IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DENA BRISCOE, individually and

as class representative of Brentwood

facility employees who are

represented by the American Postal Civil Action No.:

Workers Union,

6705 Surratts Road COMPLAINT; DEMAND FOR

Clinton, MD 20735; JURY TRIAL

and

JEFFREY BUTLER, individually and

as class representative of Brentwood

facility employees who are

represented by the American Postal

Workers Union,

1001 Glenwillow Drive

Capitol Heights, MD 20743;

and

TERRELL WORRELL, individually and

as class representative of Brentwood

facility employees who are

represented by the National Postal Mail

Handlers Union,

5831 Quantrell Avenue, Apt. 412

Alexandria, VA 22312;

and

VINCENT D. GAGNON, individually and

as class representative of Brentwood

facility employees who are

represented by the National Postal Mail

Handlers Union,

2607 Boones Lane

Forrestville, MD 20747;

and

VERNON PORTER, individually and

as class representative of Brentwood

facility employees who are

represented by the National Association of

Letter Carriers,

3609 Shenandoah Drive

Beltsville, MD 20705;

and

OSSIE L. ALSTON, individually and

as class representative of Brentwood

facility employees who are

represented by the National Association of

Postal Supervisors,

5807 Robin Lane

Camp Springs, MD 20746,

Plaintiffs,

v.

UNITED STATES POSTAL SERVICE

POSTMASTER GENERAL JOHN E.

POTTER, in his individual capacity;

and

UNITED STATES POSTAL SERVICE

VICE PRESIDENT OF ENGINEERING

THOMAS DAY, in his individual capacity;

and

UNITED STATES POSTAL SERVICE

WASHINGTON, DC PROCESSING AND

DISTRIBUTION CENTER PLANT

MANAGER TIMOTHY C. HANEY,

in his individual capacity;

and

UNITED STATES POSTAL SERVICE

UNKNOWN OFFICIALS NOS. 1-10,

in their personal capacities,

c/o United States Postal Service

475 L’Enfant Plaza West, S.W.

Washington, DC 20260,

Defendants.

Plaintiffs hereby file this Complaint for violations of their Fifth Amendment rights. As grounds therefor, Plaintiffs respectfully allege as follows:

JURISDICTION AND VENUE

1. The Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 because Plaintiffs’ claims arise under the United States Constitution.

2. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (e) because Defendants were acting under color of legal authority and a substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in this judicial district.

PARTIES

3. Plaintiff Dena Briscoe is an employee of the United States Postal Service (“USPS”) and, at all relevant times, worked at the Washington, DC Processing and Distribution Center, Brentwood Road (“Brentwood” and/or “Brentwood facility”). Ms. Briscoe is a member of the American Postal Workers Union (“APWU”). She brings this action in her individual capacity and as a representative of Brentwood facility employees represented by the APWU.

4. Plaintiff Jeffrey Butler is an employee of the USPS and, at all relevant times, worked at the Brentwood facility. Mr. Butler is a member of the APWU. He brings this action in his individual capacity and as a representative of Brentwood facility employees represented by the APWU.

5. Plaintiff Terrell Worrell is employed by the USPS and, at all relevant times, worked at the Brentwood facility. Mr. Worrell is a member of the National Postal Mail Handlers Union (“NPMHU”). He brings this action in his individual capacity and as a representative of Brentwood facility employees represented by the NPMHU.

6. Plaintiff Vincent D. Gagnon is employed by the USPS and, at all relevant times, worked at the Brentwood facility. Mr. Gagnon is a member of the National Postal Mail Handlers Union (“NPMHU”). He brings this action in his individual capacity and as a representative of Brentwood facility employees represented by the NPMHU.

7. Plaintiff Vernon Porter is employed by the USPS and, at all relevant times, worked as a letter carrier based out of the Brentwood facility. Mr. Porter is a member of the National Association of Letter Carriers (“NALC”). Mr. Porter brings this action in his individual capacity and as a representative of Brentwood facility employees represented by the NALC.

8. Plaintiff Ossie L. Alston is employed by the USPS and, at all relevant times, worked at the Brentwood facility. Mr. Alston is a member of the National Association of Postal Supervisors (“NAPS”). Mr. Alston brings this action in his individual capacity and as a representative of Brentwood facility employees represented by the NAPS.

9. Defendant John E. Potter is the Postmaster General of the USPS, an agency of the U.S. Government. On information and belief, at all relevant times Defendant Potter directly participated in and/or authorized or directed the acts and omissions alleged herein. He is being sued in his individual capacity and for acting under color of federal law.

10. Defendant Thomas Day is the Vice President of Engineering for the USPS. On information and belief, at all relevant times Defendant Day directly participated in and/or authorized or directed the acts and omissions alleged herein. He is being sued in his individual capacity and for acting under color of federal law.

11. Defendant Timothy C. Haney was the Senior Plant Manager at the Brentwood facility. On information and belief, at all relevant times Defendant Haney directly participated in and/or authorized or directed the acts and omissions alleged herein. He is being sued in his individual capacity and for acting under color of federal law.

12. Defendants Unknown Officials Nos. 1‑10 are currently unknown USPS officials. On information and belief, at all relevant times Defendants Unknown Officials Nos. 1-10 directly participated in and/or authorized or directed the acts and omissions alleged herein. They are being sued in their personal capacities and for acting under the color of federal law.

CLASS ACTION ALLEGATIONS

13. Plaintiffs bring this action as a class action pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure.

14. The proposed class is made up of the approximately 2,200 employees of the USPS who worked at the Brentwood facility and are represented by the American Postal Workers Union, the National Postal Mail Handlers Union, National Association of Letter Carriers and/or the National Association of Postal Supervisors.

15. Plaintiffs’ claims are typical of the claims of the members of the class in that Plaintiffs, and each class member, were employed at the Brentwood facility during the relevant time period and, therefore, were exposed to anthrax contamination at their place of employment.

16. Plaintiffs will fairly and adequately protect the interests of the members of the class and have retained counsel competent and experienced in class action and civil rights litigation. Plaintiffs do not have any interests adverse to the class.

17. A class action is superior to other available methods for the fair and efficient adjudication of this controversy since joinder of all class members is impracticable. Furthermore, the expense and burden of individual litigation make it impossible for all class members to seek redress for the wrongs inflicted on them. There will be no difficulty in the management of this action as a class action.

18. Common questions of law and fact exist as to all members of the class and predominate over any questions solely affecting individual members of the class. Among the questions of law and fact common to the class:

(a) Whether Defendants deprived members of the class of a clearly established right to due process, in violation of the Fifth Amendment to the US Constitution, by providing false and/or misleading information and/or failing to provide accurate information to members of the class about the anthrax contamination at the Brentwood facility, thereby depriving members of the class of remedies provided by their collective bargaining agreements and/or preventing members of the class from invoking these remedies in a timely manner;

(b) Whether Defendants deprived members of the class of a clearly established right to due process, in violation of the Fifth Amendment to the US Constitution, by providing false and/or misleading information and/or failing to provide accurate information to members of the class about the anthrax contamination at the Brentwood facility, thereby preventing members of the class from invoking the protections and remedies of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654, et seq., in a timely manner;

(c) Whether Defendants deprived members of the class of a clearly established right to due process, in violation of the Fifth Amendment to the US Constitution, by providing false and/or misleading information and/or failing to provide accurate information to members of the class about the anthrax contamination at the Brentwood facility, thereby preventing members of the class from invoking USPS emergency response procedures in a timely manner;

(d) Whether Defendants deprived members of the class of a clearly established, substantive due process liberty interest in a safe work environment free from needless danger, in violation of the Fifth Amendment to the US Constitution, by requiring them to continue to work at the Brentwood facility despite Defendants’ knowledge that the facility had been contaminated with anthrax; and

(e) Whether the members of the class have sustained damages, and, if so, what is the proper measure of damages.

STATEMENT OF FACTS

19. On or about November 21, 2000, the USPS and members of the APWU employed at the Brentwood facility entered into a collective bargaining agreement that affirmed USPS management’s obligation to provide a safe working environment, required USPS management to follow safety procedures and correct unsafe conditions, and expressly provided specific remedies, in the form of grievance and arbitration procedures, for APWU members who believed they were being required to work under unsafe conditions.

20. Under Article 14, Section 1 of the APWU collective bargaining agreement, “It is the responsibility of management to provide safe working conditions in all present and future installations and to develop a safe working force.” [Emphasis added]. Article 14, Section 2 of the agreement provides, in pertinent part, as follows:

The Employer and the Union insist on the observance of safe rules and safe procedures by employees and insist on correction of unsafe conditions. Mechanization, vehicles and vehicle equipment, and the work place must be maintained in a safe and sanitary condition, including adequate occupational health and environmental conditions. The Employer shall make available at each installation the appropriate forms to be used by employees in reporting unsafe and unhealthful conditions. If an employee believes he/she is being required to work under unsafe conditions, such 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; and/or (d) 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. [Emphasis added].

21. The terms of the APWU collective bargaining agreement remained in effect at all times relevant to this lawsuit and remain in effect until November 20, 2003.

22. On or about November 21, 2000, the USPS and members of the NPMHU employed at the Brentwood facility entered into a collective bargaining agreement that, like the APWU agreement, affirmed USPS management’s obligation to provide a safe working environment, required USPS management to follow safety procedures and correct unsafe conditions, and expressly provided specific remedies, in the form of grievance and arbitration procedures, for NPMHU members who believed they were being required to work under unsafe conditions.

23. Section 14.1 of the NPMHU collective bargaining agreement states, “It is the responsibility of management to provide safe working conditions in all present and future installations and to develop a safe working force.” [Emphasis added]. Section 14.2 of the agreement provides, in pertinent part, as follows:

The Employer and the Union insist on the observance of safe rules and safe procedures by employees and insist on correction of unsafe conditions. Mechanization, vehicles and vehicle equipment, and 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, such 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. [Emphasis added].

24. The terms of the NPMHU collective bargaining agreement remained in effect at all times relevant to this lawsuit and remain in effect until November 20, 2004.

25. On or about September 19, 1999, the USPS and members of the NALC employed at the Brentwood facility entered into a collective bargaining agreement that, like the APWU and NPMHU agreements, affirmed USPS management’s obligation to provide a safe working environment, required USPS management to follow safety procedures and correct unsafe conditions, and expressly provided specific remedies, in the form of grievance and arbitration procedures, for NALC members who believed they were being required to work under unsafe conditions.

26. Section 14.1 of the NALC collective bargaining agreement states, “It is the responsibility of management to provide safe working conditions in all present and future installations and to develop a safe working force.” [Emphasis added]. Section 14.2 of the agreement provides, in pertinent part, as follows:

The Employer and the Union insist on the observance of safe rules and safe procedures by employees and insist on correction of unsafe conditions. Mechanization, vehicles and vehicle equipment, and the work place must be maintained in a safe and sanitary condition, including adequate occupational health and environmental conditions. The Employer shall make available at each installation forms to be used by employees in reporting unsafe and unhealthful conditions. If an employee believes he/she is being required to work under unsafe conditions, such 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; and/or (d) 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. [Emphasis added].

27. The terms of the NALC collective bargaining agreement remained in effect at all times relevant to this lawsuit and remained in effect until November 20, 2001.

28. At all times relevant to this lawsuit, there was no collective bargaining agreement in effect between the NAPS and the USPS.

29. At all relevant times, employees at the Brentwood facility were entitled to the full protections and remedies of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654, et seq., among other applicable laws and regulations, including the right to a safe work environment, the right to decline to perform work for health and safety-related reasons, the right to request health and safety inspections, and the right to file complaints about unhealthy and unsafe work conditions.

30. At all relevant times, USPS management was aware that anthrax spores sent through the mail could penetrate the sides of a sealed envelope. As early as 1988, the USPS required that bio-hazardous materials, such as anthrax, be contained in “fail-safe packages” if they were to be sent through the U.S. mail. These USPS regulations mandated that toxins such as anthrax be contained in vials wrapped with waterproof tape, surrounded by absorbent material, and sealed within two separate metal canisters. Regulations also required packages to be labeled as containing disease-causing agents and clearly marked with a contact telephone number at the Center for Disease Control and Prevention (“CDC”) in case of leakage or damage.

31. In October 1999, the USPS issued Management Instruction EL-860-1999-3, entitled “Emergency Response to Mail Allegedly Containing Anthrax,” which outlined the hazards of exposure to anthrax and mandated emergency procedures regarding mail suspected of containing anthrax. The Management Instruction expressly states:

The Postal Service is committed to providing a safe and healthful work environment for its employees. Suspected bioterrorism threats or suspicious incidents require prompt action by health, safety, law enforcement, and laboratory personnel. Coordination and communication are essential to protect first responders and employees.

32. Management Instruction EL-860-1999-3 further states, “It is management’s responsibility to minimize potential exposures through quick isolation and evacuation until emergency response and law enforcement can arrive and take control of the incident.” [Emphasis added].

33. Pursuant to Management Instruction EL-860-1999-3, USPS officials must ensure the following:

1. All employees, through safety talks, hazardous materials, first-responder training, and emergency action plan training, must be instructed on initial actions to take if there has been a suspected exposure to anthrax (or other biologically hazardous material).

2. Emergency action plans, crisis management plans, hazardous materials spills response instructions, medical service standing orders, and other related standard operation procedures must be modified to incorporate appropriate guidance. Crisis management plans must be revised to do the following:

a. Include appropriate actions to ensure initial coordination with the FBI and outside responders through the Inspection Service.

b. Detail other initial actions to isolate and contain potential contamination and deal with potentially exposed employees.

c. Cover subsequent actions, including proper medical treatment (using current Center for Disease Control (CDC) guidelines), employee counseling and media liaison.

The emergency action plan must include the telephone numbers of the initial and secondary contacts.

34. When anthrax exposure is suspected, USPS officials are specifically directed by Management Instruction EL-860-1999-3 to do the following:

1. Alert employees to stay 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:

a. Effecting mechanical shutdowns (including air handling equipment), isolation and evacuation. [Emphasis added].

b. Notifying the Inspection Service.

c. Notify Postal Service Aviation Mail Security Office.

d. Notify postal and local community emergency responders, which may include the health department, fire department, or local law enforcement.

35. On Tuesday, October 9, 2001, anthrax-laden letters addressed to Senator Tom Daschle and Senator Patrick Leahy at their U.S. Senate offices in Washington, DC were deposited in the U.S. Mail at Trenton, New Jersey.

36. Also on or about Thursday, October 11, 2001, the Daschle letter entered the Brentwood facility in a mail bag received at the north platform loading dock.

37. The bag was opened and the contents were separated into Delivery Bar Code Sorter (“DBCS”) machine #17. At approximately 7:10 a.m., the Daschle letter was fed manually into DBCS #17.

38. The letter was then moved by mail transport equipment to the Government Mail Section for delivery to the Hart Senate Office Building.

39. 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 from the conveyor belts and optical reading heads of the machine, spreading anthrax spores throughout the Brentwood facility.

40. The Daschle letter was delivered to the Hart Senate Office Building at approximately noon on Friday, October 12, 2001.

41. On Monday, October 15, 2001, the Daschle letter was opened in the Senator’s office in the Hart Senate Office Building. The envelope contained a fine white powder. It immediately aroused suspicion, and the Capitol Police were called.

42. Within approximately five minutes, the Capitol Police arrived and performed a field test on the letter, which was found to contain anthrax spores. The ventilation system in the building was immediately 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 officer were tested and given antibiotics. Even tours of the Capitol were cancelled.

43. By contrast, the Brentwood facility continued to operate, twenty-four hours per day, seven days per week. None of the USPS anthrax emergency response procedures were implemented, and none of the facility’s employees were alerted in a timely manner to the fact that they had likely been exposed, and were continuing to be exposed, to anthrax by anthrax.

44. Rather, at all relevant times Brentwood facility employees were repeatedly and falsely assured by USPS officials, including Postmaster General Potter and Plant Manager Haney, among other supervisors and managers, that the facility was safe. Brentwood facility employees also were repeatedly given false and/or misleading information by USPS officials, including Postmaster General Potter and Plant Manager Haney, among other supervisors and managers, about whether they had been exposed to the deadly bacteria. They also were threatened, coerced, and intimidated into not making inquiries about the Daschle letter, the safety of the facility, or their own safety.

45. During a regularly scheduled “floor” meeting on Monday, October 15, 2001, Brentwood facility Electronic Maintenance Technician (“ET”) Larry Littlejohn, whose job responsibilities included maintaining DBCS machines, requested that his supervisor provide a briefing on anthrax and proper safety procedures. The supervisor not only refused to provide the requested safety briefing, but he also threatened Littlejohn with a seven-day suspension and had him forcibly expelled from the building for publicly voicing his concerns. Littlejohn subsequently received notice that he was being suspended for seven days.

46. That same day, Monday, October 15, 2001, Postmaster General Potter delivered a speech in Denver, Colorado during which he falsely declared that the USPS mail system was safe.

47. Thomas Day, USPS Vice President of Engineering and anthrax and security expert, attended the conference with Postmaster General Potter and began coordinating the USPS response to the Daschle letter from Denver, Colorado. At a subsequent community meeting hosted by the USPS on decontamination of the Brentwood facility, Vice President Day admitted that he was personally involved in meetings about whether to shut down the Brentwood facility in response to the anthrax contamination caused by the Daschle letter. Day also admitted that decisions about the Brentwood facility were made at the top levels of the organization, including, on information and belief, by Postmaster General Potter and Unknown Officials Nos. 1-10.

48. Later that same day, Monday, October 15, 2001, the Daschle letter was sent to the U.S. Army Medical Research Institute for Infectious Disease (“USAMRIID”) at Fort Detrick, Maryland for further testing. USAMRIID scientist Dr. John Ezzell tested the letter and concluded that, in his many years of researching anthrax, he had never seen anthrax spores so potent. Dr. Ezzell characterized the anthrax in the Daschle letter as being “weaponized.” Indeed, the anthrax spores were so potent that, when Dr. Ezzell opened the Daschle letter to test it, some of its contents aerosolized instantly. 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.

49. On Tuesday, October 16, 2001, all Senate employees were tested for anthrax exposure and given antibiotics as a countermeasure. The results of these tests 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.

50. Also on Tuesday, October 16, 2001, Major General John Parker, U.S. Army Commanding General at USAMRIID, stated 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.”

51. Also on Tuesday, October 16, 2001, the Federal Bureau of Investigation notified the USPS Inspection Service that laboratory tests revealed the Daschle letter to contain a “potent” strain of anthrax. The Inspection Service, in turn, notified Postmaster General Potter of the potency of the anthrax spores in the Daschle letter. Thus, USPS officials, including Postmaster General Potter and, on information and belief, Vice President Day and Unknown Officials Nos. 1-10, clearly knew at least as early as Tuesday, October 16, 2001, that a very dangerous condition likely existed at the Brentwood facility.

52. Nonetheless, USPS officials, including Postmaster General Potter and, on information and belief, Unknown Officials Nos. 1-10, failed to invoke any of the USPS emergency procedures, including the procedures set forth in Management Instruction EL-860-1999-3, and failed to evacuate or otherwise shut down the Brentwood facility. Nor did any USPS official, including Postmaster General Potter, Vice President Day, or Unknown Officials Nos. 1-10, advise Brentwood facility employees, including Plaintiffs, of the substantial danger to which they were likely being exposed.

53. To the contrary, on Tuesday, October 16, 2001, USPS officials, acting, on information and belief at the direction of Postmaster General Potter, Vice President Day, and/or Unknown Officials Nos. 1-10, instructed Brentwood facility supervisors, via the USPS e-mail system, to provide false safety briefings 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, including the letter that was sent to Senator Daschle’s office.

54. Plaintiff Alston, a Brentwood facility supervisor, received a copy of this false safety briefing from Manager of Distribution Operations (“MDO”) John Cooke with instructions to give the false briefing to employees under his supervision. Plaintiff Alston refused to give the false safety briefing, which instead was given by a fellow supervisor named Queen. The briefing was clearly false, as all mail destined for U.S. Government offices in the District of Columbia, including mail destined for Senator Daschle’s office, was processed at the Brentwood facility.

55. On Wednesday, October 17, 2001, Congressional leaders arranged for an unprecedented shutdown of the U.S. House of Representatives after thirty-one (31) staffers tested positive for exposure to anthrax. This number was later reduced to twenty-eight (28) staffers. 56. Also on Wednesday, October 17, 2001, anthrax spores were found in a mail room at the Dirksen Senate Office Building, through which the Daschle letter had passed before being sent on to the Hart Senate Office Building.

57. Based on these additional findings -- the positive test results from U.S. House of Representative staffers and contamination of the Dirksen Senate Office Building mail room -- USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, and Unknown Officials Nos. 1-10, knew or should have known, at least as early as Wednesday, October 17, 2001, that the “weaponized” anthrax spores contained in the Daschle letter had caused widespread contamination and had likely contaminated the Brentwood facility, creating a dangerous health risk to Plaintiffs and other workers.

58. Indeed, USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day and/or Unknown Officials Nos. 1-10, clearly suspected, at least as early as Wednesday, October 17, 2001, that the Brentwood facility had been contaminated because on that date the USPS ordered that the Brentwood facility be tested for anthrax spores. At no point on Wednesday, October 17, 2001, however, did USPS officials, including Postmaster General Potter, Vice President Potter or Unknown Officials Nos. 1-10, invoke any of the USPS emergency procedures, including the procedures set forth in Management Instruction EL-860-1999-3, or otherwise evacuate or shut down the Brentwood facility. Nor did any USPS official, including Postmaster General Potter, Vice President Day, or Unknown Officials Nos. 1-10, advise Brentwood facility employees, including Plaintiffs, of the substantial danger to which they were likely being exposed.

59. On Thursday, October 18, 2001, all buildings on Capitol Hill were closed and quarantined. Capitol Hill was treated as a crime scene by the FBI.

60. At least as early as the morning of Thursday, October 18, 2001, USPS officials, including Plant Manager Timothy C. Haney and USPS Senior Vice President Deborah Willhite, clearly knew the Brentwood facility had been contaminated with anthrax. According to notes kept by Plant Manager Haney, on the morning of Thursday, October 18, 2001:

I met with Rick Edwards, representative of the Senate, Debroah Wilhite (sic), and Terry Poole. Mr. Edwards was upset that the senator 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, I pulled Deborah aside and let her know that the mail was leaking and that we were affected. [Emphasis added].

61. On information and belief, Plant Manager Haney informed Postmaster General Potter, Vice President Day, and Unknown Officials Nos. 1-10 that anthrax spores had leaked out of the envelope in which the Daschle letter had been mailed, causing contamination at the Brentwood facility. Indeed, Plant Manager Haney stated in an interview with a USPS Equal Employment Opportunity Dispute Resolution Specialist that “[d]uring the period before the decision was made to close the plant, he communicated and met frequently with senior Postal Service officials to exchange information, seek guidance, and direction.”

62. Also on the morning of Thursday, October 18, 2001, Postmaster General Potter and, on information and belief, Vice President Day and Unknown Officials Nos. 1-10, were notified that the CDC had confirmed a New Jersey state medical examiner’s finding on October 16, 2001 that a letter carrier in New Jersey, where the Daschle letter had been mailed, was suffering from cutaneous anthrax.

63. Nonetheless, during a press conference at The White House on the morning of Thursday, October 18, 2001, Postmaster General Potter falsely represented that the mail was safe. Plaintiffs Brisco, Gagnon and Porter saw news reports about Postmaster General Potter’s press conference on television. Plaintiff Alston heard news reports about Postmaster General Potter’s press conference on the radio.

64. At approximately 12:30 p.m. on Thursday, October 18, 2001, Postmaster General Potter held a press conference in an unused section of the Brentwood facility. Employees were discouraged from asking questions at, or even attending, the press conference. Some employees were told that they could not attend the press conference while “on the clock.” Consequently, a large number of employees, including Plaintiff Worrell, “clocked out” in order to attend the press conference. Other employees, like Plaintiff Butler, were told “not to go anywhere near” the press conference.

65. During the press conference, and despite knowing from FBI and CDC reports, among other sources, that the Brentwood facility had likely been contaminated with “weaponized” anthrax spores, Postmaster General Potter falsely represented to the employees and members of the news media in attendance that the Brentwood facility was safe. Plaintiffs Brisco and Porter saw news reports about Postmaster General Potter’s statements on television. Plaintiff Alston heard news reports about Postmaster General Potter’s statements on the radio.

66. Plaintiff Gagnon was one of the many employees who “clocked out” on his lunch break in order to attend the press conference. During a “question and answer” period, Plaintiff Gagnon raised his hand to try to ask a question. As soon as Plaintiff Gagnon raised his hand, however, someone grabbed his arm from behind and forced it down. Plaintiff 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. Plaintiff Gagnon responded that he was not doing anything illegal and pulled his arm away from the Postal Inspector’s grasp. The Postal Inspector then threatened Plaintiff Gagnon that, if he tried to ask any questions again, he would be arrested. Plaintiff Gagnon then left the press conference and returned to work.

67. Upon his return to work, Plaintiff Gagnon’s supervisor was waiting for him. The supervisor informed Plaintiff Gagnon that she had been instructed to initiate proceedings to fire him for going to the press conference and trying to ask questions. Plaintiff Gagnon asked her who had given her these instructions. She responded that the instructions had been given by Plant Manager Haney.

68. News of Plaintiff Gagnon’s attempt to ask a question at Postmaster General 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. The incident caused many Brentwood employees to feel intimidated and made them fearful of asking questions of their supervisors about the safety of the facility.

69. Also on Thursday, October 18, 2001, the USPS contacted the Fairfax County HAZMAT Team to have them perform quick, on-site field tests for anthrax spores at the Brentwood facility. The Fairfax County HAZMAT Team sent over two employees in full protective gear, i.e., “moonsuits,” to take samples while the postal employees continued their normal duties without any protection. The Fairfax County HAZMAT Team tested DBCS #16-20 and the Government mail section at the front end of the workroom floor.

70. Also on Thursday, October 18, 2001, inspectors from URS Greiner Woodward Clyde Engineering Consultants (“URS”), also wearing protective “moonsuits,” began testing the facility for anthrax contamination that afternoon.

71. Brentwood Plant Manager Haney’s notes about the results of the URS tests further confirm that, at least as early as Thursday, October 18, 2001, he 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, I was called by [Postmaster 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 floor. I contacted Corporate Media and the broadcast was coordinated. They all left after the broadcast (about Noon). I then met with [redacted] from URS along with some members of my staff. We identified the machines that we had reason to feel the mail had been run on. At 6:15 p.m., that night, I spoke with Inspectors Weaver and Clemans to get additional information from the letter. They did not have the ID tag information at them (sic) time, 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. [Emphasis added]. URS continued with the testing, but it was not completed until 02:30 a.m. on the 19th, at which time I went home.

72. On information and belief, Plant Manager Haney informed Postmaster General Potter, Vice President Day, and Unknown Officials Nos. 1-10 about the results of the URS tests.

73. Also on Thursday, October 18, 2001, Plant Manager Haney, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, and/or Unknown Officials Nos. 1-10, held a series of “floor” meetings with Brentwood employees, including Plaintiffs Butler and Worrell, during which Haney falsely represented to the employees that both the building and the mail were safe and that the employees should continue to work. Haney specifically told the employees that there was no anthrax in the building and nobody was going to die from it, when, according to his own notes, he clearly knew URS had found anthrax contamination at the Brentwood facility. Plant Manager 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 safe. Brentwood facility employee Joseph Curseen, Jr., who later died of inhalation anthrax, was in attendance at one of these meetings.

74. During one of these “floor” meetings on Thursday, October 18, 2001, Plaintiff Terrell Worrell asked Plant Manager 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. Haney would not answer Plaintiff Worrell’s question. Instead, Haney shot back, “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.” Haney then told Plaintiff 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. He also stated that the USPS could not afford to have employees sitting at home on administrative leave while tests were being performed. Haney also threatened the employees that, if they did not report for work, they would lose their jobs. Haney further told the Brentwood facility employees that it would cost the USPS $500,000 a day if the Brentwood facility were shut down.

75. Also during one of the “floor” meetings on Thursday, October 18, 2001, Plaintiff Gagnon, who had been threatened by a Postal Inspector at Postmaster General Potter’s press conference, raised his hand and asked Plant Manager Haney what gave him the right to interfere with his First Amendment rights, obviously in reference to his question to Postmaster General Potter at the press conference. Plant Manger Haney went into a hostile tirade in which he repeatedly made aggressive gestures towards Plaintiff Gagnon and accused Plaintiff Gagnon of being an “embarrassment” to the USPS. Plant Manager Haney ended his tirade by telling Plaintiff Gagnon that he, Plaintiff Gagnon, was “finished.” Senior Manager of Distribution Operations (“SMDO”) Caroline Talley endorsed Plant Manager Haney’s threat by yelling “Yeah!”

76. During another “floor” meeting on Thursday, October 18, 2001, Brentwood facility employee Kelvin Sanker asked Plant Manager Haney why the machines and building were being tested by biological hazard experts in “moonsuits,” but employees were not being tested or evacuated. Haney refused to answer Sanker’s question and threatened to expel Sanker from the building.

77. Plaintiff Briscoe was not at the Brentwood facility on either Thursday, October 18, 2001 or Friday, October 19, 2001, as these were her regularly scheduled days off.

78. Plaintiff Porter was a letter carrier who, except for his days off, reported to the Government mail and Express mail sections of the Brentwood facility at approximately 9:00 a.m. every morning and returned to the facility every evening at approximately 5:00 p.m., including every day between the discovery of the Daschle letter on Monday, October 15, 2001 and Friday, October 19, 2001. Plaintiff Porter spent approximately one and one half (1½) hours at the Brentwood facility per day. No effort was made by USPS management to brief Plaintiff Porter or other letter carriers about the Daschle letter or the anthrax contamination at the facility, nor was Plaintiff Porter informed in a timely manner that he had likely been exposed, and was continuing to be exposed, to anthrax spores. One supervisor told Plaintiff Porter that there was “nothing to worry about” and that all employees should come to work and do their jobs. When Plaintiff Porter asked other supervisors about persons wearing “moonsuits” in the facility, he was told to mind his own business and get back to work. Leroy Richmond, who later was diagnosed with inhalation anthrax, worked in the Express mail section of the facility, and Plaintiff routinely worked with and interacted with Richmond in the Express mail section of the Brentwood facility.

79. By Friday, October 19, 2001, if not well before that date, USPS officials knew which machine at the Brentwood facility had processed the Daschle letter and had notified the CDC accordingly. As set forth in Plant Manager Haney’s notes from that date:

At 7:00 a.m., I had a telecon with Pat Donahue and his staff to brief him on our progress. I arrived at work at 9:00 a.m. and did the ID tag analysis determining that the origin facility was Trenton NJ. By 11:00 a.m., we had resolved the exact machine (DSBC 17) that had been used to sort the mail and provided this information to both URS and the CDC. The CDC arrived during the afternoon and used this information during their investigation. They said that they would use the information to focus on the following items:

Epidemolical issues (sic)

Help with contamination testing

Look at employees

Identify employees that were possibly contaminated

Calling the DC Department of Health

I received a call that night from the DC Mayor’s Office of Emergency Response (OER) team to attend a meeting at 6:00 a.m. on Saturday.

80. Also on Friday, October 19, 2001, USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, and Unknown Officials Nos. 1-10, began requesting that the District of Columbia Department of Health place all Brentwood employees on antibiotics for exposure to anthrax. At no point on Friday, October 19, 2001, however, did any USPS official, including Postmaster General Potter, Vice President Day, Plant Manager Haney or Unknown Officials Nos. 1-10, invoke any of the USPS emergency procedures, including the procedures set forth in Management Instruction EL-860-1999-3, or otherwise take steps to evacuate or shut down the Brentwood facility. Nor did any USPS official, including Postmaster General Potter, Vice President Day, or Unknown Officials Nos. 1-10, advise Brentwood facility employees, including Plaintiffs, of the substantial danger to which they were likely being exposed.

81. Also on that same day, Friday, October 19, 2001, Postmaster General 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. “We are talking with employees and sharing information as quickly as it becomes available,” Postmaster General Potter also falsely claimed.

82. Also on Friday, October 19, 2001, Plant Manager Haney, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, and/or Unknown Officials Nos. 1-10, held another series of “floor” meetings with Brentwood employees, including Plaintiffs 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.

83. Despite Haney’s false assurances, rumors began to circulate that USPS officials knew the Brentwood facility, and DBCS #17 specifically, was contaminated with anthrax spores. As a result, at approximately 4:00 p.m. on Friday, October 19, 2001, several Brentwood facility ETs assigned to work on DBCS #17 approached Plaintiff Alston and stated that they had heard a rumor DBCS #17 was contaminated with anthrax spores. Plaintiff Alston told the ETs to stay away from the machine until he could determine if what they had heard was true.

84. Plaintiff Alston asked Supervisors Mitchell and Lewis if they had heard, or been told, that DBCS #17 or any other machine was contaminated with anthrax spores. Both answered no. At approximately 4:15 p.m., however, MDO Cooke told Plaintiff Alston that DBCS #17 was not to be used because it was contaminated with anthrax spores.

85. MDO Cooke also told Plaintiff Alston that gloves and masks were available for employees’ use, but that he should not pass them out to employees unless they specifically asked for them, as there were not enough gloves and masks to give to all of the employees on duty.

86. MDO Cooke also told Plaintiff Alston that, if any employees wished to leave work because they were emotionally upset by the anthrax contamination, he should let them go, but should take written disciplinary action against the employees upon their return to work. MDO Cooke stated that these instructions came from senior USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, Plant Manager Haney, and/or Unknown Officials Nos. 1-10.

87. Thus, at some point on Friday, October 19, 2001, the machine that had processed the Daschle letter, DBCS #17, was taken off-line because it was contaminated with anthrax. Nonetheless, Brentwood facility employees were not informed that the Daschle letter had been processed on DBCS #17, nor were they informed why DBCS #17 had been shut down.

88. At approximately 11:30 p.m., on Friday, October 19, 2001, Supervisor of Maintenance Operations Jimmy Tihoe returned to work from his scheduled two days off and was told by Acting Supervisor Tom Dickey that DBCS #17 was contaminated with anthrax. Dickey also told Tihoe that employees were refusing to work on the machine.

89. At that same time, Manager Chapman ordered ETs Edgar and Wright to get DBCS #17 up and running again. ET’s Edgar and Wright protested because they had heard rumors that DBCS #17 was contaminated with anthrax spores. Manager Chapman insisted that the machine was not contaminated and ordered them to clean DBCS #17 by “blowing it out” with compressed air and to get it on-line immediately.

90. Other Brentwood employees heard managers state that they needed DBCS #17 on-line because another DBCS machine had broken down, and DBCS #17 was needed to meet their processing goals. As a result, DBCS #17 was brought back on-line.

91. 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 Richmond was suffering from inhalation anthrax.

92. USPS officials, including, on information and belief, Postmaster General Potter, Vice President Day, Plant Manager Haney, and Unknown Officials Nos. 1-10, were notified that Richmond had been admitted to the hospital for possible inhalation anthrax. Indeed, on that same day, Friday, October 19, 2001, Richmond’s wife called Plant Manager Haney and left a message on his voice mail stating that her husband was suffering from inhalation anthrax and that the facility must be shut down immediately. In addition, throughout the morning of October 20, 2001, Mrs. Richmond called other Brentwood facility supervisors to inform them that her husband was suffering from inhalation anthrax.

93. Plant Manager Haney’s notes also show he clearly knew, at least as early as a 6:00 a.m. meeting with the Mayor’s Office of Emergency Response (“OER”) on Saturday, October 20, 2001, that at least one Brentwood employee was suffering from possible inhalation anthrax exposure. According to Haney’s notes:

Present at the OER meeting were Deborah Willlhite, Inspector Clemons, Susan Medvidovidth, Jerry Lane and myself. The discussion was about [redacted] who was in the hospital; confirmation that the facility tested positive; and that more testing was on the way. [Emphasis added]. Meanwhile, we were still 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. I stayed at the facility most of the night.

94. Nonetheless, Plant Manager Haney, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, and/or Unknown Officials Nos. 1-10, held another series of “floor” meetings with Brentwood employees, including Plaintiffs Briscoe, Butler, and Worrell, on Saturday, October 20, 2001, during which he again falsely represented to the employees, including Plaintiffs Briscoe, Butler, and Worrell, that the facility was safe and no evidence of anthrax spores had been found. Haney falsely stated, “We have made it this far and we do not have any positive test results for anthrax.” He mentioned that one Brentwood facility employee had been hospitalized and was being examined for potential inhalation anthrax. Haney falsely stated, however, that the employee’s tests had been negative so far and that everything was OK. He then expressed concern that the mail volume being processed in the facility was dropping, as were processing goals. Haney then told the employees that they needed to focus on processing the mail and meeting their processing goals. He also falsely promised that all news would be shared with the employees.

95. Plant Manager Haney also told Brentwood employees, including Plaintiffs Briscoe, Butler, and Worrell, at least three (3) times during this same meeting that if they encountered any suspicious pieces of mail, they should pick it up with their hands and carry it to red bio-hazard bags that had been placed throughout the building. When Brentwood facility ET David Norville, who had received training for exposure to biological hazards while serving in the military, questioned Haney about this instruction, Haney threatened to expel him from the building. Haney became very belligerent toward employees who asked specific questions about the proper procedures for handling suspicious letters and packages. Haney even told one employee to “shut up.”

96. Also on October 20, 2001, anthrax was found in the Ford Office Building where mail was processed for the U.S. House of Representatives. Mail delivered to the Ford Office Building was processed at the Brentwood facility.

97. At 4:39 a.m. on Sunday, October 21, 2001, Brentwood employee Thomas Morris, Jr. called 911 complaining of inhalation anthrax-like symptoms. Morris told the 911 dispatcher that he suspected that he had been exposed at work to an envelope containing lethal anthrax spores. Morris died of inhalation anthrax several hours later.

98. At approximately 11:00 a.m. on Sunday, October 21, 2001, CDC Representative Jim Haslet told Plant Manager Haney that the Brentwood facility needed to be closed. After his conversation with Haslet, Haney told all employees to gather in the cafeteria at 12:00 p.m. for a meeting.

99. At the meeting on Sunday, October 21, 2001 in the Brentwood facility cafeteria, Plant Manager Haney told the employees in attendance, including Plaintiff 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.” The employees in attendance, including Plaintiff Worrell, were directed to go to Judiciary Square for medical evaluation and treatment.

100. Not all employees were allowed to attend the meeting in the cafeteria, however. Approximately eight (8) to ten (10) employees, including Plaintiff Butler, were paged on the public address system and instructed to report to the MDO office. When Plaintiff Butler reported to the MDO office, he was told to take a seat in the conference room, which he did. After the other employees arrived, SMDO Talley entered the conference room and addressed the group of employees. Acting, on information and belief, at the direction of Plant Manager 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/platform area so that it could be loaded onto trucks. The employees, including Plaintiff Butler, asked SMDO Talley what was going on in the cafeteria with the other workers. 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.” 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.

101. Not having any information to the contrary, the employees, including Plaintiff Butler, did as SMDO Talley directed. At no point during the meeting were any of the employees, including Plaintiff Butler, notified the plant had been contaminated with anthrax spores.

102. Plaintiff Butler continued to work until 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. At no point was Plaintiff Butler issued any protective gear.

103. After finishing his work, Plaintiff Butler went to his car in the parking lot. As Plaintiff Butler drove towards the exit of the parking lot, he saw a manager handing out flyers to the next tour of workers arriving for their shift. Plaintiff Butler pulled over his car and asked the manager for a flyer. It was only upon reading the flyer that Plaintiff Butler learned that the Brentwood facility was being closed due to anthrax contamination and that all postal workers were being instructed to report to Judiciary Square for medical evaluation and treatment.

104. Other employees, including Plaintiff Gagnon, remained at the Brentwood facility until approximately 7:00 p.m. to turn off fans and air and dust handling equipment, and otherwise close down the plant. Plaintiff Gagnon was not at the Brentwood facility on either Friday, October 19, 2001 or Saturday, October 20, 2001, as these were his regularly scheduled days off. Nonetheless, Plaintiff Gagnon agreed to stay behind to assist in closing down the facility because he was fearful of losing his job after the threats he had received on Thursday, October 18, 2001. Like Plaintiff Butler, none of the employees who stayed behind to close down the plant were issued any protective gear.

105. At approximately 7:00 p.m. on Sunday, October 21, 2001, the Brentwood facility was finally closed, ten (10) days after the Daschle letter had passed through the facility, and at least four (4) days after USPS officials knew the facility had been contaminated.

106. Even after the Brentwood facility was closed on Sunday, October 21, 2001, truck drivers employed at the facility were called in to transport potentially contaminated mail to other postal facilities. The truck drivers worked late into the night and the early morning hours of Monday, October 22, 2001 to remove potentially contaminated mail from the Brentwood facility. Like the other employees who stayed behind to close down the plant, none of the drivers were issued any protective gear. Incredibly, mail that had been in the Brentwood facility was not transported to other facilities for decontamination, but, rather, was sent to other facilities to be processed and delivered to homes and businesses all across the world.

107. On Monday, October 22, 2001, Brentwood facility Supervisor of Maintenance Operations Jimmy 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. Hall told Tihoe that senior Brentwood managers, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, Plant Manager Haney, and Unknown Officials Nos. 1-10, had told him and other mid-level managers to lie to the floor supervisors and employees about the Brentwood facility being contaminated with anthrax.

108. On the morning of Monday, October 22, 2001, Brentwood facility employee Joseph Curseen went to the hospital with flu-like symptoms. That evening, Mr. Curseen died of inhalation anthrax.

109. That same day, two more Brentwood facility employees were hospitalized and nine (9) other employees became ill with anthrax-like symptoms.

110. Since the anthrax contamination at the Brentwood facility in October 2001, many Brentwood employees, including Plaintiffs, have experienced and continue to experience anthrax-like symptoms, in addition to substantial emotional distress, pain, suffering, and anxiety caused by these events.

111. At all relevant times, Brentwood employees, including Plaintiffs, relied on the knowingly false and/or misleading statements made by Postmaster General Potter and Plant Manager Haney. At no time relevant to the acts and omissions alleged herein did Plaintiffs understand these statements to be false. Had Postmaster General Potter and Plant Manager Haney not made false and/or misleading statements to Plaintiffs about the building and the mail being safe and there being no evidence of anthrax contamination at the facility, among other false and/or misleading statements, Plaintiffs would have invoked the remedies available to them under their collective bargaining agreements and the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654, et seq., as well as USPS emergency response procedures, in a timely manner.

112. As a proximate result of Defendants’ knowingly false and/or misleading statements and/or failure to invoke USPS emergency response procedures or otherwise provide a safe work environment, Plaintiffs were needlessly exposed to an extraordinary health hazard -- the “weaponized” anthrax spores contained in the Daschle letter -- for an unnecessarily prolonged period of time and suffered substantial injuries, including but not limited to physical injuries, emotional distress, pain, suffering, and anxiety.

113. To date, the Brentwood facility remains closed due to the anthrax contamination caused by the Daschle letter.

COUNT I

(Violation of Fifth Amendment Rights - Plaintiffs Briscoe, Butler,

Worrell and Porter)

114. Plaintiffs reallege and incorporate by reference Paragraphs 1 through 113 herein.

115. Plaintiffs enjoy the clearly established right to due process of law, as guaranteed by the Fifth Amendment to the U.S. Constitution.

116. Defendants, acting individually and in concert with each other, and acting under color of federal authority, willfully and intentionally deprived Plaintiffs of their clearly established Fifth Amendment right to due process by: (a) providing false and/or misleading information about the safety of the Brentwood facility after they knew the facility was contaminated with anthrax; and/or (b) failing to provide accurate information to Plaintiffs about the safety of the facility after they knew it was contaminated with anthrax, thereby depriving Plaintiffs of applicable remedies allowed under their collective bargaining agreements, and/or preventing Plaintiffs from invoking these remedies in a timely manner.

117. Defendants’ conduct was so egregious and outrageous that it shocks the contemporary conscience.

118. As a proximate result, Plaintiffs suffered substantial damage, including but not limited to physical, mental, and emotional injuries.

WHEREFORE, Plaintiffs demand that judgment be entered against Defendants, jointly and severally, for an amount in excess of $100,000,000.00, including but not limited to an award of compensatory damages, punitive damages, reasonable attorneys fees, pre-judgment interest, post-judgment interest, costs, and such other relief as the Court deems just and proper.

COUNT II

(Violation of Fifth Amendment Rights – All Plaintiffs)

119. Plaintiffs reallege and incorporate by reference Paragraphs 1 through 118 herein.

120. Defendants, acting individually and in concert with each other, and acting under color of federal authority, willfully and intentionally deprived Plaintiffs of their clearly established Fifth Amendment right to due process by: (a) providing false and/or misleading information about the safety of the Brentwood facility after they knew the facility was contaminated with anthrax; and/or (b) failing to provide accurate information to Plaintiffs about the safety of the facility after they knew it was contaminated with anthrax, thereby depriving Plaintiffs of the protections and remedies of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654, et seq. and/or preventing Plaintiffs from invoking these remedies in a timely manner.

121. As a proximate result, Plaintiffs suffered substantial damage, including but not limited to physical, mental, and emotional injuries.

WHEREFORE, Plaintiffs demand that judgment be entered against Defendants, jointly and severally, for an amount in excess of $100,000,000.00, including but not limited to an award of compensatory damages, punitive damages, reasonable attorneys fees, pre-judgment interest, post-judgment interest, costs, and such other relief as the Court deems just and proper.

COUNT III

(Violation of Fifth Amendment Rights - All Plaintiffs)

122. Plaintiffs reallege and incorporate by reference Paragraphs 1 through 121 herein.

123. Defendants, acting individually and in concert with each other, and acting under color of federal authority, willfully and intentionally deprived Plaintiffs of their clearly established Fifth Amendment right to due process by: (a) providing false and/or misleading information about the safety of the Brentwood facility after they knew the facility was contaminated with anthrax; and/or (b) failing to provide accurate information to Plaintiffs about the safety of the facility after they knew it was contaminated with anthrax, thereby depriving Plaintiffs of the benefit of USPS emergency response procedures and/or preventing Plaintiffs from invoking these procedures in a timely manner.

124. As a proximate result, Plaintiffs suffered substantial damage, including but not limited to physical, mental, and emotional injuries.

WHEREFORE, Plaintiffs demand that judgment be entered against Defendants, jointly and severally, for an amount in excess of $100,000,000.00, including but not limited to an award of compensatory damages, punitive damages, reasonable attorneys fees, pre-judgment interest, post-judgment interest, costs, and such other relief as the Court deems just and proper.

COUNT IV

(Violation of Fifth Amendment Rights – All Plaintiffs)

125. Plaintiffs reallege and incorporate by reference Paragraphs 1 through 124 herein.

126. Plaintiffs’ Fifth Amendment right to due process includes a clearly established, substantive due process liberty interest in a safe work environment free from needless danger when officials affirmatively act to increase or create that danger.

127. Defendants, acting individually and in concert with each other, and acting under color of federal authority, willfully and intentionally deprived Plaintiffs of their clearly established substantive due process liberty interest in a safe work environment free from needless danger by: (a) failing to invoke USPS emergency response procedures or otherwise close the Brentwood facility in a timely manner after they knew the facility was contaminated with anthrax; (b) providing false and/or misleading information to Plaintiffs about the safety of the facility after they knew it was contaminated with anthrax; and/or (c) failing to provide accurate information to Plaintiffs about the safety of the facility after they knew it was contaminated with anthrax.

128. As a proximate result, Plaintiffs suffered substantial damage, including but not limited to physical, mental, and emotional injuries.

WHEREFORE, Plaintiffs demand that judgment be entered against Defendants, jointly and severally, for an amount in excess of $100,000,000.00, including but not limited to an award of compensatory damages, punitive damages, reasonable attorneys fees, pre-judgment interest, post-judgment interest, costs, and such other relief as the Court deems just and proper.

Plaintiffs demand trial by jury on all issues so triable.

Respectfully submitted,

JUDICIAL WATCH, INC.

___________________________

Paul J. Orfanedes

D.C. Bar No. 429716

Suite 500

501 School Street, S.W.

Washington, DC 20024

(202) 646-5172

Attorneys for Plaintiffs