controlled by this court's decision in stein versus for the city of new york there's that case stands for simple proposition which applies equally here to private parties can contract between themselves to create a property interest on behalf of one of them and the government cannot destroy that interest without providing due process and as was held in stein a good cause or here a just cause provision in a c b s a between  an employer that contracts to provide services with the government and the union that represents the employees of the contractor does create such an interest and if the government wishes to impinge on that interest it ha to comply with due process and provide meaningful procedures notice of the conduct that's in this case lead to terminate in these cases let determination and an evidentiary and adversarial hearing after the decision to remove is made judge cybill noted it says no c s o removed without just cause period is the remedy you seek reinstatement yes the removal should be set aside that's what the that's what if he's reinstated has anything prevent the marshal service from observing procedural due process and firing him for the episodes that they think firing no the government would have has the right to direct if it hears to due process so that with they give the notice that you say is lacking and sustained that he left his post he gets reinstated and then immediately gets fired well if they were to give him notice and opportunity be heard but we believe the process matters here and if there was an actual meaningful this is it like it's going to take six elaborate hearing to determine did he leave his post on that day that's correct it's shouldn't i'm just wondering are you spending your wheels here isn't even used will going to happen even if you're right well i would you know i would hope not i can't control what the government's going to do but they will be they would be within their rights are able to being fired the day gets rehired well i don't i don't think he marshal service will just and here blindly to a prior decision but will actually pay attention to what the witnesses say and i take it that both of these gentlemen believe that they are entitled to prevail in such a hearing they might not his lead c s l that he was sick so he didn't abandon the post abandoning the post you know means leaving without them permission in our view you're saying he was absent without leave rather than without knowing it because he notified the supervisor and the supervisor said something that in your view a reasonable person would have taken as permission that's right correct and the exclusion that the from the arbitration provisions of the collective bargaining agreement of terminations that result from a direction from marshal service does not vitiate the just cause provision other simply recognition that the contractor a cow has no power or ability to make the marshal service participate in a private arbitration between the union and the and the employer so there they aren't analogous to the provisions at issue in strober or the other cases where it explicitly said just cause does not or a government directed removal is just cause they don't say that they simply say we're not going to drag the u s marshal services and in fact we can't into our private arbitration proceedings and and the procedural due process  notice of what he's alleged to have done that would be that route that is under consideration for removal and he didn't need or of these men got that right so your point is that the post from a nation no matter i believe under under the flexibility that's afforded in these situations it's conceivable that a full some post hearing process could satisfy due process even if there was inadequate notice initially it's possible but if that would turn on the facts and there is a given here i think it's it's could that there wasn't and in this case there was no such hearing correct there is no hearing the gentleman simply had an opportunity to write a letter standard that it felt merited removal there was none of that here would also note that the marshal service relies on its contract with a call as if that should somehow be imported into the into the collective bargaining agreement our position is that it's actually irrelevant that greenock between parties whose who did not create the property interest cannot then work to vitiate the property interest but even those provisions reflect an understanding that there will be a process there is a notice and there is a notice an opportunity which was followed here was simply an adequate there's a represented there is a green light that in certain circumstances the marshals service can immediately remove someone from account for certain serious misconduct immediately removed implying that another situation that's inappropriate so any court security officer reviewing this document i believe would have an understanding of entitlement that even this even these provisions between his employer and the marshal service do not destroy  employment i take it there's no dispute here about the substance of the marshall services list of fifty eight requirements  standards that those embodied some notion of what just cause means the question here is just did the question violate any of those standards that's correct you're there's no dispute that employee who violates the standards depending on the seriousness of the violation can be removed and that would be just cause that's correct he failed to understand the analysis it's not a call marshal service contract that creates the property interest it's the union employer contract that creates the property interest so it's the collective bargaining agreement i'm sorry it was to collect the vote of the collective bargaining agreement that's what creates the interest and that's with the unions and pretty with the two individuals here and i would just note in the case of households just making clear the importance of due process and how it was not and how here was really egregious to not provide it he was a sub he was a eleven different types of misconduct only one of which the contractor found had any merit and he was simply told we marshal service no one has confidence in your ability to do the job didn't it didn't address whether they disagreed with the calls fight factual findings didn't say that they disagreed with the extent to which a call found that the violation was a particular violation a serious mr households really had no idea what the marshal service thought led to his firing similarly with mr adie barry there were several witnesses mr barry had no idea what was what the marshal services credit crediting who was not in it so he really had no meaningful opportunity to and if the united states attorney's office for the southern district of new york on behalf of the united states marshal service and both the at a very in house child cases i do want to address the issues that the court has raised about due process but i st want to note that while this court in stein did hold that a protected property interest could arise from a just cause provision in a contract between a government contractor and an employee that decision does not require a finding here or they jib i mean they just you know we just don't like this fellow anymore that's good enough i don't think that it goes that far but there are no if it doesn't go that far then isn't there some property and if there if there is some standard that has to be applied of just cause and it it's not just the c s those are employees at will then don't they have a property interest that requires notice and an opportunity to be heard and we can worry about the details of what that is but but if there is some substantive limitation that the marshal service is obliged to make some kind of finding isn't that exactly the kind of just cause provision that gives a property interest well that the default for an employment relationship is well employment relationship and i think to find just cause protection applies to an employee that has to arise from the terms of the contract so here yes there is a just cause provision in section eight point one of the c b i but that provision is then qualified in a way that removes protection from wene more and thinks he violated some rule they're entitled to fire him i suppose with the marshal service likes it or not and that's in the record they're entitled to fire him but then they have a grievance procedure that requires arbitration and various other kinds of proceedings that are specific in the contract those procedures explicitly do not apply where the marshal service  says we don't like the person anymore that's right in this case removing those that haven't you a recourse actually has the effect of removing a protective property interests because the plaintiffs had argued that they could still win a lawsuit against the calendar that way but they acknowledge that because of the hold harmless clause in the just cause provision the only claim they could bring is one for a couple of relief but a cow cannot do as that have to do with what happens here and they did something completely different than either an l m r d a suit or grievance arbitration they said the marshal service has acted arbitrary and capricious lee under the a p a and rightly or wrongly we decided that states exercise the remedy we upheld the remedy as something that's available to them in the federal courts now the only question is are they entitled to that remedy or not is a substantive matter that actually has not their employment that they have that protect property interment you know whether or not i mean you say and i think you're basically right about this that we should look to the terms of the  contract there plain meaning and not take into account the drafting history still the prior contract that existed here it is a hypothetical alternative that could have been used it is indeed something that is used as mr ellison points out in other contracts in other places and yet this one does something different then that why doesn't why shouldn't we look to that regardless of whether we look at to it as a matter of drafting history to interpret an ambiguous contract just a matter of this is an ambiguous it doesn't say this constitutes just cause it could have other contracts do right certainly longer qualified but to disregard limitations in section eight point one here and the other terms of the contract is not what's called for in fact by doing that that would be in contravention of what the supreme court has directed at court whether protected property interests exist which is all the terms of a contract and whether there is in fact a mutually explicit understanding that supports the employee's claim entitle me to continue to play in it and here it does say though that when it's when the state gives a property interest it gives a property interest and you can say we give you a property interest but these are the procedures that govern and of and when it doesn't matter whether those procedures would otherwise satisfy due process the argument was made that the property interest is inherently limited by the procedures isn't that the same argument you're making here the one the supreme court floated a few justice floated in our head against kennedy and then got held not to be the law in the loudermilk i think it's different because here the property right only arises from a contractual relationship and to to to properly interpret a contractual lation ship you have to look at and give credit to all the terms with respect to for example the mutually explicit understanding directive here really the only reach an explicit understanding between the marshal service and the plaintiffs arise from the acknowledge the certifications that the plaintiffs are required to sign as a prerequisite to working as a c s l under the contract and by signing those they've knowledge that they were governed by the terms of the contract and that if they violated any of the performance standards they could be removed from operating and yes indeed so so they were given to understand that if they violated the standards they get fired isn't there a negative pregnant in that that if they don't violate the standards they don't get violate and how did they determine that there was a violation if the if the substantive requirement to fire them is that they must have violated a standard doesn't that mean that there has to be fair procedure to determine whether they did or didn't violate the standard right and so i think that goes to the process that was afforded the plaintiffs in this case here the marshal service followed the provisions in the contract which let me ask you about the rights them how would you describe that property rights and what is it in your view what is the source of the property rights to extent that they have a property right employment as a c s l where the marshal service makes the decision and makes a determination that they are no longer qualified to serve under that contract for example because they violated performance standards so long and short of it is that there are no there are no rights are afforded in that case that the contract between the c s as union and the federal contractor provided that she says could only be terminated for just cause except if the marshal service made a determination that they were not qualified to serve a c s says here because of all the terms of employment that reserve that discretion c s those in the limitations on the just cause provision in section eight dollars of our c b s a there is a hybrid employment relationship created there where a cow can only terminate the employees for just cause but where the marshal service has determined that they're not qualified to serve they can be terminated that you point me to the specific language about discretion that you're relying on  talking sanctions c twelve a this is the contract i believe between a crime and the marshal service that says if any of the standards are violated the government may direct the contractor to remove the individual from the court facility now there may be other provisions somewhere that say the marshal service in its sole discretion can see is whether they violated any of the standards or not but if there is i'd like you to point me to exactly what language you're relying on i mean there are lots of other other provisions in there there is in section c seven friends and it says failure to meet any suitability requirements of the contract shall constitute performance and subject the individual to remove all but that too x the issuing our apologies i don't i am still looking for the execs night but the issue is is that the marshal service has reserved a contract between itself and a cow that ability to make a final determination as to whether or not a c s out should be removed from the contract well even if it counts in a fog terminations of what is the is the question if the answer is i've no problem with the idea and i don't think mr ellison does either that the marshal service is the determiner they're the deciders as to whether there has been some kind of violation but if the substantive standard remains that there must be some kind of violation then there still is a standard that has to be met and that does not smack to me at least on the face of it of at will employment there's this whole five thousand and fifty eight dollars different standards that the marshal service has listed as in effect grounds for termination and if one of them that i've missed says and also whenever we just feel like firing the person that would be and seventy six to one hundred and seventy seven that does provide that any employee provided by cal that the contract officer asserts has failed to meet the performance requirements may be removed from performing services under the contract and that relying on a cert if they just accuse the person of this not that they have to find that it's true is that the key word here because this still says if the marshal service asserts that he violated a performance standard that brings us back to did he leave his post did has refused it failed to notify the proper people about his brother's criminal record and so on  that comes back to standards again but are you saying that because it says asserts that if the marshal service just says we accuse him of violating a performance standard we don't we're not saying you actually did we didn't make any finding we didn't have any process but we think he did so he's gone i think it's important to note that neither the knowledge minister or certifications that the c s o signed nor anywhere in the contract investigation which involved interviewing in person that things us and selves as well as numerous witnesses obtaining written statements in response very specific allegations supported by evidence the marshal service upon reviewing all that information made a determination that  the standard that a call says he violated and that's a firing offense or whether they made a finding that he violated some other performance standard because there were these various other accusations and just as they violated and he has no way of knowing that either while the information that has however at a very received in that site to a particular performance standard allegations they were interested they received very specified all the allegations in the evidence that supported those allegations which gave rise to violations of particular performance standards and they had an opportunity to respond to each of those underlining a supreme court noted in matthews vs eldridge's need to be considered in assessing whether our process is sufficient here we have a case where the public a value of any additional or substitute process would be minimal if anything at all because it just wanted to address briefly two points raised by council c s and is did get an allegations letter they did not get the evidence that was purportedly supported they did not have access to a cow's investigation record with respect to h three there's we don't dispute the marshal service is the final decider of whether a c s l is qualified to serve under the contract but nowhere in any of the provisions of section h three of the marshal  service reserves the right at all times to determine the suitability of any contractor employee to serve as a c s decisions rendered by any dispute resolution process shall not be binding on the marshal service well that's like the procedural provision of the sea being but then any decision to continue a contract or employee in a c s o capacity will be made solely by the office of court security on a case by case basis in accordance with the requirement to safeguard the federal judicial process the judiciary citizens and property as per policies and directives governing officers and others that that doesn't invoke any standard or performance requirement or specific things you have to fail to do to get fired that says they're going to cite case by case whether it's consistent in their view with maintaining their security mission well i agree that that is what it says it does provide a standard by which whatever conduct is alleged to be measured is if it undermines the safeguarding requirements and i would just an and there's no dispute the marshal service can make this determination but what we submit cannot do and none of the language here gives it unfettered complete discretion on a whim on any basis that it chooses and that's what we believe supports the the property interest argument here is this is