Maine Ass'n of Retirees v. Board of Trustees of the Maine Public Employees Retirement System ( 2014 )


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  •           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.                    Id.
    §§ 17851, 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.     Id. § 48.
    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."   Id.   Thus, while 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."   Id. § 17853(1).3
    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, 
    123 F.3d 1
    , 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. Id. § 17853(2).
    -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.          Id. § 17801(1)(B)(2).     The enumerated provisions all
    relate either to the eligibility qualifications for particular
    benefits         or   to   the   computation    of   those   benefits.       Id.
    § 17801(1)(B)(1).           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."              Id. § 17801(2).
    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."     Id. § 17801(4).
    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."   Id.
    In 2011, 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 id. § T-22.
    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.    Id. § T-10.     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 Retirees, 954 F. Supp. 2d at 50–51.               The district
    court concluded that those retirees were "entitled only to the
    'solemn contractual commitments' contained in the current version
    of Section 17801."       Id. at 50.          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.       Id. at 51 (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.    Id. at 51–54.        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., 
    744 F.3d 815
    , 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." Parker, 
    123 F.3d at 4
    .   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."        
    Id.
     at 4–5 (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, 
    431 U.S. 1
    ,
    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, 
    503 U.S. 181
    , 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.,
    
    470 U.S. 451
    , 465–66 (1985) (internal quotation marks omitted); see
    also Indiana ex rel. Anderson v. Brand, 
    303 U.S. 95
    , 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.,   
    173 F.3d 46
    ,    60   (1st    Cir.    1999),      although       we    "accord
    respectful consideration and great weight to the views of the
    [s]tate's     highest    court,"    Romein,       
    503 U.S. at 187
        (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. Trust, 
    431 U.S. at
    17 n.14;
    see also Nat'l R.R., 
    470 U.S. at 466
     ("[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.'"        Parker,      
    123 F.3d at 5
    .        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., 
    518 U.S. 839
    , 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."         Parella, 
    173 F.3d at 60
    .         A statute that "expressly
    bars future amendments that would reduce benefits already granted"
    may also satisfy the unmistakability doctrine.                    
    Id.
        "But [the]
    analysis cannot end with the bare language of the statute, since a
    clear and unequivocal intent to contract can also be demonstrated
    by circumstances." 
    Id. at 61
    ; see also R.I. Bhd. of Corr. Officers
    v. Rhode Island, 
    357 F.3d 42
    , 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, 
    55 A.3d 484
    , 490 (Me. 2012); see also Spiller
    v. State, 
    627 A.2d 513
    , 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"); 
    id.
    at 517–20 (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    R.R.,   
    470 U.S. at
    467    --    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."     
    Id. at 466
    .
    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 Parker, 
    123 F.3d at 9
     (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 Parella, 
    173 F.3d at 60
    ("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 R.R., 
    470 U.S. at 467
     (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, 
    895 F.2d 1
    , 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
    Parella, 
    173 F.3d at 59
     ("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-