18-3122 (L) Brown v. 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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JOHN STRANDBERG, AS PRESIDENT AND ON BEHALF OF THE NEW YORK STATE SUPREME COURT OFFICERS ASSOCIATION, JOHN CLANCY, AS PRESIDENT AND ON BEHALF OF THE COURT OFFICERS BENEVOLENT ASSOCIATION OF NASSAU COUNTY, BRENDA LEVINSON, AS PRESIDENT AND ON BEHALF OF THE COURT ATTORNEYS ASSOCIATION OF THE CITY OF NEW YORK, JOSEPH C. WALSH,

* 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). AS PRESIDENT AND ON BEHALF OF THE NEW YORK STATE COURT CLERKS ASSOCIATION,

Plaintiffs-Appellants,

v. Nos. 18-3122-cv (L), 18-3166 (C), 18-3345 (C)

KATHLEEN C. HOCHUL, IN HER OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, JANET DIFIORE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CHIEF JUDGE OF THE STATE OF NEW YORK, LAWRENCE K. MARKS, IN HIS OFFICIAL CAPACITY AS THE CHIEF ADMINISTRATIVE JUDGE OF THE COURTS OF NEW YORK STATE, PATRICIA A. HITE, INDIVIDUALLY, REBECCA A. CORSO, IN HER OFFICIAL CAPACITY AS ACTING COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE DEPARTMENT, CAROLINE W. AHL, INDIVIDUALLY AND 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, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMPTROLLER OF THE STATE OF NEW

2 YORK,

Defendants-Appellees.** ————————————————————————

FOR PLAINTIFF-APPELLANTS: STEPHEN G. DENIGRIS, The DeNigris Law Firm PLLC, Albany, NY, for Plaintiff- Appellant John Strandberg.

SETH H. GREENBERG, Greenberg Burzichelli Greenberg P.C., Lake Success, NY, for Plaintiffs-Appellants John Clancy, Brenda Levinson, and Joseph Walsh.

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.

** The Clerk of Court is directed to amend the caption as set forth above. To the extent that former state officials were sued in their official capacity, current officeholders are substituted as defendants pursuant to Federal Rule of Appellate Procedure 43(c)(2). Former New York Governor Andrew M. Cuomo, named as a defendant in both his individual and official capacities below, moved to be stricken from the caption because the district court dismissed the individual-capacity claims against him in an earlier order, see Brown v. New York,

(N.D.N.Y. 2013), and Plaintiffs-Appellants did not pursue those claims any further, in the district court or on appeal. That motion is GRANTED. J. Dennis Hanrahan and A. Gail Prudenti, also sued in their individual capacities below (and also dismissed from the case in the district court), are stricken from the caption for the same reason.

3 Plaintiffs-Appellants, officers of the New York State Supreme Court

Officers Association, the Court Officers Benevolent Association of Nassau

County, the Court Attorneys Association of the City of New York, and the New

York State Court Clerks Association (collectively, “the Court Employee Union

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 dispute growing out of

the State’s 2011 decision to alter its rates of contribution to active and 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 – and, in this case, active employees as

well. 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

4 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. 119 at 2. In response, all of the Court Employee

Union Plaintiffs except for Plaintiff-Appellant John Strandberg filed a

supplemental letter-brief arguing that their CBAs are materially distinguishable

from those at issue in Donohue, while Strandberg filed a letter informing this

Court that he did not oppose the State’s supplemental letter-brief.

The Court Employee Union Plaintiffs’ breach of contract and contractual

impairment claims, like those in Donohue, necessarily fail absent provisions

guaranteeing a vested right to continuous contribution rates from the State. See

Donohue IV,

. In arguing that their CBA, unlike those at issue in

Donohue, create such a right, the Court Employee Union Plaintiffs rely on Section

8.1 of their 2007-2011 CBA, which provides:

The State shall continue to provide health and prescription drug benefits administered by the Department of Civil Service. Employees enrolled in such plans shall receive health and prescription drug

5 benefits to the same extent, at the same contribution level and in the same form and with the same co- payment structure that applies to the majority of represented Executive Branch employees covered by such plans.

J. App’x at 518. The Court Employee Union Plaintiffs argue that since they never

negotiated a successor to their 2007-2011 CBA, that CBA remained in effect

pursuant to

-a(1)(e), and that Section 8.1 therefore

entitled active employees (until the negotiation of such a successor agreement)

and retirees for life to a continuous contribution rate equal to that applicable to

the majority of represented executive-branch employees – 90 percent for

individual coverage and 75 percent for dependent coverage.

The Court Employee Union Plaintiffs’ argument fails with respect to active

employees because Section 8.1 requires only parity with executive-branch

employees, which the State’s amendment of contribution rates for active

employees preserved. The State does not dispute that the Court Employee Union

Plaintiffs’ 2007-2011 CBA remained in effect, but argues that Section 8.1 created

“a floating contribution rate that varied with those applicable to executive-branch

employees,” even if that rate changes. Appellees’ Resp. Supp. Letter-Br. at 4. We

conclude that the State’s reading is unambiguously correct. By its plain terms,

6 Section 8.1 entitles covered employees to coverage “at the same contribution

level” that the State pays for “the majority of represented Executive Branch

employees.” J. App’x at 518. It does not qualify that entitlement by making an

exception for subsequent changes to the contribution rates for executive-branch

employees. In other words, by agreeing to Section 8.1, the Court Employee Union

Plaintiffs agreed to tie their contribution rates to those for executive-branch

employees rather than negotiating their own fixed rates. And when the State

modified its contribution rates for executive and judicial employees alike, it

continued to honor that agreement, and thus could not have breached the 2007-

2011 CBA with respect to active employees or impaired its contractual

obligations to those employees.

The Court Employee Union Plaintiffs’ argument also fails with respect to

retirees for the same reason, as well as for two additional reasons. First, tying

covered employees’ contribution rates to those of the majority of represented

executive-branch employees cannot in itself create a lifetime vested right to

continuous contribution rates for retirees, because the majority of represented

executive-branch employees were represented by the Civil Service Employees

Association (“CSEA”), whose CBAs, we held in Donohue IV, did not create such a

7 right.

. Second, there is no language in Section 8.1 that one could

reasonably read as freezing retirees’ contribution rates in perpetuity at the rate

paid for a majority of executive-branch employees at the time of retirement, since

that provision makes no mention of retirees or of any temporal duration besides

the duration of the CBA. In other words, even if active employees were entitled

to a fixed contribution rate for the duration of the CBA, it would not follow from

the express language of the CBA that retirees were entitled to that same rate for

the rest of their lives. Thus, like the plaintiffs in Donohue, the Court Employee

Union Plaintiffs “ask us to infer 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. We therefore hold

that the district court correctly granted summary judgment to the State on the

Court Employee Union Plaintiffs’ claims with respect to retirees 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

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