United States District Court, W.D. New York
STEPHEN L. ATTERBURY, Plaintiff,
UNITED STATES MARSHALS SERVICE GARY INSLEY, JOHN DOE, Defendants.
COHEN, WEISS AND SIMON, THOMAS N. CIANTRA, TRAVIS M. MASTRODDI, of Counsel, New York, New York, Attorneys for Plaintiff.
WILLIAM J. HOCHUL, JR., UNITED STATES ATTORNEY, MICHAEL S. CERRONE, Assistant United States Attorney, of Counsel, Buffalo, New York, Attorney for Defendants.
REPORT and RECOMMENDATION
DECISION and ORDER 
LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned for all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) by order of Hon. Richard J. Arcara dated May 15, 2012 (Doc. No. 3). It is presently before the court on Defendants' motion, filed January 31, 2013, to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, under Fed.R.Civ.P. 56, (Doc. No. 20) ("Defendants' motion") and Plaintiff's motion, filed February 28, 2013 (Doc. No. 27) pursuant to Fed.R.Civ.P. 56(d), to defer consideration of Defendants' motion to dismiss pending discovery relating to Count II of the Complaint ("Plaintiff's Rule 56(d) motion").
Plaintiff commenced this action by Complaint filed May 4, 2012, alleging a violation by Defendants Gary Insley and John Doe ("Insley, " "John Doe, " or "the individual Defendants") of Plaintiff's right to procedural due process - pre-termination and post-termination - guaranteed by the Fifth Amendment (Count I) ("Plaintiff's due process claim"), and that the direction of the United States Marshal ("USMS") to Plaintiff's employer that Plaintiff be removed from courthouse security service was arbitrary and capricious and in violation of Plaintiff's due process rights, thereby affording Plaintiff relief under the Administrative Procedure Act, 5 U.S.C. § 551, et seq., ("APA") (Count II) ("Plaintiff's APA claim"). Plaintiff seeks damages, reinstatement and attorneys fees under both claims. In lieu of serving an answer,  on January 31, 2013, Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, for summary judgment directed to Plaintiff's APA claim pursuant to Fed.R.Civ.P. 56 (Doc. No. 20) ("Defendants' motion") along with a Memorandum of Law (Doc. No. 21) ("Defendants' Memorandum"), a Statement of Undisputed Facts (Doc. No. 22) ("Defendants' Statement of Undisputed Facts"), a Declaration of Gary Insley (Doc. No. 23) ("Insley Declaration"), together with exhibits 1-8 (Doc. No. 23-1) ("Insley Declaration Exh(s) ___"), a Declaration of Christopher Pfohl (Doc. No. 24) ("Pfohl Declaration"), and a Declaration of Jerrold Risley (Doc. No. 25) ("Risley Declaration"). On March 8, 2013, Plaintiff filed Plaintiff's Memorandum Of Law In Opposition To Defendants' Motion To Dismiss (Doc. No. 29) ("Plaintiff's Memorandum"), attaching a Statement Of Facts Of Plaintiff Of [ sic ] Stephen L. Atterbury Pursuant to Local Rule 56(a)(2) (Doc. No. 29-1) ("Plaintiff's Statement of Facts"), and the Declaration of Stephen L. Atterbury (Doc. No. 29-2) ("Atterbury Declaration"), together with exhibits A-F (Doc. No. 29-2) ("Atterbury Declaration Exh(s). __"). Defendants filed a Reply Memorandum of Law on April 3, 2013 (Doc. No. 32) ("Defendants' Reply Memorandum").
By papers filed February 28, 2013, Plaintiff cross-moved, pursuant to Fed.R.Civ.P. 56(d), to defer consideration of Defendants' motion for summary judgment, directed to Count II of the Complaint, to permit Plaintiff to take discovery to develop fully the record upon which Defendant USMS acted in requesting Plaintiff's removal (Doc. No. 27) together with Plaintiff's Memorandum Of Law In Support Of Motion To Defer Consideration Of Defendants' Motion To Dismiss Count II Of The Complaint Under Fed.R.Civ.P. 56(d) ("Plaintiff's Rule 56(d) Memorandum"), and the Declaration of Thomas N. Ciantra (Doc. No. 27-2) ("Ciantra Declaration"). On March 26, 2013, Defendants filed a Memorandum of Law in Opposition to Plaintiff's Rule 56(d) motion (Doc. No. 30) ("Defendants' Memorandum in Opposition to Plaintiff's Rule 56(d) motion"). On March 26, 2013, Defendants filed the Declaration of Michael S. Cerrone (Doc. No. 31) attaching as Exhibit A ("Cerrone Declaration Exh. A" or "Exh. A") the administrative record upon which the USMS's removal request was based (Doc. No. 31-1). On April 5, 2013, Plaintiff filed Plaintiff's Reply Memorandum In Support Of Motion To Defer Consideration Of Defendants' Motion To Dismiss Count II Of The Complaint Under Fed.R.Civ.P. 56(d) (Doc. No. 33) ("Plaintiff's Reply Memorandum").
By order dated September 26, 2013, the court requested further briefing as regarding the viability of Plaintiff's APA claim (Doc. No. 34). On November 18, 2013, Plaintiff filed Plaintiff's Response To September 26, 2013 Order (Doc. No. 37) ("Plaintiff's Response"); on November 22, 2013, Defendants filed a Memorandum of Law in response to the court's order (Doc. No. 38) ("Defendants' Response"). Oral argument was deemed unnecessary. Based on the following, Defendants' motion to dismiss Plaintiff's due process claim under Count I of the Complaint as to the individual Defendants should be GRANTED; Plaintiff's APA claim (Count II) should be DISMISSED sua sponte for lack of subject matter jurisdiction; alternatively, Defendants' motion to dismiss Plaintiff's APA claim should be GRANTED; alternatively, Defendants' motion for summary judgment directed to Plaintiff's APA claim should be GRANTED. Plaintiff's Rule 56(d) motion should be DENIED.
Plaintiff, Stephen L. Atterbury ("Plaintiff" or "Atterbury"), was since 2002, assigned as a Court Security Officer ("CSO") to the Kenneth B. Keating United States Courthouse located within this district ("the district") at Rochester, New York ("the courthouse") until May 2011, when he was removed from service as a CSO at the direction of the United States Marshal Service ("USMS") based on its determination that Plaintiff, on February 24, 2011, had abandoned or deserted his assigned post at the courthouse in violation of CSO Performance Standard 31 ("Performance Standard 31"). Performance Standard 31 is one of 58 specific duties and responsibilities imposed on CSOs under the USMS's contract with Plaintiff's employer, Akal Security, Inc. ("Akal"), pursuant to which Akal hired security personnel, i.e., CSOs, to provide security services at the courthouse ("the contract" or "the Akal contract"). Insley Declaration Exh. 1 at C-18. Performance Standard 31 requires CSOs "[n]ot close or desert any post prior to scheduled closure unless directed to do so by the supervisor. Remain at assigned post until properly relieved or until the time post is to be secured." Id. Under the contract, Akal, as the contractor, is required to supervise and perform security services for the USMS at the courthouse. The contract also authorizes the USMS's contracting officer, Insley ("the Contracting Officer" or "Insley"), to direct Akal to remove a CSO from providing courthouse security services for a violation of the CSO Performance Standards or when a CSO has engaged in actions "likely to compromise the security of the court[ ]." Insley Declaration Exh. 1 at H-3(c), (e). The contract provides that the "suitability" of an Akal employee to "serve as a CSO" is reserved to the USMS and that the final decision to retain a CSO for courthouse security service is made "solely" by the USMS through the Contracting Officer and the USMS Office of Court Security. Id. at H-3(b), (c). In a case where the USMS has requested that a CSO be removed by Akal from security service duty at the courthouse, a written response from the CSO and a written statement of Akal's position on the proposed removal must be provided to the Contracting Officer for final decision within 15 days of the initial notice of removal. Id.
On February 24, 2011, Plaintiff was assigned to a security post near a basement conference room in the courthouse to provide security in connection with a meeting involving a local member of Congress which had been scheduled to commence around 1:00 p.m. Shortly after he learned from CSO Brydalski, another CSO on duty at that time, that the scheduled meeting, for reasons not disclosed in the record, had been cancelled, Plaintiff left his post at approximately 1:30 p.m., went to another area in the courthouse, the USMS operations area, and informed the Acting Lead CSO, Jerrold Risley ("Risely"), that he, Plaintiff, "was sick and was going home." Risley Declaration ¶ 5. Plaintiff also stated that he would not be in the following day, February 25, 2011. Id. ¶ 6. Plaintiff spoke to Risely because the Lead CSO, Martin Hughes, was on vacation at that time and not present. Id. ¶ 5. Witnesses, including Risely and CSO Becky Smith,  described Plaintiff as appearing "upset" and "mad, " id., ¶ ¶ 10-11. Risley attempted to "discuss the situation" with Plaintiff in the CSO office located in the courthouse but Plaintiff had already signed out and exited the courthouse. Brydalski stated Plaintiff appeared unwell prior to Plaintiff's departure from his assigned post that afternoon. Insley Declaration Exh. 3 at 2. Initially thinking Plaintiff was "joking, " Risley, in a "jocular manner, " responded "see ya" to Plaintiff as Plaintiff passed by Risley on Plaintiff's way to the CSO office to secure his firearm and equipment. Risely Declaration ¶ ¶ 7, 8. Realizing Plaintiff was "preparing to leave work, " id. ¶ 9, Risely went to the CSO office to discuss the situation with Plaintiff. Id. ¶ ¶ 11-13. Risely did not aver Plaintiff appeared ill; instead, to Risely, Plaintiff seemed "agitated and annoyed, " Risley Declaration ¶ 5, slamming "the door to the USMS area as he left." Id. ¶ 12. After Plaintiff left the courthouse, Risely learned Plaintiff "was upset that he had not been timely notified that a security request had been cancelled." Id. ¶ 18. USMS Senior Inspector and Protective Intelligence Investigator Christopher Pfohl ("Pfohl"), who also serves as the USMS's Facility Security Liaison at the courthouse, briefly observed Plaintiff prior to Plaintiff's departure and described Plaintiff as not appearing or sounding sick. Pfohl Declaration ¶ 14. Risley informed Pfohl that he had not approved sick leave for Plaintiff for that day. Id. ¶ 13. In Pfohl's opinion, Plaintiff's unapproved departure "severely compromised courthouse security" because another CSO had earlier been given approval to leave sick that same day so that Plaintiff's absence resulted in the courthouse security being severely understaffed. Id. ¶ ¶ 17-18. As a result of Plaintiff leaving the courthouse, Pfohl reported to the Acting United States Marshal for the district that Plaintiff had "abandoned his post" in violation of the contract. Id. ¶ ¶ 19-20.
Upon being advised of Plaintiff's unauthorized departure, Insley, as the USMS's Contracting Officer under the contract, requested, on March 1, 2011, Akal investigate whether Plaintiff had violated Performance Standard 31. Insley Declaration ¶ ¶ 7-8. Akal's investigator, Robert Seignious ("Seignious"), interviewed Plaintiff and other witnesses, including Pfohl, and on March 17, 2011 filed a report (Insley Declaration Exh. 3) in which Seignious found that no violation of Performance Standard 31 had occurred and that Akal therefore would not act under the contract to discipline Plaintiff. Insley Declaration ¶ 9-11. Believing Seignious's interview of Pfohl to be deficient, conducted as Seignious was about to take an awaiting cab to the airport, the USMS, through Insley as Contracting Officer, refused to accept Seignious's findings and requested Akal reconsider its conclusion that Atterbury had not violated Performance Standard 31. Insley Declaration ¶ 13. On May 3, 2011, Akal affirmed its original report without addressing the USMS's earlier criticism that Seignious had failed to sufficiently interview Pfohl. Insley Declaration ¶ 14; id., Exh. 5. By letter dated May 5, 2011 ("the May 5, 2011 Letter"), the USMS rejected Akal's further report on the matter and, as provided in the contract, requested Plaintiff be removed from service as a CSO at the courthouse. Insley Declaration ¶ 15; Insley Declaration Exh. 1 H-3(b), (c), (e). The USMS directed Akal to provide Plaintiff with a copy of the May 5, 2011 letter and inform Plaintiff of his requested removal from CSO service under the contract, Insley Declaration Exh. 1 H-3(d), and that Plaintiff was to submit within 15 days a written response to the USMS's request. Insley Declaration Exh. 6. The USMS also advised Akal that if it opposed the USMS's request, such disagreement should be treated as a dispute for resolution under the Contract Disputes Act. Id.
In accordance with the contract, Plaintiff provided as a written response to the USMS request an undated letter asserting he left the courthouse before his shift ended because of illness, and that given the reduced number of judges then on duty in the courthouse, Plaintiff's departure did not adversely affect courthouse security at that time. Insley Declaration Exh. 7. Plaintiff also asserted that in deciding to leave his duty station and informing Risley, as acting lead CSO, Plaintiff had followed "protocol" and "local instructions" in deciding to leave his post and depart from the courthouse. Id. Plaintiff denied that Risley attempted to discuss Plaintiff's decision to leave duty with Plaintiff before Plaintiff left the courthouse. Id. On June 24, 2011, in a letter to Akal, authored by the Insley ("the June 24, 2011 Letter"), the USMS rejected Plaintiff's explanation of the events as an appeal of its removal request, and directed Plaintiff be removed from providing security service as a CSO at the courthouse under the contract. Insley Declaration Exh. 8; Insley Declaration Exh. 1 at C-12(a); H-3(d). In the June 24, 2001 Letter, Akal was again reminded by Insley as the Contracting Officer that any disagreement with the USMS's decision to remove Plaintiff from service as a CSO was to be treated as a contract dispute under the Contract Disputes Act. Id.
1. Plaintiff's Bivens Action.
Plaintiff contends that Defendants' motion to dismiss Plaintiff's Fifth Amendment Due Process claim against the individual Defendants should be denied because Plaintiff has stated a claim under Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (" Bivens ") providing a federal claim for relief. Plaintiff's Memorandum at 13-18. In Bivens, the Supreme Court recognized an implied cause of action for damages could be maintained where federal agents violated the Fourth Amendment. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). However, as an employee of a federal contractor, Plaintiff has no cognizable Fifth Amendment procedural due process claim which can be pursued as a Bivens action in this court. See Pollock v. Ridge, 310 F.Supp.2d 519, 529 (W.D.N.Y. 2004) (employee of administrative service contractor at local federal detention center under contract with former U.S. Immigration and Naturalization Service had no Bivens action to assert, inter alia, her termination violated a Fifth Amendment right to due process) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994); Robinson v. Overseas Military Sales Corp., 21 F.3d. 502, 510 (2d Cir. 1994)) (Larimer, J.) (" Pollock "). See also Aryai v. Forfeiture Support Associates, LLC, 2012 U.S. Dist. Lexis 125227, at * 59-60 (S.D.N.Y Aug. 27, 2012) (Preska, C.J.) (" Aryai ") (employee of private contractor providing asset forfeiture services to USMS has no cognizable First Amendment claim that may be asserted in a Bivens action). Cf. Navab-Safavi v. Broadcast Bd. of Governors, 650 F.Supp.2d 40 (D.D.C. 2009) (" Navab-Safavi ") (plaintiff's First Amendment claims not based on conduct related to contract between plaintiff's employer as a contractor to defendant federal agency for translator services not precluded as a Bivens action), aff'd on other grounds, 637 F.3d 311 (D.C.Cir. 2011). In Pollock, the court held that plaintiff could assert no Bivens claim based on Fifth Amendment procedural due process violations because "courts have uniformly refused to recognize that [ Bivens ] claims lie in the context of federal employment, " Pollock, 310 F.Supp.2d at 529 (citing cases). Here, Plaintiff agrees, that like the plaintiff in Pollock, he is not a federal employee. Plaintiff's Memorandum at 18 n. 2 ("Atterbury is not an employee of the [federal] government."). Judicial refusal to extend Bivens to claims against employees of federal agencies by federal contractor employees is necessary as to have extended Bivens to plaintiff's due process claim in Pollock, "would vitiate the various statutory schemes that apply to federal employment... that have been carefully promulgated by Congress and constructed step by step, with careful attention to conflicting policy considerations, '" id. at 529 (quoting Bush v. Lucas, 462 U.S. 367, 368 (1983)). Similarly, in Aryai, the court found the CDA applicable to the contract under which plaintiff was an employee to provide asset forfeiture services to the USMS precluding plaintiff's Bivens action. Aryai, 2012 U.S. Dist. Lexis 125227, at *58-59.
Plaintiff does not dispute the CDA is also applicable to Akal's contract with the USMS under which Plaintiff was employed. Rather, Plaintiff argues, and Defendant does not contest, Defendants' Memorandum at 8, Plaintiff, as Akal's employee, has no standing to challenge his removal from CSO service, as a violation of due process, pursuant to the CDA. Plaintiff's Memorandum at 14. Such removal does not terminate a CSO from employment with Akal. Insley Declaration Exh. 5 ("this [removal] action does not... prevent Mr. Atterbury from continued employment with Akal; it only prevents him from performing service under this contract"). However, Plaintiff does not dispute that the CDA does not bar a contractor from filing a claim on behalf of a CSO employee involved in a contractor's dispute with the USMS's determination that a CSO be removed. Here, the USMS twice reminded Akal that the USMS considered the disagreement with Akal as to whether Plaintiff should be removed under the contract as a dispute subject to the CDA. Insley Declaration Exh. 6 (Letter of May 5, 2011 from Insley to Janet Gunn, Akal Vice-President Human Resources ("Janet Gunn")), rejecting Akal's reconsideration of Akal's finding no grounds for Plaintiff's removal) ("If this decision is unacceptable to Akal, the disagreement shall be considered a dispute for purposes of the Contract Disputes Act.") and Insley Declaration Exh. 8 (Letter of June 24, 2011 from Insley to Janet Gunn rejecting Plaintiff's appeal of the USMS's decision directing his removal from CSO employment under the contract) ("If this decision remains unacceptable to Akal, the disagreement shall be considered a dispute for purposes of the Contract Disputes Act.").
Significantly, Plaintiff does not allege that the CDA is inapplicable to the disagreement between Akal and the USMS regarding the existence of grounds as pleaded, i.e., Plaintiff's alleged violation of Performance Standard 31, Complaint ¶ 34, for Plaintiff's removal under the contract, or that Plaintiff requested Akal to seek relief on Plaintiff's behalf from the USMS's determination pursuant to the CDA, specifically 41 U.S.C. § 7103(a) (" § 7103(a)"), and that Akal refused to do so. Nor does Plaintiff allege Akal sought to submit the matter for resolution pursuant to the CDA. Under the CDA, Akal's claim regarding Plaintiff's eligibility to remain as a CSO under the contract would, in the first instance, has been considered and decided by Insley as the Contracting Officer. § 7103(d). Assuming an adverse determination at that stage, further review of such a decision was available through alternative dispute resolution, 41 U.S.C. § 7103(h), by applying to the USMS's agency board, 41 U.S.C. §§ 7104(a), 7105(e)(1)(D), or by an action filed with the United States Court of Federal Claims. 41 U.S.C. § 7104(b)(1). Akal could, alternatively, have sought review of an adverse decision by the USMS's agency board by appeal to the United States Court of Appeals for the Federal Circuit. § 7107(a)(1)(A).
The scope of issues that may be raised under the CDA, i.e., a claim by a contractor, such as Akal, includes, as relevant, "a written demand or written assertion by one of the contracting parties seeking, as a matter of right, ... [payment of money] or other relief arising under or relating to the contract.'" Navab-Safavi, 650 F.Supp.2d at 68 (quoting 48 C.F.R. § 2.101 and citing cases). Thus, had Akal sought review of the USMS's decision requesting Plaintiff's removal, as the USMS twice invited Akal to do, at Plaintiff's request or upon its own initiative, review of the USMS's decision by the Contracting Officer and either the USMS's agency board and the Court of Federal Claims, or by the Federal Circuit Court of Appeals was possible. See Aryai, 2012 U.S. Dist. Lexis, 125227 at *57. As the court in Aryai found, "even though Plaintiff [the contractor's employee] is barred from invoking the CDA's review provisions there is no indication that FSA [the contractor and plaintiff's employer] would be precluded from doing so on plaintiff's behalf." Id. Moreover, in resolving such disputes under the CDA, the Court of Federal Claims may also "order equitable relief for non-monetary claims under the CDA upon which the government's contracting officer has rendered a final decision." Dohse v. United States, 2005 WL 6112658, at *3 (Fed.Cl., June 7, 2005) (citing 28 U.S.C. § 1491(a)(2)). Thus, in the event of a successful challenge pursuant to the CDA, Plaintiff could have sought reinstatement as well as damages. The availability of such an alternative remedy is a required consideration in determining whether to extend Bivens to an alleged federal constitutional claim arising in connection with a federal contract, see M.E.S., Inc. v. Snell, 712 F.3d 666, 671-72 (2d Cir. 2013) (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007), and citing Arar v. Ashcroft, 585 F.3d 559, 571-72 (2d Cir. 2009) ( en banc )); W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009), and is an important factor in guiding the exercising of judicial authority in whether to do so. M.E.S., Inc. 417 F.3d at 671-72; W. Radio Servs., 578 F.3d at 1120. " Such an alternative remedy would raise an inference that Congress expected the Judiciary to stay its Bivens hand' and "refrain from providing a new and freestanding remedy in damages.'" W. Radio Servs., 578 F.3d at 1120 (citations omitted). See also Arar, 585 F.3d at 571-72 (stating Bivens remedy is an "extraordinary thing that should rarely if ever be applied in new contexts").
Plaintiff's contention that the court's finding in Aryai that the availability of remedies under the CDA which could have been invoked (and may still be invoked given the CDA's 6-year period, see 41 U.S.C. § 7103(a)(4)(A), within which to pursue the CDA administrative and judicial review process) as a reason to deny a Bivens action to Plaintiff was in error because, according to Plaintiff, "there is no indication that Congress was seeking to legislate in the CDA with respect to the rights a contractor's employee [like Plaintiff] might have against federal agents as shown... [in this case], " or, as Plaintiff further states, "that Congress made any policy judgment about the rights of [federal] contractor's [ sic ] employees..., " Plaintiff's Memorandum at 17-18 (citing Dotson v. Griesa, 398 F.3d 156, 166-67 (2d Cir. 2005), misinterprets relevant precedent. For Bivens purposes, the issue is not, as Plaintiff suggests whether Congress sought to legislate in the CDA regarding Plaintiff's rights to seek judicial relief against individual federal employees, the individual Defendants, for an alleged constitutional violation, but whether the relevant legislation, as to this case the CDA, provides an "alternative remedy" in which Akal's, as the federal contractor, and a CSO's, in this case Plaintiff's, dispute with the USMS's removal decision under the contract, can be resolved. As discussed, Discussion, supra, at 13, the court in Aryai found that such potential review of Akal's disagreement with the USMS over Plaintiff's removal, if initiated by Akal on Plaintiff's behalf, at or without Plaintiff's request, was available under the CDA. Significantly, Plaintiff neither alleges such potential for review was not available, nor does Plaintiff argue that Chief Judge Preska in Aryai erred in finding such review pursuant to the CDA was available, a finding consistent with the USMS communications to Akal that the dispute with Akal ...