Roberts v. the State of New York

Opinion

18-3172 Roberts 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.*

COUNTY AND DEPARTMENT OF PROBATION EMPLOYEES UNIT, LOCAL 1070, LOCAL 1070, COURT, COUNTY AND DEPARTMENT OF PROBATION EMPLOYEES, MILDRED BROWN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, SHANOMAE WILTSHIRE, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, NORMA GALLOWAY, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, CHARMAINE HARDAWAY, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, MAURICE BOUYEA, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, STEVEN SCHWARTZ, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,

Plaintiffs-Appellants,

v. No. 18-3172-cv

KATHLEEN C. HOCHUL, AS GOVERNOR OF THE STATE OF NEW YORK, REBECCA A. CORSO, AS ACTING COMMISSIONER, NEW YORK STATE CIVIL SERVICE DEPARTMENT, CAROLINE W. AHL, AS COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE COMMISSION, LANI V. JONES, AS COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE COMMISSION, ROBERT F. MUJICA, JR., AS DIRECTOR OF THE NEW YORK STATE DIVISION OF THE BUDGET, THOMAS P. DINAPOLI, AS COMPTROLLER OF THE STATE OF

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NEW YORK, Defendants-Appellees.**

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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 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’), 980 F.3d 53 (2d Cir. 2020), Donohue v. Cuomo (‘Donohue III’), 38 N.Y.3d 1 (2022), and Donohue v. Hochul, [32 F.4th 200 (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

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circumstances specific to the case, distinguish the case from Donohue.” ECF No. 119 at 2. In response, the AFSCME Plaintiffs filed a supplemental letter-brief arguing that, “[i]n light of record evidence, sufficient ambiguity exists concerning whether an implied contract existed between the parties to support a reversal of summary judgement [sic] in favor of Defendants-Appellees.” Appellants’ Supp. Letter-Br. at 3-4.

The AFSCME Plaintiffs’ breach of contract and contractual impairment claims, like those in Donohue, necessarily fail without a lifetime vested right to continuous contribution rates from the State for retirees. See Donohue IV, 32 F.4th at 206. We may consider any record evidence of the parties’ subjective intent on that point, however compelling it may be, only if the language of the CBAs is ambiguous. Donohue III, 38 N.Y.3d at 12-13. We therefore look to the arguments about the text of the CBAs made in the AFSCME Plaintiffs’ original briefs. The AFSCME Plaintiffs represent both executive-branch and judicial-branch employees, each of which have different CBAs.

With respect to executive employees, the AFSCME Plaintiffs relied in their original brief on only one CBA provision with no parallel discussed in Donohue. That provision, Section 9.1 of the executive-branch CBA, provides that “[t]he State shall continue to provide all the forms and extent of coverage as defined by

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the contracts in force on [the date of the CBA] with the State’s health insurance carriers unless specifically modified or replaced pursuant to this Agreement.” J. App’x at 387. 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, 980 F.3d at 72 (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.” Id. at 73, quoting Kolbe v. Tibbetts, 22 N.Y.3d 344, 355 (2013). The same logic would seem to apply to a provision concerning “the forms and extent of coverage.” J. App’x at 387. 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, 32 F.4th at 208. In other words, Section 9.1 is silent on a continuing right to a particular level of

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contribution payments, and thus, like the plaintiffs in Donohue, the AFSCME 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, 32 F.4th at 208; see Donohue III, 38 N.Y.3d at 17-18.

With respect to judicial employees, the AFSCME Plaintiffs relied in their original brief primarily on Section 8.1 of the 2007-2011 judicial-branch 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 benefits to the same extent, at the same contribution level and in the same form and with the same copayment structure that applies to the majority of represented Executive Branch employees covered by such plans.

J. App’x at 780. The AFSCME Plaintiffs argue that whether Section 8.1 creates a vested lifetime right to continuous contribution rates for retirees is ambiguous, because that provision, unlike any of those at issue in Donohue, expressly mentions contribution rates. That argument is not persuasive. To be sure, Section 8.1 does mention contribution rates. Conspicuously absent, however, is any language that one could reasonably read as referring to a vested right to a

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continuous contribution rate for retirees for any duration other than the duration of the CBAs.

By its plain terms, Section 8.1 of the 2007-2011 judicial-branch CBA entitles employees covered by that CBA to coverage “at the same contribution level” that the State paid for “the majority of represented Executive Branch employees.” J. App’x at 780. Tying the 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 right. 32 F.4th at 207-09. Moreover, there is no language in Section 8.1 that one could reasonably read as freezing the covered employees’ contribution rates in perpetuity at the rates that the State paid for the majority of represented executive employees at the time of any given CBA, since that provision includes no specific durational language. Again, the AFSCME Plaintiffs argue for an impermissible inference of ambiguity from silence.

We therefore hold that the district court correctly granted summary judgment to the State on the AFSCME Plaintiffs’ claims for the same reasons

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explained in Donohue IV, 32 F.4th at 206-11.

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

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Footnotes

1. LILLIAN ROBERTS, AS EXECUTIVE DIRECTOR OF THE DISTRICT COUNCIL 37, AFSCME, AFL-CIO, DISTRICT COUNCIL 37, AFSCME, AFL-CIO, DENNIS IFILL, AS PRESIDENT OF THE RENT REGULATION SERVICES UNIT EMPLOYEES, LOCAL 1359, DISTRICT COUNCIL 37, AFSCME, AFL-CIO, LOCAL 1359, RENT REGULATION SERVICES EMPLOYEES, CLIFFORD KOPPELMAN, AS PRESIDENT OF THE COURT, * 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 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998). FOR PLAINTIFFS-APPELLANTS: ERICA C. GRAY-NELSON, District Council 37, American Federation of State, County & Municipal Employees, AFL-CIO, New York, 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, District Council 37 of the American Federation of State, County & Municipal Employees, AFL-CIO (“AFSCME”) and current and former members of that union (collectively, “the AFSCME Plaintiffs”) appeal the judgment of the United States District Court for the Northern District of New ** 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).