## Facts

- After the September 11, 2001 attacks and collapse of the World Trade Center, dust and debris containing hazardous substances spread through areas of lower Manhattan and parts of Brooklyn.
- A putative class of residents, workers, and students alleged that EPA officials, including Administrator Christine Todd Whitman, publicly assured them the air was safe, encouraged return to the area, and downplayed or concealed contrary information.
- Plaintiffs claimed those assurances increased exposure to contaminants and caused or aggravated health problems.
- Plaintiffs sued Whitman for damages in her individual capacity under Bivens, alleging a Fifth Amendment substantive due process violation based on an “affirmative enhancement of risk” theory.
- Plaintiffs sued EPA and its Administrator (in official capacities) under the Administrative Procedure Act (APA), seeking injunctive relief compelling additional environmental testing, cleanup, and medical monitoring.
- The district court denied Whitman’s motion to dismiss (including her qualified-immunity defense) but dismissed the APA claims against EPA and its Administrator.
- Whitman took an interlocutory appeal from the denial of qualified immunity; EPA and its Administrator appealed aspects of the APA rulings; plaintiffs cross-appealed dismissal of portions of their claims.

## Issues

1. Whether Whitman could be held personally liable for damages under Bivens for allegedly misleading public reassurances about environmental safety after 9/11, or whether qualified immunity (and related caution against extending Bivens) required dismissal.
2. Whether plaintiffs’ requests to compel EPA testing, cleanup, monitoring, and related communications were reviewable under APA §§ 706(1) and 706(2), or instead lacked a discrete legally required duty or were committed to agency discretion.

## Decision

- The Second Circuit reversed the denial of Whitman’s motion to dismiss and held she was entitled to qualified immunity; the Bivens claim was dismissed.
- The court affirmed in substantial part the dismissal of the APA claims, concluding plaintiffs could not obtain the requested injunctive relief under the theories pleaded.
- Plaintiffs’ cross-appeal seeking broader reinstatement of APA-based relief was rejected.

## Legal Principles

- Qualified immunity bars damages claims unless the alleged conduct violated a constitutional right that was clearly established at the time; courts assess whether existing precedent would have put a reasonable official on notice.
- Courts are reluctant to extend Bivens remedies where “special factors” counsel hesitation, including risks of chilling high-level executive functions and policy communications in exigent, post-disaster conditions.
- Under APA § 706(1), a court may compel agency action only when the plaintiff identifies a discrete, legally required agency duty; broadly worded, discretionary directives (e.g., “may,” “whenever possible and appropriate”) are not judicially enforceable obligations.
- Under APA §§ 701(a)(2) and 706(2), agency decisions are not reviewable where the governing law supplies no manageable standards and the matters are committed to agency discretion, including emergency response judgments about priorities, resources, and public communications.

## Conclusion

The Second Circuit held that Whitman could not be subjected to personal Bivens damages liability for alleged post‑9/11 public assurances because the asserted due process theory was not clearly established and policy considerations supported immunity, and it largely foreclosed APA-based injunctive relief because plaintiffs did not identify discrete mandatory EPA duties and much of the challenged conduct was committed to agency discretion.


Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008)