Local 799 v. City of Providence CV-02-449-B 01/31/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Local 799 Of The International Association of Firefighters, AFL-CIO

v. Civil No. 02-449-B Opinion No.

City of Providence, et a l .

MEMORANDUM AND ORDER

Local 799 of the International Association of Firefighters,

AFL-CIO ("Local 799")a brings this civil action for declaratory

relief against the City of Providence and various City officials.

It argues that the City is violating its members' rights under

the Constitution's Contract Clause, U.S. Const, art. 1 § 10 cl.

1, because it has adopted ordinances that reduce cost of living

adjustments ("COLAS") to which the retired firefighters are

entitled under various collective bargaining agreements ("CBAs").

Defendants argue in a motion for summary judgment that Local

799's claims are barred by the doctrine of claim preclusion

because a related group of firefighters litigated and lost a

prior lawsuit raising substantially the same arguments. I.

A. Relevant Ordinances and Collective Bargaining Agreements

In December 1989, the City's Employee Retirement Board

increased the COLAS payable to the City's retired firefighters.

See Picard v. Employee Retirement Bd.,

(1st

Cir. 2001). The City Council objected to the increases and

initiated litigation in state court challenging the Board's

authority to approve the COLAs. See

. Shortly

thereafter, the Council approved a CBA for the period beginning

July 1, 1990 and ending June 30, 1992. See Ex. E ("1990-92

CBA"). The 1990-92 CBA obligated the City to give a compounded

4% compounded COLA to firefighters who retired on or after July

1, 1990 but before July 1, 1991 and a compounded 5% COLA to

firefighters who retired on or after July 1, 1991. See

The

City Council later memorialized the new COLAs in an ordinance.

See Ex. D, Providence Code of Ordinances, Ch. 1991-5 § 9 5 18(a)

("1991 Ordinance").

The City attempted to settle its claims against the

Retirement Board in 1991 by agreeing to a Consent Decree. See

- 2 - Picard,

. The Consent Decree specified that

firefighters who retired after January 1, 1990 would receive a

compounded 6% COLA. See

The City initially complied with

the Consent Decree. In 1992, however, the City Council rejected

a proposed CBA for the period beginning July 1, 1992 and ending

June 30, 1995 that would have guaranteed firefighters the COLAs

called for by the Consent Decree. See Ex. F ("1992-95 CBA").

Shortly thereafter, the Council initiated an action in state

court seeking to vacate the Consent Decree. See Picard,

.1

The City Council adopted four ordinances over the next

several years that reduced the COLAs payable to retired

firefighters. On January 6, 1994, the Council passed an

ordinance terminating the compounded 6% COLA called for by the

Consent Decree ("1994 Ordinance"). See Picard,

.

On August 5, 1995, the Council passed an ordinance specifying

that the COLA would be reduced to a simple 3%. See Ex. A,

1 This litigation ultimately was resolved by an April 3, 2000 decision of the Rhode Island Supreme Court holding that the Consent Decree was valid but covered only employees who retired on or before December 18, 1991. See

at 141-142 (citing City of Providence v. Employee Retirement Bd.,

, 1099- 1100 (R.1. 2000) ) .

- 3 - Providence Code of Ordinances, ch. 1995-17 § 9 ("1995

Ordinance"). On February 23, 1996, the Council reduced the

maximum amount of a firefighter's annual retirement benefit on

which the 3% COLA was payable to the first $10,000 of a retiree's

annual benefit. See Ex. B, Providence Code of Ordinances, ch.

1996-4 § 1 ("1996 Ordinance"). On May 28, 1998, the Council

changed the amount of the benefit on which the COLA was payable

to the first $1,000 of a retiree's monthly benefit. See Ex. C,

Providence Code of Ordinances, ch. 1998-22 § 1.

Local 7 99 and the City were unable to agree on a CBA for the

period beginning July 1, 1995 and ending June 30, 1996. The

parties submitted their disagreements to arbitration and the

arbitrators issued their decision on March 25, 1998. See Ex. G.

The arbitrators noted the parties' disagreement concerning the

cost of living issue, but declined to resolve it because the

matter was then in litigation. See id.

The parties entered into a CBA for the period beginning July

1, 1996 and ending June 30, 1999 which does not address the cost

of living issue. A subseguent CBA for the period beginning July

1, 1999 and ending June 30, 2001 provides that the cost of living

issue should be submitted to arbitration. See Ex. H. However,

- 4 - the record contains no evidence suggesting that the issue was

ever arbitrated.

B. Picard v. City of Providence

In 1999, 60 former Providence firefighters who retired after

January 1994 sued Providence in Federal District Court asserting

that the City's 1994, 1995, 1996, and 1998 Ordinances wrongfully

deprived them of COLAs to which they were entitled under the 1991

Consent Decree and the 1992-95 CBA. See Picard v. City of

Providence,

(D.N.H. 1999). The district court

resolved that case by holding that the plaintiffs were barred by

the Rooher-Feldman doctrine from litigating their claims based on

the 1994 Consent Decree and they had no enforceable rights based

on the 1992-95 CBA because it was never ratified. See id. at *3.

The First Circuit affirmed the district court's decision. See

Picard,

(1st Cir. 2001) .

II.

Local 799 claims that the 1995, 1996, and 1998 Ordinances

violate its members' rights under the Constitution's Contract

Clause because they impair contract rights to higher COLAS that

- 5 - the firefighters originally acguired under the 1990-92 CBA.2 The

defendants argue that the doctrine of claim preclusion bars Local

7 99 from making this argument because the firefighters the union

represents could have raised the union's claim in the Picard

litigation.

Because Picard is a federal court decision, federal law

determines its preclusive effect. See Mass. Sch. of Law at

Andover, Inc. v. Am. Bar Ass'n,

(1st Cir. 1998) .

The essential elements of claim preclusion are: "(1) a final

judgment on the merits in an earlier suit," (2) "sufficient

identicality between the causes of action asserted in the earlier

and later suits," and (3) "sufficient identicality between the

parties in the two suits." Perez v. Volvo Car Corp.,

(1st Cir. 2001)(guoting Gonzalez v. Banco Cent. Corp.,

(1st Cir. 1994)). Local 799 concedes that the

2 Local 799 also claimed in its complaint both that the City Council lacked power under Rhode Island law to adopt the Ordinances and that the Council violated the Rhode Island Firefighters Arbitration Act, R.I. Gen. L. § 28-9.1-9, et seq (1956 & Supp. 2001) . The union abandoned both arguments, however, by failing to respond to the defendants' summary judgment motion challenging them. See Grenier v. Cvanamid Plastics, Inc.,

(1st Cir. 1995) ("[A]n issue raised in complaint but ignored at summary judgment is deemed waived.")

- 6 - doctrine's first and third elements have been satisfied. See

Pl.'s Mem. in Opp. to Def.'s Mot. for Summ. Judg. at 15. Thus,

the only remaining issue is whether its cause of action is

substantially identical to the cause of action litigated in

Picard.

The First Circuit employs a transactional approach in

determining whether causes of action are substantially identical.

See In re lannochino,

(1st Cir. 2001) . Among the

factors that a court should consider in making this determination

are: (1) "whether the facts are related in time, space, origin

or motivation"; (2) "whether they form a convenient trial unit";

and (3) "whether their treatment as a unit conforms to the

parties' expectations."

(guoting Restatement (Second) of

Judgments § 24 (1982). Local 799 makes no attempt to address

these criteria. Instead, it merely asserts that the doctrine is

inapplicable because the plaintiffs in Picard did not make the

same arguments that it is making in this case. This response

manifests a fundamental misunderstanding of the doctrine of claim

preclusion. The doctrine reguires substantial identicality of

causes of action, not arguments. Local 799 challenges the

lawfulness of the 1995, 1996, and 1998 Ordinances, just as did

- 7 - the plaintiffs in Picard. While this case differs slightly from

Picard because Local 799 bases its challenge primarily on the

1990-92 CBA whereas the plaintiffs in Picard based their

challenge on the Consent Decree and the 1992-95 CBA, both cases

turn on the same closely related sets of facts. The only logical

way to try both cases would be to treat them as a single unit.

Accordingly, anyone with more than a marginal familiarity with

the litigation process would understand that the claims should be

treated as a single unit. Local 799's claims thus are barred by

the doctrine of claim preclusion.

This dispute has been fought in too many courtrooms for too

long a time. The firefighters had a full and fair opportunity to

challenge the lawfulness of the 1995, 1996 and 1998 Ordinances in

the Picard litigation. Their failure to take advantage of that

opportunity does not entitle them yet another day in court.

Defendants' motion for summary judgment (Doc. No. 4) is granted.

SO ORDERED.

Paul Barbadoro Chief Judge January 31, 2003 cc : Edward C. Roy, Jr., Esq. Kevin F. McHugh, Esq. Clerk, USDC-RI

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