Opinion
Civil Action No. 03-4514.
May 17, 2004
MEMORANDUM
Before the court is the motion of plaintiffs John Wilson, Frank Kryjer, and Donald Jones for reconsideration of this court's Order of April 1, 2004 in which we dismissed their claims against the United States Marshals Service ("USMS"), the Judicial Conference of the United States, and the United States Department of Justice (collectively, the "federal defendants"). The plaintiffs also move for leave to amend the complaint against these defendants as well as defendant MVM, Inc. ("MVM").
MVM, Inc. is also a defendant. In our April 1, 2004 order, we dismissed some but not all claims as to MVM.
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (citation omitted), cert. denied, 476 U.S. 1171 (1986). A motion for reconsideration brought under Rule 59(e) of the Federal Rules of Civil Procedure must rely on either "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice." Reich v. Compton, 834 F. Supp. 753, 755 (E.D. Pa. 1993) (citation omitted).
I.
Plaintiffs, three former Court Security Officers ("CSOs"), were terminated by their employer MVM as a result of their purported failure to meet new medical standards adopted by the USMS. Each of the defendants had worked in federal courthouses in the Eastern District of Pennsylvania pursuant to a contract between MVM and the USMS. In our April 1, 2004 Memorandum, we explained that the plaintiff CSOs are not federal employees for the purposes of § 501 of the Rehabilitation Act, 29 U.S.C. § 791, and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. We dismissed plaintiffs' claims against the federal defendants brought under both of these statutes. We based our decision on the thirteen-factor test for agency as it was articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). In making our determination, we stated:
In their memorandum in opposition to the federal defendants' motion to dismiss, the plaintiffs did not challenge defendants' argument that the Rehabilitation Act claim hinged on our determination of whether the CSOs are federal employees.
Absent some indication in a statute to the contrary, the Supreme Court has determined that Congress uses the word "employee" and related words according to their common law meaning. When a question arises as to whether a person is an employee or an independent contractor, a court must decide it consistent with the common law principles of agency.Wilson, et al. v. MVM, Inc., et al., No. 03-4514, slip op. at 5-6 (E.D. Pa. Apr. 1, 2004) (citing Reid, 490 U.S. at 751-52).
Plaintiffs contend that we should have taken into consideration several other district court decisions that have dealt with the question of whether CSOs in other parts of the country are "employees" of the federal government. See Gunnels, et al. v. Akal Security, Inc., et al., No. 02-132, slip op. (S.D. Tex. Feb. 19, 2004); Strolberg, et al. v. Akal Security, Inc., et al., No. CV-03-0004, slip op. (D. Idaho Aug. 11, 2003); Walton v. USMS, No. C-03-1460, slip op. (N.D. Ca. Jan. 15, 2004); Beck v. USMS, et al., No. CIV-02-1579-L, slip op. (W.D. Okla. June 16, 2003). These courts have applied other multifactor tests, such as the "hybrid/economic realities test" or the "joint employment test," and have also generally required a period of discovery before the question of whether the USMS is an "employer" can be decided. Further, plaintiffs contend that we should have placed more emphasis on one of the factors enumerated in the Reid test: "the hiring party's right to control the manner and means by which the product is accomplished." Reid at 751 (footnote omitted). They argue that if we had followed the path they urge, we would have reached the opposite conclusion on the question of whether the plaintiffs are employees of the federal government.
The belated contention that we should use a test of agency other than the one mandated by the Supreme Court in Reid is totally lacking in merit. In a prior brief the plaintiffs themselves recognized the applicability of Reid:
Section 501 of the Rehabilitation Act of 1973 prohibits disability discrimination by the federal government against federal employees. 29 U.S.C. § 791. As such, a determination must be made in accordance with the common law of agency as to whether or not plaintiffs are in fact employees of the federal government. In Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 [1989], the Supreme Court articulated the common-law agency test using thirteen factors to be evaluated and balanced.
Pls.' Mem. in Opp. to Fed. Defs.' Mot. to Dismiss at 9. We decline to change our conclusion under the Reid test that plaintiffs are not federal employees.
The plaintiffs also insist that we erred by not permitting them discovery on an alleged employment relationship with one or more of the federal defendants. We disagree. Unlike many cases, there is a detailed contract here between USMS and MVM fully outlining the duties and responsibilities of the parties, including the security officers. The plaintiffs' complaint does not allege that the relationship of the parties or the security officers to the parties deviated from what was set forth in this detailed, completely integrated contract. We reaffirm our prior reasoning and decision that plaintiffs have not stated a claim that they are federal employees.
Plaintiffs also contend that we committed error in considering the employment contract submitted by the federal defendants because it was not physically attached to the motion to dismiss. This position has no merit. "[A] `document integral to or explicitly relied upon in the complaint' may be considered `without converting the motion [to dismiss] into one for summary judgment.'" In re Burlington Coat Factory Sec. Lit., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996) (emphasis added inBurlington); see also Mele v. Fed. Reserve Bank of New York, No. 03-1556, slip op. at 5 n. 5 (3d Cir. Feb. 24, 2004).
II.
We next turn to the plaintiffs' renewed argument that their termination as CSOs was a denial of procedural due process. We dismissed this claim in our order dated April 1, 2004.
In their motion for reconsideration, plaintiffs cite decisions that were not presented in their responses to the defendants' motions to dismiss, and they also include a line of argument that was not developed in earlier briefs. In the future, counsel should reference existing, relevant legal authorities and make their arguments in a timely manner, rather than for the first time in connection with a motion for reconsideration.
Nevertheless, because a constitutional issue is involved, we now consider the belated citations and arguments of the plaintiffs with regard to procedural due process. Plaintiffs contend that they have a property interest in their employment relationship with MVM, since the collective bargaining agreement between their union and MVM in effect at the time of their dismissal stated that they could only be terminated for "just cause." Plaintiffs maintain that as employees of a government contractor, the property interest they have in their employment cannot be arbitrarily disrupted by government action.
At oral argument, the parties displayed some confusion over which collective bargaining agreement was applicable to the plaintiffs when they were terminated. The parties were given until April 30, 2004 to provide the court with the correct agreement. Only one agreement has since been supplied. This is the same one that we referenced in our April 1, 2004 Memorandum. This collective bargaining agreement states in relevant part that "[s]uspension or discharge shall be for just cause only."
The due process clause, of course, only applies where government action works a deprivation of a protectable interest.See Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir. 1984),cert. denied, 471 U.S. 1131 (1985). It is clear that government action was involved here, since the CSOs were terminated as a result of the federal government's refusal to grant them a medical clearance. The question before us is whether a protectable property interest existed in the plaintiffs' employment. Bd. of Regents v. Roth, 408 U.S. 564 (1972). As the Supreme Court observed in Roth:
As we observed in our April 1, 2004 Memorandum, the plaintiffs have not pleaded denial of a "liberty interest" such as would invoke the protection of the due process clause.
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.Id. at 577. In this case, as noted above, there was a collective bargaining agreement between MVM and the plaintiffs' union which governed the CSOs' employment in relation to MVM. Among other provisions, CSOs may only be fired for "just cause." Persuasive authority, now cited by plaintiffs for the first time, supports the principle that an employee may have a property interest in employment when the employee cannot be terminated except for "good" or "just" cause. See Stein v. Bd. of New York, 792 F.2d 13 (2d Cir. 1986); Merritt v. Mackey, 827 F.2d 1368 (9th Cir. 1987); see also Alexander v. Hargrove, No. CIV. 93-5510, 1994 WL 313059, at *3 (E.D. Pa. June 28, 1994). Should the government interfere with the employment relationship, even though the employer is a private party, a procedural due process right arises. Stein, 792 F.2d at 16-17.
In Stein, the plaintiff was a school bus driver employed by a private corporation that had contracted with the New York City Board of Education. Id. Stein's employment contract with the corporation stated that he could only be terminated for "good cause." Id. at 17. Following allegations that Stein had behaved inappropriately on a school bus, the Board of Education informed his employer that he would no longer be permitted to drive school routes. Id. at 15. Stein brought a due process challenge, and the Court of Appeals for the Second Circuit held that Stein had a property interest in his continued employment. Id. at 17. The court reasoned that "Stein's `claim of entitlement' arose from his contract with [the private employer]." Id.
Similarly, in Merritt, the plaintiff worked for a private company that provided drug and alcohol counseling pursuant to contracts with a county government and a federal agency.Merritt, 827 F.2d at 1370. The company's policies provided that a permanent employee could only be terminated for "just cause."Id. at 1371. A government report, after finding that the private company's management was unsatisfactory, indicated that Merritt would have to be fired before the company could receive additional funding. Id. at 1370. The Court of Appeals for the Ninth Circuit held that Merritt had a protected property interest in his employment and that there was a basis for a procedural due process challenge. Id. at 1372.
We do not now decide whether or not the federal defendants have violated any procedural due process right of the plaintiffs or what process may be due. We simply hold that it is not "beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). We therefore will deny the motion of the federal defendants to dismiss the procedural due process claims for injunctive and declaratory relief.
We need not reach the argument raised by the plaintiffs in their motion for consideration that the medical certification of a CSO is akin to a license to perform a professional activity.
Notably, the plaintiffs conceded at oral argument on the motion for reconsideration that they have no dispute with the actual physical and medical standards adopted by the federal defendants. They merely contend that these standards were applied to the CSOs in an incorrect or arbitrary manner and that they were not given an opportunity to be heard about their medical conditions.
III.
Finally, we consider the plaintiffs' motion for leave to amend the original complaint. Of course, "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . ." Fed.R.Civ.P. 15(a). The federal defendants have not yet submitted an answer to the original complaint. The plaintiffs therefore do not need permission to amend the complaint with respect to these defendants. See Kronfeld v. First Jersey Nat'l Bank, 638 F. Supp. 1454, 1460 (D.N.J. 1986). We note, however, that an attorney is bound by Rule 11 in connection with any amendment.
The plaintiffs have also moved to amend the complaint as it relates to MVM. Since MVM has filed an answer, leave of court is required. However, the plaintiffs have not attached a copy of the amended complaint to their motion. Therefore, we will deny the motion without prejudice.
ORDER
AND NOW, this day of May, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of plaintiffs for reconsideration of the court's order dated April 1, 2004 is GRANTED in part and DENIED in part;
(2) the court's order dated April 1, 2004 granting the motion of the federal defendants to dismiss Counts III, XIII, and XXIII to the extent that injunctive relief is sought is VACATED;
(3) the motion of the federal defendants to dismiss Counts III, XIII, and XXIII to the extent that these claims seek injunctive relief is DENIED;
(4) the motion of plaintiffs for reconsideration of the court's order is otherwise DENIED;
(5) the motion of plaintiffs for leave to amend the complaint as to the federal defendants is DENIED as moot; and
(6) the motion of plaintiffs for leave to amend their complaint as to defendant MVM, Inc. is DENIED without prejudice.