Benzman v. Whitman

Apr 22: In the U.S. Court of Appeals, Second Circuit, Case Nos. 06-1166, 06-1346, 06-1454. This interlocutory appeal and cross-appeal present issues concerning individual and governmental agency liability, in the aftermath of the 9/11 attack, for alleged breach of duties owed to a putative plaintiff class of people who reside, attend school, or work in lower Manhattan or Brooklyn. The principal claim is that Government officials misled the plaintiff class members by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices.

The Appeals Court indicates that the core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”

The Appeals Court ruled, "Whether or not Whitman’s resolution of such competing considerations was wise, indeed, even if her agency’s overall performance was as deficient as the Plaintiffs allege, she has not engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. . .

"Although the complaint contains numerous allegations that various employees within EPA were aware of data indicating health risks, there is no allegation that Whitman, from whom damages are sought in her personal capacity, was herself aware of such information. Perhaps, as a competent administrator, she should have been aware of significant information known to her
subordinates, but arguably inadequate management of a vast agency of 17,000 employees is not a basis for constitutional tort liability. . . alleging Whitman’s personal liability for damages for a denial of substantive due process, must be dismissed."

The Appeals Court concluded saying, "We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. . . Accordingly, the case is remanded with directions to dismiss the Complaint."

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