Outside the Protection of the Civil Service Reform Act

A federal district court recently refused to dismiss a “Bivens” tort claim brought by a high-level Library of Congress employee against an agency manager. The effect of this ruling is that the Library manager must defend himself against a constitutional tort action that was brought against him personally.

A federal district court recently refused to dismiss a “Bivens” tort claim brought by a high-level Library of Congress employee against an agency manager. (Davis v. Billington, D.D.C. Civil Action No. 10-0036 (RBW), 3/30/11) The effect of this ruling (handed down on October 14, 2010, but explained in the recently released Memorandum Opinion) is that the Library manager must defend himself against a constitutional tort action that was brought against him personally. (The suit also involves a claim brought against the Librarian of Congress in his official capacity.)

A “Bivens” action refers to the 1971 Supreme Court decision by that name that recognized the concept of a personal tort against individual federal employees under the circumstance where they violated a right guaranteed by the Constitution. In that original case, plaintiffs were allowed to sue federal agents in their personal capacity (as opposed to suing the federal government) because they violated the plaintiff’s protection from unreasonable search and seizure.

In this latest case, the plaintiff is Morris Davis. He was hired by the Library of Congress as its Assistant Director of the Foreign Affairs, Defense and Trade Division of the Congressional Research Service. His hire by the Library was after Davis resigned his commission as a U.S. Air Force Colonel where he had most recently served as the Chief Prosecutor for the Office of Military Commissions for the Department of Defense.

As described in the court’s opinion, Colonel Davis “oversaw the prosecution of suspected terrorists held at the Guantanamo Bay Naval Base…in Cuba. Believing that the military commissions system had become ‘fundamentally flawed,’…the plaintiff resigned from his position as Chief Prosecutor in October 2007…and retired from his position as a military officer…He has since become a ‘vocal and highly public critic of the system….” (Opinion p. 3)

In his capacity with the Library, Davis claims he had no responsibilities relating to the military commissions system. (p. 3)

Several months after being hired by the Library, Davis wrote articles on his own time at home that were published in national newspapers expressing his views on the military commissions process and Guantanamo Bay. “These articles relied exclusively on the plaintiff’s professional experiences prior to his employment with the CRS.” (p. 4)

The Library has a written policy concerning outside writing by its employees. Daniel P. Mulhollan, the director of the Congressional Research Service and Davis’s boss, had a chance to review the articles before they were published. He told Davis he did not agree with his publication of the articles.

After the articles appeared in the press, Mulhollan notified Davis that he would not be converted from probationary status, “admonished” Davis in writing, temporarily reassigned him to a “Special Advisor” position, and informed him that he would be separated from his position with the CRS. Davis indeed was eventually separated. (p. 5) The Library was relying on its regulations that governed outside writing by employees.

Davis brought this lawsuit against the Library as well as against Mulhollan in his personal capacity for violating his First and Fifth Amendment rights.

The government moved to dismiss but the court has now explained its earlier ruling that denied that motion. As to Davis’s personal claim against Mulhollan, the decision turns on the fact that Davis’s termination is outside the protections of the Civil Service Reform Act, and therefore Davis has no real administrative remedy. As the court states, “…the strongest reason for recognizing the plaintiff’s Bivens claim is that the only meaningful remedies available to him are monetary damages….the plaintiff here faces a ‘complete unavailability of review.’ “ (p. 18)

As for the government’s argument that Davis had no leg to stand on in his claim that his First Amendment rights were violated, the court has this to say: “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…. Accordingly, because as pleaded the plaintiff’s speech ‘substantially involved matters of public concern,’ …and did not in any significant way cause harm to his government-employer….plaintiff has therefore stated a plausible First Amendment claim.” (pp. 30-31)

The court goes on to find that plaintiff also “adequately stated a claim for relief under the Fifth Amendment.” (p. 37)

The upshot is that this case will move forward not only against the Library of Congress, but also against Mulhollan personally, unless, of course, the parties work out a settlement.

Davis v. Billington

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.