Benzman v. Whitman The Law Project is co-counsel, with Berger & Montague in Philadelphia, on a case against the Environmental Protection Agency and Administrator Whitman for telling residents, students, and others that they could return to work and their homes or schools in Lower Manhattan and Brooklyn in the immediate days following 9/11 before there was adequate data to prove it was actually safe to return. And, unfortunately, it wasn't safe to return. Before the actual trial can begin, there are a number of procedural steps that have and will occur. The first step that happened was we filed our complaint (located below) in the Southern District of New York federal court. Generally, a complaint is followed by an "answer" from the defendants, however here, the government filed a motion to dismiss our claims for, amongst other things, failure to state a claim and that the government officials were in fact immune from suit in the first place (called qualified immunity). This motion was decided by Judge Deborah Batts (located below) where she dismissed the claims against Deputy Administrator Horinko. However, she did NOT dismiss the core claims against Whitman, namely that she did not have qualified immunity from suit as an individual, amongst other claims that you can read in full in the decision below. The E.P.A. has taken what is called an "interlocutory appeal", which is an appeal taken before trial has begun or a final decision is made by the District Court on the case. These are generally not allowed, however some issues, such as "qualified immunity" allow these appeals. The issue of qualified immunity and the other claims are now going to be at issue before the Second Circuit Court of Appeals in the next few months. Currently, we have received the briefing schedule and oral argument will likely be during the fall. However, a decision is usually not rendered for a few months after the oral argument takes place, so it may be 6 months or more before we get a decision about whether the case will continue to discovery and trial. You can read more about interlocutory appeals here: "Interlocutory appeals from orders denying qualified immunity: Determining the proper scope of appellate jurisdiction". If you would like to view the docket for this case, you can use the "Pacer" system for the federal courts. It requires a password and login and costs a small amount of money to perform searches, but gives a thorough breakdown of all motions and actions taken in this case and others. Documents- Complaint In the News/Courts- 8-8-06, New York Supreme Court waives Late Notice of Claim Requirement for 9/11 claims. 7-28-06, Daily News-" 'Secret' 9/11 Lies: 2002 exec order lets EPA bury info on air hazards" 5-13-02, OMB Watch- "Secrecy at the EPA" |
