Connolly v. McCall, Docket No. 00-7631

• Citation: 254 F.3d 36
• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-7631
• Parties: (2nd Cir. 2001) TIMOTHY J. CONNOLLY, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. H. CARL MCCALL, individually and in his capacities as Comptroller of THE STATE OF NEW YORK and as the Sole trustee of the NEW YORK STATE and LOCAL EMPLOYEES' RETIREMENT SYSTEM and his predecessors, the NEW YORK STATE and LOCAL EMPLOYEES' RETIREMENT SYSTEM; GEORGE C. SINNOTT, individually and in his capacities as Head of the NEW YORK STATE DEPARTMENT OF CIVIL SERVICE and his predecessors; NEW YORK STATE CIVIL SERVICE COMMISSION, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 36

254 F.3d 36 (2nd Cir. 2001)

TIMOTHY J. CONNOLLY, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. H. CARL MCCALL, individually and in his capacities as Comptroller of THE STATE OF NEW YORK and as the Sole trustee of the NEW YORK STATE and LOCAL EMPLOYEES' RETIREMENT SYSTEM and his predecessors, the NEW YORK STATE and LOCAL EMPLOYEES' RETIREMENT SYSTEM; GEORGE C. SINNOTT, individually and in his capacities as Head of the NEW YORK STATE DEPARTMENT OF CIVIL SERVICE and his predecessors; NEW YORK STATE CIVIL SERVICE COMMISSION, Defendants-Appellees.

Docket No. 00-7631

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: May 29, 2001

Decided: June 14, 2001

The government appeals from the Decision and Order of the United States District Court for the Western District of New York, rendered orally on July 5, 2000, by Judge William M. Skretny, adopting the Report and Recommendation of the Honorable Carol E. Heckman, United States Magistrate Judge, Western District of New York, which recommended granting Romaszko's motion to suppress statements.

AFFIRM.

[Copyrighted Material Omitted] WILLIAM HUGHES MULLIGAN, JR, Bleakley Platt & Schmidt, LLP, White Plains, N.Y., for Plaintiff-Appellant.

MELANIE L. OXHORN, Assistant Solicitor General (Michael S. Belohlavek, Deputy Solicitor General, on the brief), for Eliot Spitzer, Attorney General of the State of New York, for Defandants-Appellees.

Before: CALABRESI and KATZMANN, Circuit Judges, KAPLAN^*, District Judge.

PER CURIAM:

Plaintiff-appellant Timothy J. Connolly, a former employee of the New York City Police Department (the "NYPD") and a current employee of the New York State Organized Crime Task Force (the "Task Force"), challenges New York State's statutory scheme governing the eligibility for public pensions of those employees who work in one public job, retire, and then begin work in a second public job. In particular, Connolly alleges that it violates the federal constitution for New York to require that its retired public employees, while they are employed in a subsequent public job, either forgo receipt of the pension benefits accrued from the first job or forgo accumulation of additional pension benefits from the second job. The United States District Court for the Southern District of New York (Batts, Judge) granted defendants' motion to dismiss, ruling that Connolly's claims were untimely because they accrued in 1984 when he began his current job with the Task Force. Although we agree with Connolly that he has a timely claim, we nonetheless affirm on the separate ground that his allegations fail to support the conclusion that New York's pension system is unconstitutional.

Background

After twenty-three years of service, Connolly in 1983 retired from the NYPD. At that time he was fully vested in certain retirement benefits from the New York City Police Pension Fund, which is part of New York's pension system for state and local employees. A few months later, Connolly began a new job as a special investigator for the Task Force, where he continues to work.

Connolly's employment with the Task Force triggered the application of two inter-locking provisions of New York civil service and retirement law. First, section 150 of the New York Civil Service Law states a longstanding rule that

[I]f any person subsequent to his or her retirement from the civil service of the state or of any municipal corporation or political subdivision of the state, shall accept any office, position or employment in the civil service of the state [or any subdivision]... any pension or annuity awarded or allotted to him or her upon retirement...shall be suspended during such service or employment and while such person is receiving any salary.

Second, section 211 of the New York Retirement and Social Security Law provides an exception to this rule, permitting "a retired person [to] be employed and earn compensation in a position or positions in the public service, without any effect on his status as retired and without suspension or diminution of his retirement allowance," provided that certain conditions are met, including receiving the approval of appropriate administrators. In exchange for receiving both pension and salary, those who invoke this exception, known as a "section 211 waiver," are excluded from participation in the pension plan associated with their second public job. See N.Y. Retire. & Soc. Sec. Law § 213.

Taken together, these provisions require a retired state or local employee who accepts a subsequent state or local job to choose, during the period he receives a salary from the second job, between (1) not receiving pension benefits from the first job but accruing additional pension benefits from the second job, or (2) receiving pension benefits from the first job but not accruing further benefits from the second job. See generally Baker v. Regan, 501 N.E.2d 1192 (N.Y. 1986); Brown v. New York State Teachers' Retirement Sys., 485 N.Y.S.2d 871 (3d Dep't 1985); Syrewicz v. New York State Teachers' Retirement Sys., 435 N.Y.S.2d 808 (3d Dep't 1981). Option (1) is the default, whereas election of option (2) requires affirmative application by the employee and approval by the relevant administrator. Moreover, section 211 waivers are valid for no more than two years, after which time they must be renewed. See N.Y. Retire. & Soc. Sec. Law § 211(b). This choice between receiving the first pension and accruing the second is required only when both the first and second jobs are with New York state or local government, not when either job is with an employer outside the New York public employee pension system.

Since beginning his employment with the Task Force, Connolly has applied for and been granted section 211 waivers, thereby allowing him to receive his NYPD pension and excluding him from accrual of the pension benefits that would otherwise be associated with his Task Force job. In 1998, Connolly filed this action seeking to represent a class of similarly situated New York public employees and alleging that the pension system described above violates, inter alia, federal guarantees of due process and equal protection. Defendants, various individuals and government agencies associated with the New York public pension system (collectively "New York"), moved to dismiss, principally on the ground that the complaint failed to state a claim for which relief can be granted. Connolly cross-moved for class certification.

The district court granted defendants' motion and denied plaintiff's as moot. The court ruled that plaintiff's claims were untimely because (1) they were subject to a three-year statute of limitations, (2) the claims accrued in 1984 when he began employment and "knew or should have known that he would not be permitted to participate in a second pension plan," and (3) the complaint was not filed until 1998. The court rejected plaintiff's claim that New York's continuing requirement that he choose between the two pensions constituted a continuing violation, the most recent instance of which fell within the limitations period. The court then declined to exercise supplemental jurisdiction over plaintiff's remaining state law claim.

Discussion

We review de novo the district court's decision and will affirm only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim[s] which would entitle him to relief.'" Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In making this assessment, we "must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Id.

On appeal, the parties have, understandably enough, focused on the district court's statute of limitations reasoning, but they have also briefed the merits of plaintiff's claims. Because we think that appellant's claim with respect to the most recent section 211 waiver is timely, we reach the merits and affirm on those grounds. See McNally Wellman Co. v. New York State Elec. & Gas Corp., 63 F.3d 1188, 1194 (2d Cir. 1995) ("We need not affirm for the reasons expressed by the district court but may affirm on any ground supported by the record.").

I. Timeliness

The parties agree that Connolly's federal constitutional claims, brought pursuant to 42 U.S.C. § 1983, are governed by New York's three-year statute of limitations for personal injury actions, as well as the state's tolling rules. See Owens v. Okure, 488 U.S. 235, 240-41 (1989); Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980). "While state law supplies the statute of limitations for claims under § 1983, federal law determines when a federal claim accrues. The claim accrues when the plaintiff knows or has reason to know of the harm." Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994) (internal quotation marks and citation omitted).

The district court held that plaintiff's claims were untimely. It reasoned that his only claims accrued in 1984 when he began his Task Force employment. We disagree.

The harm plaintiff complains of - his inability to accrue Task Force pension benefits - is always the result of actions taken no more than two years before, that is, when the most recent section 211 waiver was sought and granted. In this respect, this case is most analogous to those involving the repeated application of a discriminatory policy, such as Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of City of New York, 633 F.2d 232 (2d Cir. 1980). In Guardians we considered the repeated use of a hiring list, compiled by using a discriminatory examination, to decide hiring priority for the New York Police Department. We concluded that a new violation accrued each time the list was used to make an employment...