
USCA1 Opinion

	




        January 7, 1994         [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1552                                 ANN B. LOVELL, ETC.,                                Plaintiff, Appellant,                                          v.                        PEOPLES HERITAGE SAVINGS BANK, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 93-1553                             ANN B. LOVELL, ETC., ET AL.                                Plaintiffs, Appellants                                          v.                               THE ONE BANCORP, ET AL.                                Defendants, Appellees                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Richard  E.  Poulos  with whom  John  S.  Campbell  and  Poulos  &            ___________________             __________________       _________        Campbell, P.A. were on brief for appellants.        ______________            Robert S.  Frank with  whom Christopher  J. Devlin  and Verrill  &            ________________            ______________________      __________        Dana were on brief for FDIC as receiver for Maine Savings Bank.        ____            Rufus E. Brown with whom Drummond Woodsum Plimpton & MacMahon  was            ______________           ____________________________________        on brief for Frederick W. Pape, Jr.            John  F. Batter,  III with  whom Hale  and Dorr  was on  brief for            _____________________            ______________        Nancy Masterton,  as personal representative  of the Estate  of Robert        Masterton.            Thomas D. Warren, Director,  Litigation Unit, with whom Michael E.            ________________                                        __________        Carpenter,  Attorney General, and  Peter J. Brann,  Assistant Attorney        _________                          ______________        General, were on brief for Maine Superintendent of Banking.            Catherine R. Connors with whom Ralph I. Lancaster, Jr., Daniel  M.            ____________________           _______________________  __________        Snow, and Pierce,  Atwood, Scribner, Allen, Smith &  Lancaster were on        ____      ____________________________________________________        brief for Peoples Heritage Savings Bank.                                 ____________________                                 ____________________                      Per  Curiam.     In  these   consolidated  appeals,                      ___________            plaintiffs-appellants argue that the district  court erred in            summarily disposing of  their claims relating to  their right            to  a distribution  of the  net worth  of two  mutual savings            banks (MSBs) following the banks' conversion to stock savings            institutions.   See generally Lovell v. Peoples Heritage Sav.                            ___ _________ ______    _____________________            Bank, 818  F. Supp. 427 (D. Me. 1993); Lovell v. One Bancorp,            ____                                   ______    ___________            818 F. Supp. 412 (D. Me. 1993).  We affirm.                      Plaintiffs failed to  come forward with proof  of a            constitutionally-protected    property    interest    in    a            distribution of the surplus of  the MSBs, the linchpin of the            bulk of their  claims.  In  answering questions certified  by            the  district court, the  Maine Supreme Judicial  Court (SJC)            held that Maine law does  not give plaintiffs any right to  a            distribution of the surplus of MSBs as part of the conversion            process.  Lovell v. One Bancorp,  614 A.2d 56, 67 (Me. 1992).                      ______    ___________            Absent a state  property right, plaintiffs' plea  for federal            constitutional protection is in  vain.  Chongris v.  Board of                                                    ________     ________            Appeals,  811 F.2d  36, 43  (1st  Cir.) ("[P]roperty  rights,            _______            while protected by the federal Constitution, are creatures of            state law.")  (citing, inter alia, Board of  Regents v. Roth,                                   _____ ____  _________________    ____            408  U.S.  564, 577  (1972)),  cert.  denied, 483  U.S.  1021                                           _____  ______            (1987).                      Plaintiffs  argue  in  the   alternative  that  the            Constitution at least protects their contingent interest in a                                         -2-                                          2            distribution  of  the  "liquidation   accounts"  of  the  new            institutions.  These  accounts are the current  repository of            the reincarnated surplus  of the former MSBs.   While the SJC            opinion does support  plaintiffs' claim to such  an interest,            see   Lovell,  614   A.2d  at  67   (recognizing  depositors'            ___   ______            contingent interest in  a pro rata  distribution of a  bank's            surplus),  plaintiffs have  not  produced trial-worthy  proof            that the contingency  --  a solvent liquidation -- would ever            occur.  In fact, as the record stands now, it  is essentially            undisputed  that a  solvent  liquidation  is  a  very  remote            possibility.  As  a result, the district court  may have been            correct in  concluding that  the contingent  interest in  the            liquidation  accounts  did  not  rise  to  the  level  of  an            expectancy deserving  constitutional  protection.    See  One                                                                 ___  ___            Bancorp, 818  F. Supp.  at 420-21;  Peoples Heritage, 818  F.            _______                             ________________            Supp. at 431;  cf. Society for Sav. v. Bowers,  349 U.S. 143,                           ___ ________________    ______            150  (1955) (observing that  interest of mutual  savings bank            depositor  in bank's  undivided  earnings, contingent  on the            "unlikely event of a solvent  liquidation, . . . hardly rises            to the  level of an  expectancy").  Nonetheless,  rather than            basing the  availability of constitutional protection  on the            expected  value of  an alleged  property  interest, we  focus            instead  on the alternative reasoning offered by the district            court.                                         -3-                                          3                      Even  if   plaintiffs  could  prove   a  cognizable            property interest in the liquidation accounts, the undisputed            facts would  still  support summary  judgment for  defendants            with  respect to  each  alleged violation  of  constitutional            property   rights.     Plaintiffs   have  proven   themselves            singularly  unable   to  show  any  tangible  financial  harm            sufficient to support a claim  under the Takings Clause,  see                                                                      ___            Penn Cent.  Transp. Co. v. New  York City, 438 U.S.  104, 124            _______________________    ______________            (1978) (suggesting that proof of economic impact is essential            to show a  violation of the Takings Clause),  or the Contract            Clause, see General Motors Corp. v.  Romein, 112 S. Ct. 1105,                    ___ ____________________     ______            1109  (1992)  (holding  that  "substantial  impairment  of  a            contractual  relationship"  is  an essential  component  of a            Contract Clause  claim) (quoting Allied Structural  Steel Co.                                             ____________________________            v. Spannaus, 438 U.S.  234, 244 (1978)).   Nor  would a trial               ________            serve   any  useful  purpose  with  respect  to  the  alleged            violations  of procedural  due  process; it  is  a matter  of            record  that plaintiffs had notice of the proposed conversion            and an  opportunity to respond.   We agree with  the district            court that plaintiffs were "entitled to accurate, informative            notice,  not to  their  particular  characterizations of  the            information being disseminated."   One Bancorp, 818  F. Supp.                                               ___________            at 426.                      We likewise fail to see any merit in the allegation            that defendants violated  plaintiffs' substantive due process                                         -4-                                          4            and  equal protection rights.   As explained  in the district            court's trenchant opinions below, there are entirely rational            reasons  for the transfer  of the surplus of  the MSBs to the            liquidation accounts of  the new stock institutions,  as well            as the differing rights of account holders in  the conversion            of an  MSB and policy  holders of a mutual  insurance company            during an arguably analogous conversion.  See  id. at 423-24;                                                      ___  ___            Peoples Heritage, 818 F. Supp. at 431.            ________________                      We also agree  with the  district court  concerning            plaintiffs'  state  law  claims.    In  response  to  another            certified  question,  the  SJC  held  that  plaintiffs   were            procedurally  barred  from pursuing  their  state common  law            claims  following  (1)  the  issuance  of  a  certificate  of            conversion by the state and  (2) the failure of plaintiffs to            seek judicial review  under Maine's Administrative  Procedure            Act.   Lovell, 614 A.2d at  62.  Plaintiffs' attempt  to have                   ______            this court overrule or  modify Maine's highest court on  this            point of state  law is  entirely unavailing.   Moreover,  the            district court is  unquestionably correct in  concluding that            the logic used  by the SJC  in deciding the viability  of the            common law  claims disposes of the state  statutory claims as            well.   See  One Bancorp,  818  F. Supp.  at 425-26;  Peoples                    ___  ___________                              _______            Heritage, 818 F.  Supp. at 431.  As  all of plaintiffs' state            ________            law claims  are  procedurally barred,  summary  judgment  was            inescapably appropriate.                                         -5-                                          5                      Accordingly,  the judgments  of the  district court            are                      Affirmed.                      Affirmed.                      _________                                         -6-                                          6
