Federal Judiciary

Second Lets Whitman Off the Hook for Post-9/11 Liability

By Robert Loblaw

Benzman v. Whitman, 06-1166 (2^nd Cir., April 22, 2008)

In big Bivens news, a panel of the Second Circuit has rejected efforts to hold a government official personally liable for false reassurances about lower Manhattan?s air quality in the days after the September 11 attacks. The plaintiffs live, work, or attend school in lower Manhattan or just across the bridge in Brooklyn. They sued the Environmental Protection Agency and its Secretary, Christine Todd Whitman, for failing to disclose the dangerous environmental fallout from the World Trade Center collapse.

The key issue for this appeal is whether, accepting the plaintiffs? allegations as true, Whitman can be held personally liable for violating the plaintiffs? due process right to be free from government-created health dangers. The district court concluded that the plaintiffs had stated a novel yet viable constitutional claim, but while this appeal was pending, the Second Circuit rejected similar claims from Ground Zero workers. (My coverage here.) The plaintiffs tried to distinguish this unfavorable precedent on the ground that the government needed emergency workers to go to Ground Zero immediately, whereas there was no comparable need to have residents and workers return to the area right away. But the Second rejects their efforts, explaining that the same policy considerations motivated Whitman?s actions.

The plaintiffs also argued that Whitman?s reassurances were worse than deliberate indifference, the constitutional standard addressed in the prior case, and instead amounted to intentional lies. The plaintiffs pointed to the fact that others within the EPA knew that the air around Ground Zero had dangerous levels of toxins and carcinogens. But the Second holds that this information is not enough to meet the high pleading requirements for alleging that Whitman intentionally made false statements. The Court concludes that Whitman may be accused of incompetence, but her failure to stay on top of all the information possessed by 17,000 EPA employees is certainly not a constitutional violation.

The Court goes on to affirm the district court?s dismissal of the plaintiffs? other claims under the Administrative Procedures Act. It concludes,

We understand the Plaintiffs? concern, supported in substantial part by the report of the EPA?s own Inspector General, that the agency?s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America?s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.

Full post as published by Decision of the Day on April 22, 2008 (boomark / email).