1 The Honorable David G. Larimer, of the United States District Court for the Western District of New York, who had originally been assigned to this panel, recused himself. The remaining two members of the panel decide the matter pursuant to Second Circuit Internal Operating Procedure E(b). 11-3698-cv Argay, et al. v. National Grid USA Serv. Co., Inc., Niagara Mohawk Power Corp.
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 20 thday of November, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 DENNY CHIN, 7 Circuit Judges. 1 8 9 10 11 JOHN L. ARGAY, PAUL K. DAMMERS, 12 GARY P. DENAULT, ROGER A. DOOLEY, 13 WILLIAM A. FLEMING, GERALD D. LINDSEY, 14 KAREN S. MAXWELL, ROBERT T. MEARON, 15 JAMES R. PATERSON, LAWRENCE D. RIORDEN, 16 WILLIAM B. SPENCER, ROBERT EASTHAM, 17 ROBERT OSBORNE, PATRICK REAP, 18 DAVID SLATTERY, ROMAN SZUL, 19 20 Plaintiffs-Appellants , 11-3698-cv 21 22 WILLIAM J. BONENERG, RICHARD J. HANDZEL, 23 WILLIAM LOBKO, JOHN S. MCCOY, 24 THEODORE W. PYTEL, DAVID R. NORTON, 25 CHRISTROPHER DOOL, DANIEL DARJANY, 26 MICHAEL SCHLEGEL, JEFFREY A. STEGER, 272 FRANK AMATANGELO, GARY VANHATTEN, 1 2 Plaintiffs , 3 4 -v.- 5 6 NATIONAL GRID USA SERVICE COMPANY, INC., 7 NIAGARA MOHAWK POWER CORPORATION, 8 9 Defendants-Appellees

. 10 11 12 FOR PLAINTIFFS-APPELLANTS: Christen Archer Pierrot, 13 Chiacchia & Fleming, LLP, 14 Hamburg, NY. 15 16 FOR DEFENDANTS-APPELLEES: Robert A. Laberge, Louis Orbach, 17 Clifford G. Tsan, Bond, 18 Schoeneck & King, PLLC, 19 Syracuse, NY

. 20 21 Appeal from the United States District Court for the 22 Western District of New York (Skretny, J. ). 23 24 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 25

**AND DECREED**that the judgment of the United States District 26 Court for the Western District of New York is **AFFIRMED**

. 27 Plaintiffs appeal from a judgment of the United States 28 District Court for the Western District of New York 29 (Skretny, J. ), granting Defendants’ motion for summary 30 judgment and dismissing Plaintiffs’ claims arising from 31 Defendants’ decision to amend Plaintiffs’ post-retirement 32 life insurance plan (“Plan A”). The district court 33 determined, inter alia , that Plaintiffs’ benefits had not 343 contractually vested under the plan and that Defendants did 1 not breach any fiduciary duties owed to Plaintiffs. The 2 panel has reviewed the briefs and the record in this appeal 3 and agrees unanimously that oral argument is unnecessary 4 because “the facts and legal arguments [have been] 5 adequately presented in the briefs and record, and the 6 decisional process would not be significantly aided by oral 7 argument.” Fed. R. App. P. 34(a)(2)(C). We assume the 8 parties’ familiarity with the underlying facts, the 9 procedural history, and the issues presented for review. 10 Plaintiffs principally argue that the district court 11 erred in finding that their benefits under Plan A had not 12 contractually vested prior to the merger of Niagara Mohawk 13 and National Grid in 2002 and the subsequent change in 14 benefits under Plan A. We affirm substantially for the 15 reasons given by the district court. 16 The benefits provided by welfare plans “generally are 17 not vested and an employer can amend or terminate a welfare 18 plan at any time.” Am. Fed’n of Grain Millers, AFL-CIO v. 19 Int’l Multifoods Corp. , 116 F.3d 976, 979 (2d Cir. 1997). 20 An express promise of lifetime benefits, however, will be 21 enforced. See Devlin v. Empire Blue Cross & Blue Shield , 224 274 F.3d 76, 85 (2d Cir. 2001). To avoid summary judgment 1 on an ERISA contractual vesting claim, an employee must 2 identify “specific written language” in the plan documents 3 that is “reasonably susceptible to interpretation as a 4 promise to vest the benefits.” Bouboulis v. Transp. Workers 5 Union of Am. , 442 F.3d 55, 60 (2d Cir. 2008) (citation and 6 internal quotation marks omitted). If a plan document 7 contains an express reservation of rights to terminate or 8 amend welfare benefits, the benefits do not vest. 9 Multifoods , 116 F.3d at 982. This is true even if the same 10 plan document also contains language that could otherwise 11 reasonably be construed as a promise to vest. See 12 Abbruscato v. Empire Blue Cross & Blue Shield , 274 F.3d 90, 13 94, 100 (2d Cir. 2001). 14 Plan A documents issued from 1967 onward contain 15 language sufficient to reserve Defendants’ right to 16 terminate or amend the plan. As a result, Plaintiffs’ 17 benefits did not contractually vest and Defendants were free 18 to alter the terms of Plan A. Additionally, Plaintiffs’ 19 election to retain Plan A did not create a unilateral 20 contract between Plaintiffs and Defendants because 21 Defendants had already reserved their right to terminate the 222Plaintiffs also cannot show the “extraordinary circumstances” we require to succeed on a promissory estoppel claim in ERISA cases. See, e.g. , Schonholz v. Long Island Jewish Med. Ctr. , 87 F.3d 72, 78, 80 (2d Cir. 1996). 5 plan, i.e. , to revoke their offer. Cf

. Devlin , 274 F.3d at 1 84-85. Plaintiffs’ promissory estoppel claim fails for 2 similar reasons: Plaintiffs cannot identify any written 3 language sufficient to create a promise by Defendants to 4 ensure Plan A benefits indefinitely. 2 5 The district court correctly rejected Plaintiffs’ 6 claims for breach of fiduciary duty because (1) Defendants 7 did not act in a fiduciary capacity in setting premiums for 8 Plan A participants, and (2) none of Plaintiffs’ payments 9 inured to the benefit of Defendants because they were used 10 to offset Defendants’ total liabilities under a single 11 welfare plan. We have considered Plaintiffs’ remaining 12 arguments and find them to be without merit. 13 For the foregoing reasons, the judgment of the district 14 court is hereby **AFFIRMED**

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16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20 21 22