18-3066 The New York State Police Investigators Association v. The State of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of July, two thousand twenty-two.

PRESENT: JON O. NEWMAN, GERARD E. LYNCH, Circuit Judges.*

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NEW YORK STATE POLICE INVESTIGATORS ASSOCIATION, LOCAL 4 IUPA, AFL-CIO BY ITS PRESIDENT JEFFREY KAYSER, JOSEPH BARRETT, INDIVIDUALLY, TIMOTHY MULVEY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, JAMES O'CONNOR, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, LAWRENCE SHEWARK, ON BEHALF OF HIMSELF AND ALL OTHERS

* Judge Peter W. Hall, originally a member of the panel in this case, died on March 11, 2021. The two remaining members of the panel, who are in agreement, authorized the issuance of this Summary Order. See

(d); 2d Cir. IOP E(b); United States v. Desimone,

(2d Cir. 1998). SIMILARLY SITUATED, PATRICIA HYNES, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, JEFFREY KAYSER,

Plaintiffs-Appellants,

v. No. 18-3066-cv

KATHLEEN C. HOCHUL, IN HER OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, PATRICIA A. HITE, INDIVIDUALLY, REBECCA A. CORSO, IN HER OFFICIAL CAPACITY AS ACTING COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, CAROLINE W. AHL, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE COMMISSION, LANI V. JONES, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE COMMISSION, ROBERT L. MEGNA, INDIVIDUALLY, ROBERT F. MUJICA, JR., IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NEW YORK STATE DIVISION OF THE BUDGET, THOMAS P. DINAPOLI, IN HIS OFFICIAL CAPACITY AS COMPTROLLER OF THE STATE OF NEW YORK,

Defendants-Appellees,

STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, NEW YORK STATE CIVIL SERVICE COMMISSION, NEW YORK STATE AND LOCAL RETIREMENT

2 SYSTEM, NEW YORK STATE POLICE AND FIRE RETIREMENT SYSTEM,

Defendants.

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FOR PLAINTIFFS-APPELLANTS: MARK T. WALSH, Gleason, Dunn, Walsh & O’Shea, Albany, NY.

FOR DEFENDANTS-APPELLEES: FREDERICK A. BRODIE, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, Albany, NY.

Appeal from the United States District Court for the Northern District of

New York (Mae A. D’Agostino, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants the New York State Police Investigators Association,

Local 4, IUPA, AFL-CIO (“NYSPIA”) and current and former members of that

union (collectively, “the NYSPIA Plaintiffs”) appeal the judgment of the United

States District Court for the Northern District of New York (Mae A. D’Agostino,

J.) granting summary judgment to Defendants-Appellees, various State officials

(collectively, “the State”) on all claims in this contractual and constitutional

3 dispute growing out of the State’s 2011 decision to alter its rates of contribution to

retired former employees’ health insurance plans. We assume the parties’

familiarity with the facts, the procedural history of the case, and the

specifications of issues on appeal, which we set forth only as necessary to explain

our decision.

We reserved decision in this case pending disposition of Donohue v. Hochul,

No. 18-3193-cv, which was designated both in the district court and in this Court

as the lead case of eleven related cases alleging breach of contract and

constitutional contract-impairment claims based on the alteration of State health

insurance contribution rates for retirees. Following this Court’s final disposition

of Donohue, we directed the parties in this and the other related cases “to file

letter-briefs stating their views on how their case should be resolved in light of

Donohue v. Cuomo (‘Donohue II’),

(2d Cir. 2020), Donohue v. Cuomo

(‘Donohue III’),

(2022), and Donohue v. Hochul, [

(2d Cir.

2022)] (‘Donohue IV’),” addressing in particular “the extent to which anything in

the collective bargaining agreements at issue in the case, or any other

circumstances specific to the case, distinguish the case from Donohue.” ECF No.

115 at 2.

The NYSPIA Plaintiffs’ breach of contract and contractual impairment

4 claims, like those in Donohue, necessarily fail absent provisions guaranteeing a

lifetime vested right to continuous contribution rates from the State for retirees.

See Donohue IV,

. In their supplemental letter-brief, the NYSPIA

Plaintiffs make two arguments for the existence of such a right, or at least

ambiguity concerning it, with no parallel discussed in Donohue.

First, the NYSPIA Plaintiffs cite a provision stating that “[t]he State shall

continue to provide all the forms and extent of coverage as defined by the

contracts in force on [the date of the CBA] with the State’s health and dental

insurance carriers unless specifically modified or replaced pursuant to this

Agreement.” J. App’x at 1743. While not identical, that provision is similar to one

at issue in Donohue, which provided that “[e]mployees covered by the State

Health Insurance Plan have the right to retain health insurance after retirement

upon completion of ten years of service.” Donohue II,

(alteration in

original). In Donohue II, before we had the benefit of the New York Court of

Appeals’s guidance, we noted that if “a ‘right to retain coverage after retirement’

is properly understood as a vested right . . . it is ‘plausible’ that the scope of a

vested right to coverage would encompass a right to fixed costs such as co-pays

or, perhaps, contribution rates.”

, quoting Kolbe v. Tibbetts,

,

5 355 (2013). The same logic would seem to apply to a provision concerning “the

forms and extent of coverage.” J. App’x at 1743. But the New York Court of

Appeals made clear in Donohue III that such language cannot “establish a vested

right to lifetime fixed premium contributions” that extends past the duration of

the CBA, 38 N.Y.3d at 19, and we accordingly held in Donohue IV, applying New

York law, that it cannot support an inference of ambiguity,

. In

other words, the provision that the NYSPIA Plaintiffs cite is silent on a

continuing right to a particular level of contribution payments, and thus, like the

plaintiffs in Donohue, the NYSPIA Plaintiffs “ask us to infer” the existence of a

lifetime vested right for retirees, or at least “ambiguity[,] from what the CBAs do

not say rather than anything they do say,” which, as a matter of New York law, we

may not do, Donohue IV,

; see Donohue III, 38 N.Y.3d at 17-18.

Second, the NYSPIA Plaintiffs attempt to distinguish their case from

Donohue on the ground that the State conceded in two district court filings that an

older CBA intended to last from 1999 to 2003, setting the State’s contribution

rates for active employees to 90% for individual coverage and 75% for dependent

coverage, “remained in effect” at the time that the State modified the contribution

rates for retirees. Appellants’ Supp. Letter-Br. at 9, quoting J. App’x at 204. That

6 argument is not persuasive. While the State acknowledged in its statement of

material facts below that, “[a]s of the filing of the Amended Complaint, on

February 28, 2014, the 1999-2003 CBA remained in effect,” J. App’x at 204, that

acknowledgment is immaterial because that CBA did not expressly set

contribution rates for retirees and, for the reasons explained above and in

Donohue IV,

, we cannot infer the existence of such rates from

the CBA’s silence.

The other representations to the district court that the NYSPIA Plaintiffs

cite are not the concessions that the supplemental letter-brief makes them out to

be. The NYSPIA Plaintiffs argue that by failing, in its response to the NYSPIA

Plaintiffs’ statement of material facts, to dispute the assertion that “the State . . .

presented a formal collective bargaining proposal to NYSPIA which sought to

modify the existing agreement as it pertained to the retiree health insurance

premium contribution 90%/10% and 75%/25%,” J. App’x at 2488, the State

conceded that “there was an ‘existing agreement as it pertained to the retiree health

insurance premium contribution” rates. Appellants’ Supp. Letter-Br. at 9, quoting

J. App’x at 2488 (emphasis in original). But admitting the existence of a proposal

“to modify the existing agreement as it pertained to the retiree health insurance

7 premium contribution” rates, J. App’x at 2488, is not the same thing as admitting

that that agreement, objectively and by its express terms, had anything to say

about the rates for the State’s contribution to retired former employees’ health

insurance plans. The NYSPIA Plaintiffs further argue that by acknowledging in

its summary judgment brief below that the CBAs “guaranteed that the plaintiffs

would receive the health insurance coverage that was in effect at the time of their

retirement,” Defs.’ Mem. of Law in Support of S.J., New York State Police

Investigators Ass’n v. New York, Dkt. No. 88-1, No. 11-cv-1527 (N.D.N.Y. Nov. 3,

2017), and in its reply brief “that retirees have a vested right to continued health

insurance benefits,” Defs.’ Reply Mem. of Law in Support of S.J., New York State

Police Investigators Ass’n v. New York, Dkt. No. 98, 11-cv-1527 (N.D.N.Y. Jan. 26,

2018), the State conceded that at the time of the rate modification, it was obligated

to continue providing coverage to NYSPIA retirees at the same contribution rate

set forth at the time of their retirement. However, the claimed concession does

not follow from the quoted passages. As explained above and in Donohue II,

, a reference to the same “coverage” or “benefits” does not necessarily

include contribution rates. Conceding an obligation to continue providing

“coverage” or “benefits” therefore does not imply a concession that that

8 obligation includes a particular contribution rate.

We therefore hold that the district court correctly granted summary

judgment to the State on the NYSPIA Plaintiffs’ claims for the same reasons

explained in Donohue IV,

.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9