Cranston Firefighters, IAFF Local 1363 v. Raimondo

United States Court of Appeals
For the First Circuit

No. 17-1293

CRANSTON FIREFIGHTERS, IAFF LOCAL 1363, AFL-CIO, on its own
behalf and on behalf of its members; INTERNATIONAL BROTHERHOOD
OF POLICE OFFICERS, LOCAL 301, AFL-CIO, on its own behalf and on
behalf of its members,

Plaintiffs, Appellants,

v.

GINA M. RAIMONDO, in her capacity as Governor of the State of
Rhode Island; SETH MAGAZINER, in his capacity as General
Treasurer of the State of Rhode Island; THE EMPLOYEES'
RETIREMENT SYSTEM OF RHODE ISLAND, by and through Seth
Magaziner, in his capacity as Chairperson of the Retirement
Board, and Frank J. Karpinski, in his capacity as Executive
Director of the Retirement Board; CITY OF CRANSTON, by and
through its Finance Director, Robert F. Strom, and its
Treasurer, David Capuano,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Elizabeth Wiens, with whom Gursky|Wiens Attorneys at Law,
Ltd. was on brief, for appellants.
Nicole J. Benjamin, with whom John A. Tarantino, Adler Pollock
& Sheehan P.C., Rebecca Partington, Rhode Island Department of
Attorney General, and Michael Field, Rhode Island Department of
Attorney General were on brief, for appellees Gina M. Raimondo, in
her capacity as Governor of the State of Rhode Island, Seth
Magaziner, in his capacity as the General Treasurer of the State
of Rhode Island, and the Employees' Retirement System of Rhode
Island.
Nicholas L. Nybo, with whom William M. Dolan III and Adler
Pollock & Sheehan P.C. were on brief, for appellee City of
Cranston.

January 22, 2018
 KAYATTA, Circuit Judge. In 2011, Rhode Island enacted

legislation modifying various state-run pension plans for

government employees, including a plan that covered municipal

firefighters and police officers. Generally speaking, the

modifications reduced the value of the benefits payable under the

plan in order to ameliorate what the State perceived to be a

serious and growing liability that would be difficult to fund.

The unions representing the firefighters and police officers

employed by the City of Cranston (the "Unions") filed this lawsuit

claiming that the modifications unconstitutionally repudiated

contractual obligations owed to the Cranston employees.

We affirm the district court's dismissal of the

complaint. In so doing, we find that the complaint fails as a

matter of law to allege that the challenged legislation

unconstitutionally impaired any contractual rights of the Unions'

members. We also find that federal court is not the proper forum

within which to litigate the Unions' undeveloped claims that the

City of Cranston is failing to live up to the terms of its

ordinances or collective bargaining agreements, and we find that

this lawsuit provides no opportunity to challenge the terms of a

settlement by other parties in another lawsuit. Our reasoning

follows.

- 3 -
 I.

A.

Since 1936, Rhode Island has maintained a retirement

system for state employees, administered by a retirement board.

See Nat'l Educ. Ass'n-R.I. ex rel. Scigulinksy v. Ret. Bd. of the

R.I. Emps. Ret. Sys. (NEA), 172 F.3d 22, 24 (1st Cir. 1999). In

1951, the State created a retirement system for municipal

employees, including firefighters and police officers. See 1951

R.I. Pub. Laws Ch. 2784 (codified as amended at 45 R.I. Gen. Laws

§ 45-21-1, et seq. (2017)). Seventeen years later, the State

created an alternative, dedicated plan for police officers and

firefighters (the "Optional Police and Fire Retirement System").

See 1968 R.I. Pub. Laws Ch. 230 (codified as amended at 45 R.I.

Gen. Laws § 45-21.2-1, et seq. (2017)).

At least one municipality, the City of Cranston, also

operated its own municipal retirement system. By the mid-1990s,

Cranston was experiencing a severe operating deficit and its

municipal pension plan was critically underfunded. The Unions and

the City came up with a potential solution: all new hires, and

perhaps some recent hires, would transfer to the state retirement

system. One significant impediment to this rescue plan stood in

the way: the state system provided less favorable benefits.

Cranston and the Unions overcame this impediment by convincing

representatives from the state retirement board to submit special

- 4 -
legislation that would provide certain Cranston police officers

and firefighters who joined the state system with benefits in

excess of those provided to others under that system. The Rhode

Island General Assembly passed the special legislation, which

became law on August 9, 1996. 1996 R.I. Pub. Laws Ch. 374 ("1996

Special Legislation").

The 1996 Special Legislation amended state law to allow

new members and certain existing members of the Cranston Fire and

Police Departments to opt into the state's Optional Police and

Fire Retirement System, to provide higher "final compensation" for

purposes of calculating their pension benefits, to provide a higher

annual cost of living adjustment ("COLA") payment (three

percent compounded), and to increase employee contributions from

seven percent to ten percent. The statute also provided that

Cranston Fire and Police Department enrollees who transferred from

the municipal pension plan into the state system would, upon

joining, "waive and renounce all accrued rights and benefits of

any other [municipal] pension or retirement system." Finally, the

statute invited the City to approve the changes: "This act shall

take effect upon passage and be applicable to the City of Cranston

upon the affirmative vote of a majority of the City Council

adopting the provisions hereof." The Cranston City Council duly

enacted two ordinances so providing, the details of which we

discuss in a later section of this opinion.

- 5 -
 B.

By 2011, Rhode Island's public employee pension system

itself faced dire underfunding, which the state legislature

labeled a "fiscal peril" that threatened the ability of Rhode

Island's municipalities to provide basic public services. The

legislature passed the Rhode Island Retirement Security Act of

2011 (the "2011 Act"), which contained a series of pension reforms

designed to bring the state system into financial health. As

relevant to the Unions, the 2011 Act added a minimum retirement

age of fifty-five where previously none had existed, changed the

years of minimum service from twenty to twenty-five, reduced the

pension accrual percentage per credited year of service, and made

the calculation for workers' final compensation less favorable.

These changes applied to future retirees, not those already

receiving benefits. The 2011 Act also changed the annual COLA

payment from three percent to a variable percentage for current

and future pensioners. Overall, the 2011 Act substantially reduced

the value of public employee pensions provided by the Rhode Island

system.

A variety of municipal employee unions and retiree

groups sued the State in the wake of the 2011 Act. Eventually,

those unions and groups entered into a class settlement with the

State. In return for dismissal of the claims against it, the State

in 2015 enacted certain additional amendments to its pension laws

- 6 -
(the "2015 Amendments"). These amendments ameliorated but did not

eliminate the changes in the 2011 Act that reduced the value of

pensions provided under the state system. A state superior court

thereafter entered judgment approving the class settlement. While

the Unions' members apparently receive some of the advantages of

the 2015 Amendments, they did not participate in the settlement,

and their members are not subject to the state court judgment

approving the settlement. See R.I. Pub. Emps. Retiree Coal. v.

Raimondo, No. PC-2015-1468, 2015 WL 4501873, at *1 (R.I. Super.

Ct. July 8, 2015) (final judgment certifying settlement class).

The Unions filed this case in March of 2016 on behalf of

current Cranston firefighters and police officers, challenging the

curtailment of their future pension benefits. Counts I-III of the

complaint train exclusively on the enactment of the 2011 Act, as

amended in 2015, as the challenged wrongful conduct. The counts

assert that the legislation infringed upon the rights of the

Unions' members under the Contracts, Due Process, and Takings

Clauses of the United States Constitution. The complaint's factual

averments seek to portray the 1996 Special Legislation as a

contract between the State and those Cranston firefighters and

police officers who joined the state retirement system. The

complaint also refers to the Unions' collective bargaining

agreements ("CBAs") with the City and to "vested and contractual

rights" under two Cranston ordinances. The complaint offers no

- 7 -
hint as to how or even whether the alleged wrongful conduct

(enactment of the 2011 Act, as amended in 2015) impaired or took

away any rights under the CBAs or the ordinances. Nor do the

Unions' briefs on appeal so clarify. Count IV of the complaint is

something of a detour. It seeks to challenge a term of a class

settlement that prohibits retired Cranston public safety officers

(who are not represented by the Unions) "from . . . proposing,

supporting, encouraging and/or advocating relief for" the unions

in this case.

The district court dismissed (without prejudice)

counts I-III to the extent they depended on the assertion that the

1996 Special Legislation was a contract that was

unconstitutionally impaired by the amended 2011 Act to the

detriment of the Unions' members in violation of the Contracts,

Takings, or Due Process Clauses of the United States Constitution.

Cranston Firefighters, IAFF Local 1363 v. Raimondo, No. 16-cv-130-

ML, 2017 WL 899948, at *10–11 (D.R.I. Mar. 7, 2017). At the same

time, the district court apparently viewed that ruling as not

eliminating the need to also determine "what, if any, contractual

rights the CBAs and Cranston City Ordinances confer[red] on the

Plaintiffs." Id. at *9. Determining that the likely resolution

of that question in a pending state court proceeding would affect

the resolution of this case, the district court abstained under

the authority of Railroad Commission of Texas v. Pullman Co., 312

- 8 -
U.S. 496 (1941), and dismissed any claims based on the CBAs or the

Cranston ordinances without prejudice. Cranston Firefighters,

2017 WL 899948, at *9; see Cranston Police Retirees Action Comm.

v. City of Cranston, No. KC-2013-1059, 2016 WL 4059309 (R.I. Super.

Ct. July 22, 2016). Finally, the district court dismissed (with

prejudice) count IV, finding that the Unions lacked standing to

complain about any restrictions assumed by retirees under the class

settlement the Unions did not join. Cranston Firefighters, 2017

WL 899948, at *11-12. The Unions timely appealed to this court.

II.

A.

Because the district court dismissed the Unions'

challenge to the amended 2011 Act by granting a motion to dismiss

the claim as pleaded, our review is de novo. LaChapelle v.

Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998). In

conducting this de novo review, we assume all facts pleaded in or

reasonably inferred from the complaint to be true. Sepúlveda-

Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 30 (1st Cir.

2010).

We begin our analysis of the Contracts Clause claim as

we have begun such an analysis before in considering whether a

state statute constitutes a contract. "We need not decide whether

the statute ever gives rise to a contractual relationship," Parker

v. Wakelin, 123 F.3d 1, 9 (1st Cir. 1997); rather, we can assume

- 9 -
without deciding that the 1996 Special Legislation contractually

bound the State in some manner to Cranston fire and police members,

and ask the narrower, more focused question of whether the State

was contractually bound not to make the specific benefit

modifications that it made in 2011 and 2015. See Me. Ass'n of

Retirees v. Bd. of Trs. of the Me. Pub. Emps. Ret. Sys., 758 F.3d

23, 30 (1st Cir. 2014) ("[W]e assume that MePERS creates some

contractual obligation and focus instead on whether COLAs are

included in that obligation.").

The modifications at issue here appear on their face to

be material. There is no claim, though, that they apply to persons

who had already retired at the time they were made (nor do the

plaintiff Unions include any retirees). Importantly, there is no

allegation that the value of the benefits as modified falls below

the value of the respective employees' contributions to the plan.

We therefore read the complaint as challenging a reduction in the

amount by which the value of the benefit exceeds the value of any

contribution by the employees to fund the benefit.

A claim that a state statute creates a contract that

binds future legislatures confronts a tropical-force headwind in

the form of the "unmistakability doctrine." Parker, 123 F.3d at

5. This doctrine precludes finding that a statute creates a

binding contract absent a clear and unequivocal expression of

intent by the legislature to so bind itself. Nat'l R.R. Passenger

- 10 -
Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465–

66 (1985). The doctrine recognizes that "the principal function

of a legislature is not to make contracts, but to make laws that

establish the policy of the state." Id. at 466. It also serves

"the dual purposes of limiting contractual incursions on a State's

sovereign powers and of avoiding difficult constitutional

questions about the extent of state authority to limit the

subsequent exercise of legislative power." United States v.

Winstar Corp., 518 U.S. 839, 875 (1996) (plurality opinion).

Never once has our court found that state or federal

legislation clearly and unequivocally expressed a legislative

intent to create private contractual rights enforceable as such

against the state. Our discussion in Parker best demonstrates how

difficult it is to satisfy this standard in the absence of plain

language that the legislature regarded its handiwork as creating

a binding, contractual commitment. The Maine statute creating a

retirement benefit for public school teachers included a clause

stating that "no amendment . . . may cause any reduction in the

amount of benefits which would be due a member . . . on the date

immediately preceding the effective date of the amendment."

Parker, 123 F.3d at 8 (ellipses in original). We recognized that

one could well read that clause as creating contract rights for a

teacher who was in active service long enough to be "vested," i.e.,

"due" benefits to be paid in the future. Id. at 9. Nevertheless,

- 11 -
we also recognized that one might also construe the word "due" as

describing only benefits that were "currently payable." Id. at 8.

That ambiguity inherent in the conflicting plausible readings

meant that the statutory text furnished no unmistakable

contractual undertaking. Id. at 9.

Similarly, in NEA, the legislature actually labeled, in

a heading, the requisite statutory pension benefit a "Guaranty by

state -- Annual appropriations" and provided that the legislature

"shall make annual appropriations which shall be sufficient to

provide for the payment of . . . benefits . . . required of the

state." 172 F. 3d at 28. Nevertheless, we found that language to

fall "at least a step short of clearly expressing a contractual

commitment not to change benefit levels or other plan variables by

legislation." Id.

The quite plausible but nevertheless not unmistakable

textual commitments that we found to be insufficient in Parker and

NEA contrast with the unambiguous text found sufficient by the

United States Supreme Court in two cases upon which the parties

rely. In Indiana ex rel. Anderson v. Brand, the statutory benefit

was literally "couched in terms of contract." 303 U.S. 95, 105

(1938). And in U.S. Trust Co. of New York v. New Jersey, 431 U.S.

1 (1977), the intent to contract appeared equally plainly. The

legislation expressly stated that New York and New Jersey "covenant

and agree with each other and with the holders of any affected

- 12 -
bonds" that the Port Authority would not "apply any of the . . .

revenues or reserves . . . pledged in whole or in part as security

for such bonds, for any railroad purposes whatsoever other than

permitted purposes hereinafter set forth." Id. at 9–10.

In the 1996 Special Legislation at issue here, there is

no language that comes remotely close to that found sufficient in

U.S. Trust or Brand. We do not even have language that goes as

far as the language found insufficient in Parker and NEA. Bereft

of language couched in the terms of contract, or of express

statements of an intent to create a contract, the Unions point to

the statute's clause requiring that those then-current Cranston

employees joining the system who had "accrued rights and benefits"

under the Cranston plan were required to "waive and renounce[]"

those rights and benefits, and that all Cranston participants must

contribute ten percent of their pay. These terms, say the Unions,

show that "both sides gave something up, and both sides received

something in return." Hence there was a "bargained-for exchange

of binding rights."

The conclusory allegation that the state "received

something in return" could be made of every pension program in

which there is a contribution requirement (such as federal Social

Security). In NEA, for example, the state received payments from

joining members who wished to "purchase credit" for years of

service, 172 F.3d at 24, yet we found the state free to repeal the

- 13 -
value of the benefits in excess of the payments made, id. at 30–

31. We observe, too, that the rights Union members "gave up" were

rights against what they themselves viewed as a "critically

underfunded" municipal plan by a city on the edge of financial

failure, and not rights against the State. Moreover, the Unions

tell us that their retirement benefits are a mandatory subject of

collective bargaining under state law, and that they have

renegotiated their CBAs with the City of Cranston multiple times

since 1996, requiring the City to reaffirm its commitment to

substantially the same benefit provisions each time. This suggests

both the limited scope of any waiver of ongoing rights against the

cash-strapped municipality and the perception of some risk that

the State itself might decide to reduce the benefits that it

provides, since the Unions appear to have sought the City's

commitment as a potential backstop.

Our case law does leave open for future consideration

the possibility that the mere creation of a retirement plan to

which members contribute a portion of their own pay clearly and

unequivocally creates a contractual commitment requiring the state

to repay member contributions and, perhaps, reasonable interest.

See NEA, 172 F.3d at 31; see also Me. Ass'n of Retirees, 758 F.3d

at 30. The plan at issue in this case, though, is a hybrid defined

benefit and defined contribution plan and there is no allegation,

nor any argument either below or on appeal, that the modifications

- 14 -
at issue leave or even might leave in place a benefit worth less

than the present value of the contributions. So even if we were

to place some weight on the "give something/get something"

argument, that weight would have no logical bearing on whether the

state clearly and unequivocally precluded itself from modifying

the pension scheme in the manner in which it has done so here.

Finding no clear markers of a contractual commitment in

the statutory text, the Unions argue that the circumstances

surrounding the passage of the 1996 Special Legislation supply

enough evidence of legislative intent to bind the State

notwithstanding the conclusion we would otherwise reach based on

the text alone. It is certainly true that courts have looked at

circumstances surrounding a law's enactment in the course of

determining whether the statute creates a constitutionally-

protected contractual entitlement. In all such United States

Supreme Court cases (and there are no such First Circuit cases),

however, reference to such circumstances served to reinforce a

conclusion already made quite clear by the statute's express

language. Thus, in U.S. Trust, the circumstances precipitating

the bondholder-protection statute's enactment, including a

legislative committee's recommendation for legislative text

referencing Contracts Clause protections, reinforced the

straightforward reading of the text, which itself spoke plainly of

the state's intent to "covenant and agree." 431 U.S. at 9-10.

- 15 -
And in Brand, the finding that the teacher-tenure legislation,

which used language like, "such contract shall be deemed to

continue in effect for an indefinite period and shall be known as

an indefinite contract," 303 U.S. at 101 n.14, created a

contractual commitment was supported by circumstances leading up

to the law's passage in which teachers possessed no guarantees as

to their future employment, even after years of service, 303 U.S.

at 104.

And even if we were to accept in theory the possibility

that extra-textual circumstances by their own might carry the day

for the Unions, the circumstances in this case do not provide

unequivocal support for the Unions' reading of the 1996 Special

Legislation. For starters, because Rhode Island does not record

legislative history, the Unions have an uphill battle explaining

how the "legislature as a whole," Parker, 123 F.3d at 9, was even

aware of any particular circumstance to which the Unions point.

All the Unions manage to allege is that "[r]epresentatives of the

City testified before the Senate and House of Representatives in

support of the special legislation."

Even if we were to ignore this gap, we would find the

circumstances themselves to be incapable of serving as the required

clear and unequivocal evidence of intent. The principal

circumstance to which the Unions point is the fact that, like a

party to a contract, they "negotiate[d]" the benefit levels

- 16 -
described in the 1996 Special Legislation. This, though, strikes

us as nothing more than saying that the Unions lobbied for the

legislation, much like an interest group might lobby to increase

Medicare or Social Security benefits.

There are other important relevant circumstances, too,

that cut strongly against the Unions' reading. Just two years

before passing the 1996 Special Legislation, the Rhode Island

legislature expressly repealed a prior legislative grant of state

pension benefits (described in a different section of the state

pension regime) to employees of teachers' unions, and returned

member contributions with interest. See NEA, 172 F.3d at 24–25.

Additionally, the legislature had several times amended the very

pension system at issue here, increasing the minimum years of

service requirement in 1975, 1975 R.I. Pub. Laws Ch. 153, and

raising the mandatory retirement age in 1984, 1984 R.I. Pub. Laws

Ch. 13. Given that history, one can hardly say that the 1996

legislature necessarily assumed that a new grant of enhanced

benefits could not also be modified at a later date. Nor can one

say that any observer of the State's conduct could reasonably

assume that state pension legislation was a one-way ratchet.

We therefore agree with the district court that, as a

matter of law, the 1996 Special Legislation did not constitute a

constitutionally binding commitment precluding Rhode Island from

making the 2011 and 2015 modifications to the pension plan in which

- 17 -
the Unions' members were participants. The lack of any allegation

that the current benefits provided by the State fall below the

present value of the contributions made by the Union pensioners,

coupled with the absence of the alleged contract, also eliminates

the basis for a claim under the Takings Clause. See NEA, 172 F.3d

at 30. And the use of legislation that is not otherwise

constitutionally infirm to reduce a non-mandatory benefit does not

violate due process. Hoffman v. City of Warwick, 909 F.2d 608,

619–20 (1st Cir. 1990). We therefore affirm the dismissal of

counts I-III predicated upon any claim that because of the 1996

Special Legislation, the State could not make the modifications

made in the 2011 Act and 2015 Amendments.

B.

Having disposed of the Unions' claim against the State

that the amended 2011 Act impaired a contractual commitment made

in the 1996 Special Legislation, we turn to the Unions' arguments

that we should vacate the district court's decision to dismiss

their claims involving the City. In their briefs on appeal, the

Unions never actually say what those claims are, and it remains a

mystery to us. The Unions describe this lawsuit as seeking "a

declaratory judgment that the [2011 Act, as amended] violated the

[U.S. Constitution]." In the complaint's summary statement of the

pleaded counts, the only alleged wrongful conduct is the enactment

of the amended 2011 Act. The City, though, did not enact the 2011

- 18 -
Act or the 2015 Amendments. And because the Unions fail to explain

how the actions of a third party, the State, operate to impair the

purported contractual obligations promised by the City in its

ordinances and in the CBAs, there is no developed claim that the

amended 2011 Act impairs any asserted contract other than the 1996

Special Legislation.

The complaint does allege that certain Cranston

ordinances and the CBAs between the City and the Unions created

"vested and contractual rights" in favor of the Unions' members.

It further alleges, without specificity, that the City is violating

its ordinances "on information and belief." If these allegations

are correct, then perhaps the Unions and their members have claims

under state law for breach of contract, or for violating the

ordinances. And, indeed, the Unions tell us that they have filed

arbitrable grievances against the City for violating the terms of

the CBAs.

The district court apparently gleaned from all of this,

with the City's acquiescence, a claim (or rather, an assertion)

"that the [Unions' members] have contractual and otherwise

constitutionally protected rights to certain retirement benefits

pursuant to various CBAs, sections of the Cranston Code of

Ordinances, and/or R.I. Gen. Laws § 45-21.2-1." Pointing to

ongoing state court litigation brought by retired Cranston

firefighters and police officers challenging specific actions by

- 19 -
the City related to benefits described in its ordinances and CBAs,

the district court invoked Pullman abstention and dismissed

without prejudice all claims dependent upon City-guaranteed

contract rights, figuring that the state courts might provide

answers that would assist in resolving those claims. The Unions

ask that we set aside that ruling.

Without any developed explanation by the Unions of what

the City has done that violates or threatens an imminent violation

of federal law, we can find no coherent basis for litigating any

claims against the City in this federal case. If the City has

violated the CBAs, then presumably the arbitrator hearing the

pending grievances will so rule. And if the City is violating its

own ordinances, those ostensible state law claims can be heard in

state court. More importantly, there is no independent

jurisdictional basis upon which the district court might hear such

state law claims between non-diverse parties. And to the extent

that supplemental jurisdiction might have otherwise attached to

the Unions' undeveloped claims against the City, the early

dismissal of the federal claims -- which we now affirm -- generally

calls for a refusal to continue exercising jurisdiction over any

supplemental claims. Rodriguez v. Doral Mortg. Corp., 57 F.3d

1168, 1177 (1st Cir. 1995). In this case we see no reason that

would allow a district court to depart from that general rule. To

the contrary, the district court's perception that the state courts

- 20 -
should speak first on state issues raised even as part of the

federal claims applies a fortiori when there remain no federal

claims. For this alternative reason, and without addressing the

question of Pullman abstention, we affirm the dismissal without

prejudice of any claims against the City.

C.

We turn, finally, to the Unions' request that the

district court declare that retired Cranston police and

firefighters are not bound to comply with a provision of the class

settlement approved and implemented by the Rhode Island state

court. The Unions do not claim to represent any of the retirees.

The Unions nevertheless claim standing to challenge the lawfulness

and enforceability of the state judgment implementing the class

settlement agreement because the judgment "prevents Cranston

Retirees from presenting the testimony of Cranston retirees, which

is extremely relevant to the [Unions'] claims" in this case.

We see all sorts of potential problems with this claim,

from a likely lack of cognizable standing, to the retirees'

apparent decision not to challenge the settlement or the judgment

approving and implementing the settlement, to an unsupported

assumption that A has an ability to prevent B and C from agreeing

that they won't talk to A, or to the fact that nothing in the class

settlement agreement appears to prevent anyone from testifying in

response to a subpoena. The simple answer, though, is that given

- 21 -
our disposition of the substantive claims in the Unions' complaint,

the Unions are unable to point to any plausibly relevant testimony

that retirees might offer that would materially alter the result

in this case. Therefore we affirm the dismissal of count IV.

III.

For the reasons described above, we affirm the dismissal

of this complaint.

- 22 -