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International Union, United Government Security Officers of America v. Clark

April 15, 2010


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiffs in this case are International Union, United Government Security Officers of America and 65 individual Court Security Officers ("CSOs") who were medically disqualified, removed as CSOS, and then terminated from their positions. They allege that the United States Marshals Service ("USMS" or "Defendant") violated their Constitutional rights in effecting their termination. As described in great detail in prior opinions, the case has a long and complex factual and legal background. The present matter is before the Court on parties' Cross-Motions for Summary Judgment [Dkt. Nos. 263 and 268].

Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment on Plaintiffs' Due Process Claim and on All Claims Asserted by Plaintiffs William J. Burge, Lawrence Churm, and Donald Smith ("Def.'s Mot.") is granted and Plaintiffs' Cross-Motion for Summary Judgment ("Pls.' Mot.") is denied.


A. Factual Background

In exercising its statutory responsibility to "provide for the security of" various federal courts, 28 U.S.C. § 556(a), USMS contracts with private companies to employ CSOs in courthouses. The employment contracts are negotiated on a circuit-by-circuit basis. Decl. of Marc A. Farmer, Nov. 30, 2004 ("Farmer Decl.") (Ex. 1 to Def.'s Mot.), at ¶ 5. By statute, the judiciary oversees the program. 28 U.S.C. § 604(a)(22).

Plaintiffs entered into a collective bargaining agreement ("CBA") with the private companies that USMS had contracted with. Those CBAs include language governing the conditions for termination and suspension, among other subjects. For instance, under the terms of the CBA between certain Plaintiffs and MVM, Inc. (one of the private companies with which USMS had a contract, and also a Defendant in this lawsuit, but not a moving party on these Motions):

[a]fter completion of the probationary period, no Employee shall be dismissed or suspended without just cause, unless the Employee is ordered by the Government to be removed from working under the Employer's contract with the Government, or if the Employee's credentials are denied or terminated by the Marshals Service. ("just-cause provision")

Twelfth Circuit CBA Between MVM, Inc. and United Government Security Officers of America Local #80, Inc. ("12th Cir. CBA"), at § 6.1.1 (Ex. 11 to Def.'s Mot. (Ex. E to Decl. of Maxine W. Robinson, Dec. 12, 2007 ("Robinson Decl."))).*fn2

The contracts between USMS and the private companies are referenced in the CBAs, and include procedures that provide for notice of any disciplinary decisions and an opportunity to respond to those decisions. See Twelfth Circuit Contract Between USMS and MVM, Inc. ("12th Cir. Judicial Contract"), at H-3(a)-(e) (USMS-CON 01251) (Ex. 2 to Def.'s Mot.). All such contracts were modified in July of 2002. The following section was added: "[t]he procedures of Section H-3 do not apply to situations where a CSO is removed for failure to meet the contract's medical and/or physical qualification standards and firearms requirements." 12th Cir. Judicial Contract, at H-3(h) (M011; USMS-CON 01305 C).

The CSOs are comprised mainly of retired law enforcement and military personnel. The program requires that the CSOs have a minimum of three years of law enforcement experience. There is evidence that starting in 1997, members of the Judicial Conference of the United States began to express concern that the security force overseen by the USMS was not physically capable of responding to security threats or emergency situations. Farmer Decl. at ¶ 19. The following year, the Judicial Conference ordered the United States Public Health Service's Office of Federal Law Enforcement Medical Programs ("USPHS") to conduct a job function analysis of the CSOs.

The doctors at USPHS presented their findings and recommendations to the Judicial Conference in Spring of 2000. A committee of the Judicial Conference endorsed these findings, and USMS implemented the recommended standards contained in the USPHS analysis. USMS informed the security companies employing the CSOs that the contracts would be modified, and that it would require full compliance with the new standards.

Under the new procedures, CSOs had regular physicals conducted by a physician chosen by the security company. The employer collected the records from these physicals and sent them to Mark Farmer, who oversees the CSO program for USMS, Farmer Decl. at ¶ 1. Farmer's office then passed the documents on to doctors at USPHS. The USPHS doctors reviewed these records and either certified the CSO as medically fit for duty, or issued a request for more information. Farmer's office would communicate the doctor's decision to the security company, who then informed the CSO of the determination. The record contains an example of a medical review where the CSO was not certified as medically fit. The document, addressed to the CSO, informed the CSO that "[i]ncumbent has medical findings which may hinder safe and efficient performance of essential job functions." Judicial Security Division, Medical Review Form, Felipe Jorge-Rodriguez (Oct. 9, 2001; Aug. 14, 2002) (Ex. 18 to Pls.' Mot.). The form then states that, "[p]er agency request, if further information is not provided, a determination will be made based on available medical information." Id.

If the CSO was notified that she was not certified as fit for duty and that more information would aid a final determination, she then had the opportunity to submit further information, or face disqualification. The form described what medically relevant information the responding physician should include; there is no language prohibiting or limiting what additional information or explanation can be included in the response report by either the CSO's personal physician or the physician paid for by the employer. See id.

B. Procedural Background

In Plaintiffs' Amended Complaint, filed on September 9, 2002 [Dkt. No. 2], they alleged due process violations against the Defendant.*fn3 Int'l Union v. Clark, No. 02-1484, slip op. at 10 (D.D.C. Aug. 28, 2003) [Dkt. No. 25]. On August 28, 2003, the Court denied Defendant's Motion to Dismiss [Dkt. No. 7] these Constitutional claims. Id. at 10, 16. After following applicable law and assuming the Plaintiffs' version of the facts to be true, the Court held that Plaintiffs did have a property interest in their employment, which was created by the just-cause provision in their CBAs. See id. at 10 (basing ...

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