Kreindler's 9/11 Pro Bono Battle with Department of Justice Ends in Victory for Fallen Firefighter
For over five years, the U.S. Department of Justice (DOJ) took an unreasonably hard line in denying recognition and benefits under the Federal Public Safety Officers’ Benefits Act, or PSOBA, (42 U.S.C. § 3796) to volunteer firefighter-EMT Glenn Winuk.
On the morning of September 11, 2001, Winuk left his law office in lower Manhattan with his EMT bag to assist the FDNY with first aid and rescue operations in the South Tower when he was killed in the building collapse. He was recognized both as a hero and as rescue worker killed in the line of duty by his own Jericho Fire Department (JFD), the FDNY, the National Fallen Firefighters Memorial and the State of New York — but not by the federal government who claimed that his status change from 19 years of active firefighter to associate member of the JFD disqualified him and that his family could not prove he was invited and authorized to assist the FDNY. His body, donned with EMT gear and JFD credentials, was found among other FDNY rescue workers in a secure area.
The FDNY officers who had presumably authorized and directed his rescue activities likely perished along with Winuk.
When Glenn’s surviving brother, Jay Winuk, told Kreindler & Kreindler partner Andrew (Duke) Maloney about the DOJ injustice, Duke immediately offered to appeal the claim pro bono. Maloney is, by coincidence, also a volunteer firefighter in Greenwich, Connecticut, and was compelled to right this wrong.
The DOJ appointed a hearing examiner, Daniel Skoler, to preside over the administrative appeal. After presenting testimony, including that of FDNY 911 Fire Commissioner Tom Von Essen and others, along with other evidence and legal briefing and arguments, Skoler agreed that Winuk was a rescue worker killed in the line of duty and entitled to the PSOBA recognition and benefits and filed a written opinion.
Unfortunately, the Justice Department took issue with its own hearing examiner and overturned the Skoler decision. Undeterred, Maloney filed a complaint against the Justice Department in the U.S. Court of Federal Claims in Washington, DC. Summary judgment motions were filed by both sides and a legal battle ensued in the Court.
Judge Marian Horn of the U.S. Court of Federal Claims issued a lengthy and scorching opinion adopting nearly all of the points raised by Maloney and ordered that Winuk be recognized as a rescue worker killed in the line of duty entitling his family to PSOBA benefits.
Undeterred, the DOJ Civil Division filed a Notice of Appeal. Maloney and associate Orla Brady then met with the Assistant Solicitor General in charge of reviewing the file. Maloney outlined a litany of reasons why the government should withdraw its appeal. Happily, after considering those arguments, the Justice Department withdrew its appeal and agreed to recognize Winuk’s line of duty death and pay the family benefits.
When Hearing Examiner Skoler learned of the final outcome he wrote the following to Maloney:
Your news was most welcome, your remarks of appreciation gratifying and my feelings for the family and its "mission/justice accomplished" outcome in the Winuk claim filled we with empathy and admiration. However, it seems clear to me that the target of any credit has got to be that commendably stubborn, outstandingly capable and amazingly effective attorney who carried the case on his shoulders against the Department of Justice Goliath that seemed so invested in dragging a tenuous position to a bitter and unwarranted legal end against a true and entitled 9/11 hero. Congratulations and please convey my warmest wishes and respect to the family.