Dukes Ex Rel. Dukes v. NYCERS ( 2017 )

16-1449
Dukes v. NYCERS
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 21st day of September, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
Cheryl Dukes, for Ralph Dukes (deceased),
AKA Cheryl White Grier,
Plaintiff-Appellant,
v. 16-1449
NYCERS, New York City Employees’
Retirement System, Board of Trustees,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Cheryl Dukes, pro se, Long Pond, PA.
FOR DEFENDANTS-APPELLEES: No appearance
Appeal from a judgment of the United States District Court for the Southern District of
New York (Preska, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the matter is REMANDED
for further proceedings.
Plaintiff-appellant Cheryl Dukes, proceeding pro se, appeals the district court’s judgment
dismissing her complaint, which asserted that defendants-appellees New York City Employees’
Retirement System and its Trustees (“NYCERS”) erroneously denied her application for
accidental-death and line-of-duty benefits under the World Trade Center Disability Law. Dukes
alleged that her husband died from illness acquired working at the World Trade Center site after
the 9/11 terrorist attacks. The district court sua sponte dismissed appellant’s complaint in the
Southern District of New York believing that the effect of the dismissal in Dukes’s earlier action in
the Eastern District of New York precluded this action. The Eastern District had ruled that Dukes
brought state law claims but did not establish diversity jurisdiction because she testified that she
was living and working in New York and had no definite plans to return permanently to
Pennsylvania.
We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal. We review the district court’s sua sponte dismissal de novo.
Giano v. Goord, 250 F.3d 146, 149–50 (2d Cir. 2001).
Domicile for diversity purposes is determined when an action is filed. Linardos v.
Fortuna, 157 F.3d 945, 947 (2d Cir. 1998). The Eastern District could only determine Dukes’s
domicile when she filed that action. Dukes’s domicile when she filed in the Southern District has
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not been adjudicated. Construed liberally, the complaint before us alleges that Dukes has cured
the jurisdictional defect by establishing domicile in Pennsylvania. On remand, the district court
should now consider, in the first instance, whether there is diversity jurisdiction. See Herrick Co.
v. SCS Commc’ns, Inc., 251 F.3d 315, 333–34 (2d Cir. 2001).
Additionally, because Dukes invokes the Air Transportation Safety and System
Stabilization Act (“ATSSSA”), Pub. L. No. 107-42, 15 Stat. 230 (2001) (codified as amended at 49
U.S.C. § 40101 note), the district court may have federal question jurisdiction over Dukes’s
claims, an issue that was neither passed on below nor raised in the Eastern District case. ATSSSA
creates a federal cause of action for damages “arising out of” the 9/11 aircraft crashes, and vests
the Southern District with “original and exclusive jurisdiction over all actions brought for any
claim (including any claim for loss of property, personal injury, or death) resulting from or relating
to the terrorist-related aircraft crashes of September 11, 2001.” ATSSSA § 408(b)(1), (3). The
district court should determine in the first instance whether this “damages” provision covers a
claim arising from a city pension scheme. See In re WTC Disaster Site, 414 F.3d 352, 373–80 (2d
Cir. 2005).
Accordingly, we VACATE the judgment of the district court and REMAND for further
proceedings consistent with this order.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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