Atterbury v. U.S. Marshals Serv.
| Decision Date | 03 November 2015 |
| Docket Number | Docket No. 14–2805–cv. |
| Citation | 805 F.3d 398 |
| Parties | Stephen L. ATTERBURY, Plaintiff–Appellant, v. UNITED STATES MARSHALS SERVICE, Gary Insley, Contracting Officer, Office of Security Contracts, Judicial Division, United States Marshals Service, in his individual capacity, and John Doe, in his individual capacity, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas N. Ciantra (Kate M. Swearengen, on the brief), Cohen, Weiss and Simon LLP, New York, N.Y., for Plaintiff–Appellant.
Michael S. Cerrone, Assistant United States Attorney, on behalf of William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, N.Y., for Defendants–Appellees.
Before: LYNCH, LOHIER, and CARNEY, Circuit Judges.
Plaintiff–Appellant Stephen L. Atterbury's employment as a Court Security Officer (“CSO”) was terminated when Defendants–Appellees the United States Marshals Service (“USMS”) and Gary Insley determined that he had violated USMS's performance standards. Because Atterbury was employed by a federal contractor, rather than directly by USMS, he could not challenge his dismissal under the administrative scheme that regulates the federal civil service. Nor could he avail himself of the remedial scheme that governs disputes between contractors and the federal government. He instead brought this action, alleging that the defendants violated his rights under the Due Process Clause and acted arbitrarily and capriciously by terminating his employment. The United States District Court for the Western District of New York (Richard J. Arcara, Judge ) dismissed his complaint for failure to state a claim and for lack of subject-matter jurisdiction.
We agree with the district court that Atterbury does not have a private right of action under the Due Process Clause of the sort recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and accordingly that claim was properly dismissed. We find, however, that the district court erred in determining that it lacked subject-matter jurisdiction over Atterbury's claim under the Administrative Procedure Act (“APA”). Accordingly, the judgment of the district court is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further proceedings consistent with this opinion.
Because Atterbury appeals from the grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(1) and (b)(6), we draw the following facts from the complaint and accept them as true for the purposes of this appeal.1 Loginovskaya v. Batratchenko, 764 F.3d 266, 268 n. 2 (2d Cir.2014).
USMS provides security services for United States courts and judicial officers, and contracts with private security companies that recruit and employ persons with law enforcement experience to participate in USMS's Court Security Program as CSOs. Atterbury was employed by one such contractor, Akal Security, Inc. (“Akal”), as a CSO for the Kenneth B. Keating Federal Building in Rochester, New York. Under the terms of the contract between USMS and Akal, USMS retained the sole discretion to remove a CSO from the Court Security Program. Further, the Akal–USMS contract incorporated fifty-eight “CSO Performance Standards” promulgated by USMS, which set forth a detailed code of conduct for CSOs. As a condition of his participation in the Court Security Program, Atterbury was required to acknowledge that he had reviewed the Performance Standards and was subject to them. USMS was empowered to request that Akal investigate suspected violations of the Performance Standards, but it reserved the authority to remove CSOs from the Court Security Program even when Akal determined that no violation had occurred.
The conditions of Atterbury's employment with Akal were governed by a collective bargaining agreement (“CBA”), which provided that no employee having completed his probationary period would be disciplined or terminated without just cause. The CBA also provided, however, that if a CSO was removed from the Court Security Program by USMS, his employment with Akal could be terminated “without recourse to the procedures under [the CBA].” J.A. 11.
On February 24, 2011, Atterbury was assigned to a “roving post” where he was responsible for the security of courtrooms and adjacent areas. In the complaint's version of the events, Atterbury had been suffering from a cold for several days, and at 1:30 p.m., feeling “febrile and nauseous,” J.A. 13, he advised Acting Lead CSO Jerry Risley, who was the highest-ranking Akal employee on duty at that time, that he was going home. Risley responded, “See ya,” id., and Atterbury left for the day. News of this incident made its way to USMS, which requested that Akal investigate whether Atterbury's departure violated CSO Performance Standard 31, which provides that a CSO must not leave his assigned post until relieved or directed to do so by a supervisor.
On May 3, following an investigation during which several witnesses were interviewed, Akal submitted a report to USMS that concluded that Atterbury had not violated the Performance Standards and recommended that he not face discipline. USMS disagreed, and directed Akal to reinterview one witness. Akal complied, and then advised USMS that its conclusion had not changed. On May 5, Defendant–Appellee Gary Insley, the USMS Contracting Officer assigned to the Akal–USMS contract, sent Akal a letter stating that Atterbury's actions “ha [d] undermined the District's confidence and trust in [his] ability to effectively perform his duties,” J.A. 16, and permanently removing him from the Court Security Program. Akal then informed Atterbury that, under the terms of the contract, he was entitled to respond in writing to USMS's decision. Atterbury, however, was not told what conduct had led to his removal. He submitted a one-page statement, but on June 24, Insley notified Akal that Atterbury's “appeal of removal” had been denied. Akal then terminated Atterbury's employment.
Atterbury brought this action, asserting one cause of action under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, and one cause of action under the APA. The defendants moved for dismissal under Fed.R.Civ.P. 12(b)(6) “and/or” Fed.R.Civ.P. 56. J.A. 21. The case was referred to Magistrate Judge Leslie G. Foschio, who issued a Report and Recommendation (“R & R”) advising that the district court dismiss the Due Process claim and the APA claim, the latter for lack of subject-matter jurisdiction. The district court, over Atterbury's objections, adopted the R & R. This appeal followed.
We review the district court's dismissal of the complaint under Rules 12(b)(1) and 12(b)(6) de novo, accepting as true the allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff. Town of Babylon v. Fed. Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir.2012).
Atterbury asserts his first cause of action directly under the Fifth Amendment's Due Process Clause. The Supreme Court first recognized an implied cause of action for damages under the Constitution in Bivens, in which the plaintiff alleged that federal narcotics agents had entered and searched his apartment and arrested him in violation of the Fourth Amendment. That decision “established that a citizen suffering a compensable injury to a constitutionally protected interest could ... obtain an award of monetary damages against the responsible federal official,” Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), even in the absence of a federal statutory cause of action.
More recently, however, the Supreme Court has narrowed the reach of that principle, explaining that the recognition of such a cause of action “is not an automatic entitlement,” but must instead “represent a judgment about the best way to implement a constitutional guarantee.” Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). The analysis of whether to extend Bivens to a new context proceeds in two steps. First, a court must determine “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. Second, even in the absence of such an alternative process, a court “must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Id., quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). This two-part test has only rarely yielded a new Bivens remedy; indeed, the Supreme Court has extended Bivens to contexts other than unreasonable searches and seizures only twice, most recently thirty-five years ago in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
The defendants urge us to affirm the district court on the grounds that the Contract Disputes Act of 1978 (“CDA”), 41 U.S.C. § 7101 et seq., affords Atterbury an alternative process for protecting his rights that precludes the recognition of a Bivens claim at the first step of the Wilkie test. The CDA provides a comprehensive procedural framework for the resolution of disputes arising from contracts with the federal government. In M.E.S., Inc. v. Snell, we characterized the CDA's “remedial scheme as ‘the paradigm of a precisely drawn, detailed statute,’ which ‘purports to provide final and exclusive resolution of all disputes arising from government contracts' that fall within its ambit,” 712 F.3d 666, 673 (2d Cir.2013), quoting A & S Council Oil Co. v. Lader, 56 F.3d 234, 241 (D.C.Cir.1995), and held that the CDA precluded us from devising a Bivens remedy for a contractor that alleged that its contracts had been unlawfully...
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