# Opposition Brief — Massi v. Flynn

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1659%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1107

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1659%3A3. Public record. Not legal advice.