Figueroa

concurring:

I concur in part I of the opinion and in the result reached in part II. I write separately to emphasize two points.

First, as the majority correctly holds in part II.C., as of 1987, Figueroa did not have a clearly established right to be free from danger, unless a government official took some affirmative action to interfere with his physical liberty. Walker v. Rowe, 791 F.2d 507, 510-11 (7th Cir.), cert. denied, 479 U.S. 994 , 107 S.Ct. 597 , 93 L.Ed.2d 597 (1986); McClary v. O’Hare, 786 F.2d 83 , 88-89 (2d Cir.1986); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). In this case, the government did not restrain or otherwise interfere with the physical liberty of Figueroa or any other member of the plaintiff class. That is sufficient to decide the issue. The majority’s attempt to draw a line between acts of omission and acts of commission is unnecessary to the resolution of this case and should be regarded as dicta.

Second, I disagree with the majority’s characterization of the state of the law in 1987. The cases cited by the majority do not create a clearly established right “not to be exposed to danger if a government actor had first taken some action to…

In May of 1987, an electrical transformer ruptured at the Piti Power Plant on the United States Naval Base in Guam, releasing a variety of toxic chemicals. Subsequently, 251 federal employees who were at the plant at the time of the accident filed suit against the United States and twelve individuals who supervised the toxic spill clean-up. Plaintiffs brought five causes of action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (“FTCA”). Their-Sixth cause of action was directed at the individual Defendants and alleged a substantive due process claim for tortious conduct. All Plaintiffs’ claims stemmed from their allegations that Defendants were negligent or grossly negligent: 1) in ordering Plaintiffs to clean-up the polychlorinated biphenyls chemicals and to return to work without advising them about appropriate protective measures or securing the area; and 2) in not providing proper medical care immediately after the explosion. Plaintiffs sought damages for current and potential future physical injuries and for emotional distress resulting from their fear that they would develop cancer at some future date.

The government moved to dismiss all…