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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