# Massone v. United States Department of Justice

> District Court, S.D. New York · June 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10323448

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10323448

## How later opinions describe it (automated extraction)

- explaining that the principle of accepting factual allegations as true “is inapplicable to 1 “Defendants” refers to the United States Department of Justice (“DOJ”); the DOJ’s Office of Justice Programs (“OJP”); the OJP’s Bureau of Justice Assistance (“BJA”
- describing subject matter jurisdiction as the “threshold question that must be resolved before proceeding to the merits” (citation, alteration, and quotation marks omitted)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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, No. 18-CV-4908 (KMK)

Plaintiff, OPINION & ORDER

v.

UNITED STATE DEPARTMENT OF
JUSTICE, OFFICE OF JUSTICE
PROGRAMS, et al.,

Defendants.

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
Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

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”). (See Am. Compl. (Dkt. No.
41).)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.
I. Background
A. Factual Background
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) (accepting “all factual
allegations as true” for the purposes of a motion to dismiss and deeming a complaint to include
“any written instrument attached to it as an exhibit” (citation and quotation marks omitted)).
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) (“[O]n a motion to dismiss, courts are not bound to accept as
true a legal conclusion couched as a factual allegation.” (citation and quotation marks omitted));
Weinreb v. Xeros Bus. Servs., LLC Health & Welfare Plan, 323 F. Supp. 3d 501, 510 (S.D.N.Y.
2018) (explaining that the principle of accepting factual allegations as true “is inapplicable to

1 “Defendants” refers to the United States Department of Justice (“DOJ”); the DOJ’s
Office of Justice Programs (“OJP”); the OJP’s Bureau of Justice Assistance (“BJA”); the BJA’s
Public Safety Officers Benefits Office (“PSOB Office”); and William P. Barr (“Barr”), in his
capacity as Attorney General of the United States of America. (See generally Am. Compl.; Dkt.)
legal conclusions, which, like the complaint’s labels and conclusions, are disregarded” (citations
and quotation marks omitted)), 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.” (Am. Compl. Ex. 3 (“Cooper
PSOB Decision”) 11 (Dkt. No. 41-3).) 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 federal
courthouses 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.)
B. Procedural Background

Plaintiff initiated this Action by filing a Complaint on June 3, 2018. (See Compl. (Dkt.
No. 1).) 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. (See Not. of Mot.; see also Defs.’
Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”); 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. (“Defs.’
Reply”) (Dkt. No. 47).)
II. Discussion
Defendants argue that the Court does not have subject matter jurisdiction under Rule
12(b)(1) because Plaintiff lacks Article III standing, because sovereign immunity precludes
jurisdiction over Plaintiff’s claim, and because the PSOB Act vests jurisdiction for judicial
review of any BJA determination exclusively in the Court of Appeals for the Federal Circuit.
(See Defs.’ Mem. 6–15.) Defendants also argue that, in any event, Plaintiff fails to state a claim
because the Declaratory Judgment Act does not create an independent cause of action. (See id. at
15–16.)
A. Standard of Review
1. Rule 12(b)(1)
“A federal court has subject matter jurisdiction over a cause of action only when it has

authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (citation and quotation marks omitted). “Determining the existence of
subject matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (citation and quotation marks omitted); see also United States v. Bond, 762 F.3d 255,
263 (2d Cir. 2014) (describing subject matter jurisdiction as the “threshold question that must be
resolved before proceeding to the merits” (citation, alteration, and quotation marks omitted)).
The Second Circuit has explained that a challenge to subject-matter jurisdiction pursuant

to Rule 12(b)(1) may be facial or fact-based. See Carter v. HealthPort Techs., LLC, 822 F.3d 47,
56 (2d Cir. 2016). When a defendant raises a facial challenge to standing based solely on the
complaint and the documents attached to it, “the plaintiff has no evidentiary burden,” and a court
must determine whether the plaintiff asserting standing “alleges facts that affirmatively and
plausibly suggest that the plaintiff has standing to sue.” Id. (alterations and quotation marks
omitted) (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)).
In making such a determination, a court must accept as true all allegations in the complaint and
draw all inferences in the plaintiff's favor. See id. at 57. However, where a Rule 12(b)(1) motion
is fact-based and a defendant proffers evidence outside the pleadings a plaintiff must either come
forward with controverting evidence or rest on the pleadings if the evidence offered by the
defendant is immaterial. See Katz v. Donna Karan Co., 872 F.3d 114, 119 (2d Cir. 2017). If the
extrinsic evidence presented by the defendant is material and controverted, a court must make
findings of fact in aid of its decision as to standing. See Carter, 822 F.3d at 57. Here,
Defendants raise a facial challenge to standing.

2. Rule 12(b)(6)
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration and quotation
marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and quotation marks omitted).

Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the
line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556
U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.
Civ. P. 8(a)(2)); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).

In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). The Court
must also “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res.,
Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d
141, 145 (2d Cir. 2012)). Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court
must confine its consideration to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint by reference, and to matters of which
judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.

1999) (quotation marks omitted).
B. Analysis
1. The PSOB Act
The PSOB Act, codified as amended at 34 U.S.C. § 10281, et seq., provides for the
payment of a one-time death and disability benefit to families of public safety officers who have
died “as the direct and proximate result of a personal injury sustained in the line of duty” or who
have become permanently and totally disabled as a result of such an injury. 34 U.S.C.
§§ 10281(a), (b). The PSOB Act defines a “public safety officer” as “an individual serving a
public agency in an official capacity, with or without compensation, as a law enforcement
officer, as a firefighter, or as a chaplain.” 34 U.S.C. § 10284(9)(A). Applicable regulations
further specify that:
an individual serves a public agency in an official capacity only if—
(1) [the officer] is officially authorized, -recognized, or -designated (by such
agency) as functionally within or -part of it; and (2) [the officer’s] acts and
omissions, while so serving, are legally those of such agency, which legally
recognizes them as such (or, at a minimum, does not deny (or has not denied)
them to be such).
28 C.F.R § 32.3. Therefore, in order to be eligible for benefits under the PSOB Act, it must be
determined, in relevant part, that an individual was both functionally “a part of” the public
agency he or she served, and that his or her acts and omissions were legally attributable to that
agency.
Congress has authorized the BJA “to establish such rules, regulations, and procedures as
may be necessary to carry out the purposes” of the PSOB Act. 34 U.S.C. § 10285(a). The BJA
has the authority to conduct investigations and make final determinations of whether a public
safety officer’s injury qualifies for a payment of benefits under the Act. See 34 U.S.C.
§§ 10281(a), (b). The BJA has enacted a multi-step regulatory scheme for the issuance and
review of benefits disbursed pursuant to the PSOB Act. First, potential beneficiaries must file a
claim with the PSOB Office. See 28 C.F.R. §§ 32.12, 32.22. Then, the claimant may request
review of a denial by a hearing officer. See id. § 32.17. The hearing officer will hold a hearing
that may include the presentation of evidence and fact or expert witnesses. See id. § 32.45. The
claimant may then request an appeal of a hearing officer’s denial to the Director of the BJA. See
id. § 32.46. After the Director issues a determination, BJA’s administrative scheme has been
exhausted, and a claimant may appeal a final decision of the BJA to the Court of Appeals for the
Federal Circuit. See id. §§ 32.54–55; see also 34 U.S.C. § 10287.
2. Plaintiff’s Claim
“The jurisdiction of federal courts is defined and limited by Article III of the Constitution
. . . [, and] the judicial power of federal courts is constitutionally restricted to ‘cases’ and
‘controversies.’” Flast v. Cohen, 392 U.S. 83, 94 (1968). “[A]t [the] uncontroverted core [of the
‘case or controversy’ requirement] lies the principle that, at all times, the dispute before the court

must be real and live, not feigned, academic, or conjectural.” Russman v. Bd. of Educ. of
Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). To meet that
minimum constitutional threshold, Plaintiff must establish three things: “first, that [he] has
sustained an injury in fact which is both concrete and particularized and actual or imminent;
second, that the injury was in some sense caused by the opponent’s action or omission; and
finally, that a favorable resolution of the case is likely to redress the injury.” Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.à.r.l, 790 F.3d 411, 417 (2d Cir. 2015) (citations and
quotation marks omitted); see also Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 472 (1982) (“[Article] III requires the party who invokes the

court’s authority to show that he [or she] personally has suffered some actual or threatened injury
as a result of the putatively illegal conduct of the defendant.” (citation and quotation marks
omitted)); Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 (2d Cir. 2009) (“[T]here are three
Article III standing requirements: (1) the plaintiff must have suffered an injury-in-fact; (2) there
must be a causal connection between the injury and the conduct at issue; and (3) the injury must
be likely to be redressed by a favorable decision.” (citation, alteration, and quotation marks
omitted)).
“Congress’s authority to create new legal interests by statute, the invasion of which can
support standing, is beyond question.” Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir.
2016) (citing Warth v. Seldin, 422 U.S. 490, 500 (1975)). “However, even where Congress has
codified a statutory right, a plaintiff must still allege that she has suffered a concrete and
particularized injury connected to that interest.” Bautz v. ARS Nat’l Servs., Inc., 226 F. Supp. 3d
131, 138 (E.D.N.Y. 2016) (citation omitted). “In other words, the creation of a statutory interest
does not vitiate Article III’s standing requirements.” Id. Applying the principles here, to the

extent Plaintiff seeks to bring claims on behalf of CSO union members, he must show that “(a)
[the union’s] members would otherwise have standing to sue in their own right; (b) the interests
[he] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v.
Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
Defendants argue that Plaintiff has failed to allege the existence of any concrete or
particularized injury on behalf of himself or any current member of the CSO union. (See Defs.’
Mem. 7–11.) The Court agrees. Plaintiff is explicit about the fact that he does not seek to
relitigate the PSOB Office’s findings as to Cooper, i.e., the one CSO who is alleged to have been

killed while serving and denied PSOB Act benefits by the PSOB Office. (See Am. Compl. ¶ 21;
Pl.’s Opp’n ¶ 4.) Although Plaintiff adopts this position to avoid the roadblock of the exclusive
jurisdiction vested in the Court of Appeals for the Federal Circuit to review PSOB benefit
determinations, see 34 U.S.C. § 10287, it also deprives the Amended Complaint of any live case
or controversy. Plaintiff does not allege that any current CSO has been disabled or killed while
serving, has filed a PSOB Act claim, or has recently been denied any benefit. (See generally
Am. Compl.) Instead, Plaintiff only seeks “clarification” that all the CSOs Plaintiff seeks to
represent would qualify as a “public safety officer,” as that term is defined in the PSOB Act.
(See id. at ECF 11.)
Plaintiff points to the Cooper PSOB Decision to support the contention that, as a matter
of practice, CSOs have been determined not to qualify for PSOB Act benefits. (See Cooper
PSOB Decision.) However, that decision was quite fact intensive; it considered testimony from
the “Technical Representative” of the United States Marshal’s Service, (id. at 5), the “Vice
President of Court Security Operations,” (id. at 6), and an in-depth analysis of the contract that

Cooper was subject to between AKAL Security and the United States Marshal’s Service, (id. at
6–8). Plaintiff’s contention that this one interpretation and application of the PSOB Act—which
Plaintiff himself acknowledges was not appealed for judicial review, (see Pl.’s Opp’n ¶ 4)—may
deprive other, future CSOs and their beneficiaries from obtaining PSOB Act benefits is
insufficient to establish Article III standing. There is no reasonable certainty that all CSOs who
Plaintiff seeks to represent would present similar evidence at a hearing or encounter similar
agency determinations. The existence of the Cooper PSOB Decision alone thus does not provide
the necessary factual predicate to suggest that a similar outcome would reoccur with any
measurable level of certainty. See Storms v. United States, No. 13-CV-811, 2015 WL 1196592,

at *26 (E.D.N.Y. Mar. 16, 2015) (“While past wrongs may be ‘evidence bearing on whether
there is a real and immediate threat of repeated injury, such evidence does not in itself show a
present case or controversy regarding [declaratory] relief if unaccompanied by any continuing,
present adverse effects.’” (alteration and some quotation marks omitted) (quoting Pungitore v.
Barber, 506 F. App’x 40, 42 (2d Cir. 2012))); see also Marshall v. N.Y. State Pub. High Sch.
Athletic Ass’n, Inc., 374 F. Supp. 3d 276, 285 (W.D.N.Y. 2019) (explaining that a viable dispute
must “admit of specific relief through a degree of conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts” (emphasis added)
(citation, alteration, and quotation marks omitted)). Reaching such a broad conclusion regarding
the eligibility of all CSOs, without any factual predicate for doing so, would usurp the role of the
extensive administrative and judicial review that already exists for review of individual PSOB
Act benefit claims. See 28 C.F.R. §§ 32.17, 32.45–46, 32.54–55. Indeed, Plaintiff alleges that,
in a different case, CSO Belluomini’s beneficiary was successful in obtaining an award under the
PSOB Act, (see Am. Compl. ¶¶ 9–10), further highlighting the fact that without an actual

potential PSOB Act claim at stake, any declaratory relief from this Court would be nothing but
an advisory opinion about a hypothetical situation that may not arise again.
In response to Defendants’ arguments regarding the lack of a live case or controversy,
Plaintiff merely states that it is “a certainty that a CSO will be killed or injured or disabled in the
line of duty.” (Pl.’s Opp’n ¶ 5 (emphasis added).)2 Even if true, this is precisely the type of
“possible future injury” that is barred from resolution under Article III, and does not plausibly
allege the existence of any “certainly impending” injury. Whitmore v. Arkansas, 495 U.S. 149,
158 (1990) (citations and quotation marks omitted); see also Clapper v. Amnesty Int’l USA, 568
U.S. 398, 409 (2013) (“[T]hreatened injury must be certainly impending to constitute injury in

fact, and . . . allegations of possible future injury are not sufficient.” (emphases in original)
(citation, alteration, and quotation marks omitted)). The declaratory relief sought here seeks an
impermissible “declaration of law,” Browning Debenture Holders’ Comm. v. DASA Corp., 524
F.2d 811, 817 (2d Cir. 1975), and “does not carry any implications for practical enforcement
upon the [P]arties,” S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427,
429–30, 431 (2d Cir. 1994) (affirming district court’s dismissal for lack of case of controversy
where the plaintiff sought a declaration that, inter alia, certain activities were “inconsistent” with

2 Plaintiff cites no cases in his Opposition at all, much less any case that would suggest
that such a speculative injury may satisfy standing requirements under Article III. (See generally
Pl.’s Opp’n.)
the rules of a marketplace for the trading of future contracts); see also Clapper, 568 U.S. at 410–
11 (explaining that it is too “speculative” to assume that the Government would choose to take
certain surveillance action against the plaintiffs and that all built-in forms of review of that action
would fail, resulting in injury to the plaintiff). And merely seeking a declaration “does not by
itself establish a case or controversy necessary to confer subject matter jurisdiction.” S. Jackson

& Son, Inc., 24 F.3d at 431 (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–
72 (1950)).
In reaching this legal conclusion, the Court does not seek to make light of the serious
risks which CSOs face in the course of their daily duties. Indeed, it is deeply appreciative of the
security services that CSOs provide to federal judicial facilities around the country. However,
the allegations present in the Amended Complaint are simply too speculative to establish a live
case or controversy, and pursuant to Article III, the Court is bound to dismiss the Action. See
Torres v. U.S. Dep’t of State, No. 18-CV-9555, 2020 WL 1489803, at *5 (S.D.N.Y. Mar. 27,
2020) (explaining that the petitioner’s request that the court “certif[y]” that the petitioner had

been “persecuted” by the United States did not constitute a “live dispute” that could be resolved
by declaratory relief (citations, alterations, and quotation marks omitted)); Bailey v. County of
Erie, No. 09-CV-914, 2011 WL 4498774, at *2–3 (W.D.N.Y. Sept. 27, 2011) (finding that the
plaintiff lacked requisite standing to seek a declaration challenging the enforcement of probation-
related late fees where the authorities had “taken no steps” to collect those fees or to otherwise
apply the relevant local statutory provisions against the plaintiff, resulting in no actual or
imminent injury to the plaintiff); Tamplenizza v. Josephthal & Co., Inc., 32 F. Supp. 2d 702, 704
(S.D.N.Y. 1999) (finding that the court did not have subject matter jurisdiction to issue a
declaratory judgment “advising [the plaintiff] of his right to choose the forum in which he may
or may not bring a suit” where the plaintiff failed to allege that “he or any other securities
customer has brought such claims in federal court or any other forum, or plans to do so in the
immediate future”); see also HealthNow N.Y. Inc v. New York, 448 F. App’x 79, 81 (2d Cir.
2011) (explaining that allegations that the state attorney general would use a specific law to
investigate the plaintiff’s practices, without more, were too “prospective” to present a “real,

immediate, and direct” injury (citation and quotation marks omitted)).3

3 Moreover, even if a case or controversy existed, the Court also notes that it is unlikely
that Plaintiff would be able to circumvent the explicitly exclusive jurisdiction granted to the
Federal Circuit to review issues relating to the PSOB Act. (See Defs.’ Mem. 12–15.) Generally,
“[i]f a special statutory review scheme exists, . . . it is ordinarily supposed that Congress intended
that procedure to be the exclusive means of obtaining judicial review in those cases to which it
applies.” Jarkesy v. Sec. & Exchg. Comm’n, 803 F.3d 9, 15 (D.C. Cir. 2015) (citation and
quotation marks omitted). As previously discussed, an extensive administrative scheme for
appeals of PSOB benefits determinations exists, which culminates in judicial review by
exclusively the Federal Circuit. See 34 U.S.C. § 10287; Moore v. Dep’t of Justice, 760 F.3d
1369, 1372 (Fed. Cir. 2014) (explaining that the court had jurisdiction to review a final
determination of the BJA based on 42 U.S.C. § 3796c-2, currently codified as 34 U.S.C.
§ 10287); see also Li v. Dep’t of Justice, 947 F.3d 804, 807 (Fed. Cir. 2020) (same); Donatello v.
County of Niagara, No. 15-CV-39, 2016 WL 3090552, at *5 (W.D.N.Y. June 2, 2016)
(“Congress has designated the Court of Appeals for the Federal Circuit as the court with the
exclusive power to review administrative decisions concerning public safety officer death
benefits.” (citation omitted)).
It is true that Plaintiff’s claim here is distinct in that Plaintiff does not seek to appeal an
actual BJA determination. However, in Thunder Basin Coal Company v. Reich, 510 U.S. 200
(1994), the Supreme Court considered whether the statutory review scheme laid out in the
Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. § 801, et seq. (the “Mine
Act”), excluded district courts from exercising subject-matter jurisdiction over pre-enforcement
challenges. See 510 U.S. at 202. The Mine Act designated the federal courts of appeals to have
exclusive jurisdiction over challenges to Federal Mine Safety and Health Review Commission’s
decisions on post-enforcement claims, but was silent as to how pre-enforcement claims should
be handled. See id. at 207–08. The Court determined, based on legislative history and the
structure of the Mine Act—namely, its failure to distinguish between pre-enforcement and post-
enforcement challenges—that Congress intended for the courts of appeals to also have exclusive
jurisdiction over pre-enforcement challenges. See id. at 208–09. Therefore, the district court did
not have subject matter jurisdiction over the claim for pre-enforcement injunctive relief. See id.
at 218.
The PSOB Act, like the Mine Act, fails to distinguish between pre-claim and post-claim
challenges. It also clearly streamlines challenges of agency determinations into a single review
Plaintiff has failed to state a viable underlying claim. The Declaratory Judgment Act is
“procedural only, and does not create an independent cause of action.” Chevron Corp. v.
Naranjo, 667 F.3d 232, 244–45 (2d Cir. 2012) (citations and quotation marks omitted). Because
Plaintiff does not have a “substantive claim of right to [any form of] relief,” the Court cannot
“enter a declaratory judgment in favor of” Plaintiff. In re Joint E. & S. Dist. Asbestos Litig., 14

F.3d 726, 731 (2d Cir. 1993).
III. Conclusion4
For the foregoing reasons, Defendants’ Motion To Dismiss is granted. Given that
Plaintiff is counseled and has already had the opportunity to amend in the face of similar
arguments from Defendants, (see Dkt. No. 34), the Amended Complaint is dismissed with
prejudice.

process. By this reasoning, it may be extrapolated that Congress intended for pre-claim or extra-
claim challenges involving the PSOB Act to be heard exclusively by the Federal Circuit as well.
Therefore, this Court likely lacks subject matter jurisdiction on this ground as well. See Chau v.
U.S. Sec. & Exch. Comm’n, 72 F. Supp. 3d 417, 425–26 (S.D.N.Y. 2014) (explaining that a
district court’s “jurisdiction is not an escape hatch for litigants to delay or derail an
administrative action when statutory channels of review are entirely adequate” where the
plaintiffs sought “pre-enforcement relief from the SEC,” thereby circumventing “the statutory
review scheme governing SEC adjudications”), aff’d, 665 F. App’x 67 (2d Cir. 2016).

4 Because the Court has dismissed the Amended Complaint for failure to present a live
case or controversy, it does not address Defendants’ sovereign immunity argument. (See Defs.’
Mem. 11–12.)
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.
43), and close this case.
SO ORDERED.
DATED: June 4, 2020 iy ener Dy
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10323448. Public record. Not legal advice.