13-4820-cv
King v. New York City Employees' Retirement System
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 COURTʹS 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
ʺSUMMARY ORDERʺ). A PARTY CITING TO 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 10th day of December, two thousand fourteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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DAVID KING,
Plaintiff‐Appellant,
v. 13‐4820‐cv
NEW YORK CITY EMPLOYEESʹ
RETIREMENT SYSTEM (NYCERS),
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT: DAVID KING, pro se, Brooklyn, New York.
FOR DEFENDANT‐APPELLEE: INGA VAN EYSDEN, Assistant Corporation
Counsel, for Zachary W. Carter, Corporation
Counsel of the City of New York, New York,
New York.
Appeal from the United States District Court for the Eastern District of
New York (Weinstein, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED in part and VACATED
in part, and the matter is REMANDED for further proceedings.
Plaintiff‐appellant David King, proceeding pro se, appeals the district
courtʹs dismissal of his complaint, which alleged that defendant‐appellee New York
City Employeesʹ Retirement System (ʺNYCERSʺ) wrongfully deprived him of pension
benefits. The district court granted NYCERSʹs motion to dismiss, apparently on the
basis of the Rooker‐Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). We assume the partiesʹ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.
ʺBecause Rooker‐Feldman goes to subject‐matter jurisdiction, we review de
novo the district courtʹs application of the doctrine.ʺ Hoblock v. Albany Cnty. Bd. of
Elections, 422 F.3d 77, 83 (2d Cir. 2005). Rooker‐Feldman bars litigation in federal district
court by a state court loser complaining of injuries caused by a state court judgment,
inviting review and rejection of that judgment, where the judgment was rendered
before the district court action began. McKithen v. Brown, 481 F.3d 89, 97 (2d Cir. 2007).
Kingʹs action is not barred by Rooker‐Feldman because he does not solely
complain of injuries caused by a state court judgment. Rather, he complains of
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NYCERSʹs decision to deny him Tier I benefits. That decision predates his Article 78
proceeding, ʺand so could not have been ʹcaused byʹ those proceedings.ʺ McKithen, 481
F.3d at 98; see Hoblock, 422 F.3d at 88 (the injury must be ʺproduced by a state‐court
judgment and not simply ratified, acquiesced in, or left unpunished by itʺ). Therefore,
Rooker‐Feldman does not preclude Kingʹs action against NYCERS, except in one respect.
In his complaint, King challenged a decision rendered in a prior state
court action dismissing his Article 78 proceeding against NYCERS as time‐barred. King
apparently filed a Fed R. Civ. P. 60(b)(4) motion in the district court below to ʺvoidʺ the
state court judgment. The Rooker‐Feldman doctrine would preclude Kingʹs efforts to
void the state court judgment, but King is no longer challenging that judgment.
On remand, the district court may wish to consider a number of other
defenses. First, NYCERS moved below to dismiss the complaint based on the doctrine
of res judicata, but the district court apparently did not reach the question, as it held
that it lacked jurisdiction to hear Kingʹs claims. Res judicata ʺbars a subsequent action ‐‐
involving either the same plaintiffs or parties in privity with those plaintiffs ‐‐ from
asserting claims that were, or could have been, raised in a prior action that resulted in
an adjudication on the merits.ʺ Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 918
(2d Cir. 2010). NYCERS argues that a state court dismissal on statute of limitations
grounds is a merits decision. We have held that a New York state court time‐bar
dismissal does not preclude bringing the same claim in another jurisdiction with a
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longer statute of limitations. See Cloverleaf Realty of N.Y., Inc. v. Town of Wawayanda, 572
F.3d 93, 96 (2d Cir. 2009). We have since questioned that holding, however. See Joseph
v. Athanasopoulos, 648 F.3d 58, 67 (2d Cir. 2011) (expressing doubt that the New York
State Court of Appeals had ever ʺʹsquarely addressedʹ whether a New York courtʹs
judgment dismissing a case based on the expiration of a New York limitations period
should have preclusive effect in another jurisdiction with a longer, unexpired
limitations periodʺ). If the district court is going to rely on the doctrine of res judicata, it
must address this question.
Second, even assuming King is not precluded from pursuing his federal
due process claim, there exists a question as to the timeliness of any such claim. Kingʹs
due process action is governed by the three‐year statute of limitations applicable to 42
U.S.C. § 1983 suits. See Owens v. Okure, 488 U.S. 235, 249‐51 (1989) (New Yorkʹs general
personal injury statute of limitations applies to § 1983 claims). NYCERS denied Tier I
benefits to King in 2008 and he filed the instant action in 2013, well more than three
years after the denial, but the district court may wish to explore whether tolling or
estoppel might apply. See Leon v. Murphy, 988 F.2d 303, 310 (2d Cir. 1993) (concluding
that in § 1983 actions filed in New York, federal courts apply the New York rules for
tolling).
Finally, even if Kingʹs suit is not barred by res judicata or the statute of
limitations, he must still plead a plausible due process claim. Our Court and others
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within the Circuit have held that the availability of post‐deprivation Article 78
proceedings in the NYCERS pension context is generally constitutionally adequate
process even where the process internal to NYCERS was not wholly adequate, or where
the plaintiff failed to timely file an Article 78 complaint. See Campo v. N.Y.C. Emps.ʹ Ret.
Sys., 843 F.2d 96, 102‐03, 103 n.7 (2d Cir. 1988); Minima v. N.Y.C. Emps.ʹ Ret. Sys., No. 11‐
CV‐2191, 2012 WL 4049822, at *6‐7 (E.D.N.Y. Aug. 17, 2012); Bagedonow v. N.Y.C. Emps.ʹ
Ret. Sys., No. 09‐CV‐9603, 2010 WL 2927436, at *3‐4 (S.D.N.Y. July 16, 2010); Pennyfeather
v. N.Y.C. Emps.ʹ Ret. Sys., No. 05‐CV‐04958, 2005 WL 3534759, at *1 (S.D.N.Y. Dec. 21,
2005). The district court may wish to consider whether King has stated a plausible
federal due process claim in light of these cases.
We affirm the district court judgment insofar as it dismissed Kingʹs claim
to void the state court Article 78 judgment. We otherwise vacate the judgment and
remand for further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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