Atterbury v. United States Marshals Service et al

Filing 46

-CLERK TO FOLLOW UP- ORDER: Adopting Magistrate Judge Leslie G. Foschio's Report and Recommendation as filed on March 27, 2014. The defendants' motion to dismiss 20 is granted in its entirety. The plaintiff's Complaint is dismissed, and the plaintiff's Rule 56(d) motion to defer consideration 27 is denied. The Clerk of Court shall close the case. Signed by Hon. Richard J. Arcara on 7/10/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
STEPHEN L. ATTERBURY,
Plaintiff,

12-CV-00502-A(F)
Decision and Order

v.
UNITED STATES MARSHALL SERVICE;
GARY INSLEY, Contracting Officer, Office
of Security Contracts, Judicial Security
Division, United States Marshall Service, in
his individual capacity; and
JOHN DOE, in his individual capacity,
Defendants.
________________________________

The Plaintiff, Stephen Atterbury, was a Court Security Officer (CSO) at the
United States Courthouse in Rochester, New York and is challenging the U.S.
Marshall Service’s (USMS) decision removing him from CSO duty after he
allegedly left his post. The Plaintiff is an employee of Akal Security, Inc. (Akal), a
company with which the USMS contracts to provide security services in the
Second Circuit. The Plaintiff claims that in ordering him removed from CSO duty,
the USMS denied him due process and acted arbitrarily and capriciously.
The Court referred the case to Magistrate Judge Leslie G. Foschio
pursuant to 28 U.S.C. § 636(b)(1). The Defendants filed a motion to dismiss the
complaint under Rule 12(b)(6) or, in the alternative, a motion for summary
judgment under Rule 56. The Plaintiff responded and also filed a cross-motion
under Rule 56(d) requesting that consideration of the USMS’s summary

1

judgment motion be deferred until additional discovery could be conducted.
Magistrate Judge Foschio issued a Report and Recommendation that
recommends granting the USMS’ motion to dismiss and denying the Plaintiff’s
Rule 56(d) motion.
Pursuant to 28 U.S.C. § 636(b)(1), the Court must make a de novo review
of those portions of the R&R to which objections have been made. Upon a de
novo review of the R&R, and after reviewing the submissions and hearing
argument from the parties, the Court adopts Magistrate Judge Foschio’s
recommendation that the Defendants’ motion to dismiss be granted and that the
Plaintiff’s Rule 56(d) motion be denied.
Background
A.

The U.S. Marshall Service’s Contract with Akal

The USMS contracts with Akal to provide security services at the federal
courthouses in the Second Circuit. Dkt. No. 23 ¶ 6. Akal, in turn, employs
individuals to serve as CSOs under the terms of the USMS-Akal contract.
Among those terms is a provision that “[a]ll CSOs . . . shall comply” with a
number of CSO “performance standards,” including, as is relevant to this case,
the requirement that CSOs “[n]ot close or desert any post prior to scheduled
closure unless directed to do so by the supervisor. [CSOs are to] [r]emain at
[their] assigned post until properly relieved or until the time post is to be secured.”
USMS-Akal Contract § C-12(b)(31), Dkt No. 23-1 at 11.

2

Several other provisions of the USMS-Akal contract are relevant to this
case. First, the contract provides that the USMS “reserves the right at all times
to determine the suitability of any [Akal] employee to serve as a CSO” and that
“[a]ny decision to continue a[n] [Akal] employee in a CSO capacity will be made
solely by the [USMS] Office of Court Security on a case-by-case basis.” Id. § H3(b), Dkt. 23-1 at 14 (emphasis added). Second, “any employee provided by
[Akal] that engages in actions . . . or any activity that affects the integrity of the
judicial process or is likely to compromise the security of the courts, shall be
removed from performing services for the Government under th[e] contract, and
shall not be reassigned to th[e] contract without the concurrence of the
Contracting Officer.” Id. § H-3(e), Dkt. 23-1 at 15. Finally, the contract provides
that if the USMS determines that an Akal employee should be removed from
CSO duty, both Akal and the employee are entitled to provide a written response
addressing the removal within fifteen days of the Contracting Officer’s initial
removal notice. Id. § H-3(e), Dkt. 23-1 at 15. However, “[t]he Contracting Officer
and Office of Court Security shall make the final determination of [Akal employee]
suitability.” Id. § H-3(c), Dkt. 23-1 at 14.
B.

The Events Leading to the Plaintiff’s Removal from the USMSAkal Contract

After retiring from a twenty-four year career as a U.S. Postal Inspector, in
2002 the Plaintiff was hired by Akal to work as a CSO in the Kenneth B. Keating
Federal Building in Rochester, New York, which houses, among other things, the
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Rochester Division of the U.S. District Court for the Western District of New York.
Dkt. No. 29-2 ¶¶ 2, 4. The Plaintiff acknowledges that “[b]efore the USMS
approved [the Plaintiff] to work in the court I was presented with [the USMS’s]
performance standards and reviewed them. I then signed an acknowledgement
of the same.” Id. at ¶ 5. By all accounts, the Plaintiff’s service as a CSO was not
questioned until the events giving rise to this litigation.
On February 24, 2011, the Plaintiff was assigned to “a special post.” Id. ¶
11. Congresswoman Louise Slaughter, whose office is also located in the
Keating Building, was scheduled to hold a constituent meeting in the building’s
basement, and the Plaintiff was assigned to provide security for the meeting. Id.
The Plaintiff states that he felt progressively ill on February 24 and “would have
left earlier, except I was specifically assigned to this post on account of the
meeting.” Id. “Shortly before” 1:30 p.m., approximately half-an-hour after the
meeting was to have started, another CSO approached the Plaintiff outside the
meeting room and told the Plaintiff that the meeting had been cancelled. Id. ¶
12. An announcement of the cancellation had apparently been made over the
radio earlier in the day. Id.
Accounts of the events that followed on February 24 are disputed, but the
disputes are not relevant to the Court’s disposition of this case. Because the
case is before the Court on the Defendants’ motion to dismiss, the Court views
the facts in the light most favorable to the Plaintiff. After learning that the
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meeting with Congresswoman Slaughter had been cancelled, the Plaintiff
informed the Acting Lead CSO in the Keating Building that he was not feeling
well, would be going home, and likely would not be at work the following day. Id.
¶ 12. The Acting Lead CSO “approved [the Plaintiff’s] early departure, saying
‘See ya’” to the Plaintiff. Id. The Plaintiff claims that he “was not upset when [he]
left work on February 24,” but he acknowledges that “[he] was sick and may well
have appeared out of sorts to others.” Id. ¶ 13. The Plaintiff then secured his
weapon, changed out of his uniform, and left the Keating Building at
approximately 1:35 p.m. Id. ¶ 15.
C.

Akal’s Investigation of the Plaintiff’s Conduct and the USMS’s
Responses

Several days later, Gary Insley—the named defendant in this case, and
the USMS Contracting Officer assigned to the USMS-Akal contract—acting
pursuant to the USMS-Akal contract, requested that Akal investigate whether the
Plaintiff’s actions on February 24 had violated CSO Performance Standard 31.
Dkt. No. 23 at ¶ 7. (As noted above, Performance Standard 31 provides that
CSOs shall not leave their assigned post until they are relieved or are directed to
do so by a supervisor.) Akal sent its contract manager, a retired New York City
Police lieutenant, to Rochester to investigate. Id. ¶ 8; Dkt. No. 42 at 6. Akal’s
contract manager produced a four-page report that concluded that the Plaintiff
had not violated CSO Performance Standard 31 because “[t]he special post to

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which [the Plaintiff] was assigned was discontinued long before he left the post.”
Id. at 21.
After receiving the report, Insley informed Akal that he “did not concur with
Akal’s findings and requested that Akal reconsider.” Id. ¶ 13. Insley’s concern
was that Akal’s investigator did not adequately interview a USMS employee who
was working at the Keating Building on February 24 and who “clearly saw [the
Lead CSO] say he needed to write [the Plaintiff] up for this incident, after
witnessing [the Plaintiff] leave in a huff.” Id. at 25. Akal responded with a letter
stating that “[t]he USMS has not provided Akal with any information or
documentation to consider that indicates [the Plaintiff] abandoned his post as
alleged by the USMS” and therefore concluded that “Akal must stand by its
intended action.” Id. at 37.
Insley then sent Akal a second letter stating that the Plaintiff’s actions
“have undermined the District’s confidence and trust in [his] ability to effectively
perform his duties” and accordingly directed, acting pursuant to the USMS’s
authority under the USMS-Akal contract, that the Plaintiff be “permanently
removed from performing under the USMS contract.” Id. at 31. Insley noted in
his letter that “[i]f this decision is unacceptable to Akal, the disagreement shall be
considered a dispute for purposes of the Contract Disputes Act.” Id.
As the USMS-Akal contract requires, Insley provided Akal and the Plaintiff
with an opportunity to respond, in writing, to Insley’s decision, which the Plaintiff
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did. Id. at 34. Insley then responded in a third letter, stating that “the USMS
does not concur and the appeal of removal is . . . denied.” Id. at 36 (emphasis
in original). Insley again noted that “[i]f this decision remains unacceptable to
Akal, the disagreement shall be considered a dispute for purposes of the
Contract Disputes Act.” Id. This lawsuit followed.
D.

The Present Litigation

The Plaintiff’s complaint raises two causes of action: (1) that Insley denied
the Plaintiff due process when Insley ordered Akal to remove the Plaintiff from
CSO duty; and (2) that the USMS’s order that the Plaintiff be removed from CSO
duty was an arbitrary and capricious agency decision in violation of the
Administrative Procedures Act. Dkt. 1. The Defendants filed a motion to dismiss
under Rule 12(b)(6), or, in the alternative, a motion for summary judgment under
Rule 56. Dkt. No. 21. The Plaintiff filed a response as well as a Rule 56(d)
motion requesting that consideration of the Defendants’ summary judgment
motion be deferred until additional discovery could be conducted. Dkt. Nos. 27 &
29.
Magistrate Judge Foschio, to whom this case was assigned, issued a
thorough Report and Recommendation, which recommends: (1) granting the
Defendants’ motion to dismiss the due process claim for failure to state a cause
of action under Bivens v. Six Unknown Agents of the Federal Bureau of
Narcotics; and (2) concluding that the Court lacks subject matter jurisdiction over
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the Plaintiff’s APA claim. Dkt. No. 39 at 67. Alternatively, if the Plaintiff has
stated a cause of action under Bivens, Magistrate Judge Foschio recommends
that the Court nonetheless dismiss the Plaintiff’s first claim because Defendant
Insley is entitled to qualified immunity. Magistrate Judge Foschio also
recommends in the alternative that if the Court finds that it has jurisdiction over
the APA claim, holding that the USMS’s action was not arbitrary and capricious.
Finally, Magistrate Judge Foschio recommends denying the Plaintiff’s Rule 56(d)
motion. The Plaintiff filed objections to the R&R and responses were filed. Oral
argument was held on June 9, 2014.
Discussion
A.

Claim One: Fifth Amendment Due Process

The Plaintiff’s due process cause of action, if it exists, must be implied
using the framework established by Bivens v. Six Unknown Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and its progeny. Working from the
premise that a right implies a remedy, Bivens held that courts may imply a cause
of action against federal officers for Fourth Amendment violations. Bivens, 403
U.S. at 397. Bivens was groundbreaking in 1971, but the trend in the intervening
forty-three years has unquestionably been in the opposite direction. Rather than
starting from a presumption, as the Bivens Court did, that a deprivation of a
constitutional right necessarily implies a judicially-created remedy, in recent
years the Supreme Court has clearly indicated that implied causes of action
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against federal officers are the exception, rather than the rule. Thus, “[b]ecause
implied causes of action are disfavored, the Court has been reluctant to extend
Bivens liability ‘to any new context or new category of defendants.’” Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 66 (2001)). See also Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (“[W]e
have . . . held that any freestanding damages remedy for a claimed constitutional
violation has to represent a judgment about the best way to implement a
constitutional guarantee; it is not an automatic entitlement no matter what other
means there may be to indicate a protected interest, and in most instances [the
Supreme Court] ha[s] found a Bivens remedy unjustified.”). In other words, a
plaintiff requesting a new Bivens cause of action is facing a difficult task. Indeed,
since it decided Bivens, the Supreme Court has recognized new Bivens causes
of actions in only two cases. See Davis v. Passman, 442 U.S. 228 (1979)
(implying cause of action under the Fifth Amendment’s Due Process Clause for
congressional staffer who was terminated because of her gender); Carlson v.
Green, 446 U.S. 14 (1980) (implying cause of action under the Eighth
Amendment for deceased prisoner’s estate). By contrast, the Court has rejected
new Bivens actions in at least six cases. See Wilkie, 551 U.S. at 551 (collecting
cases).
Nonetheless, in Wilkie v. Robbins, 551 U.S. 537 (2007, the Court
established a framework for Bivens analysis that “reflect[s] and reconcile[s] the

9

Court’s reasoning set forth in earlier Bivens cases.” Minneci v. Pollard, 132 S.
Ct. 617, 621 (2012). According to Wilkie, a court’s Bivens analysis should
proceed in two steps.
In the first place, there is the question whether any alternative,
existing process for protecting the interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and
freestanding remedy in damages. But even in the absence of an
alternative, a Bivens remedy is a subject of judgment: the federal
courts must make the kind of remedial determination that is
appropriate for a common-law tribunal, paying particular heed,
however, to any special factors counselling hesitation before
authorizing a new kind of federal litigation.
Wilkie, 551 U.S. at 551 (citations and internal quotation marks omitted).
Thus, the first Bivens question that this Court will address is whether
Congress has provided an adequate alternative remedy for the Plaintiff’s alleged
constitutional violation. See Davis, 442 U.S. at 248 (“[O]f course, were Congress
to create equally effective alternative remedies, the need for damages might be
obviated.”). The Second Circuit recently answered much of this question in
M.E.S., Inc. v. Snell, 712 F.3d 666 (2d Cir. 2013). In M.E.S., a government
contractor brought a Bivens claim against members of the Army Corps of
Engineers alleging that the Corps “unfairly terminated three of [the contractor’s]
construction/renovation contracts . . . . in retaliation for criticism by [the
contractor] of the Corps’ mismanagement of construction projects.” Id. at 668.

10

To answer the first Bivens question, the Second Circuit turned to the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. § 7101 et seq.
In general terms, the CDA “purports to provide final and exclusive
resolution of all disputes arising from government contracts covered by the
statute.” A&S Council Oil Co., Inc. v. Lader, 56 F.3d 234, 241 (D.C. Cir. 1995).
The CDA requires that contractors submit “[e]ach claim . . . against the Federal
Government relating to a contract” to the government’s contracting officer (CO).
41 U.S.C. § 7103(a)(1). The CO must then issue a decision on the claim, see id.,
from which the contractor may appeal to the relevant contract appeals board or
the Court of Federal Claims. Id. § 7104. Appeal from either tribunal is to the
Court of Appeals for the Federal Circuit. Id. at § 7107(a)(1) (appeal from contract
review board); 28 U.S.C. § 1295(a)(3) (appeal from the Court of Federal Claims).
In line with the Seventh and Ninth Circuits, the Second Circuit in M.E.S.
held that “where . . . a plaintiff’s constitutional claims originate in contract
obligations for which the comprehensive procedural and substantive provisions of
the CDA afford meaningful—and exclusive—remedies against the United States,
‘we conclude it would be inappropriate for us to supplement that regulatory
scheme’ with new judicial remedies against United States employees pursuant to
Bivens.” M.E.S., 712 F.3d at 672 (quoting Bush v. Lucas, 462 U.S. 367, 368
(1983)). See also Evers v. Astrue, 536 F.3d 651, 661 (7th Cir. 2008) (“Congress
has provided government contractors with adequate relief for breaches of
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governmental contracts under the Contract Disputes Act. As such, a government
contractor need not resort to constitutional tort suits against federal officers to
vindicate his rights when he feels his contract has been unfairly terminated.”);
Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994). This conclusion
flows from the fact that the CDA’s “remedial scheme” is “the paradigm of a
precisely drawn, detailed statute,” and is, therefore, exactly the sort of adequate
alternative that the Supreme Court has held must preclude a Bivens cause of
action. M.E.S., 712 F.3d at 673 (internal quotation marks omitted). See also
Janicki Logging Co., 42 F.3d at 564-65 (“The CDA provides precisely the kind of
mechanism that the Supreme Court and we have referred to [in Bivens actions].
It is a complex and substantive remedial scheme.”).
This case would seem to require only a prudent extension of M.E.S.
However, the Plaintiff argues that that extension is significant and, indeed, is
dispositive. The Plaintiff does not appear to take issue with M.E.S. or the
proposition that the CDA is a comprehensive remedial scheme that precludes
granting Bivens relief to federal contractors. Rather, the Plaintiff argues that the
CDA is inapplicable because the dispute in this case is not between the
government and the contractor, but is instead between the government and the
contractor’s employee. See Dkt. 42 at 22 (“[T]he Bivens analysis turns on
whether the plaintiff has available alternate remedies not on whether someone
else could pursue a claim.”). The Plaintiff therefore argues that he is left without

12

an adequate remedy to redress his constitutional claim against the Defendant.
The Plaintiff correctly notes that the language of the CDA and its accompanying
regulations suggest that the Plaintiff could not bring a CDA claim on his own
behalf. See 41 U.S.C. § 7103(a)(1) (providing that each “claim by a contractor”
must be submitted to the contracting officer) (emphasis added); F.A.R. 2.101
(defining “claim” as a “written demand or assertion by one of the contracting
parties”) (emphasis added).
However, even assuming that the Plaintiff himself could not bring a CDA
claim—and, thus, that Congress has not established an adequate remedial
scheme to redress the Plaintiff’s constitutional claim—the Court will still decline to
imply a Bivens remedy. The Court reaches this conclusion by considering
Bivens’ second step, which requires “courts [to] make the kind of remedial
determination that is appropriate for a common-law tribunal, paying particular
heed . . . to any special factors counselling hesitation before authorizing a new
kind of federal litigation.” Wilkie, 551 U.S. at 551 (citations and internal quotation
marks omitted). To analyze Bivens’ second step in the context of a claim brought
by a federal contractor’s employee, the Court is guided by a pre-M.E.S. case
from the Southern District of New York, Aryai v. Forfeiture Support Associates,
LLC, 10-CV-8952 (LAP) (Aug. 27, 2012 S.D.N.Y.), which addressed a question
that is nearly identical to the one before this Court. In Aryai, the plaintiff was an
employee of a company that contracted with the USMS to provide asset forfeiture

13

services. Slip op. at 2. The plaintiff alleged that he had been terminated from his
position with the contractor after he raised questions about the activities of a
USMS employee. Among his claims, the plaintiff alleged that he had been
terminated in violation of his First Amendment rights and, accordingly, sought to
imply a Bivens remedy against the USMS employee.
Addressing the first step of Bivens, the court in Aryai noted, as the Court
assumes here, that there was no alternative remedial scheme to redress the
plaintiff’s injuries. Aryai, slip op. at 36. However, turning to Bivens’ second step,
the Aryai court recognized that the CDA is nonetheless relevant to the Bivens
issue. Slip op. at 38. Aryai noted, as the Second Circuit later confirmed in
M.E.S., that if the Plaintiff were himself a government contractor, then the CDA
would be his sole basis for relief. Aryai, slip op. at 43. Likewise, Aryai noted that
if the Plaintiff were an employee of the federal government—i.e., if there were not
a contractor interposed between the Plaintiff and the government—then the Civil
Service Reform Act (CSRA) would bar a Bivens claim. Id. at 44. (The Supreme
Court has held that the CSRA provides a system within which federal employees’
constitutional claims are “fully cognizable,” even if that system does not provide
complete relief for constitutional injuries. Bush v. Lucas, 462 U.S. 367, 385-86
(1983).)
The Plaintiff in this case falls into the remedy-less “gap” identified by Aryai:
neither a federal contractor nor a federal employee, the Plaintiff cannot pursue
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relief using either of the statutory schemes—the CDA or the CSRA—that federal
contractors and federal employees may use to resolve their disputes with the
government. Aryai thus framed the Bivens step-two question as follows:
“[W]hether the small subset of potential litigants that includes Plaintiff, i.e.,
employees of federal contractors, should be afforded special solicitude to invoke
Bivens when their employers (i.e., the contractors themselves) and federal
employees would be foreclosed from doing so.” Aryai, slip op. at 44. Aryai
answered that question in the negative, noting “that Congress has long been
aware that employees of 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 [which] suggests that Congress has not acted inadvertently.” Id. The
Aryai court therefore declined to do what Congress has not done and denied
Bivens relief.
Aryai’s conclusion comports with the Supreme Court’s Bivens case law,
which has held that the unavailability of a statutory remedy for violations of a
constitutional right does not necessarily invite courts to fill in Congress’s silence
with an implied cause of action. Rather, courts must exhibit “appropriate judicial
deference to indications that congressional inaction has not been inadvertent.
When the design of a Government program suggests that Congress has
provided what it considers adequate remedial mechanisms for constitutional
violations that may occur in the course of its administration, we have not created

15

additional Bivens remedies.” Schweiker v. Chilicky, 487 U.S. 412, 423 (1988).
While it is unclear whether Congress has indicated that it is aware of, and
acquiesces in, the absence of a remedial scheme for individuals in the Plaintiff’s
shoes, the Court is nonetheless hesitant to intrude on Congress’s prerogative.
Before rushing to fill statutory silence with a Bivens remedy, the Supreme
Court observed in Wilkie that courts should pay heed to “special factors
counselling hesitation.” Wilkie, 551 U.S. at 551 (citations and internal quotation
marks omitted). That is especially true in this case, where the Bivens issue lies
at the intersection of two detailed, highly-regulated areas of law that employ
elaborate dispute resolution and appeals procedures: government contracting
and federal employment. Thus, the most significant “factor counseling hesitation”
is that a Bivens remedy in this context would create incongruities which would
elevate employees of federal contractors above their peers who are directly
employed by the federal government. For example, a federal employee who
alleges that his or her employing agency took an adverse employment action in
violation of a constitutional right might be entitled to reinstatement and backpay.
See Bush, 462 U.S. at 388. Yet the employee is not permitted “to recover
damages from a supervisor who has improperly disciplined him.” Id. at 390.
However, if the Court were to imply a Bivens remedy in this case, the Plaintiff
likely would be entitled to claim damages. See Navab-Safavi v. Broadcasting Bd.
of Governors, 650 F. Supp. 2d 40, 75 (D.D.C. 2009) (implying a Bivens cause of

16

action for a federal contractor in part because “the prospect of monetary
damages will provide the appropriate deterrent effect, tempered by the protection
that qualified immunity provides government officials against frivolous claims”).
This conclusion would create a remedial scheme that is far different from what
Congress has established for federal employees and federal contractors, the two
types of plaintiffs most analogous to the Plaintiff in this case. There is no reason
to think that Congress would intend that two individuals who perform services for
the federal government—indeed, two individuals who may perform largely the
same job—should be entitled to such disparate remedies.
Rather, these disharmonious remedial schemes support the conclusion
that even if Congress has not intentionally omitted employees of federal
contractors from protective legislation, this Court would severely overstep its
constitutional bounds to do so in Congress’ stead. The Court is unwilling to
partially supplant two “elaborate remedial system[s]”—the CDA and the CSRA—
“that ha[ve] been constructed step by step, with careful attention to conflicting
policy considerations.” Bush, 462 U.S. at 388. See also Pollock v. Ridge, 310 F.
Supp. 2d 519, 530 (W.D.N.Y. 2004) (on similar facts, noting that “[t]o allow a
Bivens claim in these instances would, in effect, allow a dissatisfied federal
employee to bypass the applicable . . . statutory schemes and pursue a judicially
created private remedy in a court of law, thereby ignoring Congressional intent
altogether”).

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Further, there are two other “special factors counselling hesitation” in this
case that contribute to the Court’s decision not to imply a Bivens cause of action.
First, the Plaintiff has pointed to no reason why Akal could not bring a CDA claim
on his behalf. Indeed, the USMS’s Contracting Officer noted in his two letters to
Akal that if Akal disagreed with the Contracting Officer’s decision, then the
appropriate remedy would be a claim under the CDA. See Dkt. No. 23 at 31, 36.
The Court is mindful that this option may not provide adequate relief for the
Plaintiff. However, inadequate substitutes do not automatically imply a right to
pursue a cause of action under Bivens.
Second, the USMS is authorized to, among other things, “provide for the
personal protection of Federal jurists, court officers, witnesses, and other
threatened persons in the interests of justice.” 28 U.S.C. § 566(e)(1)(A). Thus,
as Magistrate Judge Foschio noted, “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.” Dkt. No. 39 at 21. While it may not be that the USMS should
have limitless discretion in all of its personnel decisions, neither does it suggest
that the Court should second guess the USMS’s security-related assessments of
employee suitability. Given the serious security concerns that underlie the
USMS’s decision in this or similar cases, if the USMS’s discretion should be

18

tempered, it should be Congress, and not this Court, that makes that
determination.
In an effort to defeat the conclusion that the Court should not imply a
Bivens cause of action in this case, the Plaintiff points to the decision by the
District Court for the District of Columbia in Navab-Safavi v. Broadcasting Board
of Governors, 650 F. Supp. 2d 40 (D.D.C. 2009). In Navab-Safavi, the plaintiff
was a contractor who provided translation services for the Broadcasting Board of
Governors, a federal agency responsible for “overseeing all U.S. government and
government-sponsored non-military international broadcasting services.” Id. at
46. The Plaintiff sought a Bivens remedy after she claimed that her contract was
terminated in retaliation for her participation in a music video that protested the
United States’ military activities in Iraq. Id. The Navab-Safavi court first
analyzed the CDA and the Administrative Procedures Act and concluded that
neither statutory scheme provided an adequate remedy for the plaintiff’s First
Amendment claim. However, turning to Bivens’ second step, the court concluded
that the plaintiff’s potential First Amendment claim was “judicially manageable,”
because there were no “difficult questions of valuation or causation.” Id. at 7576. The court further concluded that the defendants’ other concerns—a
“disrupt[ion]” of “federal agencies’ ability to manage contracts featuring at-will
termination rights” and the potential for an onslaught of follow-on litigation—were

19

unfounded. Id. The court therefore implied a Bivens cause of action for the
plaintiff’s First Amendment claim. Id.
This Court respectfully disagrees with Navab-Safavi. Unlike the Plaintiff in
this case, the plaintiff in Navab-Safavi appears to have directly contracted with
the federal government. Thus, the Navab-Safavi plaintiff would ordinarily be
required to raise her claim under the CDA. Nonetheless, the court in NavabSafavi concluded that in light of the injunctive and declaratory relief sought by the
plaintiff, as well as her request for damages that “cannot be ascertained by
reference to her contract,” the plaintiff’s First Amendment claim was “not the type
of ‘claim’ governed by the CDA.” Id. at 69 (quoting F.A.R. § 2.101). However,
the court’s conclusion in Navab-Safavi would permit government contractors to
plead around the CDA by requesting equitable relief, thereby avoiding the CDA’s
limited remedies and exclusive grant of jurisdiction in the Court of Federal Claims
or the contract appeals boards. See Wright & Miller, Fed. Prac. & Proc. § 4101
(noting that the Court of Federal Claims generally may not grant equitable relief).
In cases like this, contractors or employees of contractors would almost certainly
like greater relief than the Court of Federal Claims or the contract appeals boards
are able to provide. However, Bivens is concerned with adequate—not perfect—
alternative remedial schemes.
Moreover, because it involves an individual who has directly contracted
with the federal government—rather than an employee of a federal contractor—
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Naveb-Safavi’s holding is contrary to the Second Circuit’s holding in M.E.S.
Thus, this Court declines to follow Naveb-Safavi and instead agrees with the two
cases in this Circuit that have concluded that individuals in the same position as
the Plaintiff cannot obtain Bivens relief. See Aryai v. Forfeiture Support Ass’c,
LLC, 10-CV-8952 (LAP) (S.D.N.Y. Aug. 27, 2012); Pollock v. Ridge, 310 F. Supp.
2d 519 (W.D.N.Y. 2004).
The Court recognizes that its conclusion in this case means that the
Plaintiff is likely left without a remedy for the constitutional violation he allegedly
suffered. However, the Supreme Court has repeatedly stated that the absence
of a remedy is not an automatic invitation for courts to imply one under Bivens.
While this may mean that constitutional rights might go unredressed, as the court
aptly noted in Aryai, “[t]hat a particular plaintiff might suffer ‘unredressed’ injuries
were a court not to recognize a new type of Bivens action may be a hard truth but
it is a truth nonetheless and one to which the Supreme Court has alerted
potential litigations.” Aryai, slip op. at 42.
Thus, the Plaintiff’s first cause of action fails to state a claim upon which
relief may be granted and is dismissed.
B.

Claim Two: The Administrative Procedures Act

The Plaintiff’s second claim is that the USMS violated the Administrative
Procedures Act (APA) when it ordered Akal to remove the Plaintiff from CSO

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duty. The Plaintiff asks the Court to review the USMS’s decision pursuant to the
APA’s judicial review provisions. See 5 U.S.C. § 706(2).
After the Defendants filed their motion to dismiss and the Plaintiff filed his
response, Magistrate Judge Foschio requested that the parties provide additional
briefing on the question of whether the USMS’s decision was subject to APA
review. See Dkt. No. 34. With the benefit of that additional briefing, Magistrate
Judge Foschio concluded that the Court does not have subject matter jurisdiction
over the Plaintiff’s APA claim. For the reasons stated below, the Court agrees
with Magistrate Judge Foschio’s conclusion.
The issue here lies at the intersection of the APA and the Tucker Act, both
of which waive the federal government’s sovereign immunity for certain types of
claims. Section 702 of the APA “permits a party to bring an equitable claim
challenging arbitrary and capricious action of an administrative agency in federal
district court and waives the government’s sovereign immunity with respect to
such claims in that forum.” Up State Fed. Credit Union v. Walker, 198 F.3d 372
374 (2d Cir. 1999). However, § 702 also contains a provisio: “Nothing herein . . .
confers authority to grant relief if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought.” Id. In this case, the
Tucker Act “operates as such a limitation of section 702 in cases based on
contracts with the federal government.” Spectrum Leasing Corp. v. United
States, 764 F.2d 891, 893 (D.C. Cir. 1985).
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The Tucker Act serves two functions. First, the Tucker Act waives the
federal government’s sovereign immunity with respect to “any claim against the
United States founded . . . upon any express or implied contract with the United
States.” 28 U.S.C. § 1491(a)(1). Second, the Tucker Act vests the United States
Court of Federal Claims with jurisdiction over claims that fall within the Tucker
Act’s waiver of sovereign immunity. Id. See United States v. Mitchell, 463 US.
206, 212 (1983) (recognizing that “by giving the Court of [Federal] Claims
jurisdiction over specified types of claims against the United States, the Tucker
Act constitutes a waiver of sovereign immunity with respect to those claims”).
The Court of Federal Claims’ jurisdiction over Tucker Act claims is exclusive
except with respect to claims “not exceeding $10,000.” 28 U.S.C. § 1346(a)(2).
Such “Little Tucker Act” claims fall within the concurrent jurisdiction of the United
States District Courts and the Court of Federal Claims. See § 1346(a). 1
Thus, the question in this case is whether the Plaintiff’s second cause of
action, which he styles as a claim for APA review, is really a contract dispute. If it
is a contract dispute, then the Tucker Act gives jurisdiction only to the Court of
Federal Claims. 2 If, on the other hand, the Plaintiff’s claim is not really a contract
1

The Tucker Act also provides that the Court of Federal Claims “shall have jurisdiction to render
judgment upon any claim by or against, or dispute with, a contractor arising under” the Contract
Disputes Act. 28 U.S.C. § 1491(a)(2). This provision of the Tucker Act is not at issue in this
case because, as was noted in the previous section, the Plaintiff cannot bring a CDA claim.
2

The Plaintiff does not request a particular amount of damages. Instead, he seeks an order “to
make [the Plaintiff] whole, including by compensating [him] for his lost wages, loss of
employment opportunities, mental anguish, and emotional distress.” Dkt. No. 1 at 15. However,
the Court may infer, based on the pleadings in the case and the Plaintiff’s requested relief, that
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dispute, then this Court may review the USMS’s decision under the APA,
exercising jurisdiction pursuant to the general federal question jurisdiction
statute, 28 U.S.C. § 1331. See Spectrum Leasing Corp., 764 F.2d at 893
(“[R]esolution of this dispute turns upon whether [the plaintiff’s] claim is a contract
dispute subject to the jurisdiction of the Claims Court under the Tucker Act, or a
request for review of agency action under the APA and section 1331.”) The
relevant inquiry is whether the Plaintiff’s claim actually arises under the Tucker
Act, that is, whether it is a claim “founded . . . upon any express or implied
contract with the United States.” 28 U.S.C. § 1491(a)(1).
In Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982), and a
subsequent line of cases, the D.C. Circuit developed what the Second Circuit has
referred to as a “useful analysis for distinguishing contract claims from
challenges to agency action.” Up State Fed. Credit Union, 198 F.3d at 375. See
also id. at 376 (noting that “the two-pronged formulation of Megapulse . . . builds
logically on the analysis this Circuit has developed to assess jurisdiction in the
related context of the government contracts process”). According to Megapulse,
to determine whether a plaintiff is actually pleading a contract claim
masquerading as an APA claim, courts should examine “both . . . the source of
the rights upon which the plaintiff bases its claim, and upon the type of relief
sought.” Megapulse, 672 F.2d at 968. The D.C. Circuit’s “rights and remedies”
his claim is for well over $10,000. See Powell v. Castaneda, 390 F. Supp. 2d 1, 7 (D.D.C. 2005)
(collecting cases inferring a damages request for more than $10,000 in employment-related
actions).
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approach looks to whether “the claim so clearly presents a disguised contract
action that jurisdiction over the matter is properly limited to the Court of [Federal]
Claims.” Id.
Thus, the Court must first look at the “source of the rights upon which the
plaintiff bases [his] claim.” Id. It is clear that the USMS was able to take the
action it did—order that Akal remove the Plaintiff from CSO duty—only because
the contract authorized the USMS to do so; absent the contract, the USMS could
do nothing to effect the Plaintiff’s employment with Akal. This case is therefore
similar to Kielczynski v. Central Intelligence Agency, 128 F. Supp. 2d 151
(E.D.N.Y. 2001). In Kielczynski, the plaintiff alleged that he had entered into a
secret contract with the CIA pursuant to which the plaintiff “was to convey
classified information to the CIA concerning Israel in exchange for a monthly
salary of approximately $3,000 per month, as well as reimbursement of costs and
expenses.” Id. at 153. The plaintiff then alleged that after several years of
providing intelligence, the CIA “fraudulently terminated its contract with him.” Id.
(internal quotation marks and modifications omitted). The plaintiff sued, claiming
among other things that the CIA’s alleged termination of the secret contract
violated the plaintiff’s due process rights. Id. at 154.
The court in Kielczynski held that it lacked subject matter jurisdiction over
the plaintiff’s claim. According to Kielczynski, the plaintiff’s claim was ultimately
contractual in nature, because “like the plaintiff in Up State [Fed. Credit Union v.
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Walker, 198 F.3d 372 374 (2d Cir. 1999)] and unlike the plaintiff in Megapulse,
plaintiff’s rights would not have existed in the absence of a contract. Had the
parties never entered into the alleged contract in this case, [the plaintiff] would
have no possible right to seek a hearing adjudicating the rights to compensation
and protection from the harm purportedly created by that contract. Therefore, the
rights he seeks to enforce through this action are not ultimately based on
anything other than the alleged contract with the CIA.” Id. at 160 (internal
quotation marks omitted) (emphasis added). So too in this case, the Plaintiff has
no rights but for Akal’s contract with the USMS. This is therefore a case like Up
State Federal Credit Union, where, “in the absence of a contract with the
[government], . . . it is likely that no cause of action would exist at all.” Up State
Fed. Credit Union, 198 F.3d at 377 (internal quotation marks omitted).
The judicial review provisions of the APA, upon which the Plaintiff bases
his second claim, do not provide the Plaintiff with any independent source of
rights and do not alter the Court’s conclusion that the source of rights in this case
is contractual. The APA does provide individuals with rights vis-à-vis actions that
Congress has authorized an agency to take, but the APA is not itself a freestanding source of rights. It is instead—as its name implies—a source of
procedural restraints on agency action. Unless Congress has authorized an
agency to take a certain action, the APA has nothing to act against. Likewise, in
this case, the APA may constrain how the USMS exercises its authority under

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the contract, but the APA is not the source of the authority that the USMS
exercises. It is the latter issue—the source of authority, and not constraints on
that authority—that Megapulse and its progeny are concerned with.
For example, in Spectrum Leasing Corp. v. United States, 764 F.2d 891
(D.C. Cir. 1985), the General Services Administration (GSA) invoked a contract’s
liquidated damages clause and withheld payment after a government contractor
failed to comply with certain of the contract’s terms. Id. at 892. The contractor
sued in district court, alleging that “by withholding payments . . . GSA violated the
procedures set forth in” the Debt Collection Act (DCA), an act which “provides a
set of procedures and safeguards designed to assure due process protections to
delinquent government debtors and to ensure the ability of the federal
government to collect its debts.” Id. at 892 & n.1. However, applying Megapulse,
the D.C. Circuit held that the DCA only shaped the contours of GSA’s preexisting contractual authority. “The right to these payments [from GSA to the
contractor] is created in the first instance by the contract, not by the Debt
Collection Act. The DCA . . . confers no such right in the absence of the contract
itself. Although the DCA might impose procedural requirements on the
government having some impact on the contract, the Act in no way creates the
substantive right to the remedy [the contractor] seeks.” Id. at 894. The Court
finds Spectrum Leasing’s reasoning to be persuasive and, for the reasons stated
above, concludes that the Plaintiff’s source of rights in this case is contractual.

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To determine whether a Plaintiff has pleaded a disguised contract claim
over which the Court lacks subject matter jurisdiction, Megapulse next requires
that the Court look at the “the type of relief sought (or appropriate).” Megapulse,
672 F.2d at 968. Certain types of remedies, such as equitable relief, are
generally beyond the Court of Federal Claims’ jurisdiction. See Richardson v.
Morris, 409 U.S. 464, 465-66 (1973). By contrast, the Tucker Act does authorize
the Court of Federal Claims to award monetary damages. Thus, for purposes of
Tucker Act jurisdiction, claims seeking monetary damages are generally
considered “contractual.” See id. (“[T]he Tucker Act has long been construed as
authorizing only actions for money judgments and not suits for equitable relief
against the United States. The reason for the distinction flows from the fact that
the Court of Claims has no power to grant equitable relief . . . .”) (citations
omitted). In his complaint, the Plaintiff seeks declaratory relief, an order that the
USMS reinstate the Plaintiff to his position, and an order “to make [the Plaintiff]
whole, including by compensating [him] for his lost wages, loss of employment
opportunities, mental anguish, and emotional distress.” Dkt. No. 1 at 15. Thus,
the Plaintiff primarily seeks a classic contractual remedy: damages that will place
him in roughly the same position that he would have been in had the contract
been properly performed. See Kinzley v. United States, 288 Ct. Cl. 620, 629-30
(Ct. Cl. 1981) (in a claim alleging breach of an employment contract with a
federal agency, noting that “[t]he damages the plaintiff may recover for breach of
contract . . . will provide proper compensation under the rule that a party injured
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by the breach of a contract is entitled to be placed in the position (it) would have
been had the promised performance been carried out”) (internal quotation marks
omitted). Although it is true that the Plaintiff also seeks non-monetary relief, such
as reinstatement and a declaratory judgment, this case is, at its heart, an
employment dispute for which the classic—“or appropriate,” Megapulse, 672
F.2d at 968—relief is monetary damages. To the extent that the type of relief
sought is a close question, the Court holds that the source of rights at issue in
this case—i.e., the first Megapulse question—is related to and derives from the
USMS-Akal contract and therefore tips the jurisdictional issue in favor of Tucker
Act jurisdiction.
Thus, the Court concludes that the Plaintiff’s second claim, alleging that
the USMS exercised its contractual authority in violation of the APA, is actually a
claim that sounds in contract and therefore falls within the scope of the Tucker
Act. To be sure, this case presents a distinction that seems to be absent from
similar cases in which district courts have refused to exercise jurisdiction over
disguised Tucker Act claims; unlike in other cases, the Plaintiff here did not
directly contract with the government. However, on balance, the Court concludes
that, for jurisdictional purposes, the Plaintiff’s second claim in this case is more
contractual than not. See Indian Wells Valley Metal Trades Council v. United
States, 553 F. Supp. 397, 399 n.5 (Cl. Ct. 1982) (“‘[R]ational distinctions between
actions sounding genuinely in contract and those based on truly independent

29

legal grounds,’ remain within the court’s power to draw.”) (quoting Megapulse,
672 F.2d at 969) (citation omitted)). At least one other court has reached the
same conclusion on similar facts. In Pollock v. Ridge, 310 F. Supp. 2d 519, 52829 (W.D.N.Y. 2004), the plaintiff was a former employee of a government
contractor that provided administrative services for the Immigration and
Naturalization Service’s Buffalo Detention Center. Id. at 524. After her
employment was terminated, the plaintiff brought claims alleging that she was
terminated without due process. Id. The Pollock court concluded, as the Court
does in this case, that the plaintiff’s claims were “based in contract” and were
therefore within the Court of Federal Claims’ exclusive jurisdiction. Id. at 528.
Although this case presents a close question, the Court concludes that
Congress’s expressed preference for “provid[ing] a single, uniquely qualified
forum for the resolution of contractual disputes”—i.e., the Court of Federal
Claims—favors a finding that this Court lacks subject matter jurisdiction over the
second claim. Ingersoll-Rand Co. v. United States, 780 F.2d 74, 78 (D.C. Cir.
1985). The Plaintiff’s second claim ultimately asks this Court to review the
adequacy of the procedures the USMS used to determine that the Plaintiff should
be removed from the USMS-Akal contract. Although questions of procedural
adequacy under, for example, the Due Process Clause are eminently familiar to
the federal district courts, this case presents the issue in a context—government
contracting—that Congress has placed almost exclusively within the expertise of

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the Court of Federal Claims. See Wright & Miller Fed. Prac. & Proc. § 4101
(“Certainly, any dispute involving the validity, interpretation, or administration of a
contract should be heard in the Claims Court.”). Consequently, this Court lacks
subject matter jurisdiction over the Plaintiff’s second claim.
Conclusion
For the reasons stated above, the Court adopts Magistrate Judge
Foschio’s recommendation that the Defendants’ motion to dismiss be granted.
Because the Court grants the Defendants’ motion to dismiss, the Plaintiff’s Rule
56(d) motion is moot. Accordingly,
IT IS HEREBY ORDERED that the Defendants’ Motion to Dismiss, Dkt.
No. 20, is GRANTED in its entirety;
FURTHER ORDERED that the Plaintiff’s complaint is DISMISSED; and
FURTHER ORDERED that Plaintiff’s Rule 56(d) motion to defer
consideration, Dkt. No. 27, is DENIED.
SO ORDERED.
S/ Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: July 10, 2014
Buffalo, New York

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