Petition for Writ of Certiorari — Briscoe v. Potter (No. 05-977)

IN THE

Supreme Court of the United States

DENA BRISCOE, et al.,

Petitioners,

JOHN E. POTTER, et a/.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Co ambia Circuit

PETITION FOR WRIT OF CERTIORARI

Paul J. Orfanedes*

Dale L. Wilcox

JUDICIAL WATCH, INC.

501 School Street. S.W., Suite 500

Washington. DC 20024

(202) 646-5172

Counsel for Petitioners

* Denotes Counsel of Record

QUESTION PRESENTED

Whether a procedural due process, Bivens-type action is

maintainable where it is alleged that the defendant interfered

with or otherwise rendered unavailable substantive, statutory

or contractual remedies that the plaintiff had a right to pursue.

ii

LIST OF PARTIES

The following is a list of parties and each corporate

party’s respective parent corporation and subsidiaries, if any.

Petitioners:

1. Dena Briscoe

2. Jeffrey Butler

Terrell Worrell

tov

4. Vincent D. Gagnon

5. Ossie L. Alston

Respondents:

1. John E. Potter

tv

Thomas Day

tow

Timothy C. Haney

4+. United States Postal Service (USPS) Unknown

Officials Nos. 1-10

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....- 2. ccc ccevecceeecs. i

Oe Or PP AS Nios Sain sg 8 PH eS dvesineneayel il

TABLE OF COTTE GS ovis v ie os ak eben ces keeeees ill

TABLE GF CITA I 6 o> oa CER G ar yee cee ences v

CPN IESE ok bacco viet uv recereagesetes l

STATEMENT OF JURISDICTION ...............--. |

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED . . .2. 6. te cect cee weceess 2

STATEMENT OF THECASE .... 2c cccevecee seve 2

f.. Pamir SN nk ee he Said a

Uy. - Seppe OF Fate on. si eileen een elves 4

REASONS FOR GRANTING THE WRIT ........... 20

Page

A WRIT OF CERTIORARI SHOULD ISSUE TO

RESOLVE THIS IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT ...... 20

hein aon daca te ARTES CO Res ee oO 26

APPENDIX

Appendix A - 11/19/04 - United States Court of

Appeals for the District of Columbia Judgment

Affirming United States District Court for The

District of Columbia's Dismissal of the Complaint . . la

Appendix B - 11/19/04 — United States

District Court for The District of Columbia’s

Memorandum Opinion and Order Dismissing

NM i er foe ki eee ph Sa

v

TABLE OF CITATIONS

Cases Page

Bishop v. Tice, 622 F.2d 349 (8" Cir. 1980) ...... 24, 25

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ........--- I

Bush v. Lucas, 462 U.S. 367 (1983) ....... 20-22, 25, 26

Carlson v. Green, 446 U.S. 14 (1980) .......-..--.--- 24

Grichenko v. USPS, 524 F.Supp. 672

(E.D.N.Y. 1981), aff'd without opinion,

754 F.26 368 (27 Cie: 1904). ee ce QE

Rauccio v. Frank, 759 F. Supp. 566

1h a CO oe ee i a, eke

Schweiker vy. Chilicky, 487 U.S. 412 (1988)... . 21,22, 25

Constitutional Provision and Statutes

Fifth Amendment, U.S. Constitution ............ passim

SEES; BIE eso CR ape RAMEE REE 25

CEs OO Be i ois ea erin cur Coes 2, 23,24

ESS Toy BO.” | y eR ps Oe mets es er ane |

OUST CONG er eee a eae

|

OPINIONS BELOW

The decision of the U.S. District Court for the District of

Columbia (hereinafter “District Court”) is reported at 355 F.

Supp. 2d 30 (D.D.C. 2004). See Appendix (“App.”) B at Sa.

The decision of the U.S. Court of Appeals for the District of

Columbia (hereinafter “Appellate Court”) is reported at 2005

U.S. App. LEXIS 2° 940 (D.C. Cir. Nov. 7, 2005). See App.

A at ia.

STATEMENT OF JURISDICTION

The District Court dismissed Petitioners’ procedural and

substantive due process claims against Respondents brought

under Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), on November 19,

2004. Petitioners appealed to the Appellate Court, which

affirmed the District Court’s dismissal on November 7, 2005.

This petition for writ of certiorari is timely, as it is being

-filed within ninety (90) days of the November 7, 2005

Appellate Court affirmation of the District Court’s decision.

if this petition for writ of certiorari is granted, the U.S.

Supreme Court will have jurisdiction over this matter

pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL

PROVISION AND STATUTES INVOLVED

U.S. Constitution, Amendment V:

No person shall be. . . deprived of life, liberty, or

Property, without due process of law...

Occupational Safety and Health Act of 1970, 29 U.S.C. §

654, et Seq.

Federal Employees Compensation Act, 5 U.S.C. § S101,

el Seg.

STATEMENT OF THE CASE

I. Procedural History

This Bivens-type action arises from the deceitful,

shameful and unlawful actions of the officials of the United

States Postal Service ( hereinafter“USPS"), who intentionally

and affirmatively prevented Petitioners (the plaintiffs and

appellants. respectively, in the District and Appellate courts)

from timely Pursuing their nghts to secure a safe workplace

during the anthrax crisis in Washington, D.C. in October.

2001. Petitioners are USPS employees who worked at the

USPS’s Washington, D.C, Processing and Distribution C enter

(hereinafter “the Brentwood facility”), the same facility that

processed the anthrax-laden letters sent through the mail to

Senators Tom Daschle and Patrick Leahy. The Complaint

alleges. inter alia. that Respondents (the defendants and

appellees, respectively, in the District and Appellate courts) .

Intentionally and affirmatively deprived Petitioners of their

3

procedural due process rights secured by the Fifth

Amendment to the U.S. Constitution and otherwise violated

Petitioners’ substantive due process nights.

Petitioners’ procedural due process claims (Counts I- 3

of the Complaint) allege that Respondents, knowing the

Brentwood facility had become contaminated with highly

potent, “weaponized” anthrax, affirmatively interfered with or

rendered unavailable the procedures that Petitioners could

have, and would have, pursued to prevent their continuing

exposure to the deadly anthrax spores at the Brentwood

facility. Petitioners alleged that Respondents intentionally

and affirmatively prevented them from pursuing their

constitutionally protected remedies by: (1) lying to Petitioners

that the facility was not contaminated with anthrax, and (2)

intentionally threatening, intimidating and coercing

Petitioners with disciplinary action, the loss of their jobs,

and/or arrest if they asked questions about the Daschle letter,

the safety of the facility or their own safety, requested safety

instructions regarding the same, or asked to be excused from

work. Petitioners allege Respondents” conduct prevented

them from timely invoking the protections and remedies

afforded by their collective, bargaining agreements, the

Occupational Safety and Health Act ( hereinafter “"OSHA”) of

1970. 29 U.S.C. § 654, erseg., and USPS emergency response

procedures, thereby causing them to continue to be exposed

to the danger of injury and dea* from anthrax contamination

at the Brentwood facility.

Respondents filed a motion to dismiss, which Petitioners

opposed. The District Court heard argument and by

Memorandum Opinion and Order dated Nov ember 19, 2004,

the District Court granted Respondents’ motion to dismiss.

4

holding that Petitioners’ procedural due Process claims were

preempted by certain statutory and/or contractual remedies

that existed. App. B at 21a-3la. Petitioners timely appealed.

On November 7, 2005, the Appellate Court affirmed the

dismissal of Petitioners’ claims for the same reason. App. A

at la-4a.

Il. Statement of Facts

On Tuesday, October 9, 2001, anthrax-laden letters

addressed to Senator Daschle and Senator Leahy at their U.S.

Senate offices in Washington, D.C. were deposited in the U.S.

Mail at Trenton, New Jersey. JA 20.' On or about Thursday,

October 11, 2001, the Daschle letter entered the Brentwood

facility. 4d The bag was opened and the contents were

processed by Delivery Bar Code Sorter ( hereinafter" DBCS”)

machine #17. /dZ At approximately 7:10 a.m., the Daschle

letter was fed manually into DBCS #17. Id. The letter was

then moved by mail transport equipment to the Government

Mail Section for delivery to the Hart Senate Office Building.

id. Between approximately 8:00 a.m. and 9:40 a.m. on

Thursday, October 11, 2001, DBCS #17 was Opened and a

large blower using compressed air was used to blow debris

and dust trom the conveyor belts and optical reading heads of

the machine, spreading deadly anthrax spores from the

Daschle letter throughout the Brentwood facility. /d.

The Daschle letter was delivered to the Hart Senate Office

Building at approximately noon on Friday. October 12. 2001.

JA 20. On Monday, Gctober 15, 2001. the Daschle letter was

“JA” refers to the Jom Appendix submitted to the Appellate

Court by the parties

5

opened in the Senator's office in the Hart Senate Office

Building. /d. at 21. The envelope contained a fine white

powder. It immediately aroused suspicion, and the Capitol

Police were called. /d. The Capitol Police immediately

arrived and performed a field test on the letter, which was

found to contain anthrax spores. /d. The ventilation system

in the building was immediately shut down, and the building

was closed. /d. Bundles of letters and packages were

quarantined, and all mail delivery was suspended. /d.

Staffers in Senator Daschle’s officer were tested for anthrax

contamination and given antibiotics. Even tours of the

Capitol were cancelled. /d.

Later that same day, the Daschle letter was sent to the

U.S. Army Medical Research Institute for Infectious Disease

(hereinafter “USAMRIID”) at Fort Detrick, Maryland for

further testing. JA 22. USAMRIID scientist Dr. John Ezzeli

tested the letter and concluded that, in his many years of

researching anthrax, he had never seen anthrax spores so

potent. /d Dr. Ezzell characterized the anthrax in the

Daschle letter as being “weaponized.” /d. Indeed, the anthrax

spores were so potent that, when Dr. Ezzell opened the

Daschle letter to test it, some of its contents aerosolized

instantly. /d. Dr. Ezzell immediately began taking antibiotics

and took the extreme and painful measure of inhaling a bleach

solution to kill any anthrax spores that he may have inhaled.

Id.

On Tuesday, October 16, 2001, Major General John

Parker, U.S. Army Commanding General at USAMRIID,

siated with respect to the anthrax spores contained in the

Daschle letter: “It’s a very potent form of anthrax that was

clearly produced by someone who knew what he was doing.”

6

JA 23. Un the same day, the FBI notified the USPS

Inspection Service that laboratory tests revealed the Daschle

letter contained a “potent™ strain of anthrax. Jd The

Inspection Service. in tum, notifieé Respondent Postmaster

General John E. Potter of the potency of the anthrax Spores in

the Daschle letter. Jd Respondent Potter, in tum, notified the

other Respondents as Respondent Thomas Day, USPS Vice

President of Engineering and an anthrax and security expert,

testified at a subsequent community meeting that he and other

high level USPS officials were consulted and helped make

decisions regarding the Brentwood facility during the anthrax

crisis. JA 22. Thus, Respondents knew at least as early as

Tuesday, October 16. 2001, that a very dangerous condition

likely existed at the Brentwood facility. Jd.

On Wednesday, October 17, 2001. anthrax spores were

found in a mail room at the Dirksen Senate Office Building

where the Daschle letter had passed unopened before being

delivered to the Hart Senate Office Building. Jd at 24. Based

on the Dirksen Building mail room findings, Respondents

knew or should have known at least as early as Wednesday,

October 17, 2001, that the highly potent, “weaponized™

anthrax contained in the Daschle letter had likely leaked trom

the envelope and contaminated the Brentwood facility,

creating a serious risk of injury or death to

24, 25.

Petitioners. /d. at

At least as early as the morning of Thursday, October IX.

2001. Respondent Haney, USPS Senior Vice President

Deborah Willhite and other USPS officials knew the

Brentwood facility had been contaminated with anthrax. /d

on Is Confirmed in notes

at 25, 26. This damaging admiss

made by Haney on the morning of Thursday, October 18,

2001:

I met with Rick Edwards, representative of the Senate.

Deborah Wilhite (sic), and Terry Poole. Mr. Edwards

was upset that the senator [sic] had received an

infected letter and wanted to know why it happened

and what we were going to do about it. .. When we

left the meeting, | pulled Deborah aside and let her

know that the mail was leaking and that we were

affected.

ld. (emphasis added). Respondent Haney informed

Respondents Potter and Day that anthrax had leaked out of the

envelope containing the Daschle letter processed at the

Brentwood facility, causing contamination at the Brentwood

facility. Jd. at 26

Also on the morning of Thursday. October 18, 2001.

Respondent Potter and other Respondents, were notified that

the Center for Disease Control (hereinafter “CDC”) had

confirmed a New Jersey state medical examiner's finding on

October 16, 2001 that a letter carner in New Jersey, where the

Daschie letter had been mailed, was suffering from cutaneous

anthrax. /d Based on this additional mformation,

Respondents knew or should have known that the

“weaponized” anthrax contained in the Daschle letter had

likely leaked from the envelope and contaminated the

Brentwood facility, creating a serious risk of injury or death

to Petitioners, even though the Daschle letter was never

opened there.

8

Indeed, Respondents contacted the Fairfax County

HAZMAT Team to have them perfozm quick, on-site field

tests for anthrax at the Brentwood facility. /d. at 28. On

Thursday, October 18, 2001. the Fairfax County HAZMAT

Team sent over two employees in full protective gear, L.¢.,

“moonsuits,” to take samples while Petitioners and other

postal employees continued their normal duties without any

Protection. /d. The Fairfax County HAZMAT Team tested

DBCS machines #16-20 and the Government mail section at

the front end of the workroom floor. /d. In the afternoon of

that same day, inspectors from URS Greiner Woodward

Clyde Engineering Consultants (hereinafter “URS”), also

Wearing protective “moonsuits.” began testing the facility for

anthrax contamination. /d.

Respondent Haney’s notes about the results of the URS

tests further confirm that, at least as early as Thursday,

October 18, 2001, Haney knew the Brentwood facility was

contaminated with anthrax:

URS was in the facility at 2:30 p.m. On my way back

from the meeting, | was called by [Posunaster

General] Jack Potter and Adam Walsh, (America’s

Most Wanted), the Deputy Director of the FBI. and

Chief Postal Inspector Kenneth Weaver. It was stated

that they wanted to do a live broadcast from the

Brentwood workroom flvor. | contacted Corporate

Media and the broadcast was coordinated. They all

left after the broadcast (about Noon). | then met with

[redacted] trom URS along with some members ofmy

staff. We identified the machines that we had reason

to feel the mail had been run on. At 6:15 p.m., that

night, | spoke with Inspectors Weaver and Clemons to

y

get additional information from the letter. They did

not have the ID tag information at them time [sic], but

we were able to get this information from New Jersey.

By decoding the ID tag information, we were able to

identify the actual machine the mail had been

processed on. Since URS only had 30 swabs

available, we did this machine and the manual cases

for ZIP Code 20510 (The Senate). Again, they tested

hot. URS continued with the testing, but it was not

completed until 02:30 a.m. on the 19th, at which time

1 went home.

Id. at 28, 29 (emphasis added). Haney informed

Respondents Potter and Day about the results of the URS

tests. /d. at 26, 29.

Respondent Haney’s notes also confirm he knew, at least

as early as a 6:00 a.m. meeting with the D.C. Mayor's Office

of Emergency Response on Saturday, October 20, 2001, that

at least one Brentwood employee was suffering from possible

inhalation anthrax exposure and the Brentwood facility was

contaminated with anthrax. JA 35. According to Hancy’s

notes:

Present at the OER meeting were Deborah Willlhite,

Inspector Clemons, Susan Medvidovitch, Jerry Lane

and myself. The discussion was about |redacted|

who was in the hospital; confirmation that the

Because Respondent Haney stated, “ Again. they tested hot.” itis

entirely likely that Respondents had performed prior tests for anthrax

contamination at the Brentwood factlity and received postive test results

before Thursday, October 18, 2001) (iimphasis added)

10

facility tested Positive; and that more testing was

on the way. [Emphasis added]. Meanwhile, we were

sull awaiting the results. I spoke with employees

throughout the day. Mr. Sylvester Black arrived at

1:00 p.m. Pat Donahue arrived at 9:30 p.m. We

discussed the Possibility of relocating operations. |

Stayed at the facility most of the night.

Id.

Despite having the knowledge that a life

condition existed at the Brentwood facility, R

failed to invoke any of the USPS emergency response

procedures, including the anthrax contamination procedures

set forth in Management Instruction EL-860-1999-3, and

Purposetully failed to evacuate or otherwise shut down the

Brentwood facility.’ /d at 23. Respondents also knowingly

failed to alert any of the facility's employees, including

Petitioners, ina timely manner that the employees had likely

been exposed. and were continuing to be exposed, to anthrax

contamination from the Processing of the anthrax-laden

Daschle letter. /d. at 21.

threatening

€spondents

In October 1999. the USPS issued

Management Instruction

EL -So0-1 999.3. entitled

“Emergeney Response to Mail Allegedly

Contaming Anthrax.” Which mandated a sate and healthful work

environment tor itsemployees, outlined the hazards of XN Posure to anthrax

and mandated emerge

1]

Instead, at all relevant times, Respondents Potter and

Brentwood Facility Manager Timothy C. Haney repeatedly

lied tu and falsely assured Brentwood facility employees that

the facility was safe when, in fact, they knew it was not safe.

/d. Respondents Potter and Haney also repeatedly gave

intentionally false and/or misleading information to

Petitioners and other Brentwood employees, falsely assuring

them that they had not been exposed to the deadly bacteria

when, in fact, Respondents knew that the facility was

contaminated with anthrax from the Daschle letter. /d.

Worse yet, Respondents repeatedly threatened, coerced, and

intimidated Petitioners and other Brentwood employees not

to make inquiries about the Daschle letter, the safety of the

facility, or their own safety. /d.

For instance:

* On Tuesday, October 16, 2001, Postal managers,

acting at the direction of Respondents, intentionally

instructed Brentwood facility supervisors, via the USPS

e-mail system, to provide knowingly false safety bnetings

to Brentwood facility employees, falsely representing to

the employees that there was no evidence any anthrax

contaminated letter or mail had come through the facility

at any time. JA 24. Petitioner Alston, a Brentwood

facility supervisor, received a copy of this false safety

briefing with instructions to give the false briefing to

employees under his supervision. /d. Alston refused to

give the false safety briefing, which instead was given by

another supervisor. /d. The briefing was false, as

Respondents well knew, because all mail destined for

U.S. Government offices in the District of Columbia,

12

including mail destined for Senator Daschle’s Office, was

Processed only at the Brentwood facility. Jd

* On Thursday, October 18, 2001, during a press

conference at The White House, Respondent Potter falsely

represented that the mail was Safe. JA 26. Petitioners

Briscoe and Gagnon saw news reports about Potter's press

conference on television, and Petitioner Alston heard

News reports about Potter's press conference on the radio.

dd.

* On Thursday, October 18, 2001, Respondent Potter

held a press conference in an unused section of the

Brentwood facility. JA 26, 27. Employees were

discouraged trom asking questions at. or even attending,

the press conference. Id. Some employees were told that

they could not attend the press conference while “on the

clock.” dd. C Onsequently, a large number of employees,

including Petitioner Worrell, “clocked out” In Order to

attend the press conference. fd. Other employees, like

Petitioner Butler, were told “not to go anywhere near” the

Press conference. Jd. During the press conference,

Respondent Potter falsely represented to the employees

and members of the news Media in attendance that the

Brentwood facility was safe. /d. at 27. Petitioner Briscoe

saw News reports about Potter's Statements on television.

and Petitioner Alston heard news reports about Potter's

Statements on the radio. Jd

Petitioner Gagnon was one of the many employees

Who “clocked out” on his lunch break in order to attend

Respondent Potter's Press conference. JA 27 During a

“question and answer” period, Gagnon raised his hand to

13

try to ask a question. /d. As soon as Gagnon raised his

hand, however, someone grabbed his arm from behind

and forced it down. /d. Gagnon looked back, and the

man who grabbed his arm said that “you can’t ask any

questions” and flashed his Postal inspector’s Badge. /d.

Gagnon responded that he was not doing anything illegal

and pulled his arm away from the Postal Inspector's

grasp. /d. The Postal Inspector then threatened Gagnon

that, if he tried to ask any questions again, he would be

arrested. /d. Gagnon then left the press conference and

returned to work. /d. Upon his return to work, Gagnon’s

supervisor was waiting for him. /d. at 27, 28. The

supervisor informed Gagnon that she had been instructed

by Respondent Haney to initiate proceedings to fire him

for going to the press conference and trying to ask

questions. /d. News of Gagnon’s attempt to ask a

question at Respondent Potter's press conference and

subsequent exchange with the Postal Inspector, as well as

his threatened firing, was widely discussed among many

employees at the Brentwood facility. /d. at 28. The

incident caused many Brentwood facility employees to

feel intimidated and made them fearful of asking

questions of their supervisors about the safety of the

facility. /d.

* On October 18,2001, Respondent Haney, acting at the

direction of Respondents Potter and/or Day, falsely

represented to Brentwood Postal employees at a series of

“floor” meetings that both the building and the mat! were

safe and that the employees should continue to work. JA

29. Haney falsely told the employees that there was no

anthrax in the building and nobody was going to die trom

it, even though, as his own notes show, he knew URS had

14

found anthrax contamination at the Brentwood facility.

fd. Haney also told the employees that the CDC would be

conducting tests throughout the building in “moonsuits,”

but they should not be alarmed because the facility was

sate. Jd. Brentwood facility employee Joseph Curseen,

Jr., who later died of inhalation anthrax, was in attendance

at one of these meetings. /d.

* During one of these “floor” meetings on Thursday,

October 18, 2001, Petitioner Worrell asked Respondent

Haney about the Possible dangers of the ever-present

clouds of dust that were kicked up into the air by the

mechanized equipment, pressurized air hoses that cleaned

the equipment, Power oxen, forklift trucks, and other

power equipment. Jd. at 29. 30. Haney would not answer

Worrell’s question. /d Haney falsely represented to

Worrell and the other employees in attendance that, as

soon as he had any anthrax test results, he would inform

the employees, but that the building and the mail were

safe. /d He also stated that the USPS could not afford to

have employees sitting at home on administrative leave

while tests were being performed. /d Haney further told

the Brentwood Postal employees that it would cost the

USPS $500,000 a day if the Brentwood facility were shut

down. /d Haney even threatened the employees that, if

they did not report for work, they would lose their jobs.

Id.

* During another “floor” meeting on Thursday, October

18, 2001, Brentwood facility employee Kelvin Sanker

asked Haney why the machines and building were being

tested by biological hazard experts in “moonsuits,” but

employees were not being tested or evacuated. /d at 30,

1S

31. Haney refused to answer Sanker’s quest: >n and

threatened to expel Sanker from the building. /d.

* One supervisor told letter carrier Vernon Porter, who

reported to the Government mail and Express mail

sections of the Brentwood facility everyday he worked,

including each day between the discovery of the Daschle

letter on Monday, October 15, 2001 and Friday, October

19, 2001, that there was “nothing to worry about” and that

all employees should come to work and do their jobs. JA

31. When Porter asked other supervisors about persons

wearing “moonsuits” in the facility, he was told to mind

his own business and get back to work. /d.

* On October 19, 2001, Respondent Potter falsely

represented on a USPS - TV news program entitled

“Keeping Our Focus” and in an accompanying notice

posted on all employee bulletin boards at the Brentwood

facility that early reports of testing at the Brentwood

facility showed no anthrax contamination when, in fact,

he knew anthrax contamination at the Brentwood facility

had been confirmed. JA 33. “We are talking with

employees and sharing information as quickly as it

becomes available,” Potter also falsely claimed. /d.

* OnOctober 19,2001, Respondent Haney, acting at the

direction of Respondents Potter and/or Day, held another

series of “floor” meetings with Brentwood employees,

including Petitioners Butler and Worrell, at which Haney

again falsely represented that the Brentwood facility was

safe and that he was doing everything he could to keep the

employees safe. App. B at 26a, 35a.

16

* On Saturday, October 20, 2001, Respondent Haney,

acting at the direction of Respondents Potter and/or Day,

held another series of “floor” meetings with Brentwood

facility employees, including Petitioners Briscoe, Butler,

and Worrell, at which Haney again falsely represented

that the facility was safe and no evidence of anthrax

spores had been found. JA 26, 36. Haney falsely stated:

“We have made it this far and we

test results for anthrax.” /d He mentioned that one

Brentwood facility employee had been hospitalized and

was being examined for Possible inhalation anthrax. /d.

Haney falsely Stated, however, that the employee's tests

had been Negative so far and that everything was Okay.

Id. He then expressed concern that the mail volume being

Processed in the facility was dropping, as were Processing

goals. /d. Haney told the employees. that they needed to

focus on Processing the mail and Meeting their Processing

goals. Jd. He also falsely promised that all news would

be shared with the employees. /d

do not have any positive

* On Monday, October 22, 2001, Brentwood facility

Supervisor of Maintenance Operations Tihoe arrived at

the Brentwood facility Parking lot and, while walking

through the gate to the Brentwood facility, spoke with

Mail Processing Manager Greg Hall, JA 39,40. Halltold

Tihoe that senior Brentwood managers, acting at the

direction of Respondents Potter, Day, Haney, and

Unknown Officials Nos. 1-10, had told him and other

mid-level managers tw falsely represent to the floor

Supervisors and employees that the Brentwood facility

Was not contaminated with anthrax. /d.

17

Had Respondents Potter and Haney not coerced,

intimidated, and threatened Petitioners and made false and/or

misleading statements to Petitioners that the Brentwood

facility was safe and that there was no evidence of anthrax

contamination at the facility, among other false and/or

misleading statements, Petitioners would have timely invoked

the remedies available to them to require a safe working

environment under their collective bargaining agreements and

the OSHA, as well as USPS emergency response procedures.”

Id. at 40. At all relevant times, Petitioners relied on the

knowingly false and/or misleading statements made by

Respondents Potter and Haney. /d. At no time relevant to the

acts and omissions alleged herein did Petitioners understand

these statements to be false. /d

4

Each Petitioner brings this action in his or her individual capacity

and also as a representative of the Brentwood employees represented by

the union of which the individual Petitioner is a member, JA 10-12) At

all relevant times to this action, the USPS had collective bargaming

agreements in effect with cach of these unions, except National

Association of Postal Supervisors. that covered all them respective

members and provided, inter alia, that. (1) USPS management was

required to provide sufe working conditions in all USPS facilities and to

develop a sate work force: (2) USPS management was required to follow

safety procedures and correct unsafe conditions, and (3) specific remedies

in the form of grievance and arbitration procedures, were available for

union members who believed they were bemg required to work under

unsafe conditions. /d 15-17. In addition, at all relevant times, Petitioners

were enutled to the full protections and remedies of the OSHA, among

other applicable laws and regulations. including the reght to a sate working

covironment, the mght to aecline to perform work for health and

satety-related reasons, the right to request health and safety inspections,

and the mght to file complaints about unhealthy and unsate working

conditions. /d

1X

At 4:39 a.m. on Sunday, October 21, 2001, Brentwood

employee Thomas Morris, Jr. called 911 complaining of

symptoms of inhalation anthrax. JA 37. Mormis died of

inhalation anthrax several hours later. /d.

At approximately 11:00 a.m. on Sunday, October 21,

2001, CDC Representative Jim Haslet told Respondent Haney

that the Brentwood facility must be closed, /d After his

conversation with Haslet, Haney told all employees to gather

in the cafeteria at 12:00 p.m. for a meeting. /d. At the

meeting, Haney told the employees in attendance, including

Petitioner Worrell, that a postal worker was in the hospital

with a confirmed diagnosis of anthrax and that the facility was

being closed as a “precautionary measure.” /d The

employees in attendance were directed to yo to Judiciary

Square tor medical evaluation and treatment. /d

Not all employees were allowed to attend the meeting in

the cafeteria, Jd at 37. 3x. Approximately eight to ten

employees, including Petitioner Butler. were paged on the

public address system and instructed to report to the Manager

of Distributions Operations (hereinafter “MDO") office. Jd

When Butler reported to the MDO office, he was told to take

a seat in the conference room, which he did. /d. After the

other employees arrived, Supervisory Manager of Distribution

Operations (hereinafter “SMDO”) Talley entered the

conference room and addressed the group of employees, /d

Acting at the direction of Respondent Haney, SMDO Talley

stated that she needed her “best workers” to help her round up

all of the mail at the Brentwood facility and move it to the

loading dock/plattorm area so that it could be loaded onto

trucks. dd. The employees asked SMDO Talley what was

going on in the cafeteria with the other employees. /d

19

SMDO Talley responded by stating that she did not know for

sure, but that she thought the facility was going to be closed

as a “precautionary measure.” /d. She repeated that she,

personally, did not have any firm information that the

building was contaminated, but that she needed the help of

her “best workers” to help get every piece of mail in the

building ready to be moved out as soon as possible. /d.

Based on Respondents’ previous false assurances that the

facility was not contaminated with anthrax, the employees,

including Butler, did as SMDO Talley directed. /d. at 38. At

no point during the meeting were any of the employees

notified that the facility had been contaminated with anthrax.

Id.

Petitioner Butler continued to work untl 5:00 p.m.,

gathering mail throughout the building and organizing it into

flat trays, hampers, and other equipment, and moving It to a

platform so that it could be loaded on trucks for shipment. /d.

Respondents never provided Butler with any protective gear.

Id. After finishing his work, Butler went to his car in the

parking lot. /d. As Butler drove towards the exit of the

parking lot, he saw a manager handing out flyers to the next

tour of employees arriving for their shift. /d. Butler pulled

over his car and asked the manager fora flyer. /d. It was only

upon reading the flyer that Butler learned that the Brentwood

facility was being closed due to anthrax contamination and

that all postal employees were being instructed to report to

Judiciary Square for medical evaluation and treatment. Id.

At approximately 7:00 p.m. on Sunday, October 21, 2001,

the Brentwood facility was finally closed, ten days after the

Daschle letter had passed through the facility, and at least four

days after Respondents knew the facility had been

20

contaminated. /d at 39 Att

lawsuit, the Brentwood facility remained

anthrax contamination. /d¢ at 4].

he time of the filing of this

closed due to

On the morning of Monday. October

facility employee Joseph Curseen went

flu-like symptoms. /d. at 40. That evening, Curseen died of

inhalation anthrax. /d That same day, two more Brentwood

facility employees were hospitalized and nine other

employees became ill with symptoms of inhalation anthrax.

/d. Since the anthrax contamination at the Brentwood facility

in October 2001, many Brentwood employees, including

Petitioners Briscoe. Butler, Worrell, Gagnon, and Alston.

have experienced and continue to experience similar

symptoms, in addition to substantial emotional distress, pain,

suffering, and anxiety Caused by these events. /d

22. 2001, Brentwood

to the hospital with

REASONS FOR GRANTING THE WRIT

A WRIT OF CERTIORARI SHOULD ISSUE TO

RESOLVE THIS IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED B) THIS COURT

This Court has

federal law raised b

Procedural due pro

Where it is

not ruled on the important question of

y Petitioners” lawsuit. namely, whether a

cess, Bivens-type action is maintainable

alleged that the defendant interfered with or

otherwise rendered unavailable substantive.

Statutory or

contractual remedies that the plainuff had a righ

t to pursue

In Bush. Lucas,462 U.S.

to allow a substantive due proc

367 (1983), this Count declined

ess, Bivens-type remedy forthe

21

denial of a statutory right. In Bush, the petitioner made

statements to the press regarding his government employer.

As a result of the statements the petitioner was demoted. In

addition to his administrative appeal, the petitioner brought a

Bivens-type claim against his employer in a court of law,

alleging that the retaliatory demotion violated his First

Amendment rights. The district court and the United States

Court of Appeals for the Fifth Circuit held that the Civil

Service Commission regulations barred the petitioner's claim

because he had remedies available to him under that statutory

scheme.

The U.S. Supreme Court affirmed this holding. The Court

looked to the Civil Service Commission regulations and noted

that “[fjederal civil servants are now protected by an

elaborate, comprehensive scheme that encompasses

substantive provisions forbidding arbitrary action by

supervisors and procedures—administrative and judicial—by

which improper action may be redressed. They apply to a

multitude of personnel decisions that are made daily by

federal agencies.” Bush, 462 U.S. at 385. The Court then

found that the petitioner's First Amendment claim was “fully

cognizable within the system.” /d. at 386. As a result, the

Court held, “[bjecause such claims arise out of an

employment relationship that is governed by comprehensive

procedural and substantive provisions giving meaningful

remedies against the United States, we conclude that it would

be inappropriate for us to supplement that regulatory scheme

with a new judicial remedy.” /d. at 368.

in Schweiker v. Chilicky. 487 U.S. 412 (1988), this Court

again declined to allow a substantive due process, Bivens-type

remedy for the denial of a statutory nght. In Schweiker, the

Y

plaintiffs’ social security disability benefits were improperly

terminated. Although the plaintiffs’ disability benefits were

eventually restored, the plaintiffs brought a substantive due

process Bivens-type action against three policymakers who

the plaintiffs alleged were responsible for the illegal policies

that resulted in their benefits being terminated in the first

place. The U.S. Supreme Court found that C ongress had

already enacted elaborate administrative and Judicial

remedies, including review of constitutional claims, for those

who claimed that they were wrongfully denied social security

disability benefits. /d. at 424-26. As a result, the High Court

refused to create a new damages remedy. /d. at 429.

In neither Bush nor Schweiker, however, did the Court

answer the question of whether a procedural due process

Bivens-type action is maintainable where a plaintiff has

alleged that the defendant interfered with or otherwise

rendered unavailable the substantive, statutory or contractual

remedies that the plaintiff had a right to pursue. Such is the

question presented in the instant case.”

Petitioners’ Procedural due process Bivens-type claims-—are

on Respondents’ rendering effectively unavailable the remedies

that Petitioners were entitled to

premised

Pursue and would have pursued absent

Respondents’ actionable conduct Specifically. had Respondents not

coerced. intimidated. and threatened Petitioners

about the Daschle letter. the safety of the facility, «

had Respondents not made _ false

Petitioners that the Brentwood factiit

not tO make inquiries

6 their own safety and

and or misleading statements to

y Was sate and that there was nu

evidence of anthrax Contamination atthe facility, among oth

ef false and or

Misleading statements. Petitioners would have t

imely invoked. during the

critical four davs that Respondents knew the Brentwood facility was

Contaminated with anthrax and needlessly ke

pt the facility open. the

remedies available to them to require

4 safe working environment under

thetr collective bargaining agreements and the OSHA, as well as USPS

23

Although the U.S. Supreme Court has not addressed the

precise question presented in the instant case, several U.S.

district and appellate courts have addressed the question and

answered in the affirmative. For instance, in Grichenko v.

USPS, 524 F.Supp. 672, 676-78 (E.D.N.Y. 1981), aff'd

without opinion, 751 F.2d 368 (2™ Cir. 1984), a USPS

employee brought a procedural due process, Bivens-type

action against several USPS officials. The plaintiff alleged

that the defendanis violated his right to due process by failing

to timely process his injury claim under the Federal

Employees Compensation Act (hereinafter “FECA™). 5

U.S.C. § 8101, et seg. The defendants moved to dismiss the

plaintiff's Bivens claim, arguing that the claim was preempted

by FECA.

The U.S. Court of Appeals for the Second Circuit

affirmed the district court’s ruling that the plainuffs

procedural due process claim was not preempted by FECA

because his procedural due process claim was separate trom

his substantive injury claim and was not dependent upon the

outcome of the Department of Labor's decision on his

substantive claim.” In so holding, the court noted: “It is the

defendants’ interferences, not the Department of Labor

decision which lies at the heart of this claim.” /d. at 677.

Thus, whether Grichenko could have prevailed on his

substantive claim, had it been timely processed, was irrelevant

emergency response procedures

r Further confirming that a plainuff’s procedural due process claim

is independent of his substantive snyury claim, the court stated that “a

plaintiff should not encounter much difficulty in demonstrating that an

injury, including mental distress, resulted not trom the substantive loss, but

from the deprivation of procedural duc process itself.” Jd. at 678

24

to his right to maintain his

Procedural due process cause of

action. /d.

Importantly, the court recognized that FECA “[gave]

Grichenko a legitimate xpectation that where he believes he

has sustained a compensable injury, his claim will be properly

and timely processed under the Act.” /d. at 677. The court

also found that a FECA Claim did “not Provide an available,

let alone substitute, remedy for the constitutional violation

asserted,” i.¢., the interference with the plaintiff's remedies.

/d. Thus, the court did “not find

| i inappropnateness of

a Bivens type action.” /d¢ at 677 (quoting Carlson y. Green,

446 U.S. 14.19 (1980)). The court also found that a Biveny-

type remedy was particularly effective tor a procedural due

Process claim because it would serve not only to compensate

the piaintiff but also to deter similar conduct by the

defendants in the future. Id. at 677 (quoting Carlson, 446

U.S. at 21 (“Bivens remedy, in addition to compensating

victims, serves a deterrent Purpose.”’)).

Similarly, in Bishop v. Tice, 622 F.2d 349 (8° Cir. 1980),

a tederal employee plaintiffbrou ght a procedural due process,

Bivens-type action against several government officials. The

plaintiff alieged that the defendants had blocked his resort to

certain civil service remedies that he was entitled to Pursue

When the defendants failed to provide him with accurate

information and made continuing threats that coerced him

Into not Pursuing his administrative remedies. The court

found that the plaintiffs procedural due process claim was

not preempted by the comprehensive civil service remedies

enacted by Congress because the defendants’ interterence

with the plaintiff s administrative remedies rendered those

25

remedies “of little avail” to the plaintiff. /d. at 357. The

Court stated further that, if the plainutf could “prove

defendants interfered with his right to procedural due process,

he is entitled to the damages that actually resulted, which

would include, for example, mental and emotional distress.”

Id.

in Rauccio v. Frank, 750 F. Supp. 566 (D. Conn. 1990),

a case strikingly similar to the instant case, a USPS employee

brought a procedural due process Bivens-type action against

several USPS officials. The plaintiff alleged that the

defendants had blocked his resort to certain civil service

remedies that he was entitled to pursue by failing to provide

him with relevant information and by their continuing threats,

coercion, intimidation and deceit. The defendants moved to

dismiss the plaintiff's Bivens-type claim, arguing that the

claim was preempted by the Civil Service Reform Act

(hereinafter “CSRA") of 1978, 5 U.S.C. § 2301, ef seq.

Similar to the holdings in Grichenko and Bishop, the court

in Rauccio held that the plaintiff's procedural due process

claim was not preempted by the CSRA. The court

emphasized that a Bivens-type remedy was proper where it is

alleged that the defendants had interfered with, foreclose:

and/or rendered effectively unavailable the plaintiff's resort

to the remedies that he was entitled to pursue. In so holding.

the court correctly distinguished Bush, 462 U.S. 367, and

Schweiker, 487 U.S. 412, stating in pertinent part:

However. as plaintiff points out, Bush v. Lucas and its

progeny are premised on the existence and av ailability

of an adequate system of procedural safeguards

through which a plaintiff may seek relief. In the

26

instant case, the plaintiffs due process claim is

premised on the defendants’ interference with the

Procedural mechanism which C ongress has created for

the protection of employees. It is in this critical

respect that Bush v. Lucas and the related cases cited

by defendants are distinguishable. In each, the

availability of an adequate procedural remedy was

fatal to plaintiff's Bivens claims. In this case,

assuming plaintiff's factual allegations to be true,

defendants have rendered effectively unavailable any

procedural safeguard established by Congress. Thus,

Bush and its progeny are inapplicable to the facts of

this case.

Id. Asa result, the court properly rejected the defendants’

preemption argument and refused to dismiss the plaintiff's

Bivens-type claim

CONCLUSION

The Court should take this opportunity to declare that a

procedural due process, Bivens-type remedy is maintainable

where it is alleged that the defendant interfered with or

otherwise rendered unavailable the Substantive statutory or

contractual remedies that the plaintiff had a right to pursue.

Petitioners respectfully request that a writ of certiorari be

issued to resolve this important question of federal Jaw that

has not been, but should be, settled by this Court.

tv

7

Respectfully submitted,

Paul J. Orfanedes*

Dale L. Wilcox

JUDICIAL WATCH, INC.

501 School Street, $.W.

Suite 500

Washington, DC 20024

(202) 646-5172

Counsel for Petitioner

* Denotes Counsel of Record

APPENDIX

APPENDIX A - NOVEMBER 7, 2005

APPELLATE COURT OPINION

UNITED STATES COURT Of APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DENA BRISCOE, et al.,

Plaintiffs- Appellants,

vu

No. 04-5447

JOHN E. POTTER, United States

Postmaster General, et al..

Defendants-Appellees.

ee eee eee eee

On Appeal from the United States District Court for the

District of Columbia. Rosemary M. Collyer, United

States District Judge. (No. 03cv02084).

2005 U.S. App. LEXIS 24040

October 27, 2005, Argued

November 7, 2005, Decided

DISPOSITION:

Affirmed.

COUNSEL:

ARGUED: Dale L. Wilcox, JUDICIAL WATCH, INC.,

Washington, D.C... for Appellants.

Mark B. Stern, UNITED STATES DEPARTMENT OF

JUSTICE, Washingion, D.C. for Appellees.

ON BRIEF: Paul J. Orfanedes, Dale L. Wilcox, JUDICIAL

WATCH, INC., Washington, D.C., for Appellants.

Eileen J. O'Connor. Assistant Attorney General. Thomas

M. DiBiagio, United States Attomey, Jonathan S. Cohen,

Tax Division, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C. for Appellees.

JUDGES: Before SENTELLE, 7 ATEL, and GARLAND,

Circuit Judges.

OPINION BY: No Opinion Given

JUDGMENT:

This appeal was considered on the record from the

United States District Court for the District of Columbia,

and on the briefs of the partics and oral arguments by

counsel. The court has determined that the issues presented

vec4sion no need for an opinion. See D.C. Cir, Rule S6(b).

3a

Plaintiffs claim various officials at the United States Postal

Service (USPS) violated their rights under both the

procedural and "substantive" components of the Fifth

Amendment's Due Process Clause. Specifically, the

complaint alleges that the defendants intentionally

misrepresented the safety of USPS's Brentwood Processing

and Distribution Center in Washington, D.C., where the

plaintiffs were working when they were exposed to anthrax

in October 2001. Relying on Bivens v. Six Unknown Named

Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L.

Ed. 2d 619 (1971), the plaintiffs claim the USPS officials

should be personally liable for money damages. The

District Court dismissed the complaint.

We conclude the plaintiffs’ Bivens claims are prec\uded by

an “elaborate, comprehensive scheme" that Congress has

provided to govern employees' injuries in federal

workplaces. Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404,

76 L. Ed. 2d 648 (1983); see also Schweiker v. Chilicky,

487 U.S. 412, 424-25, 108 §. Ct. 2460, 101 L. Ed. 2d 370

(1/988). Under the Federal Employees Compensation Act

(FECA), the government must "pay compensation . . . for

the disability or death of an employee resulting from

personal injury sustained while in the performance of his

duty.” 5 U.S.C. § &8102(a). FECA provides the exclusive

remedy for Richmond's injuries. Sve Johansen v. United

States, 343 U.S. 427, 439-40, 72 §. C1. 849, 96 L. Ed. 1051

(1952) (FECA is the “exclusive right to Government

employees for compensation, in any form, from the United

States... . [FECA's] comprehensive plan for waiver of

sovereign immunity, in the absence of specific exceptions.

would naturally be regarded as exclusive.”) (emphasis

added). It 1s therefore

ORDERED AND ADJUDGED that the District ¢ Ourt's

dismissal of the complaint is affirmed

Pursuant to Rule 36 of this Court. this disposition will not

be published. The Clerk is directed to withhold issuance of

the mandate herein until seven days after the disposition of

any umely petition for rehearing or petition tor rehearing en

hunc. See FED. R. APP. P. 41 (by. D¢ CIR. R. 4]

Per Curiam

Sa

APPENDIX B - NOVEMBER 19, 2004

DISTRICT COURT MEMORANDUM

OPINION AND ORDER

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

DENA BRISCOE. et al..

Plaintfts.

)

)

)

)

}

)

)

JOHN E. POTTER, United States )

Postmaster General. ct al )

Defendants )

)

$5 F. Supp. 2d 30; 2004 U.S. Dist. LEXIS 25101

November 19, 2004, Decided

November 19, 2004, Filed

COUNSEL:

For DENA BRISCOE. JEFFREY BUTLER, TERRELI

WORRELL. VINCENT D. GAGNON, VERNON

PORTER. NOSSIE L. ALSTON, plaintiffs: Paul J

Orfanedes. Dale L. Wilcox. JUDICIAL WATCH. INC.

Washington, D.C

No. O03cv02084

6a

For JOHN E. POTTER. THOMAS DAY, TIMOTHY ay

HANEY. defendants: Glenn Stewart Greene, R. Joseph

Sher, United States Department of Justice. Washington,

D.C...

JUDGES: Rosemary M. Collyer, United States

District Judge.

OPINION BY: Rosemary M. Collyer

OPINION:

MEMORANDUM OPINION

The entire country remembers the anxiety that ensued

following public revelation that a letter containing anthrax

had been delivered to Senator Tom Daschie's Office on

October 15, 2001. What was not immediately appreciated

was that the letter to Senator Daschle exposed some postal

Workers to its deadly contents when it was processed

through the United States Postal Service Brentwood

Processing and Distribution Center ("Brentwood") in

Washington, D.C. Other Brentwood employees now sue

several high-ranking officials of the United States Postal

Service ("USPS") in their individual capacities n|{ -- John

E. Potter, Postmaster General; Thomas Day, Vice President

ot Engineering: and Timothy C. Haney, Senior Plant

Manger -- for allegedly Providing false and/or misleading

information, and failing to provide accurate information,

about the safety of the facility after they allegedly knew it

Was contaminated with anthrax.

n! Plaintiffs also sue USPS Unknown Officials Nos.

1-10.

Plaintiffs assert that USPS officials deprived them and

other Brentwood workers of their rights to procedural and

substantive due process under the Fifth Amendment to the

United States Constitution, giving rise to personal liability.

2 Taken together, the first three counts of the complaint

allege that Defendants’ conduct prevented Plaintiffs from

invoking protections and remedies under their collective

bargaining agreements, the Occupational Safety and Health

Act of 1970, 29 U.S.C. $ 654 et seq., and USPS emergency

procedures. The fourth count alleges that Defendants

infringed on Plaintiffs’ "substantive due process liberty

interest in a safe working environment free from needless

danger[.]" Compl. P 127. Defendants move to dismiss the

complaint, arguing that the Federal Employees’

Compensation Act ("FECA"), § U.S.C. § 8107 et seq., is

the exclusive remedy available to federal employees injured

in the workplace and that each defendant is protected by

qualified immunity from suit. Plaintiffs oppose this motion

2 Each plaintiff brings this action in his or her

individual capacity and also claims to be a

representative of the Brentwood employces

represented by the union of which the :ndividual

plaintiff is a member. Plaintiffs Dena Briscoe and

Jeffrey Butler are members of the American Postal

Workers Union (APWU); Plaintiffs Terrell Worrell

and Vincent D. Gagnon are members of the National

Postal Mail Handlers Union (NPMHU); Plaintiff

Vernon Porter, now deceased, was a member of the

National Association of Letter Carriers (NALC): and

Plaintiff Ossie L. Alston is a member of the National

Sa

Association of Postal Supervisors (NAPS). USPS has

collective bargaining agreements covering the

affected employees with each of these unions except

NAPS. Mr. Alston has not claimed that he was

deprived of any right under a collective bargaining

agreement.

BACKGROUND n3

n3 For purposes of a motion to dismiss, the facts

are taken from the allegations of the complaint and

are presumed to be true. Sve infra Part UL. 'n fairness,

it should be noted that Defendants "flatly deny that

they knew that the Brentwood facility was

contaminated by anthrax or knew that Brentwood

workers were at risk for anthrax.” Defs' Mot. to

Dismiss at 5 n.2 ("Dets.’ Mot.")

On Tuesday, October 9, 2001. an unknown person(s)

mailed from Trenton, New Jersey, an anthrax-laden letter

addressed to United States Senator Tom Daschle at his

office in Washington, D.C. n4 That letter arrived in a mail

bay at Breniwood on or about Thursday, October | 1, 20:

The mail bag was opened and its contents were separated

into the Delivery Bar Code Sorter ("DBCS") machine # 17:

the Daschle letter was fed manually into DBCS 4 17 at

approximately 7:10 a.m. The letter was then moved to the

Government Mail section jor delivery to the Hart Senate

Ottice Building, where Senator Daschle’s office is located.

Between approximately 8:00 a.m. and 9:40 a.m.. DBCS #

17 was opened in the normal course of Operations and a

large blower using compressed air was used to blow debris

9a

and dust from the conveyor belts and optical reading heads

of the machine.

n4 An anthrax-laden letter was also mailed to

Senator Patrick Leahy.

The Daschle letter was delivered to the Hart Senate

Office Building at approximately noon on Friday, October

12, 2001. It was opened in the Senator's personal office the

following Monday, October 15, 2001. The envelope

contained a fine white powder, which aroused suspicion.

The Capitol Police were called and they performed a field

test on the letter, which was ultimately found to contain

anthrax spores. Subsequently, the ventilation system in the

Hart Senate Office Building was shut down and the

building was closed; bundles of letters and packages were

quarantined and all mail delivery was suspended; staffers in

Senator Daschle's office were tested and given antibiotics.

and tours of the Capitol were canceled.

In contrast, the Brentwood facility continued to operate

as usual. During a regularly -- scheduled "floor" meeting on

Monday, October 15, 2001, Larry Littlejohn, a Brentwood

maintenance technician, asked his supervisor for a briefing

on anthrax and proper safety procedures. The supervisor

refused to provide the requested briefing, threatened Mr.

Littlejohn with a seven-day suspension, and had him

forcibly expelled from the building. Mr. Littleyohn was later

suspended for seven days for reasons that are not in the

record.

Other events also occurred on Monday, October 15,

2001. In Denver, Colorado, Postmaster General Potter

10a

delivered a speech during which he declared that the USPS

mail system was safe and USPS Vice President of

Engineering Day began coordinating the USPS response to

the Daschle letter. In addition, the Daschle letter was sent to

the United States Army Medical Research Institute for

Infectious Disease ( "Institute") for further testing, where

Dr. John Ezzell tested it. Dr. Ezzell characterized the

anthrax in the letter as “weaponized" because it was so

potent. Compl. P 48.

On Tuesday, October 16, 2001, all Senate employees

Were tested for anthrax exposure and £1Ven antibiotics as a

countermeasure. The tests apparently "showed that at least

twenty (20) Senate staffers had been exposed to anthrax,

including staffers on a floor below Senator Daschle's office

and at least one staffer who had not been at work when the

letter Was opened the previous day." /d. P 49. On that same

day, Major General John Parker. United States Army

Commanding General of the Institute, stated that the

anthrax spores in the Daschle letter constituted "a ve

potent form of anthrax that was clearly produced by

someone who knew what he was doing." /d. P 50 (internal

quotation marks omitted), The Federal Bureau of

Investigation ("FBI") reported to the USPS Inspection

Service which, in turn, notified Mr. Potter that the letter had

contained a "potent" strain of anthrax. /d. P §} Despite

these developments, USPS officials allegedly instructed

Brentwood supervisors "to provide false safety briefings .

representing to the employees that there was no evidence

any anthrax contaminated letter or mail had come throu gh

the facility at any time, including the letter that Was sent to

Senator Daschle's office." Jd. P 53. Plaintiff Ossie Alston. a

supervisor at Brentwood, asserts that he refused to deliver

this message and a fellow supervisor gave

ry

-

the briefing

lla

ia

On Wednesday, October 17, 2001, the United States

House of Representatives was shut down after it appeared

that thirty-one (31) staff members had tested positive for

exposure to anthrax..nS Anthrax spores were found in a

mail room at the Dirksen Senate Office Building, through

which the letter to Senator Daschle had passed betore being

sent on to the Hart Senate Office Building. USPS ordered

that the Brentwood facility be tested for anthrax spores on

that day, as well, although no one advised employees of any

possible danger.

n5 Plaintiffs report that the number was later

reduced to twenty-eight staffers.

On Thursday, October 18, 2001, all buildings on

Capitol Hill were closed and quarantined. USPS officials.

including Brentwood Plant Manager Timothy Haney and

USPS Senior Vice President Deborah Willhite, met that

morning with Senate representatives. According to noies

kept by Mr. Haney, he privately advised Ms. Willivite that

“the mail was leaking and that we were affected." /d. P 60.

During that same moming, USPS was notified that the

Centers for Disease Control ("CDC") had confirmed that a

letter carrier in New Jersey, where the Daschle letter had

been mailed, was suffering from cutaneous anthrax.

However, during a morning press conference at the White

House, Postmaster General Potter assured the public that

the mail was safe

In the early afternoon, the Postmaster General held a

second press conference in an unused section of

Brentwood, where he again told the news media and

2a

employees in attendance that Brentwoe i was safe. When

Plaintiff Vincent Gagnon attempted to ask a question at the

press conference, a Postal Inspector prevented him from

doing so. Mr. Gagnon -- who had clocked out to attend the

Press conference -- then retumed to work, where his

supervisor informed him that "she had been directed [by

Plant Manager Haney] to initiate Proceedings to fire him for

going to the press conference and trying to ask questions."

Id. P 67.

Plant Manager Haney held a series of "floor" meetings

with Brentwood employees on Thursday, October 14, 2001,

to inform them that there was no anthrax in the building.

He also mentioned that the CDC would be conducting tests

In protective gear (i.v., "moonsuits"). At one Meeting, ;

plainuff Terrell Worrell asked about the possible dangers of

dust in the air. Mr, Haney allegedly responded, "What do

you want us to do? Put bars on the windows, shut off the

fans and close the doors? If we do those things, we are

giving in to terrorism." Jd. P 74. Mr. Haney apparently told

employees that they would lose their jobs if they did not

report tor work, noting that "it would cost the USPS

S 500,000 a day if the Brentwood facility were shut down."

fd. At another "floor" meeting, Mr. Haney allegedly refused

lo answer questions about why the machines and the

building were being tested but employees were not.

Also on Thursday, October 18. 2002, USPS contacted

the Fairfax County (Virginia) HAZMAT Team to have an

On-site field test for anthrax Spores conducted at

Brentwood. Two HAZMAT Team members and inspectors

trom a pnvate consulting firm came to Brentwood in

moonsuits that afternoon, to begin testing for contamination

While postal employees continued their normal duties. At

I3a

least by sometime that evening, the test results apparently

showed that some of the Brentwood equipment " again...

tested hot." n6 /d. P 71. Testing continued until 2:30 a.m.

on October 19, 2001.

n6 USPS informed the Court at oral argument

that the Fairfax HAZMAT field tests showed no

anthrax contamination. While this fact is missing

from the complaint, it was not contested by the

plaintiffs. In any event, it does not affect the legal

analysis.

Notes from Plant Manager Haney indicate that, by |

a.m. on Friday, October 19, 2001, USPS officials had

determined that the DSBC # 17 had been used to sort the

mail that included the letter to Senator Daschle. The CDC

arrived at Brentwood that afternoon and began its analysis.

in the meantime, USPS officials asked the District of

Columbia Department of Health to place all Brentwood

employees on antibiotics for exposure to anthrax. On that

same day, Mr. Potter told a television interviewer that carly

reports of testing showed no anthrax contamination at

Brentwood; this same information was posted on all

employee bulletin boards at the Brentwood facility.

Similarly, Mr. Haney held another series of “floor”

meetings to assure employees that Brentwood was safe and

that he was doing everything in his power to protect them.

Despite Messrs. Potter's and Haney’s representations,

rumors began to circulate throughout Brentwood on Friday

afternoon that DBCS # 17 was contaminated with anthrax

spores. Several technicians assigned to work on DBCS # 17

asked plaintiff Ossie Alston if this were true. Mr. Alston

l4a

told the employees to Stay away from DBCS # 17 until he

could determine the facts. Two Supervisors then informed

Mr. Alston that they had not been told that DBC S#17 or

any other machine was contaminated. At approximately

4:15 p.m., however, a third supervisor told Mr. Alston that

DBCS # 17 was not to be used because it was

contaminated. This third supervisor allegedly advised Mr.

Alston that gloves and masks were available for employee

use, but that he should not pass them out to employees

unless they specifically asked for them. At some point on

Friday, October 19, 2001. DBCS # 17 was taken off-line.

At approximately | 1:30 p.m. on Friday, October 19,

2001, a Brentwood manager "insisted that [DCBS # 17)

was not contaminated and ordered [technicians] to clean

DCBS # 17 by blowing it out’ with Compressed air and to

get it on-line immediately." /d. P 89. Brentwood employees

reportedly heard Managers state that they needed DBCS #

17 on-line because another DBCS machine had broken

down. As a result, DBCS # 17 was re-activated.

Also on Friday, October 19, 2001, Brentwood employee

Leroy Richmond entered the emergency room at Fairfax

Inova Hospital with symptoms of inhalation anthrax.

Doctors determined from blood tests that Mr. Richmond

Was suffering from inhalation anthrax. Mr. Richmond's

wife called Plant Manager Haney and left a vorcemail

Message describing her husband's condition and telling Mr

Haney to shut down Brentwood.

During an early-morning meeting with the Mayor's

Office of Emergency Response on Saturday, October 20.

2001, it is alleged that USPS Officials -- including Mr.

Haney — discussed Mr Richmond's illness. and

“contirmation that the facility tested positive: and that more

1Sa

testing was on the way.” /d. P 93. Nonetheless, Mr. Haney

conducted “floor” meetings at Brentwood throughout the

day on Saturday and allegedly told employees, " We have

made it this far and we do not have any positive test results

for anthrax." /d. P 94. He promised that all news would be

shared with employees and urged them to concentrate on

processing the mail and meeting processing goals. Tests in

the Ford Office Building on Saturday turned up anthrax

where mail was processed for the U.S. House of

Representatives and where 1 was delivered from

Brentwood.

At 4:39 a.m. on Sunday, October 21, 2001, Brentwood

employee Thomas Morris, Jr., called 911 complaining of

anthrax-like symptoms. Mr. Morris died of inhalation

anthrax several hours later.

At approximately 11:00 a.m. on Sunday, a CDC

representative told Plant Manager Haney that Brentwood

needed to be closed. Mr. Haney then ordered all employees

to gather at noon in the cafeteria. where he told them that a

postal worker was in the hospital with a confirmed case of

anthrax exposure and that Brentwood was being closed as a

" precautionary measure." /d. P 99. The employees in

attendance were directed to go to Judiciary Square, a

District of Columbia Government facility, for medical

evaluation and treatment

Not all Brentwood employees were allowed to attend

the meeting in the cafeteria: a group of eight to ten workers

was directed to report to a manager's office. They were told

that they were needed to “round up all of the mail at

Brentwood and move it to the loading dock platform so that

it could be loaded onto trucks” and removed from the

building. /d. P 31. The manager said that she thought

16a

Brentwood would be closed as a "precautionary measure."

Plaintiff Jeffrey Butler was among this smail group of

employees. He worked until 5:00 p.m. and then, upon

driving out of the Parking lot, received a flyer that was

being distributed to incoming workers. Only upon receiving

the flyer did Mr. Butler learn that Brentwood was Closed

and the postal workers were being directed to Judiciary

Square for medical evaluation and treatment. Plaintiff

Vincent Gagnon continued to work inside Brentwood until

approximately 7:00 p.m. to turn off fans and air and dust-

handling equipment. Brentwood was finally closed at

approximately 7:00 p.m. on Sunday, October 2}. 2001,

although truckers continued to handle the mail that had

been in Brentwood and was being moved for Processing to

other facilities.

On Monday, October 22. 2001, Brentwood employee

Joseph Curseen went to the hospital with flu-like

symptoms. Mr. Curseen died that evening of inhalation

anthrax. Two other Brentwood employees were

hospitalized and nine became ill with anthrax-like

symptoms. On that day, one of the mid-level managers

allegedly told a supervisor that the mid-level managers had

been instructed by senior management to lie to the floor

supervisors and employees about Brentwood being

contaminated with anthrax.

When the complaint was filed in October of 2003,

Brentwood was still closed due to anthrax contamination. It

has now reopened

Il. USPS POLICIES AND AGREEMENTS ON

SAFETY AND HEALTH

Lach of the plaintiffs except Mr. Alston is represented

by 4 union that has Negotiated a collective bargaining

agreement with USPS setting terms and conditions of

employment. The then-effective agreements with APWU,

NPMHU, and NALC contained provisions that stated, "It 1s

the responsibility of management to provide safe working

conditions in all present and future installations and to

develop a safe working force." In addition, each agreement

contained a clause that stated:

The Employer [USPS}j and the Unior insist on

the observance of safe rules and safe procedures

by employees and insist on correction of unsafe

conditions. . . . The work place must be

maintained in a safe and sanitary condition,

including adequate occupational health and

environmental conditions. If an employee

believes he/she is being required to work under

unsafe conditions, sucn employees may: (a)

notify such employee's supervisor who. will

immediately investigate the condition and take

corrective action if necessary; (b) notify such

employee's steward, if available. who may

discuss the alleged unsafe condition with such

employee's supervisor; (c) file a grievance at

Step 2 of the grievance procedure within

fourteen (14) days of notifying such employee's

supervisor if no corrective action Is taken during

the employee's tour, (d) and/or make a written

report to the Union representative from the local

Safety and Health Committee who may discuss

the report with such employee's supervisor.

l¥a

id. PP 20, 23, 26. There was. and is, no collective bargaining

agreement between USPS and NAPS. a union of supervisors

USPS issued Management Instruction EL-860- 1999-3 in

October 1999. Titled. "Emergency Response to Mail

Allegedly Containing Anthrax," the Instruction outlmed the

hazards of exposure to anthrax. It directed that "it is

management's responsibility to minimize potential exposures

through quick isolation and evacuation until emergenc,

response and law enforcement can arrive and take control of

the incident.” /d. P 32. When anthrax exposure is Suspected,

USPS officials are directed by the Instruction to do the

following

1. Alert employees to Slay IN evacuation areas

and not leave postal Property so that they can

receive necessary information and medical

follow-up if appropriate

2. Invoke the emergency action plan, including

the following

4. Effecting mechanical

shutdowns (including air handling

equipment). isclation and

evacuation

b. Notifying the Inspection

Service

¢. Notity [sic] Postal Service

Aviation Mail Security Office

d. Notify [sic] postal and local

community emergency responders,

193

which may include the health department, fire

department, or local law enforcement

id. P 34. The complaint alleges that this Instruction was

ignored.

At all relevant times, employees at Brentwood were

entitled to the full protections and remedies of the federal

Occupational Safety and Health Act of 1970, n7 29 U.S.C. §

654, et seq., the right to decline to perform work for health

and safety-related reasons, the right to request health and

safety inspections, and the nght to file complaints about

unhealthy and unsafe work conditions. /d. P 29.

n7 The Occupational Safety and Health Act is

enforced by the Occupational Safety and Health

Administration within the U.S. Department of Labor

To avoid confusion, the former is referred to as the

OSH Act and the latter as OSHA.

iil. LEGAL STANDARDS

For the court to grant a motion to dismiss pursuant to Rulv

12(b)(6) of the Federal Rules of Civil Procedure, wt must

“appear[} beyond doubt that the plaintiff can prove no set of

facts in support of his claim that would entitle him to relief.”

Conley v. Gibson, 355 U_S. 41, 45-46, 2 L. Ed. 2d 80, 78S

Ct. 99 (19577. Kowal v. MCI Communications Corp., 305

U.S. App. D.C. 60, 16 F.3d 1271, 1276 (D.C. Cir. 1994). The

primary issue in resolving a motion to dismiss is not whether

ea

the plaintiff will ultimately prevail, but Whether he or she is

entitled to offer evidence to Support his or her claims. See

Scheuer v. Rhodes, 416 U.S 232, 236, 40 L. Ed. 2d 90, 945

Ct. 1683 (1984), overruled on other grounds, Davis y.

Scherer, 468 U.S. 183, 8? 1. Ed. 2d 139, 104 S. Ct. 3012

(1984). At this early stage of the Proceedings, the court must

accept as true all of the plaintiff's well-pled factual allegations

and draw all reasonable inferences in favor of the plaintiff.

See Alexis v. District of C olumbia, 44 F. Supp. 2d 331, 336-

37 (D.D.C. 1999). Although the court must construe the

complaint in the light most favorable to the plaintiff. it "need

not accept inferences drawn by the plaintiff if such inferences

are not supported by the facts set out in the complaint.”

Kowal, 16 F.3d at 1276. In addition, the court does not need

to accept the plaintiff's legal conclusions as true. See Alexis,

44 F. Supp.2d at 337

iV. ANALYSIS

Plaintiffs contend that USPS officials Suspected that

Brentwood was contaminated with anthrax on Wednesday,

October 17, 2001, and krew absolutely by Thursday or

Friday, October 18 or 19. that those suspicions were accurate.

Nonetheless, USPS officials are alleged to have consistently

assured Brentwood employees that the facility was safe and

encouraged them to continue processing the mail until just

before noon on Sunday, October 21 -- and even then some

Postal workers remained in the plant until Sunday evening

Femoving mail. Defendants are accused of y wlating Plaintiffs’

Fifth Amendment rights to due process by providing false

and/or misleading information and/or failing to provide

accurate information about the safety of the facility. This

Misintormation allegedly deprived Plaintiffs of remedies

allowed under their collective bargaining agreements.

Vin

~ iad

deprived Plaintitfs of the protections and remedies of the

OSH Act, and deprived Plaintiffs of the benefit of USPS

emergency response procedures, Count V of the Complaint

alleges that the misleading and/or false information also

deprived Plaintiffs of their "substantive due process liberty

interest in a safe work environment free from needless

danger.” Compl. P 127. Plaintiffs seek to take advantage of

Supreme Court precedent that has recognized suits for money

damages against individual federal officials for v iolations of

citizen constitutional rights. See Bivens v. Six Unknown FBI

Narcotics Agents, 403 U.S. 388, 390, 29 L. Ed. 24619, 91S

Ct. 1999 (1971) (Fourth Amendment violation “by a federal

agent acting under color of his authority gives mse to a cause

of action for damages consequent upon his unconstitutional

conduct.”). Defendants argue that Bivens does not apply to

this situation and that Plaintiffs have failed to allege a

cognizable substantive duc-process violation. In the

alternative. Defendants contend that each of them is protected

by qualified immunity from Plaintiffs’ procedural and

substantive due-process claims.

A. Plaintiffs’ Procedural Due Process Claims

Plaintiffs assert that Defendants knew or should have

known that Brentwood was contaminated with anthrax “but

knowingly provided them with false andor misleading

information about the safety of the facility and or failed to

provide them with accurate information about the

contamination . . . [as a result of which} Plaintiffs suffered

unnecessarily prolonged exposure to deadly anthrax spores ’

Pls.’ Motion to Strike P 1; Compl. PP 43-44. Plaintiffs also

allege that USPS officials “threatened, coerced and

intimidated the Brentwood workers into not making inquines

about the Daschle letter, the safety of the facility, or their own

22a

safety” in vielation of their due-process rights. Pls.’ Opp. to

Dets.’ Motion to Dismiss ("Pls.’ Opp.") at 8: Compl. P 44.

A private damages remedy for constitutional violations Dy

tederal officials was first recognized in Bivens, a case in

which the Supreme Court authorized money damages for the

victim of an unreasonable search and seizure in violation of

Fourth Amendment nights. See 403 U.S. at 390. The Court

based its new remedy on the courts’ inherent powers to

remedy constitutional violations, at least in the absence of

apparent alternative remedies and with "no special factors

counseling hesitation in the absence of affirmative action by

Congress.” /d. at 396. Subsequent decisions in Davis v.

Passman, 442 U.S. 228. 60 L Ed. 2d 846, 99S Ct, 2264

(1979), and Carlson y. Green, 446 U.S. 14, 64 L. Ed 2d 15,

100 S. Ct. 1468 (1980), allowed Bivens actions because "the

Court found that there were no special factors counseling

hesitation in the absence of affirmative action by Congress, '

no explicit statutory prohibition against the relicf sought.” and

"no exclusive Statutory alternative remedy." Schweiker v.

Chilicky, 487 U.S. 412, 421. 10] L. Ed. 2d 370, 108 S Cr

2460 (1988).

In the three decades since Curlson, the Supreme Court has

“consistently refused to extend Bivens liability to any new

CONIEXt OF New Category of defendants.” C orrectional Serys,

Corp. v. Malesko, $34 US 61, 68, ISI L. Ed. 2d 456, 1225

Ct S15 (2001). The Coun's "More recent decisions have

responded cautiously to suggestions that Bivens remedies be

extended into new contexts." Chilicky. 487 U.S. at 422. As

the law has dev eloped, the Court has relied on the two factors

identified in Biveny to Prevent its extension: the very

existence of "apparent alternative remedies" is itself'a "special

factor [] counseling hesitation.” See id ar 423 ("When the

%2.,

“Ja

design of a government program suggests that Congress has

provided what it considers adequate remedial mec hanisms for

constitutional violations that may occur in the course of its

administration, we have not created additional Bivens

remedies." ).

Perhaps most notably, the courts have been hesitant to

extend Bivens into the employer-employee relationship

between the federal government and its employees. See Bush

v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404

(1983). Bush made this point emphatically. The Court

concluded that the federal employment relationship is

"governed by comprehensive procedural and substantive

provisions giving meaningful remedies against the United

States." id. at 368, and therefore declined to recognize a

cause of action against a supervisor who had disciplined an

employee in violation of his First Amendment rights. Id. at

390: see also Spagnola v. Mathis, 273 U.S. App. D.C. 247,

859 F 2d 223. 230 (D.C. Cir. 1988) (per curiam) (en banc)

(finding the Civil Service Reform Act to be a "special factor”

precluding judicial creation of a Bivens remedy to challenge

a federal personnel action). “Although the plaintiff {in Bush]

had no opportunity to fully remedy the constitutional

violation, {the Supreme Court] held that the administrative

review mechanisms cratted by Congress provided meaningful

redress and thereby foreclosed the need to fashion a new,

judicially crafted cause of action.” Malesko, 534 U.S. at 68.

Thus, “so long as the plaintiff has an avenue for some redress,

bedrock principles of separations of powers foreclose []

judicial imposition of a new substantive liability.” /d. ai 69

(emphasis added).

There is no doubt that the plaintiffs in this matter have

access to a full range of administrative and contractual fora to

24a

remedy the harm that exposure to anthrax might have created.

First, of course, is the Federal Employees Compensation Act

("FECA"), 5 U.S.C. § 8101 et seq., which ts the federal sector

version of workers’ compensation. Like State workers’

compensation programs, FECA Provides the exclusive

remedy for claims against the employer -- the United States --

for workplace injuries and illnesses. See United States y.

Lorenzetti, 467 U.S. 167, 169. 81 L. Ed. 2d 134, 104 §. Ct.

2284 (1984) ("The United States’ hability for work-related

injuries under FECA is exclusive... ."); Turner v. Tenn.

Valley Auth., 859 F.2d 412. 413 (6th Cir. 1988) (noting that

the Supreme Court “has consistently held that FECA is the

exclusive remedy employed by federal agencies and

instrumentalities."); DiPippa v. United States, 687 F.2d 14,

17 (3d Cir. 1982) ("Where FECA applies, its remedy is_

exclusive and bars all other claims for compensation against

the Government."). Indeed, FECA itself is explicit that it

Offers the exclusive remedy for work-related Injuries in claims

against the United States or its instrumentalities. see 5 U.S.C.

& 8116(¢) (FECA "is exclusive and instead of all other

lability of the United States . __ to the employee . . . because

of the injury . .. ina civil action... oe. |

Second, Plaintiffs had, in October 2001, and still do have,

access to OSHA and its enforcement of workplace health and

safety through inspections and citations for dangerous

conditions. The OSH Act allows an inspector to close a

facility if significant danger exists; orders and citations issued

by OSHA are Subject to challenge and htigation with full

review in the courts of appeals and the Supreme Court as

needed. See 29 U SC § 660. Third, all but one of the named

plaintiffs have nghts under the various collective bargaining

agreements to which the postal worker unions are signatory;

every one of these contracts Provides for grievances over

25a

safety issues that can lead to independent and binding

arbitration. See Steelworkers v. American Mfg. Co.. 363 US

564. 4L. Ed. 2d 1403, 80S. Ct. 1343 (1900), Steelworkers v

Warrior Gulf Navigation Co., 363 U.S. 574, 4 L. Ed. 2d 1409,

80 S. Ct. 1347 (1960), Steelworkers v. Enterprise Wheel &

Car Corp., 363 U.S. 593, 4. L. Ed. 2d 1424, 80S. Ct. 1358

(1960). Because of these inter-related and complex schemes,

most particularly FECA, Defendants seek dismissal, arguing

that these alternative avenues counsel against recognizing a

Bivens remedy here.

Plaintiffs contend that Defendants have missed the point

entirely. They do not dispute the existence of FECA, OSHA,

or their collective bargaining agreements’

gnevance/arbitration processes. Instead, they claim that “they

are entitled to maintain a Bivens cause of action for money

damages because Defendants wholly prevented them from

pursuing the very remedies that do exist and that they were

entitled to pursue." Pls. Surreply at 4 (citing Grichenko v

United States Postal Service, 524 F. Supp. 672. 676-78

(E.D.N.Y. 1981), aff'd without opinion, 751 F.2d 368 (2d Cu

/984)). Plaintiffs argue that their procedural due-process

claim is separate from any claim for substantive injury that

they might file under FECA, the OSH Act, or the collective

bargaining agreements. Grichenko appears to support this

argument.

In Grichenko, a postal worker with an cye injury alleged

that his supervisors "intentionally acted to deprive him of the

opportunity to present a disability claim to the Department ot

Labor.” /d. at 677. The District Court for the Eastern District

of New York found deliberate failures on the part of Mr.

Grichenko’s supervisors to submit his FECA disability clam.

Such failures created a Bivens remedy because Mr. Grichenko

26a

Was Ume-barred from obtaining FECA benefits and because

FECA would not provide a “substitute remedy for the

constitutional violation asserted here." /d. Finding that these

facts “warrant[ed] the availability of a strong deterrent,” the

court denied a USPS motion to dismiss. /d. The Second

Circuit affirmed without opinion. See Grichenko vy. USPS,

7351 F.2d 368 (2d Cir 1984): see also Bishop v. Tice, 622

F.2d 349, 357 (8th Cir. J ¥80) (discharged federal employee

might have procedural due process claim, despite

administrative appeal procedures, "if. as he alleged,

defendants blocked his resort to [appeal Procedures] by failing

tO Cooperate with his inquiries and by continuing their threat

to lodge criminal charges. . . .").

Nonetheless. Grichenko is not the strong support

Plaintiffs wish it were. The law has passed it by. After Bishop

and Grichenko, the Supreme Court decided Schweiker vy.

Chilicky, 487 U.S. 4]2. 101 L. Ed. 2d 370, 108 § Ct. 2460

(1988), which Significantly limits the availability of a Bivens

suit when an alternative administrative Process exists.

Chilicky specifically held that the remedy available under the

administrative scheme need not be as broad as a lawsuit under

Bivens to bar the latter. Jd at 423. The D.C. Circuit applied

Chilicky in Spagnola y. Mathis, 273 U.S. App. D.C. 247, 854

F.2d 223 (D.C Cir. 1988) (per curiam) (en banc),

emphasizing that "the C, hilicky Court made clear that it is the

comprehensiveness of the statutory scheme involved, not the

adequacy’ of Specific remedies extended thereunder, that

counsels judicial abstention.” 45g F.2d at 227. Upon its re-

consideration of the same issues, the Eighth Circuit

abandoned its ori ginal analysis in Bishop v. Tice and adopted

the reasoning of Spagnola. See McIntosh v. Turner, 861 F.2d

524 (8th Cir, 1988) ( holding that there is no need for a Bivens

.7

-~/a

remedy in the area of federal employment covered by the

Civil Service Reform Act).

Plaintiffs argue that the Eighth Circuit did not abandon the

rule "that a Bivens cause of action may be brought if

government officials prevent a plaintiff from av ailing himself

of the remedies that do exist and which he is entitled to

pursue.” Pls.’ Surreply at 2-3. While this argument may be

literally correct, it fails to appreciate the applicability of the

Chilicky analysis here.

The Chilicky plaintiffs sought damages because their

Social Security disability benefits had been denied without

giving them access to full administrative and judicial review,

as required by the Social Security Act. See Chilicky, 487 U.S

at 417-20. The plaintiffs here attempt to distinguish Chilicky,

McIntosh and Spagnola because they “are not arguing that

they are entitled to maintain a Bivens Cause of action for

money damages because the remedies they were entitled to

pursue are inadequate (as in Mc/ntosh and Spagnola) or are

non-existent (as in schweiker [v. Chilicky])." Pis.’ Surreply at

3. Instead, Plaintiffs contend that "Defendants wholly

prevented them from pursuing the very remedies that do exist

and that they were entitled to pursue. .. . Defendants

prevented Plaintiffs trom seeking or availing themselves of

the remedies they were entitled to Pursue in a timely manner.”

id. at 4.

Despite Plaintiffs’ attempt to distinguish Chilicky.

McIntosh, and Spagnola from this case. Plainuffs’ allegations

raise the same kind of claim in a different fact pattern. As the

Supreme Court noted in Chilicky, Plaintiffs’ claim is one for

“consequential damages for hardships resulting from an

allegedly unconstitutional denial of a Statutory right."

Chilicky, 487 U.S. at 428. Notably, the defendants in Chilic Ay

Jka

had attirmatively misled the plainutf as to their handling of

his FECA claim. /d. at 4/8. The instant claim 1s essentially

the same: it seeks damages ansing from USPS officials

preventing Plaintifts from timely filing gnevances or calling

OSHA to terminate their alleged exposure to anthrax. Like the

Social Security claimants in Chilic ky, Plaintiffs had a certain

avenue to relief (whether a grievance through the

congressionally-sanctioned bargaining process or OSHA),

which Defendants allegedly blocked through affirmative

misinformation. Just as in Chilicky, this Coun cannot

“separate the harm resulting trom the alleged constitutional!

Violation from the harm resulting from the denial of a

statutory mght." Jd at 428. nx

nX It should be noted that even if this Coun were to

accept Plaintiffs’ legal argument that a Bivens remedy

'S appropriate where "govemment Officials prevent a

Plaintiff from ay ailing himself of the remedies that do

exist and which he is entitled to Pursue,” Pls.’ Surreply

at 2-3, the imposition of such a remedy would not be

4ppropnate based on the facts that Plainuffs have

alleged. Unlike the plainuffs in Grichenko and

Bishop, Plaintiffs here have failed su fficiently to allege

that their access to all of the remedies that they were

entitled to pursue were blocked by Defendants Nothing

in the complaint suggests that Plaintiffs were precluded

irom filing a grievance under their collective

bargaining agreements. or a charge with OSHA, or

utlizing any other Post-exposure remedies that were

available to them. See Stuto » Fleishman, 164 F 3d

820, 826 (2d Cir /999Mnoting that "Gri henko

involved conduct that forex losed the administrative

292

remedies of FECA, and therefore FECA's protections

were unavailable"emphasis added); Richmond \

Potter, et al., 2004 U.S. Dist. LEXIS 25374, *45, No

43 Civ. O18 (D.D.C. Sept. 30, 2004) (distinguishing

plaintiff postal worker's claims from the claims in

Grichenko because "FECA is still very much available

to Plaintiff as a remedy.”)

Caution in extending Bivens remedies to the federal

workforce is particularly necessary. The Supreme Court's

admonition trom Bush v. Lucas remains pertinent in this case

Congress ts in a far better position than a court to

evaluate the impact of a new species of lit gation

between federal employees on the efficiency of

the civil service. Not only has ( ongress

developed considerable familiarity with

balancing governmental effic tency and the nights

of em loyees, but it may also inform itself

through factfinding procedures such as hearings

that are not available to the courts

467 US. 412.101 L. Ed. 2d at 389 Special factors’ preclude

the creation of a Bivens remedy for civil service employees

and applicants who advance constitutional challenges to

federal personnel actions.” Spagnola, SS9 F.2d at 230. The

Court does not condone the alleged campaign of

misinformation from USPS to the postal employees at

Brentwood, but finds that the existence of numerous avenues

of relief for the underlying harm -- possible exposure to

anthrax -- counsels against Creating an individual Bivens

mW

va

remedy trom USPS managers. Plaintiffs’ procedural due-

process claim is barred by Chilicky and Spagnola. n9

n9 In the alternative, the Court finds that a

constitutional right to be free from interference with

procedural remedies. such as correct information to

(rigger 4 gnevance filing or a call to OSHA. was not

clearly established in the fall of 2001 so that the

defendants would be entitled to qualified immunity

were this cause of action to be recognized now. See

Butera v. District of Columbia, 344 US App. D.C

265, 235 F.3d 637, 652-54 (D.C Cir 2001)

The complaint allegations based on denial of procedural

due process will be dismissed. 10)

nl0 Whether plaintiffs can receive FECA benefits

or contractual damages for the harms they allege in this

lawsuit is unclear but not dispositive. "It is the

comprehensiveness of the Statutory scheme involved.

not the adequacy’ of specific remedies extended

thereunder, that counsels judicial abstention.’

Spagnola, 859 F.2d at 227. The case law is split on the

question of whether FECA Provides coverage for

injuries Caused by mental or emotional distress See

Gergick v. Austin. 764 F Supp. 580 (WD. Mo 1991)

femotional distress claim not covered by FECA),

: Sullivan v. US, 428 F Supp. 79 (D.C. Wis. 1977;

(same): but see Bennett v. Barnett, 2/0 F 3d 272 (Sth

Cir 2H), cert denied, 531 US 875. 148 L.Ed 2d

125. 121 S Cr T8l (2000) (postal employee's

emotional distress claims against postal officials were

3la

preempted by FECA; demial of claims by Secretary of

Labor for lack of proof indicated that FECA coverage

existed)

B. Plaintiffs’ Substantive Due Process Claim

Plaintiffs also assert that Defendants violated their

substantive nghts to due process “arising under the

Government/State Endangerment Theory of recovery.” Pis.'

Surreply at 5. Plaintiffs characterize this theory as one that

makes a government official "lable for third-party injury

wheve the government official affirmatively acts to create or

enhance the danger that ultumately results in the individual's

harm." /d.; see Butera v. District of Columbia., 344 US 4 pp

D.C. 265, 235 F.3d 637, 651 (D.C. Cir. 2001). in further

explanation, Plaintiffs assen

once Defendants affirmutively acted to provide

Plainuffs with information regarding the Safety

of the Brentwood facility and whether the facility

was contaminated with anthrax, they had a

constitutional duty, under the well-established

State/Government Endangerment Theory, not to

enhance or make Plaintiffs more vulnerable to

the danger of anthrax contamination (a) by lying

to them and misleading them with information

Defendants knew to be false. and (b) by

preventing Plaintufts from learning of their

exposure to anthrax and preventing them from

getting medical treatment

32a

Pls.’ Surreply at 6-7. Defendants respond that Plaintiffs’

argument must fail because a government employer's failure

to warn employees about known risks of harm does not

deprive such employees of liberty without due process of law

In the alternative, Defendants contend that all of the

defendants have qualified immunity from this claim.

The Supreme Court has defined and interpreted

substantive due process as the right of individuals to be

Protected from arbitrary government action See County of

Sacramento vy. Lewis, $23 US N33, 845, 140 L. Ed 2d 1043

118 S. Ct. 1708 (1998) However, “as a general matter. a

State's failure to protect an individual from private violence.

even im the face of a known danger, does not constitute a

violation of the Due Process Clause.” Butera, 235 F 3d at

647 (quoting DeShaney vy. innebago County Dep't of Sox

Servs... 4&9 US. 189. 197 103 L. Ed. 2d 249, 1098 Cr 99s

(1989)). The Supreme Court has intimated and several jower

courts have held that an exception to this general rule exists

‘ where the state creates a dangerous situation or renders

eizens more vulnerable to danger.” Jd. at 649 (quoting

Reed v. Gardner, Y86 F 2d 1122 1125 (7th Cir. 1993)y. see

DeShaney, 489 US. at 201. The D.C. Circuit adopted this

theory of "State Endangerment" in Butera -- the decision upon

Which Plaintiffs premise their substantive due-process clam

Butera volved the death of a citizen of the District of

Columbia during an undercover drug “buy.” Having advised

the police that some murder suspects were selling drugs at a

certain house, Mr. Butera approached the house from the

backyard to buy drugs. He never made it into the house

because he was accosted and stomped to death by three men

in the back yard According to the police plan, Mr. Butera was

to have exited the front door of the house within fifteen

33a

minutes. Although the police observing the front of the house

were anxious when he failed to appear, no one searched the

backyard. His body was discovered forty minutes later.

After reviewing these facts, the D.C. Circuit Court of

Appeals concluded that "an individual can assert a substantive

due process nght to protection by the District of Columbia

from third-party violence when District of Columbia officials

affirmatively act to increase or create the danger that

ultimately results in the individual's harm." Butera, 235 F 3d

at 65/. nil However, in adopting this new theory of

government liability, the Court emphasized that the

government conduct at issue must be "so egregious, so

Outrageous, that it may fairly be said to shock the

contemporary conscience." /d. "This stringent requirement

exists to differentiate substantive due process, which is

intended only to protect against arbitrary government action.

from local tort law." /d

nll Because the theory of State Endangerment had

not previously been recognized in this circuit, the court

ultimately dismissed the complaint against the officers,

who could not have known that their actions might

make them liable for a violation of Mr. Butera’s

constitutional mghts to substantive due process

Butera, 235 F.3d at 654.

Thus, in hight of Butera, whether Defendants can be held

lable under the theory of State Endangerment requires atwo-

part analysis, which raises the following questions: (1) has

there been an affirmative act by Defendants to create or

increase the danger that resulted in harm to Plaintiffs and. if

SO, (2) does that act shock the conscience? See id.; Fraternal

34a

Order of Police Dept. of Corr. Labor Comm., et al. y.

Williams, ct al., 263 F Supp. 2d 45, 47(D DC 2003), aff'd

363 U.S. App. D.C. 1,375 F 3d 1141 (D.C. Cir, 2004). Based

on the allegations in Plaintiffs’ complaint, the Court answers

cach of these questions in the affirmative. However. because

Defendants contend that they are entitled to qualified

immunity, the Court must also determine whether the

contours of the specific constitutional violation that Plaintiffs

allege were "clearly established" at the time of Defendants’

conduct. Sinze this question must be answered in the

Negative, Plaintffs' substantive due-process claim will be

dismissed.

/. Plaintiffs Have Sufficiently Alleged That Defendants

Affirmatively Acted tw Increase the Danger of Plaintiffs’

Exposure to Anthrax ( ontamination

In Butera, the D.C. Circuit Court of Appeals emphasized

that in order for the court to impose liability under the State

i-ndangerment theory, there must have been affirmative

conduct by the State to endanger the plaintiff:

Regardless of the conduct at issue. . ., a key

requirement tor constitutional hability is

affirmative conduct by the State to increase or

create the danger that results in harm to the

individual. No constitutional liability exists

where the State actors “had no hand in creating

a danger but [simply] stood by and did nothing

When suspicious circumstances dictated a more

active role for them."

35a

Id. at 650 (citation omitted) (brackets in original); see also

DeShaney, 489 U.S. at 201 (refusing to impose constitutional

liability where the State was aware of certain dangers but

“played no part in their creation, nor did it do anything to

render (the plaintiff] any more vulnerable to them."). Thus. in

situations where State officials encounter a dangerous

situation and simply fail to act, liability under the State

Endangerment theory should be rejected. See Butera, 235

F.3d at 650 ("Absent such affirmative conduct by the state .

. . courts have rejected liability under a State endangerment

concept."), Reed, 986 F.2d at 1125 (7th Cir. 1993) ("Inaction

by the state in the face of a known danger is not enough to

trigger the obligation [to protect private citizens from each

other]."). Conversely, where state officials creaie a Cangerous

Situation or render individuals more vulnerable toa dangerous

situation, constitutional liability may be imposed. Sve Butera,

235 F.3d at 649; Reed, 986 F 2d at 1125.

Defendants argue that Plaintiffs have failed to allege that

Defendants acted affirmatively to create or enhance a

dangerous situation. They contend that Plaintiffs’ substantive

due-process claim is based on Defendants’ inaction, and thus

hinges solely on “whether the due process clause requires

public employers to advise their employees about known nsks

in the workplace.” Defs.' Reply at 5. Defendants rely on the

Supreme Court's decision in Collins v. City of Harker

Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061

(1992), for the proposition that the failure of government

employers to warn its employees about known dangers and to

provide its employees with a safe working environment does

not rise to the level of a constitutional violation. See Collins.

503 U.S. at 126.

36a

Defendants are correct that in light of Collins, their mere

failure to warn Plaintiffs about a danger of anthrax

contamination does not expose them to constitutional liability.

See id.; see also Washington v. District of Columbia, 256

U.S. App. D.C. 84. 802 F 2d 1478, 1482 (D.C. Cir. 1986)

(“Whatever appellant's rights may be under state law. he has

no constitutional right to a safe working environment.").

However, Plaintiffs’ allegations are not premised upon the

notion that Defendants violated their substantive due-process

nghts solely by failing to wam them of a known nsk or to

Provide them with a safe working environment. Instead,

Plaintiffs allege that Defendants made affirmative

misrepresentations about the safety of the facility. While it is

clear that Plaintiffs do not allege that Defendants created the

danger at Brentwood, Plaintiffs contend that by providing

false safety briefings and representing to employees that there

was no evidence of anthrax contamination at the facility

(despite alleged actual know! edge to the contrary), Defendants

increased the nsk that Plaintiffs would be exposed to deadly

anthrax spores and made Plaintiffs more vulnerable to such

danger

Butera does not support the imposition of constitutional

lability under the State Endangerment theory where the

defendants merely failed to take any action or "stood by and

did nothing” in the face of a known danger. See Butera, 235

F.3d at 650. However. taking the allegations in Plaintiffs’

complaint as true, Defendanis did not simply “stand by and do

nothing” once it became known that the Brentwood facility

was contaminated with anthrax, Defendants are alleged to

have engaged im a series of actions which intentionally misled

Plaintiffs into believing the facility was safe and prevented

them from acting tO preserve their own safety. Giving

37a

Plaintiffs the benefit of crediting the complaint allegations

and all reasonable interences therefrom, they have su fficiently

alleged that Defendants took the requisite affirmative actions

to trigger liability under the State Endangerment Theory to

withstand dismissal on the Pleadings.

2. Plaintiffs Have Suffix dently Alleged That Defendants’

Conduct Shocks the Conscience.

To assert a substantive due-process violation under the

State Endangerment theory, Plaintiffs must also demonstrate

that Defendants’ alleged conduct "was so egregious, so

Outrageous, that it may fairly be said to shock the

contemporary conscience." Butera, 235 F.3d at 65]

(quotations omitted). While it is generally intentional conduct

that satisfies this stringent requirement, the Supreme Court

has instructed that, in certain situations, "deliberate

indifference can rise to a constitutionally shocking level.”

County of Sacramento v Lewis, 523 U.S. &33. 852, 140 L. Ed

2d 1043, 118 §. Ct. 1708 (1998). However, the D.C. Circuit

has concluded that "the lower threshold for Meeting the shock

the conscience test by showing deliberate indifference as

Opposed to intentional conduct applies only in circumstances

where the Staie has a heightened obligation toward the

individual.” Fraternal! Order of Polive, 375 F 3d at 1146

(quoting Butera, 235 F 3d at 651).

Butera noted that the State has a “heightened obligation"

toward an individual when it takes a PETSON INto Its Custody,

thereby creating a situation that "so restrains [an individual's}

liberty that it renders him unable to care for himself." Butera,

235 F.3d at 65] (quoting Lewis, 523 US ar 85/7). However.

the court did not limit situations in which “deliberate

indifference" can shock the conscience solely to the context

of State custody. In holding that Butera could prove that the

3%a

detendant police officers’ treatment of him inconnection with

an attempted undercover drug buy "shocked the conscience,"

the court noted

As iii ie context of State Custody, the State a/so

Owes a duty of protection when its agents

increase the danger to an individual. Like prison

officials who are charged with Overseeing an

inmate's welfare, State officials who create or

enhance danger to citizens may also be in a

Position where “actual deliberation is practical"

(cations omitted). In the instant case, the

officers had the Opportunity to plan the

undercover operation with care

Butera, 235 F 3d at 652 (emphasis added); Aut see

Richmond v. Potter. et ul., 2004 U.S. Dist. LEXIS 253 14, *27,

No. 03 Civ, O18 (DDC Sept. 30, 2004) (noting that courts

have been "extremely hesitant" to expand the “special

circumstances" in which a state official's deliberate

indifference can shock the onscience “outside of the context

Of actual custody" emphasis in original)

Similarly, in Estate of Anthony Phillips v. District of

Columbia, 257 f Supp.2d 69 (D.D.C. 2003). this court

applied the State Endangerment theory articulated in Butera.

and ultimately held that the plainuffs had sufficiently alleged

that the defendants’ conduct demonstrated “deliberate

indifference” that rose to a “constitutionally shocking level.”

ld. at 77. The Phillips plaintitts were injured firefighters and

the estates of two deceased firefighters who alleged that the

39a

District of Columbia and several fire department employees

had violated their substantive due-process nghts by failing to

train, equip and staff the department appropriately and by

failing to follow standard Operating procedures. The court

concluded that the allegations that the defendants were on

notice about the serious consequences that could result from

such failures painted a Story that "shocks the conscience

sufficiently to withstand the District's motion [to dismiss |."

Id. at 79.

Plaintiffs allege here that Defendants acted with deliberate

indifference because they knew that Brentwood was

contaminated with anthrax, yet, to keep the employees

working, they continued to make affirmative

misrepresentations concerning the facility's safety. Plaintiffs

also allege that by not providing them with accurate

information conceming the safety of the Brentwood facility

and by “threatening, inumidating, and/or coercing” them to

continue working at the anthrax-contaminated facility,

Defendants made Plaintiffs "more Vulnerable to the danger of

anthrax contamination.” Pls." Surreply at 6. In addition.

Plaintitts have alleged a series of ev ents that they argue

demonstrate that Defendants were put on notice "that anthrax

spores sent through the mai! could penetrate the sides of a

sealed env lope during processing at the Brentwood facility

and, thereby. cause serious injury and/or death to Plaintiffs

"Id. at 39.

The Court has given considerable thought to Plaintiffs’

arguments. If the tacts are as alleged, the conduct of USPS

managers would appear commendable for their dedication to

getting the mas! out but deplorable for not recognizing the

potential human risk involved. Just as in Butera and Phillips.

these alleged actions demonstrated 4 gross disregard for a

40a

dangerous situation in which "actual deliberation [was]

Practical.” Butera, 235 F.3d at 65? (Citation omitted). It is

alleged that Defendants "had been Put On notice of the serious

Consequences that could result” from Plaintiffs’ exposure to

anthrax yet, despite such knowledge, Defendants engaged in

a campaign of misinformation designed to keep the

employees at work Phillips, 257 F Supp.2d at 79. As noted

by the Supreme Court in Lewis," when opportunities to do

better are teamed with Protracted failure even to care.

indifference ts truly shocking.” /d at 77 (quoting Lewis, $23

US. at 844). The Coun therefore finds that Plaintiffs have

sufficiently alleged that Defendants’ conduct amounted to

deliberate indifference, which v \olated their substantive due-

process rights under the State Endangerment theory.

Defendants’ relance on cases such as Collins and

Washington to Support their proposition that “the state

endangerment’ theory of Butera cannot be applied to the

plaintiffs’ allegations concerning a federal workplace,” Det.’

Reply at &. is misguided. In Washington, the D.C. Circuit

Court of Appeals refused to IMpose constitutional liability

where the plaintiff prison guard alleged that he was injured at

work as a result of the failure of the District to remedy unsate

conditions at the prison. The court explained

Prison guards, unlike the prisoners in their

charge. are not held in State custody. Their

decision to work as guards is voluntary. If they

deem the terms of their employment

unsatisfactory, ey. if salary, promotion

Prospects, or safety are inadequate, they may

seek employment elsewhere. The state did not

4la

force [the plaintiff] to become a guard, and the

State has no constitutional obligation to protect

him from the hazards inherent in that

occupation

Id. at 1482 (emphasis added): see also Fraternal Order of

Police, 375 F.3d at 1146. Unlike the plaintiffs in

Washington, however, Plaintiffs here are not seeking

constitutional redress based on Defendants’ failure to protect

them from a hazard that was “inherent” in their occupation

While it is true that Defendants did not force Plaintiffs to

become postal workers, potential exposure te anthrax is not

a danger that one would reasonably anticipate when accepung

employment at a post office. But see Richmond, 2004 U.S.

Dist. LEXIS 25374 at *29, No. 03 Civ. 018 (keeping the

Brentwood facility open did not constitute the deprivation of

an actual constitutional mght)

Although the Washington court severely limited the

extent to which government employers can be held

consttutionally liable for injunes sustained by their

employees, the Supreme Court's subsequent decision in

Collins flatly rejected the notion that a government employee

can never assert a substantive due-process claim against the

govemment. See 503 U.S. at 120 (noting that the Due

Process Clause “afford[s} protection to employces who serve

the government as well as to those who are served by them,

and 1983 provides a cause of action for all citizens injured by

an abridgement of those protections."); see also Phillips, 257

F. Supp. 2d at 78. Thus, the Court finds that the relevant case

law does not preclude Plaintiffs’ substantive due-process

claims under the State-Endangerment theory

42a

3. Defendants Are Entitled To VYualified Immunity

While Plaintifis have sufficiently alleged that Defendants’

conduct violated their substantive due-process rights, the

INqUITY Into potential liability does not stop there. Defendants

argue that they are shielded from lability because there was

no "pre-existing law" making it apparent that their alleged

conduct would violate the Due Prox ess Clause. Dets.’ Mot.

at 22. Accordingly, Defendants contend that they are entitled

to dismissal of Plaintiffs’ Claims under the doctrine of

qual ified tmmunity

Qualified immunity shields State officials from

constitutional liability when "their conduct does not violate

Clearly established statutory or constituuional nights of which

4 reasonable person would have known.” Harlow y

Fitzgerald 487 US 800 SIS, 73 L. Ed. 2d 396. 102 § Cr

2727 (1982). If x plainuff sufficiently alleges that a State

official's conduct violated a constitutional mght. “the next

“ep ts to ask whether the right was Clearly established.”

Saucier v Katz, 533 US. 194. 20] ISOL. Ed 24272 1218

Ct 2151 (2001). “A constitutional right was clearly

established’ at the time of the events in question only if the

contours of the nght | were] sufficiently clear that a reasonable

officer would understand that what he [was] doing violate{d]

that right.” Buteru, 235 F 3d at 646 (quoting Anderson \

Creighton, 483 US 635. 640, 971 Ed. 2d $23 107 S§ Ct

53-4 (1987). Unde: lying the doctrine of qualified immunity

ts the principle of fair notice. Moore \ Hartman, 363 US

Ipp D.C. 350, 388 F.3d 871. D004 WL 2514383, at * 5 (D1

Cir. 2004). "The unfaimess of holding officials responsibic

on grounds they could not have anticipated trumps the

madi vidual’s interest in vindicating transgressed rights.” Jd

fentations omitted). Thus, a case should be dismissed where a

43a

State official was not on notice that his conduct was clearly

unlawful. See Saucier, 533 U.S. at 202.

In this case, Plaintiffs allege that they have a

constitutional mght arising under the State Endangerment

theory. As discussed earlier, in light of this circuit's decision

in Butera v. District of Columbia, Plaintiffs have sufficiently

alleged a depnvation of a constitutional nght. However, the

contours of the constitutional duty arising under the State

Endangerment theory were not sufficiently clear at the time of

Defendants’ alleged conduct such that they would understand

that what they were doing violated Plaintiffs’ rights. See

Anderson, 483 U_S. at 640

In Butera, the Court of Appeals concluded, “Butera's

constitutional mght to protection by the District of Columbia

from third party violence was not clearly established” at the

tume that the events occurred. Butera, 235 F.3d at 652. The

Court noted that the State Endangerment theory was not

previously recognized in this circuit and that the only

Supreme Court authority to support the concept "consisted of

the often-quoted dictum in DeShaney.” Jd. Accordingly, the

court determined that the defendant officers were entitled to

qualified immunity. /d. at 654

Although this circuit has now recognized the State

Endangerment theory. there continues to be "little consistency

im courts’ explanations of the types of actions that would

amount to constitutional liability” under this theory. /d af

653. see Richmond, 2004 U.S. Dist. LEXIS 25374 at *31, No

03 Civ. 018 ("An analysis of our circuit's post-Butcra cases

shows that a broad reading of the State Endangerment concept

is still far from clearly established.”"). Perhaps most

importantly, the case law in this circuit is still unclear as to

whether the State Endangerment theory can apply to an

44a

individual who Voluntarily participated in the activity that

ultumately caused him harm. See Butera, 235 F 3d at 654

(not deciding whether State hability “would necessarily be

eliminated or mitigated” in situations where the victim's

participation was “arguably voluntary") Thus, in the context

of government employment, decisions in this circuit have

come to different conclusions concerning the extent to which

government officials can be held constitutionally lable under

the State Endangerment theory for injuries sustained by

government employees. Compare Fraternal Order Of Police,

37S F 3d at 1146-4 7 (holding that "special circumstances" are

necessary for a State official's conduct to rise to a

constitutionally-shocking level in the employment context)

with Phillips, 257 F Supp.2d at 78-79 (concluding that a

government employer's "deliberate indifference” was

sufficient to "shock the conscience"). n12

nl2 In Richmond v. Potter. et ala recent decision

of this court that arose out of the same set of facts as

the instant case, Judge Colleen Kollar-Kotztiy

concluded that the plaintiff could not show that

Defendants’ conduct in keeping the Brentwood Facility

open constituted the deprivation of an actual

constitutional night. See 2004 U.S. Dist. LEXIS 25374

at *30, No. 03 Civ. 018. The coun acknowledged.

however, that the law in this area was unclear and that

"Butera might be read in a more €Xpansive manner,” in

which case the plaintiff may be able to allege that the

defendants’ conduct amounted to a constitutional

violation. /d. However, the court ultimately determined

that even if the plaintiff could sufficiently allege a

substantive due-process violat) on, "Plaintiff still cannot

4$a

show that it was clearly established’ that Defendants

would have “een aware that their conduct was

unlawful.” 2004 U.S Dist. LEXIS 25374 at *32

Based on the lack of clarity surrounding the exact

contours of the State Endangerment theory in this circuit, this

Court cannot unequivocally say that "in the hght of

preexisting law[,] the unlawfulness [of Defendants’ alleged

conduct} {] [was] apparent.” Anderson, 443 U.S. at 640

Because the law was insufficiently clear in October of 2001

to alert Defendants to possible constitutional liability for their

conduct surrounding the alleged misinformation § to

Brentwood employees, Defendants are entitled to qualified

immunity

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ claams will be

dismissed and the Court will enter judgment in favor o1

Defendants. A separate Order accompanies this Memorandum

Opinion

Dated: November 19, 2004

ROSEMARY M. COLLYER

United States District Judge

ORDER

For the reasons stated in the Memorandum Opinion

separately and contemporaneously issued this 19th day of

November, 2004, it is hereby

ORDERED that Defendants’ motion to dismiss ts

GRANTED; and it ts

462

FURTHER ORDERED that this cas

trom the docket of this Court.

SO ORDERED.

€ is DISMISSED

Uated: November 19, 2004.

ROSEMARY M. COLLYER

United States District Judge

APR 4 - 2006

Nos. 05-977 and 05-990 _|_oFAcE oF THE CLERK |

In the Supreme Court of the Gnited States

DENA BRISCOE, ET AL., PETITIONERS

| .

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

LEROY RICHMOND, PETITIONER

Vv.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT :

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

ALISA B. KLEIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the comprehensive statutory scheme

governing Postal Service employment, which includes

remedies under the Federal Employees Compensation

Act, 5 U.S.C. 8101 et seq., and Section 717 of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, pre-

cludes courts from creating a remedy for alleged

constitutional violations under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971).

(I)

TABLE OF CONTENTS

Page

NO os 5 ooo a cs a ve hc Fem Eee eae ga

IN Sd sid 4 Fe coy Kas 6d as hh ARRON 2

Statement:

A. The statutory remedial scheme .................45. 2

EE, Fee, BI ai i sk Hee Sees ee ee he 3

NN NOW os 85a Se Eos ie ene oes 7

fT . SPAP ROARS EAPE Oatley UnL BE yore? eR Sy on wpe 8

os he ees oe os Lee ee 15

TABLE OF AUTHORITIES

Cases:

American Postal Workers Union v. United States

Postal Serv., 940 F.2d 704 (D.C. Cir. 1991) ......... 3

Bennett v. Barnett, 210 F.3d 272 (5th Cir.), cert.

denied, 531 U.S. 875 (2000) ..............0055: 3, 11

Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980) .......... 13

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) .......... 2

Bush v. Lucas, 462 U.S. 367 (1983) ......... 7, 8, 9,14, 15

Brown v. General Servs. Admin., 425 U.S. 820

Re ek es eee ee er eee eae 3, 8, 12

Correctional Servs. Corp. v. Malesko, 534 U.S. 61

p28 EMR I A upiba a argc Se pap ee ance Pea pis Ngee 9, 10, 15

Cuyahoga Valley Ry. v. United Transp. Union,

Bre ta ORO 8 eA a ee 12

Grichenko v. United States Postal Serv., 524 *.

Supp. 672 (E.D.N.Y. 1981), aff'd, 751 F.2d 368

CNA I os ae eee eden sac e aie atenos 13

(IIT)

IV

Cases—Continued: Page

Harding v. United States Postal Serv., 802 F.2d

BOOTED TAP. AUG) ob eck 6 ce Mi 84 14 BRS Shae 1]

Lockheed Aircraft Corp. v. United States, 460 U.S.

SOCIO) oboe ak oie Fasd rio ee hei oee yet ier 10, 11

McCullom v. Bolger, 794 F.2d 602 (11th Cir. 1986),

cert. denied, 479 U.S. 1034 (1987) ................ 1]

McIntosh v. Turner, 861 F.2d 524 (1988) ............. 13

National Collegiate Athletic Ass'n v. Smith,

Oey MO Ae is oe rere ave cee 8

Pereira v. United States Postal Serv., 964 F.2d 873

CEN AU roc Fhe keke sere ak edi es bn vin: li

Pipkin v. United States Postal Serv., 951 F.2d 272 —

CON a i oso oe ee coda eds ees iees 11

Rauccio v. Frank, 750 F. Supp. 566

ET), CONE FOO oa ie ee ed Re ree aR in PIES 13

Schwerker v. Chilicky, 487 U.S. 412 (1988) ...... passim

United States v. Stanley, 483 U.S. 669 (1987) ......... 15

Constitution and statutes:

U.S. Const.:

PE ae eR Se os a eh eS 9

PNOI. Ve Fi We es ba ee eek 6

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

PRM SE OG. a oc Cheek nebnur ee baes ia passim

AZ UB, BeOS TAD) nk cbs ca ea eens 3, 12

Civil Service Reform Act of 1978, 5 U.S.C. 1101

| HAD IO a SCENT ee hy RM COL MRE GN elnas aE Eo PER Ce EF 3

Statutes—Continued:

Federal Employees Compensation Act, 5 U.S.C.

8101 et seq.:

ARC BOUND “moe Shei kav eekeweniaeweaees

PAL a PROD a yos bce Soe k eR eee beens

PALA COM os hho maw cvncbeespaneeess

PETIA BAM? oes FiNGe bie wes bi xkees beeks

ES AN ORO ise a5 pe dos cha Ou kp es WOE ROR

Occupational Safety and Health Act, 29 U.S.C. 651

2 Me PP See fs Serer ere ee yee rr

BREE OOO. oi oiGks yew ceeeeecesebinres

BAL a Oe picikd cache a curade be sane enone

SES EO SNPS ee eter erie yo np etre

Miscellaneous:

Robert L. Stern et al., Supreme Court Practice

CURIE TOUOS i iitves dv eves hecenveerpacesny

United States General Accounting Office:

Report No. 04-205T, Testimony Before the

Committee on Government Reform of the

House of Representatives, U.S. Postal

Service, Clear Commusication with

Employees Needed before Reopening the

Brentwood Facility (Oct. 23, 2003)

<http://www.gao.gov/new.items/ d0Q5205T.

PRR ME DRE SiG ASR Ne peels SRA abso rent PU ANA

Page

Miscellaneous—Continued: Page

Report No. 04-239, U.S. Postal Service, Better

Guidance Is Needed to Ensure an

Appropriate Response to Anthrax

Contamination, (Sept. 2004)

<http://www.gao.gov/new.items/

CR ios ie ie a ee ee 4

In the Supreme Court of the Gnited States

No. 05-977

DENA BRISCOE, ET AL., PETITIONERS

Vv.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

No. 05-990

LEROY RICHMOND, PETITIONER

VU.

JOHN E. POTTER, POSTMASTER GENERAL, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals (05-977 Pet. App.

la-4a; 05-990 Pet. App. 1a-3a) are unreported. The opin-

ion of the district court in No. 05-977 (Pet. App. 5a-45a)

is reported at 355 F. Supp. 2d 30. The memorandum

opinion of the district court in No. 05-990 (Pet. App. 4a-

42a) is unreported.

(1)

2

JURISDICTION

The judgment of the court of appeals in each of the

cases was entered on November 7, 2005. The petition

for a writ of certiorari in No. 05-977 was filed on Febru-

ary 3, 2006. The petition in No. 05-990 was filed on Feb-

ruary 6, 2006 (a Monday). The jurisdiction of this Court

is invoked under 28 U.S.C. 12541.

STATEMENT

Petitioners are employees of the United States

Postal Service who worked at the Brentwood Postal Fa-

cility in October 2001 when the facility was contami-

nated with anthrax as the result of a terrorist attack.

They filed suits against Post.inaster General Potter and

other Postal Service officials in their individual capaci-

ties, alleging that the government officials violated peti-

tioners’ constitutional rights by knowingly misrepre-

senting hazards at the facility. Petitioners sought

money damages for the alleged violations. The district

court dismissed the suits. The court of appeals affirmed

the dismissals, in unpublished per curiam opinions, con-

cluding that the comprehensive statutory scheme gov-

erning Postal Service employment precludes the courts

from creating additional remedies under Bivens v. Six

Unknown Named Ag :nts of the Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971).

A. The Statutory Remedial Scheme

The Postal Reorganization Act (PRA), Pub. L. No.

91-375, 84 Stat. 719, establishes a comprehensive

scheme governing employment relations within the

Postal Service. “The PRA operates largely, by incorpo-

rating other statutes, including the [Federal Employees

Compensation Act], see 39 U.S.C. § 1005(c), and parts of

3

the Civil Service Reform Act [of 1978].” American

Postal Workers Union v. United States Postal Serv., 940

F.2d 704, 708 (D.C. Cir. 1991).

The Federal Employees Compensation Act (FECA),

5 U.S.C. 8101 et seq., provides that “[t]he United States

shall pay compensation * * * for the disability or death

of an employee resulting from personal injury sustained

while in the performance of his duty.” 5 U.S.C. 8102(a).

Determinations regarding FECA coverage are made by

the Department of Labor and are not subject to judicial

review. See 5 U.S.C. 8124(a), 8128(b), 8145. Where the

FECA is applicable, other remedies are expressly fore-

closed: “The liability of the United States or an instru-

mentality thereof * * * with respect to the injury or

death of an employee is exclusive and instead of all other

liability of the United States or the instrumentality.”

5 U.S.C. 8116(c).

In addition to the FECA remedy, the PRA affords

collective bargaining rights to postal workers not cov-

ered by the Civil Service Reform Act of 1978 (CSRA), 5

U.S.C. 1101 et seg. See Bennett v. Barnett, 210 F.3d

272, 274-275 (5th Cir.), cert. denied, 531 U.S. 875 (2000).

Postal Service employees are also protected by Section

717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e-16, which provides the exclusive remedial scheme

for discrimination in federal employment on the basis of

race, color, religion, sex, or national origin. See Brown

v. General Servs. Admin., 425 U.S. 820, 835 (1976).

B. Petitioners’ Allegations

Because petitioners’ suits were dismissed on the

pleadings, this Court must assume the truth of the alle-

4

gations in their complaints. Those allegations are sum-

marized below. '

On Thursday, October 11, 2001, a letter addressed to

United States Senator Tom Daschle arrived in a mail

bag at Brentwood. The mail bag was opened and its

contents were separated into the Delivery Bar Code

Sorter (DBCS) #17. The letter was delivered to the

Hart Senate Office Building on Friday, October 12, and

was opened in the Senator’s office on Monday, Octo-

ber 15. The envelope held a white powder that con-

tained anthrax spores. See 05-977 Pet. App. 8a-9a.

On Tuesday, October 16, all Senate employees were

tested for anthrax exposure and given antibiotics as a

countermeasure. On Wednesday, October 17, the

United States House of Representatives was shut down

after several staff members tested positive for exposure

to anthrax. Anthrax spores were found in a mail room

in the Dirksen Senate Office Building, through which

the letter to Senator Daschle had passed before being

sent on to the Hart Senate Office Building. On Thurs-

day, October 18, all buildings on Capitol Hill were closed

and quarantined. See 05-977 Pet. App. 10a-11a.

The Postal Service sought guidance from the Centers

for Disease Control (CDC) and the District of Columbia

(D.C.) Department of Health. On Thursday, October 18,

' Two publications from the General Accounting Office (GAO) discuss

the events of October 2001 and the larger context in which they oc-

curred. See GAO, Report No. 04-239, U.S. Postal Service, Better

Guidance Is Needed to Ensure an Appropriate Response to Anthrax

Contamination (Sept. 2004) <http://Awww.gao.gov/new.items/d04239.

pdf>; GAO, Report No. 04-205T, Testimony Before the Committee on

Government Reform of the House of Representatives, U.S. Postal Ser-

vice, Clear Communication with Employees Needed before Reopening

the Brentwood Facility (Oct. 23, 2003) <http://www.gao.gov/new.items/

d04205T.pdf>. f

a hazardous materials response team from Faiz ‘fax

County conducted testing at Brentwood. On the same

day, a private contractor conducted more extensive envi-

ronmental testing. See 05-977 Pet. App. 12a-13a.

On Friday, October 19, Postal Service officials asked

the D.C. Department of Health to place all Brentwood

employees on antibiotics for exposure to anthrax. See

ibid. The same day, Postal Service employee Leroy

Richmond, petitioner in No. 05-990, was admitted to the

hospital and was examined for inhalation anthrax. On

Sunday, Octeber 21, after it was confirmed that Mr.

Richmond had contracted inhalation anthrax, the CDC

concluded that the Brentwood facility should be closed,

and the Postal Service shut down the facility. Mr. Rich-

mond survived, but two other Brentwood employees

died of inhalation anthrax. See 05-977 Pet. App. 14a-

15a.’

Petitioners allege that Postal Service officials knew

or should have known by Wednesday, October 17, or

earlier, that the anthrax spores contair~4 in the Daschle

ietter had created a dangerous health risk, but the

Postal Service did not close the Brentwood facility until

Sunday, October 21. See 05-977 C.A. App. 24-25; 05-990

Pet. App. 48a. Petitioners also allege that Postal Ser-

vice officials withheld information from employees and

provided them with false or misleading information. For

example, the Briscoe petitioners allege that, on Friday,

5

* The Briscoe petitioners do not claim to have tested positive for

anthrax. They allege that they experienced and continue to experier.. —

“anthrax-like symptoms, in addition to substantial emotional distress,

pain, suffering, and anxiety.” 05-977 C.A. App. 40; see id. at 41. “05-

977 C.A. App.” refers to the joint appendix filed in the court of appeals

in Appeal No. 04-5447. “05-990 C.A. App.” refers to the appendix filed

in the court of appeals in Appeal No. 04-5403.