United States Court of Appeals

For the First Circuit

No. 10-2134

RAYMOND W. CAHOON, JR., ET AL.,

Plaintiffs, Appellants,

v.

OSCAR SHELTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS

DIRECTOR OF PERSONNEL FOR THE CITY OF WARWICK, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Before

Howard, Selya and Thompson, Circuit Judges.

William M. Kolb, with whom Law Offices of William M. Kolb was

on brief, for appellants.

Marc DeSisto, with whom DeSisto Law was on brief, for

appellees.

July 22, 2011
SELYA, Circuit Judge. We are entering an era in which

retirement benefits paid to public employees are subject to

heightened scrutiny. In this case, a municipality became convinced

that former firefighters and police officers who had retired on

disability pensions were collecting a particular benefit (full

reimbursement of certain medical expenses) without legal warrant. 

The municipality acted on this conviction and stopped paying the

tab. A group of affected retirees sued to enforce continued

payment, alleging that the municipality's about-face violated state

statutes, constituted an ultra vires act, contradicted principles

of equity, and offended the Due Process Clause of the United States

Constitution.

The district court entered summary judgment against all

but three of the plaintiffs. The court then held a bench trial and

resolved the remaining claims. The plaintiffs appeal the summary

judgment rulings. We affirm.

I. BACKGROUND

We briefly rehearse the relevant factual and procedural

background, supplementing this bare-bones account in our subsequent

discussion of particular issues.

The plaintiffs comprise thirty-three retired firefighters

and police officers previously employed by Warwick, Rhode Island

-2-
(the City). At various points over the past three decades, each 1

of them sustained a debilitating injury in the line of duty,

resulting in a grant of disability leave by the City's Board of

Public Safety (the Board). When it became apparent that the

plaintiffs' injuries precluded a return to active duty, the Board

exercised its discretion to place them in retirement. See Warwick,

R.I., Code of Ordinances §§ 20-112(a)(1), 20-202(a)(1), 52-38(a),

52-76(a). Each plaintiff received a disability pension that

included defined medical benefits. 

The present dispute centers on the extent of this

benefit. In the first instance, the City funds the payment of

retirees' medical expenses through health insurance, which covers 2

part, but not all, of those costs. For many years, the City also

reimbursed excess medical expenses (i.e., expenses not covered by

insurance). This meant that one hundred percent of each retiree's

medical expenses was reimbursed.

In 2003, the City took a fresh look at its past practice

and concluded that, in accordance with a recent decision of the

Rhode Island Supreme Court, it was not obliged to reimburse all of

a disabled retiree's medical expenses. Consequently, the City's

The underlying action was originally commenced by thirty- 1

nine plaintiffs, but six have fallen by the wayside.

For purposes of this opinion, we limit the term "medical 2

expenses" to those expenses incurred to cure or relieve the effects

of injuries arising out of a firefighter's or police officer's

employment.

-3-
personnel director, Oscar Shelton, informed the plaintiffs, by

letter dated December 11, 2003, that as of January 1, 2004, the

City would no longer reimburse medical expenses not covered by

insurance. Because the letter directed disabled retirees instead

to the health insurance provided as part of their pensions, it had

the additional effect of requiring that, upon reaching the age of

sixty-five, disabled retirees would have to apply for Medicare.

Dismayed by this about-face, the plaintiffs asked for a

hearing before the Board. The Board responded that

[a]lthough [the] request can be placed on the

agenda, the Board's position is, pursuant to

the [Rhode Island] Supreme Court decision,

that any retiree who has written confirmation

that the City and/or Board of Public Safety

will pay 100% of [on-the-job injury] related

medical bills after retirement will have those

bills paid in full. Otherwise, the Board's

position is that the City's health insurance,

as part of the retirement plan, meets the

City's obligation.

After unsuccessfully presenting their claims to the City

Council, see R.I. Gen. Laws § 45-15-5, the plaintiffs brought suit

in state court against the Board, the City, and a myriad of

municipal officials (including Shelton). Their complaint

challenged termination of the practice of fully reimbursing medical

expenses as violative of state statutory law, unauthorized, barred

by principles of equitable estoppel, and offensive to due process. 

The defendants removed the action to the federal district court. 

See 28 U.S.C. §§ 1331, 1441.

-4-
In due season, the defendants sought summary judgment. 

See Fed. R. Civ. P. 56. The district court initially granted the

motion on all claims. Cahoon v. Shelton (Cahoon I), No. 07-cv-008,

2008 WL 64518, at *12 (D.R.I. Jan. 4, 2008). On the plaintiffs'

motion for reconsideration, the court later vacated the judgment

with respect to the equitable estoppel claims. See Cahoon v.

Shelton (Cahoon II), No. 07-cv-008, 2008 WL 6514326, at *1 (D.R.I.

Mar. 10, 2008). After further discovery limited to the equitable

estoppel issue, the court granted summary judgment in favor of the

defendants on the estoppel claims of all but three of the

plaintiffs. See Cahoon v. Shelton (Cahoon III), No. 07-cv-008,

2009 WL 1758738, at *7 (D.R.I. June 18, 2009).

The three exempted plaintiffs (James Gordon, Michael

Kraczkowski, and Thomas Thompson) tried their estoppel claims to

the court, which found that the Board had explicitly promised to

reimburse all of Gordon's and Kraczkowski's medical expenses but

had made no comparable promise to Thompson. See Cahoon v. Shelton

(Cahoon IV), No. 07-cv-008, 2010 WL 3385040, at *3-4 (D.R.I. Aug.

26, 2010). The court entered judgment accordingly. Id. at *5. 

The plaintiffs' timely appeal of the summary judgment rulings

followed. The defendants have not appealed the judgments in favor

of Gordon and Kraczkowski on the bench-tried estoppel claims. For

his part, Thompson has not appealed from the adverse findings in

-5-
the bench trial (although he, like the plaintiffs generally,

continues to press a global claim of estoppel).

II. ANALYSIS

In this venue, the plaintiffs resurrect the same

asseverational array that they presented in the court below. After

delineating the legal standards that govern our inquiry, we address

each of the plaintiffs' four global asseverations. We then turn to

the individualized and conceptually distinct claims mounted by

Gordon and Kraczkowski. Because the latter two claims stand on a

different conceptual footing, we hereafter use the term "the

plaintiffs" to designate all the plaintiffs other than Gordon and

Kraczkowski. 

A. Legal Standards.

Our review of a district court's entry of summary

judgment is de novo. Dávila v. Corporación de P.R. para la

Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). We will affirm

the decision only if the record reveals no genuine issue as to any

material fact and discloses that the moving party is entitled to

judgment as a matter of law. Vineberg v. Bissonnette, 548 F.3d 50,

55 (1st Cir. 2008). In this endeavor, we are not married to the

trial court's reasoning but, rather, may affirm on any

independently sufficient ground made manifest by the record. 

Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st

Cir. 1999).

-6-
When interpreting state law, a federal court employs the

method and approach announced by the state's highest court. 

Carolina Trucks & Equip., Inc. v. Volvo Trucks of N. Am., Inc., 492

F.3d 484, 489 (4th Cir. 2007); Nat'l Pharmacies, Inc. v. Felicianode-Melecio, 221 F.3d 235, 241-42 (1st Cir. 2000). The Rhode Island

Supreme Court has made it pellucid that in interpreting state

statutes, a court's "ultimate goal is to give effect to the purpose

of the act as intended by the Legislature." Webster v. Perrotta,

774 A.2d 68, 75 (R.I. 2001). "The best evidence of such intent can

be found in the plain language used in the statute." Steinhof v.

Murphy, 991 A.2d 1028, 1036 (R.I. 2010) (quoting State v. Germane,

971 A.2d 555, 574 (R.I. 2009)).

Thus, when faced with statutory language that is clear

and unambiguous, an inquiring court ordinarily must construe the

statute precisely as it is written, giving its constituent words

their plain meanings. Liberty Mut. Ins. Co. v. Kaya, 947 A.2d 3

869, 872 (R.I. 2008). In performing that task, the court must

"consider the entire statute as a whole." Ryan v. City of

Providence, 11 A.3d 68, 71 (R.I. 2011). Only if the legislature

has sounded an uncertain trumpet should a court resort to canons of

We say "ordinarily" because, plain language notwithstanding, 3

a statute should never be construed in a way that produces an

absurd result. Ryan v. City of Providence, 11 A.3d 68, 71 (R.I.

2011).

-7-
statutory construction. Harvard Pilgrim Health Care of New Engl.,

Inc. v. Rossi, 847 A.2d 286, 290 (R.I. 2004) (per curiam).

B. The IOD Statute.

The plaintiffs' principal argument hinges on state

statutes, municipal ordinances, and the interplay among them. The

touchstone of this argument is the injured-on-duty (IOD) statute,

which reads in relevant part:

Whenever . . . any police officer [or] fire

fighter . . . of any city . . . is wholly or

partially incapacitated by reason of injuries

received . . . in the performance of his or

her duties . . ., the respective city . . . by

which the police officer [or] fire fighter

. . . is employed, shall, during the period of

the incapacity, pay the police officer [or]

fire fighter . . . the salary or wage and

benefits to which the police officer [or] fire

fighter . . . would be entitled had he or she

not been incapacitated, and shall pay the

medical [expenses] for the necessary period

. . . . In addition, the cities . . . shall

pay all similar expenses incurred by a member

who has been placed on a disability pension

and suffers a recurrence of the injury or

illness that dictated his or her disability

retirement.

R.I. Gen. Laws § 45-19-1(a).

The IOD statute comprises two sentences. The district

court concluded that neither sentence was sufficient to carry the

burden of the plaintiffs' statutory argument. The court reasoned

that the first sentence (Sentence 1) did not apply because, as

retirees, the plaintiffs were no longer employed by the City. 

Cahoon I, 2008 WL 64518, at *4-5. It concluded that application of

-8-
the second sentence (Sentence 2) was sidetracked by the combined

effect of R.I. Gen. Laws § 43-3-26 and Warwick's municipal

ordinances. Id. at *5-8. Consequently, the court held that the

plaintiffs were not, as a statutory matter, entitled to full

reimbursement of medical expenses. Id. at *8.

The plaintiffs argue that the district court erred; that

Sentence 1 entitles them, even after their retirement, to full

reimbursement of medical expenses; and that Sentence 2

independently produces the same result.

We start with Sentence 1. The plaintiffs maintain that

this sentence confers benefits not only during the course of

employment but also during retirement. In their view, the language

of Sentence 1 is ambiguous, and the district court's interpretation

fails to effectuate the intent of the state legislature (the Rhode

Island General Assembly). We find this argument unpersuasive.

The language of section 45-19-1(a) is clear as a bell. 

The section creates two tiers of benefits: the first, codified in

Sentence 1, applies to persons who are still employed but

temporarily disabled; the second, codified in Sentence 2, applies

to persons who are retired due to a disability. The instruction in

Sentence 1 to pay "during the period of the incapacity" the "salary

or wage" to which the injured worker "would be entitled had he or

she not been incapacitated" unequivocally denotes a person

presently employed. After all, a retiree, by definition, no longer

-9-
draws a salary or wages. Rather, as Sentence 2 makes manifest, a

retiree is "placed on a . . . pension." Equally telling is the

legislature's use of the present tense ("is employed") in Sentence

1.

This reading is reinforced by the statutory description

of the benefit period as a "period of the incapacity." That

description plainly envisions that benefits under Sentence 1 are

meant to apply for a limited time. By contrast, Sentence 2 speaks

of "retirement" — an unlimited time. The contrary reading urged by

the plaintiffs would obliterate this line of demarcation.

If more were needed — and we do not think that it is —

fully reimbursing the medical expenses of disabled retirees under

Sentence 1 would make Sentence 2 entirely superfluous. Courts

should avoid construing a statute in a way that will divest any of

its component parts of meaning. See, e.g., State v. Clark, 974

A.2d 558, 572 (R.I. 2009); Brennan v. Kirby, 529 A.2d 633, 637

(R.I. 1987). There is every reason to honor that precept here.

Our reading of section 45-19-1(a) is wholly consistent

with the case law. The state's highest court has determined that

the language of the IOD statute is clear and unambiguous. See

Brissette v. Potter, 560 A.2d 324, 325 (R.I. 1989); Aiudi v. Pepin,

417 A.2d 320, 321 (R.I. 1980). In addition, our parsing of the

statute's two sentences conforms with that court's precedents. 

See, e.g., Webster, 774 A.2d at 80 (concluding that the benefits

-10-
contemplated by Sentence 1 apply to a firefighter or police officer

only "while he or she remains a member of the department" (emphasis

in original)); Brissette, 560 A.2d at 326 (stating that the "first

portion of the statute . . . relates specifically to salary" while

the second clause "relates to medical expenses for a member who has

been placed on a disability pension").

The recent case of Hagenberg v. Avedisian, 879 A.2d 436

(R.I. 2005) mirrors the circumstances with which we are confronted. 

There, a retired Warwick police officer sought full reimbursement

of medical expenses under the IOD statute. Id. at 438-39. The

court held that Sentence 1 did not compel such reimbursement for an

officer who had retired on a disability pension. Id. at 441-42

(explaining that "[t]he IOD statute never was intended to

supplement a retired officer's retirement benefits"). As the court

had explained in an earlier case, "[u]pon acceptance of disability

pension benefits," a plaintiff "may not . . . seek additional

benefits pursuant to § 45-19-1." Elliott v. Town of Warren, 818

A.2d 652, 655 (R.I. 2003) (per curiam). Here, the plaintiffs

availed themselves of the City's retirement benefits regime and

they cannot now resort to the prophylaxis of section 45-19-1.

In an effort to lessen the impact of these precedents,

the plaintiffs insist that the General Assembly, by enacting

section 45-19-1, intended to give disabled firefighters and police

officers greater benefits than those available under traditional

-11-
workers' compensation laws. This insistence puts the matter in a

false light. It was only through Sentence 1, which ensures the

payment of full salary and medical benefits during the period of

temporary incapacity, that the General Assembly intended to exceed

the generosity of the workers' compensation laws. See Labbadia v.

State, 513 A.2d 18, 21 (R.I. 1986) (describing the advantages of

the IOD statute vis-à-vis the workers' compensation laws). Nothing

in the text of section 45-19-1 suggests that the legislature's

purpose was to give injured firefighters and police officers better

retirement benefits. See Hagenberg, 879 A.2d at 441.

This brings us to Sentence 2, which states that the City

"shall pay all similar expenses incurred by a member who has been

placed on a disability pension." The plaintiffs' position is that

this language cinches their entitlement to full reimbursement of

medical expenses post-retirement. The language of Sentence 2, if

read in a vacuum, gives this position a certain superficial allure. 

But a court cannot — and must not — read a statute in a vacuum, and

Sentence 2 runs headlong into R.I. Gen. Laws § 43-3-26, which

directs that, in cases of irreconcilable conflict between two

legislative provisions, one general and the other specific, the

latter "shall prevail and shall be construed as an exception to the

general provision."

The specific provision applicable here is R.I. Gen. Laws

§ 45-19-19, which authorizes municipalities to "provide, by

-12-
ordinance or through collective bargaining, for the retirement of

the personnel of their police and fire departments who have been on

leave of absence from their employment due to . . . injuries

sustained in the performance of their duties." Because Warwick

provides retirement medical benefits to its disabled firefighters

and police officers through a combination of city ordinances and

collective bargaining agreements (CBAs), the court below held that 4

this specific arrangement took precedence over the more general

provision contained in Sentence 2 and, therefore, that the

plaintiffs were not entitled to full medical benefits under section

45-19-1(a). Cahoon I, 2008 WL 64518, at *8. This holding is

manifestly correct.

We need not tarry. Sentence 2 is a general provision. 

It conflicts with the combination of R.I. Gen. Laws § 45-19-19 and

the City's actions in pursuance thereof. For present purposes,

this conflict renders Sentence 2 inapposite. See St. Germain v.

City of Pawtucket, 382 A.2d 180, 181 (R.I. 1978) (per curiam)

(concluding that city's retirement benefits law for injured

firefighters was specific compared to section 45-19-1, where former

Warwick firefighters and police officers are afforded 4

pensions and health insurance coverage, regardless of whether or

not retirement is due to a disability. See Warwick, R.I., Code of

Ordinances §§ 20-101, 20-161, 52-36, 52-76 (pensions); id. §§ 20-

60, 52-6 (health insurance). The CBAs between the City and the

public safety unions echo these arrangements.

-13-
was "applicable only to the city," while latter was "a general

statute which applies to all cities and towns").

The plaintiffs proclaim that there is no conflict between

section 45-19-1 and the City's retirement scheme. But the conflict

is obvious. Warwick's ordinances provide disabled retirees with

health insurance, see Warwick, R.I., Code of Ordinances §§ 20-

60(a), 52-6(a), and this insurance covers some (but not all)

medical expenses, leaving the retirees responsible for the balance. 

Furthermore, the insurance coverage attaches only until Medicare

can be expected to bear the load. Id. §§ 20-60(c), 52-6(b). This

scheme directly and ineluctably conflicts with the second sentence

of section 45-19-1(a), which requires the full payment of any

medical expenses — and does so without any Medicare hand-off. See

Morry v. City of Warwick, 742 A.2d 1205, 1207 (R.I. 2000) (per

curiam).

The significance of this conflict is made clear by the

decision in St. Germain, which explains that the General Assembly

designed section 45-19-1 to protect only those firefighters and

police officers who are employed by "cities . . . that do not have

their own pension plans." 382 A.2d at 181.

The statute "in no way repeals or supersedes" the various

special acts that authorize municipalities to establish their own

pension and retirement benefit plans. Id.; see Trembley v. City of

Central Falls, 480 A.2d 1359, 1362 (R.I. 1984). Thus, where a

-14-
pension system that includes medical benefits is in effect, "§ 45-

19-1 may not serve as a default source of benefits." Elliott, 818

A.2d at 655; see Hagenberg, 879 A.2d at 442 ("An injured officer

employed by a municipality that has its own retirement system is

restricted to the benefits provided by the particular statutory

scheme.").

The plaintiffs mount two additional counter-arguments. 

First, they contend that the grant of health insurance coverage to

retired firefighters and police officers is effectuated not by

section 45-19-19, but by section 45-2-11, which gives

municipalities authority to provide healthcare coverage for all

employees. This latter statute, they say, is another general

statute, thus eliminating the perceived conflict. This contention

is unavailing.

The ordinances that grant the City authority to provide

health insurance coverage for its retired public safety personnel

enumerate not only section 45-2-11, but also "every other power

thereunto enabling." Warwick, R.I. Code of Ordinances § 20-60(a);

see id. § 52-6(a). This language plainly encompasses section 45-

19-19, which addresses the narrower subset of retired firefighters

and police officers.

In all events, whether or not a conflict exists between

sections 45-19-1 and 45-2-11, there is an undeniable conflict

between both of those general provisions and the specific provision

-15-
of section 45-19-19. So long as that is true, section 45-2-11

cannot come to the plaintiffs' rescue.

Alternatively, the plaintiffs labor to refute the

conclusion that section 45-19-1 should not be read to permit, in

effect, a bifurcation of benefits (some governed by state statutes

and others governed by municipal ordinances). See Cahoon I, 2008

WL 64518, at *6. But the state supreme court's decision in Elliott

stands squarely in their path. See Elliott, 818 A.2d at 654

(rejecting any "entitlement to a bifurcation of pension and medical

benefits when . . . a disability pension system is in place").

While the plaintiffs strive to distinguish Elliott on the

ground that the claimant in that case was seeking both salary and

medical expense reimbursements, id. at 653, there is no reason to

believe that the General Assembly intended a claim for one kind of

retirement benefits under section 45-19-1 to be treated differently

from a claim for some other kind of retirement benefits. Indeed,

the case law suggests the opposite conclusion. See Hagenberg, 879

A.2d at 441-42; see also Lanni v. Ferrante, 688 A.2d 865, 866 (R.I.

1997) (mem.) (concluding that "plaintiff, having voluntarily

elected to recover his disability pension benefits from [the

municipal pension] system . . . may not . . . seek benefits

pursuant to § 45-19-1"); cf. United States v. O'Neil, 11 F.3d 292,

296 (1st Cir. 1993) (noting venerable principle that grant of a

greater power includes grant of a lesser power).

-16-
The short of it is that Sentence 2 functions as a gapfilling mechanism, assuring injured retirees that municipalities

will not leave them completely high and dry with regard to medical

expenses. If, however, a municipality provides medical coverage 5

for retirees, there is no gap to fill and, thus, no room for

section 45-19-1 to furnish default benefits. See Hagenberg, 879

A.2d at 442. That the benefit separately provided is less than one

hundred percent of medical expenses does not alter this reality. 

See, e.g., Elliott, 818 A.2d at 655.

Here, the City has created a retirement system that

covers its public safety retirees and affords them medical

benefits. It is this system, not Sentence 2, that dictates the

medical benefits available to the plaintiffs.

In a last-ditch effort to carry the day, the plaintiffs

assert that the City's retirement plan incorporates the benefits

due to retirees under section 45-19-1. This assertion lacks force.

To be sure, some municipalities maintain retirement

systems which, either through legislative acts or CBAs, incorporate 

the provisions of the IOD statute and provide that retirement

The plaintiffs suggest that Sentence 2, rather than 5

functioning as a gap-filler, was a legislative response to the

decision in Santanelli v. City of Providence, 250 A.2d 849 (R.I.

1969). However, the amendment of the IOD statute to include

Sentence 2 occurred a full six years after Santanelli was decided. 

The alleged cause-and-effect relationship is pure conjecture and,

in any event, Sentence 2's language is inhospitable to the

suggestion.

-17-
benefits for disabled public safety officers should be distributed

accordingly. See, e.g., Brissette, 560 A.2d at 325. Warwick,

however, is not among that number. Nothing in the City's

ordinances or CBAs indicates an intent to integrate the terms of

section 45-19-1 into the City's retirement system. There would be

no justification in straining to reach such a result by judicial

fiat.

Hagenberg confirms this understanding. The court there

explicitly stated that an officer who "retires with a disability

pension . . . forfeits the benefits of § 45-19-1, unless the

municipality has no disability pension system." 879 A.2d at 442. 

The court's statement that the component of the City's retirement

system that paid medical benefits was "in accordance with the IOD

statute," id. at 443, signifies only that the City maintained a

disability retirement system that provided medical benefits

sufficient to obviate any need to resort to default benefits under

section 45-19-1. Thus, we conclude that the plaintiffs' claims for

full reimbursement of medical expenses by operation of the IOD

statute, whether seen in terms of Sentence 1 or Sentence 2, are

without merit.

C. Ultra Vires.

When the City came to the belated realization that its

practice of fully reimbursing disabled retirees' medical expenses

was gratuitous, its personnel director (Shelton) put a stop to it. 

-18-
The plaintiffs contend that the decision as to whether to halt the

practice was the Board's prerogative and that, therefore, Shelton's

unilateral action was ultra vires.6

The plaintiffs' contention puts the cart before the

horse. Warwick's ordinances explicitly provide that the Board "has

the responsibility for approving all applications for retirement,

death, termination, and disability benefits." Warwick, R.I., Code

of Ordinances §§ 20-137, 20-262; see id. §§ 52-36, 52-39, 52-76,

52-77, 52-80. Hence, the Board is the only entity in the City that

has the authority to authorize full reimbursement of medical

expenses. This is crucial because the record is barren of any

evidence that the Board ever authorized the full reimbursement

practice on a global basis.

Without such an authorization from the Board, the

payments made by the City to reimburse medical expenses were

themselves ultra vires. It follows inexorably that no special

authorization was needed to halt them. After all, when a party has

no lawful right to receive payments from the public fisc, halting

the stream of unauthorized payments requires no particular

To the extent that the plaintiffs challenge the propriety of 6

summary judgment because the record is silent as to whether the

Board approved full reimbursement of medical expenses globally,

that challenge is bootless. A party who bears the burden of proof

on an issue cannot defeat summary judgment by relying on

speculation about the facts. Ahern v. Shinseki, 629 F.3d 49, 54

(1st Cir. 2010). Such a party must offer "definite, competent

evidence to rebut the motion." Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991).

-19-
formality. See Town of Johnston v. Pezza, 723 A.2d 278, 283 (R.I.

1999). Absent some equitable barrier to the cessation of 7

unauthorized payments (a matter to which we shortly shall return),

a municipality is allowed to correct an ultra vires practice

regardless of which municipal officer brings it to a halt. See id.

at 284; Almeida v. Zoning Bd. of Review of Tiverton, 606 A.2d 1318,

1321 (R.I. 1992); see also Pub. Serv. Co. of N.H. v. Town of West

Newbury, 835 F.2d 380, 383 (1st Cir. 1987) (discerning no authority

for the proposition that a municipality cannot "nullif[y] an action

invalid from the beginning").

D. Equitable Estoppel.

The plaintiffs next invoke the equitable exception to the

halting of an ultra vires practice, positing that the City's

prolonged reimbursement of medical expenses estops it from changing

course at this late date. The district court rejected this global

theory, Cahoon III, 2009 WL 1758738, at *7, even though it found

that specific estoppel-creating promises had been made to Gordon

and Kraczkowski, Cahoon IV, 2010 WL 3385040, at *4-5. 

To succeed on an equitable estoppel claim, a party must

establish that the defendant made "an affirmative representation

The plaintiffs insist that Pezza is off-point because the 7

person terminating the unlawfully issued building permit had

authority to rescind permits not in compliance with the town's

zoning requirements. But this is a distinction without a

difference. What matters is that the initial act was unauthorized

and, therefore, a nullity. See Town of Charlestown v. Beattie, 422

A.2d 1250, 1252 (R.I. 1980).

-20-
. . . directed to [him] for the purpose of inducing [him] to act or

fail to act in reliance thereon," and that such representation "did

induce [him] to act or fail to act to his injury." Prov. Teachers

Union v. Prov. Sch. Bd., 689 A.2d 388, 391-92 (R.I. 1997) (quoting

Lichtenstein v. Parness, 99 A.2d 3, 5 (R.I. 1953)); accord Saccucci

Auto Grp., Inc. v. Am. Honda Motor Co., 617 F.3d 14, 27 (1st Cir.

2010) (applying Rhode Island law). With respect to a governmental

entity, estoppel "must be predicated upon the acts or conduct of

[the public entity's] officers, agents or official bodies acting

within the scope of their authority." Potter v. Crawford, 797 A.2d

489, 492 (R.I. 2002) (per curiam) (internal quotation omitted). 

Measured against these benchmarks, the plaintiffs' estoppel claims

are triply flawed.

The first flaw is the absence of any evidence that the

Board made either a promise or an affirmative representation to

disabled firefighters and police officers generally that the City

would fully reimburse disabled retirees' medical expenses. For

aught that appears from the record, the Board was not consulted. 

In the absence of such evidence, the district court appropriately

granted summary judgment on the equitable estoppel claims. See

Ret. Bd. of Emps.' Ret. Sys. v. DiPrete, 845 A.2d 270, 284 (R.I.

2004).

The second flaw is equally destructive to the fabric of

the plaintiffs' argument. "[T]he doctrine of equitable estoppel

-21-
should not be applied against a governmental entity . . . when, as

here, the alleged representations or conduct relied upon were ultra

vires." Romano v. Ret. Bd. of Emps.' Ret. Sys., 767 A.2d 35, 38

(R.I. 2001). Because the City's full reimbursement of medical

expenses was ultra vires, see supra Part II(C), the claims for

equitable estoppel founder. See, e.g., Tech. Investors v. Town of

Westerly, 689 A.2d 1060, 1062 (R.I. 1997).

Third, and finally, the Rhode Island Supreme Court has

noted that "[t]he key element of an estoppel is intentionally

induced prejudicial reliance." El Marocco Club, Inc. v.

Richardson, 746 A.2d 1228, 1234 (R.I. 2000) (quoting E. Greenwich

Yacht Club v. Coastal Res. Mgmt. Council, 376 A.2d 682, 686 (R.I.

1977)). The plaintiffs have proffered nothing to show that the

City intentionally induced reliance on a continuation of full

reimbursement (indeed, they have not even identified a reason why

the City might have wanted to induce such reliance). The lack of

any such proof is, in itself, a sufficient basis for summary

judgment on these claims. See Leiter v. Allstate Ins. Co., 725

A.2d 882, 883-84 (R.I. 1999) (per curiam).

E. Due Process.

The plaintiffs' last remonstrance charges that Shelton's

termination of the past practice without a hearing took their

property without due process of law. This remonstrance need not

occupy us for long.

-22-
It is apodictic that the Constitution "imposes

constraints on governmental decisions which deprive individuals of

. . . 'property' interests within the meaning of the Due Process

Clause." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). A court

tasked with determining whether a constitutionally protected

property interest exists must look to "existing rules or

understandings that stem from an independent source such as state

law." Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972). A party's unilateral expectation, in itself, cannot create

a constitutionally protected property interest. Webb's Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980); Young v.

Wall, 642 F.3d 49, 53 (1st Cir. 2011).

The plaintiffs have not identified any source that would

give rise to a constitutionally protected property interest in the

continuation of full reimbursement. For example, there is no

statutory requirement that the City reimburse retired firefighters

and police officers for medical expenses beyond what is already

provided through the retirement system. See supra Part II(B). Nor

have the plaintiffs shown a property interest forged through the

operation of equitable principles. See supra Part II(D). While we

do not question the sincerity of the plaintiffs' desire to continue

receiving full reimbursement, such a desire, unanchored in a state

law or rule, is not enough to ground a procedural due process

-23-
claim. See, e.g., Young, 642 F.3d at 55; Centro Medico del 8

Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir.

2005).

F. Gordon and Kraczkowski.

As we already have explained, Gordon and Kraczkowski

prevailed at a bench trial on their estoppel claims because the

Board had made specific commitments to them. Consequently, they

continue to receive full reimbursement of medical expenses. 

Nevertheless, they contend that judgment should not have been

entered against them on their ultra vires and procedural due

process claims.

Gordon and Kraczkowski have not explained what other or

further relief they might be entitled to receive on these theories. 

They simply assert, without elaboration and in conclusory fashion,

an entitlement to relief. We long have held that claims asserted

in a perfunctory manner, unaccompanied by developed argumentation,

are deemed abandoned. United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990). So it is here.

Another infirmity is apparent. The district court

granted summary judgment on the ultra vires and procedural due

process claims, see Cahoon I, 2008 WL 64518, at *9-11, before

The plaintiffs make a feeble attempt to argue that the 8

termination of full reimbursement deprived them of substantive due

process. This argument appears for the first time in their reply

brief. It is, therefore, waived. See Sandstrom v. ChemLawn Corp.,

904 F.2d 83, 86 (1st Cir. 1990).

-24-
Gordon and Kraczkowski, in a later bench trial, established the

existence of specific promises of full reimbursement, see Cahoon

IV, 2010 WL 3385040, at *5. This changed factual finding presented

an avenue by which Gordon and Kraczkowski could, and should, have

sought the additional relief they desired. See In re Sun Pipe Line

Co., 831 F.2d 22, 24 (1st Cir. 1987). But neither Gordon nor

Kraczkowski ever asked the district court to modify its earlier

judgment on the ultra vires and due process claims in light of

Cahoon IV. See Fed. R. Civ. P. 59(e); In re Sun Pipe Line, 831

F.2d at 24 (explaining that a motion asking "the court to modify

its earlier disposition of a case because of an allegedly erroneous

legal result is brought under Fed. R. Civ. P. 59(e)").

"[I]t is black letter law that it is a party's first

obligation to seek any relief that might fairly have been thought

available in the district court before seeking it on appeal." 

Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989). Gordon and

Kraczkowski flouted this obligation. Given the circumstances of

this case, we see no reason to consider their request for

additional (unspecified) relief as a matter of first impression. 

See, e.g., Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 22 n.9

(1st Cir. 1989).

III. CONCLUSION

To sum up, government officials have a solemn duty to

expend public funds in accordance with law. Although we understand

-25-
the plaintiffs' frustration — after all, the City buoyed their

hopes when it mistakenly plunged ahead, over a period of years, to

make full reimbursement of disabled public safety retirees' medical

expenses — they have not, as a class, shown any basis in law or in

equity sufficient to force the City to perpetuate this erroneous

practice. Taxpayers, too, have rights.

We do, however, make an exception for Gordon and

Kraczkowski. Each of them has succeeded in making out a claimantspecific case for estoppel. They have earned the right to the

relief that the district court ordered.

We need go no further. The district court patiently

explored the complexities of these tangled issues and reached a

correct result.

Affirmed.

-26-