New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans

• Decision Date: 20 March 2018
• Docket Number: NO. 2017-CA-0320,2017-CA-0320
• Parties: NEW ORLEANS FIRE FIGHTERS PENSION AND RELIEF FUND, ET AL v. THE CITY OF NEW ORLEANS, ET AL
• Court: Court of Appeal of Louisiana — District of US

NEW ORLEANS FIRE FIGHTERS PENSION AND RELIEF FUND, ET AL v. THE CITY OF NEW ORLEANS, ET AL

NO. 2017-CA-0320

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

March 20, 2018

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2012-07061, DIVISION "G-11"

Honorable Robin M. Giarrusso, Judge

Judge Paula A. Brown

(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Paula A. Brown)

LOVE, J., CONCURS IN PART AND DISSENTS IN PART

BELSOME,J.,CONCURS IN PART AND DISSENTS IN PART WITH REASONS

DYSART, J., CONCURS IN PART AND DISSENTS IN PART

LOBRANO,J., CONCURS IN PART AND DISSENTS IN PART FOR THE REASONS ASSIGNED BY JUDGE DYSART

Louis L. Robein, Jr.

Nancy Picard

ROBEIN, URANN, SPENCER, PICARD & CANGEMI, APLC

2540 Severn Avenue, Suite 400

Metairie, LA 70002

COUNSEL FOR PLAINTIFFS/DEFENDANTS-IN-RECONVENTION/APPELLANTS

James M. Garner

Matthew M. Coman

Joshua P. Clayton

Debra J. Fischman

SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.

909 Poydras Street, 28th Floor

New Orleans, LA 70112-1033

Kimlin S. Lee

Churita H. Hansell

Rebecca H. Dietz

Deputy City Attorneys

1300 Perdido Street

City Hall - Room 5E03

New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/PLAINTIFFS-IN-RECONVENTION/APPELLEES

AFFIRMED IN PART; REVERSED IN PART

The New Orleans Fire Fighters' Pension and Relief Fund (the "Fund") and its Trustees¹ (the "Board") in their official capacities (collectively referred to as "NOFF")² seek review of the district court's partial grant of summary judgment, in the form of injunctive relief, in favor of New Orleans Director of Finance, Norman S. Foster ("Mr. Foster")³, and New Orleans Fire Department Superintendent, Timothy McConnell, ("Mr. McConnell")(collectively referred to as the "City").⁴ For the reasons set forth below, we reverse in part, and affirm in part, the district court's October 27, 2016 judgment.

PROCEDURAL HISTORY

The parties of this action have been before this Court on other issues. The following are the facts and the procedural history relevant to the instant appeal.

In New Orleans Fire Fighters' Pension & Relief Fund v. City of New Orleans, 13-0873 (La.App. 4 Cir. 12/18/13), 131 So.3d 412, writ denied, 14-0142 (La. 3/21/14), 135 So.3d 623, cert. denied, ___ U.S. ___, 135 S.Ct. 148 (2014) (hereinafter referred to as "NOFF I"), this Court affirmed the district court's judgment granting a petition for a writ of mandamus filed by the Fund.⁵ In NOFF I, this Court held that the City of New Orleans was statutorily required, under La. R.S. 11:3384(F), to pay into the Fund the sum of $17,524,329.00, as the City of New Orleans' actuarially required (and then-owed) contribution. Id., 13-0873, p. 10, 131 So.3d at 419.

Over the next few years, the parties litigated various issues concerning the amount owed to the Fund by the City of New Orleans. In October 2015, the parties entered into a settlement agreement wherein most of their claims against one another, including issues concerning amounts owed by the City of New Orleans to NOFF, were resolved. The settlement agreement specifically reserved the right of the parties to submit the "Alternative Interpretation" dispute—the dispute between the parties over the meaning and application of La. R.S. 11:3384(B)(1)—to the district judge, but only as to the stated demand for injunctive relief. The settlement agreement further specified that "[i]n the event the Alternative Interpretation is enjoined, application of any benefit recalculations affecting existing and future retirees will be prospective and not include clawbacks."

In furtherance of the settlement agreement, the parties executed a Cooperative Endeavor Agreement ("CEA"), effective January 1, 2016. The CEA reiterated the parties' agreement to submit the Alternative Interpretation dispute to the district court for resolution, with the further agreement that there would be no clawbacks; that is, no "retroactive recovery of any previously paid pension benefits to any Retiree or Fund participant as it applies to the Alternative Interpretation of benefits." The CEA also reserved the parties' rights to submit to the district court the issue of whether those receiving supplemental earnings benefits ["SEBs"], prior to January 1, 2016, may have their benefits offset.

Thereafter, on August 12, 2016, NOFF filed a Motion and Order for Declaratory Judgment seeking to have the district court "hear and determine the rights and obligations of the parties . . . with respect to . . . justiciable controversies stipulated to by the parties in the . . . CEA . . . ."⁶ More particularly, the motion sought to determine the "continued administration of the benefit formula established by La. R.S. 11:3384(B)" and the "application of the SEB Policy adopted by the Board of Trustees, as required by Section I(A)(19) of the CEA, to 'existing' retired Fund Participants (those who retired prior to January 1, 2016)."⁷

In response to the motion for a declaratory judgment, the City filed an opposition, as well as a request for an injunction, seeking to prohibit the allegedly incorrect calculation and awarding of pension benefits under La. R.S.11:3384(B). The injunction also sought an order requiring NOFF "to perform, for the period from January 1, 2016 onward, a dollar-for-dollar offset of (SEB's [sic]) against retirement benefits payable from the Fund to the firefighters who have received and/or will receive SEB's [sic], including firefighters who were paid SEB's [sic] as of January 1, 2016."

The district court conducted a hearing on September 13, 2016, on the request for injunctive relief filed by NOFF and the motion for declaratory judgment filed by the City.⁸ The parties consented to convert the matters to cross-motions for summary judgment.

On October 27, 2016, the district court rendered a judgment which granted the City's motion for summary judgment in part, and denied it in part, and granted NOFF's motion for summary judgment in part, and denied it in part. The district court also entered an injunction which ordered NOFF as follows:

• Effective prospectively as of January 1, 2017, as to all New System firefighters who have retired and/or will retire, who have received and/or will receive any benefits from the Fund and who have served beyond 12 years and have attained 50 years of age, to apply a 3? compensation percentage only to those members' service years served (1) beyond the twelfth service year, and (2) beyond age 50, and prospectively as of January 1, 2017, to recalculate any benefits to comply with the foregoing;

• Effective prospectively as of January 1, 2017, as to all New System firefighters who have retired and/or will retire, who have received and/or will receive any benefits from the Fund, and who have served beyond 30 years, to apply a 3? compensation percentage only to those members' service years served beyond the twelfth service year, and prospectively as of January 1, 2017, to recalculate any benefits to comply with the foregoing.

(emphasis in original.) The judgment, likewise, denied the City's request for an injunction which sought to offset pension benefits for firefighters who retired and began receiving benefits before January 1, 2016, by the amount of SEBs being received under the Louisiana's Workers Compensation statute.⁹ In so ruling, the district court held that "no offset rule was in place at the time that those retirees retired and their rights to their benefits without offsets have vested."¹⁰

This appeal follows.¹¹

STANDARD OF REVIEW

The standard of review of a grant of a motion for summary judgments is de novo. Serpas v. Univ. Healthcare Sys., 16-948, p. 2 (La.App. 4 Cir. 3/8/17), 213 So.3d 427, 428. Additionally, when a matter involves the interpretation of a statute, it is a question of law, and a de novo standard of review is applied. Red Stick Studio Dev., L.L.C. v. State ex rel. Dep't. of Econ. Dev., 10-0193, p. 9 (La. 1/19/11), 56 So.3d 181, 187. We, therefore, review the district court's judgment under a de novo standard of review.

DISCUSSION

The district court's injunctive relief, which was granted in favor of the City, is limited to the current version of La. R.S. 11:3384(B)(1) and applies to those firefighters who have retired or will retire and were employed by the fire department on or before December 31, 2014. With these parameters in mind, we review NOFF's assigned errors:

(1) The district court erred when it found that the Fund had not correctly interpreted and applied La. R.S. 11:3384(B), considering the contemporaneous construction given the statute over many years; and

(2) The district erred by failing to apply a three-year statute of limitations to any enjoined recalculation of pension benefits determined to have been unlawfully calculated in past years.¹²

Assignment of Error No. 1: Interpretation and Application of La. R.S. 11:3384(B)(1)

NOFF asserts, as to the firefighter with thirty years or more of service, La. R.S. 11:3384(B)(1) is unclear and ambiguous, writing:

The statute is ambiguous in that it provides that "if a member continues service beyond 30 years, the retirement benefit for each year or portion of a year beyond twelve years of service shall be an amount equal to 3? percent of the average annual compensation of each year or portion of a year," and then adds that "the retirement benefit shall not exceed a total of 3? percent each year." It finally states that the benefits of the firefighter "shall not exceed 100% of his average compensation." Taking these sentences into consideration, the governing Board of Trustees has implemented this formula by awarding those with 30 years of service 3? percent for each year of service, not just 3? percent for each year beyond 12 years of service as the City promotes. Otherwise, the sentence that states "the retirement benefit shall not exceed a total of 3? percent each year" coupled with the qualifier that "benefits shall not exceed one hundred percent of average compensation" would have no meaning.

As to a...