         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

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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges.1
 9
10
11
12       JOHN L. ARGAY, PAUL K. DAMMERS,
13       GARY P. DENAULT, ROGER A. DOOLEY,
14       WILLIAM A. FLEMING, GERALD D. LINDSEY,
15       KAREN S. MAXWELL, ROBERT T. MEARON,
16       JAMES R. PATERSON, LAWRENCE D. RIORDEN,
17       WILLIAM B. SPENCER, ROBERT EASTHAM,
18       ROBERT OSBORNE, PATRICK REAP,
19       DAVID SLATTERY, ROMAN SZUL,
20
21                             Plaintiffs-Appellants,                               11-3698-cv
22
23       WILLIAM J. BONENERG, RICHARD J. HANDZEL,
24       WILLIAM LOBKO, JOHN S. MCCOY,
25       THEODORE W. PYTEL, DAVID R. NORTON,
26       CHRISTROPHER DOOL, DANIEL DARJANY,
27       MICHAEL SCHLEGEL, JEFFREY A. STEGER,

                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).
 1   FRANK AMATANGELO, GARY VANHATTEN,
 2
 3                     Plaintiffs,
 4
 5            -v.-
 6
 7   NATIONAL GRID USA SERVICE COMPANY, INC.,
 8   NIAGARA MOHAWK POWER CORPORATION,
 9
10                     Defendants-Appellees.
11
12
13   FOR PLAINTIFFS-APPELLANTS:   Christen Archer Pierrot,
14                                Chiacchia & Fleming, LLP,
15                                Hamburg, NY.
16
17   FOR DEFENDANTS-APPELLEES:    Robert A. Laberge, Louis Orbach,
18                                Clifford G. Tsan, Bond,
19                                Schoeneck & King, PLLC,
20                                Syracuse, NY.
21
22        Appeal from the United States District Court for the
23   Western District of New York (Skretny, J.).
24
25       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

26   AND DECREED that the judgment of the United States District

27   Court for the Western District of New York is AFFIRMED.

28       Plaintiffs appeal from a judgment of the United States

29   District Court for the Western District of New York

30   (Skretny, J.), granting Defendants’ motion for summary

31   judgment and dismissing Plaintiffs’ claims arising from

32   Defendants’ decision to amend Plaintiffs’ post-retirement

33   life insurance plan (“Plan A”).     The district court

34   determined, inter alia, that Plaintiffs’ benefits had not


                                     2
1    contractually vested under the plan and that Defendants did

2    not breach any fiduciary duties owed to Plaintiffs.    The

3    panel has reviewed the briefs and the record in this appeal

4    and agrees unanimously that oral argument is unnecessary

5    because “the facts and legal arguments [have been]

6    adequately presented in the briefs and record, and the

7    decisional process would not be significantly aided by oral

8    argument.”   Fed. R. App. P. 34(a)(2)(C).   We assume the

9    parties’ familiarity with the underlying facts, the

10   procedural history, and the issues presented for review.

11       Plaintiffs principally argue that the district court

12   erred in finding that their benefits under Plan A had not

13   contractually vested prior to the merger of Niagara Mohawk

14   and National Grid in 2002 and the subsequent change in

15   benefits under Plan A.   We affirm substantially for the

16   reasons given by the district court.

17       The benefits provided by welfare plans “generally are

18   not vested and an employer can amend or terminate a welfare

19   plan at any time.”    Am. Fed’n of Grain Millers, AFL-CIO v.

20   Int’l Multifoods Corp., 116 F.3d 976, 979 (2d Cir. 1997).

21   An express promise of lifetime benefits, however, will be

22   enforced.    See Devlin v. Empire Blue Cross & Blue Shield,


                                    3
1    274 F.3d 76, 85 (2d Cir. 2001).       To avoid summary judgment

2    on an ERISA contractual vesting claim, an employee must

3    identify “specific written language” in the plan documents

4    that is “reasonably susceptible to interpretation as a

5    promise to vest the benefits.”       Bouboulis v. Transp. Workers

6    Union of Am., 442 F.3d 55, 60 (2d Cir. 2008) (citation and

7    internal quotation marks omitted).       If a plan document

8    contains an express reservation of rights to terminate or

9    amend welfare benefits, the benefits do not vest.

10   Multifoods, 116 F.3d at 982.     This is true even if the same

11   plan document also contains language that could otherwise

12   reasonably be construed as a promise to vest.       See

13   Abbruscato v. Empire Blue Cross & Blue Shield, 274 F.3d 90,

14   94, 100 (2d Cir. 2001).

15       Plan A documents issued from 1967 onward contain

16   language sufficient to reserve Defendants’ right to

17   terminate or amend the plan.     As a result, Plaintiffs’

18   benefits did not contractually vest and Defendants were free

19   to alter the terms of Plan A.       Additionally, Plaintiffs’

20   election to retain Plan A did not create a unilateral

21   contract between Plaintiffs and Defendants because

22   Defendants had already reserved their right to terminate the


                                     4
1    plan, i.e., to revoke their offer.    Cf. Devlin, 274 F.3d at

2    84-85.   Plaintiffs’ promissory estoppel claim fails for

3    similar reasons: Plaintiffs cannot identify any written

4    language sufficient to create a promise by Defendants to

5    ensure Plan A benefits indefinitely.2

6        The district court correctly rejected Plaintiffs’

7    claims for breach of fiduciary duty because (1) Defendants

8    did not act in a fiduciary capacity in setting premiums for

9    Plan A participants, and (2) none of Plaintiffs’ payments

10   inured to the benefit of Defendants because they were used

11   to offset Defendants’ total liabilities under a single

12   welfare plan.   We have considered Plaintiffs’ remaining

13   arguments and find them to be without merit.

14       For the foregoing reasons, the judgment of the district

15   court is hereby AFFIRMED.

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



         2
            Plaintiffs 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
