Emergency workers who performed search, rescue and clean-up services at the World Trade Center in the aftermath of the Sept. 11 terrorist attacks can't sue federal officials for allegedly misrepresenting the air quality at the site, the 2nd Circuit has ruled in affirming a dismissal.
The plaintiffs- a National Guard medic, two New York City emergency services officers, a city paramedic and a U.S. Marshal - participated in search, rescue and clean-up work at the World Trade Center site with little or no equipment to protect their lungs. They alleged that they suffered or have a reasonable belief that they will suffer injury as the result of their exposure to asbestos and other toxins at the site.
The plaintiffs filed a Sect. 1983 class action, alleging that EPA and other federal officials violated their right to substantive due process by issuing false assurances that it was safe to work at the site without respiratory protection.
But the court decided that the conduct alleged did not "shock the conscience" for the purpose of establishing a due process violation, because the defendants made their decisions in the face of the competing obligations of ensuring worker safety on the one hand and the nation's rapid recovery from a terrorist attack on the other.
"Accepting as we must the allegation that the defendants made the wrong decision by disclosing information they knew to be inaccurate, and that this had tragic consequences for the plaintiffs, we conclude that a poor choice made by an executive official between or among the harms risked by the available options is not conscience-shocking merely because for some persons it resulted in grave consequences that a correct decision could have avoided. When great harm is likely to befall someone no matter what a government official does, the allocation of risk may be a burden on the conscience of the one who must make such decisions, but does not shock the contemporary conscience," the court said.
Lombardi v. Whitman (Lawyers USA No. 9935625) U.S. Court of Appeals, 2nd Circuit No. 06-1077-cv. April 19, 2007.
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