Lydon v. Malme
Opinion
USCA1 Opinion
September 26, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1223
KELLY K. LYDON,
Plaintiff, Appellant,
v.
JANE H. MALME, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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____________________
Before
Torruella, Chief Judge,
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Selya and Cyr,
Circuit Judges.
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Kelly K. Lydon on brief pro se.
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Scott Harshbarger, Attorney General, and Phyllis N. Crockett,
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Assistant Attorney General, on brief for appellees.
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Per Curiam. The judgment of the district court is
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affirmed essentially for the reasons stated in the district
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court's January 28, 1994 memorandum and order.
We add that plaintiff-appellant Kelly Lydon raises
an argument on appeal that the district court did not mention
in its opinion. Lydon argues that he was accorded a
constitutionally protected property interest in his job under
state law pursuant to Article 22 of a collective bargaining
agreement with the state. Article 22 states, in pertinent
part, "No employee who has been employed in the bargaining
unit described in Article 1 of this Agreement for six (6)
consecutive months or more shall be discharged, suspended, or
demoted for disciplinary reasons without just cause."
Defendants-appellees Jane Malme, et al., concede that Lydon
was covered under this agreement.
Lydon, however, did not raise this argument in the
district court as a basis for his claim that he had a
constitutionally protected property interest in his job.
Consequently, he has waived the argument on appeal. See
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Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 355 (1st Cir.
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1994); United States v. Slade, 980 F.2d 27, 31 (1st Cir.
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1992). Lydon's status as a pro se litigant did not relieve
him of the obligation to apprise the district court of all
points he wished to raise in favor of his position. See,
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e.g., Eagle Eye Fishing Corp. v. United States Dep't of
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Commerce, 20 F.3d 503, 506 (1st Cir. 1994); Jaroma v. Massey,
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873 F.2d 17, 22 (1st Cir. 1989).
It is true that we do have discretion, in an
exceptional case, to reach issues that were not raised below.
We have found that the exercise of that discretion may be
appropriate where all (or most of) the following factors are
present: (1) where the new issue is purely legal, so that
there is no need for further development of the record in the
district court; (2) where there is little doubt of the proper
resolution of the issue; (3) where the issue is almost
certain to be presented in identical terms in other cases;
and, above all, (4) where failure to reach the issue would
result in a miscarriage of justice. United States v. La
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Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990); United States
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v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
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Lydon's new issue does not sufficiently satisfy
these criteria. For one thing, further development of the
record might well aid in the determination of this issue.
The record does not even contain a copy of the collective
bargaining agreement that is alleged to be applicable; all
that we have is what purports to be a copy of the single page
of the agreement that contains Article 22. Malme asserts in
her brief that Article 22 did not apply to Lydon's discharge
because he was discharged not for disciplinary reasons, but
for abandoning his position, which Malme says is covered by
-3-
another section of the agreement. That other section is not
in the record. The parties, too, might have introduced
evidence concerning the manner in which Article 22 and any
other relevant provisions of the agreement have been
interpreted in practice.
Second, we cannot say with certitude what the
proper resolution of this issue may be. Although it is true
that other circuits have ruled that a just cause provision in
a collective bargaining agreement entered into by the state
can create a property interest in state employment, see,
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e.g., Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d
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Related
United Mine Workers of America v. Gibbs
383 U.S. 715 (Supreme Court, 1966)
Ondine Shipping Corp. v. Cataldo
24 F.3d 353 (First Circuit, 1994)
United States v. Judith Ann Krynicki
689 F.2d 289 (First Circuit, 1982)
Darrell Bennett v. City of Boston
869 F.2d 19 (First Circuit, 1989)
Alexander Jaroma v. James J. Massey, Etc.
873 F.2d 17 (First Circuit, 1989)
United States v. Julio La Guardia, United States of America v. Eredia Josefa Jimenez-Minalla
902 F.2d 1010 (First Circuit, 1990)
United States v. Frances Slade
980 F.2d 27 (First Circuit, 1992)
Eagle Eye Fishing Corporation v. United States Department of Commerce
20 F.3d 503 (First Circuit, 1994)
Moffitt v. Town of Brookfield
950 F.2d 880 (Second Circuit, 1991)