Colonel Morris Davis was allegedly fired from his position as assistant director of the Foreign Affairs, Defense and Trade Division of the Congressional Research Service, which is a part of the Library of Congress for criticizing Bush and Obama Administration policy regarding the trial of alleged terrorist detainees. Specifically, Col. Davis wrote an op-ed in the Wall Street Journal and a letter to the editor of the Washington Post. These pieces identified Col. Davis as the former chief prosecutor for the military commissions, and made no mention of his position at CRS. Nonetheless, the Library of Congress maintained he had failed “to adhere to the CRS policy on Outside Speaking and Writing.” I blogged about Col. Morris’ dismissal here and here.
A federal district court denied the Library of Congress’ motion to dismiss Col Davis’ claim. Today that motion was reversed by a divided panel of the U.S. Court of Appeals for the D.C. Circuit. Chief Judge Sentelle’s opinion for the court in Davis v. Billington summarizes:
Appellee, a former employee of the Library of Congress, brought this action against, inter alia, his former supervisor, Daniel Mulhollan, alleging that his termination for publication of articles critical of high-level public officials violated the First and Fifth Amendments of the Constitution and entitled him to damages relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Appellant Mulhollan moved to dismiss, arguing that a Bivens action is not available under the circumstances of this case and that he is entitled to qualified immunity. The district court denied the motion to dismiss, and Mulhollan filed the current appeal. Because we conclude that the courts should not imply a new form of Bivens action on the facts of this case, we reverse the order of the district court denying dismissal.
Judge Rogers’ dissenting opinion begins:
From the unremarkable fact that Congress was aware that it was not including employees of the Legislative Branch in the remedial provisions of the Civil Service Reform Act of 1978 (“CSRA”), . . . the court concludes that “Congress consciously, ‘not inadvertently’ omitted remedies” for Library of Congress employees, and thus the CSRA precludes a Bivens remedy for Col. Morris D. Davis. Op. at 15. The premise of the court’s holding is that when Congress enacts a remedial scheme for a specific group of claimants, it is making a conscious decision not to enact a remedial scheme for other claimants, regardless of how far beyond the intended scope of the enacted scheme those other claimants are, and even in the absence of any evidence demonstrating Congress chose to exclude them because it did not want them to have a remedy at all. There is no limiting principle to this theory, and in adopting it, the court allows the “special factor” exception to swallow the rule. The Supreme Court has not gone so far, see Minneci v. Pollard, 132 S. Ct. 617 (2012); nor should we.
The court ignores the real question in this case – why did Congress exclude Legislative Branch employees? The answer, found in the unambiguous legislative history of the CSRA and the Congressional Accountability Act of 1995, . . . is that Congress, based on separation of powers principles, did not want the Executive Branch to have the power to adjudicate claims of Legislative Branch employees – a motivation that says nothing about what Congress intended with respect to Legislative Branch employee Bivens claims. Indeed, the legislative history of the Congressional Accountability Act demonstrates that Congress expressly concluded that judicial adjudication posed none of the same separation of powers concerns. Because Congress did not “intentionally withhold a remedy,” Wilson v. Libby, 535 F.3d 697, 709 (D.C. Cir. 2008), from Library of Congress employees by enacting the CSRA, and neither it nor the Congressional Accountability Act constitutes special factors counseling hesitation in recognizing a Bivens action, I would affirm the district court’s ruling that Davis stated a valid Bivens claim. Accordingly, I respectfully dissent.