Federal Supervisor No Longer Faces Personal Liability for Separating Probationary Employee

The appeals court has now ruled in a personal constitutional tort lawsuit filed by a Library of Congress employee against his former supervisor.  In Davis v. Billington, CADC No. 11-5092 (June 1, 2012), the U.S. Appeals Court for the DC Circuit has reversed the district court’s refusal to dismiss the employee’s suit.

Briefly, Davis argued that his supervisor committed a constitutional tort by interfering with Davis’ First and Fifth Amendment rights by terminating him during probation for publishing articles in which Davis was highly critical of the military commissions process at Guantanamo Bay. (For more facts, please refer to the court decisions and/or articles on the district court holding linked to above.)

As FedSmith reported a little more than a year ago, the district court declined to throw out the Bivens complaint, indicating that Davis had “stated a plausible First Amendment claim…” and had “adequately stated a claim for relief under the Fifth Amendment.”

Daniel Mulhollan, the supervisor sued by Davis, appealed the lower court decision. The appeals court had concluded “that the courts should not imply a new form of Bivens action on the facts of this case,” reversed the district court’s decision, and remanded the case to that court with instructions to dismiss the claims. (Opinion p. 19)

Davis’ only recourse is to persuade the U.S. Supreme Court to carve out a new Bivens right of action, something the high court has refused to do in disciplinary appeal cases where employees have remedies available to them under civil service laws.

Mr. Mulhollan—after almost three years with this potential personal liability hanging over him—should now be resting quite a bit easier.

Davis v. Billington 11-5092

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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