
USCA1 Opinion

	




          September 26, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1223                                   KELLY K. LYDON,                                Plaintiff, Appellant,                                          v.                                JANE H. MALME, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                    Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            Kelly K. Lydon on brief pro se.            ______________            Scott  Harshbarger,  Attorney  General, and  Phyllis  N. Crockett,            __________________                           ____________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                      Per Curiam.  The judgment of  the district court is                      __________            affirmed essentially  for the reasons stated  in the district            ________            court's January 28, 1994 memorandum and order.                      We  add that plaintiff-appellant Kelly Lydon raises            an argument on appeal that the district court did not mention            in  its opinion.    Lydon  argues  that  he  was  accorded  a            constitutionally protected property interest in his job under            state law pursuant to Article  22 of a collective  bargaining            agreement with  the state.   Article 22 states,  in pertinent            part, "No employee  who has been  employed in the  bargaining            unit described in  Article 1  of this Agreement  for six  (6)            consecutive months or more shall be discharged, suspended, or            demoted  for  disciplinary   reasons  without  just   cause."            Defendants-appellees Jane  Malme, et al., concede  that Lydon            was covered under this agreement.                        Lydon, however, did not  raise this argument in the            district  court  as a  basis  for  his claim  that  he  had a            constitutionally  protected  property  interest in  his  job.            Consequently,  he  has waived  the argument  on appeal.   See                                                                      ___            Ondine  Shipping Corp. v. Cataldo, 24 F.3d 353, 355 (1st Cir.            _____________________     _______            1994);  United States  v. Slade,  980 F.2d  27, 31  (1st Cir.                    _____________     _____            1992).  Lydon's  status as a pro se litigant  did not relieve            him  of the obligation to  apprise the district  court of all            points  he wished  to raise in  favor of his  position.  See,                                                                     ____            e.g.,  Eagle  Eye Fishing  Corp.  v. United  States  Dep't of            _______________________________      ________________________            Commerce, 20 F.3d 503, 506 (1st Cir. 1994); Jaroma v. Massey,            ________                                    ______    ______            873 F.2d 17, 22 (1st Cir. 1989).                      It  is  true that  we  do  have discretion,  in  an            exceptional case, to reach issues that were not raised below.            We have found  that the  exercise of that  discretion may  be            appropriate where all (or most of) the following  factors are            present:  (1) where  the new issue  is purely legal, so  that            there is no need for further development of the record in the            district court; (2) where there is little doubt of the proper            resolution  of  the  issue; (3)  where  the  issue is  almost            certain  to be presented  in identical terms  in other cases;            and,  above all, (4) where  failure to reach  the issue would            result  in a  miscarriage of  justice.   United States  v. La                                                     _____________     __            Guardia, 902 F.2d  1010, 1013 (1st Cir.  1990); United States            _______                                         _____________            v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).                  ________                      Lydon's  new  issue does  not  sufficiently satisfy            these  criteria.  For  one thing, further  development of the            record  might well  aid in  the determination of  this issue.            The record does  not even  contain a copy  of the  collective            bargaining agreement  that is  alleged to be  applicable; all            that we have is what purports to be a copy of the single page            of  the agreement that contains Article 22.  Malme asserts in            her  brief that Article 22 did not apply to Lydon's discharge            because he  was discharged not for  disciplinary reasons, but            for  abandoning his position, which  Malme says is covered by                                         -3-            another  section of the agreement.  That other section is not            in the  record.   The  parties,  too, might  have  introduced            evidence concerning  the manner in  which Article 22  and any            other  relevant  provisions   of  the  agreement   have  been            interpreted in practice.                      Second,  we  cannot  say with  certitude  what  the            proper resolution of this issue may be.  Although it is  true            that other circuits have ruled that a just cause provision in            a collective  bargaining agreement entered into  by the state            can  create a  property  interest in  state employment,  see,                                                                     ____            e.g.,  Moffitt v. Town of  Brookfield, 950 F.2d  880, 885 (2d            ______________    ___________________            Cir. 1991), this court has yet  to rule on the question.  See                                                                      ___            Bennett v. City of Boston,  869 F.2d 19, 22 (1st  Cir. 1989).            _______    ______________            Moreover, the provision at issue  here does not clearly state            that  an  employee   cannot  be  discharged  without   cause.            Instead, it states that an employee cannot be discharged "for            disciplinary  reasons without  just cause."   This  seems, at            first blush, to leave  open the possibility that an  employee            can be discharged on  other grounds, or for no reason at all,            without  just cause.  It  is by no  means obvious, therefore,            that  this   provision  reasonably  engenders   a  sufficient            expectation  of  continued employment  to  create  a property            interest.                       Also, Lydon concedes  in his supplemental affidavit            below that  his discharge was not  "for disciplinary reasons"                                         -4-            and was not covered by Article 22.  Lydon  also concedes that            he did not  file a grievance challenging his  discharge under            Article 22.   Although  Lydon argues that  defendants delayed            sending  him notice of his termination in order to defeat his            right to file a  grievance, the record suggests that,  to the            contrary, the  effective date of his  termination was delayed            in  order to permit a grievance filing.  Given Lydon's stance            below and his failure even to invoke  the grievance machinery            of the collective bargaining agreement, we could not say that            it would result in a miscarriage of justice for us to decline            to permit Lydon to invoke the collective bargaining agreement            for the first time on appeal.                      For all  these reasons, this case  does not present            an appropriate occasion to  consider Lydon's argument despite            his default below.                      Finally,  Lydon also alleged  in his complaint that            defendants mistreated him in retaliation for his  filing of a            state workers' compensation claim, and attempted to interfere            with  his efforts to pursue  that claim.   The district court            did not  discuss  these allegations.    These are  framed  as            state-law allegations,  however, and,  since all  the parties            are  Massachusetts residents,  the district  court's subject-            matter  jurisdiction  over  this  case  is  premised  on  the            existence of  a federal question.   Having properly dismissed            Lydon's  federal  claims,   therefore,  the  district   court                                         -5-            appropriately  declined to exercise pendent jurisdiction over            Lydon's  state-law claims.  See United Mine Workers v. Gibbs,                                        _______________________    _____            383 U.S. 715, 726 (1966).                      We have considered  all of Lydon's  other arguments            and find them meritless.                      The  judgment of  the district  court is  affirmed.                                                                ________            See 1st Cir. R. 27.1.            ___                                         -6-
