Lombardi v. Whitman, No. 06-1077 (2d Cir. 2007)

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06-1077 Lombardi v. Whitman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: November 27, 2006 Decided: April 19, 2007) Docket No. 06-1077-cv - - - - - - - - - - - - - - - - - - - -x JOHN LOMBARDI, ROBERTO RAMOS JR., HASAN A. MUHAMMAD, RAFAEL A. GARCIA and THOMAS E. CARLSTROM, individually and as representatives of a class of individuals similarly situated, Plaintiffs-Appellants, - v.CHRISTINE T. WHITMAN, in her individual capacity, JAMES L. CONNAUGHTON, in his individual capacity, EILEEN McGINNIS, in her individual capacity, WILLIAM J. MUSZYNSKI, in his individual capacity, JOHN L. HENSHAW, in his individual capacity, SAMUEL THERNSTROM, in his individual capacity, and JOHN DOES, 110, in their individual capacities, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, SACK, and RAGGI, Circuit Judges. Appeal from a judgment of the United States District Court for the Southern District of New York (Hellerstein, 1 J.) entered on February 6, 2006, granting the defendants 2 motion to dismiss for failure to state a claim. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Affirmed. STEPHEN J. RIEGEL, Weitz & Luxemberg, P.C., New York, NY, for Plaintiffs-Appellants. MARK B. STERN, Appellate Staff, Civil Division, United States Department of Justice (Peter D. Keisler, Assistant Attorney General of the United States, Alisa Klein, Scott A. Hershovitz, on the brief), Washington, DC, for Defendants-Appellees. DENNIS JACOBS, Chief Judge: The five plaintiffs performed search, rescue and clean- 20 up work at the World Trade Center site (the site ) in the 21 aftermath of the September 2001 terrorist attacks. 22 allege that the defendants, all of them federal officials, 23 issued reassuring--and knowingly false--announcements about 24 the air quality in lower Manhattan; that the plaintiffs 25 therefore believed it was safe to work at the site without 26 needed respiratory protection, and did; and that the 27 defendants conduct violated plaintiffs right to 28 substantive due process. 29 6, 2006 order entered in the United States District Court 30 for the Southern District of New York (Hellerstein, J.), They This is an appeal from a February -2- 1 which dismissed the complaint. We affirm because the 2 complaint s allegations do not shock the conscience even if 3 the defendants acted with deliberate indifference: when 4 agency officials decide how to reconcile competing 5 governmental obligations in the face of disaster, only an 6 intent to cause harm arbitrarily can shock the conscience in 7 a way that justifies constitutional liability. 8 BACKGROUND 9 10 The facts are drawn from the complaint, the documents 11 referenced therein, and common knowledge of the events of 12 September 11, 2001. 13 The collapse of the World Trade Center towers on that 14 day generated a cloud of debris that coated the surrounding 15 buildings and streets of Lower Manhattan with concrete dust, 16 asbestos, lead, and other building materials. 17 the wreckage burned for months, emitting various metals and 18 particulate matter in addition to such potentially harmful 19 substances as dioxin, polychlorinated biphenyls (PCBs), 20 volatile organic compounds (VOCs), and polycyclic aromatic 21 hydrocarbons (PAHs). 22 23 Fires within The plaintiffs arrived at the site on September 11 or in the days soon after: John Lombardi is a New York Army -3- 1 National Guard medic; Roberto Ramos, Jr. is an Emergency 2 Services Officer in the New York City Corrections 3 Department; Hasan A. Muhammad is an Emergency Services 4 Captain in the New York City Corrections Department; Rafael 5 A. Garcia is a Deputy U.S. Marshal; and Thomas E. Carlstrom 6 is a paramedic in the New York City Fire Department. 7 participated in search, rescue, and clean-up work at the 8 site, with little or no equipment to protect their lungs. 9 They were not told by their employers or any government 10 official about the health risks posed by the dangerous 11 contaminants in the air, and they thought they could work at 12 the site with little or no respiratory protection based on 13 the information available to them, including statements of 14 government officials indicating that Lower Manhattan s air 15 quality presented no significant health risks to the public. 16 They The plaintiffs brought suit on November 23, 2004, in 17 the Southern District of New York, on their own behalf and 18 on behalf of a purported class including all those who 19 worked at or in the immediate vicinity of the site during 20 the period September 11, 2001, to October 31, 2001, who did 21 so without sufficient respiratory equipment in reliance on 22 information supplied by government officials, and who as a 23 result suffer or reasonably fear suffering illness or injury -4- 1 from their exposure to asbestos or other harmful substances. 2 The defendants, sued in their individual capacities, 3 are current or former officials of the Environmental 4 Protection Agency ( EPA ), the White House Council on 5 Environmental Quality ( CEQ ), and the Occupational Safety 6 and Health Administration ( OSHA ). 7 are based on statements in EPA press releases issued in the 8 wake of the disaster, which (according to the complaint) 9 were made (1) to speed work at the site, (2) with the 10 knowledge they were false or misleading, and (3) with 11 deliberate indifference to the health risks the workers 12 would incur by relying on them. The claims against them 13 14 A. The Allegedly Misleading Statements 15 The complaint invokes a report issued by the EPA Office 16 of the Inspector General, which critiques the EPA s response 17 to the September 11 disaster. 18 Inspector General, EPA s Response to the World Trade Center 19 Collapse: Challenges, Successes, and Areas for Improvement, 20 Report No. 2003-P-00012 (Aug. 21, 2003), available at 21 http://www.epa.gov/oig/reports/2003/WTC_report_20030821.pdf See EPA Office of the -5- 1 2 (last visited April 17, 2007) (the OIG Report ). 1 A September 13, 2001, EPA press release, which is cited 3 in the OIG Report, [i] indicated that initial environmental 4 tests done at the site after the terrorist attacks were 5 very reassuring about potential exposure of rescue crews 6 and the public to environmental contaminants ; [ii] 7 concluded that the results of [a]dditional sampling of both 8 ambient air quality and dust particles . . . in lower 9 Manhattan . . . were uniformly acceptable ; and [iii] 10 expressed the EPA s intent to work with other agencies and 11 rescue workers to provide respiratory equipment and to make 12 sure they observed appropriate safety precautions-- 13 assistance that the plaintiffs allege (to their knowledge) 14 never materialized. 15 16 OIG Report at 87-88. A September 16 EPA press release reported additional good news: 1 Both the OIG Report and the EPA press releases, which are attached to the OIG Report as appendices, see Supplemental Appendices to OIG Evaluation Report, available at http://www.epa.gov/oig/reports/2003/wtc/toc.htm (last visited April 17, 2007), are public documents on which the complaint heavily relies; and plaintiffs counsel indicated to the district court at oral argument that the OIG Report was incorporated into the complaint. Mot. to Dismiss Hr g Tr. 32, Lombardi v. Whitman, No. 04-CV-9272 (S.D.N.Y. Feb. 2, 2006). In ruling on the motion to dismiss, the district court was therefore permitted to consider the entire contents of these documents, as do we. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 [N]ew samples confirm previous reports that ambient air quality meets OSHA standards and consequently is not a cause for public concern. New OSHA data also indicates that indoor air quality in downtown buildings will meet standards. EPA has found variable asbestos levels in bulk debris and dust on the ground, but EPA continues to believe that there is no significant health risk to the general public in the coming days. Appropriate steps are being taken to clean up this dust and debris. Our tests show that it is safe for New Yorkers to go back to work in New York s financial district, said John L. Henshaw, Assistant Secretary of Labor for OSHA. Keeping the streets clean and being careful not to track dust into buildings will help protect workers from remaining debris. Id. at 85. A September 18 press release reported that EPA s 21 testing of the air and drinking water showed that these 22 vital resources are safe and that the vast majority of 23 air samples taken near the site measured harmful substances 24 at below maximum acceptable levels. 25 release, the highest asbestos levels were close to the site 26 itself, where rescue and cleanup workers were supposedly 27 being supplied with adequate equipment. 28 quoted defendant Whitman: 29 30 31 32 33 34 35 According to the The same release We are very encouraged that the results from our monitoring of air quality and drinking water conditions in both New York and near the Pentagon show that the public in these areas is not being exposed to excessive levels of asbestos or other harmful substances, Whitman said. Given the scope of the tragedy from last week, I am glad to -7- 1 2 3 4 5 Id. at 77. 6 25 percent of the bulk dust samples taken up to that point 7 recorded asbestos at levels representing a significant 8 health risk. 9 reassure the people of New York and Washington, D.C. that their air is safe to breath [sic] and their water is safe to drink, she added. In fact, according to the EPA Inspector General, See id. at 14. Press releases issued on September 21, October 3, and 10 October 30--as well as a statement made by an EPA 11 spokesperson to the New York Daily News on or about October 12 11--all reiterated the message that testing and sampling 13 done near the site indicated no significant health risk to 14 the public. 15 See Compl. ¶¶ 49-51. The OIG Report suggests that: [i] the EPA s press 16 releases conveyed the dominant message that there was no 17 risk to public health without necessary qualifying 18 statements about, for instance, the initial lack of 19 monitoring data for many harmful substances besides 20 asbestos, see OIG Report at 9-11; [ii] the EPA did not 21 disclose publicly that it lacked adequate benchmarks for 22 measuring the long term health effects of each substance or 23 the combination of them in the unprecedented conditions 24 created by the disaster, see id. at 9-13; [iii] the EPA s 25 reassuring statements were interpreted by some to apply to -8- 1 site workers as well as the public, see id. at 43-44; [iv] 2 the EPA and other agencies sent mixed messages to workers 3 about the need for respirators, see id. at 43-45; and [v] 4 the EPA s decisions as to what information to release were 5 heavily influenced by suggestions from the CEQ, see id. at 6 14-17. See Compl. ¶¶ 52-57. 7 As to the last point, a September 12 internal EPA email 8 directed that all statements to the media were to be cleared 9 by the National Security Council before release, and the OIG 10 Report indicates that an official in the CEQ was the conduit 11 through which this clearance was granted, OIG Report at 15; 12 a comparison of draft press releases with their final 13 counterparts reveals that the CEQ suggested edits that 14 removed cautionary wording (for instance, in the September 15 13 press release, a portion of the title was changed from 16 [EPA] Testing Terrorized Sites for Environmental Hazards 17 to [EPA] Reassures Public About Environmental Hazards ), 18 id. at 17; and in response to the CEQ s suggestions about 19 the September 16 press release, the EPA [i] removed a 20 reference to recent test samples that recorded higher 21 asbestos levels than those in previous samples and [ii] 22 added a quote from John L. Henshaw of OSHA assuring that it 23 was safe to go to work in Lower Manhattan, id. at 16. -9- 1 The press releases were not without cautionary 2 language: they referred to the EPA s plan for continued 3 monitoring efforts; and early press releases warned of the 4 need to take certain cautionary measures--for instance, to 5 change air conditioning filters, sweep up debris, and wet 6 down buildings covered in debris to avoid its becoming 7 airborne. 8 9 10 B. The District Court Proceedings Defendants moved to dismiss the complaint on March 21, 11 2005, and the district court granted the motion from the 12 bench on February 2, 2006, 2 holding that the defendants had 13 not alleged the violation of a constitutional right and 14 holding alternatively that the defendants in any event 15 enjoyed qualified immunity because they had not violated a 16 right that was clearly established at the time of their 17 conduct. 18 further alternative ground that special factors counseled 19 hesitation in the creation of a cause of action under Bivens 20 v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 21 U.S. 388 (1971). As to two plaintiffs, dismissal was granted on a Specifically: (1) Lombardi s claim was 2 The district court dismissed without certifying the purported class. -10- 1 dismissible because military personnel may not use a § 1983 2 or Bivens action to obtain redress for injuries suffered 3 incident to military service, see United States v. Stanley, 4 483 U.S. 669, 681 (1987) (Bivens action by U.S. military 5 personnel); Jones v. N.Y. State Div. of Military & Naval 6 Affairs, 166 F.3d 45, 50-52 (2d Cir. 1999) (§ 1983 action by 7 state National Guardsman); and (2) Garcia s claim was 8 dismissible because he already had the remedy afforded to 9 U.S. Marshals under the Federal Employees Compensation Act, 10 see generally Schweiker v. Chilicky, 487 U.S. 412, 424-29 11 (1988); Hudson Valley Black Press v. IRS, 409 F.3d 106, 110- 12 14 (2d Cir. 2005). 13 In assessing the due process claim, the district court 14 emphasized that the administration had to deal with a 15 situation of concern, of fear [for] safety, of a need to get 16 on with [the] work of the community, to avoid an economic 17 catastrophe as well as a physical catastrophe to the City of 18 New York, and what was said was said. 19 Tr. 49, Lombardi v. Whitman, No. 04-CV-9272 (S.D.N.Y. Feb. 20 2, 2006). Mot. to Dismiss Hr g 21 22 23 DISCUSSION We review a dismissal for qualified immunity de novo, -11- 1 accepting as true the material facts alleged in the 2 complaint and drawing all reasonable inferences in 3 plaintiffs favor. 4 Dist., 239 F.3d 246, 250 (2d Cir. 2001). Johnson v. Newburgh Enlarged School 5 The Constitution itself does not explicitly provide a 6 damages remedy to redress violations by individual federal 7 officials. 8 against the federal government itself unless it has waived 9 that immunity. And sovereign immunity bars suit for damages But where an individual has been deprived 10 of a constitutional right by a federal agent acting under 11 color of federal authority, the individual may bring a so- 12 called Bivens action for damages against that federal agent 13 in an individual capacity, Thomas v. Ashcroft, 470 F.3d 491, 14 496 (2d Cir. 2006), provided that Congress has not forbidden 15 such an action and that the situation presents no special 16 factors counselling hesitation in the absence of affirmative 17 action by Congress, Hudson Valley Black Press, 409 F.3d at 18 108 (quoting Bivens, 403 U.S. at 396). 19 A federal executive official is entitled to invoke 20 qualified immunity as a defense against a Bivens action. 21 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 22 Qualified immunity analysis in Bivens suits is the same two- 23 step analysis applied in § 1983 suits against state actors. -12- 1 See Wilson v. Layne, 526 U.S. 603, 608 (1999). 2 [t]aken in the light most favorable to the party asserting 3 the injury, do the facts alleged show the officer s conduct 4 violated a constitutional right? 5 194, 201 (2001). 6 established that a reasonable government official would have 7 known that her conduct violated a constitutional right in 8 light of the specific context of the case, [and] not as a 9 broad general proposition[?] 10 11 First, Saucier v. Katz, 533 U.S. Second, was the right so clearly Id. The threshold inquiry is therefore whether the complaint alleges the violation of a constitutional right. 12 13 14 A. Substantive Due Process Under the Due Process Clause of the Fifth Amendment of 15 the Constitution, [n]o person shall . . . be deprived of 16 life, liberty, or property, without due process of law. 17 U.S. Const. amend. V. 18 protection of the individual against arbitrary action of 19 government, County of Sacramento v. Lewis, 523 U.S. 833, 20 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 21 (1974)), which has both a procedural component protecting 22 against the denial of fundamental procedural fairness, id. 23 at 845-46, as well as a substantive component guarding the This clause has been interpreted as a -13- 1 individual against the exercise of power without any 2 reasonable justification in the service of a legitimate 3 governmental objective, id. at 846. 4 component of due process encompasses, among other things, an 5 individual s right to bodily integrity free from 6 unjustifiable governmental interference. 7 Glucksberg, 521 U.S. 702, 720 (1997) (citing Rochin v. 8 California, 342 U.S. 165 (1952)). 9 however, does not transform every tort committed by a state The substantive See Washington v. The Due Process Clause, 10 actor into a constitutional violation. DeShaney v. 11 Winnebago County Dep t of Soc. Servs., 489 U.S. 189, 202 12 (1989). 13 substantive due process violation unless the government 14 action was so egregious, so outrageous, that it may fairly 15 be said to shock the contemporary conscience. 16 DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Lewis, 17 523 U.S. at 847 n.8). Government action resulting in bodily harm is not a Pena v. 18 19 20 B. Misrepresentation and State Created Danger Only an affirmative act can amount to a violation of 21 substantive due process, because the Due Process Clause is 22 phrased as a limitation on the State s power to act, not as 23 a guarantee of certain minimal levels of safety and -14- 1 security. DeShaney, 489 U.S. at 195. It is not enough to 2 allege that a government actor failed to protect an 3 individual from a known danger of bodily harm or failed to 4 warn the individual of that danger. 5 Harker Heights, 503 U.S. 115, 125-29 (1992) (no due process 6 violation where plaintiff alleged the city failed to 7 properly train or warn its employees of known dangers that 8 resulted in sanitation worker s asphyxiation). 9 extent the plaintiffs here allege that the defendants had an 10 affirmative duty to prevent them from suffering exposure to 11 environmental contaminants, their claims must fail. 12 cannot rely on the EPA s failure to instruct workers to wear 13 particular equipment, its failure to explain the exact 14 limitations of its knowledge of the health effects of the 15 airborne substances that were present, or its failure to 16 explain the limitations of its testing technologies. 17 But the complaint goes further; it alleges that 18 defendants affirmative assurances that the air in Lower 19 Manhattan was safe to breathe created a false sense of 20 security that induced site workers to forgo protective 21 measures, thereby creating a danger where otherwise one 22 would not have existed. 23 governmental entity may have a constitutional obligation to See Collins v. City of So, to the They [I]n exceptional circumstances a -15- 1 provide . . . protection, either because of a special 2 relationship with an individual, or because the governmental 3 entity itself has created or increased the danger to the 4 individual. 5 522, 533 (2d Cir. 1993) (citing DeShaney, 489 U.S. at 198, 6 201). 7 between them and federal officials. 3 8 reliance on the government s misrepresentations induced them 9 to forgo available safeguards, and thus characterize the 10 11 Ying Jing Gan v. City of New York, 996 F.2d The plaintiffs allege no special relationship They plead that their harm as a state created danger. Where a government official takes an affirmative act 12 that creates an opportunity for a third party to harm a 13 victim (or increases the risk of such harm), the government 14 official can potentially be liable for damages. 15 Pena, 432 F.3d at 108; Hemphill v. Schott, 141 F.3d 412, 419 See, e.g., 3 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. Such considerations are less relevant where a plaintiff alleges a state created danger : Whether or not a victim was in state custody will surely be relevant to the state s duty to protect. But because this Circuit treats the state created danger exception [considered here] as distinct from the special relationship exception, the fact that the victims were not in state custody at the time of the accident is irrelevant here. Pena, 432 F.3d at 113 n.22. -16- 1 (2d Cir. 1998); Dwares v. City of New York, 985 F.2d 94, 98- 2 99 (2d Cir. 1993). 3 is dissimilar from the state created dangers recognized in 4 our precedents; in each of those cases, a third party s 5 criminal behavior harmed the plaintiff after a government 6 actor--always a law enforcement officer--enhanced or created 7 the opportunity for the criminal act through some 8 interaction or relationship with the wrongdoer. 9 432 F.3d at 109 (opining that special relationship However, the danger alleged in this case See Pena, 10 liability arises from the relationship between the state and 11 a particular victim, whereas state created danger 12 liability arises from the relationship between the state and 13 the private assailant. ). 14 gave the green light for skinheads to assault a group of 15 flag-burners; in Hemphill, the police allegedly gave back a 16 robbery victim s gun and took him along on a chase after the 17 robber, who was shot by the robbery victim; in Pena, the 18 police allegedly encouraged drinking and driving by a fellow 19 officer who hit several pedestrians while under the 20 influence. In Dwares, the police allegedly 21 In this case, the defendants acted only after the 22 terrorists criminal acts were complete; i.e., plaintiffs 23 claims are based neither on any alleged encouragement of the -17- 1 terrorists nor on any relationship between defendants and 2 the terrorists. 3 environmental conditions as the wrongdoer. 4 the defendants, with knowledge of the serious health risks 5 posed by these conditions, falsely represented to the public 6 that it was safe from any such risks. 7 Instead, plaintiffs appear to cast They submit that The closest analogy in other circuits substantive due 8 process case law--and it is not particularly close--is to 9 cases in which statements by law enforcement officials give 10 an individual a false sense of security as to the necessity 11 of self-help. 12 F.3d 1055, 1062-63 (9th Cir. 2006) (holding that a complaint 13 adequately alleged state created danger where plaintiff 14 reported to police that her neighbor was a child molester 15 and the police violated promises to patrol the neighborhood 16 and to warn her before they talked to the neighbor); Gazette 17 v. City of Pontiac, 41 F.3d 1061, 1065-66 (6th Cir. 1994) 18 (holding that causation was too attenuated to support a due 19 process claim where daughter alleged she herself would have 20 found evidence at the site of her mother s disappearance-- 21 and had a chance of saving her mother--but for the police s See, e.g., Kennedy v. City of Ridgefield, 439 -18- 1 false claim that they had found nothing after a search). 4 2 Depending on the circumstances, these cases furnish 3 some support for the idea that a substantive due process 4 violation can be made out when a private individual derives 5 a false sense of security from an intentional 6 misrepresentation by an executive official if foreseeable 7 bodily harm directly results and if the official s conduct 8 shocks the conscience. 9 complaint as true, as we must, we assume that a sufficient 10 causal connection exists between the defendants optimistic 11 statements and the plaintiffs exposure to toxic substances. 12 However, the point is fairly debatable; as the Supreme Court 13 cautioned in evaluating a substantive due process claim Taking the allegations of the 4 Some circuits have rejected factually similar claims, reasoning that whether or not an officer has expressed an intent to protect a plaintiff, the failure to provide such protection is not a substantive due process violation unless the plaintiff is restrained from acting on his own behalf. See Bright v. Westmoreland County, 443 F.3d 276, 284 (3d Cir. 2006) (holding that, because the plaintiff s freedom to defend his family was not impaired, there was no substantive due process violation where his daughter was murdered by a person whom the police previously assured plaintiff they would arrest), cert. denied, 127 S. Ct. 1483 (2007); Pinder v. Johnson, 54 F.3d 1169, 1175-76 (4th Cir. 1995) (in banc) (rejecting due process claim where a policeman falsely assured plaintiff that her violent former paramour would be jailed overnight, because there was no limitation imposed on her liberty ). Both Bright and Pinder rejected the argument that a citizen s reliance on an officer s promises could constitute a state created danger. -19- 1 based on legislative action, 2 3 4 5 6 7 8 9 10 [a governmental] decision that has an incremental impact on the probability that death will result in any given situation . . . cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. Martinez v. California, 444 U.S. 277, 281 (1980). 11 Bright, 443 F.3d at 281 (a state created danger cause of 12 action is only cognizable where the harm ultimately caused 13 was foreseeable and fairly direct ) (quoting Kneipp v. 14 Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)). 15 the vexed issue of causation 5 ; instead, we decide the case 5 See also We put aside The complaint here raises difficult questions about causation and the reasonableness of reliance that would likely be obstacles for the plaintiffs if the complaint were to be reinstated. For example: (1) whether the plaintiffs actually read or believed the press releases on which their claims are based; (2) whether the press releases were specific and optimistic enough to induce reasonable reliance; (3) whether, absent the defendants statements, the plaintiffs would have refused to work if adequate respiratory equipment was unavailable when they demanded it; (4) whether the plaintiffs experience at the site gave them sufficient first-hand information that harmful substances were in the air; (5) whether the plaintiffs use of the limited respiratory equipment that was made available to them would have abated the risk of illness; and (6) whether the defendants statements were subjected to public challenges that would have alerted a prudent worker to the need for protective equipment. The complaint implicitly alleges that the absence of reassuring EPA press releases would in itself have saved the plaintiffs from working without adequate protection. But it is unclear when the plaintiffs read--or heard of--the defendants statements; the well-hedged allegation is that the plaintiffs exposed -20- 1 on the ground that the conduct alleged, even assuming 2 causation, does not shock the conscience. 3 4 5 C. Conscience-Shocking Conduct In order to shock the conscience and trigger a 6 violation of substantive due process, official conduct must 7 be outrageous and egregious under the circumstances; it must 8 be truly brutal and offensive to human dignity . . . . 9 Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 10 173 (2d Cir. 2002) (quoting Johnson v. Glick, 481 F.2d 1028, 11 1033 & n.6 (2d Cir. 1973)) (internal quotation marks 12 omitted). 13 concept of substantive due process because guideposts for 14 responsible decisionmaking in this unchartered area are 15 scarce and open-ended. 16 Courts have always been reluctant to expand the Collins, 503 U.S. at 125. In gauging the shock, negligently inflicted harm is 17 categorically beneath the threshold, while conduct 18 intended to injure in some way unjustifiable by any 19 government interest is the sort of official action most 20 likely to rise to the conscience-shocking level. County of themselves to environmental contaminants in direct or indirect reliance upon the defendants statements, at least in part through the dissemination of such statements by third parties. Compl. ¶¶ 1, 63 (emphasis added). -21- 1 Sacramento v. Lewis, 523 U.S. 833, 849 (1998). In between, 2 the Supreme Court has recognized that conduct exhibiting 3 deliberate indifference to harm can support a substantive 4 due process claim, with a potent qualification that has 5 bearing here: 6 7 8 9 10 11 12 13 14 Id. at 850. 15 conflicting obligations. 16 harmless options at the time decisions must be made, an 17 attempt to choose the least of evils is not itself shocking. 18 Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking. The conscience recognizes the dilemma of In the apparent absence of In Lewis, the Supreme Court held that the deliberate 19 indifference of police officers who risk the lives of 20 suspects by engaging in high speed pursuit cannot be deemed 21 conscience-shocking, because they have obligations that 22 tend to tug against each other and because [t]hey are 23 supposed to act decisively and to show restraint at the same 24 moment, and their decisions have to be made in haste, under 25 pressure, and frequently without the luxury of a second 26 chance. 27 312, 320 (1986)). Id. at 853 (quoting Whitley v. Albers, 475 U.S. Police conduct in such events does not -22- 1 shock the conscience unless there is intent to harm 2 suspects physically or to worsen their legal plight. 3 at 854. 4 indifference to inmate welfare in non-emergency situations 5 can be conscience-shocking because the officials have time 6 to make unhurried judgments, upon the chance for repeated 7 reflection, largely uncomplicated by the pulls of competing 8 obligations. 9 such a situation does not ordinarily clash with other Id. By contrast, prison officials deliberate Id. at 853. The duty of a prison official in 10 equally important governmental responsibilities, Whitley, 11 475 U.S. at 320, because no substantial countervailing 12 interest excuse[s] the State from making provision for the 13 decent care and protection of those it locks up . . . . 14 Lewis, 523 U.S. at 851. 15 The plaintiffs do not allege that the defendants acted 16 with an evil intent to harm; but they argue that the 17 defendants deliberate indifference shocks the conscience 18 because the defendants made their decisions in an 19 unhurried fashion with hours, days, weeks and even months 20 to contemplate, deliberate, discuss and decide what to do 21 and say about the health hazards posed to thousands of 22 people who were coming onto and working at Ground Zero. 23 Appellants Br. 39-40. -23- 1 The decisions alleged were made by the defendants over 2 a period of time rather than in the rush of a car chase; but 3 the decisions cannot on that account be fairly characterized 4 as unhurried or leisured. 5 the complaint) shows that the defendants were required to 6 make decisions using rapidly changing information about the 7 ramifications of unprecedented events in coordination with 8 multiple federal agencies and local agencies and 9 governments. The OIG Report (relied upon by See OIG Report at i ( Responding to this 10 crisis required organizations from all levels of government 11 to coordinate their response efforts and to make critical 12 public health and safety decisions quickly, and without all 13 of the data that decision-makers would normally desire. ); 14 cf. Kaucher v. County of Bucks, 455 F.3d 418, 426-27 & n.3 15 (3d Cir. 2006) ( We note defendants were under some pressure 16 to respond quickly to the spread of infection [at the jail 17 over a period of more than two years], and we question 18 whether deliberately indifferent conduct is truly conscience 19 shocking in this context. ). 20 Hurried or unhurried, the defendants were subjected to 21 the pull of competing obligations. 22 that the alleged wrongs to the plaintiffs were committed in 23 aid of competing public goals that were not insubstantial: -24- The complaint concedes 1 2 3 4 5 6 7 8 9 10 11 Compl. ¶ 62. 12 knows: that one essential government function in the wake of 13 disaster is to put the affected community on a normal 14 footing, i.e., to avoid panic, keep order, restore services, 15 repair infrastructure, and preserve the economy. 16 Defendants caused to be made the aforesaid misleading statements and omissions . . . in order to insure that Plaintiffs and Class Members immediately began to perform search, recovery, clean-up and other work at the Ground Zero site immediately after the September 11, 2001 attacks, and to create the overall impression that it was safe for people residing and working in areas near Ground Zero to return to their normal lives. The complaint thus recognizes what everyone In previous cases in which we recognized a state 17 created danger, government officials were not subject to the 18 pull of competing obligations. 19 certainly no countervailing public benefit to the 20 encouragement of drunk driving. 21 F.3d 98, 114 (2d Cir. 2005) ( Not condoning egregious drunk 22 driving does not ordinarily clash with other equally 23 important governmental responsibilities. ) (quoting Lewis, 24 523 U.S. at 852). 25 violence against demonstrators in Dwares served no 26 conceivable public interest; Dwares emphasized that the 27 officers allegedly intended to punish the victims because of 28 their political opinions. As to Pena, there is See Pena v. DePrisco , 432 And the active incitement of private See Dwares v. City of New York, -25- 1 985 F.2d 94, 99 (2d Cir. 1993) (the allegations in the 2 complaint would easily permit the finder of fact to infer 3 that the officers intended the flag burners qua flag burners 4 to suffer the injuries inflicted ). 5 Beyond our own precedent, the plaintiffs direct us to 6 two recent district court decisions that found conduct to be 7 conscience-shocking on facts that are in one case somewhat 8 similar, and in the other, identical. 9 355 F. Supp. 2d 30 (D.D.C. 2004), aff d, 171 F. App x 850 In Briscoe v. Potter, 10 (D.C. Cir. 2005), postal employees who had contracted 11 anthrax alleged that their supervisors had falsely told them 12 that it was safe to return to work after anthrax had been 13 discovered at their facility. 14 the supervisors conduct was conscience-shocking: the 15 supervisors were commendable for their dedication to 16 getting the mail out but deplorable for not recognizing the 17 potential human risk involved. . . . [T]hese alleged actions 18 demonstrated a gross disregard for a dangerous situation in 19 which actual deliberation [was] practical. 20 (quoting Butera v. Dist. of Columbia, 235 F.3d 637, 652 21 (D.C. Cir. 2001)). 22 notwithstanding, the due process claim was dismissed on 23 qualified immunity, see 355 F. Supp. 2d at 48, and a The district court held that Id. at 46 The shock to the conscience -26- 1 substantive due process claim arising from the same incident 2 was dismissed in Richmond v. Potter, No. 03-00018, 2004 U.S. 3 Dist. LEXIS 25374, at *19-29 (D.D.C. Sept. 30, 2004), aff d 4 on other grounds, 171 F. App x 851 (D.C. Cir. 2005). 5 Plaintiffs here allege harm similar to that suffered in 6 Briscoe, but we need not decide whether Briscoe was 7 correctly decided, because there is a salient ground for 8 distinction: the need to process the mails at a single 9 postal facility cannot be compared with the need to restore 10 the residential, economic, educational and civic life of an 11 entire community. 12 In Benzman v. Whitman, No. 04 Civ. 1888, 2006 WL 13 250527 (S.D.N.Y. Feb. 2, 2006), the district court 14 considered substantive due process claims arising from the 15 same press releases at issue in this case. 16 Benzman held that if the reassuring statements made by EPA 17 officials were made with knowledge of their falsehood, they 18 were unquestionably conscience-shocking based on the nature 19 of the EPA s mandate: 20 21 22 23 24 25 26 Citing Briscoe, The EPA is designated as the agency in our country to protect human health and the environment, and is mandated to work for a cleaner, healthier environment for the American people. The agency enforces regulations regarding pollution in our environment and the presence of toxic and hazardous substances, and has endorsed and -27- 1 2 3 4 5 6 7 8 9 10 11 Id. at *18 (footnote and citation omitted). 12 with this reasoning, which focuses too narrowly on the 13 mission of a single agency without considering the other 14 substantial government interests at stake. 6 15 promulgated regulations for hazardous and toxic materials, such as asbestos and lead. As head of the EPA, Whitman knew of this mandate and took part in and directed the regulatory activities of the agency. Given this responsibility, the allegations in this case of Whitman s reassuring and misleading statements of safety after the September 11, 2001 attacks are without question conscience-shocking. We disagree If anything, the importance of the EPA s mission 16 counsels against broad constitutional liability in this 17 situation: the risk of such liability will tend to inhibit 18 EPA officials in making difficult decisions about how to 19 disseminate information to the public in an environmental 20 emergency. 21 misconduct could result from the disclosure of incomplete, 22 confusingly comprehensive, or mistakenly inaccurate 23 information, officials might default to silence in the face 24 of the public s urgent need for information. 6 Knowing that lawsuits alleging intentional This is The EPA s mandate is perhaps relevant to a determination of whether the defendants conduct complied with the statutes and regulations governing that agency s operation, and we express no opinion on whether the defendants conduct was appropriate or legal in this respect. -28- 1 because, as the Supreme Court held in Collins v. City of 2 Harker Heights, 503 U.S. 115, 125-29 (1992), a government 3 official s failure to warn of a known danger, without more, 4 does not violate substantive due process. 5 Collins also instructed that, at least in the § 1983 6 context, courts should operate from a presumption that the 7 administration of government programs is based on a rational 8 decisionmaking process that takes account of competing 9 social, political, and economic forces. Id. at 128. While 10 § 1983 implicates issues of federalism that are not relevant 11 here, the Court s instruction has force nonetheless: 12 substantive due process liability should not be allowed to 13 inhibit or control policy decisions of government agencies, 14 even if some decisions could be made to seem gravely 15 erroneous in retrospect. 16 Airlines, 467 U.S. 797, 814 (1984) (Federal Tort Claims Act 17 discretionary function exception is designed to prevent 18 judicial second-guessing of legislative and 19 administrative decisions grounded in social, economic, and 20 political policy through the medium of an action in tort ). 21 Can the goals of a government policy possibly outweigh Cf. United States v. Variq 22 a known risk of loss of life or bodily harm? 23 other federal agencies often must decide whether to regulate -29- The EPA and 1 particular conduct by taking into account whether the risk 2 to the potentially affected population will be acceptable. 3 Such decisions require an exercise of the conscience, but 4 such decisions cannot be deemed egregious, conscience- 5 shocking, and arbitrary in the constitutional sense, 6 Collins, 503 U.S. at 129, merely because they contemplate 7 some likelihood of bodily harm. 8 Moreover, mass displacement, civil disorder and 9 economic chaos in an urban area also can result in bodily 10 harm and loss of life. The relative magnitude of such risks 11 cannot be reliably computed, and they are in any event 12 incommensurable. 13 the defendants made the wrong decision by disclosing 14 information they knew to be inaccurate, and that this had 15 tragic consequences for the plaintiffs, we conclude that a 16 poor choice made by an executive official between or among 17 the harms risked by the available options is not conscience- 18 shocking merely because for some persons it resulted in 19 grave consequences that a correct decision could have 20 avoided. 21 the individual against arbitrary action of government, 22 which in the substantive manifestation of due process is 23 exhibited by the exercise of power without any reasonable Accepting as we must the allegation that [T]he touchstone of due process is protection of -30- 1 justification in the service of a legitimate governmental 2 objective. 3 omitted). 4 matter what a government official does, the allocation of 5 risk may be a burden on the conscience of the one who must 6 make such decisions, but does not shock the contemporary 7 conscience. 8 9 Lewis, 523 U.S. at 845-46 (internal quotation When great harm is likely to befall someone no These principles apply notwithstanding the great service rendered by those who repaired New York, the heroism 10 of those who entered the site when it was unstable and on 11 fire, and the serious health consequences that are plausibly 12 alleged in the complaint. 13 14 15 * * * Because the conduct at issue here does not shock the 16 conscience, there was no constitutional violation. 17 therefore need not decide whether the conduct alleged 18 violated law that was then clearly established, or whether 19 any special factors counsel hesitation in the recognition of 20 a Bivens action against the defendants. 21 reasons, we affirm. -31- We For the foregoing

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