Loislaw Federal District Court Opinions

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RICHMOND v. POTTER, (D.D.C. 2004)
LEROY RICHMOND, Plaintiff, v. JOHN "JACK" POTTER, et al., Defendants.
Civil Action No. 03-00018 (CKK).
United States District Court, D. Columbia.
September 30, 2004

MEMORANDUM OPINION

COLLEEN KOTELLY, District Judge

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
Page 2
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-á-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

I: BACKGROUND

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
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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
Page 5
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.
Page 6

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.

II: LEGAL STANDARD

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
Page 7
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).

III: DISCUSSION

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
Page 8
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
Page 9
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
Page 10
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
Page 11
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
Page 12
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
Page 13
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 wilful, 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.
Page 14
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
Page 15
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
Page 16
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"
Page 17
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
Page 18
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
Page 19
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.
Page 20

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
Page 21
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
Page 22
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
Page 23
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
Page 24
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
Page 25
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
Page 26
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.
Page 27

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
Page 28
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
Page 29
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.

IV: CONCLUSION

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. As such, the Court will treat the two
paragraphs as one for the purposes of this motion, and any
reference to "First Am. Compl. 29" includes both.

[fn5] Defendants, in their Reply Memorandum, blatantly contest
many of Plaintiff's factual assertions present in the Complaint.
See Defs.' Reply at 3 n. 3. Indeed, while Defendants proclaim
affinity with the practice that "the defendants' motion
challenges only the legal sufficiency of plaintiff's pleadings at
this stage and this Court may not consider facts outside the
complaint in deciding this motion," they then seek to put
Congressional testimony in front of the Court and "flatly deny
that they had prior knowledge of the danger." Id. While
Defendants might take solace in Oscar Wilde's maxim "The
well-bred contradict other people. The wise contradict
themselves.", the Court notes that it would not be wise at this
stage to consider any factual assertions beyond Plaintiff's
pleadings. Oscar Wilde, "Phrases and Philosophies for Use of the
Young," The Chameleon (1894). Any contradictory information
proffered by Defendants is hereafter ignored for the purposes of
this Memorandum Opinion.

[fn6] As the Bivens court made clear, a plaintiff must be
claiming the violation of a fundamental constitutional right in
order to maintain a Bivens action. Bivens, 403 U.S. at 392.
Defendants seeking shelter from a Bivens action underneath the
sympathetic umbrella of qualified immunity must prove that "their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have
known." Harlow, 457 U.S. at 818.

[fn7] To state a claim under the Equal Protection component of
the Fifth Amendment, intentional discrimination must be shown.
Washington v. Davis, 426 U.S. 229, 239 (1976); Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
270-71 & n. 21 (1977).

[fn8] Defendants also argue that the Congressional employees were
situated differently from the Postal employees. Defs.' Mot. at
11-12; Defs.' Reply at 4-5; see also First Am. Compl. 7
(sealed letter addressed to Senator Daschle was opened in the
congressional offices; obvious exposure to anthrax found); Id.
8 (letter had merely "passed through" Brentwood Facility). The
Defendants are relying upon the proposition that the Constitution
"does not require things which are different in fact or opinion
to be treated in law as though they were the same." Plyler v.
Doe, 457 U.S. 202, 216 (1982) (quoting Tigner v. Texas,
310 U.S. 141, 147 (1940)); accord Michael M. v. Superior Court,
450 U.S. 464, 469 (1981). Indeed, "the dissimilar treatment of
dissimilarly situated persons does not violate equal protection."
Women Prisoners of District of Columbia Dep't of Corrections v.
District of Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996)
(citations omitted). To back up their argument that the Capitol
Hill workers were somehow "dissimilarly situated" from the
Brentwood workers — rendering Equal Protection concerns
inapplicable — Defendants once again attempt to introduce a
panoply of scientific evidence and testimony concerning the risks
of anthrax exposure. Defs.' Reply at 3 n. 2, 4.

As discussed previously, supra note 5, the Court must only
consider the facts alleged in the Complaint and all reasonable
inferences therein. Defendants' testimony and analysis is
therefore inappropriate and will be disregarded. Moreover,
considering the constant comparisons made by Plaintiff between
Congressional employees and Brentwood workers in his Complaint,
as well as the general similarities (both groups were collections
of federal employees, the same anthrax-filled letter passed
through each workplace), the Court concludes that — with all
inferences in favor of Plaintiff as the non-moving party —
Plaintiff has established that the employees were "similarly
situated." However, as discussed above, Plaintiff has not alleged
that the named Defendants were responsible for the disparate
treatment.

[fn9] To the extent that FECA might not cover Plaintiff's racial
discrimination claim, the law is quite clear that Title VII of
the 1964 Civil Rights Act is the exclusive remedy for
discrimination by the government on the basis of race, religion,
sex, or national origin. 42 U.S.C. § 2000e-16; Brown v. Gen.
Serv. Admin., 425 U.S. 820, 835 (1976); Kizas v. Webster,
707 F.2d 524, 544-45 (D.C. Cir. 1983); Briones v. Runyon,
101 F.3d 287, 289 (2d Cir. 1996); Boyd v. USPS, 752 F.2d 410, 413-14
(9th Cir. 1985); Newbold v. USPS, 614 F.2d 46, 47 (5th Cir.
1982). To maintain a suit under Title VII, a plaintiff must meet
certain time requirements and must exhaust his remedies under the
statute. Kizas, 707 F.2d at 544. The Court makes no
determination of whether Plaintiff has met the criteria for a
successful Title VII suit, and only notes that Title VII possibly
provides yet another avenue of redress outside of Bivens. Even
if Title VII is unavailable for procedural reasons, the Bush
court noted that a Bivens action should not be implied simply
because "existing remedies do not provide complete relief for the
plaintiff." Bush, 462 U.S. at 388. Rather, "[w]hen the design
of a Government program suggests that Congress has provided what
it considers adequate remedial mechanisms for constitutional
violations that may occur in the course of its administration, we
have not created additional Bivens remedies." Chilicky,
487 U.S. at 423.
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