Larry's Legal Lessons: Volunteer's Family Awarded Money after 9/11 Death

Legal Lesson: When applying for Public Safety Officer Death Benefits, fight the bureaucracy, and don't accept "No" for an answer. Seymour Winuk (father of Glenn Winuk, deceased) v. United States, U.S. Court of Federal Claims, June 20, 2007.

Introduction: When terrorists flew aircraft into the World Trade Center on 9/11/01, attorney Glenn Winuk, Esq., 40, responded exactly as he had been trained since becoming a volunteer firefighter/EMT on Long Island in 1979. He first helped evacuate personnel from the building where his law firm was located, adjacent to the World Trade Center. Then he grabbed a stethoscope, surgical gloves, and ran into the South Tower to offer his assistance to FDNY - and died in the building collapse. His body was not recovered until March, 2002, and was located near FDNY rescuers from what was the lobby of the South Tower. In his wallet was his Jericho Fire Department identification card.

Claim for benefits: Glenn's parents filed a claim for benefits under the Public Safety Officers' Death Benefits Act of 1976. But the Department of Justice questioned Glenn's status as a "public safety officer" since in 1998, Glenn had changed his status with the Jerico Fire Department from "active" to "associate member" and his EMT certificate expired.

The family supported their claim with two letters from Jerico Fire Chief John Lottes. Chief Lottes' letter of March 31, 2002 said, "As Chief of the Jericho Fire Department as someone familiar with Glenn's actions on September 11 and his firefighting career, my view is that Glenn Winuk should be recognized by all as having been 'lost in the line of duty' while acting as a rescuer representing the Jericho Fire Department."

Chief Lottes wrote a second letter on May 1, 2002, "In my opinion, Glenn was acting as a bona fide agent of the Jericho Fire Department, acting directly on its behalf, while assisting FDNY with rescue and emergency care operations in the South Tower of the World Trade Center."

Claim denied first time by Department of Justice: On July 20, 2004, the claim was denied on the basis that the fire chief failed to clearly certify that Glenn was a public safety officer, but only that Glenn "should" be so recognized.

Congress defined the term "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, as a chaplain, or as a member of a rescue squad or ambulance crew." (42 U.S. Code 3796b.)

Glenn's parents wisely filed an appeal to an independent hearing officer, and sought support from the New York state legislature.

New York Legislature: The New York Legislature in Albany, NY, passed a statute which was signed into law on Aug. 2, 2005 by Governor George Pataki. The act stated that Glenn "who served as a firefighter and emergency medical technician with the Jerico volunteer fire department for 19 years...shall be deemed to have been an active member of the Jerico volunteer fire department at the time of his death with full active employment status."

Hearing Officer Grants Claim: Daniel Skoler, an independent hearing officer, conducted a hearing, and on Sept. 10, 2005, granted the claim. Significantly, he found that Glenn's status as an "associate member" of the Jericho Fire Department prevented him from "from engaging in firefighting activities (as opposed to emergency medical assistance)."

He further found that New York law allowed the FDNY to accept assistance from trained EMS providers, like Glenn, given their "acute need for qualified EMT assistance" at the World Trade Center. The hearing officer also said that in addition to the New York bill recognizing Glenn to have been an active member of the fire department, there was "compelling evidence" that FDNY incident commanders gave Glenn permission to lend assistance in the South Tower, given the Jerico Fire Department ID card found in his wallet, and Glenn's training on the need to check in with incident command.

Claim denied second time by Department of Justice: Under Department of Justice regulations, the Director of the Bureau of Justice Assistance has the authority to review the hearing officer's decision. On Sept. 1, 2006, the director rejected the findings of the hearing officer.

This was based in part on two items of "newly discovered" evidence - (1) the New York State Department of Health stated his EMT card had expired in 1988, and (2) an attorney for Jericho Fire Department confirmed in writing that Glenn, as an "associate member" was "not legally authorized by the Jerico Fire Department to engage in emergency medical services."

In addition, the director said the New York Legislature's act was not entitled to any "special evidentiary weight." The Department of Justice regulations will give such consideration to state, local or federal "investigative agencies" that confirm Glenn had authority to act as an EMT on behalf of his department.

Glenn's parents filed an appeal to the U.S. Court of Federal Claims.

U.S. Court of Federal Claims to the rescue: On June 20, 2007, Judge Marian Blank Horn of the U.S. Court of Federal Claims in Washington, D.C., reviewed the administrative record, and found the claim well supported, and entered judgment of $250,000 to the family of Glenn Winuk in a 23 page opinion, Seymour Winuk (father of Glenn Winuk) v. United States.

Judge Horn based her decision on laws passed by Congress after the September 11 attack, including Public Law 107-31, which provides that when a public agency certifies a deceased member as a "public safety officer" who died in the line of duty, this certification shall be considered "prima facie" of entitlement of benefits.

The legislative history of Public Law 107-37 ("Expedited Payment for Heroic Public Safety Officers" Act) reflects the will of Congress that the Department of Justice should normally authorize death benefits payments promptly. The bill was introduced in House of Representative on Sept. 13, 2001, just two days after the terrorist attacks on the World Trade Center, the Pentagon, and the plane crash in Pennsylvania. The bill passed both House and Senate quickly, and was signed into law on September 18, 2001.

Judge Horn wrote in her opinion, "When the statute provides a clear answer, the court's analysis is at an end." Judge Horn also referred to the legislative history of Public Law 107-37, "The legislative history of Public Law 107-37 reflects the tragic circumstances which led to its enactment and the desire of members of the legislature to somehow lessen the suffering of families of the heroes lost in the attacks." Judge Horn quotes from the Congressional Record the statement of Representative Sensenbrenner, "I would certainly hope that the law would be able to respond to this tragedy so that these payments can be made promptly rather than having months or perhaps years of litigation."

Senator Leahy confirms, "In the face of this national tragedy, it is important that we begin to process quickly this measure of relief for the families of these brave Americans who selfishly gave their lives so others might live through the attacks of September 11."

Judge Horn was particularly critical of the Department of Justice's position that Fire Chief John Lottes' two letters said that Glenn "should" be recognized as representing the fire department when he entered the South Tower. Judge Horn writes that these letters "should have been considered for the substance of the certifications over their form."

One can only pray that the Department of Justice files no further appeals, and the parents of Glenn Winuk can find forgiveness in their hearts for the bureaucratic handling of their claim.

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Larry Bennett is an attorney, adjunct professor at University of Cincinnati's Fire Science Department, a volunteer firefighter/EMT for the past 27 years, and is author of a new textbook that has recently been selected for use by the National Fire Academy, Fire Service Law, by Prentice Hall/Brady. Larry writes a free, monthly Fire & EMS and safety newsletter which you can sign up for at www.katzmanlaw.com. You can contact Larry by e-mail at: lbennett@katzmanlaw.com.

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