Briscoe v. Potter

• Decision Date: 19 November 2004
• Docket Number: No. CIV.A. 03-2084(RMC).,CIV.A. 03-2084(RMC).
• Citation: 355 F.Supp.2d 30
• Parties: Dena BRISCOE, et al., Plaintiffs, v. John E. POTTER, United States Postmaster General, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 30

355 F.Supp.2d 30

Dena BRISCOE, et al., Plaintiffs, v. John E. POTTER, United States Postmaster General, et al., Defendants.

No. CIV.A. 03-2084(RMC).

United States District Court, District of Columbia.

November 19, 2004.

Paul J. Orfanedes, Washington, DC, Dale Lee Wilcox, Norfolk, VA, for Plaintiffs.

Glenn Stewart Greene, R. Joseph Sher, Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ATTRIDGE.

The entire country remembers the anxiety that ensued following public revelation that a letter containing anthrax had been delivered to Senator Tom Daschle's office on October 15, 2001. What was not immediately appreciated was that the letter to Senator Daschle exposed some postal workers to its deadly contents when it was processed through the United States Postal Service Brentwood Processing and Distribution Center ("Brentwood") in Washington, D.C. Other Brentwood employees now sue several high-ranking officials of the United States Postal Service ("USPS") in their individual capacities¹ — John E. Potter, Postmaster General; Thomas Day, Vice President of Engineering; and Timothy C. Haney, Senior Plant Manger — for allegedly providing false and/or misleading information, and failing to provide accurate information, about the safety of the facility after they allegedly knew it was contaminated with anthrax.

Plaintiffs assert that USPS officials deprived them and other Brentwood workers of their rights to procedural and substantive due process under the Fifth Amendment to the United States Constitution, giving rise to personal liability.² Taken together, the first three counts of the complaint allege that Defendants' conduct prevented Plaintiffs from invoking protections and remedies under their collective bargaining agreements, the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654 et seq., and USPS emergency procedures. The fourth count alleges that Defendants infringed on Plaintiffs'"substantive due process liberty interest in a safe working environment free from needless danger[.]" Compl. ¶ 127. Defendants move to dismiss the complaint, arguing that the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq., is the exclusive remedy available to federal employees injured in the workplace and that each defendant is protected by qualified immunity from suit. Plaintiffs oppose this motion.

I. BACKGROUND³

On Tuesday, October 9, 2001, an unknown person(s) mailed from Trenton, New Jersey, an anthrax-laden letter addressed to United States Senator Tom Daschle at his office in Washington, D.C.⁴ That letter arrived in a mail bag at Brentwood on or about Thursday, October 11, 2001. The mail bag was opened and its contents were separated into the Delivery Bar Code Sorter ("DBCS") machine # 17; the Daschle letter was fed manually into DBCS # 17 at approximately 7:10 a.m. The letter was then moved to the Government Mail section for delivery to the Hart Senate Office Building, where Senator Daschle's office is located. Between approximately 8:00 a.m. and 9:40 a.m., DBCS # 17 was opened in the normal course of operations and a large blower using compressed air was used to blow debris and dust from the conveyor belts and optical reading heads of the machine.

The Daschle letter was delivered to the Hart Senate Office Building at approximately noon on Friday, October 12, 2001. It was opened in the Senator's personal office the following Monday, October 15, 2001. The envelope contained a fine white powder, which aroused suspicion. The Capitol Police were called and they performed a field test on the letter, which was ultimately found to contain anthrax spores. Subsequently, the ventilation system in the Hart Senate Office Building was shut down and the building was closed; bundles of letters and packages were quarantined and all mail delivery was suspended; staffers in Senator Daschle's office were tested and given antibiotics; and tours of the Capitol were canceled.

In contrast, the Brentwood facility continued to operate as usual. During a regularly-scheduled "floor" meeting on Monday, October 15, 2001, Larry Littlejohn, a Brentwood maintenance technician, asked his supervisor for a briefing on anthrax and proper safety procedures. The supervisor refused to provide the requested briefing, threatened Mr. Littlejohn with a seven-day suspension, and had him forcibly expelled from the building. Mr. Littlejohn was later suspended for seven days for reasons that are not in the record.

Other events also occurred on Monday, October 15, 2001. In Denver, Colorado, Postmaster General Potter delivered a speech during which he declared that the USPS mail system was safe and USPS Vice President of Engineering Day began coordinating the USPS response to the Daschle letter. In addition, the Daschle letter was sent to the United States Army Medical Research Institute for Infectious Disease ("Institute") for further testing, where Dr. John Ezzell tested it. Dr. Ezzell characterized the anthrax in the letter as "weaponized" because it was so potent. Compl. ¶ 48.

On Tuesday, October 16, 2001, all Senate employees were tested for anthrax exposure and given antibiotics as a countermeasure. The tests apparently "showed that at least twenty (20) Senate staffers had been exposed to anthrax, including staffers on a floor below Senator Daschle's office and at least one staffer who had not been at work when the letter was opened the previous day." Id. ¶ 49. On that same day, Major General John Parker, United States Army Commanding General of the Institute, stated that the anthrax spores in the Daschle letter constituted "a very potent form of anthrax that was clearly produced by someone who knew what he was doing." Id. ¶ 50 (internal quotation marks omitted). The Federal Bureau of Investigation ("FBI") reported to the USPS Inspection Service which, in turn, notified Mr. Potter that the letter had contained a "potent" strain of anthrax. Id. ¶ 51. Despite these developments, USPS officials allegedly instructed Brentwood supervisors "to provide false safety briefings ... representing to the employees that there was no evidence any anthrax contaminated letter or mail had come through the facility at any time, including the letter that was sent to Senator Daschle's office." Id. ¶ 53. Plaintiff Ossie Alston, a supervisor at Brentwood, asserts that he refused to deliver this message and a fellow supervisor gave the briefing.

On Wednesday, October 17, 2001, the United States House of Representatives was shut down after it appeared that thirty-one (31) staff members had tested positive for exposure to anthrax.⁵ Anthrax spores were found in a mail room at the Dirksen Senate Office Building, through which the letter to Senator Daschle had passed before being sent on to the Hart Senate Office Building. USPS ordered that the Brentwood facility be tested for anthrax spores on that day, as well, although no one advised employees of any possible danger.

On Thursday, October 18, 2001, all buildings on Capitol Hill were closed and quarantined. USPS officials, including Brentwood Plant Manager Timothy Haney and USPS Senior Vice President Deborah Willhite, met that morning with Senate representatives. According to notes kept by Mr. Haney, he privately advised Ms. Willhite that "`the mail was leaking and that we were affected.'" Id. ¶ 60. During that same morning, USPS was notified that the Centers for Disease Control ("CDC") had confirmed that a letter carrier in New Jersey, where the Daschle letter had been mailed, was suffering from cutaneous anthrax. However, during a morning press conference at the White House, Postmaster General Potter assured the public that the mail was safe.

In the early afternoon, the Postmaster General held a second press conference in an unused section of Brentwood, where he again told the news media and employees in attendance that Brentwood was safe. When Plaintiff Vincent Gagnon attempted to ask a question at the press conference, a Postal Inspector prevented him from doing so. Mr. Gagnon — who had clocked out to attend the press conference — then returned to work, where his supervisor informed him that "she had been directed [by Plant Manager Haney] to initiate proceedings to fire him for going to the press conference and trying to ask questions." Id. ¶ 67.

Plant Manager Haney held a series of "floor" meetings with Brentwood employees on Thursday, October 18, 2001, to inform them that there was no anthrax in the building. He also mentioned that the CDC would be conducting tests in protective gear (i.e., "moonsuits"). At one meeting, plaintiff Terrell Worrell asked about the possible dangers of dust in the air. Mr. Haney allegedly responded, "What do you want us to do? Put bars on the windows, shut off the fans and close the doors? If we do those things, we are giving in to terrorism." Id. ¶ 74. Mr. Haney apparently told employees that they would lose their jobs if they did not report for work, noting that "it would cost the USPS $500,000 a day if the Brentwood facility were shut down." Id. At another "floor" meeting, Mr. Haney allegedly refused to answer questions about why the machines and the building were being tested but employees were not.

Also on Thursday, October 18, 2002, USPS contacted the Fairfax County (Virginia) HAZMAT Team to have an on-site field test for anthrax spores conducted at Brentwood. Two HAZMAT Team members and inspectors from a private consulting firm came to Brentwood in moonsuits that afternoon, to begin testing for contamination while postal employees continued their normal duties. At least by sometime that evening, the test results apparently showed that some of the Brentwood equipment "`[a]gain... tested hot.'"⁶ Id. ¶ 71. Testing continued until 2:30 a.m. on October 19, 2001.

Notes from Plant Manager Haney indicate that, by 11 a.m. on Friday, October 19, 2001, USPS officials had determined that the DSBC # 17 had been used to sort the mail...