Real Heroes

Andrew “Duke” Maloney’s five-year battle for Glenn Winuk

Published in 2011 New York Metro Super Lawyers — September 2011

On the morning of Sept. 11, 2001, after Holland & Knight partner Glenn Winuk helped evacuate his building on 195 Broadway, he raced the block and a half to the chaos at the World Trade Center to offer his services as a trained EMT.

“They didn’t find his remains until the spring of 2002,” says Andrew “Duke” Maloney III, a partner at Kreindler & Kreindler, who practices aviation litigation. Winuk was found wearing surgical gloves and a stethoscope. His Jericho Volunteer Fire Company ID was in his wallet, a medical bag was unearthed near him, and his body was located near the remains of other rescue workers. “There was no doubt in anyone’s mind what he was doing and why he was there,” Maloney says. “He was acting as a volunteer EMT, treating victims.”

The federal government didn’t see it that way. Winuk’s family filed a claim under the Public Safety Officers’ Benefits Act (PSOB), which recognizes volunteer rescue workers who die in the line of duty. “There’s a $250,000 stipend, but more important, this is recognition by our nation that you died a hero,” Maloney says. “The Justice Department denied the Winuks this recognition.”

Maloney, who is also a firefighter, and who worked on the pile, got involved in the case after meeting Winuk’s brother, Jay, who did consulting work for Kreindler. “He came in my office,” Maloney says. “I have some fire department memorabilia on my desk, and an instant bond was sparked.”

The Winuks’ claim was denied in 2003 on several grounds. “They said you have not proved that he was providing mutual aid,” Maloney says. “So if you’re a firefighter from Jericho, Long Island, and you respond to an emergency in New York City, you’re supposed to ID yourself as a rescue worker by showing credentials. They could not put any witnesses forward that proved he had ID’d himself, even though the ID was found on him.”

Prior to 9/11, too, Winuk changed his Jericho status to “associate” rather than “active”; because living in Manhattan, he couldn’t keep up with firehouse activities. “They had requirements, as my firehouse does,” Maloney says. “Certain training, meetings, and he couldn’t keep up. So the Justice Department’s position was that when he did that, he was no longer an authorized firefighter and therefore unauthorized to act as a firefighter.

“After I heard this, I told Jay, ‘I have to help you right this wrong.’”

Maloney thought his mission would be easy. “I’d do some research, resubmit the claim and be done with it,” he says. “The Justice Department said, ‘Sorry, not enough.’”

So Maloney requested a hearing, and the DOJ assigned a hearing examiner, Judge Dan Skoler. “The biggest witness I had was Thomas Von Essen, [former] FDNY commissioner,” Maloney says. “Von Essen testified that he did not see Winuk, but there was no way he would have gotten in without credentials.”

He also testified that the FDNY needed EMTs more than firefighters. “The fire was raging 86 floors above,” Maloney says. “The issue was to get people treated, not fight the fire.” Although Winuk’s firefighter status was associate, his EMT credentials were current. “[Von Essen] testified that there was no doubt in his mind that Glenn Winuk was clearly providing mutual aid—mutual assistance under New York law—at the direction of FDNY,” Maloney says. Because the PSOB also awards EMTs, Maloney thought the case was won. Sure enough, two months later, Skoler’s decision favored Winuk. Then the DOJ called. “They said not so fast. We don’t like this decision from our own hearing examiner, and we are going to continue to deny it.”

A week shy of the fifth anniversary of 9/11, the DOJ put out a 26-page opinion that, Maloney says, “basically cut their own guy to pieces. They were heartless. I read the decision, I understood what they said, but it was so contrived and frankly even legally and factually weak. It was almost like a vendetta. I couldn’t understand it. I said, ‘Well, I’m going to sue you.’”

In 2007, Maloney filed the lawsuit in the U.S. Court of Federal Claims in Washington, D.C. He dug even deeper and found that the PSOB had awarded claims to other volunteers who did not have Winuk’s credentials. “These were heroes, but technically they fell outside the statute,” Maloney says. “I could not understand for the life of me what the Justice Department was doing here. All I can figure is this was a few years [after 9/11] and their sentimentality had left the building, so to speak. They had reached a saturation point where they said, ‘We don’t want to give out more of these awards. We gave out too many on 9/11.’ And I said, ‘Well, you gotta give out one more.’”

The District Court judge agreed. Maloney won again. Around this time, President George W. Bush visited New York to give medals to the families of rescue workers who died on 9/11, but the Winuks were passed over. Maloney did have some political support. “Congressman Peter King from Long Island was very supportive; Hillary Clinton wrote a letter,” Maloney says. “But I think [that support] only made bureaucrats at the Justice Department dig their heels in even more, because [two weeks later] they appealed the decision. I was stunned. … But it never crossed my mind to give up. The guys at my firehouse, the Jericho firehouse, FDNY, they were just saying, ‘Go go go.’”

Soon after the decision was appealed, Maloney and the solicitor general happened to be at the same wedding, and they had an informal conversation about the matter. Maloney then followed up with an hourlong phone conversation with the solicitor general’s office.

“I told them, ‘You don’t want to appeal this. Every time you fight this, you get an ever bigger black eye in the media,’” Maloney says.

In January 2008, the DOJ dropped the appeal. “Glenn finally got the recognition,” Maloney says. The FDNY inducted Winuk into its Honor Legion. And a few days after Osama bin Laden’s death in May 2011, President Barack Obama came to New York to meet with a select number of 9/11 families. The Winuks were among them.

For his five-year battle, the American Association for Justice awarded Maloney its Pro Bono Attorney of the Year in 2008. His son, then 6, was at the awards ceremony. “He was like any other 6-year-old boy, obsessed with the superheroes with super powers, like Batman, Spider-Man,” Maloney says, his voice breaking. “But I wanted him to know that there are real heroes who walk among us every single day.”

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