Efreom v. McKee

United States Court of Appeals
For the First Circuit

No. 21-1382

BINYAMIN I. EFREOM; MARILYN C. DISTEFANO; SUSAN L. HARTNETT;
ADRIENNE R. DIMEO; MARY G. KENNEDY; CYNTHIA J. RONDEAU; MARY
O'CONNELL MCKENNA; TIMOTHY H. MURPHY; DENNIS F. ZIROLI; ANNMARIE
BOLVIN; WILLIAM P. BERUBE; JOSEPH F. CLIFFORD, III; ANTONETTA R.
MELLO; MAUREEN RITA VAVOLOTIS; WILLIAM BLAIR; PATRICIA E.
GIAMMARCO; BARBARA A. MOUSSALLI; SANDRA A. CURRAN; KATHLYNE E.
WALSH; WILLIAM H. FERGUSON; CAROL SCHNEIDER; JOANNE A.
MATISEWSKI; LAURIE A. SCIALABBA; JEAN PETISCE-LYNCH; ANTHONY T.
BAGAGLIA; JOANN C. LOMBARDI; ANTHONY J. RICCI; JAMES E. BARDEN;
NANCY A. LEMME; MARY F SHERLOCK; PAMELA J. DELVECCHIO; JANET
KELLER; DEAN L. LEES; ROBERT M. PESATURO, JR.; JANICE M.
COLERICK; JAMES H. COX; KATHLEEN A. CRESCENZO; SANDRA L.
MCCULLOUGH; MICHAEL N. SENERCHIA; KAREN M. TANNER; NORMA JEAN
PALAZZO; DAVID GOODMAN; ROBERT J. DIMAIO; FRANCESCA BEDELL;
JAMES BEDELL; MARGARET HARRIS; MARY KATHERINE O'NEILL; BRIAN
KENNEDY,

Plaintiffs, Appellants,

GREGORY MARCELLO,

Plaintiff,

v.

DANIEL J. MCKEE, in his capacity as Governor of the State of
Rhode Island; EMPLOYEES' RETIREMENT SYSTEM OF RHODE ISLAND, by
and through FRANK J. KARPINSKI, its Executive Director; SETH
MAGAZINER, in his capacity as Chairperson of the Retirement
Board,

Defendants, Appellees.

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

[Hon. William E. Smith, U.S. District Judge]
 Before

Barron, Chief Judge,
Selya and Gelpí, Circuit Judges.

George J. West for appellants.

Nicole J. Benjamin, with whom John A. Tarantino, Adler
Pollock & Sheehan P.C., Michael W. Field, and Rhode Island Office
of Attorney General, for appellees Daniel J. McKee, in his capacity
as Governor of the State of Rhode Island, Seth Magaziner, in his
capacity as Chairperson of the Retirement Board, and the Employees'
Retirement System of Rhode Island.

August 18, 2022

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 GELPÍ, Circuit Judge. This is an appeal from an order

and judgment granting defendant-appellees' motion to dismiss

appellants' complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Appellants are forty-nine members of a

class of retired Rhode Island public employees impacted by changes

to the state's retirement benefits scheme, as initially

implemented by the Rhode Island Retirement Security Act of 2011

("RIRSA"), and subsequently modified by legislation in 2015 (the

"2015 Amendments"). The latter was enacted pursuant to a class-

action settlement agreement reached following litigation in state

court, in which each appellant was a party. Unsated by what they

consider to be meager relief, appellants now seek redress in

federal court under 42 U.S.C. § 1983, alleging various

constitutional violations in the changes to Rhode Island's

retirement benefits scheme (Counts I-IV) and in the class-action

settlement agreement itself (Count V). However, in attempting to

effectively appeal a final judgment of the Rhode Island Supreme

Court, appellants run afoul of the Rooker-Feldman doctrine with

respect to Counts I-IV. See Rooker v. Fid. Tr. Co., 263 U.S. 413

(1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). Count

V, meanwhile, fails due to a lack of standing. As such, we affirm

the district court's dismissal for want of subject-matter

jurisdiction.

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 I. Background1

Facing a steep budget deficit in the wake of the 2008

financial crisis, Rhode Island enacted RIRSA in 2011 to shore up

its then-precarious pension system, the Employees' Retirement

System of Rhode Island ("ERSRI"). 2011 R.I. Pub. Laws ch. 408-

409; see also id. ch. 408 § 1(a)(1) (finding that "[t]he State of

Rhode Island has one of the lowest funded and most vulnerable

statewide pension systems in the country"); Cranston Firefighters,

IAFF Loc. 1363 v. Raimondo, 880 F.3d 44, 46 (1st Cir. 2018) ("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."). RIRSA, which

followed previous pension reforms enacted in 2009 and 2010, altered

in various ways the retirement benefits to which public employees

were entitled, including by reducing the amount and availability

of cost-of-living adjustment ("COLA") payments to retirees. See

R.I. Pub. Emps. Retiree Coal. v. Raimondo (RIPERC I), No. PC 2015-

1468, 2015 WL 1872189, at *1, *6 (R.I. Super. Ct. Apr. 16, 2015).

The Rhode Island Superior Court summarized these changes as

follows:

For state employees who were eligible to retire but

1The parties do not dispute the relevant facts, as outlined
in the district court's opinion and the various state court
decisions relating to this case.

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 had not yet retired as of July 1, 2012, RIRSA
changed the formula by which their retirement
allowance would be calculated. For correctional
officers, RIRSA also altered the rules governing
retirement eligibility and changed the formula for
their retirement allowance. For teachers who were
not eligible to retire as of July 1, 2012, RIRSA
increased the retirement age, changed the formula
for calculating the retirement allowance, and
changed the employee contribution rate. RIRSA also
made changes to the retirement benefits for
municipal employees who were members of the
Municipal Employees Retirement System (MERS), which
is also part of the ERSRI. For all members
receiving retirement benefits under the ERSRI,
including those employees who had already retired
as of June 30, 2012, RIRSA reduced the amount of
the annual COLA benefit, limited the COLA to apply
only to the first $25,000 of a member's retirement
benefit, and suspended the annual COLA making it
payable once every five years until the various
pension plans were at least 80% funded. In
addition, RIRSA changed the structure of the
retirement program from a traditional defined
benefit plan to a "hybrid plan" with a smaller
defined benefit plan and a supplemental defined
contribution plan. For active Police and
Firefighters, RIRSA made a number of other changes
including increasing the minimum service
requirement and adding a minimum retirement age of
55 years.

R.I. Pub. Emps. Retiree Coal. v. Raimondo (RIPERC II), No. PC 2015-

1468, 2015 WL 3648161, at *2 (R.I. Super. Ct. June 9, 2015); see

also Cranston Firefighters, 880 F.3d at 45-46 (outlining the

history of the Rhode Island pension system and summarizing RIRSA).

The upshot was a "severe diminution" in the anticipated retirement

benefits for affected public employees. Clifford v. Raimondo, 184

A.3d 673, 679 (R.I. 2018).

Litigation promptly ensued in state court. Unions,

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retiree associations, and individuals filed lawsuits alleging that

RIRSA violated the contract, takings, and due process clauses of

the Rhode Island Constitution. See RIPERC I, 2015 WL 1872189, at

*1 (cataloguing the numerous challenges to RIRSA). Appellants,

alongside some 150 other retired public employees, were plaintiffs

in one such case ("the Clifford action") filed in Rhode Island

Superior Court in 2014, which focused on RIRSA's cuts to retirees'

COLAs. Clifford v. Chafee, No. KC-2014-345 (R.I. Super. Ct. Jan.

14, 2015). The various pension cases, including the Clifford

action and previous suits challenging the 2009 and 2010 pension

reforms on identical constitutional grounds, were eventually

consolidated for trial.

After extensive discovery, and with the assistance of a

special master, most of the parties to the consolidated action

reached a proposed settlement agreement. 2 RIPERC I, 2015 WL

1872189, at *2. In April 2015, a class-action lawsuit was filed

for settlement purposes, in which the Superior Court certified the

following plaintiff class:

All persons (and/or their beneficiaries) who, on or
before July 1, 2015, are receiving benefits or are
participating in the State Employees, Teachers, or

2 A few parties, representing a group of active police
officers and the police and fire personnel of the City of Cranston,
did not agree to the proposal. Consequently, these parties -- who
had previously filed three pension lawsuits that were joined in
the consolidated action -- were not included in the subsequent
class-action lawsuit and settlement. See RIPERC I, 2015 WL
1872189, at *2.

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 Municipal Employees' retirement systems
administered by ERSRI and all future employees,
excepting only those individuals who on July 1,
2015, are participating in a municipal retirement
system administered by ERSRI for municipal police
officers in any municipality and/or for fire
personnel of the City of Cranston.

Id. at *10. The Superior Court also certified a plaintiff subclass

comprising "[a]ll retired members and beneficiaries who retired on

or before June 30, 2015, who are receiving a retirement benefit

under ERS [Teachers and State Employees Retirement System] or any

MERS unit," designating class representatives and appointing class

counsel for the same. Id. The plaintiffs in the Clifford action,

and appellants here, were all members of that retiree subclass.

Support for the proposed settlement was not unanimous among the

individual class members, and appellants here were among those who

opposed the proposal Nonetheless, because the court certified the

class under Rule 23(b)(2) of the Rhode Island Superior Court Rules

of Civil Procedure, objecting members were not permitted to opt

out of the class.3 Id.; cf. Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338, 362 (2011) (noting that Federal Rule of Civil Procedure

23(b)(2) likewise "provides no opportunity for . . . class members

3 In relevant part, Rule 23(b)(2) provides that a class action
may be maintained if, in addition to meeting the standard Rule
23(a) prerequisites of numerosity, commonality, typicality and
adequacy of representation, "[t]he party opposing the class has
acted or refused to act on grounds generally applicable to the
class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a
whole . . . ." R.I. Super Ct. R. Civ. P. 23(b)(2).

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to opt out"). In the same decision, the Superior Court

preliminarily approved the settlement as fair, adequate, and

reasonable. RIPERC I, 2015 WL 1872189, at *10.

The proposed settlement was conditioned upon the passage

of the 2015 Amendments, which would entitle pensioners and public

employees to certain greater benefits than provided under RIRSA.

The Superior Court summarized the relevant provisions of the 2015

Amendments:

• A one-time COLA payment of 2% applied to the
first $25,000 of the pension benefit and that
amount added to the base benefit will be paid to
retirees (or their beneficiaries) who
participate in a COLA program and who retired on
or before June 30, 2012 as soon as
administratively reasonable following the
passage of the legislation based on the amount
of benefit payable on the effective date of the
legislation.
• For funds that are not already funded, the
settlement shortens the time intervals between
suspended COLA payments from once every five
years to once every four years. The settlement
also improves the COLA limitation for current
retirees whose COLA is suspended. The settlement
also requires a more favorable indexing of COLA
Cap for all current and future retirees. The
settlement also changes the COLA calculation to
one more likely to produce a positive number and
dictates that the COLA formula will be calculated
annually, regardless of funding level, and when
paid, the COLA will be compounded for all
receiving a COLA.
• Current retirees (or their beneficiaries) who
have or will have retired on or before June 30,
2015 will receive two payments: (1) a one-time
$500.00 stipend (not added to the COLA base)
within sixty days of the enactment of the
legislation approving the terms of the
settlement and (2) a one-time $500 stipend

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 payable one year later.
• For State Workers, Teachers, and General MERS,
the settlement (1) adds another calculation to
reduce the minimum retirement age; (2) improves
the available accrual rate for employees with
twenty years or more of service as of June 30,
2012; (3) requires increased contributions by
the employer to the Defined Contribution Plan
for employees with ten or more years of service
(but less than twenty) as of June 30, 2012; (4)
waives the administration fee for any employees
participating in the Defined Contribution Plan
who make $35,000 or less; and (5) adds another
calculation designed to limit the impact of the
"anti-spiking" rule imposed by the RIRSA on part-
time employees.
• For MERS Firefighters (excluding Cranston
Firefighters), the settlement (1) lowers the age
and service requirements for retirement; (2)
increases the accrual rate for Firefighters who
retire at age fifty-seven with thirty years of
service.
• For State Correctional Officers, the settlement
increases the accrual rate for correctional
officers with fewer than twenty-five years of
service as of June 30, 2012.
• The settlement reduces the impact of an early
retirement.
• The settlement allows Municipalities to "re-
amortize"; that is, partially refinance, to be
able to pay for the increased cost of the
settlement.
• Otherwise, the terms of the RIRSA remain the
same.

Id. at *3-4. The settlement agreement also included covenants

wherein the parties agreed not to "directly or indirectly, propose,

support, encourage or advocate for any legislative action

concerning or relating to retirement benefits other than the

adoption of the [2015 Amendments]," nor to "directly or indirectly,

propose, support, encourage or advocate that any other person,

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firm or entity do anything or refrain from doing something that a

party to [the] Settlement Agreement would be prohibited from doing

or refraining from doing hereunder."

In May 2015, the Superior Court held a five-day fairness

hearing regarding the proposed settlement. The hearing was

vigorously contested. Approximately 400 class members provided

written objections to the settlement in advance of the hearing,

and 35 addressed the court at the hearing to articulate their

concerns. RIPERC II, 2015 WL 3648161, at *6, *12 n.16. In June

2015, the court approved the settlement as fair, reasonable, and

adequate, rejecting the objecting class members' contentions that

the settlement was procedurally or substantively deficient. Id.

at *31. Shortly thereafter, Rhode Island passed the 2015

Amendments, amending RIRSA in accordance with the settlement

agreement. See 2015 R.I. Pub. Laws ch. 141, § 21. The Superior

Court subsequently entered judgment on the class-action lawsuit,

determining:

This Judgment is final and shall be binding on all
parties and all class members in the above-
referenced class action case for settlement
purposes. Additionally, all class members are
forever and completely barred from ever asserting
any claims or causes of action that were alleged or
brought or that could have been alleged or brought
with respect to the various challenges to the Rhode
Island pension statutes made and asserted in the
above-captioned action and in each of the following
matters, C.A. Nos. 10-2859, 12-3166, 12-3167, 12-
3168, 12-3579, KC 14-0345 [i.e., the Clifford
action], as the Court has previously found,

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 determined and ruled that the terms and conditions
of the Settlement Agreement, as now implemented and
made effective by the Pension Legislation, are fair
and reasonable.

R.I. Pub. Emps. Retiree Coal. v. Raimondo (RIPERC III), No. PC

2015-1468, 2015 WL 4501873, at *1 (R.I. Super. Ct. July 8, 2015),

aff'd, Clifford, 184 A.3d at 695. Concurrently, the court

dismissed the Clifford action with prejudice. Clifford v.

Raimondo, No. KC 14-0345 (R.I. Super. Ct. July 8, 2015). A group

of class members (including all appellants here) appealed both

judgments, contesting the propriety of the class certification and

the procedural and substantive fairness of the settlement. In

2018, the Rhode Island Supreme Court affirmed the Superior Court's

decisions, finding that the trial justice "did not abuse her

discretion in certifying the class" and in "concluding that the

settlement was fair, reasonable, and adequate." Clifford, 184

A.3d at 690, 695.

Undeterred, appellants in 2020 sued the Governor of

Rhode Island, ERSRI, and the Chairperson of the Retirement Board

in federal court under 42 U.S.C. § 1983, alleging various

violations of the Federal Constitution in connection with the

changes to Rhode Island's retirement benefits scheme. In the first

four Counts of their Complaint, appellants -- purporting to

challenge the 2015 Amendments rather than RIRSA -- asserted that

the reduction of their pension benefits violated the Due Process

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Clauses of the Fifth and Fourteenth Amendments, the Contract Clause

of Article I, Section 10, and the Takings Clause of the Fifth

Amendment. 4 Appellants also alleged, in Count V, that the

covenants concerning advocacy for legislative action in the

settlement agreement abridged their right to petition in violation

of the First and Fourteenth Amendments. Defendants moved to

dismiss for failure to state a claim. The district court granted

the motion, holding that appellants' claims were barred, inter

alia, by res judicata, a lack of Article III standing, and the

Rooker-Feldman doctrine. Efreom v. McKee, No. 20-122, 2021 WL

1424974, at *4-11 (D.R.I. Apr. 15, 2021). Appellants timely

appealed.

II. Discussion

1. Standard of Review

"We review a dismissal for lack of subject matter

jurisdiction de novo, 'accepting the plaintiffs' well-pleaded

facts as true and indulging all reasonable inferences to their

behoof.'" Davison v. Gov't of P.R-P.R. Firefighters Corps, 471

4 As the district court noted, although appellants mistakenly
referenced Article V, Section 10 of the Constitution in support of
their Contract Clause claim, they "clearly intended to refer to
Article I, Section 10." Efreom v. McKee, No. 20-122, 2021 WL
1424974, at *3 n.6 (D.R.I. Apr. 15, 2021). Further, because
appellants' untitled Count IV "does not assert a separate cause of
action" but "instead provides additional arguments to support
Counts I, II, and III," we follow the district court in considering
this claim together with the Contract, Takings, and Due Process
Clause claims. Id. at *3.

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F.3d 220, 222 (1st Cir. 2006) (quoting McCloskey v. Mueller, 446

F.3d 262, 266 (1st Cir. 2006)).

2. Appellants' Due Process, Takings, and Contracts Clause Claims
Are Barred by the Rooker-Feldman Doctrine

Appellees contend, and the district court determined,

that appellants lack Article III standing with respect to Counts

I-IV. See Efreom, 2021 WL 1424974, at *8-9. As such, before we

consider any merits issues, we must begin by addressing the

"threshold matter" of whether we have federal subject-matter

jurisdiction over these claims. See Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 94-95 (1998). Because we conclude under

the Rooker-Feldman doctrine that we lack jurisdiction, our inquiry

with respect to Counts I-IV ends here.5

Under the Rooker-Feldman doctrine, we lack jurisdiction

to consider "cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court

5 "The Rooker-Feldman doctrine . . . implicates statutory,
not Article III, jurisdiction." Sinapi v. R.I. Bd. of Bar Exam'rs,
910 F.3d 544, 550 (1st Cir. 2018) (emphasis omitted). Because we
lack the former, we need not address the latter. See Lance v.
Coffman, 549 U.S. 437, 439 & n* (2007) (per curiam) (explaining
that federal courts may bypass Article III standing inquiry to
determine jurisdiction under Rooker-Feldman); Am. Petroleum Inst.
v. Env't Prot. Agency, 862 F.3d 50, 75 (D.C. Cir. 2017) ("[B]ecause
we dispose of [petitioners'] challenge by concluding that we are
without statutory jurisdiction, we have no reason to address [the]
contention that [petitioners] lack Article III standing."),
decision modified on reh'g, 883 F.3d 918 (D.C. Cir. 2018).

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review and rejection of those judgments." Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine

prevents losing litigants "from seeking what in substance would be

appellate review of the state judgment in a United States district

court, based on the losing party's claim that the state judgment

itself violates the loser's federal rights," as only the Supreme

Court has jurisdiction to review the decision of a state court in

civil litigation. Id. at 287 (quoting Johnson v. De Grandy, 512

U.S. 997, 1005–06 (1994)); see also 28 U.S.C. § 1257(a) (providing

that "[f]inal judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be reviewed by

the Supreme Court by writ of certiorari," rather than by inferior

courts).

It is just this type of impermissible appellate review

that appellants seek in federal court. Dissatisfied with the

outcome of the state-court litigation, appellants ask us to set

aside the Rhode Island state courts' approval of the RIPERC class-

action settlement, in an action commenced over two years after the

Rhode Island Supreme Court rendered its final decision on the

matter. It is undisputed that appellants (and defendants) were

all parties to the original Clifford action, the RIPERC class, and

the final appeal to the Rhode Island Supreme Court in Clifford v.

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Raimondo.6 As such, appellants are "state-court losers" seeking,

in effect, to review and reverse "state-court judgments rendered

before the district court proceedings commenced." Exxon Mobil

Corp., 544 U.S. at 284.

Appellants nonetheless attempt to escape the vise of

Rooker-Feldman by disputing, essentially, that their alleged

injuries were actually "caused by" the state-court judgments. Id.

To this end, appellants emphasize that they primarily contest the

constitutionality of the 2015 Amendments, whereas the earlier

state-court judgments concerned RIRSA. On this theory, passage of

the 2015 Amendments -- by dint of "creating a distinct new

law" -- worked a separate injury from that at issue in the state-

court litigation, and this should suffice to defeat the

Rooker-Feldman doctrine.

Even assuming arguendo that appellants' claims are

indeed based on the 2015 Amendments rather than RIRSA,7 appellants'

6In a different context, appellants assert that because they
were not in support of the RIPERC class settlement, their inclusion
in the class was improper, and thus that identicality of parties
between the instant case and the state-court litigation would not
be satisfied for res judicata purposes. This argument is a non-
sequitur: The mere fact that appellants disapproved of the
settlement, but were outnumbered by supportive class members, does
not render them nonparties to the RIPERC action or the subsequent
appeal to the Rhode Island Supreme Court. In any event, appellants
have not argued that they were not a "losing party" for purposes
of the Rooker–Feldman doctrine, Exxon Mobil Corp., 544 U.S. at
291, so any such contention has been waived. See Young v. Wells
Fargo Bank, N.A., 717 F.3d 224, 239-40 (1st Cir. 2013).
7 The district court rejected this characterization, finding

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attempts to evade the Rooker-Feldman doctrine fail. Passage of

the 2015 Amendments was a condition precedent for the settlement

agreement that resolved the state-court pension litigation.

Indeed, as the district court noted, "[t]he purportedly

unconstitutional sections [of the 2015 Amendments] identified in

the Complaint were contained verbatim in the settlement

agreement," Efreom, 2021 WL 1424974, at *10, and the propriety of

said settlement is the source of the alleged injury here.

Appellants' attempt to undo the state-court rulings approving the

settlement is precisely the sort of "end-run around a final state-

court judgment" that the Rooker-Feldman doctrine proscribes. 8

Klimowicz v. Deutsche Bank Nat'l Tr. Co., 907 F.3d 61, 66 (1st

that RIRSA was the true basis for appellants' claims. See Efreom,
2021 WL 1424974, at *6-7. Nonetheless, the district court held,
as we do, that the Rooker-Feldman doctrine would bar the suit
"[e]ven if Counts I to IV were based on the 2015 [Amendments]."
Id. at *10-11.
Appellants do not contest that a settlement agreement can
8

be a "final judgment" for purposes of the Rooker-Feldman doctrine.
We thus assume, without deciding, that the settlement agreement at
issue here was a final judgment under Rooker-Feldman. See
Crestview Vill. Apartments v. U.S. Dep't of Hous. & Dev., 383 F.3d
552, 556 (7th Cir. 2004) ("For Rooker-Feldman purposes, a 'state
court approved settlement agreement is a judgment or
decision . . . .'" (quoting 4901 Corp. v. Town of Cicero, 220 F.3d
522, 528 n.5 (7th Cir. 2000))); Reyes v. Fairfield Props., 661 F.
Supp. 2d 249, 273 (E.D.N.Y. 2009) (holding that settlement
agreements "constitute a state court judgment for purposes of
Rooker–Feldman"); cf. Reppert v. Marvin Lumber & Cedar Co., 359
F.3d 53, 56 (1st Cir. 2004) (noting that, in the context of res
judicata and release, "it is beyond cavil that a suit can be barred
by the earlier settlement of another suit" (quoting Nottingham
Partners v. Trans-Lux Corp., 925 F.2d 29, 31-32 (1st Cir. 1991))).

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Cir. 2018). Appellants' attempted reliance on cases such as

Skinner v. Switzer, 562 U.S. 521 (2011) and Whole Woman's Health

v. Hellerstedt, 579 U.S. 582 (2016), abrogated on other grounds by

Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022), is

thus misplaced, as the instant suit does not present an

"independent claim" from the state-court litigation. Skinner, 562

U.S. at 532 (quoting Exxon Mobil Corp., 544 U.S. at 293).9

That the instant claims are grounded in the Federal

Constitution, rather than the Rhode Island Constitution, does not

Skinner held that "a state-court decision is not reviewable
9

by lower federal courts, but a statute or rule governing the
decision may be challenged in a federal action." 562 U.S. at 532.
Here, however, in challenging the settlement approved by the Rhode
Island state court, appellants do not contest any rule or law
governing the state-court decisions, but "challenge the adverse
[state-court] decisions themselves." Id. This, per Skinner, is
exactly what the Rooker-Feldman doctrine bars. Id.
Whole Woman's Health, which did not involve the
Rooker-Feldman doctrine, is even less on point. In Whole Woman's
Health, the Supreme Court found that res judicata did not bar an
as-applied, postenforcement challenge to a Texas law imposing an
onerous admitting-privileges requirement on abortion providers,
where the factual landscape changed dramatically after the
litigants brought a preenforcement challenge to the law. 579 U.S.
at 601. There are no such "changed circumstances" or "new material
facts" here that generate a new constitutional claim. Id. at 599,
601. While appellants express general displeasure with Rhode
Island's implementation of the pension reforms, and hypothesize
that the state may attempt to shirk its pension obligations in the
future, appellants have not articulated a specific, cognizable
claim that Rhode Island's postenactment behavior vis-à-vis the
2015 Amendments violates the Constitution. Any argument to this
effect has thus been waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").

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provide any succor for appellants. "[A] plaintiff cannot escape

the Rooker–Feldman bar through the simple expedient of introducing

a new legal theory in the federal forum that was not broached in

the state courts." Id. Indeed, our precedents make clear that

litigants cannot "avoid the impact of the Rooker–Feldman doctrine

simply by recasting [their] claims in federal court as arising

under the United States Constitution, where adjudicating these

claims would 'necessarily require reviewing the merits of the

[state court's] decision.'" Sinapi, 910 F.3d at 549 (quoting

McKenna v. Curtin, 869 F.3d 44, 48 (1st Cir. 2017)); see also

Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 33 (1st Cir. 2004)

("Rooker–Feldman does not depend on what issues were actually

litigated in the state court; and it is enough that granting

[litigants the relief they] seek[] would effectively overturn the

state court's decision.").10

Appellants also claim that Rooker–Feldman should not

apply because their due process rights were violated by the Rhode

10We note, in any event, that appellants' federal claims
largely echo their previous attacks on the propriety of the
settlement in state court. Indeed, the fairness, adequacy, and
reasonableness of the settlement agreement (including the proposed
legislation that became the 2015 Amendments) were energetically
contested at the fairness hearing, approved by the Superior Court,
and affirmed by the Rhode Island Supreme Court. See RIPERC II,
2015 WL 3648161, at *31; Clifford, 184 A.3d at 695. The fact that
the issues appellants now raise in federal court were, in
substantial measure, raised and rejected in state court accords
with our independent conclusion that these claims are grounded in
an injury attributable to the state-court judgments.

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Island courts' decision to certify the RIPERC class under Rule

23(b)(2) of the Rhode Island Superior Court Rules of Civil

Procedure, which does not afford class members any opt-out rights.

In support of their argument, appellants allege that they were

treated differently from another group of pension litigants

opposed to the settlement agreement -- i.e., the active police

officers and fire personnel of the City of Cranston (the "Cranston

litigants") -- who were not included in the certified class and

thus able to litigate separately. See Cranston Firefighters, 880

F.3d at 47 (noting that while the Cranston litigants "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"). Asserting that the

"[s]tate [c]ourts did not take up the issue of the[ir] disapproval"

of the settlement or consider their "repeated[] request[s]" to opt

out of the class, in light of the Cranston litigants' exclusion

therefrom, appellants posit that they were denied due process.

This alleged due process violation, appellants suggest, generates

an exception to the Rooker–Feldman jurisdictional bar.11

11 The existence of an exception wherever there is a claim of
a due process violation is dubious. See, e.g., Abbott v. Michigan,
474 F.3d 324, 330 (6th Cir. 2007) (concluding that "the Supreme
Court's recent decisions do not support the plaintiffs' asserted
'reasonable opportunity' exception to the Rooker–Feldman
doctrine"); Postma v. First Fed. Sav. & Loan of Sioux City, 74
F.3d 160, 162 n.3 (8th Cir. 1996) ("[T]here is no procedural due
process exception to the Rooker–Feldman doctrine."). For a survey

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 Appellants' due process claim, however, does not clear

Rooker–Feldman's hurdle. The propriety of the class certification

under Rule 23(b)(2) -- and appellants' assertion that they ought

to have been afforded an "opt out" right -- were in fact

extensively litigated in state court. See RIPERC I, 2015 WL

1872189, at *7-8 (determining that the proposed class met the

criteria for certification under Rule 23(b)(2) of the Rhode Island

Superior Court Rules of Civil Procedure); RIPERC II, 2015 WL

3648161, at *13-14, *24 (noting certain class members' "desire to

'opt out' of the current settlement" but determining that "due

process does not require that the Objectors be given the

opportunity to 'opt out' of a Rule 23(b)(2) class action

settlement"); Clifford, 184 A.3d at 685-90 (discussing class

certification and certain litigants' asserted opt-out rights, but

concluding that "trial justice's inclusion of the Retiree

plaintiffs in the retiree subclass was proper" and that "the trial

justice did not abuse her discretion in certifying the class

pursuant" to Rule 23(b)(2)). Thus, in no way were appellants

of the jurisprudential thicket surrounding this issue, see
generally 18B Wright, Miller & Cooper, Federal Practice and
Procedure § 4469.3, at 163-70 (3d ed. 2019) (stating that "[s]tate-
court disregard of due process rights creates genuine trouble for
the Rooker–Feldman jurisdiction theory," but noting that much
caselaw "suggest[s] that federal jurisdiction is defeated [even]
by a state judgment entered after proceedings that did not afford
a full-and-fair opportunity to litigate, and indeed did not satisfy
due process requirements").

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denied the opportunity to be "actually heard on their claims."

Accordingly, even if we were to agree that federal jurisdiction

might be available in certain instances where a party was denied

a full-and-fair opportunity to litigate its claims, no such

exception to the Rooker-Feldman doctrine is applicable here. See

Mandel v. Town of Orleans, 326 F.3d 267, 272 & n.4 (1st Cir. 2003)

(denying jurisdiction under Rooker-Feldman to federal due process

challenge to state child custody enforcement proceedings when

challenger "was formally a party to the enforcement proceeding and

was free to ask the state court to undo or revisit its enforcement

order on constitutional or other grounds").

"The Rooker–Feldman doctrine bars parties who lost in

state court from 'seeking review and rejection of that judgment'

in federal court." Puerto Ricans for P.R. Party v. Dalmau, 544

F.3d 58, 68 (1st Cir. 2008) (quoting Exxon Mobil Corp., 544 U.S.

at 291). In attempting to effectively overturn the decisions of

the Rhode Island state courts approving the RIPERC class-action

settlement, Appellants in Counts I-IV run afoul of this stricture.

Because under Rooker–Feldman "[o]nly the Supreme Court of the

United States may invalidate state court civil judgments," see

Miller v. Nichols, 586 F.3d 53, 59 (1st Cir. 2009), we lack

jurisdiction over these claims.

3. Appellants' First Amendment Claims Are Nonjusticiable

Appellants lastly challenge the provisions of the

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settlement agreement that prohibited them from lobbying, directly

or indirectly, for pension benefits other than as provided in the

draft legislation that became the 2015 Amendments. By imposing

such a restriction, appellants argue, these provisions created a

"chilling effect" that violated their First Amendment rights to

free speech and to petition the government for a redress of

grievances. Accordingly, in their prayer for relief, appellants

ask that these provisions of the settlement agreement be declared

unconstitutional.

Before we can consider the merits of this argument,

however, we must again assess whether we have jurisdiction, or if

appellants instead lack standing to raise this claim. The

"[s]tanding doctrine assures respect for the Constitution's

limitation of '[t]he judicial Power' to 'Cases' and

'Controversies.'" Hochendoner v. Genzyme Corp., 823 F.3d 724, 731

(1st Cir. 2016) (alteration in original) (quoting U.S. Const. art.

III, § 2, cl. 1). In assessing whether litigants have

constitutional standing, we look to the "familiar amalgam of injury

in fact, causation, and redressability," which injury "must be

both 'concrete and particularized and actual or imminent, not

conjectural or hypothetical.'" Id. (quoting Van Wagner Bos., LLC

v. Davey, 770 F.3d 33, 37 (1st Cir. 2014)). Redressability

concerns the "likelihood that the requested relief will redress

the alleged injury." Steel Co., 523 U.S. at 103. "To determine

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whether an injury is redressable, a court will consider the

relationship between 'the judicial relief requested' and the

'injury' suffered." California v. Texas, 141 S. Ct. 2104, 2115

(2021) (quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)).

Per the terms of the settlement agreement, the covenant

providing that the parties "will not, directly or indirectly,

propose, support, encourage or advocate for any legislative action

concerning or relating to retirement benefits other than the

adoption of the [2015 Amendments]" expired upon "final approval of

the settlement and enactment of the [2015 Amendments] and entry of

judgment." All of these conditions were met in 2015, meaning that

any chilling effect of this covenant ceased years before the

instant litigation commenced.12 As such, at the time appellants'

federal complaint was filed, appellants were free to petition the

government as they wished regarding their retirement benefits.

Appellants thus allege only a past injury in relation to their

First Amendment claim. Their complaint does not seek any damages

for that claim, cf. Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796

12The agreement also restricted the ability of the parties
to "directly or indirectly, propose, support, encourage and/or
advocate that any other person, firm or entity do anything or
refrain from doing something that a party to this Settlement
Agreement would be prohibited from doing or refraining from doing
hereunder," and provided that this covenant is "unlimited as to
time." However, because the restrictions on appellants' pension
advocacy lapsed upon the satisfaction of the conditions laid out
above, any chilling effect from this covenant similarly thawed in
2015.

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(2021) (holding that "an award of nominal damages by itself can

redress a past injury"), and it is plain that plaintiffs lack

standing to seek declaratory relief with respect to a past injury

when such relief cannot redress the injury. See Berner v.

Delahanty, 129 F.3d 20, 24 (1st Cir. 1997) (explaining that "a

party seek[ing] exclusively injunctive or declaratory relief" has

standing only upon showing "'a sufficient likelihood that he will

again be wronged in a similar way'" (quoting City of Los Angeles

v. Lyons, 461 U.S. 95, 111 (1983))); Am. Postal Workers Union v.

Frank, 968 F.2d 1373, 1376-77 (1st Cir. 1992) (holding that

plaintiffs lacked standing to seek declaratory or injunctive

relief that would "provide no relief for an injury that is, and

likely will remain, entirely in the past"; Lyons, 461 U.S. at 109-

10 (past injury, absent a reasonable likelihood of future

repetition, provided apparent standing to pursue damages but no

standing to seek injunctive relief); California, 141 S. Ct. at

2114-15 (challenge to an unenforceable statutory provision failed

because there was no present or anticipated injury resulting from

the provision's enforcement, and neither injunctive nor

declaratory relief could provide redress in such circumstances).

Because appellants have not alleged any ongoing or

potential injury from the now-inoperative covenants at issue, and

have not sought relief that could redress their alleged past

injury, their First Amendment claim lacks the "elements of a

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justiciable controversy." Steel Co., 523 U.S. at 95. "To find

standing here to attack an unenforceable . . . provision would

allow a federal court to issue what would amount to 'an advisory

opinion without the possibility of any judicial relief.'"

California, 141 S. Ct. at 2116 (quoting Lyons, 461 U.S. at 129

(Marshall, J., dissenting)). Under Article III, we lack such

authority. Id.; see also Mangual v. Rotger-Sabat, 317 F.3d 45, 60

(1st Cir. 2003) ("If events have transpired to render a court

opinion merely advisory, Article III considerations require

dismissal of the case."); N.E. Reg'l Council of Carpenters v.

Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (noting that "it would be

pointless . . . to declare [the] constitutional status" of a

restriction "that is no longer in effect").13 As such, we dismiss

appellants' First Amendment claim for lack of standing.

III. Conclusion

The judgment of the district court is affirmed.

13Because we lack Article III jurisdiction over the First
Amendment claim, we need not address the district court's
conclusion that the claim was also barred by the Rooker–Feldman
doctrine. See Efreom, 2021 WL 1424974, at *11.

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