# Petition for Writ of Certiorari — Briscoe v. Potter (No. 05-977) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0784%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text 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) ; 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) . 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0784%3A1. Public record. Not legal advice.