October 25, 2019
The U.S. Court of Appeals for the Second Circuit has ruled that former Court Security Officers Stephen Atterbury and Daniel Hauschild were owed due process protections by the United States Marshals Service, which ordered their federal contractor employer to fire them without explaining its rationale.
CSOs are deputized by the Marshals Service and employed by federal contractors. At the time of his discharge, Atterbury had worked as a CSO for almost a decade at the federal courthouse in Rochester, New York. Hauschild had worked as a CSO for 23 years at the federal courthouse in Poughkeepsie. Both were members of United States Court Security Officers, a labor union that represents CSOs at federal courthouses nationwide.
The Marshals Service directed Akal Security, Atterbury’s contractor employer, to fire him after he became sick and left work with the permission of his supervisor. Following an investigation in which Akal sided with Atterbury, the Marshals Service sent Akal a form letter that did not explain why the agency disagreed with Akal’s conclusions. The Marshals Service did not afford Atterbury a hearing at which he could cross-examine witnesses, even though there were significant discrepancies in written witness statements as to whether Atterbury was really ill or simply mad about an assignment when he left the courthouse.
The Marshals Service directed Akal to fire Hauschild following its initiation of serial investigations into stale, anonymous complaints against him. Following an investigation in which Akal found no merit to ten of the allegations against him and partially sustained the eleventh, but recommended he be issued only a time served suspension, the Marshals Service sent Akal a cursory letter saying it disagreed with its conclusions. The Marshals Service refused Hauschild’s request for a hearing.
The collective bargaining agreement that USCSO negotiated with Akal contained language providing that discipline and discharges must be with “just cause.” A CSO fired by Akal could challenge their termination through the contractual grievance and arbitration process. But a CSO whose removal was directed by the Marshals Service could not.
Atterbury and Hauschild filed federal lawsuits challenging their terminations pursuant to the Administrative Procedure Act. They alleged that they had a property right in continued employment as CSOs such that the Marshals Service was required to provide them due process protections — namely, notice and a hearing. Following an unfavorable decision in Atterbury’s case and a favorable decision in Hauschild’s at the trial court level, the cases were consolidated on appeal to the Second Circuit. There, a three-judge panel ruled unanimously in favor of the CSOs, concluding that they had a property right in continued employment that the Marshals Service had violated when it denied them due process protections. The Court remanded both cases to the Marshals Service for further processing in accordance with its decision.
CWS attorneys Joshua J. Ellison and Kate M. Swearengen and former CWS attorney Thomas N. Ciantra represented Atterbury and Hauschild. A copy of the decision can be found here.