Did the 1978 Congress have legislative employees in mind when they passed the Civil Service Reform Act and consciously denied them relief, or did they simply focus on executive branch employees and expressed no position on the other branches?
That’s the issue at the heart of Davis v. Billington, a case in the U.S. Court of Appeals for the D.C. Circuit, decided June 1.
Morris D. Davis was the Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007, after which he was hired as a researcher and assistant director in the Library of Congress.
Davis was only months into his probationary first year when he got in trouble for writing high-profile opinions pieces criticizing the administration’s military prosecutions policy. Davis was also critical of the Bush Administration on the same grounds.
Soon after, Davis’ supervisor, Daniel Mulhollen, fired him. Davis sued Mulhollen and James Billington, the Librarian of Congress, in District Court, alleging a constitutional violation of the First and Fifth Amendments under a Bivens claim.
That court denied the government’s motion to dismiss, but a divided Court of Appeals panel ruled against him. The majority, composed of Chief Judge David Sentelle and Judge Karen Henderson, held the 1978 Congress had legislative employees like Davis in mind when they passed the Civil Service Reform Act, and it consciously (or at least “not inadvertently”) limited their ability to obtain relief.
Under Supreme Court precedent, a Bivens claim is inappropriate if Congress establishes a “comprehensive system to administer public rights, has ‘not inadvertently’ omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies.” In such circumstances, courts are supposed to defer to Congress’ judgment and deny the creation of a Bivens remedy.
Judge Rudith Rogers dissented, arguing that the 1978 Congress purposefully did not include legislative employees within the reaches of CSRA because, on a “separation of powers” concern, it did not want the executive branch to adjudicate claims of legislative employees. Accordingly, Congress did not “intentionally withhold a remedy” from legislative employees when passing the CSRA and thus no obstacle exists to a Bivens remedy. Moreover, Rogers reasoned, Davis stated a valid Bivens claim in District Court, which she would affirm.
It remains to be seen if Davis will appeal the decision to the Supreme Court.