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IN RE NUCLEAR GENERATION EMPLOYEES ASSOC. v. NYPA

April 6, 2001

IN THE MATTER OF THE APPLICATIONS OF NUCLEAR GENERATION WEST PAGE 292 EMPLOYEES ASSOCIATION, AND WILLIAM CARANO, THOMAS PULCHER, AND RICHARD WIESE, JR. INDIVIDUALLY AND AS REPRESENTATIVES OF THE NUCLEAR GENERATION EMPLOYEES ASSOCIATION, AND MARK BENGIS, WILLIAM M. BRUSH, THOMAS M. BUTLER, JOHN A. BOCCATO, JOSEPH B. CHAMBERS, JOSEPH P. COLLOCA, WILLIAM W. COMSTOCK, FRANK CONTE, ROBERT CULLEN, ALAN DEGRACIA, DANIEL D. DEHM, EDWARD DIAMOND, ROBERT DOLANSKY, MICHAEL J. DRIES, ZVI EISENBERG, RICHARD H. FINGER, JAMES GILLEN, KENNETH GOODROE, WALTER D. GRAFF, BOYD W. GRANDY, ROBERT T. HANSLER, STEPHEN M. HASKELL, NELSON C. HEDDLE, JR., JOHN E. HILL, JOHN J. HILL, MICHAEL P. HOGAN, DENNIS JENNY, NOEL J. LABBE, ROGER LAURICELLA, ROBERT C. LEE, FREDERICK J. LEPINE, RICHARD
V.
NOROIAN, THOMAS D. OPET, MARK ANDREW PERKINS, STEPHEN G. PRUSSMAN, EDWIN A. RODRIGUEZ, ROBERT C. ROTTENBERK, MARGARET SALADINO, ROBERT M. SARKISSIAN, STEPHEN M. SMITH, ROBERT SOLANTO, JOHN A. SOLINI, DAVID SPINDLER, WILLIAM E. STELL, CHARLES TESSMER, KENNETH J. VEHSTEDT, ROBERT VITALE, JAMES WERNER, JOHN WHITNEY, JAMES S. YOULEN, BRIAN T. YOUNG, ROGER YOUNG, AND JOHN ZAHN, INDIVIDUALLY, PETITIONERS-PLAINTIFFS, V. NEW YORK POWER AUTHORITY A/K/A/ POWER AUTHORITY OF THE STATE OF NEW YORK, ENTERGY CORP., ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR FITZPATRICK, L.L.C., ENTERGY NUCLEAR INDIAN POINT 3, L.L.C., AND NEW YORK STATE AND LOCAL EMPLOYEES RETIREMENT SYSTEM, RESPONDENTS-DEFENDANTS.



The opinion of the court was delivered by: McMAHON, United States District Judge.

  MEMORANDUM DECISION AND ORDER GRANTING MOTION TO REMAND

Plaintiffs bring an action pursuant to Article 78 of the New York CPLR for an order declaring that defendant New York Power Authority ("NYPA") failed to correctly advise its employees of the terms, conditions and benefits of their continued employment by defendant Entergy Corp. ("Entergy") upon the purchase and sale of two nuclear power plants. Plaintiffs also move under Article 30 of the CPLR for a judgment declaring (1) that plaintiffs are entitled to certain benefits pursuant to their employment with NYPA that will not be diminished upon the sale of the power plants; (2) that plaintiffs are third-party beneficiaries of the Purchase and Sale Agreement between NYPA and Entergy; and (3) that the Purchase and Sale Agreement between NYPA and Entergy diminished the pension and retirement benefits of plaintiffs in violation of the New York State Constitution, Article V, Section 7.

Defendant Entergy timely removed this action to federal court.*fn1 Plaintiffs now move for voluntary dismissal of Entergy as a defendant, and for remand of the case to state court. Defendants Entergy and NYPA move for dismissal on the pleadings.

On November 21, 2000, the parties closed on the purchase and sale of the power plants. In their respective reply briefs, both NYPA and Entergy moved to dismiss plaintiffs' claims on the ground of mootness. On March 8, 2001, this Court requested and received a letter brief from plaintiffs in support of their position that the petition is not moot.

FACTUAL BACKGROUND

The Nuclear Generation Employees Association ("NGEA") is an unincorporated association formed in January, 2000 to promote the interests of its members and to act for their mutual protection. The more than four hundred members of the NGEA were, until recently, non-union employees of the New York Power Authority ("NYPA") employed at the James A. Fitzpatrick Nuclear Power Station ("JAF"), the Indian Point 3 Nuclear Power Station ("IP3") and the White Plains, New York corporate offices of NYPA (collectively, the "Transfer Facilities").

Plaintiffs are a group of 59 employees from the Transfer Facilities who served in various management-level positions and held their jobs "at will." The New York State Employees Retirement System ("NYSERS") administers the funds that provide pension allowances for vested employees. At the time the lawsuit was filed, all of the members of the NGEA were employed by NYPA and were members of NYPA's management team. They were not protected by a union or employment contract. As employees of NYPA, the members of NGEA received certain benefits during their employment with NYPA and were to receive certain benefits upon their retirement from employment with NYPA.

On or about February 14, 2000, NYPA and the Entergy Group announced an agreement in principle for the sale by NYPA to the Entergy Group of the two nuclear power plants, JAF and IP3, and the White Plains corporate office. On March 28, 2000, NYPA and the Entergy Group signed a purchase and sales agreement to that effect. Pursuant to the terms of that agreement, upon the closing, the NGEA members' employment with NYPA was to cease and every employee who consented to do so would become an employee of the Entergy Group. The NYPA and Entergy discussed the compensation and benefits of NYPA employees.

In their petition, plaintiffs alleged that they would lose protected property interests in pension and employment benefits once their employment with NYPA ended. Plaintiffs brought this proceeding to have a court determine their rights to future benefits before their employment with NYPA ceased at the time of the projected closing. Plaintiffs also sought leave to intervene in the licensing transfer proceeding relating to JAF and IP3 pending before the United States Nuclear Regulatory Commission, which, at the time of filing the Complaint, had not yet issued a decision on the transfer.

Plaintiffs sought a declaration that NYPA failed to perform its duty and acted in excess of its authority through its actions which allegedly diminish plaintiffs' pension and retirement benefits in violation of Article V, Section 7 of the New York State Constitution; a declaration of their rights based on promises made by NYPA and Entergy regarding plaintiffs' future employment, benefits, rights and entitlements, so as "to provide necessary clarity, guidance and certainty to plaintiffs"; a declaration that plaintiffs are third-party beneficiaries of the Agreement between NYPA and Entergy; and a declaration that the agreement between NYPA and Entergy diminished or impaired plaintiffs' pension and retirement benefits in violation of the New York State Constitution.

On October 4, 2000, the parties stipulated that the petition was dismissed as against NYSERS. Entergy removed the litigation from New York State Court to this Court on the grounds that the Employee Retirement Income Security Act ("ERISA") would govern any future disputes once plaintiffs became private sector employees. Entergy argues that ERISA both preempts state court review and provides the exclusive enforcement provision for plaintiffs' potential future injuries. NYPA and Entergy now move for a judgment on the pleadings dismissing the Complaint in its entirety, and plaintiffs move to remand.

On November 9, 2000, the Nuclear Regulatory Commission granted approval for the transfer of IP3 and JAF from the NYPA to Entergy. On November 21, 2000, the parties closed on the purchase and sale of the power plants. As of that date, 48 of the plaintiffs had signed written consent forms agreeing to transfer to Entergy, 6 had decided to retire, and two were on medical leaves of absence.

After considering the arguments of the parties, I am constrained to conclude that I have no power to adjudicate the matter in suit % whatever it may be. Whether because the claim was wrongly removed, or because there is no case in controversy, this Court has no subject matter jurisdiction. Which of those defects is implicated depends on ...


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