Perry v. Delaney
| Citation | 74 F.Supp.2d 824 |
| Decision Date | 12 November 1999 |
| Docket Number | No. 97-3001.,97-3001. |
| Parties | Raymond J. PERRY and Louis Zezoff, Jr., Plaintiffs, v. Terrence E. DELANEY, individually and in his capacity as U.S. Marshal for the Southern District of Illinois, United States Marshals Service, General Security Services Corporation, Eduardo Gonzalez, Stacia Hylton, Andrew Pierucki, Jim Marble, Charles E. Witcher, and Joseph Zak, all being sued in their capacities as individuals, Defendants. |
| Court | U.S. District Court — Central District of Illinois |
J. William Lucco, Michael A. Shaheen, Lucco, Brown & Mudge, Edwardsville, IL, for Plaintiff.
Laura J. Jones, U.S. Atty., Fairview Heights, IL, for Terry Delaney.
L. Lee Smith Westervelt, Johnson, Nicoll & Keller, Peoria, IL, Thomas Walsh, U.S. Atty's Office, Chicago, IL, William M. Walsh, Sonnenschein, Nath & Rosenthal, St. Louis, MO, Robert Boonin, Butzel Long, Detroit, MI, for General Security Services.
Pamela M. Zauel, Butzel, Long, Ann Arbor, MI, for Andrew Pierucki.
Around the time of the first anniversary of the bombing of the Oklahoma City federal building, two Court Security Officers, who join as Plaintiffs in this case, failed to conduct proper security checks of visitors entering the East St. Louis Courthouse.
After their terminations, they bring the many constitutional and statutory claims at issue in this case.
But summary judgment must be allowed on all claims.
This cause comes before the Court on several motions: (1) Motion for Summary Judgment filed by Defendant General Security Services Corporation (GSSC); (2) Motion to Dismiss or for Summary Judgment filed by Defendant Terrence Delaney (Delaney) and the United States Marshal's Service (USMS); (3) Motion to Strike filed by GSSC; (4) Objection filed by GSSC, and (5) Plaintiffs' Motion for Leave to File Reply to Defendant's Reply.
Plaintiffs Raymond Perry (Perry) and Louis Zezoff (Zezoff) were employed by GSSC, a private contractor, as Court Security Officers (CSOs) at the federal courthouse in East St. Louis, Illinois pursuant to a contract between USMS and GSSC.
Jim Marble was a GSSC contract manager. Charles Witcher and Joseph Zak were GSSC supervisors. Terrence Delaney (Delaney) was the United States Marshal for the Southern District of Illinois.1 William E. Piester (Piester) was the Chief Deputy United States Marshal for the Southern District of Illinois. The chronology of events will be set out briefly below.2
Though Zezoff and Perry were employees of GSSC, the actual responsibility of selection and supervision of CSOs is divided between GSSC and USMS pursuant to the contract. For example, the requirements that CSOs must meet, such as law enforcement experience, education, and physical ability, are stipulated by USMS in the contract. GSSC, however, conducts the screening of applicants to assure that they meet the requirements to be CSOs.
In addition, the Court Security Division of the USMS provides an identification badge and other necessary security equipment. This equipment is turned in prior to leaving the courthouse at the end of the duty shifts each day. Also in connection with their employment, CSOs are automatically deputized as Special Deputy U.S. Marshals in order to fulfill their contract duties. The deputations are effective only while performing contract duties and they are automatically canceled when the CSO is terminated. Furthermore, the special deputations provide that CSOs are not federal employees and have no employment relationship with the federal government.
The contract further provides that GSSC has the responsibility to make sure that the CSOs continue to meet all the requirements specified in the contract, including adherence to the "CSO Standards of Conduct" which not surprisingly provides that CSOs shall not violate security procedures. Under the contract, failure of a CSO to meet these standards constitutes contractor nonperformance and the USMS is required to notify GSSC of any CSO conduct that falls below the standard of conduct.
It is GSSC's responsibility to discipline CSOs. Either the USMS or GSSC may request the removal of a CSO if he is disqualified for any reason, though it is ultimately GSSC's responsibility to effect the formal removal. Pursuant to the contract, GSSC must also provide an opportunity for removed CSOs to present a written response to the removal. If it is the USMS that has requested the removal of a CSO, GSSC must provide a written statement to the USMS within 15 days of the initial removal stating its position, after which the USMS can make a final determination as to its position regarding the request for the termination.
From April 8 to April 19, 1996, approximately one year after the bombing of a federal building in Oklahoma City, both the District Court and the Bankruptcy Court for the Southern District of Illinois underwent a financial audit by private contract vendors. One of the auditors complained to Stuart J. O'Hare (O'Hare), Clerk of Court for the Southern District of Illinois, about the lax security procedures and went so far as to indicate that these concerns might find their way into the auditor's report.
The specific complaint about security was that after the first day of the audit, the audit team members were allowed to pass through the south security entrance to the courthouse without having their briefcases and packages checked with the magnetometer and without being questioned. It is slightly odd in this regard that the auditors were checked by the security officers appropriately on April 8, 1996 (their first day at the courthouse for the audit) but the auditor did not voice his complaint until the day of his departure on April 19, 1996.3 This auditor who was so upset by the lax security apparently voiced his concern only on the day that he was leaving the courthouse — which was also the date of the first anniversary of the Oklahoma City bombing.
These concerns were taken very seriously, as shown by subsequent events. O'Hare spoke with Piester about the auditor's complaint. O'Hare's security concerns were heightened because he had seen faxes regarding the necessity or appropriateness of tightening security at federal buildings around the time of the anniversary of the Oklahoma City bombing.
Piester then contacted Witcher and Marble, both GSSC supervisors, as well as Marshal Delaney. Piester also notified USMS headquarters, specifically speaking to Ms. Stacia Hylton, Assistant Chief of the Court Security Division of the USMS. Ms. Hylton told Piester to forward to USMS headquarters a written version of the incident. Piester identified Zezoff and Perry as the CSOs who were involved in the security breaches and notified Marshal Delaney and USMS headquarters of this fact.
Piester drafted a memorandum for Delaney's signature, and this memorandum, dated April 29, 1996, was then sent to USMS headquarters. It set out the allegations of security breaches by Zezoff and Perry and additionally noted that judges had complained about lax security in the courthouse, the East St. Louis area was not very safe, and that security at the courthouse required constant vigilance and scrupulous adherence to standards.
After this memo was received at USMS headquarters, Assistant Chief Stacia Hylton notified GSSC and Pierucki on either May 2, 1996 or May 3, 1996 that USMS was requesting the removal of Plaintiffs. Pierucki then notified Marble to suspend Plaintiffs pending receipt of the formal USMS request for removal. When Pierucki told Piester of the suspension, Piester advised Pierucki that the USMS headquarters had not yet come to a final conclusion as to the necessity of requesting termination of Zezoff and Perry.
Nonetheless, at the end of their shift on May 2, 1996, Zezoff and Perry were suspended and did not receive any pay after that date. Their identification badges and equipment were gathered and turned over to Piester. On May 3, 1996, USMS sent a memo to GSSC formally requesting the removal of Zezoff and Perry because of the security breaches.
On May 7, 1996, Plaintiffs received letters from Pierucki informing them of their termination. Plaintiffs subsequently sent letters to GSSC and USMS headquarters requesting a review of their termination. GSSC allegedly never responded, while the USMS responded that GSSC was solely responsible for the termination.
Perry and Delaney originally filed their complaint on September 18, 1996. Several counts were subsequently dismissed and all individual defendants except for Delaney have now also been dismissed. The second amended complaint states in Count I a claim under the Administrative Procedure Act (APA), 5 U.S.C. § 706, alleging that Delaney in his official capacity and the USMS, "pulled" Plaintiffs' special deputations as CSOs and that this action and their ultimate removal violated Plaintiffs' procedural due process rights. Plaintiffs specifically allege that their jobs, their special deputations, or both were constitutionally protected property rights and that the terminations infringed on their liberty interest in obtaining meaningful employment. Plaintiffs also allege that the APA was violated by Delaney when he failed to follow the proper steps in removing their credentials as CSOs. In Count II, Plaintiffs allege that Delaney in his official capacity and the USMS violated the APA, 5 U.S.C. § 706, when they arbitrarily and capriciously "pulled" Plaintiffs credentials and when they failed to provide appropriate counseling prior to directing the termination of Plaintiffs. In Count, III against Delaney and the USMS, Plaintiffs allege that Delaney's pulling of their credentials violated Plaintiffs' rights under 5 U.S.C. § 558(c) because the credentials were licenses under 5 U.S.C. § 501(8) and they were revoked without the requisite notice or hearing. In Count...
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