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

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.

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.

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.

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 time (sic), but we were able to get this information from New Jersey. By decoding the ID tag information, we were able to identify the actual machine the mail had been processed on. Since URS only had 30 swabs available, we did this machine and the manual cases for ZIP Code 20510 (The Senate). Again, they tested hot. URS continued with the testing, but it was not completed until 02:30 a.m. on the 19th, at which time I went home.

Id. at ¶ 71 (emphasis added). On information and belief, Facility Manager Haney informed Postmaster General Potter, Vice President Day, and Unknown Officials Nos. 1‑10 about the results of the URS tests. Id. at ¶ 72; see also id. at ¶ 61.

T. Despite Knowledge of Anthrax Contamination, Brentwood Facility Manager Haney Falsely Represented to Brentwood Facility Employees That the Facility Was Safe and Threatened Workers Who Questioned Whether the Facility Was Safe.

Despite his knowledge that the mail-processing machines at Brentwood “tested hot,” Facility Manager Haney, acting, on information and belief, at the direction of Postmaster General Potter, Vice President Day, and/or Unknown Officials Nos. 1‑10, falsely represented to Brentwood employees, including Plaintiffs Butler and Worrell, at a series of “floor” meetings on October 18, 2001 that both the building and the mail were safe and that the employees should continue to work. Id. at ¶ 73; see also id. at ¶ 61. Haney falsely told the employees that there was no anthrax in the building and nobody was going to die from it, notwithstanding that, according to his own notes, he clearly knew URS had found anthrax contamination at the Brentwood facility. Id. Facility 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. Id. Brentwood facility employee Joseph Curseen, Jr., who later died of inhalation anthrax, was in attendance at one of these meetings. Id.

Nonetheless, Facility 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 facility employees, including Plaintiffs Briscoe, Butler, and Worrell, on Saturday, October 20, 2001, during which he again falsely represented to the employees that the facility was safe and no evidence of anthrax spores had been found. Id. at ¶ 94; see also id. at ¶ 61. Haney falsely stated, “We have made it this far and we do not have any positive test results for anthrax.” Id. He mentioned that one Brentwood facility employee had been hospitalized and was being examined for potential inhalation anthrax. Id. Haney falsely stated, however, that the employee’s tests had been negative so far and that everything was okay. Id. He then expressed concern that the mail volume being processed in the facility was dropping, as were processing goals. Id. Haney then told the employees that they needed to focus on processing the mail and meeting their processing goals. Id. He also falsely promised that all news would be shared with the employees. Id.

CC. Brentwood Facility Manager Haney Instructed Brentwood Facility Employees to Handle Suspicious Letters and Packages, Contrary to Management Instruction EL‑860‑1999‑3, and Threatened Workers Who Questioned His Instructions.

Facility 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. Id. at ¶ 95. 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. Id. Haney became very belligerent toward employees who asked specific questions about the proper procedures for handling suspicious letters and packages. Id. Haney even told one employee to “shut up.” Id.

DD. Anthrax-Laden Mail Processed at the Brentwood Facility Also Contaminated Another Capitol Hill Building.

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

EE. Brentwood Employee Thomas Morris Dies from Inhalation Anthrax Contracted at the Brentwood Facility.

Not all employees were allowed to attend the meeting in the cafeteria, however. Id. at ¶ 100. 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. Id. When Plaintiff Butler reported to the MDO office, he was told to take a seat in the conference room, which he did. Id. After the other employees arrived, SMDO Talley entered the conference room and addressed the group of employees. Id. Acting, on information and belief, at the direction of Facility 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. Id. The employees, including Plaintiff Butler, asked SMDO Talley what was going on in the cafeteria with the other workers. Id. 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.” Id. 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. Id. Not having any information to the contrary, the employees, including Plaintiff Butler, did as SMDO Talley directed. Id. at ¶ 101. At no time during the meeting were any of the employees, including Plaintiff Butler, notified the facility had been contaminated with anthrax. Id.

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. Id. at ¶ 102. At no time was Plaintiff Butler issued any protective gear. Id. After finishing his work, Plaintiff Butler went to his car in the parking lot. Id. at ¶ 103. 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. Id. Plaintiff Butler pulled over his car and asked the manager for a flyer. Id. 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. Id.

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 facility. Id. at ¶ 104. 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. Id. Like Plaintiff Butler, none of the employees who stayed behind to close down the facility were issued any protective gear. Id.

HH. The Brentwood Facility Is Finally Closed, Ten (10) Days after the Daschle Letter Had Passed Through the Facility, and at Least Four (4) Days after the USPS Officials Knew for Certain That the Facility Had Been Contaminated.

Similarly, Plaintiffs’ Bivens claim under the Fifth Amendment’s substantive due process clause, i.e., Count 4 of Plaintiffs’ Complaint, is not preempted because Plaintiffs have alleged in their Complaint that the Defendants’ interference with Plaintiffs’ exercise of the procedures by which they could require a safe workplace environment under their collective bargaining agreements, OSHA and/or USPS emergency response procedures also prejudiced, i.e., outright foreclosed and/or rendered effectively unavailable, any substantive claim that they would have brought thereunder. See Complaint at ¶¶ 111-12; see also Grichenko, 524 F.Supp. at 678, n.8 and Bishop, 622 F.2d 357 n.17. Plaintiffs alleged that the same acts by Defendants that violated Plaintiffs’ right to procedural due process also created a danger or enhanced or made Plaintiffs more vulnerable to a danger under the Government/State Endangerment Theory recognized by the D.C. Circuit in Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001). By effectively foreclosing or rendering unavailable the procedures that Plaintiffs could have pursued, and would have pursued, to require a safe workplace environment under their collective bargaining agreements, OSHA and/or USPS emergency response procedures, Defendants’ deceit, false information, threats, coercion and intimidation concerning the anthrax contamination at the Brentwood facility operated to make Plaintiffs more vulnerable to the danger of anthrax contamination by continuing to expose Plaintiffs to such danger. Defendants’ actionable conduct is particularly heinous because they knew that the strain of anthrax that contaminated the facility was potent and “weaponized” and presented the danger of injury or death, which culminated in the death of two Brentwood workers from anthrax contamination.

III. Defendants Do Not Possess Qualified Immunity.

Qualified immunity shields government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To evaluate a due process claim in which government officials have raised the defense of qualified immunity, “the Supreme Court has instructed that courts ordinarily follow a two-prong analysis.” Butera, 235 F.3d at 646.^{^[5]} The first step is to determine whether the plaintiff has alleged a violation of a constitutional right. Id. Next, the Court must assess whether the right at issue was clearly established at the time of the breach. Id. As shown below, Defendants do not possess qualified immunity in this case.

A. Plaintiffs Have Sufficiently Alleged a Violation of Their Fifth Amendment Due Process Rights.

1. Plaintiffs Have Sufficiently Alleged a Violation of Their Procedural Due Process Rights in Counts 1-3 of Their Complaint.

In Metz v. United States, 723 F. Supp. 1133 (D. Md. 1989), a federal employee was knowingly exposed to anthrax while working at a chemical and biological testing center at Fort Detrick, Maryland. Shortly thereafter, the employee became sick and was told by Fort Detrick medical personnel that he should never advise anyone as to the nature of his illness and the exposure to anthrax because of the “top secret” nature of his job. Many years later, the employee died. The deceased’s wife and daughter brought, inter alia, an intentional infliction of emotional distress claim against the United States. The plaintiffs alleged that the government officials’ conduct in instructing the deceased not to tell anyone about his exposure to anthrax was outrageous. The court disagreed and dismissed the claim. Id. at 1137. Importantly, however, the court indicated that a government officials’ conduct would have been so outrageous as to be beyond all bounds of decency if they had “prevent[ed] [the employee] from learning of his own exposure” or “prevent[ed] him from getting medical treatment.” Id.

In the case at bar, Plaintiffs have sufficiently alleged under the Government/State Endangerment Theory that Defendants violated their substantive due process rights by acting with deliberate indifference to the point that shocks the conscience. First, Plaintiffs have alleged, and this Court must accept as true for purposes of this motion, that Defendants’ actions and/or inaction truly shock the conscience because Defendants were aware of the serious risk of harm to Plaintiffs from exposing them to anthrax contamination, especially this particular strain of “weaponized” anthrax, in the workplace environment at the Brentwood facility. See Estate of Anthony Phillips, 257 F. Supp. 2d at 79 (Defendant’s conduct found conscience shocking because, inter alia, they were put on notice of the serious consequences that could result from their action or inaction.). More specifically, Plaintiffs have alleged that Defendants were on notice that anthrax spores sent through the mail could penetrate the sides of a sealed envelope during processing at the Brentwood facility and, thereby, cause serious injury and/or death to Plaintiffs for each of the following reasons:

1. USPS regulations require that nothing less than a “fail-safe package” be used for transporting bio-hazardous materials, such as anthrax, through the US mail to prevent leakage (id. at ¶ 30);

2. On Wednesday, October 17, 2001, anthrax was found in the Senate mail room that the Daschle letter passed through even though the letter was never opened there (id. at ¶ 56, 57);

3. On the morning of October 18, 2001, Defendants were notified that the CDC confirmed the New Jersey state medical examiner’s finding on October 16, 2001 that a New Jersey Postal carrier was infected with cutaneous anthrax even though the Daschle letter, which was mailed from New Jersey, was never opened by the New Jersey mail carrier ( id. at ¶ 62);

^{^[1]}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. Id. 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. Id.

^{^[2]}Although Defendants admit the Court may not consider materials outside of Plaintiffs’ Complaint, they nonetheless improperly attempt to influence this Court’s decision by citing a preliminary General Accounting Office report that is not mentioned in or attached to Plaintiffs’ Complaint. See Memorandum of Points and Authorities in Support of the Defendants’ Motion to Dismiss (“Defendants’ Brief”) at 1, 5 n.2, 15 n.3. Therefore, Plaintiffs have contemporaneously filed with this Memorandum of Law a Motion to Strike these references.

^{^[3]}Further confirming the independence of the plaintiff’s procedural due process claim from his substantive injury claim, the court stated that “a plaintiff should not encounter much difficulty in demonstrating that an injury, including mental distress, resulted not from the substantive loss, but from the deprivation of procedural due process itself.” Id. at 678.

^{^[4]}Defendants concede Plaintiffs had remedies during the relevant time period that they could have pursued to require a safe and healthy working environment, such as filing reports and grievances. See Defendants’ Brief at 17 n.4. Indeed, Plaintiffs’ Complaint sets forth the remedies they could have pursued, and would have pursued, absent Defendants’ interference. See Complaint at __ 19-27 and _ 29. Contrary to Defendants’ contention, the fact that Plaintiffs could not pursue judicial enforcement of these procedures is of no consequence. It is Defendants’ deliberate and intentional interference with the procedures Plaintiffs were entitled to pursue that creates an actionable claim under the procedural due process clause. See Grichenko, 524 F. Supp. at 677 (“It is the defendants’ interference, not the Department of Labor decision which lies at the heart of this claim.”). For this reason, Plaintiffs need not show how any of the remedies they could have pursued, and would have pursued, absent Defendants interference would have prevented any injuries during the period before the Brentwood facility was closed.

^{^[5]}“Butera involved a suit brought against state officials pursuant to 42 U.S.C. § 1983. Butera, 235 F.3d at 640-41. The Supreme Court has held, however, that there is no distinction between a Bivens suit and suit brought under section 1983 for purposes of immunity.” Freeman, 254 F. Supp. 2d at 59 n.3 (citations omitted).

^{^[6]}Furthermore, because Count 1 of Plaintiffs’ Complaint is not a claim for breach of contract, Defendants’ argument that Plaintiffs do not have standing to bring a breach of contract claim is irrelevant and superfluous.

^{^[7]}Butera concerned the due process clause of the Fourteenth Amendment, whereas Plaintiffs’ claims here arise under the due process clause of the Fifth Amendment. However, “[t]he Supreme Court has consistently applied the same standards to determine deprivation of liberty without due process under the fifth and the fourteenth amendments.” Doe v. United States Dep't of Justice, 753 F.2d 1092, 1106 n.13 (D.C. Cir. 1985) (citing Paul v. Davis, 424 U.S. 693, 702 n. 3 (1976)).