United States Court of Appeals
                     For the First Circuit

No. 13-1933

  MAINE ASSOCIATION OF RETIREES; SALLY MORRISSEY; DOROTHY DAVIS;
CATHERINE RICHARD; PAUL LYNCH; MAINE STATE EMPLOYEES ASSOCIATION;
           RONA BACKSTROM; KATHLEEN KADI; ROBERT RUHLIN,

                     Plaintiffs, Appellants,

MAINE EDUCATION ASSOCIATION; ROBERT WALKER; PHILIP GONYAR; MAINE
   STATE TROOPERS ASSOCIATION; CRAIG POULIN; TIMOTHY CULBERT,

                           Plaintiffs,

                               v.

      BOARD OF TRUSTEES OF THE MAINE PUBLIC EMPLOYEES RETIREMENT
       SYSTEM; PETER M. LESLIE, individually and in his official
   capacity as Chairman for Board of Trustees of the Maine Public
Employees Retirement System; BENEDETTO VIOLA, individually and in
  his official capacity as Vice Chairman for Board of Trustees of
      the Maine Public Employees Retirement System; CATHERINE R.
SULLIVAN, individually and in her official capacity as member for
      Board of Trustees of the Maine Public Employees Retirement
    System; RICHARD T. METIVIER, individually and in his official
     capacity as member for Board of Trustees of the Maine Public
Employees Retirement System; GEORGE A. BURGOYNE, individually and
  in his official capacity as member for Board of Trustees of the
   Maine Public Employees Retirement System; KENNETH L. WILLIAMS,
 individually and in his official capacity as member for Board of
  Trustees of the Maine Public Employees Retirement System; NERIA
 DOUGLASS, individually and in her official capacity as Treasurer
   for Board of Trustees of the Maine Public Employees Retirement
System; BRIAN H. NOYES, individually and in his official capacity
 as Treasurer for Board of Trustees of the Maine Public Employees
                           Retirement System,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]
                              Before

                     Thompson, Circuit Judge,
                   Souter,* Associate Justice,
                    and Stahl, Circuit Judge.


     James T. Kilbreth, with whom George Royle V, Drummond Woodsum,
Jeffrey Neil Young, Carol J. Garvan, and McTeague Higbee were on
brief, for appellants.
     Timothy C. Woodcock, with whom Adria Y. LaRose and Eaton
Peabody were on brief, for appellees.
     Gregory G. Katsas, Craig I. Chosiad, and Jones Day on brief
for Maine Heritage Policy Center, amicus curiae.



                          June 27, 2014




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

                               -2-
             STAHL,   Circuit    Judge.    Plaintiffs   appeal   from   the

district court's grant of summary judgment on their claims that

certain amendments to Maine's public employee retirement system

violate the Contract and Takings Clauses of the United States

Constitution.     After careful consideration, we affirm.

                         I.     Facts & Background

             Plaintiffs are the Maine Association of Retirees and the

Maine State Employees Association (and several individual members

of each).1    The district court also certified the following class:

       All retired State of Maine employees and public school
       teachers whose final termination of service occurred
       before June 20, 2011, and who had become eligible to
       receive service retirement benefits from the Maine Public
       Employees Retirement System no later than that date.

Defendants are the Board of Trustees of the Maine Public Employees

Retirement System and individual officers and members thereof,

named in both their individual and official capacities. Plaintiffs

allege that their contractual rights were impaired by certain

amendments to the Maine Public Employees Retirement System (MePERS)

that had the effect of decreasing the cost-of-living adjustments

(COLAs) they otherwise would have received under the pre-amendment

law.


       1
      The Maine Association of Retirees and its individual members
filed the initial complaint.         The Maine State Employees
Association, the Maine State Troopers Association, and the Maine
Education Association, along with individual members of each,
successfully moved to intervene as plaintiffs.     Of this latter
group, only the Maine State Employees Association and its
individual members are parties to this appeal.

                                     -3-
             The district court provided a thorough review of the

legislative history of MePERS and its predecessors, see Me. Ass'n

of Retirees v. Bd. of Trs. of Me. Pub. Emps. Ret. Sys., 954 F.

Supp. 2d 38, 41–46 (D. Me. 2013), and we need not repeat it here to

answer the narrow question before us: whether Plaintiffs have a

contractual     right   to    cost-of-living        adjustments     calculated

according to pre-2011 law.          We confine our recitation to those

facts necessary to resolve this particular question.

             Maine state employees and public school teachers are

required to be members of MePERS during their employment, Me. Rev.

Stat. tit. 5, § 17651, and they do not participate in Social

Security.     An employee who works the required number of years

qualifies, upon retirement, to receive a pension that is calculated

by reference to his length of service and compensation.                    

17852.

             Maine's public employee retirement system has taken

various forms over the several decades after it was first created

exclusively for teachers in 1913, but, for our purposes, we can

begin in 1965, when COLAs were first introduced. Me. Pub. L. 1965,

ch. 337, § 4.    Under that provision, retirees were awarded a one-

time percentage increase based on the effective date of their

retirement    allowance,     with   any    future    adjustments     mirroring

adjustments to salaries of active state employees.                In 1975, the

following provision was added:


                                     -4-
     Effect on accrued benefits. No amendment to this chapter
     shall cause any reduction in the amount of benefits which
     would be due to the member based on creditable service,
     compensation, employee contributions and the provisions
     of this chapter on the date immediately preceding the
     effective date of such amendment.

Me. Pub. L. 1975, ch. 622, § 6.       The Legislature also adopted a

provision stating that a member's retirement allowance would be

determined according to the law in effect on the later of the date

of termination of service or January 1, 1976.     

          Two years later, the Legislature amended the system to

reflect that, after a six-month waiting period, all retirees would

receive annual, compounding COLA increases or decreases, matching

the percentage change in the Consumer Price Index (CPI), up to a

maximum of four percent.   Me. Pub. L. 1977, ch. 573, § 3.       This

amendment also provided that, notwithstanding any COLA adjustments,

"the amount of annual retirement allowance otherwise payable under

this chapter shall not be less than the retired member received on

the effective date of his retirement or on July 1, 1977, whichever

is greater."   

a negative CPI could, in effect,

take back prior COLA increases, the allowance could never go below

the floor set by the initial base amount.

          Then, in 1985, the laws governing the retirement system

were revised in several ways.   First, the 1975 provision governing

accrued benefits was retitled "Amendment not to cause reduction in

benefit" and was slightly modified:



                                -5-
     No amendment to this Part may cause any reduction in the
     amount of benefits which would be due to a member based
     on    creditable   service,    compensation,     employee
     contributions and the provisions of this Part on the date
     immediately preceding the effective date of the
     amendment.

Me. Pub. L. 1985, ch. 801, § 5, codified as amended at Me. Rev.

Stat. tit. 5, § 17801.2   Following the parties' and the district

court's terminology, we will refer to this provision as "Former

Section 17801." The provisions covering COLAs were codified at Me.

Rev. Stat. tit. 5, § 17806, without substantive change.          The

provision specifying the applicable law was retitled "Law governing

benefit determination," and amended to read: "[i]f a member's final

termination of service occurred on or after January 1, 1976, the

retirement system law in effect on the date of termination shall

govern the member's service retirement benefit."   

          In 1997, this court held that Maine's statutory scheme

did not evince an unmistakable intent to create private contractual

rights with respect to teachers who had not yet begun receiving

pension benefits, and therefore an amendment that reduced their

expected pension benefits did not violate the Contract Clause.

Parker v. Wakelin, 

, 2 (1st Cir. 1997).        In direct




     2
       This provision was amended again in 1987 in ways not
material to this appeal. See Me. Pub. L. 1987, ch. 739, § 25.
     3
       The retirement benefit of members whose service terminated
before that date would be governed by the law as of January 1,
1976. 

                               -6-
response to this ruling,4 the Legislature repealed Former Section

17801 and replaced it with a provision that establishes that

certain      enumerated      protections     "constitute   solemn   contractual

commitments of the State protected under the contract clauses of

the Constitution of Maine, Article I, Section 11 and the United

States Constitution, Article I, Section 10, under the terms and

conditions set out in subparagraph (2)."               Me. Pub. L. 1999, ch.

489, § 3, codified at Me. Rev. Stat. tit. 5, § 17801(1)(B).

Subparagraph (2) specifies that the contractual commitment attaches

when       the   member    satisfies   the    applicable   creditable    service

requirement.          

    The enumerated provisions all

relate either to the eligibility qualifications for particular

benefits         or   to   the   computation    of   those   benefits.       

          Among these provisions is subsection (4) of

Section 17806, which states that the twelve-month waiting period to

begin receiving COLAs may not be increased.                   The subsections

governing all other aspects of COLAs are not included on this list.

Subsection (2) specifies that the commitment set out in subsection

(1) applies only to those enumerated provisions, and that "[a]ny

provision not specifically identified in subsection 1 may be



       4
       See Labor Cmte. Amendment A to H.P. 189, L.D. 267 (May 20,
1999) ("The amendment is intended to specifically supplant the
holding of the United States Court of Appeals for the First Circuit
in [Parker] with respect to retirement benefits listed in the
amendment from the time those benefits attach as provided in the
amendment.").

                                        -7-
increased,   decreased,   otherwise     changed   or   eliminated   by   the

Legislature as to any member regardless of whether the member has

or has not met any creditable service requirement for eligibility

to receive a service retirement benefit."              

Finally, subsection (4) provides that, at any time before a member

has satisfied the creditable service requirement, "the Legislature

may   increase,   decrease,   otherwise     change     or   eliminate    any

provisions of this Part."     

          In 2009, the Legislature passed emergency legislation,

entitled "An Act To Protect Benefits for State Retirees," amending

Section 17806 to provide that, in the event of a negative CPI, the

Board would set the COLA at zero percent rather than decreasing the

amount to be paid.   2009 Me. Legis. Serv. ch. 433, § 2, codified at

Me. Rev. Stat. tit. 4, § 1358(1)(A-1).5           The stated purpose for

this amendment was to ensure "that the benefits for state retirees

are protected."   

the Maine Legislature amended the statutes

governing calculation of COLAs in two pertinent ways.            First, it

prohibited COLA payments for 2011, 2012, and 2013, 2011 Me. Legis.

Serv. ch. 380, § T-21, subject to conditions that would allow non-

cumulative COLA payments each of those years if sufficient funds




      5
       This provision was slightly revised, but not substantively
changed in any relevant sense, the following year. See 2010 Me.
Legis. Serv. ch. 473.

                                  -8-
remained in the retirement benefit reserve fund,6 

Second, it reduced the maximum COLA from 4% to 3%, and provided

that the adjustment would apply only to the first $20,000 of the

retirement benefit.    

    While the financial impact of

these changes for any individual retiree depends on multiple

factors (the annual CPI, the amount of the retiree's pension

benefit, and how many years of payments are made to the retiree or

his   beneficiary),   in   general,    retirees   stand   to   be   paid

significantly less as a result of the amendments.7

          The district court divided its analysis into two parts,

focusing first on individuals who retired after the 1999 amendment

to Section 17801. It held that the plain language of Section 17853

("[T]he retirement system law in effect on the date of termination

shall govern the member's service retirement benefit.") meant that

Section 17801, rather than Former Section 17801, applied to them.



      6
       Under this provision, the beneficiaries did receive a one-
time, non-cumulative COLA payment in 2012. The record does not
reflect whether this also occurred in 2013.
      7
       Defendants admitted Plaintiffs' statement of material facts
in its entirety for the purposes of the summary judgment motion.
With their statement, Plaintiffs submitted the declaration of John
Wakefield, formerly an employee of the Maine Legislature's Office
of Fiscal and Program Review, in which he calculated losses under
various assumed scenarios. For example, assuming a COLA of 2.85%
(matching the average CPI from 1983 to 2010), a retiree with a
$20,000 pension benefit would lose $42,364 over twenty years
compared to pre-amendment law. Changing the pension benefit to
$50,000 results in a loss of $256,607 over twenty years. If the
COLA were 4%, these losses would be $111,096 and $436,923,
respectively.

                                 -9-
Me. Ass'n of 

–51.               The district

court concluded that those retirees were "entitled only to the

'solemn contractual commitments' contained in the current version

of Section 17801."       

         Because the provisions for

calculating COLAs were not on that list, they fell squarely within

the   Legislature's    reservation    of    the   right   to   "increase[],

decrease[], otherwise change[] or eliminate[]" any non-enumerated

provision regardless of whether the member has satisfied the

creditable service requirement.       

(quoting Me. Rev. Stat.

tit. 5, § 17801(2)).     As for those individuals who retired under

Former Section 17801, the district court, reading the statutory

scheme as a whole, held that the Legislature did not unmistakably

intend to create contractual rights to COLAs as calculated under

pre-amendment law.    

–54.        This appeal followed.

                             II.     Analysis

           Our review of the district court's grant of summary

judgment is de novo.    Ardente v. Standard Fire Ins. Co., 

, 817 (1st Cir. 2014).     Summary judgment is appropriate where

"the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law."   Fed. R. Civ. P. 56(a).

           The Contract Clause provides that "[n]o State shall . . .

pass any . . . Law impairing the Obligation of Contracts."             U.S.

Const. art. I, § 10, cl. 1.    "Although the wording of the Contract


                                   -10-
Clause appears uncompromising[,] . . . the Supreme Court does not

interpret it as an absolute bar on the impairment of either

governmental or private contractual obligations." 

.   The analysis proceeds in two steps.          First, we ask "whether

a change in state law has resulted in the substantial impairment of

a contractual relationship."        

(internal quotation marks

omitted).      If    so,   we    next    inquire   whether    the   impairment

nevertheless "is reasonable and necessary to serve an important

public purpose."     U.S. Trust Co. of N.Y. v. New Jersey, 

,

25 (1977).    By agreement of the parties, only the first step was

before the district court, and so it is here.

            The first inquiry itself "has three components: whether

there is a contractual relationship, whether a change in law

impairs that contractual relationship, and whether the impairment

is substantial."      Gen. Motors Corp. v. Romein, 

, 186

(1992).     A party alleging that contractual rights arose from a

statutory enactment faces a heavy burden: "absent some clear

indication    that     the      legislature    intends   to     bind   itself

contractually, the presumption is that a law is not intended to

create private contractual or vested rights but merely declares a

policy to be pursued until the legislature shall ordain otherwise."

Nat'l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co.,

, 465–66 (1985) (internal quotation marks omitted); see

also Indiana ex rel. Anderson v. Brand, 

, 100 (1938)


                                        -11-
("The principal function of a legislative body is not to make

contracts but to make laws which declare the policy of the state

and are subject to repeal when a subsequent Legislature shall

determine to alter that policy."). The question is one of federal,

rather than state, law, Parella v. Ret. Bd. of R.I. Emps.' Ret.

Sys.,   

,    60   (1st    Cir.    1999),      although       we    "accord

respectful consideration and great weight to the views of the

[s]tate's     highest    court,"    

   (internal

quotation marks omitted).

              A statute will be found to have created contractual

obligations     "when       the   language       and    circumstances         evince      a

legislative intent to create private rights of a contractual nature

enforceable against the State."             U.S. 

n.14;

see also Nat'l 

("[T]o construe laws as

contracts when the obligation is not clearly and unequivocally

expressed would be to limit drastically the essential powers of a

legislative     body.").          "This     threshold      requirement            for   the

recognition of public contracts has been referred to as the

'unmistakability        doctrine.'"        

.        This

requirement "serve[s] the dual purposes of limiting contractual

incursions on a State's sovereign powers and of avoiding difficult

constitutional questions about the extent of state authority to

limit the subsequent exercise of legislative power." United States

v. Winstar Corp., 

, 875 (1996) (plurality opinion).


                                          -12-
                  We have said that this unmistakable intent may be shown

where       the    statute   uses   the   language     of   contract,    "expressly

authoriz[ing] a contract or expressly stat[ing] that benefits are

contractual."         

.         A statute that "expressly

bars future amendments that would reduce benefits already granted"

may also satisfy the unmistakability doctrine.                    

analysis cannot end with the bare language of the statute, since a

clear and unequivocal intent to contract can also be demonstrated

by circumstances." 

see also R.I. Bhd. of Corr. Officers

v. Rhode Island, 

, 46 n.3 (1st Cir. 2004) ("[A] litigant

seeking to overcome the hurdle of the unmistakability doctrine may

rely on not only the words used [in the statute] but also apparent

purpose, context, and any pertinent evidence of actual intent,

including legislative history . . . .") (second alteration in

original) (internal quotation marks omitted).8                  On the other hand,

an explicit reservation of the right to alter, amend, or repeal

particular         statutory   provisions        --   "hardly   the     language   of


        8
       The Maine Law Court appears to have taken a narrower view,
holding that contractual rights can arise only when the statute
"used express language to create contractual rights." Budge v.
Town of Millinocket, 

, 490 (Me. 2012); see also Spiller
v. State, 

, 515–17 (Me. 1993) (holding that Maine's
retirement system law did not create contractual rights as to
employees who had not yet satisfied the creditable service
requirement because no "intent to do so [was] clearly stated"); 

(Wathen, J., dissenting) (criticizing majority's apparent
adoption of an "iron-clad requirement" that "the statute expressly
state[] that it is a contract" as overly simple and blind to
relevant factors). As will be seen, any difference in standards is
immaterial to the resolution of this appeal.

                                          -13-
contract,"      Nat'l    

   --    will   generally

demonstrate the opposite intent with respect to the provisions and

classes of people within the reservation's scope.

             Finally, we note that the same searching inquiry must be

made "both in identifying a contract within the language of a

regulatory statute and in defining the contours of any contractual

obligation."     

             With this framework in mind, we turn to the specific

provisions here at issue.           We begin with the pre-1999 retirees,

whose retirement benefits, pursuant to Section 17853, are governed

by Former Section 17801.            As Plaintiffs have argued, several

aspects    of   the     statutory   framework,     legislative     history,   and

surrounding circumstances strongly suggest that the Legislature

intended   to    prohibit    future    legislatures       from   reducing   these

retirees' pension benefits.          Whether these aspects are sufficient

to render that intention unmistakably clear is a question we leave

for another day; for now, like the district court, we assume that

MePERS creates some contractual obligation and focus instead on

whether COLAs are included in that obligation.

             We start, as we must, with the statutory language: "No

amendment to this Part may cause any reduction in the amount of

benefits which would be due to a member based on creditable

service, compensation, employee contributions and the provisions of

this Part on the date immediately preceding the effective date of


                                       -14-
the amendment." Former § 17801. Plaintiffs assert that, since the

COLA provisions are "provisions of this Part," they necessarily are

protected against Legislative reduction.      However, the protection

extends only to benefits that are based on the "provisions of this

Part," and we cannot say that COLAs unmistakably fall within the

umbrella of benefits that Former Section 17801 protects.

          Plaintiffs   point   out   that   "benefit"   is   statutorily

defined in relevant part as "any payment made, or required to be

made, to a beneficiary under chapter 423, subchapter V," Me. Rev.

Stat. tit. 5, § 17001(6),9 and chapter 423, subchapter V, in turn,

includes the COLA provisions in Section 17806.     Defendants, on the

other hand, note that the Legislature has always distinguished the

pension benefit from cost-of-living adjustments to that benefit,

adjustments that are speculative and contingent on extra-system

factors (specifically, the change in the CPI).          See Me. Pub. L.

1965, ch. 337, § 4 (referring to COLAs as "[a]djustments in the

retirement allowances"); Me. Pub. L. 1977, ch. 573, § 3 (directing

Board to "automatically make . . . adjustments in the retirement

allowances" based on the CPI).       Section 17806 itself is entitled

"[c]ost-of-living adjustment to retirement benefits." Moreover, in



     9
       "Retirement allowance" and "retirement benefit" appear to be
used interchangeably with "benefit." See Me. Rev. Stat. tit. 5,
§ 17001(34) ("'Retirement allowance' means the retirement payments
to which a member is or may be entitled as provided in this
Part."), (35) ("'Retirement benefit' means the same as retirement
allowance.").

                                 -15-
setting the retirement-date pension amount as the floor below which

a negative CPI could not reduce the allowance, Me. Pub. L. 1977,

ch. 573, § 3(D), the Legislature arguably treated the base pension

amount as the benefit, protected against deflationary reduction,

and COLA increases as potentially temporary adjustments to that

benefit.10    Defendants thus argue that COLAs are not "benefits"

within the meaning of Former Section 17801.

             Either characterization of COLAs is possible.   In the

context of the unmistakability doctrine, this ambiguity dooms

Plaintiffs' argument.     See 

(holding that,

even if plaintiffs proffered a "possible reading" of the statute

and "some evidence" that a contractual right attaches when a member

satisfies the creditable service requirement, "the language of

section 17801 remains at best ambiguous, and we cannot find that

the legislature as a whole unmistakably intended to create contract

rights at the time that service requirements were satisfied").

Because it is not unmistakably clear that COLAs fall within the

umbrella of benefits that (we have assumed) the Legislature is




     10
        It is true that, in 2009, the Legislature passed an
emergency amendment directing the Board to set the COLA at zero
percent in the event of a negative CPI, thus treating COLAs as a
one-way ratchet, to ensure "that the benefits for state retirees
are protected." This enactment sheds no light on the intentions of
the earlier legislatures, especially insofar as it does not purport
to clarify that earlier provisions did not allow for COLA
decreases, but rather overrides those provisions allowing such
decreases.

                                -16-
contractually obligated not to reduce, the pre-1999 retirees cannot

prevail on their Contract Clause claim.11

               We turn now to the post-1999 retirees. Section 17801, as

amended, plainly and expressly creates a contractual commitment to

the retirees to whom it applies.                   See 

("Statutory language, standing alone, may evince such an intent if

it   expressly     authorizes      a    contract     or   expressly   states     that

benefits are contractual.").                Just as plainly, that commitment is

limited to certain enumerated provisions, with the Legislature

expressly reserving the right to modify, or even eliminate, any

non-enumerated provision.          See Nat'l 

(noting

that reservation of right to amend "is hardly the language of

contract").       Through the operation of Section 17853, this version

of Section 17801 applies to anyone who retired after its effective

date.        We thus have no difficulty concluding that Section 17801

affords post-1999 retirees no contractual right to COLAs (except

with respect to the length of the waiting period).

               Plaintiffs attempt to avoid this result by arguing that

subsection (2)'s reservation of the right to alter any non-

enumerated       provision   "as       to    any   member"   means   that   no   such

reservation was made as to them, as they ceased being "members"

when they retired and became "beneficiaries."                    They argue that


        11
        In light of this conclusion, we need not address the
district court's discussion of the meanings of the terms
"reduction" and "due" as used in Section 17806.

                                            -17-
Section 17801 was meant to protect against alteration of certain

benefits as to current, vested employees, and had no impact on

retirees' rights that "were already protected under Parker."              In

light of Section 17853, it is difficult to see how post-1999

retirees could benefit from whatever protections Former Section

17801 provides, given that that section was "repealed and replaced"

in 1999.    But even if Plaintiffs are right, our holding that pre-

1999 law created no contractual right to COLAs would apply with

equal force to post-1999 retirees supposedly protected by pre-1999

law.

             We hold that Plaintiffs, regardless of whether they

retired before or after the 1999 amendments, have no contractual

entitlement to COLA benefits calculated under pre-2011 law.

Therefore,    the   2011   amendments   did   not   violate   the   Contract

Clause.12




       12
       It is not clear whether Plaintiffs press their Takings claim
on appeal. They request reversal of the District Court's dismissal
of their Contract Clause and Takings Clause claims, but develop no
separate argument under the Takings Clause.         The claim is,
therefore, waived. See United States v. Zannino, 

, 17
(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived.").   In any event, the finding that Plaintiffs have no
contractual right to COLAs forecloses the Takings claim.        See

("Only if we determine that plaintiffs had
a constitutionally protected contract right to the excess benefits
can we consider whether the state took that contract right without
just compensation.").

                                   -18-
                         III.   Conclusion

          For the foregoing reasons, we affirm the district court's

grant of the Defendants' motion for summary judgment.   All parties

shall bear their own costs.




                                -19-