15‐2927‐cv
Hauschild v. U.S. Marshals Serv., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 6th day of December, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR.,
ROBERT D. SACK,
DENNY CHIN,
Circuit Judges.
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DANIEL F. HAUSCHILD,
Plaintiff‐Appellant,
v. 15‐2927‐cv
UNITED STATES MARSHALS SERVICE, PATRICIA
HOFFMAN, Contracting Officer, Office of Security
Contracts, Judicial Security Division, United States
Service, in her individual capacity,
Defendants‐Appellees,
JOHN DOE, in his individual capacity,
Defendant.
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FOR PLAINTIFF‐APPELLANT: THOMAS N. CIANTRA (Kate M. Swearengen,
on the brief), Cohen, Weiss and Simon LLP, New
York, New York.
FOR DEFENDANTS‐APPELLEES: BRANDON H. COWART, Assistant United
States Attorney (Benjamin H. Torrance,
Assistant United States Attorney, on the brief),
for Preet Bharara, United States Attorney for the
Southern District of New York, New York, New
York.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Seibel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is VACATED and
the case is REMANDED for further proceedings consistent with this order.
Plaintiff‐appellant Daniel F. Hauschild appeals from a judgment of the
district court entered August 31, 2015 in favor of defendants‐appellees the United States
Marshals Service (ʺUSMSʺ) and Patricia Hoffman, dismissing his claims under the
Administrative Procedure Act (ʺAPAʺ), 5 U.S.C. §§ 702, 706(2)(A), (B).1 The district
The district court also dismissed Hauschildʹs claim under Bivens v. Six Unknown
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Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Hauschild does not contest the
district courtʹs dismissal of this claim. Hauschildʹs complaint cites 5 U.S.C. § 706 as the
statutory basis for his APA claims. That provision, however, only defines the scope of judicial
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court explained its reasoning in a decision and order entered August 28, 2015. We
assume the partiesʹ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
Hauschild was employed by Akal Security, Inc. (ʺAkalʺ), a private
company that contracted with USMS to provide security at courthouses in this Circuit.
Under the terms of the contract between USMS and Akal (the ʺContractʺ), USMS
retained sole discretion to determine whether any individual would be permitted to
work as a court security officer (ʺCSOʺ) and whether any CSO had violated performance
standards so as to warrant removal. The Contract set forth fifty‐eight ʺCSO
Performance Standards,ʺ constituting a code of conduct for CSOs. The Contract also
provided that, upon USMSʹs request, Akal would investigate suspected violations of the
CSO Performance Standards. USMS, however, reserved the right to remove CSOs from
the court security program even where Akal determined that no violation occurred.
The Contract further states that ʺthe USMS intends to incorporate all valid [collective
bargaining agreements] into the contract at time of award.ʺ
review for such claims. The source of an APA private right of action is 5 U.S.C. § 702, which
ʺpermits a party to bring an equitable claim challenging arbitrary and capricious action of an
administrative agency in federal district court and waives the governmentʹs sovereign immunity
with respect to such claims in that forum.ʺ Atterbury v. U.S. Marshals Service, 805 F.3d 398, 406
(2d Cir. 2015); see also U.S. Depʹt of Hous. & Urban Dev., 778 F.3d 412, 417 (2d Cir. 2015) (explaining
that ʺthe APAʹs limited waiver of the federal governmentʹs sovereign immunity permits only
suits seeking relief other than money damagesʺ (internal quotation marks omitted)).
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Hauschildʹs employment with Akal was governed by a collective
bargaining agreement (the ʺCBAʺ), which provided that ʺ[n]o employee, after
completion of his or her probationary period, shall be disciplined or terminated without
just cause,ʺ and set forth a grievance and arbitration procedure for resolving contractual
disputes. The CBA also provided that if a CSO were removed by USMS, his or her
employment with Akal could be terminated ʺwithout recourse to the procedures under
[the CBA].ʺ
In 2012, USMS twice received information suggesting Hauschild had
violated various CSO Performance Standards. Akal investigated the allegations. The
results of the second investigation led to Hauschild being terminated as a CSO.
Hauschild alleged in his Complaint that USMSʹs decision to terminate his
employment as a CSO was arbitrary and capricious and without sufficient due process.
USMS moved to dismiss, arguing (1) the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491,
precluded review of Hauschildʹs APA claim; and (2) even if the district court had subject
matter jurisdiction, Hauschild had no property interest in continued employment as a
CSO. The district court dismissed the APA claim for lack of subject matter jurisdiction,
accepting the argument that the Tucker Act precluded review of the APA claim.
We review de novo a district courtʹs decision to grant a motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010).
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The district court found that APA relief was precluded by the Tucker Act,
which provides that district courts lack original jurisdiction over actions based on an
express contract with the United States. See Up State Fed. Credit Union v. Walker, 198 F.3d
372, 375 (2d Cir. 1999). The district court held that USMSʹs ability to take the
disciplinary action against Hauschild was based on the Contract, and that Hauschildʹs
claim to continued employment as a CSO therefore arose from a contract with the United
States.
After the district court issued its judgment, we decided Atterbury v. U.S.
Marshals Serv., 805 F.3d 398 (2d Cir. 2015). Atterbury concerned nearly identical factual
circumstances: the dismissal of a CSO, employed by Akal pursuant to the same CBA at
issue in this case, with the rights and obligations of Akal and USMS also governed by the
Contract. Atterbury, 805 F.3d at 402‐03. In Atterbury, we held that the Tucker Act did
not preclude relief under the APA in those circumstances. Id. at 406‐09. The
Government now concedes that, in light of Atterbury, the Tucker Act does not preclude
Hauschild from seeking relief under the APA.
The Government argues, however, that we should affirm the judgment
because Hauschild has no protectable property interest in his continued employment as
a CSO. The district court did not reach this question because it concluded it lacked
subject matter jurisdiction over the APA claim. Similarly, the district court in Atterbury
did not address this issue when it dismissed the case for lack of subject matter
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jurisdiction. Atterbury, 805 F.3d at 406 n.3. There, we vacated the district courtʹs
dismissal of the APA claim without reaching the merits and remanded the case to allow
the district court to address the merits of the APA claim ‐‐ including the property‐interest
question ‐‐ in the first instance. Id. at 406 n.3, 409. The same result is appropriate here.2
Accordingly, we vacate and remand for the district court to address the merits of
Hauschildʹs APA claim in the first instance, including the question whether he has an
constitutionally protected employment‐based property right in continued employment
as a CSO.
Accordingly, we VACATE the judgment of the district court dismissing
Hauschildʹs APA claim and REMAND the matter for further proceedings consistent
with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2 The district court in Atterbury has not yet decided the merits of the APA claim.
That decision, and any subsequent appeal, may be relevant in the present case to the district
courtʹs analysis of the merits of Hauschildʹs APA claim.
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