

The plaintiff in Felder

brought a 42 U.S.C. § 1983 action against the City of Milwaukee and several

police officers nine months after the incident giving rise to the claim occurred.2

The Wisconsin Supreme Court rejected the plaintiff’s claim for failure

to comply with the 120-day time limit established by the notice of claim statute.

The United States Supreme Court reversed, holding that notice of

claim statutes were neither “universally familiar” to federal causes of action nor in

any sense indispensable prerequisites to litigation. 

As such, there was




       2
         The plaintiff alleged that he was beaten savagely in the course of being arrested for
disorderly conduct. 

                                               11
no reason to suppose that Congress intended this sort of state rule to be borrowed

and applied to the federal civil rights statutes under § 1988. 

the Court employed in Felder is applicable to the instant case.

Blanket rules of repose, much like notice of claim provisions, are not “universally

familiar” to federal litigation; indeed, they rarely appear in federal law. Nor are

rules of repose an indispensable prerequisite to litigation. Federal civil rights

claims always have been litigated without the use of blanket rules or repose.

Thus, there is no reason to believe that Congress intended for us to borrow such a

rule under the terms of § 1988.

      While the absence of a rule of repose is not a deficiency in the

Reconstruction-era Civil Rights Acts that needs to be remedied through reference

to state law, it is clear that the absence of a statute of limitations on the face of §§

1981 and 1982 is such a deficiency. The Supreme Court has long recognized that

statutes of limitations are an integral feature of any federal cause of action.

(“Just determinations of fact cannot be made when,

because of the passage of time, the memories of witnesses have faded or evidence

is lost.”); Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 

, 487 (1980) (“Statutes of limitations are not simply technicalities. On the

contrary, they have long been respected as fundamental to a well-ordered judicial


                                           12
system.”); Adams v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805) (Actions “brought

at any distance of time” would be “utterly repugnant to the genius of our laws.”).

The absence of a statute of limitations in the language of §§ 1981 and 1982 is a

deficiency in those statutes that must be filled through reference to appropriate

state law. Neither Liberty National nor plaintiffs dispute that a state statute of

limitations must be borrowed if §§ 1981 and 1982 are to be implemented. Liberty

National, however, contends that Alabama’s rule of repose is integral to its

statutes of limitations and cannot be excluded when those statutes are applied.

      To evaluate this argument, we must turn to the second prong of the §

1988(a) analysis, which involves the identification and application of an

appropriate state rule to fill a recognized gap in the federal cause of action.

Historically, in the statutes of limitations context, courts have struggled with this

process. Most states have a plethora of statutes of limitations that apply to distinct

causes of action in state law. In the past, federal courts attempting to apply the

appropriate state limitations period to a federal civil rights claim had to analogize

the factual allegations of the claim to a particular state cause of action – often a

conceptually difficult and imperfect task. See, e.g., Owens v. Okure, 

, 249 (1989). As a result, the Supreme Court established clear guidelines to

govern the borrowing process. 

To ensure some level of uniformity, the


                                          13
Court held that a state’s general or residual statute of limitations for personal

injury torts should be borrowed for application to federal civil rights claims

arising under the Reconstruction-era Civil Rights Acts. 

(mandating

the use of a state’s residual personal injury statute of limitations for § 1983

claims); Goodman v. Lukens Steel Co., 

, 660–62 (1987) (mandating

the use of a state’s residual personal injury statute of limitations for §§ 1981 and

1982 actions). This rule ensures that when a state has multiple limitations

provisions, only one particular limitations rule is borrowed to fill the gap in the

civil rights statutes.

       Furthermore, when borrowing the residual personal injury statute of

limitations from a state, federal courts borrow no more from state law than is

necessary to effect that limitations period. West v. Conrail, 

, 39–40

(1987); 

(“Only the length of the limitations period, and

the closely related questions of tolling and application, are to be governed by state

law.”). Therefore, when applying a state’s residual personal injury statute to fill

the gap in §§ 1981 and 1982 claims, we borrow nothing from state law other than

the terms of the statute itself and closely related state law principles intrinsic to its

appropriate application, such as tolling doctrines.




                                           14
      Liberty National’s contention that § 1988(a) mandates applying Alabama’s

repose doctrine to plaintiffs’ §§ 1981 and 1982 claims is questionable in light of

these well-established principles. We borrow as little as is necessary from state

law in applying a state’s statute of limitations pursuant to § 1988; in fact, we

borrow only the length of the state’s residual personal injury statute of limitations

and any closely related state law principles necessary to effect that statute.

Application of an additional, distinct state limitations period, such as a rule of

repose, would contradict our mandate to borrow and apply only one specific

limitations period to §§ 1981 and 1982 claims.

      Liberty National argues that Alabama’s repose doctrine is an integral part of

the state’s set of statutes of limitations and must be applied in tandem with those

statutes if they are to be given their intended effect. In an effort to support this

argument, Liberty National contends that the rule of repose is “part” of a unified,

indivisible scheme involving limitations on actions and that the two doctrines

cannot be divided for the purposes of application. Indeed, Liberty National argues

that the rule of repose is one of the “closely related” state law doctrines intrinsic to

the application of Alabama’s statutes of limitations and therefore must be

borrowed in the instant case.




                                           15
       Liberty National’s arguments, however, often appear to conflate rules of

repose and statutes of limitations and at points suggest that the two rules are

indistinguishable legally.3 This approach is unconvincing, as it is clear that the

doctrines are distinct, both conceptually and legally. We identified this distinction

before, when we noted,

              There is a distinct difference between statutes of limitations and
       statutes of repose. A statute of limitations normally governs the time within
       which legal proceedings must be commenced after the cause of action
       accrues . . . . A statute of repose, however, limits the time within which an
       action may be brought and is not related to the accrual of any cause of
       action.

Bradway v. Am. Nat’l Red Cross, 

, 301 (11th Cir. 1993) (alteration in
original) (internal quotation marks omitted).

       One of our sister courts clarified the distinction further when it discussed the

differing purposes of statutes of limitations and a statute codifying Maryland’s rule

of repose:



       3
          For example, Liberty National cites language from several Supreme Court cases in
which the Court states that policies of “repose” are necessary components of all federal causes of
action. E.g., Brief of Pet’r at 18 (citing 

, which held that “state policies
of repose cannot be said to be disfavored in federal law”). However, it is clear that the Court
was referring to the policies of “repose” underlying state statutes of limitations and not the
separate statutes or doctrines of repose that exist in Alabama and elsewhere. Reading the cited
opinions in context, it is obvious that the Court was not conflating or confusing statutes of
limitations and rules of repose, but rather using the word “repose” to refer to the policy interest
underlying state statutes of limitations. The fact that the term “repose” may have been used to
refer to statutes of limitations in several past Supreme Court opinions does not demonstrate that
state statutes of limitations are linked inextricably to state rules of repose.

                                                16
              A statute of limitations is a procedural device that operates as a
      defense to limit the remedy available from an existing cause of action. A
      statute of repose creates a substantive right in those protected to be free from
      liability after a legislatively-determined period of time. Statutes of
      limitations are motivated by considerations of fairness to defendants and are
      intended to encourage prompt resolution of . . . claims. Statutes of repose
      are based on considerations of the economic best interests of the public as a
      whole and are substantive grants of immunity based on a legislative balance
      of the respective rights of potential plaintiffs and defendants struck by
      determining a time limit beyond which liability no longer exists.

First United Methodist Church of Hyattsville v. United States Gypsum Co., 

, 865–66 (4th Cir. 1989) (citations omitted). Liberty National’s effort to

blur the distinctions between the two doctrines is unavailing in light of this well-

established law. In order to prevail on its claim that Alabama’s doctrine of repose

must be borrowed if the state’s statutes of limitations are to be implemented,

Liberty National must demonstrate that the statute of limitations and the doctrine of

repose, despite their distinctions, are interdependent.

      This Liberty National cannot do, because the statutes of limitations and rules

of repose apply in ways that are independent of one another. Proper application of

a statute of limitations is dependent upon principles of accrual. The time period

begins to run when the cause of action arises and not necessarily on the date of the

relevant act or omission. Michael v. Beasley, 

, 252 (Ala. 1991). A

defining characteristic of the rule of repose is that its time period does not begin to

run when the action accrues, but rather when the relevant action occurs. Boshell,

                                          

. Thus, the two doctrines are defined largely by reference to

inconsistent rules of application; one takes accrual principles into account before

its time period begins to run, while the other does not. The rule of repose and the

statute of limitations do not affect each other directly, as they are triggered by

entirely distinct events. Therefore, it is impossible to assert credibly that the

doctrines depend upon each other or that application of the one necessarily

involves application of the other. In fact, a statute of limitations can be and is

applied in exactly the same manner regardless of the outcome of the distinct,

separate application of the rule of repose.

      Of course, Alabama’s rule of repose may serve to bar actions that would

have been permitted under Alabama’s relevant statute of limitations. Obviously,

the reverse also is true; actions permissible under the rule of repose may be barred

by the shorter statute of limitations. However, none of this means that the two

doctrines are somehow linked or interdependent. Alabama maintains several

distinct doctrines that provide for time limits on causes of action, among them a

rule of repose and a set of statutes of limitations, and each of these doctrines have

their own unique rules of application.

      This principle – the distinctiveness of the rule of repose and its

independence from statutes of limitations – has been noted in Alabama case law.


                                           18
Alabama authorities distinctly distinguish between statutes of limitations and the

repose doctrine and emphasize the independence of the rule of repose. 

(“[Repose] is similar to, but broader than, a statute of limitations, and

is not affected by it, nor dependent upon it.” (emphasis added) (citations omitted));

(“This principle of repose or prescription is similar to a

statute of limitations, but not dependent upon one, and broader in scope.”). There

is nothing in Alabama’s case law that suggests that its statutes of limitations and

rules of repose are interdependent in any way.4

       In sum, the absence of a blanket rule of repose in the text of the

Reconstruction-era Civil Rights Acts is not a gap in federal law that must be filled

to implement the Acts. Such rules are rare in federal law, and they are not a

necessary prerequisite to litigation in an ordered system of justice. In contrast, the

absence of a statute of limitations in §§ 1981 and 1982 is a deficiency that must be

remedied by reference to state law. In borrowing a state statute of limitations,

       4
          Liberty National’s reliance on the ancient case of Balkam v. Woodstock Iron Co., 

(1894), for the proposition that Alabama’s rule of repose and its statutes of limitations
are linked inextricably is misplaced. In that case, the Supreme Court declined to disturb an
Alabama judgment that applied the rule of repose to bar a claim. 

The Court noted
that state courts were the ultimate authority on questions pertaining to the application of state
statutes of limitations; by analogy, the Court held that Alabama courts had the final word on the
doctrine of repose. 

questions pertaining to the doctrine of repose, the Alabama
Supreme Court “passed upon its own statutes of limitations, or the doctrines of prescription as
applied by it, and we are obliged to apply and enforce their conclusions.”). The case does not
hold, as Liberty National suggests, that the rule of repose is a part of Alabama’s statutes of
limitations.

                                                19
however, federal courts select only one of the state’s limitations periods (namely,

the residual state statute of limitations for personal injury torts) and borrow no

more from state law than is necessary to implement that limitations period. The

length of Alabama’s two-year statute of limitations for personal injury torts, along

with closely related state law questions of tolling and application, are all courts

need borrow to implement §§ 1981 and 1982 properly. Courts should not borrow

Alabama’s entirely distinct repose doctrine, as it is not necessary to apply this

doctrine to effect the applicable state statute of limitations.

                                           B.

      Liberty National raises two additional questions outside the scope of the

issue the district court certified for interlocutory appeal. First, Liberty National

contends that Alabama’s two-year statute of limitations for personal injury bars

plaintiffs’ claims. Second, it contends that section 27-12-11(a) of the Alabama

Code, which prohibits discrimination in life insurance rates between individuals of

the same life expectancy, reverse-preempts §§ 1981 and 1982 under the terms of

the McCarran-Ferguson Act, codified at 15 U.S.C. § 1012.

      Under 28 U.S.C. § 1292(b), we retain the discretion to decline to address any

issues not certified for interlocutory appeal by the district court. Bryant v. Avado

Brands, Inc., 

, 1275 n.4 (11th Cir. 1999). However, the district


                                           20
court’s order, not the certified question, is brought before the court on a § 1292(b)

appeal, and this court’s jurisdiction is not confined to the precise question certified

by the district court. Yamaha Motor Corp. v. Calhoun, 

, 204–05

(1996).

      In the instant case, we decline to consider Liberty National’s contention that

Alabama’s relevant statute of limitations bars plaintiffs’ claims. We conclude that

the facts necessary to address many of Liberty National’s claims with respect to

this issue have not been developed adequately at this stage of the proceedings.

      Liberty National’s contention that §§ 1981 and 1982 are reverse-preempted

by Alabama’s scheme of insurance regulation is not dependent upon unresolved

factual issues. It therefore is appropriate for resolution at this stage of the

proceedings. We thus turn to the question of whether the McCarran-Ferguson Act

precludes the application of §§ 1981 and 1982 in the Alabama insurance context.



                                           C.

      The question of whether the McCarran-Ferguson Act mandates preemption

of the §§ 1981 and 1982 claims presents a legal issue of statutory interpretation,

which we review de novo. Blackfeet Nat’l Bank v. Nelson, 

, 1240

(11th Cir.), cert. denied, 

(1999).


                                           21
       The McCarran-Ferguson Act states that “[n]o act of Congress shall be

construed to invalidate, impair, or supersede any law enacted by any State for the

purpose of regulating the business of insurance . . . unless such Act specifically

relates to the business of insurance.” 15 U.S.C. § 1012(b). The Act thus bars the

application of federal law if (1) the federal statute at issue does not “‘specifically

relat[e] to the business of insurance’”; (2) the state statute at issue was “‘enacted

. . . for the purpose of regulating the business of insurance’”; and (3) application of

the federal statute would “‘invalidate, impair, or supersede’” the state statute.

Humana Inc. v. Forsyth, 

, 307 (1999) (alterations in original) (quoting

15 U.S.C. § 1012(b)).

       There is no question that §§ 1981 and 1982, by their terms, do not relate

specifically to the business of insurance, so the first prong of the Humana analysis

is satisfied. It also is clear that the state statute that Liberty National has put at

issue was enacted for the purpose of regulating the business of insurance. The

statute, codified at section 27-12-11 of the Alabama Code, provides as follows:

             (a) No person shall make or permit any unfair discrimination between
       individuals of the same class and equal expectation of life in the rates
       charged for any contract of life insurance or of life annuity, or in the
       dividends or other benefits payable thereon or in any other of the terms and
       conditions of such contract.




                                            22
Ala. Code § 27-12-11. Therefore, our task is limited to determining whether §§

1981 and 1982 “invalidate, impair, or supersede” the terms of the statute above.

      Liberty National contends that §§ 1981 and 1982, when applied to the life

insurance context, thwart Alabama’s carefully crafted scheme of insurance

regulation. Liberty National asserts that Alabama bans unfair discrimination

among individuals of the same life expectancy, but explicitly permits all other

forms of discrimination in the provision of insurance. Therefore, Liberty National

argues that racial discrimination is acceptable in the Alabama life insurance context

so long as those racial distinctions have an actuarial basis, i.e. they are not used to

discriminate among individuals with the same expectation of life.

      Plaintiffs respond with two distinct arguments in support of their contention

that the McCarran-Ferguson Act does not mandate preempting their civil rights

claims. Plaintiffs first contend that the Reconstruction-era Civil Rights Acts are

not subject to the reverse-preemption provision of the McCarran-Ferguson Act, as

the McCarran-Ferguson Act was intended to apply solely to federal statutes passed

pursuant to the Constitution’s Commerce Clause, not to legislation rooted in

Congress’s power to enforce the Thirteenth and Fourteenth Amendments, such as

the Civil Rights Acts. Spirt v. Teachers Ins. & Annuity Ass’n, 

, 1066

(2d Cir. 1982), (holding that the McCarran-Ferguson Act had no application to


                                           23
civil rights statutes, labor laws, and other areas of “national concern”), vacated,

(1983), reinstated as modified, 

(2d Cir. 1984).

Alternatively, plaintiffs contend that §§ 1981 and 1982 do not “invalidate, impair,

or supersede” section 27-12-11 of the Alabama Code and therefore are not reverse-

preempted by the McCarran-Ferguson Act.

      We decline to address the first of plaintiffs’ contentions, as a decision on the

applicability of the McCarran-Ferguson Act to the Reconstruction-era Civil Rights

Acts is unnecessary for a resolution of this appeal. We agree with the district court

that §§ 1981 and 1982 do not “invalidate, impair, or supersede” Alabama’s scheme

of insurance regulation and therefore are not subject to the reverse-preemption

provisions of the McCarran-Ferguson Act.

       In Humana, the Supreme Court reiterated definitions it employed in earlier

cases with respect to the terms “invalidate” and 

.

Invalidate “means to render ineffective, generally without providing a replacement

rule or law,” while supersede generally “means to displace (and thus render

ineffective) while providing a substitute rule.” 

marks

omitted). The term “impair” has a more complex meaning; the Court defined that

term as follows:

      When federal law does not directly conflict with state regulation, and when
      application of the federal law would not frustrate any declared state policy or

                                          24
      interfere with a State’s administrative regime, the McCarran-Ferguson Act
      does not preclude its application.

      The language of §§ 1981 and 1982 does not “invalidate” or “supersede” the

terms of the relevant Alabama statute. Sections 1981 and 1982 prohibit racial

discrimination in the making of contracts and the acquisition and disposal of real

and personal property; Alabama’s insurance statute prohibits “unfair

discrimination” in the pricing of life insurance rates (or the payment of dividends)

for persons with the same life expectancy. The federal rule does not contradict

directly the terms of the state statute or render it impossible to effect or implement

that statute. The rules proscribe different, though possibly overlapping, conduct

and do not conflict directly. They certainly cannot be construed as operating to

invalidate or supersede one another.

      Therefore, the only real question in this matter is whether the

Reconstruction-era Civil Rights Acts “impair” section 27-11-12 of the Alabama

Code, i.e. whether the Reconstruction-era Civil Rights Acts frustrate any declared

state policy or interfere with the state’s administrative regime in the insurance

context.

      Liberty National has not demonstrated that §§ 1981 and 1982, applied to

insurance contracts, frustrate any declared state policy, because they have not

                                          25
demonstrated that it is in fact the policy of Alabama to encourage or condone racial

distinctions in the provision of life insurance. We have not been directed to any

relevant Alabama authority that has required, condoned, or suggested that racial

distinctions in the provision of life insurance are acceptable. Indeed, there is

nothing in Alabama’s insurance law that directs or encourages insurers to engage

in such practices. See NAACP v. Am. Family Mut. Ins. Co., 

, 297 (7th

Cir. 1992) (finding that Fair Housing Act provisions banning discriminatory

“redlining” in setting insurance rates are not reverse-preempted by the McCarran-

Ferguson Act because there was no state decision, regulation, or statute “requiring

redlining, condoning that practice, . . . or holding that redlining

. . . does not violate state law”). The Seventh Circuit made note of the fact that the

State did not intervene in the American Family case to argue that the federal law at

issue would frustrate its scheme of insurance regulation. The State of Alabama

likewise does not intervene in this case.

      Liberty National asks us to make a substantial interpretive leap in our

construction of Alabama’s life insurance regulations. We are asked to assume that

the abolition of one form of discrimination, as codified in section 27-11-12,

amounts to a clear declaration by the state that all other forms of discrimination,

however invidious, are acceptable. We cannot construe Alabama’s scheme of


                                            26
insurance regulation in such a formalistic and narrow way. Absent more

convincing evidence that racial discrimination in the insurance context is an

integral part of Alabama’s regulatory scheme, Liberty National’s argument must

fail.

        Pertinent guidance in analyzing this issue comes from the Supreme Court

decision in SEC v. National Securities, Inc., 

(1969). In that case, the

Court upheld the SEC’s authority (against a McCarran-Ferguson Act challenge) to

block an insurance company merger approved by the Arizona regulatory

authorities. The Court found that “Arizona ha[d] not commanded something [that]

the Federal Government [sought] to prohibit. It ha[d] permitted respondents to

consummate the merger; it did not order them to do so.” 

The Court

concluded that “[t]he paramount federal interest in protecting shareholders is . . .

perfectly compatible with the paramount state interest in protecting policyholders.”

that the Court employed in National Securities is applicable to

the instant case. In National Securities, the Court faced a situation in which the

conflict between federal and state interests was much more pointed than the

conflict in the instant case. The state determined that the merger was acceptable

under the state’s insurance guidelines; the federal government blocked that same


                                          27
merger on other grounds. Rather than rely upon the conflicting actions of the two

entities, the Court analyzed what, in fact, Arizona had done by permitting the

merger to go forward. The Court correctly noted that Arizona’s action was not an

unambiguous command that the merger go forward; rather, it was simply a grant of

permission for the companies involved to do so. It was precisely because

Arizona’s actions did not amount to a clear command to consummate the merger

that the federal actions preventing that merger were not construed as inconsistent

with Arizona’s regulatory scheme.

      In the instant case, we likewise cannot conclude that Alabama intended to

condone racial discrimination in its scheme of insurance regulation. We therefore

see no inconsistency between the state’s interest in preventing “unfair

discrimination” between individuals with similar life expectancies and the

paramount national interest in preventing racial discrimination in the contexts

articulated by §§ 1981 and 1982. The two nondiscrimination principles

complement each other, and Liberty National has not demonstrated that the federal

statutes at issue impinge on any declared state policy in the insurance context.

Therefore, the McCarran-Ferguson Act does not require the reverse-preemption of

plaintiffs’ §§ 1981 and 1982 claims.

                                  CONCLUSION


                                         28
      In conclusion, we hold that the district court did not err when it declined to

apply Alabama’s common law doctrine of repose to block plaintiffs’ federal civil

rights claims. We further hold that §§ 1981 and 1982 are not reverse-preempted by

section 27-12-11 of the Alabama Code. The Reconstruction-era Civil Rights Acts

complement, rather than conflict with, Alabama’s regulatory scheme in the

insurance context, and, therefore, the McCarran-Ferguson Act has no application to

the instant case. We decline to address Liberty National’s claim that the applicable

statute of limitations bars plaintiffs’ claims.

      The order of the district court is

AFFIRMED.




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