Davis v. Billington

Decision Date01 June 2012
Docket NumberNo. 11–5092.,11–5092.
Citation401 U.S.App.D.C. 46,33 IER Cases 1684,681 F.3d 377
PartiesMorris D. DAVIS, Appellee v. James H. BILLINGTON, in his official capacity as the Librarian of Congress, Appellee Daniel P. Mulhollan, in his individual capacity, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit


Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00036).

Sharon Swingle, Attorney, U.S. Department of Justice, argued the cause for appellant. With her on the briefs were Tony West, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Thomas M. Bondy, Attorney.

Aden J. Fine argued the cause for appellee. With him on the brief were Alexander A. Abdo, Arthur B. Spitzer, and Frederick V. Mulhauser.

Louis Fisher and Morton Rosenberg, appearing pro se, were on the brief as amici curiae Dr. Louis Fisher and Morton Rosenberg in support of appellee.

Before: SENTELLE, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Chief Judge:

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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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.

I. Background

Upon review of a district court's ruling on a motion to dismiss, we, like the district court, accept as true the well-pleaded factual allegations of the complaint. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). Therefore, the following recitation of facts implies no decision on our part as to the accuracy of the allegations. In December 2008, the Congressional Research Service (CRS), the public-policy-research arm of Congress and a department of the Library of Congress, hired appellee Davis as Assistant Director of its Foreign Affairs, Defense, and Trade Division subject to a mandatory, one-year probationary period. That division provides research and analytical services to congressional committees responsible for foreign affairs; international trade and finance; defense policy and arms control; and defense budget, manpower, and management. As Assistant Director, Davis was responsible for leading, planning, directing, and evaluating the research and analytical activities of the division.

During his tenure as Assistant Director, Davis publicly criticized the system of military commissions created to prosecute suspected terrorists held at Guantanamo Bay Naval Base, Cuba, a system with which he had become familiar while serving as Chief Prosecutor there until October 2007. While employed by CRS, Davis voiced his criticisms of the system at a Human Rights Watch dinner, in a BBC documentary, at a conference at Case Western Reserve University Law School, and in a law review article in connection with the conference. He also spoke about his views at a Lawyers Association of Kansas City meeting after accepting an award for speaking out against what he characterized as the politicization of the military-commissions system.

On November 11, 2009, as Davis's probationary year neared its end, he published opinion pieces in both the Wall Street Journal and the Washington Post criticizing Attorney General Eric Holder and the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions. Davis called this decision “a mistake” and “double-standard justice” that we would condemn if ... applied to us.” The Post piece challenged the contention of former Attorney General Michael Mukasey that “the decision to try Guantanamo detainees in federal courts comes down to a choice between protecting the American people and showcasing American justice.” Davis wrote that Mukasey's statement, which expressed concern for the security of people where detainees would be tried, was “fear-mongering worthy of former vice president Dick Cheney.” Neither editorial included a disclaimer that it represented Davis's personal views and not those of CRS or the Library of Congress.

The evening before the publication of the two opinion pieces, Davis e-mailed appellant Mulhollan, the Director of CRS, and informed him of the impending publication of the two opinion pieces. Mulhollan responded by e-mail, questioning Davis's judgment and his ability to continue serving as Assistant Director. After the pieces were published, Mulhollan told Davis that the opinion pieces damaged Davis's ability to lead his division in providing objective, nonpartisan analysis. He also asked how members of Congress could trust Davis's leadership on military-commissions issues given his public opposition to current policy; how Republicans would view his objectivity after his attack on Dick Cheney; and how Davis could properly counsel employees who failed to comply with the CRS outside-speech policy, which Mulhollan believed Davis had violated. On November 20, 2009, Mulhollan notified Davis that he would be removed from his probationary appointment as Assistant Director. Mulhollan provided Davis with a thirty-day appointment as Mulhollan's special advisor to provide time to look for other employment, after which time Davis was separated from CRS.

Davis then filed the current action against appellant, as well as James Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and seeking damages against Mulhollan for violation of his constitutional rights under the First and Fifth Amendments, asking the court to imply a remedy under Bivens. Mulhollan moved to dismiss, both on the basis of qualified immunity and on the theory that the court should not imply a Bivens remedy for the discharge of a civil-service employee. Because we agree that there is no available Bivens remedy, we will not reach the question of qualified immunity but will reverse the district court's denial of the motion to dismiss.

II. Analysis

We have jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine. It is a well-established application of that doctrine that “a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the defense of qualified immunity from a Bivens damages action “directly implicate[s] the antecedent question whether to recognize that Bivens action at all, our jurisdiction extends to that question as well. See Wilkie v. Robbins, 551 U.S. 537, 549 & n. 4, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (internal quotation marks omitted). We review the district court's legal conclusions de novo. Wilson v. Libby, 535 F.3d 697, 704 (D.C.Cir.2008).


In Bivens, the Supreme Court determined that under appropriate circumstances the federal courts possess the discretionto create remedial actions against federal officials for violations of constitutional rights, even though Congress has not expressly authorized those specific remedies by statute. See Bush v. Lucas, 462 U.S. 367, 373–74, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Beginning with Bivens, the Supreme Court has drawn upon this power in three instances to create a nonstatutory action for money damages against federal officials for constitutional violations. See Bivens, 403 U.S. 388, 91 S.Ct. 1999 (Fourth Amendment violation by federal agents); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (employment discrimination in violation of the Due Process Clause); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Eighth Amendment violations by prison officials).

For the most part, though, the Court has “responded cautiously” to requests for new Bivens remedies. Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). The decision whether to recognize a new damages remedy is not about ensuring that every violation of a constitutional right is vindicated. Rather, the Bivens inquiry is a “judgment about the best way to implement a constitutional guarantee.” Robbins, 551 U.S. at 550, 127 S.Ct. 2588. As the Supreme Court has made clear, in most instances the judgment has been that Congress, not the judicial branch, is in the best position to prescribe the scope of relief available for the violation of a constitutional right. The Supreme Court has applied this analysis in a context paralleling the facts before us. Specifically, the Court in Robbins stated: We have accordingly held against applying the Bivens model to claims of First Amendment violations by federal employers....” 551 U.S. at 562, 127 S.Ct. 2588 (citing Bush, 462 U.S. 367, 103 S.Ct. 2404);see also Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chilicky, 487 U.S. 412, 108 S.Ct. 2460. In explaining its reluctance to create new causes of action for federal employees alleging violation of their constitutional rights, the Supreme Court recognized that Congress is in a far better position than a court to evaluate the impact of a new species of...

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