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Workers Can't Sue Postal Officials Over Anthrax, Judge Rules

By Carol D. Leonnig
Washington Post Staff Writer
Saturday, November 20, 2004; Page B04

A federal judge ruled yesterday that U.S. Postal Service officials had no special responsibility to alert workers at the Brentwood postal facility to deadly anthrax contamination in the building and cannot be sued by the employees.

Anthrax spores sent through the mail to Senate offices in fall 2001 contaminated the central mail processing facility on Brentwood Road NE and resulted in the deaths of two plant employees. Six workers filed suit last year, claiming that their lives were put in danger when Postal Service officials insisted that the building was safe even though they knew it was not.

U.S. District Judge Rosemary M. Collyer said she found ample reason to believe that the officials showed deliberate indifference to worker safety by keeping the plant operating for four days after they privately confirmed the toxic spores had spread through the facility.

But, she said, the officials who were sued -- U.S. Postmaster General John E. Potter, Postal Service Vice President Thomas G. Day and senior plant manager Timothy C. Haney -- are immune from the lawsuit. Previous court cases have not clearly established a civil liability for such actions and decisions, the judge said.

Workers and their lawyers at the government watchdog group Judicial Watch said yesterday that they were disappointed by Collyer's decision and expected to appeal it.

"They're allowed to get away with not sharing information that could be so dangerous to our lives," said Dena Briscoe, one of the workers who filed the suit and the head of a support group for Brentwood employees. "For us to be federal employees who serve the citizens of this country, I think it's very unfair for no one to be held accountable for how we were mistreated."

Tom Fitton, president of Judicial Watch, said, "We can't imagine that in the end that courts will sanction government supervisors lying to workers about biological toxins infecting their workplace. Let's be clear about the consequences here: People are sick to this day and some are dead, and the courts are saying 'Tough luck.' "

Officials at the Postal Service and the Justice Department, which represented the postal officials in the case, were not available for comment late yesterday afternoon.

The anthrax mailings to two Senate offices and several media organizations killed five people, including Brentwood workers Joseph P. Curseen and Thomas L. Morris Jr., sickened 17 and set off a new wave of public anxiety following the terrorist attacks of Sept. 11. After three years, an FBI investigation has not uncovered any conclusive evidence about who sent the mailings.

In her ruling, Collyer agreed with the employees on much of what happened after an anthrax-laced letter was opened in the office of Sen. Thomas A. Daschle (D-S.D.) on Oct. 15, 2001.

She noted the difference between the postal officials' insistence that the anthrax posed no risk to their employees, most of whom are black, and the urgent steps that congressional leaders took to shield their employees on Capitol Hill, most of whom are white. The entire Hart Senate Office Building, where Daschle's letter was opened, was closed on Oct. 15 , but "in contrast, the Brentwood facility continued to operate as usual," the judge said.

On Oct. 18, when all Capitol Hill buildings were closed, Brentwood manager Haney wrote a note saying he had privately briefed a senior Postal Service official that "the mail was leaking [anthrax] and we were affected." But Potter held a news conference that same afternoon at which he said the building was safe.

The judge wrote that it appears that the agency took steps that increased the danger to its employees and that those acts "shock the collective conscience."

She said the workers should instead turn to the Federal Employees' Compensation Act to seek payment for any injuries suffered in the workplace.


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