9/11 health claim against Whitman fails

If the State government violates your constitutional rights, you can sue under 42 U.S.C. sec. 1983, which provides for damages against State defendants. The Federal counterpart to sec. 1983 is a Bivens action, named after a Supreme Court ruling from the early 1970's which authorizes remedies against Federal actors. The problem for plaintiffs is that Bivens is not co-extensive with sec. 1983 actions. In other words, Bivens provides for a remedy in limited cases. That's why the plaintiffs suing Christine Todd Whitman in connection with 9/11 health problems lost in the Court of Appeals.

The case is Benzman v. Whitman, decided on April 22. The potential class action plaintiffs argued that Whitman, former Environmental Protection Agency administrator in the Bush administration, misled 9/11 cleanup workers by telling them through press releases and public statements that the air quality was safe when it wasn't, causing the workers to suffer serious respiratory problems. They sued on the constitutional theory that Whitman's actions were sufficiently outrageous to justify a Bivens remedy. For you lawyers out there, the legal theory is "substantive due process." For everyone else, the theory is that the government's actions (or inactions) are so outrageous that the plaintiffs have a due process claim. As the Court of Appeals put it: "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.”

Courts are reluctant to expand remedies under Bivens, especially when relief under other Federal statutes are available and/or when policy reasons militate against a damages award against the Federal government. This is because, according to the Second Circuit, "A Bivens action is a blunt and powerful instrument for correcting constitutional violations and not an 'automatic entitlement' associated with every governmental infraction."

The Court of Appeals agrees with the Federal government in this case that "no court has ever held a government official liable for denying substantive due process by issuing press releases or making public statements." But it gets worse for plaintiffs: another Federal law already protects them so there is no reason to expand Bivens to a case like this. The Court: "Not only is the Plaintiffs’ assertion of an implied cause of action unprecedented, it also encounters the substantial objection that Congress has already provided a statutory cause of action for claims 'arising out of' the airplane crashes that destroyed the WTC towers." That law is the Air Transportation Safety and System Stability Act.

Courts will also reject a Bivens claim when "special factors" justify dismissing the case. This is another loophole in the Bivens universe which does not apply in sec. 1983 claims against State defendants. Citing Supreme Court authority, the Second Circuit holds that special factors apply here because "the federal response to disasters, such as the events at issue here, involves 'policy questions in an area that [has] received careful attention from Congress.' Federal disaster response and clean-up efforts are an area in which 'Congress [has] developed considerable familiarity' and 'may inform itself through factfinding procedures such as hearings that are not available to the courts.'"