Hatfill v. US - DOJ and FBI Statement of Facts (filed Friday)

On Friday, the government filed this statement of the facts in its memorandum in support of its motion for summary judgment in a civil rights and Privacy Act lawsuit brought by Dr. Steve Hatfill.

“The anthrax attacks occurred in October 2001. Public officials, prominent members of the media, and ordinary citizens were targeted by this first bio-terrorist attack on American soil. Twenty-two persons were infected with anthrax; five died. At least 17 public buildings were contaminated. The attacks wreaked havoc on the U.S. postal system and disrupted government and commerce, resulting in economic losses estimated to exceed one billion dollars. The attacks spread anxiety throughout the nation – already in a heightened state of alert in the wake of the attacks of September 11 – and left behind a lasting sense of vulnerability to future acts of bioterrorism. Given the unprecedented nature of the attacks, the investigation received intense media attention. Journalists from virtually every news organization pursued the story, sometimes conducting their own worldwide investigation to determine the person or persons responsible for the attacks and the motive behind them.

Testimony has revealed that at least certain members of the media began focusing their attention upon Hatfill in early 2002 because of tips they had received from former colleagues of his who found him to be highly suspicious. Articles about Hatfill thus began to appear in the mainstream press and on internet sites as early as January of 2002, and continued until the first search of his apartment on June 25, 2002, which, in turn, led to even more intense press attention.

Barbara Hatch Rosenberg, a Professor at the State University of New York, for example, complained in January and February 2002 on the Federation of American Scientists’ (“FAS”) website of the FBI’s apparent lack of progress on the investigation, and described generally the person she believed was the “anthrax perpetrator.” “Analysis of Anthrax Attacks,” Possible Portrait of the Anthrax Perpetrator (Section IV.6), Defendant’s Appendix , Ex. 1. Rosenberg did not identify Hatfill by name, but described him in sufficient detail: a “Middle-aged American” who “[w]orks for a CIA contractor in Washington, DC area” and [w]orked in USAMRIID laboratory in the past” and “[k]nows Bill Patrick and probably learned a thing or two about weaponization from him informally.” Id. In his amended complaint, Hatfill states that “Professor Rosenberg’s ‘Possible Portrait of the Anthrax Perpetrator’ . . . described [him].”

In addition to her postings on the FAS website, Professor Rosenberg also presented a lecture on February 18, 2002 at Princeton University’s Woodrow Wilson School of Public and International Affairs, entitled “The Anthrax Attacks and the Control of Bioterrorism.” Ex. 2. During the course of her lecture, Rosenberg stated that she had “draw[n] a likely portrait of the perpetrator as a former Fort Detrick scientist who is now working for a contractor in the Washington, D.C, area[.]” Ex. 3. Rosenberg also commented upon Hatfill’s whereabouts on the date of the attacks, stating that “[h]e had reason for travel to Florida, New Jersey and the United Kingdom” – where the attacks had been and from which the letters had been purportedly sent – that “[h]e grew [the anthrax], probably on a solid medium, and weaponised it at a private location where he had accumulated the equipment and the material.” Id. Rosenberg also stated that the investigation had narrowed to a “common suspect[,]” and that “[t]he FBI has questioned that person more than once[.]” Id. Former White House Spokesperson, Ari Fleischer, immediately responded to Rosenberg’s comments, stating that there were several suspects and the FBI had not narrowed that list down to one. Ex. 4. The FBI also issued a press release, stating that it had “interviewed hundreds of persons, in some instances, more than once. It is not accurate, however, that the FBI has identified a prime suspect in this case.” Id. Rosenberg’s comments and writings were subsequently pursued by The New York Times (“The Times”). In a series of Op-Ed articles published from May through July 2002, Nicholas Kristof, a journalist with The Times, accused Hatfill of being responsible for the anthrax attacks. Kristof wrote on May 24, 2002 that the FBI was overlooking the anthrax perpetrator, noting that “experts” (Professor Rosenberg) point “to one middle-aged American who has worked for the United States military bio-defense program and had access to the labs at Fort Detrick, Md. His anthrax vaccinations are up to date, he unquestionably had the ability to make first-rate anthrax, and he was upset at the United States government in the period preceding the anthrax attack.” Ex. 5.

Hatfill first noticed the Kristof columns in May 2002. Hatfill Dep. Tran. in Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 6, at 13: 3-6. According to Hatfill, “[w]hen Mr. Kristof’s article appeared, it was the first [time] that [he] realized that [his] name [was] in the public domain with connection with an incident of mass murder.” Id. at 16:15-18. Hatfill has charged that The Times began the “entire conflagration and gave every journalist out there reason to drive this thing beyond any sort of sanity. Mr. Kristof lit the fuse to a barn fire and he repeatedly kept stoking the fire.” Id. at 43:19 - 44:1. In July 2004, Hatfill thus filed suit alleging that these articles libeled him by falsely accusing him of being the anthrax mailer. Complaint, Hatfill v. The New York Times, No. 04-807 (E.D.Va.), Ex. 7.

Hatfill alleges in that lawsuit that “Kristof wrote his columns in such a way as to impute guilt for the anthrax letters to [him] in the minds of reasonable readers.” Id. ¶ 12. The articles, Hatfill claimed, which described his “background and work in the field of bio-terrorism, state or imply that [he] was the anthrax mailer.” Id. ¶ 14. Hatfill specifically alleged that statements in Kristof’s articles were false and defamatory, including those that stated that he: (1) “‘unquestionably had the ability to make first-rate anthrax’”; (2) “had the ‘ability’ to send the anthrax”; (3) “had the ‘access’ required to send the anthrax”; (4) “had a ‘motive’ to send the anthrax”; (5) “was one of a ‘handful’ of individuals who had the ‘ability, access and motive to send the anthrax’”; (6) “had access” to an ‘isolated residence’ in the fall of 2001, when the anthrax letters were sent”; (7) “‘gave CIPRO [an antibiotic famously used in the treatment of anthrax infection] to people who visited [the ‘isolated residence’]”; (8) his “anthrax vaccinations were ‘up to date’ as of May 24, 2002”; (9) he “‘failed 3 successive polygraph examinations’ between January 2002 and August 13, 2002”; (10) he “‘was upset at the United States government in the period preceding the attack’”; (11) he “‘was once caught with a girlfriend in a biohazard ‘hot suite’ at Fort Detrick [where Hatfill had concedely worked] surrounded only by blushing germs.’” Id. ¶ 16 (brackets in original). Hatfill alleges in his lawsuit against The Times that “[t]he publication of [Kristof’s] repeated defamation of [him] . . .gave rise to severe notoriety gravely injurious to [him].” Id. ¶ 29. The injury, Hatfill alleged, “was [made] all the more severe given the status and journalistic clout of The Times.” Id. This harm was compounded, Hatfill alleged, by the fact that these articles were “thereafter repeatedly published by a host of print and on-line publications and on the television and radio news” in the following months. Id., ¶ 30.

The case was initially dismissed by the trial court. Hatfill v. The New York Times, No. 04-807, 2004 WL 3023003 (E.D.Va.). That decision was reversed by the United States Court of Appeals, Fourth Circuit, 416 F.3d 320 (4th Cir. 2005). Upon remand, the trial court granted The Times summary judgment, finding that Hatfill was a public figure and public official and had failed to present evidence of malice. Hatfill v. The New York Times, 488 F. Supp. 2d 522 (E.D. Va. 2007). In arriving at that conclusion, the court considered Hatfill’s repeated media interviews before the attacks; the fact that he had “drafted a novel, which he registered with [the] United States Copyright office, describing a scenario in which a terrorist sickens government officials with a biological agent”; and had lectured on the medical effects of chemical and biological agents. Id. at 525.

Although not recited by the district court in The New York Times litigation, Hatfill also talked directly to reporters about his suspected involvement in the attacks. Brian Ross of ABC News, and his producer, Victor Walter, for example, talked separately to Hatfill on two to three occasions as early as January and February 2002, Ross Dep. Tran., Ex. 8, at 263:14 - 270:1, and continued talking to Hatfill until May of that year. Id. Ross also spoke to Hatfill’s friend and mentor, William Patrick, about Hatfill. Id. at 287:9 - 295:12. These meetings were prompted by discussions ABC News had in January 2002 with eight to twelve former colleagues of Hatfill at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”). Id. at 242:7 - 246:14. Hatfill’s former colleagues found him to be “highly suspicious because of a number of things he had done when he worked at [USAMRIID], and this behavior was strange "and unusual and they felt that he was a likely candidate.” Id. at 242: 7-17. These meetings were also prompted by ABC News’s own investigative reporting into Hatfill’s background; the more ABC News learned “the more interested [they] became” in Hatfill. Id. at 264: 14-15.

Scott Shane of the Baltimore Sun also spoke to Hatfill in February 2002. Shane also spoke to USAMRIID employees who had worked with Hatfill. Ex. 9. These employees stated that they had been questioned by the FBI and “asked about a former Fort Detrick scientist” – Hatfill – “who returned a few years ago and took discarded biological safety cabinets, used for work with dangerous pathogens.” Id. at 1. These employees claimed that Hatfill “ha[d] expertise on weaponizing anthrax and ha[d] been vaccinated against it[.]” Id. Shane also called one of Hatfill’s former classmates, who was “plagued” by questions from the Baltimore Sun and others within the media regarding Hatfill’s “alleged involvement with the large anthrax outbreak in Zimbabwe[.]” Ex. 10. According to Hatfill, this classmate was told by Shane that Hatfill was purportedly responsible for “mailing the anthrax letters and also starting the [anthrax] outbreak in Zimbabwe/ Rhodesia twenty years before.” Ex. 11, at AGD29SJH00014; see also e-mail to Hatfill fr. DF Andrews, dated Mar. 1, 2002, Ex. 10. Hatfill told Shane in February 2002 that he had been “questioned by the FBI” and that “he considered the questioning to be part of a routine effort to eliminate people with the knowledge to mount [the] attack.” Ex. 9. Hatfill also confirmed for Shane that he had taken an FBI polygraph. Ex. 12, at 2. In March 2002, Hatfill left Shane a frantic telephone message reportedly stating how he had “been [in the bioterrorism] field for a number of years, working until 3 o’clock in the morning, trying to counter this type of weapon of mass destruction” and fearing that his “career [was] over at [that] time.” Ex. 13, at 2. According to Hatfill, Shane later Case 1:03-cv-01793-RBW Document 232-2 Filed 04/11/2008 Page 17 of 73

____ Hatfill did not sue either Shane or Rosenberg, even though Hatfill has stated that Rosenberg “caused” the focus on him. Ex. 14, at 10. Because Hatfill believed that the portrait Rosenberg painted at the February 2002 Princeton conference and in her website postings was so identifying and incriminating, however, Hatfill advised Rosenberg through his lawyers that “before [she] get[s] close to describing him in the future, by name or otherwise, [that she] submit [her] comments for legal vetting before publishing them to anyone.” Ex. 15. There is no evidence that the agency defendants bore any responsibility for the media presence. Information about FBI searches is routinely shared with a variety of state and local law enforcement authorities. Roth Dep. Tran., Ex. 16, at 163:5 -165:21; Garrett Dep. Tran. Ex. 17, at 79: 8-18. ______

compounded Hatfill’s problems by calling his then-employer, Science Applications International Corporation (“SAIC”), and accusing Hatfill of being responsible for the anthrax attacks, Ex. 11, at AGD29SJH00014, which, according to Hatfill, cost him his job as a contractor at SAIC. Id. 1

The media frenzy surrounding Hatfill intensified upon the search of his apartment on June 25, 2002, and the search of a refrigerated mini-storage facility in Ocala, Florida on June 26, 2002. Both were witnessed by the media, and the search of his apartment was carried live on national television. In addition to the television coverage, the searches generated a slew of articles about Hatfill throughout the media, one fueling the next. The Associated Press, for example, detailed in an article, dated June 27, 2002, Hatfill’s (1) work as biodefense researcher, including studies he had conducted at SAIC, and the work he had done at the USAMRIID; (2) his educational background; (3) where he had previously lived; and (4) security clearances he had held and the suspension of those clearances. Ex. 18. The Hartford Courant reported these same details, and additional information regarding Hatfill’s purported service in the Rhodesian army. Ex. 19. The next day -- June 28, 2002 -- the Hartford Courant reported details about Hatfill’s background in biological warfare, his vaccinations against anthrax, questioning that purportedly had occurred among Hatfill’s colleagues, his educational background (including the claim that he had attended medical school in Greendale), and lectures that he had given on the process of turning biological agents into easily inhaled powders. Ex. 20. None of this information is attributed to a government source.

In July 2002, after these reports and after the first search of Hatfill’s apartment on June 25, 2002, Hatfill retained Victor Glasberg as his attorney. Glasberg Dep. Tran., Ex. 21, at 12: 16-19. Glasberg believed that “any number of people in the media [had] overstepped their bounds. . . . prior to July of 2002 .” Id. at 141:1 - 142:6. To counter this information, Hatfill set out on a “public relations offensive” of his own to “turn [the] tide.” Id. at 138: 20-21, 178: 12-13.

Recognizing that Hatfill “continue[d] [to] get[] killed with bad press, national as well as local[,]” Hatfill drafted a statement and Glasberg forwarded that statement in July 2002 to Hatfill’s then-employer at Louisiana State University (“LSU”). Ex. 11, at 1. The statement detailed Hatfill’s background, including his medical training and employment history, and provided details about Hatfill’s involvement in the anthrax investigation, including how he had been interviewed by the FBI and had taken a polygraph examination. Id. at AGD29SJH00002-13. Hatfill’s statement corroborated the conversations that Hatfill reportedly had with Scott Shane of the Baltimore Sun in February 2002, and how that interaction had purportedly cost Hatfill his job at SAIC in March 2002. Id. at AGD29SJH00014.

In his July statement, Hatfill was careful not to blame DOJ or the FBI for his troubles or for any wrongdoing for the information about him that had made its way into the press. He touted the professionalism of the FBI, noting that “[t]he individual FBI agents with whom [he had come] in contact during this entire process are sons and daughters of which America can be justifiably proud. They are fine men and women doing their best to protect this country.” Id. at AGD29SJH00016. Hatfill’s objection lay with the media, whom he labeled as “irresponsible[,]” for trading in “half-truths, innuendo and speculation, making accusations and slanting real world events . . . to gain viewer recognition, sell newspapers, and increase readership and network ratings.” Id.

As the investigation proceeded, however, Glasberg publicly criticized investigators on the date of the second search of Hatfill’s apartment, August 1, 2002, for obtaining a search warrant rather than accepting the offer Glasberg had allegedly made to cooperate. Ex. 22. So angry was Glasberg with investigators that he wrote a letter, dated the same day as the search, to Assistant United States Attorney Kenneth C. Kohl, denouncing the fact that the search had been conducted “pursuant to a search warrant.” Ex. 23. Glasberg forwarded a copy of this letter to Tom Jackman of the Washington Post, and to the Associated Press, the morning of August 1st. Glasberg, Dep. Tran., Ex. 24, at 265:12 - 266:5; see also Ex. 25 (Glasberg memorandum to file, stating, among other things, that Glasberg showed Jackman Kohl letter on August 1, 2002).

On the day of the search, an FBI spokeswoman at the Bureau’s Washington field office, Debra Weierman, “confirmed that the search was part of the government’s anthrax investigation.” Ex. 25. Weierman added, however, that “she was unable to confirm that [investigators were acting on a search warrant] or to provide any further information about the search.” Id.

The next day – August 2, 2002 – Glasberg faxed the Kohl letter to members of the media. Ex. 26. In the fax transmittal sheet accompanying the Kohl letter, Glasberg also advised the media that: Dr. Hatfill was first contacted by the FBI earlier this year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI. He and his lawyer Tom Carter were told that the results were all favorable and that he was not a suspect in the case. Id. at AGD16SJH03106. Subsequent to the fax transmittal by Glasberg, Weierman confirmed that the search had been conducted pursuant to a search warrant, but only after receiving appropriate authorization from her superiors. Weierman Dep. Tran., Ex. 27, at 93:16 - 94:14.

Hatfill had also accompanied Glasberg for his interview with Jackman the day before to address the “media feeding frenzy.” Ex. 28. Glasberg provided Jackman with the promise of an “[e]xclusive personal statement” from Hatfill and the promise of “[n]o other press contacts pending publication” of the article. Id. Glasberg thus provided Jackman background information about Hatfill, Rosenberg’s statements, and other publications. Ex. 25. Hatfill reportedly complained to the Washington Post in the interview about the media feeding frenzy, and about how his “friends are bombarded” with press inquiries. Ex. 29, at 1. Hatfill also complained about the “[p]hone calls at night. Trespassing. Beating on my door. For the sheer purpose of selling newspapers and television.” Id.

Following this “media frenzy,” not to mention the two searches of Hatfill’s apartment, former Attorney General John Ashcroft was asked on August 6, 2002 (at an event addressing the subject of missing and exploited children) about Hatfill’s involvement in the investigation. Jane Clayson of CBS News asked General Ashcroft about the searches and whether Hatfill was a “suspect” in the investigation. Ex. 30, at 2. General Ashcroft responded that Hatfill was a “person of interest.” General Ashcroft cautioned, however, that he was “not prepared to say any more at [that] time other than the fact that he is an individual of interest.” Id. At the same media event, Matt Lauer of NBC News also asked General Ashcroft whether Hatfill was a “suspect” in the investigation. Ex. 31. General Ashcroft responded that Hatfill was a “person that – that the FBI’s been interested in.” Id. at 2. General Ashcroft cautioned that he was “not prepared to make a . . . comment about whether a person is officially a . . . suspect or not.” Id.

General Ashcroft made the same comments at a news conference in Newark, New Jersey on August 22, 2002, stating that Hatfill was a “person of interest to the Department of Justice, and we continue the investigation.” Ex. 32, at 1. As in his previous statements, General Ashcroft refused to provide further comment. Id. When asked upon deposition why he referred to Hatfill as a “person of interest” in the anthrax investigation in response to these media inquiries, General Ashcroft testified that he did so in an attempt to correct the record presented by the media that he was a “suspect” in the investigation, which he believed served a necessary law enforcement purpose. Ashcroft Dep. Tran., Ex. 33, at 81: 5-12; 103:18; 108: 9-13; 138: 5-7; 125: 18-21; 134:22 - 136:8. Prior to making these statements, General Ashcroft did not review or otherwise consult any investigative record, id. at 128:14 - 129:12, much less any record pertaining to Hatfill.

General Ashcroft’s initial statements on August 6, 2002 were followed, on August 11, 2002, by the first of Hatfill’s two nationally televised press conferences. Ex. 34. During his press conference, Hatfill lashed out at Rosenberg and other journalists and columnists who he believed wrote a series of “defamatory speculation and innuendo about [him].” Id. at 3. In apparent response to the “person of interest” statements, by contrast, he stated that he did “not object to being considered a ‘subject of interest’ because of [his] knowledge and background in the field of biological warfare.” Id. at 4. This was consistent with Hatfill’s statement to ABC News earlier in 2002 in which he stated that “his background and comments made him a logical subject of the investigation.” Ex. 35. As noted, moreover, Glasberg told the media -- almost a week before the first of General Ashcroft’s statements -- that “Hatfill was first contacted by the FBI [earlier that] year, as part of the Bureau’s survey of several dozen scientists working in fields related to biomedical warfare. He was voluntarily debriefed and polygraphed, and voluntarily agreed to have his home, car and other property subjected to a lengthy and comprehensive search by the FBI.” Ex. 26.

Hatfill’s second press conference was held on August 25, 2002. In the flyer publicizing the conference, Hatfill identified himself to the media -- in bold lettering -- as “the ‘person of interest’ at the center of the federal Government’s [anthrax] investigation.” DA, Exhibit 36.

Patrick Clawson joined the Hatfill team in early August 2002 as spokesperson and “fielded hundreds of inquiries from members of the press worldwide regarding Dr. Hatfill[.]” Ex. 12, at 13. Clawson believed it best to employ a media strategy that would, in his words, “let it all hang out.” Id. at 50:10. Clawson felt that “permitting maximum sunshine into . . . Hatfill’s existence would do both him and the public the best good.” Clawson Dep. Tran., Ex. 37, at 50:16-18.

“The majority of Clawson’s communications with the press regarding this case have been oral and by telephone and he did not keep a press log or any other regular record of such contacts with the press.” Ex. 12, at 13. Clawson nonetheless admitted upon deposition that he revealed numerous details about Hatfill’s personal and professional background to members of the press (Clawson Dep. Tran., Ex. 37, at 101:9 - 105:21), including Hatfill’s professional expertise (id. at 103:10 - 105:21), use of Cipro (id. at 123:16 - 130:11, 248: 8-13), whereabouts on the days of the attacks (id. at 148:12 - 158:10, 361:15 - 362:3), expertise in working with anthrax (id. at 194:13 - 195:8), former service in the Rhodesian Army (id. at 210:9 - 211:10), and drunk driving arrest (id. at 795: 7-9, 798: 4-6). Clawson also told reporters what had been purportedly removed from Hatfill’s apartment during the two searches of his apartment on June 25, 2002 and August 1, 2002 (including medical books and a jar of bacillus thuringiensis (“BT”)) (id. at 121: 6-12, 131:2 - 131:12, 14:8 - 147:3, 313: 3-10). Clawson also freely relayed to the press that bloodhounds had been presented to Hatfill during the investigation (id. at 200: 15-19); that Hatfill had been the subject of surveillance (id. at 123:12-15, 428: 19-21); that Hatfill had taken polygraphs (id. at 135:16 - 137:17); and that he had submitted to blood tests (id. at 137:18-138:5, 347: 6-10).

In furtherance of Clawson’s “sunshine” policy, Hatfill, Clawson, and Glasberg, together, provided countless on-the-record, on-background (i.e., for use, but not for attribution), and off-the-record (i.e., not for attribution or use) interviews to counter misinformation. Although Hatfill repeatedly claimed upon deposition not to remember what he said during these interviews, he acknowledged in his responses to the Agency Defendants’ interrogatories having such conversations with, in addition to Mr. Jackman, Judith Miller of The New York Times, Jeremy Cherkis of the City Paper, Guy Gugliotta of the Washington Post, David Kestenbaum of National Public Radio, Rick Schmidt of the LA Times, Rob Buchanan of NBC Dateline, Jim Popkin of NBC News, Dee Ann David and Nick Horrock of UPI, Gary Matsumato of Fox TV, Bill Gertz of the Washington Times, and David Tell of the Weekly Standard. Ex. 12, at 3-4. With respect to the Matsumato interview, Glasberg warned Hatfill before the interview that he “should not be quoted, nor should Matsumato say or imply that he spoke with him.” Ex. 38, at 1. Glasberg warned Hatfill that “Matsumato must be willing to go to jail rather than reveal word one of anything [he] says on ‘deep background.’” Id.

All of these disclosures became too much even for Glasberg, who attempted to put a stop to them. In August, when Jackman aired his exclusive interview with Glasberg and Hatfill, Glasberg heralded the success of his public relations strategy noting that “Rosenberg, Shane and Kristof are, [each] of them, in varying stages of sulking, licking their wounds, reacting defensively and changing their tune.” Ex. 39. Slowly Glasberg advised both Hatfill and Glasberg to observe “the rule of COMPLETE SILENCE regarding anything and everything about the case[.]” Ex. 40 (emphasis in original). Ultimately, in September 2002, Glasberg ordered Clawson to stand down, noting “[w]hat you know, you know, and you have put virtually all of that into the public record. Fine. That is where we are, and for good or ill we can and will deal with it. But we must put a full stop to any further conveyance of substantive data about ANYTHING from Steve to anyone [but his attorneys].” Ex. 41 (emphasis in original). To no avail. On October 5, 2002, Hatfill and Clawson appeared together at an Accuracy in Media Conference. Hatfill was asked about the reaction of bloodhounds, and stated, I’m not supposed to answer things against . . . but let me tell you something. They brought this good-looking dog in. I mean, this was the best-fed dog I have seen in a long time. They brought him in and he walked around the room. By the way, I could have left at anytime but I volunteered while they were raiding my apartment the second time, I volunteered to talk with them. The dog came around and I petted him. And the dog walked out. So animals like me (laughter). Ex. 42, at 2.

Disclosures from the Hatfill camp to the media continued. For example, between late 2002 and May 8, 2003, Hatfill’s current attorney, Tom Connolly, and CBS News reporter James Stewart had multiple telephone conversations and two lunch meetings. Ex. 43. According to Stewart, Connolly told Stewart that the investigation was focusing on Hatfill, and detailed at great length the FBI’s surveillance of Hatfill. In virtually every one of these conversations, Connolly encouraged Stewart to report on these subjects. Id. at 96.

At the time of the second search of his apartment in August 2002, Hatfill was working as a contract employee at the Louisiana State University (“LSU”) on a program to train first responders in the event of a biological attack. This program was funded by the Department of Justice’s Office of Justice Programs (“OJP”) as part of a cooperative agreement. Ex. 44. Under the terms of the cooperative agreement, OJP “maintain[ed] managerial oversight and control” of the program. Id. at 2. Following the second search of Hatfill’s apartment on August 1, 2002, Timothy Beres, Acting Director of OJP’s Office of Domestic Preparedness, directed that LSU “cease and desist from utilizing the subject-matter expert and course instructor duties of Steven J. Hatfill on all Department of Justice funded programs.” Ex. 45. LSU, meanwhile, had independently hired Hatfill to serve as Associate Director of its Academy of Counter-Terrorist Education. Following the second search, LSU placed Hatfill on administrative leave. Ex. 46. LSU then requested a background check of Hatfill. Ex. 47. During the course of that investigation, the University became concerned that Hatfill had forged a diploma for a Ph.D that he claimed to have received from Rhodes University in South Africa. Hatfill explained to Stephen L. Guillott, Jr., who was the Director of the Academy of Counter-Terrorist Education at LSU, that “[h]e assumed the degree had, in fact been awarded since neither his [thesis advisor] nor Rhodes University advised him to the contrary.” Ex. 48. LSU’s Chancellor, Mark A. Emmert, made “an internal decision to terminate [LSU’s] relationship with Dr. Hatfill quite independent of [the DOJ e-mail] communication.” Ex. 51.

Hatfill has now testified that in fact he created a fraudulent diploma with the assistance of someone he met in a bar who boasted that he could make a fraudulent diploma. Hatfill Dep. Tran., Ex. 49 at 19:20 - 20:12. Glasberg, moreover, has stated under oath that Hatfill’s earlier attempted explanation was untrue. Glasberg, Dep. Tran., Ex. 21, at 314:10 - 317:2. In a nationally televised 60 Minutes episode that aired in March 2007, Connolly confirmed that Hatfill forged the diploma for the Ph.D from Rhodes University. Ex. 50, at 3.

Hatfill claims lost wages and other emotional damages resulting from General Ashcroft’s “person of interest” statements and other for-attribution statements by DOJ and FBI officials. He also seeks to recover for certain other alleged “leaks” by DOJ and FBI officials. Hatfill additionally asserts that the defendants violated the Act by purportedly failing to (1) maintain an accurate accounting of such disclosures, which he asserts is required by section 552a(c) of the Act; (2) establish appropriate safeguards to insure the security and confidentiality of the records that were purportedly disclosed, which he asserts is required by section 552a(e)(10); (3) correct information that was disseminated about him that was inaccurate or incomplete, which he asserts is required by section 552a(e)(5); and (4) establish adequate rules of conduct, procedures, and penalties for noncompliance, or to train employees in the requirements of the Act, which he asserts is required by section 552a(e)(9). Defendants are entitled to summary judgment.”

Ed, what peer reviewed articles bear on the FBI’s development of microbial forensics for an Amerithrax prosecution in addition to these listed below? (and let me know if any of these should be deleted)

Bowen, G. J., J. R. Ehleringer, L. Chesson, E. Stange, and C. E. Cerling. 2007. “Stable isotope ratios of tap water in the contiguous USA,” Water Resour. Res. 43:W03419.
http://www.agu.org/pubs/crossref/2007/2006WR005186.shtml

Budowle B, Harmon R., “HIV legal precedent useful for microbial forensics,” Croat Med J. 46(4):514-21 (Aug 2005)
http://www.ncbi.nlm.nih.gov/sites/entrez?Db=pubmed&Cmd=ShowDetailView&TermToSearch=16100753&ordinalpos=3&itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsPanel.Pubmed_RVDocSum

Budowle, B., M. D. Johnson, C. M. Fraser, T. J. Leighton, R. S. Murch, and R. Chakraborty. 2005. “Genetic analysis and attribution of microbial forensics evidence,” Crit. Rev. Microbiol. 31:233-254
http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=retrieve&db=pubmed&list_uids=16417203&dopt=AbstractPlus

Budowle B, Murch R, Chakraborty R., “Microbial forensics: the next forensic challenge,” Int J Legal Med. 119(6):317-30 (Nov 2005)
http://www.ncbi.nlm.nih.gov/sites/entrez?Db=pubmed&Cmd=ShowDetailView&TermToSearch=15821943&ordinalpos=1&itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsPanel.Pubmed_RVDocSum

Budowle, B., S. E. Schutzer, M. S. Ascher, R. M. Atlas, J. P. Burans, R. Chakraborty, J. J. Dunn, C. M. Fraser, D. R. Franz, T. J. Leighton, S. A. Morse, R. S.
Murch, J. Ravel, D. L. Rock, T. R. Slezak, S. P. Velsko, A. C. Walsh, and R. A. Walters. “Toward a system of microbial forensics: from sample collection to interpretation of evidence,” Appl. Environ. Microbiol. 71:2209-2213 (2005).
http://aem.asm.org/cgi/content/full/71/5/2209?ijkey=11f63da16d84d14221469a04d0917d00b4ae7e74&keytype2=tf_ipsecsha

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Here is the statement of the case by the USG in its opening brief — without the discussion of the law that follows.

INTRODUCTION
Plaintiff is the widow of Robert Stevens, the first victim in a series of criminal
attacks in the Fall of 2001, in which an unknown perpetrator sent anthrax through the mail. Plaintiff sued the United States (and also sued Battelle Memorial Institute, a private laboratory, in a subsequently consolidated case), alleging that the anthrax used by the perpetrator originally came from a United States Army Laboratory, and that the United States should be liable in negligence for the death of Mr. Stevens at the hands of the unknown attacker. The federal trial court in this case declined to dismiss plaintiff’s complaint, although the court acknowledged there was “no precedent in American jurisprudence” for plaintiff’s claim.

Although there have been no similar cases involving biological organisms used as a weapon, Florida courts have repeatedly rejected efforts to hold manufacturers, sellers, or owners of firearms liable for injuries caused by third-party criminals who use guns to attack strangers. Plaintiff’s theory would thus hold scientific researchers to a standard of potential liability that Florida law has declined to impose on those who own or sell guns. Such a major shift in Florida tort law would require abandoning the requirement of a “special relationship” in cases involving third-party criminal conduct, in favor of imposing an unprecedented duty to protect the general public from third parties. Florida courts, in accordance with the Restatement (Second)
of Torts, have consistently enforced the special relationship requirement and have consistently rejected the notion of a duty to all. This Court should reaffirm that consistent body of case law and should decline to take the radical step urged by plaintiff.

STATEMENT OF THE CASE
1. Certified Question
This case comes before the Supreme Court on a question of Florida law
certified by the United States Court of Appeals for the Eleventh Circuit. The federal appellate court stated the following certified question:
documents, in the Record Excerpts filed by the United States in the United States Court of Appeals for the Eleventh Circuit, which have been provided to this Court.

“Under Florida law, does a laboratory that manufactures, grows, tests or
handles ultra-hazardous materials owe a duty of reasonable care to
members of the general public to avoid an unauthorized interception and
dissemination of the materials, and, if not, is a duty created where a
reasonable response is not made where there is a history of such
dangerous materials going missing or being stolen?” Op. 17.2
The Eleventh Circuit also stated that it did “not intend to restrict the issues considered by the state court,” and noted that “discretion to examine this issue and other relevant issues lies with the state court.” Op. 17.

2. Nature of the Case

Plaintiff Maureen Stevens sued the United States in federal district court under
the Federal Tort Claims Act (FTCA), 28 U.S.C. ‘’ 1346(b), 2671 et seq., a federal statute that looks to state law to determine whether the sovereign immunity of the United States has been waived and the federal government can be held liable in tort. See 28 U.S.C. ‘ 2674 (United States may be liable “to the same extent as a private individual under like circumstances” under state law). Plaintiff’s late husband, Robert Stevens, was the first of several victims across the Nation who were killed or injured by inhalation anthrax in a series of criminal attacks in the Fall of 2001. The Federal Bureau of Investigation has launched a massive investigation into those attacks, and
the search for the perpetrator continues.

The complaint alleges that Mr. Stevens was exposed to anthrax bacteria derived from biological materials that were once held in a federal government laboratory, and that the government failed to take appropriate precautions at the laboratory, or in sending the bacteria to another research facility, to prevent the unidentified perpetrator of the anthrax attack from obtaining the bacteria. The complaint does not allege that there was any relationship between Mr. Stevens and the laboratory, nor is there any
allegation that the perpetrator had any relationship with the government.
The FTCA requires the federal courts to interpret Florida law, which imposes
liability for negligence only if a defendant owed a duty of care to prevent harm to the victim. This Court has adopted the rule set forth in section 315 of the Restatement (Second) of Torts (1965), that a defendant has no duty to protect another person from the criminal acts of a third party, unless the victim and defendant had a special relationship (such as a common carrier and its passengers, or a landowner and its invitees). See Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 918
(Fla. 1985).

The United States moved to dismiss the complaint on the ground that the
government owed no duty to Mr. Stevens under Florida law. The federal district court denied the motion to dismiss, but recognized that plaintiff’s theory of negligence liability is unprecedented, and accordingly certified the issue for interlocutory appeal.

The court’s decision offered two bases for rejecting ‘ 315 and the Florida cases that rely on the no-duty rule. First, the court limited the scope of the no-duty rule, distinguishing between acts and omissions. Second, following New York law, and applying that state’s policy-based allocation of risks, the court concluded that the United States owed a duty to the general public to prevent such criminal attacks as the one that killed Mr. Stevens.

Both the government and a private laboratory (Battelle Memorial Institute,
which has been named as defendant in a similar, consolidated suit filed by the same plaintiff) sought review of the trial court’s threshold legal ruling. On appeal, the Eleventh Circuit concluded that “Florida law does not appear to have addressed and decided these issues” and accordingly certified the state-law question (set forth above) to this Court. Op. 17.

3. Restatement (Second) of Torts

This case involves the interpretation of provisions of the Restatement (Second) of Torts, which are set out here for the Court’s convenience.

a. The United States principally relies on Restatement ‘ 315, which
provides:

“There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s
conduct, or (b) a special relation exists between the actor and the other which
gives to the other a right to protection.” Restatement (Second) of Torts,
‘ 315 (1965).

The Restatement’s commentary makes clear that “[t]he rule stated in [’ 315] is a special application of the general rule stated in ‘ 314.” Restatement ‘ 315, cmt. a.

Section 314 in turn provides:

“The fact that the actor realizes or should realize that action on his part is
necessary for another’s aid or protection does not of itself impose upon
him a duty to take such action.”

The exceptions to the no-duty rule in ‘ 315 are set out in ‘’ 314A, 316-320.
They provide exceptions for special relationships between the defendant and victim — such as the relationship between a common carrier and its passengers, an innkeeper and his guests, a landowner and her invitees, or an institution (such as a prison, hospital, or school) and those subject to the institution’s custody. See Restatement ‘’ 314A, 320. They also provide exceptions to the no-duty rule for special relationships between the defendant and a third-party tortfeasor — such as the relationship between a parent and a minor child, an employer and employee, or an
institution and someone in the custody of that institution — when the defendant is on notice of the risk and has the authority and the opportunity to exercise control over the tortfeasor. See Restatement ‘’ 316-319.

b. Plaintiff has cited other provisions of the Restatement, including ‘’ 302,
302A, and 302B. Section 302 provides:

“A negligent act or omission may be one which involves an unreasonable
risk of harm to another through either (a) the continuous operation of a force started or continued by the act or omission, or
(b) the foreseeable action of the other, a third person, an animal, or
a force of nature.” Restatement ‘ 302.
Restatement ‘’ 302A and 302B provide that “[a]n act or an omission may be
negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through” either the “negligent or reckless conduct of the other or a third person,” ‘ 302A, or “the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal,” ‘ 302B.

The commentary emphasizes the limited purpose of ‘ 302:

“This Section is concerned only with the negligent character of the
actor’s conduct, and not with his duty to avoid the unreasonable risk. . . .
If the actor is under no duty to the other to act, his failure to do so may
be negligent conduct within the rule stated in this Section, but it does not
subject him to liability, because of the absence of duty.” Restatement
‘ 302, cmt. a.

Both ‘’ 302A and 302B expressly incorporate that comment. See Restatement
‘ 302A, cmt a (”This Section is a special application of the rule stated in ‘ 302(b). Comment a to that Section is equally applicable here.”); Restatement ‘ 302B, cmt a
(same).

STATEMENT OF FACTS

This case remains at the pleading stage, so the federal courts have accepted the facts as pleaded in the complaint as true for purposes of the threshold motion to dismiss. If the case were to proceed, the government would dispute many of the allegations.

1. Robert Stevens died on October 5, 2001, a victim of an unknown
assailant who sent anthrax bacteria through the mail to Mr. Stevens’ workplace. The complaint does not speculate about the identity of the killer.
The complaint originally sought recovery on both strict liability and negligence theories, alleging that the government was liable in tort simply due to its undertaking to own, manage, and experiment with anthrax bacteria, which the complaint describes 8 throughout as “ultra-hazardous.” RE 1:2-5, 7; see also Op. 4 & n.1. Plaintiff eventually conceded that the FTCA does not waive the sovereign immunity of the United States for strict liability claims, and the trial court dismissed that count. See RE 47:2 n.1.

The remaining negligence count alleges that the government failed to take steps plaintiff believes were necessary to keep anthrax bacteria from falling into the hands of potential criminals. See RE 1:6-7. The complaint reiterates, both by incorporation and expression, the foundation of the strict liability count — the assertion that anthrax was an “ultra-hazardous material” — and further asserts that the government was required to exercise “the highest degree of care” in its “handling, storage, use, or possession” of that material. Id. at 1:5.

Without explanation, the complaint asserts that the United States “owed a duty of care and in fact, the highest degree of care,” in virtually every facet of the work (including hiring, security screening, and workplace security, as well as the handling of and experimenting with anthrax bacteria) performed at a U.S. Army research laboratory located in Fort Detrick, Maryland. See id. at 1:5-6. The complaint does not identify any class or category of individuals to whom the government owed this asserted duty of care, nor does the complaint identify any special relationship between Mr. Stevens and the Army laboratory, or any other component of the government, that could give rise to such a duty. Finally, the negligence count alleges a number of
failures or omissions by the government in its operation of the Army laboratory that allegedly made possible the criminal act that led to the death of Mr. Stevens. See id. at 1:6-7.

2. The United States moved to dismiss the complaint on the ground that
plaintiff failed to state a claim under Florida law because the government owed no duty to protect Mr. Stevens from an unidentified third-party killer, even if the complaint’s allegations (that the killer used anthrax derived from a government laboratory source) were true.

The federal district court denied the motion to dismiss the negligence count (as noted above, the court granted, and plaintiff did not oppose, the motion to dismiss plaintiff’s strict liability claim). The court recognized that this Court looks to the Restatement (Second) of Torts, and concluded that the Restatement, ‘’ 302, 302A, and 302B, can be read to impose a duty of care based on the district court’s reading of the complaint to allege that the government committed “affirmative acts (ownership
and handling of biohazards), which . . . give rise to a corresponding duty to protect all others exposed to any ‘unreasonable risk of harm’ arising out of that activity.” RE 47:10. The trial court asserted that Restatement ‘’ 302, 302A, and 302B generally “attach to acts of commission, which historically generate a broader umbrella of tort liability than acts of omission, which are the subject of ‘’ 315 and 314A,” on which the government principally rested its duty argument. RE 47:9. The court cited only one Florida case for this theory: Shurben v. Dollar Rent-A-Car, 676 So. 2d 467 (Fla.
3d DCA 1996). See RE 47:10; Op. 6-9.

The federal district court alternatively held that Restatement ‘ 315 could be
read to impose a duty of care to protect members of the general public against a criminal attack using biohazards such as the anthrax bacteria. The court acknowledged that Restatement ‘ 314 “recognizes a general rule of non-liability based on a failure to warn or guard against third-party misconduct (in the nonfeasance or acts of omission arena),” and that ‘ 315 sets out “certain exceptions or ‘special applications’ of the rule which operate to limit its application.” RE 47:12. The court conceded that “plaintiff in this case does not fit within any of the relationships specifically referenced by the Restatement at [’ 315(a)] or by existing Florida case law,” RE 47:15, but nevertheless concluded that the government was under a duty to
protect “the public at large which is realistically and foreseeably at risk in the event that a deadly organism or contagion is released,” id. at 47:17. The trial court cited no Florida case law in support of that holding, and relied solely on a decision from a federal court interpreting New York law. See id. at 47:15-18 (citing In re September 11 Litigation, 280 F. Supp. 2d 279 (S.D.N.Y 2003)); Op. 9-11.

The trial court certified the order for interlocutory appeal to the Eleventh
Circuit. See RE 58:4-8. The court characterized the question at issue as:

“Under Florida law, does a laboratory that manufactures, grows, tests
and handles ultra-hazardous viruses and germs, having a history of
missing or unaccounted for samples, owe a duty of reasonable care to
members of the general public to avoid an unauthorized interception and
dissemination of the biohazards, either (1) under [’] 302B of the
Restatement of Torts (Second), without the presence of an underlying
‘ 315 ‘special relationship?’ or (2) under application of ‘ 315 of the
Restatement, on the premise that it stands in “special relationship” with
members of the general public foreseeably placed at risk of
contamination in the event of an unintentional or intentional release of
the biohazards?” RE 58:8.

The trial court acknowledged that such a theory “finds no precedent in American jurisprudence.” Id. at 58:6; see Op. 12-13.

The trial court also explained that the Federal Bureau of Investigation (FBI) is
in the midst of an extensive investigation into the anthrax attacks, in an effort to identify and charge the perpetrator or perpetrators. Plaintiff seeks to litigate the very questions the FBI is currently investigating, and the court expressed concern that litigation of plaintiffs’ claim could result in “possible impairment or compromise” of both the ongoing investigation and the “sensitive national security interests” that are also present in this case, which involves allegations concerning the use of a biological agent as a weapon. Id. at 58:7.

3. Following briefing and argument, the Eleventh Circuit certified the
question of state law to this Court. The federal appellate court reviewed the
complaint’s factual allegations and the procedural history of the litigation. See Op. 3-13. The court described the “central issue” as “what duties exist under Florida law to protect members of the general public where an organization creates a significant risk by using anthrax or another ultra-hazardous material.” Op. 16. The federal court acknowledged that “Florida case law . . . fails to fit neatly into the complex factual pattern at hand.” Id. The court offered two hypothetical questions that it apparently viewed as unprecedented — asking whether a gun store owner, accused of negligence for leaving a “door unlocked at night, knowing that guns had been stolen in the past,” should be “free from liability if an unknown third party was killed by a criminal using one of the stolen guns,” and whether a construction company should be liable “if an unknown third party used [dynamite stolen from the company] to blow up a building.” Op. 16. In the absence of controlling state-court precedent, the federal appellate court certified the state-law question (set forth above) to this Court.

SUMMARY OF ARGUMENT

Plaintiff’s theory of liability, if accepted, would vastly expand the scope of
Florida negligence law, subjecting a research laboratory (whether private or
governmental) to potential liability if any substance from the facility is later used as a weapon in a criminal attack. The courts of this state have repeatedly rejected similar claims concerning vehicles and firearms. Plaintiff’s claim in this case should likewise be rejected.

Like nearly every other state, Florida law requires a showing that a defendant in a negligence action owed a duty of care to protect the victim. And, following the “special relationship” rule of the Restatement (Second) of Torts, this Court and others in Florida have recognized that there is no duty to protect a stranger from a criminal attack by another stranger. That fundamental principle controls this case, and the Court should reaffirm the many decisions that conclude there is no duty in such a
circumstance.

Plaintiff concedes that there is no special relationship here, either between the United States and Mr. Stevens, or between the government and the killer. There is thus no basis for applying any of the established exceptions to the no-duty rule. Instead of trying to come within those exceptions, plaintiff tries to escape the effect of the no-duty rule by limiting its scope. But none of plaintiff’s arguments withstands scrutiny.

In the context of third-party criminal conduct addressed by Restatement ‘’ 314-320, mere foreseeability is not enough to establish a duty of care supporting a negligence claim. Foreseeability may determine the extent of a duty where third-party criminal conduct is not involved, but only a special relationship with either the victim or the criminal can give rise to a duty to prevent third-party criminal conduct. In effect, under ‘ 315’s no-duty rule, third-party criminal conduct harming a stranger is unforeseeable as a matter of law, because the existence of a duty turns on the nature of
the relationship between the defendant and the victim or the criminal, rather than the factual foreseeability of the criminal conduct.

Neither the Restatement nor the jurisprudence of the Florida courts supports
plaintiff’s suggestion that the no-duty rule is limited to allegations of actions, rather than omissions. The distinction is legally untenable in cases like this one, as demonstrated by plaintiff’s complaint, which by its terms alleges omissions (failures to act), although the federal district court apparently read it otherwise. As this case demonstrates, plaintiff’s argument would allow easy evasion of the no-duty rule.

Nor can the no-duty rule’s exception for a special relationship be squared with liability based on an undifferentiated duty to the general public. The government laboratory had no relationship with Mr. Stevens. Imposing a duty here thus would not be a modest expansion of the relationships deemed “special,” but rather a fundamental abrogation of the requirement of a special relationship in favor of an unabashed regime of duties owed by all to all. But this Court has rejected such a massive expansion of negligence actions.

The only authority that supports plaintiff’s argument comes from case law that developed the jurisprudence of strict liability. But this case raises solely a negligence claim, and this Court should reject plaintiff’s efforts to blur the line between the two causes of action, especially as plaintiff has acknowledged that Congress has not permitted strict liability claims to be brought against the United States.

[legal argument omitted]

Here are excerpts from Battelle’s initial brief, with the extensive legal argument omitted.

BRIEF OF APPELLANT/DEFENDANT BATTELLE MEMORIAL INSTITUTE
STATEMENT OF THE CASE

Based on the allegations set forth in the Complaint, the Stevens family’s
claims fail as a matter of law because Battelle Memorial Institute (“Battelle”) owed no legal duty to the decedent, Robert Stevens. Specifically, under Florida law Battelle had no duty to prevent the criminal acts of third parties. The Complaint against Battelle alleges that Mr. Stevens died after inhaling anthrax mailed in a letter to the offices of American Media, Inc. in Florida. Under Florida law, in the case of third party misconduct, a defendant does not owe a duty to the victim of that misconduct unless the defendant has a special relationship with either the victim or the perpetrator or control at the time of the injury of the location of injury or the alleged injury causing instrumentality. The Complaint against Battelle does not allege a special relationship or the requisite control.

A. Statement of Facts: the Stevens Family’s Claims

The Stevens family’s claims against Battelle arise out of one of a series of
terrorist attacks involving mail contaminated with the biological agent Bacillus
anthracis, also called anthrax. 80253 Dkt. #31:1. In the fall of 2001, an unknown criminal or group of criminals intentionally mailed letters containing some form of anthrax to individuals in Florida, New York, and Washington, D.C. Id. One of those letters was mailed to American Media, Inc. in Boca Raton, Florida, where Mr. Stevens worked. 80253 Dkt. #31:2. Mr. Stevens became ill and died after inhaling anthrax. Id. The Stevens family brought suit against the United States, alleging, among other claims, that the anthrax that killed Mr. Stevens was stolen from a government medical research facility in Fort Detrick, Maryland due to the United States’s negligence in handling the anthrax. 81110 Dkt. #1. The Stevens family further alleged that there was a history of missing samples of anthrax from the same facility in Fort Detrick. 81110 Dkt. #1 ¶ 9.

Alternatively, the Stevens family brought a separate suit against Battelle, a
private research facility, broadly alleging negligence in the handling of anthrax. The Stevens family did not allege that there was a history of missing samples of anthrax against Battelle. The Complaint against Battelle contains only broad and general allegations that Battelle and others negligently hired and supervised employees and failed to protect anthrax in their possession and then states the conclusion that anthrax was “obtained and sent” as a “direct, proximate and foreseeable result of the negligence of the Defendants.” Complaint ¶ 13. The Stevens family pled no underlying facts in the complaint against Battelle that plausibly suggest either the broad allegations of negligence or any basis to determine that Battelle owed a duty to Mr. Stevens.

B. District Court Proceedings

1. Battelle’s Motion for Judgment on the Pleadings

The conclusory allegations of negligence in the Complaint against Battelle
appear to be based on the sole fact that Battelle held in its research facility in Ohio live anthrax bacteria. Battelle filed its Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) based on well-settled Florida law:

1 a defendant has no duty to protect another person from criminal acts of third parties, absent a special relationship that provides the defendant with control of the victim or the perpetrator or control at the time of the injury of the location of the injury or the alleged injury-causing instrumentality. The Complaint alleges no “special relationship” between Battelle and Mr. Stevens to support the existence of a legal duty, no control over the individual or individuals who mailed the anthrax, and no control at the time of the injury over the American Media offices or the alleged injury-causing anthrax.

The government moved to dismiss the Complaint against it under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The government argued that it could not be liable for any third party criminal activity allegedly occasioned by negligent security practices because it owed no duty of protection to Mr. Stevens and did not have a duty or ability to control the unidentified third party responsible.

2. The District Court’s Order

On April 15, 2005, the District Court entered a single order denying both
motions. 80253 Dkt. #38; 81110 Dkt. #47. The District Court denied both
motions based on its analysis of the threshold duty question – whether either
defendant owed a duty to Mr. Stevens or had a duty of control over the third
party’s interception of the anthrax. Specifically, the District Court reasoned that the Stevens family’s allegations establish a legal duty under Restatement (Second) of Torts §§ 302, 302A and 302B (1965), even in the absence of a “special relationship” under § 315, or, alternatively, that under the New York decision In re September 11 Litig., 280 F. Supp. 2d 279 (S.D.N.Y. 2003), a duty of care can be found under the “special relationship” test set forth in Restatement (Second) of Torts § 315 (1965). 80253 Dkt. #38:8, 18; 81110 Dkt. #47:8, 18.

3. Certification for Interlocutory Appeal

Upon the District Court’s denial, the United States filed a Motion for
Reconsideration. 81110 Dkt. #53. On July 5, 2005, the District Court denied the Motion for Reconsideration, but certified its April 15th Order for interlocutory appeal. 80253 Dkt. #41; 81110 Dkt. #58. The Eleventh Circuit Court of Appeals accepted jurisdiction and the United States and Battelle pursued the discretionary appeal.

4. Certification to the Florida Supreme Court

In the Court of Appeals, the United States and Battelle argued that the
District Court had impermissibly expanded theories of tort liability to extend a duty to the “public at large” to prevent criminal misconduct of others, even when that party has no relationship to the perpetrator or the victim and no connection to the site of the injury or control over the injury-causing instrumentality at the time the criminal act occurred. The Appellants argued that this issue was well established by intermediate level courts in the First, Third, Fourth, and Fifth Districts.

The Eleventh Circuit Court of Appeals determined that Florida law has not
previously addressed the “factual pattern at hand” and on June 11, 2007, certified the following question to the Florida Supreme Court.
Under Florida law, does a laboratory that manufactures,
grows, tests or handles ultra-hazardous materials owe a
duty of reasonable care to members of the general public
to avoid an unauthorized interception and dissemination
of the materials, and, if not, is a duty created where a
reasonable response is not made where there is a history
of such dangerous materials going missing or being
stolen? Opinion, No. 05-15088 at 17.

Both the District Court and the Eleventh Circuit appeared to be searching for
a special rule of law because this case arose out of the anthrax through the mail attacks in 2001. Battelle throughout has taken the position that a special rule of law does not exist and should not be created by the courts. Florida law requires a plaintiff to allege, as a threshold legal requirement, a duty owed by the defendant.

Florida law has long held that there is no duty to prevent third-party misconduct absent allegation of some very specific exceptions, specifically allegations that the defendant has a special relationship with either the victim or the perpetrator or allegations that the defendant had control at the time of the injury over the location of the injury or the alleged injury causing instrumentality. Battelle in each court has argued that the Stevens family has failed to establish the threshold legal requirement of duty because they make no such allegations against Battelle.

SUMMARY OF ARGUMENT

This case does not present unique questions never addressed by this Court.
Rather, this case provides this Court an opportunity to further explain longstanding Florida principles and rules to ensure that they are consistently applied to future tort liability cases. Although this case involves horrific criminal or terrorist conduct, this Court should not let those horrible facts, in the wake of September 11, alter existing Florida law and policy, in order to ensure that someone pays for the Stevens family’s loss.

Current Florida case law, set out by this Court and applied consistently by
the intermediate appellate courts, requires a threshold determination of whether a defendant owes a plaintiff a legal duty, such that a negligence case may proceed to trial on issues of negligence and proximate causation. This Court has explained that courts must determine whether a defendant’s conduct has created a “foreseeable zone of risk” that gives the defendant a duty of care to either lessen the risk or protect the plaintiff.

Florida courts have established boundaries to this foreseeable zone of risk
analysis to ensure that a defendant will only be haled to court when the defendant has actual, constructive knowledge of the specific danger and the injury-causing conduct is actually within the defendant’s control. One such boundary is the Florida rule that an entity does not owe a duty to protect against third party misconduct. Florida law has established limited exceptions to this rule that appropriately balance the rights of the victim to protection against the right of a defendant to avoid suit when that defendant did not have a real opportunity to prevent the injury causing event. Specifically, a defendant may owe a duty to a victim of third-party misconduct if that defendant had a special relationship with either the victim or the perpetrator, or that defendant, at the time of the injury, had control of the injury location or the alleged injury-causing instrumentality. Any rule of law that rejects these boundaries simply because a defendant possesses a substance that can be misused by third parties to cause harm is not appropriate. This Court should ensure that in attempting to allow compensation for
an innocent victim injured in a criminal or terrorist attack, it does not create
unbounded duties for defendants with little or no connection to the injury causing event. This Court should not establish a rule that will cause companies who conduct socially valuable work with substances that can be criminally misused to become “insurers” to the general public.

The Stevens family’s Complaint against Battelle contains only broad,
conclusory statements that Battelle negligently hired and supervised its employees working with anthrax. It contains only labels and conclusions as allegations of duty and proximate cause. The Complaint does not allege any underlying facts to support these allegations. It does not allege that Battelle had a history of missing or lost samples. Moreover, the Complaint alleges no facts against Battelle which would have put Battelle on heightened notice that a criminal actor would deliberately intercept such materials and use them to cause harm to an unrelated victim in a distant location. Absent these allegations, the Complaint against Battelle does not state facts giving rise to a legal duty. In sum, this Court must ensure consistent rules that can be applied in future tort liability cases. Many substances exist in our society that can be misused to cause harm, but that also provide value to society. In balancing those interests, this Court should not extend the reach of tort liability to an entity that has no control over the injury-causing event or person. To do so would not protect against the
criminal activity. Allocating a general and unbounded duty to laboratories solely because they use instrumentalities or substances that can be used as weapons does nothing to promise or secure protection from terrorist conduct such as mailing anthrax and would instead deter laboratories such as Battelle from working with anthrax to create vaccines for the social benefit of the public.

[extensive legal argument omitted]

CONCLUSION

This Court should ensure that the rules for establishing tort liability,
specifically in cases involving third party misconduct, are consistent. Allocating the duty to a laboratory to protect the public from all uses or misuses of a substance that laboratory, as well as others, possesses, does nothing to promise or secure protection from terrorist conduct such as mailing anthrax. Instead, forcing Battelle to defend this tort case arising out of the criminal acts of third parties they could not control would inhibit Battelle and companies like it from developing technological advancements for the good of society for fear of unreasonable legal
exposure from intentional criminal acts.

Here are excerpts from the brief filed on behalf of Maureen Stevens.
Question: putting aside legal precedent and analysis, what rule of law does public policy favor?

STATEMENT OF THE FACTS

***
Plaintiff’s Complaint alleges that Defendants’ conduct in creating and
maintaining the certain strain of Anthrax bacterium which killed Robert Stevens foreseeably created a zone of risk. The Complaint alleges (&&7-9):

7. That on or before October 5, 2001, the Defendant, THE
UNITED STATES OF AMERICA, owned, managed, grew,
experimented with, and/or was in control of a certain strain of Anthrax
bacterium at its Fort Detrick, Maryland facility and other facilities.

8. That the Defendant, THE UNITED STATES OF AMERICA,
knew that the activities it carried on with the Anthrax bacillus were
ultra-hazardous activities in that the mere handling of microscopic
quantities of this bacillus involved a potentially high degree of risk of
harm and that that potential harm was likely to be great, namely, the
cause of human death.

9. That despite the above knowledge, the Defendant, THE
UNITED STATES OF AMERICA, failed to adequately secure
samples of this highly toxic lethal bacillus and, as early as 1992,
samples of this formidable, dangerous, and highly lethal organism
were known to be missing from the lab at Fort Detrick, Maryland
occupied by the United States Army Medical Research Institute for
Infectious Diseases (USAMRIID), along with samples of the hanta
virus and the ebola virus, pursuant to a memo which is attached hereto ***

Based on those allegations, Stevens claimed that the United States owed a
duty of care, in fact, the highest degree of care, in the manufacturing, handling, transporting, utilizing, processing, analyzing, distributing, warehousing, storing, testing or experimenting with Anthrax (Complaint &17).

The District Court denied the Motion to Dismiss and Motion for Judgment
on the Pleadings filed by the United States and Battelle. In the order, Judge Hurley relied on McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992) and In Re September 11 Litigation, 280 F.Supp. 2d 279 (S.D. N.Y. 2003), among other authorities, to conclude that it was reasonable to expect the United States to maintain security measures for those who are foreseeably at risk in the event that a deadly pathogen is released. The entire order is included in the Appendix.

SUMMARY OF ARGUMENT
The question certified by the Eleventh Circuit Court of Appeals should be
answered in the affirmative. The issue presented in this case does not involve the duty to protect Robert Stevens from a criminal attack. Instead, the issue in this case is whether the United States and Battelle had a duty to maintain control over the dangerous bacteria being manufactured, stored and transported by them. Under this Court’s analysis in McCain, the duty imposed upon the United States and Battelle was commensurate with the zone of risk created by them. By manufacturing and storing Anthrax, the Petitioners created a risk that the Anthrax would be released into the public. After they were made aware that some pathogens were missing, the Petitioners were put on notice that whatever security measures they had in place were insufficient. They therefore had a corresponding duty to take the reasonable steps necessary to prevent the release of the pathogens
being stored at the facility.

The analysis employed by the Petitioners is flawed because it begins with
the assumption that third parties had Anthrax and then considers whether the Petitioners had a duty to prevent criminal conduct utilizing the bacteria to kill Robert Stevens. The breach of duty alleged in the Complaint was not, however, that the Petitioners failed to protect Robert Stevens from a criminal attack. The Complaint alleged that the Petitioners failed to maintain control over the Anthrax they were storing. The Petitioners have ignored the fact that it was their Anthrax which killed Robert Stevens.

CERTIFIED QUESTION

UNDER FLORIDA LAW, DOES A LABORATORY
THAT MANUFACTURES, GROWS, TESTS OR
HANDLES ULTRA-HAZARDOUS MATERIALS
OWE A DUTY OF REASONABLE CARE TO
MEMBERS OF THE GENERAL PUBLIC TO AVOID
AN UNAUTHORIZED INTERCEPTION AND
DISSEMINATION OF THE MATERIALS, AND, IF
NOT, IS A DUTY CREATED WHERE A
REASONABLE RESPONSE IS NOT MADE WHERE
THERE IS A HISTORY OF SUCH DANGEROUS
MATERIALS GOING MISSING OR BEING STOLEN?
***

[legal discussion omitted]

Analysis of Petitioners’ Argument

The Petitioners have reached the conclusion that they owed no duty to
Robert Stevens because they have looked only at the fact that Robert Stevens
received the Anthrax in the mail through criminal conduct. The Petitioners then utilize the Restatement sections related to the duty to protect another from criminal conduct to reach an erroneous conclusion that they owed no duty. From this perspective, the Defendants completely ignore the issue of how the criminals obtained the Anthrax used to kill Robert Stevens and the role they played in it.

They have started their analysis from the middle of the story and asked the
question, “Now that the criminals have Anthrax, did the Defendants have a duty to protect Robert Stevens from the Anthrax?” Sections 314 and 315 have nothing to do with the duty analysis in this case, however, because the negligence alleged is not one of nonfeasance. The negligence alleged in this case is one of misfeasance. The question presented to this Court is not concerned with whether there was a duty to prevent third parties from using the Anthrax, but whether there was a duty to prevent third parties from being able to obtain access to Petitioner’s Anthrax in the first place.

[legal discussion omitted]

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