Benzman v. Whitman

• Decision Date: 22 April 2008
• Docket Number: Docket No. 06-1454-cv (XAP).,Docket No. 06-1346-cv (CON).,Docket No. 06-1166-cv (L).
• Citation: 523 F.3d 119
• Parties: Gail BENZMAN, Diane Lapson, Jim Gilroy, Anamae Gilroy, Joalison Polett, Robert Gulack, Janice Fried, John Calder, Jenna Orkin, Kelly Colangelo, George Dinos, Brian Edwards, and Sara Manzano-Diaz, on their behalf and on behalf of all other persons similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. Christine Todd WHITMAN, Stephen L. Johnson,<SMALL><SUP>*</SUP></SMALL> and United States Environmental Protection Agency, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

523 F.3d 119

Gail BENZMAN, Diane Lapson, Jim Gilroy, Anamae Gilroy, Joalison Polett, Robert Gulack, Janice Fried, John Calder, Jenna Orkin, Kelly Colangelo, George Dinos, Brian Edwards, and Sara Manzano-Diaz, on their behalf and on behalf of all other persons similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. Christine Todd WHITMAN, Stephen L. Johnson,^* and United States Environmental Protection Agency, Defendants-Appellants-Cross-Appellees.

Docket No. 06-1166-cv (L).

Docket No. 06-1346-cv (CON).

Docket No. 06-1454-cv (XAP).

United States Court of Appeals, Second Circuit.

Heard: December 10, 2007.

Decided: April 22, 2008.

Alisa B. Klein, Civil Division, Ryan D. Nelson, Deputy Asst. Atty. General, U.S. Dept. of Justice, Washington, D.C. (Peter D. Keisler, Asst. Atty. General, Jeffrey S. Bucholz, Principal Deputy Asst. Atty. General, Mark B. Stern, Civil Div., Sue Ellen Wooldridge, Asst. Atty. General, James C. Kilbourne, Robert H. Oakley, Environmental and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., on the brief), for Defendants-Appellants-Cross-Appellees.

Sherrie R. Savett, Philadelphia, PA (Jeanne A. Markey, Michael T. Fantini, Casey M. Preston, Berger & Montague, P.C., Philadelphia, PA; Joel R. Kupferman, New York Environmental Law & Justice Project, New York, N.Y.; Bert A. Blitz, Shandell, Blitz, Blitz & Bookson, L.L.P., New York, N.Y., on the brief), for PlaintiffsAppellees-Cross-Appellants.

Before: NEWMAN and CABRANES, Circuit Judges.^**

JON O. NEWMAN, Circuit Judge.

This interlocutory appeal and cross-appeal present issues concerning individual and governmental agency liability, in the aftermath of the 9/11 attack, for alleged breach of duties owed to a putative plaintiff class of people who reside, attend school, or work in lower Manhattan or Brooklyn. The principal claim is that Government officials misled the plaintiff class members by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices. The Defendants-Appellants are Christine Todd Whitman, the former Administrator of the Environmental Protection Agency ("EPA"), and Stephen L. Johnson, the current Administrator of EPA, and EPA (the latter two, collectively, "the EPA Defendants"). They appeal from the February 2, 2006, opinion and order of the District Court for the Southern District of New York (Deborah Batts, District Judge) ruling on the Defendants' motion to dismiss.

In No. 06-1166, Whitman appeals from the denial of her motion to dismiss the Plaintiffs' Bivens claim, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), on the ground, among others, of qualified immunity. In No. 06-1346, the EPA Defendants appeal, pursuant to 28 U.S.C. § 1292(b), from the denial of their motion to dismiss the Plaintiffs' claim under sections 706(1) and 706(2) of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"). In No. 06-1454, the Plaintiffs cross-appeal, also pursuant to section 1292(b), from the dismissal of the non-constitutional aspects of their APA claim and the dismissal of their claim against the EPA Defendants for mandamus and their claim against EPA under the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 42 U.S.C. § 9659(a).

We reverse in Nos. 06-1166 and 06-1346 and affirm in No. 06-1454.

Background

The Complaint. Each of the Complaint's four counts relates to the Defendants' response to the presence of allegedly dangerous dust in the air above lower Manhattan and Brooklyn resulting from the collapse of the World Trade Center ("WTC") towers on September 11, 2001. The allegations focus on the effect of that dust ("WTC dust") on air quality indoors— in apartments, offices, and schools.

Count One (the "Bivens count") is a Bivens claim seeking damages from Whitman in her individual capacity. It alleges that in the weeks and months after 9/11 Whitman and EPA officials acting at her direction made statements regarding air quality in Lower Manhattan and Brooklyn that failed to report health risks associated with WTC dust or misrepresented the nature of those risks, and caused EPA to issue press releases containing those false and misleading statements, thereby violating the Plaintiffs' Fifth Amendment substantive due process right to be free from government-created health risks. The Bivens count does not allege that Whitman intended to cause harm, but it does allege that she acted with deliberate indifference because she knew that the content of her and EPA's reassuring statements and press releases was false.

Count Two (the "APA count") is a claim under the APA against EPA. It alleges that EPA failed to fulfill various of its regulatory obligations in connection with air quality and interior building cleanup in the WTC area following 9/11. Like the Bivens count against Whitman, the APA count alleges that EPA's acts and omissions in the aftermath of 9/11 violated the Plaintiffs' substantive rights under the Due Process Clause of the Fifth Amendment. The APA count seeks, among other things, a finding of liability as to EPA and prospective injunctive relief in the form of an order compelling EPA to perform tests for hazardous substances in buildings housing offices, schools, and residences in lower Manhattan and Brooklyn; "implement a complete professional clean-up of all such buildings" that are determined to contain hazardous substances; and "implement a program for medical monitoring services" to detect, diagnose, study, and prevent any conditions caused by exposure to WTC dust.

Count Three is a mandamus claim against EPA, seeking an order compelling it to perform what the Plaintiffs allege are mandatory duties as to the removal of WTC dust from building interiors.

Count Four is a claim against EPA brought pursuant to subsection (1) of CERCLA's citizen-suit provision, 42 U.S.C. § 9659(a). Count Four alleges that EPA's handling of the WTC dust phenomenon in the aftermath of 9/11 violated National Contingency Plan ("NCP") regulations promulgated under CERCLA.

The District Court's decision. Whitman sought dismissal of the Bivens count on the ground that she was entitled to qualified immunity because her alleged conduct did not violate a constitutional right. Judge Batts denied her motion. See Benzman v. Whitman, No. 04 Civ. 1888, 2006 WL 250527, at *20 (S.D.N.Y. Feb. 2, 2006). Judge Batts held that the Bivens count stated a violation of a clearly established "substantive due process right to be free from official government policies that increase the risk of bodily harm[.]" Id. at *18; see id. at *19-*20.

EPA sought dismissal of the APA count under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the ground that judicial review of the underlying agency decisions was unavailable for two reasons. First, EPA argued that the discretionary function provision of the Stafford Act, 42 U.S.C. § 5148, precluded judicial review because the agency decisions on which the APA count is based were discretionary. See id. at *22. Second, EPA argued that the agency decisions forming the basis of the APA count did not constitute the sort of agency actions for which judicial review is available under the APA. See id. at *20. Judge Batts agreed with the EPA that the underlying agency decisions were discretionary because the relevant NCP regulations established non-mandatory duties; Judge Batts therefore dismissed, pursuant to the Stafford Act, those aspects of the APA count that were based on alleged violations of NCP regulations. See id. at *24. However, Judge Batts also ruled that the Stafford Act did not preclude judicial review of the entirety of the APA count because that count includes a constitutional claim against EPA, i.e., the same substantive due process claim that forms the basis of the Bivens count against Whitman. See id. at *25. Judge Batts also concluded that the agency action identified by the Plaintiffs in response to EPA's motion to dismiss—a voluntary cleanup program undertaken by EPA in the WTC area and completed before this litigation—constituted final "agency action" within the meaning of the APA, rendering the challenged agency decisions culminating in that action subject to judicial review. See id. at *26-*27.

Judge Batts dismissed the mandamus count on the ground that the APA count, which had been sustained in part, provided the Plaintiffs with an adequate remedy for the same injuries implicated in the mandamus count. See id. at *27.

EPA sought dismissal of the CERCLA count on the ground that, because the count challenged EPA's performance of its regulatory duties, this count could not be brought under the subsection of CERCLA's citizen-suit provision that the Plaintiffs had invoked in the Complaint — subsection (1) of 42 U.S.C. § 9659(a). See id. at *28. Judge Batts agreed with EPA and dismissed the CERCLA count, observing that the Plaintiffs had alleged a failure by EPA to perform purportedly non-discretionary acts and duties under CERCLA; the appropriate claim, if any, would therefore have been against the Administrator of EPA pursuant to subsection (2). See id. at *29-*30.

Whitman appeals, under the collateral order doctrine, the denial of her motion to dismiss the Bivens count based on the defense of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). EPA's appeal and the Plaintiffs' cross-appeal are brought pursuant to 28 U.S.C. § 1292(b).

Discussion

I. The Bivens Count against Whitman

Standard of Review. Whitman's appeal reasserts her claim to qualified immunity. Although qualified immunity is an affirmative defense, available to federal officials sued under Bivens, see Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), it may be asserted in a motion to dismiss under Rule 12...