Lombardi v. Whitman

06-1077
Lombardi v. Whitman
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2006 5
6
(Argued: November 27, 2006 Decided: April 19, 2007) 7
8
Docket No. 06-1077-cv 9
10
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12
JOHN LOMBARDI, ROBERTO RAMOS JR., HASAN 13
A. MUHAMMAD, RAFAEL A. GARCIA and 14
THOMAS E. CARLSTROM, individually and 15
as representatives of a class of 16
individuals similarly situated, 17
18
Plaintiffs-Appellants, 19
20
- v.- 21
22
CHRISTINE T. WHITMAN, in her individual 23
capacity, JAMES L. CONNAUGHTON, in his 24
individual capacity, EILEEN McGINNIS, 25
in her individual capacity, WILLIAM J. 26
MUSZYNSKI, in his individual capacity, 27
JOHN L. HENSHAW, in his individual 28
capacity, SAMUEL THERNSTROM, in his 29
individual capacity, and JOHN DOES, 1- 30
10, in their individual capacities, 31
32
Defendants-Appellees. 33
34
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36
37
Before: JACOBS, Chief Judge, SACK, and RAGGI, Circuit 38
Judges. 39
40
Appeal from a judgment of the United States District 41
Court for the Southern District of New York (Hellerstein, 42

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J.) entered on February 6, 2006, granting the defendants’ 1
motion to dismiss for failure to state a claim. 2
Affirmed. 3
STEPHEN J. RIEGEL, Weitz & 4
Luxemberg, P.C., New York, NY, for 5
Plaintiffs-Appellants. 6
7
MARK B. STERN, Appellate Staff, 8
Civil Division, United States 9
Department of Justice (Peter D. 10
Keisler, Assistant Attorney General 11
of the United States, Alisa Klein, 12
Scott A. Hershovitz, on the brief), 13
Washington, DC, for 14
Defendants-Appellees. 15
16
DENNIS JACOBS, Chief Judge: 17
18
The five plaintiffs performed search, rescue and clean- 19
up work at the World Trade Center site (the “site”) in the 20
aftermath of the September 2001 terrorist attacks. They 21
allege that the defendants, all of them federal officials, 22
issued reassuring--and knowingly false--announcements about 23
the air quality in lower Manhattan; that the plaintiffs 24
therefore believed it was safe to work at the site without 25
needed respiratory protection, and did; and that the 26
defendants’ conduct violated plaintiffs’ right to 27
substantive due process. This is an appeal from a February 28
6, 2006 order entered in the United States District Court 29
for the Southern District of New York (Hellerstein, J.), 30

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which dismissed the complaint. We affirm because the 1
complaint’s allegations do not shock the conscience even if 2
the defendants acted with deliberate indifference: when 3
agency officials decide how to reconcile competing 4
governmental obligations in the face of disaster, only an 5
intent to cause harm arbitrarily can shock the conscience in 6
a way that justifies constitutional liability. 7
8
BACKGROUND 9
The facts are drawn from the complaint, the documents 10
referenced therein, and common knowledge of the events of 11
September 11, 2001. 12
The collapse of the World Trade Center towers on that 13
day generated a cloud of debris that coated the surrounding 14
buildings and streets of Lower Manhattan with concrete dust, 15
asbestos, lead, and other building materials. Fires within 16
the wreckage burned for months, emitting various metals and 17
particulate matter in addition to such potentially harmful 18
substances as dioxin, polychlorinated biphenyls (PCBs), 19
volatile organic compounds (VOCs), and polycyclic aromatic 20
hydrocarbons (PAHs). 21
The plaintiffs arrived at the site on September 11 or 22
in the days soon after: John Lombardi is a New York Army 23

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National Guard medic; Roberto Ramos, Jr. is an Emergency 1
Services Officer in the New York City Corrections 2
Department; Hasan A. Muhammad is an Emergency Services 3
Captain in the New York City Corrections Department; Rafael 4
A. Garcia is a Deputy U.S. Marshal; and Thomas E. Carlstrom 5
is a paramedic in the New York City Fire Department. They 6
participated in search, rescue, and clean-up work at the 7
site, with little or no equipment to protect their lungs. 8
They were not told by their employers or any government 9
official about the health risks posed by the dangerous 10
contaminants in the air, and they thought they could work at 11
the site with little or no respiratory protection based on 12
the information available to them, including statements of 13
government officials indicating that Lower Manhattan’s air 14
quality presented no significant health risks to the public. 15
The plaintiffs brought suit on November 23, 2004, in 16
the Southern District of New York, on their own behalf and 17
on behalf of a purported class including all those who 18
worked at or in the immediate vicinity of the site during 19
the period September 11, 2001, to October 31, 2001, who did 20
so without sufficient respiratory equipment in reliance on 21
information supplied by government officials, and who as a 22
result suffer or reasonably fear suffering illness or injury 23

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from their exposure to asbestos or other harmful substances. 1
The defendants, sued in their individual capacities, 2
are current or former officials of the Environmental 3
Protection Agency (“EPA”), the White House Council on 4
Environmental Quality (“CEQ”), and the Occupational Safety 5
and Health Administration (“OSHA”). The claims against them 6
are based on statements in EPA press releases issued in the 7
wake of the disaster, which (according to the complaint) 8
were made (1) to speed work at the site, (2) with the 9
knowledge they were false or misleading, and (3) with 10
deliberate indifference to the health risks the workers 11
would incur by relying on them. 12
13
A. The Allegedly Misleading Statements 14
The complaint invokes a report issued by the EPA Office 15
of the Inspector General, which critiques the EPA’s response 16
to the September 11 disaster. See EPA Office of the 17
Inspector General, “EPA’s Response to the World Trade Center 18
Collapse: Challenges, Successes, and Areas for Improvement,” 19
Report No. 2003-P-00012 (Aug. 21, 2003), available at 20
http://www.epa.gov/oig/reports/2003/WTC_report_20030821.pdf 21

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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-
(last visited April 17, 2007) (the “OIG Report”).1
1
A September 13, 2001, EPA press release, which is cited 2
in the OIG Report, [i] indicated that initial environmental 3
tests done at the site after the terrorist attacks were 4
“very reassuring about potential exposure of rescue crews 5
and the public to environmental contaminants”; [ii] 6
concluded that the results of “[a]dditional sampling of both 7
ambient air quality and dust particles . . . in lower 8
Manhattan . . . were uniformly acceptable”; and [iii] 9
expressed the EPA’s intent to work with other agencies and 10
rescue workers to provide respiratory equipment and to make 11
sure they observed appropriate safety precautions-- 12
assistance that the plaintiffs allege (to their knowledge) 13
never materialized. OIG Report at 87-88. 14
A September 16 EPA press release reported additional 15
good news: 16

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[N]ew samples confirm previous reports that 1
ambient air quality meets OSHA standards and 2
consequently is not a cause for public concern. 3
New OSHA data also indicates that indoor air 4
quality in downtown buildings will meet standards. 5
EPA has found variable asbestos levels in bulk 6
debris and dust on the ground, but EPA continues 7
to believe that there is no significant health 8
risk to the general public in the coming days. 9
Appropriate steps are being taken to clean up this 10
dust and debris. “Our tests show that it is safe 11
for New Yorkers to go back to work in New York’s 12
financial district,” said John L. Henshaw, 13
Assistant Secretary of Labor for OSHA. “Keeping 14
the streets clean and being careful not to track 15
dust into buildings will help protect workers from 16
remaining debris.” 17
18
Id. at 85. 19
A September 18 press release reported that EPA’s 20
testing of the air and drinking water showed that “these 21
vital resources are safe” and that the “vast majority” of 22
air samples taken near the site measured harmful substances 23
at below maximum acceptable levels. According to the 24
release, the highest asbestos levels were close to the site 25
itself, where rescue and cleanup workers were supposedly 26
being supplied with adequate equipment. The same release 27
quoted defendant Whitman: 28
“We are very encouraged that the results from our 29
monitoring of air quality and drinking water 30
conditions in both New York and near the Pentagon 31
show that the public in these areas is not being 32
exposed to excessive levels of asbestos or other 33
harmful substances,” Whitman said. “Given the 34
scope of the tragedy from last week, I am glad to 35

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-8-
reassure the people of New York and Washington, 1
D.C. that their air is safe to breath [sic] and 2
their water is safe to drink,” she added. 3
4
Id. at 77. In fact, according to the EPA Inspector General, 5
25 percent of the bulk dust samples taken up to that point 6
recorded asbestos at levels representing a significant 7
health risk. See id. at 14. 8
Press releases issued on September 21, October 3, and 9
October 30--as well as a statement made by an EPA 10
spokesperson to the New York Daily News on or about October 11
11--all reiterated the message that testing and sampling 12
done near the site indicated no significant health risk to 13
the public. See Compl. ¶¶ 49-51. 14
The OIG Report suggests that: [i] the EPA’s press 15
releases conveyed the dominant message that there was no 16
risk to public health without necessary qualifying 17
statements about, for instance, the initial lack of 18
monitoring data for many harmful substances besides 19
asbestos, see OIG Report at 9-11; [ii] the EPA did not 20
disclose publicly that it lacked adequate benchmarks for 21
measuring the long term health effects of each substance or 22
the combination of them in the unprecedented conditions 23
created by the disaster, see id. at 9-13; [iii] the EPA’s 24
reassuring statements were interpreted by some to apply to 25

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site workers as well as the public, see id. at 43-44; [iv] 1
the EPA and other agencies sent mixed messages to workers 2
about the need for respirators, see id. at 43-45; and [v] 3
the EPA’s decisions as to what information to release were 4
heavily influenced by suggestions from the CEQ, see id. at 5
14-17. See Compl. ¶¶ 52-57. 6
As to the last point, a September 12 internal EPA email 7
directed that all statements to the media were to be cleared 8
by the National Security Council before release, and the OIG 9
Report indicates that an official in the CEQ was the conduit 10
through which this clearance was granted, OIG Report at 15; 11
a comparison of draft press releases with their final 12
counterparts reveals that the CEQ suggested edits that 13
removed cautionary wording (for instance, in the September 14
13 press release, a portion of the title was changed from 15
“[EPA] Testing Terrorized Sites for Environmental Hazards” 16
to “[EPA] Reassures Public About Environmental Hazards”), 17
id. at 17; and in response to the CEQ’s suggestions about 18
the September 16 press release, the EPA [i] removed a 19
reference to recent test samples that recorded higher 20
asbestos levels than those in previous samples and [ii] 21
added a quote from John L. Henshaw of OSHA assuring that it 22
was safe to go to work in Lower Manhattan, id. at 16. 23

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2 The district court dismissed without certifying the
purported class.
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The press releases were not without cautionary 1
language: they referred to the EPA’s plan for continued 2
monitoring efforts; and early press releases warned of the 3
need to take certain cautionary measures--for instance, to 4
change air conditioning filters, sweep up debris, and wet 5
down buildings covered in debris to avoid its becoming 6
airborne. 7
8
B. The District Court Proceedings 9
Defendants moved to dismiss the complaint on March 21, 10
2005, and the district court granted the motion from the 11
bench on February 2, 2006,2 holding that the defendants had 12
not alleged the violation of a constitutional right and 13
holding alternatively that the defendants in any event 14
enjoyed qualified immunity because they had not violated a 15
right that was clearly established at the time of their 16
conduct. As to two plaintiffs, dismissal was granted on a 17
further alternative ground that “special factors” counseled 18
hesitation in the creation of a cause of action under Bivens 19
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 20
U.S. 388 (1971). Specifically: (1) Lombardi’s claim was 21

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dismissible because military personnel may not use a § 1983 1
or Bivens action to obtain redress for injuries suffered 2
incident to military service, see United States v. Stanley, 3
483 U.S. 669, 681 (1987) (Bivens action by U.S. military 4
personnel); Jones v. N.Y. State Div. of Military & Naval 5
Affairs, 166 F.3d 45, 50-52 (2d Cir. 1999) (§ 1983 action by 6
state National Guardsman); and (2) Garcia’s claim was 7
dismissible because he already had the remedy afforded to 8
U.S. Marshals under the Federal Employees’ Compensation Act, 9
see generally Schweiker v. Chilicky, 487 U.S. 412, 424-29 10
(1988); Hudson Valley Black Press v. IRS, 409 F.3d 106, 110- 11
14 (2d Cir. 2005). 12
In assessing the due process claim, the district court 13
emphasized that the “administration had to deal with a 14
situation of concern, of fear [for] safety, of a need to get 15
on with [the] work of the community, to avoid an economic 16
catastrophe as well as a physical catastrophe to the City of 17
New York, and what was said was said.” Mot. to Dismiss Hr’g 18
Tr. 49, Lombardi v. Whitman, No. 04-CV-9272 (S.D.N.Y. Feb. 19
2, 2006). 20
21
DISCUSSION 22
We review a dismissal for qualified immunity “de novo, 23

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accepting as true the material facts alleged in the 1
complaint and drawing all reasonable inferences in 2
plaintiffs’ favor.” Johnson v. Newburgh Enlarged School 3
Dist., 239 F.3d 246, 250 (2d Cir. 2001). 4
The Constitution itself does not explicitly provide a 5
damages remedy to redress violations by individual federal 6
officials. And sovereign immunity bars suit for damages 7
against the federal government itself unless it has waived 8
that immunity. But where an individual “has been deprived 9
of a constitutional right by a federal agent acting under 10
color of federal authority,” the individual may bring a so- 11
called Bivens action for damages against that federal agent 12
in an individual capacity, Thomas v. Ashcroft, 470 F.3d 491, 13
496 (2d Cir. 2006), provided that Congress has not forbidden 14
such an action and that the situation presents “no special 15
factors counselling hesitation in the absence of affirmative 16
action by Congress,” Hudson Valley Black Press, 409 F.3d at 17
108 (quoting Bivens, 403 U.S. at 396). 18
A federal executive official is entitled to invoke 19
qualified immunity as a defense against a Bivens action. 20
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 21
Qualified immunity analysis in Bivens suits is the same two- 22
step analysis applied in § 1983 suits against state actors. 23

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See Wilson v. Layne, 526 U.S. 603, 608 (1999). First, 1
“[t]aken in the light most favorable to the party asserting 2
the injury, do the facts alleged show the officer’s conduct 3
violated a constitutional right?” Saucier v. Katz, 533 U.S. 4
194, 201 (2001). Second, was the right so clearly 5
established that a reasonable government official would have 6
known that her conduct violated a constitutional right “in 7
light of the specific context of the case, [and] not as a 8
broad general proposition[?]” Id. 9
The threshold inquiry is therefore whether the 10
complaint alleges the violation of a constitutional right. 11
12
A. Substantive Due Process 13
Under the Due Process Clause of the Fifth Amendment of 14
the Constitution, “[n]o person shall . . . be deprived of 15
life, liberty, or property, without due process of law.” 16
U.S. Const. amend. V. This clause has been interpreted as a 17
“protection of the individual against arbitrary action of 18
government,” County of Sacramento v. Lewis, 523 U.S. 833, 19
845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 20
(1974)), which has both a procedural component protecting 21
against the “denial of fundamental procedural fairness,” id. 22
at 845-46, as well as a substantive component guarding the 23

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individual against “the exercise of power without any 1
reasonable justification in the service of a legitimate 2
governmental objective,” id. at 846. The substantive 3
component of due process encompasses, among other things, an 4
individual’s right to bodily integrity free from 5
unjustifiable governmental interference. See Washington v. 6
Glucksberg, 521 U.S. 702, 720 (1997) (citing Rochin v. 7
California, 342 U.S. 165 (1952)). The Due Process Clause, 8
however, “does not transform every tort committed by a state 9
actor into a constitutional violation.” DeShaney v. 10
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 202 11
(1989). Government action resulting in bodily harm is not a 12
substantive due process violation unless “the government 13
action was ‘so egregious, so outrageous, that it may fairly 14
be said to shock the contemporary conscience.’” Pena v. 15
DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Lewis, 16
523 U.S. at 847 n.8). 17
18
B. Misrepresentation and “State Created Danger” 19
Only an affirmative act can amount to a violation of 20
substantive due process, because the Due Process Clause “is 21
phrased as a limitation on the State’s power to act, not as 22
a guarantee of certain minimal levels of safety and 23

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security.” DeShaney, 489 U.S. at 195. It is not enough to 1
allege that a government actor failed to protect an 2
individual from a known danger of bodily harm or failed to 3
warn the individual of that danger. See Collins v. City of 4
Harker Heights, 503 U.S. 115, 125-29 (1992) (no due process 5
violation where plaintiff alleged the city failed to 6
properly train or warn its employees of known dangers that 7
resulted in sanitation worker’s asphyxiation). So, to the 8
extent the plaintiffs here allege that the defendants had an 9
affirmative duty to prevent them from suffering exposure to 10
environmental contaminants, their claims must fail. They 11
cannot rely on the EPA’s failure to instruct workers to wear 12
particular equipment, its failure to explain the exact 13
limitations of its knowledge of the health effects of the 14
airborne substances that were present, or its failure to 15
explain the limitations of its testing technologies. 16
But the complaint goes further; it alleges that 17
defendants’ affirmative assurances that the air in Lower 18
Manhattan was safe to breathe created a false sense of 19
security that induced site workers to forgo protective 20
measures, thereby creating a danger where otherwise one 21
would not have existed. “[I]n exceptional circumstances a 22
governmental entity may have a constitutional obligation to 23

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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.
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provide . . . protection, either because of a special 1
relationship with an individual, or because the governmental 2
entity itself has created or increased the danger to the 3
individual.” Ying Jing Gan v. City of New York, 996 F.2d 4
522, 533 (2d Cir. 1993) (citing DeShaney, 489 U.S. at 198, 5
201). The plaintiffs allege no “special relationship” 6
between them and federal officials.3 They plead that their 7
reliance on the government’s misrepresentations induced them 8
to forgo available safeguards, and thus characterize the 9
harm as a state created danger. 10
Where a government official takes an affirmative act 11
that creates an opportunity for a third party to harm a 12
victim (or increases the risk of such harm), the government 13
official can potentially be liable for damages. See, e.g., 14
Pena, 432 F.3d at 108; Hemphill v. Schott, 141 F.3d 412, 419 15

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(2d Cir. 1998); Dwares v. City of New York, 985 F.2d 94, 98- 1
99 (2d Cir. 1993). However, the danger alleged in this case 2
is dissimilar from the state created dangers recognized in 3
our precedents; in each of those cases, a third party’s 4
criminal behavior harmed the plaintiff after a government 5
actor--always a law enforcement officer--enhanced or created 6
the opportunity for the criminal act through some 7
interaction or relationship with the wrongdoer. See Pena, 8
432 F.3d at 109 (opining that “‘special relationship’ 9
liability arises from the relationship between the state and 10
a particular victim, whereas ‘state created danger’ 11
liability arises from the relationship between the state and 12
the private assailant.”). In Dwares, the police allegedly 13
gave the green light for skinheads to assault a group of 14
flag-burners; in Hemphill, the police allegedly gave back a 15
robbery victim’s gun and took him along on a chase after the 16
robber, who was shot by the robbery victim; in Pena, the 17
police allegedly encouraged drinking and driving by a fellow 18
officer who hit several pedestrians while under the 19
influence. 20
In this case, the defendants acted only after the 21
terrorists’ criminal acts were complete; i.e., plaintiffs’ 22
claims are based neither on any alleged encouragement of the 23

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terrorists nor on any relationship between defendants and 1
the terrorists. Instead, plaintiffs appear to cast 2
environmental conditions as the wrongdoer. They submit that 3
the defendants, with knowledge of the serious health risks 4
posed by these conditions, falsely represented to the public 5
that it was safe from any such risks. 6
The closest analogy in other circuits’ substantive due 7
process case law--and it is not particularly close--is to 8
cases in which statements by law enforcement officials give 9
an individual a false sense of security as to the necessity 10
of self-help. See, e.g., Kennedy v. City of Ridgefield, 439 11
F.3d 1055, 1062-63 (9th Cir. 2006) (holding that a complaint 12
adequately alleged state created danger where plaintiff 13
reported to police that her neighbor was a child molester 14
and the police violated promises to patrol the neighborhood 15
and to warn her before they talked to the neighbor); Gazette 16
v. City of Pontiac, 41 F.3d 1061, 1065-66 (6th Cir. 1994) 17
(holding that causation was too attenuated to support a due 18
process claim where daughter alleged she herself would have 19
found evidence at the site of her mother’s disappearance-- 20
and had a chance of saving her mother--but for the police’s 21

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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.
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false claim that they had found nothing after a search).4
1
Depending on the circumstances, these cases furnish 2
some support for the idea that a substantive due process 3
violation can be made out when a private individual derives 4
a false sense of security from an intentional 5
misrepresentation by an executive official if foreseeable 6
bodily harm directly results and if the official’s conduct 7
shocks the conscience. Taking the allegations of the 8
complaint as true, as we must, we assume that a sufficient 9
causal connection exists between the defendants’ optimistic 10
statements and the plaintiffs’ exposure to toxic substances. 11
However, the point is fairly debatable; as the Supreme Court 12
cautioned in evaluating a substantive due process claim 13

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5 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
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based on legislative action, 1
[a governmental] decision that has an incremental 2
impact on the probability that death will result 3
in any given situation . . . cannot be 4
characterized as state action depriving a person 5
of life just because it may set in motion a chain 6
of events that ultimately leads to the random 7
death of an innocent bystander. 8
9
Martinez v. California, 444 U.S. 277, 281 (1980). See also 10
Bright, 443 F.3d at 281 (a state created danger cause of 11
action is only cognizable where “the harm ultimately caused 12
was foreseeable and fairly direct”) (quoting Kneipp v. 13
Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)). We put aside 14
the vexed issue of causation5; instead, we decide the case 15

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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-
on the ground that the conduct alleged, even assuming 1
causation, does not shock the conscience. 2
3
C. Conscience-Shocking Conduct 4
In order to shock the conscience and trigger a 5
violation of substantive due process, official conduct must 6
be outrageous and egregious under the circumstances; it must 7
be truly “brutal and offensive to human dignity . . . .” 8
Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 9
173 (2d Cir. 2002) (quoting Johnson v. Glick, 481 F.2d 1028, 10
1033 & n.6 (2d Cir. 1973)) (internal quotation marks 11
omitted). Courts have “always been reluctant to expand the 12
concept of substantive due process because guideposts for 13
responsible decisionmaking in this unchartered area are 14
scarce and open-ended.” Collins, 503 U.S. at 125. 15
In gauging the shock, “negligently inflicted harm is 16
categorically beneath the threshold,” while “conduct 17
intended to injure in some way unjustifiable by any 18
government interest is the sort of official action most 19
likely to rise to the conscience-shocking level.” County of 20

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Sacramento v. Lewis, 523 U.S. 833, 849 (1998). In between, 1
the Supreme Court has recognized that conduct exhibiting 2
“deliberate indifference” to harm can support a substantive 3
due process claim, with a potent qualification that has 4
bearing here: 5
Deliberate indifference that shocks in one 6
environment may not be so patently egregious in 7
another, and our concern with preserving the 8
constitutional proportions of substantive due 9
process demands an exact analysis of circumstances 10
before any abuse of power is condemned as 11
conscience-shocking. 12
13
Id. at 850. The conscience recognizes the dilemma of 14
conflicting obligations. In the apparent absence of 15
harmless options at the time decisions must be made, an 16
attempt to choose the least of evils is not itself shocking. 17
In Lewis, the Supreme Court held that the “deliberate 18
indifference” of police officers who risk the lives of 19
suspects by engaging in high speed pursuit cannot be deemed 20
conscience-shocking, because they “have obligations that 21
tend to tug against each other” and because “[t]hey are 22
supposed to act decisively and to show restraint at the same 23
moment, and their decisions have to be made ‘in haste, under 24
pressure, and frequently without the luxury of a second 25
chance.’” Id. at 853 (quoting Whitley v. Albers, 475 U.S. 26
312, 320 (1986)). Police conduct in such events does not 27

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-23-
shock the conscience unless there is “intent to harm 1
suspects physically or to worsen their legal plight.” Id. 2
at 854. By contrast, prison officials’ deliberate 3
indifference to inmate welfare in non-emergency situations 4
can be conscience-shocking because the officials have “time 5
to make unhurried judgments, upon the chance for repeated 6
reflection, largely uncomplicated by the pulls of competing 7
obligations.” Id. at 853. The duty of a prison official in 8
such a situation “does not ordinarily clash with other 9
equally important governmental responsibilities,” Whitley, 10
475 U.S. at 320, because no “substantial countervailing 11
interest excuse[s] the State from making provision for the 12
decent care and protection of those it locks up . . . .” 13
Lewis, 523 U.S. at 851. 14
The plaintiffs do not allege that the defendants acted 15
with an evil intent to harm; but they argue that the 16
defendants’ deliberate indifference shocks the conscience 17
because the defendants made their decisions in an 18
“unhurried” fashion with “hours, days, weeks and even months 19
to contemplate, deliberate, discuss and decide what to do 20
and say about the health hazards posed to thousands of 21
people who were coming onto and working at Ground Zero.” 22
Appellants’ Br. 39-40. 23

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-24-
The decisions alleged were made by the defendants over 1
a period of time rather than in the rush of a car chase; but 2
the decisions cannot on that account be fairly characterized 3
as “unhurried” or leisured. The OIG Report (relied upon by 4
the complaint) shows that the defendants were required to 5
make decisions using rapidly changing information about the 6
ramifications of unprecedented events in coordination with 7
multiple federal agencies and local agencies and 8
governments. See OIG Report at i (“Responding to this 9
crisis required organizations from all levels of government 10
to coordinate their response efforts and to make critical 11
public health and safety decisions quickly, and without all 12
of the data that decision-makers would normally desire.”); 13
cf. Kaucher v. County of Bucks, 455 F.3d 418, 426-27 & n.3 14
(3d Cir. 2006) (“We note defendants were under some pressure 15
to respond quickly to the spread of infection [at the jail 16
over a period of more than two years], and we question 17
whether deliberately indifferent conduct is truly conscience 18
shocking in this context.”). 19
Hurried or unhurried, the defendants were subjected to 20
the “pull of competing obligations.” The complaint concedes 21
that the alleged wrongs to the plaintiffs were committed in 22
aid of competing public goals that were not insubstantial: 23

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-25-
Defendants caused to be made the aforesaid 1
misleading statements and omissions . . . in order 2
to insure that Plaintiffs and Class Members 3
immediately began to perform search, recovery, 4
clean-up and other work at the Ground Zero site 5
immediately after the September 11, 2001 attacks, 6
and to create the overall impression that it was 7
safe for people residing and working in areas near 8
Ground Zero to return to their normal lives. 9
10
Compl. ¶ 62. The complaint thus recognizes what everyone 11
knows: that one essential government function in the wake of 12
disaster is to put the affected community on a normal 13
footing, i.e., to avoid panic, keep order, restore services, 14
repair infrastructure, and preserve the economy. 15
In previous cases in which we recognized a state 16
created danger, government officials were not subject to the 17
pull of competing obligations. As to Pena, there is 18
certainly no countervailing public benefit to the 19
encouragement of drunk driving. See Pena v. DePrisco, 432 20
F.3d 98, 114 (2d Cir. 2005) (“Not condoning egregious drunk 21
driving ‘does not ordinarily clash with other equally 22
important governmental responsibilities.’”) (quoting Lewis, 23
523 U.S. at 852). And the active incitement of private 24
violence against demonstrators in Dwares served no 25
conceivable public interest; Dwares emphasized that the 26
officers allegedly intended to punish the victims because of 27
their political opinions. See Dwares v. City of New York, 28

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-26-
985 F.2d 94, 99 (2d Cir. 1993) (the allegations in the 1
complaint “would easily permit the finder of fact to infer 2
that the officers intended the flag burners qua flag burners 3
to suffer the injuries inflicted”). 4
Beyond our own precedent, the plaintiffs direct us to 5
two recent district court decisions that found conduct to be 6
conscience-shocking on facts that are in one case somewhat 7
similar, and in the other, identical. In Briscoe v. Potter, 8
355 F. Supp. 2d 30 (D.D.C. 2004), aff’d, 171 F. App’x 850 9
(D.C. Cir. 2005), postal employees who had contracted 10
anthrax alleged that their supervisors had falsely told them 11
that it was safe to return to work after anthrax had been 12
discovered at their facility. The district court held that 13
the supervisors’ conduct was conscience-shocking: the 14
supervisors were “commendable for their dedication to 15
getting the mail out but deplorable for not recognizing the 16
potential human risk involved. . . . [T]hese alleged actions 17
demonstrated a gross disregard for a dangerous situation in 18
which ‘actual deliberation [was] practical.’” Id. at 46 19
(quoting Butera v. Dist. of Columbia, 235 F.3d 637, 652 20
(D.C. Cir. 2001)). The shock to the conscience 21
notwithstanding, the due process claim was dismissed on 22
qualified immunity, see 355 F. Supp. 2d at 48, and a 23

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-27-
substantive due process claim arising from the same incident 1
was dismissed in Richmond v. Potter, No. 03-00018, 2004 U.S. 2
Dist. LEXIS 25374, at *19-29 (D.D.C. Sept. 30, 2004), aff’d 3
on other grounds, 171 F. App’x 851 (D.C. Cir. 2005). 4
Plaintiffs here allege harm similar to that suffered in 5
Briscoe, but we need not decide whether Briscoe was 6
correctly decided, because there is a salient ground for 7
distinction: the need to process the mails at a single 8
postal facility cannot be compared with the need to restore 9
the residential, economic, educational and civic life of an 10
entire community. 11
In Benzman v. Whitman, No. 04 Civ. 1888, 2006 WL 12
250527 (S.D.N.Y. Feb. 2, 2006), the district court 13
considered substantive due process claims arising from the 14
same press releases at issue in this case. Citing Briscoe, 15
Benzman held that if the reassuring statements made by EPA 16
officials were made with knowledge of their falsehood, they 17
were unquestionably conscience-shocking based on the nature 18
of the EPA’s mandate: 19
The EPA is designated as the agency in our country 20
to protect human health and the environment, and 21
is mandated to work for a cleaner, healthier 22
environment for the American people. The agency 23
enforces regulations regarding pollution in our 24
environment and the presence of toxic and 25
hazardous substances, and has endorsed and 26

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6 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-
promulgated regulations for hazardous and toxic 1
materials, such as asbestos and lead. As head of 2
the EPA, Whitman knew of this mandate and took 3
part in and directed the regulatory activities of 4
the agency. Given this responsibility, the 5
allegations in this case of Whitman’s reassuring 6
and misleading statements of safety after the 7
September 11, 2001 attacks are without question 8
conscience-shocking. 9
10
Id. at *18 (footnote and citation omitted). We disagree 11
with this reasoning, which focuses too narrowly on the 12
mission of a single agency without considering the other 13
substantial government interests at stake.6
14
If anything, the importance of the EPA’s mission 15
counsels against broad constitutional liability in this 16
situation: the risk of such liability will tend to inhibit 17
EPA officials in making difficult decisions about how to 18
disseminate information to the public in an environmental 19
emergency. Knowing that lawsuits alleging intentional 20
misconduct could result from the disclosure of incomplete, 21
confusingly comprehensive, or mistakenly inaccurate 22
information, officials might default to silence in the face 23
of the public’s urgent need for information. This is 24

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-29-
because, as the Supreme Court held in Collins v. City of 1
Harker Heights, 503 U.S. 115, 125-29 (1992), a government 2
official’s failure to warn of a known danger, without more, 3
does not violate substantive due process. 4
Collins also instructed that, at least in the § 1983 5
context, courts should operate from a “presumption that the 6
administration of government programs is based on a rational 7
decisionmaking process that takes account of competing 8
social, political, and economic forces.” Id. at 128. While 9
§ 1983 implicates issues of federalism that are not relevant 10
here, the Court’s instruction has force nonetheless: 11
substantive due process liability should not be allowed to 12
inhibit or control policy decisions of government agencies, 13
even if some decisions could be made to seem gravely 14
erroneous in retrospect. Cf. United States v. Variq 15
Airlines, 467 U.S. 797, 814 (1984) (Federal Tort Claims Act 16
discretionary function exception is designed to prevent 17
“judicial ‘second-guessing’ of legislative and 18
administrative decisions grounded in social, economic, and 19
political policy through the medium of an action in tort”). 20
Can the goals of a government policy possibly outweigh 21
a known risk of loss of life or bodily harm? The EPA and 22
other federal agencies often must decide whether to regulate 23

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-30-
particular conduct by taking into account whether the risk 1
to the potentially affected population will be acceptable. 2
Such decisions require an exercise of the conscience, but 3
such decisions cannot be deemed egregious, conscience- 4
shocking, and “arbitrary in the constitutional sense,” 5
Collins, 503 U.S. at 129, merely because they contemplate 6
some likelihood of bodily harm. 7
Moreover, mass displacement, civil disorder and 8
economic chaos in an urban area also can result in bodily 9
harm and loss of life. The relative magnitude of such risks 10
cannot be reliably computed, and they are in any event 11
incommensurable. Accepting as we must the allegation that 12
the defendants made the wrong decision by disclosing 13
information they knew to be inaccurate, and that this had 14
tragic consequences for the plaintiffs, we conclude that a 15
poor choice made by an executive official between or among 16
the harms risked by the available options is not conscience- 17
shocking merely because for some persons it resulted in 18
grave consequences that a correct decision could have 19
avoided. “[T]he touchstone of due process is protection of 20
the individual against arbitrary action of government,” 21
which in the substantive manifestation of due process is 22
exhibited by “the exercise of power without any reasonable 23

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-31-
justification in the service of a legitimate governmental 1
objective.” Lewis, 523 U.S. at 845-46 (internal quotation 2
omitted). When great harm is likely to befall someone no 3
matter what a government official does, the allocation of 4
risk may be a burden on the conscience of the one who must 5
make such decisions, but does not shock the contemporary 6
conscience. 7
These principles apply notwithstanding the great 8
service rendered by those who repaired New York, the heroism 9
of those who entered the site when it was unstable and on 10
fire, and the serious health consequences that are plausibly 11
alleged in the complaint. 12
13
* * * 14
Because the conduct at issue here does not shock the 15
conscience, there was no constitutional violation. We 16
therefore need not decide whether the conduct alleged 17
violated law that was then clearly established, or whether 18
any special factors counsel hesitation in the recognition of 19
a Bivens action against the defendants. For the foregoing 20
reasons, we affirm. 21

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