United States District Court, N.D. Mississippi, Oxford Division
JEFFREY K. DAVIS PLAINTIFF
U.S. MARSHALS SERVICE, U.S. DEPARTMENT OF JUSTICE, ATTORNEY GENERAL SESSIONS, METROPOLITAN SECURITY SERVICES, INC., d/b/a WALDEN SECURITY, THOMAS WIGHT, and DAVID HARLOW DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS TO
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT are the  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  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.
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).
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
(Am. Compl. Ex. A, at C-15, ECF No. 31-1).
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).
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).
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.
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 ...