IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DENA BRISCOE, et al.,

Plaintiffs,

v. Civil Action No.: 1:03-CV-2084 (RMC)

U.S. POSTAL SERVICE POSTMASTER

GENERAL JOHN E. POTTER, et al., )

Defendants.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS

Plaintiffs, by counsel, respectfully submit their Opposition to Defendants’ Motion to Dismiss.

Respectfully submitted,

JUDICIAL WATCH, INC.

______________________________

Paul J. Orfanedes

D.C. Bar No. 429716

Suite 500

501 School Street, S.W.

Washington, D.C. 20024

(202) 646-5172

Attorneys for Plaintiffs

TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................................... i

TABLE OF AUTHORITIES............................................................................................................. iii

INTRODUCTION............................................................................................................................. 1

STATEMENT OF FACTS................................................................................................................. 2

DISCUSSION.................................................................................................................................. 28

I. F.R.Civ.P. 12(b) Standard......................................................................................... 28

II. Plaintiffs’ Cause of Action Is Not Preempted............................................................. 29

A. A Bivens Action Is Not Preempted When the Plaintiffs

Have Alleged That Defendants Interfered With,

Foreclosed and/or Rendered Effectively Unavailable the

Plaintiffs’ Procedural Rights.......................................................................... 29

B. Because Plaintiffs Have Alleged That Defendants Interfered

With, Foreclosed and/or Rendered Effectively Unavailable

Plaintiffs’ Procedural Rights, Their Bivens Action Is Not Preempted............... 32

C. Plaintiffs’ Substantive Due Process Claim Is Not Preempted........................... 34

III. Defendants Do Not Possess Qualified Immunity......................................................... 35

A. Plaintiffs Have Sufficiently Alleged a Violation of Their

Fifth Amendment Due Process Rights............................................................ 35

1. Plaintiffs Have Sufficiently Alleged a Violation

of Their Procedural Due Process Rights in Counts

1-3 of Their Complaint...................................................................... 35

2. Plaintiffs Have Sufficiently Alleged a Violation of

Their Substantive Due Process Rights in Count 4 of

Their Complaint................................................................................ 37

B. Plaintiffs’ Fifth Amendment Due Process Rights Were

Clearly Established........................................................................................ 42

1. Plaintiffs’ Fifth Amendment Procedural Due

Process Rights Were Clearly Established........................................... 43

2. Plaintiffs’ Fifth Amendment Substantive Due

Process Rights Were Clearly Established........................................... 44

CONCLUSION............................................................................................................................... 45

TABLE OF AUTHORITIES

Cases

Alexander v. Perrill, 916 F.2d 1392 (9^th Cir. 1990)............................................................................. 43

Anderson v. Creighton, 483 U.S. 635 (1987)..................................................................................... 43

Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996)....................................................... 29

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

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).......................................... passim

Browning v. Clinton, 292 F.3d 235 (D.C.Cir. 2001)........................................................................... 28

Bush v. Lucas, 462 U.S. 367 (1983).................................................................................................. 32

*Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001).................................................. passim

Carlson v. Green, 446 U.S. 14 (1980)............................................................................................... 31

Collins v. City of Harker Heights, Texas, 503 U.S. 115 (1992)......................................................... 42

County of Sacramento v. Lewis, 523 U.S. 833 (1998)............................................................. 37, 42, 44

Davis v. Passman, 442 U.S. 228 (1979)............................................................................................. 30

*DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989)................................... 42

Doe v. United States Dep't of Justice, 753 F.2d 1092 (D.C. Cir. 1985)............................................... 37

EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621 (D.C. Cir. 1997)................................... 29

*Estate of Anthony Phillips v. District of Columbia, 257 F. Supp. 2d 69

(D.D.C. 2003)...................................................................................................... 38, 39, 41, 44

Ewolski v. City of Brunswick, 287 F.3d 492 (6^th Cir. 2002)...................................................... 37, 41, 42

Farmer v. Brennan, 511 U.S. 825 (1994).......................................................................................... 37

Fraternal Order of Police v. Williams, 263 F. Supp. 2d 45 (D.D.C. 2003).......................................... 42

Freeman v. Fallin, 254 F. Supp. 2d 52 (D.D.C. 2003)................................................................... 28, 35

*Grichenko v. USPS, et al., 524 F.Supp. 672 (E.D.N.Y. 1981),

aff’d without opinion, 751 F.2d 368 (2^nd Cir. 1984)......................................................... passim

Harlow v. Fitzgerald, 457 U.S. 800 (1982)........................................................................................ 35

Kowal v. MCI Communication Corp., 16 F.3d 1271 (D.C. Cir. 1994)................................................. 28

*Metz v. United States, 723 F. Supp. 1133 (D. Md. 1989)............................................................ passim

Paul v. Davis, 424 U.S. 693 (1976)................................................................................................... 37

Powell v. Lennon, 914 F.2d 1459 (11^th Cir. 1990)............................................................................... 43

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

Saucier v. Katz, 533 U.S. 194 (2001)................................................................................................ 43

Stewart v. District of Columbia Armory Bd., 863 F.2d 1013 (D.C. Cir. 1985)..................................... 29

Statutes and Regulations

29 U.S.C. § 654............................................................................................................................ 1, 27

42 U.S.C. § 1983.............................................................................................................................. 35

Other Authorities

Fifth Amendment to the U.S. Constitution.................................................................................... passim

Federal Rule of Civil Procedure 12(b)........................................................................................... 28, 29

INTRODUCTION

Plaintiffs bring this Bivens action against several officials of the United States Postal Service (“USPS”) for depriving them of their procedural due process and substantive due process rights secured by the Fifth Amendment to the U.S. Constitution. In their procedural due process claims (Counts 1- 3 of the Complaint), Plaintiffs allege that Defendants knew the USPS’s Washington, D.C. Processing and Distribution Center located on Brentwood Road (“Brentwood facility”) was contaminated with anthrax, but interfered with and rendered unavailable the procedures that Plaintiffs could have, and would have, pursued to prevent their continuing exposure to the deadly anthrax spores at the Brentwood facility where they worked. Specifically, Plaintiffs allege that Defendants actionable conduct consisted of: (1) knowingly providing them with false and/or misleading information, and/or failing to provide them with accurate information, about the anthrax contamination at the facility; and (2) threatening, intimidating and coercing Plaintiffs not to ask questions about the safety of the facility for fear of retaliation. Plaintiffs further allege that Defendants’ actionable conduct prevented them from invoking in a timely manner the protections and remedies afforded by their collective bargaining agreements, Occupational Safety and Health Act (“OSHA”) of 1970, 29 U.S.C. § 654, et seq., and/or USPS emergency response procedures, thereby causing them to continue to be exposed to the danger of injury and death from the anthrax contamination at the Brentwood facility. In their substantive due process claim (Count 4 of the Complaint), Plaintiffs allege that Defendants’ aforementioned actionable conduct also created a danger or enhanced and/or made Plaintiffs more vulnerable to the danger of injury or death from anthrax contamination at the Brentwood facility in violation of their substantive due process rights.

STATEMENT OF FACTS

A. The USPS Must Provide a Safe Working Environment to Plaintiffs or Else Plaintiffs May Invoke Remedies Under Their Collective Bargaining Agreements.

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. Complaint at ¶ 19. 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.” Id. at ¶ 20. 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.

Id. (emphasis added). 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. Id. at ¶ 21.

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. Id. at ¶ 22. 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.” Id. at ¶ 23. 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.

Id. (emphasis added). 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. Id. at ¶ 24.

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. Id. at ¶ 25. 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.” Id. at ¶ 26.

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.

Id. (emphasis added). 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. Id. at ¶ 27. At all times relevant to this lawsuit, there was no collective bargaining agreement in effect between the NAPS and the USPS. Id. at ¶ 28.

B. The USPS Must Provide a Safe Working Environment to Plaintiffs or Else Plaintiffs May Invoke Remedies Under OSHA.

At all relevant times, employees at the Brentwood facility were entitled to the full protections and remedies of OSHA, among other applicable laws and regulations, including the right to a safe working 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 working conditions. Id. at ¶ 29.

C. USPS Officials Knew of the Dangers Posed By Anthrax Sent Through The Mail.

At all relevant times, USPS officials were 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. Id. at ¶ 30. 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. Id. 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. Id.

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. Id. at ¶ 31. 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.

Id. 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.” Id. at ¶ 31. 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.

Id. at ¶ 33. 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.

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.

Id. at ¶ 34 (emphasis added).

D. The Brentwood Facility Becomes Contaminated By Anthrax From The Daschle Letter.

On Tuesday, October 9, 2001, an anthrax‑laden letter addressed to Senator Tom Daschle at his U.S. Senate offices in Washington, D.C. was deposited in the U.S. mail in New Jersey. Id. at ¶ 35. On or about Thursday, October 11, 2001, the Daschle letter was received by and processed at the Brentwood facility using Delivery Bar Code Sorter (“DBCS”) machine #17 and was then moved by mail transport equipment to the Government Mail Section for delivery to the Hart Senate Office Building. Id. at ¶_ 36, 37, 38. Shortly after this letter was processed, 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 deadly anthrax spores throughout the Brentwood facility. Id. at ¶ 39.

E. The Hart Senate Office Building Was Closed and Mail Delivery from the Brentwood Facility Was Suspended Because Capitol Police’s Field Test Confirmed That the Daschle Letter Contained Anthrax.

The Daschle letter was delivered to the Hart Senate Office Building on Friday, October 12, 2001. Id. at ¶ 40. On Monday, October 15, 2001, the Daschle letter was opened in the Senator’s office and was found to contain a suspicious, fine white powder. Id. at _ 41. The Capitol Police were called immediately and performed a field test on the letter, which was found to contain anthrax spores. Id. at ¶_ 41, 42. The ventilation system in the building was immediately shut down, and the building was closed. Id. Bundles of letters and packages were quarantined, and all mail delivery was suspended. Id. at _ 42. Staffers in Senator Daschle’s officer were tested and given antibiotics. Even tours of the Capitol were cancelled. Id.

F. USPS Officials Created a Danger and/or Enhanced or Made the Brentwood Facility Employees More Vulnerable to Danger by Requiring Them to Work in an Environment That Was Likely Contaminated with Anthrax.

By contrast with the prudent and responsible safety precautions taken on Capitol Hill, the USPS continued to operate the Brentwood facility, twenty‑four hours per day, seven days per week, even though USPS officials knew that the facility had processed the anthrax-laden Daschle letter and that anthrax spores could leak from a sealed envelope during processing by the machines at the facility. By continuing to operate the facility, USPS officials caused Plaintiffs and all the Brentwood employees to work in an unsafe workplace where they would be exposed to the danger of anthrax contamination from the deadly anthrax spores that had leaked from the envelope containing the Daschle letter. Id. at ¶ 43.

In shocking disregard for the incipient danger of anthrax contamination at Brentwood, USPS officials failed to implement Management Instruction EL‑860‑1999‑3, and they failed to alert any of the facility’s employees in a timely manner that the employees had likely been exposed, and were continuing to be exposed, to anthrax contamination at the facility. Id. Rather, at all relevant times, USPS officials, including Postmaster General Potter and Facility Manager Haney, among other supervisors and managers, repeatedly and falsely assured Brentwood facility employees that the facility was safe. Id. at ¶ 44. USPS officials, including Postmaster General Potter and Facility Manager Haney, among other supervisors and managers, also repeatedly gave intentionally false and/or misleading information to Brentwood facility employees, falsely assuring them that they had not been exposed to the deadly bacteria when, in fact, the USPS officials knew that the facility was likely contaminated with anthrax from the Daschle letter. Id. Worse yet, USPS officials, including Defendants, also threatened, coerced, and intimidated the Brentwood workers into not making inquiries about the Daschle letter, the safety of the facility, or their own safety. Id.

After the discovery of anthrax in the Daschle letter and 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 (including DBCS #17 that had processed the Daschle letter), requested that his supervisor provide a briefing on anthrax and proper safety procedures. Id. at ¶ 45. 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. Id. Littlejohn subsequently received notice that he was being suspended for seven days. Id.

That same day, Postmaster General Potter delivered a speech in Denver, Colorado during which he falsely declared that the USPS mail system was safe, despite the fact that he knew the Brentwood facility had processed the Daschle letter containing anthrax. Id. at ¶ 46. 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.^[1] Id. at ¶ 47.

G. Tests Confirmed That the Daschle Letter Contained Highly Potent and “Weaponized” Anthrax.

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. Id. at ¶ 48. 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. Id. Dr. Ezzell characterized the anthrax in the Daschle letter as being “weaponized.” Id. Indeed, the anthrax spores were so potent that, when Dr. Ezzell opened the Daschle letter to test it, some of its contents aerosolized instantly. Id. 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.

H. Unlike the Brentwood Facility Employees, Senate Employees Were Tested and Given Antibiotics.

On Tuesday, October 16, 2001, all Senate employees were tested for anthrax exposure and given antibiotics as a countermeasure. Id. at ¶ 49. 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. Id.

I. USPS Officials Were Notified That Anthrax in the Daschle Letter Was Dangerously “Potent.”

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.” Id. at ¶ 50. On the same day, the FBI notified the USPS Inspection Service that laboratory tests revealed the Daschle letter to contain a “potent” strain of anthrax. Id. at ¶ 51. The Inspection Service, in turn, notified Postmaster General Potter of the potency of the anthrax spores in the Daschle letter. Id. 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 highly dangerous anthrax contamination likely existed at the Brentwood facility. Id.

J. Despite Knowing That the Brentwood Facility Was Likely Contaminated with Anthrax, USPS Officials Failed to Implement Their Own Emergency Response Procedures, Failed to Advise Brentwood Facility Employees of the Serious Risk of Injury or Death, and Falsely Represented That the Facility Was Safe.

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 response procedures, including the procedures set forth in Management Instruction EL‑860‑1999‑3 regarding suspected anthrax contamination, and failed to evacuate or otherwise shut down the Brentwood facility. Id. at ¶ 52. 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. Id.

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. Id. at ¶ 53. 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. Id. at ¶ 54. Plaintiff Alston refused to give the false safety briefing, which instead was given by another supervisor. Id. The briefing was clearly false, as the USPS Defendants knew that the Daschle letter contained anthrax and that it, like all mail destined for U.S. Government offices in the District of Columbia, was processed at the Brentwood facility. Id.

K. The House of Representatives Was Shut down Because of Anthrax Contamination from a Letter Processed at the Brentwood Facility.

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. Id. at ¶ 55.

L. Anthrax Contamination Was Found in the Senate Mail Room That the Daschle Letter Passed Through Even Though the Daschle Letter Was Never Opened There.

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 unopened before being sent on to the Hart Senate Office Building. Id. at ¶ 56. Based on the Dirksen Building mail room findings, 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 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 Brentwood facility employees, even though the Daschle letter was never opened there. Id. at ¶ 57.

M. USPS Officials Ordered the Brentwood Facility to Be Tested for Anthrax Contamination but Failed to Invoke Emergency Response Procedures and Failed to Advise Brentwood Facility Employees of the Serious Risk of Injury or Death.

Indeed, these USPS officials 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. Id. at ¶ 58. At no time on that day, however, did these USPS officials invoke any of the USPS emergency response procedures, including the procedures set forth in Management Instruction EL‑860‑1999‑3, or otherwise evacuate or shut down the Brentwood facility. Id. Nor did any of these USPS officials advise Brentwood facility employees of the serious danger of injury or death to which they were likely being exposed. Id.

N. Unlike the Brentwood Facility, All Buildings on Capitol Hill Were Closed and Quarantined.

On Thursday, October 18, 2001, all buildings on Capitol Hill were closed and quarantined. Id. at ¶ 59. Capitol Hill was treated as a crime scene by the FBI. Id. By contrast, the Brentwood facility continued to operate despite the USPS officials’ knowledge of the likely potent anthrax contamination.

O. USPS Officials Failed to Invoke Emergency Response Procedures and Failed to Advise Brentwood Facility Employees of the Serious Risk of Injury or Death Despite Confirmation Of Anthrax Contamination At The Facility.

At least as early as the morning of Thursday, October 18, 2001, USPS officials, including Facility Manager Timothy C. Haney and USPS Senior Vice President Deborah Willhite, clearly knew the Brentwood facility had been contaminated with anthrax. Id. at ¶ 60. This knowledge is confirmed by notes kept by Facility Manager Haney, which stated, 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 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.

Id. (emphasis added). On information and belief, Facility Manager Haney also informed Postmaster General Potter, Vice President Day, and Unknown Officials Nos. 1‑10 that anthrax had leaked out of the envelope containing the Daschle letter processed at the Brentwood facility, causing contamination at the Brentwood facility. Id. at ¶ 61. Indeed, Facility 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.” Id.

P. Even Though the Daschle Letter, Which Was Mailed from New Jersey, Was Never Opened by a New Jersey Mail Carrier, He Contracted Anthrax.

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. Id. at ¶ 62. Based on these circumstances, these USPS officials 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 danger of injury or death to Brentwood facility employees, even though the Daschle letter was never opened there.

Q. Despite Known Anthrax Contamination at the Brentwood Facility, USPS Officials Falsely Represented That the Facility Was Safe and Discouraged Employees from Seeking out Information or Asking Questions Regarding the Safety of the Facility.

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

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. Id. at ¶ 64. Employees were discouraged from 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.” Id. Consequently, a large number of employees, including Plaintiff Gagnon, “clocked out” in order to attend the press conference. Id. Other employees, like Plaintiff Butler, were told “not to go anywhere near” the press conference. Id.

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. Id. at ¶ 65. Plaintiffs Briscoe and Porter saw news reports about Postmaster General Potter’s statements on television. Id. Plaintiff Alston heard news reports about Postmaster General Potter’s statements on the radio. Id.

R. USPS Officials Threatened Employees Who Questioned Whether the Brentwood Facility Was Safe.

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

Upon his return to work, Plaintiff Gagnon’s supervisor was waiting for him. Id. at ¶ 67. The supervisor informed Plaintiff Gagnon that she had been instructed by Facility Manager Haney to initiate proceedings to fire him for going to the press conference and trying to ask questions. Id. 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. Id. at ¶ 68. 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. Id.

S. Hazardous Materials Testing Further Confirmed Anthrax Contamination at the Brentwood Facility and Defendants’ Knowledge of Anthrax Contamination.

On the same day as the USPS press conference at the Brentwood facility, the USPS contacted the Fairfax County HAZMAT Team to have them perform quick, on‑site field tests for anthrax at the Brentwood facility. Id. at ¶ 69. 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.