18-3183

Police Benevolent Association 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.*

————————————————————————

POLICE BENEVOLENT ASSOCIATION

OF NEW YORK STATE, INC., BY ITS

PRESIDENT MANUEL M. VILAR,

MANUEL M. VILAR, INDIVIDUALLY,

JAMES MCCARTNEY, ON BEHALF OF

HIMSELF AND ALL OTHERS SIMILARLY

SITUATED, THOMAS D. SMITH, ON

BEHALF OF HIMSELF AND ALL OTHERS

SIMILARLY SITUATED, FRANK R.

DELLES, PENELOPE WHEELER, ON

BEHALF OF HERSELF AND ALL OTHERS

*

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).
SIMILARLY SITUATED,

Plaintiffs-Appellants,

v. No. 18-3183-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 OF THE NEW

YORK STATE DEPARTMENT OF CIVIL

SERVICE, 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,

Defendants-Appellees,

STATE OF NEW YORK, NEW YORK

STATE DEPARTMENT OF CIVIL

SERVICE, NEW YORK STATE CIVIL

SERVICE COMMISSION, NEW YORK

STATE AND LOCAL RETIREMENT

SYSTEM, NEW YORK STATE POLICE

AND FIRE RETIREMENT SYSTEM,

2
Defendants.

————————————————————————

FOR PLAINTIFFS-APPELLANTS: RICHARD C. REILLY, Gleason, Dunn,

Walsh & O’Shea, 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 Police Benevolent Association of New York State,

Inc. (“PBANYS”) and current and former members of that union (collectively,

“the PBANYS 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

3
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.

139 at 2. The PBANYS Plaintiffs filed no such letter-brief.

The PBANYS 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.

4
See Donohue IV, 32 F.4th at 206. Moreover, because the PBANYS Plaintiffs filed no

supplemental letter-brief, we assume that they intend to rest on their original

brief, and they 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 PBANYS 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 or replaced

pursuant to this Agreement.” J. App’x at 1259.

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

5
coverage.” J. App’x at 1259. 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 PBANYS 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 PBANYS 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 PBANYS 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

6