United States Court of Appeals

For the First Circuit

No. 03-1913

RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS,

Plaintiff, Appellant,

v.

STATE OF RHODE ISLAND; LINCOLN ALMOND, in his capacity

as Chief Executive Officer of the State of Rhode Island; 

ROBERT L. CARL, JR., in his capacity as Director of the 

Department of Administration of the State of Rhode Island;

PAUL J. TAVARES, in his capacity as General Treasurer of

the State of Rhode Island; and Ashbel T. Wall II, in his

capacity as the Director of the Department of Corrections

of the State of Rhode Island,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. Ronald R. Lagueux, U.S. Senior District Judge]

Before

 Boudin, Chief Judge,

Selya, Circuit Judge,

and Stahl, Senior Circuit Judge.

Dennis T. Grieco II with whom Gidley, Sarli & Marusak, LLP was

on brief for appellant.

Thomas A. Palombo, Assistant Attorney General, Department of

Attorney General, with whom Claire Richards, Special Counsel to the

Governor, and John L.P. Breguet, Chief Legal Counsel, Department of
Administration, Office of Labor Relations, were on brief for

appellee State of Rhode Island.

John L.P. Breguet, Chief Legal Counsel, Department of

Administration, Office of Labor Relations, with whom Thomas A.

Palombo, Assistant Attorney General, Department of Attorney

General, and Claire Richards, Special Counsel to the Governor, were

on brief for appellee Robert L. Carl, Jr. 

January 28, 2004
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BOUDIN, Chief Judge. This suit involves the claims of

the Rhode Island Brotherhood of Correctional Officers ("the

Brotherhood") against the state of Rhode Island, its governor, and

other officials (collectively, "Rhode Island"). Because the case

was disposed of on a motion to dismiss, Fed. R. Civ. P. 12(b)(6),

we accept for purposes of review the factual allegations (but not

necessarily the characterizations) of the complaint, Rogan v.

Menino, 175 F.3d 75, 77 (1st Cir.), cert. denied, 528 U.S. 1062

(1999), which are briefly as follows.

In 1976 the Rhode Island General Assembly enacted an

incentive pay statute giving extra pay to correctional officers who

acquired specified educational credits, provided that the officers

remained employed by the Department of Corrections for designated

periods (or paid back some of the extra pay if they left early).

1976 R.I. Pub. Laws. ch. 290, § 2 (codified at R.I. Gen. Laws §§

42-56.1-1 to -10 (1976)). The extra pay was fixed as a specified

percentage of the officer's base salary, depending upon the number

of educational credits obtained. R.I. Gen. Laws § 42-56.1-2

(1976).

Over the years after 1976 the state also entered into

collective bargaining agreements with the correctional officers

containing terms that mirrored the statute's provisions on

incentive pay. However, the latest collective bargaining agreement

containing such incentive pay provisions expired on June 30, 1996.
1See generally Parella v. Ret. Bd. of R.I. Employees' Ret.

Sys., 173 F.3d 46 (1st Cir. 1999); National Educ. Association-R.I.

ex rel. Scigulinsky v. Ret. Bd. of R.I. Employees' Ret. Sys., 172

F.3d 22 (1st Cir.), cert. denied, 528 U.S. 929 (1999); R.I.

Laborers' Dist. Council v. Rhode Island, 145 F.3d 42 (1st Cir.

1998); McGrath v. R.I. Ret. Bd., 88 F.3d 12 (1st Cir. 1996);

Retired Adjunct Professors v. Almond, 690 A.2d 1342 (R.I. 1997).

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The union alleges that the state required union members to sign

individual contracts confirming the state's obligation to provide

incentive pay under the terms of the statute; individual forms

relating to incentive pay were signed, but whether they were

contracts and if so what obligations they imposed and on whom

remains to be discussed.

The Rhode Island legislature has several times enacted

generous pay or pension statutes and later reconsidered them.1 In

1996, the Rhode Island General Assembly amended the 1976 incentive

pay statute, effective as of July 1, 1996, to provide that after

that date incentive pay would no longer be a percentage of base

salary but would be a specified flat sum, 1996 R.I. Pub. Laws. ch.

100, § 1 (codified at R.I. Gen. Laws §§ 42-56.1-2 (1997)).

According to the union this generally results in lower incentive

pay--hardly a surprise since base salaries tend to rise over time.

On October 2, 2003, the Brotherhood brought suit, 42

U.S.C. §§ 1983, 1988 (2000), against Rhode Island, seeking

declaratory and injunctive relief to maintain the percentage

formula and also seeking back payments. The claims were based on

alleged violations of the contract clauses of the federal and Rhode
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Island constitutions, U.S. Const. art. I, § 10, cl. 1; R.I. Const.

art. I, § 2; denial of substantive due process, U.S. Const. amend.

XIV, § 1; R.I. Const. art. I, § 2; taking of property without just

compensation (apparently under U.S. Const. Amend. V); breach of

contract; promissory estoppel; and unjust enrichment/quantum

meruit.

Thereafter, exercising supplemental jurisdiction over the

state law claims, 28 U.S.C. § 1367(a) (2000), the district court

dismissed all of the claims on the merits, save that it dismissed

the claims based on the alleged individual contracts for lack of

standing. R.I. Bhd. of Corr. Officers v. Rhode Island, 264 F.

Supp. 2d 87 (D.R.I. 2003). The union now appeals. Our review of

a decision granting a motion to dismiss on the papers is plenary.

Stein v. Royal Bank of Canada, 239 F.3d 389, 392 (1st Cir. 2001).

The contract clause of the federal constitution limits

the ability of a state to abrogate rights created by pre-existing

contracts, including contractual rights against the state created

by legislation. E.g., Parella v. Ret. Bd. of Rhode Island

Employees' Ret. Sys., 173 F.3d 46, 60 (1st Cir. 1999); Parker v.

Wakelin, 123 F.3d 1, 4-5 (1st Cir. 1997), cert. denied, 522 U.S.

1106 (1998). But recognizing that legislation is ordinarily

subject to change, the Supreme Court requires that the

legislature's intent to create such rights against the state be

unmistakably clear, see United States v. Winstar Corp., 518 U.S.
2This conclusion also disposes of the counterpart claim under

the Rhode Island Constitution, because Rhode Island case law

construes its contract clause consistently with the federal clause,

Retired Adjunct Professors, 690 A.2d at 1345 n.2.

3Although a litigant seeking to overcome the hurdle of the

unmistakability doctrine may rely on "not only the words used [in

the statute] but also apparent purpose, context, and any pertinent

evidence of actual intent, including legislative history," R.I.

Laborers' Dist. Council, 145 F.3d at 43, the Brotherhood has not

provided any pertinent evidence of this kind.

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839, 872 (1996) (plurality opinion); Dodge v. Bd. of Educ., 302

U.S. 74, 78-79 (1937); Parella, 173 F.3d at 59-60; and even where

contractual rights do exist, the legislature may abrogate them

under certain circumstances. U.S. Trust Co. v. New Jersey, 431

U.S. 1, 25 (1977); Parella, 173 F.3d at 59. Here, inquiry stops

at the first stage since we agree with the district court that the

1976 statute did not unmistakably create contractual rights.2

The 1976 statute merely provides that the incentive pay

specified will be afforded if the educational qualifications are

met by the employee. It does not say that the provisions are a

contractual commitment by the state or will never be changed, nor

is there language authorizing the state to enter into contracts

guaranteeing such benefits forever. See Parella, 173 F.3d at 60.

The framework is similar to other statutes regularly found not to

create private contractual rights. See note 1, above.3

The Brotherhood's main statutory-language argument to the

contrary is that the 1976 provisions make references to writings in

two instances: first, the eligibility provision requires that the
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employee "agree in writing to remain" in the Department of

Corrections for a specified period, R.I. Gen. Laws § 42-56.1-2

(1976); second, the payment provision directs an administrator to

supply the "agreement form" containing the time constraints for

completing educational programs, R.I. Gen. Laws § 42-56.1-6 (1976).

The provisions explain at least one of the forms relied on by the

union as independent contracts.

Whatever the status and meaning of these two documents

(an issue to which we will return), the two references to writings

in the statute do not show that the statutory provisions for

incentive pay were themselves unmistakably intended to create (or

authorize creation of) private contractual rights against the

state. The statute requires a document from the employee

acknowledging the statutory commitment of the employee to remain or

repay a portion of past incentive pay. The only obligations

imposed on the state are to follow the statute–-which has now been

amended.

It would have been child's play for the Rhode Island

legislature to say explicitly in 1976 that educational credits once

earned created private rights or that incentive pay could never be

differently calculated for existing employees who had qualified for

incentive pay. True, civil service jobs commonly create

expectations that holders will likely enjoy no reductions in pay

(but instead get periodic increases); but expectations alone are
4Justice Souter's opinion describes the history of the

unmistakability doctrine as well-settled law. Winstar Corp., 518

U.S. at 876 & n.21 (Souter J., plurality opinion). Justice

Scalia's concurrence says that the doctrine reflects a

"commonsense" interpretation of contract law in the context of

legislation. Id. at 921 (Scalia, J., concurring in the judgment).

The Chief Justice's opinion opposes any dilution of pre-existing

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not contracts–-contracts are written to protect expectations.

Indeed, legislation constantly creates expectations that are

disappointed by later modifications, repeal or lack of funding.

Of course, the employees in this case assert not only

expectations but reliance. In private ordering (e.g., a corporate

pension plan), courts commonly overlook the lack of an explicit

promise where the employee performs in accordance with a

promulgated plan and the employer then reduces the benefits. Nat'l

Educ. Ass'n-R.I. ex rel. Scigulinsky v. Ret. Bd. of R.I. Employees'

Ret. Sys., 172 F.3d 22, 26 (1st Cir.), cert. denied, 528 U.S. 929

(1999). But for good reason public statutes are not construed in

the same fashion as private contracts. Id. at 27. This is a

disadvantage for public employees (who happen to include judges);

yet no shortage of applicants has ensued. 

 United States v. Winstar Corp., 518 U.S. 839 (1996),

relied upon in other respects by the Brotherhood, does not support

the union's argument that contractual rights spring from the 1976

statute. Virtually all of the opinions assumed that the

unmistakability doctrine applies to legislation claimed to provide

private contractual rights.4 The core dispute that divided the
unmistakability law. Id. at 926-27 (Rehnquist, C.J., dissenting).

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Court three ways concerned the ability of Congress to override what

most of the Justices deemed to be promises made in prior agreements

between banks and their regulators.

Thus, Winstar did not alter the traditional presumption

that state legislation does not ordinarily create private

contractual rights. Indeed, since the Winstar decision, this court

has regularly followed that presumption. E.g., R.I. Laborers'

Dist. Council v. Rhode Island, 145 F.3d 42, 44-45 (1st Cir. 1998);

Parker, 123 F.3d at 5-6. Any rule allowing one legislature to bind

its successors by casual implication, Winstar Corp., 518 U.S. at

874 (Souter J., plurality opinion); Parella, 173 F.3d at 60, would

be a far-reaching change in the law endorsed by none of the Winstar

opinions.

As an alternative basis for its contract clause claim,

the union relies on the collective bargaining agreements that

mirrored the percentage pay terms of the 1976 statute. The last

such agreement embodying those terms expired on June 30, 1996, one

day before the statute converting incentive pay to flat stipends

became effective. The union does not say that percentage based

payments required before that date were not paid; its position is

that under state labor law the last collective bargaining agreement

previously in force is continued in force after June 30, 1996,

until a new one is negotiated.
5Although the union's complaint does not invoke any claims

under state labor laws, the 1996 statute, expressly changing the

basis for computing incentive pay, would arguably modify any state

labor law doctrine that might otherwise independently perpetuate

the old formula.

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Assuming that state labor law maintains the status quo,

the obligation would arise under state labor law and not by

contractual obligation protected against impairment by the

constitutional contract clause doctrine. Providence Teachers Union

v. Providence Sch. Bd., 689 A.2d 388 (R.I. 1997), relied on by the

Brotherhood, states that although under state labor law the "terms

and conditions of employment may be insulated from postexpiration

unilateral change in order to protect the statutory right to

bargain, such terms and conditions no longer have force by reason

of the expired contract." Id. at 393 n.2 (citations omitted). See

also Univ. of Haw. Prof'l Assembly v. Cayetano, 125 F. Supp. 2d

1237, 1243 (D. Haw. 2000); Bricklayers Union Local 21 v. Edgar, 922

F. Supp. 100, 105-06 (N.D. Ill. 1996).5

Finally, as a basis for a contract clause claim, the

Brotherhood points to the forms signed by individual employees.

These forms, required by the 1976 statute as a condition of

receiving incentive pay, appear in at least two versions: one is

labeled "notice" and the other "acknowledgment" and both do no more

than say that the employee receiving incentive pay understands that

the payment requires that he or she continue to work for the
6Two versions of the documents exist, and are entitled,

respectively, "Correctional Officer's Education Incentive Pay

Notification of Enrollment" and "Acknowledgment of the Provisions

of Title 42 Chapter 56.1-1 through 56.1-10 of the General Laws of

Rhode Island and in particular Chapter 42-56.1-2."

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Department of Corrections for a specified period or return part of

the extra compensation.6

The district court held that under Rhode Island law the

Brotherhood had no authority to sue to enforce individual contracts

made by its members. R.I. Bhd. of Corr. Officers, 264 F. Supp. 2d

at 100-01. The court conceded that section 1983 claims are

governed by federal standing rules, which allow an association to

sue on behalf of its members where the members would have standing

to sue themselves, the interests are germane to the association's

purpose, and "neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit."

Hunt v. Wa. State Apple Advertising Comm'n, 432 U.S. 333, 343

(1977). But the district court found that the last of these three

conditions had not been met.

The district court's main concern was that any

determination as to amounts owed to individual employees as back

pay since July 1996 would require individual calculations and the

participation of those members in the lawsuit. Yet in this case

the union sought for its members a declaration under the contract

clause that percentage pay has to be provided in the future for

members who had secured their educational credits. Surely such a
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declaration would benefit members even if they had to file separate

lawsuits to determine individual back pay.

Int'l Union, United Auto., Aerospace & Agric. Implement

Workers v. Brock, 477 U.S. 274 (1986), is directly in point. There

a union challenged the Secretary of Labor's interpretation of a

trade statute in a manner that meant less unemployment benefits for

union members. The Supreme Court concluded that the third

requirement under Hunt for associational standing was met: 

[T]hough the unique facts of each UAW member's

claim will have to be considered by the proper

state authorities before any member will be

able to receive the benefits allegedly due

him, the UAW can litigate this case without

the participation of those individual

claimants and still ensure that "the remedy,

if granted, will inure to the benefit of those

members of the association actually injured."

Id. at 288 (quoting Warth v. Seldin, 422 U.S. 490, 515 (1975)); see

also Playboy Enters., Inc. v. Pub. Serv. Comm'n, 906 F.2d 25, 35-36

(1st Cir.), cert. denied, 498 U.S. 959 (1990).

It follows that federal standing rules permit the union

to seek a declaration on behalf of its members as to whether the

contract clause protects continuing rights to percentage pay under

the alleged individual contracts. And embedded in this federal

claim is the question whether the forms do constitute contracts

committing the state to continue to pay percentage-based

compensation to those who earned their educational credits before
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the statute was amended. We thus turn to the contract question not

reached by the district court.

Whether or not the forms constitute contracts--and

neither is expressly a contract--they do not purport to create any

obligations on the part of the state. Rather, the signing employee

merely acknowledges that by accepting incentive pay, he or she

"understands" that the educational program must be completed to

qualify and that if the employee leaves in less than four years, a

portion of the payment must be returned as provided in the 1976

statute. The time period for completing the educational

requirements and the duration of required employment for each level

of incentive compensation are specified in the two forms. Not a

single phrase commits the state to do anything.

The purpose of the forms is patent. Although the

employees' obligations are spelled out in the statute, a prudent

legislature might be concerned that employees receiving incentive

pay who did not complete their educational program, or resigned

early from employment, would balk at paying back anything. Were

the state ever to sue to recapture benefits as provided by the

statute, the signed forms would block the employee from denying

that he or she understood from the outset the conditions imposed on

the receipt of such pay.

Our discussion thus far also disposes of three more of

the claims advanced in the complaint. Because the union has not
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established a violation of any contractual rights, there is no

cognizable claim for taking of property without just compensation.

Parella, 173 F.3d at 58-59. The lack of any property interest also

disposes of the substantive due process claim. R.I. Laborers'

Dist. Council, 145 F.3d at 44 n.1. Similarly, absent an extant

contract obligating the state to do anything, the Brotherhood's

common law breach of contract claims fail.

The complaint's two remaining claims invoke the doctrines

of promissory estoppel and quantum meruit/unjust enrichment, but

the Brotherhood's brief on appeal addresses these claims in only

three sentences, effectively abandoning them. Mass. Sch. of Law at

Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 43 (1st Cir. 1998).

For completeness, we note that the district court's opinion

explains why neither claim can succeed under Rhode Island law.

R.I. Bhd. of Corr. Officers, 264 F. Supp. 2d at 104-06.

We have been brief in our treatment because the central

contract clause claim has been turned back several times in past

cases coming out of Rhode Island. Nor is the result remarkable:

save in the area of pensions–-and not always there–-governments

rarely guarantee that compensation will never be changed. If the

Rhode Island legislature wants to promise never to reduce pay for

existing workers, it will have to say so unmistakably–-and accept

openly the responsibility for its decision.

Affirmed.