Picard v. Members of Employee Retirement Board of Providence

United States Court of Appeals
For the First Circuit
Nos. 00-2367
00-2580

LIONEL PICARD, ET AL.,

Plaintiffs, Appellants,

v.

MEMBERS OF THE EMPLOYEE RETIREMENT BOARD OF PROVIDENCE,
MEMBERS OF THE CITY COUNCIL FOR THE CITY OF PROVIDENCE,
VINCENT A. CIANCI, JR., IN HIS CAPACITY AS MAYOR
OF THE CITY OF PROVIDENCE, STEPHEN T. NAPOLITANO,
IN HIS CAPACITY AS TREASURER OF THE CITY OF
PROVIDENCE AND THE CITY OF PROVIDENCE,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.

Scott P. Tierney, with whom Amato A. DeLuca, Miriam Weizenbaum,
and DeLuca & Weizenbaum, LTD. were on brief, for appellants.
Kevin F. McHugh, Assistant City Solicitor, Department of Law, for
appellees.
December 28, 2001

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 TORRUELLA, Circuit Judge. This civil rights action

represents another chapter in a pitched battle over the pension

benefits due to retired municipal employees of the City of Providence.

The district court below disposed of several of plaintiffs' claims at

summary judgment and, later, dismissed the remaining claims on

jurisdictional grounds. Plaintiffs seek reversal of the district

court's order dismissing their claims under the Contract Clause,

Takings Clause, and Due Process Clause of the United States

Constitution. We affirm the district court's judgment in toto.

I.

Although we ultimately resolve this appeal on straightforward

grounds, the attendant facts and procedural history are somewhat more

involved. We recite only the undisputed facts, unless otherwise noted.

A.

Plaintiffs are all former members of the police and fire

departments of the City of Providence who retired after January 1994.

Defendants include the City of Providence (City), members of the

Providence City Council (City Council), the mayor of the City of

Providence, and members of the City of Providence Employee Retirement

Board (Retirement Board).

At a meeting held on December 6, 1989, the Retirement Board

voted to approve a variety of retirement benefits for both Class A and

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Class B City employees,1 including a generous increase in the cost of

living adjustment (COLA) for pension benefits. Following the

Retirement Board's vote, however, the City chafed at the prospect of

honoring the terms of the newly enacted retirement plan. The City

hired outside counsel to challenge the validity of the Retirement

Board's action in state court. In its complaint, the City challenged

the Retirement Board's COLA and pension award action as ultra vires.

The case reached a bench trial before the Rhode Island Superior Court.

Upon completion of that trial, the trial judge entered a written

decision in which he determined that the Retirement Board's December 6,

1989, vote establishing the pension and COLA modifications was a valid

and binding exercise of its authority. Counsel to the case were

ordered to prepare and submit an appropriate judgment for entry by the

trial court.

Instead of preparing that judgment, counsel informed the

trial court that they were attempting to negotiate a final settlement

of the case, ostensibly to avoid further proceedings and bring finality

to the ongoing pension controversy. By December 17, 1991, an agreed

case settlement had been negotiated under which the beneficiaries to

the settlement would receive a 6% compounded COLA increase. The terms

of the proposed settlement were adopted formally by vote of the

1 As defined by City Ordinance § 17-181, Class B employees include
"members of the fire department and police department of the City of
Providence."

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Retirement Board at a December 18, 1991, meeting, and the settlement

was thereafter presented to the trial court for approval and entry as

a consent decree.

The City complied with the terms of the consent decree for

a period of roughly two years. Then, in 1993, the City again balked at

funding COLA benefits for retirees. On January 6, 1994, the City

Council passed Ordinance 1994-1, which terminated the 6% compounded

COLA increase for retired police and firefighters. On the same day,

the City Council also passed Ordinance 1994-2, which established a new

scheme of retiree benefits, but did not include the 6% compounded COLA

increase. The City's deviation from the terms of the consent decree

triggered a contempt proceeding in state court.

Meanwhile, the City Council and City filed a separate action

in state court in pursuit of a declaration that the consent decree was

invalid. The City Council and City argued that the decree had not been

entered with the permission or ratification of the City Council,

thereby rendering the decree unenforceable. The trial judge was asked

not only to determine the validity of the consent decree, but also to

resolve lingering doubts concerning the actual scope of the consent

decree. Numerous City employees who retired after December 18, 1991,

claimed entitlement to the 6% compounded COLA increase;2 the City

2 This group included a class of former police and firefighters which,
in turn, included plaintiffs. They were represented in the state-court
litigation and on appeal by their counsel in the present case.

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responded by arguing that the consent decree, even if valid, did not

apply to later retirees.

After a labyrinthine tour of the state court system, which

included an appeal to the Rhode Island Supreme Court and subsequent

remand, the various consent decree litigations were ultimately

consolidated into a single appeal before the Rhode Island Supreme

Court. In City of Providence v. Employee Retirement Board, 749 A.2d

1088 (R.I. 2000), the court held that the consent decree was valid and

binding upon the City. Id. at 1095. The court further held that the

decree covered only those employees who had retired on or before

December 18, 1991. Id. at 1099. Consequently, the court rejected the

employees' argument that any subsequent changes to COLA benefits would

effect an unconstitutional impairment of contract rights as applied to

those retiring after December 18, 1991. Id. at 1099-1100.

B.

Between 1991 and 1995, during the pendency of the ongoing

consent decree controversies, the City and plaintiffs (acting through

their collective bargaining representatives) negotiated and agreed to

a series of collective bargaining agreements (CBAs) that provided for

a 5% compounded COLA increase. Although § 17-27 of the Providence Code

of Ordinances requires that the City Council ratify all CBAs between

the City and a labor organization, it is undisputed that the City

Council never ratified the CBAs in question.

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 Then, beginning in 1995, the City Council passed a handful

of municipal ordinances, each of which placed the amount of plaintiffs'

COLA benefits below the levels established under the CBAs: Chapter

1995-17 established a 3% non-compounded COLA increase; Chapter 1996-4

provided a 3% non-compounded increase up to the first $10,000 of the

retirement allowance; and Chapter 1998-22 provided a 3% non-compounded

increase up to the first $1,000 of the retirement allowance.

C.

In 1998, plaintiffs commenced the present suit in federal

court alleging numerous constitutional claims pursuant to 42 U.S.C. §

1983. The amended complaint asserted that, by adopting an ordinance

that terminated the COLA provisions of the consent decree, defendants

deprived plaintiffs of property in violation of the Due Process Clause

(Count 1). By adopting various city ordinances that are at odds with

provisions of the collective bargaining agreements, defendants were

also alleged to have violated: the Due Process Clause (Count 2); the

due process component of the Rhode Island Constitution (Count 3); the

Contract Clause and a cognate provision of the Rhode Island

Constitution (Count 6); and the Takings Clause (Count 7). Lastly, the

complaint contained a claim for violation of the Equal Protection

Clause (Count 4) and a broad-brush due process claim (Count 5).

In November 1998, both parties moved for summary judgment on

all counts of the complaint. In September 1999, the district court

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below entered a written order allowing partial judgment in favor of

defendants. At the outset, the district court noted that plaintiffs'

claims essentially comprised an attack on two fronts:

First, they challenge defendants' efforts to
reduce the amount of COLAs to which plaintiffs
claim they are entitled under the consent decree.
Next, they challenge defendants' efforts to
provide COLAs that are less than those called for
under the terms of the collective bargaining
agreements (which . . . were never formally
ratified by the City Council).

Picard v. City of Providence, Nos. 98-40-L & 98-95-M, slip op. at 7

(D.R.I. Sept. 29, 1999). The district court then abstained from ruling

on the merits of the claims arising from the consent decree because

neither party had addressed a lurking jurisdictional issue under the

Rooker-Feldman doctrine.3 In particular, the court noted that its

jurisdiction to entertain those claims was questionable in light of a

state superior court ruling that held that the consent decree applied

only to those who had retired on or before December 18, 1991. Id. at

7-8 (referring to Mansolillo v. Employee Ret. Bd., No. 93-5266, 1998 WL

799129 (R.I. Super. Ct. Nov. 12, 1998)).4

3 As explained more fully below, the Rooker-Feldman doctrine provides
that federal courts, other than the Supreme Court, lack jurisdiction to
directly review the decisions of state courts.
4 The state court's holding in Mansolillo was later affirmed by the
Rhode Island Supreme Court in City of Providence v. Employee Retirement
Board, 749 A.2d 1088 (R.I. 2000).

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 The district court did not, however, feel similarly

constrained in ruling on plaintiffs' second means of attack. The court

entered summary judgment against plaintiffs on their claims based on

the CBAs. The district court reasoned that the failure of the City

Council to ratify the CBAs pursuant to § 17-27 of the Providence Code

of Ordinances rendered those agreements void and thereby foreclosed the

possibility of finding any enforceable contract rights protected by the

Constitution. Id. at 11-12 (citing Providence City Council v. Cianci,

650 A.2d 499, 501 (R.I. 1994)). Accordingly, the district court

granted summary judgment as to Counts 2, 3, 6, and 7 and denied summary

judgment as to the remaining claims.

Later, defendants filed a motion to dismiss the remaining

consent decree claims based on lack of standing, lack of subject matter

jurisdiction, res judicata, and collateral estoppel. Plaintiffs filed

no opposition to the motion; nor did plaintiffs' counsel attend a

status conference held in the case. On September 19, 2000, the

district court granted the motion to dismiss for the reasons presented

in defendants' memorandum and for plaintiffs' failure to prosecute the

claim. Subsequently, plaintiffs filed a motion for reconsideration

explaining counsel's absence from the status conference, but offering

no legal argument on the merits of the motion to dismiss. In response

to plaintiffs' motion, the district court withdrew its statement that

plaintiffs had failed to prosecute the claim and stated that its

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dismissal rested solely on the substantive grounds set forth in

defendants' motion to dismiss. Thereafter, plaintiffs filed their

notice of appeal.

II.

A.

The district court's September 19, 2000, order disposed of

the plaintiffs' claims on the basis of defendants' motion to dismiss

for want of subject-matter jurisdiction. Cf. Valentín v. Hosp. Bella

Vista, 254 F.3d 358, 362 (1st Cir. 2001) ("The proper vehicle for

challenging a court's subject-matter jurisdiction is Federal Rule of

Civil Procedure 12(b)(1)."). The facts relevant to the district

court's decision are essentially undisputed. We therefore exercise de

novo review. See id. at 365 ("Because the facts are not in issue, the

court's determination engenders de novo review.").

B.

The nub of plaintiffs' first argument on appeal is that the

district court erred in dismissing Counts 2, 3, 6, and 7 of the

complaint by overlooking plaintiffs' contention that the City entered

an implied-in-fact contract to provide the 5% compounded COLA increase

in conformity with the unratified CBAs. Plaintiffs assert that this

implied-in-fact contract was consummated when the City accepted the

benefits of plaintiffs' work and allowed them to continue contributing

a portion of their salaries toward the pension fund. Cf. Marshall

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Contractors, Inc. v. Brown Univ., 692 A.2d 665, 669 (R.I. 1997) ("[An

implied-in-fact contract] is a form of express contract wherein the

elements of the contract are found in and determined from the relations

of, and the communications between the parties, rather than from a

single clearly expressed written document."). According to this

theory, the enactment of subsequent ordinances restricting the COLA

increase impaired these vested contractual rights in violation of

numerous provisions of the United States Constitution. Plaintiffs

therefore seek reversal of the September 2000 order. Defendants, on

the other hand, contend that state law clearly establishes that

plaintiffs have no constitutionally protected property or contract

right in the unratified CBAs.5

In evaluating whether a purported contract or property right

is entitled to constitutional protection under the Takings Clause,

Contract Clause, or Due Process Clause, this Court generally looks to

state law as interpreted by the state's highest court. See Phillips v.

Wash. Legal Found., 524 U.S. 156, 167 (1998) ("[A] State may not

5 Defendants also rejoin with the argument that plaintiffs have
forfeited any claim based on the CBAs by failing to designate in their
notice of appeal the district court's September 1999 order granting
summary judgment on those claims. We find, however, that the notice of
appeal sufficiently apprised this Court and the defendants that
plaintiffs were appealing the final judgment of the district court.
"[I]t has been uniformly held that a notice of appeal that designates
the final judgment encompasses not only that judgment, but also all
earlier interlocutory orders that merge in the judgment." John's
Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 104 (1st
Cir. 1998).

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sidestep the Takings Clause by disavowing traditional property

interests long recognized under state law.") (emphasis added); Gen.

Motors Corp. v. Romein, 503 U.S. 181, 187 (1992) (holding that for

purposes of the Contract Clause, although the question whether a

contract was made is a federal question, a court must "accord

respectful consideration and great weight to the views of the State's

highest court") (citations and quotations omitted); Bishop v. Wood, 426

U.S. 341, 344-45 (1976) (deciding whether North Carolina had created a

property interest cognizable under the Due Process Clause by reference

to state law as interpreted by the North Carolina Supreme Court).

Plaintiffs assert that a series of CBAs negotiated but never ratified

by the City Council created a vested right in the higher COLA benefit.

Yet, the Supreme Court of Rhode Island has repeatedly held that a CBA

that is not ratified by the City Council is void and unenforceable.

See Providence Teachers Union v. Providence Sch. Bd., 689 A.2d 388, 391

(R.I. 1997); Providence Teachers Union v. Providence Sch. Bd., 689 A.2d

384, 385-86 (R.I. 1996); Providence City Council, 650 A.2d at 501; cf.

5 Eugene McQuillan, Law of Municipal Corporations § 15.03, at 68 (3d

ed. rev. 1996) ("[W]here the charter provides that a particular power

shall be exercised by ordinance, its exercise in any other manner, as

by contract or resolution, would not be legal.") (footnote omitted).

Given this clear precedent from the state's highest court, we find no

basis for concluding that plaintiffs were deprived of a property or

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contract right in violation of the Constitution. Therefore, the

district court was correct in dismissing these claims.

C.

With respect to the claims based solely on the consent

decree, Counts 1, 4, and 5, plaintiffs have offered no argument or

authority -- either in their brief or at oral argument -- that supports

reversal. That fact alone would justify affirmance under our long-

standing precedent. See Acevedo López v. Police Dep't of P.R., 247

F.3d 26, 29 (1st Cir. 2001) (holding that court will not consider

claims for which arguments are not presented in the party's brief or at

oral argument); see also United States v. Bongiorno, 106 F.3d 1027,

1034 (1st Cir. 1997) ("We have steadfastly deemed waived issues raised

on appeal in a perfunctory manner, not accompanied by developed

argumentation.").

Moreover, even if the plaintiffs had mounted an adequate

challenge to the district court's order of dismissal, their arguments

would be doomed in any event. Their claim is foreclosed by a textbook

application of the Rooker-Feldman doctrine. See Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 460 U.S.

462 (1983). In describing the contours of this jurisdictional

doctrine, we have stated:

The Rooker-Feldman doctrine prohibits federal
district and circuit courts from reviewing state
court judgments. Where a party did not actually

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 present its federal claims in state court,
Rooker-Feldman forecloses lower federal court
jurisdiction over claims that are "inextricably
intertwined" with the claims adjudicated in a
state court. See Feldman, 460 U.S. at 483 n.16.
A federal claim is inextricably intertwined with
the state-court claims "if the federal claim
succeeds only to the extent that the state court
wrongly decided the issues before it." See Hill
v. Town of Conway, 193 F.3d 33, 39 (1st Cir.
1999).

Sheehan v. Marr, 207 F.3d 35, 39-40 (1st Cir. 2000) (footnote omitted).

In the present case, the gravamen of plaintiffs' claim based

on the consent decree is that the terms of the decree extended to

police and firefighters retiring after January 1995 and entitled them

to the 6% compounded COLA increase provided therein. This issue was

squarely addressed when these parties were before the Rhode Island

Supreme Court in City of Providence v. Employee Retirement Board, 749

A.2d 1088 (R.I. 2000). In that decision, the court held that:

[T]he group of city employees who retired prior
to December 18, 1991, and the nineteen city
employees who retired effective December 18,
1991, were the only city retirees that could
benefit from [the consent decree's] pension grant
provisions, and all members of that group
continue to remain entitled to those benefits.

Id. at 1100 (emphasis added).

Any attempt to make out a constitutional violation under the

Due Process Clause, Contract Clause, or Takings Clause would require

plaintiffs to establish -- at a minimum -- some property or contract

right stemming from the consent decree. Thus, it is plain that

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plaintiffs' claims could only succeed to the extent the Rhode Island

Supreme Court wrongly decided the question of the consent decree's

coverage. We therefore must decline jurisdiction, as plaintiffs'

claims represent an improper attempt to seek federal review of a final

state court judgment.

III.

For the foregoing reasons, the judgment of the district court

is affirmed. Costs are assessed against plaintiffs. Fed. R. App. P.

39(a)(2).

Affirmed.

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