Atterbury v. United States Marshals Service et al

Filing 39

REPORT AND RECOMMENDATION re 20 MOTION to Dismiss filed by John Doe, United States Marshals Service, Gary Insley. Objections due fourteen days from receipt. DECISION AND ORDER denying 27 MOTION defer consideration of motion pending discovery filed by Stephen L. Atterbury. Signed by Hon. Leslie G. Foschio on 3/27/2014. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
STEPHEN L. ATTERBURY,
Plaintiff,
vs.
UNITED STATES MARSHALS SERVICE
GARY INSLEY,
JOHN DOE,
Defendants.
________________________________

APPEARANCES:

REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER1
12-CV-502A(F)

COHEN, WEISS AND SIMON
Attorneys for Plaintiff
THOMAS N. CIANTRA,
TRAVIS M. MASTRODDI, of Counsel
330 West 42nd Street
New York, New York 10036
WILLIAM J. HOCHUL, JR.
UNITED STATES ATTORNEY
Attorney for Defendants
MICHAEL S. CERRONE,
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202

JURISDICTION
This case was referred to the undersigned for all pretrial matters pursuant to 28
U.S.C. § 636(b)(1)(A) and (B) by order of Hon. Richard J. Arcara dated May 15, 2012
(Doc. No. 3). It is presently before the court on Defendants’ motion, filed January 31,
2013, to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively, under Fed.R.Civ.P.

1

As Defendants’ motion is dispositive and Plaintiff’s motion is non-dispositive, for convenience,
both motions are addressed in this Report and Recommendation and Decision and Order.

56, (Doc. No. 20) (“Defendants’ motion”) and Plaintiff’s motion, filed February 28, 2013
(Doc. No. 27) pursuant to Fed.R.Civ.P. 56(d), to defer consideration of Defendants’
motion to dismiss pending discovery relating to Count II of the Complaint (“Plaintiff’s
Rule 56(d) motion”).

BACKGROUND
Plaintiff commenced this action by Complaint filed May 4, 2012, alleging a
violation by Defendants Gary Insley and John Doe (“Insley,” “John Doe,” or “the
individual Defendants”) of Plaintiff’s right to procedural due process – pre-termination
and post-termination – guaranteed by the Fifth Amendment (Count I) (“Plaintiff’s due
process claim”), and that the direction of the United States Marshal (“USMS”) to
Plaintiff’s employer that Plaintiff be removed from courthouse security service was
arbitrary and capricious and in violation of Plaintiff’s due process rights, thereby
affording Plaintiff relief under the Administrative Procedure Act, 5 U.S.C. § 551, et seq.,
(“APA”) (Count II) (“Plaintiff’s APA claim”). Plaintiff seeks damages, reinstatement and
attorneys fees under both claims. In lieu of serving an answer,2 on January 31, 2013,
Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, alternatively,
for summary judgment directed to Plaintiff’s APA claim pursuant to Fed.R.Civ.P. 56
(Doc. No. 20) (“Defendants’ motion”) along with a Memorandum of Law (Doc. No. 21)
(“Defendants’ Memorandum”), a Statement of Undisputed Facts (Doc. No. 22)
(“Defendants’ Statement of Undisputed Facts”), a Declaration of Gary Insley (Doc. No.

2

Following Plaintiff’s request for an entry of default (Doc. No. 9), the parties stipulated to vacate
the entry of default (Doc. No. 13) and extend Defendants’ time to answer (Doc. No. 16).
2

23) (“Insley Declaration”), together with exhibits 1 - 8 (Doc. No. 23-1) (“Insley
Declaration Exh(s) ___”), a Declaration of Christopher Pfohl (Doc. No. 24) (“Pfohl
Declaration”), and a Declaration of Jerrold Risley (Doc. No. 25) (“Risley Declaration”).
On March 8, 2013, Plaintiff filed Plaintiff’s Memorandum Of Law In Opposition To
Defendants’ Motion To Dismiss (Doc. No. 29) (“Plaintiff’s Memorandum”), attaching a
Statement Of Facts Of Plaintiff Of [sic] Stephen L. Atterbury Pursuant to Local Rule
56(a)(2) (Doc. No. 29-1) (“Plaintiff’s Statement of Facts”), and the Declaration of
Stephen L. Atterbury (Doc. No. 29-2) (“Atterbury Declaration”), together with exhibits AF (Doc. No. 29-2) (“Atterbury Declaration Exh(s). __”). Defendants filed a Reply
Memorandum of Law on April 3, 2013 (Doc. No. 32) (“Defendants’ Reply
Memorandum”).
By papers filed February 28, 2013, Plaintiff cross-moved, pursuant to
Fed.R.Civ.P. 56(d), to defer consideration of Defendants’ motion for summary
judgment, directed to Count II of the Complaint, to permit Plaintiff to take discovery to
develop fully the record upon which Defendant USMS acted in requesting Plaintiff’s
removal (Doc. No. 27) together with Plaintiff’s Memorandum Of Law In Support Of
Motion To Defer Consideration Of Defendants’ Motion To Dismiss Count II Of The
Complaint Under Fed.R.Civ.P. 56(d) (“Plaintiff’s Rule 56(d) Memorandum”), and the
Declaration of Thomas N. Ciantra (Doc. No. 27-2) (“Ciantra Declaration”). On March
26, 2013, Defendants filed a Memorandum of Law in Opposition to Plaintiff’s Rule 56(d)
motion (Doc. No. 30 ) (“Defendants’ Memorandum in Opposition to Plaintiff’s Rule 56(d)
motion”). On March 26, 2013, Defendants filed the Declaration of Michael S. Cerrone
(Doc. No. 31) attaching as Exhibit A (“Cerrone Declaration Exh. A” or “Exh. A”) the
3

administrative record upon which the USMS’s removal request was based (Doc. No. 311). On April 5, 2013, Plaintiff filed Plaintiff’s Reply Memorandum In Support Of Motion
To Defer Consideration Of Defendants’ Motion To Dismiss Count II Of The Complaint
Under Fed.R.Civ.P. 56(d) (Doc. No. 33) (“Plaintiff’s Reply Memorandum”).
By order dated September 26, 2013, the court requested further briefing as
regarding the viability of Plaintiff’s APA claim (Doc. No. 34). On November 18, 2013,
Plaintiff filed Plaintiff’s Response To September 26, 2013 Order (Doc. No. 37)
(“Plaintiff’s Response”); on November 22, 2013, Defendants filed a Memorandum of
Law in response to the court’s order (Doc. No. 38) (“Defendants’ Response”). Oral
argument was deemed unnecessary. Based on the following, Defendants’ motion to
dismiss Plaintiff’s due process claim under Count I of the Complaint as to the individual
Defendants should be GRANTED; Plaintiff’s APA claim (Count II) should be
DISMISSED sua sponte for lack of subject matter jurisdiction; alternatively, Defendants’
motion to dismiss Plaintiff’s APA claim should be GRANTED; alternatively, Defendants’
motion for summary judgment directed to Plaintiff’s APA claim should be GRANTED.
Plaintiff’s Rule 56(d) motion should be DENIED.

FACTS3
Plaintiff, Stephen L. Atterbury (“Plaintiff” or “Atterbury”), was since 2002,
assigned as a Court Security Officer (“CSO”) to the Kenneth B. Keating United States
Courthouse located within this district (“the district”) at Rochester, New York (“the

3

Taken from the pleadings and papers filed in this action.
4

courthouse”) until May 2011, when he was removed from service as a CSO at the
direction of the United States Marshal Service (“USMS”) based on its determination that
Plaintiff, on February 24, 2011, had abandoned or deserted his assigned post at the
courthouse in violation of CSO Performance Standard 31 (“Performance Standard 31").
Performance Standard 31 is one of 58 specific duties and responsibilities imposed on
CSOs under the USMS’s contract with Plaintiff’s employer, Akal Security, Inc. (“Akal”),
pursuant to which Akal hired security personnel, i.e., CSOs, to provide security services
at the courthouse (“the contract” or “the Akal contract”). Insley Declaration Exh. 1 at C18. Performance Standard 31 requires CSOs “[n]ot close or desert any post prior to
scheduled closure unless directed to do so by the supervisor. Remain at assigned post
until properly relieved or until the time post is to be secured.” Id. Under the contract,
Akal, as the contractor, is required to supervise and perform security services for the
USMS at the courthouse. The contract also authorizes the USMS’s contracting officer,
Insley (“the Contracting Officer” or “Insley”), to direct Akal to remove a CSO from
providing courthouse security services for a violation of the CSO Performance
Standards or when a CSO has engaged in actions “likely to compromise the security of
the court[ ].” Insley Declaration Exh. 1 at H-3(c), (e). The contract provides that the
“suitability” of an Akal employee to “serve as a CSO” is reserved to the USMS and that
the final decision to retain a CSO for courthouse security service is made “solely” by the
USMS through the Contracting Officer and the USMS Office of Court Security. Id. at H3(b), (c). In a case where the USMS has requested that a CSO be removed by Akal
from security service duty at the courthouse, a written response from the CSO and a
written statement of Akal’s position on the proposed removal must be provided to the
5

Contracting Officer for final decision within 15 days of the initial notice of removal. Id.
On February 24, 2011, Plaintiff was assigned to a security post near a basement
conference room in the courthouse to provide security in connection with a meeting
involving a local member of Congress which had been scheduled to commence around
1:00 p.m. Shortly after he learned from CSO Brydalski, another CSO on duty at that
time, that the scheduled meeting, for reasons not disclosed in the record, had been
cancelled, Plaintiff left his post at approximately 1:30 p.m., went to another area in the
courthouse, the USMS operations area, and informed the Acting Lead CSO, Jerrold
Risley (“Risely”), that he, Plaintiff, “was sick and was going home.” Risley Declaration ¶
5. Plaintiff also stated that he would not be in the following day, February 25, 2011. Id.
¶ 6. Plaintiff spoke to Risely because the Lead CSO, Martin Hughes, was on vacation
at that time and not present. Id. ¶ 5. Witnesses, including Risely and CSO Becky
Smith,4 described Plaintiff as appearing “upset” and “mad,” id., ¶ ¶ 10-11. Risley
attempted to “discuss the situation” with Plaintiff in the CSO office located in the
courthouse but Plaintiff had already signed out and exited the courthouse. Brydalski
stated Plaintiff appeared unwell prior to Plaintiff’s departure from his assigned post that
afternoon. Insley Declaration Exh. 3 at 2. Initially thinking Plaintiff was “joking,” Risley,
in a “jocular manner,” responded “see ya” to Plaintiff as Plaintiff passed by Risley on
Plaintiff’s way to the CSO office to secure his firearm and equipment. Risely
Declaration ¶ ¶ 7, 8. Realizing Plaintiff was “preparing to leave work,” id. ¶ 9, Risely

4

The record is unclear as to whether Smith is a CSO. Compare Risely Declaration ¶ 2 (“CSO
Becky Smith”) with Insley Declaration Exh. 3 at 2 (“I [Robert Seignious, Akal’s investigator] interviewed
Deputy United States Marshal . . . Rebecca Smith . . ..”).
6

went to the CSO office to discuss the situation with Plaintiff. Id. ¶ ¶ 11-13. Risely did
not aver Plaintiff appeared ill; instead, to Risely, Plaintiff seemed “agitated and
annoyed,” Risley Declaration ¶ 5, slamming “the door to the USMS area as he left.” Id.
¶ 12. After Plaintiff left the courthouse, Risely learned Plaintiff “was upset that he had
not been timely notified that a security request had been cancelled.” Id. ¶ 18. USMS
Senior Inspector and Protective Intelligence Investigator Christopher Pfohl (“Pfohl”),
who also serves as the USMS’s Facility Security Liaison at the courthouse, briefly
observed Plaintiff prior to Plaintiff’s departure and described Plaintiff as not appearing
or sounding sick. Pfohl Declaration ¶ 14. Risley informed Pfohl that he had not
approved sick leave for Plaintiff for that day. Id. ¶ 13. In Pfohl’s opinion, Plaintiff’s
unapproved departure “severely compromised courthouse security” because another
CSO had earlier been given approval to leave sick that same day so that Plaintiff’s
absence resulted in the courthouse security being severely understaffed. Id. ¶ ¶ 17-18.
As a result of Plaintiff leaving the courthouse, Pfohl reported to the Acting United States
Marshal for the district that Plaintiff had “abandoned his post” in violation of the
contract. Id. ¶ ¶ 19-20.
Upon being advised of Plaintiff’s unauthorized departure, Insley, as the USMS’s
Contracting Officer under the contract, requested, on March 1, 2011, Akal investigate
whether Plaintiff had violated Performance Standard 31.5 Insley Declaration ¶ ¶ 7-8.

5

Plaintiff was also investigated as to violating Akal’s Time Keeping Policy (Insley Declaration
Exh. 3 at 2-4) because he incorrectly recorded his time of departure from the courthouse; however, that
issue was administratively resolved, and was not the ground for the USMS’s removal order. See Insley
Declaration Exh. 2 (Insley Letter of March 1, 2011, to Janet Gunn, Akal’s Vice President for Human
Resources, requesting Akal investigate Plaintiff for possible violation of Performance Standard 31); Insley
Declaration Exh. 5 (Akal will “issue [Plaintiff] a Letter of Instruction regarding proper time keeping
procedures.”).
7

Akal’s investigator, Robert Seignious (“Seignious”), interviewed Plaintiff and other
witnesses, including Pfohl, and on March 17, 2011 filed a report (Insley Declaration
Exh. 3) in which Seignious found that no violation of Performance Standard 31 had
occurred and that Akal therefore would not act under the contract to discipline Plaintiff.
Insley Declaration ¶ 9-11. Believing Seignious’s interview of Pfohl to be deficient,
conducted as Seignious was about to take an awaiting cab to the airport, the USMS,
through Insley as Contracting Officer, refused to accept Seignious’s findings and
requested Akal reconsider its conclusion that Atterbury had not violated Performance
Standard 31. Insley Declaration ¶ 13. On May 3, 2011, Akal affirmed its original report
without addressing the USMS’s earlier criticism that Seignious had failed to sufficiently
interview Pfohl. Insley Declaration ¶ 14; id., Exh. 5. By letter dated May 5, 2011 (“the
May 5, 2011 Letter”), the USMS rejected Akal’s further report on the matter and, as
provided in the contract, requested Plaintiff be removed from service as a CSO at the
courthouse. Insley Declaration ¶ 15; Insley Declaration Exh. 1 H-3(b), (c), (e). The
USMS directed Akal to provide Plaintiff with a copy of the May 5, 2011 letter and inform
Plaintiff of his requested removal from CSO service under the contract, Insley
Declaration Exh. 1 H-3(d), and that Plaintiff was to submit within 15 days a written
response to the USMS’s request. Insley Declaration Exh. 6. The USMS also advised
Akal that if it opposed the USMS’s request, such disagreement should be treated as a
dispute for resolution under the Contract Disputes Act.6 Id.
In accordance with the contract, Plaintiff provided as a written response to the

6

41 U.S.C. § 7101, et seq. (“the Contract Disputes Act” or “CDA”).
8

USMS request an undated letter asserting he left the courthouse before his shift ended
because of illness, and that given the reduced number of judges then on duty in the
courthouse, Plaintiff’s departure did not adversely affect courthouse security at that
time. Insley Declaration Exh. 7. Plaintiff also asserted that in deciding to leave his duty
station and informing Risley, as acting lead CSO, Plaintiff had followed “protocol” and
“local instructions” in deciding to leave his post and depart from the courthouse. Id.
Plaintiff denied that Risley attempted to discuss Plaintiff’s decision to leave duty with
Plaintiff before Plaintiff left the courthouse. Id. On June 24, 2011, in a letter to Akal,
authored by the Insley (“the June 24, 2011 Letter”), the USMS rejected Plaintiff’s
explanation of the events as an appeal of its removal request, and directed Plaintiff be
removed from providing security service as a CSO at the courthouse under the
contract. Insley Declaration Exh. 8; Insley Declaration Exh. 1 at C-12(a); H-3(d). In the
June 24, 2001 Letter, Akal was again reminded by Insley as the Contracting Officer that
any disagreement with the USMS’s decision to remove Plaintiff from service as a CSO
was to be treated as a contract dispute under the Contract Disputes Act. Id.

DISCUSSION
1.

Plaintiff’s Bivens Action.
Plaintiff contends that Defendants’ motion to dismiss Plaintiff’s Fifth Amendment

Due Process claim against the individual Defendants should be denied because
Plaintiff has stated a claim under Bivens v. Six Unknown Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) (“Bivens”) providing a federal claim for relief. Plaintiff’s
Memorandum at 13-18. In Bivens, the Supreme Court recognized an implied cause of
9

action for damages could be maintained where federal agents violated the Fourth
Amendment. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). However, as an employee of
a federal contractor, Plaintiff has no cognizable Fifth Amendment procedural due
process claim which can be pursued as a Bivens action in this court. See Pollock v.
Ridge, 310 F.Supp.2d 519, 529 (W.D.N.Y. 2004) (employee of administrative service
contractor at local federal detention center under contract with former U.S. Immigration
and Naturalization Service had no Bivens action to assert, inter alia, her termination
violated a Fifth Amendment right to due process) (citing F.D.I.C. v. Meyer, 510 U.S.
471, 486 (1994); Robinson v. Overseas Military Sales Corp., 21 F.3d. 502, 510 (2d Cir.
1994)) (Larimer, J.) (“Pollock”). See also Aryai v. Forfeiture Support Associates, LLC,
2012 U.S. Dist. Lexis 125227, at * 59-60 (S.D.N.Y Aug. 27, 2012) (Preska, C.J.)
(“Aryai”) (employee of private contractor providing asset forfeiture services to USMS
has no cognizable First Amendment claim that may be asserted in a Bivens action). Cf.
Navab-Safavi v. Broadcast Bd. of Governors, 650 F.Supp.2d 40 (D.D.C. 2009) (“NavabSafavi”) (plaintiff’s First Amendment claims not based on conduct related to contract
between plaintiff’s employer as a contractor to defendant federal agency for translator
services not precluded as a Bivens action), aff’d on other grounds, 637 F.3d 311
(D.C.Cir. 2011). In Pollock, the court held that plaintiff could assert no Bivens claim
based on Fifth Amendment procedural due process violations because “courts have
uniformly refused to recognize that [Bivens] claims lie in the context of federal
employment,” Pollock, 310 F.Supp.2d at 529 (citing cases). Here, Plaintiff agrees, that
like the plaintiff in Pollock, he is not a federal employee. Plaintiff’s Memorandum at 18

10

n. 2 (“Atterbury is not an employee of the [federal] government.”). Judicial refusal to
extend Bivens to claims against employees of federal agencies by federal contractor
employees is necessary as to have extended Bivens to plaintiff’s due process claim in
Pollock, “would vitiate the various statutory schemes that apply to federal employment .
. . that have been carefully promulgated by Congress and ‘constructed step by step,
with careful attention to conflicting policy considerations,’” id. at 529 (quoting Bush v.
Lucas, 462 U.S. 367, 368 (1983)). Similarly, in Aryai, the court found the CDA
applicable to the contract under which plaintiff was an employee to provide asset
forfeiture services to the USMS precluding plaintiff’s Bivens action. Aryai, 2012 U.S.
Dist. Lexis 125227, at *58-59.
Plaintiff does not dispute the CDA is also applicable to Akal’s contract with the
USMS under which Plaintiff was employed. Rather, Plaintiff argues, and Defendant
does not contest, Defendants’ Memorandum at 8, Plaintiff, as Akal’s employee, has no
standing to challenge his removal from CSO service, as a violation of due process,
pursuant to the CDA. Plaintiff’s Memorandum at 14. Such removal does not terminate
a CSO from employment with Akal. Insley Declaration Exh. 5 (“this [removal] action
does not . . . prevent Mr. Atterbury from continued employment with Akal; it only
prevents him from performing service under this contract”). However, Plaintiff does not
dispute that the CDA does not bar a contractor from filing a claim on behalf of a CSO
employee involved in a contractor’s dispute with the USMS’s determination that a CSO
be removed. Here, the USMS twice reminded Akal that the USMS considered the
disagreement with Akal as to whether Plaintiff should be removed under the contract as
a dispute subject to the CDA. Insley Declaration Exh. 6 (Letter of May 5, 2011 from
11

Insley to Janet Gunn, Akal Vice-President Human Resources (“Janet Gunn”)), rejecting
Akal’s reconsideration of Akal’s finding no grounds for Plaintiff’s removal) (“If this
decision is unacceptable to Akal, the disagreement shall be considered a dispute for
purposes of the Contract Disputes Act.”) and Insley Declaration Exh. 8 (Letter of June
24, 2011 from Insley to Janet Gunn rejecting Plaintiff’s appeal of the USMS’s decision
directing his removal from CSO employment under the contract) (“If this decision
remains unacceptable to Akal, the disagreement shall be considered a dispute for
purposes of the Contract Disputes Act.”).7
Significantly, Plaintiff does not allege that the CDA is inapplicable to the
disagreement between Akal and the USMS regarding the existence of grounds as
pleaded, i.e., Plaintiff’s alleged violation of Performance Standard 31, Complaint ¶ 34,
for Plaintiff’s removal under the contract, or that Plaintiff requested Akal to seek relief
on Plaintiff’s behalf from the USMS’s determination pursuant to the CDA, specifically 41
U.S.C. § 7103(a) (“ § 7103(a)”), and that Akal refused to do so. Nor does Plaintiff
allege Akal sought to submit the matter for resolution pursuant to the CDA. Under the
CDA, Akal’s claim regarding Plaintiff’s eligibility to remain as a CSO under the contract
would, in the first instance, has been considered and decided by Insley as the
Contracting Officer. § 7103(d). Assuming an adverse determination at that stage,
further review of such a decision was available through alternative dispute resolution,
41 U.S.C. § 7103(h), by applying to the USMS’s agency board, 41 U.S.C. §§ 7104(a),
7105(e)(1)(D), or by an action filed with the United States Court of Federal Claims. 41

7

The record does not include a copy of the contract from which it could be determined that
contract expressly states that all disputes under the contract are subject to the CDA.
12

U.S.C. § 7104(b)(1). Akal could, alternatively, have sought review of an adverse
decision by the USMS’s agency board by appeal to the United States Court of Appeals
for the Federal Circuit. § 7107(a)(1)(A).
The scope of issues that may be raised under the CDA, i.e., a claim by a
contractor, such as Akal, includes, as relevant, “‘a written demand or written assertion
by one of the contracting parties seeking, as a matter of right, . . . [payment of money]
or other relief arising under or relating to the contract.’” Navab-Safavi, 650 F.Supp.2d at
68 (quoting 48 C.F.R. § 2.101 and citing cases).8 Thus, had Akal sought review of the
USMS’s decision requesting Plaintiff’s removal, as the USMS twice invited Akal to do,
at Plaintiff’s request or upon its own initiative, review of the USMS’s decision by the
Contracting Officer and either the USMS’s agency board and the Court of Federal
Claims, or by the Federal Circuit Court of Appeals was possible. See Aryai, 2012 U.S.
Dist. Lexis, 125227 at *57. As the court in Aryai found, “even though Plaintiff [the
contractor’s employee] is barred from invoking the CDA’s review provisions there is no
indication that FSA [the contractor and plaintiff’s employer] would be precluded from
doing so on plaintiff’s behalf.” Id. Moreover, in resolving such disputes under the CDA,
the Court of Federal Claims may also “order equitable relief for non-monetary claims
under the CDA upon which the government’s contracting officer has rendered a final
decision.” Dohse v. United States, 2005 WL 6112658, at *3 (Fed.Cl., June 7, 2005)
(citing 28 U.S.C. § 1491(a)(2)). Thus, in the event of a successful challenge pursuant
to the CDA, Plaintiff could have sought reinstatement as well as damages. The

8

Under indicated otherwise, all bracketed material or underlining has been added.
13

availability of such an alternative remedy is a required consideration in determining
whether to extend Bivens to an alleged federal constitutional claim arising in connection
with a federal contract, see M.E.S., Inc. v. Snell, 712 F.3d 666, 671-72 (2d Cir. 2013)
(quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007), and citing Arar v. Ashcroft, 585
F.3d 559, 571-72 (2d Cir. 2009) (en banc)); W. Radio Servs. Co. v. U.S. Forest Serv.,
578 F.3d 1116, 1120 (9th Cir. 2009), and is an important factor in guiding the exercising
of judicial authority in whether to do so. M.E.S., Inc. 417 F.3d at 671-72; W. Radio
Servs., 578 F.3d at 1120. “Such an alternative remedy would raise an inference that
Congress ‘expected the Judiciary to stay its Bivens hand’ and “refrain from providing a
new and freestanding remedy in damages.’” W. Radio Servs., 578 F.3d at 1120
(citations omitted). See also Arar, 585 F.3d at 571-72 (stating Bivens remedy is an
“extraordinary thing that should rarely if ever be applied in new contexts”).
Plaintiff’s contention that the court’s finding in Aryai that the availability of
remedies under the CDA which could have been invoked (and may still be invoked
given the CDA’s 6-year period, see 41 U.S.C. § 7103(a)(4)(A), within which to pursue
the CDA administrative and judicial review process) as a reason to deny a Bivens
action to Plaintiff was in error because, according to Plaintiff, “there is no indication that
Congress was seeking to legislate in the CDA with respect to the rights a contractor’s
employee [like Plaintiff] might have against federal agents as shown . . . [in this case],”
or, as Plaintiff further states, “that Congress made any policy judgment about the rights
of [federal] contractor’s [sic] employees . . .,” Plaintiff’s Memorandum at 17-18 (citing
Dotson v. Griesa, 398 F.3d 156, 166-67 (2d Cir. 2005), misinterprets relevant
precedent. For Bivens purposes, the issue is not, as Plaintiff suggests whether
14

Congress sought to legislate in the CDA regarding Plaintiff’s rights to seek judicial relief
against individual federal employees, the individual Defendants, for an alleged
constitutional violation, but whether the relevant legislation, as to this case the CDA,
provides an “alternative remedy” in which Akal’s, as the federal contractor, and a
CSO’s, in this case Plaintiff’s, dispute with the USMS’s removal decision under the
contract, can be resolved. As discussed, Discussion, supra, at 13, the court in Aryai
found that such potential review of Akal’s disagreement with the USMS over Plaintiff’s
removal, if initiated by Akal on Plaintiff’s behalf, at or without Plaintiff’s request, was
available under the CDA. Significantly, Plaintiff neither alleges such potential for review
was not available, nor does Plaintiff argue that Chief Judge Preska in Aryai erred in
finding such review pursuant to the CDA was available, a finding consistent with the
USMS communications to Akal that the dispute with Akal regarding Plaintiff’s removal
was a CDA contract dispute, inviting Akal to seek review pursuant to the CDA. The
relevant question for Bivens purposes is therefore not, as Plaintiff posits, whether
Congress intended in the CDA to legislate with respect to Plaintiff’s rights as a federal
contract employee, but whether Congress’s omission in failing to provide for such relief
was “‘not inadvertent.’” See M.E.S., Inc., 172 F.3d at 672 (quoting Schweiker v.
Chilicky, 487 U.S. 412, 423 (1988)).
The absence of a remedy in the hands of a federal contractor’s employee could
well reflect Congress’s judgment that creating such remedy could be unduly disruptive
of the federal contractor’s working relationship with a federal agency leaving the
question, as the CDA does, of whether to seek potential administrative and judicial
review of any dispute involving one of its employees to the sole discretion of the
15

contractor, a judgment that is neither irrational or inadvertent. The comprehensiveness
in the CDA’s scheme for addressing disputes between contractors, like Akal, and their
respective federal agency contractor, like the USMS, to a contract for services, like the
contract in this case, therefore points away from extending Bivens to Plaintiff’s due
process claim. See Aryai, 2012 U.S. Dist. Lexis 125227, at **59-60; cf. Navab-Safavi,
650 F.Supp.2d at 68 (plaintiff’s First Amendment claim based on defendant’s retaliation
against plaintiff not excludable from Bivens relief where plaintiff’s discharge related to
conduct, plaintiff’s production of a video critical of U.S. foreign policy, outside the scope
of plaintiff’s work as a translator pursuant to the employer’s contract with defendant
federal agency thus not adversely affecting the contractor’s working relationship with
the agency under the contract). Here, Plaintiff’s claim arises directly from the contract
as Plaintiff’s status as Akal’s employee and his suitability for service as a CSO, as
determined by the USMS, and his subsequent removal was indisputably resulted from
Akal’s and Plaintiff’s performance of the contracted services to be provided to the
USMS under the contract. M.E.S., Inc., 172 F.3d 675 n. 3 (noting that, in contrast to
the circumstances presented in Navab-Safavi, in M.E.S., Inc., plaintiff’s claims “related
conclusively to the performance of its government contracts.”). As such, Plaintiff’s
contention is incorrect.
Plaintiff’s contention that Plaintiff’s due process claim is outside the CDA’s
scope, Plaintiff’s Memorandum at 16 (“Atterbury is not asserting ‘claims’ cognizable
under the CDA.” (citing Federal Acquisition Regulation 2.101, 48 C.F.R. § 2.101
defining “a claim as a “demand . . . . [for] the payment of money in a sum certain”)), is
also flawed. The CDA broadly encompasses any “claim by a contractor against the
16

Federal Government relating to a contract.” § 7130 (a)(1). Thus, where the plaintiff
asserted as a Bivens action in the district court a procedural due process violation by
defendant Commissioner of Social Security based on defendant’s alleged unlawful
termination of plaintiff’s professional services contract, plaintiff’s action was dismissed
for lack of subject matter jurisdiction based on the exclusive remedies available to
plaintiff under the CDA. See Evers v. Astrue, 536 F.3d 651, 659 (7th Cir. 2008). In
Evers, the court found that as the “source” of plaintiff’s “rights” and the “form[ ] of relief”
requested (money damages) were clearly based on plaintiff’s contract, plaintiff had
alleged a claim related to plaintiff’s contract which came within the exclusive prior
review of the CDA regardless of plaintiff’s attempt to couch the claim as one alleging a
constitutional violation. Id. at 658. Affirming dismissal of plaintiff’s Bivens action, the
court stated: “[plaintiff] cannot escape the precisely drawn remedial framework outlined
by the [CDA] merely by styling his complaint as one for redress of constitutional [due
process] torts and regulatory violations rather than as one for breach of contract . . ..”
Id. (citations omitted). Thus, regardless of whether Plaintiff has requested for his
damages a “sum certain,” or for more general compensatory damages as requested in
the Complaint at 15, because the source of Plaintiff’s alleged due process right is, as
Plaintiff alleges, Complaint ¶ 48, his expectation of continuing employment which could
not exist except for his employment by Akal under the contract and given that Plaintiff’s
removal was based solely on the terms of the contract, regardless of Plaintiff’s attempt
to label it as a Bivens action for a constitutional violation, Plaintiff asserts a “claim”
“relating to” a contract with the federal government bringing it within the CDA’s
exclusive scope.
17

Plaintiff’s further contentions, Plaintiff’s Memorandum at 18, that if Bivens relief
is not extended to Plaintiff’s claim, Plaintiff is remediless, and that, if Plaintiff’s claim
was pleaded as a due process claim pursuant to 42 U.S.C. § 1983 (“§ 1983") against a
state actor, it could be entertained, of course, begs the question. Congress’s
enactment creating jurisdiction for § 1983 claims most certainly was not “inadvertent”
because it implements the Fourteenth Amendment’s extension of federal (and state
court) jurisdiction over the conduct of state actors for federal statutory and constitutional
violations. That Congress has not chosen to enact a general cause of action, similar to
§ 1983, allowing individual personal claims asserting due process violations by federal
employees under its Fifth Amendment authority does not avoid the court’s conclusion,
relying on Pollock and Aryai, that Bivens based jurisdiction should not be extended to
Plaintiff’s claim. It does not follow from Plaintiff’s argument, viz, if the alleged conduct is
actionable as a § 1983 claim, it should be actionable against federal actors under
Bivens, as this contention violates the issue-by-issue approach to the question of
extending Bivens relief required by applicable Supreme Court and Second Circuit
precedent. See, e.g., Arar, 585 F.3d at 571-72 (Bivens actions should “rarely . . . be
applied in new contexts.”). Additionally, the Supreme Court has held the fact, upon
which Plaintiff’s § 1983 argument is based, that, absent Bivens relief, a plaintiff is left
without judicial relief, similar to that available in a § 1983 action against state actors, is
no justification for extending Bivens to Plaintiff’s putative constitutional claim. See
Chilicky, 487 U.S. 421-22 (the absence of statutory relief for a constitutional violation
does not “necessarily imply that courts should award money damages” under Bivens);
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (“It [does] not matter . . . that ‘the
18

creation of a Bivens remedy would obviously offer the prospect of relief for injuries that
must now go unredressed.’”) (quoting Chilicky, 487 U.S. at 425); see also M.E.S., Inc.
712 F.3d at 672 (“the fact that such a remedial scheme does ‘not provide complete
relief for plaintiff’s warrants no different conclusion.”) (quoting Lucas, 462 U.S. at 388).
As to the instant case, notwithstanding that alleged violations of a federal contract
employee’s putative constitutional rights will, absent extending Bivens relief, be
unredressed, the court in Aryai specifically held that
the CDA represents a comprehensive attempt to regulate
the Government’s conduct with respect to its contractors
such that recognizing a Bivens action to redress violations of
the constitutional rights of those contractors’ employees that
occur in connection with a government contract would
interfere with Congress’s purposeful policy judgment not to
extend the CDA’s protections to the class of individuals that
includes plaintiff.
Aryai, 2012 U.S. Dist. Lexis 125227, at **59-60.
Significantly, this conclusion was recently endorsed by the Second Circuit. See M.E.S.,
Inc., 712 F.3d at 669-70 (citing two sister court decisions and Aryai as a district court
decision on the “preclusive effect of the CDA on Bivens claims” and stating “[w]e agree
with these courts’ analysis of the CDA, as well as with the district court’s application of
that reasoning to [plaintiff’s] Bivens claims in this case.”). Plaintiff’s contention, arguing
§1983-like congruence for a Bivens extension to the instant matter, is therefore without
merit.
Moreover, the circumstances of this case point to the presence of several
“‘special factors counseling hesitation’ before authorizing a new kind of federal
litigation.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Lucas, 462 U.S. at
19

378). First, a federal contractor like Akal has no Bivens action for claims of its alleged
constitutional rights, M.E.S., Inc., 712 F.3d at 676 (comprehensive scheme available for
contract-based disputes with federal agency precludes Bivens relief against individual
agency administrators for alleged violations of federal contractor’s constitutional rights,
i.e., free speech and substantive due process); Evers, 536 F.3d at 661 (CDA precludes
contractor’s Bivens action for procedural due process violations involved in plaintiff’s
termination as a contract provider of medical evaluation services) and, second, if
Plaintiff were a federal employee, his Bivens claim is also precluded by the Civil Service
Reform Act, 5 U.S.C. § 1101 et seq. (“CSRA”). See Lucas, 462 U.S. at 388-89 (CSRA
precludes NASA employee’s First Amendment claim); M.E.S., Inc., 712 F.3d at 666
(“Since Davis [v. Passman, 442 U.S. 228 (1979) (extending Fifth Amendment due
process to employment discrimination claims)], the Supreme Court itself has
acknowledged that ‘a Bivens action alleging a violation of the Due Process Clause of
the Fifth Amendment may be appropriate in some contexts, but not in others. FDIC v.
Meyers, 510 U.S. 471, 484 n. 9 (1994)’”). See also Dotson v. Griesa, 398 F.3d 156,
165-67 (2d Cir. 2005) (CSRA barred probation officer’s Bivens action against federal
court employer on plaintiff’s claim that his termination violated Fifth Amendment’s due
process clause). It would therefore be highly anomalous if, as an employee of a federal
contractor, Plaintiff were permitted to litigate in a Bivens action his procedural due
process claim based on the Fifth Amendment where a similar constitutional claim by his
employer would be precluded. See Aryai, 2012 U.S. Dist. Lexis 125227, at *52. As the
court in Aryai stated: “Given that Congress has long been aware that employees of

20

federal contractors are barred from suing under the CDA and yet has failed to extend
the CDA’s protections to cover individuals such as Plaintiff suggests that Congress has
not acted [or failed to act] inadvertently.” Id. Even more anomalous is that if Plaintiff
were a federal employee his constitutional claim against individual Defendants would
also be barred Lucas, 462 at 388-89, yet, by accepting Plaintiff’s Bivens claim, as a
non-federal employee, it could proceed.
In this case a third “factor,” Lucas, 463 U.S. at 378, “counseling hesitation,” id.,
“before devising such an implied [Bivens] right of action,” W. Radio Servs., 578 F.3d at
1120 presents itself which also argues against extending Bivens to Plaintiff’s Fifth
Amendment claim. Under its enabling legislation, the USMS is authorized to provide for
the protection of federal judges, court personnel, and witnesses, 28 U.S.C. § 566,
including the “administration and implementation of courtroom security of the federal
judiciary and protection of federal property and buildings.” 28 C.F.R. § 0.111(d), (e),
and (f). Given the deadly attacks on at least one federal courthouse and several
federal judges, it is necessary that the USMS have broad discretion in the selection of
CSOs, as contractor employees, to serve as reliable security personnel capable of
assisting the USMS in carrying out this heavy responsibility. Accepting Plaintiff’s Bivens
contention would require federal courts to review the adequacy of the procedures
employed by the USMS, under contracts with private services contractors, to assure
CSO compliance with performance standards established by the USMS intended to
promote court security consistent with its weighty statutory protective responsibility.
Whether the USMS’s discretion in its oversight of the CSOs’ work, including disputes
over CSO removal from such service, should be fettered by enforcing due process
21

protections as Plaintiff seeks is therefore a question more suitably addressed to
Congress, rather than to the courts whose security depends on the CSOs’ adherence to
those standards and other requirements the USMS may impose and enforce. See
M.E.S., Inc., 712 F.3d at 673-75 (noting that “Congress is in a far better position” to
evaluate potential adverse impact upon the effective administration of federal programs,
including the threat of personal liability to federal administrators that could deter such
administrators from taking remedial action ) (quoting Lucas, 462 U.S. at 389 and citing
cases). See also Benzman v. Whitman, 523 F.3d 119, 126 (2d Cir. 2008) (recognizing
“right of federal agencies to make discretionary decisions when engaged in disaster
relief efforts without fear of judicial second-guessing” as counseling against extending
Bivens action relief) (quoting In re World Trade Center Disaster Site Litig., 521 F.3d
169, 192-93 (2d Cir. 2008)). Plaintiff’s attempt to impose constitutional tort liability upon
the individual Defendants directly implicates these valid and substantial policy
concerns.
Similar to Aryai, a fourth factor “counseling hesitation” in deciding whether
Bivens-based relief should be extended to Plaintiff’s due process claim is present.
Specifically, Plaintiff does not dispute that the under “the terms of the USMS-Akal
Contract USMS retains the sole discretion . . . to determine whether a CSO has violated
performance standards . . . sufficient to remove the CSO.” Complaint ¶ 13. Plaintiff
further alleges the applicable performance standard is provided for in the contract which
also establishes the procedure for removal of a CSO based on its violation. Complaint
¶ 14. Plaintiff acknowledges that under the contract the USMS reserves the right to
remove a CSO even if, as here, Akal, as the contractor, determines the CSO did not
22

violate the Performance Standard at issue. Id. The USMS’s exclusive authority to do
so is also confirmed in a Collective Bargaining Agreement (“CBA”) between the local
CSOs’ union and Akal which specifically excludes removal of a CSO by the USMS from
the CBA’s grievance procedure. Complaint ¶ ¶ 18-20; Plaintiff’s Memorandum Exh. B
at 12, 14. Nor does the CBA’s provision that CSOs shall not be “terminated without just
cause” apply where the USMS determines to remove a CSO from working under the
contract. Complaint ¶ 19; Plaintiff’s Memorandum Exh. B at 14. In Aryai, the court
noted that Bivens is limited to “‘claims for money damages against federal officers who
abuse their constitutional authority.’” Aryai, 2012 U.S. Dist. Lexis 125227, at *60
(quoting Malesko, 534 U.S. at 67) (no Bivens action for inmate’s negligence against
private prison contractor based on contract with U.S. Bureau of Prisons to provide halfway house). The court therefore found no reason to extend a Bivens action to the
plaintiff’s, a federal contractor’s employee, First Amendment claim in that case because
the USMS’s decision to terminate plaintiff arose not from the exercise of its
“constitutional authority,” but from an exercise of the USMS’s “contractual authority,”
under the contract for asset forfeiture services between the USMS and the plaintiff’s
contractor in Aryai. Aryai, 2012 U.S. Dist. Lexis 125227, at *60. Thus in Aryai, the
court concluded that because plaintiff’s allegations demonstrated the individual
defendants’ termination of plaintiff “pursuant to his employer’s, [Forfeiture Support
Associates, LLC], contractual authority under the AFSC [Asset Forfeiture Support
Contract],” did not “directly implicate [defendants’] federal authority, this case is different
from Bivens and its progeny in that it does not involve a need to deter federal actors
from abusing that authority.” Id. at **60-61. Likewise, in this case, Plaintiff specifically
23

alleges that in requesting Plaintiff’s removal, individual Defendants were exercising their
authority exclusively pursuant to the terms of the contract to request Plaintiff’s removal,
see, e.g., Complaint ¶ 12 (“under the terms of the USMS-Akal Contract . . ., USMS
retains the sole discretion . . . to determine whether a CSO has violated performance
standards . . . promulgated by USMS sufficient to remove the CSO from the Court
Security Program.”), and not pursuant to the Constitution, statute or regulation.
Significantly, Plaintiff does not allege individual Defendants acted to remove Plaintiff
pursuant to their constitutional, statutory or regulatory, i.e., “federal,” Aryai, 2012 U.S.
Dist. Lexis 125227, at *60, authority. As such, Plaintiff’s allegations that individual
Defendants, in allegedly violating Plaintiff’s due process rights, exercised their authority
only under the contract and not the Constitution or other legislative authority, place
Plaintiff’s claims outside the holding of Bivens, and relief under Bivens sought by
Plaintiff is therefore not available. See id. Additionally, although Plaintiff’s Bivens claim
is brought against the individual Defendants, because the contract is with the USMS,
Insley’s action was, pursuant to the contract, on behalf of the USMS as an agency and
party to the contract. As such, recognizing Plaintiff’s Bivens action would not
significantly deter individual agency employees, like individual Defendants, from
violating Plaintiff’s putative due process rights by administering the terms of the
contract, a key rationale for recognizing a Bivens claim. See Malesko, 534 U.S. at 6768; Benzman, 523 F.3d at 125 (“It is important to bear in mind that the purpose for
creating a Bivens cause of action is to deter unconstitutional behavior by individual
federal officials.”) (citing Carlson v. Green, 446 U.S. 14, 21 (1980)). Thus, based on
Plaintiff’s allegations, as well as the plenary responsibility Congress has imposed on the
24

USMS for the security of federal courthouses and judges, and the concomitant need to
avoid undue interference with the efficient administrative performance of such an
important governmental responsibility, there are several factors, presented by Plaintiff’s
allegations, that counsel hesitation in extending Bivens relief to Plaintiff’s Fifth
Amendment due process claim against the individual Defendants in this case.9
That Plaintiff recognizes the vulnerability of his Bivens request is apparent from
Plaintiff’s attempt to avoid the impact of the CDA’s restraint on extending Bivens relief
to Plaintiff’s due process claim in this case by asserting that Plaintiff’s claim “does not
arise under or relate to Akal’s contract with the [USMS] but is instead based on
[Plaintiff’s] relationship with the [USMS].” Plaintiff’s Memorandum at 16. This
contention is without support in the record. For example, the Complaint acknowledges
Plaintiff was employed by Akal, Complaint ¶ 4, that Akal and the USMS contracted for
security service at the courthouse, id. ¶ ¶ 11-12, that under the contract the USMS
retained “sole discretion” to approve the hiring of a CSO to determine whether a CSO
violated performance standard, id., ¶ ¶ 12, 14, and the CSOs’ collective bargaining
agreement with Akal expressly excluded removal of a CSO at the USMS’s direction
from its prohibition against discipline or termination without just cause in the case of a
removal or termination at the USMS’s direction. Id. ¶ 19; Plaintiff’s Memorandum Exh.

9

Although some courts consider whether the availability of judicial review pursuant to the APA
constitutes a special factor in extending Bivens to particular claims, see, e.g., Navad-Safavi, 650
F.Supp.2d at 69-73, given that in M.E.S., Inc. the Second Circuit gave no indication that APA availability
was relevant to the Bivens issue in that case this court finds not reason to address the question.
Additionally, as discuss, Discussion, infra, at 45-61, the APA has no application to Plaintiff’s case in any
event.
25

B at 12, 14.10 As noted, Discussion, supra, at 10-11, Plaintiff concedes he is not a
federal employee (citing Plaintiff’s Memorandum at 18 n. 2). There is, therefore, no
basis to support Plaintiff’s suggestion that a CSO’s “relationship,” if any, with the USMS,
or, for that matter, the individual Defendants, is based on anything other than the
contract. Simply, Plaintiff has no “relationship” with the USMS sufficient to support his
due process claim.
Nor does Plaintiff’s allegation that the USMS was Plaintiff’s employer and that
Plaintiff was the “functional equivalent of a federal employee for purposes of due
process protection,” Complaint ¶ 47, provide any support for Plaintiff’s attempt to avoid
the conclusion that Plaintiff’s status was solely that of a federal contractor’s employee.
Plaintiff cites to no authority for this assertion and prevailing caselaw explicitly rejects it.
See Bernabe v. Office of Personnel Mgmt, 198 Fed.Appx. 961, 965 (Fed.Cir. 2006) (the
sine qua non for federal employee status requires an appointment by an authorized
appointing authority, rejecting the argument that Plaintiff was a “functional equivalent of
a federal employee” regardless of extent of plaintiff’s supervision as a stevedore by a
company under contract with U.S. Navy for stevedore services) (citing 5 U.S.C. §

10

Article 4. All discipline shall be subject to the grievance and arbitration procedures, except for
those issues involving USMS rights under the contract between the USMS and the Company.
Government directives and any claimed violation of this Agreement with results from those directives, are
not subject to the grievance or arbitration procedure. Verbal directives will be documented in accordance
with company policy. Plaintiff’s Memorandum Exh. B. at 12.
Section 8.1. No employee, after a completion of his or her probationary period, shall be
disciplined or terminated without just cause. It is agreed by the parties that in instances when the
employee is removed from working under the USMS Contract by the USMS, or when the employee’s
authority to work as a Court Security Officer under the USMS Contract is otherwise denied or terminated
by the USMS, or the Employee no longer satisfies the USMS’s qualifications for his or her position, the
Employee may be terminated without recourse to the procedures under the Agreement and the Company
shall be held harmless from any lawsuits resulting by the employee and the Union. Plaintiff’s
Memorandum Exh. B at 14.
26

2105(a) (“ § 2105(a)”)). See also Bevans v. Office of Pers. Mgmt., 900 F.2d 1558, 1561
(Fed.Cir. 1990) (“[E]mployment contracts did not make the individuals [federal]
‘employees,’ because they had not been appointed in the civil service.’”); Watts v.
Office of Pers. Mgmt., 814 F.2d 1576, 1578 (Fed.Cir. 1987) (“the requirement that the
‘employee’ be ‘appointed’ excludes one whose services are retained merely by
contract.”). Plaintiff does not allege he was ever appointed to the federal civil service as
a USMS employee by a person with authority to do so as required under § 2105(a).
Plaintiff is therefore not a federal employee; Plaintiff’s allegation that as a CSO he was
nonetheless the “functional equivalent” of a USMS employee is illusory.
Plaintiff’s further contention that the court in Aryai erred in finding that the CDA
excluded federal contractor employees from its protections and that extending Bivens to
the constitutional claims of such employees would “interfere” with Congress’s
“purposeful policy judgment,” Plaintiff’s Memorandum at 17 (quoting Aryai, 2012 U.S.
Dist. Lexis 125227 at *59), is also without merit. See M.E.S., Inc., 712 F.3d at 673
(noting that the CDA represents a comprehensive “‘remedial scheme’” which
“‘provide[s] fiscal and exclusive resolution of all disputes arising from government
contracts’ . . . within its ambit.”) (quoting A&S Council Oil Co. v. Nader, 56 F.3d 234,
241 (D.C. Cir. 1995), and citing cases). Based on this finding, the Second Circuit in
M.E.S., Inc. stated “[plaintiff] nevertheless insists that constitutional claims against
federal employees in their individual capacities fall outside the purview of a statute [the
CDA] that affords relief only against the federal government itself. Supreme Court
precedent defeats this argument.” Id. (citing and discussing Lucas and Chilicky). As in
M.E.S., Inc. where the Second Circuit squarely held that a federal contractor, like
27

Plaintiff’s employer Akal, may not, given the CDA’s comprehensive scheme, assert a
Bivens claim for an alleged constitutional violation against a federal agency
administrator, like the individual Defendants, it follows that the federal contractor’s
employee, like Plaintiff, also may not do so. Plaintiff’s theory that a federal contractor’s
employee has such a cause of action but that his contractor employer does not would, if
accepted, create an irreconcilable anomaly uncountenanced by Supreme Court or
Second Circuit precedent. Plaintiff’s Bivens claim alleging due process violations
against individual Defendants (Count I) must therefore be DISMISSED.

2.

Qualified Immunity.
Even assuming individual Defendants are properly considered as federal actors

who directed Plaintiff’s removal under federal law, in the exercise of their statutory or
constitutional authority, and that the Bivens cause of action should be extended to
Plaintiff’s due process claim, the individual Defendants are entitled to qualified
immunity. “A federal executive official is entitled to invoke qualified immunity as a
defense against a Bivens action.” Lombardi v. Whitman, 485 F.3d 73, 78 (2d Cir. 2007)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The individual Defendants are
not liable for conduct that “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818.
“Qualified immunity analysis in Bivens suits is the same two-step analysis applied in §
1983 suits against state actors.” Lombardi, 485 F.3d at 78 (citing Wilson v. Layne, 526
U.S. 603, 608 (1999)); see also Camreta v. Greene, __ U.S. __, 131 S.Ct. 2020, 203132 (2011) (approving two-step decision process in deciding qualified immunity defense).
28

“First, ‘[t]aken in the light most favorable to the party asserting the injury, do the facts
alleged show that . . . [federal executive official’s] conduct violated a constitutional
right?’” Lombardi, 485 F.3d at 78 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
“Second, was the right so clearly established that a reasonable government official
would have known that . . . [his or her] conduct violated a constitutional right ‘in light of
the specific context of the case, [and] not as a broad general proposition [?]’” Id. “To be
clearly established, the ‘contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violated that right.’” Bordeaux v. Lynch,
958 F.Supp. 77, 86-87 (N.D.N.Y. 1997) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). A case directly on point is not required, “but existing precedent must have
placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, __
U.S. __, 131 S.Ct. 2074, 2083 (2011) (citing cases). Specifically, in assessing “whether
the alleged action violated clearly established law,” the “‘inquiry turns on the objective
legal reasonableness of the action, assessed in light of the legal rules that were clearly
established at the time it was taken.’” Dumpson v. McGinnis, 348 Fed.Appx. 658, 659,
2009 WL 329419, at *1 (2d Cir. Oct. 13, 2009) (quoting Pearson v. Callahan, 555 U.S.
223, 244 (2009)). “A right may be clearly established through Supreme Court
precedent or the caselaw of this circuit.” Dumpson, 348 Fed.Appx. at 659 (citing
Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990). The court thus turns to the
threshold question “whether the Complaint alleges the violation of a constitutional right,”
Lombardi, 485 F.3d at 78, specifically, in this case, whether individual Defendants,
particularly Insley, acting as the USMS’s Contracting Officer, in requesting Akal to
remove Plaintiff from security duty as a CSO at the courthouse, violated Plaintiff’s right
29

to procedural due process as protected by the Due Process Clause of the Fifth
Amendment.
To sustain an alleged violation of procedural due process the claim “must show
that plaintiff enjoyed a protected interest and defendant’s deprivation of that interest
occurred without due process of law.” Taylor v. Rodriguez, 238 F.3d 188, 191 (2d Cir.
2001). If “protected interests are implicated,” then a court must decide “what process is
due.” Ingraham v. Wright, 430 U.S. 651, 672 (1977) (quoting Morrissey v. Brewer, 408
U.S. 471, 481 (1972)). See also Rosu v. City of New York, 742 F.3d 523, 526 (2d Cir.
Feb. 7, 2014) (“due process claim entails a two-part inquiry to first ‘determine whether
[plaintiff] was deprived of a protected interest,’ and, if so, ‘what process was his due.’”)
(quoting Logan v. Zimmerman Brush, Co., 455 U.S. 422, 428 (1982)). “‘[D]ue process
is flexible and calls for such procedural protections as the particular situation
demands.’” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)). See also Landon v. Plasencia, 459 U.S. 21, 34
(1982) (“The constitutional sufficiency of procedures provided in any situation, of
course, varies with the circumstances.”); Weinstein v. Albright, 261 F.3d 127, 134 (2d
Cir. 2001) (“The Due Process Clause does not demand that the government provide
the same kind of procedures for every deprivation of a property interest.”).
As relevant to the instant case, a protected interest sufficient to invoke the Due
Process Clause may be based on governmental employment, compare Cleveland Bd.
of Edu. v. Loudermill, 470 U.S. 532, 538 (1985) (employee security guard of local
school board discharged for dishonesty on employment application entitled to
pretermination hearing) (“Loudermill”) with Segal v. City of New York, 459 F.3d 207,
30

211 (2d Cir. 2006) (probationary teacher hired by city school board had no
“constitutionally protected property interest in her employment” and therefore had “no
due process claim based on any property interest”), or where plaintiff claims a contract
of employment with a governmental entity creates an expectation of continued
employment. See, e.g., Stein v. Bd. of City of New York, Bureau of Pupil Transp., 792
F.2d 13, 17 (2d Cir.) cert. denied, 479 U.S. 984 (1986). However, a plaintiff’s subjective
expectation of continued employment, “if unsupported by state law or an understanding
among the parties,” in a “contract,” is insufficient to give rise to a protected property
interest. Caraccilo v. Village of Seneca Falls, 582 F.Supp.2d 390, 397, 402 (W.D.N.Y.
2008) (citing McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir.
2006) (“To state a deprivation of property claim under the Fifth and Fourteenth
Amendments, a plaintiff ‘must have more than a unilateral expectation . . .. He must
instead have a legitimate claim of entitlement . . ..’” (quoting Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972)).
Here, Plaintiff concedes he is not a federal, specifically a USMS employee. See
Plaintiff’s Memorandum at 18 n. 2 (“Atterbury is not an employee of the government.”)
Notwithstanding this concession, Plaintiff alleged that based on the USMS’s control
over the terms and conditions of a CSO’s employment under the contract, the USMS
was Plaintiff’s employer because “[he] Atterbury was the functional equivalent of a
public employee for the purposes of due process protection,” Complaint ¶ 47.
However, such allegation is wholly without legal foundation, see Discussion, supra, at
26-27, and is moreover, negated by Plaintiff’s further allegations that as a CSO Plaintiff
was a member of the CSOs’ union, the United States Court Security Officers
31

(“USCSO”), the “exclusive collective bargaining representative for CSOs employed by
Akal,” Complaint ¶ 15, and Plaintiff’s argument that as an Akal employee Plaintiff could
not be disciplined or terminated except for just cause. Complaint ¶ ¶ 17, 21-23, 25.
More specifically, according to Plaintiff, he was at all relevant times an employee of
Akal, not the USMS which was not a party to the CBA, and Plaintiff does not allege
otherwise. See Complaint ¶ 16 (“USCSO and Akal were . . . parties to . . . the CBA.”);
Complaint ¶ 21 (“Akal employed Atterbury as a CSO.”); Complaint ¶ 22 (Since
September 2002 . . . Atterbury has been a member of the USCSO.”); Complaint ¶ 23
(“The terms of Atterbury’s employment by Akal are governed by the CBA.”); Complaint
¶ 23 (“[Plaintiff] understood that Akal could not discharge him from employment unless
it had just cause to do so.”).
By contrast, in Loudermill, plaintiff had been hired by defendant school district
and was therefore, under Ohio law, a “classified civil servant” protected against
termination unless discharged for cause. Loudermill, 470 U.S. at 535. Here, Plaintiff
does not allege any comparable status legally cognizable under applicable federal civil
service law, or any other relevant statute or regulation endowing Plaintiff with the status
of a public employee. Accordingly, Plaintiff’s reliance upon Loudermill for Plaintiff’s
contention that he held a reasonable expectation in continued employment provides no
support for Plaintiff’s claim that his protected property interest was violated by the
individual Defendants in requesting Plaintiff’s removal from service as a courthouse
CSO. Plaintiff’s Memorandum at 19-20. As noted, Discussion, supra, at 31, a
subjective expectation in continued employment is insufficient to establish a protected
interest for due process purposes. Plaintiff’s allegation that “[t]he CSO Performance
32

Standards provided Atterbury with a legitimate expectation of continued employment in
the Court Security Program, and thus a property and liberty interest in such continued
employment . . .,” Complaint ¶ 48, is negated by the fact that Plaintiff acknowledges the
USMS’s exclusive authority under the contract to determine whether a CSO violated
any Performance Standard requiring the CSO’s removal, Complaint ¶ ¶ 12, 14, and is
thus insufficient to support a finding that Plaintiff held a protected interest in continued
employment as a CSO under the contract. Additionally, contrary to Plaintiff’s allegation,
the extent of USMS “control” over Plaintiff’s hiring and removal, Complaint ¶ 47,
provides no additional basis for Plaintiff’s asserted property interest. Nor does Plaintiff
point to any legal ground upon which employment with the federal government can exist
given the unequivocal reservation to the USMS, under the contract, of the absolute
authority, recognized by the CBA, to direct removal of a CSO for violation of a
Performance Standard as solely determined by the USMS. As discussed, Discussion,
supra at 26-27, under established federal law there is no such thing as a “functional
equivalent of [federal] employment” based on a federal agency’s control or even
supervision of a federal contractor employee like Plaintiff as Plaintiff alleges – either a
person is a duly appointed employee or they are not. See Bernabe, 198 Fed.Appx. at
964-65 (citing Bevans, 900 F.2d at 1561; and Watts, 814 F.2d at 1578). Thus, even
assuming the truth of Plaintiff’s allegations regarding Plaintiff’s supposed employment
relationship with the USMS, Plaintiff’s alleged violation of his right to procedural due
process cannot be predicated on the proposition that Plaintiff, as alleged, enjoyed a
protected property right based on federal employment, either as an employee in fact, or
as a “functional equivalent” thereof, of the USMS.
33

Additionally, Plaintiff’s reliance on the assertion that Plaintiff had a “reasonable
expectation of continued employment” as a CSO because the CBA protected Plaintiff
as an Akal employee from discipline or termination without just cause, Complaint ¶ 48,
is also insufficient upon which to predicate Plaintiff’s due process claim as Plaintiff does
not allege the USMS was a party to the CBA (which it indisputedly was not),
acknowledges that the USMS retained the “sole discretion” to remove a CSO where it
determined a CSO violated a Performance Standard, Complaint ¶ 12, even where Akal
determined otherwise, Complaint ¶ 14, and further acknowledges that the “just cause”
protection to a CSO afforded by the CBA did not apply in the case of such removal.
Complaint ¶ 19 (“the termination of a CSO resulting from the USMS’ [sic] removal of the
individual from the Court Security Program is not subject to the contractual grievance
process [of the CBA]’). As such, the CBA provides no basis for Plaintiff’s allegations
that he was a party to a contract creating a reasonable expectation of continued
employment as a CSO at the courthouse. See Ciambriello v. County of Nassau, 292
F.3d 307, 314, 317-18 (2d Cir. 2002) (a collective bargaining agreement (“CBA”) may
provide protected property interest in continued employment where employment benefit
at issue – promotion – is provided for and protected by the CBA). In contrast, in this
case, the CBA specifically excludes any interest by a CSO in continued employment,
i.e., the employment benefit at issue, where removal is initiated by the USMS pursuant
to the contract. See Atterbury Declaration Exh. B at 12 (Art. 4 Government Authority);
(Art. 8 Discipline), Sec. 8.1.11 That Plaintiff does not allege he attempted to file a

11

See Discussion, supra, at 26, n. 10.

34

grievance in connection with his removal under the CBA, or requested the assistance of
the USCSO to pursuant arbitration of the removal under the CBA, further demonstrates
that the CBA affords no protection with respect to his removal. In fact, as noted,
Plaintiff specifically admits “[t]he termination of a CSO resulting from the USMS’s
removal of the individual from the Court Security Program is not subject to the
contractual grievance process [under the CBA].” Complaint ¶ 19. As such, Plaintiff has
no protected interest in continued employment based on the CBA subject to procedural
due process protection.
Moreover, the Akal contract does not create a protected interest supporting
Plaintiff’s entitlement to continued employment with Akal based on an employment
contract. In Stein, the Second Circuit found that plaintiff’s contract with the plaintiff’s
employer, a company providing school bus transportation services to a local school
board, supported plaintiff’s § 1983 claim of “entitlement to continued employment” and,
correspondingly, Fourteenth Amendment due process protection against defendant
school board sufficient to submit plaintiff’s claim of procedural due process violations
based on his termination to the jury. Stein, 792 F.2d at 16 n. 3. In contrast, in this
case, Plaintiff alleges no similar employment contract existed between himself and
Akal, and, as discussed, Discussion, supra, at 23, 25, 34, the CBA specifically excludes
removal decisions of CSOs by the USMS, as occurred in this case, from its coverage
and protections. Thus, the allegations, as pleaded by Plaintiff, do not demonstrate the
existence of a protected interest, particularly any property interest based on contract or

35

otherwise, to which Plaintiff’s asserted due process protection can attach; to the
contrary, Plaintiff’s allegations negate Plaintiff enjoys any such property interest or
protection. Moreover, Plaintiff’s contention that individual Defendants’ duty to provide
Plaintiff with a more detailed notice of the reasons for his removal based on “clearly
established” Second Circuit caselaw, Plaintiff’s Memorandum at 20, fails because there
is no such caselaw.
As discussed, Stein’s recognition of a protected interest based on employment
contract is wholly inapplicable in this case because, unlike the facts in Stein, Plaintiff
does not allege any contract existed between himself and Akal or the USMS, the CBA
provides Plaintiff with no protection against removal at the USMS’s request, Plaintiff has
conceded that he is not a USMS employee, and there is no legal ground to support
Plaintiff’s assertion that the was a “functional” USMS employee. Plaintiff’s reliance on
Zynger v. Dep’t. of Homeland Security, 370 Fed.Appx. 253, 255 (2d Cir. 2010
(“Zynger”); Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir. 2010) (“Taravella”);
and Holmes v. Town of East Lyme, 866 F.Supp.2d 108, 129 (D.Conn. 2012)
(“Holmes”), Plaintiff’s Memorandum at 20, to support Plaintiff’s contention that Plaintiff’s
status as a CSO hired by Akal created a property interest to which the right to
procedural due process under the Fifth Amendment attached, is misplaced. In each
case, unlike the instant case, the plaintiff was an employee of a federal agency or
municipality, Zynger (the Transportation Security Administration); Taravella (contract
employee with defendant Town); Holmes, (town police officer). Thus, while recognizing
that public employment under a contract enjoys some degree of due process
protection, Taravella, 599 F.3d at 134, the Second Circuit found the relevant contract in
36

that case ambiguous regarding whether plaintiff was an at-will employee and therefore
granted the defendant responsible for plaintiff’s discharge, qualified immunity. Here,
Plaintiff, in contrast to Zynger, is not a federal employee or, as in Taravella, a party to
any employment contract with a public body, nor any contract with Akal or the USMS,
and the CBA unambiguously excludes from its protections CSO removals at the behest
of the USMS. Zynger, Taravella and Holmes are therefore inapposite.
Plaintiff’s citation to Wilson v. MVM, Inc., 475 F.3d 166 (3d Cir. 2007) (“Wilson”);
Int’l Union; United Gov’t. Sec. Off. v. Clark, 706 F.Supp.2d 59 (D.D.C. 2010) (“Clark”);
and Leitch v. MVM, Inc., 538 F.Supp. 891 (E.D.Pa. 2007) (“Leitch”), Plaintiff’s
Memorandum at 21 n. 4, is equally unavailing. In Wilson the court found, relying on
Stein, plaintiffs, CSOs, enjoyed procedural due process protection against medically
based discharge upon “just cause,” as provided in the relevant CBA. 475 F.3d at 170.
Unlike the case at bar, in Wilson there is no indication that CSO removals based on
misconduct, as here, or medical disqualification, the specific issue in Wilson, were
excluded from the CBA’s just cause prerequisite for discharge. Moreover, the court’s
reliance on Stein appears misplaced as in Stein, unlike the facts in Wilson, the Second
Circuit held that plaintiff was protected by the generalized good cause for discharge
provision in “his contract with his private employer.” Wilson, 475 F.3d at 177 (citing
Stein). In the instant case, by contrast, the CBA specifically exempts CSO removals at
the USMS’s direction from the CBA’s good cause for discharge requirement. Thus, it is
unclear exactly on what factor the court in Wilson predicated its finding that there
existed, in that case, a “private employment contract” which “created a constitutionally
protected property interest.” Id. at 178. Additionally, while the court noted plaintiffs had
37

asserted their due process claim pursuant to 42 U.S.C. § 1983, Wilson, 475 F.3d at
176, a cause of action inapplicable to a claim of constitutional violations against federal
officials absent evidence of connivance with state actors, see Beechwood Restorative
Care Center v. Leeds, 436 F.3d 147, 154 (2d Cir. 2006) (“federal actor may be subject
to Section 1983 liability where there is evidence that the federal actor was engaged in a
‘conspiracy’ with state defendants.”) (citing Kletschka v. Driver, 411 F.2d 436, 448-49
(2d Cir. 1969)), the court did not address whether plaintiffs’ claim could proceed under
Bivens, as Plaintiff alleges in this case. Accordingly, Wilson is distinguishable and the
undersigned, for the reasons mentioned, respectfully declines to follow the Third
Circuit’s analysis in Wilson on the issue of whether Plaintiff has pleaded a protected
property interest.12
In Clark, while acknowledging the relevant CBA, as in the present case, excluded
from its just cause protection USMS removals of a CSO, Clark, 706 F.Supp.2d at 61 n.
2 (“Just cause shall include any action or order of removal of an employee from working
under the contract [with Akal, the Plaintiff CSO’s employer].”), the court nevertheless
found, based on the existence of the CBA and other labor-management agreements in
that case, that plaintiff retained a residual property interest in continued employment
sufficient to support plaintiff’s claimed due process protection, “subject to the
limitations” of the CBA. Clark, 706 F.Supp.2d at 67. Because this conclusion conflicts
with the Second Circuit’s requirement that to provide a basis for a due process claim a
CBA must actually extend protection against the challenged termination, see Walker v.

12

See Schweizer v. Trans Union Corp., 136 F.3d 233, 237 (2d Cir. 1998) (“The district court
properly considered itself not bound by [ ], a case from another circuit.”).
38

City of Waterbury, 361 Fed.Appx. 163, 166 (2d Cir. Jan. 13, 2010 (observing no due
process violation where CBA denying firefighter’s vested pension benefits was not
arbitrary, outrageous, or conscience-shocking); Ciambriello, 292 F.3d at 317-18 (CBA
may create protected interest if benefit at issue is protected by CBA), Clark is also
inapposite, and therefore will not be followed in this case. As Leitch, 538 F.Supp.2d at
897, held, based on Wilson, the plaintiff CSO possessed a protected property interest,
for the same reasons stated as to Wilson, Discussion, supra, at 37-38, Leitch is also
inapposite, and will not be followed on the issue as to whether Plaintiff has
demonstrated a sufficient protected property interest as a predicate for Plaintiff’s due
process claim. As such, Plaintiff has not plausibly, Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (“‘only a complaint that states a plausible claim for relief survives a motion to
dismiss . . ..’” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)), alleged an
underlying property interest as a required predicate for Plaintiff’s due process claim, cf.
Cancel v. New York City Human Resources Administration/Department of Social
Services, 527 Fed.Appx. 42, 44-45 (2d Cir. May 23, 2013) (sustaining complaint
alleging defendant violated written contract for employment, giving rise to property
interest, supports plaintiff’s due process claim), and individual Defendants are entitled
to qualified immunity even if a Bivens action for Plaintiff’s due process claim was
approved. See Lombardi, 485 F.3d at 78; see also Custodio v. Parker, 65 F.3d 178,
1995 WL 523123, at *2 (10th Cir. 1995) (table) (physician’s services contract with the
U.S. Army hospital terminable at “convenience” of government, equivalent to at-will
employment, created no protected property interest to support plaintiff’s alleged due
process violations).
39

Further, even if Plaintiff’s allegation that because of the extent of control
exercised by the USMS over the CSO security functions, including hiring, supervision,
and removal under the Akal contract, colorably established Plaintiff had a protected
property interest or that Plaintiff was a functional USMS employee affording due
process protection against arbitrary removal, Plaintiff points to no Supreme Court or
Second Circuit caselaw clearly supporting such propositions when individual
Defendants requested Plaintiff’s removal. As such, Plaintiff’s right to due process can
hardly be said to have been clearly established as required to defeat qualified immunity
under the circumstances presented here. See Dumpson, 348 Fed.Appx. at 659. Thus,
even further assuming the process used by individual Defendants afforded Plaintiff in
accordance with the contract was, as Plaintiff alleges, arguably, because of insufficient
notice and an opportunity to challenge his removal, deficient, the record does not
support it was objectively unreasonable for individual Defendants to employ those
procedures in removing Plaintiff as a CSO under the contract, given the dearth of
sufficiently analogous Supreme Court or Second Circuit caselaw indicating Plaintiff held
a protected interest in his employment with Akal which was violated by the inadequate
process afforded to Plaintiff. Accordingly, individual Defendants are qualifiedly immune
from Plaintiff’s claims even if Bivens relief were to extended to Plaintiff’s Fifth
Amendment Due Process Clause claim under Count I.
Alternatively, assuming Plaintiff has alleged a protected interest, the procedures
followed by the individual Defendants in directing Plaintiff’s removal were not clearly
established to be deficient under the Due Process Clause. More specifically, Plaintiff
contends that the procedure used by individual Defendants to effect Plaintiff’s removal
40

as a CSO was constitutionally deficient because it failed to provide Plaintiff with notice
of “the reasons” for removal or “the evidence Insley relied upon” in reaching that
determination, and failed to provide Plaintiff with a “meaningful opportunity to respond.”
Plaintiff’s Memorandum at 19-20. For due process purposes, the sufficiency of the
challenged procedures is determined by applying the multi-factor weighing process
established in Mathews. The factors to be weighed include the nature of “the private
interest affected by the official action, 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 . . . the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Mathews, 424 U.S. at 334. Courts
recognize that where this test is applicable to claims of a violation of procedural due
process, it will be difficult to find that the due process deficiency in the particular
process challenged by a plaintiff had been clearly established. See Connecticut ex rel.
Blumenthal v. Crotty, 346 F.3d 84, 104 (2d Cir. 2003); Brewster v. Bd. of Educ., 149
F.3d 971, 973 (9th Cir. 1998) (citations omitted); Viehdeffer v. Tryon, 2012 WL 3746372,
at *7 (W.D.N.Y. Aug. 28, 2012). As the court in Brewster stated
[B]ecause procedural due process analysis essentially boils
down to an ad hoc balancing inquiry, the law regarding
procedural due process claims “can rarely be considered
‘clearly established in the absence of closely corresponding
factual and legal precedent.’”
Brewster, 149 F.3d at 973 (citations omitted).
Here, the record shows Plaintiff was advised that violations of the Performance
Standards could result in indefinite suspension, Plaintiff’s Memorandum Exh. A; Akal’s
41

investigator interviewed Plaintiff regarding the USMS’s complaint that Plaintiff violated
Performance Standard 31, Insley Declaration Exh. 3 at 1 (indicating Plaintiff was aware
of the USMS’s complaint and gave Seignious a full version of the events as Plaintiff
recalled them; Insley Declaration Exh. 3 at 1, and Exh. 7, a copy of Insley’s May 5,
2011 letter to Akal stating that USMS did not concur in Akal’s investigative conclusions,
specifically, that Plaintiff had, on February 24, 2011, violated Performance Standard 31,
which included a request to provide Plaintiff with a copy of the letter pursuant to the
contract (“Insley’s May 5, 2011 Letter”), was provided to Plaintiff, Insley Declaration ¶
16; Plaintiff acknowledged receipt of Insley’s May 5, 2011 Letter, id.; Insley Declaration
Exh. 7 at 1 (“I hereby exercise my option to appeal the decision to remove me . . . as
stated in the . . . correspondence dated May 5th, 2011,” and provided a written
statement disputing he had violated Performance Standard 31, explaining Plaintiff’s
version of the scenario leading to his decision to leave the courthouse on February 24,
2011. Id.
In Viehdeffer, plaintiff, a detention officer employed by a contractor with the U.S.
Immigration and Customs Enforcement Agency, was provided with notice of the reason
for her discharge based on plaintiff’s failure to timely report an arrest, and was given an
opportunity to deny the charge and provide a description of the facts at issue.
Viehdeffer, 2012 WL 3746372, at *8. Because the plaintiff could not point to any
Supreme Court or Second Circuit authority clearly establishing that under the multifactor analysis established by Mathews, she was entitled to more process than she
received, the court found qualified immunity applied to defendant’s discharge of
plaintiff. Id., at *10. See also Wilson, 475 F.3d at 1787-79 (finding plaintiffs’ receipt of
42

fair notice of their medical disqualification with an opportunity to respond and provide
opposing information was sufficient process under Mathews given the government’s
interest in maintaining courthouse security with qualified CSOs and that a “more
rigorous process would not enhance the accuracy of the medical qualification process”);
cf. Stein, 792 F.2d at 18 (declining to determine whether the process received by
plaintiff prior to termination, viz., verbal notice to appear for a hearing, and opportunity
to respond to written accusations by witnesses – school bus chaperones – of plaintiff’s
indecent exposures and other misconduct, was sufficient to establish qualified immunity
because defendant waived the defense by failing to move timely to dismiss case before
trial on that ground). Plaintiff points to no Second Circuit case holding on reasonably
similar facts that more procedural protection, such as Plaintiff asserts, should have
been provided, was required, including an opportunity to refute Pfohl’s opinion that
Plaintiff’s abrupt departure compromised security at the courthouse, Plaintiff’s
Memorandum at 6, or to challenge on what basis Pfohl concluded Plaintiff was not sick.
Id. at 7. Nothing in Stein, based on materially different facts, provides clearly
established procedural requirements involving removal by the USMS of a CSO as a
federal contractor’s employee under the circumstances presented in the case at bar. It
is therefore “apparent” under Mathews that no additional process was required to avoid
the risk of an erroneous decision that Plaintiff had no protected property interest to
which the right, as asserted by Plaintiff, to such additional process, as Plaintiff requests,
attached. See Viehdeffer, 2012 WL 3746372, at *10 (“‘This is not to say that an official
action is protected by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in light of pre-existing law the
43

unlawfulness must be apparent.’”) (quoting Anderson, 483 U.S. at 640) (internal citation
omitted), and “‘[W]hen the law requires a balancing of competing interests, it may be
unfair to charge an official with knowledge of the law in the absence of a previously
decided case with clearly analogous facts.’”) (quoting Borucki v. Ryan, 827 F.2d 836,
848-49 (1st Cir. 1987) (citing Davis v. Scherer, 468 U.S. 183, 192-93 n. 10 (1984)). As
with the court’s finding in Viehdeffer, that it was unclear that more rigorous process was
required to assure the defendants accurately determined the plaintiff had violated an
arrest disclosure requirement as a ground for termination, Viehdeffer, 2012 WL
3746372, at *10, here it is similarly unclear that more specification of the grounds for
Plaintiff’s removal and a greater opportunity for Plaintiff to challenge Pfohl and Risely’s
recollections, as well as CSO Smith’s, of the events was required. Accordingly, clearly
established and applicable caselaw at the time of Plaintiff’s removal does not support a
finding that individual Defendants acted in an objectively unreasonable manner in the
process used to remove Plaintiff as a CSO from security service at the courthouse. In
any event, balancing that Plaintiff lacked a protected interest in continuing employment
as a CSO against the USMS’s strong interest in maintaining courthouse security with
reliable CSOs and the unlikelihood that given Pfohl, Risely and Smith’s unequivocal
descriptions of Plaintiff’s conduct, Facts, supra, at 5-7, an enlarged opportunity to
challenge their descriptions, as Plaintiff requests, would have resulted in a different
determination by the USMS, Mathews, 424 U.S. at 334, it is reasonable to conclude
that Plaintiff received all the process that was due. See James v. Golden, 1986 WL
15522, at *3 (D.D.C. Nov. 26, 1986) (without addressing whether Bivens action
available for plaintiff’s due process claim and “[a]ssuming” plaintiff, security guard
44

employed by security services company under contract with GSA had property interest
in continued employment, plaintiff’s termination of eligibility under contract based on
investigative reports by federal and local police and contractor regarding plaintiff’s
improper discharge of firearm including right to appeal, and request a hearing, of GSA
decision to terminate plaintiff’s eligibility, provided sufficient process (citing Roth, 408
U.S. 564 (1972)). In this case, nothing in the Akal contract or the CBA preclude a
request by Plaintiff for a hearing as part of Plaintiff’s appeal to the USMS on the issue
of Plaintiff’s removal, id. and the record is silent as to whether Plaintiff requested one or
may still do so. As such, Defendants’ motion to dismiss should be GRANTED on this
ground even if Plaintiff’s Bivens claim were to be allowed.

3.

Plaintiff’s APA Claim.
In Count II of the Complaint Plaintiff asserts Defendant USMS’s action in

directing, pursuant to the contract, Plaintiff’s removal as a CSO violated the
Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“the APA”) specifically 5 U.S.C.
§706(2)(A), (B), and (D) (“§ 706__”). Under § 706 the court may hold and set aside an
agency action as unlawful if it finds the action arbitrary and capricious, an abuse of
discretion, or otherwise unlawful (§ 706(2)(A)), contrary to a constitutional right, power,
privilege or immunity (§ 706(2)(D)), or without observance of procedure required by law
(§ 706(2)(D)). According to Plaintiff, the USMS’s decision to remove Plaintiff from the
CSO program under the Akal contract was arbitrary, capricious, and an abuse of
discretion, and constituted a violation of Plaintiff’s Fifth Amendment right to procedural
due process. Complaint ¶ ¶ 56-58. More specifically, Plaintiff contends his removal
45

was without notice and an opportunity to be heard, Plaintiff’s Memorandum at 22, as a
violation of Plaintiff’s Fifth Amendment procedural due process right, and because the
determination of the USMS to require Plaintiff’s removal from CSO service, as stated in
Insley’s May 5, 2011 letter to Janet Gunn (“the May 5, 2011 Letter”), Insley Declaration
Exh. 6, “discloses no reason or evidence supporting the action taken” the USMS’s
decision calling for Plaintiff’s removal by Akal was arbitrary. Plaintiff’s Memorandum at
22-23. In particular, Plaintiff argues the May 5, 2011 Letter fails to disclose any reason
for the USMS’s conclusion that Plaintiff’s “actions have undermined the District’s
confidence and trust in [Plaintiff’s] ability to effectively perform his duties as a [CSO].”
Id. at 23. More particularly, Plaintiff asserts Plaintiff did not abandon his assigned post,
viz. courthouse security duty, because the scheduled event to which Plaintiff was
assigned had been cancelled albeit without Plaintiff’s awareness until Plaintiff belatedly
learned of this fact, approximately 30 minutes after the event had been scheduled to
start at 1:00 p.m., despite Risely’s radio communication advising CSOs then on duty at
the courthouse, including Plaintiff, of the cancellation sent “[a] few minutes later.”
Risely Declaration ¶ 21. Plaintiff further claims there was no abandonment of his post
because Plaintiff was ill and felt he should leave the courthouse and so informed
Plaintiff’s acting CSO supervisor, Risely, who, according to Plaintiff, verbally approved
Plaintiff’s departure as Plaintiff passed by Risely, while announcing his intent to leave
work. Plaintiff’s Memorandum at 23-24. Plaintiff also complains the USMS failed to
explain why it concluded the Akal investigation, including Seignious’s interview of Pfohl,
was deficient, specifically challenging Pfohl’s ability to make accurate observations of
Plaintiff’s physical condition and conduct while in the courthouse during the relevant
46

time period. Id. at 24.
In opposition, Defendant USMS contends Plaintiff’s APA claim alleging an
unconstitutional agency action, i.e., a due process violation, is without merit as Plaintiff
received adequate notice and an opportunity to be heard, balancing the plaintiff’s
alleged interest in employment and the government’s interest in maintaining courthouse
security. Defendants’ Memorandum at 21 (citing Wilson v. MVM, Inc., 475 F.3d 166,
178-79 (3d Cir. 2007); Int’l Union, United Gov’t Sec. Off. v. Clark, 706 F.Supp.2d 59
(D.D.C. 2010) (following Wilson); Leitch v. MVM, Inc., 538 F.Supp.2d 891, 904-05
(E.D.Pa. 2007) (following Wilson)). Defendant USMS further argues that the APA’s
arbitrary and capricious review standard is deferential, Defendants’ Memorandum at 21
(citing Perry v. Delaney, 74 F.Supp.2d 824, 837 (C.D.Ill. 1999) (citing Pozzie v. United
States Dep’t of Housing and Urban Dev., 48 F.3d 1026, 1029 (7th Cir. 1995)). In Perry,
plaintiffs, CSOs, were removed from security service at a federal courthouse based on
their alleged failure to sufficiently comply with courthouse access screening
requirements. Perry, 74 F.Supp.2d at 827. Finding the USMS requested that plaintiffs
be removed as CSOs because plaintiffs’ lapses in required courthouse security
procedures were fully established by the record, the court found the USMS’s decision
was not arbitrary and capricious. Id. (“The arbitrary and capricious standard is very
deferential to the agency, so that when the agency can offer rational explanation for its
action, the action is not arbitrary or capricious.”) (citing Pozzie, 48 F.3d at 1029). Here,
based on Seignious’s investigation, and the information or “data” provided by Pfohl and
Risely, and statements of other CSOs, including Smith, who witnessed the events, Exh.
A at 14, 22-23, 24-25, 41-43, 48, 78, 83, Insley, as the USMS Contracting Officer,
47

concluded that Plaintiff’s “actions have undermined the District’s [USMS’s] confidence
and trust in . . . [Plaintiff’s] ability to effectively perform his duties as a Court Security
Officer.” Insley Declaration Exh. 6. Defendant USMS maintains that the record shows
that “Plaintiff left work without permission and without any valid reason for doing so,”
Defendants’ Memorandum at 22, leaving the courthouse security CSO complement
“understaffed.” Id. According to the USMS, Plaintiff’s “reason for leaving – because he
was upset that he was not told sooner about the cancellation of a security request [to
which he had been posted] – raised significant questions about plaintiff’s judgment,
temperament, and suitability to work in a sensitive position such as a court security
officer.” Id. Based on those factors, and given the USMS’s strong interest in
maintaining courthouse security using CSO’s, Defendant USMS contends its decision
to remove Plaintiff was “clearly rational.” Id. Although not addressed by the parties,
Plaintiff’s APA claim fails at the threshold for several reasons.13
First, this court lacks subject matter jurisdiction over Plaintiff’s APA claim
because judicial review under the APA of an agency action is excluded by the APA
where such judicial review is precluded by statute, § 701(a)(1) (“APA applies . . .
except to the extent that . . . [a] statute[ ] preclude[s] judicial review.”). This exception is
“construed narrowly and applies only if there is “‘clear and convincing evidence of
legislative intention to preclude review.’” Natural Resources Defense Council v.
Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting Japan Whaling Ass’n v. Am.

13

See Defenshield, Inc. v. First Choice Armor & Equip., Inc., 2013 WL 5323752, at *2 (N.D.N.Y.
Sept. 20, 2013) (accepting and adopting magistrate judge’s report and recommendation over defendants’
objections that, inter alia, magistrate judge sua sponte raised issue regarding relationship between two
terms essential to resolution of patent infringement action).
48

Cetacean Soc’y, 478 U.S. 221, 230 n. 4 (1986)). Here the CDA’s comprehensive
scheme for resolution of all disputes arising in connection with, i.e., “relating to” a
federal contract and the exclusion from the original jurisdiction of the district court of
any civil action against the United States which is “subject to review” under the CDA as
provided by 28 U.S.C. § 1346(a)(2), establishes clearly and convincingly Congress’s
intent to withhold such contract disputes and related claims from judicial review of
agency actions assertedly available under the APA which may be brought in a district
court pursuant to § 702. As explained, Discussion, supra, at 10-17, the issue whether
Plaintiff should have been removed from CSO service is one that derives solely from
the contractual relationship between Akal and the USMS as expressed in the contract
and, as such, is reviewable exclusively, pursuant to the CDA. See M.E.S., Inc., 712
F.3d at 672 (“the comprehensive procedural and substantive provisions of the CDA
afford meaningful – and exclusive – remedies against the United States.”). As
discussed, Plaintiff’s claim has as its source the Akal contract, and, as such, it is
“related to” a contract with the federal government covered by the CBA. Discussion,
supra, at 16-17 (quoting §7130(a)(1) and citing Evers, 536 F.3d at 659). Plaintiff does
not dispute that his APA claim against the USMS, an agency of the United States, is
one against the United States. Thus, because Plaintiff’s APA claim is based on and
arises from a contract dispute, a claim “related to a [federal] contract” within the
exclusive purview of the CDA, judicial review of the USMS’s removal decision pursuant
to § 706 is excluded under the APA § 701(a)(1). Allowing Plaintiff’s APA claim against
the USMS would therefore be in direct conflict with the exclusive jurisdiction over such
disputes, arising as here directly from, and because of, the terms of and “related to” the
49

contract, lodged exclusively by the CDA in the United States Court of Federal Claims,
41 U.S.C. § 7104(b)(1) or the United States Courts of Appeals for the Federal Circuit.
41 U.S.C. § 7107(a)(1)(A). See M.E.S., Inc. (“Congress expressly excluded [from
district court’s original jurisdiction] ‘any civil action or claim against the United States
founded upon any express or implied contract with the United States’ that is subject to
review under the CDA.”) (quoting 28 U.S.C. § 1346(a)(2) (“ § 1346(a)(2)”)) (bracketed
material excluded in decision). Because permitting review of Defendant USMS’s
removal decision, which is the gravamen of Plaintiff’s APA claim, and seeks judicial
review of the correctness of that contract-based decision by this court, including
equitable relief and money damages remedies available in the U.S. Court of Federal
Claims, 48 C.F.R. § 2.101 (money damages and other relief available); Dohse, 2005
WL 6112658, at *3, it contravenes Congress’s comprehensive scheme for review of
disputes involving contracts by federal agencies like the USMS with federal contractors
like Akal, and is by the APA’s own terms therefore beyond the reach of the APA and the
jurisdiction of this court. Accordingly, Plaintiff can assert, in the instant action, no claim
for judicial review of his removal at the direction of the USMS, an alleged agency action,
under the APA. Moreover, because Plaintiff’s APA claims falls outside the purview of
the APA, it is not within the APA’s waiver of sovereign immunity. See Lane v. Pena,
518 U.S. 187, 192 (1996) (“waiver of the Federal Government’s sovereign immunity
must be unequivocally expressed in statutory text . . ., . . . will not be implied, . . . [and]
will be strictly construed [as to] its scope, in favor of the sovereign.”) (citations omitted);
Kletschka, 411 F.2d at 445 (the APA “constitutes a waiver of sovereign immunity
concerning those claims which come within its scope”). The required degree of strict
50

construction of Plaintiff’s APA claim demonstrates it is exclusively within the scope of
the CDA, and thus beyond this court’s jurisdiction. See § 1346(a)(2). Plaintiff’s APA
claim should therefore be dismissed, sua sponte, pursuant to Fed.R.Civ.P. 12(b)(1) as
lacking in subject matter jurisdiction. See Durant, Nichols, Houston, Hodgson &
Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (“If subject matter
jurisdiction is lacking and no party has called the matter to the court’s attention, the
court has the duty to dismiss the action sua sponte.” (citing Louisville & Nashville R.R.
v. Mottley, 211 U.S. 149, 152 (1908))); New York v. E.P.A., 350 F.Supp.2d at 429, 446
(S.D.N.Y. 2004) (under Food Quality Control Act defendant’s determinations as to
pesticide residues on food were reviewable only in Court of Appeals, but not, under
APA, in district court); Caremark Therapeutic Services v. Thompson, 244 F.Supp.2d
224, 229 (S.D.N.Y. 2003) (no subject matter jurisdiction in district court under APA, in
action to compel HHS to reopen insurance carrier’s overpayment determination,
because Social Security Act provided exclusive authority for exercising jurisdiction over
such disputes), aff’d, 79 Fed.Appx 494 (2d Cir. Nov. 6, 2003)).
Second, as discussed, Discussion, supra, at 22-25, the USMS’s decision to
remove Plaintiff did not constitute an agency action involving the exercise of the
USMS’s constitutional, statutory or regulatory authority, and thus subject to review
under the APA, rather it represented the exercise of the USMS’s contractual authority to
remove a CSO for violation of a Performance Standard pursuant to the contract.
Plaintiff points to no statute or regulation granting to the USMS the authority to remove
Plaintiff pursuant to the contract by the USMS as Plaintiff alleges or as a matter of the
USMS’s general statutory authority to provide protection to federal courts, and the
51

court’s research reveals none. As discussed, Discussion, supra, at 50, it is established
law that the APA represents a waiver of the United States’s sovereign immunity and, as
such, is to be strictly construed in favor of the government. See Lane, 518 U.S. at 192,
Kletschka, 411 F.2d at 435. As relevant, for purposes of APA judicial review pursuant
to § 706, “an agency action involves the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof.” 5 U.S.C. § 551(13).
Plaintiff alleges no action against Plaintiff by the USMS as “an agency rule, order,
license, sanction, relief or the equivalent or denial thereof,” imposed by the USMS as a
federal agency pursuant to a statute or regulation. See Navab-Safavi, 650 F.Supp.2d
at 69-70 (recognizing without resolving question of whether defendant agency’s action
resulting in contract employee’s termination pursuant to the contract constitutes a
reviewable agency action within scope of APA judicial review). Given the absence of a
statute governing the “substance of plaintiff’s quasi employment relationship to
defendants as a personal services contractor, even if the termination of plaintiff’s
contract were a reviewable ‘agency action,’ the [ ] APA’s judicial review mechanism,
standing alone, does not constitute a ‘special factor’ that would bar plaintiff’s Bivens
action.”). Id. at 70. As the USMS’s decision to remove Plaintiff derives solely from the
exercise of its authority as a party to the Akal contract to request a CSO’s removal from
providing security services, it constitutes the exercise of a contractual power by the
USMS, not an agency action subject to review under the APA. Importantly, the USMS’s
action did not terminate Plaintiff’s employment with Akal, it excluded Plaintiff from
providing services as a CSO at the courthouse as an Akal employee. Insley
Declaration Exh. 6.
52

Third, even if jurisdiction to assert Plaintiff’s APA claim existed and the USMS’s
removal decision constitutes a reviewable agency action, judicial review under the APA
is available only to “an aggrieved party, who suffers a “legal wrong because of agency
action within the meaning of a relevant statute.” § 702.14 To have standing under §
702, the person suing under the APA must assert an interest that “arguably within the
zone of interests to be protected or regulated by the [relevant] statute or constitutional
guarantee in question” that he or she says was violated by the agency actions at issue.
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ___ U.S. ___,
132 S.Ct. 2199, 2210 (2012) (quoting Association of Data Processing Service Orgs.,
Inc. v. Camp, 397 U.S. 150, 153 (1970)); Bross v. Turnage, 889 F.2d 1256, 1257 (2d
Cir. 1989) (same). “Judicial review of an agency action will not lie ‘if the plaintiff’s
interests are so marginally related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress intended to permit the
suit.’” Bross, 889 F.2d at 1257 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S. 388,
399 (1987)). Here, Plaintiff fails to allege any “relevant statute,” § 702, under which
Plaintiff claims to have an interest in avoiding removal by the USMS pursuant to a
contract with a federal contractor like Akal that is “arguably within the zone of interests
to be protected or regulated,” created by such statute. Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians, 132 S.Ct. at 2210 (quoting Camp, 397 U.S. at 153);

14

As noted, Background, supra, at 3, on September 26, 2013, the court invited the parties to
submit further briefing as to whether Plaintiff may, under the APA, challenge his removal from service as a
CSO. In response, however, Plaintiff merely reiterated his contention that his standing under the APA was
already established in Perry, 74 F.Supp.2d 824, 832-34, Plaintiff’s Response at 2, whereas Defendants
maintained only that Plaintiff’s removal fails to meet the arbitrary and capricious standard necessary to
reverse an agency’s action. Defendants’ Response at 3.
53

Bross, 889 F.2d at 1257. As discussed, Discussion, supra, at 30-36, that Plaintiff has
alleged no protected interest subject to protection under the Due Process Clause of the
Fifth Amendment is demonstrated by the fact that Plaintiff alleges no contractual
relationship with the USMS, the CBA specifically excludes Plaintiff’s removal from its
protections, Plaintiff concedes he is not a federal employee, and Plaintiff’s asserted
status as a “functional employee” of the USMS has no basis in law. Thus, Plaintiff has
alleged the violation of no constitutional right by the USMS that may be subject to
judicial review under § 706. As such, Plaintiff’s reliance on Perry to establish standing
under § 706 is unavailing as in Perry the court did not consider whether plaintiffs were
protected by a cognizable federal due process right as CSOs against removal from
courthouse security service under a contract with the USMS. See Perry, 74 F.Supp.2d
at 834 (stating that defendants’ contention that plaintiffs lacked standing ignored
plaintiffs’ due process claim), the court therefore turns to whether Plaintiff is a party
aggrieved by an “agency action” under a “relevant statute,” § 702, within the scope of
review under the APA.
Plaintiff’s status as a CSO is based on his employment by Akal to assist the
USMS in meeting its “statutory obligation to provide for the security of the United States
Court.” Wilson, 475 F.3d 166, 170 (3d Cir. 2007) (citing 28 U.S.C. § 566(a) (“§ 566(a)”).
Among those to whom such protection extends are judges, court officers, witnesses
“and other threatened persons.” 28 U.S.C. § 566(e)(1)(A). Plaintiff is, of course,
neither a federal judicial officer, court officer, court employee, a witness, juror,
threatened person, or other person such as an attorney or member of the media, who
regularly visit the courthouse to conduct business. Nor does Plaintiff sue as a general
54

member of the public seeking to observe court proceedings open to the public.
Plaintiff’s only reason to be present in the courthouse is to provide contractual security
services not as a beneficiary of such services. Thus, even if § 566(a) is considered, for
the sake of analysis, as the relevant statute to establish Plaintiff’s standing under § 702,
a theory not alleged by Plaintiff, Plaintiff’s interest in continued employment, the only
interest Plaintiff has asserted in support of his APA claim, is not within the “zone of
interests” protected or intended to be benefitted by § 566(a). By way of illustration, an
attorney who regularly practices in federal court having a need to routinely access the
courthouse could conceivably have standing to challenge under the APA a securityrelated regulation promulgated by the USMS as imposing unduly restrictive clearance
procedures upon working counsel. In Bross, plaintiff sued to compel defendant to
properly evaluate his studies regarding the exposure to toxins by military personnel and
revise defendant’s guidelines for claims pursuant to the Veterans Dioxin and Radiation
Exposure Act, 38 U.S.C. § 354, note (Supp. V 1987). Affirming dismissal of plaintiff’s
APA action by the district court, the court found that plaintiff’s scientific interests were
“not reasonably connected to awarding of VA benefits pursuant to the Act” and thus
“outside the zone of interests” intended to be benefitted by the Act. Bross, 461 F.3d at
1257. As a federal contractor employee providing security services, the interest
asserted by Plaintiff seeking reinstatement and damages pursuant to the APA based on
his disagreement with the USMS’s removal decision is therefore not within the “zone of
interests,” the USMS’s courthouse security program, ostensibly provided pursuant to §
566(a), is intended to benefit or protect; alternatively, or Plaintiff’s personal interest in
continued CSO employment is “‘so marginally related or inconsistent with the purposes
55

implicit in the statute that it cannot be assumed that Congress intended to permit the
suit.’” Bross, 889 F.2d at 1257 (quoting Clarke, 889 F.2d at 1257). In either case,
Plaintiff lacks the degree of standing required by § 702, prerequisite to Plaintiff’s APA
claim. Thus, Plaintiff is without standing to pursue his APA claim for judicial review of
Defendant USMS’s request that Plaintiff be removed from his CSO position pursuant to
the contract in that Plaintiff as a CSO is outside the scope of any constitutional or
statutory protections upon which judicial review pursuant to § 702 may be predicated.
Additionally, as explained, Discussion, supra, at 22-25, because the decision-making
process leading to Plaintiff’s removal springs not from any statute or regulatory authority
creating the basis for Plaintiff’s removal at the USMS’s behest, but from the explicit
provisions of the contract, the USMS’s decision does not constitute an agency action
reviewable under the APA. Plaintiff has therefore not plausibly alleged an APA claim.
Up State Federal Credit Union v. Walker, 198 F.3d 372, 377 (2d Cir. 1999) (affirming
district court’s decision that because the source of dispute was land lease, dispute’s
adjudication was matter of contract construction, not an APA challenge as alleged, and
dismissing case for lack of subject matter jurisdiction under APA). Accordingly,
Defendant USMS’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should be
GRANTED on this ground.
Even assuming, arguendo, that this court has jurisdiction over Plaintiff’s APA
claim, that the USMS’s removal decision constitutes an agency action reviewable
pursuant to the APA, and that Plaintiff has APA standing under § 702 to seek judicial
review, based on the record including the administrative record, Exh. A, and the parties’
submissions, Defendants USMS’s removal decision was not arbitrary and capricious
56

under § 706(2)(A). “‘The scope of review under the ‘arbitrary and capricious’ standard
[of § 706(a)(2)] is narrow and a court is not to substitute its judgment for that of the
agency.’” Public Citizen, Inc. v. Mineta, 340 F.3d 39, 53 (2d Cir. 2003) (quoting Motor
Vehicles Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). In
reviewing an agency’s decision, the court’s determination is guided by whether the
decision was “‘based on a consideration of the relevant fact[s] and whether there has
been a clear error of judgment.’” Id., see also Natural Resources Defense Council, Inc.
v. Muczynski, 268 F.3d 91, 96-97 (2d Cir. 2001) (judicial review of agency action under
APA’s arbitrary and capricious standard is narrow, limited to examining the
administrative record for a clear error of judgment). “The arbitrary and capricious
standard is very deferential to the agency, so when the agency can offer a rational
explanation for its action, the action is not arbitrary and capricious.” Perry, 74
F.Supp.2d at 837 (citing § 706(2)(A), and Pozzie, 48 F.3d at 1029). In exercising their
power of review under the APA, courts avoid overruling issues of credibility determined
by the agency. See Dan Zhu v. Holder, 311 Fed.Appx. 435, 436-37 (2d Cir. Feb. 23,
2009) (affirming agency’s adverse credibility determination where substantial evidence
was in administrative record, including specific examples of inconsistent statements of
alleged persecution regarding asylum applicant’s claims); Al Ghanim Combined Group
Co. Gen. Trad. & Cont. W.L.L. v. United States , 56 Fed.Cl. 502, 510 (Fed.Cl. 2003)
(“stating in context of miliary bid award protest, [t]he Court of Federal Claims does not
make credibility determinations in reviewing an administrative record.”); see also United
States v. Int’l Brotherhood of Teamsters, 247 F.3d 370, 381 (2d Cir. 2001) (“court ‘will
not substitute assessment of a witness’s credibility for that of the . . . [agency].”)
57

(quoting United States v. IBT (“Simpson”), 931 F.Supp. 1074, 1096 (S.D.N.Y. 1996),
aff’d, 120 F.3d 341 (2d Cir. 1997)). Here, the administrative record upon which the
decision of Defendant Insley, the USMS’s Contracting Officer, was based, Exh. A;
Defendants’ Rule 56(d) Memorandum at 5, n. 1 (“The USMS decision was based, in
part, on the memos and statements provided by Risely and Pfohl in 2001 during the
administrative investigation.”)15 supported a finding that Plaintiff’s behavior constituted,
as found by the Acting U.S. Marshal of the District, “conduct [that] can’t be tolerated” in
a CSO, and that as a result of Plaintiff’s abrupt and unapproved departure, courthouse
security was “understaffed.” Exh. A at 22. The Acting U.S. Marshal also determined
that Akal’s investigation was inadequate because its investigator, Seignious, conducted
a superficial interview of Pfohl. Id. Further, the U.S. Marshal determined that CSO
Kiellach’s statement supporting Plaintiff’s assertion that his illness compelled him to
leave work, was provided two weeks after the Akal investigation was completed and
“did not support that [Plaintiff] was sick before he was observed in an agitated state.”

15

A perusal of Exh. A indicates that the relevant information describing the reasons for Plaintiff’s
removal is fairly stated in the Risely and Pfohl Declarations submitted by Defendants in support of
Defendants’ motion. Plaintiff’s complaint that Defendants’ belated filing of Exh. A, the Administrative
Record was “unfair” to Plaintiff, Plaintiff’s Rule 56(d) Reply Memorandum at 3-4, in opposing Defendant’s
motion is without merit. Although Plaintiff argues that Plaintiff was not provided with sufficiently specific
notice, prior to his removal, as to whether he “abandoned his post” [in the basement of the courthouse],
left work without permission, was malingering or some [other misconduct],” id. at 3, n. 3, it is reasonably
clear that Defendants relied on the facts supplied primarily by Risely and Pfohl describing Plaintiff’s abrupt
departure from the courthouse, and not his termination of the special duty assignment in the basement
conference area, as the primary reason for Plaintiff’s termination. Even if there is some arguable
ambiguity as regards these interconnected actions by Plaintiff in causing Defendants’ removal decision,
Plaintiff’s responses both to Seignious in connection with Akal’s investigation and Plaintiff’s statement to
the USMS opposing removal, Insley Declaration Exh. 7, explaining in detail his reason for leaving work,
make it abundantly clear that Plaintiff was well-aware of the relevant facts and the USMS’s belief he had
violated Performance Standard 31 as the reason for his removal, well before the USMS’s removal action
at issue and as the basis for Defendants’ motion. Nor did Plaintiff request leave to file additional briefing
following receipt of Exh. A. As such, any differences between the full content of Exh. A and the contents
of the Risely and Pfohl Declarations are immaterial, and Plaintiff was not unfairly prejudiced in his ability to
oppose Defendants’ motion.
58

Id. A careful reading of Kiellach’s statement shows that it does not state that Plaintiff
appeared to Kiellach to be sick but rather, that Plaintiff told Kiellach that he, Plaintiff,
was ill. Exh. A at 72. Although Plaintiff encountered several CSOs prior to his
departure, Brydalski, Kiellach, Smith and Risely, only Brydalski indicated that Plaintiff
appeared ill before departing, Exh. A at 53, a fact considered by the USMS. Exh. A at
22. CSO (or Deputy U.S. Marshal) Smith also encountered Plaintiff at that time but did
not observe Plaintiff to be ill, and instead reported to Risely that Plaintiff appeared
agitated and upset. These conclusions were accepted by an Assistant Chief Inspector
of the USMS in Washington, Exh. A at 14, as part of the USMS’s consideration of
Pfohl’s complaint against Plaintiff, prior to the USMS decision directing Plaintiff’s
removal. Based on its review of the facts as developed by the investigative file, Exh. A,
it was reasonable for the USMS to conclude that prior to leaving his duty station at the
courthouse Plaintiff was not sick, but rather agitated, angry, or upset that he was not
promptly notified that his earlier special duty post had been cancelled, supporting the
USMS determination that Plaintiff had left his assigned post, providing security services
at the courthouse, without supervisory approval, as an overreaction to this slight, in
violation of Performance Standard 31. Reviewing the statements of Risely and Pfohl,
as well as those from other CSOs who had observed the events, the acting U.S.
Marshal for the district concluded that Plaintiff was not sick as Plaintiff had claimed but
became “agitated” because he belatedly learned his special duty post had been
cancelled, Plaintiff had “stormed off duty because he was upset,” Exh. A at 22. Based
on these investigative results, the USMS rationally concluded that Plaintiff’s assertion of
sickness was therefore a pretense for his emotionally charged decision to leave work,
59

and that Risely did not give permission for Plaintiff’s departure from the courthouse, as
Plaintiff’s assigned duty station. Significantly, Plaintiff does not state that he actually
requested Risely’s permission to leave work. Atterbury Declaration ¶ 12 (“I . . . told . . .
Risely that I was sick and would be going home.”).16 Given the concurrence by CSO
Smith with Pfohl’s opinion, Risely Declaration ¶ 11, that Plaintiff was agitated
(“appeared mad”) and Risely’s opinion that Plaintiff’s departure impaired courthouse
security as well as Plaintiff’s improper personal determination – one he was
undoubtedly not authorized to make – that his departure would not impair security, the
USMS also had sufficient reason to conclude that Plaintiff could not in the future be
relied upon to assist the USMS in providing courthouse security.17
It was also reasonable for the USMS to credit Pfohl, Risely, Smith and the other
CSOs’ versions of Plaintiff’s actions who, as Plaintiff’s co-workers, the USMS could
reasonably conclude would be unlikely to shape their descriptions to provide grounds
for Plaintiff’s removal and Plaintiff does not accuse these witnesses of any such bias.
See Atterbury Declaration (passim). In fact, Plaintiff averred, “I enjoyed good relations
with my colleagues [and] supervisors . . .. Atterbury Declaration ¶ 8. Nor was it
irrational for Insley to disregard CSO Brydalski’s statement that, prior to his departure,
Plaintiff appeared ill given the predominance of the contrary opinions. Upon the record

16

Although Plaintiff claims his announced intention to leave based on his alleged illness was
according to a local “protocol,” Insley Declaration Exh. 7, nothing in the record indicates exactly what such
protocol provided.
17

Plaintiff’s insistence that he sought and received Risely’s approval of Plaintiff’s announced
illness as a reason to leave work abruptly also concedes the “protocol” did not allow a CSO who felt his or
her need to leave work for reason of illness, to take into account the potential adverse effect of his or her
sudden absence on the required level of courthouse security in deciding whether to request permission to
leave work unexpectedly.
60

as a whole, the USMS’s conclusion that Plaintiff had violated Performance Standard 31
and that Plaintiff’s “actions have undermined the . . [USMS’s] confidence and trust in
[Plaintiff’s] ability to effectively perform his duties as a [CSO],” Insley Declaration Exh. 6,
was amply supported, showing that the USMS had considered the relevant facts, Public
Citizen, Inc., 340 F.3d at 53, that, as such, Defendant USMS’s removal decision was
not “a clear of error judgment,” id., and therefore not “arbitrary and capricious” under §
706(2)(A). Accordingly, Plaintiff’s APA claim should be DISMISSED sua sponte for lack
of subject matter jurisdiction or Defendants’ motion directed to Plaintiff’s APA claim for
failure to state a claim should be GRANTED; alternatively, Defendant USMS’s motion
for summary judgment on Plaintiff’s APA claim should be GRANTED.

4.

Plaintiff’s Rule 56(d) Motion.
As noted, Background, supra, at 3, Plaintiff moves to defer consideration of

Defendants’ motions directed to Count II, Plaintiff’s APA Claim, pending discovery
conducted pursuant to Fed.R.Civ.P. 56(d) (“Plaintiff’s Rule 56(d) motion”). Plaintiff
contends such requested discovery is necessary because whether, as Plaintiff alleges,
Defendant USMS’s decision to remove Plaintiff as a CSO was arbitrary and capricious
violating § 706(2)(A) “depends on issues of fact.” Plaintiff’s Rule 56(d) Memorandum at
2. According to Plaintiff, discovery is required to enable Plaintiff to fairly oppose
Defendant USMS’s motion given that the record upon which the USMS made its
decision was incomplete. Id. at 5 (“Plaintiff would seek in discovery the complete
record the Marshals Service relied upon in its decision to remove Atterbury from the
Court Security Program . . ..”) (citing Hellstrom v. U.S. Dept. of Veterans Affairs, 201
61

F.3d 94, 97 (2d Cir. 2000) (holding that Rule 56(d) discovery was required where
records supporting plaintiff’s transfer did not address plaintiff’s “core” allegation that
defendant had retaliated against plaintiff based on plaintiff’s protected speech). Plaintiff
also contends that Defendants failed to provide the complete record upon which the
USMS based its removal decision. Plaintiff’s Rule 56(d) Memorandum at 5.
Defendants oppose Plaintiff’s Rule 56(d) motion on two grounds. First,
Defendants represent that Defendants served Plaintiff on March 25, 2013 with a
complete copy of all documents, comprising 80 pages, constituting the entire record of
information supporting the USMS decision. Cerrone Declaration ¶ 4 (attaching Exhibit
A (“Exhibit A”)). Second, Defendants contend that the record before the USMS, Exh. A,
and the court supports Defendants’ position that the USMS’s decision was not arbitrary
and capricious thereby rendering Plaintiff’s discovery request unnecessary.
Defendants’ Memorandum at 4. More specifically, Defendants emphasize that the
USMS’s decision was predicated upon its consideration of statements from witnesses
to the relevant events, as reflected more completely in Exhibit A, particularly from Risely
and Pfohl, obtained during the investigation prior to Plaintiff’s removal, including
statements of CSOs who witnessed the relevant events, Defendants’ Memorandum at
5, and not based exclusively on the declarations of these two primary witnesses
submitted in support of Defendants’ motion, as Plaintiff had contended. Defendants’
Memorandum at 5 n. 1.
As discussed, Plaintiff’s APA claim is barred by the CDA, thus depriving this
court of jurisdiction over that claim. Discussion, supra, at 48-50. Moreover, the record
demonstrates the USMS’s decision based, as it was, on the USMS’s contractual power,
62

created under the Akal contract, and not any statutory or regulatory authority, does not
constitute an agency action reviewable under the APA. Discussion, supra, at 51-52.
Finally, even if the court had such jurisdiction, Plaintiff lacks standing under § 702 to
pursue Plaintiff’s APA claim. Discussion, supra, at 52-56. Thus, because Plaintiff’s
APA claim is not viable, any discovery by Plaintiff to supplement the Administrative
Record to support Plaintiff’s contention under § 702(2)(a) that Plaintiff’s removal was
arbitrary and capricious is unnecessary. Assuming, however, Plaintiff’s APA claim is
cognizable, the discovery Plaintiff requests would be futile as the record, including
Exhibit A, the Administrative Record, substantially supports a finding that Defendant
USMS’s determination was entirely rational, supported by the facts and was therefore
neither arbitrary nor capricious. Discussion, supra, at 56-61. Additionally, because
Plaintiff’s discovery requests represent an attempt to attack Pfohl’s credibility, a
determination beyond the scope of judicial review available under the APA, Discussion,
infra, at 64-66, Plaintiff’s request lacks a basis in law.
To prevail on a Rule 56(d) motion, Plaintiff must show: “(1) what facts are
sought [to resist the motion] and how they are to be obtained, (2) how those facts are
reasonably expected to create a genuine issue of material fact, (3) what effort [Plaintiff]
has made to obtain them, and (4) why [Plaintiff] was unsuccessful in those efforts.”
Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir.) cert. denied, 540 U.S.
823 (2003). The decision whether to grant a Rule 56(d) motion rests within the
discretion of the court. Thurber v. Aetna Ins. Co., 2012 WL 70582, at *5 (W.D.N.Y.
Jan. 6, 2012) (Skretny, C.J.). As relevant to Plaintiff’s Rule 56(d) motion, the APA
provides for review of agency actions that are “arbitrary, capricious, an abuse of
63

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) . “The
arbitrary and capricious standard is very deferential to the agency, so when the agency
can offer a rational explanation for its action, the action is not arbitrary and capricious.”
Perry , 74 F.Supp.2d at 837 (citing 5 U.S.C. § 706(2)(A); and Pozzie, 48 F.3d at 1029).
“Under the arbitrary and capricious standard, the Court’s task is to determine ‘whether
the [agency’s] decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.’” Id. (quoting Pozzie, 48 F.3d at
1029). Whether an agency action was arbitrary and capricious is generally limited to a
review of the administrative record. Muczynski, 268 F.3d at 96-97 (citing case). As
discussed, Discussion, supra, at 56-61, upon the record in this case, applying the
applicable deferential standard of review, Defendant USMS’s decision to remove
Plaintiff as a CSO was neither arbitrary nor capricious. Because the record fully
supports that Defendant USMS’s decision to remove Plaintiff was not arbitrary and
capricious Plaintiff’s request based on Plaintiff’s assertion that there exist “issues of
fact,” Plaintiff’s Rule 56(d) Memorandum at 2, required additional discovery to avoid
summary judgment is futile; moreover, as it seeks information requiring the court
engage in unwarranted credibility determinations, Dan Zhu, 311 Fed.Appx. at 436-37
(court will not disturb agency’s credibility determined support by administrative record);
Int’l Brotherhood of Teamsters, 247 F.3d at 380 (in exercising APA review authority
courts refrain from credibility determinations), upon which to challenge that decision, the
request seeks discovery beyond the scope of review permitted under the APA.
That Plaintiff’s requested Rule 56(d) discovery is intended to challenge the
credibility of the witnesses upon whose statements the USMS relied is demonstrated by
64

Plaintiff’s contentions in support of Plaintiff’s Rule 56(d) motion. Plaintiff’s Reply Rule
56(D) Memorandum at 5 n. 4 (challenging Pfohl’s capacity to be a credible witness to
the events). For example, whereas Pfohl avers that he observed Plaintiff on February
24, 211, when the critical events took place, concluding Plaintiff “did not appear or
sound sick,” Pfohl Declaration ¶ 14, Plaintiff argues that Pfohl’s alleged observation is
without factual foundation as Plaintiff had “no interaction with Pfohl” on that day.
Atterbury Declaration ¶ 21. Further, whereas Pfohl stated that he heard Risely tell
another CSO, Rignosky, that, after Plaintiff announced to Risely he was leaving for
work because of illness, “I can’t believe he [Plaintiff] left. I’ve got to write him up,”
Atterbury Declaration ¶ 31, according to Plaintiff, Risely never reported to Seignious
making such a statement, Atterbury Declaration ¶ 31, and, Plaintiff insists, Risely never
did so. Id. To conclude that in light of these countervailing assertions by Plaintiff taken
together with the discovery Plaintiff seeks, the USMS’s decision to credit Pfohl’s and
Risely’s versions of the relevant events, specifically, that Plaintiff was not so ill that he
needed to leave at that time his assigned post at the courthouse or that Plaintiff’s
asserted illness was feigned to avoid admitting he was irritated, if not angered, because
he had not been more timely notified his special security assignment had been
cancelled, or that Risely in fact did not approve Plaintiff’s decision to leave duty,
constituted a “clear error of judgment,” Public Citizen, Inc., 340 F.3d at 53 (quoting
Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto Inc. Co., 463 U.S. 29, 43 (1983)),
the court would be required to conduct what would amount to a de novo review of the
USMS’s removal decision including, potentially, an evidentiary hearing, focusing on the
credibility of the witnesses, including Plaintiff, Pfohl and Risely, ultimately substituting its
65

judgment, as Plaintiff requests, for that of the USMS as to whom to believe and the
weight to be given to their statements. Such a detailed adversarial-type of review is
beyond the court’s limited and deferential scope of review. As discussed, Discussion,
supra, at 58, n. 15, Plaintiff has not been prejudiced in his ability to oppose Defendants’
summary judgment motion by the lack of such discovery.
Nor does Plaintiff make a sufficient showing that the requested discovery is
necessary to supplement the Administrative Record by a hearing. See Nat’l Nutritional
Foods Ass’n v. Mathews, 557 F.2d 325, 332 (2d Cir. 1977) (hearing to supplement
administrative record permitted where such record does not disclose rationale
underlying agency action based on Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971)). However, such a hearing is not “an open invitation to probe mental
processes of the [agency decision maker],” and requires “a strong showing of bad faith
or improper behavior,” and that “further explanation of administrative action by the
officials involved in the decision could be by affidavit and is appropriate only when the
explanation on the record is so deficient as to frustrate effective judicial review.” Nat’l
Nutritional Foods Ass’n, 557 F.2d at 332 (further internal quotation marks and citation
omitted). Here, the record does not indicate any lack of rationale for the USMS’s
removal decision: Plaintiff abandoned his security post for improper reasons involving
his personal pique leaving, in the informed opinion of his supervisor, the courthouse
security force understaffed, particularly in the event of an emergency, demonstrating to
USMS officials Plaintiff was an unreliable CSO. There is no reason to believe that the
USMS, in creating the administrative record, acted in bad faith or engaged in improper
behavior, and Plaintiff suggests none. There is therefore no grounds for Plaintiff’s Rule
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56(d) request to supplement the record through such a hearing. Plaintiff’s Rule 56(d)
motion should therefore be DENIED.

CONCLUSION
Based on the foregoing, Defendants’ motion to dismiss Plaintiff’s due process
claim (Count I) (Doc. No. 20) should be GRANTED; Plaintiff’s APA claim (Count II)
should be DISMISSED sua sponte for lack of subject matter jurisdiction; alternatively,
Defendant USMS’s motion to dismiss Plaintiff’s APA claim (Doc. No. 20) should be
GRANTED; alternatively, Defendant USMS’s summary judgment motion directed to
Plaintiff’s APA claim (Doc. No. 20) should be GRANTED; Plaintiff’s Rule 56(d) motion
(Doc. No. 27) is DENIED.
Respectfully submitted,
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
SO ORDERED as to Plaintiff’s
motion (Doc. No. 27)
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

Dated: March 27, 2014
Buffalo, New York

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Pursuant to 28 U.S.C. §636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED:

March 27, 2014
Buffalo, New York

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