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[NOT FOR PUBLICATION]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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Selya and Cyr,
Circuit Judges.
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____________________

Kelly K. Lydon on brief pro se.

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Scott Harshbarger, Attorney General, and Phyllis N. Crocke
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__________________
Assistant Attorney General, on brief for appellees.
____________________
____________________

Per Curiam.
__________
affirmed essentially
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The judgment of

the district court is

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

constitutionally protected property interest in his job under

state law pursuant to Article
agreement with

the state.

part, "No employee

unit described in

22 of a collective
Article 22 states,

who has been

Article 1

employed in the

of this Agreement

bargaining
in pertinent
bargaining
for six

(6)

consecutive months or more shall be discharged, suspended, or

demoted

for

disciplinary

Defendants-appellees Jane

reasons

without

just

Malme, et al., concede

cause."
that Lydon

was covered under this agreement.

district

Lydon, however, did not

raise this argument in the

court

his claim

as a

constitutionally
Consequently,

he

basis

protected

for

property

has waived

that

he

had a

his

job.

on appeal.

See
___

interest in

the argument

Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 355 (1st Cir.

_____________________
_______
1994);

United States
_____________

1992).

Lydon's

him

v. Slade,
_____

status as a pro se litigant

of the obligation to

points

he wished

980 F.2d

27, 31

did not relieve

apprise the district

to raise in

e.g., Eagle Eye Fishing Corp.

_______________________________

favor of his

(1st Cir.

court of all

position.

See,
____

v. United States Dep't of

________________________

Commerce, 20 F.3d 503, 506 (1st Cir. 1994); Jaroma v. Massey,

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______
______

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

appropriate where all (or most of) the following

present:

(1) where

the new issue

be

factors are

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
certain
and,

of

the

issue; (3)

to be presented

in a

issue is

almost

in other cases;

failure to reach

the issue would

miscarriage of

Guardia, 902 F.2d

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the

in identical terms

above all, (4) where

result

where

justice.

1010, 1013 (1st Cir.

United States
_____________

v. La
__

1990); United States

_____________

v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).

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Lydon's
these

new

criteria.

record

For

might well

The record does

issue does

sufficiently satisfy

one thing, further

aid in

not even

bargaining agreement

not

development of the

the determination of
contain a copy

that is

of the

alleged to be

this issue.
collective

applicable; all

that we have is what purports to be a copy of the single page

of
her

the agreement that contains Article 22.

brief that Article 22 did not apply to Lydon's discharge

because he
for

Malme asserts in

was discharged not for

abandoning his position, which

disciplinary reasons, but

Malme says is covered by

-3-

another

section of the agreement.

in the

record.

The

evidence concerning
other

relevant

parties,

That other section is not

too, might

the manner in

provisions

of

have

introduced

which Article 22
the

agreement

and any

have

been

interpreted in practice.
Second,

we

cannot

say with

proper resolution of this issue may be.

certitude

what

Although it is

the
true

that other circuits have ruled that a just cause provision in

a collective
can

create a

bargaining agreement entered into

property

interest in

state employment,

e.g., Moffitt v. Town of Brookfield, 950 F.2d

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___________________
Cir. 1991), this court has yet
Bennett v. City of Boston,
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an

employee

880, 885 (2d

869 F.2d 19, 22 (1st

cannot

be

see,
____

to rule on the question.

Moreover, the provision at issue

that

by the state

See
___

Cir. 1989).

here does not clearly state

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

It

that

just cause.

this

provision

expectation

of

is by no

means obvious, therefore,

reasonably

engenders

continued employment

to

sufficient

create

a property

interest.
Also, Lydon concedes
below that

in his supplemental affidavit

his discharge was not

"for disciplinary reasons"

-4-

and was not covered by Article 22.

he did not

Although

Lydon argues that

discharge under

defendants delayed

him notice of his termination in order to defeat his

right to file a
contrary, the
in

also concedes that

file a grievance challenging his

Article 22.
sending

Lydon

grievance, the record suggests that,

effective date of his

termination was delayed

order to permit a grievance filing.

below and his failure even to invoke

to the

Given Lydon's stance

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

an appropriate occasion to

does not present

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

did not

discuss

these allegations.

state-law allegations,
are

that claim.

matter

jurisdiction

existence of
Lydon's

over

claims,

since all

the district

this

a federal question.

federal

These are

however, and,

Massachusetts residents,

The district court

case

is

framed

as

the parties

court's subjectpremised

on

the

Having properly dismissed

therefore,

the

district

court

-5-

appropriately
Lydon's

declined to exercise pendent jurisdiction over

state-law claims.

383 U.S. 715, 726 (1966).

See United Mine Workers v. Gibbs,

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We have considered

all of Lydon's

other arguments

and find them meritless.

The

judgment of

the district

See 1st Cir. R. 27.1.

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-6-

court is

affirmed.
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