Court Allows Federal Manager to be Sued After Firing Employee
Thursday, May 26, 2011
Get our articles delivered in your inbox for free! Sign up here.
by
Brenda Wilson
Federal Employee Defense Services (FEDS)
______
A March 30 decision in Davis v. Billington has many federal managers and supervisors asking serious questions about their exposure and personal liability in civil or 'personal capacity' lawsuits for work-related matters and decisions.
In Davis v. Billington, a federal district court judge refused to dismiss a case brought against a federal manager in his personal capacity for firing an employee during his probationary period. While personal capacity lawsuits are rare and actual liability is even rarer, they do happen, and it could happen to you for simply performing your job. This case exemplifies the exact reason professional liability insurance was created, and the reason Congress enacted special legislation requiring agencies to reimburse up to one-half of the costs of such a policy for all federal managers and supervisors.
The plaintiff, Morris Davis, a retired Colonel of the U.S. Air Force, was hired by the Library of Congress ("Library") after his resignation as the Chief Prosecutor for the Office of Military Commissions for the Department of Defense. As described in the court's opinion, Mr. Davis oversaw the prosecution of suspected terrorists held at the Guantanamo Bay Naval Base in Cuba. He resigned from his position as Chief Prosecutor and retired from his position as military officer at the same time, because he believed that the military commissions system had become 'fundamentally flawed'. The court's opinion also notes that since resigning, Mr. Davis has since become a "vocal and highly public critic of the system, speaking, writing, and testifying to Congress about his personal views and firsthand experiences."
After Davis was hired at the Library as the Assistant Director of Foreign Affairs, Defense and Trade Division of the CRS, he published articles in both the Wall Street Journal and the Washington Post reflecting his personal views regarding Guantanamo Bay and the military commissions process. In his capacity with the Library, Davis claims he had no responsibilities relating to the military commissions. As per policy, Davis informed the defendant, Library manager Daniel P. Mulhollan, prior to publication that articles pertaining to his professional experiences prior to his employment with CRS would be published. After Mulhollan had an opportunity to review them, he notified Davis that he did not agree with the publication of these articles.
The day after the articles were published, Mulhollan notified Davis that he would not be converted from probationary status, as was the previous employment plan for Davis. The following day Mulhollan served him with a Memorandum of Admonishment in response to the articles, followed by a reassignment and eventually a dismissal from the Library.
Davis' claim alleges that these were retaliatory acts based on his publishing these articles. Mullhollan claims that the Library has a written policy concerning outside publications, and that he is responsible for implementing and enforcing the policy. This policy encourages Library employees to submit their authored works for prior review and provides that employees are responsible for using 'sound judgment' in deciding when engagement in outside activity may place the reputation [of the CRS] at risk. The term sound judgment is not defined and Mulhollan argues that this affords the "Library unfettered discretion to determine which speech to punish".
After Davis' termination, he sued James H. Billington in his official capacity as the Librarian of Congress, and Mulhollan in his individual capacity for violating Davis' First and Fifth Amendment rights. The government moved to dismiss, but the court denied the motion and explained that the termination is outside the protection of the Civil Service Reform Act, and that “the strongest reason for [the court to recognize] the plaintiff's Bivens claim is that the only meaningful remedies available to him are monetary damages.”
The government also argued there was no validity to Davis' claim of his First Amendment right violation. The court opinion, however, reads that the plaintiff has stated a plausible First Amendment claim because the plaintiff's speech "substantially involved matters of public concern, and did not in any significant way cause harm to his government-employer; and while it is not inconceivable that at some stage later in the proceedings the defendants may be able to present evidence of how the plaintiff's speech impaired the effective and efficient functioning of the CRS or the Library, such evidence is not currently before the Court."
While we don't know yet if the court will rule that it was a constitutional violation for the Library to have written policies barring employees from publishing such articles, or if the manager acted inappropriately by enforcing his agency’s policies, we do know the government’s request to dismiss the case against these managers was denied, and Mulhollan is still being sued in his personal capacity.
In this case, the Department of Justice (DOJ) is representing Mulhollan. However, this is not always the case with personal capacity lawsuits as DOJ's decision to represent is discretionary, where a two part test is used to make this determination. The first is to ascertain scope of employment; the second is to determine whether it is in the "interest" of the United States to defend, which can be answered in the negative notwithstanding that the employee was clearly acting within the scope of his/her employment. With personal capacity lawsuits, you must also remember that you can still be liable for the judgment of damages if the DOJ defends - and loses – and declines to indemnify. The test for indemnification is whether it is in the interest of the United States to indemnify and your agency must have regulations governing the indemnification process (note: not all agencies have indemnification regulations).
We must emphasize that although there are many civil suits / Bivens actions filed annually against federal employees, only a small percentage of these result in a situation in which the federal employee must provide for their own defense and/or result in the federal employee having to pay a personal judgment. However, if you are the employee or manager who ends up in the "small percentage" falling through the legal cracks of complicated laws and concepts such as the Civil Service Reform Act, the Federal Tort Claims Act, Absolute and Qualified Immunity Doctrines, indemnification, common law and constitutional torts, the losses could be substantial. For this reason, civil protection is available for federal employees at an affordable cost through professional liability insurance; and also the reason that Congress mandated agencies to reimburse managers and supervisors up to half the cost of such policies.
To recap, the policy protects you from civil exposure in two major ways:
(1) Legal Defense: The policy will provide you with an attorney to defend in the event that that the DOJ makes a determination that it is not “in the interest of the United States” to represent the employee (a discretionary DOJ decision). This can occur notwithstanding that the employee was clearly acting within the scope of his/her employment. Should you find yourself facing a civil suit (or Bivens action) or a criminal charge without DOJ representation, defending yourself can run $25,000 to well over $100,000 in legal fees; and
(2) Pays Damages: The policy provides indemnity protection at either the one or two million dollar limit should an employee be found liable for which the agency will not indemnify. An employee can be held liable and be forced to pay the judgment even when the DOJ is defending the case. In other words, if DOJ defends and loses, the employee can still be liable.
In addition to the civil protections offered by the policy, the "administrative" provision of the policy, is the primary reason most federal executives, managers and employees get the policy. This part of the policy covers allegations made against federal employees as well as your acts, errors or omissions committed while rendering a professional service. This includes any OIG, OPR, OSC, Congressional or any management directed investigation resulting from any allegation of wrongdoing. While you may be ultimately vindicated in your actions or of alleged actions, and not be held liable for a judgment of damages, the process of accomplishing such vindication could cost tens of thousands of your own dollars if you don't have any protection in place. There are several companies that offer federal employee professional liability insurance, it is worth your time and effort to explore the options available to you.
Davis v. Billington
© 2012 FedSmith Inc. All rights reserved. This copyrighted article may not be reproduced without express written consent of FedSmith Inc.
comments powered by Disqus
