Cahoon, Jr., et al v. Shelton, et al

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [10-2134]

Case: 10-2134

Document: 00116236304

Page: 1

Date Filed: 07/22/2011

Entry ID: 5567117

United States Court of Appeals
For the First Circuit

No. 10-2134
RAYMOND W. CAHOON, JR., ET AL.,
Plaintiffs, Appellants,
v.
OSCAR SHELTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF PERSONNEL FOR THE CITY OF WARWICK, ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]

Before
Howard, Selya and Thompson, Circuit Judges.

William M. Kolb, with whom Law Offices of William M. Kolb was
on brief, for appellants.
Marc DeSisto, with whom DeSisto Law was on brief, for
appellees.

July 22, 2011

Case: 10-2134

Document: 00116236304

Page: 2

SELYA, Circuit Judge.
retirement

benefits

paid

to

Date Filed: 07/22/2011

Entry ID: 5567117

We are entering an era in which

public

employees

are

subject

to

heightened scrutiny. In this case, a municipality became convinced
that former firefighters and police officers who had retired on
disability pensions were collecting a particular benefit (full
reimbursement of certain medical expenses) without legal warrant.
The municipality acted on this conviction and stopped paying the
tab.

A group of affected retirees sued to enforce continued

payment, alleging that the municipality's about-face violated state
statutes, constituted an ultra vires act, contradicted principles
of equity, and offended the Due Process Clause of the United States
Constitution.
The district court entered summary judgment against all
but three of the plaintiffs.

The court then held a bench trial and

resolved the remaining claims.
judgment rulings.
I.

The plaintiffs appeal the summary

We affirm.

BACKGROUND
We briefly rehearse the relevant factual and procedural

background, supplementing this bare-bones account in our subsequent
discussion of particular issues.
The plaintiffs comprise thirty-three retired firefighters
and police officers previously employed by Warwick, Rhode Island

-2-

Case: 10-2134

Document: 00116236304

(the City).1

Page: 3

Date Filed: 07/22/2011

Entry ID: 5567117

At various points over the past three decades, each

of them sustained a debilitating injury in the line of duty,
resulting in a grant of disability leave by the City's Board of
Public Safety (the Board).

When it became apparent that the

plaintiffs' injuries precluded a return to active duty, the Board
exercised its discretion to place them in retirement. See Warwick,
R.I., Code of Ordinances §§ 20-112(a)(1), 20-202(a)(1), 52-38(a),
52-76(a).

Each plaintiff received a disability pension that

included defined medical benefits.
The
benefit.

present

dispute

centers

on

the

extent

of

this

In the first instance, the City funds the payment of

retirees' medical expenses2 through health insurance, which covers
part, but not all, of those costs.

For many years, the City also

reimbursed excess medical expenses (i.e., expenses not covered by
insurance).

This meant that one hundred percent of each retiree's

medical expenses was reimbursed.
In 2003, the City took a fresh look at its past practice
and concluded that, in accordance with a recent decision of the
Rhode Island Supreme Court, it was not obliged to reimburse all of
a disabled retiree's medical expenses.

Consequently, the City's

1

The underlying action was originally commenced by thirtynine plaintiffs, but six have fallen by the wayside.
2

For purposes of this opinion, we limit the term "medical
expenses" to those expenses incurred to cure or relieve the effects
of injuries arising out of a firefighter's or police officer's
employment.
-3-

Case: 10-2134

Document: 00116236304

Page: 4

Date Filed: 07/22/2011

Entry ID: 5567117

personnel director, Oscar Shelton, informed the plaintiffs, by
letter dated December 11, 2003, that as of January 1, 2004, the
City would no longer reimburse medical expenses not covered by
insurance.

Because the letter directed disabled retirees instead

to the health insurance provided as part of their pensions, it had
the additional effect of requiring that, upon reaching the age of
sixty-five, disabled retirees would have to apply for Medicare.
Dismayed by this about-face, the plaintiffs asked for a
hearing before the Board.

The Board responded that

[a]lthough [the] request can be placed on the
agenda, the Board's position is, pursuant to
the [Rhode Island] Supreme Court decision,
that any retiree who has written confirmation
that the City and/or Board of Public Safety
will pay 100% of [on-the-job injury] related
medical bills after retirement will have those
bills paid in full.
Otherwise, the Board's
position is that the City's health insurance,
as part of the retirement plan, meets the
City's obligation.
After unsuccessfully presenting their claims to the City
Council, see R.I. Gen. Laws § 45-15-5, the plaintiffs brought suit
in state court against the Board, the City, and a myriad of
municipal

officials

(including

Shelton).

Their

complaint

challenged termination of the practice of fully reimbursing medical
expenses as violative of state statutory law, unauthorized, barred
by principles of equitable estoppel, and offensive to due process.
The defendants removed the action to the federal district court.
See 28 U.S.C. §§ 1331, 1441.

-4-

Case: 10-2134

Document: 00116236304

Page: 5

Date Filed: 07/22/2011

Entry ID: 5567117

In due season, the defendants sought summary judgment.
See Fed. R. Civ. P. 56.

The district court initially granted the

motion on all claims. Cahoon v. Shelton (Cahoon I), No. 07-cv-008,
2008 WL 64518, at *12 (D.R.I. Jan. 4, 2008).

On the plaintiffs'

motion for reconsideration, the court later vacated the judgment
with respect to the equitable estoppel claims.

See Cahoon v.

Shelton (Cahoon II), No. 07-cv-008, 2008 WL 6514326, at *1 (D.R.I.
Mar. 10, 2008).

After further discovery limited to the equitable

estoppel issue, the court granted summary judgment in favor of the
defendants

on

plaintiffs.

the

estoppel

claims

of

all

but

three

of

the

See Cahoon v. Shelton (Cahoon III), No. 07-cv-008,

2009 WL 1758738, at *7 (D.R.I. June 18, 2009).
The three exempted plaintiffs (James Gordon, Michael
Kraczkowski, and Thomas Thompson) tried their estoppel claims to
the court, which found that the Board had explicitly promised to
reimburse all of Gordon's and Kraczkowski's medical expenses but
had made no comparable promise to Thompson.

See Cahoon v. Shelton

(Cahoon IV), No. 07-cv-008, 2010 WL 3385040, at *3-4 (D.R.I. Aug.
26, 2010).

The court entered judgment accordingly.

Id. at *5.

The plaintiffs' timely appeal of the summary judgment rulings
followed.

The defendants have not appealed the judgments in favor

of Gordon and Kraczkowski on the bench-tried estoppel claims.

For

his part, Thompson has not appealed from the adverse findings in

-5-

Case: 10-2134

Document: 00116236304

Page: 6

Date Filed: 07/22/2011

Entry ID: 5567117

the bench trial (although he, like the plaintiffs generally,
continues to press a global claim of estoppel).
II.

ANALYSIS
In

this

venue,

the

plaintiffs

resurrect

the

same

asseverational array that they presented in the court below. After
delineating the legal standards that govern our inquiry, we address
each of the plaintiffs' four global asseverations. We then turn to
the individualized and conceptually distinct claims mounted by
Gordon and Kraczkowski.

Because the latter two claims stand on a

different conceptual footing, we hereafter use the term "the
plaintiffs" to designate all the plaintiffs other than Gordon and
Kraczkowski.
A.
Our

of

review

judgment is de novo.

Legal Standards.
a

district

court's

entry

of

summary

Dávila v. Corporación de P.R. para la

Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007).

We will affirm

the decision only if the record reveals no genuine issue as to any
material fact and discloses that the moving party is entitled to
judgment as a matter of law. Vineberg v. Bissonnette, 548 F.3d 50,
55 (1st Cir. 2008).
trial

court's

In this endeavor, we are not married to the

reasoning

but,

rather,

may

affirm

on

any

independently sufficient ground made manifest by the record.
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st
Cir. 1999).

-6-

Case: 10-2134

Document: 00116236304

Page: 7

Date Filed: 07/22/2011

Entry ID: 5567117

When interpreting state law, a federal court employs the
method and approach announced by the state's highest court.
Carolina Trucks & Equip., Inc. v. Volvo Trucks of N. Am., Inc., 492
F.3d 484, 489 (4th Cir. 2007); Nat'l Pharmacies, Inc. v. Felicianode-Melecio, 221 F.3d 235, 241-42 (1st Cir. 2000). The Rhode Island
Supreme Court has made it pellucid that in interpreting state
statutes, a court's "ultimate goal is to give effect to the purpose
of the act as intended by the Legislature."
774 A.2d 68, 75 (R.I. 2001).

Webster v. Perrotta,

"The best evidence of such intent can

be found in the plain language used in the statute."

Steinhof v.

Murphy, 991 A.2d 1028, 1036 (R.I. 2010) (quoting State v. Germane,
971 A.2d 555, 574 (R.I. 2009)).
Thus, when faced with statutory language that is clear
and unambiguous, an inquiring court ordinarily must construe the
statute precisely as it is written, giving its constituent words
their plain meanings.3

Liberty Mut. Ins. Co. v. Kaya, 947 A.2d

869, 872 (R.I. 2008).

In performing that task, the court must

"consider the entire statute as a whole."
Providence, 11 A.3d 68, 71 (R.I. 2011).

Ryan

v. City of

Only if the legislature

has sounded an uncertain trumpet should a court resort to canons of

3

We say "ordinarily" because, plain language notwithstanding,
a statute should never be construed in a way that produces an
absurd result. Ryan v. City of Providence, 11 A.3d 68, 71 (R.I.
2011).
-7-

Case: 10-2134

Document: 00116236304

statutory construction.

Page: 8

Date Filed: 07/22/2011

Entry ID: 5567117

Harvard Pilgrim Health Care of New Engl.,

Inc. v. Rossi, 847 A.2d 286, 290 (R.I. 2004) (per curiam).
B.
The

plaintiffs'

The IOD Statute.
principal

argument

hinges

on

state

statutes, municipal ordinances, and the interplay among them.

The

touchstone of this argument is the injured-on-duty (IOD) statute,
which reads in relevant part:
Whenever . . . any police officer [or] fire
fighter . . . of any city . . . is wholly or
partially incapacitated by reason of injuries
received . . . in the performance of his or
her duties . . ., the respective city . . . by
which the police officer [or] fire fighter
. . . is employed, shall, during the period of
the incapacity, pay the police officer [or]
fire fighter . . . the salary or wage and
benefits to which the police officer [or] fire
fighter . . . would be entitled had he or she
not been incapacitated, and shall pay the
medical [expenses] for the necessary period
. . . . In addition, the cities . . . shall
pay all similar expenses incurred by a member
who has been placed on a disability pension
and suffers a recurrence of the injury or
illness that dictated his or her disability
retirement.
R.I. Gen. Laws § 45-19-1(a).
The IOD statute comprises two sentences.

The district

court concluded that neither sentence was sufficient to carry the
burden of the plaintiffs' statutory argument.

The court reasoned

that the first sentence (Sentence 1) did not apply because, as
retirees, the plaintiffs were no longer employed by the City.
Cahoon I, 2008 WL 64518, at *4-5.

It concluded that application of

-8-

Case: 10-2134

Document: 00116236304

Page: 9

Date Filed: 07/22/2011

Entry ID: 5567117

the second sentence (Sentence 2) was sidetracked by the combined
effect

of

R.I.

ordinances.

Gen.

Laws

Id. at *5-8.

§

43-3-26

and

Warwick's

municipal

Consequently, the court held that the

plaintiffs were not, as a statutory matter, entitled to full
reimbursement of medical expenses.

Id. at *8.

The plaintiffs argue that the district court erred; that
Sentence 1 entitles them, even after their retirement, to full
reimbursement

of

medical

expenses;

and

that

Sentence

2

independently produces the same result.
We start with Sentence 1.

The plaintiffs maintain that

this sentence confers benefits not only during the course of
employment but also during retirement. In their view, the language
of Sentence 1 is ambiguous, and the district court's interpretation
fails to effectuate the intent of the state legislature (the Rhode
Island General Assembly).

We find this argument unpersuasive.

The language of section 45-19-1(a) is clear as a bell.
The section creates two tiers of benefits: the first, codified in
Sentence

1,

applies

to

persons

who

are

still

employed

but

temporarily disabled; the second, codified in Sentence 2, applies
to persons who are retired due to a disability.

The instruction in

Sentence 1 to pay "during the period of the incapacity" the "salary
or wage" to which the injured worker "would be entitled had he or
she

not

been

incapacitated"

unequivocally

denotes

a

person

presently employed. After all, a retiree, by definition, no longer

-9-

Case: 10-2134

Document: 00116236304

draws a salary or wages.

Page: 10

Date Filed: 07/22/2011

Entry ID: 5567117

Rather, as Sentence 2 makes manifest, a

retiree is "placed on a . . . pension."

Equally telling is the

legislature's use of the present tense ("is employed") in Sentence
1.
This reading is reinforced by the statutory description
of the benefit period as a "period of the incapacity."

That

description plainly envisions that benefits under Sentence 1 are
meant to apply for a limited time.

By contrast, Sentence 2 speaks

of "retirement" — an unlimited time. The contrary reading urged by
the plaintiffs would obliterate this line of demarcation.
If more were needed — and we do not think that it is —
fully reimbursing the medical expenses of disabled retirees under
Sentence 1 would make Sentence 2 entirely superfluous.

Courts

should avoid construing a statute in a way that will divest any of
its component parts of meaning.

See, e.g., State v. Clark, 974

A.2d 558, 572 (R.I. 2009); Brennan v. Kirby, 529 A.2d 633, 637
(R.I. 1987).

There is every reason to honor that precept here.

Our reading of section 45-19-1(a) is wholly consistent
with the case law.

The state's highest court has determined that

the language of the IOD statute is clear and unambiguous.

See

Brissette v. Potter, 560 A.2d 324, 325 (R.I. 1989); Aiudi v. Pepin,
417 A.2d 320, 321 (R.I. 1980).

In addition, our parsing of the

statute's two sentences conforms with that court's precedents.
See, e.g., Webster, 774 A.2d at 80 (concluding that the benefits

-10-

Case: 10-2134

Document: 00116236304

Page: 11

Date Filed: 07/22/2011

Entry ID: 5567117

contemplated by Sentence 1 apply to a firefighter or police officer
only "while he or she remains a member of the department" (emphasis
in original)); Brissette, 560 A.2d at 326 (stating that the "first
portion of the statute . . . relates specifically to salary" while
the second clause "relates to medical expenses for a member who has
been placed on a disability pension").
The recent case of Hagenberg v. Avedisian, 879 A.2d 436
(R.I. 2005) mirrors the circumstances with which we are confronted.
There, a retired Warwick police officer sought full reimbursement
of medical expenses under the IOD statute.

Id. at 438-39.

The

court held that Sentence 1 did not compel such reimbursement for an
officer who had retired on a disability pension.
(explaining

that

"[t]he

IOD

statute

never

was

Id. at 441-42
intended

to

supplement a retired officer's retirement benefits"). As the court
had explained in an earlier case, "[u]pon acceptance of disability
pension benefits," a plaintiff "may not . . . seek additional
benefits pursuant to § 45-19-1."

Elliott v. Town of Warren, 818

A.2d 652, 655 (R.I. 2003) (per curiam).

Here, the plaintiffs

availed themselves of the City's retirement benefits regime and
they cannot now resort to the prophylaxis of section 45-19-1.
In an effort to lessen the impact of these precedents,
the plaintiffs insist that the General Assembly, by enacting
section 45-19-1, intended to give disabled firefighters and police
officers greater benefits than those available under traditional

-11-

Case: 10-2134

Document: 00116236304

workers' compensation laws.
false light.

Page: 12

Date Filed: 07/22/2011

Entry ID: 5567117

This insistence puts the matter in a

It was only through Sentence 1, which ensures the

payment of full salary and medical benefits during the period of
temporary incapacity, that the General Assembly intended to exceed
the generosity of the workers' compensation laws.

See Labbadia v.

State, 513 A.2d 18, 21 (R.I. 1986) (describing the advantages of
the IOD statute vis-à-vis the workers' compensation laws). Nothing
in the text of section 45-19-1 suggests that the legislature's
purpose was to give injured firefighters and police officers better
retirement benefits.

See Hagenberg, 879 A.2d at 441.

This brings us to Sentence 2, which states that the City
"shall pay all similar expenses incurred by a member who has been
placed on a disability pension."

The plaintiffs' position is that

this language cinches their entitlement to full reimbursement of
medical expenses post-retirement.

The language of Sentence 2, if

read in a vacuum, gives this position a certain superficial allure.
But a court cannot — and must not — read a statute in a vacuum, and
Sentence 2 runs headlong into R.I. Gen. Laws § 43-3-26, which
directs that, in cases of irreconcilable conflict between two
legislative provisions, one general and the other specific, the
latter "shall prevail and shall be construed as an exception to the
general provision."
The specific provision applicable here is R.I. Gen. Laws
§

45-19-19,

which

authorizes

municipalities

-12-

to

"provide,

by

Case: 10-2134

Document: 00116236304

Page: 13

Date Filed: 07/22/2011

Entry ID: 5567117

ordinance or through collective bargaining, for the retirement of
the personnel of their police and fire departments who have been on
leave of absence from their employment due to . . . injuries
sustained in the performance of their duties."

Because Warwick

provides retirement medical benefits to its disabled firefighters
and police officers through a combination of city ordinances and
collective bargaining agreements (CBAs),4 the court below held that
this specific arrangement took precedence over the more general
provision

contained

in

Sentence

2

and,

therefore,

that

the

plaintiffs were not entitled to full medical benefits under section
45-19-1(a).

Cahoon I, 2008 WL 64518, at *8.

This holding is

manifestly correct.
We need not tarry.

Sentence 2 is a general provision.

It conflicts with the combination of R.I. Gen. Laws § 45-19-19 and
the City's actions in pursuance thereof.

For present purposes,

this conflict renders Sentence 2 inapposite.

See St. Germain v.

City of Pawtucket, 382 A.2d 180, 181 (R.I. 1978) (per curiam)
(concluding

that

city's

retirement

benefits

law

for

injured

firefighters was specific compared to section 45-19-1, where former

4

Warwick firefighters and police officers are afforded
pensions and health insurance coverage, regardless of whether or
not retirement is due to a disability. See Warwick, R.I., Code of
Ordinances §§ 20-101, 20-161, 52-36, 52-76 (pensions); id. §§ 2060, 52-6 (health insurance). The CBAs between the City and the
public safety unions echo these arrangements.
-13-

Case: 10-2134

Document: 00116236304

Page: 14

Date Filed: 07/22/2011

Entry ID: 5567117

was "applicable only to the city," while latter was "a general
statute which applies to all cities and towns").
The plaintiffs proclaim that there is no conflict between
section 45-19-1 and the City's retirement scheme. But the conflict
is obvious.

Warwick's ordinances provide disabled retirees with

health insurance, see Warwick, R.I., Code of Ordinances §§ 2060(a), 52-6(a), and this insurance covers some (but not all)
medical expenses, leaving the retirees responsible for the balance.
Furthermore, the insurance coverage attaches only until Medicare
can be expected to bear the load.

Id. §§ 20-60(c), 52-6(b).

This

scheme directly and ineluctably conflicts with the second sentence
of section 45-19-1(a), which requires the full payment of any
medical expenses — and does so without any Medicare hand-off.

See

Morry v. City of Warwick, 742 A.2d 1205, 1207 (R.I. 2000) (per
curiam).
The significance of this conflict is made clear by the
decision in St. Germain, which explains that the General Assembly
designed section 45-19-1 to protect only those firefighters and
police officers who are employed by "cities . . . that do not have
their own pension plans."

382 A.2d at 181.

The statute "in no way repeals or supersedes" the various
special acts that authorize municipalities to establish their own
pension and retirement benefit plans. Id.; see Trembley v. City of
Central Falls, 480 A.2d 1359, 1362 (R.I. 1984).

-14-

Thus, where a

Case: 10-2134

Document: 00116236304

Page: 15

Date Filed: 07/22/2011

Entry ID: 5567117

pension system that includes medical benefits is in effect, "§ 4519-1 may not serve as a default source of benefits."

Elliott, 818

A.2d at 655; see Hagenberg, 879 A.2d at 442 ("An injured officer
employed by a municipality that has its own retirement system is
restricted to the benefits provided by the particular statutory
scheme.").
The plaintiffs mount two additional counter-arguments.
First, they contend that the grant of health insurance coverage to
retired firefighters and police officers is effectuated not by
section

45-19-19,

but

by

section

45-2-11,

which

gives

municipalities authority to provide healthcare coverage for all
employees.

This latter statute, they say, is another general

statute, thus eliminating the perceived conflict.

This contention

is unavailing.
The ordinances that grant the City authority to provide
health insurance coverage for its retired public safety personnel
enumerate not only section 45-2-11, but also "every other power
thereunto enabling."
see id. § 52-6(a).

Warwick, R.I. Code of Ordinances § 20-60(a);
This language plainly encompasses section 45-

19-19, which addresses the narrower subset of retired firefighters
and police officers.
In all events, whether or not a conflict exists between
sections 45-19-1 and 45-2-11, there is an undeniable conflict
between both of those general provisions and the specific provision

-15-

Case: 10-2134

Document: 00116236304

of section 45-19-19.

Page: 16

Date Filed: 07/22/2011

Entry ID: 5567117

So long as that is true, section 45-2-11

cannot come to the plaintiffs' rescue.
Alternatively,

the

plaintiffs

labor

to

refute

the

conclusion that section 45-19-1 should not be read to permit, in
effect, a bifurcation of benefits (some governed by state statutes
and others governed by municipal ordinances).
WL 64518, at *6.

See Cahoon I, 2008

But the state supreme court's decision in Elliott

stands squarely in their path.

See Elliott, 818 A.2d at 654

(rejecting any "entitlement to a bifurcation of pension and medical
benefits when . . . a disability pension system is in place").
While the plaintiffs strive to distinguish Elliott on the
ground that the claimant in that case was seeking both salary and
medical expense reimbursements, id. at 653, there is no reason to
believe that the General Assembly intended a claim for one kind of
retirement benefits under section 45-19-1 to be treated differently
from a claim for some other kind of retirement benefits.
the case law suggests the opposite conclusion.

Indeed,

See Hagenberg, 879

A.2d at 441-42; see also Lanni v. Ferrante, 688 A.2d 865, 866 (R.I.
1997)

(mem.)

(concluding

that

"plaintiff,

having

voluntarily

elected to recover his disability pension benefits from [the
municipal pension] system . . . may not . . . seek benefits
pursuant to § 45-19-1"); cf. United States v. O'Neil, 11 F.3d 292,
296 (1st Cir. 1993) (noting venerable principle that grant of a
greater power includes grant of a lesser power).

-16-

Case: 10-2134

Document: 00116236304

Page: 17

Date Filed: 07/22/2011

Entry ID: 5567117

The short of it is that Sentence 2 functions as a gapfilling mechanism, assuring injured retirees that municipalities
will not leave them completely high and dry with regard to medical
expenses.5

If, however, a municipality provides medical coverage

for retirees, there is no gap to fill and, thus, no room for
section 45-19-1 to furnish default benefits.
A.2d at 442.

See Hagenberg, 879

That the benefit separately provided is less than one

hundred percent of medical expenses does not alter this reality.
See, e.g., Elliott, 818 A.2d at 655.
Here, the City has created a retirement system that
covers

its

benefits.

public

safety

retirees

and

affords

them

medical

It is this system, not Sentence 2, that dictates the

medical benefits available to the plaintiffs.
In a last-ditch effort to carry the day, the plaintiffs
assert that the City's retirement plan incorporates the benefits
due to retirees under section 45-19-1. This assertion lacks force.
To

be

sure,

some municipalities

maintain

retirement

systems which, either through legislative acts or CBAs, incorporate
the provisions of the IOD statute and provide that retirement

5

The plaintiffs suggest that Sentence 2, rather than
functioning as a gap-filler, was a legislative response to the
decision in Santanelli v. City of Providence, 250 A.2d 849 (R.I.
1969).
However, the amendment of the IOD statute to include
Sentence 2 occurred a full six years after Santanelli was decided.
The alleged cause-and-effect relationship is pure conjecture and,
in any event, Sentence 2's language is inhospitable to the
suggestion.
-17-

Case: 10-2134

Document: 00116236304

Page: 18

Date Filed: 07/22/2011

Entry ID: 5567117

benefits for disabled public safety officers should be distributed
accordingly.
however,

is

See, e.g., Brissette, 560 A.2d at 325.
not

among

that

number.

Nothing

in

Warwick,

the

City's

ordinances or CBAs indicates an intent to integrate the terms of
section 45-19-1 into the City's retirement system.

There would be

no justification in straining to reach such a result by judicial
fiat.
Hagenberg confirms this understanding.

The court there

explicitly stated that an officer who "retires with a disability
pension . . . forfeits the benefits of § 45-19-1, unless the
municipality has no disability pension system."

879 A.2d at 442.

The court's statement that the component of the City's retirement
system that paid medical benefits was "in accordance with the IOD
statute," id. at 443, signifies only that the City maintained a
disability

retirement

system

that

provided

medical

benefits

sufficient to obviate any need to resort to default benefits under
section 45-19-1. Thus, we conclude that the plaintiffs' claims for
full reimbursement of medical expenses by operation of the IOD
statute, whether seen in terms of Sentence 1 or Sentence 2, are
without merit.
C.

Ultra Vires.

When the City came to the belated realization that its
practice of fully reimbursing disabled retirees' medical expenses
was gratuitous, its personnel director (Shelton) put a stop to it.

-18-

Case: 10-2134

Document: 00116236304

Page: 19

Date Filed: 07/22/2011

Entry ID: 5567117

The plaintiffs contend that the decision as to whether to halt the
practice was the Board's prerogative and that, therefore, Shelton's
unilateral action was ultra vires.6
The plaintiffs' contention puts the cart before the
horse. Warwick's ordinances explicitly provide that the Board "has
the responsibility for approving all applications for retirement,
death, termination, and disability benefits."

Warwick, R.I., Code

of Ordinances §§ 20-137, 20-262; see id. §§ 52-36, 52-39, 52-76,
52-77, 52-80.

Hence, the Board is the only entity in the City that

has the authority to authorize full reimbursement of medical
expenses.

This is crucial because the record is barren of any

evidence that the Board ever authorized the full reimbursement
practice on a global basis.
Without

such

an

authorization

from

the

Board,

the

payments made by the City to reimburse medical expenses were
themselves ultra vires.

It follows inexorably that no special

authorization was needed to halt them. After all, when a party has
no lawful right to receive payments from the public fisc, halting
the

stream

of

unauthorized

payments

6

requires

no

particular

To the extent that the plaintiffs challenge the propriety of
summary judgment because the record is silent as to whether the
Board approved full reimbursement of medical expenses globally,
that challenge is bootless. A party who bears the burden of proof
on an issue cannot defeat summary judgment by relying on
speculation about the facts. Ahern v. Shinseki, 629 F.3d 49, 54
(1st Cir. 2010).
Such a party must offer "definite, competent
evidence to rebut the motion." Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).
-19-

Case: 10-2134

Document: 00116236304

formality.
1999).7

Page: 20

Date Filed: 07/22/2011

Entry ID: 5567117

See Town of Johnston v. Pezza, 723 A.2d 278, 283 (R.I.
Absent

some

equitable

barrier

to

the

cessation

of

unauthorized payments (a matter to which we shortly shall return),
a municipality is allowed to correct an ultra vires practice
regardless of which municipal officer brings it to a halt.

See id.

at 284; Almeida v. Zoning Bd. of Review of Tiverton, 606 A.2d 1318,
1321 (R.I. 1992); see also Pub. Serv. Co. of N.H. v. Town of West
Newbury, 835 F.2d 380, 383 (1st Cir. 1987) (discerning no authority
for the proposition that a municipality cannot "nullif[y] an action
invalid from the beginning").
D.

Equitable Estoppel.

The plaintiffs next invoke the equitable exception to the
halting of an ultra vires practice, positing that the City's
prolonged reimbursement of medical expenses estops it from changing
course at this late date.

The district court rejected this global

theory, Cahoon III, 2009 WL 1758738, at *7, even though it found
that specific estoppel-creating promises had been made to Gordon
and Kraczkowski, Cahoon IV, 2010 WL 3385040, at *4-5.
To succeed on an equitable estoppel claim, a party must
establish that the defendant made "an affirmative representation

7

The plaintiffs insist that Pezza is off-point because the
person terminating the unlawfully issued building permit had
authority to rescind permits not in compliance with the town's
zoning requirements.
But this is a distinction without a
difference. What matters is that the initial act was unauthorized
and, therefore, a nullity. See Town of Charlestown v. Beattie, 422
A.2d 1250, 1252 (R.I. 1980).
-20-

Case: 10-2134

Document: 00116236304

Page: 21

Date Filed: 07/22/2011

Entry ID: 5567117

. . . directed to [him] for the purpose of inducing [him] to act or
fail to act in reliance thereon," and that such representation "did
induce [him] to act or fail to act to his injury."

Prov. Teachers

Union v. Prov. Sch. Bd., 689 A.2d 388, 391-92 (R.I. 1997) (quoting
Lichtenstein v. Parness, 99 A.2d 3, 5 (R.I. 1953)); accord Saccucci
Auto Grp., Inc. v. Am. Honda Motor Co., 617 F.3d 14, 27 (1st Cir.
2010) (applying Rhode Island law).

With respect to a governmental

entity, estoppel "must be predicated upon the acts or conduct of
[the public entity's] officers, agents or official bodies acting
within the scope of their authority." Potter v. Crawford, 797 A.2d
489, 492 (R.I. 2002) (per curiam) (internal quotation omitted).
Measured against these benchmarks, the plaintiffs' estoppel claims
are triply flawed.
The first flaw is the absence of any evidence that the
Board made either a promise or an affirmative representation to
disabled firefighters and police officers generally that the City
would fully reimburse disabled retirees' medical expenses.

For

aught that appears from the record, the Board was not consulted.
In the absence of such evidence, the district court appropriately
granted summary judgment on the equitable estoppel claims.

See

Ret. Bd. of Emps.' Ret. Sys. v. DiPrete, 845 A.2d 270, 284 (R.I.
2004).
The second flaw is equally destructive to the fabric of
the plaintiffs' argument.

"[T]he doctrine of equitable estoppel

-21-

Case: 10-2134

Document: 00116236304

Page: 22

Date Filed: 07/22/2011

Entry ID: 5567117

should not be applied against a governmental entity . . . when, as
here, the alleged representations or conduct relied upon were ultra
vires."

Romano v. Ret. Bd. of Emps.' Ret. Sys., 767 A.2d 35, 38

(R.I. 2001).

Because the City's full reimbursement of medical

expenses was ultra vires, see supra Part II(C), the claims for
equitable estoppel founder.

See, e.g., Tech. Investors v. Town of

Westerly, 689 A.2d 1060, 1062 (R.I. 1997).
Third, and finally, the Rhode Island Supreme Court has
noted that "[t]he key element of an estoppel is intentionally
induced

prejudicial

reliance."

El

Marocco

Club,

Inc.

v.

Richardson, 746 A.2d 1228, 1234 (R.I. 2000) (quoting E. Greenwich
Yacht Club v. Coastal Res. Mgmt. Council, 376 A.2d 682, 686 (R.I.
1977)).

The plaintiffs have proffered nothing to show that the

City intentionally induced reliance on a continuation of full
reimbursement (indeed, they have not even identified a reason why
the City might have wanted to induce such reliance).

The lack of

any such proof is, in itself, a sufficient basis for summary
judgment on these claims.

See Leiter v. Allstate Ins. Co., 725

A.2d 882, 883-84 (R.I. 1999) (per curiam).
E.

Due Process.

The plaintiffs' last remonstrance charges that Shelton's
termination of the past practice without a hearing took their
property without due process of law.
occupy us for long.

-22-

This remonstrance need not

Case: 10-2134

Document: 00116236304

It

is

Page: 23

apodictic

Date Filed: 07/22/2011

that

the

Entry ID: 5567117

Constitution

"imposes

constraints on governmental decisions which deprive individuals of
. . . 'property' interests within the meaning of the Due Process
Clause."
tasked

Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

with

property

determining

interest

exists

whether
must

a

constitutionally

look

to

"existing

A court
protected

rules

or

understandings that stem from an independent source such as state
law."

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972). A party's unilateral expectation, in itself, cannot create
a constitutionally protected property interest.

Webb's Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980); Young v.
Wall, 642 F.3d 49, 53 (1st Cir. 2011).
The plaintiffs have not identified any source that would
give rise to a constitutionally protected property interest in the
continuation of full reimbursement.

For example, there is no

statutory requirement that the City reimburse retired firefighters
and police officers for medical expenses beyond what is already
provided through the retirement system. See supra Part II(B). Nor
have the plaintiffs shown a property interest forged through the
operation of equitable principles. See supra Part II(D). While we
do not question the sincerity of the plaintiffs' desire to continue
receiving full reimbursement, such a desire, unanchored in a state
law or rule, is not enough to ground a procedural due process

-23-

Case: 10-2134

claim.8

Document: 00116236304

Page: 24

Date Filed: 07/22/2011

Entry ID: 5567117

See, e.g., Young, 642 F.3d at 55; Centro Medico del

Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st Cir.
2005).
F.

Gordon and Kraczkowski.

As we already have explained, Gordon and Kraczkowski
prevailed at a bench trial on their estoppel claims because the
Board had made specific commitments to them.

Consequently, they

continue to receive full reimbursement of medical expenses.
Nevertheless, they contend that judgment should not have been
entered against them on their ultra vires and procedural due
process claims.
Gordon and Kraczkowski have not explained what other or
further relief they might be entitled to receive on these theories.
They simply assert, without elaboration and in conclusory fashion,
an entitlement to relief.

We long have held that claims asserted

in a perfunctory manner, unaccompanied by developed argumentation,
are deemed abandoned.
(1st Cir. 1990).
Another

United States v. Zannino, 895 F.2d 1, 17

So it is here.
infirmity

is

apparent.

The

district

court

granted summary judgment on the ultra vires and procedural due
process claims, see Cahoon I, 2008 WL 64518, at *9-11, before

8

The plaintiffs make a feeble attempt to argue that the
termination of full reimbursement deprived them of substantive due
process. This argument appears for the first time in their reply
brief. It is, therefore, waived. See Sandstrom v. ChemLawn Corp.,
904 F.2d 83, 86 (1st Cir. 1990).
-24-

Case: 10-2134

Document: 00116236304

Page: 25

Date Filed: 07/22/2011

Entry ID: 5567117

Gordon and Kraczkowski, in a later bench trial, established the
existence of specific promises of full reimbursement, see Cahoon
IV, 2010 WL 3385040, at *5. This changed factual finding presented
an avenue by which Gordon and Kraczkowski could, and should, have
sought the additional relief they desired.
Co., 831 F.2d 22, 24 (1st Cir. 1987).

See In re Sun Pipe Line
But neither Gordon nor

Kraczkowski ever asked the district court to modify its earlier
judgment on the ultra vires and due process claims in light of
Cahoon IV.

See Fed. R. Civ. P. 59(e); In re Sun Pipe Line, 831

F.2d at 24 (explaining that a motion asking "the court to modify
its earlier disposition of a case because of an allegedly erroneous
legal result is brought under Fed. R. Civ. P. 59(e)").
"[I]t is black letter law that it is a party's first
obligation to seek any relief that might fairly have been thought
available in the district court before seeking it on appeal."
Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989).
Kraczkowski flouted this obligation.
this

case,

we

see

no

reason

to

Gordon and

Given the circumstances of
consider

their

request

for

additional (unspecified) relief as a matter of first impression.
See, e.g., Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 22 n.9
(1st Cir. 1989).
III.

CONCLUSION
To sum up, government officials have a solemn duty to

expend public funds in accordance with law. Although we understand

-25-

Case: 10-2134

Document: 00116236304

Page: 26

Date Filed: 07/22/2011

Entry ID: 5567117

the plaintiffs' frustration — after all, the City buoyed their
hopes when it mistakenly plunged ahead, over a period of years, to
make full reimbursement of disabled public safety retirees' medical
expenses — they have not, as a class, shown any basis in law or in
equity sufficient to force the City to perpetuate this erroneous
practice.

Taxpayers, too, have rights.
We

Kraczkowski.

do,

however,

make

an

exception

for

Gordon

and

Each of them has succeeded in making out a claimant-

specific case for estoppel.

They have earned the right to the

relief that the district court ordered.
We need go no further.

The district court patiently

explored the complexities of these tangled issues and reached a
correct result.

Affirmed.

-26-