The decision by the Court of Appeals for the Second Circuit in this case, requiring the district court to hear a litigation brought by a retiree to an adverse City of New York pension decision—after relevant issues had been raised and rejected in a New York article 78 proceeding—incorporates an undesirable practice. SeeKing v. NYCERS , 595 Fed.Appx. 10 (2d Cir.2014) (summary order). New York should consider how such cases ought to be processed within the state, modifying, as necessary, state substantive law and procedure to avoid appeals to federal courts from New York City Employees' Retirement System ("NYCERS") decisions respecting city pensions.

The decision by the Court of Appeals for the Second Circuit in this case, requiring the district court to hear a litigation brought by a retiree to an adverse City of New York pension decision—after relevant issues had been raised and rejected in a New York article 78 proceeding—incorporates an undesirable practice. See King v. NYCERS, 595 F. App'x 10 (2d Cir. 2014) (summary order). New York should consider how such cases ought to be processed within the state, modifying, as necessary, state substantive law and procedure to avoid appeals to federal courts from New York City Employees' Retirement System ("NYCERS") decisions respecting city pensions.

The decision by the Court of Appeals for the Second Circuit in this case, requiring the district court to hear a litigation brought by a retiree to an adverse City of New York pension decision—after the issues had been raised and rejected in a New York article 78 proceeding—incorporates an undesirable practice. See King v. NYCERS, 595 F. App'x 10 (2d Cir. 2014) (summary order). New York should consider how such cases ought to be processed within the state, modifying, as necessary, state substantive law and procedure to avoid appeals to federal courts from New York City Employees' Retirement System ("NYCERS") decisions on city pensions.

While the availability of postdeprivation Article 78 proceedings may make up for a NYCERS process that “was not wholly adequate,” the backstop of judicial remedies does not excuse a complete lack of predeprivation process. See King v. NYCERS, 595 Fed.Appx. 10, 12 (2d Cir. 2014) (summary order) (collecting cases); see Green v. Dept. of Educ. of City of New York, 16 F.4th 1070, 1077 (2d Cir. 2021); Rivera-Powell, 470 F.3d at 467 (2d Cir. 2006) (predeprivation process “need not be elaborate” so long as it provides “notice and an opportunity to respond”).

I further held that, although plaintiff plausibly alleged that she had a property interest in her ability to buy back her uncovered pension time, she nevertheless did not state a due process claim because she failed to take advantage of available state post-deprivation remedies. Plaintiff has moved for reconsideration of that decision, arguing that I overlooked "(1) . . . both the Court of Appeals (Kings v. NYCERS, 595 Fed. Appx. 10 (2d Cir. 2014)) and District Court's (Kings v. NYCERS, 212 F.Supp.3d 371 (EDNY 2015)) decisions as to the due process issue presented in the instant case, (2) New York Human Rights Laws on the issue of racial discrimination, and (3) Plaintiff's breach of contract claim." The motion for reconsideration is denied.

But the New York Court of Appeals eventually declined to consider the certified question after the appellant in the federal case withdrew the appeal. Stapleton v. N.Y. City Dep't of Educ., 2023 WL 6163939, at *6 (S.D.N.Y. Sept. 6, 2023) (explaining history); King v. N.Y. City Emps.' Ret. Sys., 595 F. App'x 10, 11-12 (2d Cir. 2014) (summary order) (same).

Joseph v. Athanasopoulos, 648 F.3d 58, 67 (2d Cir. 2011); see also King v. New York City Employees' Ret. Sys., 595 Fed.Appx. 10, 11-12 (2d Cir. 2014) (noting Circuit's questioning of its holding in Cloverleaf). In Joseph, the Circuit noted, for example, that, following Tanges, New York appellate courts continued to rely on Russell Sage for the proposition that a dismissal pursuant to § 3211(a)(5) had preclusive effect.

The parties have not conducted a Rooker-Feldman analysis broken down by claim and party, and the Court declines to undertake that analysis in the first instance. Cf. King v. N.Y. City Emps.' Ret. Sys., 595 Fed.Appx. 10, 11 (2d Cir. 2014) (summary order) (finding that federal action was not barred by Rooker-Feldman because the plaintiff did not “solely complain” of injuries caused by a state court judgment but finding that the action was precluded in “one respect”).

Courts in the Second Circuit have repeatedly held that “the availability of postdeprivation Article 78 proceedings in the NYCERS pension context is generally constitutionally adequate process even where the process internal to NYCERS was not wholly adequate, or where the plaintiff failed to timely file an Article 78 [petition]” in the appropriate state court. See King v. New York City Employees' Retirement System, 595 Fed.Appx. 10, 12 (2d Cir. 2014) (summary order, collecting cases); Campo v. New York City Employees' Retirement System, 843 F.2d 96, 101-03 (2d Cir. 1988) (holding that an Article 78 proceeding provides an adequate postdeprivation remedy for persons challenges the curtailment of pension benefits by NYCERS).

The short answer is that no violation of procedural due process has occurred. It is well settled in the Second Circuit that a party's ability to avail himself of Article 78 — a process by which "New York state courts are empowered to issue 'common law writs of certiorari to review, mandamus, and prohibition'" against state agencies and officers, N.Y. State Nat'l Org. of Women v. Pataki, 261 F.3d 156, 168 (2d Cir. 2001) (quoting Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996)); N.Y. C.P.L.R. §§ 7801-7802 — provides constitutionally adequate process in the NYCERS pension context, see, e.g., King v. N.Y.C. Emps. Ret. Sys., 595 F. App'x 10, 12 (2d Cir. 2014) (summary order). Plaintiff, however, argues that the existence of an Article 78 proceeding is insufficient process, and instead that Defendant had an obligation to inform him of his right to such a proceeding.