18-3140 Spence 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.*
————————————————————————
WAYNE SPENCE, AS PRESIDENT OF THE NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, KAREN DANISH, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, JAMES CARR, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, ROBERT H. HARMS, JR., ON BEHALF OF
* 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).
1 THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, KENNETH R. HUNTER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, MARY REID, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, CALVIN THAYER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, RAYMOND FERRARO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO,
Plaintiffs-Appellants,
v. No. 18-3140-cv
KATHLEEN C. HOCHUL, AS GOVERNOR OF THE STATE OF NEW YORK, PATRICIA A. HITE, INDIVIDUALLY, REBECCA A. CORSO, IN HER OFFICIAL CAPACITY AS ACTING COMMISSIONER, NEW YORK STATE CIVIL SERVICE DEPARTMENT, CAROLINE W. AHL, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE COMMISSION, J. DENNIS HANRAHAN, INDIVIDUALLY, 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
2 OFFICIAL CAPACITY AS COMPTROLLER OF THE STATE OF NEW YORK, MICHAEL N. VOLFORTE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE GOVERNOR’S OFFICE OF EMPLOYEE RELATIONS,
Defendants-Appellees.** ————————————————————————
FOR PLAINTIFFS-APPELLANTS: JOHN D. SVARE, Public Employees Federation, AFL-CIO, 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, current and former members of the Public
Employees Federation (collectively, “the PEF Plaintiffs”), appeal the judgment of
the United States District Court for the Northern District of New York (Mae A.
** 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).
3 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
4 circumstances specific to the case, distinguish the case from Donohue.” ECF No.
139 at 2. In response, the PEF Plaintiffs conceded that they “see no substantive
difference between PEF’s collective bargaining agreement (‘CBA’) and [the
Donohue plaintiffs’] CBA regarding retiree health insurance,” and referred us to
the arguments made in their original brief. Appellants’ Supp. Letter-Br. at 1.
The PEF Plaintiffs’ breach of contract and contractual impairment 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, 32 F.4th at 206. Moreover, because the PEF Plaintiffs now concede
that their CBAs are materially indistinguishable from those in Donohue and
simply refer us to their original brief, the PEF Plaintiffs may succeed only on the
merits of any independent argument in that original brief that was not made in
Donohue. The only CBA provision cited in the PEF Plaintiffs’ original briefing not
parallel to a provision discussed in Donohue provides 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 insurance
carriers unless specifically modified by this Agreement.” J. App’x at 1351.
While not identical, that provision is similar to one at issue in Donohue,
5 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 . . .
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18-3140 Spence 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.*
————————————————————————
WAYNE SPENCE, AS PRESIDENT OF THE NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, KAREN DANISH, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, JAMES CARR, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, ROBERT H. HARMS, JR., ON BEHALF OF
* 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).
1 THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, KENNETH R. HUNTER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, MARY REID, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, CALVIN THAYER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, RAYMOND FERRARO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, NEW YORK STATE PUBLIC EMPLOYEES FEDERATION, AFL-CIO,
Plaintiffs-Appellants,
v. No. 18-3140-cv
KATHLEEN C. HOCHUL, AS GOVERNOR OF THE STATE OF NEW YORK, PATRICIA A. HITE, INDIVIDUALLY, REBECCA A. CORSO, IN HER OFFICIAL CAPACITY AS ACTING COMMISSIONER, NEW YORK STATE CIVIL SERVICE DEPARTMENT, CAROLINE W. AHL, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE CIVIL SERVICE COMMISSION, J. DENNIS HANRAHAN, INDIVIDUALLY, 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
2 OFFICIAL CAPACITY AS COMPTROLLER OF THE STATE OF NEW YORK, MICHAEL N. VOLFORTE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE NEW YORK STATE GOVERNOR’S OFFICE OF EMPLOYEE RELATIONS,
Defendants-Appellees.** ————————————————————————
FOR PLAINTIFFS-APPELLANTS: JOHN D. SVARE, Public Employees Federation, AFL-CIO, 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, current and former members of the Public
Employees Federation (collectively, “the PEF Plaintiffs”), appeal the judgment of
the United States District Court for the Northern District of New York (Mae A.
** 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).
3 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
4 circumstances specific to the case, distinguish the case from Donohue.” ECF No.
139 at 2. In response, the PEF Plaintiffs conceded that they “see no substantive
difference between PEF’s collective bargaining agreement (‘CBA’) and [the
Donohue plaintiffs’] CBA regarding retiree health insurance,” and referred us to
the arguments made in their original brief. Appellants’ Supp. Letter-Br. at 1.
The PEF Plaintiffs’ breach of contract and contractual impairment 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, 32 F.4th at 206. Moreover, because the PEF Plaintiffs now concede
that their CBAs are materially indistinguishable from those in Donohue and
simply refer us to their original brief, the PEF Plaintiffs may succeed only on the
merits of any independent argument in that original brief that was not made in
Donohue. The only CBA provision cited in the PEF Plaintiffs’ original briefing not
parallel to a provision discussed in Donohue provides 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 insurance
carriers unless specifically modified by this Agreement.” J. App’x at 1351.
While not identical, that provision is similar to one at issue in Donohue,
5 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 1351. 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, the
provision that the PEF Plaintiffs cite in their original brief is silent on a
continuing right to a particular level of contribution payments, and thus, like the
plaintiffs in Donohue, the PEF 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
6 York law, we may not do, Donohue IV, 32 F.4th at 208; 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 PEF Plaintiffs’ claims for the same reasons 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