Warden v. U.S. Dept. of Justice
| Citation | 37 F.3d 1507 |
| Decision Date | 07 October 1994 |
| Docket Number | No. 93-35197,93-35197 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Milo WARDEN, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, United States Marshal Service, Ronald Alles, David Bradley, and Don Combs, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: WIGGINS and THOMPSON, Circuit Judges, EZRA *, District Judge.
The United States Marshals Service (USMS) is charged with obtaining federal court security. Accordingly, the United States, through USMS, "awards contracts to independent contractors who bid for the responsibility of implementing and overseeing" the Court Security Officer (CSO) program. CR 38. USMS deputizes CSOs "hired by the independent contractor and, because of logistics, provides feedback to the independent contractor as to day-to-day job performance." Id.
Appellant Milo Warden was hired by Midwest Patrol in 1984. At that time, Midwest Patrol had been awarded the CSO program contract for Montana. Midwest Patrol assigned Appellant to the federal courthouse in Great Falls, Montana. In October, 1988, Central Security Systems, Inc. ("CSSI") was awarded the security contract in place of Midwest Patrol. CSSI hired Appellant on October 1, 1988, and retained him at the Great Falls courthouse. CSSI paid Appellant, gave him benefits, and arranged his vacation leave and other aspects and indicia of his employment. In October 1988, USMS indicated to CSSI some dissatisfaction with Appellant's performance. When Appellant's performance did not improve, Appellant was fired on December 9, 1988, about 70 days after he was hired.
Appellant sued the United States Department of Justice, USMS, and several USMS employees. In Count I, Appellant sought damages under the Federal Tort Claims Act (FTCA) for wrongful discharge, loss of income, and negligent infliction of mental and emotional distress. In Count II, Appellant alleged a Bivens action: that individual USMS employees had interfered with his constitutionally protected property interest in employment. The district court granted summary judgment on both counts. Appellant timely appeals. We find that answering two questions resolves this appeal.
Appellant argues that he was a government employee because he was subject to close supervision by USMS. He alleges that USMS controlled the location and number of CSO posts; the hours worked per day and per week; the nature of CSO duties required to meet security needs; reporting and record-keeping requirements; appropriate emergency responses; length and frequency of coffee and lunch breaks; ultimate duty locations and/or nature of temporary duty; CSO orientation requirements; CSO minimum qualifications; minimum weapons proficiency requirements; a dress code for CSOs; qualifications for deputation; and CSO's duties regarding grand juries, opening and closing court, preserving order, and serving as court messenger. Appellant also alleges that USMS had authority to remove him from his duties as a CSO and that CSSI was acting under USMS orders when it discharged him from employment.
We are not persuaded. "The United States is not liable under the FTCA for the [acts] of its independent contractors." Ducey v. United States, 713 F.2d 504, 516 (9th Cir.1983). "The critical test for distinguishing an agent from a contractor is the existence of federal authority to control and supervise the detailed physical performance and day-to-day operations of the contractor, and not whether the agent must comply with federal standards and regulations. .... While by contract, the federal Government may fix specific and precise conditions to implement federal objectives, such restrictions required by regulation do not convert the acts of entrepreneurs ... into federal governmental acts." Id. at 516 (internal quotations and brackets omitted).
In Ducey, a national park concessionaire (ECR) operating within a national recreational area was alleged to be a federal agency, and ECR's employees were alleged to be federal employees. We rejected those allegations, even though ECR's prices were subject to national park approval and ECR was obliged to maintain and operate its facilities "to such extent and in such manner as the [federal government] may deem satisfactory." Id. (internal quotations omitted). ECR was also required to pay a fixed percentage of earnings to the government and comply with numerous other contractual provisions, many of which had their origin in regulation. The National Park Service had authority to disapprove "unfit" employees of ECR and to require ECR employees to wear a uniform or badge. However, the National Park Service did not have authority to supervise initial hiring decisions, the assignment of job tasks, the frequency of uniform laundering, and certain other day-to-day activities. Id. For these reasons, we held that ECR was not a federal agency and its employees were not federal employees.
Letnes v. United States, 820 F.2d 1517 (9th Cir.1987), is also apposite. In Letnes, plaintiffs alleged that Waig Aircraft was a federal agency and that its pilots were thus federal employees. Id. at 1517-18. The Forest Service had contracted with Waig for Waig "to carry and drop liquid fire retardant on forest and range fires." Id. at 1518. Government control included "pilot certification, maximum work hours, ... inspections" of planes, "weighing and balancing requirements, engine overhaul procedures, and extensive and detailed equipment provisions including requirements for flashlight batteries, bandages, and exterior markings on the plane." Id. at 1519.
Ducey and Letnes control here. Appellant has alleged that USMS, a federal agency, had authority to disapprove CSOs. Because Appellant complains solely that he was wrongfully discharged, that authority is primarily at issue. Ducey requires us to hold that federal government authority to remove an employee does not make CSSI a federal agency or Appellant a federal employee. That Appellant was made to dress so as to appear to be connected with the government is also irrelevant; the same could be said of employees of ECR in Ducey. Finally, that Appellant was maintaining federal property is also irrelevant. Thompson v. United States, 592 F.2d 1104, 1107 (9th Cir.1979).
The other aspects of control present in this case are insufficient to distinguish this case from Ducey and Letnes. Though the government necessarily requires CSOs, consistent with their function, to work during certain hours in certain places, to keep certain records, to do certain duties, and to meet certain training requirements, these requirements are, as were requirements imposed on pilots in Letnes, "designed to secure minimum safety, not to control the detailed physical operation of the [job]." 820 F.2d at 1519. 1 USMS does not control initial hiring decisions, job assignments, pay, promotions, benefits, vacations, and other aspects of employment. We find it telling in this case that all alleged USMS requirements applied only to CSOs, not to other CSSI employees.
Employees of independent contractors who provide services may sometimes feel that they have to please two masters. First, they must please their employer. Second, if they do not please their employer's customer, in this case, the government, the customer may complain to the employer and place the contract between employer and customer in jeopardy. The employer may then deal with the employee in a manner the employee feels is harsh. An independent contractor for services may remain independent, however, even though it contracts with the government to provide fairly detailed services. Ray, 420 F.2d at 919. Because Appellant was not a government employee, Count I of his complaint was properly dismissed.
Appellant's Bivens action is premised on the denial to him of a constitutionally protected property interest in his employment and a substantive due process right to continued employment. Appellant has a "constitutional right to be free from unreasonable government interference with his private employment." DiMartini v. Ferrin, 906 F.2d 465, 466 (9th Cir.1990), 889 F.2d 922 (1989), cert. denied, 501 U.S. 1204 (1991).
However, "[f]or the purpose of a due process claim, an employee must show more than an expectation in continued employment; he must demonstrate a claim of entitlement to continued employment." DiMartini, 906 F.2d at 467; accord FDIC v. Henderson, 940 F.2d 465, 475 (9th Cir.1991); Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir.1987). "In determining whether there is an entitlement to the benefit in question, we look not to the Constitution but to existing rules and understandings that stem from an outside source such as state law." Merritt, 827 F.2d at 1371 (internal quotations omitted); accord Henderson, 940 F.2d at 475.
Montana law does not provide Appellant with...
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