Lydon v. Malme

USCA1 Opinion









September 26, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________


No. 94-1223

KELLY K. LYDON,

Plaintiff, Appellant,

v.

JANE H. MALME, ET AL.,

Defendants, Appellees.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]
___________________

____________________

Before

Torruella, Chief Judge,
___________
Selya and Cyr,
Circuit Judges.
______________

____________________

Kelly K. Lydon on brief pro se.
______________
Scott Harshbarger, Attorney General, and Phyllis N. Crockett,
__________________ ____________________
Assistant Attorney General, on brief for appellees.


____________________


____________________




















Per Curiam. The judgment of the district court is
__________

affirmed essentially for the reasons stated in the district
________

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
___

Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 355 (1st Cir.
_____________________ _______

1994); United States v. Slade, 980 F.2d 27, 31 (1st Cir.
_____________ _____

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,
____

e.g., Eagle Eye Fishing Corp. v. United States Dep't of
_______________________________ ________________________



















Commerce, 20 F.3d 503, 506 (1st Cir. 1994); Jaroma v. Massey,
________ ______ ______

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
_____________ __

Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States
_______ _____________

v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
________

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



-3-















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,
____

e.g., Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d
______________ ___________________

Cir. 1991), this court has yet to rule on the question. See
___

Bennett v. City of Boston, 869 F.2d 19, 22 (1st Cir. 1989).
_______ ______________

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"



-4-















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



-5-















appropriately declined to exercise pendent jurisdiction over

Lydon's state-law claims. See United Mine Workers v. Gibbs,
_______________________ _____

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.
________

See 1st Cir. R. 27.1.
___







































-6-