United States District Court, N.D. California
September 12, 2005.
NAOMI WALTON, Plaintiff,
U.S. MARSHALS SERVICE, et al., Defendants.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants have filed a motion for summary judgment. Having
carefully considered the argument of counsel and the papers
submitted on the motion,*fn1 the Court hereby GRANTS
defendants' motion for summary judgment.
Plaintiff was employed for fourteen years as a court security
officer ("CSO") by Akal Security. CSOs guard courthouse
entrances, screen visitors, inspect packages and mail, and
provide a security presence in courtrooms. Akal has been
contracted by the United States Marshal Service ("USMS") to
provide security at federal courthouses in the Ninth Circuit.
CSOs must meet physical requirements established in the contract
between Akal and USMS through yearly physical examinations.
Until 2000, CSOs were evaluated for medical conditions using a
federal Civil Service form developed in the 1960's. In 1999, the
United States Judicial Conference, which oversees the judicial
security program, requested a job-task analysis of the CSO
position. In response to that request, Dr. Richard Miller,
Director of Law Enforcement Medical Programs for the Office of Federal
Occupational Health, produced a report recommending changes to
the physical requirements for CSOs. Dr. Miller's report was
largely adopted by the Judicial Conference, which directed the
USMS to implement a number of changes to CSO medical standards.
Some of these changes involved minimum hearing standards which
must be met without the use of hearing aids. However, the
Judicial Conference allowed CSOs who pass the hearing test
without hearing aids to wear hearing aids on the job.
In November 2001, plaintiff underwent audiological testing. On
January 17, 2002, Dr. Chelton, a medical review officer for the
Office of Federal Occupational Health, reviewed plaintiff's
medical submission and found that it did not meet the required
standard. In response, plaintiff performed another audiogram test
on April 5, 2002. Dr. Chelton reviewed the additional results on
May 31, 2002 and found that plaintiff has "a significant hearing
impairment according to the results of the tests provided."
Specifically, plaintiff tested to have a disparity between her
right and left ear in her ability to detect sound. This disparity
would impact her ability to localize sound. Localizing sound is
the "ability to identify the direction and distance of a sound
source outside the head." Benay Decl, Ex. Z at USA000571. Based
on the test results, Dr. Chelton concluded that plaintiff was not
qualified to perform the job of CSO. As a result, USMS
disqualified plaintiff from her position as a CSO. Due to her
disqualification, plaintiff's employment with Akal was
Plaintiff brought suit in this Court, alleging that she has
suffered and continues to suffer irreparable harm after being
terminated. In her Third Amended Complaint, plaintiff has sued
various individuals and federal agencies under the Rehabilitation
Act of 1973, 29 U.S.C. § 701 et seq., and the Administrative
Procedures Act, 5 U.S.C. § 701 et seq. The Court denied
plaintiff's motion for summary judgment on January 24, 2005.
Defendants now bring their motion for summary judgment.
I. Summary judgment
Summary judgment is proper "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 a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party, however, has no burden to
negate or disprove matters on which the non-moving party will
have the burden of proofat trial. The moving party need only
point out to the Court that there is an absence of evidence to
support the non-moving party's case. See id. at 325.
The burden then shifts to the non-moving party to "designate
`specific facts showing that there is a genuine issue for
trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry
this burden, the non-moving party must "do more than simply show
that there is some metaphysical doubt as to the material facts."
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). "The mere existence of a scintilla of
evidence . . . will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving party]."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a motion for summary judgment, the evidence is
viewed in the light most favorable to the non-moving party, and
all justifiable inferences are to be drawn in its favor. Id. at
255. "Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge [when she] is ruling on a motion
for summary judgment." Id.
II. Rehabilitation Act
To state a prima facie case under the Rehabilitation Act,
plaintiff must demonstrate that (1) she is a person with a
disability, (2) who is otherwise qualified for employment, and
(3) suffered discrimination because of her disability. See
Lucero v. Hart., 915 F.2d 1367, 1371 (9th Cir. 1990); Reynolds
v. Brock, 815 F.2d 571, 573-74 (9th Cir. 1987). Once a plaintiff
has made out a prima facie case, the burden then shifts to the
defendant to offer a legitimate, nondiscriminatory reason for its
adverse employment action. Once the defendant articulates such a
reason, the plaintiff must then offer evidence to show that the
defendant's proffered reason is a pretext for discrimination or
retaliation for protected activity. See Lucero,
915 F.2d at 1371.
I. Proper defendants
Under the Rehabilitation Act, the proper defendant is the head
of the government agency against which discrimination is alleged. See Barsen v. Department of the
Interior, 896 F.2d 422, 423 (9th Cir. 1990); Dean v. United
States, 484 F.Supp. 888, 898-890 (D.C.N.D. 1980). Defendants
argue that the only proper defendant for plaintiff's
Rehabilitation Act claim is Attorney General Alberto Gonzales, as
the head of the Department of Justice. Plaintiff, in her
complaint, does not clearly designate which causes of action are
brought against each defendant. Therefore, the Court GRANTS
defendants' motion for summary judgment to all defendants except
the Attorney General for plaintiff's Rehabilitation Act claim.
Defendants also assert that Marc Farmer, the Chief of the
Judicial Protective Services of the United States Marshals
Service, is the only proper defendant under plaintiff's
Administrative Procedures Act claim. Actions under 5 U.S.C. § 703
may be brought against "the United States, the agency by its
official title, or the appropriate officer." Defendants argue
that Farmer made the final agency decision involved in
plaintiff's APA claim by approving the decision that plaintiff
was not qualified to continue her employment as a CSO. Plaintiff
appears to argue that Farmer, the United States Marshals Service,
and the United States Department of Health & Human Services were
all involved in plaintiff's termination.
Courts have recognized that "when an instrumentality of the
United States is the real defendant," then the plaintiff may name
as defendant "the United States, the agency by its official
title, or the appropriate officer." Jones v. United States Drug
Enforcement Agency, 801 F.Supp. 15, 19 (M.D. Tenn 1992).
Additionally, "[t]he outcome of the case should not turn on the
plaintiff's choice." Id. Therefore, the Court will allow
plaintiff to bring her APA claim against Farmer and the United
States Marshals Service, as both were directly responsible for
the determination to terminate her employment. However, the Court
GRANTS defendants' motion with respect to all defendants aside
from Farmer and the USMS for plaintiff's APA claim.
Given the Court's holding that Attorney General Alberto
Gonzales is the only proper defendant for plaintiff's
Rehabilitation Act claim and that Farmer and the USMS are the
proper defendants for plaintiff's APA claim, the Court now turns
to defendants' arguments regarding the merits of those claims.
II. Rehabilitation Act
A. Is plaintiff "disabled" as defined by the Rehabilitation
The Americans with Disabilities Act ("ADA"), whose standards of
substantive liability are incorporated in the Rehabilitation Act, defines "disability" as: 1) a physical
or mental impairment that substantially limits one or more of the
major life activities of such individual; 2) a record of such an
impairment; or 3) being regarded as having such an impairment.
42 U.S.C. § 12102(2); Coons v. Secretary of the U.S. Dept. of the
Treasury, 383 F.3d 879, 884 (9th Cir. 2004).
1. Physical impairment
Defendants request that the Court grant summary judgment with
respect to plaintiff's claim that she is actually disabled
because plaintiff has not presented any evidence that her hearing
impairment substantially limits any major life activity in her
daily life. Plaintiff acknowledges that she is not actually
disabled as defined under the Rehabilitation Act. See Pl.'s
Opp'n at 17. Therefore, the Court GRANTS defendant's motion with
respect to the first prong of the definition of "disability"
under the Rehabilitation Act.
2. Record of a physical impairment
In a single paragraph, plaintiff contends that her audiological
testing results demonstrate that she has a record of a
disability. Specifically, plaintiff's test results found more
than a 25dB difference between the hearing in the right and left
ear. Benay Decl., Ex. U at ¶ 5.
A record of an impairment "means [that the individual] has a
history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major
life activities." 29 C.F.R. § 1630.2(k). "The purpose of this
provision is largely to protect those who have recovered or are
recovering from substantially limiting impairments from
discrimination based on their medical history." Bailey v.
Georgia-Pacific Corp., 306 F.3d 1162, 1169 (1st Cir. 2002);
see also 9 Lex K. Larson Employment Discrimination §
153.08, at 153-62 ("A worker without a current impairment may
nevertheless benefit from . . . protection if he or she has a
record of a substantially limiting impairment"). Plaintiff has
not produced any evidence that she has a medical history of
hearing loss, as plaintiff was not aware of her limitation until
the testing under the new CSO medical standards. Plaintiff also
has not produced any evidence that she has recovered her ability
to localize sound; in fact, plaintiff still has the impairment
documented in her test results. Therefore, the Court GRANTS
defendants' motion with respect to the second prong of
"disability" under the Rehabilitation Act. 3. Regarded as having an impairment
Plaintiff asserts that she is "disabled" under the
Rehabilitation Act because the USMS "regarded" her as having an
impairment that substantially limits the major life activities of
working and hearing.
In Equal Employment Opportunity Commission v. United Parcel
Service, 306 F.3d 794 (9th Cir. 2002),*fn2 the Ninth
Circuit stated that "the Supreme Court has held that a person is
`regarded as' disabled (at least for purposes of the major life
activity of working) if the covered entity `mistakenly believes
that the person's actual, nonlimiting impairment substantially
limits one or more major life activities.'" 306 F.3d at 804
(citing Murphy v. United Parcel Service, Inc., 527 U.S. 516,
521-22 (1999)). The court then cited the following passage from
Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999):
There are two apparent ways in which individuals may
fall within this statutory definition: 1) a covered
entity mistakenly believes that a person has a
physical impairment that substantially limits one or
more major life activities, or 2) a covered entity
mistakenly believes that an actual, non-limiting
impairment substantially limits one or more major
life activities. In both cases, it is necessary that
a covered entity entertain misperceptions about the
individual it must believe either that one has a
substantial limiting impairment that one does not
have or that one has a substantial limiting
impairment when, in fact, the impairment is not so
limiting. These misperceptions often result from
stereotypic assumptions not truly indicative of
EEOC v. UPS, 306 F.3d at 803.
The court also recognized that perceived impairments must be
"substantially limiting and significant." Id. In EEOC v. UPS,
the court dealt with an ADA claim by plaintiffs with monocular
vision, who did not qualify as drivers because of defendant's
vision protocol. When evaluating the claim of a plaintiff
alleging that defendant "regarded" him as disabled, the Ninth
Circuit found that in order to satisfy the requirements provided
in Sutton, plaintiffs must demonstrate that defendant "regarded
their vision impairment as substantially limiting their overall
ability to see for daily living." Id. at 806. Although Sutton
applied to the major life activity of working, the court found
the test to be equally applicable to seeing. Id. at 804.
Therefore, the standard also applies for plaintiff's claim with
respect to hearing. i. Working
Working is a major life activity under the ADA.
29 C.F.R. § 1630.2(i). Additionally, the major life activity of work contains
a specific definition of "substantially limits":
The term substantially limits means significantly
restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes
as compared to the average person having comparable
training, skills, and abilities. The inability to
perform a single, particular job does not constitute
a substantial limitation on the major life activity
29 C.F.R. § 1630.2(j)(3)(i).
Plaintiff presents no evidence that defendants mistakenly
believe that plaintiff has a substantially limiting impairment
that plaintiff does not actually have. Instead, the parties agree
on the extent of plaintiff's impairment based on the auditory
Plaintiff has presented evidence that defendants believed that
plaintiff's limiting impairment could preclude her from various
law enforcement positions. Benay Decl., Ex. E at 289; Benay
Decl., Ex. F at 78. However, plaintiff's evidence is limited to
active duty, weapons-carrying law enforcement positions. "An
active law enforcement position [is] not a broad enough job
category to be a substantial limitation on working." Bass v. The
County of Butte, 2004 WL 1925468, * 5 (E.D. Cal. 2004). For
example, many courts have recognized that "being declared
unsuitable for the particular position of police officer is not a
substantial limitation of a major life activity." Daley v.
Koch, 892 F.2d 212, 215-16 (2d Cr. 1989); see also Rossbach
v. City of Miami, 371 F.3d 1354, 1361 (11th Cir. 2004).
Instead, the proper scope of plaintiff's occupation is "law
enforcement generally." Hughes v. Bedsole, 48 F.3d 1376,
1388-89 (4th Cir. 1995); Papadopoulos v. Modesto Police
Department, 31 F.Supp.2d 1209, 1221 (E.D. Cal. 1998) (holding
that position of background investigator was "law enforcement
work"); Smaw v. Virginia Department of State Police,
862 F.Supp. 1469, 1475 (E.D. Va. 1994) (holding that former state
trooper demoted to dispatcher was still employed in the law
enforcement field). Plaintiff has presented no evidence of
defendants' opinion regarding jobs in the field of law
enforcement, other than active duty, weapons-carrying government
law enforcement positions; therefore, plaintiff has failed to
present any evidence in support of her claim that defendants
regarded her as significantly restricted in performing a "class"
or "broad range" of jobs under the Rehabilitation Act. The Court
GRANTS defendants' motion for summary judgment with respect to the life activity of working.
Plaintiff alleges that defendants regard plaintiff as
substantially limited in the major life activity of hearing.
29 C.F.R. § 1630.2(i); see 29 C.F.R. § 1360.2(j)(ii) (defining
"substantial limitation" as "significantly restricted as to the
condition, manner, or duration under which an individual can
perform . . . as compared to . . . the average person in the
general population"). Plaintiff must demonstrate that defendants
regarded plaintiff as having an impairment that prevents or
severely restricts use of her hearing in daily life. EEOC v.
UPS, 306 F.3d at 806. It is not sufficient for plaintiff to
demonstrate that defendants regarded plaintiff as having a
limiting, but not substantially limiting, hearing impairment.
Plaintiff was found to be unable to localize sound based on
auditory testing established by defendants. However, defendants'
hearing requirement does not establish that defendants regard
plaintiff as substantially limited in the life activity of
hearing. Sutton, 527 U.S. at 490. Instead, "an employer is free
to decide that physical characteristics or medical conditions
that do not rise to the level of an impairment . . . are
preferable to others, just as it is free to decide that some
limiting, but not substantially limiting, impairments make
individuals less than ideally suited for a job." Id. at 490-91.
Defendants have presented evidence that the hearing
requirements solely relate to performing the essential functions
of the CSO position. Roth Decl. at ¶ 8; Miller Decl. at ¶ 12;
Barson Decl. at ¶ 5(a). In fact, Judge Roth, the chair of the
United States Judicial Committee on Security and Facilities,
stated that the policy "was in no way intended to reflect a CSO's
ability to engage in life activities." Roth Decl. at ¶ 8; see
also Miller Decl. at ¶ 12; Barson Decl. at ¶ 5(a). If the USMS
recommends removal of the CSO based on medical disqualification,
"the USMS does not consider whether the CSO's medical condition . . .
affects his or her day-to-day activities. We are only
concerned with whether the individual meets the CSO medical
standards and is capable of performing the essential functions of
the CSO position." Farmer Decl. at ¶ 36.
The determination of the essential CSO functions was made based
on a report by Dr. Miller. In order to prepare his report, Dr.
Miller visited five district courthouses and spoke with CSOs,
federal judges, U.S. Marshals and Deputy U.S. Marshals. Miller
Decl. at ¶ 8. Dr. Miller identified 29 essential job functions,
which included the ability to determine the location of sound. Farmer
Decl. at ¶ 26. Dr. Miller asserted that "[t]he safety of the
federal judiciary, court personnel, and the public depends on
CSO's ability to hear, localize, discriminate, recognize, and/or
understand a variety of environmental and speech sounds." Miller
Decl. at ¶ 20. Specifically, Dr. Miller found that CSOs "must be
able to discern the direction of a disturbance or detect an
approaching threat (sound localization)." Id. at ¶ 22.
Plaintiff took two medical examinations for the CSO position.
Supp. Chelton Decl. at ¶¶ 7, 9. The results of both examinations
were reviewed by Dr. Louis Chelton, a reviewing physician for Law
Enforcement Medical Programs at the department of Federal
Occupational Health. Id. at ¶ 1. Dr. Chelton found that
plaintiff's "pure tone audiogram did not meet the required
standard." Supp. Chelton Decl. at Ex. 1. According to Dr. Chelton
the disparity between her right and left ear in her ability to
detect sound would "impact her ability to perform the essential
job function of localizing sound." Id. at ¶ 7.
Therefore, the "evidence bearing on [defendants'] perception of
[plaintiff's] impairment indicates that its perception was not
based upon speculation, stereotype, or myth," but was based upon
medical test results. Wooten v. Farmland Foods, 58 F.3d 382,
386 (8th Cir. 1995). When Dr. Chelton found that plaintiff was
not medically qualified for the CSO position, he stated that
"[w]ith only one functioning ear, you are unable to localize the
direction of sound, an essential job function." Benay Decl., Ex.
N at 2. However, none of the above evidence demonstrates that
defendants regarded the inability to localize sound and discern
the direction of a disturbance as a substantial limitation on
hearing in plaintiff's daily life.
Plaintiff presents the declaration of Dr. Robert Sweetow,
Director of Audiology at the University of California. See
Supp. Simmons Decl., Ex. 1. In that declaration, Dr. Sweetow
states that the ability to localize sound is "essential" to the
manner in which individuals use their sense of hearing. Id. at
1. He concludes that "being unable to localize sound
severely/significantly restricts one's hearing as compared to how
unimpaired people normally hear in everyday life." Id. However,
this evidence does not demonstrate that defendants regarded
plaintiff's hearing impairment as "substantially limiting" her
"overall ability to [hear] for daily living." EEOC v. UPS,
306 F.3d at 794. Instead, Dr. Sweetow provides his medical opinion
regarding the general impact of an individual's inability to
localize sound. Plaintiff also refers to a draft report on
auditory localization prepared for United States Immigration and
Naturalization Services by Dr. Lynn E. Cook, an occupational audiologist for the U.S. Naval Medical Center. See
Benay Decl., Ex. Z. In the October 2002 report, Dr. Cook states
that auditory localization "allows us to pinpoint the direction of
a yell for help or other sound of interest, locate an air leak on
a vehicle, locate the position of another person, . . . locate
sounds to the floor above or below, [and] locate the direction
and distance of a moving vehicle or an emergency siren." Id. at
USA000573. Dr. Cook also states that "[p]erhaps most importantly,
auditory localization allows the listener to quickly locate and
attend to the speaker, especially when conversation switches
rapidly between speakers." Id. However, Dr. Cook found that
"[w]hile visual localization of a sound source is generally just
as accurate, it is not nearly as efficient (quick) as auditory
localization." Id. In summary, Dr. Cook determined that
"[d]ifficulty in localizing environmental sounds can be
inconvenient, and in some situations the impaired listener may be
in danger." Id.
However, Dr. Cook's report does not demonstrate that defendants
regarded plaintiff as disabled as defined under the
Rehabilitation Act for many reasons. It is not clear that this
excerpt is sufficient to find that Dr. Cook finds individuals who
are unable to localize sound to be significantly limited in
hearing in their daily life. Although Dr. Cook lists a number of
activities affected by the inability to localize sound, she
describes these problems as "inconvenient."
Assuming Dr. Cook finds that individuals who cannot localize
are substantially limited in the activity of hearing, plaintiff
has not demonstrated that defendants also regarded those
individuals as disabled. Dr. Cook was not responsible for
creating the CSO medical requirements; instead, she was
"periodically consult[ed]" by Dr. Miller. Miller Decl. at ¶ 24.
Dr. Miller was responsible for drafting the policy and has
testified that he did not consider an individual's ability to
engage in life activities when creating the CSO medical
standards. Id. at ¶ 12. Dr. Miller also did not rely upon Dr.
Cook's opinions with respect to everyday activities, as the
"standards reflect input we received from [Dr. Cook] regarding
the hearing demands of this type of position and the problems
associated with hearing aids." Id. at ¶ 24. There is no
evidence that defendants considered Dr. Cook's positions with
respect to the daily life activity of hearing. Again, every
individual responsible for the creation and implementation of the
CSO medical standards stated that the policy does not reflect any
opinion about everyday life activities. Roth Decl. at ¶ 8; Miller
Decl. at ¶ 12; Barson Decl. at ¶ 5(a); Farmer Decl. at ¶ 36. Even if Dr. Cook's findings are applied to defendants, it is
not sufficient to find that defendants regarded plaintiff as
disabled in the major life activity of hearing under the
Rehabilitation Act. In Sutton, the Supreme Court held that in
order to find that a person is regarded as disabled, "it is
necessary that a covered entity entertain misperceptions about
the individual it must believe either that one has a
substantial limiting impairment that one does not have or that
one has a substantial limiting impairment when, in fact, the
impairment is not so limiting." Sutton, 527 U.S. at 489.
Plaintiff has not presented any evidence that defendants have
any "misperceptions" with respect to plaintiff's hearing.
Plaintiff does not dispute the test results from multiple medical
examinations or defendants' assertion that plaintiff, without
hearing aids, has difficulty localizing sound. Nor does plaintiff
present any evidence that defendants believed plaintiff's hearing
loss to be more substantial than it really was. Plaintiff also
does not present any evidence that defendants have a
misperception regarding the limitations of her impairment. In
fact, plaintiff's expert, Dr. Sweetow, testifies that the
inability to localize sound "severely/significantly restricts
one's hearing as compared to how unimpaired people normally hear
in everyday life." Supp. Simmons Decl., Ex. 1 at 1. Thus,
plaintiff's expert finds that the limitation is as significant,
if not more significant, as Dr. Cook's finding that the inability
to localize sound is "inconvenient" because impaired individuals
have difficulty performing some tasks. Given the overlap between
Dr. Sweetow's and Dr. Cook's findings, plaintiff has failed to
present any evidence that defendants had any "misperceptions"
about plaintiff. Therefore, Dr. Cook's testimony does not support
plaintiff's assertion that defendants' regarded her as disabled
under the Rehabilitation Act.
Plaintiff's remaining evidence consists of the defendants'
medical requirements for the CSO position and Dr. Chelton's
review of plaintiff's examination results. As the Supreme Court
found in Sutton, a hearing requirement alone is not sufficient
to establish that defendants regarded plaintiff as substantially
limited in the major life activity of hearing. Dr. Chelton's
report only considers plaintiff's examination results with
respect to her ability to perform the essential CSO functions.
Dr. Chelton makes no reference to disabilities or limitations on
daily life activities. Therefore, plaintiff has failed to present
evidence that defendants regarded plaintiff as substantially
limited in the major life activity of hearing and the Court
GRANTS summary judgment in favor of defendants. B. Summary
As discussed above, plaintiff has failed to demonstrate that
she is a person with a disability under any of the three
definitions of disability in 42 U.S.C. § 12102(2). Being a person
with a disability as defined under 42 U.S.C. § 12102(2) is one of
the three requirements to stating a prima facie case under the
Rehabilitation Act. Given that plaintiff has failed to present a
prima facie case under the Rehabilitation Act, the Court GRANTS
summary judgment in favor of defendant for plaintiff's
Rehabilitation Act claim.
III. Administrative Procedures Act
Defendants bring a motion for summary judgment against
plaintiff's Administrative Procedures Act claim. Plaintiff brings
this claim in the alternative, in order to protect this cause of
action if an appellate court finds that the USMS is not a joint
employer of plaintiff. However, this Court has found that the
USMS meets the requirements of the joint employer test;
therefore, plaintiff does not have a valid claim against
defendant under the APA at this time. Defendants ask the Court to
rule on the merits of plaintiff's claim at this time in order to
avoid remand. The Court will not address the merits of a claim
that currently is invalid. The Court GRANTS defendants' motion
for summary judgment with respect to plaintiff's APA claim;
however, if the Court's holding that the USMS is a joint employer
is reversed, the Court will address the merits of plaintiff's APA
claim on remand.
For the foregoing reasons and for good cause shown, the Court
hereby GRANTS defendants' motion for summary judgment in its
entirety. The pending motions in limine are denied as moot.
[Docket ## 167, 168, 178, 193, 203, 213.]
IT IS SO ORDERED.
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