The Court disagrees with Defendants. The language of the APA
that is quoted above allows review of agency actions for persons
who have suffered "legal wrong because of agency action."
Limiting review of agency actions only to those situations where
a relevant statute existed could completely deny judicial review
of claims by persons who allege a constitutional violation by
federal agencies. This would prima facie be rather odd since it
would appear to elevate statutory violations above constitutional
In addition, several courts have concluded that a due process
challenge is a "legal wrong" under 5 U.S.C. § 702. See United
States v. McAllister, 969 F. Supp. 1200, 1212 (D.Minn.
1997) (citing Pennsylvania R. Co. v. Dillion, 335 F.2d 292, 294
(D.C.Cir. 1964) and Farmer v. Hawk, 1996 WL 525321 *4
(D.D.C.Sept.5, 1996) (unpublished op.)). Here, Plaintiffs
adequately allege a violation of due process and the prudential
standing requirement of 5 U.S.C. § 702 is met in this case.
In addition to the arguments regarding standing, Defendants
also contend that the USMS decision to seek removal of Plaintiffs
was committed to USMS discretion and that review in this Court is
therefore precluded by 5 U.S.C. § 701(a)(2), which prohibits
review of agency actions that are "committed to agency discretion
by law." They argue that the USMS has discretion to seek removal
of unfit CSOs because there is no relevant statute to apply to
evaluate the Federal Defendants' actions in this case.
In support of their position, Federal Defendants cite several
cases involving statutes or regulations granting rather broad
authority to agency decisions. See, e.g. Lalani v. Perryman,
105 F.3d 334, 337-38 (7th Cir. 1997) (concluding that voluntary
departure regulation, 8 C.F.R. § 244.2, granted wide discretion
to government official). But Federal Defendants fail to note that
constitutional claims are treated differently, in that when
Congress wishes to preclude judicial review of constitutional
claims, it must express its intent to do so quite clearly. See
Johnson v. Robison, 415 U.S. 361, 366, 94 S.Ct. 1160, 39 L.Ed.2d
In this case, there is no evidence that Congress has expressed
its clear intent that judicial review of Plaintiffs' claims was
to be precluded. One of the few regulations identified by Federal
Defendants is 28 C.F.R. § 0.112(c), which authorizes the USMS to
deputize "employees of private security companies to provide
courtroom security." But this language does not evidence an
intent of Congress to preclude review of constitutional claims
such as those raised by Plaintiffs.
Also, Federal Defendants argue, rather briefly and unclearly,
that statements to potential employers is not final agency
action. But the action alleged here is that statements may have
been disseminated by Delaney or the USMS to Plaintiffs' potential
employers, thereby violating Plaintiffs' due process rights. The
Court finds that the statements, if actually disseminated, would
be sufficiently final to constitute final agency action subject
to review. See Bennett v. Spear, 520 U.S. 154, 177-78, 117
S.Ct. 1154, 137 L.Ed.2d 281 (1997).
Thus, the Court finds that the jurisdictional requirements have
been met in this case. The final required prerequisite to review
under the APA is that Plaintiffs must have exhausted their
administrative remedies. See 5 U.S.C. § 704; Darby v.
Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113, (1993).
Here, there is no dispute that Plaintiffs sent their notices of
appeal of their removals to both GSSC and the Federal Defendants.
Thus, the exhaustion requirement imposed by § 10(c) of the APA is
satisfied and the Court will proceed to discuss the merits of the
motions filed by GSSC and Federal Defendants.
B. Relevant Standards
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ. Pro. 56(c); See Celotex Corp.
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
see also Ruiz-Rivera v. Moyer, 70 F.3d 498, 500-01 (7th Cir.
1995). In conducting this inquiry, the evidence of the non-movant
is to be believed, and "all justifiable inferences drawn in his
favor." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986). The
moving party has the burden of providing proper documentary
evidence to show the absence of a genuine issue of material fact.
A genuine issue of material fact exists when "there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A motion to dismiss should be granted when it appears beyond a
doubt that the plaintiffs can prove no set of facts in support of
their claims that would entitle them to relief. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir. 1995).
Under Federal Rule of Civil Procedure 12(b)(6) the well-pleaded
factual allegations are accepted as true and all reasonable
inferences are drawn in favor of Plaintiff. See Swofford v.
Mandrell, 969 F.2d 547, 549 (7th Cir. 1992).
Since many of Plaintiffs' claims depend upon the existence of a
property or liberty interest, the Court will first address the
question whether Plaintiffs have raised a genuine issue of
material fact as to the existence of a property or liberty
interest in this case.
C. Property Interests
Plaintiffs contend that they had a property interest in their
special deputations, their pocket badges and their identification
cards as well as their positions themselves. Plaintiffs contend
that these credentials constituted property rather than merely
equipment or identification badges. Plaintiffs further argue that
because the credentials were property interests, they could only
be revoked after affording the Plaintiffs procedures that
complied with the requirements of due process.
Property interests have been defined by the following criteria:
[t]o have a property interest in a benefit, a person
clearly must have more than an abstract need or
desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a
legitimate claim of entitlement to it. . . . Property
interests, of course, are not created by the
Constitution. Rather, they are created and their
dimensions are defined by existing rules or
understandings that stem from an independent source
such as state law — rules or understandings that
secure certain benefits and that support claims of
entitlement to those benefits. Board of Regents
State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972).
An entitlement is "securely and durably yours . . . as distinct
from what you hold subject to so many conditions as to make your
interest meager, transitory, or uncertain". Reed v. Village of