414 F.3d 352 (2nd Cir. 2005), 03-7698, In re WTC Disaster Site

Docket Nº:03-7698(L), 03-7736, 03-7699, 03-7700, 03-7724, 03-7743, 03-7749, 03-7756, 03-7757, 03-7758, 03-7760, 03-7761, 03-7778, 03-7784, 03-7785, 03-7786, 03-7789, 03-9157, 03-9163, 03-9165, 03-9167, 03-9173, 03-9175, 03-9177, 03-9183, 03-9187, 03-9193, 03-9195.
Citation:414 F.3d 352
Party Name:In re: WTC DISASTER SITE. Vincent McNally, Gina McNally, Francis Lavery, Kathryn Lavery, Joseph Ariola, Colleen Ariola, James Blake, John M Deneau, Lisa Deneau, Joseph Healy, Janet Healy, George Lamoreaux, Ingrid Lamoreaux, Thomas Magee, Patrick Malloy, Lori Malloy, Jon J. McGillick, Arlene McGillick, Michael Spiller, Leah Spiller, Timothy Villari,
Case Date:July 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 352

414 F.3d 352 (2nd Cir. 2005)

In re: WTC DISASTER SITE.

Vincent McNally, Gina McNally, Francis Lavery, Kathryn Lavery, Joseph Ariola, Colleen Ariola, James Blake, John M Deneau, Lisa Deneau, Joseph Healy, Janet Healy, George Lamoreaux, Ingrid Lamoreaux, Thomas Magee, Patrick Malloy, Lori Malloy, Jon J. McGillick, Arlene McGillick, Michael Spiller, Leah Spiller, Timothy Villari, Maria Villari, Anthony R Larosa, Angela Larosa, Roger Danvers, James Mascarella, John F. Taggart, and Theresa Taggart, Plaintiffs-Appellees-Cross-Appellants,

David Hendrickson, Lynn Hendrickson, Dewardranth Samaroo, Teresa Hartey, Edward Galanek, Robert Esposito, Denise Esposito, James Melendez, Maureen McCue, Joseph Berardi, John Baiano, Jack Biggs, John Bonvicino, John Bou, Kevin Brannick, Wayne Brown, Robert Carannante, Victor Carpentier, Alan Ceserano, Michael Conlon, Phyliss Costarella, Gerald Damitz, Anthony Delbianco, Lenny Dinotte, Daniel Donovan, Roy Edwards, Joseph Falcone, Nelson Garcia, Anthony Giordano, Robert Goffredo, Michael Guidicipietro, Rafael Gutierrez, Otto Havel III, Robert Henri, Pelops Irby, Austin Johnson, Jason Keenan, Kevin Kempton, Omar Malave, Daniel Maldonado, John Menoni, Martin Mullaney, Mickey Nardiello, Frank Ozello, John Pankey, Nicholas Parascandola, Vincent Parise, Thomas Perry, Jerry Pizzarello, Juan Rullan, Raymond Russo, John Salomone, George Snyder, Alexis Solomon, Christian Trembone, Clinton Beyer, Joan Beyer, Peter Blake, Sharon Blake, and Jason Maksimowich, Plaintiffs-Appellees [*],

v.

The Port Authority of New York and New Jersey and The City of New York, Defendants-Appellants-Cross-Appellees,

World Trade Center Properties LLC, sued as Silverstein Properties, Defendant-Appellant.

Nos. 03-7698(L), 03-7736, 03-7699, 03-7700, 03-7724, 03-7743, 03-7749, 03-7756, 03-7757, 03-7758, 03-7760, 03-7761, 03-7778, 03-7784, 03-7785, 03-7786, 03-7789, 03-9157, 03-9163, 03-9165, 03-9167, 03-9173, 03-9175, 03-9177, 03-9183, 03-9187, 03-9193, 03-9195.

United States Court of Appeals, Second Circuit

July 14, 2005

Argued: Jan. 13, 2005.

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Stephen C. Glasser, New York, New York (Brian J. Shoot, Paul A. Marber, Sullivan Papain Block McGrath & Cannavo, New York, New York, on the brief), for Plaintiffs-Appellees-Cross-Appellants.

Ryan S. Goldstein, New York, New York, and Wertheimer Associates, New York, New York (Robin Wertheimer, New York, New York, of counsel), for most of the remaining Plaintiffs-Appellees, joined in the brief submitted on behalf of Plaintiffs-Appellees-Cross-Appellants.

Richard A. Williamson, New York, New York (M. Bradford Stein, James B. Eisenberg, Christina M. Rackett-Solis, Flemming, Zulack & Williamson, New York, New York, on the brief), for Defendant-Appellant-Cross-Appellee The Port Authority of New York and New Jersey and Defendant-Appellant World Trade Center Properties.

James E. Tyrrell, Jr., Latham & Watkins, Newark, New Jersey (Michael A. Cardozo, Corporation Counsel of the City of New York, Kenneth A. Becker, Matthew J. Maiorana, New York, New York, on the brief), for Defendant-Appellant-Cross-Appellee The City of New York.

Page 357

Before: KEARSE and CABRANES, Circuit Judges, and KORMAN, Chief District Judge [**].

KEARSE, Circuit Judge.

The present appeals raise questions as to federal-court jurisdiction over claims relating to respiratory injuries suffered by rescue and clean-up workers as a result of exposure to toxins and other contaminants in the aftermath of terrorists' hijacking of two airplanes and using them to cause the destruction of the New York City World Trade Center's twin 110-story towers on September 11, 2001. Plaintiffs in the present actions, which have been consolidated for purposes of these appeals, originally asserted such claims under New York State law in New York State Supreme Court against defendants City of New York (the "City"), Port Authority of New York and New Jersey (the "Port Authority"), owner and operator of the World Trade Center complex, and/or World Trade Center Properties LLC ("WTC Properties"), lessee of the complex. Defendants removed the actions to the United States District Court for the Southern District of New York, contending that the Air Transportation Safety and System Stabilization Act of 2001 ("ATSSSA" or the "Act"), Pub.L. No. 107-42, 115 Stat. 230 (2001)(codified as amended at 49 U.S.C. § 40101 note), which creates a federal cause of action over which the federal court has exclusive jurisdiction, preempts plaintiffs' state-law claims.

On motions by some of the plaintiffs to remand their cases to state court, the district court, Alvin K. Hellerstein, Judge, granted remands in some actions and denied remands in others. The court ordered remands with respect to all actions in which the plaintiffs allege that exposure occurred only after September 29, 2001, or only at locations other than the World Trade Center site, ruling that it lacks subject matter jurisdiction over those actions. The court denied the motions to remand actions that allege at least some exposure at the World Trade Center site on or before September 29, 2001, holding that, under ATSSSA, the federal court has exclusive jurisdiction over such claims and that the court would exercise supplemental jurisdiction over other claims asserted in those actions.

On appeal, defendants challenge so much of the district court's decision as ordered the remand of actions that assert post-September-29 claims or non-World-Trade-Center-site claims, pursuing their contentions that ATSSSA preempts plaintiffs' state-law claims and gives the district court exclusive jurisdiction over the ATSSSA-created claims, and contending that the district court's use of September 29 as a cutoff date is artificial and finds no basis in the Act. Certain plaintiffs have cross-appealed from so much of the order as denied their motions to remand, arguing that the Act does not preempt their claims. In addition, plaintiffs contend that this Court lacks jurisdiction to entertain defendants' appeals. For the reasons that follow, we agree with plaintiffs that we lack jurisdiction to entertain the appeals by defendants from the granting of the remands; as to the cross-appeals from so much of the district court's order as denied motions to remand, we affirm, concluding that ATSSSA preempts plaintiffs' state-law claims.

I. BACKGROUND

The September 11 events leading to the present lawsuits, along with the terrorists' hijacking of two additional airplanes to

Page 358

attack other United States targets--one crashing into the Pentagon and the other crashing in Shanksville, Pennsylvania--are described in greater detail in the district court's Opinion and Order Partially Granting and Partially Denying Motions To Remand Cases to State Court, dated June 20, 2003, see In re World Trade Center Disaster Site Litigation, 270 F.Supp.2d 357, familiarity with which is assumed. Most of the events are not disputed.

A. Conditions at the World Trade Center Disaster Site

Less than two hours after terrorists flew two airplanes, carrying tens of thousands of gallons of jet fuel, into the World Trade Center's twin towers, both towers collapsed, trapping and killing thousands of people. Fires caused by exploding jet fuel destroyed or damaged adjacent buildings as well. Immediately, pursuant to state statutes and declarations of a state of emergency, the City took control of the World Trade Center site ("WTC site" or "disaster site"). Police officers and firefighters, soon to be joined by sanitation workers, construction workers, and others, engaged in a determined search for survivors. No survivors were found after September 12, 2001.

On September 29, 2001, then-Mayor Rudolph Giuliani announced that the search for survivors was at an end. From that point on, the workers principally searched for human remains and evidence and engaged in a massive demolition and debris-removal process. Debris from the site was moved, principally by Department of Sanitation workers, to various marine transfer stations in Manhattan and Brooklyn, was loaded onto barges, and was taken to the Fresh Kills Landfill on Staten Island. At Fresh Kills, the debris was off-loaded and was searched by law enforcement personnel before disposal. The debris-removal operation at the disaster site, involving more than 1 1/2 million tons of rubble, was not substantially completed until May 2002. The City returned control over the World Trade Center site to the Port Authority in July 2002.

The compressive force of the towers' collapsing upon themselves had crushed such building components as concrete, glass, steel, and fire-proofing material, as well as interior furniture and equipment, causing clouds of dust and mountains of debris. The City's air sampling at the disaster site revealed particulate matter consisting principally of pulverized building materials and contaminants such as asbestos, volatile organic compounds, dioxins, PCBs, and heavy metals. Further, fires at the site burned underground for more than three months and smoldered for another month; they--and the above-ground fires--produced a pall of acrid smoke over Manhattan and Brooklyn. As early as September 12, the City was asked to provide respirators for workers at the disaster site. The numbers requested, however, far exceeded the numbers the City could supply.

B. The Present Lawsuits and Their Removal to Federal Court

In these lawsuits, the plaintiffs include firefighters and police officers who worked at the WTC site searching for survivors and human remains; ironworkers, construction workers, and laborers called upon to deal with building fragments; operating engineers employed to do demolition work; Department of Sanitation workers who transported debris to marine transfer points or to...

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