Opposition Brief — Massi v. Flynn

No. -1029

IN THE

United States Supreme Court

-—_ =<(})s> --3-—-

(;suy MaAsslI,

Petitioner,

agauiisl

EDWARD FLyNn, individually and as Chief of Police of the Village of

Mamaroneck, Rospert HoL_aNnp, as a member of the Police

Department, Pritt TririLetti, as Mayor of the Village of

Mamaroneck, WILLIAM J. PAONESSA, Trustee, ANTHONY Vozza, Trustee,

CHRISTIE DERRICO, Trustee, JoSEPH ANGILETTA, Trustee,

and THe VILLAGE Or MAMARONECK, NEW YorK,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Joseph A. Saccomano, Jr

Jonathan M. Kozak*

*Counsel of Record

Jackson Lewis LLP

One North Broadway, 15th Floor

White Plains, New York 10601

(914) 328-0404

QUESTION PRESENTED

1.Whether the District Court and Court of

Appeals properly dismissed Petitioner’s class-of-

one equal protection claim as a matter of law?

2.Whether the District Court and Court of

Appeals properly dismissed Petitioner’s due pro

cess claim as a matter of law?

3

TABLE OF CONTENTS

page

QUESTIONS PRESENTED ..........................2cceeeceeeeeees i

COUNTER-STATEMENT OF THE CASE............... 1

I. Massi’s Employment With The Village of Mama-

roneck Police Departament. ..............c.ccccoscocsscveseee 1

II. Massi Received Disciplinary Charges For Failing

To Appear For An Interview With Chief Flynn

And For Refusing To Report For Light Duty. ..... 2

III.Massi Received A Second Set Of Disciplinary

Charges For Further Violations Of VMPD Rules

i 6

IV.Massi’s Applications For Disability, Retirement

And Workers’ Compensation Benefits And Relat-

OE SS Br i ianiciecsinkscsnanidniaceacsrnavcnennenans 7

V. Massi’s Federal Court Lawsuit And Related

pe DEE CIR Ea rset Ate eU Ra ras NN aaron T SENG 10

REASONS FOR DENYING THE PETITION FORA

PE GP Se IIE enestcccscsencenecernsnenunsveustecs 14

I. The Petition Does Not Present A Conflict

Between ‘he Circuits Or An Important

I ac ceacenicenenmuiieh 14

II. The District Court And Court Of Appeals

Properly Dismissed Massi’s Due Process

Claim As A Matter Of Law. ..............00....... Neh 15

nl

. Massi Does Not Possess a Property Interest

In The Receipt Of GML § 207-c Benefits

. Respondents Provided Massi Notice And An

Opportunity To Be Heard Prior To Denying

His Application For GML § 207-c Benefits .. 17

. Massi Has An Adequate Post-Deprivation

Procedure To Challenge Any Purported

Deprivation Of His Property Interests

D. Massi Improperly Attempts To Advance

New Legal Arguments In His Petition

IlI.The District Court And Court Of Appeals

Properly Dismissed Massi’s Equal Protection

Claim As A Matter Of Law

CONCLUSION

1V

TABLE OF AUTHORITIES

FEDERAL CASES page(s)

Bath Iron Works Co. v. Director, Office of Workers’

Compensation Programs, 506 U.S. 153,

i Re Ef eee 19, 21

Bd. of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701

(1972)

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

105 S. Ct. 1487 (1985)

Engquist v. Or. Dep't of Agric., 553 U.S. 591,

128 S. Ct. 2146 (2008)

Finley v. Giacobbe, 79 F.3d 1285 (2d Cir. 1996)

Green v. Bauui, 46 F.3d 189 (2d Cir. 1995)..........

Gudema v. Nassau County, 163 F.3d 717

(2d Cir. 1998)

Hellenic American Neighborhood Action Committee v.

City of New York, 101 F.3d 877 (2d Cir. 1996) 18

Moccio v. New York State Office of Court

Administration, 95 F.3d 195 (2d Cir. 1996)

Rayway Ref. Co. v. Oxygenated Mtkg. & Trading

A.G., 215 F.3d 219 (2d Cir. 2000)

Rivera-Powell v. New York City Bd. of Elections,

470 F.3d 458 (2d Cir. 2006)

Singleton v. Commissioner, 439 U.S. 940,

a |, ne 15

Vv

Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994)

Vargas v. City of New York, 377 F.3d 200

(2d Cir. 2004)

STATE CASES

Cole-Hatchard v. Sherwood, 309 A.D.2d 933, 766

N-Y.S.2d 113 (2d Dep’t 2003)

De Paolo v. County of Schenectady, 200 A.D.2d 277

613 N-Y.S.2d 492 (3d Dep’t 1994)

McTigue v. Town of Clarkstown, 21 A.D.3d 374, 798

N-Y.S.2d 915 (2d Dep’t 2005)

Olivier v. County of Rockland, 260 A.D.2d 482, 688

N-Y.S.2d 580 (2d Dep’t 1999)

Schenectady County Sheriff's Benevolent Ass'n v.

McEvoy, 124 A.D.2d 911, 508 N-Y.S.2d 663

(3d Dep't 1986)

FEDERAL STATUTES

62 UGC. © ROU. nosceaciccccectceeee 11, 12, 16, 18

STATE STATUTES

General Municipal Law

Section 207-c....... 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19

New York Civil Practice Law and

Rules Article 78....7, 10, 11, 12, 13, 14, 15, 17, 18, 19

New York Unconsolidated Laws

OCG BF To occ cccccescnsnsncvunereeeeaeeneeeee 5, 11, 12

COUNTER-STATEMENT OF THE CASE

I. Massi’s Employment With The Village of

Mamaroneck Police Department.

Petitioner Guy Massi (“Massi’), a Sergeant employed

by the Village of Mamaroneck Police Department

(““VMPD”), brought this action against Respondents

Edward Flynn, Chief of Police of the Village of

Mamaroneck, Detective Sergeant Robert Holland

(now retired); (2) former Mayor Philip Trifiletti; (3)

former Village of Mamaroneck Trustees William J.

Paonessa, Anthony Vozza, Christie Derrico and Joseph

Angilletta (hereinafter collectively referred to as the

“Board of Trustees”); (4) the Village of Mamaroneck;

and (5) Defendant John O'Reilly, labor counsel to the

Village of Mamaroneck.

Massi began his employment as a police officer

with the VMPD on February 7, 1994. On June 8,

2000, Massi responded to a dispatcher call regarding

a merchant complaint at a store located in the

Village of Mamaroneck. According to Massi, he and

Sergeant Monachelli entered the store and observed

the merchant and a customer, both of whom were

females. According to Massi, the merchant mouthed

the word “gun” and Massi then saw a man in the

store pointing a gun at him. Sergeant Monachelli,

Massi, the customer and the merchant all ran out of

the store. Massi exited the store before the merchant.

The merchant was the last person to exit the store. By

this time, numerous VMPD officers had arrived at the

scene. The suspect surrendered without any officer or

the suspect discharging their weapon.

2

Massi took a statement from the merchant. In the

statement, the merchant stated that she had been

raped by the man in the store. She also described

the events in a manner indicating that Massi was

not confronted by the man with a gun. Massi told the

District Attorney a different version of events that

transpired inside the store than what the merchant/

rape victim reported. The merchant testified at Massi’s

subsequent Workers’ Compensation hearing that the

suspect did not point his gun at Massi.

No VMPD member who participated in the June 8,

2000 incident was referred to the VMPD psychologist

pursuant to the Department’s Post Critical Incident

Debriefing policy, General Order No. 19.07. Prior to

April 15, 2004 - - almost four years after this incident

- - Massi did not inform any VMPD member that he

suffered from any emotional or physical issues as a

result of the June 8, 2000 incident.

Following the June 8, 2000 incident, Massi

interviewed for a promotion to the rank of sergeant.

In June 2001, Massi was promoted to the rank of

sergeant. Chief Flynn recommended Massi for the

promotion.

II. Massi Received Disciplinary Charges For

Failing To Appear For An Interview With

Chief Flynn And For Refusing To Report For

Light Duty.

In or about January or February 2003, Chief Flynn

and Massi discussed whetiner Massi had any problems

with another police officer. Chief Flynn initiated this

meeting to clarify reports he had received indicating

3

that the police officer was reporting late for his tour of

duty. Massi supervised the officer and it was Massi’s

responsibility to ensure he reported on time for his

tour of duty. Massi informed Chief Flynn that he did

not experience any problems with the officer.

In February 2003, Chief Flynn initiated a second

meeting with Massi because Chief Flynn received

additional reports that the police officers on Massi’s

squad complained to Massi that the officer received

preferential treatment. Notwithstanding these

complaints, Massi reiterated to Chief Flynn that he

had no problems with the officer. However, officers in

Massi’s squad met with Massi and stated they were

upset that the officer made numerous switches to

different tours of duty in order to avoid certain post

assignments. Additionally, the officer admitted in a

deposition that he repeatedly arrived late for work.

During the disciplinary hearings regarding the

officer, Massiand the VMPD learned that certain police

officers recorded conversations with other officers in

violation of VMPD rules and regulations. On April

8, 2004, Massi received a Departmental Order from

Chief Flynn. The April 8, 2004 Departmental Order

required Massi to submit a written report in response

to the information contained in the Order regarding

the unauthorized recording of police officers. Other

police officers received similar orders to the April 8,

2004 Order issued to Massi.

On or about April 13, 2004, Massi prepared a

memorandum in response to Chief Flynn’s April 8,

2004 Order. Massi’s April 13, 2004 memorandum

contained a summary of the information requested by

4

Chief Flynn. On April 14, 2004, Chief Flynn issued

Massi a Departmental Order requiring him to appear

for a meeting with Chief Flynn on April 17, 2004. Massi

received the April 14, 2004 Departmental Order at

the beginning of his midnight to 8:00 a.m. tour of duty

on April 15, 2004. Chief Flynn requested the meeting

with Massi to discuss the contents of his April 8, 2004

Departmental Order and Massi’s response dated April

13, 2004.

At the end of his April 15, 2004 shift, Massi returned

to his home. On April 15, 2004, at approximately

4:00 p.m., Massi allegedly awoke from a nightmare

regarding the June 8, 2000 incident. Massi was briefly

admitted to the hospital as a result of this alleged

nightmare. Massi did not report for his interview with

Chief Flynn on April 17, 2004. Since April 15, 2004,

Massi has not returned to work or communicated with

Chief Flynn. Massi claims that since April 15, 2004,

he has been completely disabled and unable to work.

Because Massi claimed he was unable to work,

on April 19, 2004, Lieutenant Mary Matero ordered

Massi to appear at Industrial Medicine Associates for

a fitness for duty evaluation. On May 19, 2004, Aryeh

Klahr, M.D. evaluated Massi regarding his psychiatric

fitness for duty as a police officer for the Village of

Mamaroneck. Dr. Klahr concluded that while Massi

was not psychiatrically fit to perform full police duties

or carry a weapon, he could perform light duties. Dr.

Klahr further concluded that performing light duty

could be beneficial for Massi. When Chief Flynn spoke

to Dr. Klahr, Dr. Klahr told him Massi was able to

participate in an interview by the Chief and work

D

light duty. Based on Dr. Klahr’s medical conclusions,

Chief Flynn issued Massi a Departmental Order to

report for light duty commencing June 7, 2004. Chief

Flynn also issued Massi a second Departmental Order

dated May 28, 2004, ordering Massi to appear for an

interview with Chief Fiynn on June 2, 2004.

Massi discussed the Departmental Orders to report

for ight duty and to appear for an interview with

his Police Benevolent Association (“PBA”) attorney.

Massi’s PBA attorney cautioned Massi that he

“shouldn’t be surprised if [he] got suspended if [he]

didn’t go back to work.” As of May 28, 2004, Massi

still had never appeared for the originally scheduled

interview with Chief Flynn. Massi also did not appear

for his June 2, 2004 interview with Chief Flynn or

report for light duty.

On June 15, 2004, Massi received a Departmental

Order and Notice of Discipline dated June 14, 2004,

informing him that he was suspended from duty

without pay pending a trial on his disciplinary charges

pursuant to New York Unconsolidated Laws § 5711-

q. Chief Flynn has the authority to suspend a police

officer without pay pursuant to N.Y. Unconsolidated

Laws § 5711-q(21). In addition, the Board of Trustees

has the power to suspend without pay, pending trial

of the charges, any member of the police force. See

N.Y. Unconsolidated Laws § 5711-q(9). Massi was

charged with violating five provisions of the Rules and

Regulations Governing the Police Department of the

Village of Mamaroneck (“Rules and Regulations”) by

failing to comply with the two orders issued by Chief

Flynn: (1) to appear for the interview on June 2, 2004;

6

and (2) to report for light duty on June 7, 2004. Massi

is not aware of any other police officer who failed to

comply with an order from Chief Flynn to attend an

interview or to report for light duty.

Ill. Massi Received A Second Set Of Disciplinary

Charges For Further Violations Of VMPD

Rules And Regulations.

In or about June 2004, prior to preferring additional

disciplinary charges against Massi, Chief Flynn

directed Detective Sergeant Holland to conduct an

investigation regarding allegations that: (1) Massi

falsely reported to Chief Flynn that no members

of Massi’s tour complained to him about an officer

reporting late to work; (2) Massi directed lewd

and degrading sexual gestures toward Lieutenant

Matero; and (3) Massi referred to African-Americans

as “spoons” and “Canadians.” As part of the internal

investigation, Detective Sergeant Holland interviewed

police officers Regan Kelly, Eugene Guadagnolo,

Dominick Carelli, Steve Girardi, Ossie Ramos and

Doug Baron and Lieutenants Mary Matero and Hank

Paul. Contrary to Petitioner’s nefarious accusation,

the evidence collected by Detective Sergeant Holland

accompanied the Internal Investigation Report he

provided to Chief Flynn. On July 19, 2004, Massi was

served with a second set of disciplinary charges for: (1)

his failure to take corrective action or report that the

officer reported late to work; (2) falsely reporting to

Chief Flynn that the officer did not report late to work

or that police officers under Massi’s command did not

complain regarding the officer's repeated lateness; (3)

directing lewd, degrading and sexual gestures toward

7

a female superior officer; and (4) referring to African-

Americans as “Spoons.” Plaintiff has not presented any

evidence that the allegations contained in Detective

Sergeant Holland’s Internal Investigation Report

and the July 19, 2004 disciplinary charges preferred

against Plaintiff are false.

IV. Massi’s Applications For Disability, Retire-

ment And Workers’ Compensation Benefits

And Related Court Proceedings.

On or about June 9, 2004, Massi applied for

disability benefits under General Municipal Law

(“GML”) § 207-c. On June 12, 2004, Massi applied

for New York State Retirement benefits because he

was no longer capable of working as a police officer.

On or about March 13, 2006, Massi’s application for

Performance of Duty Disability Retirement benefits

was denied. In addition, Massi applied for Workers’

Compensation benefits due to the post traumatic

stress disorder he claims he experienced regarding the

June 8, 2000 incident. By decision dated December 18,

2006, the Workers’ Compensation Board affirmed the

Workers’ Compensation Law Judge’s denial of Massi’s

claim for Workers’ Compensation benefits, and the

judge’s finding that Massi’s psychological symptoms

were caused by Respondents’ lawful investigation of

possible unauthorized and illegal activities of VMPD

officers as opposed to the incident of June 8, 2000.

On July 22, 2004, Massi filed a petition in New

York State Supreme Court, Westchester County,

pursuant to New York Civil Practice Law and Rules

(“CPLR”) Article 78, seeking to prohibit the Village

8

of Mamaroneck and Chief Flynn from enforcing the

disciplinary charges served on Massi and compelling

the Village of Mamaroneck to restore him to the

payroll retroactive to June 14, 2004. On December 22,

2004, Justice Mary H. Smith issued a Decision, Order

and Judgment refusing to annul Massi’s suspension

without pay and ordering the Village of Mamaroneck

to process Massi’s application for GML § 207-c benefits

to determine his eligibility for such benefits. Justice

Smith also held that “[t]he law is well settled that

[the] Chief of Police in Westchester County has the

authority to suspend a police officer pending the trial

on disciplinary charges.”

Respondents provided Massi notice and an

opportunity to submit evidence in support of his

GML § 207-c application. Specifically, by letter dated

February 28, 2005, Lieutenant Matero informed

Massi that the Village of Mamaroneck scheduled

him for an examination by Andrew P. Levin, M.D.

to determine his cligibility for GML § 207-c benefits.

Lieutenant Matero further advised Massi that his

own physician also could conduct an examination and

that he would be afforded an opportunity to submit

additional medical documentation in support of his

GML § 207-c application. On March 18, 2005, Dr.

Levin examined Massi. On April 22, 2005, Dr. Levin

issued a report following his examination of Massi. Dr.

Levin diagnosed Massi as “malingering” and further

noted that “the appearance of severe symptoms

coincided with and enabled the claimant to avoid an

ongoing investigation at work.” On or about April 25,

2005, after Massi declined an opportunity to submit

additional evidence in support of his GML § 207-c

9

application, Lieutenant Mary Matero, relying on the

uncontroverted diagnosis of Dr. Klahr, informed Massi

that the Village of Mamaroneck denied his application

for GML § 207-c benefits.

On or about March 13, 2006, Massi filed an Order

To Show Cause in New York State Supreme Court,

County of Westchester, seeking an Order: (1) directing

Respondents to conduct a GML § 207-c hearing; (2)

staying Massi’s disciplinary hearing scheduled for

March 14, 2006; and (3) awarding Massi his salary

and benefits retroactive to June 14, 2004. By Decision

and Order dated April 27, 2006, Justice Smith

vacated the Village of Mamaroneck’s April 25, 2005

denial of Plaintiffs GML § 207-c benefits and ordered

the Village of Mamaroneck to conduct a “GML § 207-

c hearing” before an independent hearing officer to

determine Massi’s eligibility for such benefits. Justice

Smith also enjoined the Village of Mamaroneck

from conducting Massi’s disciplinary hearing until a

determination was rendered on his eligibility for GML

§ 207-c benefits. The Village of Mamaroneck appealed

Justice Smith’s April 27, 2006 Decision and Order on

the grounds, inter alia, that New York law does not

provide for a GML § 207-c hearing. Notwithstanding

the appeal, the Village of Mamaroneck provided

Massi a GML § 207-c hearing in compliance with

Justice Smith’s Order. On or about December 11,

2007, the New York State Supreme Court, Appellate

Division, Second Department, dismissed the Village of

Mamaroneck’s appeal as academic because the Village

of Mamaroneck already provided Massi the hearing.

10

The hearing was conducted before Hearing Officer

Vincent P. D’Andrea. On or about June 27, 2008, Mr.

D’Andrea denied Massi’s application for GML § 207-c

benefits, finding Massi was malingering the symptoms

of PTSD and was capable of performing light duty

work. The Village of Mamaroneck Board of Trustees

adopted Mr. D’Andrea’s decision. On September 18,

2008, consistent with the hearing officer’s decision,

Chief Flynn offered Massi the opportunity to report

for a light duty assignment. Massi refused the offer to

report for light work duty.

On or about October 8, 2008, Massi filed another

petition in New York State Supreme Court,

Westchester County (Index No. 22700/08), pursuant

to CPLR Article 78, seeking review of the Village of

Mamaroneck’s September 8, 2008 determination

which confirmed the determination of Hearing Officer

Mr. D’Andrea denying Massi benefits pursuant to

General Municipal Law § 207-c. On March 16, 2009,

Justice Lester B. Adler issued a Decision, Order and

Judgment transferring the case to the New York

State Supreme Court, Appellate Division, Second

Department. To date, the Appellate Division has not

acted on Massi’s petition.

V. Massi’s Federal Court Lawsuit And Related

Appeals.

Massi alleges Respondents treated him in a

disparate manner and subjected him to selective

prosecution by preferring two sets of disciplinary

charges against him and suspending him without pay.

Massi originally brought claims alleging: (1) violation

11

of his right of free speech under the First Amendment,

42 U.S.C. § 1983 (First Claim); (2) violation of his right

to equal protection and selective prosecution under

the Fourteenth Amendment, 42 U.S.C. § 1983 (Second

and Third Claims); (3) violation of his right to equal

protection under the Fourteenth Amendment, 42

U.S.C. § 1983 on the basis that N.Y. Unconsolidated

Laws § 5711-q, authorizing the unpaid suspension

of a police officer pending a disciplinary hearing, is

unconstitutional on its face and as applied to Massi

(Fourth and Fifth Claims); and (4) negligence against

Chief Flynn under a pendent state law claim (Sixth

Claim).

By Memorandum and Order dated February 1,

2005, the District Court dismissed Massi’s Complaint

in its entirety as to Village Attorney John O'Reilly.

The District Court also dismissed the First and Sixth

claims as to all Respondents, dismissed the Fourth

and Fifth claims as to the individual Respondents, and

denied Massi’s cross-motion to amend the Complaint.

The District Court held that N.Y. Unconsolidated

Laws § 5711-q permits the Board of Trustees to

suspend a police officer indefinitely without pay

pending a disciplinary hearing. The District Court

further held that if Massi intended to proceed with

his Fourth and Fifth claims against the Village of

Mamaroneck regarding the constitutionality of N-Y.

Unconsolidated Law § 5711-q, he had to comply with

Local Civil Rule 24.1 of the United States District

Court for the Southern District of New York, and serve

the New York State Attorney General with notice.

12

On November 30, 2005, Respondents moved for

summary judgment on Massi’s remaining claims: the

Second and Third claims alleging unequal treatment

and selective prosecution under the Fourteenth

Amendment, 42 U.S.C. § 1983; and the Fourth and Fifth

claims against the Village of Mamaroneck regarding

the constitutionality of N.Y. Unconsolidated Laws

§ 5711-q. On January 31, 2006, Massi filed a cross-

motion for summary judgment to add a procedural

due process claim.

In its May 15, 2006 Memorandum and Order, the

District Court: (1) dismissed the Fourthand Fifthclaims

regarding the constitutionality of N-Y. Unconsolidated

Law § 5711-q due to Massi’s failure to comply with

Local Rule 24.1; (2) denied the Respondents’ motion

on Massi’s Second and Third claims for selective

prosecution and unequal treatment; (3) denied Massi’s

cross-motion for summary judgment; (4) granted

Massi leave to amend to add a due process claim and

denied the Respondents’ summary judgment motion

as to that claim; and (5) denied Chief Flynn’s motion

for summary judgment on the basis of qualified

immunity. Therefore, the only remaining claims in

the case were Massi’s Second and Third claims based

on equal protection and the newly added due process

claim.

On or about May 24, 2006, Chief Flynn appealed the

denial of his motion for summary judgment based on

the defense of qualified immunity as to the remaining

claims. In addition, all Respondents requested the

United States Court of Appeals for the Second Court

to exercise pendent appellate jurisdiction over the

13

District Court’s denial of their motion for summary

judgment on the remaining claims. On November 16,

2007, the Second Circuit affirmed the decision of the

District Court and remanded the case to the District

Court.

On September 10, 2008, Respondents requested

that the District Court dismiss Massi’s remaining

claims for equal protection and due process violations.

Respondents argued that this Court’s decision in

Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 128

S. Ct. 2146 (2008) invalidated Massi’s “class of one”

equal protection claim. In addition, Respondents

argued Massi’s due process claim failed as a matter of

law because: (1) Massi could not demonstrate that he

was deprived of a protected property interest in order

to state a valid due process claim; (2) Respondents

provided Massi notice and an opportunity to be heard

prior to denying his application for GML § 207-c

benefits and also provided him a GML § 207-c hearing;

and (3) Massi had an adequate post-deprivation

state remedy to safeguard his alleged property right

which he is currently pursuing through his New York

Civil Practice Law and Rules Article 78 (“Article

78”) petition. On October 8, 2008, the District Court

dismissed Massi’s equal protection and due process

claims.

On November 10, 2008, Massi filed a Notice of

Appeal. Massi limited the issues on appeal to the

District Court’s ruling that Massi’s equal protection

and due process claims failed as a matter of law.

Massi did not appeal the dismissal of any of his other

causes of action. By Summary Order dated November

14

24, 2009, the Second Circuit affirmed the judgment

of the District Court. The Second Circuit held that

this Court’s Engquist decision barred Massi’s equal

protection claim because “Massi only claims that he

was treated differently from other similarly situated

employees for malicious reasons or due to his alleged

psychological injury and failure to cooperate with

Flynn’s investigation of another police officer, and

not on the basis of his membership in any particular

class.” (See Petitioner’s Appendix at 3a). The Second

Circuit affirmed the dismissal of Massi’s due process

claim because: (1) Massi did not have a property

interest in the receipt of GML § 207-c benefits; and (2)

Massi received a hearing and challenged the results

of the hearing by bringing an Article 78 proceeding

which constitutes an adequate pre-deprivation and

post-deprivation remedy under New York law. (See

Petitioner’s Appendix at 4a).

REASONS FOR DENYING THE PETITION FOR

A WRIT OF CERTIORARI

I. The Petition Does Not Present A Conflict

Between The Circuits Or An Important

Federal Question.

A petition for a writ of certiorari is granted only for

compelling reasons. (Sup. Ct. Rule 10). The instant

case does not meet any of the criteria established in

Rule 10 for granting the petition because the decision

issued by the Second Circuit does not conflict with the

decision of another United States court of appeals,

the New York Court of Appeals or this Court. See also

15

Singleton v. Commissioner, 439 U.S. 940, 945, 99 S.

Ct. 335, 339 (1978) (“the ebsence of any conflict among

the Circuits is plainly a sufficient reason for denying

certiorari’). Petitioner requests this Court grant the

petition because he argues that the Second Circuit

misapplied the facts and the law in affirming the

District Court’s dismissal of his due process and equal

protection claims. The District Court and the Second

Circuit viewed the facts in the light most favorable to

Petitioner and applied controlling legal principles in

dismissing his claims. Nonetheless, “[a] petition for a

writ of certiorari is rarely granted when the asserted

error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” (Sup.

Ct. Rule 10). Accordingly, the Petition For Writ Of

Certiorari should be denied.

Il. The District Court And Court Of Appeals

Properly Dismissed Massi’s Due Process

Claim As A Matter Of Law.

The District Court and Second Circuit correctly

dismissed Massi’s due process claim because: (1)

Massi did not possess a property right in the receipt of

GML § 207-c benefits; (2) Respondents afforded Massi

notice and an opportunity to be heard in support of his

application for GML § 207-c benefits; (3) Respondents

afforded Massi a hearing in compliance with the Order

of Justice Smith; and (4) Massi’s filing of an Article

78 appeal to challenge the denial of his application

for GML § 207-c benefits constitutes an adequate pre-

deprivation and post-deprivation remedy under New

York law.

16

A. Massi Does Not Possess a Property Interest In

The Receipt Of GML § 207-c Benefits.

Massi must demonstrate that he was deprived of a

protected property interest to state a valid procedural

due process claim under the Fourteenth Amendment.

See Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.

Ct. 2701, 2705 (1972); Green v. Bauvi, 46 F.3d 189,

194 (2d Cir. 1995). It is well established that a police

officer is only entitled to a due process hearing where

GML § 207-c benefits are revoked or terminated. See

McTigue v. Town of Clarkstown, 21 A.D.3d 374, 375,

798 N.Y.S.2d 915 (2d Dep’t 2005); Cole-Hatchard v.

Sherwood, 309 A.D.2d 933, 766 N.Y.S.2d 113 (2d Dep’t

2003); Olivier v. County of Rockland, 260 A.D.2d 482,

483, 688 N.Y.S.2d 580 (2d Dep’t 1999). Massi’s GML

§ 207-c benefits were not revoked or terminated as he

was not eligible to initially receive such benefits. It is

uncontroverted that a municipality has the discretion

to initially determine an employee’s eligibility for

benefits. See De Paolo v. County of Schenectady, 200

A.D.2d 277, 380, 613 N.Y.S.2d 492, 494 (3d Dep’t

1994).

Further, “[a] plaintiff must have a property interest

in a benefit that is ‘more than an abstract need or

desire for it...{He] must, instead, have a legitimate

claim of entitlement to it’ under state or federal law in

order to state a § 1983 claim.” Finley v. Giacobbe, 79

F.3d 1285, 1296 (2d Cir. 1996) (quoting Bd. of Regents,

408 U.S. at 577; 92 S. Ct. at 2709)). A police officer

who submits an application for GML § 207-c benefits

merely possesses an expectation of receiving such

benefits. See Schenectady County Sheriffs Benevolent

17

Ass'n v. McEvoy, 124 A.D.2d 911, 508 N-Y.S.2d 663,

664 (3d Dep’t 1986). Accordingly, because Massi does

not have a property interest in the receipt of GML §

207-c benefits, the Second Circuit correctly held thai

he cannot state a viable due process claim.

B. Respondents Provided Massi Notice And An

Opportunity To Be Heard Prior To Denying

His Application For GML § 207-c Benefits.

Evenif Massi possessed a property right inthe receipt

of GML § 207-c benefits, and if his current Article 78

proceeding challenging the denial of his benefits does

not bar his due process claim, Massi’s claim still must

be dismissed because Respondents afforded Massi

due process prior to denying his application for GML

§ 207-c benefits. “The essential requirements of due

process ... are notice and an opportunity to respond.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546,

105 S. Ct. 1487, 1495 (1985). Respondents provided

Massi notice and multiple opportunities to present

evidence in support of his application for GML § 207-c

benefits prior to denying him benefits. Respondents

processed Massi’s GML § 207-c application pursuant

to its general policies and procedures that apply to all

Village of Mamaroneck police officers.

Lieutenant Matero relied on the medical opinion

of Dr. Levin in making her recommendation to

deny Massi GML § 207-c benefits. Respondents also

conducted a four-day hearing before an independent

hearing officer, even though they were not required to

conduct a hearing under the law, to determine Massi’s

eligibility for GML § 207-c benefits. The hearing

18

officer determined Massi was not eligible for GML §

207-c benefits. Massi’s ability to present evidence in

support of his application for GML § 207-c benefits,

both before and during his hearing, satisfies any due

process requirements Respondents were required to

afford Massi. See Rivera-Powell v. New York City

Bd. of Elections, 470 F.3d 458, 466-68 (2d Cir. 2006)

(holding that a candidate’s opportunity to voice her

objection to the removal of her name from the ballot,

coupled with an adequate judicial remedy of an Article

78 proceeding to challenge any alleged error, provided

her with sufficient due process).

C. Massi Has An Adequate Post-Deprivation

Procedure To Challenge Any Purported

Deprivation Of His Property Interests.

‘

To prevail under a procedural due process claim, “a

plaintiff must show that the ‘procedural safeguards...

established by the state are insufficient to protect

[his] rights.” Moccio v. New York State Office of Court

Administration, 95 F.3d 195, 200 (2d Cir. 1996) (citing

Valmonte v. Bane, 18 F.3d 992, 1002 (2d Cir. 1994)).

“There is no constitutional violation (and no available

[section] 1983 action) when there is an adequate state

post-deprivation procedure to remedy a random,

arbitrary deprivation of property or lLiwerty.” Hellenic

American Neighborhood Action Committee v. City of

New York, 101 F.3d 877, 882 (2d Cir. 1996). An Article

78 petition is an adequate post-deprivation remedy for

due process purposes for violations due to the random

and arbitrary acts of state employees. Id. at 881-82.

19

208 (2d Cir. 2004); Gudema v. Nassau County, 163

F.3d 717, 724-25 (2d Cir. 1998).

Respondents appointed independent hearing officer

Vincent D’Andrea to conduct Massi’s GML § 207-c

hearing. On or about June 27, 2008, Mr. D’Andrea

denied Massi’s application for GML § 207-c benefits

because he was malingering the symptoms of PTSD

and he was capable of performing light duty work.

On or about October 8, 2008, Massi filed an Article 78

proceeding to challenge the denial of his application

for GML § 207-c benefits. Massi’s Article 78 petition

is currently pending before the Appellate Division,

Second Department. Because Massi is challenging the

denial of his GML § 207-c benefits through an Article

78 proceeding, the District Court and Court of Appeals

properly dismissed his due process claim as a matter

of law.

D. Massi Improperly Attempts To Advance New

Legal Arguments In His Petition.

In his petition, Massi argues that “a fair reading

of the Complaint sets forth a conspiracy with Flynn,

Holland and Mateo as the principal actors.” (Petition

at 13). Although it is not clear what type of conspiracy

claim Massi attempts to assert in the Petition, he did

not advance this argument before the District Court

or the Second Circuit. Accordingly, Massi has waived

his right to raise this issue in connection with the

instant Petition. See Bath Iron Works Co. v. Director,

Office of Workers’ Compensation Programs, 506 U.S.

153, 162, 113 S. Ct. 692, 698 (1993); Rayway Ref. Co.

20

222 n.2 (2d Cir. 2000) (an appellate court will not

consider an issue raised for the first time on appeal).

Regardless, Massi’s due process claim is invalid for

the same reasons discussed above.

Ill. The District Court And Court Of Appeals

Properly Dismissed Massi’s Equal Protec-

tion Claim As A Matter Of Law.

Massi does not dispute that he alleges a class-of-one

equal protection claim or that this Court invalidated

class-of-one equal protection claims in the public

employment context. See Engquist v. Or. Dep’t of

Agric., 553 U.S. 591, 128 S. Ct. 2146 (2008). Instead,

Massi argues his class-of-one equal protection claim

is not barred by this Court’s Engquist decision

because his employment was not “similarly situated”

to Engquist’s employment. (Petition at 14). Massi’s

argument is unavailing. This Court’s holding that

the class-of-one theory of equal protection has no

application in the public employment context bars

Massi’s equal protection claim. As the Second Circuit

correctly summarized, “[b]ecause Massi claims only

that he was treated differently from other similarly

situated employees for malicious reasons or due to his

alleged psychological injury and failure to cooperate

with Flynn’s investigation of another police officer,

and not on the basis of his membership in any

particular class, his equal protection claim is barred

by Engquist.” (See Petitioner’s Appendix at 3a).

In his petition, Massi also argues for the first time

that he “alleges a conspiracy to essentially remove

him from his position” and “deprive him of equal

21

protection.” (Petition at 14). Massi did not advance

this argument before the District Court or the Second

Circuit. Accordingly, Petitioner has waived his right

to raise this issue in connection with the instant

Petition. See Bath Iron Works, 506 U.S. at 162, 113

S. Ct. at 698; Rayway Ref. Co., 215 F.3d at 222 n.2.

Nonetheless, Massi’s admission that he alleges a

class-of-one equal protection claim bars his claim as

a matter of law.

22

CONCLUSION

Massi has not presented any compelling reasons for

this Court to grant a writ of certiorari. In addition,

the District Court and Court of Appeals correctly

dismissed Massi’s due process and equal protection

claims as a matter of law. Accordingly, the Petition

For Writ Of Certiorari should be denied.

Respectfully submitted,

JACKSON LEWIS LLP

One North Broadway, 15th Floor

White Plains, New York 10601

(914) 328-0404

Joseph A. Saccomano, Jr.

Jonathan M. Kozak*

*Counsel of Record

ATTORNEYS FOR RESPONDENTS

Dated: March 26, 2010

White Plains, New York

ls

Bold Appellate Solutions

1140 Broadway, Suite 1602, New York, NY 10001 « Tel: 212-251-0006

www.boldappeal.com

JOB ID: 2010-504