Opinion
17 CV 3060 (RJD) (VMS)
2019-01-22
Dudley STEWART, Individually and as Parent and Natural Guardian of S.S. and R.S., Tammy Rose and Eduardo Valentin, Individually and as Representatives of a Class of Similarly Situated Current and Former Employees and Members of the Metropolitan Transportation Authority, the New York City Transit Authority and the Transport Workers Union, Local 100, Plaintiffs, v. The METROPOLITAN TRANSPORTATION AUTHORITY and New York City Transit Authority, Defendants.
Aryeh Leib Taub, Danielle George, Daniel John Woodard, Steven J. Phillips, Phillips & Paollicelli, LLP, New York, NY, for Plaintiffs Dudley Stewart, Tammy Rose, Eduardo Valentin, Vincent Caridi, Antonio Roldan, Jr. Philip E. Karmel, Matias Ricardo Gallego-Manzano, Jessica Holly Fischweicher, Bryan Cave Leighton Paisner LLP, New York, NY, for Defendants.
Aryeh Leib Taub, Danielle George, Daniel John Woodard, Steven J. Phillips, Phillips & Paollicelli, LLP, New York, NY, for Plaintiffs Dudley Stewart, Tammy Rose, Eduardo Valentin, Vincent Caridi, Antonio Roldan, Jr.
Philip E. Karmel, Matias Ricardo Gallego-Manzano, Jessica Holly Fischweicher, Bryan Cave Leighton Paisner LLP, New York, NY, for Defendants.
MEMORANDUM & ORDER
DEARIE, District Judge: Plaintiffs, proposed class representatives of individuals who live and work near the elevated No. 7 train line in West Queens, bring this putative class action against Defendants, the Metropolitan Transportation Authority ("MTA") and the New York City Transit Authority ("NYCTA"), (collectively "Defendants"). Plaintiffs assert claims under the Civil Rights Act, 42 U.S.C. § 1983, the Federal Employers Liability Act 45 U.S.C. § 51 ("FELA"), and the Clean Air Act, 45 U.S.C. § 7604(a), and assert a variety of state law claims. Plaintiffs also seek a preliminary injunction directing an independent investigation of the extent of the lead hazard on the elevated No. 7 train line, determination of next steps that may be required to address it, and judicial oversight of the lead paint abatement process. Mot. for Prelim. Injunction, ECF No. 46. For the reasons set forth below, Defendants’ motion to dismiss is denied with respect to Plaintiffs’ substantive due process and related tort claims and granted with respect to Plaintiffs’ remaining claims. The Court also denies Plaintiffs’ motion for a preliminary injunction.
BACKGROUND
This case confronts the dangers of peeling lead paint on portions of the elevated No. 7 train line, which runs through Queens, New York. Plaintiffs are members of the community living and working near the elevated No. 7 train, including MTA and NYCTA employees, who fear that lead particulates from the paint on the elevated structure create a public health emergency in their neighborhoods. Defendants acknowledge that, as with many old structures in New York City, there is lead paint on the No. 7 train line structures, portions of which have not been repainted in several decades. Nevertheless, Defendants deny Plaintiffs’ allegations that the release of lead particulates from the train line causes a public health emergency that violates Plaintiffs’ substantive due process right to be free from bodily harm. Defendants also deny that maintenance of the elevated structures has been selectively performed in violation of the equal protection clause of the Constitution.
This Court held a preliminary evidentiary hearing in which the parties addressed whether the community is faced with a "certain and imminent" public health emergency as a result of peeling lead paint on the No. 7 train line and whether such an emergency, if it exists, warrants preliminary injunctive relief. The parties briefed this issue and presented extensive expert testimony, as well as voluminous exhibits relating to the relative presence of lead particulates in the areas surrounding the No. 7 train line and throughout New York City's five boroughs. See ECF Nos. 46, 47, 52-55.
Plaintiffs are understandably troubled by the presence of peeling paint and the threat of lead poisoning in their community; the Court shares their apprehension and is sensitive to the serious dangers of lead poisoning, particularly for the most vulnerable among us. Assuming all nonconclusory facts alleged in the Complaint as true, the Court finds that Plaintiffs have pled a plausible claim for relief under the substantive due process clause of the Constitution. However, while the presence of lead in paint chips and paint dust near the No. 7 train line undoubtedly raises a legitimate and disturbing health concern , Plaintiffs have not made the necessary showing, as a matter of proof, that they are irreparably harmed by the lead paint conditions on the No. 7 train and are thus entitled to the extraordinary injunctive relief they seek.
DISCUSSION
I. Motion to Dismiss
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. (internal quotations omitted). This evaluation is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.
In evaluating a motion to dismiss, the court must "draw[ ] all reasonable inferences in the plaintiff's favor ... and constru[e] any ambiguities in the light most favorable to upholding the plaintiff's claim." Duplan v. City of New York, 888 F.3d 612, 617 (2d Cir. 2018) (internal quotations omitted). Dismissal is only appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
A. Substantive Due Process
The due process clause of the Fourteenth Amendment ensures that "[no] person shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. This promise has evolved into "protection of the individual against arbitrary action of government," Cty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), including government actions that intrude upon "an individual's right to bodily integrity free from unjustifiable governmental interference," Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007). While "the Due Process Clause of the Fourteenth Amendment ... does not transform every tort committed by a state actor into a constitutional violation," Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), where government action is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience," Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Lewis, 523 U.S. at 847, n.8, 118 S.Ct. 1708 ), that conduct runs afoul of the substantive due process clause.
i. The Constitutional Right at Stake
As an initial matter, "[t]he first step in a substantive due process analysis is to identify the constitutional right at stake." Paige v. N.Y.C. Housing Auth., 2018 WL 3863451, at *10 (S.D.N.Y. Aug. 14, 2018) (citing Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) ). It is well established that "[t]he substantive component of due process encompasses, among other things, an individual's right to bodily integrity." Lombardi, 485 F.3d at 79 ; see also Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). In evaluating bodily integrity claims, "the central tenet of the Supreme Court's vast bodily integrity jurisprudence is balancing an individual's common law right to informed consent with tenable state interests, regardless of the manner in which the government intrudes upon an individual's body." Guertin v. Michigan, 912 F.3d 907, 919 (6th Cir. 2019) (citing Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 269-70, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) ). In particular, "[i]nvoluntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value—often under false pretenses and with deceptive practices hiding the nature of the interference—is a classic example of invading the core of the bodily integrity protection." Guertin, 912 F.3d at 920-21. Plaintiffs assert their right to be free from bodily harm—here, from being subjected to poisoning from lead paint particulates, Compl., ECF No. 21, ¶ 126, a "foreign substance with no known therapeutic value" and in the face of allegedly "deceptive practices hiding the nature [and extent] of the interference," Guertin, 912 F.3d at 920-21.
ii. Affirmative State Action
Having identified the constitutional right at stake, Plaintiffs must allege that a violation of that right was the product of a "state created danger." A state-created danger exists when a state agent acts affirmatively to "assist[ ] in creating or increasing ... danger to the victim", Pena, 432 F.3d at 108, by either acting as a "substantial cause of the danger or at least enhanc[ing] it in a material way," Estate of M.D. by DeCosmo v. New York, 241 F. Supp. 3d 413, 427 (S.D.N.Y. 2017). However, "where the government's control is lessened, so is its duty, and its failings are less likely to be of constitutional proportions." McClary v. O'Hare, 786 F.2d 83, 88-89 (2d Cir. 1986). For example, where a government employee makes substantive due process allegations related to conduct that has little or nothing to do with the employer's status as a state actor, the employer's actions cannot amount to a constitutional violation simply because he or she is a government official. See id. at 89 ("[T]he substantive component of the Due Process Clause does not provide a remedy to a public employee that would not be available to a private employee subject to identical conduct by his employer"). Rather, state action in the context of a substantive due process claim requires that the government official, "because of his unique position as such [is] able to impose a loss on an individual." Id. (emphasis added).
The Complaint also alleges that Defendants are liable because they "have a special relationship with Plaintiffs" created because they "assumed a responsibility to safeguard [Plaintiffs] from the hazards [Defendants] both created and inflicted." Compl., ECF No. 21, ¶ 117. In certain "exceptional circumstances" a state actor may have a constitutional obligation to protect an individual, but these "special relationships arise ordinarily if a government actor has assumed an obligation to protect an individual by restricting the individual's freedom in some manner, as by imprisonment." Lombardi, 485 F.3d at 79 & n.3 ; see also DeShaney, 489 U.S. at 200, 109 S.Ct. 998 ("The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf"). Those circumstances clearly being absent, the Court does not address Plaintiffs’ substantive due process claim in the context of any "special relationship," but instead analyzes Plaintiffs’ substantive due process claim under the "state-created danger" theory.
Moreover, critical in alleging a state-created danger is some affirmative action on the part of the state official—the Fourteenth Amendment "does not impose liability whenever someone cloaked with state authority causes harm" and thus a plaintiff must demonstrate more than governmental "passivity and nonfeasance" in the face of danger. Compare Paige, 2018 WL 3863451, at *11-12 (dismissing plaintiffs’ substantive due process claim where allegations that defendants failed to disclose lead paint conditions and failed to conduct lead paint inspections amounted to "bureaucratic dishonesty and inaction at the highest levels," but nevertheless fell short of a constitutional violation) with Wright v. City of Philadelphia, 2015 WL 894237, at *9-10 (E.D. Pa. Mar. 2, 2015) (allowing substantive due process claim to proceed where plaintiff alleged state defendant caused asbestos to be present in plaintiff's basement and placed asbestos back into plaintiff's basement after advising the plaintiff that she had "nothing to worry about").
Defendants correctly assert that substantive due process is not implicated where "the reckless conduct at issue was not uniquely governmental." Defs. Br., ECF No. 39, at 6 (citing McClary, 786 F.2d at 89 n.6 ). Defendants then claim that because the alleged reckless conduct relating to lead paint "could be undertaken by a private construction contractor" Plaintiffs have not sufficiently pleaded affirmative state action capable of causing a constitutional violation. Defs. Br., ECF No. 39, at 6. Plaintiffs, on the other hand, argue Defendants’ reliance on McClary is misplaced. Whereas McClary involved a public employee's wrongful death claim against his employer, the Steuben County Highway Department, for a "simple tort," McClary, 786 F.2d at 89-90, Plaintiffs assert that their claims reside at the other end of the spectrum and relate to a decades-long, widespread governmental failure to "remediate toxic hazards on governmental transportation structures stretching for many miles over densely populated neighborhoods" and subsequent efforts to "falsely represent[ ] that no health hazard exists," Pls. Br., ECF No. 40, at 5, n.3; Compl., ECF No. 21, ¶ 23. Accordingly, Plaintiffs believe their allegations fall under the category of substantive due process claims concerning government conduct "sufficiently severe ... as to transcend the bounds of ordinary tort law and establish a deprivation of constitutional rights." McClary, 786 F.2d at 88.
First, Plaintiffs have sufficiently alleged state action that is "uniquely governmental in character." Id. at 89, n.6. In McClary, the Second Circuit declined to recognize a constitutional violation reasoning that conduct that is "uniquely governmental" exists only where the state actor, because of its "unique position as such, was able to impose a loss on an individual." Id. at 89. However, the Court was careful to contain its holding, noting that it "by no means intend[ed] to exclude grossly negligent, reckless, or intentional abuses from the purview of section 1983." Id. at 89 n.6. Following McClary, district courts have declined to recognize constitutional violations only where it is clear that the plaintiff's harm did not result from some uniquely governmental action. See, e.g., Cherry v. N.Y.C. Housing Auth., 2017 WL 4357344, at *29 (E.D.N.Y. Sept. 29, 2017) ("[Plaintiff] alleges that certain employees fabricated statements, which led to the termination of his employment, but such conduct is not the type of abuse of government power necessary to state a substantive due process claim"); Bertram v. Metropolitan Transp. Auth., 2014 WL 748933, at *8 (S.D.N.Y. Feb. 26, 2014) (finding Plaintiff did not plead "uniquely governmental" state action where "the gravamen of Plaintiff's allegations is that Defendants harassed him and disciplined him on numerous occasions"); North Star Contracting Corp. v. Long Island R.R. Co., 723 F. Supp. 902, 911 (E.D.N.Y. 1989) ("A substantive due process right is not implicated ... where the only tie the government has to the case is the fact that it is one of the parties").
To that end, the majority of cases addressing and dismissing substantive due process claims, particularly in the public works context, are claims brought by individuals or their survivors, akin to wrongful termination, wrongful death or other traditional tort suits. E.g., Chaffer v. Bd. of Educ. of City School Dist. of Long Beach, 75 F. Appx 12 (2d Cir. 2003) ; Perfetto v. Erie Cty. Water Auth., 2006 WL 1888556 (W.D.N.Y. July 7, 2006) ; Lichtman v. Blom, 1994 WL 704799 (S.D.N.Y. Dec. 16, 1994). Here, on the other hand, we have a potentially grave toxic lead threat that could impact whole communities. The broader menace of lead particulates falling from the elevated No. 7 train because of Defendants’ alleged indifference, exacerbated by Defendants’ allegedly false representations, is unlike the highly discrete, individualized harm cases Defendants’ rely on in arguing that this Court should dismiss Plaintiffs’ substantive due process claims at this stage of the litigation. Plaintiffs’ allegations concern the precise "uniquely governmental" action the substantive due process doctrine was intended to address.
Second, Defendants’ "uniquely governmental" action is not so passive that they can be absolved of liability because, even though they were "aware of the dangers that Plaintiff[s] faced [they] played no part in their creation, nor did [they] do anything to render Plaintiff any more vulnerable to them." D.M. ex rel. Ray v. Philadelphia Housing Authority, 613 F. Appx 187, 190-91 (3d Cir. 2015) (citing DeShaney, 489 U.S. at 201, 109 S.Ct. 998 ). Instead, Plaintiffs’ allegations, which we must accept as true, indicate Defendants engaged in affirmative conduct, not limited to bureaucratic nonfeasance. Unlike the Defendants in D.M. ex rel. Ray, Plaintiffs claim Defendants do not merely "subsidize" the upkeep of the elevated No. 7 train line, while playing no part in the creation or maintenance of any danger that lies therein. See D.M. ex rel. Ray, 613 F. Appx at 190. According to the Complaint, Defendants "caus[ed] these structures to be covered with lead based paints and other toxic substances" and then "falsely represent[ed] that no health hazard exists when it knows that the opposite is the case." Compl., ECF No. 21, ¶ 23 (emphasis added). Compare with Wright, 2015 WL 894237, at *9 (allowing plaintiffs’ substantive due process claim to proceed where complaint included allegations that a City housing maintenance crew "caused asbestos to become airborne in [plaintiff's] basement" and "placed ... asbestos back into the basement wall and advised [plaintiff] that she had nothing to worry about" (emphasis added)).
To be clear, Plaintiffs also allege Defendants’ passive acts rise to constitutional violations, see Compl., ECF No. 21, ¶ 23 ("failing to adequately inspect, maintain and repair ... failing to remediate and/or abate ... failing to clean up" (emphasis added)); however, these allegations, in isolation, do not establish the principal basis upon which Plaintiffs’ claims survive Defendants’ motion to dismiss. Like Wright, Plaintiffs have also alleged Defendants’ affirmative acts—"causing " the elevated No. 7 train line to release harmful lead particulates and "falsely representing " to the exposed community the health hazards stemming from peeling lead paint—violate their substantive due process right to be free from bodily harm. These allegations, accepted as true, are not limited to unactionable nonfeasance, see Paige, 2018 WL 3863451, at *12, but state a series of affirmative and uniquely governmental actions and decisions that played a role in creating, and through inaction or indifference, subsequently exacerbating the threat of lead poisoning from the elevated No. 7 train line in West Queens.
At oral argument, counsel for Defendants focused solely on these allegations, claiming "no support ... in the case law" for "when a public agency knowingly fails to maintain a public work and that knowing failure results in an identified danger to the community of some kind, that violates substantive due process." Jan. 3, 2018 Hr'g Tr. 426: 18-24. However, counsel's argument did not consider Plaintiffs remaining allegations, in particular that Defendants "falsely represented" the health hazards associated with lead poisoning. Compl., ECF No. 21, ¶ 23. This is a clear allegation of affirmative governmental misconduct and readily distinguishable from the "failure to act" or "failure to maintain" cases Defendants attempt to analogize this case to.
iii. Conscience-Shocking Affirmative State Action
Because Plaintiffs have sufficiently alleged harm resulting from uniquely governmental affirmative action, the Court next examines whether Plaintiffs adequately pleaded that such acts were so egregious as to "shock the conscience."
Determining whether state action "shocks the conscience" is a "necessarily imprecise" inquiry, that at a minimum "depends on the state of mind of the government actor and the context in which the action was taken." John E. Andrus Memorial, Inc. v. Daines, 600 F. Supp. 2d 563, 585 (S.D.N.Y. 2009) (citing O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005) ). "The constitutional concept of conscience-shocking ... points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of liability." Id. (citing Lewis, 523 U.S. at 848, 118 S.Ct. 1708 ).
Defendants point out that notwithstanding the undisputed dangers associated with lead poisoning, "maintaining public works ... involve[s] a host of policy choices" and "[e]ven where the government is aware of specific dangers ... it must perform a triage among competing demands" and such triaging decisions are "best answered by locally elected representatives ... rather than by federal judges." Defs. Br., ECF No. 39, at 5 (quoting Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 53 (1st Cir. 2006) ). Defendants contend that this case is about City resource allocation and risk assessment and requires decision-making best left to City employees who understand the competing resource constraints and infrastructure limitations at play. Id. As a result, even if these policy decisions cause harm, Defendants assert that such harm is related to the execution of legitimate governmental goals and thus is not so arbitrary as to "shock the conscience." Id.
Plaintiffs respond that Defendants’ actions do not warrant judicial deference because Defendants deliberately caused the hazards associated with peeling lead paint to remain extant in and around the elevated No. 7 train line, did not address the danger, and "falsely represent[ed] that no health hazard exists," despite knowledge of a grave lead hazard and its potentially devastating effects. Compl., ECF No. 21, ¶ 23. Plaintiffs assert that Defendants carried on this conduct for decades, demonstrating a longstanding practice that differentiates Plaintiffs’ claims from cases where deference to a governmental policy was appropriate given the "fleeting exercise of legitimate balancing of competing needs at a particular point in time" rather than an "arbitrary and capricious disregard for ... health and safety ... for many years." Pls. Br., ECF No. 40, at 5, n.4.
Defendants’ conduct, if proven, shocks the conscience. In Wright, the district court allowed Plaintiffs’ claims to proceed where a Philadelphia Housing Authority ("PHA") maintenance crew "knew full well that they had caused asbestos to become airborne in [Plaintiff's] basement" and that "asbestos has been known to be a highly toxic, dangerous, and disease producing substance for many decades." 2015 WL 894237, at *9. In light of those allegations, the district court concluded that "it cannot reasonably be argued that the PHA maintenance crew did not act with deliberate indifference that shocks the conscience." Id. Here too, Plaintiffs allege the MTA and NYCTA (i) know they have caused lead particulates to become airborne as a result of their failure to remediate peeling lead paint conditions in and around the elevated No. 7 train line in West Queens, (ii) know that their representations regarding the health hazards from peeling lead paint are not accurate and (iii) know, and have known for "many decades" that lead, like asbestos, is a "highly toxic, dangerous, and disease-producing substance." Id. ; Compl., ECF No. 21, ¶ 16.
Moreover, Defendants’ contention that their conduct reflects legitimate government policymaking and necessary triaging decisions (rather than conscience-shocking action) is unpersuasive. The lead conditions on the No. 7 train have endured for many years and Defendants have thus had ample time to deliberate with respect to their conduct and whether to undertake remediation efforts. This is not an instance where knowledge of the grave risk associated with lead poisoning and efforts to "falsely represent" that risk can "be excused on the basis of split-second decision making." Guertin, 912 F.3d at 925. Compare with Lombardi, 485 F.3d at 81-85 (finding that allegations of false statements made knowingly by public officials regarding air quality in lower Manhattan following September 11, 2001 involved balancing competing and legitimate governmental interests—restoring public services and protecting public health—during a time-sensitive environmental emergency, such that the conduct did not rise to the level of "conscience-shocking" state action). Here, Defendants’ so-called triaging took place over years "replete with opportunities for repeated reflection, largely uncomplicated by the pulls of competing obligations." Guertin, 912 F.3d at 925. Legitimate governmental triaging, as Defendants attempt to characterize their conduct, is akin to the Defendants’ conduct in Lombardi immediately following the September 11, 2001 terrorist attacks. It is not a pseudonym for "jealously guarding the public's purse" over the course of many years and in the face of a grave, known threat. Id. Nor is it an excuse to make reckless false representations to the public regarding the nature and extent of a public health threat over an extended period of time. Accordingly, allegations of such conduct rise to the level of "conscience-shocking" state action.
Although the standard for establishing a substantive due process violation is a demanding one, Plaintiffs have alleged facts sufficient to state a claim for relief that comports with Twombly and Iqbal and are readily distinguishable from substantive due process claims, including those involving the dangers of lead paint, that have failed at the motion to dismiss stage. See, e.g., Paige, 2018 WL 3863451.
B. Remaining Claims
i. Equal Protection
Plaintiffs have not identified a protected class experiencing discriminatory or differential treatment required to state an equal protection claim. Compl., ECF No. 21, ¶ 128. To adequately plead an equal protection violation, Plaintiffs must allege non-conclusory facts that, if true, would tend to show intent to disadvantage a particular racial or ethnic group through its lead paint abatement decisions. See, e.g., Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012) ("[E]qual protection claims ... cannot be based solely on the disparate impact of a facially neutral policy. It is well established that proof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause") (citing City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (internal quotations omitted)). There is no such allegation in Plaintiffs’ complaint. While the Court is sympathetic to theories of vulnerability in equal protection, the Complaint points to no factual allegations to support an inference of animus; thus, Plaintiffs’ equal protection claim is dismissed.
While Plaintiffs allege that the neighborhoods impacted are disproportionately Asian American and/or Latino, there is no allegation of animus or discriminatory intent toward those groups.
ii. Clean Air Act
The Clean Air Act authorizes citizen suits for violations of an emission standard or limitation, 42 U.S.C. § 7604(a)(1), and Plaintiffs allege Defendants’ "misconduct has violated" and "continues to violate" the National Ambient Air Quality Standards ("NAAQS") established under the Clean Air Act for lead, Compl., ECF No. 21, ¶¶ 138-41. However, under the Clean Air Act, "[n]o action may be commenced ... prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order." 42 U.S.C. § 7604(b)(1)(A). Here, Plaintiffs failed to provide this notice. Furthermore, courts in this Circuit have held that NAAQS are not equivalent to "emission standard[s] or limitation[s]" for purposes of citizen suits under section 7604 of the Clean Air Act. Coal. Against Columbus Ctr. v. City of New York, 967 F.2d 764, 769 (2d Cir. 1992) ("A cornerstone of this Court's interpretation of the citizen suit provision is the principle that an air quality standard established under the Clean Air Act is not an ‘emission standard or limitation.’ "); Wilder v. Thomas, 854 F.2d 605, 615 (2d Cir. 1988) (" Section 7604 does not provide for citizen suits based on violation of, or failure to attain, the NAAQS itself."). Rather, "the only permissible subject of a citizen suit" under the Clean Air Act is the alleged violation of "a specific provision of a [State Implementation Plan]," and "the NAAQS is not itself a specific provision." Wilder, 854 F.2d at 615. Because Plaintiffs failed to provide the notice required by the Clean Air Act and rely exclusively on NAAQS, in lieu of a specific provision of a State Implementation Plan, Plaintiffs’ Clean Air Act claim must be dismissed.
iii. FELA
FELA is a "broad remedial statute" directed at protecting "railroad workers who suffer personal injuries as a result of the negligence of their employer." Greene v. Long Island R. Co., 280 F.3d 224, 229 (2d Cir. 2002) (quoting Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) ). Plaintiffs Caridi and Roldan, former NYCTA employees, allege violations of FELA and claim that "as a result of the exposure ... to these known hazardous and dangerous substances ... [they] are at an increased risk of contracting serious latent diseases." Compl. ECF No. 21, ¶ 179. FELA, "which is to be liberally construed," Greene, 280 F.3d at 229, is nevertheless limited to employees "of a carrier, any part of whose duties ... shall be the furtherance of interstate or foreign commerce," 45 U.S.C. § 51. FELA is thus inapplicable to employees of the NYCTA, who work "strictly in the MTA's intrastate operations," even while those MTA employees involved in interstate operations of the MTA are covered by FELA (e.g., certain Metro-North Railroad employees). Greene v. Long Island R. Co., 99 F. Supp. 2d 268, 275 (E.D.N.Y. 2000), aff'd, 280 F.3d 224 (2d Cir. 2002) (emphasis added): see also Felton v. Southeastern Pa. Transp. Auth., 952 F.2d 59, 62, 66 (3d Cir. 1991) (declining to apply FELA to SEPTA employees engaged in purely intrastate operations, even though some SEPTA employees were engaged in interstate operations, because such a result would be an "unwarranted judicial expansion of FELA"); Zuckerberg v. Port Auth. of N.Y. & N.J., 75 A.D. 3d 503, 505, 906 N.Y.S.2d 282 (N.Y. 2d. 2010) ("[I]t is not enough that a defendant is generally, through one of its many subsidiaries, engaged in interstate commerce ... [f]or purposes of determining the applicability of FELA, an entity's interstate rail operations should be considered separately from operations which do not involve interstate rail travel"); Linetskiy v. N.Y.C. Transit Auth., 2 A.D. 3d 503, 503, 768 N.Y.S.2d 502 (N.Y. 2d. 2003) (finding "[t]he New York City transit system ... carries only passengers in the City of New York" and thus transit authority employees were not covered by FELA). But see Hedderman v. Staten Island Rapid Transit Operating Authority, 593 F. Supp. 1141, 1144 (E.D.N.Y. 1984) (finding employees of an intrastate common carrier were covered by FELA "despite declining proportion of [interstate] freight business, which contributed only a ‘fraction’ of carrier's revenues"). Plaintiffs, who might have otherwise qualified under FELA if they had been engaged in interstate operations, were employed by NYCTA and confined to work within the State of New York. As a result, the FELA claim is dismissed because FELA does not apply to NYCTA workers.
iv. Workers’ Compensation
Defendants argue that Plaintiffs Caridi and Roldan's state law claims are barred by New York's Workers’ Compensation Law. New York's Workers’ Compensation Law is the exclusive remedy available to the Plaintiffs who are or were NYCTA employees at the time they were harmed by peeling lead paint on the elevated No. 7 train in West Queens. Forjan v. Leprino Foods, Inc., 209 F. Appx 8, 9 (2d Cir. 2006) (citing N.Y. Workers’ Comp. Law § 11 ). There is an exception to this exclusivity provision "where injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the employer's direction ... [and] directed at causing harm to the particular employee." Acevedo v. Consol. Edison Co. of New York, 189 A.D.2d 497, 500–01, 596 N.Y.S.2d 68 (N.Y. 1st 1993) : see also Walker v. Weight Watchers Intern., 961 F. Supp. 32, 34-35 (E.D.N.Y. 1997) (finding that where employer "sexually harassed" a particular employee-plaintiff, subjecting her to "unwanted advances and on many occasions detained plaintiff against her will," the "employer's conduct was engaged in to bring about the consequences of the act" and fell within the intentional tort exception). But see Forjan, 209 F. Appx at 10 (exclusivity exception did not apply with respect to defendant's failure to warn plaintiff of dangers associated with exposure to chlorine gas while working in a cheese manufacturing plant); Greco v. Staten Island Univ. Hosp., 2000 WL 804634, at *2 (E.D.N.Y. 2000) (allegations that Defendants "consciously, willfully, knowingly and intentionally ignored the hazards they created notwithstanding their knowledge that physical harm would be inflicted upon plaintiff" in addition to allegations that the defendant "knew each plaintiff would sustain injuries while working in a toxically dangerous factory but intentionally withheld that information from each worker" were not enough to overcome the exclusivity provision); Acevedo, 189 A.D.2d at 500–01, 596 N.Y.S.2d 68 (exclusivity exception did not apply with respect to City of New York's failure to warn plaintiff-employees of workplace dangers related to exposure to "toxic asbestos fibers").
Exposure to lead paint during Plaintiffs’ work for NYCTA will not "neutralize the statute's exclusivity" because there is no allegation of "an intentional or deliberate act by the employer directed at causing harm to [a] particular employee." Greco, 2000 WL 804634, at *2 (emphasis added). Therefore, Plaintiffs Caridi and Roldan's claims are properly directed to the Workers’ Compensation Board and are precluded by the exclusive remedy provisions of New York's Workers’ Compensation statute. Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 138 (2d Cir. 2001).
v. Inverse Condemnation
Plaintiff's allegation of inverse condemnation is dismissed. Compl., ECF No. 21, ¶ 127. Diminution of property value stemming from the lead paint hazards in and around the elevated No. 7 train line in West Queens does not establish a constitutional "taking" and therefore the Complaint does not state an inverse condemnation or takings claim. Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 131, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (rejecting the proposition that "diminution in property value, standing alone, can establish a taking") (internal quotation marks omitted); Merrick Gables Ass'n. Inc. v. Town of Hempstead, 691 F. Supp. 2d 355, 360 (E.D.N.Y. 2010) (granting defendants’ motion to dismiss where plaintiffs alleged perceived health risks associated with radio frequency emissions would "reduce[ ] the value of their property"); Schwasnick v. Fields, 2010 WL 2679935, at *7 (E.D.N.Y. June 30, 2010) (granting defendants’ motion to dismiss where plaintiff alleged that Town of Islip's allowance of illegal renters on her property decreased the value of the property).
II. Preliminary Injunction
Having denied Defendants’ motion to dismiss Plaintiffs’ substantive due process claim, the Court next considers whether, in light of the proffered evidence, Plaintiffs are entitled to a preliminary injunction that would require the Defendants, at a minimum, to investigate the extent and nature of the lead hazard on the No. 7 train. Unlike a motion to dismiss, which considers exclusively the nonconclusory facts alleged in the Complaint and assumes them to be true, to obtain preliminary injunctive relief Plaintiffs must clear a much higher hurdle. Yunus v. Robinson, 2018 WL 3455408, at *15 (S.D.N.Y. June 29, 2018) ("[A] plaintiff seeking a preliminary injunction ... must do more than survive a motion to dismiss"). To grant a preliminary injunction, the Court, in light of the evidence presented, must find that Plaintiffs have demonstrated: (i) they are likely to suffer irreparable injury absent an injunction; (ii) either (a) they are likely to succeed on the merits of their claim or (b) "there exist sufficiently serious questions going to the merits to make them a fair ground for litigation and that the balance of hardships tip[s] decidedly in the movant's favor" and (iii) injunctive relief is in the public interest. C.D.S. Inc. v. Bradley Zetler, CDS, LLC, 691 F. Appx 33, 35 (2d Cir. 2017) (internal quotations omitted) (quoting Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008) ); see also Credico v. N.Y. State Bd. of Elections, 751 F. Supp. 2d 417, 420 (E.D.N.Y. 2010). Furthermore, where Plaintiffs seek an order compelling Defendants to alter rather than maintain the status quo, the likelihood of success on the merits must be "clear" or "substantial." Credico, 751 F. Supp. 2d at 420 ; see also Koppell v. N.Y. State Bd. of Elections, 153 F.3d 95, 96 (2d Cir. 1998).
Plaintiffs are not entitled to injunctive relief at this stage. Notwithstanding the serious threat lead poisoning poses to Plaintiffs’ community, without sufficient information establishing (i) that members of the putative class suffer irreparable harm from peeling lead paint on the No. 7 train, and (ii) that such harm, if it exists, will be remedied by the extraordinary relief Plaintiffs seek, Plaintiffs are not entitled to a preliminary injunction. See Citibank. N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985) ("Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered."). The threat of harm alone is insufficient because granting a preliminary injunction requires a demonstration of irreparable harm that is both "certain and imminent," and a "threat," by definition, is not a certainty. Healthcare Distrib. Alliance v. Zucker, 353 F.Supp.3d 235, 266 (S.D.N.Y. 2018) (emphasis added).
Indeed, the existence of irreparable harm is belied by the very nature of the injunctive relief Plaintiffs seek—an investigation , replete with reporting requirements and judicial oversight and designed to uncover what harm exists due to the conditions on the No. 7 train. Even if undertaking such an investigation would be a prudent and advisable exercise of Defendants’ authority, absent a showing of irreparable harm, the Court cannot wield its equitable powers to compel such a result. To do so would risk usurping Defendants’ policymaking functions in the face of a presently unknown and uncertain threat of harm. Accordingly, Plaintiffs’ inability to show that they have suffered harm from exposure to peeling lead paint on the No. 7 train precludes the Court from finding that they are entitled to an injunction.
A. Irreparable Harm
The parties do not dispute that there is peeling lead paint on the elevated No. 7 train line and that, even in the smallest of quantities, exposure to peeling lead paint poses a threat to the health and welfare of the relevant population. Evidence of the significant dangers associated with lead poisoning, regardless of whether the lead originates from paint on an elevated train line, in one of the City's many housing projects, or elsewhere, is virtually incontrovertible. Though Defendants contend that their "handling" of this threat warrants deference and does not justify judicial interference, the Court shares Plaintiffs’ concern that the City's current passive approach to the threat of lead poisoning is wanting, particularly in the midst of such an obvious peril. Nevertheless, the dearth of hard information regarding the nature and extent of the lead hazard on the elevated No.7 train line requires the Court to conclude that Plaintiffs have not shown they are adversely affected by their proximity to peeling lead paint on the No. 7 train, and that to the extent they are harmed, that harm could be prevented or mitigated by the injunctive relief Plaintiffs seek. The Court cannot grant injunctive relief on the basis of a threat of harm of unknown origin, even when that threat of harm is of extraordinary significance and only exacerbated by the City's so-called public works’ "triaging."
The City's unfortunate response to this issue was on display during oral argument, in which defense counsel attempted to shrink an indisputably expansive and grave public health threat down to "an issue of public works ... analogous to a traditional state tort law." Jan. 3, 2018 Hr'g Tr. 422:24-423:4. Defendants went so far as to claim that no matter how "dire" or "bad" the "public works" situation, there could be no point at which "substantive due process would kick in." Id. at 423:8-18. As the Court made clear at oral argument, Defendants’ "general statement[s]" "get to a point where [Defendants’] conclusion becomes a little uncomfortable." Id. at 423:5-7. Defendants cannot use public works "triaging" to minimize an obvious community-wide public health issue, even if in the short-term Defendants point to a lack of information to escape Plaintiffs’ request for preliminary relief.
Plaintiffs bear the burden of showing that irreparable harm exists and that such harm is "certain and imminent" if injunctive relief is denied. Healthcare Distrib. Alliance, 353 F.Supp.3d at 266 ; German v. Federal Home Loan Mortg. Corp., 899 F. Supp. 1155, 1162 (S.D.N.Y. 1995) ("[T]he standard that a movant must meet is extremely high"); see also New York ex. Rel. v. Schneiderman v. Actavis PLC, 787 F.3d 638, 660 (2d Cir. 2015) ("[I]rreparable harm is injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages" (internal quotations omitted)). To satisfy this burden, Plaintiffs must demonstrate that there is some irreparable harm caused by Defendants’ actions that can thus be prevented or mitigated by the specific injunctive relief Plaintiffs’ seek. Indeed, "[t]he linchpin of such interim relief is that threatened irreparable harm will be prevented by that injunction ," Buckingham Corp. v. Karp, 762 F.2d 257, 262 (2d Cir. 1985) (emphasis added), and, if the application is not granted the plaintiff "is likely to suffer irreparable harm before a decision on the merits can be rendered," Harrison-Erickson, Inc. v. Chicago Bulls Ltd. P'ship, 1991 WL 51118, at *4 (S.D.N.Y. Apr. 3, 1991) (citing Citibank, N.A., 756 F.2d at 275 ). If the plaintiff has not adequately established he or she suffers some adverse effect from defendant's actions, then the plaintiff cannot also demonstrate any causal relationship between the alleged irreparable harm and the relief sought, and a preliminary injunction is not warranted. Compare Arnold's Ice Cream Co. v. Carlson, 330 F. Supp. 1185, 1186-87 (E.D.N.Y. 1971) (granting preliminary injunction to "restrain[ ] sales by the defendants to plaintiff's former customers" where at least 85 of plaintiff's customers were still being solicited by defendants and there was a strong likelihood that they would discontinue dealings with plaintiff) with Buckingham Corp., 762 F.2d at 262-63 (denying preliminary injunction where irreparable injury was not "present and ongoing," and thus non-existent, and because plaintiff had not shown future "relationships with other suppliers w[ere] threatened" by defendants’ conduct).
Plaintiffs have not established that there is a public health emergency. The available lead exposure data for the neighborhoods near the No. 7 train are indistinguishable from that of other neighborhoods in New York City. Plaintiffs’ expert Dr. William Bithoney conceded that lead levels in West Queens, through which the No. 7 train line passes, are lower than that of New York City generally. Dec. 19, 2017 Hr'g Tr. at 65, 68. Further, Dr. Bithoney agreed that there has been a "dramatic decline" in lead levels in West Queens, and greater New York City, based on data available from 2005 through 2014. Id. And, with respect to whether Plaintiffs are adversely affected by their proximity to the No. 7 line and the potential lead hazard that lies therein, Dr. Peter Muenning, another expert for the Plaintiffs, was careful to distinguish public health emergency from public health threat. Id. at 232-33. As anticipated, and in light of the limited information available, when pressed by the Court Dr. Muenning explained that while "emergency" or "catastrophe" is "a possibility in this case," he conceded "this is clearly a threat" because "to know whether or not it is an emergency we would need ... further studies" assessing the extent to which there are any adverse health effects attributable to "airborne lead" from the peeling paint on the No. 7 train. Id. (emphasis added); cf. Healthcare Distrib. Alliance, 353 F.Supp.3d at 266 (irreparable harm is harm that is "certain and imminent" if injunctive relief is denied). Plaintiffs have not satisfied their burden because they are unable to demonstrate that they suffer any adverse effects from lead paint conditions on the No. 7 train. At this time, the lack of information regarding the threat of lead poisoning on the City's elevated train lines means Plaintiffs have not shown that irreparable harm is certain, actual or imminent if their request for injunctive relief is denied. Actavis PLC, 787 F.3d at 660 ; Buckingham Corp., 762 F.2d at 262-63 ; Harrison-Erickson, Inc., 1991 WL 51118, at *4.
B. Substantial or Clear Likelihood of Success on the Merits and the Public Interest
Plaintiffs have likewise failed to demonstrate a "substantial" or "clear" likelihood of success on the merits of their claim. Given that the "mandatory" relief Plaintiffs seek, if granted, would alter the status quo and "once complied with, cannot be undone," Plaintiffs must demonstrate "a greater likelihood of success," that is either "clear" or "substantial." Tom Doherty Assocs., Inc. v. Saban Entm't. Inc., 60 F.3d 27, 34-35 (2d Cir. 1995) ; see also Yunus, 2018 WL 3455408, at *15 ("[A] plaintiff seeking a preliminary injunction ... must do more than survive a motion to dismiss").
As discussed above in relation to Defendants’ motion to dismiss, the majority of Plaintiffs’ claims fail. The only surviving constitutional claim—the allegation that Defendants’ actions, inactions and false representations regarding lead paint health hazards violate Plaintiffs’ substantive due process rights—is plausible, but its likelihood of success on the merits is not "clear" or "substantial" absent more concrete evidence of harm and causation "so egregious" that it "shocks the conscience." See Yunus, 2018 WL 3455408, at *15.
Plaintiffs are, understandably, eager to assess the undeniable threat in New York City. Surprisingly, the Defendants are not similarly inclined. The relief Plaintiffs seek would, to the benefit of many New Yorkers, compel the City to take this threat more seriously. However, absent (i) evidence of irreparable harm caused by Plaintiffs’ proximity to the peeling lead paint and (ii) a clearer and more substantial showing of success on the merits, the Court, though equally troubled by Defendants’ apparent indifference, cannot simply usurp their policymaking function and hamstring public funds in the name of some presently uncertain end. At this juncture, Plaintiffs have not made the necessary showing for a preliminary injunction because they have demonstrated neither a likelihood of success on the merits nor irreparable harm. CONCLUSION
Properly construed, Plaintiffs allege far more than inadequate or negligent maintenance on the No. 7 train. They assert that the Defendants created a condition that may well pose a grave threat to the health of those living and working in the vicinity of the deteriorating structures, and then falsely represented the nature and extent of that threat. And further, Plaintiffs assert that through their inaction and indifference Defendants will continue to risk the welfare of those potentially affected by declining to properly assess the impact, if any, of the very hazardous condition they choose to tolerate while their balky and cumbersome periodic maintenance continues to lag behind the problem. Given Plaintiffs’ allegations and the stakes involved for those who must depend on the Defendants to protect them from dangerous conditions, the Court concludes that Plaintiffs’ allegations warrant that the case proceed. The motion to dismiss Plaintiffs’ substantive due process and related tort claims is denied.
However, Plaintiffs have not met their burden to establish they are entitled to the extraordinary relief of a preliminary injunction. The motion for a preliminary injunction is denied. Defendants’ motion to dismiss is granted as to Plaintiffs’ equal protection, Clean Air Act, FELA, and inverse condemnation claims and Plaintiffs Caridi and Roldan's claims are precluded by New York's Workers’ Compensation statute.
SO ORDERED.