Massone v. U.S. Dep't of Justice
| Decision Date | 04 June 2020 |
| Docket Number | No. 18-CV-4908 (KMK),18-CV-4908 (KMK) |
| Parties | THOMAS A. MASSONE, individually, on behalf of all similarly situated Court Security Officers employed to perform Court Security Services in and about the United States Courts under contract with the United States Marshals Service, and in his capacity as President of the United States Court Security Officers' Union, Plaintiff, v. UNITED STATE DEPARTMENT OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Pat Bonanno, Esq.
Pat Bonanno & Associates, P.C.
White Plains, NY
Counsel for Plaintiff
Danielle Judith Levine, Esq.
U.S. Attorney's Office, Southern District of New York
New York, NY
Thomas A. Massone ("Plaintiff"), in his individual capacity, as President of the United States Court Officers Union, and on behalf of all similarly situated Court Security Officers ("CSOs") employed to perform Court Security services in the United States Courts, brings this Action against Defendants, seeking a Declaratory Judgment, pursuant to 28 U.S.C. § 2201 (the "Declaratory Judgment Act"), that all persons acting as "Special Deputy United States Marshals" and performing CSO duties qualify as "Public Safety Officers" as defined in the Public Safety Officer Benefits Act, 34 U.S.C. § 10281, et seq. (the "PSOB Act"). 1 Before the Court is Defendants' Motion To Dismiss (the "Motion"), pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). (See Not. of Mot. (Dkt. No. 43).) For the reasons discussed below, the Motion is granted.
The following facts are taken from Plaintiff's Amended Complaint and the exhibits incorporated therein. Any factual allegations are assumed true for the purposes of this Motion. See Sierra Club v. Con-Strux LLC, 911 F.3d 85, 88 (2d Cir. 2018) (). However, the Amended Complaint also includes a number of legal arguments that do not receive the same favorable treatment, even at the motion to dismiss stage. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ; Weinreb v. Xeros Bus. Servs., LLC Health & Welfare Plan, 323 F. Supp. 3d 501, 510 (S.D.N.Y. 2018) (), appeal filed, No. 18-2809 (2d Cir. Sept. 21, 2018).
Plaintiff is a CSO who is designated as a "Special Deputy United States Marshal," and is a member and President of the United States CSO's Union. (Am. Compl. ¶ 1.) Plaintiff alleges that, "[s]ince the inception of the [CSO] program," three CSOs have been killed while serving. (Id. ¶ 7.)
The first was Special Deputy United States Marshal Harry A. Belluomini ("Belluomini"), who was killed in July 1992 by a prisoner who managed to free himself during transport from a federal building in Chicago. (Id. ¶ 8.) In September 1992, Belluomini's wife was notified that a payment was awarded to Belluomini's "eligible survivors" pursuant to the PSOB Act. (Id. ¶ 9.) Plaintiff alleges that the benefit was awarded pursuant to a determination that Belluomini was a "public safety officer, i.e., one who was serving a public agency in an official capacity, i.e., he was officially authorized, [] recognized, or []designated (by such agency) as functionally within or []part of it; and his acts and omissions, while so serving, were legally those of such agency . . . ." (Id. ¶ 10 (italics omitted).) Plaintiff claims that this finding was "further buttressed" by a subsequent decision by the Seventh Circuit, which explained that it considered Belluomini as an "employee" of the United States Marshal's Service, and therefore, his coverage under the Illinois Workers' Compensation barred recovery under the Federal Tort Claims Act ("FTCA"). (Id. ¶ 11.)
The second CSO alleged to have been killed while serving was Special Deputy United States Marshal Gene Goldsberry ("Goldsberry"). (Id. ¶ 12.) Plaintiff alleges that it is "unknown whether a claim for benefits under the provisions of the [PSOB] Act was either [sic] made or granted or denied." (Id.)
The third CSO alleged to have been killed while serving was Special Deputy United States Marshal Stanley Cooper ("Cooper"). (Id. ¶ 13.) Cooper was allegedly shot while manning the entrance of the federal district court in Las Vegas, Nevada on January 4, 2010. (Id.) In September 2015, one of Cooper's children received a letter advising him that his claim for benefits under the PSOB Act was denied. (Id. ¶ 14.) The hearing officer determined that Cooper was "officially recognized as functionally a part of the USMS." However, the hearing officer noted that there was no language established by any contract that suggested that the United States Marshal's Service had an employer-employee relationship with Cooper. (Id. at 12.) The officer determined that AKAL Security ("AKAL"), a private company that contracted with the United States Marshal's Service to "provide the necessary personnel, management and supervision, administrative support, materials, supplies, office, and equipment not supplied by the government," (id. at 5), maintained so much material control over Cooper's employment that they "had direct physical supervisory responsibility over . . . Cooper," (id. at 13). Therefore, the PSOB hearing officer concluded that, despite being "functionally" within the United States Marshal's Service, the United States Marshal's Service—by the terms of the contracts at issue—was not truly "responsible for [Cooper's] actions and omissions." (Id. at 14 (quotation marks omitted).) Therefore, according to the hearing officer, Cooper was not considered a "public safety officer," and his beneficiaries were not entitled to any benefit under the PSOB Act. (Id. at 15.)
Plaintiff argues that the hearing officer's determination "completely ignores the reality of the employment situation of a" CSO, who is "in fact supervised by the Chief Deputy U.S. Marshal on duty in every United States Courthouse" and is subject to the "de facto" supervision of judges, hearing officers, government attorneys, and other employees within federalcourthouses who "will not hesitate to report any untoward behavior" to the CSOs on duty. (Am. Compl. ¶ 17 (italics omitted).) Plaintiff also claims that the United States Marshal's Service "can rescind deputation and demand removal," despite the fact that many CSOs are contractors provided by private security companies. (Id.) Plaintiff provides some other "indicia of ultimate authority and control" that the United States Marshal's Service exercises over a CSO's employment: (1) the United States Marshal's Service issued a mandate in March 2017 requiring all CSOs to wear body armor while performing contractual duties; (2) in 2013, the Southern District of California required its in-custody prisoners to be produced in shackles for all non-jury appearances, which allegedly "placed an additional duty" on the CSOs in that District; and (3) any allegation of rules violation by CSOs is first investigated by the United States Marshal's Service, which "makes a recommend[a]tion to AKAL as to the appropriate penalty, ranging up to and including dismissal," and notwithstanding that AKAL "does the actual firing," the United States Marshal's Service "reserves the right to demand removal from the CSO program." (See id. ¶ 17 n.6-8.)
Plaintiff alleges that the United States Marshal's Service continues to "affirm" to CSOs at various training venues that CSOs are covered by the PSOB Act. (Id. ¶ 19.) Plaintiff argues that there is an "apparent conflict" between the representations made to current and prospective CSOs about the PSOB Act and the potential denial of benefits that they might face after being disabled or killed. (Id. ¶¶ 19-20.) However, Plaintiff specifies that he is not seeking "to overturn, modify, or otherwise affect the determination" regarding Cooper's benefits. (Id. ¶ 21.) Instead, Plaintiff asks this Court to determine "the respective rights of the parties going forward." (Id.)
Based on the above, Plaintiff seeks a Declaratory Judgment that all persons designated as "Special Deputy United States Marshals" and performing CSO duties in United States courthouse and courthouse facilities are "public safety officers," as that term is defined in the PSOB Act. (Id. at ECF 11.)
Plaintiff initiated this Action by filing a Complaint on June 3, 2018. In response to Defendants' Pre-motion Letter, the Court held a Pre-motion Conference and permitted Plaintiff to amend the Complaint. (See Dkt. No. 38; Dkt. (minute entry for Oct. 8, 2019).) At that conference, the Court also set forth a briefing schedule for any motion to dismiss the anticipated amended pleading, if Defendants wished to move. (See Dkt. No. 38.) Plaintiff filed the Amended Complaint on October 30, 2019. (See Am. Compl.)
Defendants filed their Motion on December 12, 2019. Mem. of Law in Supp. of Mot. ( ); Decl. of Hope D. Janke in Supp. of Mot. ("Janke Decl.") (Dkt. Nos. 44-45).) Plaintiff submitted only an attorney Declaration to oppose the Motion. (See Decl. of Pat Bonanno, Esq. in Opp'n to Mot. ("Pl.'s Opp'n") (Dkt. No. 46).) Defendants filed their Reply on January 31, 2020. (See Defs.' Reply in Supp. of Mot. ( ) (Dkt. No. 47).)
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