Court officers dismissed after failing medical exams lose Rehab Act, due process appeal
Washington DC October 28 2019
Affirming summary judgment for the government on all of the due process and most of the Rehab Act claims asserted by a group of federal court security officers who were dismissed after failing medical evaluations, a D.C. Circuit panel found that, even absent an oral hearing, the medical review process afforded them sufficient notice and an opportunity to be heard as required under the Due Process Clause.
Moreover, the plaintiffs whose Rehab Act claims were dismissed failed to exhaust their administrative remedies in the manner required for claims against federal agencies. However, the court reversed the lower court’s denial of leave to amend the complaint to include additional plaintiffs’ discrimination claims under the Rehab Act and the ADA (Barkley v United States Marshals Service, September 5, 2014, Srinivasan, S).
The U.S. Marshals Service (Service) contracts with private security companies that provide security officers in federal courts. In 1997, a U.S. Judicial Conference committee expressed concern over the ability of court officers to respond to security threats.
The U.S. Public Health Service was asked to study the medical standards for the officers; it made a number of recommendations that were adopted by the Service. For one, officers must have annual medical exams to assure continued medical fitness.
A government physician reviews the annual exams to determine each officer’s medical status. If an officer is medically disqualified, he or she is given a chance to submit additional medical information. If that information fails to show medical qualification, the officer may no longer work under his employer’s federal contract as a court security officer.
Lawsuit. Fifty-four former officers who were medically disqualified from serving as federal court security officers, and their union, filed suit against the Service, alleging that the procedures leading to their dismissals did not satisfy due process and that the dismissals violated the Rehab Act. They also sued their private employers under the ADA.
The district court granted summary judgment for the Service on the due process claim and rejected the Rehab Act claims of most of the plaintiffs for failure to exhaust administrative remedies (only five exhausted their remedies). It subsequently denied class certification because, having dismissed the bulk of the claims, the class was not so numerous that joinder was impracticable. The court also denied the plaintiffs leave to amend their complaint to add claims for a number of recently terminated officers. The plaintiffs appealed.
Due process claim. Affirming summary judgment on the due process claims, the D.C. Circuit panel concluded that even if the plaintiffs possessed a “protected interest” in their continued service under the federal contract, the Service’s medical review procedures afforded them “the process they were due” because both the notice and the opportunity for hearing given to the plaintiffs met the requirements of the Due Process Clause.
With respect to notice, when a government physician reviewing an officer’s file needed further information, he or she requested it through a medical review form sent to the officer’s employer. If an officer failed to respond, a second form might be sent. Forms were addressed to the officer, and the plaintiffs identified no evidence of any officer who did not receive timely notice of the need for additional information, the court noted. “Indeed, the Marshals Service might well have reasonably viewed a response to be more likely if the officer’s employer was made party to the interaction: the companies’ contracts with the Marshals Service obligated them to ‘ensure that [officers] comply with the [Service’s] request for follow-up or clarifying information regarding treatment measures.’” Sending a form addressed to the officer through the employer, with the employer contractually bound to assure a response was notice “reasonably certain to inform those affected.” Moreover, the form adequately explained how the officer should respond.
As for the adequacy of the officers’ opportunity to be heard, the court considered three factors, including the private interest affected by the official action; the risk of an erroneous deprivation of such interest and the probable value, if any, of additional or substitute procedural safeguards; and the government’s interest, including the burden of additional or substitute procedures. Here, the Service’s medical review procedures provided constitutionally sufficient process, including “pre-termination proceedings of some kind” which “adequately limited the risk of an erroneous decision while vindicating the government’s weighty interest in assuring courthouse security.”
Specifically, before an officer could be terminated due to medical fitness, he or she was given the chance to supply additional information. There was no need for an oral hearing because the assessment of medical qualifications “suitably turns on an experienced physician’s review of written medical records.” Moreover, the physicians served as neutral decisionmakers who independently reviewed each officer’s medical records to reach an individualized determination. There was no evidence showing that any physician was biased or non-independent.
Rehab Act claims. The court also affirmed the dismissal of the Rehab Act claims for failure to exhaust administrative remedies. It noted that claims against a federal agency under the Act must first be brought before the agency. Here, the plaintiffs appealing the dismissal of their Rehab Act claims argued that, although they did not personally exhausted administrative remedies for their individual claims, “vicarious exhaustion” should permit them to proceed. Disagreeing, the appeals court explained that “vicarious exhaustion is unavailable in the circumstances of this case unless some individual exhausted the administrative procedure for a class complaint.”
Class exhaustion. The appeals court explained that although there is no class administrative remedy with respect to private employers, there are specific requirements for class administrative complaints against a federal employer. Specifically, the class administrative complaint must allege numerosity, commonality, typicality, and adequate representation much like the requirements under Rule 23. This procedure gives federal agencies a chance to discover and correct discriminatory practices and affords notice of the potential scale of a multiple-employee complaint. In light of that distinct mechanism for class claims, courts generally hold that “exhaustion of individual administrative remedies is insufficient to commence a class action in federal court.” Here, no plaintiff invoked, much less exhausted, the class administrative process.
The same result was reached with respect to the individual Rehab Act claims of the plaintiffs who failed to properly exhaust. “Vicarious exhaustion allows a plaintiff to overcome his or her own failure to satisfy the statutory requirement to exhaust administrative remedies if ‘it can fairly be said that’ exhaustion would serve ‘no conciliatory purpose,’” but that could not be said about the failure to exhaust here, the court explained. The court pointed to the important objective of promoting an agency’s awareness of, and ability to resolve, an allegedly program-wide problem and noted that there appeared to be no reason that the class administrative mechanism would have been unavailable or futile in this case. Because there were no exceptional barriers to class exhaustion, the plaintiffs could not overcome the failure personally to exhaust their claims against the government by resort to vicarious exhaustion or “piggybacking.”
Leave to amend. On the other hand, the appellate court reversed the district court’s denial of leave to amend to add the discrimination claims of 12 former officers. Here, the lower court’s primary reason for denying leave to add claims under the Rehab Act and ADA was that the plaintiffs made express reference only to due process claims. In the appellate court’s view, however, the motion otherwise made it apparent that the new plaintiffs sought to bring discrimination claims under the ADA and Rehab Act as well. For example, the motion stated that the new plaintiffs had timely exhausted their administrative remedies, which would only be relevant to the discrimination claims. Moreover, the proposed fifth amended complaint that was attached to the motion expressly included Rehab Act and ADA claims.
In addition, although the district court had stated that the defendants would be “prejudiced” if the discrimination claims were added, it was not clear that it viewed those concerns as independently sufficient grounds for declining to grant leave to amend. The appeals court also noted that leave is supposed to be “freely given” unless prejudice or delay is “undue,” that the new plaintiffs were adding substantially the same discrimination claims as the other plaintiffs, and that when they sought to add their claims, class certification had just been denied, making it necessary for the new plaintiffs to assert their own individual claims to obtain relief. For these reasons, the district court should have granted leave to include the new plaintiffs’ claims.
