Wednesday, May 20, 2015

September 30, 2004, United States District Court, D. Columbia, Leroy Richmond, Plaintiff, v. John "Jack" Potter, et al., Defendants. Civil Action No. 03-00018 (CKK). Memorandum Opinion, Colleen Kotelly, District Judge,

September 30, 2004, United States District Court, D. Columbia, Leroy Richmond, Plaintiff, v. John "Jack" Potter, et al., Defendants. Civil Action No. 03-00018 (CKK). Memorandum Opinion, Colleen Kotelly, District Judge,

August 28, 2008 [1st web capture] The Fluoroquinolone Toxicity Research Foundation, Loislaw, Federal District Court Opinions, Richmond v. Potter (D.D.C. 2004)


Plaintiff Leroy Richmond brought this action for monetary relief pursuant to the Equal Protection component of the Fifth Amendment's Due Process Clause, U.S. Const., amend. V, for the anthrax-related injuries he incurred while employed at the United States Postal Service's Brentwood Facility during October 2001. Citing deliberate, racially-motivated callousness, Plaintiff asserts that Defendants John ("Jack") Potter, Postmaster General of the United States Postal Service, Timothy Haney, Plant Manager at the Brentwood Facility, and Paulette Collette, allegedly Postmaster of the District of Columbia,[fn1] chose profits over human lives by keeping the Brentwood Facility open for nearly seven days after they had knowledge that the facility had been contaminated by an anthrax-filled letter destined for the offices of Senator Tom Daschle. As a result of this purportedly "deliberately indifferent" attitude to the safety of the Brentwood Postal workers, Plaintiff asserts two claims against Defendants: (1) Defendants' concealment of the danger of infection at the facility violated the protections of life, safety and personal security inherent in the Fifth Amendment; and (2) the disparate treatment given to the largely African-American workforce at the Brentwood Facility vis-รก-vis the largely white Capitol Hill employees constituted a violation of the Fifth Amendment's Equal Protection guarantees.

In response, Defendants introduced a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c), to which Plaintiff has filed an Opposition and Defendants have offered a Reply. Considering the totality of these motions and the relevant caselaw, the Court shall grant Defendants' Motion and dismiss Plaintiff's First Amended Complaint.[fn2]
Page 3


For the purposes of this motion, the Court accepts as true the following relevant and material facts that the Plaintiff has proffered. Plaintiff Leroy Richmond was employed by the United States Postal Service at its Brentwood Postal Facility during the Fall of 2001. First Am. Compl. 8. It was during this time that letters containing a white powdered substance later determined to be inhalation anthrax were mailed to the offices of various governmental officials. One such letter containing anthrax was addressed to Senator Tom Daschle and was opened by his staffers on October 15, 2001. Id. 7. As a result of this discovery, Senator Daschle's staffers were given the prescription antibiotic Ciprofloxacin Hydrochloride ("Cipro") and provided other appropriate medical care. Id. Thereafter, the United States House of Representatives and Senate recessed, their respective buildings were closed, and remedial activities were promptly undertaken. Id. On October 16, 2001, medical personnel conducted nasal swabs of more than one thousand Capitol Hill workers and dispensed antibiotics. These safety precautions proved effective, as no employees of the House or Senate contracted inhalation anthrax. Id.

Upon investigation, Defendants discovered that the Daschle letter had passed through the Brentwood Postal Facility on October 12, 2001. Id. 8. In addition, this inquiry revealed both the approximate time the Daschle letter passed through the facility and through which specific sorter it traveled. Id. Despite this knowledge, Defendants did not close the Brentwood Facility until October 22, 2001 — roughly seven days after the discovery of the Daschle letter. Id. 14. During this seven day interim, Defendants and other government officials continued to assert that the Brentwood Facility was free from contamination, id. 10, via (1) an October 16, 2001, bulletin to Postal workers in which assurances were given about the safety of the Brentwood Facility, id. 9; (2) conversations with Postal officials held on October 17, 2001, in which employees were told that there was no contamination at the facility, and that closing the facility was not an option due to potential losses of "$600,000,000.00 a day,"[fn3] id. 10; and (3) an October 18, 2001, news conference in which Postal officials — including Defendants — assured the public of the safety of the Brentwood Facility, id. 11.

Plaintiff Richmond's condition rapidly deteriorated during this interim, following this timeline:
• By the end of his October 16, 2001, shift, which concluded at 12:30 P.M., Richmond had developed a cough that was worsening. Id. 9.
• On October 18, 2001, Plaintiff began showing signs of a significant illness. Id. 11.
• During the morning of October 19, 2001, Plaintiff Richmond's condition was so troublesome that he saw a nurse at the Brentwood Facility. The nurse then referred Richmond to his private doctor, whom he saw later that same day. Id. 12.
• During the evening of October 19, 2001, Plaintiff was preliminarily diagnosed with inhalation anthrax at Fairfax Inova Hospital. Id.
• Plaintiff's initial diagnosis of anthrax infection was confirmed at approximately 7:00 A.M. on October 20, 2001. Id.
• Plaintiff remained in the hospital for nearly one month due to injuries caused by inhalation anthrax. Id. 15.

Plaintiff alleges that despite the Defendants' almost immediate awareness of his diagnosis, Defendants made no effort to get antibiotics to the workers at the Brentwood Facility and continued to refuse to close the Brentwood Facility. Id. 13. Plaintiff contends that it was not until October 21, 2001, that Defendants made a decision to close the Facility and provide Postal workers with antibiotics — a determination that was not implemented until October 22, 2001. Id. 14. Two Brentwood Postal employees, Joseph Curseen and Thomas Morris, subsequently died as a result of inhalation anthrax. Id. 15.

The gravamen of Plaintiff's Complaint is that Defendants acted with "conscious shocking deliberate indifference" to the rights and lives of Plaintiff and other Brentwood Facility employees by subjecting them to "known, substantial risk of serious harm." Id. 21. Plaintiff contends that Defendants mounted a series of "false representations, baseless representations and self-serving representations" in order to keep the Facility open despite knowledge of probable anthrax contamination in order to both save face and preserve the Postal Service's revenue stream. Id. 10-11, 22. Plaintiff further maintains that this "conscious" decision by Defendants to keep Brentwood workers "in the dark" was not motivated simply by profit or public appearance. Id. 11, 29.[fn4] Rather, workers at the Brentwood Facility were "93% African American and deemed expendable by the defendants." Id. 29. According to Plaintiff, "the workforce of the United States House of Representatives is less than 10% African American," Id.; as such, "immediate action was taken to assure the safety of the workers in the House and Senate." Id. The largely African-American workforce of the Brentwood Facility was, however, subjected to "outrageous" and "despicable disparate treatment" due to race-based indifference. Id. 30.

Plaintiff Richmond concludes by alleging that Defendants' actions caused the near-loss of his life, "extreme and horrific pain and suffering, severe emotional distress, mental anguish, embarrassment, and humiliation." Id. 23, 31. Due to these incurred injuries, Plaintiff requests "the full and fair amount of Fifty Million Dollars ($50,000,000.00) plus interests and costs." Id. Plaintiff bases his right of recovery on two separate but related constitutional claims: (1) Defendants' false representations and concealment of the contamination danger violated the Fifth Amendment's guarantees of life, safety and personal security, Id. 16-23, and (2) Defendants' disparate, race-based treatment of the Brentwood Facility workers violated the Equal Protection component of the Fifth Amendment's Due Process Clause. Id. 24-31.


Rule 12(c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed but within such time frame as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The standard of review for motions for judgment on the pleadings under Rule 12(c) is essentially the same as that for motions to dismiss under Rule 12(b)(6). Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987); Transworld Products Co. v. Canteen Corp., 908 F. Supp. 1, 2 (D.D.C. 1995). On either motion, the Court may not rely on facts outside of the pleadings and must construe the Complaint in the light most favorable to the non-moving party. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Accordingly, at this early stage in the proceedings, the Court assumes the veracity of all factual allegations set forth in Plaintiff's Complaint. See Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985).[fn5]

Granting judgment on the pleadings pursuant to Rule 12(c) or a motion to dismiss for failure to state a claim under Rule 12(b)(6) is warranted only if it appears beyond doubt, based on the allegations contained in the complaint, that "the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Alicke v. MCI Communications Corp., 111 F.3d 909, 912 (D.C. Cir. 1997). "The complaint must be `liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citation omitted). However, while the Court must construe the Complaint in the Plaintiff's favor, it "need not accept inferences drawn by the plaintiff? if such inferences are not supported by the facts set out in the complaint." Kowal, 16 F.3d at 1276. Moreover, the Court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).


Although unstated in his Complaint, Plaintiff's suit rests upon an implied private action for damages against federal officers alleged to have violated his constitutional rights. Pl.'s Opp'n at 6. In order to recover under this implied private action, first recognized by the Supreme Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), Plaintiff must meet three criteria: (1) the suit must name the relevant federal officials in their "individual capacities," (2) the injury asserted must qualify as a fundamental constitutional right that was clearly established at the time of the alleged violation in order to overcome "qualified immunity," and (3) there must be "no special factors counseling hesitation in the absence of affirmative action by Congress." See id. at 395-96; Correctional Services Corp. v. Malesko, 534 U.S. 61, 66-70 (2001); Dodge v. Trustees of Nat'l Gallery of Art, 326 F. Supp. 2d 1, 12 (D.D.C. 2004) (Lamberth, J.). Upon an analysis of Plaintiff's Complaint under each of these criteria, the Court concludes that Plaintiff's claim fails to meet the stringent standards necessary to maintain a Bivens action.

A. Defendants Must Be Sued in Their Individual Capacity

The Supreme Court's decision in Bivens to create an implied private right of action against government officials in their individual capacities was — in part — a reaction to the concern that a direct action against the Government was otherwise unavailable. Bivens, 403 U.S. at 410 (Harlan, J., concurring in judgment). As described by Justice Harlan, "[h]owever desirable a direct remedy against the Government might be as a substitute for individual officer liability, the sovereign still remains immune to suit . . . For people in Bivens' shoes, it is damages or nothing." Id. The very purpose of Bivens, then, is to provide a remedy where none was available and "to deter individual federal officers from committing constitutional violations." Malesko, 534 U.S. at 70. The Supreme Court made clear in FDIC v. Meyer, 510 U.S. 471 (1994), that the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity, id. at 474, are indemnified by the employing agency or entity, id. at 486, or are acting pursuant to an entity's policy, id. at 473-474.

Because a Bivens remedy is focused exclusively on deterring the conduct of federal officers, the Supreme Court has refused to imply a damages action directly against federal agencies, Meyer, 510 U.S. at 485, and against a private corporation acting under color of state law, Malesko, 534 U.S. at 71-72. Therefore, absent express authorization from Congress, Bivens — by focusing on the federal officer as an individual, not instrument of the government — is an important route around issues of sovereign immunity in this context. Plaintiffs must focus in their pleadings on the official as an "individual" in order to assuage fears that Bivens could be wrongfully extended past its core premise.

Plaintiff Richmond has sued Defendants Potter and Haney in their individual capacity, and thus has met the first criteria of the three-pronged Bivens test. Plaintiff was a bit unclear regarding the capacity in which he was suing Defendants in his original Complaint, as he listed Defendants as being sued in their "official and individual capacities," Compl. 4-5, but included a handwritten note under the caption that each defendant was sued in their "individual capacity only," id. at 1. Plaintiff's First Amended Complaint, which is now controlling, clearly corrects this error and simply lists each Defendant as
being sued "in his individual capacity." First Am. Compl. 4-5. As such, Plaintiff has escaped possible problems that may have arisen under sovereign immunity and the Malesko and Meyer rulings.

B. Qualified Immunity

Plaintiff Richmond's ability to meet the three-pronged Bivens test becomes quite a bit murkier when faced with the second prong — qualified immunity. The Supreme Court has provided government officials with qualified immunity from suits for damages to "shield? them from undue interference with their duties and from potentially disabling threats of liabilities." Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (citing Nixon v. Fitzgerald, 457 U.S. 731 (1982)). Qualified immunity serves not merely as a defense but also an immunity from the burdens of litigation. Saucier v. Katz, 533 U.S. 194, 201 (2001); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Immunity questions must therefore be resolved "at the earliest possible stage in litigation" because if a case is erroneously permitted to go to trial and the defendant must "face [any] burdens of litigation," the value of qualified immunity is lost. Id.

The qualified immunity determination requires a two-step analysis. First, the Court must evaluate whether Plaintiff has been deprived of an actual constitutional right.[fn6] In other words, the Court is directed to ask: "Taken in the light most favorable to the party asserting the inquiry, do the facts alleged show the officer's conduct violated a constitutional right?". Saucier, 533 U.S. at 201 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). In delineating the parameters of this constitutional right, the Court must avoid defining "the relevant constitutional right in overly broad terms, lest [it] strip the qualified immunity defense of all meaning." Butera v. District of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001).

Second, if Plaintiff's case passes muster under this initial inquiry, then the Court must examine whether this right was "clearly established" such that a reasonable officer would have been aware that his conduct was unlawful. Saucier, 533 U.S. at 202; see Wilson v. Layne, 526 U.S. 603, 615 (1999) (same). The actions of the official should be "assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citing Harlow, 457 U.S. at 819). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. If the federal official was not on notice that his conduct would clearly be unlawful, dismissal based on qualified immunity is appropriate. Saucier, 533 U.S. at 202 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986) ("qualified immunity protects `all but the plainly incompetent or those who knowingly violated the law'")).

Although the specific action in question need not have been explicitly deemed unlawful by the courts, its unlawfulness in light of pre-existing law must have been apparent to Defendants. Anderson, 483 U.S. at 640; Butera, 235 F.3d at 646. Since permitting damages against government officials can entail substantial social costs, the right in question must be defined with a reasonable degree of particularity. Anderson, 483 U.S. at 640. Importantly, "bare allegations of malice should not subject government officials either to the costs of trial or the burdens of broad reaching discovery." Harlow, 457 U.S. at 817-18. Absent a showing that Plaintiff's allegations constitute a violation of a "clearly established" right, the federal officials are entitled to judgment without need for fact discovery. Id.

1. Plaintiff's 5th Amendment Life, Safety and Personal Security Claim
a. Was the Alleged Deprivation a Constitutional Violation?

The crux of Plaintiff's first claim is that Defendants acted with "conscious shocking deliberate indifference to the rights of plaintiff in subjecting him to the known, substantial risk of serious harm, and specifically death." First Am. Compl. 21.

According to Plaintiff Richmond, the Defendants' series of "false representations" concealed the danger at the Brentwood Facility, and placed the lives, safety and personal security of himself and the other Brentwood workers in jeopardy. Id. 22. While not necessarily explicit in Plaintiff's Complaint, see id. 19, it is relatively clear that Plaintiff is asserting a substantive due process violation. Claims of substantive due process violations by State officials are generally analyzed under the Due Process Clause of the Fourteenth Amendment, which provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1; Butera, 235 F.3d at 646 n. 7. While the federal officials named by Plaintiff are not state actors under the Fourteenth Amendment, they are subject to the Due Process Clause of the Fifth Amendment, which also states that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V; see Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

Defendants' seek to transform Plaintiff's argument from a substantive due process claim into one concerning a simple right to workplace safety. Citing to a key passage in Collins v. City of Shaker Heights, 503 U.S. 115 (1992), Defendants forward the argument that "[n]either the text nor the history of the Due Process Clause supports petitioner's claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause." Id. at 126. Defendants assert that "while the failure to correct known unsafe conditions may have violated a tort law duty, it did not deprive plaintiff of liberty within the meaning of the Due Process Clause." Defs.' Reply at 6 (citing Washington v. District of Columbia, 802 F.2d 1478, 1482 (D.C. Cir. 1986) ("Whatever appellant's rights may be under state law, he has no constitutional right to a safe working environment.")). As such, Defendants conclude that Plaintiff's First Count must be dismissed for failing to prove a constitutional violation. Id.

Despite their best efforts, Defendants' Procrustean endeavor to gloss over the subtle law in this area fails to cover all of the relevant cracks, and their position wrongly simplifies a rather complex body of law. It must be noted that Plaintiff's scant response fails to pick up on this complexity: Plaintiff neglects to adequately distinguish Collins — only focusing on the failure of the Collins petitioner to allege willful, deliberate conduct — and he forwards no cases affirmatively in his favor. Pl.'s Opp'n at 19-20. However, in order to ensure a proper adjudication, it is the Court's responsibility to investigate the body of law that has developed in the wake of DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989).

Rather than the simple world painted by Defendants, DeShaney and its progeny have introduced a "State endangerment concept" that courts must grapple with when faced with claims similar to those brought by Plaintiff. Butera, 235 F.3d at 651. Collins itself is one of these post-Deshaney decisions, and Defendants mischaracterize the Collins holding as precluding all suits alleging constitutional violations resulting from unsafe workplace conditions. Collins stands for nothing of the sort; rather, in Collins, the plaintiff — the wife of a deceased city sanitation worker — advanced two theories: that the city had a constitutional obligation to provide a safe workplace, and that the city's "deliberate indifference" to her husband's safety was arbitrary government action. Collins, 503 U.S. at 125-26. "Rejecting the first theory out of hand, the Court then held that the plaintiff had not sufficiently alleged arbitrary government action that would shock the conscience." Estate of Phillips v. District of Columbia, 257 F. Supp. 2d 69, 78 (D.D.C. 2003) (citing Collins, 503 U.S. at 126). Therefore, Collins "does not suggest that a government employee may never assert a substantive due process claim against his or her employer." Id. Instead, if a plaintiff does adequately allege government action in the workplace that would shock the conscience, a case may proceed. Id.

This Circuit in Butera expanded on this distinction present in Collins: "[A]n individual can assert a substantive due process right to protection by the District of Columbia from thirdparty violence when District of Columbia officials affirmatively act to increase the danger that ultimately results in the individual's harm." Butera, 235 F.3d at 651. However, the Butera court cautioned that "[t]o assert a substantive due process violation, the plaintiff must also show that the District of Columbia's conduct was `so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Id. (quoting County of Sacremento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)). Butera created a "shocks the conscience" test whose application varied depending on the circumstances of plaintiff. Id. This test is controlling for the purposes of Plaintiff's substantive due process claim.

Two levels of behavior might reach "conscience-shocking" status and justify recovery for a plaintiff. Id. First, "behavior at the ? end of the culpability spectrum that would most probably support a due process claim" is intentional "conduct intended to injure in some way unjustifiable by any government interest." Id. (citing Sacramento, 523 U.S. at 849, 854 (holding that in the context of a high-speed chase by police officers that accidentally killed a fleeing motorcyclist, the plaintiff must satisfy the higher "intent to harm" standard to prove that the officers' behavior was conscience-shocking)). Second, conduct that is "something more than negligence but less than intentional conduct, such as recklessness or gross indifference," may also reach "the point of conscience shocking." Id. (citing Sacremento, 523 U.S. at 849). Admittedly, this second, lower standard — which covers "deliberate indifference" — "is a matter for closer calls." Id. As such, a plaintiff can prove that "deliberate indifference" "shocks the conscience" "only in `circumstances where the State has a heightened obligation toward the individual.'" Fraternal Order of Police v. Williams, 375 F.3d 1141, 1146 (D.C. Cir. 2004) (citing Butera, 235 F.3d at 651) (emphasis added).

Plaintiff does not allege that Defendants intentionally caused him and his fellow coworkers harm; rather, Plaintiff Richmond specifically alleges "conscious shocking deliberate indifference." First Am. Compl. 21. As such, he actually passes the Collins standard for dismissal by actually alleging that the Defendants' actions "shocked the conscience" and rose above mere negligence. However, Plaintiff must still show that he meets the Butera standard, which outlines when deliberate indifference can "shock the conscience." As noted above, Plaintiff can only meet this standard by asserting that he was injured by the deliberate indifference in "circumstances where the State has a heightened obligation to the individual." Butera, 235 F.3d at 651; see Sacramento, 523 U.S. at 850 ("Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.").

Unfortunately for Plaintiff, he has failed to allege the necessary "heightened circumstances"; moreover, such an allegation based on his situation would likely not be sustainable. Importantly, this Circuit has held that "[t]he opportunity for deliberation alone is not sufficient to apply the lower threshold to substantive due process claims." Fraternal Order of Police, 375 F.3d at 1146. Instead, it is "`[b]ecause of . . . special circumstances' like custody that `a State official's deliberate indifference . . . can be truly shocking.'" Id. (quoting Butera, 235 F.3d at 652). Courts have proved extremely hesitant to expand special, "heightened circumstances" outside the context of actual custody. See, e.g., Collins, 503 U.S. at 1069-70 (Due Process requires confinement against an individual's will, and does not cover voluntary acceptance of employment); Fraternal Order of Police, 375 F.3d at 1146-47 (dangers posed to correctional officers due to overcrowding and a shortage of guards did not constitute special circumstances); Washington, 802 F.2d at 1479 (same); Butera, 235 F.3d at 651 n. 16 (noting but not deciding "whether the possibly voluntary nature of [undercover police operative's] conduct would relieve or mitigate [sic] the District of Columbia of constitutional liability"); Randolph v. Cervantes, 130 F.3d 727, 730-31 (5th Cir. 1997) (rejecting substantive due process claim brought by mother of injured resident of state mental health center where state officials "allowed and encouraged [the resident] to voluntarily reside at [the center] . . . having the right to come and go from the premises at any time"); Uhlrig v. Harder, 64 F.3d 567, 575 n. 13 (10th Cir. 1995) (rejecting substantive due process claim brought by widow of municipal therapist killed by mental patient because therapist was aware of "potential risk inherent in [her] job" and declining "on a more general level" to hold "public employers liable . . . for dangers arising from [such] risk"). But see Estate of Phillips, 257 F. Supp. 2d at 78-79 (finding that District of Columbia Fire Department's failure to train, equip and staff properly despite known danger shocks the conscience).

Given the relevant law, for Plaintiff to successfully evade dismissal of his substantive due process claim (Count I), he must (1) allege that Defendants' actions "shocked the conscience" and, (2) because deliberate indifference is asserted, allege facts supporting an inference that "special circumstances" exist to make such indifference "conscience shocking." Plaintiff has failed to allege the required special circumstances, and the vast majority of caselaw stands for the proposition that — without custody — such "special circumstances" do not exist. As the law currently stands, the danger inherent in the occupation of Postal employee is insufficient to create the special circumstances required by Butera. As the D.C. Circuit explained in Fraternal Order of Police, Prison guards, unlike the prisoners in their charge, are not held in state custody. Their decision to work as guards is voluntary. If they deem the terms of their employment unsatisfactory, e.g., if salary, promotion prospects, or safety are inadequate, they may seek employment elsewhere. The state did not force [the plaintiff] to become a guard, and the state has no constitutional obligation to protect him from the hazards inherent in that occupation. 375 F.3d at 1146 (favorably quoting Washington, 802 F.2d at 1482). Based on the relevant test and law, the Court concludes that Plaintiff cannot show that Defendants' conduct in keeping the Brentwood Postal Facility open constituted the deprivation of an actual constitutional right. As such, the Plaintiff fails to meet the first prong of the qualified immunity test, and is unable to maintain an action under Count I. b. Was the Right in Question "Clearly Established?"

The Court does point out that Butera might be read in a more expansive manner, as the Butera court did note that "[a]s in the context of State custody, the State also owes a duty of protection when its agents create or increase the danger to an individual." Butera, 235 F.3d at 652. Using this language, the Plaintiff might be able to claim that Defendants increased the danger to him by keeping the contaminated Facility open, and therefore violated a duty owed to him. However, the Butera court concluded that the contours — and even the existence — of this duty was far from being "sufficiently clear that a reasonable officer would understand that what he [was] doing violate[d] that right." Id. (quoting Anderson, 483 U.S. at 640). Accordingly, the Butera petitioner's claim was foreclosed by qualified immunity.

Upon examining relevant case law on the `State endangerment' exception to DeShaney, we conclude that, in December 1997, [petitioner's] constitutional right to protection by the District of Columbia from third-party violence was not clearly established within the meaning of Anderson, First, as discussed, this circuit has never recognized constitutional liability in the context of a State endangerment claim, and the court in Harris intimated that it would construe narrowly the exception set forth in DeShaney. Furthermore, LeShawn, albeit in dictum, did not indicate any circumstance other than custody that would give rise to District of Columbia liability. Moreover, the only Supreme Court authority to support a State endangerment concept consisted of the oft-quoted dictum in DeShaney, which simply 'leaves the door open for liability' in this context. . . . Second, as of 1997, the `contours' of the rights created by the State endangerment concept were not settled among the circuits. Id. (citations omitted).

An analysis of our circuit's post-Butera cases shows that a broad reading of the "State endangerment concept" is still far from "clearly established." Indeed, much of the labyrinthine caselaw and analysis in this area reminds the Court of the "riddle wrapped in mystery inside an enigma" confronted by Churchill. Compare Fraternal Order of Police, 375 F.3d at 1146-47 (indicating that employment alone will not merit the special circumstances necessary for conduct to "shock the conscience") with Estate of Phillips, 257 F. Supp. 2d at 78-79 (finding that a "deliberate indifference" case could be made in an employment situation). Therefore, assuming, arguendo, that Plaintiff could actually establish that his constitutional right to substantive due process was violated by the "shocking" misrepresentations and choices of Defendants, Plaintiff still cannot show that it was "clearly established" that Defendants would have been aware that their conduct was unlawful. Therefore, Plaintiff fails to meet the second prong of the qualified immunity test, ensuring that Count I must be dismissed. 2. Plaintiff's 5th Amendment Right to Equal Protection Under the Law

In Count II, Plaintiff asserts that "the workforce of the United States House of Representatives," which apparently is "less than 10% African American," was treated in a manner substantially different from Plaintiff and other workers at the Brentwood Postal Facility, whose workforce is alleged to be "approximately 93% African American." First Am. Compl. 29. Due to race-based motivation, [i]nstead of immediately closing the Facility as were the House and Senate Office Buildings and providing antibiotics to employees, as was done with the House and Senate employees, the defendants repeatedly lied to the plaintiff and other postal workers at the Brentwood Facility about the dangers they faced. Id. Plaintiff further claims that he "has alleged racial discrimination in its worst form . . . as an African-American he was deemed expendable by defendants who valued the `integrity' of the Post Office and $600,000 a day in revenue more than his life." Pl.'s Opp'n at 20-21. Likening himself to the African-American children challenging segregated schools in Bolling v. Sharpe, 347 U.S. 497 (1954), Plaintiff Richmond maintains that he suffered "invidious discrimination" because the black workforce at Brentwood was not told the truth, and the white workers on Capitol Hill were told the truth . . . the black workers at Brentwood were not immediately given medication to combat anthrax, and the white workers on Capitol Hill were . . . Pl.'s Opp'n at 21.

Plaintiff's Count II initially appears more promising than Count I for qualified immunity purposes. Once again, he does specifically allege "disparate treatment" that "shocks the conscience." First Am. Compl. 30. Moreover, the right to Equal Protection under the law regardless of race is certainly much more established than a substantive due process claim to life, safety and personal security in the workplace. See Bolling, 347 U.S. at 499-500 (the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating based on race).[fn7] However, one fundamental problem undermines Plaintiff's ability to maintain an Equal Protection claim. While the First Amended Complaint explicitly alleges that Congress treated its employees in a manner different from the treatment afforded by the Postal Service to its workers, this assertion does not support Plaintiff's claim that Defendants themselves made race-based distinctions. To recover damages from a federal official in a Bivens case, a plaintiff must show that each named defendant actually engaged in conduct that violated the plaintiff's constitutional rights; a federal official cannot be held vicariously liable based upon the acts of other government officials. Siegert, 500 U.S. at 232. To satisfy this burden at the pleading stage, the plaintiff must allege the actual, personal participation in unconstitutional conduct of each defendant. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Plaintiff has not met this burden. Any cognizable Equal Protection claim must assert that Defendants afforded the "similarly situated" workers within their control disparate treatment based on race. The First Amended Complaint contains no allegation that Defendants had any role in or control over the decisions made with respect to Congress' employees. Based on Plaintiff's assertions in the First Amended Complaint, the only decision-making capacity Defendants had was with respect to the Brentwood Postal Facility. Plaintiff has made no allegation that Defendants Potter and Haney made any distinction between the African-American and non-minority workers in the Brentwood Facility: all workers at the Facility, African-American or white, were apparently exposed to the same dangers, regardless of race. The essence of Plaintiff's claim is that the Government treated Congressional employees differently than Brentwood Postal employees; while such a claim might have merit if the United States Government was a defendant, such a contention is not remotely sufficient to state a constitutional claim against Defendants Potter and Haney.[fn8] Accordingly, Plaintiff has failed to state a claim for a violation of the Equal Protection component of the Fifth Amendment's Due Process guarantee, and dismissal is therefore warranted.

C. Special Factors Counseling Hesitation in Implying Bivens Action

1. Background and Recent Trends

In addition to the requirements that (1) a plaintiff name any defendants in their individual capacity and (2) overcome the defense of qualified immunity by displaying an abrogation of a "clearly established" constitutional right by the officials in question, a plaintiff must also (3) show that there are no "special factors counseling hesitation in the absence of affirmative action by Congress." Schweiker v. Chilicky, 487 U.S. 412, 421-22 (1988); Bivens, 403 U.S. at 396. In determining if such special factors are present, courts look to whether there exists an explicit statutory prohibition against the relief sought, or whether there is an available, alternative statutory remedy. Id. at 421. If such "special factors" do exist, then no Bivens action should be implied. Malesko, 534 U.S. at 69-70.

Bivens actions are an exceedingly rare legal breed whose extinction may well be nigh; "recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts." Chilicky, 487 U.S. at 421; see also Malesko, 534 U.S. at 75 (Scalia, J, concurring in judgment) ("Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action. . . ."). Indeed, [i]n 30 years of Bivens jurisprudence [the Supreme Court has] extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct.

Malesko, 534 U.S. at 70 (emphasis in original). According to the Supreme Court, a new right of action was inferred in Davis v. Passman, 442 U.S. 228 (1979), "chiefly because the plaintiff lacked any other remedy for the alleged constitutional deprivation." Malesko, 534 U.S. 67 (citing Davis, 442 U.S. at 245 ("For Davis, as for Bivens, it is damages or nothing.")). In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court inferred a right of action against individual prison officials where the plaintiff's only alternative was a Federal Tort Claims Act (FTCA) claim against the United States . . . reason[ing] that the threat of suit against the United States was insufficient to deter the unconstitutional acts of individuals . . . [and] [finding] it `crystal clear' that Congress intended the FTCA and Bivens to serve as `parallel' and `complementary' sources of liability. Id. at 67-68 (citations omitted).

Since Carlson, the Supreme Court has "consistently refused to extend Bivens liability to any new context or new category of defendants." Id. at 68. This refusal to extend Bivens is a result of the current searching scrutiny given to whether alternative means of redress exist. Bush v. Lucas, 462 U.S. 367 (1983), fired the opening salvo in the judicial counter-revolution against Bivens' expansive implications. In Bush, the Supreme Court declined to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment. Although the plaintiff had no opportunity to fully remedy the constitutional violation, the Bush court held that administrative review mechanisms crafted by Congress provided meaningful redress and thereby foreclosed the need to fashion a new, judicially crafted cause of action. Id. at 378, n. 14, 386-88; see Malesko, 534 U.S. at 68 (discussing Bush). More importantly, the Bush court expressly recognized that Congress' institutional competence in crafting appropriate relief for aggrieved federal employees was a "special factor counseling hesitation in the creation of a new remedy." Id. at 380; see also id. at 389 ("Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees."). Following this reasoning, the Supreme Court reached a similar result in the military context, Chappel v. Wallace, 462 U.S. 296, 304 (1983), and even where the defendants were alleged to have been civilian personnel, U.S. v. Stanley, 483 U.S. 669, 681 (1987).Schweiker v. Chilicky noted this trend away from Bivens, and saw the Supreme Court decline to infer a damages action against individual Government employees alleged to have violated due process in their handling of Social Security applications. Chilicky, 487 U.S. at 425-27. The Chilicky court found that "[t]he absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers for the violation." Id. at 421-22. Indeed, it did not matter that "[t]he creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed." Id. at 425; see also Bush, 462 U.S. at 388 (noting that "existing remedies do not provide complete relief for the plaintiff"); Stanley, 483 U.S. at 683 ("[I]t is irrelevant to a special factors analysis whether the laws currently on the books afford [plaintiff] . . . an adequate federal remedy for his injuries. . . .") (emphasis added)).

The new rule, post-Chilicky, is that "[s]o long as the plaintiff ha[s] an avenue for some redress, bedrock principles of separations of powers foreclose? judicial imposition of a new substantive liability." Malesko, 534 U.S. at 69. This Circuit has reiterated these guidelines when analyzing potential Bivens actions. See, e.g., Spagnola v. Mathis, 859 F.2d 223, 229 (1988) (en banc) ("[I]t is quite clear that if Congress has 'not inadvertently' omitted damages against officials in the statute at issue, then courts must abstain from supplementing Congress' otherwise comprehensive relief scheme with Bivens remedies — unless, of course, Congress has clearly expressed a preference that the judiciary preserve Bivens remedies."); Taylor v. FDIC, 132 F.3d 753, 768 n. 8 (D.C. Cir. 1997) ("We will not infer a Bivens remedy where Congress has created comprehensive procedural and substantive provisions giving meaningful remedies against the United States."); Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) ("It is clear that courts are precluded from granting such relief if the statute at issue provides a comprehensive scheme to administer public rights.") (citations omitted).

Correctional Services Corporation v. Malesko provided the capstone in the long, slow march to curtail Bivens. The Malesko court — following the Supreme Court's refusal in FDIC v. Meyer to extend Bivens to permit suit against a federal agency, Meyer, 510 U.S. at 484-86 — held that there was no implied private right of action, pursuant to Bivens, for damages against private entities that engaged in alleged constitutional violations while acting under color of federal law. Malesko, 534 U.S. at 74. Once again, the Malesko court noted that, even without Bivens, plaintiffs still had a myriad of "effective remedies." Id. at 72 ("It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens."). According to the Malesko court, unless the alternative remedies present are "inconsistent or even hostile" to the remedy that would otherwise be inferred, a Bivens action will not lie. Id. at 73.

2. Application to Plaintiff Richmond's Claim

The quarter-century trend away from an expansive interpretation of Bivens certainly gives the Court pause when analyzing Plaintiff's claims. Moreover, unlike Bivens, Davis, and Carlson, Plaintiff has an alternative avenue available for redress — the Federal Employee's Compensation Act ("FECA"), 5 U.S.C. § 8102, et seq. FECA allows a federal employee injured during the course of employment to receive worker's compensation, and is the exclusive remedy for these injured employees. See 5 U.S.C. § 8116(c) ("The liability of the United States or an instrumentality thereof under this subchapter or any extension
thereof with respect to the injury or death is exclusive . . .").

If FECA is considered a "comprehensive" remedy, Bush v. Lucas and its progeny argue strongly against a creation of a Bivens action for Plaintiff Richmond. Plaintiff attempts to circumvent the statutory language of FECA by arguing that one case in the Eastern District of New York — handed down pre-Bush, Chilicky, and Malesko — is still "on all fours." Citing to Grichenko v. USPS, 524 F. Supp. 672, 677 (E.D.N.Y. 1981), Plaintiff notes that the Grichenko court held: The defendants' assertion that the FECA precludes Grichenko's procedural due process claim is without merit. We do not find any special factors 'counseling hesitation' or suggesting inappropriateness of a Bivens type action . . . In addition, while the FECA is Girchenko's exclusive remedy against the United States in seeking compensation for his eye injury, it does not provide an available, let alone substitute remedy for the constitutional violation asserted here." Pl.'s Opp'n at 17 (quoting Grichenko, 524 F. Supp. at 677).

Plaintiff then observes that a recent Second Circuit case, Stuto v. Fleishman, 162 F.3d 820, 826 (2d Cir. 1999), cited Grichenko "with approval," and therefore it should be good and controlling law. Id. A closer reading of Stuto reveals that Plaintiff is mistaken as to Grichenko's implications. The Stuto court explained that "Grichenko involved conduct that foreclosed the administrative remedies of FECA, and therefore FECA's protections were unavailable." Stuto, 162 F.3d at 826. Grichenko, therefore, is no different from Bivens, Davis, or Carlson: it stands for the proposition that where no remedy whatsoever is available, a Bivens action may lie.

In the present case, however, FECA is still very much available to Plaintiff as a remedy. Plaintiff's protestations aside, it is clear that FECA represents a comprehensive remedial scheme created by Congress that precludes the creation of a Bivens action. See, e.g., Cain v. Dunn, Civ. No. 01-1862, slip. op. at *5 n. 5 (D.D.C. Apr. 25, 2002) (Kotelly, J.) ("FECA . . . provides `comprehensive procedural and substantive provisions giving meaningful remedies' to Plaintiff and, therefore, . . . a Bivens action is unavailable to Plaintiff in this case."); Caesar v. United States, 258 F. Supp. 2d 1, 3 (D.D.C. 2003) (Sullivan, J.) ("The question of whether plaintiff's claims fall within the ambit of FECA, and are thus beyond this Court's jurisdiction, turns on whether [plaintiff] was injured while in the performance of his official duties") (citations omitted); Turner v. Tenn. Valley Auth., 859 F.2d 412, 413 (6th Cir. 1988) ("The Supreme Court has consistently held that the FECA is the exclusive remedy employed by federal agencies and instrumentalities. . . .") (citing Johansen v. United States, 343 U.S. 427 (1952); Patterson v. United States, 359 U.S. 495 (1959) (per curium); Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983)); Hightower v. United States, 205 F. Supp. 2d 146, 155 (S.D.N.Y. 2002) ("By enacting both the CRSA and FECA within the field of federal employment, Congress has demonstrated a clear intent to foreclose the award of money damages against federal employees for constitutional violations that occur within the course of federal employment."). Moreover, FECA is clearly applicable to the injury suffered by Plaintiff: "all that is required is that the injury result from a risk incidental to the environment in which the employment places the claimant." Caesar, 258 F. Supp. 2d at 5.

Moreover, numerous other jurisdictions, when dealing with an allegation that a United States Postal Service ("USPS") employee suffered a constitutional deprivation during the course of employment, have specifically held that a Bivens action is not available. See, e.g., Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003) ("it is well-settled that USPS employees may not allege Bivens claims arising out of their employment relationship with the USPS"); Pipkin v. USPS, 951 F.2d 272, 275-76 (10th Cir. 1991) ("Because Congress has provided a comprehensive procedure to address postal employees' constitutional claims arising from their employment relationship with the USPS, those arbitration procedures [in the FTCA] preclude plaintiffs' Bivens claims."); Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002) (finding a Bivens action was not available to Postal worker due to access to grievance procedures provided by the Postal Reorganization Act); Roman v. USPS, 821 F.2d 382, 386 (7th Cir. 1987) (collective bargaining agreement created binding grievance process for USPS employees and precluded ability of postal employees to bring claims "directly under the due process clause"); McCollum v. Bolger, 794 F.2d 602, 607 (11th Cir. 1986), cert. denied, 479 U.S. 1034 (1987) (same); Broussard v. USPS, 674 F.2d 1103, 1112 (5th Cir. 1982) (no Bivens claim against USPS supervisors); Pereira v. USPS, 964 F.2d 873, 876 (9th Cir. 1992) (denying plaintiff's Bivens claim against USPS supervisors because of comprehensive arbitration scheme); Harding v. USPS, 802 F.2d 766, 767-68 (4th Cir. 1986) (same).

Given the availability of FECA, the existence of possible other remedies outside of FECA,[fn9] and the weight of persuasive authority suggesting that USPS employees may not use Bivens for constitutional claims arising out of the workplace, the Court concludes that a comprehensive remedial scheme outside of a Bivens action is available to Plaintiff. Following Bush, Chilicky, and Malesko, this Court finds that the existence of an alternative remedial scheme for Plaintiff creates a "special factor" guarding against the imposition of a Bivens action against his superiors at the USPS. As such, Plaintiff's action must be dismissed, and judgment on the pleadings must be entered for Defendant.


For the reasons stated above, the Court finds that Defendants' Motion for Judgment on the Pleadings must be granted. The Court does note that Plaintiff may well have a plethora of alternative remedies with which he may attempt to seek redress from either his superiors or the Government itself, presuming that any future attempt by Plaintiff falls within the statute of limitations and any statutory requirements. The hurdles created by qualified immunity and the Bivens "special factor" test, however, doom this attempt at recourse to failure. An Order accompanies this Memorandum Opinion. [fn1] Plaintiff identifies "Paulette Collette" as "at all times relevant herein, the Postmaster for Washington, D.C. with direct responsibility for the Brentwood Postal Facility." First Am. Compl. 6. Defendants have presented uncontested evidence that Delores Killette, who was not named in this action, was Postmaster of Washington, D.C., during this time period. Defs.' Mot. for Summ. J. at 3 n. 3; Defs.' Reply at 1 n. 1.

Apparently, there exists no record of a Postal Service official named "Paulette Collette." Id. Because she has been neither named nor served, Ms. Killette is not a party to this action; because she is an apparent non-entity with whom service is specious at best, "Ms. Collette" is hereby dismissed as a defendant from this suit. [fn2] Defendants have consistently maintained that "Plaintiff has yet to perfect service and thereby acquire jurisdiction in personam over the individual defendants." Defs.' Mot. for J. on the Pleadings at 13; see also Defs.' Opp'n to Pl.'s Mot. for Default J. at 1-2. According to Defendants, Plaintiff has failed to provide service in accordance with Federal Rule of Civil Procedure 4(i), which governs service of process on federal officials in both their individual and official capacities. Id.

"The party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." C. Wright & A. Miller § 1083, at 12 (1987). A review of the requirements of Rule 4(i) and the Return of Service/Affidavit of Summons and Complaint Executed filed by Plaintiff demonstrates significant problems with Plaintiff's service of process. Indeed, a deficiency in service likely led to Plaintiff's "Paulette Collette" error.

In response to Defendants' contentions, Plaintiff argues "[t]o the extent that service is deemed not to have been perfected, the plaintiff submits that dismissal is inappropriate and would serve
no useful purpose other than to delay this matter." Pl.'s Opp'n at 22. Because the Court finds that Plaintiff has not articulated a cognizable claim against Defendants, the Court agrees that service-related dismissal would "serve" no useful purpose. Therefore, the Court shall consider this point moot. [fn3] Plaintiff is inconsistent as to the potential daily losses that the Postal Service would have incurred as a result of the closure of the Brentwood Facility. Plaintiff cites to the $600,000,000.00 figure in his Complaint, First Am. Compl. 10, and in parts of his Opposition to Defendants' Motion to Dismiss, Pl.'s Opp'n at 2, 8. However, in other sections of his Opposition, Defendant cites to a figure of $600,000 a day. Id. at 3, 17, 19. [fn4] The First Amended Complaint contains two paragraphs numbered "29." Both paragraphs make a race-based comparison between the treatment of Capitol Hill workers and Brentwood Facility workers.

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