United States Court of Appeals For the First Circuit

No. 21-1632

BRANDON BARTH; MARK CAMPOPIANO; DAVID JUBINVILLE; JUSTIN RUTKIEWICZ; RYAN SHORE,

Plaintiffs, Appellants,

v.

CITY OF CRANSTON, by and through its Treasurer David A. Capuano; INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 301; MATTHEW J. JOSEFSON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Barron, Chief Judge, Selya and Howard, Circuit Judges.

Edward C. Roy, Jr. for appellants. Vicki J. Bejma, with whom Robinson & Clapham were on brief, for appellee City of Cranston. Carly Beauvais Iafrate, with whom Law Office of Carly Beauvais Iafrate, PC was on brief for appellees International Brotherhood of Police Officers, Local 301 and Matthew J. Josefson.

August 11, 2022 HOWARD, Circuit Judge. Brandon Barth, Mark Campopiano,

David Jubinville, Justin Rutkiewicz, and Ryan Shore (collectively,

"Plaintiffs"), sergeants in the City of Cranston Police

Department, appeal the district court's grant of summary judgment

in favor of the City of Cranston (the "City"), the International

Brotherhood of Police Officers, Local 301 (the "Union"), and

Matthew J. Josefson. Plaintiffs argue that the district court

erred in ruling against their hybrid breach of contract and fair

representation claim against the City and the Union, their Takings

Clause claim against the City, and their claim for declaratory

relief against the City at summary judgment. We affirm the

district court's grant of summary judgment.

I.

We briefly set forth the relevant facts; a fuller

rendition can be found in the district court's opinion. See Barth

v. City of Cranston ex rel. Capuano,

(D.R.I.

2021).

This dispute stems from an incident in 2013, when City

of Cranston Police Sergeant Josefson accepted a demotion in order

to avoid facing disciplinary charges following an internal affairs

investigation. In 2016, Josefson sued the City in Rhode Island

federal district court, alleging civil rights violations relating

to the demotion. In July 2016, Josefson and the City reached a

settlement agreement (the "Settlement Agreement"), without the

- 2 - participation of the Union, which involved the entry of a Consent

Judgment and the reinstatement of Josefson to the rank of sergeant.

When Josefson was restored to the rank of sergeant, the

police department employed twenty sergeants, though its collective

bargaining agreement ("CBA") limited the number of sergeants to

nineteen. The City decided to continue employing them all and to

allow one position to go away through attrition.

Plaintiffs in this case were promoted to the rank of

sergeant during the three-year period between Josefson's demotion

and reinstatement, and Josefson's reinstatement moved them all

down one position in sergeant rank seniority. Seniority rights

impact the Plaintiffs' overtime, compensatory time, acting out of

rank time, vacation picks, and attendance at trainings and schools.

Plaintiffs pushed the Union to file a grievance on their behalf to

have their seniority restored ahead of Josefson's. The Union

refused to do so because it concluded, based on legal advice, that

an arbitrator lacked the power to undo the Consent Judgment and

reorder the sergeants' seniority. Plaintiffs then appealed to

their national union, which denied the appeal.

The Union did, however, bring its own grievance,

pressing the City to retain the twentieth sergeant position

permanently. Following arbitration, the arbitrator found that the

City had violated the CBA in "[r]eaching an agreement with a

private attorney, without involving the Union" in the Josefson

- 3 - matter. The arbitrator ordered the City to, inter alia, "bargain

over the impact of the Consent Judgment to the extent that the

subjects raised by the Union are mandatory subjects of bargaining."

The City filed a petition in state court to vacate the award, which

was denied in December 2019.

In the meantime, Plaintiffs brought suit in Rhode Island

state court in December 2017. Upon the addition of a Takings

Clause claim, the defendants removed the case to Rhode Island

federal district court in March 2020. See

, 1441.

In their Fourth Amended Complaint, Plaintiffs made the following

claims: (1) Count One, seeking declaratory relief under Rhode

Island's Uniform Declaratory Judgments Act, R.I. Gen. Laws § 9-

30-1 to -16, against the City, (2) Count Two, breach of contract,

against the City, (3) Count Three, breach of the duty of fair

representation, against the Union, and (4) Count Four, violation

of the Takings Clause, U.S. Const. amend. V, and the Rhode Island

constitution, R.I. Const. art. I, § 16, against the City.

In July 2021, the district court heard argument on

motions for summary judgment filed by the defendants. On August

2, 2021, the district court granted summary judgment in favor of

the defendants on all counts. See Barth, 552 F. Supp. 3d at 237.

The district court considered the breach of contract claim against

the City and the breach of duty of fair representation claim

against the Union together, as a hybrid claim, meaning that if

- 4 - Plaintiffs could not prove one of the claims, both would fail. It

held that Plaintiffs had not made the minimal showing necessary to

warrant a jury trial that the Union had acted in bad faith,

discriminatorily, or otherwise arbitrarily. Because the fair

representation claim failed, so too did the breach of contract

claim and the request for declaratory judgment. Id. at 239-40.

As to the Takings Clause claim, the district court found that it

failed because there was no evidence that the Plaintiffs' seniority

rights were taken for the public use, and because a mere

expectation of seniority rights was not property. Id. at 240.

Plaintiffs timely appealed the grant of summary

judgment.

II.

Our review of a grant of summary judgment is de novo,

and the record is examined in the light most favorable to the non-

moving parties. See Hardy v. Loon Mountain Recreation Corp.,

(1st Cir. 2002). "Summary judgment is appropriate if

the record shows that there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law."

Id.; see also Fed. R. Civ. P. 56(a).

1. Hybrid Fair Representation and Breach of Contract Claim

Plaintiffs' joint cause of action against the City for

breach of contract and the Union for breach of the duty of fair

representation is commonly referred to as a "hybrid" claim. Miller

- 5 - v. U.S. Postal Serv.,

(1st Cir. 1993); MacQuattie

v. Malafronte,

, 636 & n.3 (R.I. 2001) (noting that

"Rhode Island's labor relations laws parallel federal statutes"

and citing to federal case law concerning hybrid claims). The two

claims are "inextricably linked," meaning that if Plaintiffs fail

to prove one of them, the other must also fail. Miller,

(quoting Demars v. Gen. Dynamics Corp.,

(1st

Cir. 1985)). We conclude that the district court properly granted

summary judgment with respect to the fair representation claim, so

we do not consider the breach of contract claim.

"[A]s the exclusive bargaining representative," the

Union has a statutory duty "to serve the interests of all members

without hostility or discrimination toward any, to exercise its

discretion with complete good faith and honesty, and to avoid

arbitrary conduct." Vaca v. Sipes,

(1967). In

order to make out a claim for a union's breach of this duty of

fair representation, Plaintiffs must show that the Union "act[ed]

discriminatorily, in bad faith, or arbitrarily toward a union

member." Emmanuel v. Int'l Bhd. of Teamsters, Loc. Union No. 25,

(1st Cir. 2005). "Any substantive examination

of a union's performance . . . must be highly deferential,

recognizing the wide latitude that negotiators need for the

effective performance of their bargaining responsibilities." Air

Line Pilots Ass'n, Int'l v. O'Neill,

(1991).

- 6 - Plaintiffs argue that the Union had a duty, after the

arbitrator ruled in favor of the Union's grievance, to bargain

with the City over their seniority rights. They argue that they

have set forth facts showing that the Union bargained in only a

"perfunctory" manner. Plaintiffs rely on Penntech Papers, Inc. v.

NLRB for the proposition that the Union had a duty to bargain over

their seniority rights "in a meaningful manner and at a meaningful

time."

, 26 (1st Cir. 1983) (quoting First Nat'l Maint.

Corp. v. NLRB,

(1981)).

None of the evidence set forth by Plaintiffs would permit

a reasonable jury to conclude that the Union acted in a manner

that was discriminatory, in bad faith, or arbitrary. In Vaca, the

Supreme Court stated that "a union may not arbitrarily ignore a

meritorious grievance or process it in perfunctory fashion,"

, but there is no evidence that the Union here did so.

When Plaintiffs filed their grievance, the Union opted not to

pursue it based on its understanding of legal advice that an

arbitrator would not be able to alter the terms of the Consent

Judgment. As the Union points out, the Union's assessment as to

whether the Consent Judgment could be altered by an arbitrator did

not even need to be correct to defeat a fair representation claim;

it is sufficient that the evidence shows that the Union

investigated the grievance and made a rational decision as to

whether to pursue it. See Emmanuel,

; see also

- 7 - Bryan v. Am. Airlines, Inc.,

(1st Cir.) ("[M]ere

negligence or erroneous judgment does not constitute a breach of

the duty of fair representation."), cert. denied,

(2021).

Nothing about the arbitrator's findings affects the

rationality of the Union's decision not to press Plaintiffs'

seniority rights with the City. Indeed, the arbitrator's decision

states that "[w]hile the parties may have no authority to alter

the Court Judgment, they do have the ability to negotiate other

matters," which is in accordance with the Union's view that any

remedy would have to be consistent with the Consent Judgment.

Moreover, the arbitrator ordered the City to bargain with the

Union, not the other way around. Plaintiffs doubtless would have

preferred the Union to bargain over reordering the sergeants'

seniority, but "disappointment, without more, does not give rise

to a claim against the Union for breach of its duty of fair

representation." Williams v. Sea-Land Corp.,

(1st

Cir. 1988).

2. Takings Clause Claim

The Takings Clause states that "private property" shall

not "be taken for public use, without just compensation." U.S.

Const. amend. V; see also R.I. Const. art. I, § 16 ("Private

property shall not be taken for public uses, without just

compensation."). The Takings Clause applies to the states through

- 8 - the Fourteenth Amendment. See Hoffman v. City of Warwick,

(1st Cir. 1990). Plaintiffs argue that they had

property rights in their seniority, which the City took without

just compensation.

"[F]ederal constitutional law determines whether the

interest created by the state rises to the level of 'property,'

entitled to the various protections of the Fifth and Fourteenth

Amendments."

The Takings Clause protects only vested property

interests, not mere expectancies.

. In Hoffman, this

court found that "any expectancy that seniority enhancement . . .

would continue to exist d[oes] not give rise to a property right

protected by the Takings Clause."

Plaintiffs argue that

Hoffman is distinguishable because, in that case, there was no

contractual right to seniority enhancements, whereas Plaintiffs'

seniority is conferred by the CBA. However, Plaintiffs do not

point to authority showing that they have a vested property

interest in seniority conferred by the CBA.1

Rather, this circuit has held that "[s]eniority, like

any other benefit deriving exclusively from collective bargaining

1 Plaintiffs cite two cases, neither of which is on point in light of more directly applicable precedent. The first is Hebert v. City of Woonsocket ex rel. Baldelli-Hunt,

(R.I. 2019), which is a case regarding health insurance payments for retirees that was decided under the Contracts Clause. The second is Ruckelshaus v. Monsanto Co.,

(1984), a case decided under the Takings Clause about intellectual property, which did not involve a collective bargaining agreement.

- 9 - agreements, does not vest in employees." Wightman v. Springfield

Terminal Ry. Co.,

(1st Cir. 1996). This is

because "seniority rights are subject to revision or even

abrogation with the termination or renegotiation of the collective

bargaining agreement." Id.; see also Hass v. Darigold Dairy Prods.

Co.,

(9th Cir. 1985) ("[S]eniority rights are

creations of the collective bargaining agreement, and so may be

revised or abrogated by later negotiated changes in this agreement.

Employee seniority rights are not 'vested' property

rights . . . ."); Oddie v. Ross Gear & Tool Co.,

(6th Cir. 1962).

Further, that the City is a party to the CBA does not

lend constitutional dimension to this action. "[A] simple breach

of contract does not amount to an unconstitutional deprivation of

property." Redondo-Borges v. U.S. Dep't of Hous. & Urb. Dev.,

(1st Cir. 2005). Even if the City did breach the CBA

in entering into the Settlement Agreement without consulting with

the Union, "the existence of a state contract, simpliciter, does

not confer upon the contracting parties a constitutionally

protected property interest."

Since Plaintiffs have not

demonstrated that they have a constitutionally backed property

interest, their Takings Clause claim must fail.

- 10 - 3. Declaratory Judgment Claim

Plaintiffs argue that the district court erred in not

granting declaratory relief pursuant to Rhode Island's Uniform

Declaratory Judgments Act to vacate the seniority portion of the

Consent Judgment. Under Rhode Island law, the "purely

discretionary" decision to grant or deny declaratory relief is

reviewed "with an eye to whether the court abused its discretion,

misinterpreted the applicable law, overlooked material facts, or

otherwise exceeded its authority." Sullivan v. Chafee,

(R.I. 1997). There was no such abuse of discretion in

this case.

The district court did not err in refusing to vacate the

portion of the Consent Judgment restoring Josefson's seniority

ahead of Plaintiffs'. A court may set aside a judgment in order

"to remedy a 'grave miscarriage of justice.'" Gillis v. Chase,

(1st Cir. 2018) (quoting Fontanillas-Lopez v. Morell

Bauzá Cartagena & Dapena, LLC,

, 63 n.12 (1st Cir.

2016)). Federal Rule of Civil Procedure 60(d) states that a court

also may "entertain an independent action to relieve a party from

a judgment, order, or proceeding," "grant relief . . . to a

defendant who was not personally notified of the action," or "set

aside a judgment for fraud on the court."2 None of these

2 The rules for setting aside a judgment in equity in Rhode Island are similar. See Sloat v. City of Newport ex rel. Sitrin,

- 11 - situations here applies. As outlined above, there has been no

miscarriage of justice. Plaintiffs requested that the Union file

a grievance on their behalf, as they were entitled to do, and the

Union did not breach its duty of fair representation towards them

in declining to pursue it. Nor do any of the situations set forth

in Federal Rule of Civil Procedure 60(d) apply to Plaintiffs, as

they were not parties to the action between the City and Josefson

and they have not alleged a fraud on the court.

In support of their argument, Plaintiffs contend that

the City improperly amended the CBA by entering into the Settlement

Agreement with Josefson and allowing him to receive seniority for

the years in which he was demoted. They further argue that this

"amendment" to the CBA effected by the Consent Judgment is not

valid because any such amendment must be ratified by the City

Council, which did not ratify the Consent Judgment in this case.

A purported breach of contract, however, is not an amendment to

the contract. Plaintiffs also argue that seniority must take

(R.I. 2011) ("A party seeking relief from a judgment via an independent action in equity must satisfy all the following traditional elements: '(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.'" (emphasis omitted) (quoting Allstate Ins. Co. v. Lombardi,

(R.I. 2001))).

- 12 - precedence over a settlement agreement, citing U.S. Airways, Inc.

v. Barnett,

(2002). Barnett concerns the interaction

between seniority and reasonable accommodations under the

Americans with Disabilities Act,

, and has no

relevance to the instant case.

Affirmed.

- 13 -