                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                  PUBLISH
                                                                     JUN 30 1998
                UNITED STATES COURT OF APPEALS
                                                                PATRICK FISHER
                                                                          Clerk
                             TENTH CIRCUIT



FRANCES L. HOPKINS, personal
representative of the estate of
ROBERT E. “BOB” HOPKINS,

     Plaintiff-Appellant,
v.

OKLAHOMA PUBLIC EMPLOYEES
RETIREMENT SYSTEM, sued as
State of Oklahoma, ex rel; DON
KILPATRICK; JOSEPH CARTER;
HOWARD CONYERS; JEAN
COULTER; DONALD KEENAN;
VAL SCHOTT; W. R. STUBBS;
                                                  No. 96-6302
DAVID W. WAY; JOHN M.
CRAWFORD; CODY GRAVES;
RICHARD HAUGLAND; OSCAR B.
JACKSON, JR., and TOM DAXON, in
their official capacities as Board
Members of the Board of Trustees of
the Oklahoma Public Employees
Retirement System; STEPHEN C.
EDMONDS, Executive Director of the
Oklahoma Public Employees
Retirement System, in his official
capacity,

     Defendants-Appellees.


               Appeal from the United States District Court
                  for the Western District of Oklahoma
                        (D.C. No. CIV-96-0441-A)
E. Clyde Kirk, Stipe Law Firm, Oklahoma City, Oklahoma, for Plaintiff-
Appellant.

Lisa Tipping Davis, Assistant Attorney General, Oklahoma City, Oklahoma
(Barry K. Koonce, Assistant Attorney General, and Lydia Heimer Lee, General
Counsel, Oklahoma Public Employees Retirement System, with her on the brief)
for Defendants-Appellees.


Before SEYMOUR, Chief Judge, and EBEL and BRISCOE, Circuit Judges.


EBEL, Circuit Judge.




      This case presents the question whether a state’s forfeiture of more than

two-thirds of a retired state employee’s pension, as a result of the employee’s

conviction for bribery after the employee has begun to collect his pension,

violates either the Fifth or Eighth Amendments to the United States Constitution.

We hold that the forfeiture is not unconstitutional under the Double Jeopardy

Clause because of the doctrine of dual sovereigns, nor is it unconstitutional under

the Excessive Fines Clause because, under Oklahoma law, the employee had not

acquired a vested property right in the pension.



                                   Background.

      Robert E. “Bob” Hopkins (“Hopkins”) served for twenty-two years as a


                                        -2-
member first of the Oklahoma House of Representatives and then the Oklahoma

Senate. In 1987, Hopkins left the state legislature and was sworn in as a member

of the Oklahoma Corporation Commission, a statewide elected board that

regulates public utilities in Oklahoma. Hopkins resigned his office on August 1,

1991, two years before his six-year term expired. Upon his retirement, the

Oklahoma Public Employees Retirement System (“OPERS”) credited Hopkins

with thirty-two years of service, including military service and other prior service,

and he began drawing a monthly pension of $4,293.18.

      Three years later, on November 30, 1994, Hopkins was convicted in federal

court under 18 U.S.C. § 666 of accepting a bribe in connection with his vote in

1989 on a matter then being considered by the Corporation Commission. Hopkins

was sentenced to 33 months in prison, and was ordered to pay fines totaling

$71,234. Following his conviction, OPERS notified Hopkins that his pension

would be reduced by 70 percent, to $1,281.87 per month. This forfeiture of more

than two-thirds of Hopkins’ pension came as a result of Okla. Stat. tit. 51, §

24.1(A), which provides for the forfeiture of retirement benefits when a public

employee is convicted of a felony or other offense involving a violation of his

oath of office. 1 Hopkins estimated that this reduction resulted in an estimated


      1
          This statute provides in part:
                       Any elected or appointed state or county officer or
                                                                         (continued...)

                                          -3-
loss to him and his wife, based on actuarial projections of their life expectancies,

of $706,452.85.

      Hopkins challenged his pension forfeiture with an administrative appeal to

the OPERS Board of Trustees, but on September 21, 1995, the trustees upheld the

reduction. Hopkins did not appeal the OPERS final decision in Oklahoma state

court, as was his right under the Oklahoma Administrative Procedures Act, Okla.

Stat. tit. 75, § 318. Instead, Hopkins filed suit in federal court challenging the

constitutionality of the state’s pension forfeiture statute because of its alleged

violation of the Double Jeopardy and Excessive Fines Clauses of the Fifth and

Eighth Amendments. Suing under 42 U.S.C. § 1983, Hopkins sought prospective

equitable relief, including a declaration that the pension forfeiture statute is


      1
       (...continued)
              employee who, during the term for which he was elected
              or appointed, is, or has been, found guilty by a trial
              court of a felony in a state or federal court of competent
              jurisdiction . . . shall vacate such office or employment
              and if such felony or other offense violates his oath of
              office shall forfeit all benefits of said office or
              employment, including, but not limited to, retirement
              benefits provided by law; provided however, that such
              forfeiture of retirement benefits shall not include such
              officer’s or employee’s contributions to the retirement
              system or retirement benefits that are vested on the
              effective date of this act.
Okla. Stat. tit. 51, § 24.1(A). The state’s forfeiture in Mr. Hopkins’ case did not
include benefits that vested before the effective date of this statute in 1981. The
record does not reflect any claim by Mr. Hopkins that the state’s forfeiture
included money he had paid into the pension system.

                                         -4-
unconstitutional and an injunction against its enforcement. Although Hopkins

requested his attorneys fees, he did not seek any retrospective money damages.

      On a motion from the state, the district court granted summary judgment to

the defendants and dismissed Hopkins complaint. The court found that the

pension forfeiture statute did not violate the Double Jeopardy Clause of the Fifth

Amendment because the underlying bribery prosecution against Hopkins was

brought by a separate sovereign. See United States v. Lanza, 260 U.S. 377, 382

(1922). The district court also found that the pension forfeiture statute did not

violate the Excessive Fines Clause of the Eighth Amendment because under

Oklahoma law, Hopkins had not acquired a property right in his pension benefits.

Following the entry of summary judgment, Hopkins filed a motion for a new trial

in which he raised new legal arguments, but the district court refused to consider

these new arguments and denied his motion.

      During the pendency of Hopkins’ appeal before this court, Hopkins died.

Although the parties did not inform the court of the appellant’s death, the court

learned of this fact after oral argument, and the court directed the parties to

submit supplemental briefs on the question of whether Hopkins’ appeal was

mooted by his death. Hopkins’ widow, Frances L. Hopkins, who is the personal

representative of his estate, has now moved under Fed. R. App. P. 43(a) to be




                                         -5-
substituted as the named party in this appeal. 2



                                     Discussion.

                   I. Abatement or survival of Hopkins’ suit.

      As a preliminary matter, we must determine whether this case has been

mooted by Hopkins’ death. Hopkins filed his suit alleging constitutional claims

under 42 U.S.C. § 1983. That statute’s companion provision in 42 U.S.C.

§ 1988(a) provides that the federal courts’ jurisdiction to decide a section 1983

suit will be governed by applicable state law when there is no controlling federal

law on a particular point. See 42 U.S.C. 1988(a). In Robertson v. Wegmann, 436

U.S. 584, 588-90 (1978), the Supreme Court held that in the absence of any

federal law controlling the survival and abatement of section 1983 suits, this

question would be governed by the local state’s survival and abatement statute, so

long as that statute is “not inconsistent with the Constitution and laws of the

United States.” See 42 U.S.C. § 1988(a). This court has applied Robertson to

hold that the death of a plaintiff in a First Amendment suit under section 1983 did

not abate the cause of action for the plaintiff’s estate. See Grandbouche v.



      2
       Upon consideration of this motion, the court agrees that under Fed. R.
App. P. 43(a), Frances L. Hopkins, as the personal representative of the state of
Robert E. Hopkins, should be substituted as the named party in this appeal. The
caption of this appeal has been amended to reflect this decision.

                                         -6-
Clancy, 825 F.2d 1463, 1465 (10th Cir. 1987) (applying Colorado’s survival

statute); see also Anderson v. Romero, 42 F.3d 1121, 1123-25 (7th Cir. 1994)

(holding that a plaintiff’s section 1983 suit alleging Eighth Amendment violations

by prison officials was not rendered moot as a result of the plaintiff’s death

because Illinois law ensured the survival of such a suit). Indeed, we have relied

on Robertson as the basis for applying Oklahoma’s abatement statute, 3 the

specific statute at issue in this case, both to abate and to avoid abatement of two

federal civil rights suits. See Pietrowski v. Town of Dibble, 134 F.3d 1006,

1008-09 (10th Cir. 1998) (holding that under Oklahoma law, the plaintiff’s civil

rights claim for malicious prosecution would abate upon the death of the

defendant); Slade ex rel. Estate of Slade v. United States Postal Serv., 952 F.2d

357, 360 (10th Cir. 1991) (holding that under Oklahoma law, the plaintiff’s Title

VII claim would not abate upon his death).

      Because Hopkins’ suit alleging double jeopardy and excessive fines


      3
          The Oklahoma abatement statute states:

                       No action pending in any court shall abate by the
               death of either or both the parties thereto, except an
               action for libel, slander or malicious prosecution, which
               shall abate by the death of the defendant. An action for
               libel, slander or malicious prosecution shall not abate
               after a jury verdict or a decision by the court where the
               trial is by the court, unless a new trial is ordered.

Okla. Stat. tit. 12, § 1052.

                                          -7-
violations does not constitute a claim for slander, libel or malicious prosecution,

Oklahoma law calls for the survival of his suit despite his death. See Okla. Stat.

tit. 12, § 1052. Thus, we conclude that Hopkins’ suit does not abate upon his

death. Because a live case or controversy continues to exist between Hopkins’

estate and the defendants, this case is not moot. 4 See Phelps v. Hamilton, 122

F.3d 1309, 1326 (10th Cir. 1997) (“The central question in determining whether a

case has become moot is whether ‘the issues presented are no longer “live” or the

parties lack a legally cognizable interest in the outcome.’”) (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)); see also Erwin Chemerinsky, Federal

Jurisdiction, § 2.5.1, at 125 (2d ed. 1994) (noting that a civil case is not moot

under Article III even though the plaintiff has died as long as the plaintiff’s cause

of action survives his death).




      4
        We note that Mrs. Hopkins’ presence in this case results solely from her
role as the personal representative of Mr. Hopkins’ estate. Hopkins’ suit never
named his wife as a party, nor did Mrs. Hopkins ever seek relief for her own
property interest in her husband’s pension. See Okla. Stat. tit. 74, § 913.4(F)
(establishing that the surviving spouse of a state pension beneficiary is entitled to
50 percent of the pensioner’s benefit). Thus, even though Mrs. Hopkins might
have had standing to assert her own claim in her husband’s suit, at this stage in
the litigation, Mrs. Hopkins is only nominally a party in this case. Any relief that
might have resulted from this suit would have flowed to Mr. Hopkins’ estate, not
to Mrs. Hopkins personally.

                                         -8-
                       II. Exhaustion of Hopkins’ claims.

      A second jurisdictional issue in this case is the state’s claim that

Oklahoma’s state-law exhaustion requirements for challenges against decisions by

state administrative agencies creates a bar to our federal jurisdiction over

Hopkins’ federal constitutional claims. The state relies on Oklahoma case law

that appears to require all challenges against state administrative action to be

pursued through the judicial review provisions of the Oklahoma Administrative

Procedures Act, Okla. Stat. tit. 75, § 318. See Martin v. Harrah Indep. Sch. Dist.,

543 P.2d 1370, 1372 (Okla. 1976). But see id. at 1375-76 (noting that exhaustion

is not required for suits under 42 U.S.C. § 1983 because “[r]elief under the Civil

Rights Act provides a supplemental remedy to any state remedy and relief under

the act may not be defeated because of failure to exhaust administrative remedies

provided under state law”).

      The state’s argument is unavailing because it is more than well-settled that

a plaintiff under 42 U.S.C. § 1983 need not exhaust his administrative remedies

before filing suit in federal court. See Patsy v. Board of Regents, 457 U.S. 496,

516 (1982); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 683 (10th

Cir. 1988) (reinstating a section 1983 suit that had been dismissed for failure to

exhaust administrative exhaustion). Furthermore, we note that Oklahoma’s

administrative exhaustion doctrine applies only when a litigant seeks “review of


                                        -9-
agency decisions.” See Johnson v. Board of Governors of Registered Dentists,

913 P.2d 1339, 1343 (Okla. 1996). Hopkins’ suit here, however, is not properly

characterized as a review of an agency decision. Hopkins has not contested the

correctness, in light of Oklahoma’s pension forfeiture statute, of the reduction in

his pension benefits. Instead, Hopkins is challenging the constitutionality of the

pension forfeiture statute itself. This challenge does not involve a review of the

arbitrariness or capriciousness of OPERS’s administrative decision under the

Oklahoma Administrative Procedures Act, Okla. Stat. tit. 75, § 322(1). Thus,

regardless of Oklahoma’s provisions for administrative review, we have

jurisdiction over this federal civil rights suit.



                        III. Hopkins’ constitutional claims.

       Turning to the merits of Hopkins’ case, we note that in light of the lack of

any dispute over the facts in this case we exercise de novo review of the district

court’s determination of the constitutional issues here. See Villanueva v. Carere,

85 F.3d 481, 487 (10th Cir. 1996). Of course, as this case challenges the

constitutionality of a state statute, we are constrained by the “venerable

presumption” that an act of a state legislature is generally taken to be

constitutional, and the burden is on the plaintiff to demonstrate how the statute

transgresses the requirements of the United States Constitution. See id.


                                          - 10 -
                              A. Double jeopardy.

      The first challenge Hopkins raises against Oklahoma’s reduction of his

pension benefits involves his claim that Oklahoma’s pension forfeiture statute

violates the Double Jeopardy Clause of the Fifth Amendment. Under the Fifth

Amendment, no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb.” U.S. Const. amend. V. For more than a century, the

Double Jeopardy Clause has been interpreted as inapplicable in those situations

where two separate sovereigns prosecute the same offence. See Moore v. Illinois,

55 U.S. (14 How.) 13, 19 (1852). “[A]n act denounced as a crime by both

national and state sovereignties is an offense against the peace and dignity of both

and may be punished by each.” United States v. Lanza, 260 U.S. 377, 382 (1922)

(upholding a federal prosecution under federal Prohibition laws after an earlier

conviction for the same conduct under state law).

      Under this dual-sovereigns doctrine, the crucial question is whether the two

proceedings against a litigant can be characterized as emanating from “distinct

sources of power.” See Heath v. Alabama, 474 U.S. 82, 88 (1985). The Supreme

Court has been unwavering in its conclusion that when the two “sources of

power” at issue in a double jeopardy claim are the federal government and a state

government, then the dual-sovereigns doctrine applies and there is no double

jeopardy in the second prosecution. See United States v. Wheeler, 435 U.S. 313,


                                       - 11 -
316-17 & n.7 (1978). As the Court explained, “a federal prosecution does not bar

a subsequent state prosecution of the same person for the same acts, and a state

prosecution does not bar a federal one.” Id. at 317 n.7.

      In Hopkins’ case, his first prosecution was in federal court for violation of

the federal bribery law under 18 U.S.C. § 666. The second proceeding against

Hopkins was before the Oklahoma pension board under Oklahoma’s pension

forfeiture statute, Okla. Stat. tit 51, § 24.1(A). It is beyond doubt, therefore, that

the “authority to punish” Hopkins in these two proceedings emanated from two

“distinct sources of power.” See Heath, 474 U.S. at 88. As result, Oklahoma’s

reduction in Hopkins’ pension benefits does not violate the Double Jeopardy

Clause.

      Despite this conclusion, Hopkins argues that the dual-sovereigns doctrine

does not apply in his case because of the “sham prosecution” exception under

Bartkus v. Illinois, 359 U.S. 121 (1959). 5 In Bartkus, the Court held that an


      5
        Hopkins did not raise this argument based on Bartkus until after the
district court ruled on the defendants’ summary judgment motion. Normally, we
would not consider a newly raised argument on appeal when it was not properly
raised below. See Walker v. Mather, 959 F.2d 894, 896 (10th Cir. 1992).
However, we will consider Hopkins’ arguments on the “sham prosecution”
exception to the dual-sovereigns doctrine because Hopkins appears not to have
had an opportunity to address the state’s argument on this issue before the district
court rendered its decision.
       The state’s motion for summary raised only two grounds for dismissing
Hopkins’ suit: the failure to exhaust state-law remedies and the contention that
                                                                      (continued...)

                                         - 12 -
Illinois prosecution of the defendant under a state robbery statute was not barred

by the Double Jeopardy Clause in light of the defendant’s earlier acquittal in

federal court on a federal bank robbery charge based on the same course of

conduct. Id. at 121-22, 139. In the course of explaining this decision, the Court

rejected arguments that the Illinois prosecution was “merely a tool” by federal

prosecutors to overcome the defeat they had suffered in the federal prosecution.

See id. at 123. The court said the evidence failed to sustain any conclusion that

“the state prosecution was a sham and a cover for a federal prosecution.” Id. at

124.

       The Tenth Circuit has interpreted this discussion of a “sham” prosecution in

Bartkus as suggesting a possible exception to the dual-sovereigns doctrine under

the Double Jeopardy Clause. See United States v. Raymer, 941 F.2d 1031, 1037

(10th Cir. 1991) (citing United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987));

see also United States v. Guzman, 85 F.3d 823, 826-27 (1st Cir. 1996) (noting

that the Bartkus suggestion of a “sham prosecution” exception has been adopted

in the D.C., First, Second, Fourth, Sixth, Ninth, and Tenth Circuits). But see


       5
        (...continued)
Oklahoma’s pension forfeiture statute did not impose a “punishment” under the
Double Jeopardy Clause. Only after Hopkins’ filed his opposition to the state’s
motion for summary judgment did the state raise the new argument that there was
no double jeopardy in this case because of the dual-sovereigns doctrine. In light
of this posture, we believe it is appropriate to consider Hopkins’ argument that
the dual-sovereigns doctrine is inapplicable.

                                       - 13 -
United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993) (questioning

whether Bartkus actually recognized an exception to the dual-sovereigns

doctrine). In Raymer, this court held that the defendant had failed to present

sufficient evidence to show that a federal drug prosecution against the defendant

was a “sham” or “cover” for an aborted state prosecution. See Raymer, 991 F.2d

at 1039. Under Raymer, a defendant must meet a very high evidentiary burden to

establish the “sham prosecution” exception -- the defendant must show that “one

sovereign is so dominated by the actions of the other that the former is not acting

of its own volition.” Id. at 1037.

      Hopkins argues that the “sham prosecution” exception applies in his case

because Oklahoma could not have prosecuted him for bribery under state law in

light of the state statute of limitations and because Oklahoma’s pension forfeiture

statute merely piggy-backs on top of a federal prosecution. These arguments,

however, do not come close to meeting the “substantial burden” on Hopkins to

show that Oklahoma’s attempt to forfeit his pension was “so dominated” by the

actions of federal prosecutors that Oklahoma officials were not acting of their

own volition. See Raymer, 991 F.2d at 1037. Indeed, the only evidence in the

record indicating contact between federal prosecutors and Oklahoma pension

officials is a letter from the United States Attorney for the Northern District of

Texas notifying OPERS that Hopkins had been convicted in federal court. As a


                                        - 14 -
result, we conclude that there is insufficient evidence to sustain a claim of “sham

prosecution” in Hopkins’ case. Thus, the dual-sovereigns doctrine applies here,

and Oklahoma’s forfeiture of Hopkins’ pension is not barred by the Double

Jeopardy Clause. 6

                                B. Excessive fines.

      The second argument Hopkins raises against the forfeiture of his pension

benefits is his claim that Oklahoma’s pension forfeiture statute imposes an

excessive fine on him in violation of the Eighth Amendment. This amendment

reads, “Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Supreme

Court has explained that the Excessive Fines Clause “was intended to limit only

those fines directly imposed by, and payable to, the government.” Browning-

Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268 (1989).

Furthermore, at the time of the drafting and ratification of the Eighth Amendment,

the understanding of the term “fine” included “a payment to a sovereign as

punishment for some offense.” Id. at 265. Implicit in this interpretation of the

Excessive Fines Clause is the notion that it applies only when the payment to the

government involves turning over “property” of some kind that once belonged to


      6
       As a result of our conclusion that the dual-sovereigns doctrine applies in
Hopkins’ case, we do not reach Hopkins’ other argument that forfeiture of his
pension is a “punishment” subject to the Double Jeopardy Clause.

                                        - 15 -
the defendant. Cf. Austin v. United States, 509 U.S. 602, 604 (1993) (applying

the Excessive Fines Clause to in rem forfeitures of a drug defendant’s mobile

home and business).

      In this case, therefore, we must decide the threshold question of whether

the forfeiture of Hopkins’ pension amounted to a payment of “property” by him to

the state of Oklahoma. The district court ruled that under Oklahoma law,

Hopkins had no “property” right in his pension benefits -- even though he had

already begun to receive the pension benefits -- because Hopkins’ right to his

pension always was contingent on maintaining honorable service during his tenure

in office. See Woods v. City of Lawton, 845 P.2d 880, 882-83 (Okla. 1992); see

also Okla. Stat. tit. 51, § 24.1(A) (forfeiting a public employee’s pension benefit

upon the employee’s felony conviction for “a felony or any offense involving a

violation of his official oath”). When Hopkins accepted a bribe in connection

with a matter then being considered by the Corporation Commission, he breached

his duty of honorable service. See Okla. Const. art. 9, § 17 (specifying that the

oath of office for each commissioner must include a declaration that the

commission has no financial interest in any matters that come before the

Commission). As a result, under Oklahoma law, Hopkins had no “vested right” in

his pension benefits. See Baker v. Oklahoma Firefighters Pension & Retirement

Sys., 718 P.2d 348, 350-51 (Okla. 1986) (“[U]nder Oklahoma law, the right to a


                                        - 16 -
pension would vest, or become absolute, upon the pension recipient’s becoming

eligible for payment of the pension. . . . [T]he right of a claimant to a pension is

controlled by the terms of the statute in effect when the right to a pension vests

and . . . vesting occurs as of the date of retirement.”); see also Board of Trustees

of the Police Pension & Retirement Sys. v. Weed, 719 P.2d 1276, 1278 (Okla.

1986) (noting the legal significance of a pension forfeiture statute that is tied to

dishonorable conduct during the employee’s term in office) (citing Kerner v. State

Employee’s Retirement Sys., 382 N.E.2d 243, 245-46 (Ill. 1978)).

      We agree with the district court’s interpretation of Oklahoma law, and thus,

we concur that Hopkins had no property right in his pension benefits. As a result,

the forfeiture of those benefits does not constitute a “payment” to the state of

Oklahoma, and this forfeiture does not violate the Excessive Fines Clause of the

Eighth Amendment.

      On appeal, Hopkins now contends that under Oklahoma law he did indeed

have a “vested right” to at least that portion of his pension benefit that derives

from his service as a state legislator. Hopkins argues that under Oklahoma law

his pension benefits accruing as a result of his legislative service vested when he

completed his terms of office in the state House and the state Senate. He

contends that his bribery conviction, relating as it does to his position as a

Corporation Commissioner, affects only the pension benefits he accrued while


                                         - 17 -
serving on the Commission.

      We decline to consider this argument because Hopkins failed to raise it

below before the district court rendered its summary judgment. Hopkins

presented his separate-vesting argument for the first time in his motion for a new

trial. However, unlike the dual-sovereigns issue discussed above, Hopkins was

fully on notice at the summary judgment stage that the question of whether his

pension rights had “vested” would be the crucial issue under his Eighth

Amendment claim. The state’s brief in support of summary judgment discussed

two state cases that had explicitly rejected arguments about indefeasible vesting

of pension benefits. See Kerner v. State Employees’ Retirement Sys., 382 N.E.2d

243, 246 (Ill. 1978); West Virginia Pub. Employees Retirement Sys. v. Dodd, 396

S.E.2d 725, 732-33 (W.Va. 1990), overruled on other grounds by Booth v. Sims,

456 S.E.2d 167 (W.Va. 1995). Thus, Hopkins could have, and should have,

presented his argument concerning pension vesting at that time. As the district

court noted in dismissing his motion for a new trial, a litigant may not treat

summary judgment proceedings as a “mere warmup” for the “main event.” See

Settino v. City of Chicago, 642 F. Supp. 755, 759 (N.D. Ill. 1986). We see no

abuse of discretion in the district court’s refusal to consider Hopkins’ untimely

attempt to raise this new argument in his motion for a new trial. Furthermore,

Hopkins’ failure properly to present his argument to the district court prevents us


                                        - 18 -
from considering the issue now. See Tele-Communications, Inc. v. Commissioner

of Internal Revenue, 104, F.3d 1229, 1233 (10th Cir. 1997) (“Propounding new

arguments on appeal in an attempt to prompt us to reverse the trial court

undermines important judicial values.”)



                                    Conclusion

      As a result, we hold that Oklahoma’s forfeiture of Hopkins’ pension

benefits under Okla. Stat. tit. 51, § 24.1(A), did not violate either the Double

Jeopardy Clause of the Fifth Amendment or the Excessive Fines Clause of the

Eighth Amendment. Thus, we AFFIRM the judgment of the district court.




                                        - 19 -
