Preet Bharara, United States Attorney for the Southern District of New York, announced today that the United States has filed a class action lawsuit against the City of New York, the New York City Police Department (“NYPD”), and the New York City Police Pension Fund (collectively, “the City”),  under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), on behalf of all current and retired NYPD officers who have performed active military service since September 11, 2001, or who will do so in the future. USERRA requires that, in calculating pension benefits,  the employer must take into account the compensation that the service member would likely have earned had he or she not been performing military service, including but not limited to overtime hours and night differential pay. The class action suit alleges that the City only took into account the service members’ base pay rates in calculating their pension benefits, thereby unlawfully reducing those benefits in violation of USERRA.

Manhattan U.S. Attorney Preet Bharara said:  “This country owes an enormous debt of gratitude to the men and women who so unselfishly devote themselves to military service, often risking their lives to protect the United States and its people.  NYPD officers who serve in our military put their lives on the line doubly – as civilians and enlisted men and women.  The purpose of this lawsuit is to ensure that soldiers remain on the same footing as their civilian counterparts and receive all the benefits to which they are entitled, and that they are not penalized for their service by the unlawful calculation of those benefits.”         

According to the pleadings filed in Manhattan federal court:

The City unlawfully calculates the pensionable earnings of NYPD officers called to active military duty by relying exclusively on their base pay rate, instead of including the overtime or night shift differential compensation they would have earned had they not been on active military duty, as required by USERRA.  As a result, service members are being deprived of pension benefits they would have been reasonably like to receive, but for their military service. 

The class action lawsuit seeks to require the City to lawfully calculate the pensionable earnings of all current and former NYPD officers who were called to perform active military service after September 11, 2001, or who will be called, to recalculate the pension benefits they are currently receiving, and to remit any additional pension benefits owed as a result of performing these recalculations.

The lawsuit comes in the form of an amended Complaint to three separate lawsuits previously filed by the U.S. Attorney’s Office on behalf of David Goodman, Michael Doherty, and Robert Black, three NYPD officers who were called to active military service during the time they worked for the NYPD, and whose pension benefits were unlawfully calculated.  The U.S. later moved to amend Goodman’s complaint to raise allegations on behalf of a class of similarly situated individuals.  On July 31, 2012, The Honorable Richard J. Sullivan ruled that Goodman could amend his complaint to assert a class action lawsuit against the City. 

Any current or former NYPD officer who believes that his or her pension benefits may have been improperly reduced based on military service should call the U.S. Attorney's Office Civil Rights Unit Complaint Line at (212) 637-0840.

This case is being handled by the Office’s Civil Rights Unit.  Assistant United States Attorneys Tara M. La Morte and Arastu K. Chaudhury are in charge of the case.

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