New York State Correctional Officers & Police Benevolent Association, Inc.

18-3151
New York State Correctional Officers & Police Benevolent Association, Inc. 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.*

————————————————————————

NEW YORK STATE CORRECTIONAL
OFFICERS & POLICE BENEVOLENT
ASSOCIATION, INC., DONN ROWE,
INDIVIDUALLY, AND AS PRESIDENT OF
THE NEW YORK STATE
CORRECTIONAL OFFICERS & POLICE
BENEVOLENT ASSOCIATION, INC., AL
MOTHERSHED, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARY SITUATED, ART W. JOLLEY,
ON BEHALF OF THEMSELVES AND ALL

*
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).
OTHERS SIMILARY SITUATED, LOUIS
GIAMPAGLIA, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARY SITUATED, DAVID L. FAILE,
ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARY SITUATED,
WILLIAM J. WEST, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARY SITUATED, DIANE DAVIS,

Plaintiffs-Appellants,

v. No. 18-3151-cv

KATHLEEN C. HOCHUL, IN HER
OFFICIAL CAPACITY 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, 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
OFFICIAL CAPACITY AS
COMPTROLLER OF THE STATE OF NEW
YORK,

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

FOR PLAINTIFFS-APPELLANTS: LAWRENCE H. SCHAEFER, Lippes
Mathias LLP, 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 the New York State Correctional Officers & Police

Benevolent Association, Inc. (“NYSCOPBA”) and current and former members of

that union (collectively, “the NYSCOPBA 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

**
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).

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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

circumstances specific to the case, distinguish the case from Donohue.” ECF No.

118 at 2.

The NYSCOPBA Plaintiffs’ breach of contract and contractual impairment

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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. In their supplemental letter-brief, the NYSCOPBA

Plaintiffs argue that their CBAs are ambiguous as to a lifetime vested right to

continuous contribution rates for retirees because of one additional CBA

provision with no parallel discussed in Donohue: “The State shall continue to

provide all the forms and extent of coverage as defined by the contracts and

Interest Arbitration Awards in force on [the date of the CBA] with the State’s

health and dental insurance carriers unless specifically modified or replaced

pursuant to this Agreement.” J. App’x at 377.

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

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would seem to apply to a provision concerning “the forms and extent of

coverage.” J. App’x at 377. 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 NYSCOPBA Plaintiffs cite is silent on a continuing right to a

particular level of contribution payments, and thus, like the plaintiffs in Donohue,

the NYSCOPBA 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.

We therefore hold that the district court correctly granted summary

judgment to the State on the NYSCOPBA 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

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