     06-1077
     Lombardi v. Whitman

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

42   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        Affirmed.

 4                          STEPHEN J. RIEGEL, Weitz &
 5                          Luxemberg, P.C., New York, NY, for
 6                          Plaintiffs-Appellants.
 7
 8                          MARK B. STERN, Appellate Staff,
 9                          Civil Division, United States
10                          Department of Justice (Peter D.
11                          Keisler, Assistant Attorney General
12                          of the United States, Alisa Klein,
13                          Scott A. Hershovitz, on the brief),
14                          Washington, DC, for
15                          Defendants-Appellees.
16
17   DENNIS JACOBS, Chief Judge:
18
19       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.     They

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.   This is an appeal from a February

29   6, 2006 order entered in the United States District Court

30   for the Southern District of New York (Hellerstein, J.),


                                   -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

9                              BACKGROUND

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.     Fires within

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       The plaintiffs arrived at the site on September 11 or

23   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.     They

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       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”).     The claims against them

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.

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.     See EPA Office of the

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




                                  -5-
1    (last visited April 17, 2007) (the “OIG Report”). 1

2        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.   OIG Report at 87-88.

15       A September 16 EPA press release reported additional

16   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            [N]ew samples confirm previous reports that
 2            ambient air quality meets OSHA standards and
 3            consequently is not a cause for public concern.
 4            New OSHA data also indicates that indoor air
 5            quality in downtown buildings will meet standards.
 6            EPA has found variable asbestos levels in bulk
 7            debris and dust on the ground, but EPA continues
 8            to believe that there is no significant health
 9            risk to the general public in the coming days.
10            Appropriate steps are being taken to clean up this
11            dust and debris. “Our tests show that it is safe
12            for New Yorkers to go back to work in New York’s
13            financial district,” said John L. Henshaw,
14            Assistant Secretary of Labor for OSHA. “Keeping
15            the streets clean and being careful not to track
16            dust into buildings will help protect workers from
17            remaining debris.”
18
19   Id. at 85.

20       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.   According to the

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.   The same release

28   quoted defendant Whitman:

29            “We are very encouraged that the results from our
30            monitoring of air quality and drinking water
31            conditions in both New York and near the Pentagon
32            show that the public in these areas is not being
33            exposed to excessive levels of asbestos or other
34            harmful substances,” Whitman said. “Given the
35            scope of the tragedy from last week, I am glad to
                                 -7-
1             reassure the people of New York and Washington,
2             D.C. that their air is safe to breath [sic] and
3             their water is safe to drink,” she added.
4
5    Id. at 77.     In fact, according to the EPA Inspector General,

6    25 percent of the bulk dust samples taken up to that point

7    recorded asbestos at levels representing a significant

8    health risk.     See id. at 14.

9        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.     See Compl. ¶¶ 49-51.

15       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    B.   The District Court Proceedings

10        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.    As to two plaintiffs, dismissal was granted on a

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).    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.”   Mot. to Dismiss Hr’g

19   Tr. 49, Lombardi v. Whitman, No. 04-CV-9272 (S.D.N.Y. Feb.

20   2, 2006).

21

22                            DISCUSSION

23       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.”   Johnson v. Newburgh Enlarged School

4    Dist., 239 F.3d 246, 250 (2d Cir. 2001).

5        The Constitution itself does not explicitly provide a

6    damages remedy to redress violations by individual federal

7    officials.   And sovereign immunity bars suit for damages

8    against the federal government itself unless it has waived

9    that immunity.   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).       First,

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?”       Saucier v. Katz, 533 U.S.

5    194, 201 (2001).   Second, was the right so clearly

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[?]”     Id.

10        The threshold inquiry is therefore whether the

11   complaint alleges the violation of a constitutional right.

12

13   A.   Substantive Due Process

14        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.   This clause has been interpreted as a

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
                                    -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.   The substantive

4    component of due process encompasses, among other things, an

5    individual’s right to bodily integrity free from

6    unjustifiable governmental interference.    See Washington v.

7    Glucksberg, 521 U.S. 702, 720 (1997) (citing Rochin v.

8    California, 342 U.S. 165 (1952)).   The Due Process Clause,

9    however, “does not transform every tort committed by a state

10   actor into a constitutional violation.”    DeShaney v.

11   Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 202

12   (1989).   Government action resulting in bodily harm is not a

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.’”     Pena v.

16   DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Lewis,

17   523 U.S. at 847 n.8).

18

19   B.   Misrepresentation and “State Created Danger”

20        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.   See Collins v. City of

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).    So, to the

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.    They

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.   “[I]n exceptional circumstances a

23   governmental entity may have a constitutional obligation to
                                  -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.”       Ying Jing Gan v. City of New York, 996 F.2d

5    522, 533 (2d Cir. 1993) (citing DeShaney, 489 U.S. at 198,

6    201).       The plaintiffs allege no “special relationship”

7    between them and federal officials. 3     They plead that their

8    reliance on the government’s misrepresentations induced them

9    to forgo available safeguards, and thus characterize the

10   harm as a state created danger.

11       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.       See, e.g.,

15   Pena, 432 F.3d at 108; Hemphill v. Schott, 141 F.3d 412, 419

             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).   However, the danger alleged in this case

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.     See Pena,

9    432 F.3d at 109 (opining that “‘special relationship’

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.”).   In Dwares, the police allegedly

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.

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.     Instead, plaintiffs appear to cast

3    environmental conditions as the wrongdoer.     They submit that

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        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.     See, e.g., Kennedy v. City of Ridgefield, 439

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




                                    -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.   Taking the allegations of the

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


          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            [a governmental] decision that has an incremental
 3            impact on the probability that death will result
 4            in any given situation . . . cannot be
 5            characterized as state action depriving a person
 6            of life just because it may set in motion a chain
 7            of events that ultimately leads to the random
 8            death of an innocent bystander.
 9
10   Martinez v. California, 444 U.S. 277, 281 (1980).    See also

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)).   We put aside

15   the vexed issue of causation 5 ; instead, we decide the case


          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
                                  -20-
1    on the ground that the conduct alleged, even assuming

2    causation, does not shock the conscience.

3

4    C.   Conscience-Shocking Conduct

5         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).   Courts have “always been reluctant to expand the

13   concept of substantive due process because guideposts for

14   responsible decisionmaking in this unchartered area are

15   scarce and open-ended.”   Collins, 503 U.S. at 125.

16        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               Deliberate indifference that shocks in one
 7               environment may not be so patently egregious in
 8               another, and our concern with preserving the
 9               constitutional proportions of substantive due
10               process demands an exact analysis of circumstances
11               before any abuse of power is condemned as
12               conscience-shocking.
13
14   Id. at 850.     The conscience recognizes the dilemma of

15   conflicting obligations.     In the apparent absence of

16   harmless options at the time decisions must be made, an

17   attempt to choose the least of evils is not itself shocking.

18       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.’”     Id. at 853 (quoting Whitley v. Albers, 475 U.S.

27   312, 320 (1986)).     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.”     Id.

3    at 854.   By contrast, prison officials’ deliberate

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.”   Id. at 853.   The duty of a prison official in

9    such a situation “does not ordinarily clash with other

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.    The OIG Report (relied upon by

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.   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.”    The complaint concedes

22   that the alleged wrongs to the plaintiffs were committed in

23   aid of competing public goals that were not insubstantial:

                                    -24-
 1            Defendants caused to be made the aforesaid
 2            misleading statements and omissions . . . in order
 3            to insure that Plaintiffs and Class Members
 4            immediately began to perform search, recovery,
 5            clean-up and other work at the Ground Zero site
 6            immediately after the September 11, 2001 attacks,
 7            and to create the overall impression that it was
 8            safe for people residing and working in areas near
 9            Ground Zero to return to their normal lives.
10
11   Compl. ¶ 62.   The complaint thus recognizes what everyone

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       In previous cases in which we recognized a state

17   created danger, government officials were not subject to the

18   pull of competing obligations.      As to Pena, there is

19   certainly no countervailing public benefit to the

20   encouragement of drunk driving.      See Pena v. DePrisco , 432

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).   And the active incitement of private

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.   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.   In Briscoe v. Potter,

9    355 F. Supp. 2d 30 (D.D.C. 2004), aff’d, 171 F. App’x 850

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.   The district court held that

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.’”      Id. at 46

20   (quoting Butera v. Dist. of Columbia, 235 F.3d 637, 652

21   (D.C. Cir. 2001)).   The shock to the conscience

22   notwithstanding, the due process claim was dismissed on

23   qualified immunity, see 355 F. Supp. 2d at 48, and a

                                  -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.   Citing Briscoe,

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            The EPA is designated as the agency in our country
21            to protect human health and the environment, and
22            is mandated to work for a cleaner, healthier
23            environment for the American people. The agency
24            enforces regulations regarding pollution in our
25            environment and the presence of toxic and
26            hazardous substances, and has endorsed and

                                 -27-
 1            promulgated regulations for hazardous and toxic
 2            materials, such as asbestos and lead. As head of
 3            the EPA, Whitman knew of this mandate and took
 4            part in and directed the regulatory activities of
 5            the agency. Given this responsibility, the
 6            allegations in this case of Whitman’s reassuring
 7            and misleading statements of safety after the
 8            September 11, 2001 attacks are without question
 9            conscience-shocking.
10
11   Id. at *18 (footnote and citation omitted).    We disagree

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       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.   Knowing that lawsuits alleging intentional

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.    This is



          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-
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.   Cf. United States v. Variq

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

22   a known risk of loss of life or bodily harm?     The EPA and

23   other federal agencies often must decide whether to regulate

                                  -29-
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.   Accepting as we must the allegation that

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.   “[T]he touchstone of due process is protection of

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

                                  -30-
1    justification in the service of a legitimate governmental

2    objective.”     Lewis, 523 U.S. at 845-46 (internal quotation

3    omitted).     When great harm is likely to befall someone no

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        These principles apply notwithstanding the great

9    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.     We

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.     For the foregoing

21   reasons, we affirm.




                                      -31-
