Barkley v. U.S. Marshals Serv.

• Decision Date: 05 September 2014
• Docket Number: No. 12–5306.,12–5306.
• Citation: 766 F.3d 25
• Parties: Ann J. BARKLEY, et al., Appellants v. UNITED STATES MARSHALS SERVICE, by and through Director Stacia HYLTON and Any Successor, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

766 F.3d 25

Ann J. BARKLEY, et al., Appellants

v.UNITED STATES MARSHALS SERVICE, by and through Director Stacia HYLTON and Any Successor, et al., Appellees.

No. 12–5306.

United States Court of Appeals, District of Columbia Circuit.

Argued April 16, 2014.

Decided Sept. 5, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:02–cv–01484).

Phoebe L. Deak argued the cause for appellants. With her on the brief was John A. Tucker.

Sydney A. Foster, Attorney, U.S. Department of Justice, argued the cause for appellees United States Marshals Service and Stacia A. Hylton. On the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover and Stephanie R. Marcus, Attorneys.

Michelle E. Shivers was on the brief for appellee Akal Security, Inc.

Kurt N. Peterson entered an appearance.

Before: ROGERS, SRINIVASAN and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge:

The United States Marshals Service contracts with private security companies for the provision of security officers in the federal courts. The Marshals Service requires officers to undergo annual medical examinations to assure their continued medical fitness for the position. A government physician reviews an officer's annual examination to determine the officer's medical status. If the physician initially determines the officer to be medically disqualified, the officer is given the opportunity to submit additional medical information. If the additional information fails to demonstrate the officer's medical qualification, the officer may no longer work under his security company's federal contract as a court security officer.

Former officers who had been medically disqualified from serving as federal court security officers brought an action against the Marshals Service. They alleged that the procedures culminating in their dismissals failed to satisfy the Due Process Clause, and that their dismissals had been motivated by discrimination in violation of the Rehabilitation Act. The officers also sued the private security companies that employed them under the Americans with Disabilities Act.

The district court granted summary judgment to the Marshals Service on the due process claim, finding that the process afforded to the officers satisfied constitutional requirements. The court rejected the Rehabilitation Act claims of most of the plaintiffs on the ground that they had failed to exhaust administrative remedies. The court also denied the plaintiffs leave to amend their complaint to add claims under the Rehabilitation Act and Americans with Disabilities Act for a number of recently terminated officers. We affirm the grant of summary judgment on the due process claims and the dismissal of the Rehabilitation Act claims for failure to exhaust, but reverse the denial of leave to amend the complaint.

I.

A.

The United States Marshals Service bears responsibility to provide security for the federal courts. 28 U.S.C. § 566(a). In fulfilling that duty, the Marshals Service contracts with private security companies to supply court security officers for federal courthouses. Although the Marshals Service specifies the standards and qualifications for the officers, they are employees of the private security companies. Under the agreement between the Marshals Service and the security companies, “[a]ny employee provided by the Contractor that fails to meet the requirements of the Contract ... may be removed from performing services for the Government under [the] Contract upon written request of [the Marshals Service officer overseeing the contract].” Supp.App. 27–28.

In 1997, a committee of the U.S. Judicial Conference expressed concerns about the ability of court security officers to respond to security threats. The Judicial Conference, in conjunction with the Marshals Service, asked the U.S. Public Health Service to study the medical standards for the officers. The Marshals Service implemented a number of recommendations made by the U.S. Public Health Service.

One new procedure implemented by the Marshals Service requires each officer to undergo an annual medical examination to assure the officer's medical qualification for the position. The initial medical examination is conducted by a physician selected by the officer's private security company and approved by the office of Federal Occupational Health, a component of the U.S. Public Health Service. That examination produces a medical file that is provided to the private security company and forwarded to the Marshals Service. The Marshals Service, in turn, sends the file to the office of Federal Occupational Health for review by a government physician with experience in law enforcement-related occupational medicine. If the government physician determines that the officer is medically qualified, the process ends and the officer continues in his position.

If the government physician finds either that she lacks adequate information with which to make an assessment or that the officer may have a disqualifying condition, the physician requests additional information (unless an emergency situation requires immediate termination). The physician sends a medical review form to the Marshals Service, which then submits the form to the officer's security company. The form is addressed to the officer. It explains the concerns of the physician and describes the additional information needed. Ordinarily, the officer can obtain that information from a personal physician. The Marshals Service gives the security company thirty days to respond. If the Marshals Service does not receive a timely response, it can send an additional request or can order the security company to remove the officer from her position as a court security officer under the government contract. If, after receiving additional information, the government physician concludes that the officer is medically disqualified, the Marshals Service sends a disqualification letter to the company. The company must then remove the employee as a court security officer under the contract (but can reassign the employee elsewhere).

B.

The plaintiffs are former federal court security officers who had been removed from their service under government contracts after the Marshals Service determined they were medically disqualified. Fifty-four former officers, and their union, the United Government Security Officers of America International Union, sued the Marshals Service under the Due Process Clause. They challenged the procedures by which the officers were deemed medically disqualified to continue their service under the government contracts. The individual plaintiffs also raised claims under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., against the Marshals Service, and claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., against three private security companies that employed them. The plaintiffs also sought certification of a class in connection with the Rehabilitation Act and ADA claims.

In September 2006, the district court determined that only four of the plaintiffs could proceed with Rehabilitation Act claims against the Marshals Service. See Int'l Union v. Clark, No. 02–1484, 2006 WL 2598046, at *12 (D.D.C. Sept. 11, 2006). Finding that only five officers had properly exhausted administrative remedies (and that one of those five officers faced a separate bar against going forward under res judicata principles), the district court granted judgment on the pleadings to the Marshals Service on the Rehabilitation Act claims of all plaintiffs except the four who had exhausted administrative remedies. Id. at * 12, n. 19. The court relied on this court's decision in Spinelli v. Goss, 446 F.3d 159, 162 (D.C.Cir.2006), which held that there is no jurisdiction over the Rehabilitation Act claims of individuals who failed to file any administrative complaint. See Clark, 2006 WL 2598046, at *10.

In a subsequent order, the district court denied the plaintiffs' motion for class certification on the Rehabilitation Act claims. The court explained that, after it dismissed the bulk of the Rehabilitation Act claims for failure to exhaust administrative remedies, the class was not “so numerous as to make joinder impracticable.” Clark, No. 02–1484, 2006 WL 2687005, at *5–*6 (D.D.C. Sept. 12, 2006). In addition, the named representatives could not adequately represent the class because they had failed to exhaust the special administrative procedures for class claims. See id. at *6–*7.

In October 2006, the plaintiffs sought leave to file a fifth amended complaint, which would add twelve former officers as plaintiffs along with any future terminated officers. The newly added officers, according to the motion, had “the same claims as Plaintiffs against Defendant [Marshals Service] for the violation of their Fifth Amendment rights to due process.” Pls.' Mot. for Leave 2. The proposed complaint attached to the motion also added Rehabilitation Act and ADA claims by the new officers. The district court granted leave to amend the complaint. But in response to a motion for clarification, the court barred the new plaintiffs from asserting claims under the Rehabilitation Act or ADA. Clark, No. 02–1484, slip op. at 3 (D.D.C. Sept. 20, 2007). In denying reconsideration, the court explained that the plaintiffs' initial motion explicitly requested the addition only of claims under the Due Process Clause. Clark, No. 02–1484, slip op. at 2–3 (D.D.C. Jan. 22, 2009).

In 2008, the plaintiffs and the Marshals Service filed cross-motions for summary judgment with regard to the due process claims. The district court granted summary judgment to the Marshals Service. The court concluded that the officers held a constitutionally protected property interest in their employment, but that they had received constitutionally adequate process...