USCA1 Opinion
September 26, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1223
KELLY K. LYDON,
Plaintiff, Appellant,
v.
JANE H. MALME, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr,
Circuit Judges.
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Kelly K. Lydon on brief pro se.
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Scott Harshbarger, Attorney General, and Phyllis N. Crockett,
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Assistant Attorney General, on brief for appellees.
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Per Curiam. The judgment of the district court is
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affirmed essentially for the reasons stated in the district
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court's January 28, 1994 memorandum and order.
We add that plaintiff-appellant Kelly Lydon raises
an argument on appeal that the district court did not mention
in its opinion. Lydon argues that he was accorded a
constitutionally protected property interest in his job under
state law pursuant to Article 22 of a collective bargaining
agreement with the state. Article 22 states, in pertinent
part, "No employee who has been employed in the bargaining
unit described in Article 1 of this Agreement for six (6)
consecutive months or more shall be discharged, suspended, or
demoted for disciplinary reasons without just cause."
Defendants-appellees Jane Malme, et al., concede that Lydon
was covered under this agreement.
Lydon, however, did not raise this argument in the
district court as a basis for his claim that he had a
constitutionally protected property interest in his job.
Consequently, he has waived the argument on appeal. See
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Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 355 (1st Cir.
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1994); United States v. Slade, 980 F.2d 27, 31 (1st Cir.
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1992). Lydon's status as a pro se litigant did not relieve
him of the obligation to apprise the district court of all
points he wished to raise in favor of his position. See,
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e.g., Eagle Eye Fishing Corp. v. United States Dep't of
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Commerce, 20 F.3d 503, 506 (1st Cir. 1994); Jaroma v. Massey,
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873 F.2d 17, 22 (1st Cir. 1989).
It is true that we do have discretion, in an
exceptional case, to reach issues that were not raised below.
We have found that the exercise of that discretion may be
appropriate where all (or most of) the following factors are
present: (1) where the new issue is purely legal, so that
there is no need for further development of the record in the
district court; (2) where there is little doubt of the proper
resolution of the issue; (3) where the issue is almost
certain to be presented in identical terms in other cases;
and, above all, (4) where failure to reach the issue would
result in a miscarriage of justice. United States v. La
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Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States
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v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
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Lydon's new issue does not sufficiently satisfy
these criteria. For one thing, further development of the
record might well aid in the determination of this issue.
The record does not even contain a copy of the collective
bargaining agreement that is alleged to be applicable; all
that we have is what purports to be a copy of the single page
of the agreement that contains Article 22. Malme asserts in
her brief that Article 22 did not apply to Lydon's discharge
because he was discharged not for disciplinary reasons, but
for abandoning his position, which Malme says is covered by
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another section of the agreement. That other section is not
in the record. The parties, too, might have introduced
evidence concerning the manner in which Article 22 and any
other relevant provisions of the agreement have been
interpreted in practice.
Second, we cannot say with certitude what the
proper resolution of this issue may be. Although it is true
that other circuits have ruled that a just cause provision in
a collective bargaining agreement entered into by the state
can create a property interest in state employment, see,
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e.g., Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d
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Cir. 1991), this court has yet to rule on the question. See
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Bennett v. City of Boston, 869 F.2d 19, 22 (1st Cir. 1989).
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Moreover, the provision at issue here does not clearly state
that an employee cannot be discharged without cause.
Instead, it states that an employee cannot be discharged "for
disciplinary reasons without just cause." This seems, at
first blush, to leave open the possibility that an employee
can be discharged on other grounds, or for no reason at all,
without just cause. It is by no means obvious, therefore,
that this provision reasonably engenders a sufficient
expectation of continued employment to create a property
interest.
Also, Lydon concedes in his supplemental affidavit
below that his discharge was not "for disciplinary reasons"
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and was not covered by Article 22. Lydon also concedes that
he did not file a grievance challenging his discharge under
Article 22. Although Lydon argues that defendants delayed
sending him notice of his termination in order to defeat his
right to file a grievance, the record suggests that, to the
contrary, the effective date of his termination was delayed
in order to permit a grievance filing. Given Lydon's stance
below and his failure even to invoke the grievance machinery
of the collective bargaining agreement, we could not say that
it would result in a miscarriage of justice for us to decline
to permit Lydon to invoke the collective bargaining agreement
for the first time on appeal.
For all these reasons, this case does not present
an appropriate occasion to consider Lydon's argument despite
his default below.
Finally, Lydon also alleged in his complaint that
defendants mistreated him in retaliation for his filing of a
state workers' compensation claim, and attempted to interfere
with his efforts to pursue that claim. The district court
did not discuss these allegations. These are framed as
state-law allegations, however, and, since all the parties
are Massachusetts residents, the district court's subject-
matter jurisdiction over this case is premised on the
existence of a federal question. Having properly dismissed
Lydon's federal claims, therefore, the district court
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appropriately declined to exercise pendent jurisdiction over
Lydon's state-law claims. See United Mine Workers v. Gibbs,
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383 U.S. 715, 726 (1966).
We have considered all of Lydon's other arguments
and find them meritless.
The judgment of the district court is affirmed.
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See 1st Cir. R. 27.1.
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