The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER DENYING MOTIONS TO DEFINE JURISDICTION
Following the Second Circuit's decision in McNally v. The Port Authority (In re WTC Disaster Site), 414 F.3d 352 (2d Cir. 2005), several of the parties in the cases coordinated under master dockets 21 MC 97*fn1 , 21 MC 100, and 21 MC 102, move to extend the rulings of that case to allegedly related cases. McNally ruled that claims of respiratory injuries by clean-up workers at the World Trade Center site are claims "resulting from and relating to the terrorist-related aircraft crashes of September 11, 2001." Air Transportation Safety and System Stabilization Act ("ATSSSA"), Pub. L. No. 107-42, 115 Stat. 230 (2001) (codified at 49 U.S.C. §§ 40101 note). The issue now posed by the motions to confirm jurisdiction relate to claims alleging respiratory injuries by clean-up workers at sites nearby to the World Trade Center (21 MC 102). In addition, a few other cases involve personal injuries to clean-up workers at the World Trade Center (21 MC 100). These cases raise the issue whether my earlier decisions in Graybill v. City of New York, 247 F. Supp. 2d 345 (S.D.N.Y. 2002), and Spagnuolo v. The Port Authority, 245 F. Supp. 2d 518 (S.D.N.Y. 2002), should be reconsidered in light of McNally. 414 F.3d 352.
The parties appeared before me for oral argument on April 6, 2006. I ruled on several questions and reserved decision on the jurisdictional issues. For the reasons stated below, and subject to the exceptions noted, I now deny the motions to determine this Court's subject matter jurisdiction, without prejudice to resubmission after I decide the pending motions by the City of New York and other Defendants to dismiss the claims of respiratory injury against them on the basis of statutory and common law immunity.
Defendants in 21 MC 102, without opposition by Plaintiffs, have filed motions to extend McNally, and thereby to confirm jurisdiction as to cases alleging respiratory injuries sustained at sites nearby to the World Trade Center. These parties argue that the plain language of the ATSSSA, providing for original and exclusive federal 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)(3), together with the Second Circuit's interpretation of such jurisdictional grant to encompass "claims . that airborne toxins and other contaminants emanating from the debris created by [the] crashes caused respiratory injuries to plaintiffs employees to sift, remove, transport or dispose of . debris," McNally, 414 F.3d at 380, mandate federal jurisdiction.*fn2 In contrast, certain of the Plaintiffs whose cases are consolidated under 21 MC 100 and who seek damages for personal, rather than respiratory, injuries sustained at the World Trade Center site*fn3 , move to remand their actions to New York Supreme Court, arguing that the rationale of McNally is limited to respiratory injuries and should not disturb my prior holdings that the scope of federal jurisdiction provided by the ATSSSA does not extend to claims for personal injury common to all construction worksites.*fn4 See Graybill, 247 F. Supp. 2d 345; Spagnuolo, 245 F. Supp. 2d 518.
My case management discretion allows me to set the sequence of decision-making in the cases over which I preside. Almost all parties involved in these motions are affected by the pending motions to dismiss and for summary judgment by the City and the other Defendants, and my rulings will have relevance regardless of the court ultimately to be charged with the pre-trial proceedings, the trial, and the final determination of the merits. For the sake of good order, it will be better to consider the jurisdictional motions after I decide the immunity defenses asserted by the Defendants and after I determine whether such defenses may constitute the basis of an exclusive federal jurisdiction relating to federal officer immunity. See 21 U.S.C. § 1442(a)(1).
In accordance with the foregoing, the motions to confirm jurisdiction and to remand actions to state court are denied pending determination of the various immunity defenses raised by the Defendants, and without prejudice to later submission. Prior to such a determination, I continue to exercise jurisdiction over all cases before me.
ALVIN K. HELLERSTEIN United States ...