18-3142

The New York State Law Enforcement Officers Union 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.*

————————————————————————

THE NEW YORK STATE LAW

ENFORCEMENT OFFICERS UNION

COUNCIL 82, AFSCME, AFL-CIO, JAMES

LYMAN, AS EXECUTIVE DIRECTOR OF

THE THE NEW YORK STATE LAW

ENFORCEMENT OFFICERS UNION,

COUNCIL 82, AFSCME, AFL-CIO,

MICHAEL LADUE, INDIVIDUALLY AND

AS PRESIDENT OF LOCAL 2951, ROBERT

H. BECK, JR., INDIVIDUALLY AND AS A

MEMBER OF LOCAL 635SS, JOHN

*

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).
TREMARK, INDIVIDUALLY AND AS

PRESIDENT OF LOCAL 2337, SECURITY

AND LAW ENFORCEMENT

EMPLOYEES, COUNCIL 82 AFSCME,

AFL-CIO, GARY TAVORMINA,

INDIVIDUALLY, AND AS RETIREE

CHAPTER 82 PRESIDENT OF THE

SECURITY AND LAW ENFORCEMENT

EMPLOYEES, COUNCIL 82, AFSCME,

AFL-CIO, CHARLES KROM, SR.,

INDIVIDUALLY, AND AS RETIREE

CHAPTER 82 VICE PRESIDENT OF THE

SECURITY AND LAW ENFORCEMENT

EMPLOYEES, COUNCIL 82, AFSCME,

AFL-CIO, LAURA CESTARO, ON

BEHALF OF HERSELF AND ALL OTHERS

SIMILARLY SITUATED, GERALD

GALLO, ON BEHALF OF HIMSELF AND

ALL OTHERS SIMILARLY SITUATED,

DONALD SCHOEN, ON BEHALF OF

HIMSELF AND ALL OTHERS SIMILARLY

SITUATED, 

Plaintiffs-Appellants,

v. No. 18-3142-cv

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,

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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, KATHLEEN C. HOCHUL, IN HER

OFFICIAL CAPACITY AS GOVERNOR OF

THE STATE OF NEW YORK,

Defendants-Appellees.**

————————————————————————

FOR PLAINTIFFS-APPELLANTS: CHRISTINE CAPUTO GRANICH, New

York State Law Enforcement Officers

Union, Council 82, 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 Law Enforcement Officers Union,

** 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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Council 82 (“Council 82”) and current and former members of that union

(collectively, “the Council 82 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 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.

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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.

115 at 2. In response, the Council 82 Plaintiffs filed a one-page supplemental

letter-brief “refer[ring] the Court to Council 82’s” original, pre-Donohue II briefs,

which, in their view, show how “Council 82's contractual provisions, which are

not entirely identical to [those at issue in Donohue], [] demonstrate the ambiguity

created by such provisions concerning the existence of a lifetime vested right to

continuous contribution rates for retirees.” Appellants’ Supp. Letter-Br. at 1.

The Council 82 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. The only CBA provision cited in the Council 82

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 and dental insurance carriers unless specifically modified or

replaced pursuant to this Agreement.” J. App’x at 399.

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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 399. 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 Council 82 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 Council 82 Plaintiffs “ask us to infer ambiguity from

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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 Council 82 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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