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.
