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Davis v. U.S. Marshals Service

United States District Court, N.D. Mississippi, Oxford Division

May 1, 2018




         BEFORE THE COURT are the [32] Motion to Dismiss for Failure to State a Claim filed by the United States Marshals Service and the United States Department of Justice, and the [40] Motion to Dismiss for Failure to State a Claim filed by the individual defendants, David Harlow and Thomas Wight (together, the “Federal Defendants”). Both Motions have been fully briefed. After due consideration of the parties' submissions and the relevant law, it is the Court's opinion that the allegations of the Amended Complaint fail to state a claim against the Federal Defendants. Accordingly, the Motions will be granted and Davis' claims against these Defendants dismissed.


         Plaintiff Jeffrey Davis complains that within days of being hired by Walden Security Services, Inc. as District Supervisor for the Northern District of Mississippi, he was “suspended from the contract” and terminated. He alleges that the Marshals Service failed to approve his employment, which was a condition of the position with Walden Security. Davis complains that he did not receive written notification from the Marshals Service that it had found a lack of qualifications or unsuitability for the position, or the information regarding his right to appeal or challenge the suitability determination under 5 CFR § 731. He had been previously employed by the Marshals Service, and contends that his employment with Walden Security was not approved in retaliation for his whistleblowing activity during his tenure at the Marshals Service. The claims included in the Amended Complaint are for denial of due process under 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), breach of contract, and violation of the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(8).

         The contract between Walden Security and the Marshals Service required the Marshals Service to determine if an applicant for a position with Walden was

suitable to perform under this contract in accordance with the criteria outlined in 5 CFR 731 Suitability and the Homeland Security Presidential Directive-12, Policy for a Common Identification Standard for Federal Employees and Contractors. The Government's primary concern is to determine whether the individual's presence or performance under this contract could pose a potential threat or risk to the U.S. Courts, the Government, or the public. Derogatory information discovered during the investigation process may render the individual unsuitable to perform under this contract.

(Am. Compl. Ex. A, at C-15, ECF No. 31-1).

         After he was informed that his employment with Walden had not been approved, Davis submitted a complaint to the U.S. Office of Special Counsel alleging retaliation for whistleblowing. (Am. Compl. Ex. D, ECF No. 31-4). The Office of Special Counsel did not investigate Davis' claim, finding that it concerned employment with a government contractor rather than the government itself. (Id. at 1).

         Davis also filed an Individual Right of Action appeal before the Merit Systems Protection Board alleging that his non-selection for the position was retaliation for his whistleblowing activity. (Am. Compl. Ex. E, ECF No. 31-5). The Administrative Law Judge dismissed the appeal for lack of jurisdiction, because Davis was not an applicant for a position with an agency. (Id. at 5). The ALJ further found that the “suitability” regulations did not apply to Davis:

The appellant also alleged that the agency failed to make a suitability determination pursuant to 5 C.F.R. § 731.202 and Section C.5 of the contract with Walden Security. AF, Tab 1. However, suitability determinations concern employment in “covered positions, ” which are defined as “a position in the competitive service, a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and a career appointment to a position in the Senior Executive Service.” The position appellant applied for with Walden Security is not a covered position under the regulations.

(Id. at 6 n.3) (emphasis added).

         When Davis initially filed this lawsuit against the United States Marshals Service, Department of Justice and Metropolitan Security Services, Inc., the Marshals Service and Department of Justice filed a motion to dismiss for lack of subject matter jurisdiction. (ECF No. 10). Davis then amended his complaint to restate his claims against the federal agencies, and added claims against two individual Marshals Service officials - Thomas Wight and David Harlow. (ECF No. 31). The agencies and individual defendants move for dismissal.

         The Legal Standard

         When considering a motion to dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Whether this standard has been met is “a context-specific task that requires the reviewing court to draw on its ...

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