The opinion
USCA1 Opinion
March 15, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2258
MELVIN A. BROWN,
Plaintiff, Appellant,
v.
CHICOPEE FIRE FIGHTERS, LOCAL 1710, IAFF, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Melvin A. Brown on brief pro se.
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Marshall T. Moriarty, Craig D. Robinson, and Maskell & Moriarty,
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on brief for appellees.
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Per Curiam. Melvin A. Brown appeals pro se from
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the district court's dismissal of his claims against the
Trial Court of Massachusetts, District Court Department,
Springfield Division, Small Claims Department and the Trial
Court of Massachusetts, District Court Department, Small
Claims Sessions, Chicopee Trial Court, state court
defendants, for lack of subject matter jurisdiction,
dismissal of his federal constitutional claims against
Chicopee Fire Fighters Local 1710 (the "Union") as time-
barred, and dismissal without prejudice of his state law
claims against the Union. The district court dismissed
appellant's claims in two thorough and well-reasoned opinions
dated October 8, 1991 and September 17, 1992. We affirm
based on those opinions. We add only the following comments.
On appeal, Brown's central contention is that the
district court mischaracterized his fair representation claim
as a state law claim. The district court determined that the
National Labor Relations Act did not apply to appellant, as a
municipal employee, and that, therefore, the fair
representation claim could only be brought pursuant to Mass.
Gen. L. ch. 150E. Appellant argues, however, that by
breaching its statutory obligation to provide fair
representation, the Union violated his constitutional rights
to due process of law. Therefore, he contends, the district
court has jurisdiction over the claim. Furthermore, since
the failure to represent is a "continuing event," continuing
into the present time, appellant argues, the statute of
limitations period has not yet begun to run, much less
expired.
Appellant has failed to state a federal claim with
respect to his assertion that he was denied fair
representation by the Union. Therefore, the district court
did not err in dismissing his fair representation claim for
lack of subject matter jurisdiction once it had dismissed all
of appellant's federal claims. The Union's obligation to
fairly represent appellant, if any, derives solely from state
statutory law. As the district court stated in its September
17, 1991 Memorandum and Order:
The rights of public employees in
Massachusetts are governed by the Public
Employee Collective Bargaining statute,
Mass. Gen. L. ch. 150E. Under chapter
150E, public employees may initiate
failure to represent actions with either
the Massachusetts Labor Relations
Commission or in the state court. See
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Graham v. Quincy Food Serv. Employees
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Ass'n, 407 Mass. 601 (1990); Leahy v.
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Local 1526, American Fed'n of State,
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County & Mun. Employees, 399 Mass. 341
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(1987).
There is no federal constitutional right to fair
representation.1 Therefore, appellant has failed to state a
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1. As the district court correctly concluded, appellant, as
a municipal employee, and the Union, as a municipal union,
are excluded from the National Labor Relations Act, 29 U.S.C.
185(a), and therefore appellant does not have a federal
statutory right to fair representation.
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claim pursuant to 1983 of deprivation of a constitutional
right by the Union's alleged breach of its obligation under
state law to fairly represent him. "Mere alleged misuse or
disregard of state law by state officials does not constitute
a deprivation of property without constitutional due process
of law." Malachowski v. City of Keene, 787 F.2d 704, 708 (1st
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Cir.) (citations omitted), cert. denied, 479 U.S. 1022
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(1986). Thus, the district court did not err in dismissing
appellant's fair representation claim as a state law claim.
Because we find that appellant failed to state a federal
claim, we need not decide when the statute of limitations
begins to run on appellant's failure to represent claim.
Affirmed.
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