Apwu v. Potter

Decision Date15 September 2003
Docket NumberDocket No. 02-6186.
Citation343 F.3d 619
PartiesAPWU, AFL-CIO, Dennis O'Neil, William M. Smith, as President and on behalf of New York Metro Area Postal Union, Thomas K. Duane, as a member of the Senate of New York, 27th District, Christine Quinn, as a member of the Council, 2nd District, Transport Workers Union of America, Plaintiffs-Appellants, v. John E. POTTER, Postmaster General of the United States, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

LOUIE NIKOLAIDIS, Lewis, Greenwald, Clifton & Nikolaidis, P.C. (Peter Henner and Daniel E. Clifton, of counsel, on the brief), New York, NY, for Plaintiffs-Appellants.

SHEILA M. GOWAN, Assistant United States Attorney, Southern District of New York (James B. Comey, United States Attorney, Beth E. Goldman, Assistant United States Attorney, on the brief), New York, NY, for Defendants-Appellees.

Before: JACOBS and SOTOMAYOR, Circuit Judges.*

JACOBS, Circuit Judge.

The United States District Court for the Southern District of New York (Keenan, J.) dismissed for lack of jurisdiction claims asserted against John E. Potter, United States Postmaster General, arising out of the clean-up of anthrax contamination by the United States Postal Service ("USPS") at its Morgan Processing and Distribution Center ("Morgan"). The action was brought by the New York Metro Area Postal Union, APWU, AFL-CIO; its president, William M. Smith; and Dennis O'Neil, a postal worker employed at Morgan. They sought declaratory and injunctive relief, as well as attorneys' fees and costs, under the citizen suit provision of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and New York State environmental laws. Plaintiffs alleged that the actions taken by the USPS in the investigation and clean-up of the anthrax contamination at Morgan in late 2001 created an imminent and substantial endangerment to health or the environment, in violation of federal and state permit requirements relating to the transportation, storage, and disposal of hazardous wastes. The dismissal was based on § 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., which bars jurisdiction in suits challenging certain ongoing CERCLA "removal actions." See id. § 9613(h).

Plaintiffs Smith and O'Neil argue that the cleanup at Morgan was not a CERCLA "removal action," because the USPS lacked power to undertake CERCLA "emergency" removal actions, and the anthrax situation at Morgan constituted such an "emergency." We affirm.


Morgan, the central mail-processing facility in New York City, is a two million square foot operation occupying two city blocks in midtown Manhattan and employing 5,000 people. The main post office, James A. Farley Station ("Farley"), is nearby and connected by tunnel.

On October 19, 2001, the Centers for Disease Control and Prevention ("CDC") confirmed the presence of bacillus anthracis, or anthrax, in several letters that had been sent by mail more than four weeks earlier to NBC Studios and to the New York Post. Anthrax spores are known to cause an acute infectious disease in humans if they enter the body through an open wound, cut, or mucous membrane (such as the mouth or nose). Alerted by the CDC, the USPS conducted an investigation and determined that the letters had entered the United States postal system in Trenton, New Jersey and were processed on September 19, 2001 through one or more of the Delivery Bar Code Sorting ("DBCS") machines at Morgan.

Two days after the CDC alert, the USPS started testing at Morgan and certain other postal facilities in New York. Private environmental consultants collected and tested hundreds of environmental samples. Results received several days later indicated the presence of anthrax in samples taken from four DBCS machines on the third floor of the southern portion of Morgan. These four machines were taken out of service, and the area around them was sealed. Additional testing the next day implicated a fifth (adjacent) machine, which was immediately taken out of service as well.

On October 26, the CDC provided antibiotics, gloves, and face masks to more than 7,000 postal employees at Morgan, Farley, and various other Manhattan postal facilities. At this point — more than five weeks after the contaminated letters had passed through — no postal employee in New York had reported any kind of anthrax-related health problem.

On the same day (October 26), plaintiffs served the USPS, the United States Environmental Protection Agency ("EPA") regional administrator, and the United States Attorney General with a Notice of Intent to file an action against the USPS under the citizen suit provision of RCRA, 42 U.S.C. § 6972(a)(1)(B), which permits civil suits against any person or entity, including the federal government, "who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Id. On October 29, plaintiffs filed a complaint pursuant to RCRA and state law, seeking (inter alia): (1) a declaration that the USPS's handling of the anthrax contamination was in violation of RCRA and the New York State Environmental Conservation Law, (2) an injunction against the continued operation of Morgan pending a court determination that it was free of anthrax, (3) an order requiring testing at various mail facilities, and (4) an order permitting plaintiffs to inspect Morgan (as well as an award of costs, including attorneys' fees and expert witness fees).

Between November 1 and November 13, cleanup and decontamination work was conducted at Morgan 24 hours a day by approximately 200 employees of an environmental contractor hired by the USPS. This work was performed in cooperation with the CDC under the supervision of a third-party monitoring consultant. The contaminated area was sealed off and isolated with a plastic barrier.

While the cleanup was ongoing, plaintiffs moved for a preliminary injunction to compel the USPS to close Morgan completely for a more comprehensive decontamination, and to force testing for anthrax at Farley and various other postal facilities downstream from Morgan in the mail delivery system. At a preliminary injunction hearing held on November 6-9, 2001, experts gave conflicting estimates of the danger level presented by the processing of anthrax-contaminated letters at Morgan, and of the efficacy of the cleanup effort mounted by the USPS.

In a ruling issued at the conclusion of the hearing on November 9, and subsequently clarified in a November 15, 2001 published order, the district court granted the motion for testing at Farley, but declined to shut down Morgan, finding that "there is no imminent and substantial danger present." Smith v. Potter ("Smith I"), 187 F.Supp.2d 93, 98 (S.D.N.Y.2001). The court noted that no postal worker at Morgan had come down with the disease in the weeks between the transit of the contaminated letters and the start of the CDC investigation, and credited testimony from Dr. Stephen Ostroff, the Chief Epidemiologist for the CDC's Infectious Diseases Center (and the person in charge of the federal government's anthrax investigation in New York), that "the amount of anthrax `tracked through' Morgan does not `continue to pose an ongoing public health risk.'"1 Id. at 96.

After the hearing, the USPS finished the cleanup and took post-cleanup samples for testing. The only sample that tested positive for anthrax was taken from one of the five suspect DBCS machines. It was immediately sealed off and recleaned. Afterward, all tests for anthrax at Morgan were negative. The USPS provided the district court and the plaintiffs with a full report of the testing at both Morgan and Farley. All told, the investigation and cleanup of the anthrax there cost over $15 million.

On January 8, 2002, the USPS executed an Action Memorandum which provided that its actions at Morgan had been undertaken pursuant to section 104 of CERCLA, which authorizes the Postmaster General, under authority delegated by the President of the United States pursuant to Executive Order No. 12580, to conduct "removal actions" for the cleanup and removal of hazardous substances, pollutants, and contaminants. The USPS then published a notice in two New York City newspapers that the administrative record for the CERCLA removal action would be available for review, and that USPS would accept public comment on this record for a period of 30 days. Several days later, the government moved pursuant to Fed. R.Civ.P. 12(b)(1) to dismiss plaintiffs' complaint for lack of subject matter jurisdiction on the ground that their claims were precluded by § 113(h) of CERCLA, 42 U.S.C. § 9613(h), which bars federal jurisdiction in suits challenging certain ongoing CERCLA "removal actions" for hazardous substances, pollutants, or contaminants.2 Plaintiffs opposed the motion on the ground that the USPS's actions at Morgan could not be a CERCLA removal action because the USPS lacked authority over "emergency" removal actions.

The district court granted the motion to dismiss, relying largely on its earlier factual findings. Smith v. Potter ("Smith II"), 208 F.Supp.2d 415, 419-20 (S.D.N.Y.2002). Plaintiffs appealed.


Plaintiffs bear the burden of "showing by a preponderance of the evidence that subject matter jurisdiction exists." Lunney v. United States, 319 F.3d 550, 554 (2d Cir.2003) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). "[J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). In considering a ...

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