1

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------------------------X 

 : OPINION AND ORDER 

IN RE WORLD TRADE CENTER : DENYING MOTION FOR

DISASTER SITE LITIGATION : INTERLOCUTORY APPEAL

: AND ASSERTING CONTINUING 

: JURISDICTION 

 : 

 : 21 MC 100 (AKH) 

 : 

-----------------------------------------------------X 

ALVIN K. HELLERSTEIN, U.S.D.J.: 

I consider in this opinion whether Defendants’ filing of a pre-final judgment 

notice of appeal from my order denying various immunity-based motions divests this Court of 

jurisdiction to conduct further proceedings. I consider also Defendants’ motion asking that I 

certify the same order for interlocutory review. 

On October 17, 2006, I denied Defendants’ motions for judgment on the 

pleadings and for summary judgment. See In re World Trade Ctr. Disaster Site Litig., 456 F. 

Supp. 2d 520 (S.D.N.Y. 2006) (hereinafter “In re WTC Disaster Site Litig.” or “Order of 

October 17, 2006”). I held that the immunities claimed by the Port Authority of New York and 

New Jersey, the City of New York, and the contractors it had engaged, pursuant to the New York 

State Defense Emergency Act (“SDEA”), N.Y. Unconsol. Law § 9193 (McKinney 2006); New 

York State and Local Natural Disaster and Man-Made Disaster Preparedness Law (“Disaster 

Act”), N.Y. Exec. Law §§ 20 to 29-g (McKinney 2006); the Stafford Act, 42 U.S.C. § 5148, and 

other sources, required fact-intensive analyses and a fuller record than that which was presented 

by Defendants’ motions. I ordered further pretrial proceedings to develop an appropriate record 

for subsequent motions, or trial. 

Defendants now seek to appeal that order. On November 15, 2006, Defendants 

filed a motion asking me to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). A 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 1 of 16
2

day later, on November 16, 2006, Defendants filed a notice of appeal. In an accompanying 

letter, Defendants asserted that their appeal was of right, pursuant to 28 U.S.C. § 1291 and the 

collateral order doctrine, and that the filing of the notice of appeal ousted my jurisdiction to 

conduct further pretrial proceedings. In light of proceedings already scheduled to advance these 

cases to their next stage and the intense public interest in assuring that the cases continue to 

advance towards resolution, and consistent with my view that Defendants’ efforts to pursue an 

immediate interlocutory appeal lack merit, I issued an order provisionally denying Defendants’ 

motion for interlocutory review and rejecting Defendants’ assertion that the district court was 

ousted of jurisdiction. I stated that an opinion and order would soon follow. See Summary 

Order of Nov. 27, 2006. Defendants asked to brief the issue first, and plaintiffs responded 

similarly. I agreed to defer my rulings in order to consider their briefs. 

I hold, following full consideration of Defendants’ arguments, that their notice of 

appeal is legally ineffective to divest the district court of its jurisdiction. Defendants’ motion to 

certify my Order of October 17, 2006 for interlocutory review is denied. 

Background

The plaintiffs in these cases claim to have suffered damage to their respiratory 

systems and other illnesses from the noxious environment that pervaded the World Trade Center 

site while they worked to clear debris from the site between September 11, 2001 and June, 2002. 

Plaintiffs sued the City of New York, alleging that its Department of Design and Construction 

took control of the site, engaged contractors, and supervised the clean-up operations, but failed to 

provide adequately for the safety of workers engaged in the clean-up operations. Plaintiffs also 

sued the contractors for whom they worked and who were involved in the operation. The Port 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 2 of 16
3

Authority of New York and New Jersey, as the owner of the site and because of alleged other 

involvements, was also sued, as were many other defendants. 

The City, the contractors whom it engaged, and the Port Authority alleged 

affirmative defenses, among them, that they were immune to suit because of the State and federal 

laws mentioned previously. Since the defenses raised issues of fact, and on consent of the 

parties, I ordered discovery proceedings limited to facts relevant to the defenses, and set a 

motions and briefing schedule to enable me to determine the force and validity of the defenses. 

Following consideration of the parties’ submissions, I ruled that Defendants, 

although potentially entitled to immunity, could not claim it in blanket and absolute fashion. See

generally In re WTC Disaster Site Litig., supra. I interpreted the SDEA to require consideration 

of various fact-intensive criteria, among them whether Defendants acted in “good faith,” id. at 

553, and held that the defense of immunity was not susceptible of decision on motion for 

judgment on the pleadings, id. at 556. Similarly, under the Disaster Act “specific actions have to 

be evaluated according to time, place and necessity,” requiring the development of a factual 

record. Id. at 557–58. And, similarly, I held that the factual record was not sufficiently 

developed to support motions based on state common law immunities. Id. at 559. I held that 

Defendants were not entitled to derivative federal immunity on motion for summary judgment 

because genuine issues of material fact remained relating to the extent to which Defendants 

adopted federal standards and protocols. Id. at 566. I held that the Stafford Act did not apply to 

non-federal actors and therefore did not apply to Defendants in this case. Id. 

Defendants seek now to put an end to pretrial proceedings, in favor of review by 

the United States Court of Appeals for the Second Circuit. By motion, Defendants seek this 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 3 of 16
4

Court’s certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).1 Separately, 

Defendants claim that they are entitled, of right, to an immediate appeal under the collateral 

order doctrine and that their appeal to the Court of Appeals ousts this Court of jurisdiction to 

conduct further pretrial proceedings. 

Discussion

I. Appeal Before Final Judgment 

A. Final Judgment and the Collateral Order Doctrine

The courts of appeals have jurisdiction of appeals from all “final decisions” of the 

district courts of the United States, except where a direct review may be had in the Supreme 

Court. 28 U.S.C. § 1291. “The requirement of finality precludes [appellate] consideration of 

decisions that are subject to revision, and even of ‘fully consummated decisions that are but steps 

towards final judgment in which they will merge.’” Behrens v. Pelletier, 516 U.S. 299 (1996) 

(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). The collateral order 

doctrine identified with Cohen, supra, is a “practical construction” of the final judgment rule, 

which “accommodates a ‘small class’ of rulings, not concluding the litigation, but conclusively 

resolving ‘claims of right separable from, and collateral to, rights asserted in the action.’” Will 

v. Hallock, 126 S. Ct. 952, 957 (2006) (quoting Cohen, 337 U.S. at 546). 

To appeal an order before final judgment, three “stringent” conditions must be 

satisfied: the order must “(1) conclusively determine the disputed question, (2) resolve an 

important issue completely separate from the merits of the action, and (3) be effectively 

unreviewable on appeal from final judgment.” Id. (quotations and brackets omitted). The scope 

of decisions that meet these conditions must remain narrow and “never be allowed to swallow 

 

1

 The Port Authority of New York and New Jersey does not join Defendants’ motion for certification pursuant to 28 

U.S.C. § 1292(b). 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 4 of 16
5

the general rule that a party is entitled to a single appeal, to be deferred until final judgment has 

been entered.” Id. at 958 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 

868 (1994)). 

In addition to satisfying the conditions enumerated in Hallock, the defendant must 

show that his claim to right of immediate appeal is supported by undisputed facts. An immediate 

appeal under the collateral order doctrine is not available where material facts are in genuine 

dispute: 

Under the collateral order doctrine ... the denial of a qualifiedimmunity-based motion for summary judgment is immediately 

appealable to the extent that the district court has denied the 

motion as a matter of law, although not to the extent that the 

defense turns solely on questions of fact. 

Papineau v. Parmley, 465 F.3d 46, 54 (2d Cir. 2006); see also Salim v. Proulx, 93 F.3d 86, 90 

(2d Cir. 1996) (“An appeal is available ... where the defendant contends that on stipulated facts, 

or on the facts that the plaintiff alleges are true ... the [Harlow] immunity defense is established 

as a matter of law.”). If the affirmative defense put forth by a defendant as his basis for claiming 

a right to an immediate appeal clearly cannot be supported by the undisputed facts, his claim to 

that right is not colorable. 

In theory, any defendant who loses a motion in support of an affirmative defense 

can seek to appeal before final judgment, based on an argument that his right to avoid trial has 

been lost. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 

(1993) (establishing right to avoid trial satisfies all three conditions for immediate appeal under 

collateral order doctrine). Thus “those seeking immediate appeal ... naturally argue that any 

order denying a claim of right to prevail without trial” violates that right. Hallock, 126 S. Ct. at 

958. But “this generalization is too easy to be sound;” therefore, in addition to satisfying these 

conditions, defendants asserting a right to appeal before final judgment under the collateral order 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 5 of 16
6

doctrine must demonstrate that the appeal would vindicate “particular value[s] of a high order,” 

such as “honoring the separation of powers, preserving the efficiency of government and the 

initiative of its officials, respecting a State’s dignitary interests, [or] mitigating the government’s 

advantage over the individual.” Id. at 958. “Otherwise, almost every pretrial or trial order might 

be called ‘effectively unreviewable’ in the sense that relief from error can never extend to 

rewriting history.” Id. Thus the collateral order doctrine does not extend to every claim “that the 

district court lacks personal jurisdiction, that the statute of limitations has run ... that no material 

fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that 

the complaint fails to state a claim.” Digital Equip., 511 U.S. at 873. “Such an expansive 

construction of the collateral order doctrine ‘would leave the final order requirement of § 1291 in 

tatters.’” City of New York v. Beretta U.S.A. Corp., 234 F.R.D. 46, 52 (E.D.N.Y. 2006) 

(Weinstein, J.) (quoting Hallock, 126 S. Ct. at 958). 

The number of exceptions to the final judgment rule must be rigorously limited, 

else the final judgment rule may become enervated, and the dockets of the courts of appeals, 

swamped. In Cohen itself, a shareholder’s derivative action, the defendant corporation appealed 

from the district court’s order denying its motion to require that the plaintiff post a security bond 

covering the cost of litigation in the event that plaintiff did not prevail. See 337 U.S. at 544–46. 

Postponing appeal until after final judgment would have denied the defendant its statutory right 

to obtain a security bond “at any stage of the proceedings before final judgment,” id. at 545 n.1 

(quoting Ch. 131 of N.J. Laws of 1945), and any opportunity to obtain meaningful review of an 

order denying that right. The Supreme Court holding that the right asserted was “too important 

to be denied review and too independent of the cause itself to require that appellate consideration 

be deferred until the whole case is adjudicated,” id. at 546, allowed immediate appeal, creating 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 6 of 16
7

what became known as the collateral order doctrine. Since Cohen, the Court has enlarged the 

right of immediate appeal to a small class of cases where immediate appeal was necessary to 

vindicate fundamental constitutional rights—for example, a State’s Eleventh Amendment right 

not to be sued, see Puerto Rico Aqueduct, supra; or an individual’s Fifth Amendment right not to 

be prosecuted twice for the same crime, see Abney v. United States, 431 U.S. 651 (1977); or the 

right of a government official to do his job without being sued for discretionary acts that do not 

violate a clearly established right. See Mitchell v. Forsyth, 472 U.S. 511 (1985). Where there 

were no such fundamental concerns, e.g. Mitchell, or clear statutory texts, e.g. Cohen; Puerto 

Rico Aqueduct, the Supreme Court declined to expand the collateral order doctrine. See

Hallock, supra (order denying claim to “judgment bar” under Tort Claims Act); Digital Equip. 

Corp., supra (order granting motion to vacate settlement agreement); Firestone Tire & Rubber 

Co. v. Risjord, 449 U.S. 368 (1981) (order denying motion to disqualify counsel). The case at 

bar exceeds by far the narrow exceptions to the final judgment rule permitted by the Supreme 

Court. 

Because issues properly raised under the collateral order doctrine are by definition 

“completely separate from the merits of the action,” an appeal of an order pursuant to the 

doctrine does not “generally divest the district court of jurisdiction over issues not under 

consideration in the appeal.” Beretta, 234 F.R.D. at 50. Such an order is appealable precisely 

“because it is a final disposition of a claimed right which is not an ingredient of the cause of 

action and does not require consideration with it.” Cohen, 337 U.S. at 546–47. However, in the 

Eleventh Amendment, double jeopardy, and government officer cases previously cited, an 

immediate appeal is necessary to vindicate the right not to be sued in derogation of fundamental 

constitutional guarantees. Necessarily, the right cannot be vindicated if the district court 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 7 of 16
8

continues its proceedings. 

Again, the right of immediate appeal becomes a tempting procedure for a 

disappointed litigant, for the simple act of filing a notice of appeal gives rise to an argument that 

all proceedings in the district court must stop. In several circuits, the district court may certify 

the gambit as “frivolous” and continue pretrial and trial proceedings. See Apostol v. Gallion, 

870 F.2d 1335 (7th Cir. 1989); United States v. Dunbar, 611 F.2d 985 (5th Cir. 1980). 

“Frivolity” has not been set as the standard in the Second Circuit. See Beretta, 234 F.R.D. at 51–

52; Bean v. City of Buffalo, 822 F. Supp. 1016, 1019 (W.D.N.Y. 1993). 

Defendants at bar seek to equate the notice of appeal they filed here with the 

narrow class of exceptions previously discussed. They argue that the City and its contractors 

responded to an attack on our nation, and that if they are denied an immediate appeal, national 

security will inexorably be weakened. They seek, in effect, to carve out a 9/11 exception to 

stand with the delimited class of exceptions previously cited. The events of 9/11, however 

tragic, do not furnish Defendants with a proper basis to invoke the collateral order doctrine. Nor 

can Defendants escape the requirement that the district court must have decided the issue for 

appeal “finally,” upon an undisputed factual record. See Papineau, 465 F.3d at 54; Apostol, 870 

F.2d at 1339. Defendants’ position, that they are entitled to an immediate appeal on the basis of 

the existing factual record, unclear and disputed, and a novel and expanded exception to the rule 

of finality, is without merit. In terms of Apostol and Dunbar, it borders on frivolous, if not 

frivolous. 

B. New York State Defense Emergency Act Immunity

Defendants claim immunity pursuant to the New York State Defense Emergency 

Act. Contrary to Defendants’ argument, however, nothing in the text of the SDEA provides 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 8 of 16
9

absolute immunity from suit. The SDEA shelters parties from liability if they present sufficient 

evidence of their good faith, and that cannot be done by mere allegation in a pleading. 

The SDEA provides that “[certain entities] in good faith carrying out, complying 

with or attempting to comply with any law, any rule, regulation or order duly promulgated [and] 

relating to civil defense ... shall not be liable for any injury or death to persons or damage to 

property as the result thereof.” SDEA § 9193(1) (emphasis added). In contrast with the 

Eleventh Amendment, which prohibits “any suit in law or equity” against a State, and in contrast 

with the Fifth Amendment, which provides that no person shall be “twice put in jeopardy,” the 

SDEA speaks of a defense against liability, not a defense against lawsuits. The difference is 

significant. In enacting the SDEA, the New York legislature created a statutory affirmative 

defense, like other affirmative defenses to liability. See N.Y. Gen. Oblig. Law § 5-701(a)(1) 

(statute of frauds); N.Y. C.P.L.R. § 214-c (statute of limitations for exposure to substances). It 

did not create a prohibition against being sued. 

The SDEA’s requirement that “good faith” be shown further illustrates the point. 

Defendants must plead and prove the good faith of their conduct, ultimately, if issues of fact 

exist, to a jury. See Jones v. Gray, 267 A.D. 242 (N.Y. App. Div., 3d Dept. 1943). In Jones, the 

Appellate Division interpreted the New York State War Emergency Act (“WEA”), the precursor 

to the SDEA, with a virtually identical liability provision. See id. at 244. Defendant Gray in the 

case was an air raid warden who, upon receiving instructions to report to his post in the town of 

Glenford, loitered in a store for about fifteen minutes before departing. During the delay, Gray 

assembled a small group of people to accompany him to his post to witness “a real blackout.” Id.

at 246. Once in his car, Gray drove recklessly and in violation of blackout regulations, and 

collided with plaintiff Jones, killing both and several passengers. See id. at 246–47. Jones’s 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 9 of 16
10

executor sued and prevailed; Gray’s executor appealed. 

The only substantial question presented by these facts for the Appellate Division 

to resolve was whether Gray had acted in “good faith” within the meaning of the WEA. See id.

at 245. Although the court did not define “good faith” explicitly, it rejected “[d]efendant’s 

contention that ... good faith and honest intention must be conclusively presumed as a matter of 

law from the single fact alone that at the time of the collision [defendant] was proceeding in the 

general direction of the air raid post.” Id. at 247. “Obviously,” the court stated, whether Gray 

was acting in good faith “was a question of fact for the jury.” Id.; see also Smith v. Orangetown, 

57 F. Supp. 52, 55 (S.D.N.Y. 1944) (“burden is upon the defendant under the statute to prove 

good faith”). 

Defendants argue that they must be given the right to an immediate appeal, else 

they will have to prove good faith in relation to each and every plaintiff, and the standard of 

good faith will become indistinguishable from negligence. That is not so. It is premature to 

know how Defendants will seek to prove that they acted in good faith, but patterns of conduct, 

precautions generally observed, advice sought and instructions given, supervision standards 

offered and practiced, and other such general practices and polices can be proved without getting 

into the nitty-gritty of each case, or mixing good faith and negligence. Defendants’ arguments 

are without merit. 

C. New York State Disaster Act Immunity

The New York State and Local Natural Disaster and Man-Made Disaster 

Preparedness Law (“Disaster Act”), N.Y. Exec. Law §§ 20 to 29-g, provides in relevant part that 

a “political subdivision shall not be liable for any claim based upon the exercise or performance 

or the failure to exercise or perform a discretionary function or duty on the part of any officer or 

employee in carrying out the provisions of this section.” Disaster Act § 25(5). The provision 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 10 of 16
11

limits the scope of its coverage “to those actions which are necessary to cope with the disaster.” 

In re WTC Disaster Site Litig., 456 F. Supp. 2d at 557. Like the SDEA, therefore, the Disaster 

Act provides for immunity from liability under certain circumstances, but it does not provide a 

right not to be tried. See Daly v. Port Auth., 793 N.Y.S.2d 712, 719–21 (N.Y. Sup. Ct. 2005). 

Furthermore, Disaster Act § 25(5) applies only to political subdivisions, and not to private 

entities. See id. at 720; Fox v. Cheminova, Inc., 387 F. Supp. 2d 160, 170 (E.D.N.Y. 2005) 

(“New York law only provides for State—and not private parties or corporations—immunity 

from liability during emergency situations”). 

To prevail on the basis of the Disaster Act, Defendants must plead and prove that 

the acts and omissions alleged to have been wrongful, causing injury, were discretionary, legal, 

and necessary to cope with the disaster. See Daly, 793 N.Y.S.2d at 721 (“Neither the City nor 

any other entity has discretion to violate an applicable statute.”). To determine whether the 

City’s actions come within the protection of § 25(5), they must be evaluated in the context of 

time, place, necessity, and the demands of applicable laws. See In re WTC Disaster Site Litig., 

456 F. Supp. 2d at 557. These are not issues that can be resolved from pleadings. Defendants 

have no appeal of right. 

D. New York State Common Law Immunity

“When a municipality is engaged in a governmental function undertaken for the 

protection and safety of the public pursuant to the general police powers, it generally will not be 

held liable for the negligent performance of those functions unless it can be shown that a special 

relationship exists between the injured party and the municipality.” Lemery v. Village of 

Cambridge, 290 A.D.2d 765, 766 (N.Y. App. Div. 2002) (citations and internal quotations 

omitted). Here, Plaintiffs have alleged such a relationship in their pleadings; namely, that the 

City had a duty to the workers it caused to be hired, and whom it supervised, to assure that the 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 11 of 16
12

workplace was reasonably safe, and that reasonable protections against a toxic environment were 

in force. Defendants are not entitled to judgment on the pleadings on the basis of state common 

law immunity, as a developed factual record is required. See In re WTC Disaster Site Litig., 456 

F. Supp. at 559 (quoting Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 182 (N.Y. 1982) 

(“It is the specific act or omission out of which the injury is claimed to have arisen and the 

capacity in which that act or failure to act occurred which governs liability, not whether the 

agency involved is engaged generally in proprietary activity or is in control of the location in 

which the injury occurred.”)). 

E. Derivative Federal Immunity

Defendants moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P., 

asserting immunity under the doctrine of derivative federal immunity as it is stated in Boyle v. 

United Techs. Corp., 487 U.S. 500 (1988) and Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 

21 (1940). The Port Authority, but not the other defendants, seeks an immediate appeal of my 

order denying its motion for summary judgment on derivative federal immunity grounds. With 

respect to Defendants’ derivative federal immunity claim, I held that: 

To the extent that reliance and adoption of federal standards and 

protocols is shown, and the Defendants’ conduct is tantamount to 

actions by the federal authority, the Defendants enjoy the same 

immunity as would be conferred on discretionary acts and 

decisions of federal officers and employees. At this point, 

however, the record is not sufficiently clear to enable the court to 

demark the boundary between federally instructed discretionary 

decisions, and those made by the various Defendants. There are 

material, triable issues of fact that will have to be resolved. At this 

point in the pre-trial proceedings, the Motions for Summary 

Judgment are denied. 

In re WTC Disaster Site Litig., 456 F. Supp. 2d 566. 

Clearly, the facts upon which the Port Authority’s claim depends are in genuine 

dispute; therefore an immediate appeal under the collateral order doctrine is not available. 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 12 of 16
13

Papineau, 465 F.3d at 54. Unless Defendants accept the facts as determined in my order, or as 

alleged in Plaintiffs’ complaint, they are not entitled to an immediate appeal before final 

judgment. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 104–05 (2d Cir. 2006); Salim, 

93 F.3d at 90. Defendants have not done that; the facts are hotly contested. There are no agreed 

or stipulated facts at this point to support the Port Authority’s position, or that of any other 

defendant. 

The Port Authority cannot claim derivative federal immunity unless it “was 

working pursuant to the authorization and direction of the federal government.” In re WTC 

Disaster Site Litig., 456 F. Supp. 2d at 560 (citing Yearsley v. W.A. Ross Const. Co., 309 U.S. 

18, 21 (1940)). In my order denying summary judgment, I held that the extent to which 

Defendants, including the Port Authority, acted pursuant to the direction of the federal 

government could not be determined on the basis of the existing record, and that triable issues of 

material fact exist. See id. at 563–66. Because derivative federal immunity depends on factual 

determinations—who did what, according to whose instructions, and the scope of those 

instructions—the Port Authority is not entitled to immediate appeal. See Johnson v. Jones, 515 

U.S. 304, 319–20 (1995) (“A defendant, entitled to invoke a qualified immunity defense, may 

not appeal a district court’s summary judgment order insofar as that order determines whether or 

not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”); Behrens v. Pelletier, 516 

U.S. 299, 312–13 (1996) (“Determinations of evidentiary sufficiency at summary judgment are 

not immediately appealable . . . if what is at issue in the sufficiency determination is nothing 

more than whether the evidence could support a finding that particular conduct occurred . . . .”); 

see also Palmer v. Goss, No. 02 Civ. 5804, 2003 U.S. Dist. LEXIS 19895 (S.D.N.Y. 2003) 

(holding that defendants’ pre-final-judgment appeal turned on question of fact and therefore did 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 13 of 16
14

not divest district court of jurisdiction). 

F. Stafford Act Immunity

Defendants in this case appear to be the first to claim derivative immunity under 

the Stafford Act since it was enacted in 1974. The plain language of the relevant section, 42 

U.S.C. § 5148 addresses federal government agencies only, and there is no precedent in the 

courts of appeals or Supreme Court to support their novel construction of the Act. There is no 

basis for immediate appeal. 

II. Interlocutory Appeal under 28 U.S.C. § 1292(b) 

A. Standard for Determining Whether to Certify an Order for Interlocutory Appeal

For the same reasons that federal practice disfavors collateral appeals, federal 

practice strongly disfavors discretionary interlocutory appeals. Appeals from interlocutory 

orders prolong judicial proceedings, add delay and expense to litigants, burden appellate courts, 

and present issues for decisions on uncertain and incomplete records, tending to weaken the 

precedential value of judicial opinions. See Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 

(2d Cir. 1996); In re September 11 Litig., No. 21 MC 97, 2003 U.S. Dist. LEXIS 17105 

(S.D.N.Y. 2003) (denying motion to certify for interlocutory review). In federal courts, the 

district judge may revisit earlier decisions and reconsider their wisdom in light of factual and 

procedural developments in pretrial and trial proceedings. DiLaura v. Power Authority of State 

of N.Y., 982 F.2d 73, 76 (2d Cir. 1992) (doctrine of law of the case does not limit court’s power 

to reconsider its own decisions prior to final judgment, particularly in light of the availability of 

new evidence). Such flexibility, and the sound jurisprudence that it promotes, is compromised 

by undue liberality in allowing interlocutory appeals. See In re Doe, 546 F.2d 498, 502 (2d Cir. 

1976) (refusing to review the denial of a motion to enjoin a grand jury investigation where, in the 

district judge’s discretion, a colorable basis existed and alternative remedies may be available 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 14 of 16
15

later in the case). 

28 U.S.C. § 1292(b) thus provides for limited interlocutory appeals. A district 

judge may certify an order for interlocutory appeal if the “order involves a controlling question 

of law, as to which there is substantial ground for difference of opinion,” and where an 

immediate appeal may “materially advance the ultimate termination of the litigation,” 28 U.S.C. 

§ 1292(b). Interlocutory appeal “is a rare exception” where, in the discretion of the district 

judge, it “may avoid protracted litigation.” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 

865–66 (2d Cir. 1996). The assessment must be carefully made, to avoid too many appeals by 

too many disappointed litigants who could argue that a different ruling by the district judge 

would end a litigation and save much expense. See SEC v. Credit Bancorp, Ltd., 103 F. Supp. 

2d 223, 226 (S.D.N.Y. 2000). Thus, the district judge has “unfettered discretion to deny 

certification of an order for interlocutory appeal even when a party has demonstrated that the 

criteria of 28 U.S.C. § 1292(b) are met,” Gulino v. Board of Education, 234 F. Supp. 2d 324, 325 

(S.D.N.Y. 2002) (quoting Nat'l Asbestos Workers Med. Fund v. Philip Morris, Inc., 71 F. Supp. 

2d 139, 162 (E.D.N.Y. 1999)). 

B. Defendants’ Motion to Certify Order of October 17, 2006 for Interlocutory Appeal

Defendants’ motion to certify for interlocutory appeal my Order of October 17, 

2006, denying their motions for judgment on the pleadings and for summary judgment, is denied. 

The order resolves a mixed question of law and fact—whether Defendants are entitled to 

immunity at this stage of the litigation on the basis of the existing factual record—by ruling that 

they are not. See In re WTC Disaster Site Litig., supra. The order does not resolve the ultimate 

question of whether Defendants are entitled to the immunities they claim. Because the question 

of whether Defendants are entitled to immunity cannot be answered without consideration of a 

Case 1:07-cv-05564-AKH Document 12-4 Filed 08/20/2007 Page 15 of 16