Davis v. US Marshals Srv ( 2021 )


Menu:
  • Case: 20-60465   Document: 00515796920     Page: 1    Date Filed: 03/25/2021
    United States Court of Appeals
    for the Fifth Circuit                       United States Court of Appeals
    Fifth Circuit
    FILED
    March 25, 2021
    No. 20-60465
    Lyle W. Cayce
    Clerk
    Jeffrey K. Davis,
    Plaintiff—Appellant,
    versus
    United States Marshals Service, an Agency of the United States
    of America; United States Department of Justice, an Agency of
    the United States of America, both by and through Loretta
    Lynch, the Attorney General of the United States of America;
    Metropolitan Security Services, Incorporated, doing
    business as Walden Security; Thomas Wight; David
    Harlow,
    Defendants—Appellees,
    consolidated with
    _____________
    No. 20-60507
    _____________
    Jeffrey K. Davis,
    Plaintiff—Appellant,
    versus
    Case: 20-60465      Document: 00515796920         Page: 2     Date Filed: 03/25/2021
    United States Marshals Service, an Agency of the United States
    of America; United States Department of Justice, an Agency of
    the United States of America; Metropolitan Security Services,
    Incorporated, doing business as Walden Security,
    Defendants—Appellees.
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 3:16-CV-300
    Before Elrod, Willett, and Engelhardt, Circuit Judges.
    Per Curiam:*
    Jeffrey Davis was offered a position as a district supervisor under a
    court security contract between the United States Marshals Service and
    Metropolitan Security Services d/b/a Walden Security. Davis brought a
    claim against the Department of Justice, United States Marshals Service,
    Metropolitan Security Systems, Inc., and two United States Marshals
    Service employees in their individual capacity for alleged denial of due
    process, breach of contract, and violation of rights under the Whistleblower
    Act after his contingent offer of employment was withdrawn. The district
    court dismissed the case. We vacate and remand with instructions to dismiss
    Davis’s breach-of-contract claim against the Federal Defendants for lack of
    jurisdiction, and affirm the district court’s dismissal of Davis’s other claims.
    I. Background and Procedural History
    Jeffrey K. Davis (Davis) is a former employee of the United States
    Marshals Service (Marshals Service). He began working for the Marshals
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    2
    Case: 20-60465       Document: 00515796920        Page: 3    Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    Service in 1991. From 1998 to 2003, Davis was assigned as the Contracting
    Officer’s Technical Representative with oversight responsibilities for the
    Court Security Officers program in the U.S. District Court for the Northern
    District of Mississippi. Davis served in various non-supervisory positions in
    the Northern District of Mississippi, until the last three years of his service
    with the Marshals Service when he transferred to serve as the Operations
    Supervisor for the Memphis, Tennessee office. In June or July 2011, Davis
    received written notification that he had been deemed “suitable” for
    continued employment. Davis’s suitability determination was to remain
    effective for five years. He retired in good standing with top secret security
    clearance in January 2013.
    While employed by the Marshals Service, Davis lodged various
    complaints, first raising contract violations, and subsequently claiming
    retaliation by Chief Deputy Marshal Kelly York for having made those
    complaints. According to Davis, all grievances were resolved in his favor.
    Despite these complaints, Davis continued his employment with the
    Marshals Service and was later promoted.
    Three years after retiring from the Marshals Service, Davis was
    approached by Marshals Service officials from the Northern District of
    Mississippi to inquire whether he was interested in the District Supervisor
    position, which was staffed under the Marshals Service’s court security
    agreement with Walden Security (Walden). Walden is a private security
    company that contracts with the Marshals Service to provide court security
    personnel as deputized Special U.S. Marshals. Walden provides these
    services under a written contract between Walden and the Marshals Service
    (the “Walden Contract”). The Walden Contract requires Walden to: (1)
    interview applicants, (2) conduct preliminary background checks, and (3)
    certify that the selected candidate meets the Marshals Service’s job
    qualifications.
    3
    Case: 20-60465      Document: 00515796920          Page: 4     Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    On December 29, 2015, Walden indicated its intent to offer Davis a
    position, “contingent upon approval from the [Marshals Service].” Davis
    alleges that Walden informed him that he had been approved by the Marshals
    Service and allowed Davis to begin his contingent employment on January 5,
    2016, so that he could receive training from the retiring district supervisor.
    On January 7, 2016, however, Davis was informed by Mark Mancuso of
    Walden that the company had received notice from the Marshals Service that
    Davis was to be suspended from the contract. Walden employees told Davis
    that the “the Acting Director of the [Marshals Service], David Harlow, or
    the Office of General Counsel, informed Walden to ‘suspend’ Davis from
    the contract” and that “Acting Assistant Director of Judicial Security Tom
    Wight” had told Walden that Walden Security could find a more qualified
    candidate for the position, but refused to give any further information.
    After being notified of Walden’s non-employment decision, Davis
    filed a complaint with the Office of Special Counsel (OSC), alleging the
    Marshals Service retaliated against him for his prior whistleblowing
    activities. The OSC dismissed Davis’s complaint because the OSC does
    “not have investigative jurisdiction over complaints filed by contract
    employees.” Davis appealed the dismissal to the Merit System Protection
    Board (MSPB), which concluded that it had no jurisdiction because Davis
    was not an applicant for a position at a federal agency within the meaning of
    the federal whistleblower statute on which Davis relied. Davis was informed
    he had 30 days to file a petition of review of this decision by the United States
    Court of Appeals for the Federal Circuit. Davis did not file a request for
    review by the Federal Circuit, but asserts he was not required to do so.
    On December 28, 2016, Davis filed this action in the Northern District
    of Mississippi against the Marshals Service, the Department of Justice (DOJ)
    (collectively, “Federal Defendants”), David Harlow and Thomas Wight
    (collectively, “Individual Defendants”), and Walden. He alleged a denial of
    4
    Case: 20-60465     Document: 00515796920        Page: 5    Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    due process under Bivens v. Six Unknown Named Agents of Federal Bureau of
    Narcotics, 
    403 U.S. 388
     (1971) against the individually-named defendants, a
    breach of contract by Walden, and a breach of contract claim and a claim
    under the Whistleblower Protection Act of 1989, 
    5 U.S.C. § 2302
    (b)(8),
    against the Federal Defendants. He sought reinstatement, $500,000 in
    damages, and attorney’s fees and costs.
    On May 1, 2018, the district court dismissed Davis’s suit with
    prejudice as to the Federal Defendants and Individual Defendants for failure
    to state a claim. After the Federal Defendants and Individual Defendants
    were dismissed and the only remaining claim was against Walden for breach
    of contract, Davis sought discovery from the Federal Defendants.         In
    response to Davis’s request under United States ex rel. Touhy v. Ragen, 
    340 U.S. 462
     (1951), the Marshals Service provided all of its personnel
    documents pertaining to Davis while he was employed by the Marshals
    Service, as well as the pertinent communications between the Marshals
    Service and Walden. Davis next filed a motion to compel a Rule 30(b)(6)
    deposition of the Marshals Service.
    On July 17, 2019, the district court denied Davis’s motion to compel,
    concluding that the internal reasoning behind the Marshals Service’s
    communications to Walden was not relevant to Davis’s breach of contract
    claims against Walden for terminating him after receiving those
    communications.
    On January 27, 2020, Walden filed its motion for summary judgment
    and memorandum in support. Davis responded to the motion and Walden
    replied. On April 23, 2020, the district court granted Walden’s motion for
    summary judgment and entered final judgment. Davis appeals several of the
    district court’s judgments—the motions to dismiss, the motion to compel,
    and the motion for summary judgment.
    5
    Case: 20-60465      Document: 00515796920         Page: 6    Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    II. Government Defendants
    Davis first argues the district court erred in dismissing his claims
    against Federal Defendants and Individual Defendants under Rule 12(b)(6)
    for failing to state a claim. We review the district court’s grant of a motion
    to dismiss de novo. See Budhathoki v. Nielsen, 
    898 F.3d 504
    , 507 (5th Cir.
    2018). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a
    general way, the applicable standard of pleading. It requires that a complaint
    contain “a short and plain statement of the claim showing that the pleader is
    entitled to relief,” FED. R. CIV. P. 8(a)(2), “in order to ‘give the defendant
    fair notice of what the … claim is and the grounds upon which it rests,’” Bell
    Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007) (quoting Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957)). Although a complaint need not contain detailed factual
    allegations, the “showing” contemplated by Rule 8 requires the plaintiff to
    do more than simply allege legal conclusions or recite the elements of a cause
    of action. Twombly, 
    550 U.S. at 555
    .
    A. Federal Defendants
    The district court dismissed the claims against Federal Defendants
    after finding that “Davis [was] not a party to the contract. Nor can he be
    considered a third-party beneficiary who would be entitled to enforce the
    contract, as the background investigation provisions are clearly not a promise
    made for Davis’ benefit.” Davis asserts the Walden Contract conferred
    procedural rights to Davis in the event of the Marshals Service’s unsuitability
    determination. For the purposes of his employment with Walden, Davis
    argues, the Marshals Service was a joint employer based on its degree of
    control over Walden’s employees and he was a third-party beneficiary under
    the Walden Contract. While Davis concedes that his employment as District
    Supervisor does not meet the technical definition of “covered position” set
    6
    Case: 20-60465        Document: 00515796920           Page: 7      Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    forth in 
    5 U.S.C. § 2302
    (a)(2)(B), he argues that he should be able to proceed
    with his claim to “comport with the meaning and spirit of the Act.”
    1. Subject Matter Jurisdiction
    Davis’s breach-of-contract claim raises a jurisdictional issue. For a
    cause of action to proceed against the United States and its agencies or
    officials in their official capacities, there must be a clear waiver of sovereign
    immunity, or the court lacks subject matter jurisdiction. See United States v.
    Sherwood, 
    312 U.S. 584
    , 586 (1941). Claims against the Government based in
    contract are within the exclusive jurisdiction of the Court of Federal Claims
    pursuant to the Tucker Act, 
    28 U.S.C. § 1491
    (a)(1). U.S. Marine, Inc. v.
    United States, 478 F. App’x 106, 108 (5th Cir. 2012).
    Davis’s complaint with the OSC was dismissed for lack of jurisdiction
    as a contract employee. Davis appealed the dismissal to the MSPB, which
    came to the same conclusion. Appellate jurisdiction over an adverse decision
    by the agency board is vested exclusively with the United States Court of
    Appeals    for     the    Federal     Circuit.         
    41 U.S.C. § 7107
    (a)(1);
    
    28 U.S.C. § 1295
    (a)(10). Alternatively, after an initial adverse decision by
    the contracting official, the contractor may seek de novo review in the Court
    of Federal Claims, with appellate review in the Federal Circuit. 
    28 U.S.C. § 1295
    (a)(3). Davis did not appeal that decision to either this Court or the
    Federal Circuit, as required by 
    5 U.S.C. § 7703
    (b)(1)(A).
    Davis asserts that the Tucker Act, 
    28 U.S.C. § 1346
    (a), provides that
    the district courts have subject matter jurisdiction over claims brought
    against the United States founded on express or implied contracts, and in
    support cites Awad v. United States, 
    2001 U.S. Dist. LEXIS 8989
     (N.D. Miss.
    2001) (Apr. 27, 2001). But Awad, unlike Davis, was directly contracting with
    the federal government. The Tucker Act, which waives the immunity of the
    United States for certain damages suits in the Court of Federal Claims, does
    7
    Case: 20-60465      Document: 00515796920          Page: 8     Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    not create substantive rights, and a plaintiff relying on the Tucker Act must
    premise his damages action on other sources of law, like statutes or contracts.
    
    28 U.S.C. § 1491
    (a)(1); Maine Cmty. Health Options v. United States, 
    140 S. Ct. 1308
     (2020).
    This court has previously examined a similar argument with a plaintiff
    attempting to invoke a statute implicated in her contract with a government
    agency (Title VII in her settlement agreement with her employment agency).
    See Charles v. McHugh, 613 F. App’x. 330, 332 (5th Cir. 2015). We held that
    her claims were not Title VII claims, but contractual claims, and dismissed
    the contract claim against the government agency for lack of jurisdiction.
    Congress’s waiver of sovereign immunity for another statute could not
    confer jurisdiction on the contract case, and the plaintiff had no basis to
    enforce her contract with a government agency. 
    Id.
    Davis further argues that Federal Defendants are incorrect that the
    Contract Disputes Act of 1978 (CDA), 
    41 U.S.C. § 7101
     et seq., applies to his
    breach of contract claim because Davis is not a “contractor” within the
    meaning of the Act. The Walden Contract is a federal contract between the
    United States and a government contractor for services. State law or a
    contract with a third party does not convey jurisdiction to sue the United
    States, because the right “can be acquired only by the specific consent of
    Congress,” which is not present in this case. United States. v. Transocean Air
    Lines, Inc., 
    386 F.2d 79
    , 81 (5th Cir. 1967) (denying jurisdiction for a suit
    against the U.S. government by third-party attorneys with a right to a portion
    of a government contractor’s claim against the United States, based on
    sovereign immunity).
    The    CDA      applies    to    “express    or    implied”   contracts,
    
    41 U.S.C. § 7102
    (a), and establishes a multi-tiered administrative review
    process. Congress expressly limited potential relief to “a party to a Federal
    8
    Case: 20-60465      Document: 00515796920         Page: 9     Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    Government contract other than the Federal Government.” 
    41 U.S.C. § 7101
    (7). Davis’s invocation of the Tucker Act does not confer jurisdiction
    over his breach of contract claim in light of the administrative and judicial
    scheme to resolve disputes between contractors and the federal government
    in the CDA, which imposes particular jurisdictional limitations upon suits
    involving government contracts for the performance of services.
    Our sister circuit recently analyzed a factually similar case.        In
    Atterbury, a former employee of a private security contractor brought an
    action against the Marshals Service and a contracting officer regarding the
    Marshals Service’s removal of the employee from a court security program,
    in which he served as a court security officer, which led to termination of his
    employment. Atterbury v. U.S. Marshals Serv., 
    805 F.3d 398
     (2d Cir. 2015).
    Davis, like Atterbury, is not in privity with the United States. In its holding,
    the Second Circuit found that the provisions of the CDA apply only to
    contractors; i.e., a party to a federal government contract other than the
    federal government. 
    41 U.S.C. § 7101
    (7). 
    Id.
     We agree.
    The CDA exclusively governs government contracts and government
    contract disputes and, when the CDA applies, it provides “the exclusive
    mechanism for dispute resolution.” Tex. Health Choice, L.C. v. Office of Pers.
    Mgmt., 
    400 F.3d 895
    , 898-99 (Fed. Cir. 2005). Further, the CDA does not
    permit appeals by anyone who is not a party to a Government contract other
    than the Government. Winter v. FloorPro, Inc., 
    570 F.3d 1367
    , 1371 (Fed. Cir.
    2009). Because Davis has not demonstrated his standing to enforce the terms
    9
    Case: 20-60465         Document: 00515796920             Page: 10        Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    of the Walden Contract, we vacate and remand with instructions to the
    district court to dismiss Davis’s breach-of-contract claim without prejudice. 1
    2. Whistleblower Protection Act of 1989
    Davis concedes that his employment as district supervisor does not
    meet        the    definition     of      “covered        position”     set     forth     in
    
    5 U.S.C. § 2302
    (a)(2)(B), but argues he should be allowed to proceed with
    his claim “to comport with the spirit and meaning of the Act.” Davis cites
    no legal authority for this court to go beyond the clear intent of Congress to
    define a ‘covered position’ under 
    5 U.S.C. § 2302
    (a)(2)(B).
    We review questions of statutory interpretation de novo. In re Glenn,
    
    900 F.3d 187
    , 189 (5th Cir. 2018). The ordinary-meaning rule is the most
    fundamental semantic rule of interpretation. A. Scalia & B. Garner, Reading
    Law: The Interpretation of Legal Texts 69 (2012). “The task of statutory
    interpretation begins and, if possible, ends with the language of the statute.”
    Trout Point Lodge, Ltd. v. Handshoe, 
    729 F.3d 481
    , 486 (5th Cir. 2013).
    “When the language is plain, we ‘must enforce the statute’s plain meaning,
    unless absurd.’” 
    Id.
     (quoting In re Nowlin, 
    576 F.3d 258
    , 261–62 (5th Cir.
    2009)); see also BedRoc Ltd. v. United States, 
    541 U.S. 176
    , 183 (2004) (“The
    preeminent canon of statutory interpretation requires [the court] to
    ‘presume that [the] legislature says in a statute what it means and means in a
    statute what it says there.’” (quoting Conn. Nat’l Bank v. Germain, 
    503 U.S. 249
    , 253–54 (1992)). Because Davis is not covered under the statute, we
    affirm dismissal of this claim.
    B. Individual Defendants
    1
    We must always be sure of our appellate jurisdiction and, if there is doubt, we
    must address it, sua sponte if necessary. In re Cortez, 
    457 F.3d 448
     (5th Cir. 2006) (quoting
    In re Chunn, 
    106 F.3d 1239
    , 1241 (5th Cir.1997)).
    10
    Case: 20-60465        Document: 00515796920               Page: 11        Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    Next, Davis argues the district court erred in dismissing Davis’s due
    process claim against Harlow and Wight. Davis’s claim that he was denied
    Fifth and Fourteenth Amendment due process rights is brought pursuant to
    
    42 U.S.C. § 1983
     and Bivens. The district court found that Davis failed to
    state a claim against the Individual Defendants and that Section 1983 cannot
    serve as a basis for Davis’s constitutional claims against the Individual
    Defendants. Section 1983 only applies to state actors. Davis concedes his
    Section 1983 claim and is no longer pursuing this claim because there are no
    state actors involved. As for Bivens, Davis has conceded that his claim
    “should be dismissed.” 2
    III. Discovery Ruling
    Davis next argues that the district court abused its discretion by
    denying his motion to compel the DOJ to comply with a Rule 45 subpoena.
    The denial of this motion was made after the district court had dismissed the
    2
    The Supreme Court has admonished the courts to exercise caution in the
    disfavored judicial activity of extending Bivens to any new set of facts. See Cantú v. Moody,
    
    933 F.3d 414
    , 421-22 (5th Cir. 2019) (citing Ziglar v. Abbasi, 
    137 S. Ct. 1843
    , 1857 (2017)).
    Davis argues that his case is analogous with the claims raised in Davis v. Passman, 
    442 U.S. 228
     (1979). In Passman, the equal protection component of the due process clause
    conferred on a female congressional staff member a federal constitutional right, personal to
    her, to be free from gender-based discrimination which was not substantially related to the
    achievement of an important governmental objective. 
    Id.
     Davis asserts, under Passman,
    that he is not a “new category of defendant” nor would this case be a “new context” in
    applying Bivens.
    Davis’s claim would present a new Bivens context, despite the caution expressed
    in Cantú. “[T]he existence of a statutory scheme” governing breach of contract claims
    against the United States and for claims of reprisal in limited circumstances is, itself, a
    special factor counseling against recognizing an implied right under Bivens to sue individual
    officers. See Cantú, 933 F.3d at 423; Ziglar, 137 S. Ct. at 1858 (noting “that alone may limit
    the power of the Judiciary to infer a new Bivens cause of action”). That Congress has
    chosen not to provide a Bivens-type remedy against individuals in this highly regulated
    context weighs heavily against implying such a remedy here. Accordingly, Davis’s claims
    against Individual Defendants were properly dismissed.
    11
    Case: 20-60465     Document: 00515796920           Page: 12     Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    Federal Defendants and Individual Defendants from the case, leaving only
    the breach-of-contract claim against Walden remaining. We review the denial
    of a motion to compel discovery for abuse of discretion, Barrett v. Indep.
    Order of Foresters, 
    625 F.2d 73
    , 75 (5th Cir. 1980), mindful that a district court
    is afforded “broad discretion when deciding discovery matters.” Crosby v.
    La. Health Serv. & Indem. Co., 
    647 F.3d 258
    , 261 (5th Cir. 2011).
    After dismissal, the only remaining claim was whether Walden had
    breached any contractual relationship with Davis.            Davis contends a
    deposition of the DOJ is the only means by which he can discover why he was
    found unsuitable. Davis sought to “obtain information concerning why the
    [DOJ] required his termination, information only the [DOJ] has in its
    possession.”     Davis explains the DOJ objected to the Rule 30(6)(b)
    deposition of the Marshals Services because Davis could discover all the
    communication being sought “from other sources” and the requests were
    “unduly burdensome.”
    This court recognizes broad and liberal treatment of the federal
    discovery rules. U.S. v. Holley, 
    942 F.2d 916
    , 924 (5th Cir. 1991). In civil
    cases, parties are entitled to discover all information relevant to any party’s
    claim or defense that is not privileged. FED. R. CIV. P. 26(b)(1). Discovery
    requests are relevant when they seek evidence that is admissible or
    reasonably calculated to lead to the discovery of admissible evidence. Crosby
    v. Louisiana Health Serv. & Indem. Co., 
    647 F.3d 258
     (5th Cir. 2011) (quoting
    Fed. R. Civ. P. 26(b)(1)).
    As the party seeking to compel discovery, Davis has the burden of
    demonstrating clearly that the information sought is relevant to the case and
    would lead to admissible evidence. See SEC v. AmeriFirst Funding, Inc., 
    2008 WL 926587
    , at *2 (N.D. Tex. Apr. 7, 2008). Likewise, as the parties resisting
    discovery, Federal Defendants must specifically articulate how each
    12
    Case: 20-60465        Document: 00515796920               Page: 13        Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    discovery request is not relevant or is overly broad, burdensome, or
    oppressive. In re Micron Tech, Inc. v. Sec. Litigation, 
    264 F.R.D. 7
    , 9 (D.D.C.
    2010); Export Worldwide, Ltd. v. Knight, 
    241 F.R.D. 259
    , 263 (W.D. Tex.
    2006); Fed. R. Civ. P. 26(b)(1).
    Davis has not met his burden to demonstrate why the materials were
    necessary to his remaining breach of contract claim against Walden. The
    DOJ’s decision that Davis was not suitable to perform under the contract
    might be questionable to Davis, but the contract gave Walden no right of
    input to nor oversight of the government’s suitability decision. The DOJ’s
    reasoning does not have anything to do with whether Walden Security
    breached its contract with Davis.
    In light of the circumstances at the time of the ruling, 3 including the
    reasonableness of the discovery after Federal Defendants had been
    dismissed, we find that the district court did not abuse its discretion in
    denying Davis’s motion to compel discovery.
    IV. Walden
    Lastly, Davis argues the district court erred in granting Walden’s
    motion for summary judgment and dismissing the breach of contract claim.
    3
    There is also a procedural defect in Davis’s motion. Subpoenas seeking to compel
    government employees to produce information have been quashed where a Touhy
    determination has been made by a federal agency that information should not be provided,
    as occurred here. See Boron Oil Co. v. Downie, 
    873 F.2d 67
    , 69 (4th Cir. 1989) (quashing
    subpoena against EPA employees on the basis of a Touhy determination); State of La. v.
    Sparks, 
    978 F.2d 226
     (5th Cir. 1992) (Touhy regulations give DOJ authority to refuse to
    comply with a subpoena ordering disclosure of confidential files when the United States is
    not a party to a legal action). Once the government issued a decision under Touhy, Davis
    was required to file a separate suit under the Administrative Procedure Act to challenge
    that final decision made by the agency. See Moore v. Armour Pharm. Co., 
    927 F.2d 1194
    ,
    1197-98 (11th Cir. 1991). He failed to do so, instead filing a motion to compel in the District
    of Columbia.
    13
    Case: 20-60465      Document: 00515796920         Page: 14     Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    We review the district court’s grant of a motion for summary judgment de
    novo, and we apply the same standard as the district court, viewing the
    evidence in the light most favorable to the nonmovant. First Am. Title Ins.
    Co. v. Continental Cas. Co., 
    709 F.3d 1170
    , 1173 (5th Cir. 2013). Summary
    judgment is appropriate where “there is no genuine dispute as to any material
    fact and the movant is entitled to judgment as a matter of law.” FED. R.
    CIV. P. 56(a).
    1. Suitability Determination
    Davis’s Amended Complaint and testimony allege that the Marshals
    Service wrongfully caused his removal from his employment with Walden.
    Other than following the Marshals Service’s order to remove him, Davis
    asserts no other grounds that Walden wrongfully removed him.               It is
    undisputed that Walden sent Davis a letter stating that Walden removed him
    because the Marshals Service did not approve his recommendation for
    employment after concluding their final review.
    The suitability determination in the Walden Contract is not made for
    Davis’s benefit. Rather, it is made for the Marshals Service to “determine
    whether the individual’s presence or performance under this contract could
    pose a potential threat or risk to the U.S. Courts, the Marshals Service, or the
    public.” Walden was not responsible for conducting a suitability
    determination – or for ensuring that the Marshals Service conducted one.
    2. Breach of Contract
    Davis does not allege that he had a written contract with Walden.
    Because Davis did not have a written contract with Walden and was not a
    third-party beneficiary of the Walden Contract, he argues that the
    contractual obligations of the Walden Contract were incorporated through
    his offer letter from Walden which expressly stated (1) that it was not an
    employment contract, (2) that his employment was at-will, and (3) that it was
    14
    Case: 20-60465     Document: 00515796920         Page: 15     Date Filed: 03/25/2021
    No. 20-60465
    c/w No. 20-60507
    “contingent upon approval by the Marshals Service.” The offer letter did
    not mention the Walden Contract.
    It is undisputed that Walden was Davis’s employer. Davis bases his
    breach of contract claim entirely on the Walden Contract, and claims to be a
    third-party beneficiary of the Walden Contract. The right of the third-party
    beneficiary to maintain an action on the contract must spring from the terms
    of the contract itself. Burns v. Washington Sav., 
    251 Miss. 789
    , 796, 
    171 So. 2d 322
    , 325 (1965). Here, the terms did not include Davis, and Davis does
    not argue that Walden breached the Walden Contract. Davis’s claims against
    Walden were properly dismissed.
    V. Conclusion
    For the foregoing reasons, we VACATE and REMAND with
    instructions for the district court to dismiss Davis’s breach-of-contract claim
    against the Federal Defendants without prejudice for lack of jurisdiction, and
    AFFIRM the district court’s dismissal of the remainder of Davis’s claims.
    15