18‐1348‐cv
Barr v. City of White Plains
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 ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 2nd day of July, two thousand nineteen.
4
5 PRESENT: DENNIS JACOBS,
6 RAYMOND J. LOHIER, JR.,
7 MICHAEL H. PARK,
8 Circuit Judges.
9
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 ROBERT BARR, CARLOS BEDOYA, ERIC
12 BENSON, WILLIAM BERTRAM, ERIC BIERS,
13 WAYNE BOGART, JOHN BONNER, CARL
14 BOCHTERLE, JOSEPH BORRELLI, PATRICIA
15 BRENGAL, LARRY BROWN, BRIAN
16 BUCHANAN, MICHAEL BUDNAR, GARY
17 BURRIS, ROBERT CALLI, ERNEST
18 CAMPOSANO, WILLIAM CAREY, MARK
19 CARLTON, TONY CIARAMELLA, DENNIS
20 COFFEY, NICHOLAS CONTE, KENNETH
21 CORSELL, GEORGE CRAIG, DENNIS CULLEN,
22 ALFRED CUOZZO, GEORGE CURRY, KENNETH
1 CURTIN, JOHN ,DALY, ROBERT DAVIS, PETER
2 DAY, ROBERT DEFAZIO, JOSEPH DETOIA,
3 ANTHONY DIGIOVANNI, TIMOTHY DOLCE,
4 THOMAS DONATONE, RICHARD DOUGLASS,
5 EDDIE ELLISON, MICHAEL EMHARDT,
6 CHARLES FAULKNER, RICHARD FERNANDEZ,
7 MICHAEL FILARDI, VINCENT FINNEGAN,
8 KENNETH FORD, FRANK FRAIOLI, FRANK
9 GAGLIARDO, DENNIS GALINSKI, VINCENT
10 GIGLIO, EDGARDO GONZALEZ, THOMAS
11 GRADY, ROLAND GRAHAM, WILLIAM GRANT,
12 STEPHEN HANAK, JAMES HANLON, JAMES
13 HARDING, GREGORY HELBECK, JAMES
14 HENDERSON, JR., DANIEL HICKEY, CYNTHIA
15 HOOD, WILLIAM HRISKONICH, ALFRED
16 IMPAUOMENI, ANTHONY ISMAILOFF,
17 DANIEL JACKSON, JOHN JACKSON, JOHN
18 JOHNSON, EDMUND KARDAUSKAS, MICHAEL
19 KATRAS, DOROTHY KAY, DENNIS KEIDONG,
20 JOHN KELLEHER, ROBERT KELLY, THOMAS
21 KELLY, NICHOLAS KRALIK, JR., HERMAN
22 KRAUS, JOHN KRAYNIAK, VIRGINIA KULLS,
23 FRANK LANZA, KENNETH LEE, STEWART LEE,
24 ROBERT LEIGHT, ROBERT LOMBARDI,
25 MICHAEL LUISO, MICHAEL MAFFEI, JOHN
26 MALLON, JENNY MANDALA‐OʹROURKE,
27 JOSEPH MANDARINE, JEROME MANY,
28 THOMAS MARANO, KENNETH MIDDLETON,
29 RUFUS MITCHELL, JOYNE MUNERA,
30 RAYMOND NAGLE, JOHN NEIL, CRAIG
31 NIGHTINGALE, JOHN NOLAN, DENNIS
32 OʹKEEFE, TIMOTHY OʹLEARY, THOMAS
33 OʹSHEA, JAMES PADIAN, JOHN PODLAS,
34 CASEY QUIN, ROBERT REILLY, RAPHAEL
35 RICCI, HENRY RICE, JEROME ROACHE, CARL
2
1 ROSSING, EDWARD RUTLEDGE, ANTHONY
2 SABATINO, EDWARD SCOCA, STACEY SEBA,
3 DONALD SHAMLEY, EDGAR SMALI„ RICHARD
4 SMITH, LINDA STEEL, KENNETH STEVENS,
5 ALFRED STIPO, JOANN STRATI‐STEAD,
6 JOSEPH STEMPEL, RONALD STROH, SR.,
7 JAMES SWEENEY, RONALD TATUSKO,
8 RICHARD TAYLOR, STEVEN TREBING, BRIAN
9 USTIN, ROBERT VAN VOORHIES, ALBERT
10 VESSA, PETER VIVIANO, KEITH WALKER,
11 DONALD WEISS, DONALD WESTLAKE,
12 ROBERT WILHELM, WALTER WILLIAMS,
13 RICHARD YANTZ, on behalf of themselves as
14 Retired Employees of the City of White Plains
15 formerly in the Police Benevolent Association of
16 White Plains, Inc.,
17
18 Plaintiffs‐Appellants,
19
20 v. No. 18‐1348‐cv
21
22 CITY OF WHITE PLAINS and
23 THOMAS ROACH, As Mayor of the
24 City of White Plains, County of
25 Westchester, State of New York,
26 JOHN CALLAHAN, as Chief of
27 Staff/Corporation Counsel of the City
28 of White Plains, County of
29 Westchester, State of New York, THE
30 CITY COUNCIL OF THE CITY OF
31 WHITE PLAINS, comprised of
32 JOHN KIRKPATRICK, in his official
33 capacity as a Member of the
34 Common Council, BENJAMIN
35 BOYKIN, II, in his official capacity as
3
1 a Member of the Common Council,
2 DENNIS E. KROLIAN, in his official
3 capacity as a Member of the
4 Common Council, MILAGROS
5 LECUONA in her official capacity as
6 a Member of the Common Council,
7 JOHN M. MARTIN, in his official
8 capacity as a Member of the
9 Common Council, and BETH N.
10 SMAYDA, in her official capacity as
11 a Member of the Common Council,
12
13 Defendants‐Appellees.1
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15 FOR APPELLANTS: JOSEPH A. MARIA, Joseph A.
16 Maria, PC, White Plains, NY.
17
18 FOR APPELLEES: RICHARD K. ZUCKERMAN
19 (Matthew J. Mehnert, on the
20 brief), Lamb & Barnoksy, LLP,
21 Melville, NY.
22
23 LALIT K. LOOMBA (Peter A.
24 Meisels, John M. Flannery,
25 Eliza M. Scheibel, on the brief),
26 Wilson, Elser, Moskowitz,
27 Edelman & Dicker LLP, White
28 Plains, NY.
29 Appeal from a judgment of the United States District Court for the
30 Southern District of New York (Cathy Seibel, Judge).
1 The Clerk of Court is directed to amend the official caption as shown above.
4
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of the District Court is AFFIRMED.
3 Plaintiffs‐appellants are retired police officers formerly employed by the
4 City of White Plains (the “City”) who were hired before July 1, 1995 and retired
5 before May 24, 2010. They appeal from a judgment of the District Court (Seibel,
6 J.), granting summary judgment in favor of the City and other municipal
7 defendants, including members of the City’s Common Council, and dismissing
8 the appellants’ claims under the Contracts Clause of the United States
9 Constitution, Article I, Section 10, and the Equal Protection Clause of the
10 Fourteenth Amendment. The appellants’ appeal arises from a City Ordinance
11 enacted in 2010 that terminated the City’s payment of 100 percent of health
12 insurance premiums for retired police officers. Instead, it required the officers
13 to contribute the difference, if any, between 85 percent of the cost of the New
14 York State Empire Health Insurance Program premium and the full premium
15 cost of the health insurance plans in which they were enrolled. We assume the
16 parties’ familiarity with the underlying facts and the record of prior proceedings,
17 to which we refer only as necessary to explain our decision to affirm.
5
1 1. The Contracts Clause Claim
2 The appellants claim that the City’s 2010 Ordinance violates the Contracts
3 Clause because their collective bargaining agreement (CBA) guaranteed that the
4 City would pay the full cost of their health insurance premiums. As an initial
5 matter, this claim fails because appellants have forfeited any argument that the
6 2010 Ordinance constitutes an impairment, rather than a contractual breach. See
7 TM Park Ave. Assocs. v. Pataki, 214 F.3d 344, 349 (2d Cir. 2000). In any event,
8 the appellants also failed to contradict record evidence provided by the City that
9 the 2010 Ordinance served a significant public purpose or that any contractual
10 impairment of that guarantee was reasonable and necessary to effectuate that
11 purpose. See Buffalo Teachers Fed’n v. Tobe, 464 F.3d 362, 368 (2d Cir. 2006)
12 (citing Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411–13
13 (1983); Sanitation & Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 993
14 (2d Cir. 1997)). We have held that “the legislative interest in addressing a fiscal
15 emergency is a legitimate public interest.” Buffalo Teachers, 464 F.3d at 369; see
16 also Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). At most,
17 Appellants dispute that the City was in a “real fiscal emergency.” Appellants’
6
1 Br. at 25. But as the District Court explained, the City provided substantial
2 unrebutted evidence that the 2010 Ordinance was passed to address a serious
3 budget shortfall and impending credit downgrade caused by the global financial
4 crisis that started in 2008 and, for the City, worsened considerably as of 2010.1
5 We also agree with the District Court that any alleged impairment caused by the
6 2010 Ordinance to address the City’s fiscal emergency was reasonable and
7 necessary—a conclusion that the appellants in any event do not challenge on
8 appeal. See Buffalo Teachers, 464 F.3d at 371 (citing U.S. Tr. Co. of N.Y. v. New
9 Jersey, 431 U.S. 1, 30–31 (1977)). The City presented ample evidence that it
10 passed the 2010 Ordinance only after pursuing a range of measures to increase
11 revenue and cut expenses. And although New York law permitted the City to
12 require the appellants to contribute up to 50 percent of the premium amount, the
13 2010 Ordinance required the appellants to contribute substantially less. See
14 N.Y. Civ. Serv. Law § 167(2).
1 For example, Moody’s gave the City a “negative” credit rating outlook in 2009 and did
not change its outlook to “stable” until 2013. An actual downgrade in the City’s credit
rating was avoided in part because the City pursued a course of fiscal belt‐tightening.
7
1 Because the 2010 Ordinance was passed for the legitimate public purpose
2 of averting a fiscal crisis and the City used reasonable and necessary means to do
3 so, we affirm the District Court’s judgment dismissing the appellants’ claim
4 under the Contracts Clause.
5 2. The Equal Protection Claim
6 The appellants concede that rational basis review applies to their equal
7 protection claim. The appellants were all retirees at the time the 2012–2018
8 collective bargaining agreement was executed. They were therefore not
9 similarly situated to active employees, who could then participate in collective
10 bargaining. Because we agree with the District Court that the two groups were
11 not similarly situated, we affirm its dismissal of the appellants’ equal protection
12 claim.
13 We have considered the appellants’ remaining arguments and conclude
14 that they are without merit. For the foregoing reasons, the judgment of the
15 District Court is AFFIRMED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk of Court
8