The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs are the International Union, United Government Security Officers of America ("Union") and fifty-four individually named Court Security Officers ("CSOs").*fn1 Several claims are currently pending in this matter. First, the Union is pursuing a Fifth Amendment procedural due process claim against John Clark, Director of the United States Marshals Service ("USMS" or the "agency"), challenging the modified medical fitness-for-duty standards USMS began applying to CSOs in 2001. Second, the fifty-four CSOs, in their individual capacities, are pursuing Fifth Amendment due process claims against the USMS and disability discrimination claims against Akal Security, Inc. ("Akal"), MVM Security Services, Inc. ("MVM") and Ares Group Incorporated ("AGI"), under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq..*fn2 Third, and finally, a putative class of CSOs seeks to pursue a class-wide claim against USMS under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq..
This matter is now before the Court on Defendant John Clark's Motion for Judgment on the Pleadings or for Summary Judgment on Plaintiffs' Rehabilitation Act Claims and for Judgment on the Pleadings on All Claims as to Eight Individual Plaintiffs [Dkt. No. 171]. Upon consideration of the Motion, Opposition, Reply, Supplemental Memoranda, and the entire record herein, and for the reasons stated below, Defendant's Motion is granted in part and denied in part.
This is the Court's fourth, although likely not its last, Memorandum Opinion in this four-year-old case. Rather than set forth the complex factual and procedural history in its entirety, the Court will limit its discussion here to the immediately relevant facts.
1. The Judicial Security Contracts Governing the CSOs' Employment
USMS, a division of the Department of Justice ("DOJ"), is a federal law enforcement agency with statutory duties that include providing security services to federal courthouses and courtrooms. See 28 U.S.C. § 566(a). It performs these duties, in part, by contracting for the services of CSOs with private security companies ("contractors") including Defendants Akal, MVM, and AGI, which currently hold "judicial security contracts" in all twelve federal Circuits. See 28 U.S.C. § 604(a)(22); Fourth Am. Compl. at 12-13.
The CSOs are not considered federal employees; they are private-sector employees of companies such as Akal, MVM, and AGI who are designated to serve as CSOs pursuant to those companies' contracts with USMS.*fn3 See Fourth Am. Compl. ¶ 21. All of the individual CSOs named as Plaintiffs in this action are members of the Union, which represents contract federal security officers, including CSOs, and negotiates collective bargaining agreements ("CBAs") with the contractors that "determine the terms and conditions of their employment." Id. ¶¶ 4, 21.
Pursuant to their judicial security contracts with USMS, the contractors "provide all necessary manpower, supervision, transportation, equipment, and clothing, not provided by the Government . . . to perform court security services for each USMS district covered by [the relevant] contract." Def.'s Mot. for J. on the Pleadings or Summ. J. [Dkt. No. 171], Farmer Decl. Ex. A, Twelfth Circuit Contract with MVM § C-2 (hereinafter "Twelfth Circuit Contract").
By way of personnel, the contractors must provide the following: (1) site supervisors to "oversee and manage the day to day operations of the CSO[s] at their respective district, unless otherwise directed by the Contracting Officer [a USMS employee]," id. § C-5(b)(1); (2) Lead Court Security Officers ("LCSOs") to, inter alia, "coordinate daily activities at their respective facility[,] . . . provide a direct degree of supervision for the daily work of the CSOs[,] and act as a liaison between the Contract Manager, Site Supervisor, and the COTR,"*fn4 id § C-4(c); and (3) "qualified CSOs at each district facility designated by the Government" to guard courthouse entrances, screen visitors, provide security in courtrooms, and escort judges, courthouse personnel, and jurors, as needed. Id. § C-5(d)(1).
It is the contractors' sole responsibility to find potential CSOs, conduct an initial screening to determine whether CSO candidates meet the qualifications set by USMS, and forward any potentially eligible CSOs to USMS for a more thorough background check. The contractors also pay salaries and provide benefits to the CSOs, withhold taxes on their behalf, maintain their time and attendance records, and have the exclusive power to terminate their employment. See Def.'s Mot. for J. on the Pleadings or Summ. J. at 3-4 (hereinafter "Def.'s Mot."). Moreover, agents of the contractors-the Contract Managers, site supervisors, and LCSOs-provide much of the supervision of the CSOs' daily activities. See Twelfth Circuit Contract § C-18.
USMS, however, specifies the qualifications CSO candidates must meet. These include "at least three calendar years of verifiable experience as a certified law enforcement officer or its military equivalency." Id. § C-6(6). In addition, CSOs must demonstrate weapons proficiency and satisfy certain physical fitness and medical standards. See id. §§ C-6 - C-25. The validity of revisions to the medical standards implemented by USMS in 2001 is ultimately at issue in this case. See International Union, United Government Security Officers of America, et al. v. Clark, 02-cv-1484, Mem. Op. at 3-4 (D.D.C. 2003).
After a CSO candidate is determined to be eligible to work under a judicial security contract, USMS conducts an intensive residential training program, lasting two to three days, which all CSOs must successfully complete before assuming their responsibilities. See id. ¶ C-23(b). Once on the job, USMS provides certain essential equipment to the CSOs, including their weapons, radios, and handcuffs. See id. § C-26(a). Those items remain government property and must be returned to USMS upon a CSO's departure. Id. USMS establishes the dress code and standards of performance for CSOs and administers an oath of office, which has the effect of deputizing them as "Special Deputy United States Marshal[s]." See id. §§ C-12, C-13; Farmer Decl., Ex. B. On its face, the oath of office states that "[t]his authorization does not constitute appointment or employment by the [USMS], the United States Department of Justice, or the United States Government." Id. It also states that the CSO "agrees to perform [her duties] with the knowledge that he or she is neither entering into an employment agreement with the Federal Government or any element thereof, nor being appointed to any position in the Federal Service by virtue of this Special Deputation." Id.
In addition to determining the qualifications CSOs must meet, and training them in their duties, USMS has the power to require ineligible CSOs to be removed from working under a judicial security contract. This power derives from standard clauses in the contracts providing that: (1) "[a]ny employee provided by the Contractor that fails to meet the requirements of the Contract . . . may be removed from performing services for the Government under this Contract upon written request of the Contracting Officer," id. § H-3(a); (2) USMS "reserves the right at all times to determine the suitability of any Contractor employee to serve as a CSO," id. § H-3(b); and (3) "[a]ny decision to continue a Contractor employee in a CSO capacity will be made solely by the Judicial Protective Services ["JPS"] Program [of the USMS] on a case-by-case basis in accordance with the requirement to safeguard the federal judicial process, the Judiciary, citizens, and property as per policies and directives governing Judicial Protective Services Operations." Id.
2. Plaintiffs' Exhaustion of their Administrative Remedies
Section 501 of the Rehabilitation Act requires federal agencies to institute procedures to adjudicate discrimination claims at the administrative level, see 29 U.S.C. § 501(b), and requires employees to avail themselves of those procedures before filing suit in federal court. See 29 U.S.C. § 794a(a)(1). Of the fifty-four Plaintiffs in this case, only fifteen exhausted their administrative remedies under Section 501.*fn5 Ten of those fifteen individuals failed to initiate the administrative complaint process within the statutory deadline.*fn6
B. The Procedural History
On July 26, 2002, the Union brought this action against the USMS, claiming that the implementation of the modified fitness for duty medical standards deprived the CSOs of procedural due process and violated their rights under the notice and comment requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706, et seq.. On August 28, 2003, the Court granted in part and denied in part USMS's Motion to Dismiss, concluding that the Union had stated a valid Fifth Amendment procedural due process claim against USMS but that its APA claim could not proceed. See Int'l Union, United Gov't Sec. Officers of America v. USMS, No. 02-cv-1484, Mem. Op. (D.D.C. Aug. 28, 2003).
On December 17, 2003, the Court granted the Union leave to file a Second Amended Complaint in order to add as Plaintiffs thirty-eight former CSOs. These individually-named CSO Plaintiffs asserted that they have "the same claims and are seeking similar redress to that sought by Plaintiff [Union]." Pls.' Mot. for Leave to File Second Am. Compl. at 4 (November 10, 2003). With leave of the Court, the Union and the individual Plaintiffs filed a Third Amended Complaint on July 9, 2004, adding five former CSOs as Plaintiffs, stating new claims under the Rehabilitation Act and the ADA, and joining Akal and MVM as Defendants. On February 4, 2005, again with leave of the Court, the Union and the fifty-four individual Plaintiffs filed a ...