485 F.3d 73 (2nd Cir. 2007), 06-1077, Lombardi v. Whitman

Docket Nº:06-1077-cv.
Citation:485 F.3d 73
Party Name: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, Wi
Case Date:April 19, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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485 F.3d 73 (2nd Cir. 2007)

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,


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, 1-10, in their individual capacities, Defendants-Appellees.

No. 06-1077-cv.

United States Court of Appeals, Second Circuit.

April 19, 2007

Argued: Nov. 27, 2006.

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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.

Before JACOBS, Chief Judge, SACK, and RAGGI, Circuit Judges.

JACOBS, Chief Judge.

The five plaintiffs performed search, rescue and clean-up work at the World Trade Center site (the "site") in the aftermath of the September 2001 terrorist attacks. They allege that the defendants, all of them federal officials, issued reassuring--and knowingly false--announcements about the air quality in lower Manhattan; that the plaintiffs therefore believed it was safe to work at the site without needed respiratory protection, and did; and that the defendants' conduct violated plaintiffs' right to substantive due process. This is an appeal from a February 6, 2006 order entered in the United States District Court for the Southern District of New York (Hellerstein, J.), which dismissed the complaint. We affirm because the complaint's allegations do not shock the conscience even if the defendants acted with deliberate indifference: when agency officials decide how to reconcile competing governmental obligations in the face of

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disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.


The facts are drawn from the complaint, the documents referenced therein, and common knowledge of the events of September 11, 2001.

The collapse of the World Trade Center towers on that day generated a cloud of debris that coated the surrounding buildings and streets of Lower Manhattan with concrete dust, asbestos, lead, and other building materials. Fires within the wreckage burned for months, emitting various metals and particulate matter in addition to such potentially harmful substances as dioxin, polychlorinated biphenyls (PCBs), volatile organic compounds (VOCs), and polycyclic aromatic hydrocarbons (PAHs).

The plaintiffs arrived at the site on September 11 or in the days soon after: John Lombardi is a New York Army National Guard medic; Roberto Ramos, Jr. is an Emergency Services Officer in the New York City Corrections Department; Hasan A. Muhammad is an Emergency Services Captain in the New York City Corrections Department; Rafael A. Garcia is a Deputy U.S. Marshal; and Thomas E. Carlstrom is a paramedic in the New York City Fire Department. They participated in search, rescue, and clean-up work at the site, with little or no equipment to protect their lungs. They were not told by their employers or any government official about the health risks posed by the dangerous contaminants in the air, and they thought they could work at the site with little or no respiratory protection based on the information available to them, including statements of government officials indicating that Lower Manhattan's air quality presented no significant health risks to the public.

The plaintiffs brought suit on November 23, 2004, in the Southern District of New York, on their own behalf and on behalf of a purported class including all those who worked at or in the immediate vicinity of the site during the period September 11, 2001, to October 31, 2001, who did so without sufficient respiratory equipment in reliance on information supplied by government officials, and who as a result suffer or reasonably fear suffering illness or injury from their exposure to asbestos or other harmful substances.

The defendants, sued in their individual capacities, are current or former officials of the Environmental Protection Agency ("EPA"), the White House Council on Environmental Quality ("CEQ"), and the Occupational Safety and Health Administration ("OSHA"). The claims against them are based on statements in EPA press releases issued in the wake of the disaster, which (according to the complaint) were made (1) to speed work at the site, (2) with the knowledge they were false or misleading, and (3) with deliberate indifference to the health risks the workers would incur by relying on them.

A. The Allegedly Misleading Statements

The complaint invokes a report issued by the EPA Office of the Inspector General, which critiques the EPA's response to the September 11 disaster. See EPA Office of the Inspector General, "EPA's Response to the World Trade Center Collapse: Challenges, Successes, and Areas for Improvement," Report No. 2003-P-00012 (Aug. 21, 2003), available at http://www.epa. govoigreports2003WTC_report_20030821.pdf

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(last visited April 17, 2007) (the "OIG Report"). 1

A September 13, 2001, EPA press release, which is cited in the OIG Report, [i] indicated that initial environmental tests done at the site after the terrorist attacks were "very reassuring about potential exposure of rescue crews and the public to environmental contaminants"; [ii] concluded that the results of "[a]dditional sampling of both ambient air quality and dust particles ... in lower Manhattan ... were uniformly acceptable"; and [iii] expressed the EPA's intent to work with other agencies and rescue workers to provide respiratory equipment and to make sure they observed appropriate safety precautions--assistance that the plaintiffs allege (to their knowledge) never materialized. OIG Report at 87-88.

A September 16 EPA press release reported additional good news:

[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 testing of the air and drinking water showed that "these vital resources are safe" and that the "vast majority" of air samples taken near the site measured harmful substances at below maximum acceptable levels. According to the release, the highest asbestos levels were close to the site itself, where rescue and cleanup workers were supposedly being supplied with adequate equipment. The same release quoted defendant Whitman:

"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 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.

Id. at 77. In fact, according to the EPA Inspector General, 25 percent of the bulk dust samples taken up to that point recorded asbestos at levels representing a significant health risk. See id. at 14.

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Press releases issued on September 21, October 3, and October 30--as well as a statement made by an EPA spokesperson to the New York Daily News on or about October 11--all reiterated the message that testing and sampling done near the site indicated no significant health risk to the public. See Compl. pp 49-51.

The OIG Report suggests that: [i] the EPA's press releases conveyed the dominant message that there was no risk to public health without necessary qualifying statements about, for instance, the initial lack of monitoring data for many harmful substances besides asbestos, see OIG Report at 9-11; [ii] the EPA did not disclose publicly that it lacked adequate benchmarks for measuring the long term health effects of each substance or the combination of them in the unprecedented conditions created by the disaster, see id. at 9-13; [iii] the EPA's reassuring statements were interpreted by some to apply to site workers as well as the public, see id. at 43-44; [iv] the EPA and other agencies sent mixed messages to workers about the need for respirators, see id. at 43-45; and [v] the EPA's decisions as to what information to release were heavily influenced by suggestions from the CEQ, see id. at 14-17. See Compl. pp 52-57.

As to the last point, a September 12 internal EPA email directed that all statements to the media were to be cleared by the National Security Council before release, and the OIG Report indicates that an official in the CEQ was the conduit through which this clearance was granted, OIG Report at 15; a comparison of draft press releases with their final counterparts reveals that the CEQ suggested edits that removed cautionary wording (for instance, in the September 13 press release, a portion of the title was...

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