UNITED GOV SEC/INTL v. US MARSHAL SERVICE

Filing 377

MEMORANDUM OPINION to the Order granting Defendant's Motion for Summary Judgment and denying Plaintiffs' Cross-Motion for Summary Judgment. Signed by Judge Gladys Kessler on 7/19/12. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
INTERNATIONAL UNION, UNITED
)
GOVERNMENT SECURITY OFFICERS )
OF AMERICA, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No.
)
02-1484 (GK)
JOHN CLARK, in his official
)
capacity as Director of the
)
United States Marshals
)
Service, et al.,
)
)
Defendant.
)
______________________________)

MEMORANDUM OPINION
Plaintiffs in this case are five individual Court Security
Officers (“CSOs”) who were medically disqualified and terminated.1
They allege that the United States Marshals Service (“USMS”)
violated their constitutional rights in causing their terminations.
Defendant is John Clark, in his official capacity as Director of

1

This case originally involved two sets of plaintiffs. The
first set, the plaintiffs in Int’l Union, United Gov’t Sec.
Officers of Am. v. Clark, No. 02-1484, (D.D.C. Sept. 9, 2002) [Dkt.
No. 2] were International Union, United Government Security
Officers of America (“the Union”) and 65 CSOs who filed the
original complaint. The second set, the plaintiffs in Byron Neal
v. Benigno G. Reyna, No. 05-0007 (D.D.C. Jan. 4, 2005) [Neal Dkt.
No. 3] (“Neal plaintiffs”), were six CSOs who filed a separate
complaint.
Neal was later consolidated with Int’l Union.
For
reasons explained below, only five plaintiffs now remain: James
Dolnack, Herman Edwards, Gary Erickson, Wayne Mize, and Byron Neal.
These are the “Plaintiffs” referred to hereafter.

the USMS.2

This matter is now before the Court on the remaining

parties’ Cross-Motions for Summary Judgment [Dkt. Nos. 349 & 358].
Upon consideration of the Motions, Oppositions, Replies, and
the entire record herein, and for the reasons set forth below,
Defendant’s Motion for Summary Judgment on Plaintiffs’ Due Process
Claims is granted and Plaintiffs’ Cross-Motion for Summary Judgment
is denied.
I.

BACKGROUND
Factual Background3

A.

This case has a long and complex factual background, which is
set out in full in the Court’s 2010 decision in Int’l Union, United
Gov’t Sec. Officers of Am. v. Clark (“Int’l Union”), 706 F. Supp.
2d 59 (D.D.C. 2010).

The following is a brief summary of the facts

directly relevant to the due process claim of the five remaining
Plaintiffs now before the Court.
To “provide for the security of” federal courthouses, 28
U.S.C.

§

companies.

556(A),

the

USMS

contracts

with

private

Int’l Union, 706 F. Supp. 2d at 61.

security

The private

2

This case originally involved three defendants. In addition
to John Clark, in his official capacity as Director of the USMS,
Defendants were Akal Security, Inc. (“Akal”) and MVM, Inc. (“MVM”)
[Dkt. Nos. 59 & 60]. All claims against Defendants Akal and MVM
have either been dismissed, denied on summary judgment, or settled.
3

Unless otherwise noted, the facts set forth herein are drawn
from the parties’ Statements of Undisputed Material Facts [Dkt.
Nos. 358 & 361].
-2-

security companies then enter into collective bargaining agreements
(“CBAs”) with the Union which the CSOs are members of.
include

language

governing

the

conditions

termination, among other subjects.

for

The CBAs

suspension

and

Notably, the CBAs contain

provisions prohibiting, except in specified circumstances, the
suspension or dismissal of an employee without just cause (“justcause provision”).4 See id.
The CBAs also require CSOs to have a physical examination
during the initial clearance for employment, conducted by the
private security company’s doctors who are approved by the United
States Public Health Service’s (“USPHS”) Office of Federal Law
Enforcement Medical Program.

USPHS doctors review the medical

records and either certify the CSO as medically qualified for duty
or request more information.
CSO

is

given

30

days

to

If more information is requested, a
respond

4

to

the

prescribed

list

of

A suspension or termination for just cause has been defined as
“one which is not for any arbitrary, capricious, or illegal reason
and which is one based on facts (1) supported by substantial
evidence and (2) reasonably believed by the employer to be true.”
Podish v. UNC Lear Siegler, 161 F.3d 13 (9th Cir. 1998); see also
Spano v. JP Morgan Chase Bank, N.A., Civil Action No. 2:09-cv-04055
(DMC)(JAD), 2011 WL 6934837, at *6 (D.N.J. Dec. 30, 2011) (“A
discharge for just cause is defined as one that is based on facts
that are (1) supported by substantial evidence and (2) are
reasonably believed by the employer to be true and also (3) is not
for any arbitrary, capricious, or illegal reason.” (internal
quotation omitted)); Autohaus, Inc. v. BMW of N. Am., Inc., No.
CIV. A. 92-10403-MA, 1993 WL 1503945, at *8 (D. Mass. Dec. 23,
1993) (“The Massachusetts Supreme Judicial Court has noted that a
[d]ischarge for “just cause” is to be contrasted with a discharge
on unreasonable grounds or arbitrarily, capriciously, or in bad
faith.” (internal quotation omitted)).
-3-

additional medical examinations or medical information on the USPHS
doctors’ review form. If USPHS doctors determine that a CSO is not
medically qualified for duty after the CSO has had an opportunity
to respond, the USMS sends a medical disqualification letter to the
private security company requesting that the CSO be removed from
the private security company’s contract with the USMS and that an
application for a replacement be submitted within 14 days.
In

1997,

(“Judicial

the

Judicial

Conference”)

Conference

expressed

of

concern

the
that

United
CSOs

States

were

not

physically capable of responding to security threats. Int’l Union,
706 F. Supp. 2d at 62.

In 1998, the Judicial Conference began to

inquire into the medical standards used to evaluate CSOs. In 1999,
the Judicial Conference ordered the USPHS to conduct a job function
analysis of CSOs.

In 2000, the USPHS presented new medical

standards to the Judicial Conference which it adopted.

In 2002,

the USMS modified its contracts with the private security companies
and required full compliance by all CSOs with the new medical
standards and related procedures.
Under the new procedures, the private security companies must
submit annual medical certificates for CSOs.

As with the initial

medical determination, if USPHS doctors determine during the annual
medical review that a CSO is not medically qualified for duty, and
after the CSO has had an opportunity to respond, the USMS sends a
medical disqualification letter to the private security company

-4-

requesting that the CSO be removed from the private security
company’s contract with the USMS and that an application for a
replacement be submitted within 14 days.
The five remaining Plaintiffs now before the Court were all
medically disqualified and terminated under these annual medical
review procedures.
B.

Procedural Background

On September 9, 2002, the Int’l Union plaintiffs filed their
Amended Complaint alleging that their medical disqualifications and
terminations violated the Fifth Amendment’s due process clause, as
well as certain statutes.

Int’l Union, United Gov't Sec. Officers

of Am. v. Clark, No. 02-1484, (D.D.C. Sept. 9, 2002) [Dkt. No. 2].
On December 2, 2002, Defendant filed his Motion to Dismiss the
Int’l Union plaintiffs’ due process claim [Dkt. No. 7]. On August,
28, 2003, the Court denied Defendant’s Motion to Dismiss the Int’l
Union

plaintiffs’

due

process

claim,

finding

that

the

Int’l

Union plaintiffs had stated a valid due process claim based on the
just-cause clauses in the CBAs [Dkt. Nos. 24 & 25].
On January 4, 2005, Plaintiffs James Dolnack, Herman Edwards,
Gary Erickson, Calvert Harvey, Wayne Mize, and Byron Neal filed
their

Amended

Complaint

alleging

that

their

medical

disqualifications and terminations violated the Fifth Amendment’s
due process clause, as well as certain statutes.

-5-

Byron Neal v.

Benigno G. Reyna (“Neal”), No. 05-0007 (D.D.C. Jan. 4, 2005) [Neal
Dkt. No. 3].
On October 12, 2006, Defendant filed his Motion to Dismiss
Plaintiffs’ due process claim in the Amended Complaint [Neal Dkt.
No. 21]. On April 10, 2010, the Court denied Defendant’s Motion to
Dismiss Plaintiffs’ due process claim.

Int’l Union, United Gov't

Sec. Officers of Am. v. Clark, 704 F. Supp. 2d 54, 60-63 (D.D.C.
2010).
On February 6, 2007, Plaintiffs’ case was consolidated with
the Int’l Union case [Neal Dkt. No. 23; Dkt. No. 205].
On January 10, 2008, Defendant filed his Motion for Summary
Judgment on the Int’l Union plaintiffs’ due process claim [Dkt. No.
263]. On February 19, 2008, the Int’l Union plaintiffs filed their
Cross-Motion for Summary Judgment [Dkt. Nos. 268 & 270].
was completed on March 28, 2008 [Dkt. Nos. 272-274].

Briefing

On April 15,

2010, the Court granted Defendant’s Motion for Summary Judgment on
the Int’l Union plaintiffs’ due process claim [Dkt. No. 291].

The

Court held that, while the Int’l Union plaintiffs had a property
interest in their continued employment, they received due process
before being medically disqualified and terminated.

Int’l Union,

706 F. Supp. 2d at 71.
On September 29, 2011, Defendant filed the Motion for Summary
Judgment now before the Court on Plaintiffs’ due process claim
[Dkt. No. 349].

Plaintiffs filed their Cross-Motion for Summary

-6-

Judgment on October 24, 2011 [Dkt. No. 357].

Defendant filed his

Reply on November 8, 2011 [Dkt. No. 361].
In a Joint Status Report submitted on June 4, 2012, Plaintiffs
and Defendant stated that they had executed agreements settling all
other claims.

The sole claim remaining is the due process claim

brought by Plaintiffs James Dolnack, Herman Edwards, Gary Erickson,
Wayne Mize, and Byron Neal against Defendant.5
II.

STANDARD OF REVIEW
Summary

judgment

is

appropriate

“when

the

pleadings,

depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”
An

issue

is

“genuine”

if

Fed. R. Civ. P. 56(c).
“the

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party.”
Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006)
(quoting Anderson
(1986)).

v.

Liberty

Lobby,

Inc.,

477

U.S.

242, 248

A fact is “material” if it might affect the outcome of

the action under the governing law.

Anderson, 477 U.S. at 248.

The Supreme Court has emphasized that “at the summary judgment
stage, the judge’s function is not . . . to weigh the evidence and

5

On December 21, 2011, Plaintiff Calvert Harvey voluntarily
dismissed all claims against Defendant [Dkt. No. 365].
-7-

determine the truth of the matter, but to determine whether there
is a genuine issue for trial.”

Anderson, 477 U.S. at 248.

III. ANALYSIS
Defendant maintains that Plaintiffs do not have a property
interest in their continued employment that entitles them to due
process with regard to medical disqualification and termination.
Def.’s Mem. in Supp. of His Mot. for Summ. J. on the Due Process
Claims (“Def.’s Mot.”) at 4 [Dkt. No. 349]. Defendant argues that,
regardless of the terms in the CBAs, the CBAs do not and cannot
impose due process obligations on the USMS.
In

the

alternative,

Defendant

Id.

maintains

that

even

if

Plaintiffs have a property interest in their continued employment,
they were provided with the process that was due.
4.

Def.’s Mot. at

Defendant relies heavily on the fact that the Court granted

Defendant's

Motion

for

Summary

plaintiffs’ due process claim.

Judgment

Id. at 1.

on

the

Int’l

Union

The Court held that the

process that the Int’l Union plaintiffs received when they were
medically

disqualified

sufficient.

Id.

and

terminated

was

constitutionally

Defendant argues that the Int’l Union plaintiffs

and Plaintiffs now before the Court received the same process, and
therefore, the Court’s earlier ruling must be followed.
A.

Id.

Plaintiffs’ Initial Concessions

Plaintiffs concede that “it is undisputed that the facts,
circumstances,

and

issues

presented

-8-

by

these

Plaintiffs’

due

process claims are identical to those presented by the [Int’l Union
plaintiffs] and Plaintiffs understand that the Court will most
likely rule on these Motions in the same manner as it did for the
previous dispositive motions.”

Pls.’ Opp’n to Def.’s Mot. for

Summ. J. and Cross-Mot. for Summ. J. at 1-2
B.

[Dkt. No. 357].6

Law of the Case Doctrine Does Not Compel the Conclusion
that Plaintiffs Have a Property Interest in Their
Continued Employment

Plaintiffs maintain that the Court’s 2003 decision denying
Defendant's Motion to Dismiss the Int’l Union plaintiffs’ claims
resolves the issue of whether Plaintiffs have a property interest
in their continued employment.

Pls.’ Mem. in Supp. of Their Opp’n

to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J. (“Pls.’
Cross-Mot.”) at 10-13.

Plaintiffs argue that the Court should

“deny Defendant’s Motion [for Summary Judgment] and reaffirm it
[sic] decision that the individual CSOs represented by Plaintiff
UGSOA have a property interest in their employment.”

Id. at 13.

However, the Court has previously considered and rejected this
argument.
Court

has

Int’l Union, 706 F. Supp. 2d at 64-65.
held

that

denial

of

6

a

motion

to

The Supreme
dismiss

is

an

Plaintiffs request that the Court “review and perhaps
reconsider its prior ruling” on the issue of whether Plaintiffs
received due process. Pls.’ Opp’n to Def.’s Mot. for Summ. J. and
Cross-Mot. for Summ. J. at 2 [Dkt. No. 357].
No Plaintiff has
filed a Motion for Reconsideration under the applicable Rules of
Civil Procedure or attempted to make the showing that such a motion
requires.
Therefore, the Court will not grant the request to
“perhaps reconsider.”
-9-

interlocutory order.

See Office of Senator Mark Dayton v. Hanson,

550 U.S. 511, 515 (2007); EAW Group, Inc. v. Republic of Gambia,
No. 02-2425, 2007 WL 1297180, at *2 (D.D.C. May 1, 2007).

Our

Court of Appeals has stated that “[i]nterlocutory orders are not
subject to law of the case doctrine and may always be reconsidered
prior to final judgment.” Langevine v. Dist. of Columbia, 106 F.3d
1018, 1023 (D.C. Cir. 1997); see also Safir v. Dole, 718 F.2d 475,
481 n.3 (D.C. Cir. 1983) (noting that the law of the case doctrine
is discretionary).
Furthermore,

Plaintiffs

themselves

note

that

Defendant

introduced 26 CBAs, the contracts under which Plaintiffs were
employed by the private security companies, after the Court’s 2003
decision.

Pls.’ Cross-Mot. at 11.

The Court’s 2003 decision

discussed only the just-cause clauses in the CBAs.

It did not

discuss the sections of the CBAs introduced as evidence after the
Court’s

2003

decision.

As

previously

explained,

“Defendant

presented additional facts that could have a substantial impact on
the question of whether a property interest exists.”

Int’l Union,

706 F. Supp. 2d at 65.
In sum, application of the law of the case doctrine is
discretionary, and cannot be invoked to limit the Court’s ability
to reconsider interlocutory orders when new evidence is introduced
after a motion to dismiss has been decided. Thus, the Court’s 2003
decision does not foreclose Defendant from raising his due process

-10-

defense again on a motion for summary judgment.

See 10A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2713 (3d ed. 1998) (“[t]he ruling on a motion to
dismiss for failure to state a claim for relief is addressed solely
to the sufficiency of the complaint and does not prevent summary
judgment from subsequently being granted based on material outside
the complaint”).
C.

Plaintiffs Have a Property Interest in Their Continued
Employment

The Supreme Court has held that “[t]he right to hold specific
private employment and to follow a chosen profession free from
unreasonable governmental interference comes within the ‘liberty’
and ‘property’

concepts

of

the

Fifth

Amendment.”

Greene

v.

McElroy, 360 U.S. 474, 492 (1959).
Under the Fifth Amendment, the federal Government must not
deprive individuals of property “without due process of law.” U.S.
Const. Amend V. In determining whether Plaintiffs’ due process has
been violated, the Court must of course first establish whether
Plaintiffs have been deprived of a property interest.

Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
The Supreme Court has held that property interests are not
created by the Constitution.

Roth, 408 U.S. at 577.

“[R]ather

they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as

-11-

state law-rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits.”

Id.

Plaintiffs maintain that they have a property interest in
their continued employment because the CBAs limit the private
security company’s right to terminate them except for just cause.
Pls.’ Cross-Mot. at 14-15.

Plaintiffs also argue that the fact

that the CBAs contain exceptions to the just-cause clauses in the
CBAs does not diminish their property interest in their continued
employment.

Id. at 15.

Defendant argues that Plaintiffs do not have a property
interest

in

their

continued

employment

because,

with

a

few

exceptions, the CBAs were drawn so Plaintiffs were virtually
at-will employees.

Def.’s Reply in Supp. of His Mot. for Summ. J.

on the Due Process Claims and Opp’n to Pls.’ Cross-Mot. for Summ.
J. (“Def.’s Reply”) at 2. Defendant also argues that Plaintiffs do
not have a property interest in their medical clearances.

Id. at

2-3.
Our Court of Appeals has held that “[t]o determine whether
[one] ha[s] a property interest in continued employment, we ask if
he [or she] ha[s] a legitimate expectation, based on rules (statute
or

regulations)

or

understandings

(contracts,

implied), that he would continue in his job.”
F.2d 255, 265 (D.C. Cir. 1988).

expressed

or

Hall v. Ford, 856

In examining the issue of whether

the CBAs create a property interest, the Court must be guided by

-12-

the language of the contracts. Am. Fed’n of Gov’t Employees, Local
2924 v. Fed. Labor Relations Auth., 470 F.3d 375, 381 (D.C. Cir.
2006); see also N.L.R.B. v. U.S. Postal Serv., 8 F.3d 832, 836
(D.C. Cir. 1993); Vanover v. Hantman, 77 F. Supp. 2d 91, 102
(D.D.C. 1999) (“Of course, the language involved must be sufficient
to create an ‘objectively reasonable’ expectation that an employee
will be terminated only for certain causes.”).
Once again, the Court has previously considered and rejected
this argument.

Int’l Union, 706 F. Supp. 2d at 65-68.

The Court

previously held that the Int'l Union plaintiffs had an “objectively
reasonable” expectation that they would maintain their employment
even though there were substantial limits on their expectation
“that [they] would continue in [their] job.” Id. at 66-67 (quoting
Hall, 856 F.2d at 265).

Despite these limitations, the Court

concluded that these limits on their job protection (i.e., failure
to

satisfy

Plaintiffs
employment.

medical
are

standards)

deprived

Id. at 66.

of

does
all

not

and cannot

property

interest

mean

that

in

their

Such a conclusion would eviscerate the

significance of including the just-cause clauses in the CBAs, and
for all practical purposes, would render the clauses a nullity.
Smith v. Kerrville Bus Co., Inc., 709 F.2d 914, 919 (5th Cir. 1983)
(“To hold as a matter of law that management could, at its sole
discretion, terminate an employee without cause would in effect

-13-

allow it the unqualified power to avoid contractually mandated
rights and benefits.”).
Fundamental
conclusion.

principles

of

labor

law

support

the

Court’s

The Ninth Circuit has held that it is “difficult to

imagine a meeting of the minds between an employer and a union
authorizing an employer to discharge an employee without good
cause.

Employer security goes to the very essence of a collective

bargaining agreement.”

Dickeson v. DAW Forest Products Co., 827

F.2d 627, 631 (9th Cir. 1987).
Furthermore, the tradition of just-cause clauses in CBAs is so
long-standing that courts have approved finding implied just-cause
clauses in CBAs even where no explicit provision exists.

See SFIC

Properties, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers,
Dist. Lodge 94, Local Lodge 311, 103 F.3d 923 (9th Cir. 1996);
Smith, 709 F.2d at 919 (“Mindful that we are bound to exercise a
reasoned flexibility in construing the terms of a labor contract
. . . we are loath to conclude, as a matter of law and undisputed
fact, that no just-cause limitation inheres in the . . . collective
bargaining agreement.”); Young v. Sw. Bell Tel. Co., 309 F. Supp.
475, 478 (E.D. Ark. 1969), aff'd 424 F.2d 256 (8th Cir. 1970).
D.

Plaintiffs Received Due Process Before Being Medically
Disqualified

Having found that Plaintiffs have a property interest in their
continued employment, the Court now addresses the issue of whether

-14-

Plaintiffs

received

due

process

when

they

were

medically

disqualified and terminated.
“[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.”
Brewer, 408 U.S. 471, 481 (1972).

Morrissey v.

“The essential requirements of

due process . . . are notice and an opportunity to respond.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Courts consider three factors in determining whether due
process has been afforded: “[f]irst, the private interest that will
be

affected

by

the

official

action;

second,

the

risk

of

an

erroneous deprivation of such interest through the procedures used,
and the

probable

value, if

any,

of

additional

or substitute

procedural safeguards; and [third], the Government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail.”

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Plaintiffs

maintain

that

the

procedures

that

Defendant

followed did not provide them with sufficient notice of their
medical
respond.
USPHS’s

disqualifications

or

with

Pls.’ Cross-Mot. at 38-40.
doctor’s

response

form

did

sufficient

opportunity

to

Plaintiffs argue that the
not

provide

notice

that

Plaintiffs were charged with being medically unfit or the bases on
which

Plaintiffs

might

be

medically

unfit.

Id.

at

38-39.

Plaintiffs also argue that they were not allowed to create their

-15-

own responses or to have direct contact with the USPHS doctors.
Id. at 39.

They could only submit a prescribed list of medical

information from their personal doctors or the private security
company’s doctors.

Id.

Defendant relies heavily on the fact that the Court granted
Defendant’s

Motion

for

Summary

Judgment

on

the

Int’l

Union

plaintiffs’ due process claim, and that Plaintiffs now before the
Court received the same process as the Int’l Union plaintiffs.
Def.’s Mot. at 1.
The Court previously held that the additional steps proposed
by Plaintiffs are simply not required under the Fifth Amendment’s
due process clause.

Int’l Union, 706 F. Supp. 2d at 70.

Adequate

process can be provided based on written medical records. Mathews,
424 U.S. at 344; Loudermill, 470 U.S. at 546 (finding that an
individual should have the “opportunity to present reasons . . .
either in person or in writing”). There is no evidence that having
the Int’l Union plaintiffs’ objections lodged via written medical
reports or communicating through their doctors denied them “a
meaningful opportunity to present their case.”

Mathews, 424 U.S.

at 349.
Plaintiffs
employment

is

also

maintain

substantial

deprivation is serious.

that

and

their

that

the

private
risk

interest
of

Pls.’ Cross-Mot. at 40-47.

in

erroneous
They agree

with Defendant that the Government’s interest in providing adequate

-16-

security for federal courthouses is legitimate.

Id. at 47.

However, Plaintiffs argue that Defendant has not demonstrated that
the Government’s interest should outweigh the private interest or
the risk of erroneous deprivation.

Id. at 47-48.

Once again, the Court has previously considered and rejected
this argument.
previously

Int’l Union, 706 F. Supp. 2d at 68-71.

held

that,

in

balancing

the

private

The Court
and

public

interests, the parties both have significant interests at stake.
Id. at 69.

Plaintiffs face the loss of their continued employment

while the Government must protect federal courthouses.
70.

Id. at 69-

In balancing the risk of erroneous deprivation with the

improved

medical

screening

that

additional

procedures

provide, the balance tilts in favor of Defendant.

might

Id. at 70.

The Supreme Court has held that the review of written medical
records provided by doctors who have personally examined the
patient is a reliable method of review.
344.

See Mathews, 424 U.S. at

In this case, Plaintiffs are given a chance to avoid medical

disqualification by using the USPHS’s doctor’s response form.
Either

Plaintiffs’

personal

doctors

or

the

private

security

company’s doctors have a chance to personally examine Plaintiffs
and to respond to the prescribed list of medical information
requested by the USPHS doctors.

Nor is there language limiting or

prohibiting what additional medical information may be included.
Int’l Union, 706 F. Supp. 2d at 63; see also Judicial Security

-17-

Division, Medical Review Form, Felipe Jorge-Rodriguez (Oct. 9,
2001; Aug. 14, 2002) (Ex. 18 to Pls.’ Cross-Mot.).
The Court’s 2010 decision relied on a Third Circuit case that
reached the same conclusion on similar facts.
Supp. 2d at 70.

Int’l Union, 706 F.

In Wilson v. MVM, Inc., 475 F.3d 166, 178-79 (3d

Cir. 2007), the court held that while the CSOs’ opportunity to
respond might not constitute a “traditional hearing, the process
afforded the [CSOs] is sufficient given the balance of their
interest in maintaining employment and the [G]overnment’s interest
in security.”

Again, the reasoning in that decision is just as

compelling now as it was in 2010.
Finally, Plaintiffs contend that the lack of post-deprivation
process

“render[s]

their

constitutionally-infirm.”

minimal

pre-deprivation

Pls.’ Cross-Mot. at 48.

process

However, the

Supreme Court has held that “due process is flexible and calls for
such procedural protections as the particular situation demands.”
Morrissey, 408 U.S. at 481.

There is also no firm rule that

termination procedures must be furnished at a specific time in
order to be deemed constitutionally sufficient.

See Adkins v.

Rumsfeld, No. 1:04CV494, 2005 WL 2593450, at *5 (E.D. Va. Oct. 13,
2005), aff’d 464 F.3d 456 (4th Cir. 2006), cert. denied 551 U.S.
1130 (2007).

Indeed, our Court of Appeals has approved the

provision of only post-termination process where pre-deprivation
process would have been overly burdensome.

-18-

Washington Teachers’

Union Local #6, Am. Fed. of Teachers, AFL-CIO v. Bd. of Educ. of
the Dist. of Columbia, 109 F.3d 774, 781 (D.C. Cir. 1997) (holding
that where post-termination relief was available, “due process did
not

require

pre-termination

proceedings

before

[a]

1996

[reduction-in-force]”). As discussed above, this Court has already
determined

that

the

pre-termination

process

that

Plaintiffs

received is constitutionally sufficient.
In sum, while the terms of the CBAs did create a property
interest in Plaintiffs’ continued employment, Plaintiffs received
their appropriate and sufficient due process before being medically
disqualified.

Therefore, Plaintiffs’ Fifth Amendment due process

claim must be denied.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary

Judgment

on

Plaintiffs’

Due

Process

Claim

is

granted

Plaintiffs’ Cross-Motion for Summary Judgment is denied.
shall issue with this Memorandum Opinion.

/s/
Gladys Kessler
U.S. District Judge

July 19, 2012

Copies to: attorneys on record via ECF

-19-

and

An order