                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
INTERNATIONAL UNION, UNITED    )
GOVERNMENT SECURITY OFFICERS )
OF AMERICA, et al.,            )
                               )
          Plaintiffs,          )
                               )
     v.                        )    Civil Action No. 02-1484 (GK)
                               )
JOHN CLARK, in his official    )
capacity as Director of the    )
United States Marshals         )
Service, et al.,               )
                               )
          Defendants.          )
______________________________)

                           MEMORANDUM OPINION

     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.

I.   BACKGROUND1

     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

     1
          Unless otherwise noted, the facts set forth herein are
drawn from parties’ Statements of Material Facts Not in Dispute.

                                 -2-
     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.”))).2

     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


     2
          The similarly worded language in the CBA between
Plaintiffs and Akal Security, Inc. (another of the private
companies with which USMS had a contract, also a Defendant in this
lawsuit, but not a moving party on these Motions) reads: “[a]fter
completion of the probationary period . . . no Employee shall be
dismissed or suspended without just cause.        Just cause shall
include any action or order of removal of an employee from working
under the contract by the U.S. Government, or revocation of
required CSO credentials by the USMS under the removal of
Contractor employee provision in Section H-3 of Contract MS-01-D-
0002 between the US [sic] Marshals Service and Akal Security, Inc.”
District of Alaska CBA Between Akal Security, Inc. and United
Government Security Officers of America Local #67 (“D. Alaska
CBA”), at   § 6.1(a) (Ex. 11 to Def.’s Mot. (Ex. A to Robinson
Decl.)).

     Defendant points out that six Plaintiffs were employed under
contracts whose terms did not include exceptions to the just-cause
provision.    For Thomas Branigan, John Brown, William Burge,
Lawrence Churm, Lawrence Karnes, and Donald Smith, the relevant
language stated that the CSOs could be fired only for just cause.
Def.’s Mot. at 10 n.2. Plaintiffs do not dispute these facts, nor
dispute the arguments that Defendant makes in reliance on these
facts. Further, it is undisputed that Plaintiff David Arriola was
a probationary employee, and therefore is not asserting a due
process claim based on having been deprived of a property interest.
Fifth Am. Compl. at 39 n.2 [Dkt. No. 227].

                                     -3-
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


                                       -4-
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


                                       -5-
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.3   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 legal conclusion on Plaintiffs’

claim that CBA contained “an explicit provision prohibiting the

termination of employees except in cases of ‘just-cause’”).



     3
          Three CSOs--Plaintiffs Burge, Churm, and Smith--also
brought suit in the Eastern District of Pennsylvania, raising
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and due
process claims. Leitch v. MVM, Inc., 538 F. Supp. 2d 891, 894-95
(E.D. Pa. 2007). Guided by the Third Circuit’s reasoning in Wilson
v. MVM, Inc., 475 F.3d 166 (3d Cir. 2007), the Leitch Court ruled
that Plaintiffs had a property interest in their employment, but
were provided with adequate process before being deprived of that
interest. Leitch, 538 F. Supp. 2d at 897-98. Therefore, the court
entered summary judgment for the federal defendants. Id.

                                  -6-
      In January of 2007, Plaintiffs were granted leave to file a

Fifth Amended Complaint.           See Order (Jan. 4, 2007) [Dkt. No. 223].

The new    Plaintiffs      added     in   the Fifth   Amended     Complaint are

permitted to raise only due process claims.                See Order (Sept. 20,

2007), at 2-3 [Dkt. No. 249]; Order (Jan. 22, 2009), at 2 [Dkt. No.

282].   On January 10, 2008, Defendant filed his Motion for Summary

Judgment on these Fifth Amendment claims.              Plaintiffs filed their

Cross-Motion on February 19, 2008.              Briefing was not completed

until March 28, 2008.

II.   STANDARD OF REVIEW

      Summary judgment is appropriate only “when the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.”           Fed. R. Civ. P. 56(c). “A dispute

over a material fact is ‘genuine’ if ‘the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”

Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006)

(quoting Anderson       v.   Liberty      Lobby,   Inc.,    477   U.S.    242, 248

(1986)).     A fact is “material” if it might affect the outcome of

the action under the governing law.                Anderson v. Liberty Lobby

Inc., 477 U.S. 242, 248 (1986). The Supreme Court has consistently

emphasized    that   “at     the    summary     judgment   stage,   the    judge’s

function is not . . . to weigh the evidence and determine the truth


                                          -7-
of the matter, but to determine whether there is a genuine issue

for trial.” Id. at 248.

III. ANALYSIS

     Defendant maintains that the CSOs do not possess a protectable

property interest, and therefore their Fifth Amendment claims must

be dismissed.       In the alternative, Defendant argues that even if

Plaintiffs      have   established    a    property     interest    in    continued

employment as CSOs, they have not been deprived of that property

without due process; rather, USMS claims, the process afforded to

Plaintiffs was Constitutionally sufficient.

     For those Plaintiffs whose factual posture differs from the

large    majority      of   Plaintiffs    in   this   case,    Defendant      offers

separate grounds for dismissal.            Without abandoning the arguments

just cited, USMS argues that the six Plaintiffs whose contracts

contain no exception to the just-cause provision were provided with

adequate due process, regardless of whether they had a property

interest     in   their      employment.       Def.’s     Mot.     at    10   n.2.

Additionally, Defendant insists that three of those six Plaintiffs

whose contracts contain no exception to a just-cause provision are

barred from       bringing    their   claims    under    the     doctrine     of   res

judicata, as they have brought identical claims in another district

court.    Id.




                                         -8-
     A.   Law of the Case Doctrine Does Not Compel the Conclusion
          that the CSOs Have a Property Interest in Their
          Employment.

     Plaintiffs argue that the Court’s 2003 decision resolved the

question of whether or not the CSOs have a property interest in

their continued employment with USMS.   Pls.’ Mot. at 10-13.    Under

law of the case doctrine, they maintain, this conclusion should not

be disrupted.   Id.    Defendant counters that law of the case does

not preclude a court from reaching a different legal conclusion in

deciding a motion for summary judgment than it reached in denying

a motion to dismiss.    Def. Clark’s Reply Brief in Support of His

Mot. for Summ. J. on Pls.’ Due Process Claims (“Def.’s Reply”), at

3-4 [Dkt. No. 272].

     In support of its position, USMS relies heavily on the fact

that the 2003 ruling on the property interest issue came in the

context of Defendant’s Motion to Dismiss.         In considering such

motions, a court is required to presume as true all the allegations

in the complaint, or in this case the Amended Complaint.    See Int’l

Union, slip op. at 5. Further, Plaintiffs did not present evidence

that the CBAs and the judicial security contracts between USMS and

the private companies contained language that could be read to

carve out an exception to just-cause removal in the event that a

CSO failed to meet medical       standards.     Instead, the opinion

focused on the allegation that the just-cause provision in the CBAs

created a cognizable property interest.       Id. at 10.


                                 -9-
     The Supreme Court has made clear that denial of a motion to

dismiss is an interlocutory order.              See Office of Senator Mark

Dayton v. Hanson, 550 U.S. 511, 515 (2007); see also EAW Group,

Inc. v. Republic of the Gambia, No. 02-2425, 2007 WL 1297180, at *2

(D.D.C. May 1, 2007).             Our Court of Appeals has stated that

“[i]nterlocutory orders are not subject to law of the case doctrine

and may always be reconsidered prior to final judgment.” Langevine

v. District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997); see

also Safir v. Dole, 718 F.2d 475, 481 n. 3 (D.C. Cir. 1983) (noting

that doctrine is discretionary).

     The 2003 decision discusses only the just-cause provision in

the CBAs.      The holding--that the CSOs had demonstrated a property

interest in employment so as to defeat Defendant’s Motion to

Dismiss--did not discuss language in the CBAs that has since been

offered as evidence.       Nor did the Court rely on an analysis of the

contracts between USMS and private companies.            Subsequent to that

interlocutory order, Defendant presented additional facts that

could have a substantial impact on the question of whether a

property interest exists.           Specifically, it has provided whole

sections of the CBAs as well as judicial security contracts that

contain   an    exception    to    certain   removal    procedures.    These

provisions      suggests    that    Defendant    has   greater   latitude   in

effecting the removal of CSOs.




                                      -10-
       Therefore, the factual landscape is markedly different from

what was presented in 2003.           Additionally, the Court is no longer

under a duty to presume the Plaintiffs’ allegations to be true. In

view of the fact that application of the law of the case doctrine

is discretionary, and cannot be invoked to limit a court’s ability

to reconsider interlocutory orders when new facts come to light,

Defendant is not foreclosed from raising his due process arguments

by the earlier decision in this case.           See 10A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §

2713 (3d ed. 1998) (“The ruling on a motion to dismiss for failure

to state a claim for relief is addressed solely to the sufficiency

of    the   complaint   and does      not   prevent    summary    judgment from

subsequently        being   granted    based    on     material    outside    the

complaint.”).

       B.    Plaintiffs Do Have a Property Interest in Their Continued
             Employment.

       Under the Fifth Amendment, the federal Government must not

deprive individuals of property “without due process of law.” U.S.

Const. Amend V.       To determine whether a Constitutional due process

violation has occurred, courts must first establish whether a

property or liberty interest has been denied.                 Bd. of Regents of

State Colleges v. Roth, 408 U.S. 564, 577 (1972).                   There is no

allegation in this case that the Plaintiffs have been denied any

liberty interest.       Focusing on property interests alone, the case

law    is   clear    that   those   interests    are    not    created   by   the

                                       -11-
Constitution; “[r]ather they are created and their dimensions are

defined by existing rules or understandings that stem from an

independent source such as state law-rules or understandings that

secure certain benefits and that support claims of entitlement to

those benefits.”     Id.     Private employment contracts may create a

property interest entitled to due process protection.              Greene v.

McElroy, 360 U.S. 474, 492, 493 n.22 (1959).

     Plaintiffs maintain that even in light of new facts in the

record, the resolution of the property interest issue should be the

same.   They cite the CBAs’ just-cause provision, and the general

presumptions in the field of federal labor law that agreements with

just-cause provisions should be favorably construed to support

their position that Plaintiffs have a property interest in their

continued employment as CSOs.       Pls.’ Mot. at 15-19.

     USMS takes issue with the focus of Plaintiffs’ analysis.

Defendant argues that the relevant question is not whether the CSOs

had a property interest in their employment, but whether they had

such an interest in their medical clearances, and that the case law

compels the conclusion that they had no protected property interest

in their medical clearances.       Def.’s Mot. at 14-20.      Further, USMS

argues that even if there is a property interest in continued

employment,   the    terms    of   the     CBAs   and   judicial   contracts

demonstrate that Plaintiffs had no protected interest in their

positions as CSOs.    Def.’s Mot. at 9-14.


                                    -12-
      Roth holds that any property interest must be defined by a

source independent of the Constitution.            Roth, 408 U.S. at 577.

Here, the parties agree that the collective bargaining agreements

are central to determining what, if any, property interest is at

stake.   See id. at 578 (“‘[P]roperty’ interest in employment . . .

was created and defined by the terms of [Roth’s] employment.”); see

also Greene, 360 U.S. at 492 (finding that property interest at

issue was continued employment where Department of Defense employee

was denied security clearance).           The Court must therefore examine

the   terms   of    Plaintiffs’    collective     bargaining      agreements    to

determine whether they have a protectable property interest in

continued employment.        Because both the CBAs and the judicial

security contracts between USMS and the private companies set forth

conditions of employment, both may be relevant in determining the

scope of any property interest that may exist.

      “To determine whether [one] ha[s] a property interest in

continued employment, we ask if he ha[s] a legitimate expectation,

based    on   rules   (statutes     or    regulations)       or   understandings

(contracts, expressed or implied), that he would continue in his

job.”    Hall v. Ford, 856 F.2d 255, 265 (D.C. Cir. 1988).                     In

examining the question of whether the agreements create a property

interest,     the   Court   must   be    guided   by   the    language   of    the

contracts. American Fed. of Gov. Employees v. Fed. Labor Relations

Auth., 470 F.3d 375, 381 (D.C. Cir. 2006); see also N.L.R.B. v.


                                        -13-
United States Postal Serv., 8 F.3d 832, 836 (D.C. Cir. 1993);

Vanover v. Hantman, 77 F. Supp. 2d 91, 102 (D.D.C. 1999) (“Of

course, the language involved must be sufficient to create an

‘objectively reasonable’ expectation that an employee will be

terminated only for certain causes.”).

       The CBAs providing for just-cause termination also contain

language, immediately following the just-cause clauses, that limits

the scope of those clauses.           See 12th Cir. CBA, at § 6.1.1; see

also D. Alaska CBA, at § 6.1(a).         For example, one CBA states that

USMS can direct the private security companies to terminate CSOs if

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.” 12th Cir. CBA, at § 6.1.1; see also D. Alaska CBA, at §

6.1(a) (“Just cause shall include any action or order of removal of

an employee from working under the contract by the U.S. Government,

or revocation of required CSO credentials by the USMS under the

removal of Contractor employee provision in Section H-3 of Contract

MS-01-D-0002    between    the   US    [sic]   Marshals   Service   and   Akal

Security, Inc.”).

       Plaintiffs contend that simply because USMS has discretion--in

some circumstances--to remove them without just cause does not mean

that   they   have   no   property    interest   whatsoever   in    continued

employment as CSOs.       Pls.’ Brief in Reply to Def.’s Opp’n to Pls.’


                                      -14-
Cross-Mot. For Summ. J. (“Pls.’ Reply”), at 3-7 [Dkt. No. 274]. It

is true, as they observe, that “[v]irtually no property interest is

absolute,” id. at 4, and therefore the question is whether the

existence of limitations on the just-cause provision completely

eliminates any property interest in employment.

     The fact that certain actions by USMS limit the protection

granted by the just-cause clause (i.e., revocation of credentials,

failure to satisfy medical standards, etc.) does not and cannot

mean that Plaintiffs are deprived of all property interest in their

collective   bargaining      agreements.    Such    a   conclusion    would

completely eviscerate the significance of including a just-cause

provision in the CBA, and would render the provision, for all

practical purposes, a nullity.       Smith v. Kerrville Bus Co., Inc.,

709 F.2d 914, 919 (5th Cir. 1983) (“To hold as a matter of law that

management could, at its sole discretion, terminate an employee

without cause would in effect allow it the unqualified power to

avoid contractually mandated rights and benefits.”).

     In this case, the contractual language creates an objective

expectation that CSOs can only be removed for cause, although that

language places what are concededly substantial limits on their

expectation “that [they] would continue in [their] job.” Hall, 856

F.2d at 265; see also 12th Cir. CBA, at § 6.1.1; see also D. Alaska

CBA, at § 6.1(a). For example, Plaintiffs could not be terminated,

without   cause,   because     of   disagreements   with   their     private


                                    -15-
employers, rather than USMS, over working conditions.            In short,

Plaintiffs have a property interest in their continued employment

as CSOs subject to the limitations contained in their collective

bargaining agreements.

      Plaintiffs are correct that fundamental labor law principles

support this conclusion.      As the Ninth Circuit has stated, it is

“difficult to imagine a meeting of the minds between an employer

and a union authorizing an employer to discharge an employee

without good cause.    Employer security goes to the very essence of

a   collective   bargaining   agreement.”    Dickeson      v.   DAW   Forest

Products Co., 827 F.2d 627, 631 (9th Cir. 1987).                Courts and

arbitrators have often construed language in CBAs in order to avoid

rendering the just-cause principle a nullity.          Id. at 630 (“Courts

may, however, expand by implication the provisions of a collective

bargaining   agreement   more   readily   than   the    provisions    of   an

ordinary contract.”); Smith, 709 F.2d at 919 (“Mindful that we are

bound to exercise a reasoned flexibility in construing the terms of

a labor contract . . . we are loath to conclude, as a matter of law

and undisputed fact, that no just cause limitation inheres in the

. . . collective bargaining agreement.”) (citations omitted); Young

v. Sw. Bell Tel. Co., 309 F. Supp 475, 478 (E.D. Ark. 1969), aff’d

424 F.2d 256 (8th Cir. 1970).4


      4
          In Smith, the Fifth Circuit explained at some length the
reasoning underlying its conclusion:


                                  -16-
     Defendant actually admits that “the CBAs between Plaintiffs’

union and Akal/MVM may create a ‘just cause’ relationship in some

circumstances,” but then argues that, as construed in this case,

these CBAs represent only at-will agreements.   Def.’s Reply at 6.

However, the presence of certain exceptions to the just-cause



          Because a collective bargaining agreement is
     designed to regulate virtually all facets of the
     employer-employee relationship, and is subject to federal
     labor law, the construction and application of its terms
     cannot be narrowly confined by ordinary principles of
     contract law. See Transportation-Communication Employees
     Union v. Union Pacific Railroad, 385 U.S. 157, 87 S.Ct.
     369, 17 L.Ed.2d 264 (1966); N.L.R.B. v. L.B. Priester,
     669 F.2d 355 (5th Cir. 1982). Thus the provisions of a
     labor contract may be more readily expanded by
     implication than those of contracts memorializing other
     transactions. Local 205, United Electrical, Radio and
     Machine Workers of America v. General Electric Co., 172
     F.Supp. 53 (D. Mass. 1959). See generally R. Gorman,
     Basic Text on Labor Law 540-41 (1976 ed.).

          In instances where the language of a collective
     [sic] contract does not explicitly prohibit dismissal
     except for just cause, arbitrators typically infer such
     prohibitions from seniority clauses or grievance and
     arbitration procedures. Summers, Individual Protection
     Against Unjust Dismissal: Time For A Statute, 62 Va. L.
     Rev. 481, 499-500 (1976). . . . Inherent in the body of
     arbitral common law which has evolved in this context is
     a marked awareness of the harshness of discharge, and an
     adherence to the principle that seniority, grievance,
     arbitration, and other provisions that reflect the
     contracting parties' tacit acceptance of the employees’
     right to some measure of job security, pretermit
     discharge without good cause. . . . One arbiter
     summarizes this development as follows: “The weight of
     arbitral opinion is that a standard of just cause may be
     imposed upon disciplinary actions even though such a
     standard is not spelled out in the agreement.”

709 F.2d at 917-18 (citations omitted).

                               -17-
language in the CBA cannot be allowed to totally eliminate the

property interest created by that language.             Even if this language

was deemed to create an at-will relationship (an issue this Court

need       not   decide),   USMS   has   offered   no   controlling   case   law

requiring such language to be interpreted so as to nullify the

property interest created by the just-cause language in the CBA.

See id. at 5-6.5

       C.        Plaintiffs Received Due Process Before Being Terminated.

       Having found that a property interest exists, the Court must

address whether Plaintiffs received due process when they were

deprived of that interest.

       “[D]ue process is flexible and calls for such procedural

protections as the particular situation demands.”                Morrissey v.

Brewer, 408 U.S. 471, 481 (1972). Courts consider three factors in

deciding whether due process has been provided: “[f]irst, the

private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the


       5
          The Court recognizes that a different analysis has been
adopted in several other cases involving this issue. See Strolberg
v. United States Marshals Serv., No. 03-0004, slip op. at 9-10 (D.
Idaho June 18, 2008); Leitch v. MVM, Inc., No. 03-0344, 2005 WL
331707, at *3 (E.D. Pa. Feb. 10, 2005); Int’l Union, Sec., Police,
and Fire Prof’l of Am. (SPFPA) v. United States Marshal’s Serv.,
350 F. Supp. 2d 522 (S.D.N.Y. 2004). With all due respect to those
courts, this Court disagrees with their analysis of the property
interest issue.

                                         -18-
Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute

procedural requirement would entail.”     Mathews v. Eldridge, 424

U.S. 319, 335 (1976).    “The essential requirements of due process

. . . are notice and an opportunity to respond.”    Loudermill, 470

U.S. at 546.

      Plaintiffs contend that the procedures followed by USMS do not

supply the CSOs with notice of their medical disqualification, and

do not provide sufficient opportunity to respond.     Further, they

assert that the lack of post-deprivation process offends the

Constitution. Pls.’ Mot. at 38-41. The Government argues that the

procedures offered do comport with due process, and that no post-

deprivation process is required if pre-deprivation process is

sufficient.    Def.’s Reply, at 22-24; 28-31.

      In this case, all Plaintiffs were given notice that the USPHS

had deferred certifying them as medically fit for service.     That

notice indicated the particular medical diagnoses that led to this

decision, and what information could be provided to assist in a

final medical determination.     While the information provided to

Plaintiffs at this stage could certainly have been more specific

about the nature of the review, the contact between USMS and the

CSOs was sufficiently targeted to put the employees on notice that

they faced potential medical disqualification and the reasons for

it.   Cf. Bagenstose v. District of Columbia, 503 F. Supp. 2d 247,


                                -19-
257 (D.D.C. 2007) (“In having his ‘grievance heard and redressed,’

. . . plaintiff is not entitled to perfect procedures or the

procedures of his choice.”) (citation omitted).

       The   situation    in   this     case   therefore    differs   from    that

presented in Gray Panthers v. Schweiker, 642 F.2d 146 (D.C. Cir.

1980), which Plaintiffs rely on to argue that the medical forms did

not indicate the grounds upon which CSOs could be terminated, Pls.’

Reply at     14.   In     Gray   Panthers,      Medicare   beneficiaries were

provided with notice of treatment denials.                 As a reason for the

denial, the forms referred beneficiaries to “Item 5" on the back of

the form, which explained that “either the provider has not charged

the ‘customary charge’ or that his charges are not ‘prevailing,’

that is, not in the 75th percentile of his provider peers.”               Id. at

168.    The Court of Appeals faulted the notices for not indicating

“whether [beneficiaries’] doctors were allegedly more expensive

than others in the locality, or were charging them more than other

patients,     or   whether       or   why      the   treatments   were    deemed

unnecessary.”       Id.        Unlike    the     boilerplate   language      found

insufficient in that case, the notice here contained detailed

medical information particular to the individual CSO.

       Here, after receiving the deferral notice, each CSO was

permitted to submit, through the filing of medical evidence from

the employer-paid doctor who personally examined her, as well as

her own physician, additional information responsive to the USPHS


                                        -20-
doctor’s report and concerns.           The report in no way limited what

additional information could be provided.              Therefore, the CSO was

provided with an opportunity to respond fully to the findings of

the   USPHS   doctor.       Further,    when    medical   records     are    being

reviewed, it is Constitutionally permissible to conduct such a

hearing on a written record alone.             See Mathews, 424 U.S. at 344

(noting less value in holding evidentiary hearing where employment

decision turns on assessment of written medical records concerning

a   patient   who   the   doctor     personally      examined).       Thus,    the

opportunity to respond satisfies the Loudermill requirement that a

hearing be conducted.       Loudermill, 470 U.S. at 546.

      The ultimate question is whether this system satisfies due

process requirements.       In balancing the individual and Government

interests,    the   Court    finds     that    the   parties   both   have    very

significant interests at stake.          The CSOs face the likely loss of

their jobs,6 while USMS must secure our federal courthouses and


      6
          Defendant notes that the disqualification by USMS did not
necessarily terminate the CSOs’ employment with their private
employers; rather, the disqualification meant that the individuals
could not be employed under contracts with the Defendant.       The
private companies were free to place these individuals in positions
at other facilities. Def.’s Mot. at 6 n.5; see also Pls.’ Mot. at
28-34 (arguing that termination of Plaintiffs from all employment
was foreseeable). This argument is disingenuous given the fact
that almost all CSOs were fired because there were no non-USMS jobs
to be transferred to.

     It is difficult to credit Defendant’s argument that such
termination was not foreseeable. The record indicates that the
private companies alerted Defendant that medical disqualification
would result in termination. See Ex. 25 to Pls.’ Mot. (2001 letter

                                       -21-
courthouse personnel at a time of rising threats and violence

against the judiciary.

     The remaining factor, the risk of error from use of these

procedures when compared to the improved accuracy that additional

procedures might supply, tilts in favor of the Defendant.   In this

context, the Supreme Court has recognized that there is less of a

concern about witness credibility or reliability.     Mathews, 424

U.S. at 344; see also Wilson v. MVM, Inc., No. 03-4514, 2005 WL

1231968, at *13 (E.D. Pa. May 24, 2005).   As Mathews observed, the

review of written medical records provided by doctors who have

personally examined the patient is a reliable method of review.

See Mathews, 424 U.S. at 344.   Moreover, the CSO’s personal doctor

has the opportunity to correct any errors or misimpressions in the

USPHS doctor’s report.




from Akal to USMS warning that proposed changes to medical
clearance process led Akal to “anticipate[],” among other outcomes,
“[i]ncreased unemployment insurance tax costs due to the need to
lay off large numbers of employees”); Ex. 27 to Pls.’ Mot. (2000
letter from Akal to USMS noting same concern over unemployment
costs).     Additionally,    Defendant  demanded    that  medically
disqualified CSOs be removed “immediately,” and then promptly
stopped paying for the hours of these CSOs. Ex. 18 to Pls.’ Mot.
(letter from USMS to Akal); see also Exs. 19-21 to Pls.’ Mot.
(same).   The drastic and rapid removal demands, as well as the
security companies’ notice that the employees would become
unemployed, mean that Defendant cannot have expected that his
actions would result in anything but loss of employment for
medically disqualified CSOs. See Ex. 9 to Pls.’ Mot., at 142-43
(deposition testimony of Richard Miller, a doctor at USPHS, stating
that he was aware that “CSO’s are losing their jobs as a result of
PHS’s recommendation that they be medically disqualified”).

                                -22-
        Plaintiffs argue that they should have “direct contact” with

the decision-maker and the ability to personally craft their

objections to the initial medical determination (as opposed to

having their doctor craft it), Pls.’ Mot. at 39.           These additional

steps simply are not required under the due process clause.

Adequate process can be provided based on written medical records.

Mathews, 424 U.S. at 344; see also Loudermill, 470 U.S. at 546

(finding      that   individual   should    have   “opportunity   to   present

reasons . . . either in person or in writing”).             The due process

inquiry does not focus on the correctness of outcomes, but rather

on the adequacy of the process afforded; indeed, there is no

guarantee against “incorrect or ill-advised personnel decisions.”

Bishop v. Wood, 426 U.S. 341, 350 (1992).              In sum, there is no

evidence that having their objections lodged via written medical

reports or communicating through their doctors denied Plaintiffs “a

meaningful opportunity to present their case.” Mathews, 424 U.S at

349.7

        The Third Circuit reached the same conclusion on similar

facts.      Wilson v. MVM, Inc., 475 F.3d 166, 178-79 (3d. Cir. 2007).

In Wilson, the court held that while the CSOs’ opportunity to

respond may not constitute a “traditional hearing, the process



        7
          The Court is very mindful of Plaintiffs’ concerns in this
case. However, as the court noted in Bagenstose, “plaintiff is not
entitled to perfect procedures or the procedures of his choice.”
503 F. Supp. 2d at 257.

                                     -23-
afforded the [Plaintiffs] is sufficient given the balance of their

interest in maintaining employment and the [G]overnment’s interest

in security.” Id. at 179.         Further, a “more rigorous process would

not significantly enhance the accuracy of the medical qualification

process.”    Id.    The Court agrees with the reasoning in that case.

     Plaintiffs’      objection     that   the     lack   of   post-deprivation

process renders the procedures Constitutionally infirm ignores the

guidance in Mathews that the due process determination should be

flexible    and    take   into   account     the   particular    interests   and

circumstances of each case.8         424 U.S. at 334; see also Parham v.

J.R., 442 U.S. 584, 608 n.16 (1979).                 Moreover, our Court of

Appeals has approved termination procedures that provide for only

post-deprivation process where pre-deprivation process would have

been overly burdensome.          Washington Teachers’ Union Local #6, Am.

Fed. of Teachers, AFL-CIO v. Bd. of Educ. of the Dist. of Columbia,

109 F.3d 774, 781 (D.C. Cir. 1997) (holding that where post-


     8
          Plaintiffs correctly point out that Loudermill’s holding
rested “in part on the provisions in Ohio law for a full post-
termination hearing,” 470 U.S. at 1495.       Pls.’ Mot. at 48-51
(discussing need for post-termination process).        Indeed, the
Supreme Court reasoned that “the existence of post-termination
procedures is relevant to the necessary scope of pre-termination
procedures.”   Loudermill, 470 U.S. at 1496 n.12.     However, the
case’s holding focused on the need for pre-termination process.
See id. at 1495. It is significant that the Court reached this
conclusion after considering a statutory scheme that provided for
no pre-termination process whatsoever. Id. at 1489-90. Further,
the Court is not aware of any line of cases that has seized on the
language in Loudermill to insist that post-termination process is
a requisite of due process where sufficient pre-termination process
is provided.

                                      -24-
termination relief was available, “due process did not require

pre-termination proceedings before [a] 1996 [reduction-in-force]”).

There is no firm rule that termination procedures must be furnished

at a specific time in order to be deemed Constitutionally adequate.

See Adkins v. Rumsfeld, No. 1:04CV494, 2005 WL 2593450, at *5 (E.D.

Va. Oct. 13, 2005), aff’d 464 F.3d 456 (4th Cir. 2006), cert.

denied, 551 U.S. 1130 (2007).

      This conclusion applies to all Plaintiffs including the six

whose contracts contained no exception to a just-cause provision.

While the terms of their employment contracts also created a

protectable property interest, as described supra, those Plaintiffs

were provided with adequate process before being removed, and

therefore their Fifth Amendment claim cannot survive. As a result,

the Court need not resolve the res judicata issue presented by

Defendant.9

IV.   CONCLUSION

      For the foregoing reasons, 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




      9
           The res judicata argument raised in Defendant’s Motion
was not discussed by Plaintiffs in any of their subsequent filings.
“It is well-settled that where a non-moving party fails to oppose
arguments set forth in a motion for summary judgment, courts may
treat such arguments as conceded.” Evans v. Holder, 618 F. Supp.
2d 1, 13 (D.D.C. 2009).

                                  -25-
Smith is granted and Plaintiffs’ Cross-Motion for Summary Judgment

is denied.   An order shall issue with this Memorandum Opinion.




                                       /s/
April 15, 2010                        Gladys Kessler
                                      United States District Judge

Copies to: attorneys on record via ECF




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