MEMORANDUM OPINION
Plaintiffs in this case are five individual Court Security Officers (“CSOs”) who were medically disqualified and terminated.
Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons set forth below, Defendant’s Motion for Summary Judgment on Plaintiffs’ Due Process Claims is granted and Plaintiffs’ Cross-Motion for Summary Judgment is denied.
1. BACKGROUND
A. Factual Background
This case has a long and complex factual background, which is set out in full in the Court’s 2010 decision in Int’l Union, United Gov’t Sec. Officers of Am. v. Clark (“Int’l Union”),
To “provide for the security of’ federal courthouses, 28 U.S.C. § 566(a), the USMS contracts with private security companies. Int’l Union,
The CBAs- also require CSOs to have a physical examination during the initial clearance for employment, conducted by the private security company’s doctors
In 1997, the Judicial Conference of the United States (“Judicial’ Conference”) expressed concern that CSOs were not physically capable of responding to security threats. Int’l Union,
Under the new procedures, the private security companies must submit annual medical certificates for CSOs. As with the initial medical determination, if USPHS doctors determine during the annual medical review that a CSO is not medically qualified for duty, and after the CSO has had an opportunity to respond, the USMS sends a medical disqualification letter to the private security company requesting that the CSO be removed from the private security company’s contract with the USMS and that an application for a replacement be submitted within 14 days.
The five remaining Plaintiffs now before the Court were all medically disqualified- and -terminated under these annual - medical review procedures.
B. Procedural Background
On September 9, 2002, the Int’l Union plaintiffs filed their Amended Complaint alleging that their medical disqualifications and terminations violated the Fifth Amendment’s due process clause, as well as certain statutes. Int’l Union, United Gov’t Sec. Officers of Am. v. Clark, No. 02-1484 (D.D.C. Sept. 9, 2002) [Dkt. No. 2].
On December 2, 2002, Defendant filed his Motion to Dismiss the Int’l Union plaintiffs’ due process claim [Dkt. No. 7]. On August, 28, 2003, the Court denied Defendant’s Motion to Dismiss the Int’l Union plaintiffs’ due process claim, finding that the Int’l Union plaintiffs had stated a valid due process claim based on the just-cause clauses in the CBAs [Dkt. Nos. 24 & 25].
On January 4, 2005, Plaintiffs James Dolnack, Herman Edwards, Gary Erickson, Calvert Harvey, Wayne Mize, and Byron’ Neal filed their Amended Complaint alleging that their medical disqualifications and terminations violated the Fifth Amendment’s due process clause, as well as certain statutes. Byron Neal v. Benigno G. Reyna (“Neal”), No. 05-0007 (D.D.C. Jan. 4, 2005) [Neal Dkt. No. 3].
On October 12, 2006, Defendant filed his Motion to Dismiss Plaintiffs’ due process claim in the Amended Complaint [Neal Dkt. No. 21]. On April 10, 2010, the Court denied Defendant’s Motion to Dismiss
On February 6, 2007, Plaintiffs’ case was consolidated with the Int’l Union case [Neal Dkt. No. 23; Dkt. No. 205].
On January 10, 2008, Defendant filed his Motion for Summary Judgment on the Int’l Union plaintiffs’' due process claim [Dkt. No. 263]. On February 19, 2008, the Int’l Union plaintiffs filed their Cross-Motion for Summary Judgment [Dkt. Nos. 268 & 270]. Briefing was completed on March 28, 2008 [Dkt. Nos. 272-274]. On April 15, 2010, the Court granted Defendant’s Motion for Summary Judgment on the Int’l Union plaintiffs’ due process claim [Dkt. No. 291], The Court held that, while the Int’l Union plaintiffs had a property interest in their continued employment, they received due process before being medically disqualified and terminated. Int’l Union,
On September 29, 2011, Defendant filed the Motion for Summary Judgment now before the Court on Plaintiffs’ due process claim [Dkt. No. 349]. Plaintiffs filed their Cross-Motion for Summary Judgment on October 24, 2011 [Dkt. No. 357]. Defendant filed his Reply on November 8, 2011 [Dkt. No. 361].
In a Joint Status Report submitted on June 4, 2012, Plaintiffs and Defendant stated that they had executed agreements settling all other claims. The sole claim remaining is the due process claim brought by Plaintiffs James Dolnack, Herman Edwards, Gary Erickson, Wayne Mize, and Byron Neal against Defendant.
II. STANDARD OF REVIEW
Summary judgment is appropriate “when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no .genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Arrington v. United States,
The Supreme Court has emphasized that “at the summary judgment stage, the judge’s function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson,
III. ANALYSIS
Defendant maintains that Plaintiffs do not have a property interest in their continued employment that entitles them to due process with regard to medical disqualification and termination. Def.’s Mem. in Supp. of His Mot. for Summ. J. on the Due Process Claims (“Def.’s Mot.”) at 4 [Dkt. No. 349].’ Defendant argues that, regardless of the terms in the CBAs, the CBAs do not and cannot impose due process obligations on the USMS. Id.
In the alternative, Defendant maintains that even if Plaintiffs have a property interest in their continued employment, they were provided with the process that was due. Def.’s Mot. at 4. Defendant relies
A. Plaintiffs’ Initial Concessions
Plaintiffs concede that “it is undisputed that the facts, circumstances, and issues presented by these Plaintiffs’ due process claims are identical to those presented by the [Int’l Union plaintiffs] and Plaintiffs understand that the Court will most likely rule on these Motions in the same manner as it did for the previous dispositive motions.” Pis.’ Opp’n to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J. at 1-2 [Dkt. No. 357].
B. Law of the Case Doctrine Does Not Compel the Conclusion that Plaintiffs Have a Property Interest in Their Continued Employment
Plaintiffs maintain that the Court’s 2003 decision denying Defendant’s Motion to Dismiss the Int’l Union plaintiffs’ claims resolves the issue of whether Plaintiffs have a property interest in their continued employment. Pis.’ Mem. in Supp. of Their Opp’n to Def.’s Mot. for Summ: J. and Cross-Mot. for Summ. J. (“Pis.’ Cross-Mot.”) at 10-13. Plaintiffs argue that the Court should “deny Defendant’s Motion [for Summary Judgment] and reaffirm it [sic] decision that the individual CSOs represented by Plaintiff UGSOA have a property interest in their employment.” Id. at 13.
However, the Court has previously considered and rejected this argument. Int’l Union,
Furthermore, Plaintiffs themselves note that Defendant introduced 26 CBAs, the contracts under which Plaintiffs were employed by the private security companies, after the Court’s 2003 decision. Pis.’ Cross-Mot. at 11. The Court’s 2003 decision discussed only the just-cause clauses in the CBAs. It did not discuss the sections of the CBAs introduced as evidence after the Court’s 2003 decision. As previously explained, “Defendant presented additional facts that could have a substantial impact on the question of whether a property interest exists.” Int’l Union,
C. Plaintiffs Have a Property Interest in Their Continued Employment
The Supreme Court has held that “[t]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment.” Greene v. McElroy,
Under the Fifth Amendment, the federal Government must not deprive individuals of property “without due process of law.” U.S. Const. Amend. V. In determining whether Plaintiffs’ due process has been violated, the Court must of course first establish whether Plaintiffs have been deprived of a property interest. Bd. of Regents of State Colleges v. Roth,
The Supreme Court has held that property interests are not created by the Constitution. Roth,
Plaintiffs maintain that they have a property interest in their continued employment because the CBAs limit the private security company’s right to terminate them except for just cause. Pis.’ Cross-Mot. at 14-15. Plaintiffs also argue that the fact that the CBAs contain exceptions to the just-cause clauses in the CBAs does not diminish their property interest in their continued employment. Id. at 15.
Defendant argues that Plaintiffs do not have a property interest in their continued employment because, with a few exceptions, the CBAs were drawn so Plaintiffs were virtually at-will employees. Def.’s Reply in Supp. of His Mot. for Summ. J. on the Due Process Claims and Opp’n to Pis.’ Cross-Mot. for Summ. J. (“Def.’s Reply”) at 2. Defendant also argues that Plaintiffs do not have a property interest in their medical clearances. Id. at 2.-3.
Our Court of Appeals has held that “[t]o determine whether [one] ha[s] a property interest in continued employment, we ask if he [or she] ha[s] a legitimate expectation, based on rules (statute or regulations) or understandings (contracts, expressed or implied), that he would continue in his job.” Hall v. Ford,
Once again, the Court has previously considered and rejected this argument. Int’l Union,
Fundamental principles of labor law support the Court’s conclusion. The Ninth Circuit has held that it is “difficult to imagine a meeting of the minds between an employer and a union authorizing an employer to discharge an employee without good cause. Employer security goes to the very essence of a collective bargaining agreement.” Dickeson v. DAW Forest Products Co.,
Furthermore, the tradition of just-cause clauses in CBAs is so long-standing that courts have approved finding implied just-
cause clauses in CBAs even where no explicit provision exists. See SFIC Properties, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, Dist. Lodge 94, Local Lodge 311,
D. Plaintiffs Received Due Process Before Being Medically Disqualified
Having found that Plaintiffs have a property interest in their continued employment, the Court now addresses the issue of whether Plaintiffs received due process when they were medically disqualified and terminated.
“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer,
Courts consider three factors -in determining whether due process has been afforded: “[fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; ■ and [third], the Government’s interest, including the function involved and
Plaintiffs maintain that the procedures that Defendant followed did not provide them with sufficient notice of their medical disqualifications or with sufficient opportunity to respond. Pis.’ Cross-Mot. at 38-40. Plaintiffs argue that the USPHS’s doctor’s response form did not provide notice that Plaintiffs were charged with being medically unfit or the bases on which Plaintiffs might be medically unfit. Id. at 38-39. Plaintiffs also argue that they were not allowed to create their own responses or to have direct contact with the USPHS doctors. Id. at 39. They could only submit a prescribed list of medical information from their personal doctors or the private security company’s doctors. Id.
Defendant relies heavily on the fact that the Court granted Defendant’s Motion for Summary Judgment on the Int’l Union plaintiffs’ due process claim, and that Plaintiffs now before the Court received the same process as the Int’l Union plaintiffs. Def.’s Mot. at 1.
The Court previously held that the additional steps proposed by Plaintiffs are simply not required under the Fifth Amendment’s due process clause. Int'l Union,
Plaintiffs also maintain that their private interest in employment is substantial and that the risk of erroneous deprivation is serious. Pis.’ Cross-Mot. at 40-47. They agree with Defendant that the Government’s interest in providing adequate security for federal courthouses is legitimate. Id. at 47. However, Plaintiffs argue that Defendant has not demonstrated that the Government’s interest should outweigh the private interest or the risk of erroneous deprivation. Id. at 47-48.
Once again, the Court has previously considered and rejected this argument. Int’l Union,
The Supreme Court has held that the review of written medical records provided by doctors who have personally examined the patient is a reliable method of review. See Mathews,
The Court’s 2010 decision relied on a Third Circuit case that reached the same conclusion on similar facts. Int’l Union,
Finally, Plaintiffs contend that the lack of post-dejprivation process “render[s] their minimal pre-deprivation process constitutionally-irdSrm.” Pis.’ Cross-Mot. at 48. However, the Supreme Court has held that “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey,
In sum, while the terms of the CBAs did create a property interest in Plaintiffs’ continued employment, Plaintiffs received their appropriate and sufficient due process before being medically disqualified. Therefore, Plaintiffs’ Fifth Amendment due process claim must be denied.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment on Plaintiffs’’ Due Process Claim is granted and Plaintiffs’ Cross-Motion for Summary Judgment is denied. An order shall issue with this Memorandum Opinion.
Notes
. This case originally involved two sets of plaintiffs. The first set, the plaintiffs in Int’l Union, United Gov't Sec. Officers of Am. v. Clark, No. 02-1484 (D.D.C. Sept 9, 2002)
. This case originally involved three defendants. In addition to John Clark, in his official capacity as Director of the USMS, Defendants were Akal Security, Inc. ("Akal”) and MVM, Inc. ("MVM”) [Dkt. Nos. 59 & 60]. All claims against Defendants Akal and MVM have either been dismissed, denied on summary judgment, or settled.
. Unless otherwise noted, the facts set forth herein are drawn from the parties’ Statements of Undisputed Material Facts [Dkt. Nos. 358 & 361],
. A suspension or termination for just cause has been defined as "one which is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.” Podish v. UNC Lear Siegler,
. On December 21, 2011, Plaintiff Calvert Harvey voluntarily dismissed all claims against Defendant [Dkt. No. 365].
. Plaintiffs request that the Court "review and perhaps reconsider its prior ruling”- on the issue of whether Plaintiffs received due process. Pis.’ Opp’n to Def.’s Mot. for Summ. J. and Cross-Mot. for Summ. J. at 2 [Dkt. No. 357]. No Plaintiff has filed a Motion for Reconsideration under the applicable Rules of Civil Procedure or attempted to make the showing that such a motion requires. Therefore, the Court will not grant the request to "perhaps reconsider.”