Filed: Oct. 05, 2007
Latest Update: Mar. 02, 2020
Summary: 06-5324-cv In re: World Trade Center Disaster Site Litigation UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 Heard: October 1, 2007 Decided: October 5, 2007) Docket No. 06-5324-cv - - - - - - - - - - - - - - - - - - - - - - - In re: WORLD TRADE CENTER DISASTER SITE LITIGATION - - - - - - - - - - - - - - - - - - - - - - - WILLIAM D. McCUE, ET AL., Plaintiffs-Appellees, THOMAS HICKEY, ET AL., Non-Respiratory Injured Plaintiffs-Appellees, v. THE CITY OF NEW YORK, THE PORT AU
Summary: 06-5324-cv In re: World Trade Center Disaster Site Litigation UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 Heard: October 1, 2007 Decided: October 5, 2007) Docket No. 06-5324-cv - - - - - - - - - - - - - - - - - - - - - - - In re: WORLD TRADE CENTER DISASTER SITE LITIGATION - - - - - - - - - - - - - - - - - - - - - - - WILLIAM D. McCUE, ET AL., Plaintiffs-Appellees, THOMAS HICKEY, ET AL., Non-Respiratory Injured Plaintiffs-Appellees, v. THE CITY OF NEW YORK, THE PORT AUT..
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06-5324-cv
In re: World Trade Center Disaster Site Litigation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
Heard: October 1, 2007 Decided: October 5, 2007)
Docket No. 06-5324-cv
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In re: WORLD TRADE CENTER DISASTER SITE
LITIGATION
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WILLIAM D. McCUE, ET AL.,
Plaintiffs-Appellees,
THOMAS HICKEY, ET AL.,
Non-Respiratory Injured
Plaintiffs-Appellees,
v.
THE CITY OF NEW YORK, THE PORT AUTHORITY
OF NEW YORK AND NEW JERSEY, ET AL.,
Defendants-Appellants.
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Before: NEWMAN, SOTOMAYOR and WESLEY, Circuit Judges.
Motion to vacate the stay of District Court proceedings, issued
by this Court on March 9, 2007, in connection with an interlocutory
appeal from the October 18, 2006, Order of the United States District
Court for the Southern District of New York (Alvin K. Hellerstein,
District Judge), denying motions for judgment on the pleadings and
summary judgment in suits by workers claiming injuries at the ground
zero site of the World Trade Center disaster and related sites.
Motion granted, stay vacated, District Court’s jurisdiction for
pretrial proceedings and trial restored, and appellate jurisdiction
retained to decide the interlocutory appeal.
James E. Tyrrell, Jr., New York, N.Y. (Joseph
E. Hopkins, James O. Copley, Jason W.
Rockwell, Justin S. Strochlic, Jonathan M.
Peck, Patton Boggs LLP, on the brief), for
Defendants-Appellants The City of New York
and its Contractors.
Richard A. Williamson, New York, N.Y. (M. Brad-
ford Stein, Thomas A. Egan, Flemming Zulack
Williamson Zauderer LLP, New York, N.Y., on
the brief), for Defendant-Appellant The Port
Authority of New York and New Jersey.
Kevin K. Russell, Washington, D.C. (Amy Howe,
Howe & Russell, P.C., Washington, D.C.; Paul
J. Napoli, William H. Groner, Denise A.
Rubin, William J. Dubanevich, Christopher R.
LoPalo, W. Steven Berman, Worby Groner
Edelman & Napoli Bern, LLP, New York, N.Y.,
on the brief), for Plaintiffs-Appellees.
Brian J. Shoot, New York, N.Y. (Frank V. Flor-
iani, Andrew J. Carboy, Susan M. Jaffe,
Wendell Y. Tong, Sullivan Papain Block
McGrath & Cannavo, New York, N.Y., on the
brief), for Plaintiffs-Appellees.
Marion S. Mishkin, New York, N.Y., for
Plaintiffs-Appellees John Montalvo and
Darlene Montalvo, on behalf of the Non-
Respiratory Injured Plaintiffs-Appellees.
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(Peter G. Verniero, Philip S. White, James M.
Hirschhorn, David W. Kiefer, Sills Cummis
Epstein & Gross, PC, New York, N.Y., for
amici curiae Construction Industry, AIA New
York State, Inc., et al., in support of
Defendants-Appellants.)
(John C. Gillespie, Parker McCay P.A., Marlton,
N.J., for amicus curiae International
Municipal Lawyers Association, in support of
Defendants-Appellants.)
(Eric F. Leon, Lee Ann Stevenson, Andrew R.
Dunlap, Patrick F. Philbin, Kirkland & Ellis
LLP, New York, N.Y., for amicus curiae
Verizon New York Inc., in support of
Defendants-Appellants.)
(Cheryl A. Harris, Harris & Miranda, LLP, New
York, N.Y., for amicus curiae Certain
Members of the United States Congress, in
support of Plaintiffs-Appellees.)
(Edward J. Groarke, Stephanie Suarez, Michael
D. Bosso, Colleran, O’Hara & Mills, LLP,
Garden City, N.Y., for amici curiae New York
State AFL-CIO and Building and Construction
Trades Council of Greater New York, in
support of Plaintiffs-Appellees.)
(Larry Cary, Cary Kane LLP, New York, N.Y., for
amicus curiae New York Committee for
Occupational Safety and Health, in support
of Plaintiffs-Appellees.)
JON O. NEWMAN, Circuit Judge.
Pending before us is a motion to vacate this Court’s stay of
District Court proceedings in litigation brought by workers at the
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ground zero site of the World Trade Center disaster and related sites
against the City of New York, the Port Authority of New York and New
Jersey, and several private contractors. The stay was entered pending
an interlocutory appeal from an order of the District Court for the
Southern District of New York (Alvin K. Hellerstein, District Judge)
denying motions for judgment on the pleadings and for summary
judgment. See In re World Trade Center Disaster Site Litigation, 456
F. Supp. 2d 520 (S.D.N.Y. 2006). Alleging immunity from suit, the
Defendants have endeavored to pursue an interlocutory appeal, invoking
the collateral order doctrine. See Mitchell v. Forsyth,
472 U.S. 511,
526-27 (1985) (interlocutory appeal of denial of qualified immunity).
Procedural steps. The procedural steps taken in both the
District Court and this Court need to be set forth to illuminate all
that is at issue upon what appears initially to be only a motion to
vacate a stay pending appeal. After Judge Hellerstein issued his
ruling denying the Defendants’ motions for judgment on the pleadings
and for summary judgment, the Defendants asked him to certify his
rulings for immediate appeal under 28 U.S.C. § 1292(b). See In re
World Trade Center Disaster Site Litigation, 469 F. Supp. 2d 134, 137
(S.D.N.Y. 2007). The next day the Defendants filed notice of their
interlocutory appeal and informed the District Court that they
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believed that their notice of appeal divested the District Court of
jurisdiction to proceed. Judge Hellerstein responded that the notice
of appeal did not divest the District Court of jurisdiction because
the arguments for an immediate appeal “border[] on frivolous.” Id. at
140. The Judge then denied the request for section 1292(b)
certification, concluding that the immunity defenses could not be
adjudicated without a more fully developed record and that “delay
would be unconscionable, given the intense public interest in reaching
an expeditious resolution to this litigation.” See
id. at 144-45.
The Defendants petitioned this Court for a writ of mandamus to
halt proceedings in the District Court and also moved for a stay of
those proceedings. The Plaintiffs countered with a motion to dismiss
the appeal. On January 22, 2007, an applications judge granted a
temporary stay pending panel consideration of the stay motion. On
March 9, 2007, a motions panel granted a stay of the trial and
pretrial proceedings, denied the petition for mandamus as moot,
referred the motion to dismiss to the merits panel, and expedited the
appeal. The appeal was argued on October 1, 2007, at the conclusion
of which the Appellees moved to vacate the stay.
Discussion
The Appellees’ motion to vacate the stay is inextricably
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intertwined with the issue of whether the Appellants’ notice of appeal
from the denial of their motions for judgment on the pleadings and
summary judgment on grounds of immunity from suit divested the
District Court of jurisdiction to proceed with the litigation. See
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)
(“The filing of a notice of appeal . . . divests the district court of
its control over those aspects of the case involved in the appeal.”);
Apostol v. Gallion,
870 F.2d 1335, 1338 (7th Cir. 1989) (“It follows
that a proper Forsyth appeal divests the district court of
jurisdiction (that is, authority) to require the appealing defendants
to appear for trial.”); cf. Harlow v. Fitzgerald,
457 U.S. 800, 818
(1982) (“Until this threshold immunity question is resolved, discovery
should not be allowed.”). If District Court jurisdiction was
divested, our stay was superfluous, and if we were to vacate the stay,
that action would accomplish nothing unless we were also at least
partially to restore the District Court’s jurisdiction. Hence we will
consider both whether to vacate the stay and whether to restore the
District Court’s jurisdiction, issues that involve similar if not
identical considerations in the circumstances of this case.
The four factors to be considered in issuing a stay pending
appeal are well known: “(1) whether the stay applicant has made a
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strong showing that he is likely to succeed on the merits;[1] (2)
whether the applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public
interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see
Cooper v. Town of East Hampton,
83 F.3d 31, 36 (2d Cir. 1996). We
have applied these same factors in considering whether to vacate a
stay. See Mohammed v. Reno,
309 F.3d 95, 100 (2d Cir. 2002). We have
also noted that the degree to which a factor must be present varies
with the strength of the other factors, meaning that “‘more of one
[factor] excuses less of the other.’” Thapa v. Gonzales,
460 F.3d 323,
334 (2d Cir. 2006) (quoting
Mohammed, 309 F.3d at 101).
Having heard the interlocutory appeal after full briefing, we are
in a position to evaluate the Appellants’ probability of success in a
more focused way than could the motions panel. Although we are not
prepared at this time to resolve all of the many issues arising on the
merits of the appeal, we can conclude that there is now a lesser
probability than might have previously appeared that the Appellants
1
We have noted the various formulations courts have used to
describe the degree of the showing of success that the applicant must
present. See Mohammed v. Reno, 309 F.3d 95, 100-01 (2d Cir. 2002).
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will succeed in preventing at least some of the Plaintiffs’ claims to
proceed into at least the discovery stage of the litigation.
The second factor--irreparable injury to the stay applicants--
remains the same as before: any proceedings in the District Court
pending appeal will irreparably impair, at least to some extent, their
alleged claim to immunity from suit. The third factor--substantial
injury to the parties opposing the stay--has increased in significance
with the passage of time since among the Plaintiffs are many people
with life-threatening injuries, some of whom have died since the
litigation began.
This effect of the passage of time upon the Plaintiffs’ interests
also has a bearing on the public interest, which is to be considered
as the fourth factor, although there are public interest
considerations on both sides. On the one hand, there is a public
interest in having any of the Plaintiffs who might be entitled to
recovery receive compensation while still living and able to use it to
cover medical costs and improve the quality of their lives. On the
other hand, there is a public interest in vindicating the immunity of
any of the Defendants who might be entitled to immunity from suit. At
this point, we cannot predict whether any Plaintiffs will ultimately
obtain compensation if immunity from suit is not available to the
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Defendants, nor are we prepared to adjudicate the jurisdictional
challenges and immunity claims without a thorough consideration of the
substantial issues presented to us. Nevertheless, a decision whether
to maintain the stay must be made. On balance, we conclude that the
public interest favors permitting pretrial proceedings to resume,
thereby hastening the trial that might result in compensation for at
least some Plaintiffs during their lifetimes, even though that course
will impose upon the Defendants the burdens of pretrial discovery,
thereby denying them immunity from suit during the interval from now
until such time as it might ultimately be determined that their claims
for immunity from suit are valid.
Conclusion
Accordingly, we vacate the stay of proceedings in the District
Court and, while retaining jurisdiction to decide the pending appeal
including the motion to dismiss, remand the litigation to the District
Court, thereby restoring its jurisdiction to proceed with pretrial
proceedings and a trial. The mandate shall issue forthwith.
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