Hauschild v. U.S. Marshals Serv.

Decision Date15 June 2018
Docket NumberNo. 13-CV-5211 (CS),13-CV-5211 (CS)
PartiesDANIEL F. HAUSCHILD, Plaintiff, v. UNITED STATES MARSHALS SERVICE, Defendant.
CourtU.S. District Court — Southern District of New York
OPINION & ORDER

Appearances:

Thomas N. Ciantra

Kate M. Swearengen

Cohen, Weiss and Simon LLP

New York, New York

Counsel for Plaintiff

Brandon H. Cowart

Christine S. Poscablo

United States Attorney's Office

Southern District of New York

New York, New York

Counsel for Defendant

Seibel, J.

Before me is the motion for judgment on the pleadings of Defendant United States Marshals Service ("USMS"), (Doc. 78), and Plaintiff Daniel F. Hauschild's motion for summary judgment, (Doc. 73).

I. BACKGROUND

For purposes of USMS's Motion to Dismiss, I accept as true the facts, but not the legal conclusions, as set forth in Plaintiff's Complaint, (Doc. 1 ("Compl.")). For purposes of Plaintiff's Motion for Summary Judgment, my account of the underlying facts is drawn from the administrative record, which USMS filed on April 10, 2015, and supplemented on June 2, 2017, (Docs. 43, 58 (collectively, "Admin. R.")), not the parties' Local Civil Rule 56.1 Statements. See Glara Fashion, Inc. v. Holder, No. 11-CV-889, 2012 WL 352309, at *1 n.1 (S.D.N.Y. Feb. 3, 2012) (no Rule 56.1 Statement required in Administrative Procedure Act ("APA") case because court's decision is based on administrative record) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) ("[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law.")); Student X v. N.Y.C. Dep't of Educ., No. 07-CV-2316, 2008 WL 4890440, at *11 (E.D.N.Y. Oct. 30, 2008) ("[T]he 56.1 Statement will not aid the court in its independent review of the [administrative] record.").

USMS bears a statutory obligation to provide security for the federal courts. 28 U.S.C. § 566(a). To fulfill that duty, USMS contracts with private security companies to supply court security officers ("CSO"s) to work in federal courthouses throughout the country. (See, e.g., Compl. ¶ 10.)

From 1995 until October 2012, Plaintiff was employed by Akal Security, Inc. ("Akal"), a private security company, as a Lead CSO at the federal courthouse in Poughkeepsie, New York. (Id. ¶ 22.) During that time, Akal was party to a contract with USMS to provide CSOs to work at courthouses in the Second Circuit. (Id. ¶¶ 11, 12; Doc. 80 ("Cowart Decl.") Ex. 1 (the "Akal-USMS Contract").) The contract gave USMS exclusive control and discretion over which individuals would be permitted to work as CSOs. (Compl. ¶ 12.) Pursuant to the contract, USMS set forth CSO performance standards and had discretion to remove individuals who violated those standards. (Id. ¶¶ 12-13; Akal-USMS Contract § C-12.)

Plaintiff is a member and officer of United States Court Security Officers ("USCSO"), a labor organization and the exclusive collective bargaining representative for CSOs employed byAkal in the Southern District of New York. (Compl. ¶¶ 16, 23.) USCSO and Akal were parties to a collective bargaining agreement ("CBA"), which states that "[n]o employee, after completion of his or her probation period, shall be disciplined or terminated without just cause," and provides grievance and arbitration procedures to resolve disputes. (Id. ¶¶ 17, 18, 20; Cowart Decl. Ex. 2 ("CBA") §§ 8.1, 9.3; CBA art. 10.) Terminations resulting from USMS's removal of CSOs from the Court Security Program are excepted from those procedures. (Compl. ¶¶ 20-21; see CBA § 8.1.)

In March 2012, USMS notified Akal that it had been informed by anonymous sources that Plaintiff told a judge and CSOs at the Poughkeepsie courthouse that the courthouse in Middletown, New York, had structural damage and would close, and that CSOs based there would be laid off. (Compl. ¶¶ 27-29; Admin. R. at D15.) USMS believed that such conduct, if it occurred, would constitute a violation of the performance standards for CSOs. (Compl. ¶ 30; Admin. R. at D15-16.) Akal investigated the allegations, found them unsubstantiated, and notified USMS that Plaintiff had not violated the performance standards and that Akal would not discipline him. (Compl. ¶¶ 33-36; Admin. R. at D172-74.) USMS was unsatisfied with Akal's report and demanded that Akal investigate the matter again. (Compl. ¶ 37; Admin R. at D70-71.) Akal conducted another investigation, again concluded that the allegations were unsubstantiated, and recommended no discipline. (Compl. ¶¶ 37-40; Admin R. at D3-14.) USMS apparently accepted this recommendation. (See Compl. ¶ 40.)

In July 2012, USMS requested that Akal investigate eleven other incidents dating back to 2007 that involved Plaintiff and had been relayed to USMS in two anonymous letters and via information provided by a named CSO, and indicated that the alleged actions could constitute violations of several performance standards for CSOs. (Id. ¶¶ 41, 43; Admin. R. at D489-91.)Plaintiff was suspended on July 16, 2012. (Compl. ¶ 44; Admin. R. at D485-86, D488.) During the investigation, he was given an opportunity to provide oral and written statements in response to each allegation against him. (See Admin R. at D305-06, D309, D312, D314-16, D318-19, D321, D324, D338-40.) Neither the Complaint nor the Administrative Record makes clear what information was provided to Plaintiff and when. But because Plaintiff's written statement dated July 25, 2012 outlines each allegation against him using language that is nearly identical to the language used in USMS's July 12, 2012 letter to Akal detailing the allegations against Plaintiff and requesting an investigation, (compare id. at D338-40, with id. at D489-90), it appears that Plaintiff was at least provided with that letter.

By correspondence dated September 27, 2012, Akal reported to USMS its finding that only one of the allegations was substantiated and recommended that Plaintiff be issued a time-served suspension and issued a final warning. (See Compl. ¶ 44; Admin. R. at D299-300.) USMS replied by letter on October 11, 2012, stating that it had reviewed "the data provided by the contractor's investigation, and the information provided by the Southern District of New York," and requesting that USMS remove Plaintiff immediately. (Admin. R. at D297.) By further correspondence dated October 12, 2012, USMS advised Akal that USMS did not agree with Akal's assessment, that Plaintiff had undermined USMS's trust and confidence in him, and that USMS had decided to remove Plaintiff from the CSO program immediately. (Compl. ¶ 45; Admin. R. at D294-95.) USMS further instructed Akal to ensure that Plaintiff had an opportunity to respond to its October 12 letter within fifteen days. (Compl. ¶ 45; Admin. R. at D294-95.) Neither letter from USMS identified which performance standards USMS found Plaintiff had violated or provided a statement of its findings or reasons for removing Plaintiff. (Compl. ¶ 45; see Admin. R. at D294-95, D297.)

Plaintiff asserts that Akal forwarded USMS's October 12 letter without providing the investigative report that Akal had prepared and given to USMS or Akal's September 27, 2012 letter to USMS concerning Akal's investigative findings and recommendation. (Compl. ¶ 46.) On October 24, 2012, within fifteen days of the USMS letter, Plaintiff responded to that letter, addressing each of the eleven anonymously alleged incidents and demanding that USMS tell him the bases for its decision and provide him with a hearing so he could present evidence and question his accusers. (Id. ¶¶ 46-47; Admin. R. at D284-91.) On November 16, 2012, USMS confirmed Plaintiff's removal in a letter to Akal, but did not respond to Plaintiff's arguments or his request for a hearing. (Compl. ¶ 48; Admin. R. at D277-78.) After receiving USMS's letter, Akal terminated Plaintiff. (See Compl. ¶ 1.)

Plaintiff filed this lawsuit on July 25, 2013, alleging claims against USMS under the APA, 5 U.S.C. § 500, et seq. (Compl. ¶¶ 49-62.) USMS answered on November 13, 2013, (Doc. 9), and moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (b)(6) on February 3, 2015, (Doc. 36). Because USMS had already answered, I construed its motion as a motion for judgment on the pleadings under Rule 12(c), and granted that motion on August 28, 2015. See Hauschild v. U.S. Marshals Serv., No. 13-CV-5211, 2015 WL 13203452 (S.D.N.Y. Aug. 28, 2015). I dismissed the clams against USMS for lack of subject matter jurisdiction based on my understanding that the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, precluded judicial review. See id. at *7-8. On November 3, 2015, the Second Circuit held that the Tucker Act did not preclude a former CSO in a factually analogous case from obtaining relief against USMS for a claim asserted under the APA. See Atterbury v. U.S. Marshals Serv., 805 F.3d 398, 406-09 (2d Cir. 2015). In light of that ruling, on December 6, 2016, the Second Circuit vacated my dismissal of Plaintiff's APA claims against USMS and remanded this case for furtherproceedings. Hauschild v. U.S. Marshals Serv., 672 F. App'x 93, 95-96 (2d Cir. 2016) (summary order).

On February 17, 2017, a status conference was held during which it was agreed that USMS would file a second Rule 12(c) motion and Plaintiff would move for summary judgment. (See Minute Entry dated Feb. 17, 2017.) On October 13, 2017, the parties filed their bundled motion papers, including USMS's motion, (Doc. 78), memorandum of law, (Doc. 79 ("D's Mem.")), and declaration of counsel, (Doc. 80); Plaintiff's motion for summary judgment, (Doc. 73), memorandum of law in support of that motion and in opposition to USMS's motion, (Doc. 74 ("P's Mem.")), Rule 56.1 Statement, (Doc. 75), and declaration, (Doc. 76 ("Hauschild Decl.")); USMS's reply memorandum of law in further support of its Rule 12(c) motion and in opposition to Plaintiff's motion for summary judgment, (Doc. 81 ("D's Reply")), and Rule 56.1 Counterstatement, (Doc. 82); and Plaintiff...

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